author: O’QUINN,-Justice;

text:
    SAFETY CASUALTY CO. v. WRIGHT et al.
    No. 3659.
    Court of Civil Appeals of Texas. Beaumont.
    April 27, 1940.
    Rehearing Denied May 29, 1940.
    McComb & Davis, of Conroe, and Vinson, Elkins, Weems & Francis and C. M. Hightower, all of Houston, for appellant.
    Campbell & Foreman, of Livingston, and Pitts & Liles, of Conroe, for appellees. ,
   O’QUINN,-Justice;

This is a workmen’s compensation case. Magnolia Pipe Line Company was the employer; Valentine C. Wright was the employee; and Safety Casualty Company the compensation insurance carrier. On July 21, 1938, while engaged in his employment (as alleged and contended by appellees) as an employee of said Magnolia Pipe Line Company, Valentine C. Wright received an injury resulting in his death. Mrs. Daisy Wright, wife of Valentine C. Wright, deceased, individually, and as next friend for Edna Wright, Floyd Carter Wright, and Calude Elton Wright, minor children of Mrs. Daisy Wright and her deceased husband, Valentine C. Wright, duly filed claim for compensation with the Industrial Accident Board. On February 23, 1939, the Board made its final ruling and award denying claimants compensation. Appellees duly gave notice to the Industrial Accident Board that they would not abide said ruling, and duly filed this suit to set said award aside and to recover compehsation.

Appellant answered by general demurrer and general denial.

The case was tried to a jury upon special issues, upon their answers to which judgment was rendered setting aside the award of the Industrial Accident Board, and awarding compensation to appellees for 360 weeks at the rate of $20 per week beginning on July 23, 1938, same to be paid in a lump sum, less legal discount. It appearing that 65 weekly payments had matured it was ordered that same hear interest at the rate of six per cent from date of maturity until paid. As to the 295 un-matured weekly payments, it was adjudged that same should he discounted at the rate of six per cent for present payment, amounting to $5,021.15, which said sum should hear interest at the rate of six per cent from the date of judgment until paid, and judgment in favor of appellees for all of said amounts, one-third of which recovery to he paid to the attorneys representing appellees.

Appellant’s brief contains five assignments of error upon which it presents three propositions. The first two urge that under the undisputed evidence at. the time deceased received his fatal injuries he was not performing any duties in the course of his employment, and so his death was-not compensable.

The evidence is practically without dispute. The Magnolia Pipe Line Company owned and operated an oil pipe line a portion of which passed through the territory lying between the City of Conroe in Montgomery County, Texas, and the Trinity River to the northeast. Deceased, Valentine C. Wright, was employed as a line walker to look after this portion (from the Trinity River to Conroe) of its pipe line. It was his duty to walk over this section of the pipe line, a distance of some 52 miles once each week. He was required to' take with him a shovel, hammer and chisel so that he could make repairs on the line if necessary. He resided at Cleveland which was situated near the middle of the section over which he walked. There was a station at Cleveland from which he departed in the mornings when he left to go over the pipe line, and to which (as contended by ap-pellees) he would return in the afternoon and make his daily report. He usually started out about 6 in the morning, and did so on the day he was injured. His employer did not furnish him any means of travel. He was allowed to use his own car, walk, catch a ride, or ride the public bus that ran for quite a distance parallel and near to the pipe line. That he used these means of travel was known to and approved by his employer, Magnolia Pipe Line Company. Also the pipe line company not only knew of his riding the bus as a necessary convenience in getting to and over the section of the pipe line he must travel, and did not object, but assisted him in getting a pass on which to ride the bus. He was also allowed the sum of $15 per month extra for expenses in making his daily rounds and reports. On the day that he was injured, July 21, 1938, he proceeded to go over the pipe line until he reached Conroe, and there decided to ride the bus back toward Cleveland to a point some three or four miles out from Cleveland when he intended to get off of the bus and walk over the pipe line three or four miles to Cleveland, he not having gone over that particular space that morning, and after arriving at Cleveland he, as usual (as contended by appellees), would go to the station and make his daily report. When some half way between Conroe •and Cleveland on his return, something happened to the machinei-y of the bus and it would not run. The bus driver got out to see what was the matter and found that the battery of the bus had broken loose and fallen down breaking the gas line, and the gasoline was escaping. He attempted to stop the escape of the gasoline with a wooden plug. Wright had gotten out and in attempting to aid the driver in stopping or plugging the gas line got gasoline on his clothes, and the gasoline exploded setting Wright on fire, from which he was so badly burned that he died two days later. The gasoline tank was at the rear of the bus and the gasoline in the tank drained through the. gas line from the tank to the motor in front. Lawrence Pate, the driver of the bus, testified that the gas line was broken at about its middle, and that in attempting to plug it he got under the bus and was trying to stop the flow of the gasoline with a wooden stopper; that Wright offered to assist him and that he, Wright, got under the bus and placed the wooden stopper in the broken gas line and told him to get Wright’s hammer in the bus for Wright to drive the stopper tight; that he did so and Wright drove the plug; that Wright had gotten gasoline in his clothes while under the bus, and that after Wright got out from under the bus he, Wright, struck a match to light his pipe and the gas exploded and that was the way Wright’s clothes became ignited.

As we understand the record, Wright had a distance of 52 miles of pipe line to walk every week. He was not required to walk the line from Cleveland to Conroe, some 24 miles, and then return to Cleveland re-walking the line. He had to return to Cleveland so that he could then walk the line from Cleveland north to the Trinity River. He must then return to Cleveland, but did not have to re-walk the line to Cleveland. After returning from the Trinity River to Cleveland, he then again started from Cleveland to Conroe over the line. His employer, the Magnolia Pipe Line Company, did not furnish Wright with any sort of transportation in making the distances and return, but did pay him $1’5 per month for expenses incurred in the work. It was not any part of the monthly salary contracted to be paid. Wright walked the line, sometimes rode horseback over the line, sometimes used his own car in getting over the line where it could be used, which the record reflects was at different places for several miles in a stretch, and. also rode the public bus that covered the distance from Conroe to Cleveland. Highway 105 ran near to and practically parallel with the pipe line for a great part of the distance between Cleveland and Conroe; in fact the pipe line traversed portions on both sides of the railway line and Highway between Conroe and Cleveland. These methods of getting over his territory by Wright were known to the Magnolia Pipe Line Company, and it did not obj ect at any time or in any way to his using these means. It appears that Wright had a pass giving him the right to ride on the bus. There was a conflict as to whether deceased was required to report to the station at Cleveland of his day’s work or walking of the line. Mrs. Wright, and her sister who lived with them at Cleveland for a time, testified that he did make such reports, and the station agent and superintendent testified that no such requirement existed but that reports were required only when leaks in the pipe line occurred. A son, Floyd Wright, twelve years old, testified that during the preceding three or four years he occasionally went with his father over the pipe line and that on evenings when they returned to Cleveland his father went to the station and made out his report and left it with the station operator. Another son, Clifford Wright, 23 years old, testified that he sometimes worked in his father’s place walking the pipe line, when his father was on vacation or was sick, and that he worked under the same supervision and regulations as did his father, and that he reported to the station manager in the morning so that the manager, Mr. Dempsey, would know what end of the line he was on, and that on his return he would report to the station, and if leaks were found he made a written report. Dempsey, the manager, denied that he required such report, but that reports were made only in case of leaks found in the line. Also the question of whether deceased was required to hold himself in readiness for a call to duty for the twenty-four hours of the day was disputed. However, it did appear that Wright was frequently called at night to go and assist in repair work on the line. It was in evidence that deceased never stayed away from home at night, tie resided very near the station. He had served in the capacity of Line Walker on this particular section of the line for 19 years.

