author: EAGER, Chief Justice.

text:
    Louie R. WEST, Respondent, v. JACK COOPER TRANSPORT COMPANY, a Corporation, and Stephen D. Hinshaw, Appellants.
    No. 50546.
    Supreme Court of Missouri, En Banc.
    July 13, 1964.
    Rehearing Denied Sept. 14, 1964.

      Albert Thomson, Harold T. VanDyke, John R. Cleary, Kansas City, Linde, Thomson, VanDyke, Fairchild & Lang-worthy, Kansas City, of counsel, for plaintiff-respondent.
    Ike Skelton, Jr., N. R. Bradley, Ike Skel-ton, Skelton & Bradley, Lexington, of counsel, for appellants.
   EAGER, Chief Justice.

This case was transferred here from the Kansas City Court of Appeals by our order of transfer. Its opinion appears at 372 S.W.2d 642. The suit is one for-personal injuries in which plaintiff recovered $15,000 against the driver and the owner of a transport tractor-trailer. The submission was solely under the Kansas “last clear chance” doctrine; the collision occurred on old Highway 69 about two and one-half miles south of Stanley, Kansas, on May 23, 1958. The facts are rather fully stated in the opinion of the Court of Appeals, and we shall state only a brief outline, with such additions to the original statement as may seem pertinent.

Plaintiff, driving a Plymouth station Wagon north, had been forced partially off of the blacktop road by an approaching car. This occurred at about the middle of a downgrade “S” curve which swung rather sharply to the left and then to the right. Plaintiff testified that the right side of his car came in contact with a high bank on the right curve, there being little or no shoulder; the car then came back on the road and went into a spin. The road was wet and slippery. The car spun and slid on through the curve ahd came to rest at about the beginning of a straightway, still on the downgrade; it stopped substantially crosswise of the east lane of the highway. The back of the car was against the bank; the front end was at the center of the highway; the car was headed somewhat southwest, or slightly ‘back toward the direction from which it had come. We are unable to tell whether the rear wheels were in a concrete drain or off the slab. Plaintiff testified that he was somewhat “shook up”; he tried to drive the car forward, and it did go ahead three or four feet, but he was unable to proceed farther; he did not recall specifically whether the motor stalled, but the car rolled back to its original position. In a "very few seconds” thereafter he saw the tractor-trailer outfit of defendant Cooper, driven by Hinshaw, coming around the curve to the south. The evidence most favorable to plaintiff indicates that this first view was at ■a. distance of 213-225 feet. Immediately, plaintiff said, the transport (it was in fact .a transport for the conveyance of automo,biles, traveling empty) started skidding and it came on down the road sideways covering the whple road, until the tractor struck plaintiff’s car, first near the left front wheel and, almost instantly, at the left rear wheel. The car was knocked or moved a distance of from 8-20 feet, 10-20 according to plaintiff, 8-10 according to others. After the collision the vehicles blocked the whole road, the rear of the trailer being off the road on the west side. While plaintiff watched the transport skidding towards him he did nothing; he testified that he just “froze” to the wheel. There was evidence that the slope from south to north along this piece of road was 5.84%. It will not be necessary for us to consider plaintiff’s injuries.

While plaintiff was in his original spin down the slope, the driver of a tractor-trailer approaching from the north saw what was happening and stopped north of the place where plaintiff’s car came to rest. He stopped, of course, in his own right or west lane. A car traveling behind that tractor-trailer also stopped. From this point the driver of the tractor-trailer watched the subsequent events; during part of this time he was standing on his running board. The testimony as to the distance of this unit from plaintiff’s car varied. There was substantial evidence from three witnesses that this distance was from 50 to 80 feet (north of plaintiff’s car), although plaintiff made an estimate of 150 feet.

The defendant driver testified: that as he rounded the last curve on the wet, slippery roadway, at about 30 miles an hour, he first saw the other transport apparently stopped, and almost immediately saw plaintiff’s car .extended across the east (his) side of the road about 100 feet away; that he already had his foot on the brake pedal and immediately applied his foot brake; that this takes effect first on the rear dual wheels of the trailer, next on the rear dual wheels of the tractor, and last on the front axle of the tractor; that his unit began to skid, the trailer veered out to the left and slid down the hill sideways; that there was dirt on the right side of the road, and that the trees and brush on the curve (at that time) grew out to the edge of the pavement; that in the time and distance available he could not have swerved to the left side of the road without hitting the other tractor-trailer. The unit of the defendants was 50 feet long, overall. Hinshaw testified that he tried to straighten out his tractor and trailer with the steering wheel, but was unable to do so.

Various points were briefed by appellants in the Court of Appeals and most of them are re-briefed here. We have determined that we need consider only two, — the sub-missibility of the case under the Kansas last clear chance doctrine and Plaintiff’s Instruction No. 1. On the first, we agree with' the Court of Appeals; on the other we disagree. In all other respects we concur in the opinion of the Court of Appeals, and we shall not extend this opinion by discussing those points.

On the contention that a verdict should have been directed for the defendants, it is again urged vigorously here that the evidence failed to show when plaintiff’s negligence ceased, when his peril thus became helpless and inescapable, where defendant’s truck was at that time, and that defendants could thereafter have taken action to avoid the collision under the existing road conditions. Basically, defendants insist that plaintiff’s negligence continued because he could have opened his door and stepped out of the car at any time during the 20 to 30 seconds prior to the actual collision, and particularly during the 5 seconds or so in which defendant’s truck was skidding down the hill. It is true that under the Kansas law a plaintiff whose negligence continues to the time of collision and operates concurrently with that of defendant, may not recover under this doctrine. Vail v. Thompson, 360 Mo. 1009, 232 S.W.2d 491; Eubank v. Kansas City Terminal R. Co., 346 Mo. 436, 142 S.W.2d 19; Leinbach v. Pickwick-Greyhound Lines, 138 Kan. 50, 23 P.2d 449, 92 A.L.R. 1. It is also true that there must be substantial evidence to show that the defendant could have acted to avoid the collision after plaintiff’s situation was discovered or should have been discovered. Ross v. Fleming, 165 Kan. 279, 194 P.2d 491; Marshall v. St. Louis-San Francisco Ry. Co., 361 Mo. 234, 234 S.W.2d 524. It has been a little difficult for this writer to understand the statements in many of the Kansas cases to the effect that plaintiff’s negligence must have ceased when one of the very foundations of the Kansas last clear chance doctrine is that plaintiff’s own negligence placed him in the perilous position, and there he remains; obviously, the theory has been that the occurrence of helpless peril is concurrent with a cessation of negligence, even though the peril was brought on initially by plaintiff’s negligence. This has been suitably explained in the very recent case of Letcher v. Derricott, 191 Kan. 596, 383 P.2d 533, where the Court said at loc. cit. 536: “The use of the phrase ‘that plaintiff’s negligence had ceased’ has caused some confusion. The phrase means, and perhaps the better term is, ‘that the plaintiff had, by her own negligence, placed herself in a position of peril from which she could not extricate herself.’ If the plaintiff could extricate herself from the danger, and did not do so, her negligence had not ceased. If the plaintiff could not extricate herself from the danger, her negligence had ceased.” Thus the remaining question is, — what could the defendant do after plaintiff’s position became helpless?

We agree with the Court of Appeals that the jury here, on the most favorable evidence, could have found that plaintiff’s position was helpless from the time defendants’ unit began to skid sideways down the road, in effect sweeping the whole road; and also, that on the most favorable evidence a submissible case was made with reference to the defendants’ ability to act in avoidance. The plaintiff’s situation here was not so simple as stepping out of a truck and off of a railroad track in 9 seconds at a.crossing (Vail, supra). We must also recognize that plaintiff could hardly have been entirely normal in his reactions after his spinning and sliding experience, and that he also had some duty to consider getting his car off the highway and out of the way of other traf-fie. We áre' uñwilling to say hete, as we would need to do, that plaintiff was guilty of continuing'negligence as a matter of law in remaining in his car. The matter of distances and the stopping ability of the defendant driver have been adequately discussed by the Court of Appeals.

Plaintiff’s Instruction No. 1 told the jury that if, after defendant Hinshaw saw or could have seen plaintiff in a position of “imminent peril” he could “with reasonable safety to himself and defendants’ tractor-trailer” have stopped, slackened or operated his vehicle to ,the west and around plaintiff but failed to do so and was thereby negligent, then plaintiff should recover. (We have omitted various included elements not material to our present discussion.) It will immediately be noted, as it was noted by the Court of Appeals, that this submission made no reference to the safety of, or likelihood of injury to, any other persons or property. The Court of Appeals said: “In this .case there is evidence tending to show that the west side of the road was not obstructed as to Hinshaw in any manner from a point 200 to 213 feet south of plaintiff to a point as much as 200 feet to the north of plaintiff.” It concluded, citing Brown v. Callicotte, Mo., 73 S.W.2d 190, that on the facts here the finding that defendant could have acted without injury to himself or his vehicle necessarily included a finding that he could have done so with reasonable safety to others. It is upon this point that we disagree with the Court of Appeals. In Callicotte, supra, there" was no evidence of the presence of any bther persons who might have been endangered or injured. The Court there said in part, 73 S.W.2d loc. cit. 195: “* * nor was there any evidence tending to show that Callicotte, by swerving to the north so as to miss the wagon, could possibly have endangered other persons. There was no evidence that any other person was there or thereabout.” Under such circumstances, the instruction may well have been held not to be prejudicial, and it is at least doubtful whether there was any evidence upon which to submit the element of possible injury to others. The statement made there that since the instruction given required a finding that the defendant could have swerved with safety to himself and his car, it necessarily included a finding “that he could have done so without colliding with the parked cars” (in which there were no occupants) may have been true under the facts of that case. No such assumption should be relied on to negate the possibility or probability of injury to other persons where the evidence shows the presence of one or more such persons in the immediate vicinity and more or less directly in defendant’s line of travel, had he elected to swerve. The driver of the southbound truck had stopped in the west lane and, during at least a part of the time involved, he was standing on his running board. There was substantial evidence that this vehicle was from 50 to 80 feet north of plaintiff’s car. While plaintiff is entitled to submit a case on his own theory of the evidence, he cannot ignore an element which definitely, and by reason of substantial evidence, constitutes one of the factual issues in the case. Evans v. Colombo, Mo., 319 S.W.2d 549. Even had that truck been 150 feet away as plaintiff testified, the danger of an injury to its driver would still have been a distinct possibility had Hinshaw attempted to. swerve his fifty-foot long transport around plaintiff and through the intervening gap.

