text:
    TULLOS et al. v. TEXAS PIPE LINE CO.
    No. 11027.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 28, 1940.
    Rehearing Denied Nov. 27, 1940.

      Burris & Benton, of Houston, for appellants.
    Sewell, Taylor, Morris & Connally and Ben G. Sewell, all of Houston, for appel-lee.
   GRAVES, Justice.

This appeal is from a judgment of the 55th District Court of Harris County — entered in response to appellee’s motion therefor at the close of the appellants’ evidence and before it had presented any— withdrawing the cause from the jury and .decreeing that appellants recover nothing as against the appellee, upon its conclusion that, under the undisputed evidence, “there were no undisputed issues of fact which should be submitted to the jury.”

The suit was by the surviving wife and children of J. D. Tullos, deceased, appellants, against the Texas Pipe Line Company, a corporation, appellee, to recover exemplary damages as a result of the death of John D. Tullos, on May 20 of- 1937, from injuries received by him in an oil-fire while in the employ of the appellee as a pipeline connection foreman at its East Houston tank farm in Harris County.

' The appellants, in their brief, assert that the testimony showed the accident to have happened in these circumstances:

“On the 19th of May, 1937, in the early part of the morning, J. D. Tullos went to the East Houston Tank Farm, with a gang of men to superintend the making of a connection in a ten-inch pipe line. That a hole called a bell-hole was dug under the ten-inch- pipe line at the place where the connection was to b.e .made, the hole being approximately 6 by 9 feet on .the surface and about 3½ to 4 feet deep; The ten-inch line had previously had oil in it and a suction pump was placed on the line to clean out the line preparatory’ to cutting into it for the purpose of welding in a six-inch line connecting with it. At the place where the cut was to be made in the ten-inch line a small hole was cut into the ten-inch line with a cold chisel and the line tested to determine whether there was still any oil in it. After the line had been tested and found to contain no oil, Travis Robinson, a member of the crew, started cutting a circular opening into the east side of the ten-inch line, which runs in a north and south direction, with an acetylene torch. This occurred some time between 10:00 and 11:00 o’clock A. M. At this time J. D. Tullos was standing on the east side of the pipe line opposite where the hole was being cut into the line and about 10 to 15 feet away from it. At the time, B. B. Fitzpatrick, District Foreman, and Mr. Russell, Assistant District Foreman, both superiors of J. D. Tullos, were also present. Just about the time that the circular opening being cut by the acetylene torch in the 10-inch pipe line had been completed, a large amount of flaming oil burst out of the opening, knocking out the plug and covering the clothes and body of J. D. Tullos with a sufficient amount of flaming oil to burn him to the extent that he died as a result thereof on the following morning about 2:30 A. M.”

In inveighing here against the - adverse judgment, after reciting that the appellee had, prior to the accident, provided insurance therefor and subsequent thereto had been paying the widow and minor children the prescribed benefits under the Workmen’s Compensation Law, Vernon’s Ann. Civ.St. art. 8306 et seq., the appellants further charge the exemplary damages to have inured to them as a result of these acts of gross negligence of the appellee-employer toward the deceased employee, each of which proximately caused the latter’s injury and death, to-wit:

(1) “In ordering that J. D. Tullos use an acetylene torch in the cutting into the ten-inch pipe-line on the occasion in question and that said gross negligence proximately caused the injuries which 'resulted in his death.”
(2) “In failing to require that pipe lines such as the ten-inch line upon which Tul-los was cutting when killed, be cut with either boring-bars or hand-tools, and that such gross negligence proximately caused the injuries and death of J. D. Tullos.”
(3) “In failing to provide metal shields to protect J. D. Tullos and others working about a pipe line which was being cut with an acetylene torch, and that such gross negligence was the proximate cause of the death of J. D., Tullos.”
(4)' “In failing to make rules and regulations forbidding the transfer of oil from one tank to another in the vicinity of the place where a line was being cut with an acetylene torch, prior to the date of the accident, and that such gross negligence was a proximate cause of the injuries and death of 'J. D. Tullos.”
(5) “The evidence failed to show as a matter of law that J. D.' Tullos assumed the risks upon the occasion in question, so as to preclude the plaintiffs from bringing an action for his death.”
(6) “The evidence failed to show as a matter of law that J. D. Tullos was guilty of contributory negligence proximately causing or proximately contributing to cause his injuries and death.”

The appellee answered by general denial, pleas of unavoidable accident, contributory negligence, and assumed risk upon J. D. Tullos' part “in selecting the method and plan of operation used in making the connection, in directing the welder to cut into the line, in failing to personally inspect the line to determine if it was free from oil, in standing at the edge of the bell hole at the time the ten-inch pipe was being cut, and in other respects.”

In this court it meets appellants’ given contentions for gross negligence with these counter-propositions:

"The trial court did not err in withdrawing the case from the jury and entering judgment for the defendant, because there was no evidence that the defendant was guilty of gross negligence in ‘ordering’. J. D. Tullos to use an acetylene torch in putting into the ten-inch pipe line on the occasion in-question, or in failing to require the use of' boring bars or hand tools for such work, it being established by the un.-contradicted testimony that; •
• “(a) The method used inputting the pipe line with an acetylene torch was the usual and customary method adopted by all companies engaged in this' type of work.
“(b) The defendant had used this method of cutting into pipe-lines for over ten years without a fire or' explosion ever occurring.
“(c) The deceased, J. D. Tullos, had used this identical method in performing this work for defendant on ‘literally hundreds’ .of occasions, without a- fire or explosion ever occurring.-
“(d) The deceased, J. D. Tullos, never complained to the defendant that he considered this method as unusually hazardous, although the defendant held monthly safety meetings, which Tullos attended regularly, at which the employees were urged to report any hazardous working conditions or facilities.
“(e) This method of work had been found to be safe and practicable in actual experience over a period of ten years, when the usual precautions were taken to clear the pipe line with suction pumps and test it for oil through a small hole drilled into the pipe, and on this occasion, in accordance with the defendant’s instructions, the acetylene torch, was not applied to the pipe line until these usual precautions had first been taken.
“(f) The deceased, J. D. Tullos, was not ‘ordered’ by the defendant to use an acetylene torch in cutting the pipe, but the defendant simply approved this method, it being the duty of Tullos as a ‘connection foreman’ to recommend the use of any other method which he considered safe and practicable.”

“The trial court did not err in withdrawing the case from the jury and entering judgment for the defendant, because there was no evidence that the defendant was guilty of gross negligence in failing to provide ‘metal shields’ for Tul-los and others working about the pipe line which was being cut with an acetylene torch.”

“The trial court did not err in entering judgment for the defendant at the close of the plaintiffs’ evidence, for the reason that there was no evidence of any probative value from which the jury could have found that the defendant was guilty of gross negligence in failing to make rules and regulations forbidding the transfer of oil from one tank to another in the vicinity of the place where the line was being cut with an acetylene torch, and that such gross negligence was a proximate cause of the injuries and death of J. D. Tullos, because:

“(a) Under the undisputed evidence the defendant did have such a rule and regulation. ' ‘
“(b) • Under, the undisputed evidence a failure, in any event, to have had such a rule or regulation. could not have constituted gross negligence.
“(c) A failure, in any event, to have had- such a rule or regulation could not have been a proximate cause of the death of J. D. Tullos because there was no evidence of any probative value establishing any causal connection between an omission to have such a rule and the death of J. D. Tullos.”

It further thus presents its affirmative defenses of assumed risk and contributory negligence, in event it be found or held that there, was any evidence of probative force of gross negligence developed against it, which it strenuously denies, as follows:

“The trial court did not err in entering judgment for the defendant at the close of plaintiff’s evidence, because under the undisputed evidence the plan' and method of operation being used in making the connection into the' ten-inch line was the usual and customary plan and’ method used in such work; that fact was well known to the deceased, J. D. Tullos, and by reason of his voluntary participation therein he assumed the risks and dangers incident thereto and the risk'of danger of being injured in the manner in which he was injured, as a matter of law.”

' “The trial court did not' err in entering judgment for the defendant at the close of plaintiffs’ evidence, because under the undisputed evidence J. D. Tullos,' the deceased, was a foreman, with long experience, delegated to supervise the work being conducted on the occasion in question, and accordingly in a position superior or equal to that of any of the agents of the defendant to know and appreciate the dangers in performing the work in question with the tools and appliances furnished by defendant for that purpose, and in accordance with, the method :of work approved by defendant, there being no hidden imperfection'; or defect-in the instrumentalities used, nor dangers to- be foreseen open to the observation- of the agents of defendant, but hidden:to,the deceased.”
“Sipce under . the undisputed evidence the deceased, J. D. Tullos, had¡been in the employ, of-defendant twenty-two years, and had had wide experience in the type ,of .work in which he was engaged on the occasion in question, by reason .of which he had been delegated by' the. defendant as ‘connection foreman’, with the authority arid "duty"'to supervise the details ⅛-f- the work being'performed on the-occasion of his injuries, if there was any evidence warranting a finding by'the jury that, 'the'-defendant ¡was guilty of gross, negligence- in any .respect, alleged by the plaintiffs, it must follow, as a matter of law, that the dangers and - risks in .performing the work in the manner in which it was being performed were so open and obvious that Tullos would be charged, as a matter of law, with having assumed them.”
“Since under the undisputed evidence the deceased, J. D. Tullos, had been in the employ of defendant twenty-two years, and had had wide experience in the type of work in which he was engaged on the occasion in question, by reason of which he had been delegated by the defendant as ‘connection foreman’, with the authority and duty to supervise the details of the work being performed on the occasion of his injuries, if there was any evidence warranting a finding by the jury, that the defendant was guilty of gross negligence in any respect alleged by the plaintiffs, it must follow, as a matter of law, that the deceased, J. D. Tullos, was guilty of contributory negligence.”

