author: COMBS, Justice.

text:
    SOUTHERN PINE LUMBER CO. v. KING.
    No. 3642.
    Court of Civil Appeals of Texas. Beaumont.
    July 9, 1940.
    Rehearing Denied July 24, 1940.

      J. O. Minton and R. E. Minton, both of Lufkin, for appellant.
    Manry & Cochran and V. A. Collins, all of Livingston, for appellee.
   COMBS, Justice.

This is a suit for damage for breach of a written contract wherein plaintiff (appel-lee here) alleges that defendant (appellant here) employed him to load all logs to be shipped to it and another concern at Diboll where its sawmill is located. The case has been to this court once before on a plea of privilege and it was reversed and remanded for a retrial of that issue. See Southern Pine Lumber Company v. King, 130 S.W.2d 942. The contract sued on was as follows:

“August 15, 1937.
“Shepherd, Texas
“Mr. D. C. King
“Shepherd, Texas
“In consideration of you purchasing and maintaining enough loaders and loader equipment in and near Shepherd to load all the logs, hardwood, pine and box factory pine, to be shipped to Southern Pine Lumber Company and Temple Manufacturing Company at Diboll, Texas, we will give you the loading of all of the logs to be shipped from the above place and will pay you $1.50 per thousand feet Doyle Scale for all the logs properly loaded on cars.
“You are to load as many cars as said Southern Pine Lumber Company and Temple Manufacturing Company would want and will be responsible for any demurrage accruing on cars and will furnish all necessary equipment and material necessary to load the cars also pay for all labor and be responsible for any damages done while loading, and in the event they discontinue shipping you will leave your address with Southern Pine Lumber Company or notify some of their representatives your future address where you can be notified when they would want to begin loading.
“Yours very truly
“Southern Pine Lumber Company
“By: E. H. Kirkland
“Accepted:
“D. C. King”

Pursuant to the above contract the plaintiff in partnership with one George Hood purchased loading equipment consisting of two rigs, one powered by a tractor and the other by a Ford V-8 truck. Both were rigged up with winches so as to make two log loading outfits. The total cost was $800, $400 being paid by each. After about fifteen days plaintiff purchased Hood’s interest and from that time on ran the' log loading job alone. He loaded logs for the defendant from along in August, 1937, to May 1938, when there was a temporary cessation of loading. About a month thereafter, the defendant without notice to plaintiff and without his consent employed another to continue loading logs at Shepherd. The plaintiff seeks to recover in this suit damages represented by the loss of profits which he would have made had he been permitted to complete the contract. It was stipulated that after plaintiff ceased loading logs a total of 4,333,958 board feet of logs were loaded out from Shepherd for the defendant. The plaintiff alleged that he would have made a profit of $1 per thousand feet on the loading of said logs. He also alléged that because of the wrongful breach of the contract the value of his loading equipment greatly depreciated so that he-was forced to sell it for $275 in an effort to minimize his loss, and he sought a further damage of $525 because of the depreciation of his loading equipment. The defendant’s theory was that its agent, E. H. Kirkland, who purported to execute said written contract on its behalf had no authority, express or implied, to make the contract; that no responsible officer of the company ever saw the alleged contract or knew of its existence until long after plaintiff King ceased to load logs for it. It filed a plea of non est factum against the contract. It was contended that at the time the contract was made, there was not more than 40,000 feet of logs cut for shipment from Shepherd; that plaintiff loaded all of said logs for it and so exhausted the subject matter of the contract; the contract by its terms not covering logs not actually cut at the time it was made. The case was tried to a jury and in response to special issues the jury found that E. H. Kirkland was the agent of the defendant at the time the contract was executed; that he acted within the scope of his authority; that plaintiff would have made a net profit of $1 per thousand feet had he been permitted to fulfill his contract; that the difference in market value of the loading equipment as the result of the termination of the contract was $525. They also answered certain other issues which have no bearing on the matters presented by this appeal. The trial court entered judgment for the plaintiff for $4,-333.98 loss of profits, and $525 depreciation in value of the loading equipment, making the total judgment $4,878.98.

Opinion.

In the outset we are confronted with a motion of the appellee to dismiss the appeal because the appellant filed no motion for a new trial in the trial court. The record shows that the jury returned its verdict and judgment was entered for the plaintiff on the last day of the term of court, and that court was adjourned on that day. Full five days’ time not being given from the rendition of the judgment to the adjournment of the term no motion for new trial was required. Rule 71a for District and County Courts. Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270, 275. The motion to dismiss is overruled.

By its first proposition the appellant contends there was no proof that the purported agent Kirkland “was fully authorized and empowered to make such contract * * * and was acting within the scope of his authority in binding defendant by the terms of- said contract” as alleged by the plaintiff. Briefly stated, the facts show that Kirkland was a woods foreman for the appellant, his job being to locate and negotiate purchase of timber and supervise the cutting, hauling, loading and shipment of the logs to the mill under the direction of his superior, D. C. Kenley. His job was to keep logs moving to the mill to keep it running. He appears to have had direct charge of the loading of logs at Shepherd for shipment by rail to appellant’s mill. He had been employed by the appellant for eleven or twelve years. He frequently concluded agreements with log haulers and log loaders. However, Kirkland worked directly under Mr. D. C. Kenley, an official of the appellant company who was head of the department in which Kirkland worked. Mr. Kenley testified that Kirkland had no authority to conclude contracts for the purchase of timber or loading or hauling of logs without first referring the matter to him, Kenley, and getting his authority to conclude the contract; that it was not the practice of the company to make loading contracts in writing as was done in this case; that the company had prepared a set form of written agreement to be signed by all independent contractors for its benefit in connection with Social Security requirements, etc.; that Kirkland said nothing to him about this contract; that he had no knowledge of the existence of such contract until long after the appellee had ceased loading logs for the company.

We think appellant’s contention is without merit. The testimony of appellant’s own witness, Kenley, summarized briefly above, was that Kirkland had authority to conclude contracts for the loading- operations, and that he did conclude such contracts. It should be noted that making contracts with log loaders, and others engaged in logging operations for the defendant, was part of the business entrusted to Kirkland as woods foreman. Such contractors connected with the operations at Shepherd dealt with Kirkland, and only with Kirkland. The requirement that such contracts be first submitted to Kenley for approval before Kirkland concluded them was a matter between the agent Kirkland and the company. There ■is nothing to suggest that such contractors knew or had any reason to suspect that he was not fully empowered to contract. He may have breached the duty which he owed his employer in concluding the agreement here involved without referring it to Kenley, but that did not affect the validity of the contract which he made with King, unless King knew of such limitation upon his authority. And as to that matter the burden was on the appellant to show that King did have such knowledge.

It is a principle so well settled as hardly to require the citation of authority that where an agent in making a contract acts within the 'general scope of his authority, restrictions imposed by the principal will not affect the validity of the contract, unless such restrictions are brought to the knowledge of the person with whom he deals. Morgan v. American Cent. Ins. Co., 80 W.Va. 1, 92 S.E. 84, L.R.A.1917D, 1049; Great Northern R. Co. v. O’Connor, 232 U.S. 508, 34 S.Ct. 380, 58 L.Ed. 703. The remedy of the principal in such case is an action against the agent. Bank of British North America v. Cooper, 137 U.S. 473, 11 S.Ct. 160, 34 L.Ed. 759. It is only just that the principal, and not third persons with whom the agent has been sent forth to deal, shall suffer the consequences of the agent’s breach of his principal’s instructions.

Appellant insists that King did have notice of such limitation on Kirkland’s authority. King and George Hood were partners in the log loading operation about fifteen days as above mentioned. Hood testified that during that time he asked Kirkland for a written contract and “he said that they did not give written contracts. He said that they were only oral but as long as we loaded satisfactory we could load all the logs in Shepherd.” The written contract as made was with King. But regardless of whether notice of a limitation of the agent’s authority given to Hood would have charged King with such notice, it is our view that the statement would not have been notice to King if Kirkland had made the statement to him instead of Hood. The statement amounted to nothing more than a declaration by Kirkland that it was not the policy of the company to give written contracts. It was in no sense a statement that his own authority in making contracts was in anywise limited. The fact that the instant contract was in writing ^was explained by both King and Kirkland. In order to undertake the loading contract, it was necessary for King to purchase equipment at an expense of $800 and he wanted a contract in writing giving him a right to load all the logs to be loaded at Shepherd before putting his money in the loading equipment.

We now come to what we think is the most difficult part of this case, and that is the sufficiency of the evidence to sustain the damage' assessed by the jury. The appellee testified that he would have made a profit of $1 per thousand feet on the loading. But when called upon to itemize the expense, of loading, his testimony shows that he would not have made that much. The amount of logs loaded on each car was from 9,000 to 11,000 feet, the average being 10,000 feet per car. King paid all his labor by the car except. a roustabout whom he paid $1.50 per day. On the average he received a gross amount of $15 per car. . He itemized the expense per car as follows: labor, $4.25gasoline for driving loader, 12‡; oil, 5‡; stakes, 80^; wire, $1.00; or a total expense of $6.22, leaving a net profit of $8.78 per car or 87.8(S per thousand feet, and not $1 as found by the jury. The trial court also awarded $525 damages for depreciation in value of the loading equipment by reason of the breach. This was improper. This item falls within the rule of consequential damages and on the facts before us was too remote to be foreseen.