What we have said concerning the Callicotte case applies also to Hein v. Peabody Coal Co., 337 Mo. 626, 85 S.W.2d 604, and Day v. Banks, Mo.App., 102 S.W.2d 946. Thus, we do not hold that the omission in all cases of the element of'danger to others is necessarily prejudicial, but we do hold that its omission in the present case constituted prejudicial error. To this effect we note: Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9, and Pennington v. Carper, Mo., 309 S.W.2d 596. In the latter case this Court said, 309 S.W.2d loc. cit. 601: “Among the constitutive requirements of a plaintiff’s humanitarian case in proper instances is the fact that the defendant could have averted the impending injury with safety to himself and others. The doctrine does not require a defendant to save a plaintiff at the expense of himself or others. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, 484 [2], Plaintiff’s submission in this respect conditioned a recovery only on defendant’s ability to have averted injuring plaintiff 'with safety to the defendant’s automobile and said defendant.’ The testimony of Mr. and Mrs. Skinner and of defendant established that the Skinner automobile was a little ahead of and in the lane immediately to the left of defendant. There was grave danger of damage to the Skinner .automobile and of injury to its occupants had defendant swerved to his left. The instruction ignores this essential element of the humanitarian doctrine and was properly refused by the court. Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9, 11 [2,11]; Martin v. Lingle Refrigeration Co., Mo., 260 S.W.2d 562, 567 [6].”

The Missouri humanitarian cases universally recognize that, before plaintiff may recover, the jury must find that the defendant could, in the exercise of the appropriate degree of care, have averted the injury to plaintiff without injury to himself, or others. Largo v. Bonadonna, Mo., 269 S.W.2d 879; Price v. Nicholson, Mo., 340 S.W.2d 1; Yarrington v. Lininger, Mo., 327 S.W.2d 104; Cunningham v. Thompson, Mo., 277 S.W.2d 602; Page v. Hamilton, Mo., 329 S.W.2d 758. We do not find any Kansas case, and none has been cited, which expressly considers the element of “injury to himself or others” in discussing the last clear chance doctrine. However, the point is basic and we hold that the submission thereof in a proper case constitutes a necessary element of recovery under that doctrine as well as under our humanitarian theory (where fairly required by the evidence), at least until the Kansas Court holds otherwise. Neither doctrine requires a non-negligent defendant to save a negligent plaintiff at the risk of injury to himself or some other person. One reason, perhaps, for the absence of such discussion in the Kansas cases, is that many of them are railroad crossing cases, where the evidence presented no such question.

Defendants here insist that the submission in Instruction No. 1 of plaintiff’s “imminent peril” rather than his “helpless and inescapable” peril, was improper. The term so used does not conform fully to the theory of the Kansas cases, and upon another trial the instruction should be worded so as to conform. It is true that in Eubank v. Kansas City Terminal R. Co., 346 Mo. 436, 142 S.W.2d 19, 26, the term “imminent peril and danger” was used, but this was followed by the words “from which he could not extricate himself * * We do not propose to reword the instruction but counsel would be well advised to reconsider the Kansas law, as they now seem to rely largely .upon Missouri humanitarian cases for the approval of the term used.

The circumstances tending to show Hin-shaw’s ability to swerve and avoid; the collision-were not particularly strong. However, considering his opportunity to make a decision as soon as he viewed the situation, and plaintiff’s testimony as to the distance of the other transport truck from his car, we hold that there was a submissible issue. We are not overly impressed with the argument concerning the deficiencies of plaintiff’s expert testimony on this point-; after all, the jury, as a matter of common knowledge, has some sources of information on such a question.

The points argued here concerning the evidence have been considered by the Court of Appeals, and we concur in its rulings; and, of course, the evidence upon another trial may not occasion the same objections. No question remains now on the alleged ex-cessiveness of the verdict.

The judgment is reversed for the error in giving Instruction No. 1, and the cause is remanded for a retrial.

All concur.


source: Caselaw Access Project

author: STORCKMAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Delbert CORNETT, Appellant.
    No. 50053.
    Supreme Court of Missouri, En Banc.
    Sept 14, 1964.
    Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Asst. Atty. Gen., Jefferson City, for respondent.
    Ted M. Henson, and John A. Casey, Poplar Bluff, for appellant.
   STORCKMAN, Judge.

The defendant was convicted of first degree murder and the jury assessed the death penalty. His motion for new trial was overruled and he has appealed. There is no contention that the conviction is not supported by the evidence. The nature of the questions presented are such that an extended statement of the facts is not required.

On September 2, 1962, the body of William Rue Bryant was found near the Black River about a mile and a half south of Poplar Bluff. There were seven stab wounds in Mr. Bryant’s chest and upper abdomen, several of which penetrated vital organs and caused his death. Mr. Bryant’s billfold with no money in it was found near the body. His automobile was found on a salvage lot near Campbell, Missouri. There were blood stains on its front seat.

About four o’clock in the afternoon of the same day that the body was found, the defendant and Richard Macom were arrested. Several hours after the defendant was arrested, he signed a written confession which was introduced in evidence. Since it gives the complete story of the occurrence, the confession is set out in full, omitting the caption and signatures:

“1 Delbert Cornett give the following statement to Sgt. Howard I. Rhodes, Sheriff Lester Massingham, Trooper F. A. Find-ley and Chief of Police Eldon Whitworth, reference the death of William Rue Bryant. I have been advised of my Constitutional rights and have not been threatened or made any promises.

“I was dispatching that night for Ed Smearbaugh and we closed the station about 12:00 or 12:30. I put the day’s receipts in a box and this fellow drove up and ask Richard Macom if he could get him a bottle. They left in this fellow’s car and I set there on a step until they returned. Biff Joiner sat there with me. When Richard and this man returned they turned in the driveway and Richard bought two drinks of whiskey from the man, one for him and one for me. He gave him a half dollar for it. I got in the back seat of the car with this fellow and Richard and we left under the pretense of getting another bottle. We went down to South Poplar Bluff, and we come to the conclusion of robbing the man.

“We turned off on Ashcroft Road and I taken my pocket knife out and put it on his neck and asked him for his billfold. He put up a struggle and I cut him for the first time. We went farther on down the river road and stopped and asked him to get out of the car. I cut him another time there and he staggered and fell down. Richard Macom asked for the knife then and he started stabbing him. I said that we were going to have to kill him, then Richard cut his throat I think. I told Richard to cut his throat, and Richard told me that he tried to cut his head off his shoulders.

“I then told Richard that we would have to take the car and get rid of the son of a bitch. At that time Richard threw my knife away and we got in the car and went to Campbell, and left the car in a salvage lot. We then walked into Campbell, and called a cab from Poplar Bluff to come out and get us.

“Marvin .Chatman is the cab driver that picked us up in Campbell, and brought us back to Poplar Bluff, and let us out at the Crown Hotel. We bought a half pint of whiskey at the Crown and left there and went to my house where Richard burned his bloody trousers in a little King heater stove in my house. Then he put on a pair of my trousers and went to his home.

“After Richard left I layed down and tried to sleep but couldn’t I got so nervous that I went to my mothers house and told her that I had to tell her something and then told her that I thought Richard and I had killed a man. We then called Mrs. Macom and she come over to mother’s house and we told her about it A short time later I went over to Macom’s house and told Richard’s brothers about it, that was Roy and Freddy Macom.”

The only witness for the defense was Dr. Marvin Barbour of Poplar Bluff who had been engaged in the general practice, of medicine for about ten years. He examined the defendant with reference to his mental status and neurological functioning for about an hour a couple of days before the trial. The examination revealed no definite abnormality, but the defendant’s history suggested a possibility of the existence of some organic disease of the central nervous system. There was no evidence of recent injury, but there was a history of brain concussion and a head injury in the past which could possibly produce changes in the brain that would cause the behavior encountered in questioning the defendant. From his examination the doctor was . not able to determine if the defendant knew the difference between right and wrong but was of the opinion that the defendant should be examined and tested by someone more qualified than he was.

The defendant and Richard Macom were charged in the same information, with first degree murder. Macom was granted, a severance and pleaded guilty to the charge of first degree murder. The sentence imposed is not shown by the record. The defendant was tried alone, found guilty and sentenced to suffer the penalty of death.

The questions presented on appeal relate to statements made by the court to the jury during its deliberations concerning the time the defendant would serve if given a life sentence, the refusal of the court to excuse a juror who stated on the voir dire examination that he had formed an opinion as to the guilt or innocence of the defendant, and the propriety of one of the instructions given.

About thirty minutes after retiring to consider its verdict, the jury was brought back into the courtroom and the following dialogue occurred between the court and the foreman of the jury:

“THE COURT: Gentlemen, the Sheriff tells me that you wanted to ask me a question. I don’t know whether I can answer it or not.

“MR. KALKBRENNER: The question we want to ask you is what do you mean by natural life, does that mean every day or does that mean he can be paroled ?

“THE COURT: That is up to the Board of Pardons and Paroles. I don’t think we have any say so over that. Do you gentlemen either one of you have any objection to me making that explanation ?

“MR. HENSON: They have got the instructions.

“THE COURT: You will have to go by the instructions. We can’t foresee what will happen in the future. It is the province of the Jury to pass on the guilt or innocence and fix his punishment. Now, what happens thereafter of course is out of the hands of the Jury and the Court or anybody else. So I don’t think that maybe helps you, but that is all I can tell you. You have to be guided by the instructions and let the future take care of it.”

