author: STOKES, Justice.

text:
    NATIONAL LIFE & ACCIDENT INS. CO. v. FRENCH.
    No. 5202.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 14, 1940.
    Rehearing Denied Nov. 12, 1940.

      E. L. Klett, of Lubbock, for appellant.
    Ralph Brock and G. V. Pardue, both of Lubbock, for appellee.
   STOKES, Justice.

On January 22, 1923, appellant issued and delivered to Malinda Bailey, a colored woman, who then lived at Ardmore, Oklahoma, a policy of life, accident and health insurance, which provided for certain weekly indemnities in case of sickness or disability resulting from accidents, etc., and for $30 at the end of the endowment period or in case of 'death. The premium on this policy was 25 cents per week and the beneficiary was her daughter, the appellee here, whose name at that time was Sarah Morrow. Appellee afterwards married one French and her name as beneficiary in the policy was changed accordingly by endorsement. This policy remained in force until October 26, 1925, when another application was made for a like policy providing for $135 to be paid to the beneficiary in case of death of the insured. This latter policy was issued by appellant, naming ap-pellee, ' Sarah French, as the beneficiary and thereafter no premiums were paid on the first policy. Under its provisions, however, there had accrued upon the first policy the sum of $11.50 paid-up insurance.

About the month of August, 1930, both the insured, Malinda Bailey, and her daughter, Sarah French, left Ardmore and moved to Lubbock, Texas. About March 3, 1930, the local agent of appellant at Ardmore arranged with Harriett Baker, another colored woman at Ardmore, a neighbor and friend of Malinda Bailey and Sarah French, to continue the weekly payments on the insurance policy then in force, and she continued the payments regularly until the death of Malinda Bailey at Lubbock on August 6, 1938. The record is not clear as to the reason why Harriett Baker began making the payments, but she testified that she made all of the payments after she was named by endorsement as beneficiary in the policy, which was March 3, 1930. After the death of Malinda Bailey, Harriett Baker made the necessary proof and appellant paid to her as beneficiary $125 in full settlement of the policy last issued on the life of the deceased. Some time thereafter, appellee discovered both of the policies in an old trunk belonging to her deceased mother and she made application to appellant for the amount due thereon, which was declined upon the ground that both policies were payable to Harriett Baker; that it had already made settlement under the last issued policy, and expressed a willingness to pay the $11.50 accrued as paid-up insurance on the first policy upon the receipt or agreement of Harriett Baker.

Negotiations for settlement having failed, appellee filed this suit against appellant in the county court to recover the amount of paid-up insurance due on the first policy and the full amount of the second policy, together with interest, 12 per cent, damages and reasonable attorney’s fee. The case was submitted to the court without a jury and judgment rendered in appellee’s favor for the full amount for which she had sued. Appellant excepted to the judgment, gave notice of appeal, and has perfected an appeal to this court, contending that the court erred, first, in rendering judgment for appellee upon both policies because the first policy had lapsed and the second policy was payable' to Harriett Baker as beneficiary who thereafter paid the premiums and kept it in force. Secondly, that the court erred in rendering judgment against appellant for 12 per cent, damages and attorney’s fees because there was at least a bona fide issue as to whether appellee was the beneficiary and it should, therefore, not be penalized for withholding payment.

The undisputed testimony shows that Harriett Baker was not related to Malinda Bailey in any degree and also that the deceased was not indebted to Harriett Baker in any sum whatever.

Regardless of what may be the rule in other jurisdictions it has been settled law in Texas since the early days of its judicial history that a person who does not have an insurable interest in the life of the insured in a policy of life insurance cannot be or become the owner of an insurance policy on the life of such person. In the event one having no such insurable interest is made the beneficiary in such a policy, even though it is done by the insured himself, he is not entitled to the proceeds merely because he has been named as beneficiary and he cannot, under our law, receive them unless the insured is indebted to him in some amount. Even then, he may only be reimbursed for the amount of such indebtedness. If he should perchance receive such proceeds he becomes the trustee for those entitled thereto. Price v. Supreme Lodge Knights of Honor, 68 Tex. 361, 4 S.W. 633; Cheeves v. Anders, 87 Tex. 287, 28 S.W. 274, 47 Am.St.Rep. 107; Manhattan Life Ins. Co. v. Cohen, Tex.Civ.App., 139 S.W. 51; Wilke v. Finn, Tex.Com.App., 39 S.W.2d 836; Sink v. Waco Mutual Life & Accident Ass’n, Tex.Civ:App., 49 S.W.2d 888; Smith v. Metropolitan Life Ins. Co., Tex.Civ.App., 123 S.W.2d 956.

There has been no material deflection from this rule by our courts and it is based upon the sound principle that to allow one to become such beneficiary is .against public policy. . Naturally he would be more interested in the early death of the insured than he would be in the prolongation of his life.

Appellant contends that appellee is not entitled to recover on the policies because she did not procure them; was in no sense a party to the contract, and did not pay the premiums accruing thereon.' While under the law the attempt to name as beneficiary in a life insurance policy one who has no interest in the life of the insured is, in a sense, void, yet it does not follow .that those who would otherwise be entitled to receive the proceeds of such a policy are not entitled thereto because of such an attempt or because they are not named as beneficiaries in the policy. The insurance company issuing such a policy is liable thereunder, although such an ineffective attempt was made. When such a policy is issued by the company to one having no insurable interest or the policy has been assigned to such a one, the insuring ■company is nevertheless liable for the full amount of the policy because it has contracted to pay the amount called for therein. In discussing this identical question, Judge Ryan, speaking for Section B of the Commission of Appeals, in the case ■of Wilke v. Finn, supra [39 S.W.2d 839], said: “It is no concern of the insurer as to who gets the proceeds, except to see that it is paid to the proper parties, under its - agreement. It is simply required to perform its contract, and the law will dispose of the. money according to the rights of the parties. [Pacific Mut. Life] Ins. Co. v. Williams, 79 Tex. [633] 637, 15 S.W. 478, and authorities cited.”

The second contention made by appellant is -that error was committed By the court in rendering judgment against it for the 12 per cent, penalty and attorney’s fee because, it says there was a bona fide issue as to whether or not appellee was the beneficiary and entitled to receive the insurance. We cannot agree with this contention of appellant. The evidence shows that when appellee applied to appellant for payment to her of the amounts due under the policies she was informed by appellant that she was not the last-named beneficiary under the policies; that they were payable to Harriett Baker and that its understanding of the law of the State of Oklahoma 'was that the insured had the right to change the beneficiary and name Harriett Baker as such if she so desired. Appellee’s claim to the proceeds of the policies was, therefore, declined by appellant and when the suit was filed appellant still denied that it owed appellee anything under the policies. It was shown by the undisputed evidence that the law of Oklahoma in respect to such matters is practically the same as it is in Texas, and it is difficult, therefore, to see how there could have been a bona fide issue as to whether or not appellee was entitled to the proceeds of the policies.

We have carefully examined the assignments of error and all the contentions presented by appellant and, in our opinion, no error is revealed by any of ■ them. The judgment of the court below will, therefore, be affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing in which it earnestly urges that we erred in our disposition of the case because, it says, the undisputed evidence shows that both appellant and appellee, as well as the insured, considered the original policies sued upon had lapsed for nonpayment of premiums; that a substitute policy was issued March 3, 1930, in which Harriett Baker was made the beneficiary, and she thereafter paid the premiums and kept the substitute policy in force. The statement of facts contains copies of three policies. The first policy, as stated' in our original opinion, lapsed and no complaint is made in the motion concerning our disposition of the small amount due as paid-up insurance on it. The second policy was issued November 9, 1925, in which Sarah French was named as the beneficiary. .It contains an endorsement in which the beneficiary was changed to Harriett Baker, the endorsement being dated March 3, 1930. The third policy, while not dated, contains an endorsement “duplicate policy and change of beneficiary issued at insured’s request on March 3, 1930.” The endorsement shows that it was intended as a duplicate of the former policy and the principal complaint made by appellant in the motion is that we treated the policy sued upon, which was the second policy, as a proper basis for the recovery by the appellee of the insurance provided in the third policy, which appellant'contends is a new and independent contract. While appellant, in its motion, designates the third policy as a “substitute” policy, it shows plainly to be a “duplicate”. We conclude, therefore, that the insurance and benefits provided by it were the same as the former policy. It did' not create any liability different from the original policy but was the same insurance and provided for the same liability as the policy of which it was a duplicate. Lewis v. Commercial Nat’l Bank, 37 Tex.Civ.App. 241, 83 S.W. 423. They both carried the same number, provided for the same amount, insured the life of the satiie person, and were originally payable to the same beneficiary.