It is our conclusion that the judgment in this case is excessive to the extent of 12.2 cents per thousand feet of logs involved and $525 alleged for depreciation of valuation of the equipment, or a total excess of $1,053.82. If the appellee will within fifteen days file a remittitur of that amount, we will affirm the judgment in his favor for $3,825.16. The appellee of course is not required to file this remittitur, as he may elect to decline the remittitur and accept a remand of the case if he thinks he can establish greater damage on another trial.

Judgment affirmed on condition of remit-titur.


source: Caselaw Access Project

author: BLAIR, Justice.

license: Public Domain

text:
    DEACE v. STRIBLING.
    No. 8950.
    Court of Civil Appeals of Texas. Austin.
    July 24, 1940.
    Robert C. Eckhardt and Creekmore Fatli, both of Austin, for appellant.
    A. G. Mueller and Bill S. Watkins, both of Llano, for appellee.
   BLAIR, Justice.

Appellee, W. F. Stribling, sued appellant, R. A. Deace, to cancel a mineral lease because of alleged breaches of its covenants and conditions; and on the trial to the court without a jury judgment was rendered for appellee as prayed; hence this appeal.

Appellee was lessor, and appellant, R. A. Deace, and W. P. Bankston, Clifford F. York, and Patsey L. York were lessees; each lessee owning a certain percentage of interest ' in the entire mineral estate granted. In 1938, all of the lessees, except appellant, executed a quitclaim deed to their interests to appellee. In 1936, W. P. Bankston executed a quitclaim deed to his interest in the lease to appellant, and after this suit was filed the other lessees named executed a quitclaim deed to their interests in the lease to appellant; and by way of answer and cross-action he alleged that the quitclaim deed to appellee was procured by fraud, and that he was the sole owner of the lease, and prayed that appellee be enjoined from interfering with his rights as lessee, and for damages.

Appellant contends that the trial court was without jurisdiction because the lessees who quitclaimed their interest to ap-pellee were not made parties to the suit. In the first place, it is contended that the interest of Patsey L. York, a married woman, did not pass to appellee because her acknowledgment to her quitclaim deed to him was defective; the portion complained of being as follows: “Before me, the undersigned authority, on this day personally appeared Patsey L. York, wife of E. G. Klein and daughter of Clifford L. York, known to me to be the person whose name is subscribed to the foregoing instrument, and the said-acknowledged to me that she executed the same for the purposes and considerations therein expressed. And the said Patsey L. York, wife of the said E. H. Klein, having been examined by me privily and apart from her husband, and having the same fully explained to her, she the said Myrtle L. York, acknowledged such instrument to be her act and deed, and declared that she had willingly signed the same for the purposes and consideration therein expressed, and that she did not wish to retract it.”

The failure of the notary to fill in the blank space with the name Patsey L. York is not a material defect. The acknowledgment as a whole clearly shows that the notary was taking the acknowledgment of Patsey L. York, and the omission of her name in the blank space is only a clerical error, which does not affect its sufficiency. Talbert v. Dull, 70 Tex. 675, 8 S.W. 530; Gray v. Kauffman, 82 Tex. 65, 17 S.W. 513.

Nor does the obvious mistake of inserting the name Myrtle L. York in the last sentence of the acknowledgment vitiate it, because it is clear from the whole instrument that the name intended was Patsey L. York. The insertion of any name at that place in the acknowledgment is surplusage, and if stricken out, the acknowledgment is clearly that of Patsey L. York. Durst v. Daugherty, 81 Tex. 650, 17 S.W. 388; Cheek v. Herndon, 82 Tex. 146, 17 S.W. 763; Gray v. Kauffman, supra.

In the second place, appellant contends that the quitclaim of the interests of all lessees except himself to appellee was procured by fraud. There was no proof of this allegation, and the question went out of the case. These findings and conclusions left only appellant and appellee as the lessor and lessee in the lease sought to be cancelled; and in consequence the court had jurisdiction of all parties interested in the subject matter of the suit. 32 Texas Juris 15, § 9, and cases there cited.

We have reached the conclusion, however, that the trial court erred in refusing to sustain the plea in abatement and general demurrer of appellant to the petition of appellee, because the lease contract created a mineral estate in the land described upon the happening of certain conditions subsequent; and the petition did not allege the giving of thirty days’ notice as required in the lease for its termination for breach of any condition subsequent; and the undisputed proof showed that such notice had been given only twenty-five days at the time this suit was filed to cancel and terminate the lease. The material portions of the lease contract, except for convenience we number the paragraphs, read as follows:

First. “That said parties of the first part . . . Do, by these presents, lease, let and demise unto the said parties of the second part for the purpose of prospecting for, mining, removing and marketing, all minerals and metals and non-metalic minerals of every kind except gas and oil; just as long as paying ores can be found on or under the following described tract or parcel of land, to-wit
* * * . * * *
Second. “The terms of this lease and the estate herein granted shall begin on this date and continue until same is terminated under the provisions hereof:”
Third. “It is agreed by the parties hereto that said parties of the second part shall have three months time from this date, and shall have full rights of ingress and egress, at all times for himself, his representatives, partners and employees upon all of the said premises; for the purpose of prospecting for, locating and selecting locations for opening and working mines and taking therefrom any minerals, metals, or non-metalic minerals excepting gas and oil for the purpose of marketing same, and also for making assay tests on same.”
Fourth. “The parties of the second part herein agree, in case minerals or metals are found on said leased premises, within the above named period, in sufficient quantities and richness so that same can be mined at a profit; to within six months from said months period above named, to open up such mine shafts, open out quarries, etc., as may be necessary to exploit and develop any ore veins or ore deposits on said premises, of said minerals or metals thereon and to place on said premises, such machinery, tools and appliances, as the character of the ore, in the opinion of the said second parties, may warrant, and to work said mines on said premises except from delays caused by unfavorable weather, accidents, disastrous explosions, strikes, fires or other causes beyond the control of parties of the second part.”
Fifth. “Upon the wilful failure of the parties of the second part to fulfil or comply with any, or all, of the conditions and stipulations hereby imposed' upon them or the terms thereof, then 30 days after written notice of such willful breach on the part of the parties of the second part, having been given them by parties of the first part; then if said willful breach continues, the tenure of this lease shall, at the option of said parties of the first part, expire and terminate.”

The lease contract was incorporated and made a part of appellee’s petition, which did not allege the giving of written notice to cancel or terminate the lqase thirty days prior to the filing of the suit, and, as stated, the proof showed such notice to have been given for only twenty-five days at the time this suit was filed. We interpret the lease as requiring the giving of thirty days’ notice as a prerequisite to the prosecution of this suit to cancel it'for breach of its con;-ditions, relied upon by appellee, which were sufficiently alleged.

The trial court found that appellant did nothing to comply with the terms of the lease after he was served with the written notice on September 23, 1938, until November 23, 1938, when he was enjoined from doing any further work on the lease; and appellee seems to contend that since appellant did nothing during such sixty-day period, the trial court’s judgment should be affirmed.

This contention is untenable, because this suit was filed twenty-five days after the written notice was given, and manifestly the lessee was not required to spend any substantial sums of money to retain his estate after this suit had been filed to cancel the lease. The authorities hold that the prerequisite of notice to forfeit contained in a lease must be literally complied with. Gulf Production Co. v. Cruse, Tex.Com.App., 271 S.W. 886.

Appellee further contends that appellant breached the special limitations contained in the third paragraph of the lease contract giving lessee three months to prospect for minerals, to select locations, etc., and to which special limitations the thirty-day written notice provision has no application.

In this connection, the trial court found that appellant had complied with the provisions of this paragraph with respect to prospecting, but that he “did not find minerals or metals in quantities and richness so that same could be mined at a profit.” This quoted finding is not material under the interpretation we give to this paragraph, as well as to the whole lease contract. The third paragraph simply permitted appellant to commence prospecting within three months, to select locations for opening and working the mine or mines, and to make assay tests. There is nothing in the language to indicate that the parties intended that lessee should be required to actually discover minerals in paying quantities within the three-month period for prospecting and making ready for the opening and working of the mine or mines. We interpret the entire contract to require the “wilful failure of the parties of the second part to fulfil or comr ply with any, or all, of the conditions and stipulations hereby imposed upon them” as ground for forfeiture, to apply to any and all conditions required of appellant, whether they were to have been performed within the three-month or six-month period with reference to preliminary work in discovering and preparing to open and operate the mine or mines, or to thereafter prosecute the mining project with reasonable diligence.