The jury again retired and after another thirty minutes it returned its verdict finding the defendant guilty and assessing the death penalty. The defendant contends that the court’s oral statement or instruction to the jury constituted prejudicial error in that it improperly influenced the jury to assess the death penalty.

The state asserts the question is not preserved for review because the defendant did not object to the remarks of the judge. It is apparent that the defendant did not have an opportunity to object before the court made his first response to the juror’s question. The case is unlike State v. McGee, 361 Mo. 309, 234 S.W.2d 587, 591[9], where the court consulted with counsel and obtained consent before answering. Such a situation at best is a difficult one for counsel. When given an opportunity, defendant’s counsel indicated that the court should not go beyond the written instructions which the jury had. The occurrence was also specified as a ground in the defendant’s motion for new trial. Supreme Court Rule 79.01, V.A.M.R., inter alia, provides that it is sufficient for the purpose if a party, at the time the ruling or order is made or sought, makes known to the court the action which he desires the court to take or his objection to the action and his grounds therefor. Considering the time, manner, and circumstances of the occurrence, the trial court was adequately apprised of the error claimed and the question is preserved for review. State v. Keller, Mo., 344 S.W.2d 65, 66 [2],

The state cites several cases where questions concerning parole or reduction of sentence were answered with the consent of counsel and sometimes with active participation of counsel, such as State v. Stidham, Mo., 258 S.W.2d 620, State v. Crofton, 271 Mo. 507, 197 S.W. 136, State v. Shipman, 354 Mo. 265, 189 S.W.2d 273, and State v. Ackerman, 315 Mo. 219, 285 S.W. 739. Such cases are not controlling here. Nor is this a case where the court declined to answer the question or merely admonished the jury to disregard the matter and to adhere to the written instructions and the evidence in the case. The state also relies on State v. Richardson, 137 Kan. 38, 19 P.2d 735, where the trial judge in the presence of defendant’s counsel told an inquiring juror that punishment could he made to run consecutively or concurrently on each count of the petition, but it was a matter for the court and not for the jury. The interchange was held not to be prejudicial error. But in the case at bar, the jury was required to assess the punishment and not the court. The Richardson case is not persuasive in the circumstances of this case.

It has been held improper for a prosecutor in oral argument to call the jury’s attention to the possibility that a defendant may be released from imprisonment by parole or some similar procedure as a reason for imposing a greater penalty to compensate for such prospective mitigation. State v. Kaempfer, 342 Mo. 1007, 119 S.W.2d 294, 296[6]; 23A C.J.S. Criminal Law § 1107, p. 208. Likewise, an instruction that the sentence imposed by the jury may be lessened by the executive branch of the government has been held to be erroneous. 23A C.J.S. Criminal Law § 1290 p. 706, n. 44.

We have found no Missouri case precisely in point but the rule supported by the better reasoning is that it is error for the trial court to inform the jury that the sentence imposed by its verdict may be diminished by parole or some similar procedure not administered by the judicial branch of government. State v. Beedle, Mo., 180 S.W. 888, 889-890[2]; 23A C.J.S. Criminal Law § 1379, p. 1012; People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33, 46-47[7, 8]; Coward v. Commonwealth, 164 Va. 639, 178 S.E. 797, 798[2, 3]; Jones v. Commonwealth, 194 Va. 273, 72 S.E.2d 693, 35 A.L.R.2d 761; Berry v. State, 107 Ga.App. 643, 131 S.E.2d 115; Bean v. State, 58 Okl.Cr. 432, 54 P.2d 675, 676-678[1, 2]; Ringo v. Commonwealth, Ky., 346 S.W.2d 21. The cases cited from other states are typical of those taking this view. What was said in Coward v. Commonwealth is applicable to the situation in the instant case :

“The power of the Governor to pardon should not be commented upon in argument, and it is plain error to tell the jury that under an established rule and in the ordinary course of events such sentence as it may impose will not be suffered, but will be substantially diminished. In the instant case, this is what the jury wanted to know, and its purpose in seeking information is too plain for argument. These jurors should have been told that it was their duty, if they found the accused guilty, to impose such sentence as seemed to them to be just.. What might afterwards happen was no concern of theirs. In its failure to do this, we think the trial court was in error. For this reason its judgment must be reversed, and it is so ordered.” 178 S.E. 800. The asking of such a question by a juror presents a difficult situation, but the response suggested in Jones v. Commonwealth, supra, is worthy of consideration ; it is that “it is the duty of the jury if they find the accused guilty to impose such punishment as they consider to be just under the evidence and within the limits stated in the court’s instructions; and that they must not concern themselves with what may afterwards happen.” 72 S.E.2d 694. See also State v. Quilling, 363 Mo. 1016, 256 S.W.2d 751, 754[9]. In People v. Morse, supra, the California Supreme Court made a comprehensive review and reappraisal of the problem presented by the jury’s concern with the lessening by others of the punishment assessed by its verdict.

The statement is not rendered harmless by .reason of the further statement of the court to the effect that the jury must be guided by the instructions and let the future take care of itself. The situation is similar to that described in Ringo v. Commonwealth, supra, as follows: “Throughout the proceedings the judge sought to protect the appellant and in doing so inadvertently informed the jury, in answer to its question, that the appellant would be eligible for parole in about eight years if given a life sentence. He immediately tried to rectify the error by admonishing the jury: ‘I am not allowed to give you that information. That is a matter for the parole board to decide. Return to the jury room and decide the case under the instructions.’” 346 S.W.2d 21.

The record discloses an unorthodox situation which buttresses our conclusion that the error was not harmless. The jury was present at the argument of the motion for new trial; for what reason we do not know. But the record shows:

“MR. HENSON: Now, the Defendant objects to the argument on the Motion for New Trial, in the presence of the Jury that tried the case and rendered the verdict in this case.

“THE COURT: For what reason?

“MR. HENSON: For the reason that it is prejudicial.

“THE COURT: It ■ may be, but your objection is overruled. They are through with it. Go ahead Mr. Casey with your argument.”

The presence of the jury at such a time seems unfortunate in that it might tend to hamper a free and thorough discussion of the motion. Thereafter, in ruling on the motion, the court stated:

“THE COURT: Now I have gone over the motion filed for new trial, and while there may be some points there that the appellate Court might feel would be, would justify granting a motion for new trial, I do not feel like granting the motion. Therefore, I am overruling the motion for new trial, which was heretofore filed in this case.”

After the formal sentencing this sequence occurred:

“MR. CASEY: I would like to have something put in the record. I have, prior to this date, and I just talked to Mr. Cor-nett, and volunteered my services to appeal this case. Mr. Cornett advises me that he does not want to appeal it, and due to the seriousness of the offense I think that I would like for Mr. Cornett to make that remark, or state here in open Court for the record, that he does not want me to appeal the case.

“THE COURT: Mr. Cornett, in view of what Mr. Casey has said, I would like to state to you that it is my opinion in a case as serious as this is, and the responsibility of Mr. Casey, who was appointed by the Court, who appears here with you, and in view of the fact that he has offered his services and since you are without funds, and in view of the further fact that an appeal can be made without any expense to you, I feel that you should authorize him to appeal this case and let the Supreme Court pass on it. Now, I suppose you have the right to refuse his services and to tell him that you do not wish to appeal it, but I am asking you now in open Court here, and at this time, when Court is in session, in the presence of him and the officers and the people who are here in the Court Room, whether or not you will permit Mr. Casey to appeal your case to the Supreme Court, or if you insist that it not be done?

“MR. CORNETT: Well, I really don’t see no use appealing it and prolonging it any more, when the Supreme Court would uphold the sentence and let it go as it is.

“THE COURT: We don’t know that the Supreme Court will do that, but anyway now, you have heard Mr. Casey’s statement, and you heard what the Court has said, and I would like for you to very seriously consider it between now and the time that Mr. Massingham takes you to Jefferson City next Wednesday, and I want you to talk to your folks and think about it. And as I say, he is perfectly willing to do it, and it can be done without expense to you. The Court feels like it should be done and let the Supreme Court, who has had far more experience than I have, pass on it So you think about it between now and then, and Mr. Casey will contact you now sometime before you leave.

"MR. CORNETT: Yes, sir.

“THE COURT: And let me know what you want to do.

“MR. CORNETT: Your Honor, I would like to thank each and every one of the Court attaches for the generosity and the kindness and goodness of their hearts that they have given me through this trial.

“THE COURT: Well, it is unfortunate for everybody of course that this happened. You could have entered a plea of guilty and the Court would have assessed your punishment at life imprisonment, but the Court was advised through your attorneys that you did not want that done, that you would enter a plea of guilty if you felt the Court would assess the death penalty, which I felt like that just one man on a plea of guilty, did not want to do. So you think it over Delbert, and Mr. Casey ^will contact you.

“MR. CORNETT: Yes, sir.”

The defendant did consent to the appeal; it goes without saying that the appeal should be ruled according to law regardless of the defendant’s desires in the matter. The defendant did not testify and in view of his confession and other evidence in the case, the nature and extent of his punishment was perhaps the most important issue in the case. In the circumstances of this case, the error was prejudicial to the defendant on this important issue and his motion for a new trial should have been granted.

The other two matters urged are not likely to happen again on retrial and need not be ruled. In passing, however, it may be observed that it would be the better practice in a case of this sort to excuse a juror who states he has formed an opinion unless subsequent examination discloses unequivocally that he will be guided solely by the evidence. In redrafting its instructions for retrial, the state will do well to consider the objections made against instruction 3 in the present case.

The judgment is reversed and the cause remanded.

EAGER, C. J., and LEEDY, HOLMAN and HENLEY, JJ., concur.

