author: CHADICK, Chief Justice.

text:
    SANDS MOTEL, Appellant, v. Paul HARGRAVE, d/b/a Hargrave Plumbing Company, Appellee.
    No. 7398.
    Court of Civil Appeals of Texas. Texarkana.
    June 12, 1962.
    Rehearing Denied July 10, 1962.
    Harkness & Friedman, Texarkana, for appellant.
    Atchley, Russell & Hutchinson, Texar-kana, for appellee.
   CHADICK, Chief Justice.

This is a suit for damages for breach of contract. The judgment of the trial court is affirmed.

The plaintiff, Sands Motel, instituted an action against the defendant, Paul Har-grave, to collect $5,656.00 as damage the motel alleged it suffered by reason of Har-grave’s breach of a contract to furnish and install plumbing and heating equipment according to certain plans and specifications agreed upon by the parties in an annex to the motel. Hargrave’s answer interposed special exceptions, entered a general denial and affirmatively plead performance of the contract in accordance with plans and specifications and the motel architect’s acceptance and approval of the completed undertaking. In the alternative, defendant Har-grave plead defenses of estoppel and waiver.

The trial judge submitted ten special issues to the jury. By answer to the first two issues the jury established that Har-grave did not install certain hot and cold water pipes in a workmanlike manner, but that he performed the contract in accordance with the plans and specifications. In following issues the jury found that the architect was an agent of the motel, but at the completion of the work he did not have full knowledge of all material facts relative to installation of the hot and cold water pipes in controversy, and did not accept the completed work with full knowledge of the manner the pipes were installed. The jury also found that Hargrave advised the motel’s manager of the likelihood of a transference of heat from the hot water pipes to the cold water pipes prior to the time he installed them, and that the motel’s manager stated to Hargrave that the motel would assume the risk of such heat transference, and then found on other issues that this representation was false, that it was made with the intent that Hargrave rely on it, and that it caused Hargrave to act as he did in the completion of the contract.

The plaintiff motel moved for judgment on the verdict and for judgment non ob-stante veredicto, as well as for the court to disregard the jury’s answer to the special issue on performance in accordance with plans, etc., and the issues presenting the theory of estoppel and waiver. The defendant moved in his own behalf for judgment on the jury findings and alternatively for the court to disregard the jury’s verdict on Hargrave's workmanship. Then, also in the alternative, the defendant’s motion plead that if the court was of the opinion the jury’s verdict on the issue of Hargrave’s performance and the issue of Hargrave’s workmanship were in conflict, that judgment be rendered upon the jury’s answers to the estoppel and waiver issues. The court overruled the motel’s motions, failed to indicate any disposition of Hargrave’s, and entered its written judgment which recited all special issues submitted and the jury’s answers thereto, and stated that “ * * * in accordance with the above findings of the jury in response to the special issues submitted to them the court is of the opinion and finds that the defendant is entitled to judgment, * * * ”, and proceeded to adjudge that Sands Motel take nothing by its suit, etc.

Prior to November 20, 1958, the Sands Motel began preparation to add to its motel plant. It employed an architect to draw plans and prepare specifications for the proposed annex. No general or prime contract was made. The construction and installation to be done was divided into several parts and contracts let accordingly. Contract for furnishing and installing the plumbing and heating equipment was let to Hargrave on an independent basis.

The contract between Hargrave and the motel dated November 20, 1958, specified the material Hargrave was to furnish, and referred to the architect’s plans and specifications for the work that he was to do. Printed in the contract form was this language : “I guarantee all materials used in this contract to be first class, and the entire job to be done in a neat and substantial manner.” Additionally, the specifications carried this language:

“CORRECTION OF WORK AFTER FINAL PAYMENT: Neither the final certificate nor payment nor any provision in the contract documents shall relieve the contractor of responsibility for faulty materials or workmanship and he shall remedy any defects due thereto and pay for any damage to other work resulting therefrom, which shall appear within a period of one year from the date of substantial completion. The owner shall give notice of observed defects with reasonable promptness. * * *
“GUARANTEE. In addition to specific warranties on equipment this contractor will be responsible for all material and workmanship under his jurisdiction for a period of one year from date of finished job, and shall, without charge, replace any item that fails and correct any malfunction in equipment for the stated one year period.”

A drawing, the architect’s plumbing layout, was introduced in evidence. This drawing required a six inch inside diameter sewer line, a two inch gas line, a three inch cold water pipe, a two inch hot water pipe, and a two inch hot water circulating pipe to be laid between the outer foundation of the motel building and the property line, a space four feet in width. The specifications required all piping to be pitched so the entire system could be drained, with exterior lines to be buried at least eighteen inches underground. Evidence was offered, which is not disputed, that it was ■customary that the sewer line be first laid at the lowest level in the area in which the several systems were to be located, and its depth from the surface was dictated by drainage into the city sewage system and varied from five to.six feet. A City Ordinance required the gas line be not less than thirty inches distant from other lines and the building foundation. The four systems of pipes were confined by the plans to a cross section space four feet in width and from five to six feet in depth.

Hargrave testified, and there is no contention to the contrary, that he inquired of the architect whether or not the plans and specifications required him to insulate the hot and cold water lines to prevent heat transference, and that he was advised that the specifications did not require lines buried in the ground to be insulated. The testimony doesn’t fix the time, but it is in evidence that a conversation between Har-grave and the motel manager took place after a substantial amount of the work called for by the contract had been performed wherein Hargrave advised the manager that in his opinion installation in accordance with the plans would cause heat to be transferred from the hot to the cold water lines, unless the lines were insulated against it. The manager requested an estimate of the additional cost of insulation, and when he was advised declined to authorize insulation, remarking that, “We will worry about it when the time comes.”

The motel offered testimony that shortly after the newly constructed facilities were put into operation guests began complaining that the cold water taps ran hot water. Investigation by the motel management confirmed the complaint, and Hargrave was called upon to rectify his work to the end that the hot and cold water system be made to function properly, tie refused. An experienced plumber was employed by the motel to locate and correct the malfunction. A trench was opened along one side of the motel in the area the plans locate the pipe systems. A photograph of the open trench exposing two lines of pipes was introduced in evidence. This photograph shows two lines, apparently of the same diameter, lying against and parallel to each other for the greater distance of the open trench, and in one place crossing and lying one on top of the other for a short distance. As photographed, the pipes appear to lie as close together as they could easily be placed. The motel’s plumber testified that one was a hot and the other a cold water pipe line, and that positioning two such pipes as he found them was not considered workmanlike and was contrary to custom and practice in the plumbing trade. He separated the pipes shown in the picture, and since then the hot and cold water systems have functioned properly.

Hargrave controverted the motel’s testimony, saying that the lines shown in the picture, the ones that the motel’s plumber identified as being hot and cold water pipes were both hot water pipes, and that he had installed the cold water pipe approximately eight inches away from either of the hot water pipes.

Hargrave’s further testimony was that the plans so restricted the size of the area allotted to the several systems of pipes that when allowance was made for minimum depth of 18" below surface, a seven inch outside diameter sewer line, and 30 inch separation of the gas line from foundation or other lines, it was impossible to place the cold water line a sufficient distance from the hot water lines to prevent a transference of heat. He pointed out that the plans did not detail the position, distance of separation, or otherwise specify the location of the various pipe systems, but simply required the pipes to be in the designated area. The jury resolved the conflict in the evidence against Hargrave. Though it is only with respect to the installation of the hot and cold water pipe systems that the jury found Hargrave failed to perform in a workmanlike manner.

The appellant has briefed four points of error. The first and second respectively are that the court erred in granting the defendant judgment after the jury found that Har-grave did not install the hot and cold water pipe in a workmanlike manner, and erred in this respect even though the plans and specifications were followed by Hargrave. The other points question the propriety of the court’s refusal to disregard the jury’s answer to the issue of performance in accordance with plans and specifications and to disregard jury answers to the issues submitting the defenses of estoppel and waiver. Disposition of the appeal will be facilitated by first considering the point regarding the court’s refusal to disregard the jury finding of performance in accordance with the plans, etc.

The pleadings and proof raised ultimate issues of fact respecting performance in accordance with plans, as well as, failure to install the hot and cold water pipes in a workmanlike manner. These issues were submitted separately. The evidence narrowed the fact in question to the character of the workmanship, good or bad, as displayed in laying the hot and cold water lines in the area to which they were restricted by the plans. The law applicable to the facts of this case as gathered from scant authority appears to be that when plans are so shaped that the installation specified can not be done in accordance with customary practices in the plumbing trade the parties to the contract agree that the workmanship obligation is modified by the plans and is satisfied if the workmanship is as reasonably consistent with good workmanlike practices as the plans allow. The courts of Texas have not passed directly upon this proposition but such rule is presaged by Our Lady of Victory College and Academy v. Maxwell Steel Company, Tex.Civ.App., 278 S.W.2d 321, n. w. h.; Lucey v. Dedman et al., Tex.Civ.App., 21 S.W.2d 546 at p. 547; and cases cited therein, as well as reason and sound business ethics. See also United States v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166; Building Contracts, 10 Tex.Juris.2d § 18, p. 20; Building and Construction Contracts, 9 Am Juris. § 28, p. 20; 4 Elliott on Contracts, § 3620 p. 802, and the many cases noted in the cited texts. Good workmanship has a relative meaning, depending upon the context in which it is used. 9 Am.Juris. § 10, p. 11. Otherwise parties might be bound to obligations impossible to discharge and which were never intended to be undertaken.