Appellant contends also that appel-lee had no right to claim the proceeds or benefit of a contract to which she was not a party and upon which she paid no consideration. A consideration of the authorities cited in the original opinion will reveal that the law is otherwise. Our Supreme Court in the case of Cheeves v. Anders, 87 Tex. 287, 28, S.W. 274, 275, 47 Am.St.Rep. 107, in speaking of the public policy of this State concerning such matters, said: “Applying this salutary rule, the conclusion has been reached by our court that such [insurance] policy cannot be beneficially owned by any one not interested in the life insured, whether the policy be taken out in the first instance by the noninterested party, with or without the consent of the insured, or whether he acquired the policy by assignment from the person whose life is insured, or from another who had an insurable interest.”

This holding of the Supreme Court seems to be broad enough to establish the rule of law that a person having no insurable interest in the life of another simply cannot hold a policy of insurance upon such other person’s life. The same case holds that, when an insurance company issues a policy in which such person is made the beneficiary, the company cannot resist payment but must pay the amount provided in the policy to those entitled to receive it. The person entitled to receive the insurance in this instance was the appellee because she was the beneficiary in the second policy of which the third policy was a duplicate, and in which the insurance provided by the second policy was continued in force and effect. We think, therefore, it makes no difference whether the suit was based upon the second policy or the duplicate of it because each of them covered the same insurance and provided for the same liability.

The motion for rehearing will be overruled.


source: Caselaw Access Project

author: BOND, Chief Justice.

license: Public Domain

text:
    COX v. CHAMBERLIN METAL WEATHER STRIP CO.
    No. 12929.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 2, 1940.

      H. J. Kimball, Jack M. Topletz, and Levi Topletz, all of Dallas, for appellant.
    O. M. Stubblefield, of Dallas, for appellee. •
   BOND, Chief Justice.

This suit originated in the justice court, appealed to the county court, and on trial de novo to a jury, resulted in findings on which the court entered judgment for plaintiff in the sum of $131.40. In the justice court, the plaintiff, Chamberlin Metal Weather Strip Company, was designated as “a corporation incorporated under the laws of the State of Texas, with its office and place of business situated in Dallas County, Texas”; and, in the county court, by amended petition, designated itself “a corporation duly incorporated and existing by virtue of and under the laws of the State of Michigan, with due permit to do business in the State of Texas,” and alleged that it is the same corporation, plaintiff in the justice court, but through inadvertence, was referi;ed to as a “Texas corporation, incorporated under the laws of the State of Texas,” and that the cause of action, except for plaintiff’s designation of the state of incorporation, is the same as alleged in the justice court.

Where a suit arises in justice court, it is not error to permit amendments of pleadings in the county court where such amendments do not change the cause of action. Even had there been two corporations, one a Texas corporation and the other a Michigan corporation, which is not the case here, there is nothing in our jurisprudence to prevent the Texas corporation’s retiring from the lawsuit on appeal, and allowing the Michigan corporation to intervene in the county .court and assert that the demand sued upon belonged to it and not to the other corporation. Such does not violate the rule that “ * * * no new cause of action shall be set up when a case has been appealed from a justice court to the county court”. Scott & Co. v. O. D. Mann & Sons, Tex.Civ.App., 190 S.W. 847. Although, under the statute (Art. 958, R. C.S.1925), no new cause of action shall be introduced in the county court, there is no inhibition of new parties. However, there were no new parties brought into this suit. The plaintiff in the county court was, in fact, the plaintiff in the justice court, and there is no confusion as to who was the aggrieved party to the action. We overrule appellant’s contention that the trial court erred in overruling his plea to abate the suit because of the change of name to meet the true facts.

Appellant complains of fundamental error in appellee’s failure to prove, as alleged, that it is a “corporation duly incorporated and existing by virtue of and under the laws of the State of Michigan, with due permit to do business in the State of Texas.” We think the rule is well settled that a corporation, incorporated under the laws of another state, is required to make the further allegation that, as such, it has a “permit to do business in the State of Texas” (Chapman v. Hallwood Cash Register Co., 32 Tex.Civ.App. 76, 73 S.W. 969, 970); and the burden rests upon such corporation to prove the facts so alleged. However, failure to sustain the allegation by proof does not become fundamental error on appeal, unless presented in such manner as to enable an appellate court to consider the error apparent from the record. Accordingly, 'an appellate court, in searching for fundamental error, is not required to go into the statement of facts. No fundamental error appears where the judgment is one the trial court had power to render under the pleadings. The want or insufficiency of evidence to support a judgment is not such fundamental error as may be considered on appeal, in the absence of proper assignment of error, since that would involve a search through the statement of facts to verify the contention of a lack or insufficiency-of evidence to support the judgment. Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S.W. 533, 124 S.W. 85; Republic Ins. Co. v. Grant, Tex. Civ.App., 8 S.W.2d 550, and authorities there cited.

In the case at bar, it will be observed that, in the court below, defendant made no complaint by motion or otherwise of the want or insufficiency of evidence, to show that the plaintiff was a foreign corporation with “a permit to do business in the State of Texas”; and here, such contention is only presented in appellant’s brief as being fundamental error, dehors the record. In the light of the record, we are unable to sustain the contention as presented.

We have carefully examined all assignments of error and, finding them without merit, the judgment of the court below is affirmed.

Affirmed.


text:
    STONE et al. v. LUZIER'S, INC. et al.
    No. 5215.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 28, 1940.
    Motion to Retax Costs Overruled Dec. 9, 1940.
    See 145 S.W.2d 242.

      Tom L. Price, of Post, for appellants.
    Robert J. Allen, of Lubbock, for appellee Leona Roffey.
    Wilson, Randal & Kilpatrick, of Lubbock, for appellee Luzier’s Inc.
   STOKES, Justice.

This suit was filed on September 6,1938, by appellant, Wilma Ruth Stone, joined by her husband, Dale Stone, who reside in Garza County, against appellees, Lu-zier’s Inc., a Missouri corporation domiciled at Kansas City, and Leona Roffey, alleged to be temporarily residing in Garza County. The purpose of the suit is to recover alleged damages occasioned to the face and skin of appellant Wilma Ruth Stone by the application thereto of certain cosmetics manufactured and sold by Lu-zier’s Inc. and applied by, and under the directions of, Leona Roffey. Appellants alleged that Leona Roffey was the agent of Luzier’s Inc. and that, in the application of the cosmetics and" in giving the directions as to the manner in which the same should be used and applied, she was acting within the scope of her authority as such agent and employee of the corporate appellee. The citation was served upon appellee Leona Roffey personally and as agent of Luzier’s Inc., citing them to appear on the first day of the next term of the court to be holden at Post in Garza County on the 17th of October, 1938. On that day appellee Leona Roffey filed a plea of privilege iii due form alleging her residence to be in Lubbock County and praying that the cause be transferred to that county. On the .same day Luzier’s Inc. filed a petition and bond praying that the cause of action be removed to- the United States District Court sitting at Lubbock. The prayer for removal to the Federal Court was granted and an order entered by the district judge on the same day, October 17, 1938, in which the cause of action was removed to the Federal Court as prayed for. When the cause was reached on the docket of that court it was remanded to the district court of Garza County by an order entered in the Federal. Court on December 16, 1938.

The next term of the district court of Garza County convened March 13, 1939, and on March 14th, being appearance day of that term, appellants filed their affidavit controverting the allegations of the plea of privilege. On the 24th of March, 1939, the attorneys for Leona Roffey and the attorneys for appellants filed an agreement in writing under which they waived the issuance and service of process on the plea of privilege and controverting affidavit and agreed that the same may be heard by the court on Monday, March 27, 1939, at 10 o’clock A.M. or as soon thereafter- as the court should be able to hear the same. No further proceedings were had in the cause during that term of the court which expired April 8, 1939. The next term of the court convened on the 23d of October, 1939, for a four week session, and on the second day of that term appellee Leona Roffey filed a motion in which she requested the court to transfer the cause to the district court of Lubbock County in accordance with her plea of privilege, which motion was granted on the 13th of November, 1939, being Monday of the third week of that term, and the entire cause of action against both of the appellees was ordered transferred to one of the district courts of Lubbock County.

