author: WALKER, Chief Justice.

text:
    NATIONAL AID LIFE ASS’N v. HORNE et al.
    No. 3544
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 29, 1939.
    For former opinion, see 133 S.W.2d 981.
    Wilcox & Wood, of Georgetown, for appellant.
    Ramsey & Ramsey, of San Augüstine, for appellees.
   WALKER, Chief Justice.

Appellant assigns error against our conclusion that the amount in controversy was within the jurisdiction of the county court. True, appellees prayed judgment for attorneys fees and damages in the sum of $470 in addition to a prayer for damages in the sum of $1000 as the principal coverage of the policy. But, on the allegations of the petition, it affirmatively appeared that appellees had no cause of action for the attorneys fees and damages as plead. However, in view of appellant’s assignment, we file this opinion on the errors brought forward in the brief.

On the 15th day of June, 1934, appellant, National Aid Life Association, issued to Mrs. Mattie Conn a policy of life insurance not to exceed $1,000, in which appellee, Mrs. Bessie Horne, was named beneficiary. The monthly assessment of the policy was $3, “due and payable at the office of the defendant on the first day of each and every calendar month and a grace period of fifteen days within which to make such payment.” Appellant’s office was in Oklahoma City, Oklahoma. Default was made in the January, 1938, assessment. On February 1, 1938, the insured attempted to pay the January and February assessment. The payment was refused, and appellant declared a forfeiture. The insured died the 23rd day of March, 1938. Appellees’ cause of action was on the policy. Appellant plead in defense the default in the payment of the assessment due on January 1st and the forfeiture declared by it thereon. On trial to a court without a jury, as stated in the original opinion, judgment was rendered for appellees against appellant for the sum of $529.71; the appeal was regularly prosecuted to this court.

The evidence supports the judgment of the lower court. For the purposes of this opinion, we accept appellant’s statement that the assessment for January, 1938, was due January 1, 1938, but by reason of the “grace” the insured had the right to pay the assessment at any time before the end of the month, and that the assessment was not paid during the month of January. However, by its conduct in relation to the payment of the assessment, it is our conclusion that appellant is es-topped to claim forfeiture. On January 11, 1938, the insured, as was her custom in paying her assessments, mailed appellant at its home office a check for $3 on the Commercial State Bank of San Augustine in payment of the January assessment. The check was received by appellee and on the 14th day of January, deposited for collection in its Oklahoma City bank, and regularly forwarded to San Augustine. Payment was refused by the San Augustine bank and the check returned to appellant at its home office. On the 25th day of January appellant was notified that the check had not been paid. On the 26th day of January appellant wrote the insured the following letter:

“Your check as above described has been returned by the bank upon which it was drawn, unpaid.
“This check was tendered this Association in payment on your insurance contract listed below, and since the check has been returned unpaid, your insurance will lapse unless payment is mailed on or before the last day of this month, and received by us.
“May we impress upon you the importance of giving this your immediate attention, because as above indicated, any delay may cause your insurance to lapse?”
Appellant’s letter was not received by the insured until late in the evening of January 31st, too late to mail a reply to appellant on that date — at a time when the mail did not leave San Augustine until the next day. On the 1st day of February, 1938, the insured wrote appellant the following letter, enclosing payment for the January and February assessments:
“2-1-38
“National Aid Life Association
“I, me sorry about January Check. But it was my mistake I never noticed it being own Commercial Bank and I have mooved and nevery received your letter until last night. My address is San Augustine Texas Rt. 1.
“Mattie Conn
“P. S. I, Me also sending Feb. Payment.”

On the 5th day of February, 1938, appellant replied, refusing to accept the payment. The insured died before the controversy was adjusted.

The insured by mistake wrote her check on the Commercial State Bank of San Augustine, in which she had no deposit; in fact, she had a deposit in a different San Augustine bank to cover this assessment, and it was her intention to write the check on this other bank. Though, on the 26th day of January, under appellant’s construction of the contract, the insured had only five days in which to pay her assessment, its letter of the 26th was an invitation to mail her check in payment. By the letter, appellant impressed upon the insured “the importance” of giving its letter immediate attention. That language could mean only that, on receipt of the letter, the insured was given the right to answer it. The letter was received on the 31st day of January, the very last day of the month, and at the first possible moment she answered it after its receipt. In writing the letter and the invitation to the insured to make her reply, appellant assumed the risk of ordinary delays incurred in the delivery of the mail.

On the time element involved, it appears that the insured mailed her check, with the covering letter, on the 1st day of February; appellant did not mail its reply until the 5th day of February. On the important correspondence declaring a forfeiture of the insurance contract, appellant wrote its letter on the 26th of January, and the insured replied on the 1st day of February. On this statement appellant cannot complain of the delay in the delivery of its letter to the insured, returning the check.

Appellant complains that the judgment was excessive: (a) To. the extent of $12; (b) in the alternative to the extent of $3. As we understand the record, this point was not called to the attention of the trial court. We overrule the assignment on the maxim de minimis non curat lex. We pretermit a discussion of appellees’ other counter propositions in support of the judgment.

The judgment of the lower court is affirmed.


source: Caselaw Access Project

author: SPEER, Justice.

license: Public Domain

text:
    ROBERSON et ux. v. KECK.
    No. 13770.
    Court of Civil Appeals of Texas. Port Worth.
    Dec. 8, 1939.
    Rehearing Denied Jan. 12, 1940.
    H. M. Muse, of Wichita Falls, for plaintiffs in error. '
    Donald & Donald, of Bowie, for defendant in error.
   SPEER, Justice.

This cause is before us on writ of error perfected by O. G. Roberson and wife, Madge Roberson, against L. Keck, growing out of a judgment entered in the District Court of Montague County, Texas, on February 13, 1937.

Defendant in error, L. Keck, to whom, for convenience, we shall refer as appellee, sued O. G. Roberson and wife, to whom we shall refer as appellants, in trespass to try title, to recover Lot No. .3, in Block No. IS, B. S. Wathen Addition, as amended, to the town of Nocona, Montague County, Texas, according to the plat of said addition, as recorded in the Deed Records of the county, in designated volume and page.

Appellee also sued for rentals on the property during the time that he claimed appellants had wrongfully withheld its use and possession. Allegations assert that appellants had previously made, executed and delivered their warranty deed conveying the property to appellee; that by mutual mistake of all parties, an erroneous description of the property was contained in the deed. Prayer was for correction and reformation of the deed, title and possession of the property, and for judgment for the value of rentals.

Appellants defended under an answer of general denial and plea of not guilty. No jury being demanded, trial was to the court. After hearing the evidence adduced, the court entered judgment correcting and reforming the instruments, for title and possession of the property by appellee, and for $240 as the value of rentals during the time it had been illegally withheld by appellants.

Within the statutory time, the appellants attempted to perfect an appeal to this court. No record was filed by them and after expiration of that period appel-lee filed in this court a motion to affirm on certificate. Appellants, by ex parte affidavits of the trial judge and the district clerk, disclosed to this court that no exception was taken by appellants to the judgment entered and that no notice of appeal therefrom was given in open court, as provided by statute. It was thereby made to appear that we had no jurisdiction in the appeal. We declined to affirm on certificate and dismissed the appeal for want of jurisdiction. This order was entered on June 25, 1937. See Roberson v. Keck, Tex.Civ.App., 108 S.W.2d 840.

The Supreme Court granted a writ of error upon application by Keck. On July 5, 1939, long after the expiration of the term of this court at which judgment had been entered, the Supreme Court, in an opinion reported in Keck v. Roberson, Tex.Com.App., 130 S.W.2d 287, took cognizance of the holdings of this court, both in dismissing the appeal for want of jurisdiction and in refusing to affirm on certificate. This was there said: “In the case of Smith v. Free (Tex.Com.App.) [130 Tex. 23] 107 S.W.2d 588, there was presented precisely the same situation as we have here. In that case it was held that the action of a Court of Civil Appeals in refusing to affirm on certificate was not a final judgment from which an appeal, could be prosecuted to the Supreme Court. Upon authority of that case it appears that the writ of error in this instance was improvidently granted.”

For the reasons stated, the Supreme Court dismissed the application for writ of error for want of jurisdiction.

In the case of Smith v. Free, supra, it appears that the Court of Civil Appeals did not dismiss the appeal, as was done in the one before us, but refused to affirm on certificate, leaving the case pending on its docket. It was held that such an order did not dispose of the appeal for the obvious reasons assigned by the court. In the cause pending in this court, the appeal was dismissed.

Appellee has again renewed his motion to affirm on certificate, as against the writ of error proceedings pending, but it will be observed that this is not a case in which appellant perfected an appeal and subsequently abandoned it, and later perfected his writ of error. In such instances it is well settled that the right to sue out the writ of error is subject to the further right of appellee to have the judgment affirmed, on certificate, when presented to the same term of court. Jarrell v. Farmers’ & Merchants’ State Bond Bank of Poth, 128 Tex. 332, 99 S.W.2d 281; Heywood-Wakefield Co. v. Brady, 128 Tex. 371, 101 S.W.2d 224; and Irlbeck v. State, 129 Tex. 608, 106 S.W.2d 262.

Assuredly the judgment entered by this court in dismissing the appeal for want of jurisdiction was final. We do not construe the language used by the Supreme Court in Keck v. Roberson, supra, to hold otherwise. That court said that the action of this court in refusing to affirm on certificate was not a final judgment from which an appeal could be prosecuted to the Supreme Court. The dismissal of the appeal by us was not discussed by the Supreme Court in its disposition of the application for writ of error. If the action of the Court of Civil Appeals in this respect had been improper doubtless the Supreme Court would have reversed our judgment.

That a judgment of dismissal is final, see 25 Tex.Jur., page 367, sect. 5; Eddleman v. McGlathery, 74 Tex. 280, 11 S.W. 1100; Freeman on Judgments, 5th Ed., Vol. 1, page 39 et seq.