The appellant cites numerous cases, including Lincoln v. Pohly, Tex.Civ.App., 325 S.W .2d 170; Westbrook v. Watts, Tex.Civ.App., 268 S.W.2d 694; Metropolitan Casualty Co. of New York v. Medina Rural High School District No. 5, Tex.Civ.App., 53 S.W.2d 1026; Lonergan v. San Antonio Loan & Trust Co., 101 Tex. 63, 104 S.W. 1061; American Surety Co. of New York v. San Antonio Loan & Trust Co., Tex.Civ.App., 98 S.W. 387; and Bastrop & Austin Bayou Rice Growers’ Ass’n v. Cochran, Tex.Civ.App, 138 S.W. 1188, all of which are instructive but are distinguishable on the facts and on anaylses are not believed to run counter to the rule stated as applicable in this case or decisive of the question presented here.

Assuming the law to be as stated, the ultimate issues made by the pleading and proof was whether the pipe installation in dispute was done in a workmanlike manner, as the standard of good workmanship was limited or restricted by the plans binding the parties. The special issue on performance in accordance with the plans, that the appellant moved the trial court to disregard, submitted this ultimate issue. The issue was worded, “Do you find * * Hargrave performed the contract in accordance with plans and specifications ?” No instruction or definition was given the jury that would limit or modify the scope or effect of the jury’s affirmative answer thereto. It has been previously noted that the plans and specifications obligated Har-grave to do the work in a good and workmanlike manner. The affirmative answer necessarily included a finding that the work was done in a good and workmanlike manner, as that obligation was a part of the plans and specifications. Under the circumstances disclosed by the record there was no error in submitting the issue, it had support in the evidence, and the court properly refused to disregard it.

The conclusion expressed determines this appeal, but the procedural and factual circumstances recited arouse questions that if not put to rest gives the appearance of incompleteness to the opinion and justify additional discussion. The first of these is next discussed.

To avoid the conflict apparent in the jury’s verdict on the two issues so far discussed, the issue of fact as made by the evidence could best have been submitted by an issue similar to the first submitted in this case, that is, by inquiring whether “Paul Hargrave did not install the hot and cold water pipes in controversy in a workmanlike manner”, together with an instruction to the jury that when plans and specifications agreed upon by the parties impose a limitation upon good workmanship, as recognized and practiced in the plumbing trade in Texarkana, the plumber is obligated to perform the work in a manner reasonably consistent with the practices of his craft insofar as the plans and specifications will allow.

Another question is the effect of the conflict in the jury’s verdict on the two issues as submitted. The appellant did not assign error in this respect in his motion for new trial, nor has it been briefed. Regardless of doubt which may have heretofore existed regarding conflicts in the jury’s verdict on special issues as constituting fundamental error of which this court must take notice, the question is now settled. In McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, the Supreme Court says there is now no difference between rules governing Courts of Civil Appeals and those governing the Supreme Court regarding consideration of unassigned error, since repeal of Art. 1837 Vernon’s Ann.Tex.Civ.St. In the recent case of St. Paul Fire & Marine Insurance Company v. J. T. Murphree, Tex, 357 S.W.2d 744, 5 Tex.Sup.Ct.Journal 376, the Supreme Court refused to treat a conflict in the jury’s verdict on special issues as fundamental error, and held that failure to assign the conflict as error in a motion for new trial waived any complaint and precluded a consideration of it on appeal. Any question of conflict has been waived in the instant case.

Though such questions are not reached and the opinion will not be extended for a discussion, this court is of the opinion that the evidence does not support the jury verdict on the estoppel and waiver issues.

The judgment of the trial court must be affirmed.

       See 4 (McDonald) Texas Civil Practice, § 18.05 p. 1433-1434.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    James G. MARSHALL, Appellant, v. Tom N. HUTCHINSON, Appellee.
    No. 7156.
    Court of Civil Appeals of Texas. Amarillo.
    May 28, 1962.
    Campbell, Brock, Wright & Waters, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, for appellee.
   NORTHCUTT, Justice.

Tom N. Hutchinson, appellee, brought this action for reformation of a deed against James G. Marshall, appellant, and to recover an undivided one-half interest in and to a tract of land, 200 x 250 feet, lying and situated within the corporated limits of the City of Lubbock, Texas, and to partition the said tract. The case was tried before the court without a jury, and the trial court rendered judgment against the appellant reforming the General Warranty Deed from appellee to appellant so as to permit recovery of the undivided one-half interest of the tract of land by the appellee. The trial court further entered its order finding the property susceptible of partition in kind and appointing commissioners to partition said tract. From this judgment the appellant has perfected this appeal. For convenience Mr. Marshall will hereafter be referred to as appellant and Mr. Hutchinson as appel-lee.

On October 6, 1953, Standard Building Company sold the land here in question to Tom N. Hutchinson for the consideration of $4000.00. The $4000.00 consideration was evidence by Hutchinson executing his vendor’s lien note payable to the said Standard Building Company. On October 21, 1954, Hutchinson deeded the same property to James G. Marshall for the consideration that Marshall would pay one-half of the $4000.00 payable to Standard Building Company. Hutchinson contends that the deed to Marshall should have covered only an undivided one-half of the property instead of all of it, but that by mutual mistake the deed was drawn covering all the property. This suit was originally filed by this appellee on August 6, 1960 for the reformation of the deed dated October 21, 1954 from Hutchinson to Marshall. Appellant’s sole contention here is that the appellee’s cause of action is barred by the four year Statute of Limitations.

After the court entered its judgment, the appellant requested the court to state in writing and to file such findings of fact and conclusions of law. The trial court complied with such request and found as a fact that prior to October 21, 1954, the appellant proposed to the appellee that appellee sell to appellant an undivided one-half interest in the tract of land here involved for the consideration that appellant would assume one-half of the $4000.00 vendor’s lien note; that the market value of the land on October 21, 1954 was substantially in excess of $4000.00; that appellant and appellee were close personal friends prior to October 21, 1954 and visited in each others homes and were closely associated together personally and in business affairs to such extent that appellee relied, and in the exercise of ordinary care, could and should have relied upon statements and representations of appellant; that on October 21, 1954 appellee agreed to convey to appellant an undivided one-half interest in the property here involved; that appellee and appellant, jointly, approached Mrs. Dayton and requested her to prepare a general warranty deed to convey an undivided one-half interest in the property to appellant as they had agreed; that Mrs. Dayton made a mistake, and in copying the description from a prior deed inadvertently and by mistake described the entire tract of land instead of an undivided one-half interest in and to said tract of land as she was requested to do; that Mrs. Dayton was not an employee of ap-pellee, and the deed was not prepared by Mr. Howard (an attorney for whom Mrs. Dayton was working) and neither did he read it. The court made many other findings showing mutual mistake and as to why appellee acted in good faith and was not negligent in discovering the error before April 28, 1959, and as to the acts of appellant.

It is stated in 28 Tex.Jur., page 166 as follows:

“As in the case of fraud, it is the established rule that, when there has been mutual mistake, limitation begins to run against the injured party from the time the mistake is discovered or could have been discovered by the exercise of reasonable diligence.”

See the many cases there cited.

We are unable, from this record, to believe that appellant even contends that he ever actually purchased more than one-half of the property here involved; but seeks to hold all of the land because it was deeded to him and the suit was not filed to correct the mistake until more than four years after the date of the deed. The trial judge further found that appellee was not guilty of any negligence or failure to exercise ordinary prudence in failing to discover the mistake and error in said deed dated October 21, 1954, executed by him to appellant from the date of the execution thereof up to and including April 28, 1959. This present suit was filed August 6, 1960, approximately fifteen months after discovering the mistake. The trial court held in the conclusion of law that the Statute of Limitations did not begin to run until April 28, 1959. We are unable to see, under this record, how the trial court could have found and held other than it did. Appellant, after knowing the deed transferred all of the property, acted in such manner towards the appellee as though the deed properly described only one-half of the property as they had agreed.

It is stated in 25 Tex.Jur. (2d series) at page 666, Section 35, as follows:

“If a man conceals a fact that is material to the transaction, knowing that the other party acts on the presumption that no such fact exists, it is as much a fraud as if the existence of the fact were expressly denied or the reverse of it expressly stated. Concealment, in such a case, is the equivalent of an indirect representation that the fact does not exist; it differs from a direct false statement only in the mode in which it is made.”

It is well established in this state that the Statute of Limitations does not begin to run against a suit to reform a deed for mutual mistake until the mistake has been discovered or could have been discovered by the exercise of reasonable diligence. Clopton v. Cecil, Tex.Civ.App., 234 S.W.2d 251, Writ Ref. N.R.E.; Alvis et ux. v. McDonald et al., Tex.Civ.App., 282 S.W.2d 425, Writ Ref. N.R.E.; Hutchins et al. v. Birdsong, Tex.Civ.App., 258 S.W.2d 218. Judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    MARYLAND CASUALTY COMPANY, Appellant, v. Jerrie Dell JONES, Appellee.
    No. 13964.
    Court of Civil Appeals of Texas. Houston.
    June 7, 1962.

      Delcourt & Hoppas, Paul E. Delcourt, Jr., Houston, for appellant.
    Bryan & Patton, E. H. Patton, Jr., Houston, for appellee.
   WERLEIN, Justice.

Appellant, as subrogee of its insured, Mrs. W. W. Stanfield, sued appellee, Jerrie Dell Jones, to recover damages to the insured’s automobile caused by the negligence of appellee. The jury in answer to special issues found appellee guilty of negligence and found the value of the automobile to be $1195.00 immediately before the collision and $200.00 immediately afterward. Appellant’s motion for judgment in the sum of $903.50, the amount prayed for in its petition, was denied, and the court rendered judgment on September 28, 1961, for ap-pellee non obstante veredicto. Appellant’s motion for new trial, which was timely filed, was overruled on October 30, 1961.

Appellant assigns error on the part of the court in overruling its motion for judgment because it was entitled to judgment upon the pleadings, evidence, law and verdict of the jury. We think this assignment of error, which is also contairted in appellant’s motion for new trial, although general, should be considered by this Court in view of the jury verdict in favor of appellant and the court’s action in overruling the motion to enter judgment thereon. Appellant, under Rule 324, Texas Rules of Civil Procedure, was not required to file a motion for new trial in this case. Since, however, it did file such motion, its time for filing the transcript and perfecting its appeal began to run from the time the motion for new trial was overruled. Park v. Essa Texas Corporation, 1958, 158 Tex. 269, 311 S.W.2d 228.