It is also apparent from the fifth paragraph that the thirty-day written notice period was intended to apply to all conditions and stipulations required of appellant, because it specifically provides that if the “wilful failure * * * to fulfil or comply with any, or all, of the conditions and stipulations”' of the lease contract shall continue after thirty days’ written notice, then lessor may at his option terminate the lease. This is also true because the contract is a unit and shows that the intention of the parties was to lease the premises for the purpose of executing and carrying out the mining project; they stipulated for the reasonable and diligent execution of the contract by appellant, and then provided that if appellant wilfully failed to carry out the contract and its stipulations after thirty days’ written notice of such wilful breach on the part of appellant, appellee would have the right -to terminate the contract.

While the trial court found that no substantial work was done by appellant for a period of about one year immediately preceding the filing of this suit, there was no finding that the work had completely ceased; and in fact the uncontradicted evidence showed that appellant had remained in possession of the premises and had been doing some work during the entire period. Under such facts and circumstances, there was no complete abandonment of the premises which some authorities hold authorizes the forfeiture of the lease without notice; and the only ground for forfeiture of the lease contract was whether appellant had exercised under the facts and circumstances reasonable diligence in prosecuting the mining project; or whether he was guilty of “wilful failure to fulfil or comply with any, or all, of the conditions or stipulations” within thirty days after written notice. Texas Company v. Davis, 113 Tex. 321, 254 S.W. 304, 255 S.W. 601; Stephenson v. Calliham, Tex.Civ.App., 289 S.W. 158; Gulf Production Co. v. Cruse, supra. Obviously, the parties intended that thirty days’ written notice was a prerequisite to the right of lessor to forfeit or terminate the lease contract. In consequence, apjpellee could not file or prosecute this, suit before the expiration of the thirty-day written notice period.

Having held that the lease contract could be terminated or forfeited only for a wilful failure on the part of appellant to fulfil or comply with - any or all of the conditions stipulated, after thirty days’ written notice of such wilful breach or failure, which thirty days had not expired when this suit was filed, the judgment of the trial court must be reversed and the cause dismissed, without prejudice, however, to the right of appellee to give the written notice required by the lease contract, and to proceed to terminate or forfeit the lease contract if the breach or failure of appellant to comply continues after the expiration of the thirty days’ written notice period.

The judgment of the trial court is reversed, and the suit is dismissed.

Reversed, and suit dismissed.


author: CODY, Justice.

text:
    ASSOCIATED INDEMNITY CORPORATION v. McGREW.
    No. 10992.
    Court of Civil Appeals of Texas. Galveston.
    July 3, 1940.
    Rehearing Denied Aug. 1, 1940.

      Vinson, Elkins, Weems & Francis, of Houston (C. M. Hightower, of Houston, of counsel), for appellant.
    Masterson & Bryan, of Angleton, and E. B. Pickett, Jr., and Bradford Pickett,, both of Liberty, for appellee.
   CODY, Justice.

This is a workman’s compensation case..

It is sufficient, we think, for the purposes of this,opinion to limit the statement. of the pleadings to thisThat appellee sued for compensation for total and permanent disability during 401 weeks, beginning with the 8th of December, 1937, the date he received his injuries; and in the alternative appellee sued for compensation for permanent partial disability for such time as the proof failed to show him entitled to compensation for total permanent disability. As a basis for a wage rate under one of the three methods provided by Art. 8309, Revised Statutes 1925, appellee pled that at. the time he was injured he had worked for more than a year in the same employment, either for his then employer or other employers, for wages of $7.50 per day and more, working 7 days per week; and in the alternative he pled that other employees of the same class working substantially the whole of the immediately preceding year in the same or a neighboring place were earning $7.50 per day, and more; and further in the alternative, appellee pled as a fair and just wage compensation, the sum of $20 per week.

Appellant answered by a general demurrer and a general denial.

The court submitted but four special issues to be answered by the jury, who found: (1) That the total incapacity to work which appellee suffered as a result of the injuries sustained on December 8, 1937, was not permanent. (2) That such total incapacity had continued and would continue from December 8, 1937, 104 weeks. (3) That appellee has suffered and will suffer partial incapacity after the end of his period of total incapacity. (4) That the percentage of such partial incapacity suffered by appellee is 60 per cent.

The appellee, in his motion for judgment on the verdict, set forth as the way the compensation rate should be computed, as follows:

“The amount of $7.50 being the average daily wage upon which to calculate the compensation that plaintiff is entitled to recover, the figures set forth in said draft of judgment are arrived at by this calculation, to-wit: 300x$7.50 is $2,250.00, which is the average annual wages; 1/52 of that amount is $43.26, which is the average weekly wages; 60% of that amount is $25.95, therefore, plaintiff is entitled to the maximum of $20.00 per week based on total incapacity for a period of 104 weeks, or a total, amount of $2,080.00; but the defendant having paid plaintiff for 34 weeks at $20.00 per week, a total of $680.-00, such amount deducted from the said item of $2,080.00 leaves $1,400.00 as the total amount due and to become due plaintiff during said total incapacity period of 104 weeks. Up to the week ending July 5, 1939, forty-eight weeks of said period have already matured, and figured at $20.-00 per week, the total amount so matured is $960.00, leaving a balance of $440.00 included in said item of $1,400.00 not yet matured. Also upon said matured amount of $960.00 interest, figured at 6%, has accrued to date, in the amount of $25.54, the total of said principal amount and interest thus being $985.54.
“As above stated, the average weekly wages is $43.26 and the percentage of plaintiff’s partial incapacity as found by the jury is 60%, therefore 60% of said $43.26 is $25.95, and 60% of said amount ($25.95) is the weekly wage rate upon which to figure plaintiff’s recovery during the period of his partial incapacity, such period being 297 weeks, this figure being arrived at by deducting the total incapacity period of 104 weeks from 401 weeks; 60% of $25.95 is $15.57, this multiplied by 297 makes a total of $4,624.29, the amount plaintiff is entitled to recover for said period of 297 weeks’ partial incapacity. See Section 11, Article 8306, Workmen’s Compensation Law.”

The court entered judgment in accordance with appellee’s motion for 104 weeks’ compensation at $20 per week, and 297 weeks’ compensation- at $15.57 per week, in compliance with appellee’s quoted motion.

Appellant seeks reversal of the judgment on the ground, first: That there was no basis for judgment against it, because (a) there was no evidence to establish a wage rate; (b) the evidence was insufficient to establish a wage rate; (c) and there were no jury findings upon which to base a wage rate. Second:' That the court should have submitted appellant’s requested issues on (a) permanent partial disability; (b) temporary partial disability; and decrease in percentage of partial disability. Third: That the court should have submitted appellant’s requested issue as to the differ■ence between average weekly wages at the time of the accident and the average weekly wage-earning capacity during partial incapacity; and should have ruled that there was no evidence, and insufficient evidence to establish a compensation rate for partial incapacity. Fourth: That the court rendered excessive judgment for partial incapacity.

With reference to appellant’s first contention, relating to the wage rate, the evidence was as follows: Appellee testified that on December 8, 1937 (the date of his injury), he was working for Smith & McDannald in the Hastings oil field in Brazoria County as a rotary helper drilling an oil well, but had only been working for such employer for two or three months; that before he came to the Hastings field he had worked at Rotan and at Dayton and in Louisiana; that since he had started to work he had done oil field work, pipeline work and mechanical work; when injured he was receiving $7.50 per ■day for eight hours work, and had received that while working in the Hastings field; that he had been doing the same kind of work for four years, and had been doing general oil field work for four to six years. T. O. Johnson, a witness for appellee, testified that he lived in Dayton, and knew appellee; he also testified that he (Johnson) had been an oil field worker in the drilling department for nine years, and that at the time appellee got hurt he, Johnson, was working for Loflin Brothers in the Hastings oil field; that he started working there the first part of January and left there just before Christmas in 1937; and that during that time he worked as_ much as 300 days; that during the first part of 1937, he was paid $7 per day, and in February they started paying him $8 per day; that he worked 7 days a week, and that every 2 weeks to 20 days he would earn 1 day overtime.

It is obvious that the evidence was insufficient to establish a wage rate under Section 1 of Art. 8309, which reads: “If the injured employe shall have worked in the employment in which he was working at the time of the injury, whether for the same employer or not, substantially the whole of the year immediately preceding the injury, his average annual wages shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed.” The evidence shows only what appellee made in the employment he was following for 2 or 3 months, and not what he earned in the same employment for substantially the'whole of the year immediately preceding the injury.