Under these facts, considered in connection with the nature of his contract with the pipe line company, we think that Wright was clearly in the discharge of his master’s business at the time he received his injuries, and therefore the injuries were sustained in the course of his employment, and so compensable. The length of line he had to cover in serving his employer, 52 miles, and that this must be done one time each week made it impossible for him to make the route in one or even two days. He was placed at Cleveland which was situated about the middle of the line — Trinity River to Conroe. The station with its manager and force was situated at Cleveland. Wright necessarily had to start from Cleveland and walk either north or south and when he had reached the end of his line in either direction, he must of necessity return to Cleveland to make the other end of the line. It is but reasonable to say that in returning from the north or south end of the line to Cleveland to cover the other end, he was but doing the necessary thing in the performance of his contract. His employer did not stipulate the hour when he should start on his route in the mornings, nor the manner or means of his travel, but left him free to arrange thqse matters for himself. The only requirement in this regard was that he must walk the line one time each week. His hours of service and the method or means of travel were left entirely to his selection. He sometimes walked, sometimes rode a horse, sometimes used his own car on such portions of the line as available, sometimes caught a ride, and sometimes rode the bus running from Con-roe to Cleveland. All this was known to his employer, the Magnolia Pipe Line Company. It was some 24 or more miles from Conroe to Cleveland. It could not be expected that Wright, carrying the tools— shovel, hammer and chisel — that was required to be used in repairing leaks in the line, could make that distance in one day. So, he usually walked as far as he could and would then return by walking, or catching a ride when on the north end back to Cleveland for the night. The next day he would go to the place where he stopped the evening before, and return as before. The next day he would start out on the south end, and. after reaching the Conroe end of the line, would frequently catch the bus going to Cleveland. This was known to his employer and not objected to. On the day he was injured he commenced walking the line at a point below Cleveland near the San Jacinto River. When he reached Conroe, he caught the bus back to Cleveland, intending to get off of the bus at the point where he began walking the line that morning and walk the line from there back to the station. His work for the day was not finished. When some where about midway from Conroe and Cleveland the bus went dead and stopped. It being necessary for him to get back to the line to walk into Cleveland, he naturally attempted to aid the bus driver in getting the bus to going, and in doing so got gasoline in his clothes and from the striking of a match the gasoline exploded and his clothes ignited burning him so severely that he died thé third day thereafter. We think it clear that the presence of deceased on the bus, and his efforts to repair the bus in order that he could reach and complete walking the pipe line as he was required to do, had to do with and was incidental to- arid arose out of his employment. Not only so, but was a risk or hazard reasonably inherent in and incident to the work or employment Wright was engaged in for his employer. Texas Employers’ Ins. Ass’n v. Harbuck, Tex.Civ.App., 73 S.W.2d 113, writ dismissed; Safety Casualty Co. v. Staggs, Tex.Civ.App., 99 S.W.2d 682, writ dismissed; Maryland Casualty Co. v. Boone, Tex.Civ.App., 115 S.W.2d 1130, writ dismissed; Texas Employers’ Ins. Ass’n v. Cobb, Tex.Civ.App., 118 S.W.2d 375, writ refused; Traders’ & General Ins. Co. v. Nunley, Tex.Civ.App., 80 S.W.2d 383, writ refused; Federal Surety Co. v. Ragle, Tex. Com.App., 40 S.W.2d 63; Petroleum Casualty Co. v. Green, Tex.Civ.App., 11 S.W. 2d 388, writ refused; Kirby Lumber Co. v. Scurlock, 112 Tex. 115, 246 S.W. 76; Watts v. Continental Casualty Co., Tex. Com.App., 18 S.W.2d 591; In re Bollman, 73 Ind.App. 46, 126 N.E. 639; Haddock v. Edgewater Steel Co., 263 Pa. 120, 106 A. 196; State ex rel. McCarthy Bros. Co. v. Dist. Court, 141 Minn. 61, 169 N.W. 274; Consolidated Underwriters v. Breedlove, 114 Tex. 172, 265 S.W. 128; Employers’ Liability Assurance Corporation v. Light, Tex.Civ.App., 275 S.W. 685, writ refused.

We do not think it necessary to quote from the cited authorities, but deem it sufficient to say that, in our opinion, they abundantly support our holding.

Appellant’s third proposition complains of improper argument 'by counsel for.appellee in closing the argument to the jury. As reflected by the bill of exceptions the argument was-:

“Lets see about Jim Sanders. Pie said. Jim Sanders has been on juries from time to time. Was Jim Sanders trying to do something unlawful? No. Could he have sat on this jury? He was honest enough to say, T know too much about it. • Let me off.’ If Jim Sanders is not the kind of a man the jury can believe, then Camy Hightower (of counsel for appellant) you could have put somebody on the stand that would testify he can’t be believed.
“You go to messing with these railroads and insurance companies and these big corporations and I be darned if they don’t smoke you out of the country if you don’t fight them from day light to dark.
“They even brought a man that went to work in October. He didn’t testify, but he was willing.”

In order that the matter can be understood, a brief statement of certain matters should be stated. Sanders was a member of the venire summoned to try the case. On his voir dire he disqualified because of his having an opinion that might influence him in arriving at a verdict. Later he was used by appellee as a witness for impeaching purposes, and on cross examination he was subjected -to a very thorough and searching questioning. Among other things he was asked whether he had frequently sat on juries where Pitts and Liles (a firm of lawyers residing at Conroe, and of counsel for appellee) were attorneys in the case; whether he had been picked up on juries where Pitts and Liles were attorneys in the case; if he had not worked on the evidence in cases where Pitts and Liles were attorneys, all of which Sanders denied. The first portion of the argument objected to seems to have applied to the foregoing. Relative to the second part, these facts appeared: The Magnolia Pipe Line Company was the employer. It carried compensation insurance with appellant covering its employees. It was not a party to the suit.' J. H. Joy, who resided in Houston, was District Superintendent of the pipe line company and deceased was under his jurisdiction or supervision. Ap-pellees invoked the rule at the commencement of the trial. At the request of appellant, over the objection of appellees, Joy was excused from the rule and remained in the court room during the trial and assisted counsel for appellant in the trial. He also testified for appellant, and, accompanied by H. D. Wade, Chief engineer of the pipe line company, went ,out into the country some nine miles and brought in another pipe line walker of appellant, George Gilmore, and he was used as a witness for appellant! - It is presumed that the second portion of argument by counsel' for ap-pellees complained of had reference to these acts of the employer of deceased. These activities of the employer, though not a party to the suit, evidenced quite an interest adverse to appellees, and were not in defense of any claim against it. We are inclined to think the argument was not improper. But if objectionable, it was not of such nature as that an instruction from the court would not have removed the harmful effect, if any, had an objection been made at the time. The objection to the argument was made for the first time in appellant’s motion for a new trial. If the objection had been made at the time of the argument it would have given the court the opportunity, if he thought proper, to have instructed the jury to disregard the argument, and we find nothing in the record to indicate such instruction would not have been fully obeyed by the jury. Decatur Cotton Seed Oil Co. v. Taylor, Tex.Civ.App., 182 S.W. 401, writ refused; Southern Old Line Life Ins. Co. v. Mims, Tex.Civ.App., 101 S.W.2d 396; Geistmann v. Schkade, Tex.Civ.App., 121 S.W.2d 494; Ramirez v. Acker, 138 S.W.2d 1054, not yet reported [in state report] — decided by Supreme Court, April 17, 1940.

