text:
    SOUTHERN UNDERWRITERS v. SCHOOLCRAFT et al.
    No. 3911.
    Court of Civil Appeals of Texas. El Paso.
    March 21, 1940.
    Rehearing Denied April 11, 1940.

      Simpson, Dorenfield & Fullingim, of Amarillo, and Benbow, Saunders & Holli-day, of Dallas (E. A. Simpson, of Amarillo, of counsel), for plaintiff in error.
    Joseph E. Childers, of Abilene, and Mc-Broom & Clayton, of El Paso, for defendants in error.
   WALTHALL, Justice.

This is a compensation case under the Workmen’s Compensation Law of this State.

The Southern Underwriters, plaintiff in error, the insurance carrier, brought this suit as plaintiff against J. A. Schoolcraft, as defendant, to set aside the award to Schoolcraft of the Industrial Accident Board.

On March 17, 1937, J. A. Schoolcraft was an employee of Southern Fuel & Transfer Company in El Paso County, Texas, a subscriber to the Employers’ Liability Act, as that term is used in our compensation statutes, which Company held a compensation insurance policy covering the employees of J. C. Hud'son; doing business as the Southern Fuel & Transfer Company, issued by plaintiff in error Southern Underwriters. On December 17, 1937, J. A. Schoolcraft, while in the course of said employment, and arising out of and originating in the work of his employer, sustained accidental injuries to the physical structuré of his body. School-craft was employed as a steel worker, and at the time of his injuries he was engaged in the line of structural steek work for his employer, and while in the act of taking a steel trass from the building where he was at work he accidentally slipped and fell from a height of some sixteen to twenty feet, -landing on a cement platform and beams, striking with his back and side against said platform and beams, a lengthy steel rod fell across him, and in his fall Schoolcraft sustained injuries. The injuries described in Schoolcraft’s cross action are: a broken pelvis on the right side; a broken right forearm and wrist; a-dislocated right kidney; torn ligaments and bruises to his right hip; a fracture of the neck of the right femur or thigh-bone; injury to his right sacroiliac and lumbro-sacral region, that is, his lower back and groins, with resulting arthritis.

Schoolcraft alleged and tendered evidence as to the effect of his injuries, such as his confinement in hospitals, treatment by physicians, and his confinement in a cast; ^ a slight shortening of the right leg due to the fracture of his hip; stiffening of his right wrist; loss of his ability to perform any kind or degree of manual labor.

Tie alleged that his injuries suffered in said accident are of a permanent nature and have produced and will continue to produce total and permanent disability.

He pleads in the alternative that he has •been totally incapacitated since the time of said accident and will be so incapacitated for two years in the future, and will thereafter be permanently partially incapacitated from performing manual labor or pursuing his line of work, and that his earning capacity will be permanently impaired and diminished to the extent of the per cent stated.

Schoolcraft had not worked in the employment in which he was working at the time he was injured, neither for his named employer nor for any other employer, for the whole of the year immediately .preceding his said injuries. At the time of his said injuries he was earning wages at the rate of $150 per month, his weekly wages being $34.62; other employees at neighboring places had been earning in excess of $150 per month, their weekly wages paid them being $34.62 or more during the whole of the year next preceding December 17, 1937.

Schoolcraft, under the facts stated, pleaded in the alternative the application of subdivisions one, two and three, ’section 1-, of Article 8309 of the Revised Civil Statutes. Schoolcraft also asked that the compensation be paid (him in a lump sum, and that he had assigned to his attorneys, naming them, one-third of all compensation recovered in full payment of their services. He prayed for judgment on his cross action, with interest as pleaded, less the compensation already paid him as stated.

Defendant in the cross action, the Southern Underwriters, answered by general denial, special denials, general demurrer and special exceptions.

The case was tried with a jury and submitted upon special issues.

At the conclusion of the trial the Southern Underwriters filed its motion for an instructed verdict which the court overruled. The court rendered judgment on the verdict of the jury, except as to the jury’s answer to question No. 21 only, based upon weekly compensation, on which, issue judgment was rendered on Schoolcraft’s motion for judgment non obstante veredicto, thereby fixing the weekly compensation at $17.31 instead of $20 found by the jury. The court overruled the- Southern Underwriters’ motion for a new trial, .and the cas£ is before us for review on writ of error.

Opinion.

The trial court in the charge defined “partial incapacity” as follows: “That the term ‘partial incapacity’ as used herein has the following meaning: It shall mean where an employee by reason of injury sustained iri the course of his employment is 'only able to perform part of the usual tasks of a workman, but, nevertheless, is able to procure and retain employment reasonably suitable to his physical condition and ability to work, or is only able to perform labor of a less remunerative class than he performed prior to his injury whereby he suffers a depression or reduction in his earning capacity.”

Southern Underwriters , excepted to the above definition, and in the brief states its-several exceptions, which we omit, but do state the substance of its contention.

Plaintiff in error’s contention is, as we view it, that the definition of partial incapacity as given, by the expression, “whereby he suffers a depression or reduction in his earning capacity,” makes School-craft’s incapacity to turn upon the question of whether he suffered a loss of earning capacity or a loss of wages, while the underlying purpose of the Workmen’s Compensation Law is tt> compensate an injured workman for either a total or partial loss of capacity to work and labor, and not for a loss of earning capacity or loss of wages.

Plaintiff in error refers to Republic Underwriters v. Brown, Tex.Civ.App., 117 S.W.2d 157, 158, in which case the definition of partial incapacity embraced the expression that the injury to the employee “so incapacitat[ed] him that he is not able to perform the tasks of his regular employment, but is able to secure and retain employment reasonably suited to his incapacity and physical condition at wages less than what was paid him before his injury.”

Also, in United States Fidelity & Guaranty Co. v. Baker, Tex.Civ.App., 65 S.W.2d 344, a somewhat similar definition of partial incapacity was given, and in each case the Court of Civil Appeals held the definition imposed upon the insurance carrier a greater burden than the law required or the insurance contract calls for, and reversed the case.

We will not, in the interest of brevity, review the cases. The Courts of Civil Appeals, it appears, have not been altogether harmonious as to a proper definition of partial incapacity.

In the instant case the trial court’s definition of partial incapacity, is the same as that found in Traders & General Insurance Co. v. Wright, Tex.Civ.App., 95 S. W.2d 753, decided by a divided court, which case was approved by the Commission of Appeals, and adopted by the Supreme Court in 132 Tex. 172, 123 S.W.2d 314, though the Commission of Appeals did not specifically discuss the definition in the case of partial incapacity. In the Wright case, as in the case at bar, the jury made no finding on the issue of partial incapacity. In Texas Employers’ Ins. Ass’n v. Hitt, Tex.Civ.App., 125 S.W.2d 323, 330, .a definition of partial incapacity is similar to that in the Wright case, in that it embraced the issue of reduction “in earning capacity is suffered.” The case was affirmed.

In Texas Employers’ Ins. Ass’n v. Clack, Tex.Com.App., 132 S.W.2d 399, 401, the Commission of Appeals said, “One of the underlying purposes of our compensation statutes is to compensate' an injured employee, not merely for loss of earnings, but for loss of earning capacity, at a. wage rate based on his capacity to earn when employed on a full-time basis. Maryland Casualty Co. v. Drummond, Tex.Civ.App., 114 S.W.2d 356, 360, writ refused; Traders & General Ins. Co. v. O’Quinn, Tex. Civ. App., 111 S.W.2d 859, writ refused,” and under the circumstances stated distinguished the case from others stated.

While we think our conclusion necessarily doubtful, by reason of the difference in opinion as above in the courts, we overrule plaintiff in error’s assignment.

When Schoolcraft was injured he was first taken to Hotel Dieu, an El Paso hospital, and there treated by Dr. Rogers. Schoolcraft thereafter went to Abilene, Texas, and was- there, at the instance of plaintiff in error, treated by Drs. Clark and Cooper, the latter a kidney specialist. Neither of the two named Abilene doctors was in attendance at the trial of this case in El Paso. In his argument to the jury one of the attorneys for defendant in error said: “They are going to say he (School-craft) refused to have a systoscopic examination here. They want to make out to the jury that he was afraid; yes, he was afraid, but hot of what it will show, but of spending two weeks in bed and having this case go over. Let them argue that he wouldn’t submit to the request of their physician; how many examinations do they want ? Dr. Rogers in the hospital made one, took X-rays of him, X-rayed him time and again, and then he went to Abilene and Dr. Cooper examined him and sent him to Dr. Clark. This boy didn’t pay him. Who paid him? Its in the testimony.”