It is appellant’s contention that the evidence was likewise insufficient to establish a wage rate under Section 2 of Art. 8309, which reads: “If the injured employe shall not have worked in such employment during substantially the whole of the year, his average annual wages shall consist of three hundred times the average daily wage or salary which an employe of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed.” The respect in which appellant contends that the evidence is insufficient to establish a wage rate under Section 2 is this: That the evidence relative to the time that T. O. Johnson worked,conclusively shows that from January 1, 1937, to December 1, 1937 (the date appel-lee was injured), the said Johnson worked 342 days, and accumulated, 15 days’ overtime, or a total of 357 days. And appellant further points out that Johnson gave no testimony to the effect that the wages he received and the time he worked was the usual and customary wages paid to, and time worked by, employees in the Hastings field; and that under no theory of law could the trial court fix and determine the wage rate to be applied under Subdivisions 1, 2 or 3 of Art. 8309. In support of its contention that the service experience of T. O. Johnson could not be used on which to compute the wage rate to be applied under Subdivision 2 of Art. 8309, because the evidence showed that he had worked substantially more than 300 days within a calendar year or the 12-month period next preceding the injury, appellant cites Petroleum Casualty Co. v. Williams, Tex.Com.App., 15 S.W.2d 553, 555. In that case the court construed what was meant by the words “year” and “substantially” as used in Subdivisions 1 and 2. And while it is true that the court there held that “substantially a year, within the meaning of subdivisions 1 and 2, is exactly 300 days or close to, or near to 300 days”, the court did not hold .that the experience or service record of workmen who had only worked exactly 300 days within the calendar year next preceding the injury, or 'who had worked close to, or near to, 300 days within the calendar year next preceding the injury to the claimant could be used to make computation under Subdivision 2. If the evidence here shows that T. O. Johnson worked 357 days, of 8 hours each, between January 1, and December 8, 1937 (the date of appellee’s injury), that does not mean that the 300 days which Johnson actually worked next preceding December 8 cannot be used to compute the wage rate under Subdivision 2. In other words, the -fact that a workman has worked 7 days a week, and in addition has accumulated 15 days’ overtime within the space of the calendar year next preceding the injury to a claimant, cannot disqualify his experience or service record from being shown in evidence as to the working year, consisting of 300 days worked next preceding an injury. We do not agree with appellant that any cases which it has cited have so held, and in our opinion the Williams case, just referred to, is authority against rather than for such proposition. Under the ruling in the Williams case, when a workman has worked 300 days next preceding an injury he has worked a year so far as the purposes of the statute are concerned, albeit he may have worked substantially less than a calendar year of 12 months. The unit of measure to be applied under Subdivisions 1 and 2, the Williams case holds, is a work year consisting of 300 days actually worked by the injured person, or a similar employee, next preceding the injury, or about 300 days. The objection to the consideration of the service experience or work record of T. O. Johnson as fixing a wage rate under Subdivision 2, based on the fact that it shows that he worked 357 days of 8 hours each, next preceding December 8, 1937, and subsequent to January 1, 1937, is without merit; it is enough that he worked 300 days next preceding December 8, 1937, at an established wage rate. If appellant’s contention were valid, in a case where an employee had worked 364 consecutive days next preceding an injury, and within 12 months, and had received the same wage therefor, his service record would not be available under either Subdivisions 1 or 2, because he had worked substantially more than 300 da5rs within 12 months next preceding the injury. Such a construction does not commend itself to us as reasonable. Of course what we here say has no application to a situation where the method of calculation provided for in Subdivisions 1 and 2 do not have to be resorted to to determine the average annual wage. Howard v. Texas Employers’ Ins. Ass’n, Tex.Com.App., 292 S.W. 529; and see Texas Employers’ Ins. Ass’n v. Clack, 134 Tex. 151, 132 S.W.2d 399.

From what has been said it follows that the evidence to the effect that T. O. Johnson, a workman of the same class with appellee, had received a daily wage of $8 for 300 days next preceding December 8, 1937, was competent under Subdivision 2.

Appellant contends that it was necessary at all events to submit an issue to obtain a jury finding on the wage rate. However, the evidence on T. O. Johnson’s service record was not disputed. “Where the record shows without dispute that an employee has been working for a stipulated weekly wage or a stipulated daily wage for a period of more than one year next preceding the injury, it is not necessary for the matter to be submitted to a jury for its determination.” Casualty Reciprocal Co. v. Stephens, Tex.Civ.App., 25 S.W.2d 180, 183. And in the same case, when it later came before the Commission of Appeals, Judge Ryan said: “* * * Therefore it was not necessary to have submitted either of said issues. Where the record shows without dispute that an employee has been working for a stipulated-weekly wage or a stipulated daily wage for a period of more than one year next preceding the injury, there is no disputed issue for a jury to pass upon. Admitted facts should not be submitted. Lamar v. P. & S. F. Ry. Co. (Tex.Com.App.), 248 S.W. 34.” 45 S.W.2d 143, 147.

. Now it is undisputed that T. O. Johnson’s average daily wage for the 300 days next preceding the injury, and within the 12 months next preceding the injury, was in excess of $7.50. Appellant figures Johnson’s daily wage from January 1 to December 8, 1937, to have been $7.83, figuring the days he worked in January and February at $7 per day, and the remainder of the time at $8 per day, inclusive of overtime. And if this be correct, the fact 'that the court used as the average daily wage rate the sum of $7.50 (which was the sum alleged by appellee in his petition) for making his computation in the judgment rendered, is not harmful to appellant. In Fidelity Union Casualty Co. v. Carey, 55 S.W.2d 795, 796, the Commission of Appeals, through Judge, now Justice, Sharp, said: “The insurance company suing to set aside the compensation award could not complain that compensation was computed upon average daily wage, where consideration of total yearly earnings would ¡have resulted in an increased weekly rate.” (Citing authorities.)

There could be no harm to appellant in the granting of appellee’s motion to treat the daily wage rate that was proven without dispute to be in excess of $7.50, as being $7.50. On such basis the average annual wages, as shown by appellee’s motion for judgment copied in part hereinabove, is $2,250, and 1/52 of that amount, on the average weekly wage, is the amount of $43.26. We are unable to see how any harm could have resulted to appellant in awarding to appellee the maximum weekly award .based on total incapacity for a period of 104 weeks, less the 34 weeks at $20 per week which had already been paid.

For the reasons given it is our duty to overrule the first ground urged by appellant for reversal.

Appellant requested the court to given the following special issues, which requests were refused :

“Special Issue No. E: Do you find from a preponderance of the evidence that the plaintiff sustained any partial incapacity, as a result of his injury on December 8th, .1937?
“Special Issue No. F: When do you find from a preponderance of the evidence such partial incapacity began, if you have found that the plaintiff sustained partial incapacity in answer to Special Issue E?
“Special Issue No. G: Do you find from a preponderance of the evidence that such partial incapacity, as referred to in Special Issue F, was temporary ?
“Special Issue No. H: When do you find from a preponderance of the evidence that such temporary partial incapacity did or will cease, if you have found such temporary incapacity to exist, as referred to in Special Issue G?
“Special Issue No. J: Do you find from a preponderance of the evidence that the percentage of partial incapacity, if any, will decrease in the future, if you have found in answer to Special Issue 4 that the plaintiff has sustained partial incapacity?
“Special Issue No. K: At what period in the future do you find from a preponderance of the evidence that the percentage of partial incapacity will decrease?
“Special Issue No. L: 'To what extent do you find from a preponderance of the evidence that such percentage of partial incapacity will decrease?
“Special Issue No. M: Do you find from a preponderance of the evidence that such decreased partial incapacity will be permanent ?”

It is well settled that a defendant’s general denial is sufficient to raise the issue of partial incapacity, and its permanent or temporary character, where partial incapacity, and its permanent or temporary character have been pleaded by a plaintiff. Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314, 315, and case there cited and referred to. If there was proof made that appellee sustained temporary partial incapacity, or that the percentage of partial incapacity would decrease in the future, the failure of the court to give the issues would be error requiring a reversal of the judgment. The substance of the evidence in this connection is as follows:

Appellee testified that he was injured on the morning of December 8, 1937, by “tongs”, which were 5 feet long, and weighed about 200 pounds, striking him across the back with great force, knocking him unconscious. That he remained in the hospital about 11 days. That he was treated while there by Dr. Gates, who took X-ray pictures of his back and kidneys, and saw Dr. Gates the last time about December 28, 1937. In early January, 1938, not feeling that he had improved, appellee went to Doctors Dunnam and Kreimeyer, who discovered that in addition to his back injury that a leg had been broken. That in March Doctors Dun-nam and Kreimeyer called in Dr. Cowart for consultation on operating on appellee’s broken leg; and in April, 1938, the leg was operated on. That he continued under the treatment of Drs. Dunnam and Krei-meyer until August, 1938; and until that time he improved very little.

Dr. Gates, who had seen appellee between the date of the injury, December 8, 1937, and December 28, 1937, numerous times, testified at the time of the trial (June, 1939) that appellee would be completely well in 3 or 4 months from the time he was injured.

Dr. Cowart made an examination of appellee’s spine and knee in March, 1938, and saw the X-ray pictures which had been made, and testified that at the time he made such examination appellee was totally disabled, and that he would be unable to work for’ 6 to 8 months from the time he saw appellee, and that he would have some partial permanent disability. That the partial disability might remain the same, but it would likely decrease, and that the usual amount of permanent disability from such a fracture is from S to 15 per cent., and from the knee he would have some additional disability, and fixed his permanent partial disability at anywhere from 20 per cent, to 30 per cent.