Finding no reversible error, the judgment is affirmed.

On Motion for Rehearing and Additional Findings of Fact.

The record reflects and we find:

(1) That the accident happened on Thursday about 3 o’clock in the afternoon and from the point where deceased intended to get off of the bus and walk the line to the Magnolia pump station at Cleveland, Texas, was a distance of some 3 or 4 miles. Under deceased’s contract of employment he was not required to walk this portion of the pipe line that afternoon, but could have walked it the next day, Friday, or on Saturday, because he had walked the east end from Cleveland to the Trinity River the first part of the week. With the exception of this'portion of the line deceased’s entire section of 52 miles had been covered that week.

(2) The Magnolia Pipe Line Company did not require deceased to return to Cleveland at the end of each day,' but he was privileged to spend the nights away from home, and had spent the nights at Trinity River (the terminus of the east end of his line) and at Conroe (the terminus of the west end of the line). However he was frequently called out at night to assist in emergency repairs on the line, and as he resided at Cleveland, which was near the middle of the section of line he had to cover, and. lived near the pipe' line station he practically all of the time returned to his home at Cleveland to be on hand if called suddenly for extra services. This was known by the agent at Cleveland. The times he spent the night at the river or at Conroe were during the' first four years of his service when he rode horseback over the line — he had been constantly performing this service for nineteen years.

(3) The bus which deceased was riding when he was injured was owned by one C. D. Thomas. Lawrence Pate was the driver and it was his duty to keep the bus in repair. The Magnolia Pipe Line Company had no interest in or control over the bus, or its operation, and the company did not require deceased -to assist in repairing it, but the company did know that deceased used the bus in the discharge of his duties to the company, and made no objections to such use. It left deceased free to arrange his schedule of walking- the pipe line, and free to choose his methods in getting over the line. The injury occurred on Highway No. 105 which ran near to and practically parallel with the pipe line for a great part of the distance between' Conroe and Cleveland. The accident was at a point on the highway some 11 miles from the place where deceased intended to get off of the bus and resume walking the pipe line back to Cleveland.

We think all the above findings of fact are substantially embodied in our original opinion, but that they may clearly appear, we add them to our opinion. With this exception, the motion for a new trial is overruled.


source: Caselaw Access Project

author: GRAVES, Justice.

license: Public Domain

text:
    LOTT v. AMERICAN SURETY CO. OF NEW YORK.
    No. 10990.
    Court of Civil Appeals of Texas. Galveston.
    May 16, 1940.
    Rehearing Denied June 6, 1940.
    Allen, Helm & Jacobs, S. M. Helm, and G. E. Pike, all of Houston, for appellant.
    A. D. Dyess, of Houston (Chester H. Johnson, of Houston, of counsel), for appellee.
   GRAVES, Justice.

Appellant was plaintiff below, appellee defendant; this statement, admitted to be substantially correct, is taken from the former’s brief:

“Plaintiff, in appealing from an award of the Industrial Accident Board after both plaintiff and defendant duly gave notice of their dissatisfaction therewith, duly filed this suit against defendant on March 17, 1939, in the district court of Harris County, Texas, to set aside said award and to recover his workmen’s compensation from defendant as the workmen’s compensation insurance carrier for plaintiff’s employer, Phoenix Engineering Corporation, a subscriber under the Workmen’s Compensation Act. Plaintiff pleaded accidental and general injuries hereinafter more fully set out, sustained by him as an employee of Phoenix Engineering Corporation, engaged in the usual course of his employment in Harris County, Texas, on August 2, 1938, in having a supporting form and reinforced steel wall fall upon his bade as he performed his journeyman carpenter duties in the erection of a large addition to one of the Houston Lighting & Power Company plants, as a result whereof he was totally and permanently disabled to work and earn money; or, alternatively, he was totally disabled for 400 weeks after the date of accident, and after the termination of total disability would be partially disabled to an extent of 90% in excess of 300 weeks, entitling plaintiff to the maximum compensation, or such portion thereof as the jury might find based upon an average daily wage of $9. Alleged alternatively under all three methods of computation of average weekly wage set out by the Workmen’s Compensation Act.
“Plaintiff further pleaded facts justifying lump-sum payment, for which he also prayed.
“Defendant filed an unsworn answer, consisting only of a general demurrer, which was neither presented, urged, nor ruled upon, and a general denial.
“This cause came on to be tried before a jury before the Sixty-First Judicial District Court in Harris County, Texas, on the Sth day of June, 1939, and after the plaintiff rested his primary case on June 6, 1939, and before defendant had offered any evidence, the Court, after argument of counsel and over plaintiff’s objection, granted defendant’s motion to instruct 'the jury peremptorily to return a verdict against the plaintiff fo.r the defendant, to which plaintiff excepted in open court.
“Pursuant to the Court’s instruction, the jury so returned its verdict, and the Court on the 7th day of June, 1939, rendered judgment thereon that plaintiff take nothing and defendant go hence without ■ day and recover its costs, to which -action of the Court in entering such judgment, the plaintiff then and there in open court duly excepted.”

The single question of law the appeal presents is whether, under the evidence adduced in appellant’s behalf, there was an issue of fact raised over any material feature of the cause-of-action he so declared upon; and that inquiry is determinable upon this principle:

“The settled rule is that a verdict should not be directed for defendant, ‘if, discarding all adverse evidence and giving credit to all evidence favorable to the plaintiff and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found for the plaintiff.’ Hence, a direction of verdict for defendant is error if on the plaintiff’s pleadings and evidence any issue arises that the jury might properly determine in favor of plaintiff, or if on any aspect of the case made, plaintiff is entitled to recover.” 41 Tex.Jur., page 949, paragraph 177, and foot-note cited authorities.

Essentially that same rule, applied in a compensation case like the one at bar, but dealing with the sufficiency of the evidence to support a verdict, rather than to raise an issue, where a somewhat stronger proof is required, is thus stated:

“Where it can reasonably be inferred from the evidence that the plaintiff’s injuries are permanent and totally disable him from performing the usual tasks of a workman in such way as to enable him to procure and retain employment, a verdict in his favor on the issues of total permanent incapacity will be affirmed. * * * A similar rule obtains in respect of the sufficiency of the evidence to establish partial disability.

“The issue as to disability may be established by the testimony of the claimant alone, even though such testimony is contradicted by medical witnesses.” 45 Tex. Jur., pages 592, 593, paragraph 163, and cited authorities.

When the evidence here is appraised in the light of these principles, bearing in mind the while that it takes — as just indicated — less evidence to merely raise an issue than to support a verdict, it seem* clear an issue of fact was raised over whether or not the appellant was eithe? totally and permanently, or totally for a time and thereafter partially, disabled, as so pled by him.