After a painstaking examination of the statement of facts, especially of the testimony therein reflected which had any bearing upon the issues of gross negligence, assumed risk, and contributory negligence, this court is constrained to hold the trial court to have been correct, under these conclusions :

(1) There was not shown in this instance in any of the respects charged “that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the rights or welfare of the person or persons to-be affected by it”; • '

(2) That if, however, there was enough testimony to raise a jury issue of süch gross negligerice- in any of the particulars so alleged,' then it conclusively if not undis-putedly appears from the other uncontro-verted facts in evidence that the unfortu*-nate employee in this instance had both 'assumed the risk he took, in doing the particular work in the circumstances he knew to exist, and, in so doing, was also guilty of negligence'upon hi$ own part that-contributed to-his injury. -

In other words, it seems reasonably- plain to this court that the appellants have not established sufficient basis upon- which- to-predicate the gross negligence which, alone 'they, depended upon, h

Since the authoritative determination of the controversy depends at last upon a ■proper appraisal pf the entire -body of the evidence, which-the trial .CQurt construed to require the peremptory action taken, it becomes necessary to consider what it was; in this court’s opinion, no restatement nor résumé of its most material features could either be more comprehensive or correct than that embodied in the several propositions quoted from the appellee’s brief supra; it would, therefore, be a needless repetition to again detail them, wherefore they are adopted as the findings of this court upon the' several phases of the case they cover.

It is further concluded that the several propositions of law tendered in those quotations are likewise, in each instance, sound, as indicated by the authorities respective^ ly stated under them; listing them successively under the same numbers as the propositions themselves, the main ones of those authorities are these:

(1) Texas Pacific Coal & Oil Co. v. Robertson, 125 Tex. 4, 79 S.W.2d 830, 98 A.L.R. 262; Taylor v. White, Tex.Civ.App., 156 S.W. 349; Id., Tex.Com.App., 212 S.W. 656; Bering Mfg. Co. v. Sedita, Tex.Civ.App., 216 S.W. 639, writ of error refused; Van Landers v. West Lbr. Co., Tex.Civ.App., 227 S.W. 692; 20 R.C.L., Sec. 23, p. 30; Texas & Pacific R. Co. v. Perkins, Tex.Com.App., 48 S.W.2d 249; Annotation, 98 A.L.R. 267; Texas Pacific Coal & Oil Co. v. Robertson, supra; Rio Grande Valley Tel. Co. v. Hocut, Tex.Civ.App., 93 S.W.2d 167, writ of error dismissed; Bonner v. Texas Co., 5 Cir., 89 F.2d 291; Magnolia Pet. Co. v. Booth, Tex.Civ.App., 105 S.W.2d 356; Robertson v. Magnolia, Tex.Civ.App., 255 S.W. 223, writ of error dismissed; Southwestern Sewer Co. v. Cross, Tex.Civ.App., 93 S.W.2d 202; Medlin Milling Co. v. Mims, Tex.Civ.App., 173 S.W. 968, 972, writ of error refused; 39 Corpus Juris, § 449; p. 329; Nix v. Texas & Pacific R. Co., 82 Tex. 473, 18 S.W. 571, 27 Am.St.Rep. 897; French v. Southwestern Tel. Co., Tex.Civ.App., 162 S.W. 406; Gulf, C. & S. F. Ry. Co. v. Warner, Tex.Civ.App., 36 S.W. 118.

(2) Robertson v. Magnolia Petroleum Co., Tex.Civ.App., 255 S.W. 223, writ of error dismissed.

(3) Koenig v. Marti, Tex.Civ.App., 103 S.W.2d 1023, 1029; Markusfeld v. Zahn, Tex.Civ.App., 99 S.W.2d 438; International & G. N. R. Co. v. Arias, 10 Tex.Civ.App. 190, 30 S.W. 446; McCormick & Ray’s Texas Law of Evidence, 1937, § 4, p. 7; Sanner v. Atchison, T. & S. F. R.Co., 17 Tex.Civ.App. 337, 43 S.W. 533, writ of error refused; Harris v. Missouri-K.-T. Ry., Tex.Civ.App., 283 S.W. 895, 903; Texas Pacific Coal & Oil Co. v. Robertson, supra.

(4) St. Louis Southwestern Ry. v. Brisco, 100 Tex. 354, 99 S.W. 1020; Gulf, C. & S. F. Ry. v. Huyett, 99 Tex. 630, 92 S.W. 454, 5 L.R.A., N.S., 669; Texas & Pac. Ry. v. Bradford, 66 Tex. 732, 2 S.W. 595, 59 Am.Rep. 639; Bonnet v. Galveston, H. & S. A. R. Co., 89 Tex. 72, 33 S.W. 334; Texas & N. O. R. Co., v. McKee, 9 Tex.Civ.App. 100, 29 S.W. 544, writ of error denied; Galveston, H. & S. A. Ry. Co. v. Lempe, 59 Tex. 19; Missouri, K. & T. Ry. v. Spellman, Tex.Civ.App., 34 S.W. 298; Brownwood Oil Mill v. Stubblefield, 53 Tex.Civ.App. 165, 115 S.W. 626; Fort Worth Light & Power Co. v. Moore, 55 Tex.Civ.App. 157, 118 S.W. 831, 836; Seabord Airline Ry. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, 1063, L.R.A. 1915 C, 1, Ann.Cas. 1915 B, 475; St. Louis S. W. Ry. Co. v. Hynson, 101 Tex. 543, 109 S.W. 929; Patton v. Dallas Gas Co., 108 Tex. 321, 192 S.W. 1060; Ft. Worth & R. G. R. Co. v. Robinson, 37 Tex.Civ.App. 465, 84 S.W. 410, affirmed by Supreme Court, 99 Tex. 110, 87 S.W. 667; Missouri Pacific R. Co. v. Somers, 71 Tex. 700, 9 S.W. 741, on subsequent appeal Id., 78 Tex. 439, 14 S.W. 779; Texas & Pacific R. Co. v. Perkins, Tex.Com.App., 48 S.W.2d 249, 39 C.J. § 946, p. 743; section 949(c), p. 746.

(5) Fort Worth, L. & P. Co. v. Moore, 55 Tex.Civ.App. 157, 118 S.W. 831, 835; City of Munday v. Shaw, Tex.Civ.App., 100 S.W.2d 765.

The rules governing this cause in the several features so detailed in the quoted propositions, as exemplified and applied’ in the many authorities thus severally cited, are in nowise undermined, by the holdings in the two causes cited by the appellants as haying to do favorably to their contentions with instances of gross negligence, to-wit: Morton Salt Co. v. Wells, 123 Tex. 151, 70 S.W.2d 409; and Rio Grande Valley Tel. Co. v. Hocut, Tex.Civ.App., 93 S.W.2d 167, writ of error dismissed.

Those causes are distinguishable upon their facts from this one, in that in the Morton case the employer was shown not only to have for years furnished its employees a dangerous machine to work with, but -that the one there involved át the particular time that one was killed had been furnished him to do his- work with under the company’s representation that -it had just been' repaired, when it had not' been; whereas, in the Hocut case, the injured employee’s foreman, though himself having actual knowledge of the probable danger from a charged electric line, both failed to inspect the premises or warn the employee of the hidden danger that caused his injury.

In view of these conclusions and the stated grounds on -which they are rested, it is not thought a needful purpose would be subserved by further extending the opinion; upon the whole, it seems clear-that no proper predicate was laid upon which to base that positive or affirmative dereliction of an employer toward its employee that is so clearly defined in our law-books as gross negligence — that is, as it has hereinbefore been characterized in following our Supreme Court’s definition in Texas Pacific Coal & Oil Co. v. Robertson, 125 Tex. 4, 79 S.W.2d 830, 831, as “that entire want of care which would raise the belief that the act or omission complained of was-the result of á conscious indifference tó the rights or welfare of the person or persons to be affected by it.”

The appellee’s cross-assignment of. eiror against the trial court’s'having admitted Mrs. Tullos’. testimony to the effect that her husband had told her at the. hospital some two hours after the, accident, that “some of those green scissorbills opened the gate and turned oil into the line and it came down on us and when it hit the hot line it throwed hot oil on us and burned us,” is overruled, upon the conclüsion that it was admissible'under the res gestaé. rule. The appellee’s objection was that it was inadmissible because hearsay, and at most only the opinion and conclusion of the dying man ;- the setting was that-Mr. Tullos called for his wife at the hospital to which he- had been taken immediately following the explosion, told her he thought he was going to die, and to answer to her inquiry, “How did this happen?”, made the quoted statement.

It is thought ibis situation is covered by our holdings in such cases as these: Southern Surety Company v. Weaver, Tex.Com.App., 273 S.W. 838; Beck v. Wahlgren, Tex.Civ.App., 87 S.W.2d 890; Missouri, K. & T. Ry. v. Moore, 24 Tex.Civ.App. 489, 59 S.W: 282.

Notwithstanding, its. admissibility, however, this court further agrees with the-learned trial -Judge .in holding that, what-' ever its potentiality, this statement-.in no-. wise undermines the overwhelming case against any gross negligence that was otherwise developed by the definite testimony referred to supra; under the appel-lee’s indisputably established rules and regulations, as well as under the invariable practice as between it and its employees, inclusive of Mr. Tullos, in apportioning their several duties and responsibilities, it was made to undisputedly appear that none other than its engineer and gauger were ever under any circumstances to open or. close its oil-line gates — that under no circumstances were “green scissorbills” permitted ór allowed to do such a thing; wherefore, “there is no evidence of any probative value that any gate- was- opened by any employee of the appellee, whose conduct in that respect would have necessarily been affected by a rule forbidding transfers from tank tó tank in the vicinity of the place where a line was being cut with an acetylene torch. In the absence of such proof, no c'ausal- connection is established between any omission to have such a rule and the resulting injuries to Tullos.” '

Without further discussion, an' affirm-'-ánce will enter.

Affirmed..


source: Caselaw Access Project

author: MONTEITH, Chief Justice.

license: Public Domain

text:
    SHAMBLIN v. SOUTHLAND LIFE INS. CO.
    No. 11070.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 14, 1940.
    Rehearing Denied Dec. 5, 1940.

      J. S. Bracewell, of Houston, for appellant.
    Sewell, Taylor, Morris & Connally, of Houston, and Malone, Lipscomb, White & Seay, of Dallas, for appellee.
   MONTEITH, Chief Justice.

This action was brought by appellant, Margaret Shamblin, to recover, as beneficiary, under a policy of life insurance issued by the Gulf States Life Insurance Company on the life of her deceased husband, James M. Shamblin. The policy was afterwards taken over and its obligations assumed by appellee, Southland Life Insurance Company.