In Neely v. Tarrant County, 132 Tex. 357, 124 S.W.2d 101, 103, the appellee contended that the motions for new trial could not be considered because insufficient to point out any error committed by the trial court. The court, however, refused to sustain such contention and held that although tlie motions, because of their generality, were insufficient to serve as assignments of error, they nevertheless were motions for new trial and were so designated and were so treated by the trial court in overruling them.

In the instant case appellee contends that we cannot consider the more specific assignments of error in appellant’s brief because not contained in its motion for new trial. Rule 323, T.R.C.P., relied upon by appellee, is expressly limited to cases tried by a judge without a jury, and is inapplicable to this case in which there was a jury and jury verdict. It is our view that in a case such as this where the court has overruled a motion to enter judgment on the jury verdict and the appellant is not required to file a motion for new trial, he may incorporate in his brief assignments not included in the motion for new trial or related thereto as an appellant could do in non-jury cases prior to the adoption of Rule 323, T.R.C.P. Neely v. Tarrant County, Tex.Com.App., 132 Tex. 357, 124 S.W.2d 101, 104; State v. Clement, Tex.Civ.App., 252 S.W.2d 587; Hastings, Central Sur. Ins. Co., Intervenors v. Texas & Pacific Railway Company, Tex.Civ.App., 313 S.W.2d 344. If we are mistaken in this last conclusion, we nevertheless hold that the error of the court in overruling the motion to enter judgment on the verdict of the jury in this case may be considered under the general assignment contained in both the brief and motion for new trial.

In appellant’s more specific assignments of error in its brief, which constitute in effect only alleged reasons why the trial court did not enter judgment, complaint is made that the court erred in holding that appellant did not adequately prove it was subrogated to the right of its insured because it did not introduce in evidence its policy of insurance. Appellee contends that should this Court hold that there is some evidence of a right of subrogation and some evidence to raise a fact issue as to the amount of damages, any finding thereon would be against the great weight and preponderance of the evidence. We do not agree with this contention.

Appellant alleged that it paid the insured $1100.00 which represented the market value of the car less $100.00 deductible, to replace the car which was destroyed; that thereafter appellant was able to recover $193.50 salvage which reduced its loss to $906.50, for which it prayed judgment. In its prayer it asked for $903.50. The difference in the figures was probably due to inadvertence. The evidence shows that the car was damaged beyond repair; that the insured received payment from appellant for the repairs to the automobile; that the amount received from appellant was $1180.00, according to Stanfield’s recollection. Mr. Stanfield was then asked, “Now this money you received represented the consideration for repairs to the automobile?” He answered, “That was for total damage, total loss.”

The testimony with reference to the damage and loss, payment and receipt of money, was directly referable to the insured automobile. No other damage or loss was pled or at any time inquired about or testified to. We think this evidence is sufficient to show that the amount paid by appellant was for the destruction of the car and nothing else. On the jury verdict, which was amply supported by the evidence, appellant was entitled to recover $995.00 except for the fact that it limited its recovery to $903.50 by asking in its prayer for only that amount.

In its pleading appellant alleged that it became subrogated to the rights of the insured. The record shows that Mr. Stan-field was shown what was called a “Sworn Statement in Proof of Loss,” which he identified. He testified it was executed by his wife in his presence. Appellant then introduced such instrument in evidence as its Exhibit No. 6 for the limited purpose of showing the subrogation agreement contained therein, and it was so received in evidence. Thereafter appellant’s attorney read to the jury the subrogation clause, which is as follows:

“The Insured hereby covenants that no release has been or will be given to or settlement or compromise made with any third party who may be liable in damages to the Insured and the Insured in consideration of the payment made under this policy hereby subrogates the said Company to all rights and causes of action the said Insured has against any person, persons, or corporation whomsoever for damage arising out of or incident to said loss or damage to said property and authorizes said Company to sue in the name of the Insured but at the cost of the Company any such third party, pledging full cooperation in such action.”

Following this, counsel for appellee asked, “Now, Your Honor, do I understand that’s the only part of the instrument that is being offered?” to which appellant’s counsel volunteered, “Right.”

Mr. Stanfield then testified that he subsequently received payment from appellant and cashed the draft.

As we view the proceedings, the exhibit was introduced for the limited purpose of showing the subrogation agreement and not merely the subrogation clause. We think appellant’s counsel in volunteering “Right” really intended to state that the subrogation clause was all he cared to read to the jury. The exhibit had already been introduced in evidence to show the subrogation agree-merit. Such agreement named the parties, described the subject matter, showed the value of the car at the time of loss, and constituted a subrogation agreement which had the effect of assigning to appellant Stanfield’s cause of action. We think it was unnecessary to do more. Other evidence showed that appellant had paid the amount of damages to the car and that the same had been received by Mr. Stan-field. The subrogation agreement specifically subrogates appellant to all rights and causes of action of the insured against any person, persons or corporations for damage arising out of or incident to the loss and damage to property. It, therefore, gave appellant the right to sue for and recover from appellee the amount that the insured might have recovered from appellee for destruction of his car, had the suit been brought in the name of the insured.

We think appellee’s contention that it was necessary for appellant, in order to make out its case, to introduce in evidence the insurance policy which it had issued to the insured, is without merit. Appellee largely relies on cases in which no subrogation agreement was proven, or cases such as Aetna Insurance Company v. Klein, Tex.Sup.1959, 160 Tex. 61, 325 S.W.2d 376, which hold in effect that it is necessary for a policyholder suing on a policy to introduce it in evidence.

In the instant case appellant is not suing on the insurance policy. The policy is a matter strictly between it and its insured. It is suing for subrogation under a sworn subrogation instrument executed by the insured. The insured could have assigned such right of subrogation or assigned the chose in action in question to appellant even if appellant had not issued the insurance policy. The introduction in evidence of the subrogation instrument for the purpose of showing subrogation is a complete answer to appellee’s contention that without introduction of the policy appellant was a mere volunteer and had no right to maintain the present cause of action.

We have examined the record and have concluded that the trial court erred in overruling appellant’s motion to enter judgment on the verdict of the jury for the amount of $903.50 sued for.

Judgment reversed and rendered.


text:
    J. Paul NEWMAN et ux., Appellants, v. STATE of Texas, Appellee.
    No. 7155.
    Court of Civil Appeals of Texas. Amarillo.
    May 28, 1962.

      Nelson, McCleskey & Harriger, Lubbock, for appellants.
    McWhorter, Cobb, Johnson & Cobb, Fred O. Senter, Jr., Lubbock, for appellee.
   NORTHCUTT, Justice.

We adopt appellants’ statement as to the matters here involved. “This suit was instituted by the State, in conjunction with the County of Lubbock and City of Lubbock, for the purpose of condemning a portion of the Newmans property for right-of-way for a free way route being constructed around the outer perimeter of the city limits of Lubbock, Texas. It was stipulated prior to trial that the State had the right to condemn; that the only issue to be tried was the question of damages. Approximately 16.758 acres of the Newmans’ land was taken for the right-of-way in a strip running across the Newmans’ property generally from slightly east of south to the northwest, leaving the Newmans’ property divided with approximately 27.9 acres lying to the south and west of the right of way taken and 90.52 acres lying east and north of the right-of-way taken. The case was tried to a jury, and in response to the customary three special issues regarding damages in condemnation suits, the jury found the fair cash market value of the right-of-way taken to be Thirty Seven Thousand Seven Hundred Five Dollars and 50/100 ($37,705.50) and a total depreciation in the remaining 118.42 acres of Ten Thousand Dollars ($10,000.00), being the difference between Two Hundred Sixty Thousand Four Hundred Forty-Five Dollars ($266,-445.) and Two Hundred Fifty-Six Thousand Four Hundred Forty-Five Dollars ($256,445.) for a total award of Forty Seven Thousand Seven Hundred Five Dollars and 50/100 ($47,705.50). Judgment was entered upon said award on the 7th day of June, 1961, after which the Newmans timely effected their appeal by a motion for a new trial which was automatically overruled in that the court took no action upon same within the time prescribed by the Texas Rules of Civil Procedure. The Newmans’ motion for a new trial is based generally upon the court’s exclusion from the jury of the Newmans’ exhibits No. D-l and No. D-2, which are maps showing the right-of-way taken by the State as such highway relates to the Newmans’ land and other lands adjacent thereto.”

This appeal is based upon two points of error and since both points deal with the access to the appellant’s land we copy the two assignments of error as follows:

FIRST POINT
“The trial court erred in excluding from the jury the Newmans’ exhibits No. D-l and No. D-2 in their original form, and limiting the Newmans to a show of only those lands belonging to the Newmans, for the reason that such ruling deprived the Newmans of the ability to show the extent of the limitation of access between the 27.9 acres of Newmans’ land lying west of the loop road right of way taken to the 90.52 acres of Newmans’ land lying to the east of such right of way, thereby depriving Newmans of a fair verdict regarding the depreciation in the fair cash market value of the remaining tracts of land after the condemnation.
SECOND POINT
“The trial court erred in excluding from the jury the Newmans’ exhibits No. D-l and No. D-2 in their original form, and testimony concerning access to the Newmans’ land from roads not adjacent to the Newmans’ land, for the particular reason that such ruling deprived the Newmans from showing the loss of access to each of the remaining tracts from existing roadways and to and from the populated residential and business centers of Lubbock, Texas, all of which, under the facts in this case, were particular damages to New-mans’ property and admissible for the purpose of explaining a drop in the fair cash market value of the two remaining tracts after the condemnation.”