Plaintiff in error objected to the argument on the ground that “It was a criticism of the Southern Underwriters for failure to produce Dr. Clark as a witness upon the trial of the case, and for the further reason that there was no evidence to support said argument.” The court overruled the objection.

There is nothing in the verbiage of the argument that Dr. Clark- was not in attendance on the trial. The rest of the argument seems to be in anticipation of a claim that plaintiff in error might make. We think the argument objectionable, but do not think it of that character that should reverse the case. In fact, in plaintiff in error’s lengthy argument in its brief and cases referred to, no mention is made of the latter part of the argument and the objection made. The assignment is overruled;

Dr. George Turner qualified as a specialist in laboratory and X-ray diagnoses branch of medicine or surgery. Dr. Turner made an examination of Schoolcraft on the day before he testified. He made four films, two of the urinary tract and two views of each lower forearm, wrist and hand, and testified as a witness for plaintiff in error. ■His evidence is extensive, covering some twenty-five pages of the record.

In his opening argument before the jury one of the attorneys for defendant in error said, “But getting back to that kidney position, always in the proper place. And I asked him, ‘Do you always, Doctor (Dr. Turner), find the right kidney lower than the left?’ ‘Yes,’ he said, ‘the right kidney is lower than the left,’ so then I read from a book on anatomy that doctors use, that he says is all right, and that book says that very frequently they are on the same level, the left and the right, but he didn’t think that was right, he had never seen any case like that. But Dr. Snow said he had an infected kidney. I don’t know what Dr. Cooper thought about that kidney, and neither Dr. Clark or Dr. Cooper were here.”

The objection made was that the argument was outside the record, and was a criticism upon plaintiff in error for failure to produce Dr. Cooper and Dr. Clark as witnesses, and highly prejudicial. The court overruled the objection.

The quotation read was from the textbook “Cunningham on Anatomy,” Sth Ed., page 1257, where the author says: “The precise level of the kidneys in the abdominal cavity is subject to a considerable amount of variation, and, further, it is usual to find a difference in level of the right kidney and left kidney in the same individual. Most frequently the left kidney is on a somewhat higher level than the right, and in many cases the .kidneys are found to occupy the same level, or, the more usual condition being reversed, the right kidney is a little higher than the left.”

Dr. Turner said, “In rare cases that might be true.” In answer to the question: “Then you disagree when you say, ‘In many cases the kidneys are found to occupy the sanie level?’” To which Dr. Turner replied: “I don’t recall ever seeing one, although there might be.”

We have stated the above in view of the objection that the argument was “outside the record.” The argument is not subject to the objections made, and the assignment is overruled.

Elsewhere we have stated that the trial court, on motion non obstante veredicto, set aside the jury’s finding of defendant in error’s wages of $20 and substituted therefor $17.31, and so entered judgment.

Schoolcraft’s pleading on his cross action and the evidence showed that he was not entitled to recover compensation under subsection 1 or 2 of section 1, Article 8309, R.C.S., 1925. The uncontroverted evidence shows that when Schoolcraft and others did steel work in El Paso and the neighborhood they received $40 per week, never less, hence he would be entitled under the statute to the maximum, or $20 weekly wages. For twelve weeks after the accident plaintiff in error voluntarily paid Schoolcraft $17.32 per week. As we view it, that sum marks the lowest measure of plaintiff in error’s liability.

The trial court took the position, however, that by accepting the above weekly payments such acceptance was evidence that the amount was proper under subdivision 3 of the above article of the statute. School-craft accepted and, in effect, waived his right to a higher wage. He had that right, hidelity & Casualty Co. of New York v. McLaughlin, Tex.Sup., 135 S.W.2d 955.

We think the case of Petroleum Casualty Co. v. Williams, Tex.Com.App., 15 S.W.2d 553, applicable here. In that case, as here, subdivisions 1 and 2 of section 1, Article 8309, R.C.S., were not applicable. The trial court rendered judgment for $15.58 as a weekly compensation under the third subdivision of Article 8309. The Court of Civil Appeals, 4 S.W.2d 631, set that aside and entered judgment for $20 per week, the amount allowed by law. The Commission of Appeals affirmed the increased compensation made because at the time the injury was sustained the injured employee was working at such increased weekly wage, and it would be right and proper in such a case to compute the average annual wages to allow compensation on the basis of wages received at the time of the injury. School-craft had worked less than a year, but had at all times worked on the basis of the customary wage, $40 or more per week.

It has been held that the making of partial weekly payments at a given rate of compensation is an acquiescence in the fact of the issuance of a policy by a compensation company, and proof of the stated weekly wage. We refer to some of the cases, without comment. Texas Employers’ Ins. Ass’n v. Beckworth, TeX.Civ.App., 42 S.W.2d 827, 831; Georgia Casualty Co. v. Ginn, Tex. Civ.App., 272 S.W. 601; Independence Indemnity Co. v. Polk, Tex.Civ.App., 14 S.W.2d 330; Barron v. Texas Employers’ Ins. Ass’n, Tex.Com.App., 36 S.W.2d 464, 465; Traders & General Ins. Co. v. Rhodabarger, Tex.Civ.App., 93 S.W.2d 1180, case dismissed. In Texas Employers’ Ins. Ass’n v. Hamor, Tex.Civ.App., 97 S.W.2d 1041, it is held that proof of payment of weekly compensation by the insurance company is sufficient to establish the compensation rate. Fidelity & Casualty Co. of New York v. Branton, Tex.Civ.App., 70 S.W.2d 780, writ dismissed. The assignment is overruled.

The trial .court, on the cross action, instructed the jury: “The word ‘permanent’ {incapacity) as used in this charge means incapacity that will continue and not end, but remain throughout the life of the person so injured.”

Plaintiff in error objected to the definition as being more burdensome on defendant than the law authorizes and is on the weight of the evidence, and submitted that the word “permanent” “means something that will continue without improvement, but will remain the same throughout the life of the person injured,” and refers to Employers’ Casualty Co. v. Scheffler, Tex.Civ.App., 20 S.W.2d 833. In that ease the court was considering a charge that submitted whether the injuries resulted in “total- permanent incapacity,” which required the jury to answer yes or no. The court held that the charge, with the explanation, was duplicitous; that it was not necessary to define either total or permanent incapacity, and that it unduly emphasized the issue, and that it was error, in order to relieve the situation, to refuse to give the charge submitted, the same as the one submitted by plaintiff in error here.

For a disability to be permanent it must continue during the lifetime of the injured party. 45 Tex.Jur. p. 578, par. 154; Texas Employers’ Ins. Ass’n v. Hitt, Tex.Civ.App., 125 S.W.2d 323.

We think the charge was not error.

In the tenth question the court .submitted to the jury, “Do you find that Schoolcraft, as a result of such personal injury, if any, became incapacitated for labor in any degree?” and if the jury .answered, “Yes,” then answer Question 11: “Do you find from the evidence that such incapacity to labor, if any such there was, was total or partial ? Answer by the use of the word ‘total’ or by the use of the word ‘partial.’ Answer by the use of the word ‘total,’ if you so find from a preponderance of the evidence; but unless you so find from a preponderance, answer by the use of the word ‘partial.’ ”

We do not think the issue objectionable as being duplicitous and multifarious.

In the next succeeding charge the court submitted to the jury Schoolcraft’s incapacity -to labor, whether permanent or temporary, and submitted the two issues in the same manner as in issue No. 11, that is, if found permanent, answer “permanent,” but unless so found, answer “temporary.” We hold as under 11.

When Schoolcraft rested his case on his cross action, plaintiff in error, South-, era Underwriters, filed its motion for an instructed verdict on its theory that School-craft had no cause of action for compensation on the policy sued on. The, court overruled the motion, to which plaintiff in error assigns error.

There are two insurance policies in the case, both effective at the time Schoolcraft was injured, both policies covered workmen engaged in classification of work described as truckmen, driver, chauffeurs and their helpers, stablemen, garagemen, blacksmiths, repairmen, riggers, storage warehouse employees, not otherwise covered. There was a rider attached to the policy sued on which increased the classification of the employees covered by the policy and made the policy cover and include iron or steel erection, iron or steel frame structures not riveted or welded, and not, over two stories in height. , This rider certificate was made and attached to the policy after School-craft received his • injuries. Schoolcraft was a structural steel worker, had done structural steel work or pipe fitting and bridging that goes with structural steel work of any kind, anything that came up.

