author: MURRAY, Justice.

text:
    PRYOR et al. v. NEW ST. ANTHONY HOTEL CO.
    No. 10946.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 11, 1940.
    Rehearing Denied Jan. 15, 1941.
    Denman, Franklin & Denman and Carter & Lewis, all of San Antonio, for appellants.
    Johnson & Rogers, of San Antonio, for appellee.
   MURRAY, Justice.

This suit was instituted by Mrs. Myra S..Pryor against New St. Anthony Hotel ■Company to recover damages resulting from personal injuries which she sustained in a fall while entering the Hotel Company’s coffee shop as an invitee and customer.

This is the second appeal of this case. Our opinion on the first appeal is to he found in 132 S.W.2d 620.

The second trial, from which .this is an appeal, was to a jury which found: (Issue 1) that Mrs. Pryor slipped down in the ■defendant’s coffee shop; (Issue 2) that there was no water at the place where the plaintiff slipped; (Issue 6) that the waxing and polishing of the floor had not produced a slippery condition at the place where the plaintiff slipped; (Issue 9) that the rubber mat or a part thereof slipped on the floor when Mrs. Pryor stepped on the mat; (Issue 10) that the defendant was not negligent in having said unfastened mat on the floor at said locality; (Issue 12) that plaintiff’s fall was the result of an unavoidable accident; (Issues 14-17) that the plaintiff did not assume the risk and that she was not guilty of contributory negligence and that the fall was ■not caused solely by her physical condition; (Issue 18) that because of the injuries sustained by reason of her fall Mrs. Pryor was damaged to the extent of $17,-. 500.

The trial court entered judgment for defendant and Mrs. Pryor has prosecuted this appeal.

Appellant contends that the jury was guilty of misconduct requiring a re■versal of the judgment, because during their deliberations while the jury were ■divided as to what answers should be made to Issues Nos. 2 and 6, some of the jurors .stated, in substance, that it was immaterial Row they answered these issues because Mrs. Pryor would recover her damages regardless of how these issues were answered, and that thereby some of the jurors were induced to answer these issues “no” when they really felt from the evidence that the issues should be answered “yes.”

Five jurors were called to testify upon this question.

Henry Waller,, a juror, testified, in effect, that after the jury answered issue No. 1 •“yes” and while they were considering issue No. 2, some of the jury having indicated they thought the issue should be answered that there was water at the place where Mrs. Pryor fell and others having indicated that the issue should be answered “no,” one of .the jurors, Mi. Boatner, asked the question whether or not they were going to allow Mrs. Pryor any damages, and that the jury agreed to allow her some damages. It. was then suggested by some of the jurors that it was immaterial how they answered the issues, that she would get her damages just the same. Waller admitted that this discussion influenced him to answer issues Nos. 2 and 6 “no”.' when he really believed from the evidence that they should have been answered “yes.”

On cross-examination Waller testified, in effect, that each time it was mentioned that the answers were immaterial as Mrs. Pry- or was going to get damages in any event, some of the jurors would speak.up and say that they were not concerned with the effect of their answers and that it was .improper for them to consider such matters. He further testified, in effect, that he answered each issue separately and right down the line to the best of his ability in keeping with the charge and the evidence.

J. A. Thompson, another juror in the case, called as a' witness, testified, in effect, as follows: That while the jury was deliberating and after they had answered some of the questions and were going back over their answers the question arose as to whether Mrs. Pryor could recover if they answered issue No. 2 “no,” and that it was argued by some of the jurors that only if they desired to give Mrs. Pryor the full $50,000 she was suing for was it necessary to answer question No. 2 “yes,” but that she could recover a part of what she was suing for even if this issue was answered “no.” ■ He agreed to answer this issue “no” after much discussion along the line above set out, although he believed there was water where Mrs. Pryor slipped and fell. He also agreed to answer issue No. 6 “no” after this discussion, when he believed from the evidence that the waxing and polishing of the floor produced a slippery condition at the place where Mrs. Pryor fell down.

On cross-examination he testified that he heard the court, and the lawyers in their argument, tell the jury that they should answer each question separately and one at a time right down the line, and that each question should be answered according to what the jury believed the evidence to be and that he made his answers to the best of his ability, under the evidence, just like the court told him to do. That when they would get to arguing about a question “that we couldn’t give the woman anything unless we answered the questions differently, some one • would speak up and say we were not concerned with that; that the court -had instructed us that we were not concerned with the effect of our answers and that we should answer the questions under the evidence and that it wasn’t any of the jury’s business to decide what the effect of the answers were.”

J. F. Scholz, another one of the jurors called as a witness, testified in substance as follows: That when they went out to deliberate upon a verdict they took up each question separately, had their arguments and finally agreed on what the evidence showed. After the jury had answered the questions some one said something about the effect of their answers and that the foreman and another juror told them that it was none of their business what effect the answers would have and that they could not talk about that. The discussion about the effect of the answers came up after the jury had already answered the questions. He also testified, some one mentioned the fact that Mrs. Pryor was a wealthy woman and that the jury on a prior trial did not give her any damages, but that such remark had no effect upon him.

J. W. Riggs, another juror, testified as follows: That while the jury were deliberating upon their verdict some juror said that Mr,s. Pryor was already a wealthy woman and it seemed like she wouldn’t be entitled to anything, or that she wouldn’t want anything. That it was also stated that the cause had been tried before and that the jury did not give her anything on the first trial. He denied that these statements affected his verdict, but admitted that he had given appellant’s attorney a written statement to the effect that he presumed these things led him to agree to the answers that are written to the questions.

He further testified that he had heard some one say that they should answer the questions so that Mrs. Pryor would get something and this happened while they were answering the first twelve questions. He stated this did not affect him. He further admitted that he had given appellant’s attorney a written statement to the effect that he had agreed to certain answers because it was stated that Mrs. Pryor would get the money no matter how they answered the questions. On cross-examination he stated that the jury went out and took up each question and considered it separately and independently and answered it in the way the court told them to do. They answered each question as they found the evidence to be and that they considered each question without regard to any effect it might have on any other question. That they decided to give her some damages when they got down to question No. 18, and before they decided to give her any damages they had already decided the first seventeen questions.

When they were deciding the eighteenth question some one said that the way they had answered the questions she wouldn’t get anything, and that the foreman and another gentleman spoke up and said, “The court has told us that is none of our business ; that we must answer these questions separately and individually and we don’t have anything to do with the effect of the answers,” and that then the discussion ceased.

' On redirect examination he stated that when question No. 2 first came up he answered there was water on the floor where Mrs. Pryor fell. On recross-examination •he stated that the other jurors convinced him that the evidence showed that there was no water on the floor and for that reason he changed his answer. That there was only one witness who testified there was water there and this witness testified both ways.

G. R. Boatner, a juror, testified as follows : While the jury were deliberating on their answer to question No. 2 some thought it should be answered “yes” and some “no.” He asked the question, if they answered it “no” could they still give Mrs. Pryor some damages ? and the foreman and others informed him that they could, and then he changed his answer from “yes” to “no.” That the discussion, influenced him to make the change.

He testified on cross-examination that he remembered the court and the lawyers telling the jury to take each of the questions and answer each question separately and independently as they found the facts to be, and that they tried to answer these questions as they found the facts to be without regard to any effect their answers might have. But then proceeded to state that the answers were made under the circumstances related on direct examination.

No other jurors testified and we are left in the dark as to what their testimony would have been.

After a careful consideration of this evidence, we conclude that the evidence is conclusive that misconduct actually occurred. No juror specifically denies that the remarks were made to the effect that it was immaterial how issues Nos. 2 and 6 were answered. The cross-examination, in effect, concedes that the remarks were made and the inquiry is whether or not each time such remarks were made the foreman, or some other juror, called attention to the fact that such remarks were improper and should not be considered by the jury.

It is a settled rule of law -in this State that to induce a juror to change his answer to a material issue, by the representation on the part of other jurors that it is immaterial how such issue is answered, insofar as plaintiff’s recovery is concerned, constitutes misconduct on the part of the jury. Figula v. Ry. Co., Tex.Civ.App., 131 S.W.2d 998; Dwyer v. Southern Pacific Co., Tex.Civ.App., 141 S.W.2d 961; Harkins v. Mosley, Tex.Civ.App., 134 S.W.2d 706; Walker v. Quanah Ry. Co., Tex.Com. App., 58 S.W.2d 4; Warnack v. Conner, Tex.Civ.App., 74 S.W.2d 719; Allcorn v. Fort Worth Ry. Co., Tex.Civ.App., 122 S.W.2d 341; Mann v. Cook, Tex.Civ.App., 11 S.W.2d 572; Abrams v. Bradshaw, Tex.Civ.App., 2 S.W.2d 917, affirmed, by Supreme Court, 24 S.W.2d 372; Harvey v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 261 S.W. 197, affirmed by Supreme Court, 276 S.W. 895; Coons v. Culp, Tex.Civ.App., 278 S.W. 914.

The overt act constituting jury misconduct having been clearly established, it is our duty to reverse the judgment and remand the cause for a new trial, unless we can say, upon a consideration of all the relevant testimony, beyond a reasonable doubt, that no injury resulted to appellant. Moore v. Ivey, Tex.Com.App., 277 S.W. 106, 107; Estep v. Bratton, Tex.Civ.App., 24 S.W.2d 465, 469; International-G. N. R. R. Co. v. Cooper, Tex.Com.App., 1 S.W.2d 578, 579; St. Louis S. W. Ry. Co. v. Smithhart, Tex.Civ.App., 9 S.W.2d 146, 151; Kennard v. Kennard, Tex.Civ.App., 26 S.W.2d 336, 337; Simmonds v. St. Louis, B. & M. Ry. Co., Tex.Com.App., 29 S.W.2d 989.