He himself thus makes what is deemed— with only immaterial editing added — a sufficient resume of that .evidence in his brief, much of it consisting of his own testimony

“On August 2, 1938, while plaintiff was working as journeyman-carpenter for Phoenix Engineering Corporation, in the City of Houston, a supporting form therefor and a reinforced steel wall fell upon him. His backbone and ribs were injured; and he was injured inside, to what extent he didn’t know but so as to not be able to breathe. He couldn’t bend reasonably, and his entire back was affected. His head and his right leg were also affected. He stayed under the treatment of Dr. J. T. Oliver, of Parkview Hospital, until October 24, and then Dr. B. D. Thompson treated him regularly from October 26 until the date of this trial for back injury and nerve condition. Dr. Oliver told him he had two broken ribs and an injured backbone. He noticed a change in his nerves, at times a lot for the better after Dr. Thompson treated him, and his back got better; the sharp pains left but ‘that grind’ remained. He thought it was out of place. ‘It feels like it is twisted out of place. I am in constant misery all the time, and in pain.’ T know I can’t .get out and lift and I don’t try it.’ T have not been where I could bend, and the minute I even get the start of bending, the muscles will contract and I am in pain. My back never got stiff where I couldn’t bend, but I can’t breath when I bend.’ The pain ‘has affected my ability to work, the weakening of my back, I am not able to lift anything, except under a physical and mental strain.’

“The duties of a journeyman-carpenter are unlimited, especially when pertaining to weight and the strength required. They have to handle heavy timbers, .heavy steel, heavy trusses, and all kinds of heavy work going into a building. They are subject to having to handle any of it. He couldn’t let other carpenters on the job do that and expect to get paid. Each man is supposed to do his full share. They have to use a hammer, saw; plane, screw-drivers, and a number of other tools. When he tried to do this kind of work since his injury, two days one week and two and one-half days ánother, he had very little success. ‘I was knocked out when I would get home of evenings. * * * If you ever saw a dog with a broken back, that is the way I do, it just quivers. I did some work, but I couldn’t hold the job.’ He had been paid 28 weeks compensation, and after he had asked Phoenix Engineering Corporation if they had a place for him and what they wanted to do about it, ‘I went and told them I had been cut off of my compensation and I would like to go to work on something to make á living.’ He did not tell them'he was capable of going to work. He quit working at the Austin Construction Company, where he worked the 4½ days above mentioned, ‘because they didn’t have any place for me.’ He worked on the Sears & Roebuck Building, lacking a half day of being a full week as journeyman-carpenter, and the next week got the job of carpenter-foreman at $11.00 a day. He was holding down the job there ‘for the time being’ at the time of this trial. As a carpenter-foreman he didffit do hard physical manual labor; he used no tools but ruler and tape and square The heaviest work he does is walk covering the job. As to a foreman being required to do the labor a journey-man-carpenter has to do, he answered: ‘On the job I am on, you are not.’ The foreman job was temporary, paid by the hour, not permanent. ‘When I went to work on it, I was not able physically to do the work, from personal feeling, because I am in constant misery all the time, and in pain. I know I can’t get out and lift, and I don’t try it.’

“He had been a carpenter-foreman only four times in his 27 years carpentering. He was formerly a competent finishing-carpenter, but hadn’t done it for 10-12 years, and was not now competent for lack of practice. He principally does rough carpenter work, building forms, and things of that kind. He finished only 7th grade schooling. He was not qualified by training or experience to do office work, clerical work, and work of that kind and character.

“Dr. B. D. Thompson testified the plaintiff came to him complaining with severe pain in the lumbar portion of his back, and of trouble with stomach and indigestion. ‘He had very definite pain or pressure over the first, second, and third lumbar portion of his spine.’ The doctor examined him and treated him regularly. He gave a history of a large heavy wall falling on his back across the lumbar portion of his spine. ‘He couldn’t bend forward freely. If he did bend forward, he couldn’t come up quickly without pain.’ In his opinion the man had injury to the vertebrae in that region, and to the ligaments that hold the vertebrae together, and to the ’ spinal cord itself, affecting the sympathetic nerves that come off the spine at that point, and manifesting itself in pain over stomach, pain down his side into, abdomen, daily stomach gas and indigestion. ‘In my opinion, those ligaments (in lumbar back) were torn, and that accounts for that definite soreness over that region today * * *. In my opinion those ligaments have not healed.’

“As of the time of trial Lott was not able to do hard physical manual labor, although he might do some very light work not requiring stooping or bending of his back. It would have to be in the category of very light work. Based solely on examination and treatment, the doctor’s opinion was that he never would he able to do hard manual labor that requires him to lift heavy objects, or bend and stoop around in different positions, but would be able to do light labor, if he could get a job where he didn’t have anything heavy to do during the day.”

The appellee’s sole answering position is thus, in substance, quoted from its brief:

“Due to the admissions of plaintiff that he immediately went back to work after the compensation had been cut off and at the same rate of pay and on the same job, and shortly thereafter secured another job on which he remained at the same rate of pay for about a week when he got a promotion as carpenter-foreman, drawing $11.00 a day and doing the very kind of work he is fitted for, certainly the plaintiff could not be totally disabled nor totally and permanently disabled so that he could not procure and retain employment, and further because plaintiff’s position is not supported by any competent medical evidence produced upon the trial of his case, because Dr. Thompson’s entire testimony and opinions were based upon the history of claimant’s injury as given to the doctor by the claimant and upon external physical examination for internal injury to plaintiff’s sciatic nerve and back and upon purely subjective symptoms and without the benefit of X-ray.”

Obviously, it is thought, these objections merely go to the weight, credibility, and possibly in some details to the admissibility, of the testimony .referred to supra, rather than to any structural or legal insufficiency of it to raise an issue-of-fact for the jury. The question .here is, not whether this summarized evidence in appellant’s behalf was true, weak, free of conflict, or even self-contradictory in some respects, but whether, after discarding all that was adverse or contradictory, and then giving credit to all that was favorable under every reasonable intendment, there was still left sufficient basis for a not unjustified inference by a jury that the appellant’s resulting incapacity from the injury he so suffered was in either respect as claimed by him; neither did the admitted facts that the appellant had already received the 28 weeks’ compensation at the maximum rate of $20 per week as a result of such injury, and that he had also received the same or larger temporary wages than he got before his injury, defeat, as a matter of law, his suit herein for the further claimed incapacity; the test at last still being whether his physical condition was so impaired by the injury, either totally and permanently, or totally for a time and thereafter partially, that he was left unable to secure and hold employment in the usual task of such a workman, in whole or in part; Lawler’s “Texas Workmens’ Compensation Law”, paragraphs 106, 107, pp. 225-228; inclusive, and cited authorities.