At the time of his injuries School-craft was an employee of Hudson as defined in Article 8309, and his employer was a subscriber supposedly carrying compensation insurance on all his employees; employer paid premiums based on their wages, including Schoolcraft, although Schoolcraft’s duties at the time of the accident were such as to require a higher premium than the classifications specifically mentioned in the policy. However, it was the policy used by both employer and plaintiff in error insurance carrier to cover compensation insurance for all workmen regardless of their classification.

The insurance policy issued by plaintiff in error to Schoolcraft’s employer contained the following provisions: “If this subscriber undertakes any operations not described in the declarations, he shall make proper deposit dr deposits thereon at such time as the attorney may elect based on the manual of rates in use by this carrier at the time when such operations commenced and shall report the entire remuneration earned by employees engaged in such operations in the same manner as provided in the declarations for operations already described therein. At the end of the contract period the actual amount of remuneration earned by employees during such period shall be exhibited to the carrier as provided in Condition (c) hereof and earned deposit or deposits adjusted in accordance therewith at the rates an'd under the conditions herein specified, etc.” Condition (c) above referred to gives the carrier the right at-all reasonable times to inspect the plants, works, machinery, etc. Then,. “The obligations and promises of the carrier to the employee, or to his dependents as set forth in this paragraph, shall not be affected by the failure of the subscriber to do or to refrain from doing any act required by the contract nor by default of this subscriber after the accident ifi making deposits or in giving of any notice required by the contract or otherwise.”

Mr. Hudson, Schoolcraft’s employer, testified that Schoolcraft was employed by him at the time of the accident; that his company had made payments of premiums on the workmen’s compensation policy to plaintiff in error at the time of the accident, and that these payments were based on the salaries paid his employees, including Schoolcraft’s; that he had been notified that the United Employers’ Casualty Company had succeeded, some time following the accident, to all the rights and liabilities of the Southern Underwriters, the plaintiff in error, and that the United Employers’ Casualty Company had audited his company’s books and charged an increased premium antedating the date of the accident, based on the nature of the various employments disclosed by the audit, and that this premium had been paid.

The assumption agreement is in evidence, sent up in its original form as Exhibit 13.

Under the terms of the policy and the facts of this case we are hot prepared to say that the policy does not include and embrace Schoolcraft. Janes Contracting Co. v. Home Life & Accident Co., Tex.Civ.App., 245 S.W. 1004, affirmed by Commission of Appeals 260 S.W. 839; Texas Employers’ Ins. Ass’n v. Price, Tex.Civ.App., 300 S.W. 667, error dismissed; Price v. Texas Employers’ Ins. Ass’n, Tex.Com.App., 296 S.W. 284; Texas Constitution, Article 1, sections 13 and 19, Vernon’s Ann.St.; Texas Employers' Ins. Ass’n v. Kelly, Tex.Civ.App., 56 S.W.2d 1108.

Plaintiff in error paid Schoolcraft’s disability compensation for twelve weeks, discussed elsewhere, but see Consolidated Underwriters v. Lee, Tex.Civ.App., 107 S.W.2d 482, and cases cited, holding that when such payment is made an insurance carrier so recognizing an injury will not be permitted to deny its liability under the Workmen’s Compensation policy. It is true that plaintiff in -error pleaded that such payments were paid under mistake, but we think that such mistake does not relieve plaintiff in error from its liability.

Plaintiff in error presents other assignments which we have not specifically discussed. We have carefully reviewed them, and think they-present no reversible error. They are each overruled.

The jury found all issues presented to them in favor of defendant in error, and, we think, upon sufficient eVidence.

Finding no reversible error the case is affirmed.

PRICE, C. J., not sitting.


source: Caselaw Access Project

author: PRICE, Chief Justice.

license: Public Domain

text:
    MARTINEZ et al. v. PENA.
    No. 3926.
    Court of Civil Appeals of Texas. El Paso.
    March 7, 1940.
    Rehearing Denied April 4, 1940.
    Max H. Wier and Wier & Wier, all of San Antonio (Martin, Moore & Brewster, of Fort Worth, on the brief), for appellants.
    Phil Collins and Otis Collins, both of San Antonio, for appellee.
   PRICE, Chief Justice.

For a statement of the nature and result of this suit we shall adopt that contained in the brief of appellants.

This suit was instituted by the appellee, Victoria Pena, in the 73rd District Court of Bexar County, Texas, being a suit for damages growing out of alleged personal injuries sustained on May 18, 1938, while appellee was crossing in the 1,000 block of West Houston Street, within the City of San Antonio, Bexar County, at a point other than at an intersection, and was struck by appellants’ automobile.

For convenience, the parties will be hereinafter designated as they appeared in the trial court, appellants Antonio Martinez, Raymond Martinez, and Adam Gonzales, as defendants, and appellee, Victoria Pena, as plaintiff.

Plaintiff in her second amended original petition pleaded that she was walking from south to north across Houston Street, a public thoroughfare within the corporate limits of San Antonio, Texas, and at the same time and place the defendant Adam Gonzales was driving a thick in a westerly direction on said street; that the truck struck plaintiff, and that she sustained personal injuries; that the accident was caused by certain acts of negligence on the part of the defendant Adam Gonzales in the operation of the truck, in that he was traveling at an excessive rate of speed, failed to keep a proper lookout, was operating said truck without having same under proper control; that he discovered plaintiff in a position of peril and failed to use the means at hand to avoid hitting plaintiff; that all of such acts of negligence were the proximate cause of said accident and of the resulting injuries to plaintiff.

Defendants filed a general demurrer and general denial, and in addition alleged contributory negligence on the part of the plaintiff, in that she was crossing the street at a point other than a street intersection within the business district of the City of San Antonio, in violation of a municipal ordinance prohibiting same; that plaintiff failed to keep a proper lookout; that each of the foregoing acts of negligence on the part of plaintiff was the sole cause of the accident and of the resulting injuries to plaintiff; that the accident was unavoidable.

The case was submitted on special issues, and the jury found for the plaintiff on the issue of discovered peril; that defendant Adam Gonzales was operating his automobile in excess of twenty miles per hour; that he operated same at a negligent rate of speed; that he failed to have said automobile under proper control; that he failed to keep a proper lookout; that all of such acts were negligent, and were each a proximate cause of the accident and injuries to plaintiff.

All issues of contributory negligence submitted on behalf of the defendant were found in favor of plaintiff, including the issue as to proper lookout. The damages were assessed at the sum of $3,595. Defendants have duly perfected an appeal therefrom, and'the case is here for review.

Defendants seek reversal on the ground of improper argument; that the evidence did not justify the submission of the issue as to discovered peril; the verdict is contrary to the evidence, in that as a matter of law plaintiff failed to keep a proper lookout for automobiles in crossing the street at the time she was injured; and that the court erred in rejecting the testimony tendered by appellants relative to the character of the district in which the accident occurred. The relevancy of this testimony is asserted to be that there was a city ordinance relative to the crossing of streets at points other than street crossings as to certain parts of San Antonio, and had same been admitted it would have tended to have shown that plaintiff was guilty of negligence per se.

Independent of the finding as to discovered peril, the judgment is amply supported by other findings of negligence. Hence it will be unnecessary to discuss the evidence relating to that issue, unless, as contended by the defendants, as a matter of law, the evidence conclusively shows that plaintiff was guilty of contributory negligence in the matter of keeping a lookout.

We believe that the evidence was sufficient to justify the submission of the issue of discovered peril and the finding of the jury thereon. It is deemed unnecessary to set out the testimony relative thereto at length. Suffice it to say, that the driver of the truck, Adam Gonzales, saw plaintiff when she was standing on or near the south curb of the street preparatory to crossing same in a northerly direction; he likewise testified as to keeping a lookout in the direction in which he was going. There is no evidence that there was anything to obstruct his view at the time she was in the act of proceeding across the street. From some of his testimony it would seem to indicate that he did see her. Plaintiff, according to the testimony of the defendant Adam GonzaleS, was struck about five feet from the north curb of Houston Street. In his deposition this same witness testified that he saw the plaintiff from the time she stepped off to Houston Street from the curb until the truck struck her. There was evidence that she was running fast before the collision, also that she was walking fast; that the horn was sounded; that it was not sounded; conflicting evidence as to the speed of the truck. A slacking of the speed of the truck sooner would probably have prevented the accident. Under the evidence different deductions may be drawn as to when the driver realized the peril.