There is also before us a motion by appellee to dismiss the writ of error proceedings in this case, upon the grounds (a) that an appeal had been previously perfected by appellants to this court, and they could not be heard to abandon that appeal and present the cause on the writ of error, and (b) because the judgment of this court dismissing the former attempted appeal was not final in that the Supreme Court had granted a writ of error therein. Ap-pellee further moves to strike the statement of facts now on file in this court, for reasons therein set out. We think there is no merit in either of said motions, and upon the authorities cited and facts above related, they are overruled.

The record reflects that appellants borrowed from appellee $1,000 on June 8, 1926, and at that time executed their note for that amount and a deed of trust on the property in controversy, to secure the payment of the note at maturity. The property was the homestead of appellants at the time, and the money was not for either of the purposes for which the homestead could be incumbered to secure.

Appellants defaulted in the payment of the note above described, and on January 30, 1933, they executed their warranty deed to appellee, conveying the lot as it was described in the deed of trust. The lot was erroneously described in both the deed of trust and the deed; but it is clear from the record that the lot so described is the same as that in controversy, and it w.as these errors that appellee sought to have corrected and the instruments reformed to fit' the facts proved.

This brings us to a consideration of what we believe to be the only issue involved in this appeal. Was the deed of conveyance from appellants to appellee, on January 30, 1933, an attempted mortgage lien on the homestead, or was it a deed of conveyance? Appellants have presented in many forms, assignments of error to the action of the trial court in holding that the instrument was not a mortgage but a conveyance of the title.

It is fundamentally true that under our procedure parol evidence may be introduced to explain the true consideration for written instruments, under certain conditions. Texas Company v. Tucker, Tex.Civ.App., 129 S.W.2d 762, writ refused, and cases there cited.

The consideration in the instrument un7 der which appellee claimed title is recited to be as follows: “$10.00 and other valuable considerations, among which is the cancellation of one promissory note for $1,-000.00, dated June 8th, 1926, signed by said O. G. Roberson and Madge Roberson, in favor of L. Keck, to us in hand paid by L. Keck, as follows: cash and canceled note in hand upon signing of this instrument, the receipt of which cash and canceled note is hereby acknowledged and confessed.”

The testimony bearing upon the effect and purpose of the deed was conflicting. Appellant O. G. Roberson testified in response to question as follows: “Question: Mr. Roberson, at the time of the execution of this warranty deed on January 30th, 1933, state what agreement, if any, you had with Mr. Keck prior to the execution of that instrument. Answer: We had a conversation there on the south side of Fo-shee’s store, and I told Mr. Keck at that time I was out of a job and wasn’t working just at that time and I didn’t have anywhere to go, and he said, Why God, you don’t have to move. You stay there and if you get the money I will let you have it (the property) back.’ ”

The scrivener who prepared the deed testified that the $10 cash recited in the deed was paid to Roberson and that the canceled note for $1,000 was then and there delivered to him. It further appears that Keck thereafter 'purchased and carried insurance on the improvements and rendered and paid the taxes thereon; that Roberson declined to render the property for taxes, but told the tax assessor that he had sold it to Keck. Relative to recovery by Keck of rentals the testimony discloses that Keck told Roberson prior to the time conveyance was made that if he gave him no trouble in, the future about possession, he, Roberson, could continue to occupy the house for the remainder of the year (1933) at a rental of $10 per month; that that amount was the reasonable rental value.

In cases of this character where a deed of conveyance upon its face shows the whole recited consideration to be paid and the instrument is plain and unambiguous, it has been held thát parol testimony is,not admissible to show that the instrument was intended as a mortgage rather than a conveyance. There is no contention made here by appellants that the consideration as recited was not paid. O. G. Roberson admitted that he owed the $1,000 to Keck and desired to pay it. He received the canceled note when he made the deed. Parol evidence that the instrument was intended for another purpose than that plainly expressed by its terms was in violation of the parol evidence rule, and was not admissible under the rule of explaining the consideration contained in the deed.

In 29 Tex.Jur., page 810, sect. 17, this rule is announced: “A debt being one of the essentials of a mortgage, it is evident that the existence of a debt must be established by one who contends that a deed was intended to operate as a mortgage. * * * It is equally plain that the transaction cannot be held to be a mortgage where it appears that an existing debt was satisfied or discharged by the conveyance.”

In Pridgen v. Furnish, Tex.Civ.App., 11 S.W.2d 844, affirmed in Tex.Com.App., 23 S.W.2d 307, it was held that where the consideration in a deed regular on its face is shown to be contractual, that is, where it recites cash paid and notes for the remainder. of the purchase price, it cannot he contradicted or wiped out by verbal testimony, or be given a different construction so as to create a mortgage or trust. Citing Hopkins v. City of Dallas, Tex.Civ.App., 297 S.W. 347, writ refused; Johnson v. Johnson, Tex.Civ.App., 147 S.W. 1167.

In Rincon Investment Co. v. White, Tex.Civ.App., 54 S.W.2d 1052, writ dismissed, it was held that evidence introduced to change the nature and effect of a deed of conveyance should be scrutinized with the greatest care, and should not be given effect unless it clearly establishes the change contended for; that no presumption will be indulged favorably to the testimony seeking to change the nature and effect expressed by the written instrument. Citing Calhoun v. Lumpkin, 60 Tex. 185; Webb v. Burney, 70 Tex. 322, 7 S.W. 841.

The contention of appellants that if they should afterwards pay the debt, Keck had promised to sell the property back to them, has no support from any other witness or fact in the case, and at most only raised an issue for determination by the court, sitting in lieu of a jury. Thraves v. Hooser, Tex.Com.App., 44 S.W.2d 916. The trial court resolved that fact against appellants. When no jury is demanded the court is the judge of the credibility of the witnesses and the weight to be given their testimony. 3 Tex.Jur., page 1102, sect. 771; Ostrom v. Jackson, Tex.Civ.App., 127 S.W.2d 987; Corn v. First Texas Joint Stock Land Bank, Tex.Civ.App., 131 S.W.2d 752, writ refused; Texas Cotton Growers’ Ass’n v. McGuffey, Tex.Civ.App., 131 S.W.2d 771, writ dismissed. The same authorities hold that when thus determined by the court and there is any substantial evidence to support the findings, the appellate court will not disturb it.

In the instant case the deed was regular on its face, showing that the whole consideration was paid by appellee, in the cash mentioned and by the cancellation and surrender of the note for $1,000. The deed appears upon its face regular in every respect. The trial court obviously either discredited or disregarded the contentions made by appellants in arriving at his judgment. Under the authorities cited he had the right to do this.

Appellant Roberson admitted that he formerly owed the debt which was canceled in the deed of conveyance, and that he desired to pay it. There was no reason why he and his wife could not convey their homestead in settlement of the debt. This is what appears to have been done.

What we have said likewise disposes of the matter of rentals recovered by ap-pellee in the judgment. The issue was a controverted one, upon which there was' evidence which, if believed, would support a judgment either way. The facts were -resolved by the court against the contention of appellants and we cannot revise it. All assignments of error on these points are overruled and the judgment of the trial court is affirmed.


author: TIREY, Justice.

text:
    DAVIS v. FIRST NAT. BANK OF HARLINGEN et al.
    No. 2173.
    Court of Civil Appeals of Texas. Waco.
    Dec. 14, 1939.
    Rehearing Denied Jan. 11, 1940.

      E. L. Davis, of Harlingen, for plaintiff in error.
    Osee Fristoe, of Harlingen, for defendants in error.
   TIREY, Justice.

This appeal involves a garnishment suit after judgment. Plaintiff in error, ' First National Bank of Harlingen, caused writ of garnishment to be issued on January 3, 1938 against L. G. Grindle, garnishee. The writ was served on the garnishee on the 3rd day of January, 1938, and the garnishee thereafter on February 23, 1938 answered the writ, and in his answer set up that he owed the sum of $309.75 on a promissory note executed by him on January 6, 1937 and payable on or before one year after date to the order of W. M. Meriwether, judgment debtor. Garnishee also set up in his answer'that Joe L. Penry, Jr., of Har-lingen, Texas, was asserting some right, title or interest in the funds in question. The garnishee also recited in his answer that he paid into the registry of the court the sum of $309.75 and asked the court to render judgment as it may deem just and proper, awarding the funds to the person or corporation entitled to receive the same and protecting the garnishee in all respects. The garnishee did not ask that anyone else be made party defendant. The National Loan & Investment Company, on February 19, 1938, filed plea of intervention and in' its plea set up that on January 4, 1938 it became the holder in due course of business and an innocent purchaser for value of the vendor’s lien note in question. The intervener asked for judgment for the amount of the note, interest and attorney’s fees. No other pleadings were filed by either of the parties. The case was tried, befofe the cou# without the intervention of a jury and the court found in favor of the First National Bank of Harlingen and against the intervener, National Loan & Investment Company, and awarded the funds in question to the defendant in error, First National Bank of Harlingen. The intervener appealed from said judgment.

The intervener seasonably requested the trial court to file findings of fact and conclusions of law. These findings were filed by the trial court on November 9, 1938. The intervener, the National Loan & Investment Company, on the 23rd day of June, 1938, assigned, without recourse, the vendor’s lien note and the cause of action in question, together with all rights and rights of appeal to the plaintiff in error,. E. L. Davis, and the plaintiff in error, E. L. Davis, perfected his appeal by writ of error.