The case was submitted to the jury according to the suggested issues set out in the case of State v. Carpenter et al., 126 Tex. 604, 89 S.W.2d 194 by the Supreme Court. When the two exhibits in question were offered in evidence the appellees objected to the introduction thereof because the exhibits contained matters not applicable to the Newman land. Stated in another way by showing the exhibits as it affected other lands it would be a depreciation common to the community generally. The appellants have cited as authority for the admitting of the exhibits here in question the case of State of Texas v. Meyers et al., Tex.Civ.App., 292 S.W.2d 933, Writ Ref., N.R.E. We agree with that case but do not think it is in point here. There the photographs offered were showing the land taken and thereby condemned the parties right of access to the main roadway. In the case at bar the appellants were seeking to show as additional damages the lack of access from one tract direct to the other tract and also the lack of access to his property not taken by virtue of the construction on other person’s property. We are of the opinion since there was an exhibit introduced into evidence showing the entire roadway taken across appellant's land and the witnesses testifying as to the value of the land taken and the value of the remaining land before and after the taking that was all that was necessary. Under Article 3265 Texas Civil Statutes, Vernon’s Ann. Civ.St. art. 3265 limits the appellant’s damages to that which he does not sustain in common with the community generally. State v. Carpenter et al., 126 Tex. 604, 89 S.W.2d 194; Wagoner v. City of Arlington, Tex.Civ.App., 345 S.W.2d 759; Strickland et al. v. City of Friona, Tex.Civ.App., 294 S.W.2d 254. We are of the opinion the court did not err in refusing to admit into evidence the exhibits in question showing not only appellant’s land but showing the effect upon all adjoining land, but should we be wrong in holding that the court did not err in refusing to permit the introduction of the exhibits, we think it would be harmless error. Besides the exhibit introduced showing the land taken, there was testimony as to the roads and side roads to be constructed such as to describe the access to the property here involved. We think the jury had before it substantially the same or better evidence as that which was excluded, and considering the record as a whole, we cannot say that such error, if any, caused the rendition of an improper verdict or judgment. Weiler et ux. v. Weiler et al., Tex.Civ.App., 336 S,W.2d 454; Black et ux. v. Dallas Railway & Terminal Co., Tex.Civ.App., 254 S.W.2d 147.

Judgment of the trial court is affirmed.


author: CHAPMAN, Justice.

text:
    J. W. NAGY, Appellant, v. CITY OF AMARILLO and Texas Highway Department, Appellees.
    No. 7149.
    Court of Civil Appeals of Texas. Amarillo.
    May 14, 1962.
    Rehearing Denied June 18, 1962.

      Monning & Monning, Amarillo, for appellant.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, Will Wilson, Atty. Gen., and Morgan Nesbitt, Asst. Atty. Gen., Austin, for appellees.
   CHAPMAN, Justice.

On May 17, 1960 the City of Amarillo filed its petition for Condemnation of lot 3 block 1, in Amarillo Heights, an Addition to the City of Amarillo, to be used in the construction, maintenance, and improvement of an expressway within the City. A drive-in restaurant being located on the lot, the petition alleged * * * “there are certain trade fixtures on the premises * * * listed as Exhibit “A”, attached hereto * * * which are specifically excluded from this condemnation action and which will remain the personal property of defendants, J. W. Nagy and wife, Mary Nagy.”

All emphasis shown herein are ours.

After appointment of Commissioners, and notice to all necessary parties, the Commissioners, on June 2, 1960, made their award in which they specifically excepted the trade fixtures attached as Exhibit “A” to the named petition and referred to in the pleadings as “personal property of defendants.”

On June 29, 1960 the County Court entered its judgment in Condemnation reciting that more than 10 days had elapsed since the award of the Commissioners was filed with the County Judge and that neither plaintiff nor any of the defendants had filed with the County Judge any objections in writing to the award of the Commissioners. In the judgment it was provided the trade fixtures were specifically excepted and that the $13,750.00 in the Registry of the Court should be paid to the Nagys and the other parties owning liens or any interest in the property. Defendants acquiesced in the amount and accepted the money.

Without objecting to the award and without appealing to the County Court appellant filed in the 108th District Court on August 30, 1960 the instant case in which they sought to have some, but not all, of the items enumerated in Exhibit “A” declared a part of the realty. They sued City of Amarillo and the Texas Highway Department in three counts, alleging (1) trespass to try title, (2) asking for a declaratory judgment and (3) seeking an injunction against them from taking the fixtures until they had been condemned. The trial court sustained pleas in bar on the ground that the condemnation case was res judicata of the status of the trade fixtures. It is from that judgment appeal has been perfected.

Condemnors may acquire title only to real property under Art. 3264 et seq., Vernon’s Ann.Civ.St, the Articles under which the Nagy real property was condemned. Sec. 1 of Art. 3264 provides:

“When real estate is desired for public use * * * the party desiring to condemn * * * shall file a statement in writing with the county judge of the county in which the land or a part thereof is situated.”

The Galveston Court of Civil Appeals has held in a condemnation case that it was the duty of the condemnor to identify trade fixtures in a restaurant located on property being condemned. City of Houston v. Priester, Tex.Civ.App., 302 S.W.2d 948 Syl. 4, (N.W.H.). City of Amarillo did this in its Exhibit “A” to its petition, after specifically excluding from condemnation the items to be thereinafter listed, * * * “which will remain the personal property of defendants, J. W. Nagy and wife, Mary Nagy.” Appellants could have objected to the award of the Commissioners wherein they excepted the trade fixtures and could have appealed from the award to the county court and had that tribunal pass upon the status of such items. This was the procedure followed by the condemnee in the Priester case just cited. Thus the question before us actually resolves itself into whether it is the function of the County Court in a condemnation proceeding such as we have to determine if the trade fixtures were personal property or real property, or whether such function is to be determined in a separate proceeding in the District Court.

Our court has held that if a con-demnee is not satisfied with the result in a condemnation proceeding his remedy is by appeal and not by injunction and that he has an adequate remedy at law for the recovery for his damages. Alexander v. Fort Worth & D. S. P. Ry. Co., Tex.Civ.App., 10 S.W.2d 266 (Writ Dismissed).

The Eastland Court of Civil Appeals has held:

“The County Court has jurisdiction to hear and determine all issues involved in the condemnation case and the District Court has no jurisdiction to interfere therewith.” Harrell et al. v. County of La Salle et al., Tex.Civ. App., 348 S.W.2d 853, 854, Syl. 4.

This, of course, would be all those instances that do not contravene constitutional limitations. 22 T.J.2d, Eminent Domain Sec. 2, Page 315 and the cases there cited.

Since the County Court has exclusive statutory jurisdiction in all Eminent Domain matters, once that jurisdiction is invoked the property owner is precluded from pursuing a parallel suit in the District Court in the same subject matter. Missouri-Kansas-Texas R. Co. of Texas v. Jones et al., 24 S.W.2d 366 (Comm.App.); Wilson v. Donna Irr. Dist. No. 1, Tex.Civ.App., 8 S.W.2d 187 (Writ Refused). We see no escape from the fact that the status of the trade fixtures was before the Commissioners in the initial proceedings. They were itemized and the petition for condemnation to which the Exhibit “A” was attached alleged they were excluded as personal property. The Commissioners then specifically excluded them in their findings and no appeal was taken therefrom. That finding then became the judgment of the county court and cannot again be litigated in this proceeding.

We find no fault with the cases cited by appellants but believe their holdings are just not applicable to the facts in this case. Accordingly, the judgment of the trial court is affirmed.


author: BELL, Chief Justice.

text:
    Mrs. Gladys BLAIR, a feme sole, Appellant, v. Edith J. RINDY, Executrix of the Estate of Russell W. Rindy, Deceased, Appellee.
    No. 13809.
    Court of Civil Appeals of Texas. Houston.
    June 7, 1962.
    Rehearing Denied June 28, 1962.
    Sonfield, King, Sonfield & Smith, Robert L. Sonfield, Al L. Crystal, Houston, for appellant.
    Tom Sullivan, Houston, for appellee.
   BELL, Chief Justice.

Edith J. Rindy, the surviving wife of Russell Rindy, deceased, brought suit in her individual capacity and as executrix under the will of Russell Rindy, against Gladys Blair, seeking an accounting for partnership assets that appellant had sold and for certain unpaid profits. She alleged her deceased husband and appellant had been partners in G & B Vending Company prior to her husband’s death. Appellant under oath denied the existence of a partnership and filed a cross-action alleging ownership in certain shares of stock in the Bellaire Investment Corporation which stood in the name of Russell Rindy. Ap-pellee took a non-suit in so far as she sought recovery in her individual capacity and prosecuted the suit in her capacity as executrix.

On trial to the court without a jury the court found the existence of a partnership and rendered judgment in favor of appellee for $10,575.94, together with 6% interest from July 9, 1957, the date being that on which Mr. Rindy died. The court also rendered judgment awarding appellant 240 shares of stock in the Bellaire Investment Corporation subject to the payment of $1250.00 which she admitted owing.

There was no direct proof of the nature of the business relation between Mr. Rindy and his sister, Mrs. Blair. He was deceased and she was of course prevented from testifying to transactions between them because of the dead man’s statute. The court was left to determine whether a partnership existed purely on a basis of circumstantial evidence. Of course partnership may be proven by circumstantial evidence, as may any other fact. Miller v. Laughlin, Tex.Civ.App., 147 S.W. 711, writ ref.