These authorities, without deeming it essential that they be commented upon in detail, are thought to support the conclusions stated; if so, the peremptory instruction was improvidently given: Traders & General Ins. Co. v. Daniel, Tex.Civ. App., 131 S.W.2d 276; Davies v. Texas Employers’ Ins. Ass’n, Tex.Com.App., 29 S.W.2d 987; Commercial Casualty Ins. Co. v. Strawn, Tex.Civ.App., 44 S.W.2d 805, writ refused; Hartford Accident & Indemnity Ins. Co. v. Miller, Tex.Civ.App., 5 S.W.2d 181; Gulf Casualty Co. v. Bostick, Tev.Civ.App., 116 S.W.2d 915; Aetna Life Ins. Co. v. Bulgier, Tex.Civ.App., 19 S.W.2d 821, 822; Texas Employers’Ins. Co. v. Teel, Tex.Civ.App., 40 S.W.2d 201; Winters Mutual Aid v. Reddin, Tex.Civ.App., 31 S.W.2d 1103; Fidelity & Casualty Co. v. Joiner, Tex.Civ.App., 178 S.W. 806, 808; Maryland Casualty Co. v. Dicken, Tex.Civ. App., 80 S.W.2d 800, writ dismissed; Texas Employers’ Ins. Ass’n v. Wonderley, Tex. Civ.App., 16 S.W.2d 386, writ dismissed; New Amsterdam Casualty Co. v. Crow, Tex.Civ.App., 16 S.W.2d 560; Wright v. Traders, etc., 132 Tex. 172, 123 S.W.2d 314.

Under the holding that jury questions were raised, the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: STOKES, Justice.

text:
    McAFEE v. SHIRLEY, County Clerk.
    No. 5256.
    Court of Civil Appeals of Texas. Amarillo.
    May 20, 1940.

      C. Land, of Memphis, for relator.
    Mahan & Broughton, of Childress, for respondents.
   STOKES, Justice.

This is an original application for permission to file a petition for mandamus filed in this court by the relator, Andy McAfee, against the respondent, N. T. Shirley, clerk of the county court of Chil-dress County. Accompanying the motion for permission to file the petition for a mandamus is the petition itself. We have concluded that the motion for permission to file the petition for mandamus should be granted and, since it is accompanied by the petition and the allegations contained in the petition of the relator have been fully answered and briefed by the respondent, we have concluded to dispose of both the application to file the petition and the petition for mandamus at the same time.

The record shows that the relator is a resident of Hall County and the respondent is the county clerk of Childress County; that in cause No. 1290 on the docket of the county court of Childress County, wherein P. R. Jeter and S. H. Townsend, physicians, practicing under the firm name of Jeter & Townsend, recovered a judgment by default against relator; that, thereafter, on February 22, 1940, the relator filed in the same court a petition in the nature of an equitable bill of review whereby he sought to have the judgment by default reviewed and set aside. When the bill of review came on for hearing the court sustained a general demurrer thereto and dismissed it. To the action of the court in sustaining the general demurrer and dismissing the bill, relator duly excepted and gave notice of appeal to this court. It is alleged in the petition for mandamus that relator was unable to perfect his appeal by giving the appeal bond required by the statute, Art. 2265, R.C.S.1925, and that on the 7th of March, 1940, he filed an affidavit of inability to pay the costs of appeal or give security therefor as provided by Art. 2266, R.C.S., Vernon’s Ann.Civ. St.art. 2266. On the 16th of March respondent filed a contest of the affidavit in forma pauperis and the plaintiffs in the original cause, No. 1290, Drs. Jeter and Townsend, also contested the same. The contest of respondent was sworn to by him and the contest of the plaintiffs in the case was sworn to by their attorney.

The issue thus joined was set to be heard by the court on the 25th of March, 1940, and on that day, at a regular term of the court, the same was by agreement continued until the 28th of March, when, it was called for trial and a hearing held thereon. After hearing the affidavit, the contests and the testimony, the court denied to relator the right to appeal upon his affidavit in forma pauperis and it is to review the action of the court in that respect that the petition for mandamus has been filed in this court.

The record contains a statement of the facts that were heard upon the trial which is approved by the trial judge. The only witness who testified was the relator, Andy McAfee, who was called and placed upon the stand by the respondent. According to his testimony he owns or has an interest in 786 acres of land in Hall County. He also owns 20 head of cattle, 3 old mares, a colt, and 36 chickens. His testimony shows, however, that the value of the land does not exceed $5 per acre, which would amount approximately to $4,000, and that it is encumbered by vendor’s lien notes, deed of trust liens and delinquent taxes for more than $8,000. Relator testified that he did not have any money and was unable to pay the costs of appeal. The 20 head of cattle were purchased by him from the same party from whom he purchased 186 acres of the land and, according to the contract of purchase, they belong to him only after he has paid for 186 acres of the land, amounting to more than $2,000, and the record does not show the value of the three old mares and colt. He said he had agreed to pay $40 per head for the twenty head of cattle.

It is held by our courts that the right of appeal is not an inherent one but is a privilege merely that is given by the law and can be exercised only when the regulations limiting the right have been substantially observed. Ordinarily, the action of the trial court in refusing to permit an appeal upon affidavit of inability to pay the costs 'or give bond therefor is within the discretion of the trial court and his action will not be disturbed unless the reviewing court is convinced .that' it is clearly wrong. Heard v. Pearman, District Judge, Tex.Civ.App., 275 S.W. 271.

Art. 2266, R.C.S.1925, as amended in 1931, Vernon’s Ann.Civ.Start. 2266, reads as follows: “Where the appellant or plaintiff in error is unable to pay the costs of appeal or give security therefor, he shall, nevertheless, be entitled to prosecute an appeal by making strict proof of such inability, which shall consist of his affidavit filed with the Clerk-of Court stating that, he is unable to pay the costs of appeal, or any part thereof, or to give security therefor. Any Officer of Court or -party to the suit, interested, may contest the affidavit, whereupon the Court trying the case, if in session, shall hear the contest; but if in vacation, the same shall be heard by either the Judge of the Court or the County Judge of the County where the suit is pending and on such hearing evidence may be introduced, the right of the party to appeal shall be determined, the finding certified to, and filed as a part of the record of the case. ■ It will be presumed, prima facie, that the affidavit of appellant speaks the truth and unless contested within ten (10) days after being filed the presumption shall be deemed conclusive. The appeal will not be dismissed for defects or irregularities in procedure, either of form or substance, without allowing the party appealing a reasonable time, not exceeding ten (10) days after notice, to cause to be corrected or amended such defects or irregularities.”

Our courts have not fully agreed in their interpretation of the statute in reference to the right of a litigant to appeal a case upon an affidavit of inability to pay the costs or give security therefor. Clendenen v. Haynes, Tex.Civ.App., 45 S.W.2d 1015; Stark v. Dodd, Tex.Civ.App., 76 S.W.2d 865; Speed v. Keys, Tex.Civ.App., 110 S.W.2d 1245. In Clendenen v. Haynes, supra, the Court of Civil Appeals of the 11th District held that a litigant’s right to a writ of mandamus under circumstances such as are presented by the record before us must be determined in accordance with the evidence adduced upon a hearing of the contest in the trial court. It was there held that the allegations in the relator’s application for a mandamus to the effect that he is unable to pay the costs or give security therefor cannot be considered by the Court of Civil Appeals but that the appellate court can consider only the evidence offered below. The Court of Civil Appeals of the 6th District in the case of Stark v. Dodd, supra, followed substantially the holding of the court in the Clendenen case and held that the provisions of Art, 2266 require that the person seeking to appeal by affidavit in lieu of a bond must make strict proof of his inability to pay the costs or secure the same and that when the affidavit is made and a contest of same is filed, the person filing the affidavit is not relieved of the duty to produce evidence in support of his affidavit. The holding is, in effect, that when a contest of such an affidavit is filed, the burden rests upon the appellant or person filing the affidavit to make strict proof of his inability to pay the costs or give security therefor and clearly show that he is unable to pay the costs or give the required bond.