Upon trial of the case, the defendant in error Bank introduced in evidence the original answer of the garnishee and the writ of garnishment showing service and return. The National Loan & Investment Company introduced J. L. Penry, Jr., who testified that he represented the National Loan & Investment Company; that he knew the judgment debtor, W. M. Meri-wether, and that said Meriwether lived in the house that belonged to the National Loan & Investment Company for which he paid rent of $35 per month. He further testified that on January 4, 1938, he gave said Meriwether a receipt for $309, and that W. M. Meriwether assigned the note as payment for rent on the property that he occupied which belonged to the National Loan & Investment Company. The intervener also introduced in evidence the note in question which was for the principal sum of $300, dated Harlingen,, Texas, January 6, 1937, and due on or before one year after date, payable to the order of William McNutt Meriwether. The note was negotiable in form, executed by L. G. Grindle, and had the following endorsement on it: “For value received, I hereby sell, transfer and assign to Penry & Powers the within note, together with the vendor’s lien on the property securing the same, and as endorsee, I guarantee the payment of the within note at maturity or on demand at any time after maturity, waiving demand, protest and non payment thereof. Interest paid to 7-6-37. (signed) W. M. Meriwether.” Penry further testified that he did not know that writ of garnishment had been served on Grindle at the time he took the note. He further testified that he examined the note and found it regular on its face and, on cross examination by defendant in error Bank, testified that at the time he accepted the note from Meriwether he gave him a receipt for $309 for the note to apply on his rent, and further testified: “I took it with the understanding it was to apply as rent, and in the event it wasn’t paid, I would look to him for it,” and he further testified that at the time he accepted the note that Meri-wether owed rent of approximately $105.

Opinion.

The court found that the note in question was assigned to Penry & Powers on January 4, 1938, and that said Penry & Powers had constructive notice of the issuance and service of said writ of garnishment upon the garnishee, L. G. Grindle. The court further found that said Penry & Powers were not on said date innocent holders of said note in due course without notice or for a valuable consideration. The court further found that there was no evidence that the intervener, National Loan & Investment Company, was the owner of said note in question. Save and except that the assignment was made on January 4th, each of the findings filed by the trial court was assailed by plaintiff in error. The note in question was negotiable in form and had not matured at the time writ of garnishment was issued and served upon the garnishee. The Supreme Court in Thompson v. Gainesville National Bank, 66 Tex. 156, 18 S.W. 350 held: “The burden of proof is on the plaintiff to show that the payee has not transferred the note before maturity; otherwise the garnishee must be discharged.” The record is uncontroverted that the note had not matured at the time the garnishment was issued and served on the garnishee and it is likewise uncontroverted that the assignment of the note in question by Meriwether, the judgment debtor, was to apply on house rent that had accrued to the amount of approximately $105 and on future house rent that would accrue. The record is further uncontradicted that the assignment of the note in question by Meriwether was for the benefit of the intervener, the National Loan & Investment Company. The trial court having found that the assignment was made on January 4, 1938 and the record being uncontroverted that the note had not yet matured makes it necessary to reverse the case because the defendant in error Bank had not carried its burden. There is no pleading nor evidence whatever that Penry & Powers had any notice of the service of the writ of garnishment at the time they bought the note for their principal. While the court found that Penry & Powers had constructive notice of the service of the writ of garnishment, this finding was apparently based on the erroneous belief by the court that a purchaser of a negotiable note is charged by law with notice of all prior garnishment proceedings instituted for the purpose of impounding the funds due on such note. We do not understand this to be the law. 20 Tex.Jur. 717; 6 Tex.Jur. 720.

Moreover, there is no evidence in the record to sustain the trial court’s finding that National Loan & Investment Company was not the owner of the note in question. This court, in the case of Central National Bank v. Latham & Co., Tex.Civ.App., 22 S.W.2d 765, pars. 10-12, at page 768, writ refused, said: “The holder of collateral security, unless restrained by the terms of his contract of pledge, may sue and recover thereon in his own name and apply the proceeds of his recovery when collected to the satisfaction of his debt.” In view of the fact that the trial court has found that the note in question was assigned before maturity and the record being uncontroverted that the National Loan & Investment Company held the note as collateral security for rent past due and to accrue, and there being no evidence that the intervener had any notice of the garnishment proceedings at the time it acquired the'note, it appears that the case has been fully developed and that it would serve no useful purpose to remand the cause for further proceedings. Therefore, under the. authority of Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593, this cause will be reversed and rendered.

The judgment of the trial court, so far as it awards recovery against the garnishee in favor of defendant in error Bank, is here reversed and judgment is rendered that the Bank take nothing herein, and that plaintiff in error, E. L. Davis, assignee of the National Loan & Investment Company, intervener, recover of the garnishee the sum paid into the registry of the court and that the costs of this appeal and the court below be. taxed against the defendant in error, First National Bank of Harlingen.


author: ALEXANDER, Justice.

text:
    WILLIAMS v. TEXAS EMPLOYERS INS. ASS’N.
    No. 2175.
    Court of Civil Appeals of Texas. Waco.
    Dec. 21, 1939.
    Rehearing Denied Jan. 11, 1940.

      Martin S. Tudyk, of San Antonio, for appellant.
    Eskridge & Groce and Russell Talbott, all of San Antonio, for appellee.
   ALEXANDER, Justice.

This suit was brought by Ulissus J. Williams against Texas Employers Insurance Association to set aside a compromise settlement of a workmen’s compensation case on the ground of fraud. The jury answered the issues submitted to them in favor of the plaintiff, but the court, on motion of the defendant, entered judgment in favor of the defendant non obstante veredicto. The plaintiff' appealed.

The plaintiff, who was a colored man, was an employee of Firestone Tire & Rubber Company. On July 3, 1935, while he was mounting a tire on a truck, the tire blew out and severely injured plaintiff about the head and face. He was confined to the hospital for a few days and then returned home, and after remaining there for two or three weeks, one Parker, the local manager of the employer, sent for him to come to the office. Plaintiff testified that when he went to the office,' Parker, who at that time was apparently acting for the insurance company, told plaintiff that he had some-papers for him to sign; that at that time plaintiff was practically blind, as a result of his injuries, and he then informed Parker that he was unable to read the papers, and that Parker then assured him that the papers contained only a report of the accident to the insurance company. It later developed that the paper signed by plaintiff at that time constituted a settlement agreement by which plaintiff agreed to settle his workmen’s compensation claim for the sum of $75. The jury, in answer to special issues, found that at the time plaintiff signed the papers Parker represented to him that they contained only a report to the insurance company of plaintiff’s injuries; that such representation was false; that plaintiff believed and relied on such representation and was induced thereby to sign said settlement agreement and would not have done so but for such representation.

As stated above, the trial court, after receiving the verdict, on motion of defendant, entered judgment for the defendant non obstante veredicto. It is not clear on what theory the judgment was so entered. There was evidence sufficient to sustain a finding that Parker was acting as agent for the insurance company at the time he procured the execution of the settlement agreement, and the evidence heretofore referred to was very clearly sufficient to raise an issue of fraud in the procurement of the settlement.

In its brief the defendant asserts that the plaintiff received and cashed a draft for a part of the consideration of the settlement agreement after having been informed of the nature of the agreement, and that by reason thereof, he is now precluded from asserting the alleged fraud in the procurement of the agreement. This might be true if plaintiff had possessed full knowledge of the settlement agreement at the time he accepted and retained a part of the consideration therefor. The evidence, however, does not conclusively establish such theory. The plaintiff testified that about two weeks after he had signed what he then thought was a report to the insurance company, but ’which later proved to be the settlement agreement, Parker called him to the office and had him sign or endorse a check, which at that time plaintiff was unable to read. Parker then gave him $40 of the $75 paid by the company under- the settlement agreement and retained the balance to pay for the services of a man who had been working in plaintiff’s place while he was ill. The plaintiff testified that he thought the check was for weekly compensation, like other injured employees received, and did not know that it had any connection with a purported settlement agreement. If this testimony was true, the plaintiff would not be estopped to repudiate the agreement, for full knowledge of the essential facts is a necessary prerequisite as a basis for estoppel. 17 Tex. Jur. 138. There was no finding by the jury that the plaintiff knew at the time he received and cashed the check that the same had been sent to him as consideration for the purported settlement agreement, and since the evidence was in dispute on that issue the trial court had no right to withdraw the issue from the jury and decide the same in favor of the defendant. It should also be noted that the defendant did not plead estoppel in the lower court. Such plea was necessary in order to authorize the defendant to raise the issue in this court. 17 Tex.Jur. 146..

The defendant asserts that plaintiff failed to show that he had been injured by the settlement agreement and was therefore not entitled to have same set aside, even though it had been procured by fraud. The defendant’s contention that plaintiff failed to show injury is based on two grounds, the first one of which is that the ■evidence failed to show such an injury as would authorize compensation payments in excess of $75, the amount paid for the settlement agreement. According to plaintiff’s testimony he was totally and permanently disabled. His evidence, if believed by the jury, would authorize a verdict far in excess of the amount paid for the settlement agreement. This contention therefore cannot be sustained. The second ground is that the plaintiff neither alleged nor proved that he had filed a claim with the Industrial Accident Board within six months after the injury, nor did he allege any excuse for his failure to do so, and hence it would be useless to set the settlement aside because plaintiff could not now recover under the Workmen’s Compensation Act. Vernon’s Ann. Civ.St. art. 8306 et seq. The plaintiff did not allege that he had filed a claim with the Industrial Accident Board within the time allowed by law, nor did he allege any excuse for his failure to do so. He did allege, however, that his employer carried workmen’s compensation; that the defendant was the carrier of the insurance; that he was injured in the course of his employment and totally and permanently disabled thereby. He alleged the amount of his wages and further alleged that by reason of the facts he was entitled to recover workmen’s compensation from the defendant for a total of 401 weeks at $8.36 per week, or a total sum of $3437.76, in addition to the $75 already paid him. He also alleged the fraudulent procurement of the settlement agreement. The defendant did not direct any special exception to the petition. A general demurrer was presented to and overruled by the court. We think the petition was good as against a general demurrer. Since it was good as against a general demurrer, the defendant could not take advantage of any irregularity therein merely by requesting an instructed verdict or by motion non obstante veredicto. The reason for this rule lies in the fact that if the defendant had excepted to the sufficiency of the pleading, plaintiff would have had the right, as a matter of right, to amend, Jago v. Indemnity Ins. Co. of North America, 120 Tex. 204, 36 S.W.2d 980, whereas if the defendant be allowed to raise the question by request for an instructed verdict or by motion for judgment non obstante veredicto, the right to amend would thereby be cut off. See 33 Tex.Jur. 676; Ferrell v. City of Haskell, Tex.Civ.App., 134 S.W. 784. The plaintiff did not prove directly that he had filed his claim with the Industrial Accident Board within the time allowed by law, but the record does show that timely notice of injury was filed with the Board and that on August 7, 1935, within less than six months after the date of the injury, the Industrial Accident Board entered an order approving the compromise agreement. We think this was sufficient to show that the claim had been filed within time and in such manner as to confer jurisdiction on the Board. Central Surety & Insurance Corporation v. McCowan, Tex.Civ.App., 93 S.W.2d 472, 475; Casualty Reciprocal Association v. Berry, Tex.Civ.App., 90 S.W.2d 595; Commercial Casualty Insurance Company v. Hilton, 126 Tex. 497, 87 S.W.2d 1081, 89 S.W.2d 1116 pars. 3, 4-5; Kennedy v. Texas Employers’ Insurance Association, Tex.Civ.App., 121 S.W.2d 434, par. 10. The contention is therefore overruled.