DALTON and HYDE, JJ., dissent.


author: FRASER, Chief Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. L. C. BOHANON, Appellee.
    No. 5656.
    Court of Civil Appeals of Texas. El Paso.
    July 29, 1964.
    Turpin, Kerr, Smith & Dyer, Thornton Hardie, Jr., Max N. Osborn, Newton J. Steele, Lawrence L. Fuller, Midland, for appellant.
    Warren Burnett, Bill Alexander, Odessa, for appellee.
   FRASER, Chief Justice.

This is a Workmen’s Compensation case wherein the appellee was successful in obtaining a judgment under the pertinent law, as the result of the jury finding that the plaintiff had sustained total and permanent incapacity as the result of accidental injury. Plaintiff claimed that he was injured while changing a light bulb when a pipe on which he was standing collapsed, causing him to fall a distance of about six feet to the floor, landing on his right hip and lower back. The appeal here is primarily concerned with the extent of the plaintiff’s disability and incapacity.

The appellant has briefed one point, in which it takes the position that the trial court committed error in-overruling defendant’s objection to the jury argument of plaintiff’s attorney. This then presents one issue, namely, to determine from the record whether or not the argument, was improper and,, if so, to the extent that it likely caused the rendition of an improper verdict. This is the rule and the law, enunciated by the Supreme Court of Texas in the case, of Aultman v. Dallas Railway & Terminal Company, 152 Tex. 509, 260 S.W.2d 596. The Supreme Court in that case stated:

“Before a judgment is reversed because of argument of counsel two things must appear: the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.”

We have examined the record here and considered the excerpts therefrom as found in the briefs, and have reached the conclusion that the arguments complained of here were not such as would be reasonably calculated to cause the rendition of an improper verdict.

Appellant’s brief sets forth two statements to which it objected at the trial. One of such statements is as follows:

“That is the big question you have to determine in this case. * * * Is peddling apples on the streets the usual task of a workman ? I don’t think so.”

Timely objection was made and the jury requested not to consider the statement, but the court then stated “We overrule the objection.”

Appellant also objected to the following statement:

“I dare say Mr. Hardie is going to criticize Mr. Bohanon for going back to work although they didn’t keep up their obligations. They cut him off cold. I guess he expected them to live on charity.”

Objection was made by counsel for the appellant that the argument was outside the record, and the court replied by saying, “Go ahead.”

Appellant then includes in its brief a number of other statements to which it appears there was no objection made to the trial court. We do not include these statements, but we have considered them and feel that they are neither separately nor cumulatively such as would constitute error under the rule set forth in the Ault-man case. One of the statements is: “L. C. Bohanon is a Negro whose skin is black * * This statement, of course, was irrelevant, improper and had nothing to do with the merits of the case, but we do not believe that it constitutes error. Anyone on the jury could ascertain that fact by looking at the plaintiff, and there is no reference or suggestion that the color of his skin or his racial background would make it harder for him to secure work than anybody else, and such is not alleged or claimed in appellant’s brief.

Certainly improper argument and inflammatory argument is to be deplored and should be excluded from any court of justice. In this respect it has long been the rule that if the improper argument is incurable, the injured party does not have to make objection at the time; but if it is curable, and an instruction to the jury by the court would remedy the matter, then such improper statement or argument is considered waived unless objected to at the time it was made.

Appellee here argues that the bill of exception is so general that it ought not to be considered in that it consists of the formal wording of a bill of exception, followed by the court reporter’s record of the arguments, objections and rulings, without separating, emphasizing or pointing out any particular statement or sentence. Even though the motions for new trial and the bill of exception are general and not specific, and seven or eight of the matters complained of were not objected to at the trial, we have examined and considered the entire record of the case to ascertain if any of the matters complained of could have caused an improper judgment.

There was considerable testimony in the record on behalf of the plaintiff; that, among other things, he had found it difficult and even impossible, since his injury, to hold jobs such as working in filling stations, setting out trees, etc., in the landscaping business, etc. There was conflicting testimony between the treating and testifying doctors. Appellant produced evidence that the plaintiff appeared to be able to work as usual, in contradiction of plaintiff’s own testimony, and evidence from witnesses, that he could not perform the usual tasks of a workman. It was also brought out that before his injury the plaintiff had finished high school and had been a successful athlete in several sports. This matter was before the jury, along with the testimony that he was not able, since the injury, to do work that involved lifting, etc. It is therefore apparent that there was evidence both ways that the jury could consider and accept or reject. This brings us to the very point in consideration here : Did any of the alleged improper argument cause the jury to render an improper verdict? We do not think so. The most serious attack is made on the statement, in the form of a question, asking whether peddling apples or pencils on the street is a usual task of a workman. It is true that there is nothing in the record with reference to peddling pencils or apples, but it has always been true that an attorney, in his arguments, may draw proper inferences and deductions from the facts and circumstances in evidence so long as such are fair and reasonable, and to relate them to the issues submitted to the jury, and to use them in reply on rebuttal to arguments of his opponent. We do not believe that the matter complained of here was in any way serious enough to have caused the jury to render an improper verdict. It must be remembered that the issue at stake was the extent of plaintiff’s injuries and his capacity to work. In the briefs before us no attack is made on the court’s definition or charge with reference to this matter. We repeat that the record contains evidence on both sides as to plaintiff’s incapacity and injuries, both from lay and medical witnesses. The jury had before it a definition and charge to guide it in its determination as to whether or not the plaintiff was totally and permanently incapacitated.

There are many cases dealing with the subject of improper argument, but we think the citation heretofore set out with its quotation, is sufficient, adequate and accepted. Issue No/ 1 specifically asked if plaintiff had sustained any total incapacity following his injury. Prior to that, the court in his charge had defined “incapacity”. These are matters that the attorneys are permitted to discuss, and we do not think the argument complained of here constituted error.

Finally, appellee maintains, and has cited a number of cases, to the effect that appellant’s assignment of error is too general and therefore not entitled to consideration. There appears to be considerable merit in this statement, but do not pass on this counterpoint as we feel that we have disposed of the case, as set forth above.

Appellant’s point of error is therefore overruled and the judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Emilio B. SALMON, Appellant, v. Sam MATHER, Appellee.
    No. 5725.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 2, 1964.

      Mae M. Ament and Richard E. Bowers, Alpine, for appellant.
    Bruce C. Sutton, Alpine, Albert Armen-dariz (amicus curiae), El Paso, for appel-lee.
   PER CURIAM.

This is an appeal from a judgment of the District Court of Brewster County, Texas in an election contest case. In the second primary election for nomination for the position of County Commissioner of Precinct 3 of Brewster County held June 6, 1964 in which appellant and appellee were the only candidates, the County Democratic Executive Committee of said county certified that appellant (Contestee) Salmon had received 145 votes and appellee (Contestant) Mather had received 144 votes. The-appellant having been declared the winner of said second primary, appellee filed his-contest of said election in the district court where the case was heard without a jury. The judge of said court entered his judgment declaring appellee the nominee in such election, having received 145 legal votes as against 141 legal votes for appellant. The latter appeals.

Appellant’s five points of error challenge-the trial court’s findings that nine votes'cast for appellee were legal votes, and urge-that such findings concerning legal residence of the voters in Precinct 3 were-against the great weight and preponderance of the evidence.

The following principles govern the decision of this court in passing upon an appeal from a decision of a district court in an election contest such as this:

Article 2.06 of the Texas Election Code, V.A.T.S. provides that all voters, shall vote in the election precinct in which they reside. Harrison v. Jay, 153 Tex. 460, 271 S.W.2d 388 (1954); Boroughs v. Williamson, 312 S.W.2d 717 (Tex.Civ.App., 1958; dism.) ; Teeple v. Beedy, 316 S.W.2d 311 (Tex.Civ.App., 1958; N.W.H.). “Residence” is defined in Article 5.08 (as amended), Texas Election Code, but while the residence of a married man is ordinarily determined by his wife’s residence, such rule is not without exception, and residence is a question which must be determined by reference to the actual facts, and circumstances, one of which is intention. Cavallin v. Ivey, 359 S.W.2d 910 (Tex.Civ.App., 1962; N.W.H.). And there is a presumption in favor of the validity of a vote cast (Ibid.).

Appellant’s points of error are “insufficient evidence” points, all relating to the qualification, because of residence, of nine voters to cast their ballots in Precinct 3 of Brewster County. If there is evidence of probative force tending to sustain the findings of the court and evidence tending to refute such findings, the rule is that, considering all the evidence, if the findings are so contrary to the great weight and preponderance of the evidence as to he manifestly wrong and unjust, we must sustain the points and order a new trial; otherwise, we must overrule the points and affirm the judgment of the trial court. 38 Texas Law Review 367, 368 (Calvert, 1960).

With these principles in mind, we have carefully examined all the evidence offered as to the residence of these nine voters, and find that issues of fact were raised by the evidence in this respect for the trial court to pass upon. We hold that there was evidence of probative force to support the trial court’s findings upon these voters, and that the evidence is sufficient to support the trial court’s findings. Mitchell v. Jones, 361 S.W.2d 224 (Tex.Civ.App., 1962; N.W.H.). Appellant’s five points of error are accordingly overruled.

Appellee sets out four cross-assignments attacking the residence of five voters whose votes were cast for appellant. We would apply the same reasoning in overruling these cross-assignments as is outlined above in overruling appellant’s points; but regardless of how we ruled on these cross-assignments, the ultimate result would not be changed. The same is true of appellee’s fifth assignment which asserts error on the part of the trial court in not matching two unsigned ballot stubs with their respective ballots and declaring the latter void. Should this be error, it would be harmless error since the ultimate result would not be changed. All cross-assignments are overruled.

A written motion has been presented to us for leave to file amicus curiae1 brief herein. Such leave is hereby granted. An examination of this brief reveals, however, that it raises points not presented to this court by either of the parties hereto in the assignments or cross-assignments of error. Nevertheless, the amicus curiae brief has been considered, but, since the points raised therein are not germane to any assignments of error properly before this court, we find it unnecessary to discuss them.