Dr. Dunnam, who saw appellee for about a year, beginning January 4, 1938, testified that appellee was totally disabled at the time he last saw him (April 21, 1938), and that his total disability would last for a year; that appellee would have permanent partial disability of from 40 to 50 per cent.

Dr. Kreimeyer made X-ray pictures of appellee’s back and knee on January 5, 1938. On March 18, 1938, he again made pictures and they showed no improvement or change from January 5, 1938. On July 11, 1938, after the knee had been operated on, he took pictures of the spine, and they did not show any change over the other pictures. That appellee would have partial disability following the period of total temporary disability, and that his partial disability would be permanent, and would be around 40 to 45 per cent.

Dr. Barnes made an examination of ap-pellee on May 24, 1939, at appellant’s request; had appellee X-rayed. Dr. Barnes testified at length. He testified that injuries of the kind appellee suffered from had a tendency to get better; that as time passes on, “these little broken fragments become encysted or incapsulated * * * and as they do, they give less trouble, regardless of whether they unite any more with the bone or not.” His conclusion was that, all things considered, appellee had sustained a permanent partial disability of from 15 to 25 per cent.

Dr. Harris, who took the X-ray pictures for Dr. Barnes, gave some opinions in the abstract, but if he ventured to pass on the character of the partial disability of appellee as to being permanent or temporary we have failed to note it. Certainly no testimony given by him would authorize the submission of any issue, the failure to give which appellant here complains of.

The opinion of Dr. Gafes that appellee would be fully recovered in from 3 to 4 months was not sustained by subsequent progress. He had not recovered when examined by Dr. Barnes about a year and a half after his injury. And he was found to be suffering total disability more than 6 months after his injury. The last time Dr. Gates had seen appellee was about 20 days after the injury occurred on December 8, 1937. An opinion of a physician as to the condition of recovery that a patient will experience, which he subsequently finds from physical facts to have been erroneous, is entitled to no weight; just as the opinion of an oil expert that no production of oil can be had from a particular location in paying quantities is entitled to no weight against the physical production of oil from such location. Had Dr. Gates enjoyed the advantage of having examined appellee at the later dates, when the' other physicians examined him, appellee’s actual condition would have been as apparent to him as it was to such other physicians. There is simply no scintilla of evidence but that when appellee was last examined, May 24, 1939, he was still suffering partial disability. And we have concluded, after full deliberation, that the evidence of Dr. Gates, to the effect that appellee would fully recover in from 3 to 4 months, is insufficient to have required any issue submitted thereon, in view of it being undisputed that his opinion was by later developments, proved wrong.

The other doctors, in so far as they testified with reference to appellee’s condition, while they differed among themselves as to the extent or percentage of appellee’s permanent partial disability, did not differ with reference to the fact that he had suffered permanent partial disability. And while there was some evidence that conditions such as appellee suffered from ordinarily tended to get better, there ,was no testimony but that appellee was permanently disabled, and each doctor gave his own estimate of the extent of such disability. We are uuable to see that any issues, of fact were raised by the evidence that appellee sustained temporary partial incapacity, or that the percentage of partial incapacity would decrease in the future outside of the range of the estimate of the respective doctors as to the extent of the permanent partial disability. We therefore overrule the second ground relied on by appellant for reversal.

We have fully considered the third ground urged by appellant for reversal. In connection with the court’s charge the term “partial incapacity” was correctly defined. And under the authority of Traders & General Ins. Co. v. Patterson, Tex.Civ.App., 123 S.W.2d 766, 768, 769, it was not error for the court to refuse appellant’s specially requested “Special Issue No. N.” And the court having applied the prescribed formula, the judgment rendered for appellee cannot be held to be excessive, and the assignment urged on such ground is overruled.

The judgment of the trial court ought to be affirmed, and it is so ordered.

Affirmed.


author: MONTEITH, Chief Justice.

text:
    SOUTHERN UNDERWRITERS et al. v. WELDON.
    Nov. 11059.
    Court of Civil Appeals of Texas. Galveston.
    June 27, 1940.
    Rehearing Denied Aug. 1, 1940.

      Will R. Saunders, of Dallas, and Simpson, Dorenfield & Fullingim, of Amarillo (Claude Williams, of Dallas, of counsel), for plaintiffs in error.
    Schlesinger, Schlesinger & Goodstein and Charles J. Lieck, all of San Antonio, for defendant in error.
   MONTEITH, Chief Justice.

This is an appeal in a compensation suit brought by defendant in error, M. B. Weldon, who will be referred to as appel-lee, against plaintiffs in error, Southern Underwriters and Underwriters Employers Casualty Company, referred to herein as appellants, to set aside an award of the Industrial Accident Board and to recover compensation for total and permanent incapacity alleged to have been the result of an injury sustained by him on June 24, 1938, in the course of his employment with S. J. Moore & Sons, who carried compensation insurance with appellants.

Appellants answered by general demurrer, . exceptions, and a general denial.

In answer to special issues submitted, the jury found that appellee sustained an injury to his back on or about June 24, 1938, as the result of a strain received while working with road machinery for S. J. Moore & Sons; that he was totallj' incapacitated; that such total incapacity was permanent and not temporary; that it was not partial; and that it was not solely caused by an arthritic condition which existed prior to appellee’s injury.

Based upon the answers to said special issues, judgment was rendered in favor of appellee against appellants for 401 weeks compensation at $20 per week, reduced to a lump sum.

Appellants contend that no proper predicate was laid for the admission of certain X-ray photographs introduced by appellee, for the alleged reason that it was not shown that they were properly taken or correctly developed, or that they correctly portrayed the subject matter thereof.

The record shows that some four months after appellee’s alleged injury he consulted Dr. J. C. Hull, who later took X-ray photographs of appellee to further study his injuries. Six of these photographs were introduced by appellee. Appellants objected to the introduction of photographs marked Exhibits 1 to 4, inclusive, on the ground that they were irrelevant and immaterial and without proper predicate being laid to admit them. This objection was overruled, to which appellants excepted.

Dr. Hull testified that all of said photographs were taken 'in his presence and that he saw them developed; that his training called for him to examine X-ray photographs and to interpret them; that he had done this in the treatment of patients, and that it was part of his medical training, and that he, could interpret the photographs and tell the jury what they showed. He afterwards testified that the photographs showed an osteo-arthritis in the last lumbar vertebrae and sacrum, and in the articulation upon the sacrum, and that this indicated osteo-arthritis in the sacro-illiac region.

Appellants objected to the introduction of X-ray photographs marked Exhibits 5 and 6, for the reason that there were no pleadings to support them and that they had not been sufficiently identified, and that no proper predicate had been laid to make them admissible, or to authorize a reading or introduction of them. This objection was overruled. No exception is shown by the record to have been reserved by appellants to the court’s action in overruling the objection. Dr. Hull testified that he saw the arthritis in Exhibits 5 and 6, as in previous pictures. These facts were later brought out more fully by appellants in their, cross-examination of Dr. Hull.

Under the above facts, we think that a proper predicate was laid by appel-lee for the introduction of said X-ray photographs, and that the objections and exceptions made to the testimony in reference to them were not sufficient to apprise the court or opposing counsel of the grounds on which the objections were based.

' It is the general rule in this state that, where a party objects to the introduction of exhibits, he must state clearly and specifically the grounds upon which his objections are based at the time the exhibits are offered in evidence, so that the objections may be understood by the court and so that opposing counsel may have an opportunity of removing the objections made thereto, if they are capable of being removed, by other evidence. Our courts have further held that an objection to the introduction of testimony is waived on appeal by the failure to state the grounds on which the objection is based, and that failure to except to the action of thfe court in overruling objections to the introduction of testimony constitutes a waiver thereof. Campbell v. Paschall, 132 Tex. 226, 121 S.W.2d 593; Bankers Life v. Butler, Tex.Civ.App., 122 S.W.2d 1077; Garza v. Wilkinson, Tex.Civ.App., 129 S.W.2d 839.

Further, it is uniformly held that X-ray photographs of parts of the body are properly admitted in evidence when it is shown that the witness personally took or assisted in taking them, that they were taken in accordance with recognized standards of taking such photographs, and that they had been continuously in the possession of the witness. Federal Underwriters Exchange v. Cost, 132 Tex. 299, 123 S.W.2d 332; Houston & T. C. Ry. Co. v. Shapard, 54 Tex.Civ.App. 596, 118 S.W. 596; Utilities Indemnity Exchange v. Burks et al., Tex.Civ.App., 7 S.W.2d 1112.

Appellants assign error in the failure and refusal of the trial court, upon their request, to define the term “permanent” and to incorporate the definition in the court’s charge.