In the later case of Speed v. Keys, supra, the Court of Civil- Appeals of the 10th District held, in effect, that the mere filing of an answer or contest by the appellee is not sufficient to defeat the right of an appellant who has complied with the statute; but that the burden rests upon him to go further and introduce evidence and secure a finding of the trial court that the facts stated in appellant’s affidavit are not true. Thus it will be seen that the holdings in the two cases first mentioned are to- the effect that when a contest of the affidavit is filed, the burden of proof rests upon the appellant who filed the affidavit and in the case last mentioned the court held that the burden rests upon the contestant or ap-pellee to show by proof that the facts stated in the affidavit are untrue.

The statute provides that where an appellant is unable to pay the costs of appeal or give security therefor he shall, nevertheless, be entitled to prosecute an appeal. In order to do so, however, he must make strict proof of his inability to pay the costs or give the required bond. The statute specifically provides that this “strict proof” shall consist of his affidavit in due form filed with the clerk of the court. It follows, therefore, that, when the affidavit is filed, the appellant has made his “strict proof” and unless something further is done, his appeal is then perfected. Any officer of the court or party to the suit, however, may contest the affidavit and the statute provides that, if the court is in session, it shall hear the “contest”. If the trial court is in vacation, then the contest shall be heard by the judge of the court or the county judge of the county where the suit is pending, and, according to the provisions of the statute, upon such hearing, evidence may be introduced. By the plain provisions of the statute, therefore, the hearing upon which evidence is introduced is a hearing upon the contest and not upon the affidavit. True, the integrity of the affidavit is brought into question in the hearing but that is because of the allegations of the contestant. There is no provision of the statute to the effect that a contest, whether sworn to or not, shall have the effect of destroying the affidavit or rendering it nugatory or ineffective: Furthermore, the statute provides that it will he presumed, prima facie that the affidavit of appellant speaks the truth and, unless contested within ten days after being filed, the presumption becomes conclusive. It seems clear from these provisions that, when the affidavit is filed, it becomes prima facie proof of the inability of the appellant to pay the costs of appeal or give security therefor. This prima facie case may be overcome by a proper contest and proof. Until the proof, that is, the evidence becomes of such nature and weight as to overcome the prima facie case made by the affidavit, the latter still stands and the appellant is entitled to his appeal without giving the bond. If no contest is filed the presumption becomes conclusive after ten days. Likewise it becomes conclusive if a contest is filed but the testimony is not sufficient to overcome the presumption, or prima facie case made by its original filing.

In view of these plain provisions of the statute we must conclude that the burden of proof rests upon the contestant and that he must not only file a proper contest of the affidavit but, upon the hearing of the contest, he must go further and introduce evidence which is sufficient in its nature and weight to overcome the prima facie case made by the appellant when he filed the affidavit. In the case of Currie v. Missouri, K. & T. By. Co., 101 Tex. 478, 108 S.W. 1167, 1168, the Supreme Court held that the provision of the statute allowing a contest of the affidavit did not entitle an appellee, by an unverified general traverse, to require of his adversary further proof than that contained in the affidavit which is declared by the statute to be sufficient until contested. The court stated in the opinion that it was the affidavit that was to be contested and said: “* * * it naturally follows that it is to be contested by something having probative force; otherwise, it would be within the power of the appellee to destroy the effect given by the law to the affidavit without offering anything entitled to' weight as evidence against it.” It is. true the contest filed in that case was not sworn to, but, since an ex parte affidavit is not admissible under the general rules of evidence and, in the absence of statutory provision, is wholly lacking in probative force to prove an allegation, the rule cannot be different in that respect in the case of a contest which is sworn to from that which applies to one in which the contest is not verified by affidavit. Tisdale v. F. Hannes & Co., Tex. Civ.App., 278 S.W. 324; Cox v. Gafford, District Clerk, Tex.Civ.App., 26 S.W.2d 412.

In the instant case the respondent wholly failed to establish the fact that the allegations of the relator’s affidavit were untrue. In so far as the land owned by him is concerned the record clearly shows it is encumbered for a great deal more than its value. There is no proof whatever of the probable income or capabilities of the land in producing revenue. According to the relator’s testimony, the cattle are likewise encumbered for an amount which greatly exceeds their value and, in addition, he testified that he was not permitted, under his contract of purchase, to sell either the cattle or their increase until the purchase price of the cattle and the 186 acres of land was fully paid. According to the record, this leaves nothing but the three old mares and the colt out of which the relator could possibly procure the money with which to pay the costs of appeal, and the record is wholly bereft of any testimony concerning their value. Moreover, two of them are exempt to the relator and, under the holdings of our courts, he is not required to sell exempt property in order to procure the money with which to pay the costs of his appeal. Boone v. McBee, Tex.Civ.App., 280 S.W. 295; Black v. Snedecor, 60 Tex.Civ.App. 125, 127 S.W. 570. Without some proof of their value or their possible utility as security, we cannot say that the remaining two, or even all four of them, are of sufficient value to enable the relator to procure the money with which to pay the costs of the appeal or furnish security therefor.

Relator did not testify, and the record does not show, that he made any effort to procure sureties upon an appeal bond but, since his affidavit constitutes .prima facie evidence of his inability to pay the costs or furnish security therefor, and the respondent offered no proof concerning ’that matter, we must conclude, in keeping with the force of the affidavit, that he was unable to procure sureties on such a bond.

It is, of course, the rule in cases such as this, as it is in other cases, that, where there is substantial controversy in the testimony concerning the question of whether or not the appellant is able to pay the costs or give security therefor, the weight of the testimony and the conclusions to be drawn from it rest with the trial court and, in such cases, his conclusions will not be disturbed by an appellate court. In cases, however, where the testimony admits of only one rational conclusion, it then becomes a question of law and is subject to revision by the appellate court. Rutherford v. Vandygriff, Tex.Civ.App., 73 S.W.2d 569. The rule in this respect is not 'affected by the fact that the relator, a party to the controversy, gave the testimony. He was called as a witness by the respondent and it is well-established law in this State that a party upon whom it is incumbent to establish a material fact cannot call his adversary as a witness to that fact, elicit testimony from him concerning it, and then take the position that the court or jury should discredit his testimony upon the ground that he is a party to the suit or interested in the subject matter. Starkey v. Wooten Grocery Co., Tex. Civ.App., 143 S.W. 692; Steed v. Wren et al., Tex.Civ.App. 194 S.W. 963; Stevens v. Hunt, Tex.Civ.App., 39 S.W.2d 124; Butterworth v. France, Tex.Civ.App., 66 S.W.2d 369; Christopher v. City of El Paso, Tex.Civ.App., 98 S.W.2d 394. In this case there is no controversy in the testimony. In our opinion, the proof wholly fails to overcome the prima facie case made by the r.elator when he filed the affidavit of his inability to pay the costs of appeal or give security therefor and, in holding otherwise, the court below was in error.