Two of the five jurors who testified stated on direct examination that they were influenced by the misconduct. On cross-examination it was shown that they did their best to answér the issues under the instructions of the court and from the evidence, and it was also shown that when the improper statements were made the foreman and other jurors would admonish the jury that they should not consider such matters. However, under all the testimony we are unable to say that, beyond a reasonable doubt, no injury resulted to appellant by reason of the improper remarks, and, unless we can so say, the judgment must be reversed. Texas & P. Ry. Co. v. Gillette, 125 Tex. 563, 83 S.W.2d 307. In Hines v. Parry, 238 S.W. 886, 888, the Commission of Appeals said:

“It is true that the members of the jury who are questioned strenuously deny that their minds were affected by the statements made to them. But this is only natural. Men are slow to admit such influence in their deliberations. They may not have realized that they were being influenced.
“Feeling that the communication made was such as leaves it doubtful as to whether or not the verdict' of the jury, in part at least, was not influenced against the defendant, we recommend that the judgments of the trial court and Court of Civil Appeals [227 S.W. 339] be reversed, and remanded for a new trial.”

To the same effect is Glazier v. Roberts, Tex.Civ.App., 108 S.W.2d 829; Republic Insurance Co. v. Hale, 128 Tex. 616, 99 S.W.2d 909; Texas & P. Ry. Co. v. Van Zandt, Tex.Com.App., 44 S.W.2d 950; City of Amarillo v. Rust, Tex.Civ.App., 64 S.W.2d 821.

We are at least left in doubt as to what effect this misconduct may have had upon the actions of the seven jurors who were not called to the witness stand by either party. Taylor v. Alexander, Tex.Civ.App., 34 S.W.2d 903.

The judgment will be reversed and the cause remanded.


source: Caselaw Access Project

author: GRAVES, Justice.

license: Public Domain

text:
    EBERT et al. v. SMITH et al.
    No. 11023.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 14, 1940.
    Rehearing Denied Jan. 16, 1941.
    Second Motion for Rehearing Denied Feb. 20, 1941.
    P. Harvey and A. F. Sundermeyer, both of Houston, for appellants.
    W. P. Hamblen and W. P. Hamblen, Jr., both of Houston, for appellees.
   GRAVES, Justice.

This appeal is from a judgment of the 11th District Court of Harris County, entered both upon a jury’s verdict in response to. special issues submitted and also upon what the court found to be the undisputed evidence, divesting out of the appellants and investing in the appellees the title and possession of 94 acres of land in the John Waugh Survey in Harris County, Texas, — subject to various mineral rights and interests disposed of as between the parties thereto — the land and the mineral interests and all the parties to the judgment being fully described therein.

The decree further specifically denied the appellants1' claim that the judgment in cause No. 108965 in the district court of Harris County, Texas, styled R. C. Smith et al. v. Daniel Alexander et al., of November 28 of 1924, was void and that, in consequence of its invalidity, the appellees herein had been mere trustees of the 94 acres involved, holding the title thereto for the benefit of the appellants, and affirmatively not only validated that judgment as vesting the title to the 94 acres in R. C. Smith' and wife, Julia Smith, as against these appellants, 'but also expressly adjudicated that no such claimed trusteeship in the appellees for any of the appellants existed.

The fact-issues submitted under the court’s th.eory of the case, together with the jury’s answers thereto, were these:

“No. 1. Do you find from a preponderance of the evidence that R. C. Smith has had peaceable and adverse possession of the land sued for by plaintiffs, cultivating, using or enjoying the same, and paying all taxes thereon before delinquency, claiming under a deed or deeds duly registered for five consecutive years prior to- March 16, 1938? Answer: ‘Yes’.
“No. 2. Do you find from a preponderance of the evidence that R. C. Smith has had peaceable and adverse possession of the land sued for by plaintiffs, cultivating, using, or enjoying the same for a period of ten consecutive years under a claim of right prior to March 16th, 1938? Answer: ‘Yes’.
“No. 3. Do you find from a preponderance of the evidence that none of the plaintiffs herein had any knowledge of the judgment rendered in cause No. 108,965, styled R. C. Smith v. Daniel Alexander, et al., on the 28th day of November, 1924, more than four years before March 16, 1938, the date the plaintiffs filed this suit? Answer: ‘They did not have such knowledge’.
“No. 4. Do you find from a preponderance of the evidence that plaintiffs used reasonable diligence to ascertain the entry of the judgment of November 28, 1924, in cause No. 108,965, styled R. C. Smith v. Daniel Alexander, et al. ? Answer: ‘They did not use such diligence’.
“No. 5. Do you find from a preponderance of the evidence that if plaintiffs had exercised reasonable diligence, as that term has been hereinbefore defined for you, they would have discovered more than four years before the filing of this suit on March 16, 1938, that judgment had been rendered against them in cause No. 108,-965, styled R. C. Smith v. Daniel Alexander et al.? Answer: ‘They would have discovered the same’.
“No. 6. Do you find from a preponderance of the evidence that the plaintiffs, Herbert Ebert, Lucille Leahy, Blanche O. Ebert, Mrs. Mary E. Ebert and Edna Lea-hy McBeth, or any one or more of them, did not have notice or knowledge of any fact or circumstances, acquired at any time before four years before the 16th day of March, 1938, that should have put them upon inquiry as to whether judgment had been rendered against them in cause No. 108,965, styled R. C. Smith v. Daniel Alexander et. al., for the land involved in this suit? Answer: ‘They did have such notice’.
“No. 7. Do you find from a preponderance of the evidence that a citation in cause No. 108,965, R. C. Smith v. Daniel Alexander et al., was not issued and duly published in a newspaper published in Harris County, Texas, for four consecutive weeks, on the amended petition of the plaintiff filed in said suit on May 28, 1924? Answer: ‘It was issued and duly published’.”

As the quoted special-issues disclose, this suit was originally filed on March 16 of 1938, the record otherwise reflecting that it was then in the form of an action in trespass to try title to the land involved; on June 15 of 1939, thereafter, the plaintiffs, in lieu of their original and two amended petitions, filed their third amended original petition, upon which the trial now under review was had.

The appellants are the widow and heirs of George H. Ebert, while the appellees are R. C. Smith and the minor children of himself and his deceased wife, Julia Smith.

Much of the record, made below has been eliminated by this declaration in the appellants’ brief :

“Appellants concede that under the evidence before the court, the appellees are entitled to a half interest in the land, and this appeal involves only the title to the other one-half interest.
“Appellants * * * duly filed their appeal-bond, appealing only from that part of the judgment denying plaintiffs any recovery against R. C. Smith and the Smith minors, and did not appeal against the other defendants.”

The appeal-bond verifies the just-quoted reaches of the appeal, so that, in any event, the judgment as affects all other parties and issues appertaining exclusively to them than'the appellants Ebert, on the one hand, and the appellees Smith, upon the other, not having been challenged in this court, has become final as rendered below.

As presaged in the preceding statement, appellants’ major contention is that the trial court should have upheld their claim that the prior judgment against themselves for this same land in No. 108,965, Smith v. Alexander, was void under the evidence they adduced in their attack upon it (the appellees having rested upon that without presenting any of tlieir own), leaving the title to a one-half interest in the 94 acres in the appellees as mere trustees for the benefit of the appellants, and, as incident to that holding, should further have decreed such interest in them.

On appeal, they ask a reversal of the adverse action taken below, and a rendition here for the one-half interest so coveted. But this court, after a careful review of the able briefs and arguments for both sides, is constrained to .hold the judgment to have been correct, mainly upon these considerations:

It may be conceded:

(1) That appellants’ cause of action, as declared in their trial petition hereT in, was a personal one by way of direct attack upon the judgment in cause No. 108,965, and that the same was shown to have been at least voidable because based upon a fatally defective nonresident citation against them, but that, in consequence of its being outstanding, they had no cause of action to recover the land involved, unless and until that judgment was first set aside, under these authorities, as relied upon by them: Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025; Garza v. Kenedy, Tex.Com.App., 299 S.W. 231; Port Arthur Milling Co. v. Beaumont Mills, 105 Tex. 514, 143 S.W. 926.

(2) That R.S. Articles 5509, 5510, relating exclusively as they do to actions for the recovery of land, and prescribing specifically that limitation in such proceedings commences to run only “after cause of action shall have accrued”, had no application to this suit as so brought to vacate a pre-existing judgment, regular on its face, for alleged inherent infirmities.

(3) That the judgment in such cause No. 108,965, Smith v. Alexander, was one in trespass to try title, regular on its face, and purported to divest the appellants of all title to this land and invest it in the appellees, and that the appellees did not in this suit specifically plead any other statute -in defense of appellants’ suit than those applying to limitation in suits for the recovery of land; especially did they not plead the four-year statute of limitation relating to other actions than those to recover land, No. 5529; R.S. Article 5540; Moore v. Snowball, 98 Tex. 16, 81 S.W. 5, 66 L.R.A. 745, 107 Am.St.Rep. 596; 28 Tex.Jur. 286, 289; William Cameron & Co. v. Collier, Tex.Civ.App., 153 S.W. 1178; Selz Schwab & Co. v. Smith, Tex.Civ.App., ,44 S.W.2d 455; Griffin v. Burrus, Tex.Civ.App., 24 S.W.2d 805.