We affirm the judgment of the trial court holding that appellee Sam Mather, having received a corrected total of 145 votes, as against a corrected total of 141 votes cast for appellant Emilio B. Salmon, is declared to be the Democratic nominee at said second primary, and that the name of the said Sam Mather be so certified to the Chairman of the Brewster County Democratic Executive Committee. No motion for rehearing in this cause will be entertained by this court.


author: CLAYTON, Justice.

text:
    Louis JOHNS, Appellant, v. KARAM DEVELOPMENT, INC., a corporation, Appellee.
    No. 5633.
    Court of Civil Appeals of Texas. El Paso.
    July 22, 1964.
    Rehearing Denied Aug. 26, 1964.

      Frank Hart, Albert Armendariz,- El Paso, for appellant.
    Lipscomb, Fisk & Cox, El Paso, for ap-pellee.
   CLAYTON, Justice.

• Appellee filed suit against appellant ■ for breach of warranties contained in assignments by appellant to appellee of two oil and gas leases. The first assignment, dated April 1, 1958, related to a percentage of oil and gas produced on property described as the West one-half (W}/£), Southwest Quarter (SW}4), Section Thirty-three (Sec. 33), Township Two North (T2N), Range Ten West (R10W), Comanche County, Oklahoma. This assignment contains the recitals : “ * * * the said lease and all rights thereunder or incident thereto are now owned by LOUIS JOHNS” (appellant), and the further covenant that “the lawful owner of said lease and rights and interest thereunder * * * has good right and authority to sell and convey the same”, together with the customary language of conveyance. The assignment also recites that “the above described lease now has four (4) producing well * * This assignment will hereinafter be referred to as the assignment of the “four-well lease”. Contemporaneously with the above assignment, under date of April 11, 1958, appellant wrote appellee a letter which, after describing the above interest and property transferred, stated:

“this is to advise you that I do hereby guarantee that all four wells are presently producing.
“I do further hereby guarantee and warrant that I am the lawful owner ánd holder of the aforementioned right and interest under the original lease.”

Appellee paid appellant $6,000.00 for this assignment.

On May 20, 1958 appellant executed to appellee another assignment of an oil and gas lease covering a working interest in another property in Comanche County, Oklahoma. This assignment, which will hereinafter be referred to as the assignment of the “one-well lease”, contains- substantially the same recitations of ownership, right to sell and of conveyance as the “four-well lease”. By letter dated May 22, 1958 from appellant to appellee, the former wrote “‡ * * .this is to advise-you that I do hereby guarantee that there is a producing well on said lease”, and- further guaranteed ownership of the right and interest assigned.

Although, the record later showed that appellee paid appellant $1250.00 for this assignment, appellee had alleged payment of only $1200.00 and the subsequent judgment of the court limited appellee’s recovery under this assignment to the lesser amount.

On March 26, 1959 appellee filed suit against appellant for damages for breach by the appellant of the warranties contained in the assignments and letters outlined above.

Trial was to a jury. Both at the time of the trial and in his answers to Request for Admissions given before the trial, appellant acknowledged receipt of the respective sums paid for the two assignments, and also admitted that he did not have title to or any leasehold interest in the property described in the assignment and letter covering the “four-well lease”, there apparently having occurred a mistake in the description of the property involved in this assignment. On October 19, 1960 appellant tendered into court what was intended to be a corrected assignment which was refused by appellee.

In answer to special issues, the jury found that appellant had agreed to guarantee the assignment to appellee of the “four-well lease” as set out in the assignment of April 1, 1958 and the letter of April 11, 1958, and that such wells were producing wells. (Questions Nos. 1 and 2). In answer to Questions Nos. 3 and 4 the jury found that appellant agreed to guarantee the assignment to appellee of the “one-well lease”, but that the well was not a producing well. In answer to Question No. 5 the jury found that appellant owned the leasehold interest described in the assignment and letter concerning the “one-well lease”. No similar issue as to ownership of the “four-well lease” was submitted to the jury, since there was nothing in the record to dispute the fact that the appellant did not have title to nor any leasehold interest in the property described in that assignment. Question No. •6 was conditioned upon a negative answer to Question No. 1, and was therefore unanswered. The seventh special issue reads as follows:

“QUESTION NO. 7.
“What sum of money, if any, do you find from a preponderance of the evidence, that the plaintiff, Karam Development Company suffered in 'damages, if any, in the failure, if any; of the defendant, Louis Johns, to 'deliver an oil and gas assignment of four producing wells, as set forth in the assignment of lease dated April 1, 1958, if you have so found he did not? Answer in dollars and cents, if any.
“In this connection you are instructed that in considering the damages, if any, you may take into consideration the purchase price of the leasehold interest paid by the plaintiff to the defendant, and any reasonable operating expense of the plaintiff in connection therewith.”

The jury’s answer was “None”.

Question No. 8 was identical, in all important respects, with Question No. 7 except that it was confined to “a producing well, as set forth in the letter dated May 22, 1958”, if the jury had found that there was not a producing well thereon. To this question the jury answered “$1250.00" (which was $50.00 more than was pleaded).

Based upon these answers the court entered judgment for appellee in the amount of $7,200.00, the judgment reciting:

“ * * * the Plaintiff thereafter having filed its motion for judgment in the amount of $1,250.00 based on the findings of the jury with respect to Special Issues Nos. 3, 4 and 8, and for judgment for damages in the amount of $6,000.00, based on the pleadings, evidence and law relating to the defendant’s breach of covenant of ownership and right to convey as set forth in the lease assignment dated April 1, 1958, and related letter agreement of April 11, 1958; and the court having heard and considered said motion and finding that the defendant, Louis Johns, did not own or have any title to the property described in the lease assignment dated April 1, 1958 at the time of the assignment or thereafter, and that as a matter of law the covenant of ownership and right to convey contained in said assignment was breached by reason of failure of title; the court is of the opinion that plaintiff’s motion for judgment in the foregoing matters should be granted for said sum of $6,000.00 and for the sum of $1,200.00 instead of $1,250.00, by reason of plaintiff’s pleading the sum of $1,200.00 damages only on this item, for a total sum of $7,200.00 * * *.”

Appellant’s first six points of error are directed to the court’s judgment relative to the “four-well” assignment. Appellant’s position is that the jury’s answer to Question No. 7 disposed of appellee’s cause of action under this assignment and that appellant’s motion for judgment and the' court’s action in granting the motion was in effect a motion and judgment notwithstanding this answer. It occurs to us that the issue in Question No. 7 might have been omitted from the charge. The language appellant used in his assignment of the “four-well” lease and in the contemporary letter relative to the assignment amounted to' covenants of seizin and of good right to convey. Yet the uncon- - tradictéd evidence established the appellant had no title- or interest in the property described in this assignment at the time it was executed. Since appellant did not own .the estate he undertook to convey, -there was a total failure of title which breached the covenants of seizin and good right to convey at the time the instrument was made. Childress v. Siler, 272 S.W.2d 417 (Civ.App., 1954; ref., n. r. e.). .The,measure of damages for such breach is the purchase money paid, or the value of the consideration paid, with interest. Childress v. Siler, supra. The court recognized this when he omitted any issue regarding ownership of the “four-well” assignment and when he granted judgment to appellee in the amount of $6,000.00 as damages for failure of title in this assignment. Therefore Question 7 must have been an inquiry on the question of damages for breach of the covenant that the wells were producing wells, had the jury found in answer to Question No. 2 that the wells were not producing. The jury presumably answered that there were no damages in reply to Question No. 7, since it had already found that the four wells were producing. But, since the trial court must have already decided that appellee was entitled to recover as a matter of law on one theory of its case (to-wit, failure of title), it occurs to us that the question of damages on an alternate theory would have been immaterial, and Questions Nos. 2 and 7 were therefore unnecessary to the judgment on the “four-well” assignment. The judgment as entered was not a judgment N.O.V., and the answers to Questions 2 and 7 did not dispose of appellee’s cause of action under the “four-well” assignment.

We believe that what has been said effectively disposes of the complaints contained in appellant’s first six points of error. His seventh point asserts that the court erred in submitting Question No. 4 to the jury. This is the issue to which the jury answered that the well referred to in the letter of May 22, 1958 relative to the “one-well lease” was not a producing well. The record is devoid of any showing that there was an objection by appellant to the submission of Question No. .4, or any other issue, and, absent such an objection in writing presented to the court before the charge was read to the jury, the objection must be considered as waived. Rule 272, T.R.C.P. This seventh point also ascribes as error the court’s refusal of appellant’s motion for judgment non obstante veredicto in the “one-well” case based upon no evidence or insufficient evidence for the submission of Question No. 4. Passing, over what may be considered a violation o'f the briefing rules, this complaint may be disposed of by stating that the jury’s finding under this issue has support in the evidence.

The foregoing disposes of all appellant’s points of error. They, and appellee’s single cross-assignment, are overruled.

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


author: McDONALD, Chief Justice.

text:
    FIREMAN’S FUND INDEMNITY COMPANY et al., Appellants, v. BOYLE GENERAL TIRE COMPANY, Inc., Appellee.
    No. 4200.
    Court of Civil Appeals of Texas. Waco.
    July 30, 1964.
    Rehearing Denied Aug. 27, 1964.

      Jones, Boyd, Westbrook & Lovelace, Waco, for appellants.
    : Tom Moore, Jr., Waco, for appellee.
   McDONALD, Chief Justice.

This is' an appeal from a judgment reforming an employee fidelity bond issued by defendant, and awarding plaintiff judgment for $9350. against defendant on such bond.

Plaintiff Boyle (among other things) alleged that he was owner of 2 businesses, Boyle General Tire Company and A 1 Brake and Tire Company; that E. C. Robinson, acting as agent for defendant Fireman’s Fund Indemnity Company, falsely represented to him that he would deliver to him a fidelity bond protecting him from dishonest acts of employees, of both Boyle General Tire, and A 1 Brake and Tire; that employees of A 1 Brake and Tire, Hammit and Bridges, embezzled moneys; and that defendant’s bond did not show A 1 Brake & Tire as an insured. Plaintiff prayed that defendant’s bond be reformed to show A 1 Brake and Tire Company as an insured, and for judgment on the reformed bond, for the amounts of money embezzled by Hammit and Bridges.