Appellants duly excepted to the order changing the venue, gave notice of appeal, and have perfected an appeal to this court where they assail the judgment and order of the court below transferring the venue to Lubbock County, assigning error therein upon two grounds: First, that the judgment and order were erroneous because of the stipulation entered into by counsel for the parties setting the plea of privilege for hearing on March 27, 1939, or as soon thereafter as the coupt should be able to hear the same, and, secondly, that the court committed error in changing the venue as to Luzier’s Inc. because it had filed no plea of privilege and had submitted to the jurisdiction of the court by filing an answer to the merits of the cause of action.

It has been repeatedly held by the courts that under the provisions of Article 2008, Revised Civil Statutes of 1925, the burden rests upon the plaintiff, and not upon the defendant, to procure a disposition of the defendant’s plea of privilege during the term at which the same is filed, or to make a positive showing to the effect that the business of the court was such as to prevent hearing upon it at that term. It is held, furthermore, that the plaintiff waives his contest of the plea where he fails to make such showing and thereby permits the court to lose jurisdiction over the cause of action at a succeeding term save only to transfer it to the proper court. Klapuch v. Dickey, Tex.Civ.App., 91 S.W.2d 484; American Fidelity & Casualty Co. v. Jones Transfer & Storage Co., Tex.Civ.App., 46 S.W.2d 1054; Humphrey v. Mirike, Tex.Civ.App., 134 S.W.2d 749; White v. White, Tex.Civ.App., 105 S.W.2d 779; Hall v. Butereg Co., Tex.Civ.App., 114 S.W.2d 403, 406.

In the recent case of Hall v. Butereg Co., supra, this court, in passing upon a similar question, and after citing some of the above cases and a number of others, said: “From the above authorities it is our’ opinion that the burden is upon the plaintiff to show some sufficient reason existed, which would excuse it from having the venue question determined at the term of court wherein the issue thereon was joined. In this case the plaintiff has failed to discharge this burden. We think, therefore, the trial court erred in overruling the plea of privilege of the defendant and was without authority to render a judgment on the merits.”

We think it may be said that the rule' is so well established by the many decisions of the courts of this state that it cannot now be questioned. The filing of the application to remove the cause of action to the Federal Court and the removal of it to that court on the first day of the term to which the citation was returnable excused the appellants from the duty of filing their affidavit controverting the plea of privilege until the cause was, by the Federal Court, remanded to the district court. The case not having been returned to the district court from the Federal Court until after the return term had expired, they had until the next term to file such plea, but their duty to file and urge it attached to that term in the same manner in which it attached, under the law, to the return term.

Appellants contend, however, that the stipulation entered into between counsel for the parties on March 24, 1939, relieved them of the rigors of the rule and entitled them to present their controverting affidavit and have the plea of privilege passed upon by the court at any time thereafter. The stipulation provided that the plea of privilege might be heard by the court on Monday, March 27, 1939, at 10 o’clock A. M. or as soon thereafter as the court may be able to hear the same. It was filed March 24, 1939, some ten days after the court had convened for that term. The plea of privilege was not heard nor passed upon at that term of the court nor until Monday of the third week of the succeeding term which convened on the 23d of October, 1939, and the record is wholly lacking in a showing of any excuse or reason why the matter was not presented to and acted upon by the court during all that time. As we have stated, and as has been held by our courts in many cases, the burden was upon appellants to show some sufficient reason by which they would be excused from having the venue question determined at the term of court wherein the issue was joined. We do not interpret the stipulation to mean that appellants were given the right to permit the matter to drift along indefinitely and to be presented to the court at any time they deemed it convenient. It plainly provided that the plea of privilege and issues drawn thereon may be heard by the court on Monday, March 27, 1939, or as soon thereafter as the court may be able to hear the same. Appellants do not contend that the business of the court was such that the issue could not have been tried and d'etermined during the March term, 1939, but that, by entering into the stipulation, appellees waived strict compliance with the rule. We do not agree with appellants in this contention and the assignment of error will be overruled.

The second contention made by appellants is that the court erred in transferring the venue of the entire cause of action to Lubbock County, thus requiring them to try, in the district court of that county, their cause of action against Lu-zier’s Inc., as well as their cause of action against Leona Roffey. In our opinion this assignment is well taken and must be sustained. The cause of action asserted by appellants in their petition is in tort to recover damages for personal injuries alleged to have been inflicted upon the appellant Wilma Ruth Stone. It charges the appellees as joint tort-feasors and alleges a cause of action in which, if supported by proof, the appellees would be jointly and severally liable for the damages occasioned by the acts complained of. Moore & Savage v. Kopplin, Tex.Civ.App., 135 S.W. 1033. The defendants could have been sued together in one suit or each could have been sued separately. In such cases it is well established that, under our statutes, the parties may be sued in any county having jurisdiction over them and where one of them is sued in the county of his residence it does not preclude the institution and maintenance of another suit or suits against the other or others in the counties of their residence. The effect of sustaining the plea of privilege of Leona Roffey was to create a severance of the cause of action and did not affect the proceedings in the district court of Garza County against the defendant Lu-zier’s Inc. It had not filed a plea of privilege nor was any such plea filed in its behalf. On the other hand, it had filed an answer in the case and submitted itself to the jurisdiction of that court, and the rule is well established in this state that where a cause of action is asserted against numerous defendants who are jointly and severally liable, the sustaining of a plea of privilege as to one or more of them and transferring the cause of action to the county or counties of their residence operates only as to the cause of action asserted against such defendants and does not in any manner disturb or affect the proceedings to recover against the remaining defendant or defendants who are shown to be within the jurisdiction of the court where the suit is filed. Comer v. Brown, Tex.Com.Apps., 285 S.W. 307; Harrison et al. v. Amador et al., Tex.Civ.App., 9 S.W.2d 279; Behannon v. Texas Refining Co., Tex.Civ.App., 78 S.W.2d 1017; Standard Accident Ins. Co. v. Pennsylvania Car Co., Tex.Civ.App., 15 S.W.2d 1081; Ortiz Oil Co. v. Farmers’ State Bank, Tex.Civ.App., 87 S.W.2d 780; Texas Mutual Reserve Life Ins. Co. v. Ormand, Tex.Civ.App., 115 S.W.2d 776; Snodgrass v. Kelley et al., Tex.Civ.App., 118 S.W.2d 836.

In Texas Mutual Reserve Life Ins. Co. v. Ormand, supra [115 S.W.2d 778], Justice Young, speaking for the Court of Civil Appeals of the Fifth District, in a similar situation summed up the duty of the trial court as follows: “The trial court should have sustained the venue plea of the Texas Mutual Reserve Life Insurance Company, and, under the rule of several, as well as joint, liability in a tort action, as illustrated in Standard Acc. Ins. Co. v. Pennsylvania Car Co. et al. [supra], the cause of action as to the Insurance Company is severed and transferred under its separate plea.”

It clearly appears from the authorities we have cited on the two contentions made by appellants that the action of the court below in transferring the case as against Leona Roffey under her plea of privilege was in keeping with the law and should be affirmed. It is equally clear, however, that the court erred in entering the order and judgment transferring the cause of action as against Luzier’s Inc., and its judgment in that respect will be reversed and the cause remanded with instructions to proceed with the trial of the case against the last-named defendant.


text:
    AMERICAN NAT. INS. CO. v. WILLIAMS et al.
    No. 12908.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 5, 1940.
    Rehearing Denied Nov. 9, 1940.
    Brame & Brame, of Sherman, for appellant.
    Jot Horton, of Sherman, for appellees.
   BOND, Chief Justice.

On July 2, 1934, American National Insurance Company issued an insurance policy on the life of Ruth Marie Copeland, in the sum of $210, with double indemnity for bodily injury, “solely through external, violent and accidental means”, resulting in the ' death of the insured. The policy designated Mattie Bell Love, mother of the insured, as beneficiary. The beneficiary, after the death of insured, divorced her husband, Robert Love, and married J. W. Williams, who joins pro forma in this suit. The policy provides, among the usual provisions in such policies, that “In event of the death of the insured from suicide, whether sane or insane, within two years from the date hereof, the liability of the Company shall be limited to the return of the premiums paid on this policy.”