Still, it is thought, they have become “hoist with their own petard”, in that under their pleadings, their own exclusive proof, and their admissions in arguments, they have disclosed a situation and state of facts to which a court of equity was authorized to and should have applied the doctrine of laches or stale demand ; that is, it is made plain that, however abortive the eliciting from the jury of the answers to the first two quoted issues undertaking to apply the five and ten years’ statutes of limitation were, the trial court was correct in entering the judgment it did on the answers to the remaining five special issues, along with its own findings from the “undisputed evidence”, presumptively at least upon the theory — while not so denominated — that appellants had been guilty of inexcusable delay in instituting this suit to vacate the pre-existing judgment against them, when they had been in possession of facts which at least charged them with notice of its existence more than four years before its entry. In other words, appellants make very plain that they never had any cause of action, nor could have had any, to recover this land, unless and until they had first gotten rid of the pre-existing judgment for it against them, and further, perhaps in invi-tum on their own part, at the same time, that they had really delayed for 14 years—from November 28 of 1924 until March 16 of 1938—without any sufficient excuse for not finding out that such prior judgment had been so rendered against them. That long and inexcusable delay upon their part, under well settled authority in Texas, made it the duty of the court of equity to which they applied, in passing upon their appeal to its powers to relieve them from that open and public adjudication they were in duty bound to know about, to, instead, deny their delayed request as a stale demand. 27 Tex.Jur., Laches and Stale Demand, pars. 1 (footnote 2), 3 (footnotes 14 and 17), 4 (footnote 9), 6 (footnotes 20-1), 7 (footnote 9), 11 (footnotes 12 and 13); Montgomery v. Noyes, 73 Tex. 203, 11 S.W. 138; Slaughter v. Coke County, 34 Tex.Civ.App. 598, 79 S. W. 863, error refused; Southall v. Southall, 6 Tex.Civ.App. 694, 26 S.W. 150, error refused; 21 C.J. Equity, pars. 217-229, and par. 251, and footnote cited cases.

Neither is it any answer to say, as appellants in effect do, that the appel-lees neither specifically pled any such defense, nor cited any particular statute within the purview of which it came; this, for the reason that they did plead not guilty of any of the wrongs, trespasses, and other derelictions appellants charged them with, and that was plainly sufficient, under the Texas authorities just cited; not only so, but the able trial court in its quoted questions to the jury, Nos. 3 to 6, inclusive, in effect held, and rightly so, that the cited four-year statute, R.S. Article No. 5529, constituted at least a minimum period for such a defense, wholly independent of the other issues of limitation it so submitted under the first two inquiries.

Moreover, while that has not been properly challenged, the evidence was amply sufficient to sustain each and all of the findings under those three issues.

Wherefore, on the coming in of the showing made in appellants’ own evidence that they had been so charged with notice of facts which would have apprized them of the existence of the old judgment more than four years before they made any move whatever — indeed, as indicated, practically 14 years — to get that judicial blackout to any title to the land they might have had set aside, they had sinned away their day of grace in making their first move to do it so belatedly.

Appellants many times in their arguments freely conceded that the old judgment “divested appellants of all title to the land, and that as long as that judgment remained in force appellants had no cause of action in a suit of trespass to try title” ; hut they seem to lose sight of the fact that it also at the same time left them with nothing hut such an equitable or executory right of action, if any, to have it set aside as only a court of equity could take cognizance of; and that sort of an action is clearly subject to the defense of stale demand or laches; see authorities cited supra.

Nor does it become necessary, under the undisputed findings herein adverted to, to determine just when that so-resulting and remaining right became barred in this instance; because, as the trial court perceived, in specifying in effect, in the inquiries to the jury, that it must have continued more than four years, that is sufficient. Under the cited authorities the length of time needful to constitute a bar for laches seems to depend upon the, circumstances of the particular case, the courts of equity being inclined to apply the time prescribed by statute for corresponding legal rights or remedies, which in Texas would be the four-year statute referred to.

Further discussion is deemed unnecessary, since these conclusions determine the merits of the appeal; with the interpretation above set out as to what is left here involved for determination upon appeal, the judgment will be affirmed.

Affirmed.

On Appellants’ Motion for Rehearing.

Appellants’ motion for rehearing questions this court’s original findings of fact in several particulars, among them one finding that their suit herein — as originally filed and prosecuted prior to their amended pleadings — was one in trespass to try title for the land here involved, but, as appellees’ reply to such motion reflects, they fail to refute such findings, especially the one as to the original character of their suit; while their original petition is not a part of the record, it conclusively otherwise shows that finding of this Court to have been correct; it is, therefore, reiterated.

In further answer to the appellants’ motion, appellees re-assert their original counter-proposition No. 1 to appellants’ claims, as follows: “The undisputed evidence showing that the appellees entered into possession of the property in controversy in the early part of 1923, and remaining in actual, physical possession adverse to the appellants and all other parties since that time, and a deed having been executed to appellee R. C. Smith and his wife, Julia Smith, and the jury having found on the issues of Five and Ten years possession in his favor, the appellants have no interest in the property in controversy, as any cause-of-action which they may have had arose on the date of the entry of R. C. Smith’s possession.”

Independently of the doctrine of laches, it is held that this proposition is sound, and, since the ten years’ possession and occupancy therein declared upon was affirmatively pled in answer to the appellants’ suit and supported not alone by the jury’s verdict but also by the undisputed evidence, that resulting situation alone entitled the appellees to the judgment rendered in their favor.

The motion for rehearing will accordingly be refused.

Refused.


author: YOUNG, Justice.

text:
    JAX BEER CO. v. TUCKER.
    No. 12925.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 30, 1940.
    Rehearing Denied Dec. 21, 1940.
    Kennemer & Armstrong, of Dallas, for .appellant.
    Johnson & Oliphant, of Dallas, for ap-pellee.
   YOUNG, Justice.

Appellant is here complaining of an adverse jury verdict and judgment in a damage suit brought by appellee Tucker. In making a brief statement of the cause and •its disposition below, we will refer to the parties as they were originally styled. Plaintiff’s action was for personal injuries following an assault made upon him, on June 4, 1938, by Buddy Dyer, an employe of the Beer Company. The petition alleged that said Company was engaged in distribution and sale of beer in Dallas, and employed a number of men for the purpose of making such sales and deliveries, among them being Dyer, whose authority was to operate one of defendant’s trucks, to sell and deliver beer, and collect therefor; that he, Tucker, was an employe of Katz Market (a customer of defendant), and that Dyer made a sale for his employer to Katz and had collected and receipted for same; that after Dyer had departed, an error was found in the amount collected, and upon Dyer’s next call at the Market, the error was brought to Dyer’s attention; whereupon, after an exchange of words, Dyer struck him with great force and violence, inflicting personal injuries for which judgment was sought against defendant, including medical, hospital and X-ray bills. Defendant answered with demurrers and denial, alleging specially that Dyer was not acting within the course of his employment at the time, in that, all beer checked out to Dyer was charged to him, and any credit sales were made at his own initiative andf risk,, the assault being an adventure of such employe alone; that Dyer had departed from the premises of the Katz Kfarket following the argument with plaintiff concerning Jie previous collection, and had completed his mission for defendant before the assault occurred; furthermore, the taltercation was provoked by plaintiff, the»-' employe Dyer acting in self-defense.

The jury answers to given issues were: That the striking of plaintiff by Buddy Dyer immediately grew out of the performance by said Dyer of his duties as an employe of defendant Beer Company; that on all credit sales of Jax Beer made to Katz Market by Buddy Dyer, the latter, individually, did not extend such credit; and that, in striking plaintiff, said Dyer did not reasonably believe he was in apparent danger. Damages were assessed at $3,000, which became the court’s judgment, after defendant’s motion non obstante veredicto had been overruled. A request for peremptory instruction had been urged and refused at the close of the testimony.

It is the chief contention of appellant, presented in successive propositions, that the evidence, viewed most favorably from the standpoint of the successful party, is •wholly insufficient to raise issues, or support findings of liability; in other words, that Dyer, at the time of the assault, was indisputably not acting in furtherance of the affairs of his employer and for the purpose and object for which he was employed. The nature of Dyer’s employment and his duties thereunder on behalf of appellant are not seriously controverted; and taking plaintiff’s version of events leading up to the encounter, we think the record clearly establishes the following facts, viz: At the time, Buddy Dyer was a route salesman for defendant, employed on a straight salary, plus commissions on each case of heer sold, his duties being to deliver beer, collect therefor, and solicit new customers. Each morning, he would receipt for and take out a load of beer, and, at night, report in cash for the part sold and return any cases on hand. Beer not accounted for ■on this daily check would be charged to Dyer. He was not required to settle for cases checked to him in this fashion until Thursday of each week, when the sum totál •of beer not accounted for in cash, for the preceding week, would be deducted from the driver’s salary. It was Dyer’s custom to •extend this week’s interval of credit to certain customers, including the Katz Market, by delivering to such store, the latter part of each week, a quantity of the Jax beverage, issuing to the Market a charge ticket of the amount on a Company form, retaining a copy to collect by. Settlement for this sale would be exacted of Katz by the following Wednesday or Thursday, the ticket, together with the cash, then being turned in by Dyer in his own weekly check up with defendant’s office. The Market owner (Katz) had no charge .account with Jax Beer Company, and had applied 'for none. The arrangement to •settle each Thursday for beer delivered was with Dyer alone, and for the benefit and convenience of the two (salesman and customer). Defendant knew of these weekly credit transactions with Katz, but no ^record, of the Company revealed such dealings except Dyer’s “fill-in sheets”, which •showed disposition of the beer charged to him by his office, pending each Thursday’s check up; and, had Katz, or any other customer, not paid for beer at such time, the .shortage would be deducted from the salary •of Dyer; the latter, in effect, extending the •short-time credit at his own volition and aisk.