Appellee’s last contention is that the court properly entered judgment for defendant non obstante veredicto, because there was no finding made by the jury, and no request for such finding, that plaintiff was damaged to any extent by the alleged fraud. As heretofore stated, the evidence was sufficient to show such damage. It may be conceded that such finding by the jury would be necessary to support a judgment in favor of the plaintiff. The statute, however, authorizes the court to render a judgment non obstante -veredicto only when there is no evidence to support a verdict and not merely because the findings made by the jury are insufficient to support a judgment. R.S. art. 2211, Vernon’s Ann.Civ.St. art. 2211.

The judgment of the trial court will be reversed and the cause remanded for a new trial.


author: CODY, Justice.

text:
    HUGHEY v. DONOVAN.
    No. 10897.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 21, 1939.
    Rehearing Denied Jan. 11, 1940.
    Lem Wray, of Waxahachie, for appellant.
    Chas. E. Kamp, Wilmot F. Warner, and Glenn A. Perry, all of Houston, for appel-lee.
   CODY, Justice.

This is a plea of privilege case, arising under Section 5 of Article 1995, Vernon’s Ann.Civ.St.

Appellee, who was plaintiff below, alleged in substance that appellant had entered into a contract with one Skinner to manufacture and sell not less than a certain specified number of “Skinner Drill Collar Reamers”, paying to the said Skinner at Houston, Texas, the sum of $10 for each such drill collar reamer, as royalty therefor. Appellee’s petition which copied ver-' batim the contract which it alleged, among other things, indicated that the contract sued on was executed in duplicate originals. Appellee alleged that, by assignment, he had succeeded to Skinner’s rights,, etc..

Appellant filed a plea of privilege in usual form, setting forth that he was not a resident of Harris County at the institution of the suit, nor at any time thereafter; that the county of his residence at all such times was and is Ellis County; and that “no exception to exclusive venue in the ■ county of one’s residence, provided by law, exists in said cause.”

Appellee filed a Controverting Affidavit to appellant’s plea of privilege wherein ap-pellee expressly stated that the quoted portion of the plea of privilege was false and untrue, and set forth in said Controverting Affidavit a copy of his petition theretofore filed in the cause, and averred in said Controverting Affidavit that the allegations of the petition were true; and further, that said allegations show, and that it is a fact, that defendant executed, within the meaning of Section 5 of Article 1995, a contract in writing, expressly naming Harris County as the place of performance, where the payment due thereon should be paid.

■ At the trial it was proved that Skinner was dead; that the contract, the copy of which was set out in appellee’s petition and copied in his Controverting Affidavit, was executed in the presence of a witness in duplicate originals by appellant and Skim ner; that one of the originals was left with appellant, the other with Skinner; that Skinner returned to Houston with such witness, who made an exact copy of such contract from Skinner’s duplicate; that appellant’s attorney had been duly served with notice to produce at the trial appellant’s duplicate of the original contract, or that secondary evidence thereof would be offered; that appellant did not take the stand or give any excuse for failure to produce the duplicate of the original contract which was proved to be in his possession, and which he was notified nine days before the triál would be proved up by secondary evidence if he did not produce the original. Appellee’s proof was to the effect that he did not have the Skinner duplicate of the original, and that Mrs. Skinner had turned over what she stated was all of Skinner’s papers that she could find, and the Skinner'duplicate was not among such papers. The proof further showed • that, at the instigation of appellant, Skinner and appellant acknowledged their execution of the contract before a notary in Ellis County, at the time it was executed.

Appellant contends the judgment of the trial court should be reversed on three grounds.

1. That a plaintiff, seeking to establish venue by force of Section 5 of Article 1995, must not only prove the execution of the written instrument sued on, but must produce in open court the very instrument itself — that under no condition or circumstances whatever can a plaintiff, under this exception to the venue statute, prove up such instrument by secondary evidence.

2. That the proof made by appellee was insufficient to authorize the admission of secondary evidence of the contents of the instrument he sued on.

3. That there was a fatal variance between appellee’s allegations and proof, in that appellee’s pleadings nowhere disclosed the fact that the parties to the contract sped on had acknowledged its execution before a notary public, yet his proof did.

We overrule appellant’s assignments of error.

It would be difficult to imagine a set of facts that would show more strongly the want of merit in appellant’s first contention than does the set of facts here presented, in behalf of which such contention is urged. For, under the proof made in this case, appellant had possession of an original of the contract sued on by ap-pellee — a contract to which appellee was not a party, and apparently had no original of, and no right to an original — and could, therefore, according to such contention, defeat the rights given by law to sue for the performance thereof in Harris County, by refusing to produce the original at the trial, after due notice.

The requirement that a written contract must be produced at a trial where such a contract is involved, or if not produced, the failure to do so satisfactorily explained as a condition to the admission of secondary evidence thereof, is merely the requirement that such contract be proved by the best evidence of which it is susceptible. One duplicate original of a contract will satisfy the requirements of the best evidence rule, as well as any other. Appellee was not suing on Skinner’s duplicate of the contract, any more than he was suing on appellant’s duplicate of it. And he apparently had no higher right or duty to produce the Skinner duplicate copy in court at the trial, than he had to produce appellant’s duplicate. In any event, in this case appellant has no just grounds for complaining that the contract was not proved up by the production of a duplicate original thereof, because the undisputed proof shows that appellant had a duplicate original, and had timely notice to produce it unless he wanted it proved up by secondary evidence.

It seems to be appellant’s contention that, by filing his plea of privilege, he thereby established a plea of non est factum in relation to the contract sued on. Even though the full force and effect of a plea of non est factum is attributable to a plea of privilege, where suit is brought on a contract performable by its terms in a named county, yet the issues made by -a plea of privilege and the controverting affidavit must be tried in the court where filed. In other words, after appellee filed his controverting affidavit in the district court of Harris County, in reply to appellant’s plea of privilege theretofore filed there, he had the right to try issues so made as to venue in Harris County. When he proved the execution of the contract in question in the form of duplicate originals, one copy of which was delivered to Skinner, and one copy of which was delivered to appellant, and that he had duly notified appellant that if appellant did not produce his, appellant’s duplicate, secondary evidence would be offered, appellee fulfilled the law. Certainly the fact that one duplicate original was delivered to Skinner, from 'whom appellee derived his rights, did not have the effect of transforming appellant’s duplicate into secondary evidence of the contract, into evidence that could be offered only after the Skinner copy had been proved to have been lost or destroyed. The proof before us presents the simple case of where appellant, a party to a suit, had in his possession at the time of the trial primary evidence of the contract sued on by appellee, and, though duly notified to produce such primary evidence if he did not wish the contract established by secondary evidence, failed to do so.

Of course there are cases where the courts have said that in order for a plaintiff to hold venue under section 5 of the venue statute, the plaintiff must not only prove the execution of the instrument sued on, but must also introduce the instrument itself as evidence. In each of the cases where the court has held that a plaintiff must introduce the contract itself into evidence, it will be found that the court was not holding contrary to established usage with reference to the best evidence rule, but in exact conformity with it, and the cases so cited are not in point.

What has been said likewise disposes of appellant’s contention that the proof made by appellee was insufficient to authorize the admission of secondary evidence of the contract sued on.

There was no variance between the terms of the contract as pled, and the terms as proven. We gather that appellee did not know that the contract was acknowledged before a notary before such fact was proved at the trial. Such acknowledgment formed no element of the contract sued on, and there was no legal reason why it should have been pled, but certainly proof that the contract was acknowledged was not at variance with allegations that were completely silent with reference to .whether such contract had been acknowledged or not.

The judgment of the court below is affirmed.

Affirmed.


author: BLAIR, Justice.

text:
    FREEMAN v. GREAT ATLANTIC & PACIFIC TEA CO.
    No. 8848.
    Court of Civil Appeals of Texas. Austin.
    Dec. 13, 1939.
    Rehearing Denied Jan. 10, 1940.

      Winbourn Pearce, of Temple, for appellant.
    Walker Saulsbury, of Temple, and Lucian Touchstone, of Dallas, for appellee.
   BLAIR, Justice.

Appellant, J. P. Freeman, sued appel-lee, The Great Atlantic & Pacific Tea Company, for personal injury damages alleged to have been sustained by Mrs. J. P. Freeman, wife of appellant, when she slipped on some bananas, which were alleged to have caused the floor to become slick and slippery, and fell to the floor of appellant’s grocery store. In answer to special issues submitted, the jury found in substance as follows:

1.That the floor of appellant’s store where Mrs. Freeman fell was not in a slick and slippery condition at and just before she fell.