In a trial before the court upon an agreed statement of facts, judgment was rendered in favor of defendant, appellee herein.

The policy of life insurance in question was for the sum of $2,000. It contained premium waiver and double indemnity provisions and provided for a total annual premium of $40.60, including a premium of $3 on said double indemnity provision and $1.04 on the premium waiver provision, payable quarterly. All premiums were paid by the insured up to and including August 31, 1937, but no premiums were paid by him after that time. On failure to pay the quarterly premium due on September 1, 1937, and on each occasion thereafter when quarterly premiums came due and were not paid, appellee Company wrote the insured informing him that such insurance was being carried under the automatic loan provision of said policy. On April 21, 1939, appellee Company wrote insured informing him that said policy of insurance had lapsed. On May 23, 1939, it again wrote suggesting that he have said policy reinstated. No" response was made to these letters and no protest or objection was made by insured to the plan of payment outlined therein.

On March 1, 1939, the total of the quarterly premiums paid by appellee on said policy, plus the earned interest charged by appellee Company against said policy under the automatic loan provision thereof, amounted to $66.90. On that date the value of the extended term insurance available under said policy amounted to $68.20, leaving a value in said policy of $1.30 which, if used to purchase extended term insurance under the terms of said policy, would have purchased insurance for a period of 27 days. Insured died on August 24, 1939, one year, eleven months and twenty-four days after default in the payment by insured of the premiums due on said policy.

The provisions and terms of said policy of insurance material to this appeal are as follows:

“Automatic Premium Loans. After this policy shall have been continued in force for three full years, any time thereafter upon failure of the Insured to pay the premium or any installment thereof when due or within the grace period allowed for its payment, the . Company will advance a loan against this policy to pay such premium or any installment thereof, provided the cash value hereof shall be sufficient to secure such loan and all other indebtedness against the policy and interest in advance at the rate of six per cent per annum on the total debt to the next premium due date. The policy will thus be continued in force as long as the cash value thereof is sufficient to secure the advance of as much as one quarterly premium and all existing indebtedness with interest. The Company shall similarly have the right to advance a-loan to pay a premium note if such is given for payment or as an extension of the due date of any renewal premium. Any loan made hereunder shall otherwise be subject to all the terms and conditions of the ‘Cash. Loans’ provision.
“Non-Forfeiture Provisions. Within sixty days from the date - of default in the payment of any premium or premium note (there being no default if such premium or note has been paid or secured by advance under the ‘Automatic Premium Loans’ provision), the Insured may surrender this policy and elect one of the following options :
“First Option Cash Value. Surrender this policy for its Cash Value, which shall be the sum indicated in the Table of Options opposite the number of years for which full annual premiums have been paid, and less any indebtedness to the Company on account of or secured by this policy. The payment of said Cash Value may, at the option of the Company, be deferred for not to exceed ninety days after application therefor is received by the Company.
“Second Option Paid-up Insurance. Have this policy endorsed at the Home Office of The Company as a policy of" paid-up insurance, payable at the same time and under the same conditions ■ as this policy. The amount of such paid-up insurance shall be such as the net cash value of the policy' as above defined will purchase as a net single premium at the attained age ■of the Insured.
“Third Option .Extended Insurance. Have this policy continued in force as nonparticipating extended insurance, and pure endowment, if any, without the right to surrender or loan values. The amount of :such extended insurance shall be the face amount of the policy less any indebtedness to the Company on the policy. The period for which the extended ' term insurance will continue from the due date of the unpaid premium will be such as the net value -of this option as shown in the Table less' .any indebtedness will purchase applied as a net single premium .at the attained age of the Insured.
“If the Insured shall not within 'sixty days from default in the payment of any premium or premium note surrender this’ policy .for its Cash Value as provided .above in the First Option, or for a policy •of paid-up insurance as provided in the Second Option, the policy will be automatically continued in force as Extended Term Insurance and pure endowment, if •any, as provided in the Third Option.
“Indebtedness. Any indebtedness to the •Company on account of or secured by this policy and any indebtedness of- the holder •of the policy to.the Company shall be á first lien and will be deducted from any settlement under this policy.”

The double indemnity rider provides, in substance, thatr “if, during the premium paying period * * * and before default in the payment of any premium, * * * and if none of the non-forfeiture privileges is in effect * * * ” the company will pay double indemnity insurance. The waiver of premiums rider reads, in part: “The disability benefit herein provided shall not be payable if, at the date of disability the said policy shall be in force under any non-forfeiture provision thereof (except automatic premium loan provision, if any).”

The only question presented in this appeal is whether the policy of insurance in question had lapsed by reason of the nonpayment of premiums at the time of the death of- insured, James M. Shamblin.

Appellant contends that, under the terms of said policy, appellee Company did not have the legal right to deduct premium loan advancements from the legal reserve value of said policy in such a manner as to destroy the reserve fund under the policy for the purchase of extended insurance.

Under the automatic loan provision of said policy, the company agreed, in effect, that after said policy had been in force for three full years, upon failure of the insured to pay the premium due thereon, it would advance a loan against said policy to pay such premium provided the cash value thereof was sufficient. The policy would thus be continued in force as long as the cash value thereof was sufficient to secure the advance of as much as one quarterly premium.

It is undisputed that no premiums were paid by the 'insured after August 31, 1937, and that appellee Company, under the automatic premium loan provision of said policy, advanced in behalf of the insured as a loan on the policy premiums which, with interest charged by appellee Company against • said policy under the terms thereof, amounted to $66.90. At that date the cash value of the policy was $68.-20, exclusive of any indebtedness against it. Of this amount the sum of $66.90 had been absorbed in the payment of premiums to the company under the automatic loan pror vision of the policy for the payment there-, of. The balance of $1.30 remaining of the net value of paid-up term insurance was: insufficient to fix a term of paid-up insur-' anee of sufficient duration -to extend the policy beyond the date of the death of insured. It therefore follows that there was no insurance in force at the time of the deáth of James M. Shamblin on August 24, 1939. The automatic loan provisions contained i-n said policy, including the right of an insurance company to advance the funds necessary to pay premiums thereon, with interest, and thereby diminish the period for extended insurance, has been upheld in the following cases: Huff v. Southwestern Life Ins. Co., Tex.Civ.App., 95 S.W.2d 498, writ refused; Pacific Mutual Life Ins. Co. v. Merritt B. Thurman, Jr., 126 Tex. 363, 89 S.W.2d 202; Southland Life Ins. Co. v. Hopkins, Tex.Com.App., 244 S.W. 989; Meserole v. Southwestern Life Ins. Co., Tex.Civ.App., 203 S.W. 1161.

Appellant further contends that even if it should be held that appellee Company was authorized under the terms of said policy to deduct premium loan advancements from the legal reserve value of said policy under its automatic premium loan provision, the Company was not authorized to use such reserve in paying the premiums on the riders attached to the policy for annual premium waiver and double indemnity of, respectively, $1.04 and $3. It is contended that if the premiums on said riders had not been taken from said reserve the policy would have been in effect on the date of the death of insured. This contention cannot be sustained.

It is uncontroverted that the premiums on the double indemnity and premium waiver provisions were advanced by appel-lee Company under the automatic premium loan provision of said policy in connection with the other premiums advanced and that the insured received the benefits thereof in the protection afforded by these riders while the policy was kept in force by the automatic loans. Certainly if the insured had .sustained. death by accidental means^ during the period the. policy was being kept in force by automatic loans appellant would have been entitled to recover under said double indemnity provision.

Under above facts appellant is in no position to contend that said premiums cannot be included in the automatic premium loans advanced by appellee Company, 'since’•unquestionably the provisions contained in said two-riders to the'policy were a part of the insurance ' contract between'-appellee Company and insured. '- -

In the instant case underthe clear and unambiguous terms of said policy the insured was given 60 days to choose one of three options. Not having chosen the option, and the Company ^ having elected to advance the premiums under its automatic premium loan provision as long as there existed a cash value in said policy, and the insured having had the benefit of the protection afforded not only by the main provisions of said policy but of the riders attached thereto, the premiums for which were added to the quarterly premiums due and advanced by the Company while it was being kept in force by the automatic loans, the beneficiary is at this time in no- position to-object to the methods pursued by the Company under the terms of said policy whereby the policy has kept alive as long as the value remained therein.

Under the above facts appellant’s propositions are overruled. The judgment of the trial court is in all things affirmed.

Affirmed.


author: FOLLEY, Justice.

text:
    COOPER v. COCKE et al.
    No. 4824.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 28, 1940.
    Rehearing Denied Dec. 2, 1940.

      Geo. J. Jennings, of Tulia, for appellant.
    Dennis Zimmermann, of Tulia, for appel-lee J. D. Cleveland.
   FOLLEY, Justice.

On February 22, 1935, C. L. Cooper recovered judgment in the County Court of Swisher County, Texas, against J. W. Vaughn in the sum of $527.70. From such judgment there was no appeal. Thereafter on July 13, 1935, upon proper application therefor, the plaintiff Cooper obtained the issuance of a writ of garnishment under such judgment upon C. J. Cocke and W. W. Braden, a partnership doing business under the firm name of Cocke & Braden. Such writ was duly served on July 14, 1935, citing the garnishees to make their answer in statutory form at the next term of the county court to be held on July 15, 1935.

The only answer or petition of the garnishees appearing in the record is one filed August 24, 1935, but this instrument shows on its face it was an amended pleading filéd in lieu of the first answer theretofore filed at the time the county court convened July 15, 1935. The pleading of the garnishees brought forward in the record is denominated their “Interpleader Petition.” In the amended pleading it is shown that in the first answer theretofore filed J. W. Vaughn was impleaded as a defendant in the garnishment. It is also asserted in ' such amended pleading that on June 14, 1935, the day the writ was served, the garnishees were indebted to the defendant Vaughn in the sum of $93; that at the time of making their answer at the July term, 1935, they were indebted to Vaughn in the sum of $352.05; and that since the filing of their answer in July, 1935, there had accrued the further sum of 83⅜ making a total of $352.-88 due Vaughn on August 24, 1935, the date their amended pleading was filed. In such pleading it was further shown that the indebtedness due Vaughn was for caliche obtained from land belonging to Vaughn, which caliche was used by the garnishees in the construction of a highway in Swisher County in connection with their contract with the State Highway Department of Texas. With such pleading the garnishees deposited the sum of $352.88 into the registry of the court to be awarded by the court to the person entitled thereto and asked that the court allow the garnishees $25 as attorneys’ fees expended by them in connection with the filing of such pleading.