As to the question raised that the evidence is insufficient to sustain the finding that the plaintiff failed to keep a proper lookout, the burden was upon defendants to establish this issue. Plaintiff testifies that before attempting to cross Houston Street she looked in both directions, and while she was proceeding across the street up until the time she was struck she was looking from time to time in both directions. It is true, she stated she did not see the truck in question until immediately before it struck her. From her statement that she failed to see the truck until just before it struck her defendants seek to draw a conclusive presumption that she failed to keep a proper lookout. The surrounding facts cited to support this conclusion are that there was no obstruction to her view, and it was a clear, sunshiny day. We do not think this evidence sufficient to make it an uncontroverted fact that she failed to keep such a lookout. In any event, the driver of the truck had the same opportunity to observe plaintiff as plaintiff had to observe the approach of the truck. The jury found in her favor as to the issue of discovered peril. The finding as to discovered peril is sustained by the evidence, and this finding supports the judgment rendered, regardless of whether plaintiff was or was not guilty of contributory negligence.

In regard to the rejected testimony of the witness Lewis Lacey, defendants’ bill as to this matter is fatally defective, in that it fails to show what his testimony would have been had defendants been allowed to interrogate the witness along the lines sought. The court permitted proof as to the residential or non-residential character of Houston Street in the vicinity of the collision. But, as we have stated, in order to complain of the rejection of testimony, there must be a showing by avowal or otherwise as to what the testimony would have been. Shippers’ Compress & Warehouse Co. v. Davidson, 35 Tex.Civ.App. 558, 80 S.W. 1032; McMillion v. Cook, Tex.Civ.App., 118 S.W. 775.

The witness seems to have testified as to the condition on Commerce Street, and such testimony was not stricken by the court. The assignment is overruled.

In the opening argument to the jury, in discussing with them special issue No. 15, counsel for the plaintiff said: “There can be only one sole proximate cause to an accident. Now in answering this question if you should go out and answer it in the affirmative you would be absolving the defendant of all these other acts of negligence, and we believe that these other acts of negligence should not be excused.”

The bill of exceptions shows that defendants made objection to the court to this argument, not making same known to the counsel for the plaintiff. The basis of the objection was that the argument instructed the jury as to the legal effect of their answering said special issue in the affirmative, and was in effect a plea to the jury to frame their answers so as to accomplish a result rather than to answer the questions separately as they found the facts to be from the evidence.

Question No. 13 was in substance whether the plaintiff was negligent in entering upon and attempting to cross West Houston Street in the manner she did at the place in question. Number 14 was submitted conditionally on an affirmative answer to question 13, and was as to whether, 'if 13 be answered in the affirmative, such negligence was a proximate cause. Fifteen was conditioned on an affirmative answer to 13, and was “Do you find from a preponderance of the evidence that such negligence, if any, on the part of the plaintiff, Victoria Pena, was the sole proximate cause of the accident and injuries, if any, to plaintiff?” Question No. 13 was 'answered in the negative. Disregarding the court’s instruction, the jury answered question No. 15, The finding was in the negative. In connection with fifteen the jury were instructed by the court that there can be only one sole proximate cause of an event.

Now it is very clear that it is improper for counsel in argument to apprise the jury of the legal effect of their findings on the issues submitted. Such, of course, would defeat one of the main purposes of the submission on special issues. Further, if argument violate this rule and the harmlessness of such argument does not appear, it is reversible error. South Plains Coaches v. Behringer, Tex.Com.App., 13 S.W.2d 334; McFaddin v. Hebert, 118 Tex. 314, 15 S.W.2d 213; Consolidated Underwriters v. Murphy, Tex.Civ.App., 29 S.W.2d 831.

Plaintiff contends that even though the argument be construed as contended by defendants, that the jury were men of ordinary intelligence and could not but have known that one suffering injury as the sole proximate cause of his own negligence could not recover damages therefor; that the court informing the jury that there could be but one sole proximate cause rendered the effect of their answer clear to them. Furthermore, that if error there was, it was immaterial because the jury, under their findings,'should not have found upon such issue. Joplin v. South Texas Coaches, Inc., Tex.Civ.App., 119 S.W.2d 1060, and authorities there cited.

The jury found that plaintiff was not guilty of negligence. Finding on the question of proximate cause or sole proximate cause relative to such alleged negligence thereto became immaterial. It could hardly be said that the argument could have in any way influenced their findings on the issues as to the negligence on the part of the plaintiff or on the part of the defendant. A paraphrase would be, “If you find No. 15 in the affirmative, you will find .that plaintiff’s injuries were solely her fault; if her injuries were solely her fault the defendants are blameless. We do not believe that they are blameless.” In any discussion of a special injury submission the jury are in a measure informed as to what the legal effect of their answers are going to be. Counsel in arguing strive to have the jury answer the issues in a certain sort of way. It is legitimate for them so to do. If incidentally the jury infer the legal effect of their answers, this does not render the argument improper. The fact that jurors may know the legal effect of their answers does not warrant the inference that they did not arrive at the verdict in a lawful manner.

In the argument as made there is no direct literal advice to the jury as to the legal effect of the issue and an appeal to the jury to answer same so as to effectuate an end. In the cases of McFaddin v. Hebert, 118 Tex. 314, 15 S.W.2d 213; South Plains Coaches v. Behringer, Tex.Com.App., 13 S.W.2d 334, and Texas & Pacific v. Edwards, Tex.Com.App., 36 S.W. 2d 477, there was a clear-cut violation of the rule as to advising the jury of the legal effect of their answers. The arguments were made for that purpose. Plere it is hot manifest that the argument was made for that purpose, and it requires a construction at least to make it convey the information it is charged it did convey.

Defendants, as showing that harm resulted from .the argument, call attention to the fact that not only did the jury find on issue fifteen, when they were not required to so find on the conditional submission, but likewise found on issue number eight-' een, a similar issue as to another ground of alleged negligence on the part of plaintiff. From this fact it is sought to be deduced that the jury, in answering the issues, followed the argument rather than the court’s charge. Issue No. 21 was submitted with similar condition as to 15 and 18, and was not answered. If the jury did make findings in this case without regard to the evidence, but in order to bring about a judgment for plaintiff, their answers to issues 15 and 18 in no way tended to effectuate this purpose. There is no evidence in the record that the jury here attempted to so answer the issues as to bring about a verdict for plaintiff.

In the case of Houston, E. & W. T. Ry. Co. v. Sherman, Tex.Com.App., 42 S.W.2d 241, the appeal was direct for the jury to so frame their answers as to bring about a recovery. In fact all of the questions were answered in accordance with the suggestion of the closing argument. In the course of the opinion it is mentioned as evidence of the fact that heed was given to the argument; that the jury answered as to a number of issues submitted only conditionally when they were not required to answer under their other findings. The findings in that case almost literally track the argument. The appeal was to so answer the questions in order to help the plaintiff keep her children in school, and coupled with a passionate appeal to answer them on behalf of the plaintiff and her seven children.

Here we do not believe the argument was intended to convey to the jury information as to the legal effect of the answer to the issue. Further, we 'believe if it did so convey such information, that it was something the jury already knew. Any reasonable man should and does know that where one is injured solely through his own fault, he cannot and should not hold another liable therefor. It involves the ability to distinguish right from wrong. The prime purpose of the plaintiff was to establish liability, and that of the defendant to defeat liability. If this argument was improper, we find that it is shown to be harmless.

There is no reversible error in the record. The case is affirmed.


author: WALTHALL, Justice. PRICE, Chief Justice.

text:
    POUND v. POPULAR DRY GOODS CO., Inc.
    No. 3901.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 15, 1940.
    Rehearing Denied March 14, 1940.
    Second Motion Denied April 4, 1940.

      R. E. Cunningham and William Flour-noy, both of El Paso, for appellant.
    Kemp, Nagle & Smith and J. M. Gog-gin, all of El Paso, for appellee.
   WALTHALL, Justice.