This question has been recently decided in the case of Metropolitan Ins. Co. v. Wann, Tex.Civ.App., 81 S.W.2d 298, in which it was held that it was not necessary to define the word “permanently” in connection with a special issue submitted to the jury. The court in its opinion stated that such term is not defined by any statute and is one in common use and of well known meaning, and that therefore a definition of it was not necessary to enable the jury to properly pass upon and render a verdict on .such issue within the requirement of Art. 2189 of the Revised Statutes. This holding was based on the opinion in the case of Bankers Lloyds v. Pollard, Tex.Civ.App., 40 S.W.2d 859, in which a writ of error was refused by the Supreme Court, in which it was held that the court did not err in refusing to define the word “permanent”. Consolidated Underwriters v. Lee, Tex.Civ.App., 107 S.W.2d 482; Traders & General Ins. Co. v. Ray, Tex.Civ.App., 128 S.W.2d 80; Traders & General Ins. Co. v. Boyd, Tex.Civ.App., 121 S.W.2d 463; Federal Underwriters v. Simpson, Tex.Civ.App., 137 S.W.2d 132.

Appellants assign error in the action of the court in submitting to the jury special issue No. 6 of the court’s charge, which reads: “Do you find from a preponderance of the evidence that such total incapacity, if any, was temporary”, it being their contention that such issue erroneously placed the burden of proving that such incapacity was temporary upon them, rather than placing the burden upon appellee of proving that such incapacity was not temporary. This assignment cannot be sustained.

The record shows that in addition to special issue No. 6 above referred to, the court submitted to the jury special issues Nos. 26, 27, and 28, in each of which the question of temporary incapacity was submitted in a negative form, as requested by appellants in their specially requested issues Nos. 4, 5, and 6.

Further, the exact question here presented has been decided by the Supreme Court in the case of Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314, 316, contrary to appellants’ contention. In passing on the question the court says: “Should it be submitted [the issue in reference to plaintiff’s incapacity] in one issue, stated affirmatively; or in two issues, one in affirmative and the other in negative form? * * * The issue affirmatively phrased correctly submits plaintiff’s alternative basis of recovery and at the same time accords defendant an affirmative submission of its ground of defense. The burden of proof is not misplaced by an affirmative statement of the issue, as the defendant has the burden of establishing by a preponderance of the evidence its defense of partial incapacity. Nor has defendant any just ground of complaint to its submission affirmatively. It is no more onerous for defendant to establish the fact of partial incapacity by an inquiry stated affirmatively than it would be to establish the same fact by an inquiry phrased negatively. * * * No reason is apparent why the finding of the jury upon the issue affirmatively submitted cannot justly serve the diverse purposes of plaintiff and defendant.”

The rule laid down in the Wright case has been .followed in the cases of National Indemnity Underwriters v. Blevins, Tex.Civ.App., 129 S.W.2d 734; Southern Underwriters v. Stubblefield, Tex.Civ.App., 130 S.W.2d 385; Traders & General Ins. Co. v. Porter, Tex.Civ.App., 124 S.W.2d 900, 902.

Appellants assign error in the failure of the trial court to submit to the jury their specially requested issue No. 1, which reads: “Do you find from a preponderance of the evidence that the plaintiff is suffering from any disability to work and labor which is not due to an arthritic condition existing prior to June 24, 1938”, for the alleged reason that such issue was a defensive issue and that it was raised by the evidence.

While the evidence in this case clearly raises the issue that appellee was suffering from an arthritic condition in his back prior to the date of his injury, the record shows that the question pre-’ sented by appellants’ requested issue was submitted to the jury in substantially the same form in special issue No. 22 of the Court’s charge, which reads: “Do you find from a preponderance of the evidence that plaintiff’s incapacity (if any you have found) is not solely caused by an arthritic condition, if any, existing before June 24, 1938, disconnected with an injury, if any, sustained by him on June 24, 1938, while working for S. J. Moore & Son?”

This issue not only submits to the .jury the question as to whether appellee was suffering from disability caused by an arthritic' condition which existed prior to his injury, but it submits the ultimate issue as to whether this arthritic condition was the sole cause of his disability. The issue requested by appellants does not call for a finding as to sole cause, therefore no judgment could have been based -on an answer thereto.

While it is now the settled law that either party to any action is entitled to have submitted to the jury any fact or group of facts which would constitute a complete ground of recovery or a complete defense, if supported by pleadings and evidence, it is neither necessary nor proper to submit the same issue in different form or language. Allcorn v. Ft. Worth & R. G. Ry. Co., Tex.Civ.App., 122 S.W.2d 341; Jordan v. Morten Investment Co., 127 Tex. 37, 90 S.W.2d 241; Hom-Ond Food Stores v. Voigt, Tex.Civ.App., 115 S.W.2d 981; City of Winters v. Bethune, Tex.Civ.App., 111 S.W.2d 797.

Further, it is now the settled law that the fact that a compensation claimant was partially incapacitated from disease prior to the time he received an injury for which compensation is sought, would not prevent him from recovering compensation for the full amount, which, under the law, he was entitled to receive without reference to the disease. Texas Employers Ins. Ass’n v. Parr, Tex.Com.App., 30 S.W.2d 305.

Appellants assign error in the action of the trial court in overruling their objections to the court’s definition of “total incapacity” and in refusing to include in his definition of that term the additional provision that a person would not be totally incapacitated if, taking into account the nature of the physical injury, the occupation and suitableness of the injured employee to do some other kind of work than that in which he was engaged at the time of the injury, and his age at the time of the injury, such employee could do and perform other types or kinds of work than that in which he was engaged at the time of the injury in such a manner as to obtain and retain employment in such type of work.

The court gave the following definition of “total incapacity”: “You are instructed that ‘total incapacity’ as used does not mean ah absolute inability to do any kind of work, but means that one must be so disabled that he cannot perform the usual tasks of a workman to the extent that he can obtain and retain employment.”

The definition given by the court follows substantially the definition of the term heretofore approved by our courts where similar contentions have been made. Federal Underwriters Exchange v. Simpson, Tex.Civ.App., 137 S.W.2d 132; Southern Underwriters v. Stubblefield, Tex.Civ.App., 130 S.W.2d 385; Traders & General Ins. Co. v. Porter, Tex.Civ.App., 124 S.W.2d 900; Texas Employers Ins. Ass’n v. Brock, Tex.Com.App., 36 S.W.2d 704. This contention of appellants is therefore overruled.

We have fully considered all other propositions presented in appellants’ brief. None of them, in our opinion, show reversible error. The judgment of the trial court will, therefore, be in all things affirmed.

Affirmed.


author: SPEER, Justice.

text:
    RENSHAW et al. v. WISE COUNTY et al.
    No. 14142.
    Court of Civil Appeals of Texas. Fort Worth.
    April 19, 1940.
    Rehearing Denied July 12, 1940.
    M. W. Burch, of Decatur, and Chas. A. Baker and Mack & Mack, all of Fort Worth, for relators.
    Jennings C. Brown and H. G. Woodruff, both of Decatur, for respondents.
   SPEER, Justice.

This is an application by R. R. Renshaw, Horace Renshaw and the Federal Land Bank of Houston, Texas, a corporation, hereinafter called relators, for a writ of prohibition and injunction against Wise County, Texas, Harlan Brown, County Judge thereof, Abe Birdwell, T. F. Cooke, R. H. McClung and Ed L. Paschall, County Commissioners of said County, members of and composing the County Commissioners’ Court of Wise County, Texas, H. G. Woodruff and Jennings Brown, hereinafter referred to as respondents.

Relators pray that this Court will issue its writ of prohibition and injunction against respondents, enjoining and prohibiting them from instituting or prosecuting any other suit or suits, proceedings or other actions, which would assail, attack or otherwise- in any respect seek to set aside or have held for naught, a judgment in cause No. 2871 in County Court of Wise County, on September 29, 1939, affirmed by this court under our No. 14100 on certificate, January 12, 1940.

From the pleadings of relators and the reply of respondents we gather that respondents, other than attorneys Messrs. Woodruff and Brown, prior to November 5, 1938, filed with the County Judge of Wise County a petition, under1' Article 3264, R.C.S. Vernon’s Ann.Civ.St. art. 3264, for condemnation of a part of re-lators’ land, to be used by the State for highway purposes; that a Commission, as provided by Article 3266, was appointed and on the date last above given, the Commission .made its report to the County Judge, in which the Commissioners awarded to relators damages' amounting to $1,499.95.

On November 15, 1938, relators filed their written objections with the County Judge of Wise County, to the award of the Commissioners. The pleadings before us do not indicate when or how the cause found its way to the dockets of 'the County Court, but on April 8, 1939, respondents filed a motion in cause' No. 2871, styled State of Texas, acting by arid through the Commissioners’ Court of Wise County, against R. R. Renshaw et al., asking that the Court have the award of the Commissioners recorded in the minutes of that court as its judgment. This motion was denied by the court. Again, on June 5, 1939, the same parties filed a similar motion in that cause, and this motion was likewise overruled by an order which contained this language: “The court is of the opinion that objections to the award of Special Commissioners and notice of appeal to the County Court of Wise County, Texas, was properly filed within the time and manner prescribed by law with the County Judge of Wise County, Texas, to-wit, Mrs. Velma Davenport, on the 15th day of November, 1938.” The Court then set the case down for trial at the next term.