On January 10, 1935, within the period of two years from the date of the policy, the insured died as the result of gunshot wounds inflicted, and, according to plaintiff’s petition, “by other persons than the said Ruth Marie Copeland, such other persons being to plaintiffs unknown, and such other wounds, which were injuries to the head of the said Ruth Marie Copeland, having been received in a manner unknown to plaintiffs, and by unknown means”; and, in the alternative, that “such wounds were received through external, violent and accidental means, being gunshot wounds accidentally received by the said Ruth Marie Copeland occasioned by a gun being accidentally discharged while in her hands * * * ”, resulting in .the death of the insured.

The Insurance Company denied liability, other than for the return of premiums paid, defended the action brought by the beneficiary and the plaintiff S. L. Talley (who claims an assigned interest in the recovery), principally on the suicidal provision of the policy; and, in due time, appropriately tendered all premiums paid ($2.90).

On the primary .and alternate theories advanced by plaintiffs,; First, that the insured’s death was the result of an accident ; and, Second, that the insured was a victim of a violent attack intentionally made' upon her by an unknown assailant, resulting in her death, the court, on the findings of the jury that the death of the insured resulted solely from external, violent and accidental means and not from suicide, entered, judgment in favor of the beneficiary for double indemnity, with penalty and attorney’s fees, aggregating the sum of $620.40, and in favor of the plaintiff S. L. Talley for the sum of $292.-50, which the judgment recites “shall be deducted from and is a part of said judgment for $620.40 above provided for in favor of plaintiff Mattie Bell Williams, and when paid to the said S. L. Talley, the same shall operate and be a credit upon the judgment for $620.40” awarded to her.

Upon a careful review of this record, we have been unable to find in evidence a remote suggestion to support the findings of the jury that the death of the insured was the result of an accident, or leading even to a conjecture that her death was caused by accidental means; and we see nothing in the record to rebut the uncontroverted evidence that the insured’s death was the result of suicide.

The evidence bearing upon the issue of suicide is,, in substance, as follows: The only persons at the house of the insured at the time of the unfortunate occurrence were W. H. Shipley, W. F. Canafax and the insured. W. H. Shipley testified that he was an operator of a taxicab in the City of Denison, and, on the evening of the death of the insured, he took Canafax — at his request — to the home of the insured to get some personal effects which he (Canafax) had left there; that when they went into the home, she (the insured) was lying on a bed, and while Canafax went into the room where the insured was lying, to get his effects, he stood in the doorway. Canafax got his effects, and as he was passing back through the insured’s room, she asked him to “kiss her (me) goodbye” ; Canafax said “Oh, well, wait a minute”, then turned and went out on the back porch. Testifying further; Shipley said: “Miss Ruth (the insured) turned on •her side and run her hand under the pillow — she had one hand under the pillow and one hand on top of the pillow — she was laying on her side and whirled over and run her hand under the pillow — she had one hand on tpp of the pillow and one hand under the pillow, and when she whirled back on her back she come back with a gun right in her temple. - * * * I jumped in the middle of the floor and said ‘Lord God, Canafax, get in here’, and he come in and wanted to know what happened.

“Q. Wait just a minute. You said she whirled and had a gun pointed up against her temple. A. She did.
“Q. Did you hear anything? A. Heard the gun fire.
“Q. Did you see the gun when it fired? A. I did.
“Q. Was it against her temple when it fired? A. It was. * *

Shipley testified further that he then called the policeman, George' Tinkle, who came and, after prying open her hand, took the pistol out of it, and that she was then dead. The other witness, Canafax, testified that as he passed the insured, lying on the bed in her room, she asked him to “kiss her goodbye”, and that, as he came out of the room, going down the steps leading tb the ground, he heard a gun fire; he returned to the room and, just as he got to the door, Mr. Shipley said “not to touch her or anything, she shot herself”. He' further testified: “I looked over and saw her lying on the bed. I saw the gun in her hand. I saw George Tinkle, a policeman in Denison, remove the gun from her hand. He pulled her hand open. I did not touch it.” This is all the testimony bearing on the issue of suicide, or the cause of the injury inflicted upon the insured. We have sought for a fact or circumstance which would substantiate a conclusion that the shooting was accidental, or throw suspicion on the parties present, that they, perhaps, had something to do with it. By the evidence, we think, the Insurance Company established to a moral certainty that the insured intentionally shot herself, inflicting a wound from which she died.

Indeed, the plaintiffs sought to impeach Shipley by imputing to hito contradictory statements, made two days after the killing, as to his presence' in the room and not being able to see the shooting. It cannot be disputed that the insured was shot at the time testified to by the witnesses, and, just before she was shot, requested Cana-fax to “kiss her goodbye”. The pistol was still in death grip of her hand when the officer arrived. Canafax, from his testimony, appears to have been a friend of the insured’s, and Shipley, a mere acquaintance, knew her only by sight. No reason whatever is shown why their testimony should be discredited; they bear no relation to the Insurance Company, and exhibited no enmity toward deceased or the beneficiary, that would justify a suspicion against their truthfulness. The undisputed facts establish that the shooting was intentional to that degree of conclusion which precludes a reasonable doubt to the contrary. No issue is raised by the evidence, as we review this record, of any intention of the insured other than to shoot herself.

Appellees advance the theory that, because there were no powder burns on deceased’s head, the bones of which were considerably broken, and the testimony of witnesses that, sometime before the death of the deceased, they saw two. men leading her from an outdoor closet to her house, by holding her arms; and that, several days after her death, they saw blood about the bed, on the floor of her room, on the back porch, on a beer bottle and an iron pipe ■ about the place, an issue was indicated, warranting the jury's finding that death was not the result of suicide. Such testimony] at most, could only raise a suspicion of violence inflicted by another, but such, we think, is not inconsistent with the positive testimony of the witnesses that the insured intentionally shot herself.

Juries are the judges of the weight of the evidence; yet they cannot properly deny lawful weight to undisputed facts. The law enjoins courts to review verdicts of juries in the light of the record, and to set verdicts aside when contrary to the evidence or the law. It appears that the jury in this case, without cause or reason, entirely disregarded the testimony of the only witnesses present at the time and place of the shooting, and found- that the injury to the insured was the result of an accident and not of suicide. Such findings, we think, were unauthorized and this court cannot do otherwise than reverse the judgment based upon them. However, it is not altogether improbable that plaintiffs might be able to strengthen their testimony on another trial, thus it becomes our duty to remand the case with instructions to the trial court to direct a verdict in favor of the Insurance Company, in the event the testimony,- on another trial, should be as revealed by this record.

There are other assignments -of error (many of which will not occur on another trial), duly considered by this court, but, in view of the disposition of this appeal, they are overruled. The judgment of the court below is reversed and the cause remanded.

Reversed and remanded.

On Motion for Rehearing.

Appellees earnestly insist that the insured was either murdered or accidentally killed, and, if murdered, the beneficiary is entitled to the face of the policy; and, if death resulted from accidental means, the beneficiary is entitled to double indemnity.

Evidently the case was not tried on the theory of murder. The trial court did not submit an issue, and none was requested, on that theory. The jury found that the insured met her death as the result of an accident and not of suicide, and, on such findings, the judgment was entered for double indemnity.

There is not a scintilla of evidence that the insured came to her death by accident, and the sum total of the jury’s findings is, that the insured was not murdered. Murder is the antithesis of accident; if death resulted from accident, certainly it was not murder. The only testimony surrounding the event of the insured’s death was that of the two witnesses mentioned in our original opinion, to the effect that her death was suicidal. Under the terms of the poli.cy, the burden was on the beneficiary to allege and prove the necessary elements of accident in order to recover double indemnity; and on the Insurance Company that the deceased came to her death as the result of suicide, to avoid liability for the face of the policy. The company successfully met the burden; accordingly, appellees’ motion for rehearing is overruled.


author: PRICE, Chief Justice.

text:
    RAY et al. v. FOWLER et al.
    No. 3989.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 17, 1940.
    Rehearing Denied Nov. 20, 1940.

      Andrew Longaker, of San Antonio, .for appellants.
    Crain, Vandenberge & Stofer, of Victoria, and Frank W. Martin, of Goliad, for appellees.
   PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of Goliad County. Judgment was against the plaintiffs (appellants here) and in favor of defendant (appellee here).