Appellant here, plaintiff in the trial court, prosecutes this appeal from an adverse judgment in a suit for personal injuries sustained by his wife in operating a washing machine sold to her by an agent or representative of appellee, a retail dealer in such merchandise.

Appellant’s pleading was to the effect that while appellant’s wife was using the washing machine, her hand was caught between the rollers of the wringer with which the machine was equipped and her arm was thereby drawn into the wringer, inflicting the injuries of which she complains.

Appellant alleged that in making the sale of the machine appellee, by its sales agent, warranted to appellant’s wife that the wringer in controversy was safe for use, in that it could be relied on to release the finger, hand or arm of the operator, should it be caught between the rollers, by merely pressing the safety release with which the machine was equipped. Appellant alleged that the safety release lever and other portions of the wringer intended to release the roller were not as warranted, but were defective, and that by reason of mechanical defects the release lever did not function and that by reason of such defect his wife’s hand was drawn into -the roller and injured. It is alleged that she suffered physical and mental pain and was hampered in the performance of her household duties, to her damages as alleged.

Appellee’s answer contained many exceptions, general and special, not passed upon by the trial court and are waived; general denial; specially denied making any false statements or warranties in selling the machine, and denied any negligence charged; alleged that it did not make the machine or wringer; that same were made by reputable manufacturers; that safety device on the wringer has been in use many years on many models of washing machines, all of which are sold throughout the United States; denied the defective condition of the washing machine or wringer or the safety device, and alleges that it made due and proper inspection, and that no defects were apparent; that when the rollers are in motion the danger to the operator of having fingers or hands caught between the rollers are obvious, open and apparent;, that with due care same can be and is operated with safety; that plaintiff’s wife-was negligent in feeding the clothes to the wringer and that such negligence was the-proximate cause of the injuries.

The case was tried with a jury, and on: the jury’s verdict the court rendered judgment that plaintiff take nothing by the suit.

The court overruled appellant’s motion for a new trial, to which appellant duly excepted, gave notice and prosecutes this, appeal.

Opinion.

Two witnesses for appellee who had been-managers for appellee in the department of the store from which the washing machine was sold, were permitted, over obj ection, to say, in answer to a question, that during their service as salesmen, no person to their knowledge, buying one of those machines from appellee, had ever been hurt in using one of those wringers.

Appellant complains of the admission of that statement in evidence.

Appellant refers to several cases as sustaining his contention, among them, Hill v. Hanan & Son, 62 Tex.Civ.App. 191, 131, S.W. 245 ; Haynes v. Plano Manufacturing-Co., 36 Tex.Civ.App. 567, 82 S.W. 532;. Davidson v. Swanson, Tex.Civ.App., 24 S. W.2d 776; Beckner v. Barrett, Tex.Civ., App., 81 S.W.2d 719; Waul v. Hardie,. 17 Tex. 553; Adams v. Gulf, C. & Santa Fe R. Co., Tex.Civ.App., 105 S.W. 526, and. others. We have carefully reviewed each of them. In each case, while the statement of the witness was similar to that of the-witnesses in this case, the statement of the witness referred to. some controversy other than the one then under investigation, and on trial, though similar in kind. The-holding in each case is to the effect that be-fore the evidence was admitted it should be made to appear that the conditions or circumstances testified to were identical or so similar as that the proposed evidence will reasonably tend to establish the truth of the subject of inquiry. The expressions used in the above cases are to the effect: “That the other machines were identical in construction and material and were operated under identical construction and material”; “that the defendant may have expressed himself well pleased with other work * * did not conduce in any degree to prove that the work done for the defendant was executed in a workmanlike manner”; tlint defendant may have expressed himself well pleased with other work done by the plaintiff, “did not conduce in any degree to prove the work done for the defendant was executed in a like workmanlike manner”; “that work done for other parties was satisfactory or unsatisfactory was not relevant to any issue in the instant case”; “testimony of the witness that no ladder had ever broken with him in a tank car, and that he had never been injured by a ladder in a tank car, was inadmissible,” the injury not being the exact injury complained of. Ordinarily the evidence must pertain to the identical goods involved in the pending suit. 37 Tex.Jur., page 766.

In the instant case the main contention of appellant was that the safety release failed to work on account of its defective mechanical construction. The identical-machine was operated by appellant on the trial in the presence of the jury and offered evidence to sustain his theory. The witness’ statement in question referred to “one of these machines from the Popular,” necessarily referred to or at least embraced the identical machine in question.

In 37 Texas Jurisprudence, page 766, it is said that a seller may show that machines sold to others were satisfactory where the buyer has introduced evidence that his machine (and others) bought from the seller was unsatisfactory, and refers in the notes to McFarlin v. Elliott-Tuck, Inc., Tex.Civ.App., 71 S.W.2d 410; Elmberg Co. v. Dunlap Hardware Co., Tex.Com.App., 267 S.W. 258, affirming, Tex.Civ.App., 252 S.W. 1098; Wilson v. Avery Co., Tex. Civ.App., 182 S.W. 884, writ refused; Bell v. Mulkey, Tex.Civ.App., 248 S.W. 784.

We think the evidence was admissible. We further think this evidence was admissible as negativing the negligence alleged by plaintiff.

On cross examination of plaintiff the trial court permitted appellee to prove, over objection, that plaintiff had originally sued the Borg-Warner Corporation and the Borg-Warner Service Parts Company, the two being, respectively, the manufacturer and the distributor of the machine in question, and that the suit as to the two Borg-Warner Companies had been dismissed without prejudice.

Appellant complains of the admission of that evidence as being irrelevant and immaterial. The law furnishes no test of relevancy. It may be generally said that whatever naturally and logically tends to establish a fact in issue is relevant and that which does not is not relevant. In the practice of the courts and in the utterances of the judges none but facts having rational probative value are admissible. In our opinion the evidence was collateral and wholly independent of any issue then in the case, either to show compensation for the injury or to show liability for or abatement of damages, which compensation is as to appellee res inter alios acta with which appellee primarily and independent of any other fact or evidence in the case has no concern. However, we do not think that even if the court was in error in admitting this testimony, it is of sufficient gravity to warrant the reversal of the case. Before we are authorized to reverse on the ground of improper admission of testimony the prejudicial effect thereof must appear. In view of the explanation made in the testimony of Mr. Flournoy, attorney for appellant, as to his reasons for dismissal, we do not believe this testimony harmful. But appellee in a counter proposition points out the testimony of James Kopf to the effect that he had been the manager for some two years of the department in appellee’s store in which the machines were sold; that the machines in question are manufactured by the Borg-Warner Corporation, a reputable manufacturing concern; that the wringer attachment on the washing machine comes with the washer with the same character of release, its origin and history, too -lengthy to state here, stated at much length by Kopf, and sold throughout the entire country. Kopf stated in substance that he had never had complaint about these wringers and the release.

Appellant charges that appellee was negligent in making statement' and representation that the machine and wringer was safe with the safety release properly applied. We think that this testimony was admissible on the issue of negligence. It was, perhaps, incompetent to show that the machine was not defective, but that would not affect its admissibility on the issue of negligence.

In considering the issues in the entire case we have concluded that the court was not in error in admitting the evidence over the objection and in considering the liability of the appellee for the injury to appellant’s wife complained of in the suit.

Trinity & B. V. R. Co. v. McDonald, Tex.Com.App., 208 S.W. 912, 914, an opinion by the Commission of Appeals, adopted and entered as the judgment of the Supreme Court, quotes with approval a statement in 20 R.C.L., as follows: “The common experience of mankind is the criterion for determining what customary measures shall be taken to avoid injury to others. Every one may rightfully rely upon experience, and as a rule he is not charged with negligence in respect to acts which conform to a practice which has existed for years without resulting in injury. Persons who are charged with a duty in relation to a particular matter or thing have a right to rely upon the sufficiency of a structure or contrivance such as is in common use for the purpose and which has been in fact safely used under such a variety of conditions as to demonstrate its fitness for the purpose. When a structure or appliance such as is in general use has uniformly answered the purposes for which it was designed and used under every condition supposed to be possible in the business, it cannot in reason be said that a person has not acted with ordinary prudence and sagacity in not anticipating an accident which afterwards happens in the use of the thing notwithstanding it continued substantially in the same condition all the time.”