Trial was to a jury which found “that E. C. Robinson, as agent for Fireman’s Fund Indemnity Company, represented to E. C. Boyle, in consideration of the premium charged, that said Fireman’s Fund would deliver to Boyle a commercial blanket bond insuring A 1 Brake and Tire Company against dishonest acts, of its employees.” The jury further found such representations were a material inducement to Boyle to apply for the bond and pay the premiums; that Hammit wrongfully took $5600. and Bridges wrongfully took $3750, from A 1 Brake and Tire Company; and acquitted Boyle of negligence, in failing to discover the omission of A 1 from the policy, prior to the time he actually discovered such.

The Trial Court entered judgment reforming the fidelity bond to include A 1 Brake and Tire as a named insured, and rendered judgment against defendant Indemnity Company for $9350. on such bond.

Defendant Indemnity Company appeals, contending the trial court erred in entering judgment for plaintiff because:

1) There is no evidence, or insufficient evidence, to support the jury’s findings of agency and misrepresentation.
2) Plaintiff failed to plead and prove necessary requisites for reformation of the policy.
3) Plaintiff’s claim was barred by the Statute of Limitations and Laches.
4) The confessions of the 2 employees accused of embezzlement were improperly admitted into evidence.
5) Testimony regarding an offer of settlement was improperly admitted into evidence.

We revert to defendant’s 1st contention that there is no evidence, or insufficient evidence, to support the jury’s finding of agency and misrepresentation.

Robinson testified that he had a written contract of agency with defendant Fireman’s Fund; that he was supplied with printed form insurance and indemnity contracts; that he was an authorized agent; that such policies were not effective until countersigned by him, and that he had authority to bind defendant company. Robinson actually issued a fidelity bond covering plaintiff’s employees at one of the businesses, but did not include A 1 Brake and Tire Company as an insured; and later (after the losses herein), issued a renewal bond including A 1 as an insured (both in behalf of defendant Indemnity Company, and on its forms). Defendant offered no evidence denying Robinson’s agency, and requested no issues on the question.

Agency is a question of fact. Overland Sales Co. v. American Indem. Co., CCA (n. w. h.) 256 S.W. 980. Agency and the extent of an agent’s authority may be shown by circumstantial evidence. Nat. Guaranty Fire Ins. Co. v. King, CCA W/E Ref., 24 S.W.2d 501; Standard Fire Ins. Co. v. Buckingham, CCA (n. w. h.) 211 S.W. 531. The Buckingham case holds: “The fact that a fire insurance agent has the policies of an insurance company signed by its officials, to become effective when countersigned by an agent, is sufficient evidence of agency for such company.” See also: 3 C. J.S. Agency § 317, p. 259; 3 Am.Jur.2d, Secs. 350-355, p. 707-714; United Brotherhood of Carpenters, etc. v. Humphreys, 203 Va. 781, 127 S.E.2d 98, 102, cer. den., 371 U.S. 954, 83 S.Ct. 509, 9 L.Ed.2d 501; Yarborough v. Fulton, CCA, W/E Dis., 78 S.W.2d 247.

Plaintiff Boyle testified that Robinson assured him that A 1 Company would be fully insured, including fidelity bond coverage from the time it opened for business; that such coverage was ordered by Boyle, and Robinson specifically agreed to write the same, and that Robinson even instructed Boyle in the procedure to be used under fidelity bond coverage in transferring employees from Boyle General Tire Company to A 1 Company.

We think the record ample to sustain the jury’s finding as to Robinson’s agency for defendant, and misrepresentations.

Defendant’s 2nd contention is that plaintiff failed to prove necessary requisites for reformation of the policy. Plaintiff plead mistake on the part of Boyle, and misrepresentation on the part of Robinson. Where there has been a mistake of one party, accompanied by fraud or misrepresentation of the other party, the instrument may be made to conform to the agreement entered into according to the intention of the parties. Long Bell Lumber Co. v. Lowry, CCA, (n. w. h.) 31 S.W.2d 345; Conn v. Hagan, 93 Tex. 334, 55 S.W. 323; Aetna Ins. Co. v. Brannon, 99 Tex. 391, 89 S.W. 1057, 2 L.R.A.,N.S., 548; Cranfill-Reynolds v. Security Ins. Co., Com.App., 67 S.W.2d 258; Automobile Ins. Co. v. United Elec. Serv. Co., CCA, n. r. e., 275 S.W.2d 833.

Defendant’s 3rd contention is that plaintiff is barred by the Statute of Limitation and by Laches. The record reflects and the jury found that plaintiff first knew or should have known of the thefts in November, 1960; and that plaintiff first discovered or should have discovered that the policy did not name A 1 as a named insured in October, 1962. Limitation does not commence to run under the facts at bar until damage based on the misrepresentations is or reasonably should have been discovered. The instant suit was filed on October 6, 1961, and all ultimate issues and parties were joined by amended pleadings; on November 5, 1962. The cause is not barred by Limitation or Laches.

Defendant’s 4th contention complains that the Trial Court erred in admitting into evidence an offer of settlement. The matter was brought out by counsel for plaintiff after counsel for defendant, by his interrogation of plaintiff, invited same. In any event, the matter is at most harmless error.

Defendant’s final contention is that the Trial Court erred in admitting into evidence the confessions of Hammit and Bridges, whereby they admitted to the embezzlement of $5600. and $3750. respectively. The Indemnity Company, Robinson, Hammit and Bridges were all defendants in the case. Plaintiff offered the confessions in evidence and counsel for all defendants objected that such were not admissible with respect to Fireman’s Fund and Robinson. Counsel for plaintiff urged that the confessions were admissible against Hammit and Bridges. The court overruled the objection; and counsel for defendants asked to take the witness Boyle on voir dire, whom he interrogated at length with reference to the making of the confessions by Hammit and Bridges. At the conclusion of his examination, counsel for defendants stated to the court: “I asked for the voir dire going to the admissibility of this. I think probably you should go ahead and let it go to the jury and with an instruction to disregard it if they find.” While the Trial Court should have instructed the jury that the confessions were admissible as to the defendants Hammit and Bridges only, under the record before us we think defendants waived the error, if any, and in any .event same is harmless.

All of defendants’ points and contentions have been considered and are overruled. The judgment of the Trial Court is affirmed.


author: WILSON, Justice.

text:
    FEDERAL BUILDING & SALES COMPANY and C. S. Winstead, Appellants, v. COMMERCIAL STANDARD INSURANCE COMPANY, Appellee.
    No. 4238.
    Court of Civil Appeals of Texas. Waco.
    July 30, 1964.
    Rehearing Denied Aug. 27, 1964.
    Dunnam & Dunnam, Waco, for appellants.
    Naman, Howell, Smith & Chase, Waco, for appellee.
   WILSON, Justice.

Judgment non obstante veredicto was rendered for the insurer in the suit against it on a Texas Standard fire insurance policy brought by Federal Building & Sales Company, the named insured, and by Winstead, Federal’s vendee. The only questions presented relate to claimed waiver and estop-pel, and the failure of the jury to answer an issue concerning asserted, agency. We affirm.

The policy insured a dwelling ■owned by Federal for a five year term. Federal conveyed the insured property to Winstead during the fourth year of that term. Four months later it was destroyed by fire. Winstead was never substituted or named as an insured in the policy, which •contained a pleaded provision that the company should not be liable for “loss occurring after change of ownership.”

To avoid the consequences of these facts .appellants pleaded that after the fire the insurer, “with full knowledge of the sale .and transfer of ownership of the insured property” to Winstead, notified Federal, the named insured, that the policy would be •cancelled. It was alleged and is here urged that this was an unequivocal act by which the insurer recognized continuance and validity of the policy to that time, and which “was wholly inconsistent with any forfeiture or cancellation of the policy” prior to the cancellation date named in the ■notice; that the insurer was thereby estop-ped and waived the right to cancel. Appellants also alleged and now contend that retention by appellee of the unearned premium after notice of cancellation constituted a waiver and estoppel.

The jury answered issues to the effect "that the notice of cancellation and retention of premiums were “wholly inconsistent with cancellation or voiding” of the policy. The court rendered judgment for appellee ■notwithstanding these findings, and overruled appellants’ motion for judgment on the verdict. These are the actions challenged.

The points do not present error because (1) Winstead never became an insured under the policy; Federal no longer had a night to recover thereunder after alienation of title to the insured dwelling. (2) Whether the policy was cancelled after the loss occurred and the rights of the parties were fixed, or whether appellee then had a right to cancel, was immaterial. (3) Conduct of appellee occurring after the loss does not constitute a basis of estoppel. (4) Notice of cancellation is not inconsistent with a claim a condition had been breached. (5) There is no evidence that appellee had any knowledge of change of ownership until after the loss. (6) Retention of the unearned premium after the loss and after notice of cancellation is not a basis for waiver or estoppel because, if for no other reason, the insurance contract required the cancellation notice to state that the “pro rata unearned paid premium, if not tendered, will be refunded on demand.” The notice so stated. There is no evidence of demand to the time of institution of suit. No such provision existed in the decisions relied on by appellant. The points are overruled. Fire Ass’n. of Philadelphia v. Flournoy, 84 Tex. 632, 19 S.W. 793, 31 Am.St.Rep. 89; Winfrey v. Girard Fire & Marine Ins. Co., 120 Tex. 436, 38 S.W.2d 1099, 1101; British General Ins. Co. v. Ripy, 130 Tex. 101, 106 S.W.2d 1047, 1049, 1050; Austin Fire Ins. Co. v. Polemanakos, Tex.Com.App., 207 S.W. 922, 925; Hartford Acc. & Ind. Co. v. Swilley, (C.A.5, Tex.) 304 F.2d 213, 216; Couch on Insurance 2d ed., 37:1046 et seq.