The defendant Vaughn answered denying the garnishees owed him anything, asserting that his contract and agreement with reference to the sale of caliche was with the highway department and not with Cocke & Braden. In the alternative he pleaded that if the garnishees owed him the money that the same represented the proceeds from the sale of a portion of his homestead; that six months’ time had not elapsed from the sale of such caliche; and that such fund was not subject to garnishment.

On May 28, 1936, the date of the trial of this case, J. D. Cleveland, with the permission of the court, filed his plea of intervention claiming the funds deposited by the garnishees by reason of an alleged oral assignment to him from the defendant Vaughn of the date of August 1, 1935, to secure the repayment of $400 loaned by him to Vaughn on'such date.

Trial was had before the court without a jury. The court found that the funds deposited by the garnishees were not subject to garnishment because they represented the proceeds from the sale of minerals in place from the' homestead of the defendant. The court also concluded that there was no privity of contract between the defendant Vaughn and the garnishees. He further found that the defendant Vaughn had made a valid assignment of the impounded fund to the intervener Cleveland and rendered judgment for the full amount thereof in favor of Cleveland, denying the plaintiff Cooper any recovery by reason of the garnishment. Judgment was also rendered for the garnishees for $25 as attorneys’ fees, but said amount was not ordered paid out of the impounded funds deposited in the court but was merely taxed as costs.

The chief controversy in this appeal is whether or not the contract for the sale of caliche herein involved was a conveyance of minerals in place, thus constituting a transfer of realty the proceeds of which would be exempt from garnishment under the provisions of article 3834, R.C.S. of 1925.

The contract upon which the deposited fund accrued was made April 12, 1934, between J. W. Vaughn, party of the first part, and the State of Texas, State Highway Department, party of the second part. Such contract provides, among other things, as follows:

“Whereas, the Party of the Second part contemplates the utilization of acceptable Caliche material for road building purposes on State Highway No. 9, extending from Hale County Line to Happy, in Swisher County, and
“Whereas, preliminary investigations have indicated that acceptable material of this nature is available from lands hereinafter described, owned/controlled by the Party of the First Part, and
“Whereas, the Party of the First Part desires to sell any or all of this acceptable material:
“Witnesseth: The Party of the First Part for, and in consideration of one dollar ($1.00) and other valuable consideration, receipt of which is hereby acknowledged, does hereby agree to hold for the exclusive use of the Party of the Second Part all Caliche material occurring on said lands, hereinafter described, and to sell any or all of this material that may prove acceptable to the Party of the Second Part at the unity royalty price of Three Cents (3‡) per cubic yard. The Party of the First Part hereby further agrees to indemnify and save harmless the Party of the First Part (Second Part) from any and all damage, or loss, that may develop from existing mortgages or liens on the lands hereinafter described.
. “The Party of the Second Part agrees to pay for accepted material at the unity royalty rate designated above by the Party of the First part. Only one royalty payment will be made for each project involved. This/these royalty payment (s) will be made at such time as the/each project is finaled. No royalty payment will be made for strippings of quarry or other unsuitable material, whether at quarry or delivered on the road.
“It is mutually agreed that payment will be made only for acceptable material, measured loose measurement in vehicles as delivered at points on the ro'ad designated by the duly authorized representative of the Party of the Second Part. It is further mutually agreed and understood that the agents or contractors for the Party of the Second part are to have free ingress to and egress from said lands,, hereinafter described, for the purpose of excavating and removing said material. All fences, gates and other existing improvements on the said lands, hereinafter described, after removal of all material desired by the Party of the, Second Part, shall be placed in a condition comparable in repair to their former state by the Party of the Second Part, its agent or contractor.”

The contract further provided that the agreement should expire two years from its date unless the second party, its agent or contractor, was actually engaged in removing said material, in which event it should remain in effect until all such material desired by the second party had been removed. The land described in the instrument from which the caliche was to have been obtained was admittedly the homestead of the defendant Vaughn.

It is our opinion the above contract did not convey, nor was it intended to convey, an interest in the land, but merely conveyed as personalty such caliche as was acceptable to the highway department. Even without a provision in the contract with reference to “acceptable material” we would not be disposed to hold, under the facts of this case, that it was contemplated by the parties that caliche in place or realty was being transferred under the instrument, but with such provision in the contract we think the're can be. no doubt as to the intention of the parties. This provision necessarily implies that an examination of the suitability of the material 'was to be made by the second party, its agent or'contractor, with the attendant right to accept Of reject any portion thereof. Such an examination could have been thoroughly performed, and acceptance or rejection definitely made, only after the caliche had been severed from the soil and reduced to-a status of personal property.

We can perceive no distinction in a case-of this sort involving caliche and one involving gravel. In the case of Dreeben v. Whitehurst, Tex.Com.App., 68 S.W.2d 1025, 1027, involving a contract very similar to the one in the instant case, it became-material to determine whether the contract for the sale of gravel either passed title to the land containing the same or to gravel in place in or under the land. In disposing of the issue Judge Harvey, speaking for the Commission of Appeals, said: “The instrument of October 2, 1920, did not have, effect to invest the county with title to any of the land involved in this’ controversy.. It did not even operate to invest the county with title to any gravel in place in or under the land. With regard to the land involved in this controversy, the principal effect of the instrument was conditionally to license the county to go on the land and, within a reasonable time, remove therefrom-a limited quantity of.-gravel and thus acquire title to the gravel so removed. Houston Oil Co. v. Boykin, 109 Tex. 276, 206 S.W. 815.”

We therefore hold that the money due-from the sale of the caliche did not constitute proceeds from the sale of the homestead or any portion thereof in such manner as to be exempt from garnishment or forced sale. F. F. Collins Mfg. Co. v. Carr et al., 11 Tex.Civ.App. 364, 32 S.W. 366; Carter v. Clark & Boice Lumber Co., Tex.Civ.App., 149 S.W. 278; Sutton v. Wright & Sanders, Tex.Civ.App., 280 S.W. 908.

Having thus disposed of the issue witfr reference to the proceeds from the sale of the caliche being subject to the garnishment, there remains to be decided only the controversy between the plaintiff and the intervener as to which of such claimants-is entitled to the impounded fund.

The intervener Cleveland asserts that the judgment in his favor should not be disturbed because there was no privity of contract between the defendant Vaughn and the gárnishees Cocke & Braden and' the contract with the State Highway Department was not assignable nor was it assigned. We think the above agreement shows- on its face that it was made for the beiiefit of such contractor- dr 'contractors-as might be employed under contract by the State -Highway-' Department to construct the highway in question in Swisher'Courityi. Moreover, there was introduced into evidence enough of the road construction agreement between the State Highway Department and Cocke & Braden to show that the caliche contract with Vaughn had been assigned to Cocke & Braden and that such contractors had agreed to make payments direct to Vaughn for accepted material removed from his premises. This contention of the intervener is therefore without merit.

The action of the court in awarding the impounded fund to the intervener was based upon the theory that the oral assignment made by Vaughn to Cleveland on August 1, 1935, was a valid assignment made prior to the time the money was deposited into court and therefore entitled the intervener to the fund. In view of our holding that the fund was subject to garnishment, this theory of the trial court, we think, was erroneous and the judgment in behalf' of Cleveland was unwarranted. It will be noted above that the writ of garnishment was served upon the garnisheeson June 14, 1935, such writ being returnable July 15, 1935, the date of the beginning of the July, 1935, term of the County Court of Swisher County. On June 14, 1935, the record shows by the pleading of the garnishees that they were indebted to Vaughn in the sum of $93, and 'at the time of the filing of their first answer at the term of court beginning July 15, 1935, they owed Vaughn $352.05. At the filing of their amended pleading on August 24, 1935, which was denominated their “Interpleader Petition”, the former indebtedness of $352,05 had been increased 83‡ to a total then of $352.88.

Although the garnishee may not be charged with debt or effects which come into his hands after the date named for his answer (Medley v. American Radiator Co. et al., 27 Tex.Civ.App. 384, 66 S.W. 86, writ of error refused), only 83 of the impounded fund accrued thereafter and such amount is so infinitesimal we shall not further notice it. It is equally true that- a writ of garnishment impounds all funds due at the time the writ is served and all funds thereafter maturing- prior to the date named in the writ requiring the garnishee to answer. 20 Tex.Jur. 815, para. 86. The rule also obtains that the defendant may not, after the service of the writ, dispose of such impounded funds by assignment or otherwise, and this -is true even though the debt accrues after the service of the writ. Gause v. Cone, 73 Tex. 239, 11 S.W. 162, 163. In the case just cited the Supreme Court of Texas, speaking through Justice Henry, said: “As between the debtor and the plaintiff in garnishment, the superior right to the money is in the plaintiff in garnishment. To say that the debtor may transfer the garnished debt to a third person, so as to defeat the garnishment, is to recognize in the debtor a power to invest his assignee with a property in the debt that he does not own himself.”

We are further fortified in our holding that Cleveland was not entitled to the impounded fund because the testimony, in our opinion, is insufficient to support a valid equitable assignment. The evidence on the issue shows only a mere promise upon the part of the defendant Vaughn to pay his debt to Cleveland out of the fund to be received by Vaughn from the sale of gravel. Cleveland’s own interpretation of the agreement between him and Vaughn was that he expected that “if and when Mr. Vaughn ever got the money, he would come and pay it to me”. Such an agreement does not meet the test of an equitable assignment.

In 5 Tex.Jur. 25, para. 19, it is said: “But a mere promise, though clear and solemn, to pay a debt out of a particular fund, is not an assignment, even in equity. There must be such an actual or constructive appropriation of the subject matter as to confer a complete and present right on the party meant to be provided for, even where the circumstances do .not admit of its immediate exercise; and the holder or owner of the fund must not be left with any control over it.”