In that case a witness had testified that he had never known of any accident by reason of the open toilet. The injury to plaintiff was occasioned by a small particle of steel or other hard substance being carried by an air current through an opening in the toilet stool and striking plaintiff in the eye with sufficient force to penetrate the ball. The Railroad Company was charged with negligence in having a toilet with an opening through it. The court also quoted from Texas & P. R. Co. v. Bigham, 90 Tex. 225, 38 S.W. 162, 163, the following: “It ought not to be deemed negligent to do or to fail to do an act when it was not anticipated * * * that it would result in injury to any one. * * * It would seem that there is neither a legal nor a moral obligation to guard against that which cannot be foreseen, and under such circumstances, the duty of foresight should not be arbitrarily imputed.”

We recognize that it is difficult to apply the principles recognized and applied to one given state of facts and apply the same as a precedent to another state of facts. We think, however, the principles announced above have application here; they seem to be universal under similar facts and where anticipation of results is applied.

Appellant submits other propositions not discusséd. They refer, except as to one, to the admission of evidence. We have carefully reviewed them and we think they show no reversible error and are overruled.

We need not review the findings of the jury. They are in favor of appellee on issues of negligence and proximate cau.se.

We have found no reversible error, and the case is affirmed.

On Motion for Rehearing or to Certify.

PRICE, Chief Justice.

Out'of deference to the able and forceful motion for rehearing filed herein by appellant, we shall again endeavor to briefly restate our reasons for the prior holding.

Vigorous assault is made on our holding that the admission of the testimony of the two employees of the defendant engaged in the sale of washing machines of the character and type of the one involved here, that they had never heard of anyone being injured using such machine, was not error.

An act or failure to act has the quality of negligence only when injury may be anticipated therefrom. This we take to be a basic and fundamental principle as to which it is unnecessary to cite authority. Where there is a question of negligence vel non any evidence is relevant that tends reasonably either to show that injury might not or might have been anticipated from the action or nonaction in question.

Here the plaintiff charges defendant was negligent in failing to inspect the washing machine before delivering it to his wife for use (that is, the safety device thereon). Granted that defendant’s agents failed to do so, this does not necessarily show negligence on their part in failing so to do. If there was no reasonable ground to anticipate that failure to inspect would result in injury, such failure would not constitute negligence. The two witnesses in question were experienced in a degree in the sale of washing machines of this type. It may be fairly presumed that they were in constant contact with the users thereof. If they had never heard of the safety device failing to function prior to Mrs. Pound’s injury this might at least be some evidence that there was no necessity of an inspection. This, we think, also is true as to their alleged representations that the machine with the safety device could be used with safety. It was not held in the original opinion that this testimony was competent to show that the machine did not fail to function on the occasion in question. We deem it incompetent'for that purpose; likewise, it was incompetent for the purpose of showing that the machine was free from defect. However, if it was admissible on the issue of negligence as alleged and submitted, the action of the court in overruling the objection was proper. Upon request the court might have limited the purpose of the testimony to the issue on these grounds of negligence. If plaintiff desired the court to do this, it was incumbent to make such request. Bur-rell Engineering & Const. Co. v. Grisier, 111 Tex. 477, 240 S.W. 899.

We are of the opinion, insofar as the testimony of these witnesses was based on lack of knowledge subsequent to the injury of plaintiff’s wife, that the testimony was inadmissible. However, this objection was not made.

We shall again briefly discuss the question as to the effect of the erroneous admission of the testimony in relation to the dismissal of plaintiff’s shit against the Borg-Warner Company. In a consideration of this question the issues involved in the case should be considered and the findings thereon. Further must be considered the nature of the testimony in relation to whether or not it was reasonably calculated to operate to the prejudice of the plaintiff.

The verdict establishes the warranty substantially as alleged by plaintiff, but finds against plaintiff on the issue of a breach of the warranty. The finding was that plaintiff’s wife did not properly operate the safety device on the occasion in question. On the trial the washing machine with the safety device was exhibited'’ before the jury. The safety device was manipulated before the jury. This device was, according to plaintiff’s theory at least, in the same condition that it was at the time of the injury. The theory of the submission was that in order to recover on either the ground of warranty or of negligence, the establishment that she properly invoked the aid of the safety device, and it failed to function, was necessary. Failing to establish this, under the charges submitted she could not recover. There is no complaint made as to the charge. On this issue the testimony in question was certainly without probative effect.

The testimony admitted in the case of International Travelers’ Ass’n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040, was relevant and material on the vital and material issue in the case, although inadmissible. In fact it was held to be the only testimony establishing the vital issue in the case. Its admission was positively prohibited by statute as involving a transaction with the deceased. In the case of Bell v. Blackwell, Tex.Com.App., 283 SW. 765, strongly relied upon by plaintiff, the argument there complained of was wrongful argument as to the vital issue in the case. In Bain Peanut Co. v. Pin-son, Tex.Com.App., 294 S.W. 536, it was held that the improper testimony there admitted was in its nature prejudicial.

We believe the true rule is, that in order to support the presumption of harm, the testimony wrongfully admitted must be such as is reasonably calculated to harm the complaining party.

If this is the case, Bell v. Blackwell, supra, and International Travelers’ Ass’n v. Bettis, supra, apply. If the testimony erroneously admitted is not in its nature calculated to harm the complaining party, then we think Rule 62a applies.

Rule 62a: “No'judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the cause to the appellate court; and if it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error: Provided, if the erroneous action or failure or refusal of the trial judge to act shall prevent the proper presentation of a cause to the Court of Civil Appeals, and be such as may be corrected by the judge of the trial court, then the judgment shall not be reversed for such error, but the appellate court shall direct the said judge to correct the error, and thereafter the Court of Civil Appeals shall proceed as if such erroneous action or failure to act had not occurred.” Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822; Burrell Engineering & Const. Co. v. Grisier, supra.

We do not hold that it is necessary that it be shown that the inadmissible testimony caused the rendition of the verdict. What we do hold is that, in a case where the testimony is not of a nature reasonably calculated to prejudice the rights of the plaintiff, 'it must be shown that it might have affected the verdict.

A discussion of the cases on the subject of harmless error and presumed error would unduly lengthen this opinion.

As has been before stated, in our opinion, the testimony complained of is clearly irrelevant and immaterial. If irrelevant and immaterial, the prejudicial effect thereof must be in some other way than as to logical bearing on the issue involved. It is asserted that it was prejudicial in that the jury might have believed that plaintiff still had a remedy as against the Borg-Warner Company. Now the evidence of the dismissal taken in connection with the testimony of Mr. Flournoy seems to us to explain adequately why plaintiff's remedy was not prosecuted against' that defendant. If the finding represents the facts, presumptively plaintiff did not have a cause of action against anybody. Had they thought she was wronged under the evidence the finding would hardly have been that she did not properly invoke the safety device.

We have given careful and painstaking consideration of appellant’s motion for rehearing and adhere to our views as expressed. The motion to certify is likewise overruled. If what we have held herein conflicts with the holding of the Supreme Court, there is jurisdiction to review same.

The motions are overruled.


text:
    WILLIAMS et al. v. HUMBLE OIL & REFINING CO. et al.
    No. 3921.
    Court of Civil Appeals of Texas. El Paso.
    March 7, 1940.
    Rehearing Denied April 11, 1940.

      R. C. Saunders, B. Ray Smith, and Smith & Smith, all of Corpus Christi, for plaintiffs in error.
    R. E. Seagler and Felix A. Raymer, both of Houston, and W. B. Moss, of Sinton, for defendants in error.
   PRICE, Chief Justice.

This is an action in trespass to try title filed in the District Court of San Patricio County by L. D. Williams and others, all hereinafter called plaintiffs, against Humble Oil & Refining Company and others, hereinafter called defendants. The land involved is about 114.2 acres situated in San Patricio County. The trial pleadings of defendants were their second amended original answers. Defendants Humble Oil & Refining Company and Humble Pipe Line Company filed a joint answer. This answer consisted, as far as is necessary to be noted, of a plea of not guilty, a disclaimer as to all the land described in plaintiff’s petition, save 25.61 acres, more or less. The excepted 25.61 acres is described by metes and bounds. There were likewise various pleas of limitation urged. Defendants Boyd and wife answered not guilty, and disclaimed as to all the land described in plaintiff’s petition, except a tract described in the plea and alleged to contain approximately 70 acres; various statutes of limitation were pleaded. Defendants Phelps and wife likewise answered by plea of not guilty, and disclaimed all of the land, save and except as to a tract described in the plea alleged to contain 23.5 acres; various statutes of limitation were urged. The trial was before the court on the 26th day of September, 1938. Judgment was rendered that as to the land described in plaintiffs’ petition plaintiffs recover nothing against defendants, and that defendants go hence without day. Plaintiffs perfected a writ of error from the judgment and the case is here for review.