The first-question arising is, whether the petition of appellants gave jurisdiction to enter judgment herein. Trial was before the court on a second amended original petition. A plea of intervention was filed by Monnie Billups and Louis Billups, minors, through their next friend, Emily Billups Moore. This intervention adopted the second amended original petition of the other appellants. Appellee plead by first amended original answer. Appellants joined in a supplemental petition in reply to appellee’s pleading. The style of the second amended original petition is as follows: “Will Ray, et al. v. W. E. Fowler, et al,”' and then same is addressed to the court. The body of the pleading commences as follows: “Now come all parties plaintiff,” etc. The names of the plaintiffs are not given. In the fourteenth paragraph appears this allegation : “That defendant particularly knew of such need on the part of plaintiffs, Robert Billups, Clarence Billups, Mary B. Levi and Emily B. Moore.” In the supplemental petition Will Ray, Thomas Ray, Jessie Ray, Clarence Billups, Robert Bill-ups, Mary B. Levi, Monnie Billups, Louis Billups and Emily B. Moore, individually and as next friend, are named as plaintiffs. These named parties perfected this appeal. In the judgment each is specifically named and the appearance before the court of each is recited therein. We think the record sufficiently named the plaintiffs as required by Article 2003, R.S. 1925. Had the pleadings failed to name the parties plaintiff, we would be inclined to agree with the position of appellee that a judgment could not be validly entered in favor of the plaintiffs. Further, if plaintiffs had not been named, we think appellants’ contention that no valid judgment could have been rendered against plaintiffs and in favor of appellee is likewise sound.

Appellants were plaintiffs below and will be here so designated, and appellee will be designated as defendant.

This controversy in a large measure centers around the will of Mary Tippen Bill-ups, who died some time in the year 1925. Plaintiffs are the sole heirs of Mary Tippen Billups, and allege that they were the beneficiaries of the trust referred to in said will. Defendant was named as independent executor in the will of Mary Tippen Bill-ups, and upon her death caused the will to. be probated and took the oath as executor, and acted as such.

The will in question is set forth in the findings of fact and conclusions of law. filed by the trial judge. We believe that the setting forth of such findings in full will aid in the discussion of the issues-raised by this appeal.

“Findings of Fact
“I find that Mary Tippen Billups died-on of about January 12, 1925, leaving a last will and testament dated December 8,-1924, reading as follows:
“ ‘The State of Texas, County of Goliad,
“ ‘Know All Men by These Presents: That I, Mary Tippen Billups, also sometimes known as Mary Lippen Billups, of the said county and state, being of sound and disposing mind and memory, and being desirous of disposing of all my worldly estate with which it has pleased God to bless me, while I have the physical and mental strength so to do, do make and publish this my last' will- and testament, hereby revoking any and all wills by me at any time heretofore made.
“ T give, devise and bequeath all of the property, real, personal and mixed of which I may die possessed and all such that I shall be entitled to at such time, especially all money coming to me from the Government of the United States of America, to W. E. Fowler, trustee; to have and to hold and the same unto W. E. Fowler, his heirs and assigns forever.
“ ‘In explanation of the above I here state that I have instructed the said W. E. Fowler how I desire my said estate to be handled and I leave the matter entirely to his honesty and integrity and he shall have full power to collect any and all sums due and owing me from said Government of the United States as well as from any and all other sources and to sell, rent, manage and control all property of every nature and kind owned by me at the time of my death, all as he may deem best and proper, all without limitation or qualification of any kind.
“ ‘I nominate, constitute and appoint the said W. E. Fowler as Independent Executor of this will and direct that no bond or other security be required of him as such, and that no action be had in any court pertaining to my estate, than to prove and record this will and file an inventory and appraisement of my estate.
“ ‘Witness my hand at Goliad, Texas, this the 8th day of December, A. D. 1924, in the presence of O. L. Newman and C. C. Flowers, at witnesses who attest the same at my request.
" ‘The above instrument was now here subscribed by Mary Tippen Billups, the testatrix, in our presence, and we, at her request and' in her presence, and in the presence of each other, sign our names as attesting witnesses on the day and date heretofore set out, said Mary Tippen Billups making her mark and her name having been written by others. ■
“ ‘O. L. Newman
“ ‘C. C. Flowers.’
“I find that W. E. Fowler, defendant in the above cause, a practicing attorney of Goliad, Texas, drew the will hereinbefore set forth for Mary Tippen Billups in or about the year 1924, and that said W. E. Fowler had known the said Mary Tippen Billups for about twenty years prior to her death, she having worked for the said W. E. Fowler in his office and residence.
“I find that subsequent to the death of the said Mary Tippen Billups, the said W. E. Fowler made an application for the probate of the said will of Mary Tippen Billups and the same was duly admitted to probate in the County Court of Goliad County, Texas, on the 29th day of April, 1925, which said will is there recorded in Volume H, page 152, of the Probate Records of said County.
“I find that the said W. E. Fowler qualified as independent executor under the terms o'f said will on the 2nd day of May, 1925.
“I find that said W. E. Fowler has never filed an inventory and appraisement of the assets of said estate.
“I find that the said Mary Tippen Billups is now survived by children as follows, viz., four Rays of the half blood and five Billup-ses, the said Mary Tippen Billups having had four illegitimate children prior to her marriage to Billups. . ■ •
“I find that the said W. E. Fowler executed a deed covering the house owned by the said Mary Tippen Billups at the time of her death to one or more, but not all, of the plaintiffs in this cause.
“I find that Emily B. Moore, one of the plaintiffs in this cause, is a daughter of the said Mary Tippen Billups, and that one of the children of the said Mary Tippen Billups, Robert by name, was under twenty-one years of age at the time of the death of the said Mary Tippen Billups.
“Conclusions of Law
“I conclude that the plaintiffs herein are not entitled to recover against the defendant herein.”

None of the findings’of fact áre attacked by any of the parties to this appeal, and all find ample support in the evidence. In the findings and conclusions there is no construction of the will. Plaintiffs sought a conclusion of law by the trial court, “that the will of Mary Tippen Billups did not create a trust, but that it devised all of the estate * * * to W. E. Fowler, the defendant, in fee.” This was refused. Just why appellants sought this finding we are at a loss to understand.

Plaintiffs plead, among other things, that the will created a trust, but failed to name the beneficiaries thereof, but it was the intention of the testatrix that her children (plaintiffs) be the beneficiaries thereof. Parol evidence as to this undeclared intention of the testatrix was tendered, and, on objection, rejected by the trial court. This presents no error. The terms of a will cannot be amplified by parol evidence. Heidenheimer v. Bauman, 84 Tex. 174, 19 S.W. 382, 31 Am.St.Rep. 29.

Plaintiffs’ pleading, however, as we construe it, as a whole, was sufficient to present the theory that, if the trust was insufficiently declared, the beneficial title to the estate vested in them as the heirs of the testatrix. Further, they sought aij accounting from the defendant, insisting that he had converted the assets of the estate to his own use, and sought personal judgment against him.

It is deemed very clear that this will did not create an express trust. To constitute a trust the beneficiaries must be named, the terms thereof should be clearly set forth. These essential elements are all lacking. See Heidenheimer v. Bauman, supra.

When we come to consider the question as to whether she attempted to leave her property in trust, a more difficult question is presented. In other words, whether she intended to vest defendant with full legal and beneficial title to the estate, or to vest in him only the legal title.

It is the assertion of legal commonplaces to say that in the construction of a will the intention of the testator is to be sought — that such intention is the will; that the intention must be gathered from the four corners of the will.

In arriving at this intention it is permissible to consider the situation of the testator. Here we‘have a mother with a number of children, some of whom, perhaps, are without a legal father, disposing of her estate. There is no evidence that she had other than the natural maternal love for them. These children were the natural objects of her bounty. It is not a natural disposition that she left everything she possessed to her employer, without regard for the future welfare of her children. If the language of the will compels this construction, however, it must be so construed. Let us examine the will — “I give, devise and bequeath * * * to W. E. Fowler, trustee; to have and to hold the same unto the said W. E. Fowler, his heirs and assigns forever.” Then follows the third paragraph wherein is explained why she makes this devise: “I have instructed the said W. E. Fowler how I desire my estate to be handled, and I leave the matter entirely to his honesty,” etc. Then follows a broad delegation of power as to the management of the estate. If her intention was to give absolutely to Fowler, why delegate him power over the property? Ownership would, to the most primitive mind, convey the idea of absolute power of disposition. The testatrix knew when the will became effective her power over the property would have ceased. If she intended to absolutely give him the property, the expression of confidence in his honesty does not entirely harmonize with such intention. Unless this seemingly ignorant old' lady had an idea that her employer was to-.deal with the property as she had directed 'him, then the expression, “having confidence in his honesty,” becomes merely a gratuitous compliment.