On Thursday preceding the assault, Mr. Katz, had made a regular settlement with Dyer, receiving a Company receipt signed by him, reciting “Credit on account for beer $32.75,” which amount was turned over to defendant and credited to Dyer’s account. The correct sum due and owing at the time was 50{⅛- less, or $32.25, but said employe was not aware of the mistake two days later when he made a routine call on the Katz Market, where plaintiff Tucker was in charge. To the .inquiry of Buddy Dyer, if any beer was needed, plaintiff replied: “No, I don’t need any today. * * * I want to see you though, I have got a ticket that there was an error in, a mistake, an overcharge.” Dyer heatedly denied the error, and Tucker’s statement of what followed is quoted:

“Q. What did he say? A. He said, ‘It’s a damned lie, I haven’t made any mistake in a ticket,’ and when he said that, I said, ‘Buddy, there is no need to make a statement like that,’ I said, ‘Mr. Katz has been nice to you, and he figured the ticket, and I know that he is right about it.’ And, so, he said, ‘Well, it’s a damned lie, and I am not going to correct nothing.’ And so I turned around this time; there was a customer that walked up to the front of the meat box, and I told him, ‘That’s all right, go ahead and forget the 50 cent error, if that’s the way you feel about it’ — I said, ‘That’s all right, go ahead and forget the 50 cent error if that’s, the way you feel about it,’ and I turned around to wait on this lady that was there, and when I turned around to wait on her, Buddy walked outside ; and in the meantime, the Falstaff beer man drove up on the Canton Street side, headed west, at the lower end of the box, and I went out the door, and there was an ice box setting between the door and the front of the sidewalk, and I went by the side of the ice box to the Falstaff truck. * * *
“Q. What did you do then ? A. I turned around and walked up the sidewalk towards the corner, where Buddy was standing.
“Q. Where was he standing? A. He was standing with his arms up on the cases, that were setting up between the sidewalk and the edge of the outer curbing of the street.
“Q. Did you use the sidewalk there to stack beer cases there, and exhibit your produce and so forth? A. Yes sir.
“Q. It was an open air place, where you use the sidewalk on both streets? A. Yes sir.
“Q. All right, when you walked up there, now, how long a time elapsed from the time you turned to wait on the woman, or the customer until when you walked up there to Buddy? A. Let’s see — I would say about two minutes.
“Q. Did you say anything to him ? A. I walked up there, and he was standing there, and I figured I could reason with him, and I said to him, ‘Buddy, we have been nice to you; there is no need to do this way.’ And when I said that, he reached and got me with his left hand' — he had his face more to me than he did to the edge of the sidewalk, and he reached and got me with his right hand in my shirt here (indicating) and, I don’t know — whether he pulled me toward him — but anyhow, it was so quick, he hit me in the temple here (indicating), and in my jaw here, with his fist, like that — just pulled me like that and hit me at the same time.”

When defendant’s office was apprised of the affray, prompt investigation was made and Dyer required to return the 50⅜⅞ difference. Though the place of the assault was on the sidewalk, it was likewise within the confines of the open air premises where plaintiff was employed.

We are mindful of the rule that an appellate court is at all times reluctant to disturb jury findings, and is even powerless to do so if same have any factual basis, yet it is equally true that a jury verdict does not bind either the trial court or the appellate body when the evidence does not justify the submission of issues, Thweatt v. Ocean Accident & Guarantee Corporation, Tex.Civ.App., 62 S.W.2d 250 (writ refused) ; the principle just stated being the gist of appellant’s major propositions that this record is insufficient, as a matter of law, to support the judgment under review. On the other hand, appellee is equally positive that the jury answers are entirely consistent with proven facts. First logically to be considered is, the finding that Buddy Dyer did not individually extend credit on the sales made to Katz Market, meaning, in effect, that same was extended by the Beer Company. The testimony of Mr. Katz, plaintiff’s employer, and Mr. Gabbert, office manager of defendant, expressly negatives the existence of any credit relation between these parties; also, the true situation is shown from the evidence of Dyer, the salesman, to be that the custom of a weekly accounting between the latter and his own office, was simply made use of by Dyer with certain of his customers. The result, in no sense, established credit dealings with defendant, Dyer alone being responsible to it for all sales made under such an arrangement. Dyer’s testimony in this connection is quoted:

“Q. * * * did you or not extend any credit to Katz Market at Canton and Akard Streets? A. Yes sir.
“Q. What arrangements did you have in extending that credit, Buddy? A. Well, naturally as a salesman and getting paid on commission, I was trying to boost my sales, and like any other salesman I believed in stocking a man up; he would sell that beer I stocked him. So, I solicited Mr. Katz, and talked to him about setting off 15 cases at a time, and collecting for it the following Thursday. I explained how we checked up, and that the beer charged to me was checked up on Thursdays, and Mr. Katz agreed that it would help him and help me too; I would have more sales, and he would have the beer on display there at the same time.
“Q. When you would deliver beer there, what would you do with reference to making so many tickets? A. If I sold 15 cases, I would put it down; or, say 10 cases, with the deposit included, would be $21.50, and then, I would have, if 10 empties were returned, that would be $5.00, and deducting that, would be $16.50 I would charge him; I would put charge on there, ‘Chg.,’ is the way I would put'it, and let Mr. Katz sign it, and I would keep a copy and let Mr. Katz keep one.
“Q. What did you do with your copy? A. I would keep my copy to collect by.
“Q. Did you ever turn it over to the Jax Beer Company? A. When I collected the money, yes sir.
“Q. If you didn’t collect, who would pay for that beer? A. I would.
“Q. Did you ever have to pay for any that you delivered that way? A. Quite a bit, yet sir.
“Q. But not to Katz Market? A. Never to Katz Market.”

Knowledge by the Jax Company of the above practice was entirely insufficient, we think, to constitute plaintiff’s employer a credit customer of defendant, who had already charged the beer involved to Dyer, to be accounted for on check up day in cash or salary deduction; and the matter of the 50 cents shortage, out of which grew the assault, was a thing personal to the ’^salesman and plaintiff’s market, including the adjustment thereof. Here it must be noted that defendant was'not aware of the shortage when it credited $32.75 to Dyer, or at the time of the assault; and when the error was discovered, it was the salesman who was required to returp the difference.

If we are correct in our conclusion concerning the state of the record relative to the jury finding under Issue No. 3, so, likewise, should he our holding on Issue No. 1, already quoted — that neither finding has support in the relevant testimony. The principle underlying respondeat superior in assault cases has been repeatedly defined by our appellate courts, whereby liability, or not, of the master under given facts can be clearly determined; as Judge Hickman’s forthright discussion of the rule, in Home Telephone & Electric Co. v. Branton, Tex.Civ.App., 7 S.W.2d 627, affirmed in Tex.Com.App., 23 S.W.2d 294, will demonstrate. Counsel for appellee correctly states that the issue is, not whether the particular act (assault) was authorized^ but whether the act done grew out of an authority which the master had conferred upon the servant, Gulf, C. & S. F. R. Co. v. Cobb, Tex.Civ.App., 45 S.W.2d 323; liability usually narrowing to the manner in which the servant performed the authorized act. Admittedly, the assault resulted from Buddy Dyer’s re-j fusal to make the adjustment contended for by plaintiff, but was the servant even impliedly authorized by his master to perform duties of this character? We think not. Dyer’s sole mission for his employer - on the day of the assault, was the sale of beer to this particular customer for the equivalent of cash so far as the Beef Company was concerned. It had charged this market -with nothing; neither had it ever authorized Dyer to reconcile accounts with credit customers; the difficulty arising from Dyer’s personal extension of credit to i Katz, with which, appellant likewise had no concern. And the assaulting party ) (Dyer) not being engaged at the time in anything his employment contemplated, but in a transaction purely personal to plaintiff’s own employer, we conclude, notwith-i standing the jury answers, that the doctrine of respondeat superior is inapplicable to the act of violence here pictured. See National Life & Accident Ins. Co. v. Ringo, Tex. Civ.App., 137 S.W.2d 828 (writ refused), and authorities there cited and discussed. Although from another jurisdiction, the early case of McDermott v. American Brewing Co., 105 La. 124, 29 So. 498, 52 L.R.A. 684, 83 Am.St.Rep. 225, is quite analogous in fact. There the claimant sought to hold the Brewing Company in damages for an assault at the hands of its (defendant’s) employe, who was a Company wagon driver, selling and distributing its products to customers. We quote from the headnote of the court: “* * * Plaintiff’s employer was one of defendant’s cash customers, to whom the driver was to deliver beer for cash. The driver delivered beer to him, and did not require the cash. The day after the sale he called for the price, and, as it was not paid, he sought to take matters in his own hands, and resorted to violence. The agreement between the driver of the wagon and the defendant was that cash would be required and brought back to the factory for the beer in his charge for sale, and, if he failed to return either the cash or the beer, he would be made to pay his employer by deducting the price from his salary. By the effect of the agreement under which the driver was employed, in collecting the cash at a different time and in a different manner than he was instructed to do, the employer was not made liable for the violent assault. * * * ”

So, in the situation at hand, it is our opinion that the tortious act of Dyer was something entirely aside from any duty contemplated by his employment. Appel-lee argues, with much logic, that the facts of the instant case are squarely within the principles of the following cases: Chicago, R. I. & G. R. Co. v. Carter, Tex.Com.App., 261 S.W. 135; Davis v. Clark, Tex.Civ.App., 78 S.W.2d 1008; Supreme Court, 129 Tex. 520, 105 S.W.2d 190; Gulf, C. & S. F. R. Co. v. Cobb, Tex.Civ.App., 45, S.W.2d 323; Central Motor Co. v. Gallo, Tex. Civ.App., 94 S.W.2d 821; Wells Fargo & Co. Express v. Sobel, 59 Tex.Civ.App. 62, 125 S.W. 925 (error refused); New Ellerslie Fishing Club v. Stewart, 123 Ky. 8, 93 S.W. 598, 9 L.R.A.,N.S., 475. All of these decisions were the subject of study in National Life & Accident Co. v. Ringo, supra, and, in each, it will be noted, the offending. employe was in the mmst of some dutyauthorized by his employment ..at the time of the assault, the. manner of performing the particular act ¡done being censirrahLy with resultant recourse upon the master.. The facts and circumstances of this record, we conclude, are clearly distinguishable from appellee’s supporting authorities and insufficient to invoke the doctrine that the principal should answer.