The testimony shows that the latter part of 1953, the concession for dispensing cold drinks, etc., through vending machines located in various Interstate Theatres in Houston, was available as a change was to be made by the theatre owners in operators of the concession. Mr. Rindy, who was manager of the Tower Theatre, contacted a Mr. Mason who was a friend of his and who was connected with Vend-A-Drink, which company had operated the concession. Mr. Rindy wanted to know about the value of the concession because he said his sister, Mrs. Blair, was moving here from California and he wanted to help her get into a business to earn a living since her then income was limited. Mr. Rindy seems to have carried on all negotiations for the purchase of the machines from Vend-A-Drink. It does appear that Mr. Mason, representing a company selling automatic dispensing machines, made an analysis of what would be required to carry on the proposed operation. He addressed the report to Mrs. Blair on November 19, 1953. So far as we are able to find from the record Mrs. Blair never personally entered into the negotiations for the purchase of the machines. Mrs. Blair testified she got the concession through Mr. O’Donnell, the vice-president and general manager of Interstate. Apparently originally the concession was granted orally. Later, in September, 1956, the arrangement was put in writing, the letter making the proposal being addressed to G & B Vending Company, and was approved for the company by Mrs. Blair. The capacity in which she approved it is not shown. At the time Mr. Rindy, in the latter part of 1953, was negotiating for the purchase of the machines there was owing to Heller Company of Chicago on them a balance of $4766.89. Vend-A-Drink agreed with Mr. Rindy to sell the machines for $14,300.00. On December 7, 1953, Rindy borrowed money from the Bellaire State Bank. The minutes of Vend-A-Drink show the vote to sell the machines to Rindy and Blair as partners. We do not regard this recital of partnership competent as evidence of partnership because other evidence shows Rindy told them to make the sale in this manner. There being nothing to show Mrs. Blair knew of it, it was purely hearsay as to her. Rindy told Vend-A-Drink to have Heller Company draw a draft on him at the First State Bank of Bellaire for the balance owing. Mason wired such instructions to Heller Company. Apparently this was done as the chattel mortgage on the machines was released and there is no showing that Vend-A-Drink ever paid the amount or that Mrs. Blair ever paid Heller Company. On December 28, 1953, Mrs. Blair borrowed $14,000.00. She deposited the money in the name of G & B Vending Company. This note was signed by her and Mr. O’Donnell. During December various checks were issued to Vend-A-Drink. Some were signed by Mrs. Blair and some by Mr. Rindy. These checks were for the purchase price of the machines, less what was paid Heller Company, and' inventory. The payments aggregate $10,556.65. Add to this amount the $4,766.89 paid Heller Company and the payments aggregate $15,323.54. The price of the machines was $14,300.00, so that there were payments of more than the $14,000.00 borrowed by Mrs. Blair. Where this came from, unless it is a part of the draft paid Heller Company, is not shown definitely, but such is a reasonable conclusion that the trial court could draw.

The note of G & B Vending Company was payable in monthly installments of $611.10 beginning in February, 1954, with a final installment due January 5, 1956. Payments, as specifically shown by the record to November 10, 1954, indicate a reduction of the principal to $8,318.78. Mrs. Blair testified that the money was repaid out of “proceeds” from G & B Vending ■Company. She did not say from her share of the net profits.

It appears that the company operated out of an office on Missouri Street at first. Later a lease was taken on a place on Rosine Street. The lease was negotiated by Mr. Rindy. He took it in his name d/b/a G & B Vending Company. Mrs. Blair testified she had never seen the lease. We do not deem it of significance that Rindy took the lease in his name because it would be hearsay as to Mrs. Blair. We do, however, deem it of significance that Rindy negotiated the lease and Mrs. Blair by making use of the leased property recognized the exercise by Rindy of authority to exercise a measure of control over the business through handling this important item of business.

Too, Rindy negotiated a service contract for the business for one year with Mr. Mason. The contract was oral. The effect ■of the contract, as we garner from the record, was that the operation was largely carried on by Mason. Here again was an exercise of important control by Rindy which Mrs. Blair recognized through accepting the benefits.

The assumed name record shows Gladys Blair d/b/a G & B Vending Company. Who actually had it thus registered does not appear.

From Mr. Frisk, the accountant for the company, we learn about how it came about that he prepared the company income tax returns on a partnership return. Mr. Frisk, who knew Rindy and who had done accounting and bookkeeping work for Mason, was hired by Rindy. It was about a year after he was hired before he ever saw Mrs. Blair. He testified he got his information from both Mr. Rindy and Mrs. Blair. As to the division of the profits as shown on the partnership returns filed for 1955 and 1957, which are the only ones in the record, it is shown that Mrs. Blair received 70% and Mr. Rindy received 30%. It is also shown that Mrs. Blair gave 100% of her time to the business and Mr. Rindy gave 50% of his time. While returns for 1954 and 1956 are not in the record, Mr. Frisk said they were prepared in the same manner and division was on the same basis. Mr. Frisk testified the arrangement between Mr. Rindy and Mrs. Blair was that “each was to contribute their time and effort to the business and to be compensated on some basis, and the basis was 70-30 per cent. That basis being determined, as presented to me, according to the time spent that they had available to put into the business. All returns were filed on that basis, as I recall, on the amount of time, reflecting the amount they would receive from the business in the way of profit distribution.” While it will be seen this does not expressly state net profits, the partnership returns shown in the record show net profits as determined for income tax purposes. In this connection it is to be noted that before the determination of net profits a deduction was made for depreciation of the company’s property. The result is, or at least it is a reasonable inference that could have been drawn by the trial court, that this resulted in Rindy in effect paying for 30% of the cost of the property. We are not unaware that it could also have been their agreement as to the method of determining net profits. However, when it is considered that if there were no partnership the same could be shown on an individual return of Mrs. Blair less 30% of the profits to Mr. Rindy, the fact of using a partnership return is evidence of intent to form a partnership. The returns also show salaries paid other than to partners. Then Mrs. Blair and Mr. Rindy are listed as partners.

A balance sheet prepared as of July 9, 1957 for G & B Vending Company following Mr. Rindy’s death shows the balance owed the National Bank of Commerce on the note above discussed carried as a liability of the company and this is considered in determining Mr. Rindy’s net worth in the company.

We have reached the conclusion that there is sufficient evidence to support the trial court’s finding of partnership. There is really no substantial dispute in the evidence. The differences between the parties lie in the inferences they seek to draw from the evidence.

We in effect have an agreement that the net profits will be divided on the basis above stated. We think it significant that the percentage of profits provided for did not vary depending on the exact time each should work, but a reasonable inference is that the division was agreed to in advance to cover such time as was worked, though it might vary from time to time. For an interest in the net profits to establish a partnership the interest in the profits must be owned by the parties as principals. If the profits are merely the measure of compensation to an employee, or rental or like matters, no partnership is created. This is, of course, well established. Paggi et al. v. Quinn, Tex.Civ.App., 179 S.W.2d 789, writ ref.; Tanner v. Drake, Tex.Com.App., 124 Tex. 395, 78 S.W.2d 162.

While mere stipulation for sharing of net profits does not establish partnership,, it is evidentiary of the existence of partnership. Southern Surety Co. v. Texas Employer’s Ins. Ass’n, Tex.Civ.App., 2 S.W.2d 310, writ ref.; Roberts v. Nunn, Tex.Civ.App., 169 S.W. 1086, writ ref.; Davis v„ Gilmore, Tex.Civ.App., 244 S.W.2d 671, ref.

It is, therefore, a very material consideration that there was a sharing of the profits. Too, a partnership income tax return was filed for 1954,1955 and 1956. Also, a like return was filed covering the portion of the year of 1957 up to the death of Mr.. Rindy. If there were no partnership it would have been unnecessary to file such a return. We note that Mr. Frisk indicated he filed this type of return because it was as, good a way as any to handle it. However, the court could reasonably draw a different conclusion from the facts. The machines were paid for from the proceeds of the business because the loan from the bank used in part to pay for them was repaid from such proceeds. See Scales v. Grass-man, Tex.Civ.App., 261 S.W. 215, writ ref.

Another factor that is of importance is the manner in which the parties have exercised control over the business. The evidence reflects that Rindy did all of the negotiating for the purchase of the machines; he signed some of the checks in payment for them, though the money deposited in the company’s name was borrowed money; he negotiated for the lease on Rosine Street, and he negotiated the contract with Mason covering a one year period when Mason, or his company, carried on the operation for the company. Power or authority over the business is an important ingredient of partnership and may be inferred from sufficient exercise of such authority. Holliday v. Taylor, Tex.Civ.App., 249 S.W.2d 941, ref., n.r.e. In the case before us it appears that very important items of the business were handled solely by Rindy and the benefits from the exercise of such control were knowingly accepted by Mrs. Blair.

Considering the whole record, the trial court could reasonably conclude that the 30% of the profits was owned by Rindy as a principal in the business and did not come to him as compensation for salary or wages.

Appellant urges that the court erred in finding she did not account to the executrix, because she says the evidence shows she made the hooks available and through her attorney Mrs. Rindy petitioned the Probate Court for an order approving her acceptance of unpaid profits in the amount of $2,241.31 and that such order was entered. It is to he noted that this related not to Rindy’s interest in the partnership assets, but only to unpaid profits. Mrs. Blair denied partnership. Too, we have been unable to find where this amount was ever paid. Too, it covered only undrawn profits to the date of Rindy’s death.

The court did not, as urged by appellant, find the hook value of the assets. He found the reasonable market value, which is the proper measure. There was testimony by Mr. Mason, who was an expert in the field and who was personally familiar with the G & B Vending business, that its reasonable market value was $50,000.00. Appellant actually sold the assets for $30,000.-00 and the court gave recovery for 30% of this.

Appellant complains that the trial court erred in not awarding her ownership of 360 shares of stock in the Bellaire Investment Company, subject to her payment of $1250-00 which she admits she owes on the purchase price. The stock purchase was not a part of the partnership business above discussed.

After a very careful study of a very confusing record, we have reached the conclusion that instead of 240 shares, appellant showed she was entitled to 280 shares. In March, 1955, Mr. Rindy purchased 10 shares of stock in the Investment Company. He paid for it in full by his personal check payable directly to the company. About five months later he bought 10 more shares and paid for part of it. There was then a stock split of 2 shares for one. This would mean he now has 20 shares in place of the first 10 purchased. There was later an 8 for one split which would mean he now has 160 shares in place of the original 10 shares purchased.