Again, on this same subject, in Davis & Goggin v. State Nat. Bank of El Paso et al., Tex.Civ.App., 156 S.W. 321, 327, writ of error refused, we find this language.: “On the other hand, a mere agreement, whether by parol or in writing, to pay a debt out of a designated fund of itself is not sufficient; there must be an appropriation of the fund pro tanto either by an order on the ' specific fund or by transferring the amount otherwise in such a manner that the holder of the fund is authorized to pay the amount directly to the creditor, without the further intervention of the debtor. In other words, an equitable assignment can be effected only by a surrender or control over the funds or property assigned. For instance,.the mere promise of a debtor that he will pay a debt out of particular funds is not sufficient; there is lacking the specific appropriation of the fund pro tanto and surrender of control thereof.”

We are therefore of the opinion the plaintiff Cooper, and not the intervener Cleveland, was entitled to recover the impounded fund.

In view of our holdings above, the judgment of the trial court will be reversed and here rendered that the garnishees,- Cocke & Braden, recover their attorneys’ fees in the sum of $25 out of the fund deposited by them into the registry of the court and the balance thereof shall be paid to the plaintiff C. L. Cooper.

Reversed and rendered.


author: BAUGH, Justice.

text:
    GULF OIL CORPORATION v. SMITH et al.
    No. 8922.
    Court of Civil Appeals of Texas. Austin.
    Oct. 23, 1940.
    Rehearing Denied Nov. 27, 1940.

      Joe S. Brown, of Houston, and Stanley Hornsby, of Austin (John E. Green, Jr., of Houston, of counsel), for appellant.
    Gerald C. Mann, Atty. Gen., and E. R. Simmons, Asst. Atty. Gen., for appellee Railroad Commission.
    Ramey, Calhoun & Marsh, of Tyler, and Wheeler & Wheeler, of Austin, for ap-pellee James T. Smith.
   BAUGH, Justice.

This is a Rule 37 case. The permit involved, dated November 23, 1937, was for a fifth well on a 3.45-acre lease owned by Smith in the fairway of the East Texas field. It was applied for, as an exception to Rule 37, to prevent confiscation of Smith’s property, and granted on that ground. The Gulf, owner of an adjoining leasehold, sued to set it aside. Trial was to a jury, but at the close of plaintiff’s evidence, upon motion made, the court withdrew the case from the jury and rendered judgment .for defendants upholding the permit; hence this appeal.

The first question presented is whether the trial court erred in sustaining defendant’s special exceptions to the plaintiff’s pfeadings, alleging facts which, appellant contends, showed conclusively that the well involved was not necessary to prevent confiscation, and that the permit was consequently invalid.

A brief statement of basic factual background will contribute to a better understanding of the issues presented. Originally James T. Smith and W. L. Allen were owners of leaseholds on two adjoining tracts consisting of 3.11 acres each. Each tract was a rectangle approximately 300 feet wide east-west, and approximately 460 feet long north-south. Smith owned the leasehold on the eastern tract and Allen that on the west.

Well No. 1 on each of said tracts was drilled near the center thereof. Two other wells were thereafter drilled on each of said 3.11-acre tracts] both located on the north one-half of these respective tracts. Thereupon Smith purchased from Allen the leasehold on .34 of an acre out of the N. E. corner of the Allen tract, adjoining his tract, which included one of the Allen wells. The result of this was that Smith then owned a 3.45-acre tract with four wells thereon; and Allen had remaining a 2.77-acre tract with two wells thereon. •All of this occurred prior to October 1, 1937.

On the latter date the Railroad Commission granted to Allen a permit for a third well on his remaining 2.77-acre tract, located southeast of his No. 1 well, and 60 feet from the common boundary between the Smith and Allen tracts. This well is referred to as the Allen No. 3. Thereupon Smith applied for and was granted, to prevent confiscation, an equidistant offset to Allen No. 3, on his own tract. This was the only reason presented by Smith to the Commission for granting the permit here under attack. This well is referred to as Smith No. 5, being the fifth well on his 3.45 acres, which permit was granted, over the protest of the adjoining owners, on November 23, 1937. At that time no suit had been filed to set aside the October 1st Allen permit for his well No. 3.

Subsequent thereto, and before Smith began drilling his well No. 5, suits were filed to set aside both of said permits, and Smith was so informed. The trial court, after full hearing, set aside as invalid the Allen permit for his well No. 3, and the judgment was affirmed by this court. See Allen v. Gulf Oil Corp., 139 S.W.2d 207.

By amended pleadings in the instant case, the above stated facts were substantially pleaded by the Gulf as conclusively showing the invalidity of Smith’s permit No. 5 here involved; but these pleadings were stricken out upon special exception thereto by appellees. In this the trial court was clearly in error.

The exceptions lodged against such pleadings, and sustained by the trial court, were that when the Smith permit of November 23, 1937, was granted no suit had then been filed to set aside the Allen permit of October 1, 1937; and that so far as the Railroad Commission was concerned or then knew, the Allen No. 3 permit was valid and the Commission so treated it. Consequently that when so treated as valid, the Smith No. 5 offset well was necessary and its validity must be determined by the facts and conditions presented to the Commission at the time the Smith permit was granted on November 23, 1937.

The general rule is now well settled that the validity of a permit is referable to the conditions as they existed at the time the Commission acted. But this rule cannot give validity to a permit which in law and in fact is invalid. The mere granting of a permit does not in and of itself make such permit valid. It has-in its support every presumption of validity unless and until it is set aside in the manner prescribed by law. Nor does it have vitality from the date it is issued up to the date of a final judgment setting it aside. Its invalidity, no matter when finally determined, relates to the date of its issuance and no acts performed under it are valid. It is void from the beginning; and manifestly can furnish no legal basis for sustaining a subsequent act or order of the Commission, the validity of which latter must depend upon and be supported by the former.

The question here presented is practically identical with that involved in General American Oil Co. v. Gulf Oil Corp., Tex.Civ.App., 139 S.W.2d 314, writ refused, wherein an offset well to prevent confiscation was sought to be sustained where the permit for the well first granted was subsequently held to be invalid. That case clearly controls the instant case. The only difference is that in that case, suit to set aside the first permit had already been filed when the second permit was granted. In the instant case it had not. But no estoppel against the Gulf is or can be urged in the instant case for the reason that suit was- promptly filed by it to set aside the Smith permit after it was granted, as well as the Allen permit, and both suits were pending and known to Smith when he began to drill his well No. 5, in February, 1938.

Appellant next contends that the trial court erred in excluding as evidence the memorandum to the Commission made by the examiner who heard Smith’s application and the protests thereto. Where the attack on a permit is made on the ground that there was no evidence before the Commission to sustain it, we held expressly in Empire Gas & Fuel Co. v. Railroad Commission, 94 S.W.2d 1240, 1244, writ refused, that the examiner’s recommendation to the Commission was admissible. Its exclusion in the instant case, however, appears to have been harmless in that all the facts stated in the recommendation were shown by the record otherwise.

Coming now to the proof, we think it conclusively and as- a matter of -law shows that no confiscation of Smith’s property would occur without the well here involved; and that the permit cannot be sustained on that ground, the only ground upon which it was granted. And this is true whether the Allen No. 3 well be taken into consideration or not. Clearly it should not be, and without it Smith, with five wells on his 3.45 acres, would be .given a distinct drainage and production .advantage over his neighbors.

On the issue of confiscation the test is whether the owner with the wells he already had, “has been given a fair and equal opportunity with other producers on surrounding tracts within the drainage area -to recover his fair share of the oil in place beneath his tract. If he has, no confiscation results.” Ward Oil Corp. v. Overton Ref. Co., Tex.Civ.App., 139 S.W.2d 292, 293, writ refused. The uncontro-verted proof in the instant case shows that -the well potentials and daily allowables for wells in this area were substantially the same; that Smith’s density with four wells was greater than that of any of the surrounding tracts, and greater than the eight times surrounding area whether delineated by a square, rectangle, or circle; that his recovery of oil per day per acre under the allowables was greater than that of any of the surrounding tracts, and much greater than that of the surrounding drainage area; and that the well, here involved would materially increase this disparity.

The only ground urged, in this regard, as sustaining said .permit for well No. 5 is that without it, a portion of the southwest corner of Smith’s tract would be drained by wells on adjoining , tracts. The undisputed testimony shows, however, that thi? drainage from Smith’s tract was more than compensated by drainage to it from other surrounding tracts through the wells he already had. Consequently he suffered no net loss of oil through drainage. The evidence further showed that his well had been producing over a period of years and that he had already extracted approximately ⅜ of the estimated amount of oil originally in place beneath his tract, being a larger proportion than had been extracted by owners of adjoining tracts. Under these facts and circumstances confiscation was negatived as a matter of law..

While we have heretofore, where judgment was rendered against plaintiff at the close of his evidence, and none offered by the defendant, usually reversed and remanded the judgment of the trial court for another trial, it appears in the instant case that in view of the undisputed record facts excluded by the trial court, but which he should have considered, no confiscation was or could have been shown. .Consequently said permit was invalid as a matter of law under indisputable facts, and no purpose would be served by reversing and remanding said cause for another trial. In brief, no evidence which appellees could produce would alter the result, in the face of the uncontroverted facts shown by the record before us.

The permit attacked is therefore set aside as invalid; and the cause reversed and remanded to the trial court for such ancillary relief as may be appropriate under the circumstances.

Reversed and remanded for appropriate ancillary relief.


author: BROWN, Justice.

text:
    CHANCE v. WARLICK et al.
    No. 14129.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 25, 1940.
    Rehearing Denied Dec. 6, 1940.

      Bramlette, Levy & Dotson, W. C. Holloway Jr., and S. J. Dotson, all of Longview, for plaintiff in error.
    Park & Park, J. F. Park, and Auba Park, all of San Antonio, and Wm. M. Davis, of Kilgore, for defendants in error.
   BROWN, Justice.

Appellee W. H. Warlick was driving his automobile down State Highway No. 26, between the cities of Kilgore and Longview, in Gregg County, and was meeting appellee R. E. Smith, who was driving in the opposite direction. Appellant, J. L. Chance, was driving in the same direction as Smith and attempted to go around Smith, just as the three automobiles were about to meet, and in so doing crashed into Warlick’s auto and threw same into the path of Smith’s auto.