It is said the judgment was unauthorized because the jury failed to answer a submitted issue inquiring whether “R. S. Mitchell doing business as Southern Insurance Agency was the apparent agent” of appellee. We assume appellant regards this issue as constituting a means of imputing Mitchell’s knowledge to appellee. Mitchell was certainly not in fact the agent of appellee under the undisputed evidence. There is no suggestion appellee did anything whatever to create an appearance that he was its agent, or that it knew anything of his conduct relied upon to show “apparent agency.” A. A. Williams, president of Federal, the named insured, was a partner and part owner of Southern Insurance Agency with R. S. Mitchell at the time the policy was issued. Mitchell was unable to write the policy in any of the companies which Southern Insurance Agency represented as agent. He then acted as broker in obtaining issuance of the policy through another agency which did represent appellee as agent. The latter agency signed the policy and delivered it to Mitchell who then pasted the label of Southern Insurance Agency on the front of the policy. There is no suggestion that appellee knew of this action. Winstead (who shared offices with Williams and Mitchell) never saw the policy until after the fire. The contention is without merit. Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422, 427; Chapapas v. Delhi-Taylor Oil Corp., Tex.Civ.App., 323 S.W.2d 64, syl. 4, writ ref. n. r. e.

Affirmed.


author: SHARPE, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. A. J. MATEJEK, Appellee.
    No. 70.
    Court of Civil Appeals of Texas. Corpus Cliristi.
    Aug. 27, 1964.
    Rehearing Denied Sept. 24, 1964.
    Ben L. Reynolds, of Royston, Rayzor & Cook, Houston, for appellant.
    George B. Huckeba and C. B. Stanley, Houston, for appellee.
   SHARPE, Justice.

This is a Workmen’s Compensation case in which the sole issue is whether appellee established good cause for failure to file a claim for compensation within six months from the date of his injury. Canadian Gulf Line was the employer, A. J. Matejek, ap-pellee, the employee, and Texas Employer’s Insurance Association, appellant, the insurance carrier.

In the trial court appellee recovered judgment, based upon a jury verdict, for $11,-956.00, representing 366 %th weekly installments of $35.00 each, beginning October 9, 1961, redeemable by lump sum payment in said amount.

The jury found, among other things, that appellee sustained an accidental injury in the course of his employment on or about January 31, 1961; that such injury was a producing cause of total incapacity which began on October 1, 1961; that such total incapacity was permanent; and that the continued employment of A. J. Matejek at the same wages received by him before such injury constituted good cause for his failure to file a claim for compensation with the Industrial Accident Board before October 3, 1961. A correct definition of “good cause” was submitted along with the last-mentioned issue.

The evidence on the issue of “good cause” hereinafter set out, is taken from the testimony of appellee and will be considered in the light most favorable to his case. Ap-pellee suffered an injury while employed at the Port of Houston, Texas, during the late afternoon of January 31, 1961, when he lifted a 72 pound box from a pickup truck. That same afternoon the employer’s superintendent sent appellee to a doctor who did not examine him but gave appellee some pain pills and instructed him to return the next morning. The following morning the employer’s superintendent, recommended to appellee that he go to see Dr. Platt, an osteopath. That same day Dr. Platt treated appellee and sent him back to work. Thereafter, appellee was treated by Dr. Platt for a period of eight months, at first every day, then three days a week, and then on two days a week. Appellee continued to work for the same employer without losing any time until he quit on the last day of September 1961. Appellee, during such eight month period of time, was unable to do the work which he had performed prior to his injury. He could not drive or sit in a truck. He could do only the lighter part of a mechanic’s work which was his line of work before and after the injury. Another employee actually did the work under appellee’s supervision after the accident of January 31, 1961. Hans Muller, the employer’s superintendent, knew appellee was not doing his job right. At one time, Muller said he would recommend appellee to another doctor. On the day appellee quit work the superintendent complained to him about the condition of the towmotor machines and appellee quit work because he could not perform the same satisfactorily. Dr. Platt told appellee that his back would never get well, but that appellee could stay on the kind of work he was doing. The condition of appellee’s back remained substantially the same all during the period of time he worked after the accident, and up to the time he quit work appellee did not expect his back to get any better.

The single reason relied upon by appellee for not filing his claim at an earlier date was that he had been continued in the same employment by his employer at the same wages earned prior to his injury.

In the light of the record herein the question for decision is as follows: Does the continued employment by the same employer of the employee at the same wages as were paid prior to the injury constitute good cause for the failure to timely file a claim for compensation when it appears that the employee is at all times after the accident fully aware that he is seriously injured?

We hold that under such circumstances, as a matter of law, good cause is not established. It is our opinion that reasonable minds could not differ on the proposition that appellee knew that he had suffered incapacity and that he had a claim for compensation which should have been filed within six months from the date of injury, as provided by Sec. 4a, Article 8307, Vernon’s Ann.Tex.St. The evidence conclusively establishes that appellee suffered incapacity from the date of the accident and prior to October 1, 1961, the date found by the jury on which appellee’s total incapacity began. Appellee, therefore, did not act as a reasonably prudent man would have acted in protecting his said claim. The trial court should have granted appellant’s motions for instructed verdict, and, in any event, its motion for judgment non obstante veredicto. Indemnity Insurance Co. of North America v. Williams, 129 Tex. 51, 99 S.W.2d 905 (1937); Consolidated Casualty Insurance Co. v. Perkins, 154 Tex. 424, 279 S.W.2d 299 (1955); Young v. Safety Casualty Co., 168 S.W.2d 884 (Tex.Civ.App.1943, writ refused); Texas Fire & Casualty Underwriters v. Searl, 158 S.W.2d 865 (Tex.Civ.App.1942, writ refused); Sandage v. Traders & General Insurance Co., 140 S.W.2d 871 (Tex.Civ.App.1940, writ refused). See also Derr v. Argonaut Underwriters Insurance Company, 339 S.W.2d 718 (Tex.Civ.App.1960, wr. ref. n. r. e.); Texas Employers Insurance Association v. Doss, 301 S.W.2d 473 (Tex.Civ.App.1957, wr. ref. n. r. e.); Texas Indemnity Insurance Co. v. Hayes, 106 S.W.2d 760 (Tex.Civ.App.1937, n. w. h.).

In Indemnity Insurance Co. of North America v. Williams, supra, it appeared that the injuries. suffered by the employee to his hand and eye resulted at once, at the time of the accident, on July 17, 1925, in the incapacity for work which was thereafter claimed in the suit; that a few weeks after the accident Williams’ employer gave him new employment at substantially the same wages as he had theretofore been receiving, which new employment involved müch lighter work of a materially different character than that in which he was engaged prior to the accident; and that Williams continued to perform the duties of such new employment, until February 28, 1931, when he was discharged. The trial court incorrectly charged the jury that the period of incapacity in law was to be reckoned from the date of such employee’s discharge or the termination of such employment. In connection with such charge, after referring to Section 12a of Article 8306, V.A.T.S., at page 906 of the opinion of 99 S.W.2d, the court said:

“Nothing can be found in the foregoing provisions to justify the charge given. Even if the jury had" not found, as they did, that the incapacity suffered by Williams was limited to his hand and eye/but had found that he suffered a general injury of some character, from which his incapacity arose, still the fact that he accepted the new employment, and continued to perform the duties thereof until he was discharged, would not even constitute good cause for his failing to file a claim with the board, within 6 months from the date of the injury, much less would such fact have legal effect to postpone the date his incapacity began.”

In Williams it was also held that the judgment was erroneous because it allowed compensation for partial incapacity extending beyond the end of the period of 401 weeks from date of injury. Neither that holding nor the holding that continued employment alone cannot constitute good cause' for the late filing of a claim for compensation, has been questioned in later cases.

Appellee, in support of his position that good cause was shown for the late filing of his claim, relies on the following cases: Jones v. Texas Employer’s Insurance Association, 128 Tex. 437, 99 S.W.2d 903 (1937); Anchor Casualty Co. v. Beeler, 245 S.W.2d 303 (Tcx.Civ.App.1951, wr. ref. n. r. e.); Zurich General Accident & Liability Insurance Co., Ltd. v. Chancey, 166 S.W.2d 966 (Tex.Civ.App.1942, wr. ref. w. m.); Maryland Casualty Co. v. Perkins, 153 S.W.2d 647 (Tex.Civ.App.1941, wr. ref. w. m.); Zurich General Accident and Liability Co., Ltd. v. Lee, 135 S.W. 505 (Tex.Civ.App.1939, n. w. h.); Texas Employers’ Insurance Association v. Fowler, 140 S.W.2d 545 (Tex.Civ.App.1940, writ refused); Fidelity & Casualty Co. of New York v. Ener, 97 S.W.2d 267 (Tex.Civ.App.1936, n. w. h.); and Maryland Casualty Co. v. Jackson, 139 S.W.2d 631 (Tex.Civ.App.1940, wr. dism. J. corr.). Of such cases, Jones is the only Supreme Court decision,, and Fowler is the only Court of Civil Appeals decision with writ of error unquali-fiedly refused.

All of the cases relied upon by appellee can readily be brought within some ground which has been recognized as sufficient tO' show good cause for the late filing of a. claim, with the possible exception of the Jackson case. Such recognized grounds are either a good faith belief that the injuries were trivial and not serious, that the employee was misled by doctors or others as to the seriousness or the cause of his condition, that no actual incapacity was suffered within six months from the injury, or that the insurance carrier -recognized its obligation and made payments to the employee and when same ceased claim was filed promptly thereafter.