2. That the fall of Mrs. Freeman was due to an unavoidable accident.

3. That appellant was not entitled to recover for doctor’s, drug and hospital expenses reasonably and necessarily incurred in the treatment of Mrs. Freeman as the result of her fall.

4. That appellant was not entitled to recover any damages for the lessened capacity of Mrs. Freeman to perform the duties encumbent upon her and which would probably ensue as a direct and proximate result of the injuries, if any, sustained by her when she fell.

From the adverse verdict and judgment, this appeal is prosecuted upon one main ground, that the trial court erred in refusing to set aside the verdict and answers of the jury and grant a new trial, because the same were so contrary to the great weight and preponderance of the evidence as to be clearly wrong and as to show prejudice against appellant and bias in favor of appellee.

We regard the evidence as presenting a sharp conflict as to whether the floor of appellant’s store where Mrs. Freeman fell was in a slick and slippery condition at and before she fell; and that since the jury determined the conflict in favor of appellee, this court has no authority to disturb the jury’s finding.

Mrs. Freeman, her daughter, Miss Maurine Freeman, and Mrs. Sam Johnson, the last two named being with Mrs. Freeman when she fell, each testified that they saw dark and crusty banana stains on the floor of the store where Mrs. Freeman fell; that they saw streaks where her shoes had made marks through the bananas on the floor; that a clerk of appellant wiped the bananas off of Mrs. Freeman’s shoes while she was still on the floor, and also off of her dress; and Miss Gertrude Sealy, who made the dress and saw it next morning after the accident, testified that dark and crusty banana stains were on the dress.

On the other hand, Mrs. W. E. Neude-kow, who had preceded Mrs. Freeman a few seconds over the place where Mrs. Freeman fell, and saw her fall, testified, as changed to narrative form by appellant’s counsel, that it was just an ordinary pine floor, and “I didn’t see anything that would cause anybody to fall. I didn’t see any bananas on that floor as I walked over it. I looked around and didn’t see anything. I looked at the floor and didn’t see anything. I didn’t see any bananas or mass of bananas. I have seen ■people faint, and have fainted myself. The blood leaves their head when they faint and naturally I felt she fainted, because the times I fainted I would always be sick at my stomach when I came to. The fact that called my attention to the fact that the store was well lighted was because I was purchasing, and because I was purchasing I noticed on this night that it was exceptionally well lighted, and the floor was exceptionally clean. One leg was out on the floor and the other leg was in under her, and I couldn’t see anything else is the reason I thought she had fainted. * * * I was in the store and saw nothing on the floor. There was nothing ■on that particular night to cause me to notice the floor any more than any other night or to cause me to notice the light any more than any other night.”

It is manifest that the jury elected to believe the testimony of Mrs. Neude-kow rather than the testimony of the several witnesses .offered by appellant. This the jury had the right to do because her testimony was clear and positive that only a few seconds before Mrs. Freeman fell the floor at the place she fell was ■clean; and that there were no bananas on it either before or immediately after she fell. There is nothing in the record to ■show that this witness was not disinterested, or to show any reason why she should be prejudiced in the matter. The rule of law applicable to the facts above stated is found in 3 Tex.Jur., 1097, § 769, •as follows: “The appellate court will set aside the verdict and findings of a jury only in cases where they are so against ■such a preponderance of the evidence as to be clearly wrong, show passion or prejudice, or in such obvious conflict with the justice of the case as to render them unconscionable.”

See, also, Vol. 1 Tex.Jur.1937 Sup., 319; and cases cited by these texts.

It may also be observed in this connection that the learned trial judge who sat in the trial of this case, and who had a better opportunity than this court to notice the witnesses and their demeanor on the -stand, and who heard and considered the questions now urged, and after consideration of them overruled the motion for a new trial.

Having found in answer to special issue No. 1 that the floor of the store was not slick and slippery at the time and place Mrs. Freeman fell, the jury, under instruction of the court, did not answer special issues Nos. 2 and 3 relating to negligence of appellee in permitting bananas to cause the floor to become slick and slippery, and proximate cause. In answer to special issue No. 4 the jury found that Mrs. Freeman’s fall was due to an unavoidable accident; and in answer to special issues Nos. 5 and 6 the jury found that appellant sustained no damages for doctor bills, etc., or for the lessened earning capacity, etc., of Mrs. Freeman as the direct and proximate result of injuries received by Mrs. Freeman when she fell.

Appellant contends that the jury’s answers to issues Nos. 4, 5 and 6 are not supported by'any evidence, or that the same are so against the great weight and preponderance of the evidence as to show prejudice against appellant and bias in favor of appellee; and that such prejudice and bias necessarily influenced, or may be considered as showing prejudice or improper influence as to the jury’s answers to special issue No. 1, finding that the floor was not slick and slippery at the time and place Mrs. Freeman fell. In this connection, appellant cites the fact that some $330 had been expended for doctor, medicine, and hospital bills in the treatment of Mrs. Freeman, beginning immediately after her fall and continuing until the date of the trial .of the case; and also cites the testimony of several witnesses that Mrs. Freeman’s health was apparently good before the accident, but had been continuously bad since the accident.

It is not necessary to discuss at length the finding of the jury that the accident was due to unavoidable accident. Suffice it to say that the jury having found that the fall of Mrs. Freeman was not the result of the slick and slippery condition of the floor, and there being no other evidence tending to show why she fell, other than the testimony tending to show that she fell because she had fainted, and from which the jury could have and did find that the atcident occurred as the result of an unavoidable accident. Nor, as we view the case, is it necessary to determine whether Mrs. Freeman actually sustained any injuries in this accident, or whether her injuries were due to illness and ailments from which she might have been already suffering. We have heretofore found that there is nothing in the .record suggesting that the jury was induced by prejudice or bias, which improperly influenced it, to answer special issue No. 1 favorably to appellee on the issue of whether the floor was slick and slippery; and under such facts and circumstances, it is immaterial whether the jury found that appellant sustained no damages, even though the evidence was undisputed that damages were sustained as a result of the injuries received by Mrs. Freeman from her fall.

A similar question was recently determined by the Supreme Court in the case of Southern Pine Lbr. Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335, wherein the jury had found that-the injuries received by the plaintiff were due to her contributory negligence, and although the undisputed evidence showed that the plaintiff had .received severe injuries, the jury found that plaintiff suffered no damages, and wherein the court held, in answer to the contention that the jury’s answer to the contributory negligence issue was induced by prejudice or by some improper influence, the court held as i follows: “There is nothing in the record suggesting that the jury was induced by prejudice or by some improper influence to answer as it did the. issue as to damages, unless it is the bare fact that the answer is contrary to the undisputed evidence, which shows that defendant in error suffered severe physical injuries. The action of a jury in answering an issue directly contrary to the undisputed evidence may be cause for suspicion that the answer was induced by prejudice or by improper influence. But we would not be justified in assuming that prejudice or improper influence was responsible for the jury’s answers convicting defendant in error of contributory negligence when- there is in the record substantial evidence supporting those answers and no evidence that prejudice or improper influence entered into or caused them.”

See, also, Martin v. City of Corsicana, Tex.Civ.App., 130 S.W.2d 40.5.

The judgment of the trial court will be affirmed.

Affirmed.


author: MURRAY, Justice.

text:
    JOHNSTON et ux. v. PICKERING LUMBER SALES CO. et al.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 13, 1939.
    Rehearing Denied Jan. 10, 1940.
    S. D. Hopkins, of Corpus Christi, for appellants.
    Vinson, Elkins, Weems & Francis, W. H. Francis, Jr., and Thomas Fletcher, all of Houston, Raymond Edwards, of San Antonio, and Jno. C. North, of Corpus Christi,- ■ for appellees.
   MURRAY, Justice.

This suit was instituted by Richard Lloyd Johnston and his wife, Elsie B. Johnston, against Pickering Lumber Sales Company and others, seeking to recover title and possession of three tracts or parcels of land' situated in Nueces County, Texas. Union Producing Company was permitted to intervene in the cause.

The trial was to a jury and, upon the completion of testimony by the plaintiffs below, the trial judge instructed a verdict favorable to all the defendants and inter-vener, from which judgment Johnston and wife have prosecuted this appeal.

It is shown by the pleadings and the evidence that appellants acquired title to the three tracts of land in about the year 1928. Thereafter, to secure certain indebtedness, appellants executed a deed of trust to -Jno. C. North, as trustee, for the benefit of Pickering Lumber Company, covering the three tracts of land above mentioned, and also a deed in trust to Frank Bluntzer, authorizing him to make certain disposition of the property under named conditions.

Afterwards, on November 6, 1930, there was a purported trustee’s sale by Jno. C. North, under the power of sale given him in the deed of trust, and the land was sold and deeded to Pickering Lumber Sales Company, a different corporation' from that of Pickering Lumber Company.

Afterwards Johnston and wife brought a suit styled Johnston and wife v. Pickering Lumber Company, being cause No. 11,-647, in the 117th District Court of Nueces County, in which they sought to have this trustee’s sale by Jno. C. North set aside. In which case the court, on July 8, 1931, entered judgment; that the plaintiffs announced that they would no longer prosecute their suit and that it was therefore ordered that the defendant Pickering Lumber Sales Company “go hence without day and have and recover its costs.”

Later, Pickering Lumber Sales Company instituted cause No. 12,166-A against Johnston and wife seeking possession of the tracts of land involved herein. Johnston and wife answered and set up a cross-action again attacking the trustee’s sale by Jno. C. North, and this suit resulted in a judgment favorable to Pickering Lumber Sales Company. 'There was no appeal taken from either of these two judgments.