There is no statement of facts in the record and the transcript is the only source of information as to the errors assigned. There are no bills of exceptions in the transcript. However, the judgment entered sets out in some detail the matters transpiring preceding its rendition. In order to clarify this opinion it is necessary, or at least desirable, we think, to set out the recitals therein without regard to whether they properly preserve the grounds of review invoked.

It is recited that on September 19, 1938, on the call of the trial docket, that the case was called for setting; that plaintiffs 'insisted on setting the trial for September 26, 1938, in accordance with an agreement made at the term preceding; that the cause was so set over the protest of defendants; that on the 26th day of September, 1938, plaintiffs announced ready for trial; the overruling of the application of defendants Boyd and Phelps for continuance; the announcement of ready by the other defendants; the reading of the pleadings; the proceeding with the testimony; that plaintiffs offered in evidence a certified copy of the record of a patent from the State of Texas to Abe Williams to 114 acres of land in San Patricio County; the objection thereto by the defendants on the ground that the proper predicate had not been laid therefor under Article 3726 of the Revised Statutes, Vernon’s Ann.Civ.St. art. 3726; then that plaintiffs offered in evidence an affidavit that plaintiffs intended to rely on certified copies of the following recorded instruments:

“1. Patent, T.T. Williams, L.S. No. 47
2. Patent, T.T. Williams, L.S. No. 48
3. Patent, Caswell R. Clifton, assignee _ of Wm. Donough (North half)
4. Patent, Caswell R. Clifton, assignee of Wm. Donough (South half)”

Defendants then admitted in open court that they had received such affidavit by United States mail; the sustaining by the court of the objection to the Abe Williams’ patent, execution thereof not otherwise being proven; the statement by the plaintiffs that they intended to rely on certain other certified copies of recorded instruments with the same predicate; the statement of defendants that the same objections would be urged; a request by the plaintiffs to the court that in such event the court indicate as to what the ruling would be thereon; a statement by the court that the same ruling would be made; further, that thereupon plaintiffs declined to proceed further and failed to produce other 'evidence, and the court thereupon rendered judgment for the defendants without the production of evidence by the defendants. Plaintiffs then and there in open court excepted to the rendition of this judgment. It appears from the record of the judgment in the transcript that same was pronounced on the 26th day of September, 1938. The judgment seems to have been entered October 27, 1938.

Error is assigned to the trial court’s action in sustaining the objection of defendants to the certified copy of the record of the patent from the State to Abe Williams. This assignment, perhaps, cannot be considered because not presented by bill of exceptions, although what transpired in relation thereto is recited in the judgment. Rule 55 seems to prevent its consideration. However, we shall briefly discuss same. From the recital in the judgment as a predicate for the admission of the Abe Williams’ patent, plaintiffs showed their affidavit as-to their intention to rely on a copy of the record of the patents, as has been heretofore set out. Receipt of copy of this affidavit was ponccded by defendants. Now, the patent tendered was to Abe Williams. In the absence of explanation, we do not think notice of intention to rely on patents to T. T. Williams comprehends a patent to Abe Williams. As to the avowal that plaintiffs intended to rely on copies of other instruments with the same character of predicate and the avowal by the court as to the request by plaintiffs as to the future ruling thereon, there is some confusion in the record.

Plaintiffs’ position in their brief is that the court excluded same because notice by mail was insufficient. Notice was not given in any manner as to the Abe Williams’ patent according to the predicate laid. We are inclined to the opinion that three days’ notice before trial given by mail would be sufficient. Gardner v. State, 114 Tex.Cr.R. 584, 26 S.W.2d 639. If we had the power to consider these assignments-we would overrule same as failing to point out error.

Complaint is made of the court’s failure to grant defendants’ motion for a continuance. The record here again is confusing. The judgment was rendered on the 26th day of September, 1938, and the motion for continuance was filed on the 28th day of September, praying that plaintiffs be allowed to withdraw their announcement of ready and the cause be postponed. This application seems to have been sworn to before the District Clerk of San Patricio County on the 6th day of October, 1938. In our opinion the request to withdraw the announcement of ready and postpone or continue the case is a matter that must be urged in limine, and comes too late after final judgment. The order overruling the application of continuance recites, “On this the 27th day of October, A. D. 1938, and after the above entitled and numbered cause had progressed for some' -twenty minutes, plaintiffs herein made and presented to the court their first motion for a continuance.” The order seems to have been filed and entered on the 27th day of October, 1938.

A motion for a new trial is shown by the record to have been filed on September 28, 1938, and an amended motion was filed October 6, 1938. The amended motion for a new trial was overruled on the 27th day of October, 1938.

In the order overruling the application for continuance it is recited that, “plaintiffs jointly and severally excepted, and were by the court allowed a full bill of exceptions.” The motion . for continuance filed, as aforesaid, on September 28th, verified on October 6th, sets up surprise as to the ruling of the court in rejecting the evidence, the impossibility .of procuring the evidence from any other source; that the production of the evidence was vital to the prosecution of their cause of action, and asked for postponement of the trial for a week, or such other time as would suit the convenience of the court and the defendants.

There is no bill of exceptions in the record complaining of the action of the court in overruling this motion for a continuance. Even had same been timely presented, in the absence of a bill of exceptions, under the rules, it is beyond our power to consider same, even though exception was made to the order overruling same. Rule 70;. 3 Tex.Jur. p. 589, sect. 412; Farmer v. Kay Bros., Tex.Civ.App., 73 S.W.2d 546.

If plaintiffs were surprised at the court’s action in sustaining the objection to the copy of the record of the Abe Williams’ patent, several courses were open to them. First, they might have asked leave to withdraw their announcement- of ready and filed application for a continuance. If same was refused, preserve by bill of exceptions their objections to the ruling of the trial court. This, we think, would have preserved their right to a review of the question of the refusal of the continuance. If the continuance was refused they might have taken a non-suit; afterwards moved to reinstate, setting up the erroneous ruling of the court as to the evidence, and if this motion were refused appeal from the order overruling same. Benedict v. Chicago, R. I. & P. Ry. Co., Tex.Civ.App., 91 S.W. 811.

Plaintiffs claim there • was fundamental error in the judgment entered, in that it was adjudged that plaintiffs take nothing, when, under the pleadings, there were disclaimers as to parts of the land described in plaintiffs’ petition.

The issues on the merits were not developed in the case other than by the pleadings. It is impossible to tell from the record whether this was a boundary suit or otherwise. Plaintiffs failed to make out a case, and unless some other form of judgment was demanded by the pleadings, the ordinary “take nothing judgment” would have been responsive to the issues made by the pleadings. However, the three sets of defendants each filed disclaimers as to the lands described in plaintiffs’ petition, other than that described in their respective answers. The problem would be easy had each answer excepted from the description contained in plaintiffs’ petition a definite and ascertained portion thereof. The situation here is that an inspection of the description contained in two of the disclaimers at least discloses that they do not on their faces necessarily show that the land described is a portion of the same land described by plaintiffs.

In the case of Herring v. Swain, 84 Tex. 523, 19 S.W. 774, a somewhat analogous situation arose. Defendant there disclaimed as to all land described in plaintiff’s petition, “except the land embraced in and covered by the Charles Lacoste survey.” The judgment was for plaintiff, except that portion included in the Lacoste Survey, and further fixed the east line of that survey on the ground. Judge Gaines said in substance that the plea was subject to exception, but the issue was only as to so much of the Lacoste Survey as was in conflict with the land described in plaintiff’s petition. In that case the judgment disposed of that issue in favor of defendant, and the judgment for defendant for cost was affirmed. In the case the evidence evidently clarified the issue and made it certain and definite. This is not the case here. The areas described in the answers of defendants may or may not entirely occupy the area described in plaintiffs’ petition. The issue here may or may not be one of boundary.