Appellant is shown to be one further remove from liability, in this: According to plaintiff’s own testimony, argument about the overcharge in the store had been concluded, and the later sidewalk conversation appears to have been a casual one, personal only to them,-Dyer then being engaged in nothing pertaining to his required duties. Our research on the subject discloses that, whenever warranted by the facts, Texas courts uniformly draw a line of demarcation at the interval when a given scope of employment ceases and the servant’s own responsibility begins. “When the servant turns aside, for however short a time, from the prosecution of the master’s work, and engages in the doing of an act not in furtherance of the master’s business, but to accomplish some purpose of his own, whether in doing so he is actuated by malice or ill will * * *, there is no principle which charges the master with responsibility for such action.” Hidalgo v. Gulf, C. & S. F. R. Co., 60 Tex. Civ.App. 433, 128 S.W. 683, 685 (writ refused).

By reason of our conclusions just reached, a consideration of appellant’s propositions 5 to 8, inclusive, is pre-termitted. Plaintiff’s judgment below must therefore be reversed and here rendered in favor of appellant, Jax Beer Company.

Reversed and rendered.


author: NORVELL, Justice.

text:
    DACAMARA et al. v. BINNEY et al.
    No. 10765.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 18, 1940.
    Rehearing Denied Jan. 15, 1941.
    Raymond, Algee & Alvarado and W. R. Blackshear, all of Laredo, for appellants.
    Mann & Mann and Radcliffe Killam, all of Laredo, for appellees.
   NORVELL, Justice.

This is an appeal from a judgment denying cancellation of a certain oil and gas lease in so far as it covered the south one-half of Block 9, and all of Blocks 12, 34, 37 and 36 of the Hughes Petroleum Company’s Subdivision of Los Ojuelos Grant, Survey 592, Abstract 1395, Webb County, Texas, containing 720 acres of land. Appellants, J. B. DaCamara, Jr., and others (plaintiffs below) own the surface rights and one-half of the minerals under said tract. The remaining one-half of the minerals is owned by Tidewater Associated Oil Company (which did not appear in the trial below) and appellees, O. W. Killam, R. F. Duggan and Magnolia Petroleum Company. The appellee Thomas Godfrey Binney claims an oil and gas leasehold interest in the property, and the controversy presented here is between Binney and appellants over the validity of Binney’s asserted interest. Trial below was to a jury upon documentary evidence and stipulation. At the conclusion of appellants’ evidence, Binney moved for an instructed verdict, whereupon, the trial court withdrew the case from the jury, holding that the evidence failed to raise a jury issue and entered judgment that appellants take nothing.

This controversy arose from the following facts and circumstances:

On April 4, 1919, Eusebio Garcia, as lessor, executed and delivered to Henry James, lessee, a certain oil and gas lease covering 32,919.49 acres in Webb County, including the 720 acres here involved. The primary term of the lease was five years and it was further provided that should production be obtained, the lease should remain in force as long as oil or gas should be produced therefrom.

As to lessee’s right of assignment, the lease provided that: “The lessee shall have the right to assign this lease or any interest therein, or any portion of the acreage covered thereby, in which last event lessee be liable only for royalties accruing from operations on the acreage retained by him and be liable only for such proportion of the rental due under said lease as the acreage retained by the lessee bears to the entire acreage covered by the lease, and the assignee of the lessee shall have correlative rights and privileges with respect to said royalties and rental as to the acreage assigned to him.”

Prior to the institution of this suit the James lease was cancelled as to 20,773 acres, leaving 12,146 acres under the lease. Appellants own the surface and one-half the minerals in the 12,146 acres, of which the 720 acres here involved is a part.

Binney holds under James by mesne assignments of the lease in so far as it covers the 720-acre tract.

It appears that oil and gas was discovered during the primary term of the James lease, and that from 1922 to 1938, inclusive, a total of 5,737,694 barrels of oil were produced from the lands covered thereby. According to the stipulation of the parties, oil is still being produced from the premises in paying quantities.

As to the particular 720 acres here involved, it appears that Binney, in 1923 and 1924, completed two gas wells on Block 12, having an initial production of 30,000,000 cubic feet each. These wells were connected with a pipe line and gas sold therefrom until during the month of June, 1925, when the wells were disconnected, as the pressure of the wells had fallen below the pressure of the pipe line. Since that time no gas has been produced from these wells.

In 1925 a dry hole was drilled on the south one-half of Block 9, and in 1926 another dry hole was drilled on Block 34,

Neither oil nor gas has been produced from the 720 acres since the two gas wells were disconnected from the pipe line in 1925. There have, been no drilling operations on the 720 acres since 1926.

Appellants contend here that the evidence shows, as a matter of law, that Bin-ney has lost his leasehold interest in and to the 720 acres by abandonment, as Re has failed to make any effort to produce therefrom since 1926. In the alternative, it is contended that there was sufficient evidence to take the issue of abandonment to the jury.

Before this Court, appellants have abandoned one of their pleaded theories in the court below, i. e., that a cancellation should be decreed because of the breach of the implied covenant to use due diligence in exploring and developing the property for oil and gas purposes.

Appellees present the following counter-proposition of law: The appellants are not entitled to a judgment can-celling a part of the Henry James lease— the 720 acres in question — on the theory of abandonment. It was shown without dispute that oil is still being produced under the James lease. That lease was a unity, and the assignment of the 720 acres in question did not have the effect of segregating such 720 acres from the other land covered by the lease. On the contrary, Binney, as assignee, had precisely the same rights in the 720 acres in question that the original lessee would have had if there had been no assignment. And since it appears that the James lease had not been wholly abandoned, as a matter of law there can be no abandonment of a part of that indivisible leasehold estate.

We hold that this counter-proposition is a correct statement of the law applicable to the facts of this case. Leonard v. Prater, Tex.Civ.App., 18 S.W.2d 681; Id: Tex.Com.App., 36 S.W.2d 216, 86 A.L.R. 499; Pearson v. Black, Tex.Civ.App., 120 S.W.2d 1075; Hunt Production Company v. Dickerson, Tex.Civ.App., 135 S.W.2d 597; Scott v. Jackson, Tex.Civ.App., 37 S.W.2d 1068; Walker’s “Property Interests Created by an Oil and Gas Lease in Texas” loc. cit., 8 Tex.Law Review 507.

Furthermore, if the leasehold estate in and to the 720-acre tract were subject to extinguishment by abandonment under the facts disclosed by this record, we hold that the evidence was insufficient to take the issue of abandonment to the jury. All that is shown by the stipulation of the parties is a nonuser for a number of years. Under the authorities this is insufficient. Pearson v. Black, supra; Benavides v. Hunt, 79 Tex. 383, 15 S.W. 396; Sammons v. Hodges, Tex.Civ.App., 95 S.W.2d 734; Houston Oil Co. of Texas v. Kimball, Tex.Civ.App., 114 S.W. 662, affirmed 103 Tex. 94, 122 S.W. 533, 124 S.W. 85; Sinclair Oil & Gas Co. v. Bryan, Tex.Civ.App., 291 S.W. 692; Cosden Oil Co. v. Scarborough, 5 Cir., 55 F.2d 634; Sandy River Coal Co. v. Champion Bridge Co., 243 Ky. 424, 48 S.W.2d 1062; McGraw Oil & Gas Co. v. Kennedy, 65 W.Va. 595, 64 S.E. 1027, 28 L.R.A.,N.S., 959; 1 Am.Jur. 10; 1 C.J.S., Abandonment, § 7, page 15.

No reversible error being shown, the judgment of the trial court is affirmed.


text:
    HOUSTON FIRE & CASUALTY INS. CO. v. BIBER et al.
    No. 10821.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 11, 1940.
    Rehearing Denied Jan. 15, 1941.

      Boone, Henderson, Boone & Davis, of Corpus Christi, and Baker, Botts, Andrews & Wharton, of Houston, for appellant.
    M. A. Childers, of San Antonio, and Chas. H. Clark and Tillman Smith, both of Corpus Christi, for appellees.
   NORVELL, Justice.

This is a workmen’s compensation case. The Houston Fire and Casualty Insurance Company has appealed from a' judgment based upon a jury verdict awarding Mary Alma Biber, Leonard Biber and Betty Biber, the widow and minor children of Alois Biber, a recovery of $20 per week for 360 weeks because 'of the death of Alois Biber. Article 8306, Sec. 8, Vernon’s Tex. Civ. Stats.