The application of the relator to file the petition for mandamus will be granted; the petition for mandamus will be granted and the respondent directed forthwith to prepare and deliver to the relator or his attorney a complete transcript of the record in the cause.


author: ALEXANDER, Justice.

text:
    ROBERTSON et ux. v. CONNECTICUT GENERAL LIFE INS. CO. et al.
    No. 1968.
    Court of Civil Appeals of Texas. Waco.
    April 25, 1940.
    Rehearing Denied May 30, 1940.

      H. J. Cureton, of Meridian, and W. V. Dunnam, of Waco, for appellants.
    Bryan & Maxwell, of Waco, and Read, Lowrance & Bates and Hamilton, Lipscomb, Wood & Swift, all of Dallas, for appellees.
   ALEXANDER, Justice.

This is a usury suit. George P. Robertson and wife brought this suit against Connecticut General Life Insurance Company and Dallas Bank & Trust Company to cancel a debt and deed of trust lien on the ground that the contract provided for a usurious rate of interest and that the payments which had been made as interest were sufficient to discharge the principal debt. The Connecticut General Life Insurance Company reconvened and sought judgment for its debt with foreclosure of its lien. The undisputed facts and the material findings of the jury are as follows:

On October 15, 1909, Robertson and.wife executed to A. H. Kahler a note for $3,500, due in five years and secured by a first deed of trust lien on the land in question. The record does not disclose' the rate of interest borne by this note but it is asserted in the brief that it bore 8 per cent per annum. In addition, said deed of trust contained a provision requiring the debtors to pay the taxes assessed against the note or bond under certain conditions. This tax clause will be set out in full later. At the same time they executed a second lien to secure the payment of a note in the sum ■of $353.30, payable in five annual installments to cover additional interest on the principal note. The principal note above referred to was assigned to National Life Insurance Company on November 29, 1909, and was later assigned to United States Bond & Mortgage Company on October 16, 1914. On November 1, 1914, Robertson and wife executed and delivered to United States Bond & Mortgage Company a deed of trust to secure the payment of a note in the sum of $3,500, due on the 1st day of November, 1919, and bearing interest at the rate of 6½ per cent per annum. This note was secured by a first deed of trust lien on the land in question, which deed of trust contained the tax clause above referred to, requiring the debtors to pay taxes assessed against the note and bond under certain • conditions. Presumably it was given in renewal of the balance due on the 1909 note. On the same day the debtors executed a second deed of trust to the same concern to pay a note in the sum of $350, payable in two installments of $175 each, but the record does not disclose when these installments were due. The evidence does show that one of these installments was paid in 1915 and the other in 1916, and it may be inferred therefrom that they were payable during said years. This second note purported to represent a part of the interest charged on the first note. The principal note was assigned to National Life Insurance Company on November 30, 1914, and was later assigned by that company to Dallas Trust & Savings Bank (now Dallas Bank & Trust Company) on June 16, 1920. On October 22, 1919, Robertson and wife executed to Dallas Trust & Savings Bank a note for $3,500, due on 1st day of November 1924, bearing interest at 6 per cent per annum. This note was secured by a first deed of trust on the land in question, which contained the tax clause above referred to. Said deed of trust recited that the note therein secured was given in lieu of and in extension of the note previously executed to United States Bond & Mortgage Company, which note had been taken up and extended -by Dallas Trust & Savings Bank at the request of the debtors. At the same time the debtors executed a second deed of trust to secure the payment of five notes in the sum of $35 each, payable annually, which notes purported to represent a part of the interest charged on the principal note. The principal note last above described was assigned to National Life Insurance Company on May 8, 1920, and was reassigned to Dallas Trust & Savings Bank on November 5, 1924. On November 1, 1924, Robertson and wife executed to Dallas Trust & Savings Bank a note for $7,500, due November 1, 1934, and bearing interest at the rate of 6 per cent per annum. This deed of trust, securing the same contained the tax clause above referred to. It recited that said note was given partly in lieu and extension of the balance due on the note executed in 1919, and that .the Dallas Trust & Savings Bank, at the debtors’ request, had advanced the money necessary to take up and extend said indebtedness. The balance of said loan, $4,000, represented new money advanced to the debtors at the time of the execution of the last lien. On the same day, Robertson and wife executed a second deed of trust to the same creditor to secure the payment of. five notes for $75 each, one payable each year as interest on the principal note. The principal note last above referred to was assigned to Connecticut General Life Insurance Company on February 4, 1925. All of the notes above referred to provided for interest at 10 per cent per annum after maturity and the deed of trust securing same provided for acceleration of maturity in certain contingencies. The Connecticut General Life Insurance Company is a foreign corporation and during all the years that it owned the note here sued on, its home office was in Hartford, Connecticut. Said note was serviced by the Dallas Trust & Savings Bank, a Texas corporation, from 1925 to 1931, but during all the years in question, 1925 to 1934, said note was kept at the home office of the holder in Hartford. The debtors paid the interest installments as they accrued to the various holders of the several first lien notes up to and including the year 1930 and a part of the year 1931. They also páid the second lien notes to the holders thereof as they accrued.

The jury, in answer to special issues, found that in the preparation of the loan contract of date October 22, 1919, and in the preparation of the loan contract of date September 22, 1924, the Dallas Trast & Savings Bank did not intend to exact or receive from the debtors a greater rate of interest than 10 per cent per annum; that Dallas Trust & Savings Bank was the owner of the principal note in the sum of $3,500 of date November 21, 1914, at the time the same was renewed and extended in 1919; that the note for $3,500 of date October 22, 1919 was owned by Dallas Trust & Savings Bank at the time the same was renewed and extended by the contract of date September 22, 1924; that' the principal note executed in 1924 was accepted by the Dallas Trust & Savings Bank for the purpose of resale to investors and that in the preparation of said contract said creditor intended to require the debtors to pay all such taxes as might thereafter be levied against said note by the city and county of Dallas and state of Texas; that the Connecticut General Life Insurance Company purchased said $7,500 note, of date 1924, with the intent to require the debtors to pay such taxes as might be assessed against said note; that from the year 1931 to 1936, inclusive, the Connecticut General Life Insurance Company, which was a foreign corporation, maintained a general office in Texas in the city of Dallas, but that the rate of the tax assessed by the city of Dallas, county of Dallas, and state, of Texas, plus the interest as provided in the note of date September 22, 1924, during any one year, would not be an amount in excess of IQ per cent as interest on the amount of said $7,500 note; and that the debtors, in the execution of the loan contract of 1924, did not intend to thereby waive the privilege of thereafter interposing the defense of usury to any of the loan contracts above referred to. Upon motion, the trial court rendered judgment non obstante veredicto in favor of Connecticut General Life Insurance Company for its debt with foreclosure of its lien and denied plaintiffs the relief prayed for.