If it were shown the land described in the reservations contained in the disclaimers occupied the entire area claimed by plaintiffs there would be much force in the proposition of defendants that the reformation, o-f the judgment could be of no benefit to plaintiffs. A judgment as to each set of defendants that as to the land reserved in the disclaimers the plaintiffs take nothing and said defendants go hence without day, would certainly protect every legitimate right of the defendants. Such a judgment as to the land they put in issue would certainly forever estop plaintiffs, and would be in effect tantamount to conveyance by such plaintiffs to defendants. Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d 564, 111 A.L.R. 1152.

It is fundamental that a plaintiff is entitled without the introduction of evidence to a judgment against the defendant for the title and possession as to all land put in issue by plaintiff’s petition as to which the defendant disclaims title, Snyder v. Compton, Tex.Civ.App., 29 S.W. 73; Brown v. Brown, Tex.Civ.App., 280 S.W. 918; Tull v. Wilbarger County, Tex.Civ. App., 36 S.W.2d 316, 317; Investors Utility Corp. v. Challacombe, Tex.Civ.App., 39 S.W.2d 175; Young v. City of Lubbock, Tex.Civ.App., 130 S.W.2d 418.

Plaintiffs contend that such a decree would settle nothing. If this contention be sound it does not materially harm them, because, if the land described by defendants is not part of the land described in their petition, plaintiffs’ title is forever quieted as to the claims of the defendants.

It is ordered that the judgment of the trial court be reformed as follows:

That as to the land described in plaintiffs’ petition, being the same land described in the judgment of the trial court, plaintiffs have and recover of and from the defendants Humble Oil & Refining Company and Humble Pipe Line Company all of the same, save and except the following:

“25.61 acres of land more or less being a portion of the Humble Oil & Refining Company 49.78 acre tract and the Humble Oil & Refining Company 494.87 acre tract out of the Day Land & Cattle Company Survey situated in San Patricio County, Texas, and being more particularly described as follows:
“Beginning at an old 2" cedar stake in fence corner being the lower southeast corner of the Humble Oil & Refining Company 494.87 acre tract and southwest corner of the Will Boyd 70 acre tract in the north line of the Robert D. Welder tract.
“Thence S. 89° 16' W. 1034.4 feet with old fence being the lower south line of said 494.87 acre tract and north line of said Welder tract to an old 2" cedar stake in old fence corner, the southwest corner of said 494.87 acre tract and a corner of the Humble Oil & Refining Company 49.78 acre tract in the north line of said Welder tract; said stake being also in the south line of the Day Land & Cattle Company Survey.
“Thence .S. 89° 19' W. 37.4 feet with fence, north line of said Welder tract, south line of said 49.78 acre tract, and south line of said Day Land & Cattle Company Survey to the southwest corner of said Survey.
“Thence N. 00° 06-1/2' W. 972.2 feet with the west line of said Day Land & Cattle Company Survey to the northwest corner of same.
“Thence N. 89° 58' E. 4682.5 feet with the north line of said Survey, at 30.8 feet across the trace of an old fence, the east line of said 49.78 acre tract and the west line of said 494.87 acre tract, and continuing on with the north line of said survey to a point in a cyclone fence along the northwest line of a public road, said point being also in the lower southeast line of said 494.87 acre tract.
“Thence S. 34° 06' W. 0.6 feet with lower southeast line of said 494.87 acre tract and said cyclone fence to a corner of said cyclone fence being, the northeast comer of the Will Boyd 70 acre tract and a southeast corner of the said 494.87 acre tract.
“Thence S. 89° 14' W. 3620.0 feet with cyclone fence, the north line of said Boyd tract and a south line of said 494.87 acre tract at approximately 2983 feet pass corner of said cyclone fence and continuing on with said lines and barbed wire fence to a fence corner the northwest corner of said Boyd tract and an inner corner of said 494.87 acre tract.
“Thence S. 0° 41' E. 913.0 feet with fence, the west line of said Boyd tract and lower east line of said 494.87 acre tract to the place of beginning and containing 25.61 acres of land more or less.”

And as to said land last above described the plaintiffs take nothing against said defendants and said defendants go hence without day as to same;

That plaintiffs recover of and from defendants Boyd .and wife all of the land described in plaintiffs’ petition and in the judgment of the trial court, save and except the following land: by deed dated April 5, 1924, recorded in Vol. 76, page 6'0S, deed records of said county.”

“Part of the T. P. McCampbell Ranch, described as follows:
“Beginning on the southern boundary of said ranch 1032 feet N. 89° 12' E. from the extreme S. W. Corner of said ranch; Thence North 89° 12' E. with said southern boundary 2986 feet the NW bdy of Ave. B a rock and fence corn, post at 3016 ft. the corner of said Ave. B; Thence N. 34° 04' E. with the center line of said Ave. B, 1116 ft. a stake for NE corn, of this survey; Thence S. 89° 12' W. at 3655 ft. a stake set for the NW corn, of this survey; Thence S. 0° 48' E. at 914 ft. to the place of beginning containing 70 acres of land comprised of approximately 56 acres out of survey in the name of William McDonough, Abst. No. 184, and approximately 14 acres out of the T. T. Williamson survey, Abst. No. 294; and being the same land conveyed to Will Boyd by Lulu Lee Porterfield et al

And as to the land last aboye described the plaintiffs take nothing against said defendants, and said defendants go hence without day;

That plaintiffs recover against defendants Phelps and wife all of said land described in said petition and in the judgment, save and except the, following: “And being situated near Ingleside, in San Patri-cio County, Texas, and known and described as Fractional Tracts Numbers Fourteen (14), Fifteen (15) and Sixteen (16), in Land Block Number Ninety (90) of the T. P. McCampbell Subdivision of the T. P. McCampbell ranch and described by metes and bounds as follows: Beginning at a stake designated as NW corner of Tract 16 in the center line of road known as Ave. B; Thence S. 34° 4' W. 1383.5 ft. to a stake set for the SW corner, said stake being in the -N line of the R. H. Welder 532 acre tract in the T. T. Williamson patent, Abst. No. 294; Thence N. 89° 9' E. 1165.8 ft. to a stake for the SE corner; Thence N. 34° 4' E. 716.5 ft. to a stake for the NE corner; Thence N. 55° 56' W. 8’56.8 ft. to the point of beginning. The enclosed tract being all of Fractional Lots 14, 15 and 16 of said Block 90 of the McCampbell Subdivision and containing 23.5 acres of land.”

And that as to said land last above herein described the plaintiffs take nothing against said defendants, and said defendants go hence without day.

It is believed that the modification of the judgment as above indicated is justified and sustained in a general sort of way by the cases hereunder cited and the cases hereinbefore cited. Converse v. Langshaw, 81 Tex. 275, 16 S.W. 1031; Snyder v. Compton, Tex.Civ.App., 29 S.W. 73; Smithers v. Smith et al., 35 Tex.Civ.App. 508, 80 S.W. 646.

It is ordered that the judgment of the trial court be modified as above indicated, and as modified affirmed.

On Motion for Rehearing.

In the original opinion it was stated that the ruling of the trial court on the motion for continuance could not be reviewed 'because there was no bill of exceptions reserving ground for review. The statement was made without taking into consideration the amendment of 1939 to Section 4, Article 2237, R.S., Vernon’s Ann.Civ.St. art. 2237. This amendment was entirely overlooked.

Let us assume, without deciding, that the amendment suffices to give the right of review where the overruling of the motion for continuance appears in the minutes. The transcript here fails to show that prior to the rendition of the judgment appealed from a motion for continuance was made and overruled. In plaintiff’s amended motion for a new trial, duly verified, appears this statement: “The court, though admittingly possessing discretionary powers to grant, or refuse to grant, applications for continuance, abused its discretionary power in view of the peculiar circumstances of this cause in refusing and disallowing plaintiffs permission to withdraw their announcement of ready during the trial of the cause made.”

The motion for continuance was filed on the 28th day of September, the.same date plaintiffs’ original motion for a new trial was filed. Order was made on October 27th overruling the motion for continuance and for a new trial. The judgment assailed shows on its face that same was rendered on the 26th day of September.

If the above-quoted portion of plaintiffs’ amended motion for a new trial is an unequivocal statement that in limine a motion to withdraw the announcement of ready,and to continue was made, it is not consistent with the record.

The main ground of complaint is that the court erred in the rejection of the Abe Williams’ patent. This ground of exception is not presented by bill of exceptions. ' It does not appear from the transcript whether the document tendered was a copy of the records of San Patricio County or a certified copy of the records of the General Land Office.

Reversible error does not appear from the record before this court.

Motion overruled.