In Maryland Casualty Co. v. Jackson, supra, the injury occurred on November 10, 1937. The employee continued the same employment until May 16, 1938, when he was discharged. His claim, dated May 17, 1938, was filed with the Industrial Accident Board on May 20, 1938. It thus appears that about six months and ten days elapsed from the date of injury to the filing of the claim. The court placed reliance on Jones in reaching its decision that good cause existed for the late filing of the claim. Examination of the opinion of the Court of Civil Appeals in Jones shows that good cause was present there because the claimant believed his injuries were not serious, based upon representations of doctors, arid he did not realize the contrary until after the expiration of six months. So understood, Jackson is not in conflict with any of the cases heretofore mentioned. However, if Jackson cannot be reconciled on such basis, then, to the extent that it may appear to be in conflict with Williams and cases following the rule therein announced, we disagree with Jackson and place reliance upon Williams, and the other cases cited hereinbefore in support of our basic holding that good cause was not established in this case for the late filing of appellee’s clairii for compensation.

The failure of appellee to file his claim for compensation within six months from the date of his injury under the circumstances of this case precludes him from recovery.

The judgment of the trial court is reversed and here rendered iri favor of appellant. " ' '


author: RENFRO, Justice.

text:
    Fred SALMON, Appellant, v. Raymond SALMON et al., Appellees.
    No. 16547.
    Court of Civil Appeals of Texas. Fort Worth.
    June 5, 1964.
    Suggestion of Remittitur on Motion for Rehearing July 10, 1964.
    Supplemental Opinion July 17, 1964.
    Rehearing Denied Sept. 18, 1964.

      Paul Donald and T. B. Coffield, Bowie, and Ernest May, Fort Worth, for appellant.
    Earl Fitts, Nocona, Fillmore, Schaeffer & Fillmore, and Roy Schaeffer, Wichita Falls, for appellees.
   RENFRO, Justice.

On February 19, 1960, Maria Hoben, widow with no children, died testate, leaving her estate to four brothers. Her three sisters were not included in the will. One of the brothers predeceased Mrs. Hoben, leaving two daughters. One of the sisters applied for letters of administration. TheW-ill was offered for probate by Raymond Salmon, one of the brothers. The two causes were consolidated. The sister, Thelma Howard, claimed a family settle7 ment was agreed upon after the death of Mrs. Hoben to supersede the will. Raymond Salmon was the only legatee to dispute the agreement. Trial to a jury resulted in a verdict and judgment for probation of the will. This court affirmed. Howard v. Salmon, Tex.Civ.App., 359 S.W.2d 120. Judgment was reversed and remanded to the trial court by the Supreme Court. Howard v. Salmon, Tex., 359 S.W.2d 882. In the second trial Raymond Salmon again was successful, the contestants did not appeal. The will was probated and Raymond Salmon and Wilburn Salmon qualified as executors. Raymond Salmon employed attorneys to contest the claimed agreement to supersede the will, and to probate the will prior to April 23, 1960. After termination of the litigation, Raymond Salmon, as executor, filed an application for payment of attorney’s fees by the estate. The claim was approved. Fred Salmon, one of the legatees, appealed to the District Court.

In a jury trial attorney’s fee of $19,200 was allowed. Fred Salmon appealed to this court.

Appellant’s points of error are based on (1) denial of judgment non obstante; (2) no finding of benefit to the estate; (3) admission of testimony that $25,000 was the contingent fee; (4) no evidence competent to the verdict; and (5) insufficient evidence.

Appellant apparently does not consider the prior litigation a will contest for he states in his brief, “The issue between Raymond Salmon and his sisters was simply whether he had agreed with them and his co-legatees that the will should be withheld from probate.”

The Supreme Court in Howard v. Salmon, Tex., 359 S.W.2d 882, stated: “Mrs. Maria Hoben, a widow, died in February, 1960, leaving a will written and signed by her in 1946. The will was offered for probate in the County Court of Montague County by respondent, Raymond Salmon, sometimes known as ‘Boss’ Salmon, a half-brother of Mrs. Hoben. A contest was filed by Thelma Howard and Helen S. Henley, petitioners, half-sisters of Mrs. Hoben. The will was admitted to probate by the County Court, and the contestants appealed to the District Court where the issues made by the pleadings were tried to a jury. * * Probate of the will was contested on the ground that respondent had made the agreement described above, that he had renounced the will, and that he had waived all rights under the will.” In disposing of the present controversy the prior litigation will be regarded as a will contest.

Article 243, V.A.T.S. Probate Code, provides: “When any person designated as executor in a will, or as administrator with the will annexed, defends it or prosecutes any proceeding in good faith, and with just cause, for the purpose of having the will admitted to probate, whether successful or not, he shall be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney’s fees, in such proceedings.”

The will of Mrs. Hoben provided: “It is my desire my four brothers shall have full power & authority to probate my will, pay my debts, to wind up my estate.”

It was held in Pendleton v. Hare, Tex., Com.App., 231 S.W. 334, that where the executor has acted in good faith in employing an attorney in proceedings to probate the will, and the will is established, the estate is chargeable with the expense of reasonable attorney’s fees thus necessarily incurred.

In Lang v. Shell Petroleum Corp., 138 Tex. 399, 159 S.W.2d 478, the Supreme Court held: “A reasonable attorney’s fee is classed as an expense of administration, and the independent executor named in a will has a legal right to employ attorneys to represent him in the probate of the will which constituted him such executor. Further, such attorneys, when so employed, have a legal and valid claim against the estate covered by the will, for the payment of such fees, and the independent executor has the right to pay such claim. Articles 3691 and 3531, R.C.S.1925; Pendleton v. Hare, Tex.Com.App., 231 S.W. 334; Huff v. Huff, 132 Tex. 540, 124 S.W.2d 327.”

The total value of the Hoben estate was in excess of $300,000. Under the alleged family agreement not to probate the will (one sister disclaimed all interest), the named beneficiaries, except Raymond, would have- received approximately $10,000 each less than they did receive under the probated will.. Raymond received under the will about $70,000 more than he would have if he had not successfully probated the will. If the sisters had prevailed in proving the family agreement, one-third of Mrs. Hoben’s estate would have gone to persons not named in her will. Hence, all the named beneficiaries gained in value received by Raymond’s successful contest of the alleged'family agreement.

While two of the sisters not named in the will were the instigators of the proposal to supplant the will with a family agreement, all the named legatees in the will, except Raymond, joined with the two sisters in attempting to keep Raymond from probating the will.

The appellant in this suit, Fred Salmon, though named in the will as an executor, joined his sisters in attempting to prevent the probate of the will. Only Raymond has tried from the beginning to probate the will and thus carry out the desires of his deceased sister as set out in her will.

As aptly stated in Riviere’s Estate, 9 Cal.App. 56, 98 P. 46, “When one executes a will and appoints an executor, there is an implied direction by the testator that such person shall take all steps necessary to carry into effect the intent and object of the testator. The confidence reposed in such executor by the testator would be abused and he would prove recreant to his trust did he not, even in the face of contests, diligently endeavor to establish the will and in all respects to carry out the wishes of the testator.”

Under the above authorities we overrule appellant’s contentions that Raymond was personally responsible for the attorney’s fees and that there was no benefit to the estate.

The statute allows “reasonable” attorney’s fees, whether the executor is successful or not in prosecuting or defending the probate of a will.

The jury found, a reasonable attorney’s fee for legal services rendered by the attorneys in connection with having Mrs. Hoben’s will admitted to probate to be $19,200. .

Appellant does not contend the verdict is excessive for the services rendered but contends there is no evidence or insufficient evidence to support the amount found by the jury.

An attorney introduced by appellant testified, in response to hypothetical questions, that a reasonable fee would be from $4,000 to $6,000. An attorney called by appellees testified a reasonable contingent fee would be $33,333; a reasonable cash fée would be $15,000 to $17,000. Another attorney testified a reasonable fee would be $25,000. In arriving at that amount a “contingent basis” was an element considered by the witness. He testified further that a contingent fee would be a little higher than a reasonable cash fee, how much, he could not say. In other words, according to the witness, a reasonable cash fee would be a little less than $25,000. In our opinion, $19,200 would fall within a reasonable cash fee bracket denoted as “a little less than $25,000” and would therefore be supported by the evidence.

In view of all the evidence in the record concerning the work done by the attorneys, the size of the estate and the evidence of the attorney witnesses concerning reasonable attorney’s fees, we hold the answer of the jury has sufficient support.

The jury was asked to find a reasonable attorney’s fee, not a contingent fee, and, in light of the entire record, admission of testimony that Raymond originally contracted with the attorneys on a contingent fee basis, if error, was not such error as was calculated to cause and probably did cause the rendition of an improper verdict.

Affirmed.

SUGGESTION OF REMITTITUR ON MOTION FOR REHEARING

In preparing our original opinion we misread one of the questions asked of one of the attorney witnesses as to the reasonable value ‘of attorney’s fees rendered.

After testifying that $25,000 was a reasonable attorney’s fee based upon the services rendered by the attorneys, he was asked on cross-examination: “Q Lee, you are just giving your best estimate, aren’t you? A That is absolutely my opinion as to what a fair fee would be. Q Now, you predicated this on a contingent basis, didn’t you ? A That was certainly an element in it. Q Would the fee be twice as high on a contingent basis as it would on a certain basis, or would it be more than twice as high? A I can’t say. It is higher. I can’t say.”

Thus, the only definite figure given by the witness was $25,000 on a contingent basis. He did not say how much a reasonable cash fee would be, nor did he approximate a reasonable fee as we originally construed his testimony to do. So the highest figure before the jury on a reasonable cash fee without considering contingency was the figure $15,000 to $17,000 testified to by one of the other attorney witnesses.

The evidence will not support a fee of $19,200 as found by the jury. The evidence does support a.fee of $17,000 as being a reasonable attorney’s fee.

We suggest the plaintiff file a remittitur of $2,200.

There being no other reversible error in the record, we affirm the judgment subject to plaintiff’s filing a remittitur of $2,200 within 15 days from the date of this opinion. If the remittitur is not filed within that time the judgment will he reversed and the case remanded for a new trial. Rule 440, T.R.C.P.

SUPPLEMENTAL OPINION

Appellees having filed in writing the re-mittitur as suggested in our opinion on motion for rehearing, it is ordered that the judgment, as reduced by the remittitur, be affirmed.