On September 6, 1939, the cause was tried to a jury and a verdict was rendered for relators for $4,535. Judgment was entered on the verdict on September 29, 1939, and respondents’ motion for new trial was overruled September 30, 1939, to which they excepted and gave notice of appeal. No bond by respondents 'being required'oh appeal, and no transcript having been filed in this Court, relators on December 23, 1939, filed in this Court their motion, accompanied by a certified copy of the trial court’s judgment, to affirm on certificate.On January 12, 1940, we sustained the motion and affirmed the judgment of the trial court. On January 29, 1940, mandate was issued -from this Court and sent to the County Court of Wise County, Texas.

Pending the matter in this Court, on December 14, 1939, .respondents in this cause filed their application to the District Court. of Wise County, in cause No. 6975, for a writ of mandamus requiring the County. Judge of Wise County to enter the award of the Commissioners as the judgment of the court. The writ was denied by the District Court. .

On February 12, 1940, relators here filed their application in the District Court of Wise County, in cause No. 7000, for a writ of mandamus to require the Commissioners’ Court of Wise'County to issue its warrant on the Treasury of that county for the amount of the judgment entered in re-, lators’ favor in cause No. 2871 in the County Court, above referred to. Citation and show cause order were issued out of the District Court in cause No. 7000 to respondents, and that action is still pending.

Four days after the filing by relators of the application for mandamus in the District Court in cause No. 7000, respondents filed in the County Court of'Wise County their petition in Bill of Review, attacking the validity of the judgment in cause No. 2871, praying that the judgment so entered on September 29, 1939; be ’ set aside and held for naught, that they have their hearing thereon and that relators be enjoined from attempting to enforce the said judgment in cause No. 2871. Motion by relators to dismiss the bill of review filed by respondents was overruled and that action is still pending.

As reflected by the contentions of the parties by their motions and briefs before us, relators contend that the judgment in cause No. 2871 in County Court is valid, and that the affirmance made it the judgment " of this court. Respondents contend that the judgment below, and likewise that of this court, were void because the County Court did not acquire jurisdiction, in .that the purported objections filed by relators to the award of the Commissioners were filed with the County Judge and not with the Clerk of the County Court within ten days after the award was filed by the Commissioners, as provided by Article 3266, R.C.S.

In condemnation proceedings, it is provided by Article 3264 that when political subdivisions of the State, having right of eminent domain, desire to take private property and cannot agree with the owner upon damages to be paid and shall file a Statement with the County Judge indicating the necessity and describing the property, the County Judge shall appoint three special commissioners to have a hearing and assess the damages.

By Article 3265, R.C.S., the Commissioners shall make their report of the hearing had and the damages assessed in writing and file them with the County Judge.

Section 6 of Article 3266, R.C.S., reads: “If either party be dissatisfied with the decision [of the commissioners], such party may within ten days after the same has been filed with the county judge file his objection thereto in writing, setting forth the grounds of his objection, and thereupon the adverse party shall be cited and the cause shall be tried and determined as in other civil causes in the county court.”

Section 7 of the same Article' provides, in effect that if no objections to the Commissioners’ award are filed within ten days after the award is filed with the County Judge, he shall cause the award to be recorded in the minutes of the court -as the judgment entered in the cause.

As best we can gather from the application of relators and the reply of respondents, at some time, we do not know when, a suit involving the condemnation of re-lators’ land found its way to the docket of the County Court and bears docket No. 2871. On two occasions previous to the trial had, motions were made by condemn-ors (respondents here) for the County Judge to enter the report and award made by the Commissioners, as the judgment of the court. The court declined to sustain both motions, giving as his reasons, that the objections to the award were duly and timely filed by relators “with the County Judge” within, ten days after the commissioners’ award was so filed.

If, after the objections of relators were filed with the County Judge, he in turn caused them to be filed with, or 'delivered to the clerk for filing, within the ten day period, we are inclined to the belief that the provisions of the statutes referred to by us would have been fully met, irrespective of whether or not they should have been filed with the clerk or the judge. The court’s declination to order the award of the commissioners to be filed as the judgment of the court indicates that these tilings may have occurred, although the judgment on the motions shows as above indicated.

To our minds, the statutes above referred to are of doubtful construction, as to whether the objections to the award should be filed with the County Judge or with the Clerk. We also entertain some serious doubts that if filed with either and they are in the possession of the clerk within the time required by law and the opposing party is cited and the cause “tried and determined as in other civil causes”, jurisdiction of the court attached.

Hardy v. City of Throckmorton, Tex.Civ.App., 62 S.W.2d 1104, involved an injunction against the County Judge entering the award of the commissioners as the judgment of the court. The award was made in a lump sum to several land owners whose property was sought to be condemned. It was claimed that the award was void, for the reason stated, and the appellate court was asked to enjoin further proceedings pending the appeal from the judgment of the trial court. The in-junctive relief was denied because it did not appear whether or not objections were filed by the land owners to the award of the commissioners. On motion for rehearing it was held in connection with the original opinion that objections to the award must be filed with the clerk and not with the County Judge. When that case was tried upon the merits and again reached the Eastland Court of Civil Appeals (70 S.W.2d 775) it was again held that objections to the commissioners’ award must be filed with the clerk and not the judge. Writ of error was refused by the Supreme Court.

In State v. Carpenter, Tex.Civ.App., 55 S.W.2d 219, it appears that in that case the award of the commissioners was filed with the county clerk instead of with the County Judge, as provided by Article 3266, supra. The State being dissatisfied with the award, filed its objections to the award with the clerk. The jurisdiction of the county court was attacked because the award was filed with the clerk and not with the judge. This question was first raised by the State on motion for new trial. The court held it had waived the irregularity complained of by proceeding to a trial on the merits. Other serious matters were involved in the appellate court. A writ of error was granted by the Supreme Court and the opinion of the Court of Civil Appeals was .reversed (126 Tex. 604, 89 S.W.2d 194) because erroneous charges ón value and measure of damages had been upheld by the Court of Civil Appeals. The question ' whether or not the trial court had acquired jurisdiction in the first instance was not discussed by the Supreme Court. However, the trial court and Court of Civil Appeals had both held that the former had jurisdiction, and if there had been merit in the contention that no jurisdiction attached, the Supreme Court would have dismissed the case instead of reversing and remanding it, as was done. It is fundamentally true that a judgment is void if the trial court is without jurisdiction, and it is equally true that this cannot be waived by the parties or either of them. We believe that when the Supreme Court took no cognizance of the contention of appellant, that the trial court was without jurisdiction, 'but reversed the cause for another trial, the, legal effect of its holding was that there was no merit in the contention.

If the filing of the award by the commissioners with the clerk instead of with the judge, as plainly provided by the statute, was an irregularity which could not affect the judgment entered, then-it is persuasive to us that a timely filing of objections thereto with the judge, when the statute does not state with whom they shall be filed, would be less irregular and of less importance to the question of jurisdiction.

As indicated in the first part of this opinion, we are without a record of what really took place prior to the placing of the controversy on the docket under cause No. 2871, relating to the time when the objections of relators came into the hands of the clerk, and the various orders and judgments entered (other than the judgment entered on the jury verdict) and hence cannot, at this time, determine whether the judgment which was affirmed by us on certificate was* valid, void or voidable. We pretermit passing upon that question in determining this application, but because of the absence of those things indicated which we deem essential to a determination of relators’ right to the writ of prohibition, we decline to grant the writ. If, as and when the whole record reaches this court, we will pass upon such questions then presented. Accordingly, the relief sought now is denied.


author: GRAVES, Justice.

text:
    CAFFEE et ux. v. McBEE et al.
    No. 11050.
    Court of Civil Appeals of Texas. Galveston.
    June 27, 1940.
    Rehearing Denied Aug. 1, 1940.

      R. E. Eubank, of Paris, and C. C. McKinney, of Cooper, for appellants.
    Cunningham, Lipscomb & Cole, of Bon-ham, for appellees.
   GRAVES, Justice.

This appeal is from a judgment of the 62nd District Court of Lamar County denying the application of the appellants to have-an instrument they declared upon as being the last will and testament of John H. McBee admitted to probate as such, the decree having been entered in response to special issues and the jury’s answers thereto, as follows:

“Question No. 1. Do you find from a preponderance of the evidence that on March 10, 1938, John H. McBee executed the instrument of that date offered in -evidence before you, by making his mark in his signature thereto for the purpose of making the signature his own?” Answer: “No.”
“Question No. 2. Do you find from a preponderance of the evidence that on March 10, 1938, that said John H. McBee executed said instrument referred to in Question No. 1 — if he did — in the presence of J. L. Magness and J. E. Cunningham, for the purpose of making the instrument his will and leaving his property at his death to Aaron Caffee and his wife, Ella Mae?” Answer: . “No”.
“Question No. 3. ' Do you find from a preponderance of the evidence that J. L. Magness and J. E. Cunningham each signed their name to said instrument on March 10, 1938, in the presence of John H. Mc-Bee as witnesses to the execution of his Will?” Answer: “No”. -
“Question No. 4. If you have found in answer to Question No. 1 above that John H. McBee executed the instrument in question, then do you find from a preponderance of the evidence that at the time of thfe execution of said instrument that said John H. McBee had testamentary capacity?” Answer: “No”.