The appellant contends that the evidence is insufficient to support the jury’s findings to the effect that Biber died as a result of an injury received in the course of his employment.

The evidence in the case is for the most part undisputed, and largely circumstantial. Biber died as a result of a cerebral hemorrhage, and the medical witnesses who testified upon the trial seemed to agree as to the correctness of the following text statement with reference to the cause of death: “The immediate rises in blood pressure which lead to the rupture of cerebral vessels may be due to many factors, physical and mental, among which are: muscular exertions, as lifting, running, coughing, sneezing, straining at stool, coitus, parturition and all other efforts involving such strain; and emotional excitement, as-fear, worry and anger. Emotional states cause greater rises of this pressure than do physical efforts, and the elevation is maintained for a longer period of time. It is a popular belief and probably well justified, that a great many strokes of apoplexy occur during fits of anger.”

It is appellees’ theory that the cerebral hemorrhage was caused by the muscular exertions of Biber in performing his duties as an employee of the South Texas Cotton Oil Company. All of the questions propounded by appellees to their medical experts are based upon this hypothesis.

It is well settled that the coverage of workmen’s compensation insurance is not the same as that afforded by life or health insurance, and that appellees had the burden of proving that Biber, during the course of his employment, suffered some injury as that term is defined by the Workmen’s Compensation Act, Article 8309, Sec. 1, and that such injury was a producing cause of death. Aetna Life Insurance Company v. Graham, Tex.Com.App., 284 S.W. 931; Texas Indemnity Ins. Company v. Staggs, 134 Tex. 318, 134 S.W.2d 1026.

Because of the nature of the case, a somewhat extended statement of the evidence is necessary in order to properly discuss appellant’s assignment which challenges the sufficiency of the evidence to support the verdict.

At the time of his death, Biber was fifty-two years of age and employed as a foreman by the South Texas Cotton Oil Company. Biber had charge of a “seed house” located at Corpus Christi, Texas, which was 378 feet long, 98 feet wide, having walls 10 feet high on the sides connecting with a roof which ran up to a peak. The highest part of the roof was 51 feet above a concrete floor. The building was of frame construction with corrugated iron roof and walls, and was used for the storage of the reserve supply of cotton seed purchased by the company during the cotton crop season.

Cotton seed hauled to the storage building was unloaded into a conveyor line that ran.below the floor. From this conveyor line, the seed was elevated to another line at the top of the building and distributed throughout the seed house, by the use of openings in the top conveyor line.

On September 8, 1939, the date of the alleged injury, the seed house was about nine-tenths full, the seed coming up against the wall except for a clear space of 25 to 30 feet on the west end of the building and 10 to 12 feet on the east end where there were doors. There was a tunnel constructed through the center of the building so as to allow passage from one end of the house to the other. There was also a catwalk located in the middle of the building, about eleven feet below the peak of the roof, that is a long walkway connecting with a stairway at either end of the building. From this catwalk it was possible for one to step off onto the cotton seed stored in the building.

There was a shed at the west end of the seed house under which scales were located, together with a space for a desk and counter. This shed was apparently open, consisting principally of a roof extending out over the west side of the seed house. The office of the company was situated about 75 feet from the west end of the seed storage building.

It was Biber’s duty to supervise the unloading of trucks filled with cotton seed and look after the distribution of the same within the building, checking its condition from time to time for excess temperature. The number of men under his supervision varied between three and eight from time to time in accordance with conditions.

The temperature of the seed was taken by means of a special thermometer at the end of jointed metal pipes or rods. These thermometers were pushed into the cotton seed to about a depth of 20 feet, either from holes in the walls of the building or by walking out over the seed from the catwalk and inserting the thermometer in various parts of the pile of cotton seed. From 15 to 30 of these temperature tests would be made each day, so that parts of the seed pile could be opened up when danger from overheating became apparent.

It appears that on the afternoon of September 8, 1938, the sun was shining brightly and the temperature ranged between 88 and 89 degrees in the shade at 1:30 p. m. The temperature in the seed house because of its corrugated iron construction was undoubtedly much higher than that, although the seed house had a dormer arrangement that ran the entire length of the building, with windows in it, which provided a suction-like ventilation. The tests made of the cotton seed on the day in question, twenty-three in all, showed temperatures ranging from 95 to 106 degrees. The humidity was 64 per cent, 3 per cent less than normal for Corpus Christi, where the humidity is generally high due to its close proximity to the Gulf of Mexico.

Two witnesses testified as to seeing Alois Biber at the time or immediately after he suffered the cerebral hemorrhage.

K. M. Newbill testified that on the afternoon of September 8th, he saw Alois Biber at the place of business of the South Texas Cotton Oil Company; that Biber came from the direction of the seed house, stumbled and fell at the corner of the office building; that Biber was gasping for breath, wet with perspiration, unable to talk, “and just passed out at the corner of the office building,” and that he and others picked him up and put ice water on him.

J. A. Trammell testified that on the same afternoon he was at the dump (scales) on the west end of the seed house unloading cotton seed; that he saw Mr. Biber for ten to fifteen minutes and he was not doing any strenuous work of any kind at the time. “We were standing there talking and he (Biber) just put his hand to his head and said ‘oh, my headl’ but walked on toward the office.”

From the office, Biber was taken to his home and thence to a hospital where his spine was tapped and blood found in the spinal fluid. The next day he died.

In order to establish a causal relationship between Biber’s employment and his death, appellees relied upon the testimony of two expert medical witnesses adduced by means of hypothetical questions. These witnesses testified in substance that death could have and probably did result from a cerebral hemorrhage brought on by physical exertion under the hypothesis stated. An examination of the statement of facts discloses that in the hypothetical questions propounded to one of appellees’ experts, the following facts were assumed to be true: “that he (referring to Biber) would go up and down steps 40 feet in height and testing cotton seed and shown that on that day 23 tests were made of the heat of the cotton seed in the building by long thermometers pushed into it, which called for him to go over the cotton seed to make those tests.”

The question propounded to the other expert contained similar assumptions.

There is no direct evidence that Biber, on the day he suffered the stroke, made any seed tests, climbed any stairs and went onto the catwalk, or did anything necessitating strenuous physical exertion. For proof of these matters, appellees rely upon inferences which they contend the jury could legitimately draw from the facts as hereinabove set out and the following circumstances :

1. On July S, 1938, Alois Biber was examined for insurance and found to be in good health. The doctor who made the examination testified by deposition that he found no evidence of hypertension or high blood pressure.

2. According to Mrs. Biber, the deceased was an even tempered man, not given to fits of anger nor unnecessary worrying.

3. The manager of the employer company testified that Biber was a good workman and an active, energetic man.

4. A former employee of the company testified that he worked under Biber for about two months in 1937 and had seen Biber on the catwalk “seven or eight times.” Mrs. Biber also testified that she had seen her husband on the catwalk “several times.”

5. It appears that Biber was perspiring profusely when- he was picked up near the office and that his clothes were wet with perspiration when he was brought home.

6. When Biber was brought home, Mrs. Biber noticed an unusual amount of cotton seed in his clothes. Mrs. Biber’s testimony in reference to the presence of the cotton seed was corroborated by another witness.

There are certain other circumstances disclosed by the record that have a possible bearing upon the question involved. Mrs. Biber testified that her husband did not work the day before September 8th, as he was tired, but not sick, and they had company. Two witnesses testified that on the morning of the eighth, Biber complained of not feeling well. This was un-contradicted unless Mrs. Biber’s testimony can be construed as so doing.

Francisco Valdez, a witness of appellant, testified that he had worked for the employer company since 1936; that the first thing he did when employed “was to test seed”; that he worked under Mr. Biber and was working on September 8, 1938; that he took the temperature of the seed on that day; that Mr. Biber did not take any tests that day, and that he had never seen Biber 'make any seed tests or do any other hard manual labor as “he was the boss there.” This witness testified that he had seen Mr. Biber about 8 o’clock in the morning, and again about eleven, when Biber was out by the scales near the west end of the seed house.

The rules of law applicable to the situation presented here are:

In determining the sufficiency of the evidence to support a jury finding, an appellate court will consider the evidence in its most favorable light in support of the verdict. Evidence tending to support a conclusion contrary to the finding will be disregarded, when such evidence is contradicted either directly or by inference, or if when viewed in the light of the record of the case, it possesses inherent infirmities which destroy its probative value. Williams & Chastain v. Laird, Tex.Civ.App., 32 S.W.2d 502, and authorities therein cited; 3 Tex.Jur. 1062, Sec. 749.

The testimony of a disinterested, unim-peached witness may not, however, be wholly disregarded, when such testimony contains no inconsistencies, is uncon-tradicted, and not improbable. Freudenstein v. Valley State Bank, Tex.Civ.App., 68 S.W.2d 567; 41 Tex.Jur. 942, Sec. 172.

Where the evidence shows that a particular result may possibly have occurred by reason of several different causes, and it is not more reasonably probable that one of the causes was operative rather than the others, a finding of causal relationship between the result and a particular cause can not be sustained. Davis v. Castile, Tex.Com.App., 257 S.W. 870.

If the probative force of evidence be so weak that it raised only a surmise or suspicion of the existence of a fact sought to be established, that evidence in legal contemplation is "no evidence” and will not support a finding which comprehends the existence of the disputed fact. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059; Austin v. Neiman, Tex.Com.App., 14 S.W.2d 794.

“A presumption of fact can not rest upon a fact presumed, or in other words, one presumption can not be based upon 'another presumption, nor an inference of fact upon other inferences.” 17 Tex.Jur. 247, Sec. 57. See, also, Texas Employers’ Insurance Association v. Ford, Tex.Civ.App., 93 S.W.2d 227.