The second purchase of 10 shares was partially paid for in August, 1955, and there was a stock split of 2 for one. It appears that Mrs. Blair issued checks between August, 1955 and January, 1956 showing she paid for half of the second purchase. This would mean she in January, 1956 owned 10 shares of stock. In January, 1956, Russell Rindy borrowed $5,000.00 at the First State Bank of Bellaire and pledged 70 shares of stock of the Investment Company. It is apparently conceded this was given in purchase of 50 shares. Checks given from time to time by Mrs. Blair establish the 50 shares were purchased for her and Mr. Rindy. The result is that she owned 25 of these 50 shares and she owned 5 shares of the second purchase which became 10 shares because of the split, so she owned 35 shares. There was an 8 for one split, which would give her a total of 280 shares. The original 10 shares, which we think the evidence showed Mr. Rindy solely owned, have now become 160 shares. The second 10 shares purchased, which we think the evidence showed belonged to Blair and Rindy equally, so that Rindy owned 5 shares, became 10 shares to Rindy on the 2 for one split, and on the 8 for 1 split became 80 shares. On the 8 for 1 split of his ½ of the 50 shares he owned 200 shares in place of his 25 shares. This makes a total for Rindy of 440 shares.

The judgment of the trial court must be and is hereby reformed so as to award to appellant 280 shares of stock in Bellaire Investment Company, subject to her payment of $1250.00.

The judgment of the trial court as reformed is affirmed, Associate Justice Coleman not sitting.


author: COLLINGS, Justice.

text:
    GULF, COLORADO & SANTA FE RAILWAY COMPANY, Appellant, v. Glen C. HAMPTON, Appellee.
    No. 3697.
    Court of Civil Appeals of Texas. Eastland.
    June 8, 1962.

    Rehearing Denied June 29, 1962.

      Hudson, Keltner, Jordan, Smith & Cunningham, Ft. Worth, R. R. Holloway, Brown-wood, for appellant.
    Helm, Jones, Pletcher & Winkelman, Houston, Griffin & Griffin, Brownwood, for appellee.
   COLLINGS, Justice.

Glen C. Hampton brought suit against Gulf, Colorado & Santa Fe Railway Company for damages under the Federal Employees’ Liability Act. The basis of the suit was an injury alleged to have been sustained by plaintiff on April 20, 1960, while performing switching operations in the course of his employment with the defendant railway company. The case was tried before a jury and based upon the verdict, judgment was rendered for Hampton for $100,000.00. Gulf, Colorado & Santa Fe Railway Company has appealed.

In connection with his attempt to establish the monetary loss suffered as a result of his injuries, appellee Hampton introduced over objection the testimony of Mr. Brayton Smith concerning the cost of annuities necessary to assure various and certain amounts of income for the remainder of his life expectancy. Mr. Smith testified that according to the standard insurance manual it would take a payment of $3,130.00 to produce a monthly income of $10.00. He then multiplied that 50 times to get the figure for a single premium annuity, with no refund, for $500.00 a month. Appellant objected to the testimony on the ground that it was not a proper measure of damages and was irrelevant and immaterial. Appellant’s first point complains of the action of the court in admitting this testimony. The point is overruled. The weight of authority supports the proposition that such evidence is admissible. See Texas & New Orleans Railroad Company v. Jacks, Tex.Civ.App., 306 S.W.2d 790, (Ref.N.R.E.); Louisiana & Arkansas Railway Company v. Mullins, Tex.Civ.App., 326 S.W.2d 263, (Ref. N.R.E.) ; Vicksburg & Meridian Railroad Company v. Putnam, 118 U.S. 545, 7 Sup.Ct. 1, 30 L.Ed. 257. In the case of Houston and Texas Central Railway Company v. Willie, 53 Texas 318, it was stated by the Supreme Court of Texas that:

“If compensation for lessened ability to labor be assumed as the true measure of actual damages, then it would seem that it should not be such sum as would bring an annual interest corresponding to the annual value of this lessened ability, leaving the principal sum still belonging to the estate of plaintiff after his death, although he had then become wholly incapacitated for labor; but would be an amount which would purchase an annuity equal to this interest, during the probable life of the plaintiff, calculated upon a reliable basis of the average duration of human life.”

Appellant complains in numerous points of the action of the court in overruling its motion for a mistrial because of jury argument by attorneys for appellee. The court sustained appellant’s objection to most of the argument at the time and instructed the jury not to consider the same. Even if it should be held that some of these arguments were improper, they were not of such a prejudicial nature that they were beyond correction by the instructions given by the court. Younger Bros. Inc., v. Myers, 159 Tex. 585, 324 S.W.2d 546; Household Furniture Co. v. Storrie, Tex.Civ.App., 292 S.W. 612. For instance, appellant complains of the reference of appellee’s attorney Helm to the fact that another of appel-lee’s attorneys seated at the counsel table was “an expert — on handling himself”, when it was obvious and was well known in the community that the attorney referred to was handicapped in a manner similar in some respects to the injury complained of by appellee. Appellant also complains of another statement made by appellee’s counsel to the jury to the effect that “I would not change places with this man for anything on earth.” We hold that the harmful effects of these arguments were cured by the action of the trial court in sustaining appellant’s objections thereto and instructing the jury that such arguments should not be considered. Texas Employers’ Insurance Association v. Kennedy, Tex.Civ.App., 303 S.W.2d page 440.

Contrary to appellant’s contention in its 2nd point, counsel for appellee had the right to request the jurors to answer special issues in a certain way and to state his opinion that justice would “completely flop in this case” if the issues were not so answered. The effect of such an argument was not to call upon the jury to answer in such a way that appellee might prevail. Texas & New Orleans Railway Company v. McGinnis, 130 Tex. 338, 109 S.W.2d 160.

Appellant’s 6th point complains of the reference of appellee’s counsel in jury argument to the failure of appellant to call one of two doctors who were in the court room. The record discloses that both doctors were present at the request of appellant and that the doctor who was not called as a witness was an assistant of the doctor who testified for appellant. Appellant’s attorney had stated in open court that he would refrain from using the other doctor as a witness but tendered him to appellee. Under these circumstances appellee’s counsel had the right to comment upon the failure of appellant to call the doctor as a witness. St. Louis, S. F. & T. Ry. Co. v. Green, Com.App., 37 S.W.2d 123. It also appears that the court sustained appellant’s obj ection to the argument. The court properly refused a new trial on the basis of this complaint,

Appellant’s 3rd point complains of argument by appellee’s counsel ridiculing appellant’s pleadings. Appellee’s counsel was reading portions of appellant’s pleadings to the jury which urged alternative contentions and in which appellant referred to “this unfortunate accident.” At this stage in the reading of the pleadings, ap-pellee’s counsel commented to the jury, “they are grieving themselves to death.” Objection was made to this argument and was overruled by the court. This argument was not of such a prejudicial nature that the action of the court in overruling appellant’s objection thereto constituted reversible error. The point is overruled.

We also overrule appellant’s contention that the cumulative effect of all the argument complained of deprived appellant of a fair trial before the jury and required a reversal of the judgment. No flagrant abuse of the limits of proper argument is shown.

During the cross examination of a doctor called as a witness by appellant, counsel for appellee began to question the doctor as follows: “All fight, sir. We have been reading recently just how turning a spade of dirt can cause a man — .” At this point appellant objected on the ground that the question was irrelevant and prejudicial; that the question constituted a reference to the back of the President of the United States. Appellant urges that it is general knowledge that the President had a fusion operation and recently reinjured his back by turning a spade of dirt. The trial judge sustained the objection and instructed the jury to disregard the question. It is appellant’s contention that the prejudicial effect of the question was such that it could not be cured by an instruction to the jury. We cannot agree with this contention. The prejudicial effect of the question, in our opinion, was not of such a nature that it could not be cured by the instruction.

The jury found, in effect, that the damages sustained by appellee as a result of his said injuries amounted to $100,000.00. In appellant’s 9th point it is contended that the verdict is grossly excessive and that the court erred in failing to so hold and erred in refusing to require a remittitur of at least $50,000.00. The evidence shows that on April 20th, 1060, at the time he was injured, appellee was 33 years of age. It was stipulated that the life expectancy of a man 33 years of age was 33.44 years according to the Standard Ordinary Tables of Mortality. Appellee Hampton had a tenth grade education, was hired in 1955, after full and complete physical examination by railroad doctors. The year preceding his injury appellee earned $6,439.78, and there was testimony to the effect that $6,400.00 a year would be a fair estimate of what he had made during the years he worked for appellant. The evidence further indicated that a man had to be in good physical condition to do the work required of appellee and that he was in good condition when, he started on the trip on April 20, 1960; that the collision which caused his injury was accompanied with great force; that the tank car on which he was riding was damaged; that the stock car was turned over on its side and a brick car was knocked off the rails. Appellee testified that he received a back injury in the accident and that the injury was in the lower part of his back. The evidence indicated that on May 9, 1960, appellee was operated on at the Santa Fe Hospital at Temple where a bone fusion was done on his back; that he was in a paralyzed condition before the operation; that his right side from the waist down was paralyzed; that, after the operation, he was in a wheelchair and in bed for about three months, until about August, 1960, when he began to take some exercises, but very little because it was painful; that he wore a brace continuously until February, 1961, except when he was lying down; that at the time of the trial he still wore the brace on occasions; that he is unable to get around as freely as before the accident; that he has pain constantly, has no use of his right foot and has pain through his lower back; that he sleeps with a board under his mattress and sometimes has to sleep on the floor; that he is unable to return to work as a brakeman and cannot do work which requires physical exertion. He stated that he had sold some of his cattle because he could not tend to them and needed money. The evidence indicates that prior to his injury appellee was a good workman and was physically capable of doing a good job; that he was strong and could do any kind of work and was a hard worker; that he was not in good shape at the time of the trial; that he helped around the house but most of the time stayed in bed; that he walks with a limp and with a cane; that before he was injured he did some riding in connection with work with his livestock; that his condition since the injury has remained about the same for the last several months; that he suffers so much pain that he takes novocain shots at least every two weeks. Appellee’s doctor in Brownwood testified that when he first saw appellee in the hospital after the accident in the spring of 1960, appellee complained of pain in his back, numbness in his right leg, inability to lift the toes of his right foot and inability to pull the right foot up toward his face. The doctor testified that the symptoms indicated a diagnosis of a ruptured disc. He further testified that he had been giving Hampton novocain injections in the tender areas of his back with some cortisone; that these shots apparently gave appellee temporary relief; that appellee wears a brace; that foot drop has persisted and may be permanent; that there has been no appreciable recovery of the foot drop condition; that appellee wears a brace down his leg attached to his shoe; that without this brace appellee’s foot would drag and cause him to stumble. The doctor testified that in his opinion the foot drop and the fusion at the location of the ruptured disc were conditions which were permanent; that if the vertebrae involved were fused and were solid and unbending that was the best appellant could hope for. The doctor stated his opinion to be that the pain should gradually improve over a period of time but he seriously doubted that Hampton would ever be able to resume work as a brakeman or do any other kind of work which required him to lift weights of any appreciable size or to do repeated bending over during a days work; that he expected some improvement in appellee’s condition but not m the foot drop. The evidence indicated that at the operation it was noted that appellee Hampton had some type of congenital defect in his lower back. The doctor who performed the surgery had examined Hampton in December, 1960, and in February and April, 1961; he testified that there was no atrophy of the leg in December, which was considered a good sign; that there was atrophy in February, 1961, and that this could go along with a nerve injury. It was also noted at that time that appellee walked with a shuffle type of gait; that he could walk some without his cane but that he walked better with it; that the motion of his back was restricted and limited; that the foot was not functioning normally. This doctor did not agree that the fusion was solid and felt that there was some motion in the fusion.