In Heidenheimer v. Bauman, supra, the provision of the will in question was as follows: “All other property, both real and personal, which I may own or may be entitled to at the date of my death, after paying the aforesaid legacy to my wife, I give, devise, and bequeath to my brother, Abe Heidenheimer, in trust, to be disposed of by him as I have heretofore or may hereafter direct him to do.” (This quotation is found on page 178, of 84 Tex. and numbered paragraph three, on page 382 of 19 S.W., 31 Am.St.Rep. 29.) The Supreme Court held the trust invalid. Chief Justice Stayton, in the course of the opinion, said: “The bequest to Abe Heidenheimer, being in trust, without a declaration of the beneficiaries in the face of the will or by some paper that can be regarded as a part of it, is no bequest at all, so far as the beneficial interest is concerned, foi; it shows an intention that this should not vest in him, and does not declare in whom it shall vest, and the law vests it in appellant, who is the heir of the testator.”

In our opinion, so far as there is a manifestation of an intention of an attempt to create a trust, there is very little difference between this case and the instant case.

The case of Weller v. Weller, 22 Tex. Civ.App. 247, 54 S.W. 652, comes, in our opinion, more nearly supporting the contention of defendant, that the will vested in him absolute title to the estate than any other cited in the briefs. The will provided, in substance, as follows: “To testator’s wife and her heirs forever, to have and to hold, for her own use and benefit, until my heirs become of age, and for her to divide the amount due to each, that she, in her judgment, may be entitled.” It was held to vest fee simple title in the wife. However, we believe there is a substantial distinction between this case and the instant case. In the first place, the devise was to testator’s wife. Here, there is no such relationship. There, clearly, the determination of the ultimate interest of. the child was left to the unfettered discretion of testator’s wife. In reality the result was the same as though a trust had been declared, as the other heirs had been specifically excluded' from participation.

An able and comprehensive note is to be found on this question in 96 A.L.R. 959 et seq. In this note marry cases relative to this question are cited and discussed.

We hold that, under the -will in question, the defendant did not take the legal and beneficial title to the property. The legal title only was 'vested in him. The trust attempted to be created is void for uncertainty. This being true, the beneficial title to the estate vested in the heirs.

If this holding be correct as to the beneficial title to the property, the testatrix died intestate. In legal effect it is tantamount to a provision by the testatrix that after the debts are paid her estate should go to her legal heirs.

Defendant, upon the probate of this will, had the right to administer thereon in accordance with the will. This right was not conditioned on the compliance with the law as to filing inventory, ap-praisement and list of claims. Simkins, Administration of Estates, 3rd Ed., 176.

Notwithstanding this, it was still his duty to file the inventory and appraisement. Compliance with this duty, w'e think, might be exacted. Patten v. Cox, 9 Tex.Civ.App. 299, 29 S.W. 182. The County Court is, perhaps, the proper tribunal to vindicate this right for one having the right to the performance of this duty.

Included in the trial court’s findings of fact are findings on every .material fact as to which there is evidence. These findings are in accordance with the facts as plead by plaintiffs. There is, however, no finding as to the facts plead, but as to which there was no evidence. The question and answer transcript of the testimony consists of only some nineteen or twenty pages; much of this is taken up with objections, .arguments, exceptions, and rulings of the court. We have carefully read the statement of facts in connection with the trial court’s findings.

The fundamental question involved in this appeal is, should the court have entered a judgment other than the one entered ?

There was no evidence as to the nature and value of the estate left by the testatrix; as to debts, if any, owing by the estate; as to property, if any, sold by the executor to pay the debts; as to whether any property remains in the hands of the executor, and, if so, the nature and character thereof.

We think, manifestly, no money judgment could have been rendered against the defendant under the evidence. No judgment for specific property, for no specific property is shown to have come into possession of the executor.

Plaintiffs’ prayer for removal of defendant as trustee was based on the theory that the will created an express trust. The will did not create an express trust, aside from the executorship. As far as it went was to attempt to do so. It was not sought, we think, to remove him as independent executor.

It is only by construction that defendant can be held as trustee, as to the legal title of this property, for plaintiffs. After the completion of the . administration his duty was to deliver same to plaintiffs. There is no occasion to remove him as such constructive trustee. The law executes that trust.

In our opinion, the findings and evidence would not justify a judgment for final relief. The only possible judgment under the pleadings, findings and evidence, that might have been rendered was that defendant was liable to account to plaintiffs as to all property' coming into his possession as executor. Such a judgment would not, in our opinion, be a final judgment. Leyhe v. McNamara, Tex.Com.App., 243 S.W. 1074.

Beyond any question, plaintiffs’ petition sought final relief. In connection with the action a discovery was sought, but without insisting on the sought discovery which, we take it, would have consisted of defendant’s account as executor, plaintiffs announced ready for trial. This trial was not for interlocutory relief; the appointment of an auditor or master was not sought. On this trial plaintiffs’ evidence was insufficient to establish a right to final relief. It is unnecessary to discuss as to whether same would afford a basis for interlocutory relief, for such was not the purpose of the trial. By proceeding to trial on the merits plaintiffs, in our opinion, waived their right to such interlocutory relief. If plaintiffs had seen fit to offer evidence as to the nature and value of the property coming into defendant’s hands, a different question would have been presented. There is no reason shown in the record why this might not have been done. If the evidence had gone to this extent, the burden of proceeding might then have been upon the defendant.

In accounts of the nature and character of those here involved it may be customary for the trial court to appoint an auditor to state the account. This is in a large measure within the discretion of the court. 36 Tex.Jur., Sect. 3, p. 685.

Plaintiffs did not specifically pray for the appointment of an auditor. It is elementary that the court may hear the evidence and declare the ultimate right of the parties, without the aid of an auditor. Under the allegations of plaintiffs’ petition this audit would have been a relatively simple 'affair. It was averred that there were no debts of the estate of Mary Tippen Billups, except such as were incidental to her last illness and death; further that a large part of the assets of the estate was in cash when taken possession of by defendant.

We are constrained to hold that, under the pleadings and evidence, the court entered a proper judgment.

Plaintiffs assigned error on the exclusion of evidence. What we have here^ tofore said disposes of the assignments relating to the refusal of the court to permit parol evidence as to the terms of the trust ineffectively declared in the will.

Defendant was placed on the stand by plaintiffs and this question was asked by their attorney: “Have you ever made an accounting to any of them (meaning plaintiffs) ?” The court sustained the objection of defendant to the question. What the answer of the witness would have been does not appear. This was perhaps not essential, as the witness was the adverse party, and plaintiffs had the right to cross-examine him as to material matters, and could not be expected to anticipate his replies. Just what is comprehended in the question is hard to determine. It may be that it was intended to inquire as to whether the defendant had accorded plaintiffs their ultimate rights in the estate.

The only thing in the nature of a plea in this respect is set up in the sixth paragraph of the amended original answer, in which reference is made to an attached exhibit to the answer. This exhibit fails to show any accounting or settlement or anything in the nature thereof.

Assuming, without deciding, that plaintiffs were entitled to a response to the question, reversible error is not shown. There is no question, under the pleadings, that defendant did not account to the plaintiffs. However, to be entitled to a judgment, the burden was upon the plaintiffs to deduce evidence in support of their allegations for final relief. In this case they have failed to do this, and were, as held by the trial court, not entitled to a judgment.

The case is affirmed.


author: ALEXANDER, Justice.

text:
    HAMILTON NAT. BANK v. POOL, County Judge, et al.
    No. 2233.
    Court of Civil Appeals of Texas. Waco.
    Nov. 7, 1940.

      Lem Billingsley and John A. Lowther, both of Fort Worth, and H. W. Allen, of Hamilton, for appellant.
    Locke, Locke, Dyer & Purnell, Touchstone, Wight, Gormley & Touchstone, and Horace Wells, all of Dallas, and W. Eugene Tate, of Hamilton, for appellees.
   ALEXANDER, Justice.