In the light of the foregoing rules, we examine appellees’ theory of recovery in order to determine whether or not they have ■ discharged the burden resting upon them as set forth in the fore part of this opinion.

The medical testimony makes it clear that there are several possible fact situations which may have caused the cerebral hemorrhage suffered by Biber. Among others, there is the possibility that the hemorrhage may have been solely the result of disease. It may have been the result of an emotional disturbance. It may have been the result of muscular exertion. It is necessary that some evidence of probative force beyond the raising of a mere surmise be introduced to exclude all other possibilities, before the remaining one can be raised to the dignity of a probability.

From appellees’ medical testimony it appears that death unaccompanied by a previous history of hypertension or high blood pressure is unusual to say the least. It also appears that deaths from cerebral hemorrhage have occurred when not preceded by muscular exertion or apparent emotional disturbance. These facts leave the element of death solely by reason of disease within the realm of possibility, despite the opinion testimony of the doctor who examined Biber for life insurance during the July preceding his death.

As to the possible 'element of emotional disturbance, it seems that the general testimony of Mrs. Biber that her husband was an even tempered man is inherently weak when relied upon to exclude the possibility of Biber’s having undergone a strong emotional experience on the day he suffered a stroke. Biber’s actual movements and experiences on this day are not shown, and probably never will be known, so that death by apoplexy brought on by an emotional disturbance still remains a possibility.

It is appellees’ theory that Biber shortly prior to his death underwent physical exertion or became overheated and thus the hemorrhage was brought about. This is of course a possibility, but can it be said from a proper analysis of the evidence, that the existence of this hypothesis is more probable than the existence of the other possibilities discussed ?

Appellees contend that the fact that Biber was perspiring heavily when picked up at the corner of the office indicates that he had recently undergone physical exertion and that this and other outward symptoms indicated heat exhaustion. The medical testimony discloses that many of the outward symptoms of a cerebral hemorrhage and heat exhaustion are similar. As to perspiration — one of appellees’ medical experts testified as follows:

“Q. Isn’t it true that a man who had a cerebral hemorrhage might be perspiring heavily as a result of that cerebral hemorrhage? A. Yes.
“Q. The fact that a man who had just had a cerebral hemorrhage was perspiring heavily would not necessarily indicate that he was perspiring heavily before the hemorrhage struck him — -would it? A. No sir. It would not.”

The other medical expert placed on the stand by appellees testified as follows:

“Q. The fact that a man who had suffered a cerebral hemorrhage was found perspiring heavily would not necessarily indicate that he was perspiring heavily before he had this cerebral hemorrhage, would it, Doctor? A. It would not be prima facie evidence of the fact that he was perspiring before or that the perspiration was due to or accompanied the cerebral hemorrhage.
“Q. One would not be able to tell? A. No sir.”

Under the evidence of this case we do not believe it can be said without resort to conjecture or surmise that Biber had undergone muscular exertion shortly prior to the occurrence of the hemorrhage. However, if we assume that it is more probable that the fatal stroke was caused by muscular exertion, appellees still have the bitrden of proving that such muscular exertion had a causal connection with Biber’s employment, as compensable injuries are only those “having to do with and originating in the world, business, trade or profession of the employer received by an employé while engaged in or about the furtherance of the affairs or business of his employer.” Article 8309, Sec. 1, Vernon’s Tex.Civ.Stats. The fact that Biber was about the premises of the employer, in itself is not sufficient to establish the necessary causal relationship. Southern Casualty Company v. Flores, Tex.Com.App., 1 S.W.2d 260.

From the testimony relating to the presence of cotton seed in the clothes of Biber, appellee constructs a theory that Biber had been engaged in making temperature seed tests and suggests as a reasonable probability the hypothesis that Biber had climbed the stairs, gone onto the catwalk and from there onto the pile of cotton seed stored in the building. It seems to us that this line of reasoning involves conjecture and surmise, the piling of one presumption upon another, and must therefore be rejected. The appellant, in its brief, suggests many possible theories for the presence of the cotton seed in Biber’s clothes, all of which are as reasonable as that advanced by appellees. It appears that Biber undoubtedly was at some time during the day at the west end of the shed where cotton seed was unloaded. The presence of cotton seed in Biber’s clothes shows of course that he was around cotton seed, but that inference does not justify a conclusion that he had engaged in strenuous muscular exertion in the furtherance of the affairs or business of his employer.

For the reasons pointed out, we hold that the jury findings to the effect that Biber,_ while in the course of his employment, underwent physical exertion or be-qame overheated causing . a cerebral hemorrhage and death, are based upon speculation, conjecture and surmise, and therefore can not stand. Joske v. Irvine, supra; Texas Employers’ Insurance Association v. Herring, Tex.Com.App., 280 S.W. 740; Republic Underwriters v. Greenhaw, Tex.Civ.App., 114 S.W.2d 362; Texas Employers’ Insurance Association v. Mints, Tex.Civ.App., 10 S.W.2d 220.

It follows that the trial court erred in overruling appellant’s motion for judgment non obstante veredicto, and appellant’s assignments predicated upon this error are sustained. This holding makes a discussion of further assignments unnecessary.

The case was apparently fully developed in the trial court and it is therefore our duty to enter such judgment as should have been rendered by the trial court. The judgment of the trial court is accordingly reversed and judgment here rendered that appellees take nothing.


author: FOLLEY, Justice.

text:
    TEXAS LIFE INS. CO. v. SHARP.
    No. 5221.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 18, 1940.
    Rehearing Denied Jan. 13, 1041.

      A. D. Mabray, of Waco, for appellant.
    Bean, Evans & Bean, of Lubbock, for ap-pellee.
   FOLLEY, Justice.

This is a suit upon an insurance policy issued in 1929 by the appellant, Texas Life Insurance Company, in the sum of $2,000 upon the life of John E. Sharp, deceased, the annual premium on such policy being $77.70. The policy contained an income disability provision agreeing to pay the insured $20 per month upon his becoming wholly and permanently disabled, and further proT vided for the waiver of the payment of premiums in the event of such disability. At various times during the life of the policy the insured utilized the loan value therein for the payment of premiums. The record is conclusive that when the annual premium became due February 3, 1937, the condition of the policy was such there was no loan value available to carry the policy forward under its automatic premium loan provision. On February 2, 1937, the appellant insurance company received a written request signed “John E. Sharp” asking for further time to pay such premium and stating that on account of crop failures the insured was unable to pay the premium. In response to such request the insurance company permitted the insured to execute an extension agreement wherein he promised to pay the annual premium of $77.70 on August 3, 1937, which agreement provided that failure to pay such premium as agreed should forfeit the policy. The premium Was not paid, and unless the policy remained in force by reason of its premium waiver provision it lapsed at midnight August 3, 1937.

The insured died on July 4, 1938, at the age of 57 years and after a lingering illness shown to have begun in January, 1934. Mrs. Edna Sharp, the appellee herein and súrviving widow of the deceased and beneficiary in the policy, sued the appellant for the full face amount of the insurance contract, less $99.50 loaned to the insured upon the policy, and for the monthly income benefits for four years next preceding the death of the insured as well as for the statutory penalties for nonpayment and for a reasonable attorneys’ fee. The appellee sought recovery upon the theory that the automatic premium loan non-forfeiture provision of the policy kept the same in effect beyond the death of the insured, and also upon the theory that the policy remained effective under the provision for monthly income and waiver of premiums during the insured’s disability. The former theory was abandoned in the trial court and it is only the latter with which we are concerned in this appeal. The provision for monthly income and waiver of premiums during disability-provided that satisfactory proof of such disability should be given the insurance company, as will more fully appear from such provision quoted below.

The facts show that in January, 1934, the insured began suffering from a kidney and heart ailment from which he never recovered but gradually grew worse until his death in 1938. At the time he became ill he lived with his family at Estacado near Lubbock, Texas, and his policy was then in possession of a bank at Lorenzo, Texas, where it remained until about a year after his death when such policy was obtained by the appellee frormsuch bank and demand made upon the appellant for the payment of .the policy and for the monthly disability income benefits thereunder. Such payment was refused and this suit resulted.

The provision of the policy which affords the chief controversy in this case is as follows:

“Monthly Income During Disability for Life and Waiver of Premium Payments
“The company will pay to the insured the monthly income of the amount specified on the'first page hereof in the manner and subject to the conditions stated below if the insured, before he shall have attained the age • of sixty years and after he shall have paid at least one annual premium and before default in the payment of any subsequent premium, shall furnish proof satisfactory to the Company that he has become wholly and permanently disabled by bodily injury or by disease so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit, or following any gainful occupation, and in addition the Company will waive all premiums thereafter becoming due on this policy. The first payment of the monthly income shall be due upon the written acceptance and approval by the Company of proof of disability and shall then date from the first day of the month after sixty days shall have elapsed from the date of the receipt of such proof and subsequent payments shall be made on the first day of each month thereafter, continuing as long as the insured lives provided that, notwithstanding proof of disability may have been accepted and approved by the Company as being satisfactory and monthly income payments may have been made, the insured shall at any time, upon written demand, furnish the Company satisfactory proof of the continuance of such disability; and if the insured shall fail to furnish such proof, or if it shall appear to the Company that the insured is performing any work or following any occupation whatsoever for compensation, gain or profit, all premiums as they thereafter become due must be paid by the insured in conformity with the other provisions of this policy and no further monthly income payments ■ as herein provided shall thereafter be made.”