In passing upon the question of whether a verdict is grossly excessive the evidence should be considered in the light most favorable to the award. When so considered, the evidence supports the verdict. It shows that appellee has endured considerable pain and suffering which will continue for an indefinite time; that he was unable to follow gainful employment at the time of the trial and that his prospects for future employment were such that the jury could properly conclude that his injury is permanent; that his incapacity to labor will be permanent and substantial and that he can never again do hard manual labor.

The evidence of appellee’s pain and suffering and his past, present and future disability, considered in connection with his life expectancy of 33.44 years and an estimated prior annual income of $6,400.00, tend to support the verdict. In such cases the amount of damages to be awarded is primarily a question for jury determination. 17 Tex.Jur.2d pages 408, 409. The amount of the verdict does not indicate a disregard of the evidence, or that the award was the result of passion, prejudice, partiality or corruption. There is no showing that such improper considerations contributed, in any way, to the amount of the verdict. In this condition of the record the verdict of the jury is conclusive and should not be set aside.

The judgment of the trial court is affirmed.


author: DIXON, Chief Justice.

text:
    Jacqueline Leppert DILLION, etc., Appellant, v. Ruth P. ANDERSON et al., Appellees.
    No. 16014.
    Court of Civil Appeals of Texas. Dallas.
    June 8, 1962.
    Rehearing Denied July 6, 1962.

      Scurry, Scurry, Pace & Wood, and Richard H. Hodges, Dallas, for appellant.
    Hassell & Hassell, W. D. Riley, Jr., Thompson, Knight, Wright & Simmons, Dan Rogers, Eldon R. Vaughan, Cooper Blankenship, Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellees.
   DIXON, Chief Justice.

This is an appeal from a declaratory judgment construing two written instruments : one a contract of sale of an insurance agency, the other a covenant by the seller not to compete with the purchaser.

For a good many years C. B. Anderson and his wife Ruth P. Anderson owned and operated an insurance agency known as C. B. ANDERSON AGENCY, which specialized in health and accident insurance for school children. It was a thriving agency, operating in several states at a large profit.

C. B. Anderson died July 20, 1959, leaving a will naming as devisees, share and share alike, his surviving widow, Ruth P. Anderson and his minor grandson by a previous marriage. The agency was community property, so Ruth P. Anderson owned a one-half of the agency in her own right. Therefore C. B. Anderson by his will could and did devise only his half of the agency.

Ruth P. Anderson had been quite active in the operation of the business. She was a licensed agent herself. She supervised the office; she was in contact with the schools; she supervised correspondence and claims proceedings; and she was the only person in the agency authorized to represent the Peerless Insurance Company, one of the many insurance carriers for whom C. B. Anderson Agency wrote insurance. Following the death of C. B. Anderson, Ruth P. Anderson operated the agency by herself for six months at a profit of $40,000.

On March 10, 1960 Ruth P. Anderson executed a written contract whereby she undertook to sell the physical assets and property of the Agency together with its trade name and good will to Jack Murphy for a consideration of $17,000. This contract recited that the consideration was paid as follows: for the physical assets, $17,000; for the good will, nothing.

Meantime, the will of C. B. Anderson had been admitted to probate and the First National Bank in Dallas had been named as Administrator with the Will Annexed. The contract of sale between Ruth P. Anderson and Jack Murphy took notice of this pending administration. The contract expressly provides that Ruth P. Anderson will do all she is able to have the Probate Court approve the sale, and should the Probate Court fail to act within a reasonable time she will place ¼ of the purchase price in escrow to protect the grandson, the other beneficiary under the will. She also obligates herself to hold Murphy harmless from claims by the grandson and the estate.

On the same day, March 10, 1960, Ruth P. Anderson executed another contract. In this second contract she covenanted that she would not engage in the business of writing, selling or soliciting the sales oí accident insurance for school children in Texas, Oklahoma and Arkansas, or compete directly or indirectly, or enter into the employ of anyone who does compete with Murphy, the purchaser of the C. B. Anderson Agency, for a period of five years. The consideration for this second contract is $57,000 payable $7,125 per year for eight years.

On April 28, 1960 the First National Bank in Dallas, Administrator of the Estate of C. B. Anderson, filed suit against Ruth P. Anderson for a declaratory judgment and an accounting. The petition was later amended to include other parties.

On September 27, 1960 Jacqueline Lep-pert Dillion, Guardian of the estate of the minor grandson, filed her plea in intervention.

On April 17, 1961 judgment was rendered, which among other things, declared that First National Bank, Administrator, and Jacqueline Leppert Dillion, take nothing by their suit to declare the second contract, the covenant not to compete, entered into between Ruth P. Anderson and John Arthur Murphy, a part of the Estate of C. B. Anderson, deceased. The court, also held that all money heretofore paid and all payments hereafter received under said second contract, the covenant not to compete, “be and the same are declared to be the property of Ruth P. Anderson, individually.”

OPINION

In two points on appeal appellant in substance contends that (1) the $57,000 proceeds of the second contract, the covenant not to compete, executed pursuant to a sale of the going business belonging to the estate of C. B. Anderson, were in the nature of payments for good will of the business, and, thus, are the property of the estate, not the property of Ruth P. Anderson individually; and (2) the second contract, the agreement not to compete, is a part of the first contract, the agreement for the sale of the business of the estate, and is not severable therefrom, and the total proceeds are an asset of the estate.

We do not agree with appellant. It is our opinion that the agreement of Ruth P. Anderson not to compete with Murphy,, the purchaser of the Agency, is personal to Ruth P. Anderson. Only she could hind herself not to compete. Her agreement not to compete is separate from the contract for the sale of the Agency. The latter contract expressly recognizes that a one-fourth interest in the Agency is subject to the provisions of the will of C. B. Anderson, which has been admitted to probate. The record does not indicate whether the Probate Court has or will approve the sale. But regardless of that Ruth P. Anderson did not have to obtain the consent of the Probate Court to validate her agreement not to compete.

Appellees point out that the contract of sale includes good will and argue that a conveyance of good will includes and implies a covenant not to compete.

There are two lines of court decisions on the subject. The minority holdings seem to agree with appellant, but the majority holdings agree with appellee’s contentions and support the judgment of the trial court. The question will be found annotated in 82 A.L.R. 1030.

In our opinion the Texas Rule is correctly stated in Sheehan v. Sheehan-Hackley & Co., Tex.Civ.App., 196 S.W. 665. It is there held in substance that in the absence of an express covenant, there is nothing to prevent the assignor of a business and its good will from setting up and conducting a competing business in the same locality, though the right of such seller to compete is subject to this limitation: he must not do anything in derogation of the good will, such as soliciting customers of the old business. See also 38 C. J.S. Good Will § 12, p. 957 and 24 Am. Jur. 813. Therefore, Ruth P. Anderson by undertaking to sell the physical assets of the Agency and its good will did not impliedly hind herself not to compete with the purchaser. It was only in the second and separate contract that Ruth P. Anderson did relinquish a right, personal to her, to use her knowledge, skill and experience in the business of selling insurance in competition with the purchaser. The court properly declared that the proceeds of the second contract, the covenant not to compete, should go to Ruth P. Anderson, individually, and not to the estate of C. B. Anderson.

Appellant’s two points on appeal are •overruled.

The judgment of the trial court is affirmed.


author: WALTER, Justice.

text:
    TRUCK INSURANCE EXCHANGE, Appellant, v. Martha Wofford MICHLING et al., Appellees.
    No. 3710.
    Court of Civil Appeals of Texas. Eastland.
    June 1, 1962.
    Rehearing Denied June 29, 1962.
    Aycock & Steinle, Jourdanton, Gay & Meyers, Austin, for appellant.
    Lieck & Lieck, San Antonio, Ted Butler, Karnes City, for appellees.
   WALTER, Justice.

Judgment was rendered for Martha Michling, widow of Hugo Michling, and their children against Truck Insurance Exchange for death benefits under Texas Workmen’s Compensation Act.