This is a mandamus proceeding brought by Hamilton National Bank against the Commissioners’ Court of Hamilton County and others to compel said court to deliver to said bank certain county warrants issued by the county to pay for the erection of a county jail.

The record discloses that the Commissioners’ Court of Hamilton County entered into a contract with W. R. Lynch, Jr., and others as contractors for the erection and furnishing of a county jail in Hamilton County in consideration of certain time warrants to be issued by the county. The warrants were issued by the county and placed in the hands of the county clerk to be delivered to the contractors from time to time as the work progressed. The contractors, in order to obtain funds with which to erect the building, executed and delivered to the bank and its associates a written assignment of said funds. Said assignment was addressed to the County Judge and read as follows: “This is your authority to deliver to The Hamilton National Bank of Hamilton, Texas, all Hamilton County Warrants issued to me in payment for amount due me in constructing of County Jail Building,' for deposit to my account at the bank.”

Upon completion of the work, warrants to the amount of approximately $4,000 were still on hand undelivered. In the meantime, subcontractors and other creditors who had furnished labor and material for the erection of the building filed claims for their accounts and notified the county of the non-payment thereof. The trial court refused the writ of mandamus and the plaintiff has appealed.

The material question to be determined is whether the claim of the bank, as the contractors’ assignee of the undelivered warrants issued by the county for the erection of the county jail, is superior to the claim of creditors who furnished labor and material for the erection of the building and gave notice of their claim to the county before the warrants had been delivered to the bank. We think not.

The county warrants were nonnegotiable, 30 Tex.Jur. 432; Jenkins Common School Dist. v. Guaranty Bond State Bank, Tex.Civ.App., 103 S.W.2d 394, and the contractor’s assignee took no better title thereto than the contractor had. First National Bank of Marlin v. Dupuy, Tex.Civ.App., 133 S.W.2d 238, par. 4. Moreover, the bonds have never been delivered to the contractor. Vernon’s Ann.Civ.St., art. 5472a, Acts 1925, 39 Leg., ch. 17, p. 44, sec. 1, provides, in part, as follows; “That any person * * * furnishing any material * * * or labor to any contractor for any public improvements in this State, shall have a lien on the moneys, or bonds, or warrants, due or to become due to such contractors for such improvements; provided, such person, firm, corporation, or stock association, shall, before any payment is made to such contractor, notify in writing the officials of the State, county, town or municipality whose duty it is to pay such contractor of his claim.”

Under this statute, one who complies with its provisions acquires a lien on all warrants that are undelivered at the time of service of notice of non-payment of his claim for labor or material used in such public improvements. Texas Company v. Schriewer, Tex.Civ.App., 38 S.W.2d 141, par. 10; Smith v. Texas Co., Tex.Com.App., 53 S.W.2d 774. The contractors could not defeat the rights of such claimants by prior assignments of the warrants or funds to become due under the contract. McClintic-Marshall Corporation v. Maryland Casualty Co., Tex.Civ.App., 100 S.W.2d 438, par. 1; Metropolitan Casualty Ins. Co. v. Cheaney, Tex.Com.App., 55 S.W.2d 554; American Employers’ Ins. Co. v. Roddy, Tex.Com.App., 51 S.W.2d 280. Consequently, the trial court properly refused to grant the writ of mandamus. .

The judgment of the trial court is affirmed.


author: JACKSON, Chief Justice.

text:
    LUCK et al. v. BUFFALO LAKES, Inc., et al.
    No. 5210.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 21, 1940.
    Rehearing Denied Nov. 12, 1940.

      Syrian E. Marbut, Geo. W. McCleskey, and Nelson & Brown, all of Lubbock, for appellants.
    E. L. Klett, of Lubbock, for appellees.
   JACKSON, Chief Justice.

The record shows that Buffalo Lakes, Incorporated, W. H. Rogers and George Etz owned and operated in Lubbock County what is known as Buffalo Lakes, an amusement center, which they had enclosed. In this enclosure the owners had constructed some lakes for the purpose of furnishing the public such recreation as fishing, boating and swimming.

They had built a boat house, kept boats for hire, had fishing accommodations and maintained a swimming pool. Near the dam of the large lake, which was something over one mile long and about seven or eight hundred feet wide, the owners deposited sufficient sand on the bank and on the bottom of the lake to create an artificial beach and a pool with a smooth level bottom which sloped gradually toward the center of the lake thereby creating the swimming pool the depth of which varied from zero at the edge of the beach to more than six feet at the termination of the artificial sand bottom and the water was deeper as the middle of the lake was approached after leaving the sand bottom. In front of the swimming pool the owners erected a bathing pavilion which they maintained for the accommodation of their patrons, charged a fee for admission into the amusement center and an additional fee for bathing, wading or swimming in the pool.

On June 5, 1939 Arthur Ben Luck, the son of J. M. Luck and his wife, Gertrude Luck, an unmarried youth seventeen years of age, in response to the invitation and solicitation of the owners, together with some friends of his attended Buffalo Lakes, paid the fee charged for admission into the amusement center and also the fee for the privilege of bathing in the pool and young Luck while wading therein lost his life by drowning.

This suit was instituted in the District Court of Lubbock County by J. M. Luck and his wife, Gertrude, the appellants, against the Buffalo Lakes, Incorporated, W. H. Rogers and George Etz, the appel-lees, to recover actual and exemplary damages aggregating $14,653 on account of the death of their son, Arthur Ben Luck, alleged to have been the proximate result of several acts of negligence on the part of appellees, their agents, servants and employees. The sufficiency of the pleading is not attacked and will sufficiently appear from. the issues submitted to the jury and their answers thereto.

The appellees answered by general denial and charged the deceased with numerous acts of contributory negligence which they assert were the proximate cause of his death and these alleged acts will sufficiently appear from the special issues submitted thereon and the answers of the jury thereto.

The jury found in response to special issues submitted by the court in behalf of appellants that the appellees were guilty of negligence in the following particulars: failing to install markers showing the depth of the water in the pool at or near where the deceased was submerged; failing to install ropes by which a person might sustain himself at or near the place the deceased was submerged; failing to have on duty a competent and experienced life guard, and in failing to have on duty a person experienced in first aid treatment for drowning persons. However in response to special issues submitted in connection with these acts of negligence the jury found that no one of them was a proximate cause of the death of the deceased.

The jury found that appellants had suffered damage- by reason of the death of their son in the sum of $780; that the reasonable and necessary funeral expenses incurred by them was $350 and a marker at the grave of the deceased could be obtained for the reasonable and necessary cost of $50.

On the issues of contributory negligence urged by the appellees and submitted by the court the jury found that the deceased did not knowingly go into the water to such a depth that he was in danger of drowning nor knowingly wade out into the water too deep for one not able to swim; that he did not wade out to where he knew he would lose his footing and that he did not go to a dangerous depth knowing the danger thereof, but they did find that the deceased was guilty of negligence in entering water to the depth he did when he could not swim and that such negligence proximately contributed to his death; that in going out to where he sank he failed to use ordinary care to watch where he was going, but such failure was not the sole proximate cause of his death.

On these findings judgment was rendered that appellants take nothing by their suit and appellees go hence with their cost.

The appellants challenge as error the action of the court in rendering judgment against them since they assert that the testimony shows with such certainty that the negligent acts of appellees or some one of such negligent acts were a proximate cause of the death of deceased that reasonable minds could not differ thereon.

The testimony is sufficient to warrant a finding by the jury that the body of the deceased was found in the water at or near the place where he sank approximately fifty feet from the water’s edge where he entered the pool; that the bottom of the pool was level and smooth with a regular and gradual slope from the edge of the water to something over six feet in depth where the body of the deceased was located.

The deceased was seventeen years old at the time of his death. The appellants did not plead or prove want of discretion or any mental incapacity and the presumption is that he was a normal boy. Seinsheimer et al. v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063.

In addition to tjiis presumption the testimony shows without dispute that the deceased owned an interest in a news stand, had regular employment, a good personality and executive ability which enabled him to manage others; was industrious, ambitious, trustworthy and intelligent.