The suit at bar was filed on November 2, 1937, more than five years after the execution of the trustee’s deed. It is. plain that this suit is an attempt to again litigate a question which has already been adjudicated against appellants, and, further, it is a suit to set aside a trustee’s deed, brought more than four years after the execution of such deed was known to appellants.

Appellants plead a common source of title and in proving up the common source they proved the title under which they were claiming and the title under which appeh-lees herein were claiming, and showed the title of appellees to be a superior title to that of appellants. Under such circumstances the trial court properly instructed a verdict for appellees.

In Hovel v. Kaufman, Tex.Civ.App., 266 S.W. 858, 861, affirmed by the Commission of Appeals, 280 S.W. 185, 188, Justice Smith, speaking for this Court, said:

“We have concluded, howeiver, that the weight of authority is against appellant’s contention, for the more settled holding seems to be, in effect, first, that the plaintiff claiming under common source, as here, must make out a prima facie case, of course; second, that in order to make out a prima facie case he must not only show the common source, but must go further, and show that his title thereunder is superior to the title shown by such evidence to be in the defendant; and, third, that if from the evidence of common source introduced by plaintiff the defendant appears to have the superior title, then the plaintiff cannot stop, but must proceed further and show that the defendant’s title thus exhibited, although apparently superior to that of plaintiff, is not, for proven reasons so. Simmons Co. v. Davis, supra [87 Tex. 146, 27 S.W. 62]; Rice v. Railway, 87 Tex. 90, 26 S.W. 1047, 47 Am.St.Rep. 72; Keys v. Mason, 44 Tex. 140; Sebastian v. Martin Brown Co., 75 Tex. 291, 12 S.W. 986. Appellant fell short of these requirements, for, in proving the common source, she put in evidence testimony which of its own force showed the defendants’ title to be superior to hers, and rested her case while it was in that status.
“If the testimony offered by plaintiff below to show common source had within itself shown her title to be superior to that of the defendants there, then it would have forced the latter to become the actors, and, in order to prevail, to not only supply the hiatus left in their title as shown by plaintiff’s evidence, but to go further and in their own behalf affirmatively introduce the very testimony already put in evidence by plaintiff and necessary to establish their claim of superiority.”

Judge Harvey, in affirming this Court, in the same case had this to say: “The correct rule is that, whenever a plaintiff, in a suit in trespass to try title, undertakes to sustain his claim of title by proof of common source, he must show, in order to make a prima facie case for himself, not only that both he and the defendant claim title under a common source, but also must show that the title emanating from the common source which the plaintiff claims is superior to that claimed by defendant, and that plaintiff holds such title. The substance of this general rule has been repeatedly announced by the Supreme Court. Keys v. Mason, 44 Tex. 140; Sebastian v. Martin Brown Co., 75 Tex. 291, 12 S.W. 986; Howard v. Masterson, 77 Tex. 41, 13 S.W. 635; Rice v. Railway Co., 87 Tex. 90, 26 S.W. 1047, 47 Am.St.Rep. 72; Simmons Hardware Co. v. Davis, 87 Tex. 146, 27 S.W. 62. Although in all of the cases which have come to our notice, including those cited above, the declaration of this general rule partakes more or less of the nature of dictum, we think the rule so announced is essentially sound and in harmony with the statute to which we have referred.”

The conclusion we have reached herein renders it unnecessary to pass upon other questions raised by appellant.

The judgment is affirmed.


author: GRAVES, Justice.

text:
    TEXAS INDEMNITY INS. CO. v. STEVENS et al.
    No. 11000.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 14, 1939.
    Rehearing Denied Jan. 11, 1940.
    T. W. Arrington, of Tulsa, Okl., and A.. R. Rucks and Robt. M. Lyles, both of Angleton, for appellant.
    Morris Pepper and Phil D. Woodruff,, both of Houston, for appellees.
   GRAVES, Justice.

This appeal is from a $6,052.27 judgment in favor of appellee and his attorneys, against appellant, entered in response to a jury-verdict upon special issues and upon independent findings of the court itself from the evidence, as for 401 weeks of compensation at $17.92 per week, for a total and permanent disability suffered by the appellee from a hernia, found by the court and jury to have resulted immediately from, an accidental injury received by him on. September 19 of 1938, while in the course of his employment for the appellant’s insured, the Stanolind Pipe Line Company; the total compensation so awarded having been reduced to the amount given, as the lump-sum value thereof at the time of the trial.

Appellant inveighs against the action so taken below on numerous grounds, of which the most vital one — in its own opinion — is its claim that the trial court reversibly erred in refusing to allow it to introduce evidence tending to show that an operation for hernia at the cost of approximately $250 was still available to and would cure the appellee of his claimed disability in about eight weeks time; and that appellee himself intended to use for that purpose some of the money that he might derive from this litigation; its contention for admissibility of such testimony being that it had a material bearing upon the .duration and permanency of the declared-upon injury to the appellee, as well as upon the nature and extent of the incapacity claimed to have resulted therefrom.

While there is serious question as to whether this matter is properly presented in the rather involved propositions appellant tenders, it is held here, after a review of the record, that it could not be sustained, were it in all respects properly raised; this for the reason that the undisputed evidence showed that the Industrial Accident Board, when this claim for compensation was pending before it, had, on February 21 of 1939, made an interlocutory order requiring appellant to give the appellee a hernia operation; that the appellee at the time had been ready and willing to submit to such an operation up to and through March 23 of 1939, of which fact he had duly notified the appellant, but that the appellant had refused to comply with such requirement, and, instead, after giving the proper parties notice of such refusal, it had resorted to the court upon its claim that it was not liable to appellee for any compensation growing out of such alleged accident.

In other words, to re-state the matter in its own language, the gist of its contention is thus put:

“ * * * error was committed by the court in excluding relevant and material evidence offered by appellant, to the effect that appellee desired an operation for hernia; that he and his wife planned for him to secure an operation as soon as possible; that an operation would cure his hernia in approximately eight weeks or two months time; that there was nothing unusual about his hernia or about his physical condition that would render him a poor operative risk, but on the contrary he was a good operative risk and that said operation would cost approximately $250.00, which evidence was offered for the purpose of aiding the jury in determining the extent and duration of the disability, if any.
“Appellant was erroneously denied the right to introduce such testimony on account of the failure of appellant to comply with an order of the Industrial Accident Board, which denied appellant a trial de novo, as provided by statute.”

The effect of the recent decisions of this court and of the Supreme Court in the case of Texas Employers’ Ins. Ass’n v. Tally, Tex.Civ.App., 122 S.W.2d 1095, and Tex.Civ.App., 125 S.W.2d 554, is thought to have foreclosed the question thus raised by appellant adversely to it; substantially the same position was taken by the insurer in the Tally case, in insisting that, having had the right to furnish an operation for the insured before the Board, it could again tender the same thing in the district court; likewise here appellant in this wise sought to get before the jury the fact of its willingness to have the appellee so operated upon by proffering this testimony as to what the anticipated effect of the operation might be, as well as what it would cost; whereas, both courts, in Tally’s case, pointedly held in effect that the refusal of the insurer to comply with the Board’s order requiring the operation, it having under the compensation law exclusive authority to do that, eliminated all questions regarding such an operation after the cause reached the court for the visitation of such successive authority as it could exercise over the same; in other words, when the insurer refused to comply with the Board’s order, all questions relating to a hernia operation became no longer applicable, and there was left to the court nothing else to do than try it under the general provisions of the compensation law, as the learned trial Judge did in this instance.

This amounted to no denial of any right to appellant, nor deprived it of a trial de novo upon any issue then legally left in the case; it had sinned away its day of grace by not taking advantage of the sole authority the Board possessed to require the operation, and, instead, had taken the cause into the courts shorn of any persisting right or authority there for anything to be done about such an operation.

Indeed, the privileges as affect both the claimant and the insurer with respect to a hernia operation appear to be correlative, under the compensation act; by R.S. Article 8306, section 12b, the Board may direct the insurer to give the claimant an operation by interlocutory-order; should it prove unsuccessful, but not result in death, the ensuing provision as to the claimant is, “he shall be paid compensation under the general provisions of this law the same as if such operation had not been had”; on the other hand, if the Board orders the operation and the claimant refuses to submit to it without just cause, then the act limits the period during which he is entitled to compensation for incapacity under such general provisions to the short time of one year, or fifty-two weeks — that being the penalty against him, in turn, for a refusal to comply with the Board’s order. He likewise in court thereafter could not revive the hernia operation question, and again seek its advantages there.

The proffered testimony thus not only related to a no-longer material issue in the cause in court, but also — had that bar not been in its way — could at most have had a mere secondary and indirect bearing, if any at all, upon the then-live issues it was so claimed to relate to; but these— that is, the nature, extent, and duration of appellee’s alleged injury and consequent disability — were all submitted by the court —without any reference to the erstwhile hernia operation order, or its repudiation— in appropriate special issues Nos. 1 to 16, inclusive; and these inquiries, as indicated supra, were, in response to full, material, and direct testimony thereon from both sides, all answered in appellee’s favor; as part thereof the court permitted the physicians summoned by the appellant to freely testify as to their findings and opinions concerning appellee’s then condition and ability to work, excluding only those relative to the advisability and probable effect of a hernia operation at that time.

Without further discussion, it is held .the exclusion of the proffered testimony was not error.