Because of the personal injuries received by Warlick and the damage done so his car, he brought suit against Chance and Smith and prayed for a joint and several recovery. In addition to such personal recovery against the two named defendants, Warlick sought to recover against Magnolia Petroleum Company and T. L. N. Rawlinson on the theory that Chance was an employee of Magnolia Petroleum Company and T. L. N. Rawlinson at the time and was acting within the scope of his employment when the accident occurred.

Home Insurance Company had issued a policy to Warlick, covering his car, and suóh company paid Warlick $500 for the damage done his car, and this company was permitted to intervene and to seek recovery of such sum.

Chance brought a cross-action against Warlick, and alleged contributory negligence.

Smith answered, first alleging negligence on the part of Chance which brought about the accident, and then contributory negligence on the part of plaintiff Warlick.

We specifically call attention to the fact that no pleading alleges that any act of negligence as pleaded was the sole proximate cause of the accident.

The cause being tried to a jury, more than seventy-five special issues were submitted, and the jury found, in substance, as follows : (1) That Chance was driving his auto at a high rate of speed, (2) same was negligence, (3) and a proximate cause of plaintiff’s injuries, (3a) that such negligence was not the sole proximate cause, (4) that Chance attempted to pass Smith, (4a) that such act was negligence, and (4b) “that the act of J. L. Chance in passing and undertaking to pass the defendant R. E. Smith immediately prior to the collision in question was the sole proximate cause of the collision”, (5) that at the time Chance attempted to pass Smith’s car the road was clear of traffic for SO yards ahead of Chance, (6) not answered, being dependent upon 5, and for same reason 7 and 7a were not answered, (8) that Chance was driving his-auto at a rate in excess of 45 miles per hour, (9) same was a proximate cause of the injuries sustained by plaintiff, (10) Chance failed to keep a proper lookout, (11) such act was negligence, and (12) a proximate cause of plaintiff’s injuries, (12a) such act was not the sole proximate cause; issues 13 to 20, inclusive, touch upon Smith’s negligence and are answered in his favor; issues 21 to 25, inclusive, touch upon Chance having discovered the plaintiff’s perilous situation and all were answered in Chance’s favor; (26) that Chance drove his car abreast of defendant Smith’s car at the time, (27) such act was negligence and (28) a proximate cause of the plaintiff’s injuries; issues 29 to 33, inclusive, touch upon the negligence of defendant Smith and were all answered in his favor; issues '34 to 60, inclusive, touch upon Warlick’s contributory negligence and were answered in his favor; (61) Chance was not an employee of Rawlinson, (62) not answered- — dependent upon 61, (63) Chance was an independent contractor, (64) the collision was an unavoidable accident as between plaintiff Warlick and defendant Smith, (65) same was not an unavoidable accident as between Warlick and Chance; issues 66 to 71, inclusive, touch upon War-lick’s negligence in the matter of discovering Chance’s perilous situation, and same are answered favorably to Warlick; issues 72 and 73 found that the acts of Chance constituted a new and independent cause of the collision so far as the defendant Smith is concerned, (74) no damages awarded Chance, and (75) $6,794.30 awarded as damages to Warlick.

Judgment was rendered for Warlick against Chance in said sum, and for the in-tervener for $500 out of such recovery, and in favor of all other parties sought to be held as defendants and cross-defendant, and Chance alone has appealed to the Court of Civil Appeals for the Texarkana District, and the Supreme Court transferred the cause to us.

No statement of facts is brought to us and the appellant urges that there are fundamental errors apparent in the record.

There are seven assignments of error presented.

The first urges that the trial court erred in rendering judgment for Warlick and Home Insurance Company, “because there is not sufficient verdict of the jury to support a judgment for such parties.” We see no merit in the contention. The verdict amply supports the judgment for Warlick and the trial court, on the undisputed evidence, had the right to render judgment for the Insurance Company in the sum paid by it to Warlick for damages to his car. Assignments of error Nos. 2 and 3 are identical with that urged in-No. 1, and they single out their respective awards. These assigned errors are overruled.

Assignment No. 4 urges that the finding of the jury that the act of Chance in passing and attempting to pass Smith was the sole proximate cause of the collision is in conflict with the finding made to Issue No. 3, that to Issue No. 9 to Issue No. 12 and to Issue No: 28, in that the jury found that Chance’s acts of negligence in the matters inquired about in these four issues each and all were proximate causes of the collision.

We find no merit in this assignment of error for several reasons; first, there is no pleading to support the giving of such an issue. No act of negligence, or of contributory negligence was pleaded by any party as the sole proximate cause of the accident. All such were pleaded as proximate causes and contributing causes. For this reason, the trial court having erroneously submitted the issue, when it had no pleading to support it, such court could have and should have disregarded the answer thereto and should have looked to the other issues touching upon negligence and whether or not such negligence was a proximate cause of the collision.

Second, appellant by his proposition No. 5 asserts that there is no pleading which authorized the trial court to submit Special Issue No. 4a to the jury. Such issue being, “Do you find from a preponderance of the evidence that the act of J. L. Chance, on the occasion in question, in attempting to pass the automobile of R. E. Smith (if you have so found) was negligence, as that term has been defined to you?”

Conceding that appellant is correct in the position taken, then the answers returned to Issues Nos. 4, 4a and 4b are immaterial and could not be made the basis of any judgment in the cause.

The third reason why we do not believe there is any merit in the contention is that, in the light of the pleadings and' of the verdict and findings 'we believe that the jury meant, by answering “that the act of J. L. Chance in passing and undertaking to pass the defendant, R. E. Smith,' immediately pri- or to the collision in question, was the sole proximate cahse of the' collision”, to say that the negligent acts charged and found ■against Chance, in his attempt to pass the ■defendant Smith, at the time constituted the sole proximate cause of the collision. The verdict shows clearly that such was intended.

The fifth assignment of error asserts that the only negligence alleged in plaintiff’s pleadings against Chance in attempting to pass Smith’s car was that the road was not clear of traffic, at such time, for a distance ■of SO yards ahead,, and the jury having found in answer to Issue 5 that it was clear, and having found in answer to Issue 4a that Chance was guilty of negligence in attempting to pass.Smith’s car, and that such negligence was the sole proximate cause of the-accident, the trial court erred in rendering judgment against Chance on such a verdict.

We see no merit in the contention. It is quite evident that several acts of negligence on the part of Chance were pleaded in connection with his act in'attempting to pass the Smith car, and the court submitted these issues' to the jury, and on the verdict returned, the plaintiff was entitled to a judgment.

The sixth assignment of error asserts that the trial court erred in rendering judgment against Chance for' any amount in favor of Warlick and the Home Insurance Company, because the verdict is so conflicting and indefinite that it is not sufficient to support a judgment for'Warlick and said Insurance Company.

We see no merit in the assigned error.

The seventh assignment of error asserts that, “the pleadings of the plaintiff and the verdict of the jury, finding that the plaintiff, W. H. Warlick, was driving at a rate of speed in excess of 45 miles per hour at the time of the collision, as a matter of law shows that the plaintiff was guilty of negligence, contributing to his injury.”

We find no merit in the contention.

The record discloses that there are no objections urged against the charge.

We find that the court submitted an Issue (No. 34) inquiring of the jury whether or not Warlick, “at the time of and immediately prior to the collision in question was operating his automobile at a rate of speed in excess of 45 miles per hour”, and then submitted Issue No. 35 asking the jury to find whether or not operating his automobile at such a rate of speed was negligence. The jury answered Issue 34 “Yes” and Issue 35 “No”, and, under the instruction of the court, did not answer Issue No. 36, which asked if such negligence as found in answer to Issue 35 was a proximate cause or proximately contributing cause of the accident.

In the absence of a statement of facts, we do not know what testimony was adduced. It may be that Warlick testified that he speeded his car up, that he did not slacken his speed when he saw the situation and that he tried to thus escape from the perilous position in which he found himself.

Appellant Chance, who was relying upon contributory negligence on the part of War-lick as a defense to a right of recovery against him by Warlick, was. satisfied with' the charge as given. He made no objection to any part of the charge.

In Electric Express & Baggage Co. v. Ablon, 110 Tex. 235, 218 S.W. 1030, 1032, our Supreme Court expressly holds that the statute—now Art. 2185, R.C.Statutes—requires a litigant to make and present to a trial court his objections to the charge, and unless this is done, all objections are waived. The court said:

“Ablon appears to have wholly failed to make or to. present to the trial court any statutory ‘objection’ whatever to any submission of that special issue. Although, by the express provisions of unamended article 1972, in order to obtain, on appeal, correctness of an error in the main charge to the jury, the complaining litigant need not take any formal ‘bill of exception’ thereto, it is, nevertheless, equally true that, by the terms of amended articles 1970 and 1971, due ‘objection’ to such erroneous charge must be made by such litigant. The requirement of the law is that all such ‘objections’ shall in every instance be presented to the court before the charge is read to the jury; and the statutory penalty is that ‘all objections not so made and presented shall be considered as waived.’ * * * •
“Ablon has not made, anywhere, complaint to the legal effect that said special issue ought not to have been submitted to the jury — nor, it seems, has such a complaint been passed upon by any lower court. We decline to sustain the contention of counsel for plaintiff in error that the complaint embodied in plaintiff’s motion for rehearing, in allegations of mere ‘insufficiency’ of the evidence to support the finding of the jury on the special issue of contributory negligence, amounted to no more than a complaint that said special issue ought not to have been submitted to the jury.”

This opinion speaks of the statute as a law “to prevent litigants from speculating upon the result of the jury’s finding, or verdict.” This opinion holds that where the litigant does not object to the charge, he is, however, entitled to assign as error the fact that the evidence does not support the finding made by the jury,- and the opinion gives the litigant no further relief.

We also cite Elder, Dempster & Co., Ltd., v. Weld-Neville Cotton Co., Inc., Tex.Com.App., 231 S.W. 102, 104, the opinion by the Commissioners having been expressly adopted by the Supreme Court and entered as the judgment of the court. It is said: “It is a general rule that applies to findings of the trial court that the entire findings should be read together and construed as a whole, and that when they permit of more than one reasonable construction that construction should be adopted which will support the action of the court as expressed in the judgment rendered.upon the findings.”