The cause is here without a statement of facts, under a submission thereof on oral argument for the appellees to this court at Texarkana on June 10 of 1940; theretofore, however, at Galveston, on June 2 of the same year, the appellants had filed in this court their motion for a reversal and remanding, upon the alleged ground of their inability, without fault upon their own part, to obtain a statutory statement of facts therein from the official court reporter of the trial court; by this court’s permission the appellees filed written answer to and a contest of that motion, on June 10 at Texarkana, in connection with their stated oral argument.

Such motion and the reply thereto have been taken and considered with the cause itself, with the result that this court has become convinced that the motion is good and should be sustained.

In view of the nature and result of the suit, as in brief outline stated supra, it becomes obvious that a proper statement of all essential facts, as presented to the court below, is necessary to an adequate and authoritative review above of the action there taken; that is, it having been made to appear in this record that there was extensive testimony, both documentary and oral coming from a number of-instruments and witnesses, touching the quoted issues over whether or not McBee had executed the tendered document, as well as'over his mental condition as to capacity at the time, the complete absence of a reproduction of all that testimony here, would leave this court in no position to determine whether or not there had been any error of law below.

It is further made to appear that the Texarkana Court of Civil Appeals, from which, under order of the Supreme Court, this record was transferred to and filed in this court on January 27 of 1940, had, prior thereto, on or about December 21 of 1939, granted the appellants 60 days’ additional time over that prescribed by law in which to prepare and file a transcript and statement of facts in this cause; hence that additional time had not expired when the cause thus came under this court’s jurisdiction.

It is true the motion to remand now under consideration was not filed in this court until June 2, as recited, but the record makes plain that, in the peculiar circumstances shown to exist, the appellants had exercised all reasonable diligence, and done all they properly could have done to secure a statement of facts in question and answer form, as they requested from the Hon. W. C. Bernard, such official court reporter of the 62nd District Court, within the 60-day period so allowed them by the Texarkana court; further, that, since the cause thus came under the control of this,court on January 27 of 1940, with the previously-issued extension order by the Texarkana court then outstanding, appellants have, with reasonable diligence, continued up to the time of filing this their motion herein for a reversal, on the 2nd of June of 1940, their efforts to procure such a statement of facts, and that their failure to get it, both during the life of the Texarkana court’s order and since that time, has not been due to the fault or negligence of themselves, but rather to a state of illness and unfortunate inability upon the part of the court reporter to furnish it.

The record is thought to conclusively show, especially the correspondence between the trial judge and appellants’ attorneys, that they each and both did everything reasonable to procure the question and answer statement of facts R.S., Article 2324, calls for; but that they were severally circumvented by his continuing physical inability, against which then-existing or future condition, it not being within the capacity of any of them to know, they were all alike powerless.

It is" also true that other statutes, such as R.S., Articles 2240, 2242, 2243, and 2280, provide for obtaining a statement of facts independent of the court reporter’s notes, or one made by the judge; but in that connection- it affirmatively appears in this instance that, due to lapse of time, the loss or absence of documents introduced, failure of memory upon the part of the trial counsel and the judge, these other methods of procuring it had become impossible; not only so, but there is convincing proof, in addition, that no other person could read the notes of Mr. Bernard taken upon this trial, when they had been found by some one else after having, been lost by himself; wherefore, it seems to this court conclusive that the unfortunate physical disability of Mr. Bernard, as to which all parties concerned, including the trial judge, appear to have been most considerate, was the sole causa causans of appellants’ not having procured the right they were entitled to under R.S., Article 2324; that is, to have a question and answer form of statement of facts from the court reporter, who officially took the testimony down in court.

It further appears as a matter of law, it is concluded, that they were in no condition to compel by any process of law, like mandamus, or other writ, the production of an acceptable statement of facts in this instance; because no court could compel either an incapacitated court reporter suffering with disabling illness, nor the participating judge and attorneys, who were entirely unable to remember what the testimony had been, especially in the absence ■of material if not indispensable documentary-parts of the testimony received, to put together a statement of facts notwithstanding.

The affidavit of the ailing court reporter of December 12 of 1939, cited and relied upon by the appellees, does not negative these findings on the controlling facts for these, among other, reasons:

(1) It shows on its face that he had left his home at Paris on October 19, nine days before appellants, in due course prosecuting their efforts to secure a statutory statement of facts from him, mailed him their letter of October 28, inquiring when they could procure it at the earliest date from him;

(2) Pie neither answered that October 28th letter, nor ever thereafter at any time disclosed his willingness or physical ability either to appellants or to the district judge to make up such a statement;

(3) This court cannot go behind the Texarkana court’s 60-day order of extension, hence all questions touching appellants’ diligence are referable to their subsequent acts, under and pursuant to that order;

' (4) Here again the record conclusively shows such efforts were begun immediately after the issuance of that order and pursued steadily, with the same unsuccessful results- — -fhat is, finding that the court reporter was both inaccessible and unable physically to make up the statement of facts — up to and until the filing of this motion here on June 2 of 1940.

The facts here presented seem to bring' this cause squarely under the rule applied by our Supreme Court in Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697. Under this construction of that holding; it becomes unnecessary to cite other authorities, since, under it, the plain duty of this court, as well as its plenary power, is to reverse this judgment and remand the cause to the court below for another trial; it will be so ordered.

Appellants’ motion granted, and cause reversed and remanded.


author: MURRAY, Justice.

text:
    M. GARCIA GOMEZ & CHAMPION et al. v. LONGORIA.
    No. 10716.
    Court of Civil Appeals of Texas. San Antonio.
    June 26, 1940.
    Rehearing Denied Aug. 7, 1940.
    C. M. Wunderman, of Hou'ston, and Ab-ney & Whitelaw, of Brownsville, for appellants.
    R. A. Dunkelberg, of Brownsville, for appellee.
   MURRAY, Justice.

This cause originated in the County Court of Cameron County, Texas, in a probate proceeding therein pending styled In re Estate of Antonio Longoria, Deceased.

On November 22, 1937, Wm. D. Cleveland & Sons filed a petition in said probate proceeding seeking to -require Leah Field Longoria, as administratrix of the estate, to file an. exhibit of the condition of the estate.

On December 13, 1937, in pursuance to citation issued on the petition, Leah Field Longoria, as community administratrix of the estate of Antonio Longoria, deceased, filed an account and exhibit showing the condition of such estate. On December 21, 1937, Wm. D. Cleveland & Sons and M. Garcia Gomez & Champion, owners of valid and. subsisting claims against the estate, filed their objections and exceptions to said exhibit and account.

On February 11, 1939, the Probate Court of Cameron County, Texas, in said cause entered its order approving said exhibit, from which order the above named creditors prosecuted an appeal to the District Court of Cameron County, 103d Judicial District, and on April 24, 1939, by order of that date, the District Court entered an order re-classifying one of the claims as contained in said exhibit, from a claim of the fourth class to one of the third class, and otherwise in all things approved the action of the Probate Cotxrt, from which order of the District Court Wm. D. Cleveland & Sons and M. Garcia Gomez & Champion have appealed to this Court.

The exhibit shows, among other things, that Leah Field Longoria, as surviving wife of Antonio Longoria, was allowed the sum of $3,125 for a year’s maintenance for herself and her two minor children, and that she took the stock of goods and fixtures used in connection with a grocery store owned by the estate in lieu of the said sum of money. This was all provided for by order of the Probate Court, dated March 23, 1936.

After her husband’s death Leah Field Longoria took over the management of the grocery store and continued to operate it. She paid herself a salary of $125 per month for her services in conducting the store.

Appellants contend that this salary of $125 per month was sufficient for the support of Leah Field Longoria and her children, and that she should not have been allowed in addition thereto property of the value of $3,125 for the maintenance of herself and minor children. We do not sustain this contention. It will be borne in mind that this is not an appeal from the order making the allowance to the widow, but rather an appeal from an order approving the exhibit filed. The order granting the widow and her minor children a year’s allowance was a final judgment and, not being appealed from, becomes res judicata and is not' now subj ect to a collateral attack such as is here attempted by appellants. King v. Battaglia, 38 Tex.Civ.App. 28, 84 S.W. 839. Therefore, we cannot in this collateral proceeding consider whether’ or not there were facts existing which, would have made it improper for the Probate Court to have entered the order making provision for the maintenance of the widow and minor children for one year next succeeding the death of the husband.

The judgment is affirmed.