Appellant’s second proposition, undertaking to inveigh against the court’s award of compensation to appellee from September 19 of 1938, the date of the alleged injury, up to and including one week after February 8 of 1939, on a claimed hiatus as to fixing any date when the disability began, is not entitled to consideration; this, for the reason that none of its assignments — Nos. 1, 2, 27, 30, and 36, to which the proposition is appended as being germane — points out any specific error, but all call for a hunting expedition into the record and a piecing together of disconnected parts thereof in a vain effort to construct an assignment of error in substantial compliance with the rules; assignments 1 and 2 are so general as to point out nothing, being merely that the verdict is contrary to' the law and wholly unsupported by the evidence; 27, 30 and 31 are composed of mere references to portions of appellant’s exceptions to the court’s main charge, which did not appear in the motion for a new trial, but mere references were there made to certain paragraphs of general objections urged to the court’s charge; under the authorities, these presentments are unacceptable. Donnell v. Talley, Tex.Civ.App., 104 S.W.2d 920; 3 Texas Digest, Appeal and Error, 724(3) and 733; Southern Underwriters v. Samanie, Tex.Civ.App., 130 S.W.2d 1090; Fort Worth & R. G. Ry. Co. v. Downie, 82 Tex. 383, 17 S.W. 620; City of Ft. Worth v. Johnson, 84 Tex. 137, 19 S.W. 361; Holmes v. Uvalde Nat. Bank, Tex.Civ.App., 222 S.W. 640; Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270.

If the proposition were considered, however, it could not be sustained; because the evidence shows (and the court and jury in effect found) the appellee to have been totally incapacitated from September 19 of 1938 — the date his injury was specifically shown to have been suffered; the court will accordingly be presumed to have found from such evidence that the initial compensation date was coincident with that of the injury, if such finding be necessary to support the judgment rendered ; especially so, since appellant wholly failed either to object to the form of the court’s charge upon this feature, or to request the submission of any issue seeking to elicit a finding as to the exact date upon which such total and permanent disability should begin. Hicks Rubber Co. v. Harper, Tex.Sup., 132 S.W.2d 579.

Under the facts found by the jury in this instance, these authorities support the conclusion that the court was both authorized to make, and impliedly did make, the necessary fact-finding in support of the judgment: Traders & General Ins. Co. v. Baker, Tex.Civ.App., 111 S.W.2d 837, error dismissed; Traders & General Ins. Co. v. Snow, Tex.Civ.App., 114 S.W.2d 682, writ dismissed; Southern Casualty Co. v. Fulkerson, Tex.Com.App., 45 S.W.2d 152.

It is next asserted that the evidence is insufficient to support the jury’s answers to special issues Nos. 4, 5, and 6, to the effect that appellee’s injury resulted in a hernia, which appeared suddenly and immediately thereafter; there is an extended discussion of the testimony given by the various physicians for both parties, some of whom testified from personal examinations made of the appellee, and others in response to hypothetical questions; in the exercise of its province, however, this court has laboriously considered this mass of testimony, with the conclusion that, upon the whole, there was ample support for the challenged findings.

Error is next assigned to the form of special issue No. 17, inquiring whether the payment of compensation to appellee in weekly installments, instead of a lump sum, would result in a manifest injustice to him, “because the same nowhere requires the jury to find whether or not this is a special case wherein a manifest hardship and injustice would otherwise result if defendant were not compelled to redeem its liability, if any, in a lump sum.”

Without quoting in his verbis issue No. 17, since the substance of it has been given, it is determined that, ’in similar circumstances, our courts have held that it was not error to omit thé contended for recitation as to “whether or not this is a special case”, etc. Miller Indemnity Underwriters v. Green, Tex.Civ.App., 237 S.W. 979; Texas Employers’ Ins. Ass’n v. Cheek, Tex.Civ.App., 63 S.W.2d 1103.

There are other assignments presented questioning the rulings of the court as to the admission of evidence and as to the manner in which the issues of fact were submitted to the jury, but under the conclusion that they involve no reversible error, they are overruled without further discussion.

Upon the whole cause, it is thought the theory of the trial court in submitting it to a jury as being one triable under the general provisions of the compensation law — the insurer undisputedly having refused to comply with the Accident Board’s order requiring it to give appellee a hernia operation — was the correct one; further, that the issues as submitted deprived the appellant of no legal right, and that the verdict and judgment are not unsupported by the evidence; hence the judgment should be affirmed; it will be so ordered.

Affirmed.


author: JACKSON, Chief Justice.

text:
    FORT WORTH & DENVER CITY RY. CO. v. BOZEMAN et ux.
    No. 5082.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1939.
    Rehearing Denied Jan. 2, 1940.

      Thompson & Barwise and Luther Hudson, all of Fort Worth, J. R. Porter, of Clarendon, and Simpson, Dorenfield & Fullingim, of Amarillo, for appellant.
    James Spiller, of Panhandle, and W. T. Link, of Clarendon, for appellees.
   JACKSON, Chief Justice.

The appellees, J. W. Bozeman and Bessie M. Bozeman, husband and wife, instituted this suit in the District Court of Donley County, Texas, against the appellant, Fort Worth & Denver City Railway Company, to recover $20,000 damages for the death of their son, James Henry Bozeman, nineteen years and eleven months old, who died as the result of a collision at a railroad crossing between an automobile driven by his grandfather in which the deceased was riding as a guest and one of appellant’s passenger trains approximately eight miles west of the city of Clarendon.

The appellees alleged that on the occasion of the collision and death of their son he was traveling in a southerly direction across appellant’s track on a public road; that the road crossed the tracks just east of a cut approximately 850 feet in length and varying in depth from three to fifteen feet on account of which it was difficult to see a train approaching.

The appellees charge appellant with negligence in operating- the train at an ex:-cessive rate of speed, failure to give warning of the train’s approach either by ringing the bell or blowing the whistle, failure to keep a continuous and vigilant lookout, failure to slow down when going through the cut and approaching the crossing and failure to keep a danger signal at such crossing, each of which acts is alleged to be the proximate cause of the death of James Henry Bozeman.

The appellant answered by general demurrer, general denial, admitted the collision at the crossing and that the death of James Henry Bozeman resulted there.from, but specially denied negligence or liability; pleaded that its tracks ran approximately east and west; that the passenger train was approaching the crossing from the west and the automobile was approaching the crossing from the north; that James M. Bozeman and his two grandsons, James William and JameS Henry, the deceased, Had been to a house just north of the railroad, bought some produce and loaded it into a trailer attached to the car, after which they got into, the car which was driven by the grandfather and traveled south to the crossing; that the automobile passed over the old highway,, which extended parallel to and north of the tracks of the railroad, and while the deceased was crossing the old highway he had a clear and unobstructed view of the train; that the whistle was blown and the bell rung; that the deceased and the other occupants of the car were familiar with the crossing; that each failed to maintain a proper lookout in the direction from which the train was approaching while crossing the old highway; each failed to listen for the approach of the train or the signals, all of which it asserts was negligence- and the proximate cause of the death of the deceased.

No attack is made on the sufficiency of the pleading and what we have stated, together with the findings of the jury herein given, will, we think, be sufficient to reveal the matters pleaded and the questions presented for review.

The case was submitted to the jury on special issues, many of which are immaterial to this appeal, but the substance of those we deem essential to a discussion of the assignments urged will be stated.

By their verdict the jury found in effect that appellant was guilty of negligence in failing to blow the whistle eighty rods from the crossing, in failing to ring the bell, in failing to keep a lookout, in failing to maintain a danger signal at the crossing, in operating its train at a dangerous rate of speed, and that the crossing was obstructed. The jury acquitted James Henry Bozeman of contributory negligence; found there was no joint enter-prize between the occupants of the car; that the collision was not an unavoidable accident and that the negligence of James M. Bozeman, the grandfather, was not the sole proximate cause of the collision and awarded appellees damages in the sum of $2,775.

Upon these findings the court rendered judgment for the appellees for the amount of the verdict and the railroad appealed. •

The appellant assails as erroneous the charge of the court on the measure of damages for the reason that it failed to affirmatively exclude from the consideration of the jury the loss of the society and companionship of the deceased by appellees.

The testimony is that the deceased still resided with his parents in their home.

The court in his charge on the measure of damages instructed the jury that in ascertaining the amount of such damages they should consider what the evidence disclosed relative to the value in dollars and cents if paid now would compensate ap-pellees for the services of the deceased from the time of his death until he became twenty-one years of age, but to deduct from the amount so found the moneys they would have expended for his maintenance during such period. He also charged that appellees should be compensated for any pecuniary benefit the evidence showed they had a reasonable expectation of receiving from the deceased after he reached the age of twenty-one years. The charge on the measure of damages concludes in this language: “In determining the damages sustained by plaintiffs by reason of the death of said James Henry Bozeman you are instructed that you cannot take into consideration the mental suffering, grief or bereavement incident to the death of the said James Henry Bozeman on the part of the plaintiffs.” The instruction did not exclude as damages the loss by appel-lees of the society and companionship of deceased.

The appellant presented written objections and exceptions to the charge because it did not affirmatively exclude from the jury’s consideration as damages the loss of the society and companionship of the deceased by the appellees, and in its written objections requested the court to affirmatively instruct the jury not to allow appel-lees anything for such loss of the companionship or the society, but did not write and present to the court on a separate sheet of paper a special charge.

The appellees contend that the charge of the court is not erroneous but if it is, the error was not. properly preserved since appellant failed to prepare and request the court to give a special charge eliminating such error.

There has-been some.confusion and diversity of opinion among the courts relative to when an objection was sufficient to preserve an; error, and when a special charge should be requested; however, it is apparently settled that if the error complained of is a complete failure to submit an issue raised by pleading and evidence such issue must be prepared and submitted in writing to the court to preserve the error but, if the trial court has attempted to submit the issue and has submitted it erroneously or defectively, an objection is sufficient. Without an. extended discussion of the question we think it sufficient to quote what Chief Justice Cureton says in. Gulf, C. & S. F. R. Co. v. Conley et ux., 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183: “In the instance of a defective or erroneous charge on a subject or issue which the court has undertaken to charge upon, the objections required by article 1971 take the place of special charges and render it unnecessary that the latter be tendered. It is immaterial whether the matter objected to in the court’s charge is a mere defective or incomplete statement of the law or issue to be determined, or is affirmatively erroneous; objections which sufficiently specify the error will preserve the point on appeal, without the necessity of again directing the court’s attention to the same subject by special charge.”