The court said further that applying this rule no irreconcilable conflict appeared in the findings.

If such a rule is sound where the findings of a trial judge are involved, how much more important is such a rule when applied to the findings of a jury composed of laymen.

Applying this rule in connection with the insistence upon the part of appellee that there are irreconcilable conflicts in the jury’s findings, we hold that such'position is not tenable.

All seven assignments of error are overruled, and the judgment affirmed.


author: MURRAY, Justice.

text:
    DAVIS et al. v. McCARTY et al.
    No. 10681.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1940.
    Rehearing Denied Dec. 4, 1940.
    Neel & King and Hal F. Radial, all of Corpus Christi, for appellants.
    Sidney P. Chandler, of Corpus Christi, for appellees.
   MURRAY, Justice.

This suit was instituted by William McCarty and W. G. Mangum against Allen Davis and E. E. Swift, seeking to recover on a joint claim of $2,990.25, together with interest, and, further, on an individual claim in favor of William McCarty in the sum of $1,010.16 for shop work and $813.13 rental on a machine.

The trial was to a jury, but at the close of the testimony plaintiffs’ motion for an instructed verdict was granted and the jury were instructed to return a verdict in favor of William McCarty and W. G. Mangum against Allen Davis and E. E. Swift in the sum of $3,182.88, and in favor of William McCarty, alone, against Allen Davis and E. E. Swift in the sum of $435.-74. Judgment was rendered and entered in accordance with the verdict, from which judgment Davis and Swift have perfected their appeal by the giving of a supersedeas bond.

The first contention presented is that in view of a contract of dissolution of a former partnership theretofore existing between William McCarty, W. G. Mangum and Allen Davis, a full settlement of all accounts was accomplished an therefore appellants owed appellees nothing.

During the year 1936 McCarty, Mangum and Davis formed a partnership, known as the Davis Pulling Machine Company. This partnership was to engage in the business of reconditioning oil wells. Allen Davis was to manage the business and receive for his services $300 per month. McCarty and Mangum transferred equipment to the partnership of the value of $2,-990.25. Davis was to later pay for his one-third interest in this machinery.

In February, 1938, this partnership was terminated by a written agreement, to-wit:

“State of Texas
“County of Nueces
“Whereas, by agreement, made the 1st day of January, 1937, Allen Davis, William McCarty and W. G. Mangum, all of Nueces County, Texas, entered into a partnership for the purpose of carrying on the business of general oil well servicing, swabbing and workovers for an indefinite time, said business to be known as the Davis Pulling Machine Company; and
“Whereas, the said partners, wishing to discontinue and determine the said partnership so entered into, they have agreed upon a dissolution of same, to which proposition all of said partners have agreed arid assented.
“The partners, therefore, mutually consent and agree, by these presents, that the said partnership heretofore existing between them under the name of Davis Pulling Machine Company, be and the same is hereby dissolved, and further that the said Allen Davis shall take the. entire equipment belonging to said partnership, the same including certain real estate situated upon Highway #9 and Omaha Drive, Corpus Christi, Texas, together with the warehouse thereon situated; all trucks, automobiles- and other vehicles belonging to said partnership whether the same are listed in the name of Davis Pulling Machine Company or otherwise; the warehouse situated upon said real estate above described together with all furniture and fixtures therein; all pulling , machines, tools, gin poles, pipe and other equipment .used in connection with the operation of said business of oil well servicing, swabbing and workovers; all accounts receivable now due and owing to said Davis Pulling Machine Company, together. with any and all other dioses in action, including lawsuits now pending in our names as partners, it being the intent hereof to transfer any and all. property and equipment of whatsoever character belonging to the partnership to the said Allen Davis.
“In return for the transfer of all of the partnership property and assets to him, the said Allen Davis agrees to assume the payment of all debts and obligations now due and 'owing by the Davis Pulling Machine Company, and binds himself, his heirs, executors, administrators and assigns, to hold the said William McCarty and W. G. Man-gum forever free and clear of any and all liability in connection with such debts. The said Allen Davis further agrees to pay to the said W. G. Mangum and William McCarty the sum of $2,500.00 each in cash, the receipt of which is hereby acknowledged and to execute and deliver to each of them his promissory note for the sum of $5,000.00, payable in twelve equal monthly installments, bearing 6% per an-num interest, the first installment of principal and interest to become due 30 days from the date hereof.
“It is further agreed and understood, and we, William McCarty and W. G. Man-gum hereby authorize the said Allen Davis to collect all debts due and owing the partnership, and to receive all or any part of the same, and to receipt for same in the name of the firm, and all debtors ■ to the firm are hereby authorized to pay the said debts to the said Allen Davis, and we, the said William McCarty and W. G. Mangum, as aforesaid, hereby bind ourselves, our heirs, executors, administrators, and' assigns to assert no claim against any of the proceeds realized from such debts now due and owing the firm, or to any other property now belonging to or hereafter acquired by the said Allen Davis or the Davis Pulling Machine Company.
“It is further agreed and understood and it is the intention hereof that this instrument shall constitute the full and final settlement of our affairs and the termination of our partnership.
“For the faithful performance of all the terms of this agreement the parties hereto bind themselves this 1st day of February, 1938.
“Allen Davis
“William McCarty
“W. G. Mangum”

It was alleged that Davis never did pay anything upon the equipment advanced to the partnership, and that during the time the company operated it became indebted to McCarty, individually, in the sum of $1,010.16 for shop work, and in the sum of $813.13 for rental on a pulling machine.

The question here presented is whether or not the dissolution agreement had the effect of cancelling all obligations owing by the partnership to the individual members at the time of the termination of the contract, or whether those obligations continued to exist thereafter and were unaffected by the agreement.

There seems to be no case in Texas in which the particular type of dissolution agreement executed by the parties herein has been interpreted, but there are cases in other jurisdictions. The Massachusetts case of Lesure v. Norris, 11 Cush. 328, is very much in point. There it is stated :

“The sale to the defendant, under the circumstances stated, was a dissolution of the copartnership. Taft v. Buffum, 14 Pick. 322. It was also in effect an adjustment by the partners, as between themselves, of all its concerns and a division and appropriation of everything belonging to it. Nothing further remained to be done to effect a complete settlement between themselves. By the bill of sale, the plaintiff transferred all his interest in the company property, including debts which were due, to the defendant, and the latter thereby became sole owner of the whole. The interest which a'ny partner has in the effects, rights and credits of a solvent partnership, is the share or proportion of them which he will be entitled to receive upon a final adjustment and liquidation of its concerns. Whatever stands properly charged to him on the .company books, whether it be regarded as a debt due, or, perhaps, more correctly as evidence, that he has withdrawn already a certain amount of the capital invested, or of the profits .earned, is first to be deducted, and will, to that extent, diminish the share he is to receive. His interest in the concern is only the balance remaining after such deduction has been made. •
“The balance, therefore, is what was conveyed to the defendant by the bill of sale executed by the plaintiff. It was his interest in the company property, and that was his share of its assets which remained after deducting the amount charged to him on the books of Norris and Lesure. That charge was extinguished by the transaction between the parties, because it was in effect an entire adjustment of it. There was no occasion, therefore, to make any entry upon the books in relation to the amount, because the general liquidation and settlement, rendered attention to its details unimportant and immaterial. It is not pretended that there was any particular assignment of the amount in question to the defendant, and it clearly did not pass as any .part of the interest of the plaintiff in the assets of the company. The ruling therefore, of the court below, that the defendant could not avail himself of the account in set-off to the plaintiff’s action was correct, and the verdict was rightly taken for the amount due on the note demanded.”

In Beaumont v. Sharpless, 45 Pa.Super. 575, it is stated: “Moreover, when the parties agreed on a basis of dissolution and the plaintiff retired from the firm for the consideration stated the presumption is that they had in view the assets and liabilities of the firm and that the value of the plaintiff’s interest was agreed on in the light of such assets and liabilities. When, therefore, the plaintiff parted with all his right, property and interest in ihe partnership it will be assumed that this covered as well his original investment as also his profits still in the business and his right as a creditor to take part of the assets.”

The agreement executed by the parties here shows upon its face that it was a full and final settlement of the former partnership. William McCarty and W. G. Mangum were each to receive-the sum of $7,-500 for their interest in the partnership, and this was all they were to receive. The agreement, after going into details as to how the property and accounts of the partnership are to be handled, then contains the following all-inclusive paragraph, to-wit: “-It is further agreed and understood and it is the intention hereof that this instrument shall constitute the full and final settlement of our affairs and the termination of our partnership.”

The partners, McCarty and Man-gum, having executed this agreement and received the $15,000 which they were to receive under the agreement, could not thereafter demand another settlement of their claims against the dissolved partnership.

Parol evidence was not admissible to vary the terms of the written contract entered into by the former partners, dated February 1, 1938. 17 Tex.Jur. 794; Gill v. Baird, Tex.Civ.App., 32 S.W.2d 941; Leoloff v. Werner, Tex.Civ.App., 7 S.W.2d 1095.

The agreement is plain and unambiguous and therefore parol evidence is not admissible. City of Abilene v. Sayles, Tex.Com.App., 295 S.W. 578.

Appellees contend that this judgment should be affirmed as to appellant Allen Davis, inasmuch as there has been no brief filed for him. It is apparent that the -liability of appellant Swift is based upon his assumption of all obligations of the old ¡partnership. Davis and Swift stand in: exactly the same position and it would be manifestly unjust to affirm as to Davis'and not-as to Swift.

No complaint is made of the judgment as to the item for the sum of $435.74, and as to this item the judgment " will be affirmed, but as to the item of $3,182.88 the judgment will be reversed and judgment here rendered that appellees take nothing.

Affirmed in part; reversed and rendered in part.

On Motion for Rehearing.