The deceased had been to the pool three or four times that season prior to the day of his death. He walked over the bottom of the pool, sandy, smooth and level with its regular and gradual slope from the edge of the beach to where the body was found approximately fifty feet where he drowned. He knew deep water was dangerous and especially dangerous to people who could not swim. He knew people were drowned in the water. Every step forward after he entered the pool, which was some seven hundred or eight hundred feet wide, informed him that the depth of the water was increasing; that with each advancing step water rose higher around his body suggesting that he was approaching danger but, notwithstanding these impelling circumstances, he continued on his way until he was beyond his depth. These facts should have warned a person of ordinary prudence that the risk was becoming greater and the menace, hazard and peril into which he was walking was more certain as he advanced, but none of these caused him to stop or to seek safety and none of them deterred him from continuing into the deep water where he drowned. The jury found that his death was not an unavoidable accident and the record authorized the jury to conclude that since this unfortunate young man refused to heed these natural danger signals he would not have heeded artificial markers advising him of the depth of the water and, hence, the failure to install markers was not the proximate cause of his death.

The appellants do not seriously contend that the testimony shows 'with such certainty that reasonable minds could not differ thereon that the proximate cause of the death of the deceased was the failure of ap-pellees to install a rope in or near-the part of the pool where' the deceased sank. They have set out no testimony in their brief and have not cited us to any place in- the statement of facts where testimony may be found that would establish with certainty that the failure to install ropes was the proximate cause of the drowning. We are cited to no evidence that would have authorized the court to peremptorily instruct a verdict in favor of appellants on this issue or that would authorize this court to set aside the finding of the jury thereon.

The jury found that the failure to have on duty á competent and experienced life guard and the failure 'to have on duty a person experienced in' treatment for drowning persons, though negligent, were neither a proximate cause of the death of the deceased.

The only testimony in the record on the question of proximate cause, on these acts of negligence is the evidence of some life guards, who gave their opinion as expert witnesses relative to the time it'would have required a competent life guard to have reached the deceased after his danger was observed and the testimony of some physicians who gave their opinions as experts on the probability of resuscitating a person after he had been submerged in the water several minutes.

The jury, with all the facts and circumstances before them either found that the testimony was insufficient to show proximate cause or discarded the expert testimony which under the law they áre authorized to do.

In Texas Employers’ Ins. Áss’n v. Humphrey, Tex.Civ.App., 140 S.W.2d 313, 316, writ refused, this court held:

“In National Life & Accident Co. v. Muckelroy et al., Tex.Civ.App., 40 S.W.2d 1115, 1117, the court says: ‘That opinion testimony of physicians is but advisory in nature and may be disregarded by the jury if they see fit.’
“In American National Insurance Co. v. Park, Tex.Civ.App., 55 S.W.2d 1088, 1090, the court says: ‘The jury had the right to discard the testimony of appellant’s medical examiner as an interested witness.’
“See' also Southern Underwriters v. Stubblefield, Tex.Civ.App., 108 S.W.2d 557.
“The probative force to be given to the testimony of experts is within the province of the jury and there is no rule of law which requires them to give conclusive effect to such testimony. Hodges v. Hodges, Tex.Civ.App., 111 S.W.2d 779; Traders & General Ins. Co. v. Ray, Tex.Civ.App., 128 S.W.2d 80.”

In our opinion the testimony on the issues of proximate cause on the acts' of negligence' relied on by the appellants was not so certain that reasonable minds could not differ thereon, was not so conclusive as to authorize the court to direct a verdict in behalf of appellants on these issues, and the findings of the jury thereon were binding on both the trial court and this court since proximate cause is a fact issue to be determined by the jury unless the court can say as a matter of law that proximate cause was established. Seinsheimer et al. v. Burkhart, supra; Henry v. Publix Theatres Corporation, Tex.Civ.App., 25 S.W.2d 695. The rule as deduced -from the authorities is thus stated in 30 Tex.Jur. 723, para. 62: “Nothing is better settled than that the question as to whether an' act of ‘negligence’ was the ‘proximate cause’ of an injury is a fact issue.”

Proximate cause was not made to appear as a matter of law and the appellees were entitled to a judgment independent of the issues on contributory negligence.

The appellants assail as error the action of the court in rendering judgment against them because they maintain there is an irreconcilable conflict between the findings of the jury on Issues Nos. 21, 24, 27 and 36 and Issues Nos. 33 and 34, all of which pertain to the contributory negligence of the deceased. In Issue No. 21 the jury found in effect that the deceased did not knowingly go into the water to such a depth that he was in danger of drowning; in Issue No. 24 that the deceased did not knowingly wade out into water too deep for one not able to swim; in Issue 27 that he did not knowingly wade out into the water where he knew he would lose his footing, and in No. 36. that in entering the water to a dangerous depth the deceased did not do so with knowledge of the danger.

It will be observed that each of these issues submitting contributory negligence was based on the knowledge that deceased had of the danger to which he was subjecting himself. ' In Issues Nos. 33 and 34 the jury found in effect that the deceased was guilty of negligence in entering the water to the depth he did when he could not swim and that such negligence proximately contributed to his death. It will be noted that the last two issues submit contributory negligence and proximate cause on the law of imputed knowledge; that is, .such knowledge as one should acquire in the exercise of ordinary care.

In determining conflicts in the findings of a jury in Casualty Underwriters v. Rhone et al., 134 Tex. 50, 132 S.W.2d 97, 99, the court said: “It will never be presumed that jurors intend to return conflicting answers, but the presumption is always to the contrary. Courts properly refuse to strike down answers on the ground of conflict, if-there is any reasonable basis upon which they may be reconciled. This is elementary.”

Were the facts such as would sustain the findings of a jury that the deceased was chargeable with imputed knowledge?

In Ebersole v. Sapp, Tex.Com.App., 208 S.W. 156, 157, the court holds: “Negligence can only be predicated upon knowledge, actual or constructive. Ignorance of facts exonerates from liability, unless such ignorance is culpable. Culpable ignorance is that which results from a failure to exercise ordinary care to acquire knowledge. Knowledge which could be acquired by the exercise of ordinary care is by the law imputed to the person, and he is held to have constructive knowledge.”

In Texas & P. Ry. Co. v. Wylie, Tex. Civ.App., 36 S.W.2d 238, 242, the law is announced in the following language and supported by numerous citations: “It is the essence of contributory negligence that the person to be charged therewith knew, or by the exercise of ordinary care should have known, of the circumstance or circumstances out of which the danger arose. Texas & P. Ry.- Co. v. Best, 66 Tex. 116, 118, 18 S.W. 224; Koons v. Rook (Tex.Com.App.) 295 S.W. 592, 597, par. 15; El Paso Printing Co. v. Glick (Tex.Civ. App.) 246 S.W. 1076, 1079, par. 5; Armstrong Packing Co. v. Clem (Tex.Civ.App.) 151 S.W. 576, 578, par. 3 (writ refused) ; St. Louis Expanded Metal Fireproofing Co. v. Dawson, 30 Tex.Civ.App. 261, 70 S.W. 450, 451, 453 (writ refused); Gulf, C. & S. F. Ry. Co. v. Smith (Tex.Civ.App.) 148 S.W. 820, 822, par. 1; Boltinghouse v. Thompson (Tex.Civ.App.) 12 S.W.2d 253, 254, par. 1; 45 C.J., p. 651, §§ 24 and 25; Id., p. 946, § 506; 20 R.C.L., pp. 107 et seq., pars. 93 and 94.”

See also Barnes v. Honey Grove Natatorium Co. et al., Tex.Civ.App., 228 S. W. 354; Texas & P. Ry. Co. v. Howell, Tex. Civ.App., 117 S.W.2d 857.

We deem it unnecessary to recite again the circumstances and facts disclosed by the testimony relative to the pool, its size, construction, level bottom, the gradual increase in the depth of the water, the distance the deceased proceeded into the pool, the depth of the water’where the body was found; that he knew he could not swim; that he had visited the pool previously, which, with other circumstances, we think were sufficient to authorize a finding that by the exercise of ordinary care the deceased would have realized his peril and stopped before going beyond his depth. This issue was, we think, included in the finding of the jury in answer to Special Issue No. 33, but if not, the presumption is that the court determined this issue in favor of his judgment. Wichita Falls & Oklahoma Ry. Co. et al. v. Pepper, 134 Tex. 360, 135 S.W.2d 79. In our opinion there is no irreconcilable conflict in the issues attacked when considered in the light of the facts and the law.

The appellants complain of the action of the court in admitting over their objection certain impeaching testimony relative to the evidence of Ted Glover. This testimony related to issues found by the jury in favor of- appellant and if erroneously admitted the error was harmless.’

The judgment is affirmed.