The insurance company has appealed contending- the court erred (1) in permitting the widow to relate statements of the deceased about a blow on his head which he claimed was received while working for Buckaloo Excavating Company (2) in holding there was some evidence that the deceased sustained a personal injury while working in the course of his employment for Buckaloo Excavating Company (3) in failing to grant a new trial because the jury’s findings were against the great weight and preponderance of the evidence. It also contends the court erred in overruling its objection to appellees’ argument to the jury and in failing to submit a requested special issue.

Appellees’ case was primarily based on the testimony of Mrs. Michling about matters related to her by her husband. Appel-lee contends her testimony is admissible under the res gestae rule. The cause of deceased’s death is not questioned. Our principal question is whether or not Mrs. Michling’s testimony was admissible, and if admissible, does it have probative force in establishing the fact that her deceased husband, Hugo Michling, sustained an accidental injury on April 12, 1958, in the course of his employment for Buckaloo Excavating Company.

A fair summary of Mrs. Michling’s testimony is as follows: Hugo Michling had been working for Buckaloo Excavating Company for about nine years prior to his death, driving a truck and operating a bulldozer. Most of his work was cleaning locations and digging pits for oil companies. He traveled to his work in a pickup furnished by Buckaloo. He worked seven days a week. He started to work sometimes at 3:00 or 4:00 o’clock in the morning but usually started about 6:30 or 7:00. At the time of his alleged accidental injury he was working at Fashing, Texas, about thirty miles from his home. When he left home to go to work on the morning of April 12, 1958, he was apparently in good physical condition. He was the only Buckaloo employee working on the job on this occasion and was cutting down a hill with a bulldozer. It would take him about 45 minutes to drive from the place where he worked to his home. Her husband returned home about 3:30 that afternoon. She noticed him when he got out of the car and testified “he sort of stumbled and caught himself and walked on up to the house and he said his head was hurting him terribly.” When she got him in the house she gave him some aspirin. He was batting his eyes and very pale. “He said he had hit his head on the bulldozer, the iron bar across the seat. It slipped off a hill and he hit his head.” “He said his head hurt so bad that he couldn’t do any thing else. He had to put the bulldozer up and come home.” Hugo Michling died at the hospital on May 11, 1958.

We agree with appellees’ contention that this testimony is admissible under the res gestae rule. “The question of the admission of evidence, as a part of the res gestae, is one of law, and must be determined in the first instance by the trial court.” “The admission of particular evidence under the res gestae rule rests largely in the discretion of the trial court. * * * (1) To bring a declaration within the res gestae rule, such declaration must be connected with, and arise out of, the transaction which is the subject-matter of the inquiry. The proffered statement may be separated from the act or transaction by a more or less appreciable period of time, but it must stand in immediate causal relation to it. It must be either a part of the transaction or made under such circumstances as to raise a reasonable presumption that it is a spontaneous utterance of thought created by, or arising out of, the transaction itself. 17 Tex.Jur. 618, § 259, and authorities cited in notes. (2) Again, to come within the rule the statement must not only be a spontaneous utterance of thought, created by or springing out of the transaction itself, but must be such as to exclude the idea of premeditation. The facts attending the statement must lead to the reasonable conclusion that the statement offered in evidence was made under such circumstances that reason and reflection are not dominant, but that the statement was made from impulse. 17 Tex.Jur. 620, § 261, and authorities cited in notes. (3) The authorities above cited show that, while time is an important element in determining the question of spontaneity, it is not controlling, and is perhaps secondary to the condition of the declarant at the time the statement is made. Two important elements in reference to the admission of the statement are: (a) Was the declarant suffering great pain at the time the statement was made? And (b) did death from the injury follow soon after making the statement? Western Union Tel. Co. v. Brown (Tex.Civ.App.) 297 S.W. 267; International Travelers’ Ass’n v. Griffing, supra [Tex.Civ.App., 264 S.W. 263].” Texas Employers Ins. Ass’n v. Shifflette, Tex.Civ. App., 91 S.W.2d 787 (Writ Dis.). In the case of Atkinson v. United States Fidelity & Guaranty Co., Tex.Civ.App., 235 S.W.2d 509 at p. 511 (Writ Ref. N.R.E.), the court was considering a statement of an alleged injured employee who had departed for his work about 1:00 a. m. and returned home about 4:00 o’clock in the morning and was violently ill. The injured employee’s wife testified that her husband had vomited in the automobile he was driving and complained about his legs hurting him and about pains in his chest. She further testified that her husband stated that he had gone into a freezer unit at the plant and stayed for ten or fifteen minutes, “that he had inhaled a lot of gas and that was why he was sick.” This last statement was admitted in evidence as res gestae declaration over objection. In holding that said statement was admissible the court said: “There is a preliminary question raised as to the admissibility of the declaration of deceased that he had inhaled ammonia gas. It is said in the briefs that the trial court admitted the statement on authority of Texas Employers Ins. Ass’n v. Wade, Tex.Civ.App., 197 S.W.2d 203. We think that the Wade case supports the trial judge’s ruling. The opinion in the cited case and the opinion in Texas Employers Ins. Ass’n v. Shifflette, Tex.Civ.App., 91 S.W.2d 787, contain discussions of the res gestae rule as applied to situations similar to that involved here. These discussions need not be repeated. It is sufficient to say that the evidence shows that the declarant, whose death took place within two months, was in extreme physical and mental distress at the time the statement was made. Atkinson’s declaration could properly be considered as an undesigned circumstance which was part of an occurrence related to his consequential death. The matter was one addressed to the discretion of the trial court and that court did not exceed its authority in admitting the statement. It follows that, in passing upon the point at issue, the declaration cannot be disregarded as having no probative force.”

In the case of Worley v. International Travelers Assur. Co., Tex.Civ.App., 110 S.W.2d 1202 (Writ Dis.), the court made a very comprehensive statement with reference to the rule of law on res gestae as follows:

“The rule of law in this state seems to be that a certain amount of liberality must be indulged by the court trying the case in determining whether or not a piece of proposed testimony tends to detail the occurrence sought to be proved and is free of a self-service purpose. In the Dallas Hotel Company case, supra [Tex.Civ.App., 196 S.W. 647], the court quoted from the case of Pilkinton v. Ry. Co., 70 Tex. 226, 7 S.W. 805, 808, wherein the Supreme Court said: ‘To be a part of the res gestae the declarations are not required to be precisely concurrent in point of time with the principal transaction, if they spring out of it, are voluntary and spontaneous, and are made at a time so near as to preclude the idea of deliberate design.

“ * * * The rule is very latitudinous, and its application must be left largely to the judicial discretion of the trial court.’ the same rule is again announced in Southern Surety Co. v. Weaver (Tex.Civ.App.) 260 S.W. 622, affirmed by the Supreme Court, [Tex.Com.App.,] 273 S.W. 838.”

In the case of Texas Employers Ins Ass’n v. Noel, Tex.Civ.App., 269 S.W.2d 835 (Writ Ref. N.R.E.), the court was considering a statement made by the deceased to his wife upon his return from his duties as a pumper. She described her husband as having a yellow complexion and hardly able to speak and “couldn’t hardly speak for short breath.” In response to a question asked by his wife, the injured employee informed her that he was “picking up the well with my come-along-boomer and a pain hit me in the chest.” In holding this statement of the deceased admissible the court said: “We believe it follows therefore that the trial court was vested with discretion to rule upon the question of whether or not the evidence should be admitted as res gestae testimony, since the circumstances demonstrated with reasonable certainty that the deceased’s declarations were not the result of premeditation or design, and since they fairly appeared to be a continuation of the event constituting the transaction because the pain resultant from the deceased’s injuries was still subsisting and in progress at the time the statements were made. Under such circumstances there is a reasonable presumption that his utterances are spontaneous utterances of fact arising out of the transaction itself.”

The case of Wade v. Texas Employers’ Ins. Ass’n, 150 Tex. 557, 244 S.W.2d 197, by the Supreme Court also supports our holding that said testimony was admissible under the res gestae rule.

Defendant pleaded a general denial and the following: “For further answer herein, if further answer be necessary, defendant specially denies that Hugo H. Michling received a compensable injury while employed by Buckaloo Excavating Company or that any such injury resulted in his death, and says that the true facts are that said Hugo H. Michling suffered a cerebral hemorrhage at a time when he was not within the scope of his employment for Buckaloo Excavating Company and that he died as a result of such cerebral hemorrhage.”

Appellant contends the court erred in refusing to submit the following special issues:

DEFENDANT’S REQUESTED SPECIAL ISSUE NO. 1

“Do you find from a preponderance of the evidence that the death of Hugo H. Mich-ling was caused solely by an existing condition in his brain which was not aggravated by an accidental injury, if any, which he may have sustained on April 12, 1958 ? Answer‘Yes’or‘No’. Answer:-.”

Appellee contends we can not consider this point because the requested issue was. not filed until September 15, 1961, and there is no certification by the court that it was timely presented to the court and opposing counsel. The judgment is dated June 19, 1961.

It is the duty of the court to submit all controverted ultimate fact issues made by the pleadings and the evidence-“To constitute a defense, the prior diseased condition of the claimant must be the sole cause of disability.” Traders & General Ins. Co. v. Belcher, Tex.Civ.App., 152 S.W. 2d 525 (Ref. Want Merit.). The issue raised by appellant’s requested special issue No. 1 was not covered by its pleadings. Appellant no where pleaded that Michling’s death was caused solely by an existing condition in his brain which was not aggravated by an accidental injury.

We have considered all the evidence and hold that the jury’s findings are not against the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellant’s point complaining about ap-pellees’ argument does not present error. Without burdening this opinion with a quotation of the argument made, we will say that we have considered the argument and hold that it was justified by the record. Also in the court’s qualification of the bill of exception, he found the alleged improper argument was invited. See City of Waco, v. Killen, Tex.Civ.App., 59 S.W.2d 940.

We have examined all of appellant’s points and find no merit in them, They are overruled. The judgment is affirmed.