Appellees have filed a motion for rehearing asking us, among other things, to correct two alleged incorrect statements in our opinion. The first statement alleged to be incorrect is as follows:' “Davis was to later pay for his one-third interest in this machinery,” and the other “that Davis never did pay anything upon the equipment advanced to the partnership.” Appellees contend that the true and correct statement should have been that Mangum and McCarty loaned the pulling machine to the partnership, composed of McCarty, Man-gum and Davis, and that the partnership was to pay to McCarty and Mangum the sum of $2,990.25 for the machine out of the profits of -the business, or when the company got on “velvet;” as one witness expressed it. That the company did get on velvet and had sufficient profits on hand out of which to have paid for such machine, but failed to do so and therefore the partnership was indebted to McCarty and Mangum in the sum of $2,990.25, together with inter'est. In our opinion, if the company had on hand the sum of $2,990.25, as profits of the business, each partner would own one-third of such profits and if the entire sum was paid over to McCarty and Mangum they would only be receiving, in addition to what was already theirs, the one-third that belonged to Davis. We therefore conclude that we made a correct though brief statement of the facts when we said that Davis was later to pay his one-third of the purchase price of the machine, and that he did not do so.

However, be that as it may, appel-lees were precluded from recovering anything in the nature of purchase price of the pulling machine by the contract of dissolution, which they executed for a consideration of $15,000, and which provided that it was a full and final settlement of their affairs.

The motion for a rehearing has been considered and is in all things overruled.


author: SPEER, Justice.

text:
    CARTER v. PRICE, District Clerk.
    No. 14233.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 22, 1940.
    F. V. Hinson, of Graham, and R. A. Stuart and Wm. R. Watkins, both of Fort Worth, for relator.
    Fred T. Arnold, of Graham, for respondent.
   SPEER, Justice.

Earnest V. Carter, as relator, instituted this proceeding against Nat Price, respondent, as District Clerk of Young County, Texas, seeking at our hands a writ of mandamus to require respondent to compile and deliver to him a transcript of the record in cause No. 10,576, Clara garter v. Earnest V. Carter, theretofore pending in the District Court of Young County, Texas.

The petition alleges that the case was tried and judgment was entered against him; that on September 5th, 1940, his amended motion for new. trial was overruled, to which he excepted and gave notice of appeal to this court. That thereafter, on September 26th, 1940, he presented to the Deputy District Clerk his appeal bond; that the bond was then and there approved and filed; that he then requested the respondent to prepare for him a transcript of the proceedings had in said cause and deliver it to him; that the transcript has been prepared but that respondent will not deliver it without the filing by relator of an additional bond. The petition is sufficient upon its face to entitle relator to the relief sought.

The respondent has answered the petition filed in this court, in which answer it is alleged that relator did tender to him a bond for $250 on September 26th, 1940, but that respondent refused to approve or file .the bond because it was not in double the amount of the costs incurred and to be incurred in the appellate courts. He further pointed out several other deficiencies in the bond, which go to its substance and ■form. Respondent did not specifically deny that the bond had been previously approved and filed by his deputy.

Relator’s petition is supported by the affidavits of one of his attorneys and by’ the Deputy Clerk. The affidavits state the bond tendered by relator was approved and filed by the Deputy Clerk, and that thereafter, on the same day of its filing, the respondent advised the Deputy Clerk that he would not accept the bond after the Deputy Clerk had approved and filed it.

Courts of Civil Appeals may determine matters pertaining to their jurisdiction from affidavits or otherwise, as may be deemed proper by the court. Article 1822, R.C.S. In cases of appeal to the Court of Civil Appeals, it is provided by Article 2265, R.C.S., that the appellant shall execute a bond, to be approved by the clerk, payable to the appellee, in a sum at least double the amount of the probable costs in the trial and appellate courts, with other provisions not necessary to be stated. The affidavits before us show a bond was executed by relator and tendered to the Deputy Clerk, who approved and filed it. The affidavits do not disclose that the bond approved and filed contained all of.the necessary requisites of the article of the statute last cited. We do not consider that the substance or form of the bond are essential to our jurisdiction in this hearing.

Article 1898, Vernon’s Annotated Civil Statutes, provides for the appointment of deputies by the district clerk, and that a deputy, when thus appointed, “may do and perform all such official acts as may be lawfully done and performed by such clerk in person.” It must follow, then, that the approval and filing by the deputy clerk was as effective as if it had been done by the clerk in person.

When the bond was approved and filed, the district court iost jurisdiction of the case and this court simultaneously acquired jurisdiction. The district clerk could not withdraw his approval of the bond and deprive this court of jurisdiction of the case, when it had' been once acquired. It has been held that the district court had no authority to require its clerk to withdraw his approval of a bond, and there is all the more reason why the clerk cannot for any reason do so. Polk v. Holland Texas Hypotheek Bank, Tex.Civ.App., 66 S.W.2d 1112, and cases there cited.

If by inadvertence or other mistake Of the clerk in approving and filing a bond defective in amount, substance or form, a party relying upon the acts of the clerk to perfect his appeal should not lose his rights by permitting the clerk to withdraw his approval and expunge the bond from the file to the litigant’s detriment. Ample provisions are made by Articles 1840, R.C.S., and 1840-A, Vernon’s Ann.Civ.St, for relief against such a contingency. If the bond is defective, or even insufficient in amount when filed, or becomes insufficient for want of proper security after being filed, upon motion made to this court to dismiss the appeal for want of such bond or lack of security, the court may require the appellant to amend such bond by filing a new one on such terms and within such time as the court may prescribe; a failure to comply with such an order will authorize the dismissal of the appeal. Williams v. Wiley, 96 Tex. 148, 71 S.W. 12; Pillow v. McLean, 126 Tex. 349, 88 S.W.2d 702; Stern v. Maxwell, Tex.Civ.App., 44 S.W.2d 482.

In Pillow v. McLean, supra, the bond was held to be sufficient and no necessity existed for an amendment dr substitute. From what we have said we are not to be understood as holding that the bond filed in this case was sufficient, either in substance, form or amount; but only that it was sufficient to give this court jurisdiction of the appeal to the extent that we should require the clerk to deliver the transcript for filing and that, when done, we will be enabled to hear and act upon any subsequent motions pertaining to the sufficiency of the bond, and finally determine the case upon its merits, when properly before us.

Under the facts as they exist in this case, relator has perfected his appeal to this court to the extent above indicated and it became the duty of respondent, under the provisions of Article 2278, R.C.S., to make ouc and furnish to relator a transcript of the record of the cause for filing in this court. Respondent having failed and refused to do so, for reasons stated in his reply to the petition in this case, the writ of mandamus as prayed for is ordered to issue by the clerk of this court to respondent, commanding him to prepare and furnish to the relator said transcript. The costs of this proceeding are taxed against the respondent.


author: WALKER, Chief Justice.

text:
    CRYSEL v. A. W. FABRA AUTO SUPPLY CO.
    No. 3644.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 3, 1940.
    Rehearing Denied Oct. 23, 1940.
    Elton Cruse, of Beaumont, for appellant.
    Sewell, Taylor, Morris & Connally, of Houston, and Marcus & Carrington and David C. Marcus, all of Beaumont, for ap-pellee.
   WALKER, Chief Justice.

On the 22nd day of March, 1939, W. C. Crysel, individually and as next friend for his minor son, Gayle Crysel, filed this suit in district court of Jefferson county against appellee, A. W. Fabra Auto Supply Co., for damages suffered by his minor son Gayle on the 14th day of February, 1939. For cause of action appellant alleged that appellee furnished him an automobile under the representation and warranty that it was in a safe condition, when in fact, the door of the automobile was defective; as a proximate result of the defective door, Gayle fell out of the automobile and suffered the damages sued for. Appellee answered by general and special demurrers, general denial, and pleas of contributory negligence, etc.

The only issue of negligence plead against appellee and submitted to the jury was the defective condition of the door of the'automobile. Answering special issues, the jury found that Gayle Crysel fell from the automobile at the time and place in issue, and suffered personal injuries as a proximate result of the fall; it was further found that the automobile was not in a defective condition. The jury gave the answer “None” to the following question: “From the preponderance of the evidence, what amount of money, if any, if paid now, do you find would reasonably compensate plaintiff on account of the injuries, if any,' to Gayle Grysel proximately caused, if you l&ve-'So found, by the negligences, if any, o'f-th’e defendant, A. W. Fabra Auto Supply' Company?”

"The jury also found that the injuries ¿differed by' Gayle Crysel were the result of an unavoidable accident; the jury also found against appellant, on certain issues of contributory,-negligence. After the verdict was' returned, appellant filed his motion, praying that 'the court decree a mistrial bn the ground of conflict in the answers of the jury. On July 10, 1939, on the . verdict of "the jury, judgment was entered in favor of appellee against appellant frdm, which this appeal has been regularly prosecuted.

Appellant’s first point is that .a conflict exists between the finding-of the jury that the injuries of Gayle Crysel were the -“reáült- of an unavoidable accident”, and the findings that appellant was guilty of certain acts-of contributory negligence. There is no conflict between the finding that the injuries suffered by Gayle Crysel were the result of - an avoidable accident. Oh these findings appellee was entitled to judgment.

If the point be conceded that a conflict exists between the findings on the issue.of unavoidable accident and on the issues of appellant’s contributory negligence — -the . authorities sustain this point in appellant’s favor, Mays v. Smith, Tex.Civ.App., 95 S.W.2d 1342 — the legal proposition advanced on the conflict is immaterial. Big Six Oil Company v. West, Tex.Civ.App., 136 S.W.2d 950.

No error is suggested by the answer “None” given by the jury to the issue submitting appellant’s measure of damages. By this 'question the jury was required to assess the damages suffered by appellant “on account of the injuries to Gayle Crysel proximately caused” by ap-pellee’s negligence. Having acquitted ap-pellee of the negligence charged against it, no other answer could have been given to the question. Andrade v. Southern Pine Lumber Co.; Tex.Civ.App., 94 S.W.2d 583, does n'ot support appellant’s contention. Our holding on this point was reversed by the Supreme Court, but that case is not in point on the wording of the charge. In the Andrade case the issue was, “What sum of money, if paid now in cash, will fairly and reasonably compensate plaintiff for the injuries sustained by him, if any, as a result of the collision?” That issue submitted the damages .suffered by.the plaintiff “as a result of the collision”; the issue in the case at bar submitted the damages “proximately caused * * by the negligence * * * of the defendant.”

The judgment of the lower court should l?e affirmed, and it is accordingly so ordered.

Affirmed.