The court undertook to charge on the measure of damages and it is obvious that the charge was a defective or incomplete statement of the law; the objections specifically specified the error and appellant was not required to prepare and tender to the court a special charge to preserve the error. Harris v. Leslie, Chief Justice et al., 128 Tex. 81, 96 S.W.2d 276; Texas & N. O. R. Co. v. Crow et al., 132 Tex. 465, 123 S.W.2d 649; Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683; Hines v. Kelley, Tex.Com.App., 252 S.W. 1033.

The courts have frequently announced that in an action for damages claimed for death the instruction should expressly exclude from the consideration of the jury grief, loss of society, companionship, mental pain and anguish, and that the failure to do so is reversible error. 33 Tex.Jur. 214, Section 130.

In International & G. N. R. Co. v. McVey et al., 99 Tex. 28, 87 S.W. 328, 329, the court charged the jury, in effect, to assess the damages at such amount if paid then would fully compensate the plaintiffs for the actual damages. He further instructed them: “You will not allow the plaintiffs anything by way of solace for the death of said Edward McVey, or for any sorrow or anguish suffered by them as the result of such death.” An able' discussion of the question follows and the court concludes that the charge was reversible error because it.failed to “Exclude compensation for the loss of the society or companionship of the deceased.”

In International & G. N. R. Co. v. Glover et al., Tex.Civ.App., 88 S.W. 515, 519, it is said: “It is true, the charge under consideration instructs the jury that in fixing the amount of their verdict they will allow plaintiffs such sum of money as will, if paid then, be a fair compensation to them for the ‘pecuniary loss’ sustained by them in the death of the husband and father, and that they will only consider the pecuniary loss to plaintiffs by reason of the death of the husband and father; whereas the charge in the McVey Case instructs the jury to find in favor of plaintiffs damages in such amount as, if paid then, would fully compensate them for the ‘actual damages’ sustained by them, thus using the words ‘actual damages,’ instead of the words ‘pecuniary loss,’ used in the charge under consideration. We do not think the use of the words ‘pecuniary loss,’ in the connection in which they are used, would distinguish this charge from that in the McVey Case with respect to its misleading effect upon the minds of the jury. While, by the use of the words ‘pecuniary loss’ in the connection they are employed in the charge under consideration, the jury are instructed generally as to the proper measure by which the damages were to be estimated, still, as in the McVey Case, the court undertook to instruct the jury as to the damages to be excluded, and omits to exclude damages or compensation for the loss of the society or companionship of the deceased.”

See also Taylor B. & H. Ry. Co. v. Warner, 84 Tex. 122, 125, 19 S.W. 449, 20 S.W. 823; Gulf, C. & S. F. R. Co. v. Farmer et al., 102 Tex. 235, 115 S.W. 260, and authorities cited.

This assignment under the admitted facts and these authorities presents reversible error.

The appellant urges as error the action of the court in refusing to submit its special requested issue No. 2, which is in the following language: “Do you find from a preponderance of the evidence that James Henry Bozeman failed to maintain a proper lookout in the direction from which the train was approaching when the car was on the old highway? Answer ‘Yes’ or ‘No’.” This question is followed by a correct definition of “proper lookout” and' an appropriate issue on proximate cause.

The appellees contend that the issue, the failure to give which is attacked as error, is covered by the court’s main charge in special issue No. 23, which is as follows: “Do you find from a preponderance of the evidence that the deceased, James Henry Bozeman, on the occasion of the collision between the automobile driven by deceased, James M. Bozeman, in which he was riding, and the defendant’s train, that the deceased, James Henry Bozeman, failed to keep a proper lookout for approaching trains? Answer ‘Yes’ or ‘No’. Answer: ‘No’.”

We herewith insert a plat of the crossing and the immediate vicinity thereof which will assist in explaining the respective contentions of the appellant and appellee. occurred, and continues to and connects with the paved highway. At the farm house north of the old highway the deceased and his companions loaded some produce into the trailer attached to the car, entered the “road 22 ft. wide” through the gate, crossed the old highway and proceeded to the crossing on the railroad,

This plat together with the evidence- discloses that the railroad extends approximately east and west; that immediately north and parallel to the railroad is the old highway and about 150 feet south of the center of the railroad and parallel thereto is the paved highway. That a road designated on the map “road 22 ft. wide” runs in a northerly and southerly direction, extends to and crosses the old highway and the railroad crossing where the- accident which is 259 feet from the gate. The speed of the automobile is not shown.

The appellees plead that the cut immediately west of the crossing, the lay of the land and the direction of the railroad made it difficult for a person approaching the crossing from the north on the “road 22 ft. wide” to see a train coming.

The testimony shows that .a cut beginning at or near the crossing involved extends westward through a hill with an undulating surface. At 100 feet west of the crossing, the bank of the cut is 3.3 feet above the rail; at 200 feet, 6.6 feet; at 400 feet, 2.4 feet; at 500 feet, 2.6 feet; and at 600 feet, again 3.3 feet; at 700 feet, 0.7 of a 'foot; at 900 feet, 2 feet 6 inches, from where the elevation gradually increases until at a distance of 1600 feet.it is 14.5 feet, from which point the elevation decreases, and at 2100 feet is 9.4 feet. The smoke stack of the engine was 15 feet 3½ inches above the track; the baggage car was 13 feet 11 inches and the pullman cars were 13 feet, 6 inches.

The appellant alleged that a person traveling the “road 22 ft. wide” toward the railroad crossing while upon the old highway would have an open and unobstructed view of a train approaching the crossing. The testimony shows, we think, without contradiction, that there was a depression between the south line of the right of way of the old highway — which coincides with, the north line of the railroad right of way —and the railroad crossing for a distance of approximately 30 feet north of the track where a party approaching the crossing would have been unable to have seen a coming train, but any signal or noise made by the train could have been heard. A preponderance of the ’testimony reveals, however, we think, that ■ while crossing the right of way of the old highway, which was 60 feet wide, a person would have practically an unobstructed view of an approaching train from the west for a distance of one-half mile or farther. The hearing of the grandfather was not acute; he was seventy years old, was driving the car, and together with his two grandsons was killed in the collision. No eye witness testified relative to the tragedy and the conclusions drawn are based upon circumstantial evidence. The railroad crew testified that the whistle was blown and the bell rung, and there is testimony from disinterested witnesses that the rumbling noise made by the train could be heard, one lady stating she heard this noise thirty or forty seconds before the crash.

The deceased and his companions had crossed the railway one time, if not three, the same morning shortly preceding the collision. The jury found that by the exercise of ordinary diligence the deceased would have known he was approaching a railroad crossing. A railroad track proclaims the danger of crossing it and imposes upon a traveler a positive duty to avoid a collision with a train. San Antonio & A. P. R. Co. v. Singletary, Tex.Civ.App., 251 S.W. 325, 326.

The deceased was under a similar, if not an equal duty, as the driver of the car to exercise ordinary diligence to look and listen for a train as he approached the crossing. Texas Mexican R. Co. v. Hoy, Tex.Com.App., 24 S.W.2d 18; Anderson v. Texas & New Orleans R. Co., Tex.Civ.App., 63 S.W.2d 1079.

The appellant specifically pleaded that the deceased could have seen the train approaching had he looked while crossing the old highway. The testimony raised this and whether or not he exercised ordinary care in failing to look while crossing the old highway as fact issues to be determined by the jury. The language “failed to keep a proper lookout for approaching trains” in the court’s main charge would have been satisfied had he looked from any point from the time he came out of the gate into “road 22 ft. wide” until he reached the crossing where the collision occurred. The appellant was entitled to the submission of any affirmative defense pleaded and made an issue by the facts and we think under this-record the issue requested by appellant should have been submitted. It has been held to be a fact issue for the jury whether a party having once looked for a train as-he approached the crossing should look again before he reaches the track. Barron v. Houston, E. & W. T. R. Co., Tex.Com.App., 249 S.W. 825, 828. It has also been announced to be a jury question whether a party approaching a railroad crossing who-looked a minute and a half prior to the time his truck collided with a train should have looked again; how far he looked and whether an ordinarily prudent person, would have looked again; or how far such person would have looked. Jones et al. v. Louisiana Western R. Co., Tex.Com.App., 243 S.W. 976, 980.

It has also been held that a party whose view was obstructed as he entered the right of way approaching a railroad crossing was guilty of negligence in failing to-stop and look for an approaching train 13½ feet from the center of the railroad track where he would have had an unobstructed view. Higginbotham et ux. v. International-Great Northern R. Co. et al., Tex.Civ.App., 99 S.W.2d 338.

In Fort Worth & D. C. R. Co. v. Rowe,. Tex.Civ.App., 69 S.W.2d 169, Judge Martin, formerly of this court, holds that an independent act of a third party if it is the sole cause of an injury does, not have to be a negligent act in order to be successfully urged by the party to whom such injury is charged. See also Dallas Ry. & Terminal Co. v. Stewart, Tex.Civ.App., 128 S.W.2d 443.

We deem it sufficient to say that if the testimony on another trial raises a fact issue as to whether any act or conduct of James M. Bozeman was the sole cause of the collision that the charge should not limit such act or conduct to his negligent acts or conduct.

Relative to the complaint directed at the issue submitting unavoidable accident we refer the court to the suggestion of the Supreme Court in Gulf C. & S. F. R. Co. v. Giun et al., 131 Tex. 548, 116 S.W.2d 693, 116 A.L.R. 795.

It is not necessary to discuss the other •errors assigned because they should not, if error, arise on another trial.

Neither do we think it material to a disposition of this appeal to pass on appellant’s motion asking to be allowed to exhibit to this court the moving picture of a train approaching the crossing where the collision occurred.

The judgment is reversed and the cause remanded.