The pleadings of the parties joined the issues as to the incapacity of the insured and whether or not such incapacity prevented him from furnishing the required, proof of his disability. In a trial before a jury special issue findings were made to the effect (1) that the insured was . wholly and permanently disabled by disease which prevented him from performing any work for compensation or profit, or from following any gainful occupation; (2) that such disability began in January, 1934; (3) that such disability prevented the insured from giving the required notice and proof for claiming benefits under the premium waiver and disability provisions of the policy; (4) that notice of such disability and claim thereunder was máde by the appellee as soon as was practicable under all the facts and circumstances; (5) that the appellant was given notice of the claimed disability prior to November 3, 1934; and (6) that $500 was a reasonable attorneys’ fee for prosecuting this suit. Thereupon the court rendered judgment for the appellee for the unpaid balance of $1,900.50 on the policy, $228.06 penalty, $500 attorneys’ fee and $981.80 representing principal and interest for monthly income disability benefits from January 1, 1935, until the death of the insured. Of the latter amount the appellee recovered $490.90 individually and a like amount as community survivor of her deceased husband’s estate.

The appellant contends that the court erred in overruling its motion for an instructed verdict and its motion for judgment non obstante veredicto, asserting that the testimony is insufficient to support the verdict óf the jury and the judgment of the court. It is particularly with reference to the insured’s disability, and notice and proof thereof to the insurance company, to which the assignments in this connection are addressed.

It is our opinion the testimony was sufficient to support the finding that the insured was totally and permanently disabled within the meaning of the policy but that it is insufficient to support the finding that proper notice and proof of the disability was given to the company or that the disability of the insured excused him from the necessity of giving the required notice and proof.

The testimony as to the disability came only from the members of the deceased’s family. Although it was shown that the insured received treatment from physicians from time to time, no doctor was called as a witness in the trial. The testimony from .the members of the family reveals that until the fall of 1933 the insured was apparently in good health and performed the usual duties and work upon a farm. In January, 1934, he suffered an attack for which a physician at Lubbock was summoned, and at various times thereafter he was under a physician’s care. From the time of the first attack onward he became more nearly helpless, suffering great pain and agony in his stomach and kidneys. He became bloated, his hands and feet became swollen and he assumed a deathly color. From the least exertion he would become exhausted. It became necessary for his sons to assist him in walking about the home. He would sometimes suffer smothering spells and in trying to walk would fall.' In December, 1935, he moved with his family to Arkansas where he drank mineral water in an effort to regain his strength, but his condition gradually grew worse until his death in 1938. At no time after January, 1934, was he able to do any kind of work, and during the more than four-year period of his illness he was practically an invalid. This testimony we think was sufficient to support the finding that he was totally and permanently disabled within the meaning of the policy from January, 1934, until his death July 4, 1938.

As to notice given the insurance company relative to disability, the testimony, in our opinion, is very meager and unsatisfactory. Three members of the family testified in the trial of the case, the ap-pellee, a married daughter and Henderson Sharp, an unmarried 32 year old son, who resided with his parents and assisted in caring for his invalid father during the insured's last illness. These witnesses knew of the existence of the policy but none of them knew anything about its contents, and if the insured possessed actual knowledge of the disability provision of the policy apparently he never revealed the same to any members of his family. Henderson Sharp, being the eldest son, was called upon to transact his father’s business. During the life of the policy numerous letters were written to the insurance company which this son testified were written by him with the exception of one which he did not know who wrote. He wrote the letters at his father’s request and signed them “John E. Sharp”. All of such letters which were claimed to have been received by the insurance company were introduced in evidence. The letters introduced were with reference to premium payments and in most instances sought further time to meet such obligations, all of which requests were granted except one in July, 1937, asking for a further extension of the premium due on August 3, 1937, which payment had theretofore been extended at the annual premium payment date on February 3, 1937. In none of these letters was any mention made of the disability of the insured. Henderson Sharp claimed that in the spring or summer of 1934, and again in the spring or summer of 1936, he wrote the company that his father “was not able to work and was sick and couldn’t do anything”; that the 1934 letter was written while the family lived at Estacado, Texas; that his father was in bed at the time and a'sked the son to come into the insured’s room and write the letter; that he could not remember for sure what the letter contained but did remember telling the insurance company that his father “was sick and unable to work”; that he could not say who mailed such letter but that it was mailed; that he could not swear that it was mailed; that there was a return address on the envelope and it was never returned; that it was supposed to have been mailed at Petersburg, Texas; that about the same information was contained in the 1936 letter with reference to his father’s condition but he could not remember exactly what he wrote; that he thought he wrote the 1936 letter in New Hope, Arkansas; that his father also a'sked him to write this letter; that he mailed such letter in a mailbox on a star route out of Mineóla, Arkansas ; and that the mailbox in which he placed the letter was about two and a half miles from his Arkansas home. It is upon this testimony that the appellee relies to establish notice and proof of the disability.

The assistant secretary of the insurance company, who handled all matters relative to policy applications and loans and all correspondence for the appellant with reference to premiums, testified that his company never received any leher or other notice in regard to the insured’s illness, disease or disability. It will be noted from the jury’s verdict above that the only issue submitted on the question of notice was whether.or not the appellant was given notice prior to November 3, 1934. Therefore, only the 1934 letter claimed to have been written by the son in the spring or summer of such year affords any basis for this jury finding. There was no issue requested or submitted which would have included the 1936 letter. We think the uncertainty of the testimony relative to the 1934 letter, together with the denial of its receipt, leaves the finding made thereon without sufficient support in the testimony. Moreover, if it might be said that the evidence was sufficient to support a finding that the 1934 letter was mailed as claimed by Henderson Sharp, it is our opinion the information claimed to have been imparted therein could not reasonably be construed as sufficient notice or satisfactory proof to the company that the insured had “become wholly and permanently disabled by bodily injury or by disease so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit, or following any gainful occupation * *

We are further of the opinion the testimony was insufficient to excuse the insured from his contractural obligation to furnish satisfactory proof of his disability. Under the provision quoted above we think that before he was entitled to the waiver of premiums or the monthly income disability benefits he or those claiming for him must either have made such proof as required by the policy or show sufficient excuse for failure to do so. Bank Sav. Life Ins. Co. v. Milan, 70 S.W.2d 294, writ of error refused; Chambers v. Franklin Life Ins. Co., 5 Cir., 80 F.2d 339; 29 Am.Jur. 363, para. 434; 24 Tex.Jur. 862, para. 138. The-jury findings relative to the insured’s disability, and as to such disability preventing him from giving notice and proof as required by the policy, were but general findings, which, under this record, could not be reasonably construed as including mental incapacity. Although the insured was disabled for a period of more than four years preceding his death the testimony fails to show that he was insane or mentally incapable of directing someone else to notify the company of his illness. The only competent testimony in the record relative to his mental incapacity came from the members of his family. Brown v. Mitchell et al., 88 Tex. 350, 31 S.W. 621, 36 L.R.A. 64. The appellee testified that his memory was deficient, that he was absent-minded and unable to recall to mind things which were told him. The son testified that his father could not “control his memory”, that his mind was all right sometimes but that he had no memory. He also testified that the insured requested him to write the letters to the insurance company in 1934 and in 1936 in regard to insured’s being sick and unable to work. A fair analysis of all this testimony we think makes it conclusive that it falls far short of showing that the insured was so dispossessed of his mental faculties as to have been unable to inform the insurance company of his disability either in person or through the members of his family or others. Cardinal v. Cardinal et al., Tex.Civ.App., 131 S.W.2d 1005.

In making this decision on this issue we are not unmindful of the holding of our courts in the following cases and others upon the subject: State Life Ins. Co. v. Fann, Tex.Civ.App., 269 S.W. 1111, writ of error refused; Merchants’ Life Ins. Co. v. Clark, Tex.Civ.App., 256 S.W. 969, writ of error refused; State Life Ins. Co. v. Barnes, Tex.Civ.App., 58 S.W.2d 189, writ of errot dismissed. But in each of the cases cited, although there was disability, the insured was excused from giving notice primarily because of mental incapacity. Therefore, we think the rule announced in Jefferson Standard Life Ins. Co. v. Williams, Tex.Civ.App., 62 S.W.2d 661, writ of error refused, wherein no mental incapacity was shown, is more in point with the facts of the instant case. In such case, with reference to the rule as to notice, distinction was made between a disability purely physical, independent of mental infirmity, and one coupled with mental incapacity. That case, in our opinion, expresses the correct rule that should be applied where the insured is not mentally incompetent. In this connection we do not wish to be understood as holding that the impairment of the mind is always essential to excuse the failure to submit notice and proof of disability. Violent physical suffering, suffering so intense as to free the insured of negligence in failing to furnish the proof, might in some instances relieve the insured of such duty for a time. Nol-is the rule excusing the insured linjited always to physical or mental suffering and disability. The delay or failure to furnish the proof might be due to providential circumstances beyond human control and sufficient in themselves to excuse the delay. 7 Couch’s Cyclopedia of Insurance Law 5483, para. 1538k. But in all such instances relied upon we think the true criterion is that in order to take advantage of the situation, whatever it may be, the insured must be exonerated from negligence in the nonperformance of his contractual obligation. In the instant case we think the testimony fails to establish such exoneration.

What we have said above disposes of the controlling issues in this appeal, and we deem it unnecessary to discuss the other assignments presented by the appellant. The appellant contends judgment should be rendered by this court in its favor, but due to the possibility that upon another trial the proof might show the insured was mentally incompetent, we think in the best interests of justice the judgment should be reversed and the cause remanded.

Reversed and remanded.