It may be that the 1914 contract, because of the “squeezing in” of the installment payments on the second lien note, making the whole thereof payable during the first two years of the contract, and the provision for acceleration of maturity in certain contingencies, was usurious under the holding of the Supreme Court in the cases of Shropshire v. Commerce Farm Credit Co., 120 Tex. 400, 30 S.W.2d 282, 39 S.W.2d 11, 84 A.L.R. 1269, and Dallas Trust & Savings Bank v. Brashear, Tex. Civ.App., 39 S.W.2d 148, Id., Tex.Com. App., 65 S.W.2d 288. See also Lincoln National Life Ins. Co. v. Anderson, 124 Tex. 556, 81 S.W.2d 1112, 1113. But if we should hold that contract, or either of the others that were executed prior to 1924, usurious, the debtors would not be entitled to have payments made by them as interest on said prior contracts credited to the principal of the note now held by Connecticut General Life Insurance Company, because all of such payments were made prior to the execution of this last note and none of them were made to the holder of the last note. The record discloses that all payments made on the 1909, 1914 and 1919 contracts were made to the National Life Insurance Company. About the date of the maturity of the 1919 note, the exact date not being definitely established, National Life Insurance Company, who had become the owner of said note and who had collected all interest payments thereon, reassigned said note to Dallas Trust & Savings Bank on November 1, 1924, and the debtors renewed said indebtedness by executing a new note, being the note here sued on, to Dallas Trust & Savings Bank for the full amount of the principal of the old debt, together with the $4,000 new money advanced to the debtors, and shortly thereafter said new note for $7,500 was assigned to Connecticut General Life Insurance Company, the present owner thereof. If we should assume that either of said prior contracts was usurious and that by reason thereof the debtors had the right, if they had so elected, to have had all payments made thereon as interest applied as a credit on the principal, such payments would not necessarily be so applied as a matter of law. In other words, when a debtor makes an interest payment on a usurious debt, he may desire to have the payment credited on the principal, or it may be to his interest to have it treated as an interest payment, so as to authorize him to recover double the amount thereof as a penalty. Consequently, it is now generally held that a debtor has the right to elect as to whether or not payments so made by him shall be applied as credits on the principal or treated as interest payments, so as to enable him to recover under the penalty statute. Vernon’s Ann. Civ. St. art. 5073; 42 Tex.Jur. 950; Adleson v. Dittmar Company, 124 Tex. 564, 80 S.W.2d 939; Temple Trust Co. v. Haney, Tex.Civ.App., 103 S.W.2d 1035; Hamilton v. Bill, Tex. Civ.App., 90 S.W.2d 929; Ingram v. Temple Trust Co., Tex.Civ.App., 108 S.W. 2d 306. To hold otherwise would deprive the debtor of a valuable right. It might also result in an injustice to a subsequent creditor who had purchased the new note in reliance on its terms, believing that the debtor, by executing a new note for the full amount of the principal, had elected to treat all prior payments as payments on interest and not on principal. It is our opinion that when the debtors executed the new note to the Dallas Trust & Savings Bank and included therein the full amount of the principal of the old obligation, they elected not to treat interest payments previously made by them to the National Life Insurance Company as payments on the principal and waived their right to have the same so applied as credits on the new note in the hands of the Connecticut General Life Insurance Company, the present owner thereof. Hamilton v. Bill, Tex. Civ.App., 90 S.W.2d 929, par. 1; Commerce Trust Co. v. Best, 124 Tex. 583, 80 S.W.2d 942; Ward v. Pace, Tex.Civ.App., 73 S.W. 2d 959; Dallas Trust & Savings Bank v. Brown, Tex.Civ.App., 48 S.W.2d 1044; Deming Investment Co. v. Giddens, Tex. Civ.App., 41 S.W.2d 260; Temple Trust Co. v. Murfee, 133 Tex. 53, 126 S.W.2d 643; Wallace v. D. H. Scott & Son, 133 Tex. 293, 127 S.W.2d 447; Travelers Ins. Co. v. Rowley, 133 Tex. 372, 128 S.W.2d 20.

This leaves for consideration only the question as to whether or not the 1924 loan contract was usurious. Independent of the tax clause, said contract provided for the payment of interest at a rate of less than 10 per cent per annum, the lawful rate. The fact that it provided for acceleration of maturity in certain contingencies and for interest at the rate of 10 per cent per annum after maturity did not render it usurious. Lincoln National Life Ins. Co. v. Anderson, 124 Tex. 556, 80 S.W.2d 294, 81 S.W.2d 1112; Walker v. Temple Trust Co., 124 Tex. 575, 80 S.W.2d 935; Texas Farm Mortgage Co. v. Rowley, Tex.Civ.App., 98 S.W.2d 854, par. 1; Duvall v. Kansas City Life Ins. Co., Tex.Civ. App., 96 S.W.2d 793.

The tax clause above referred, to and contained in each of the loan contracts is as follows:

“The mortgagor hereby covenants with the mortgagee as follows: * * *
“That mortgagor will pay all taxes and assessments and premiums of insurance now due, or which may become due on said premises, or chargeable against said premises, or said bond, or upon the interest in said premises of the Mortgagee, or its successors and assigns, before the same shall become delinquent; or, if at any time, any law, either Federal or State, shall be enacted, imposing or authorizing the imposition of, any tax upon this mortgage, or upon said ‘bond’ or upon the principal or interest money secured by this instrument, by virtue of which the owner, for the time being, of the land above described, shall be authorized to pay any such tax upon said ‘bond’ or Mortgage, or the principal or interest of the debt secured, or upon either of them, and deduct the amount of such tax so paid from the debt hereby secured, or upon the rendering by any court of competent jurisdiction of a decision that the undertaking by the Mortgagor as herein provided to pay any such tax or taxes is illegal and inoperative, then or in any such event, the said principal sum hereby'secured, and all interest thereon to the date of payment thereof, shall, at the option of the holder of said ‘bond’ be and become immediately due and payable, anything in this Mortgage or said ‘bond’ contained to the contrary notwithstanding; provided, this condition of this agreement shall not be construed to incliide any personal tax when imposed against the owner of said ‘bond’ or Mortgage at the residence or domicile of such owner.”

We agree with appellants that under the above quoted provision of the contracts, the debtors were obligated to pay all taxes that might be assessed in this state against the note or bond at any place other than the residence or domicile of the owner thereof. We also agree with appellants that under the law a foreign corporation may establish a tax situs in this state at a place other than its residence or domicile, at which place its notes may be assessed for taxes. Kansas City Life Ins. Co. v. Duvall, 129 Tex. 287, 104 S.W. 2d 11, par. 2; Texas Farm Mortgage Co. v. Rowley, Tex.Civ.App., 98 S.W.2d 854; Hall v. Miller, 102 Tex. 289, 115 S.W. 1168; Duvall v. Kansas City Life Ins. Co., Tex. Civ.App., 96 S.W.2d 793, 797; Great Southern Life Ins. Co. v. City of Austin, 112 Tex. 1, 11, 12, 243 S.W. 778, 781, pars. 12 and 13, and authorities there cited. It was possible therefore for the creditor to have created a situation whereby the debtors could have been required to pay any taxes that might be levied against the notes. The jury found that the creditor intended to require the debtors to pay all taxes that might be assessed against the note in the state and county of Dallas. However, the mere fact that the contract contemplated that the debtors should be required to pay all taxes that might be assessed against the note does not necessarily render the contract usurious. The contract stipulated on its face for a total rate of interest of only 7 per cent per an-num, and unless the taxes which might have been levied against the notes would have exceeded 3 per cent per annum, the contract was not usurious. The evidence shows that the tax rate for the city of Dallas and for the county of Dallas and state of Texas for the years 1924 — 34, inclusive, was as follows:

County

Rate of City Rate

Dallas State Per

Year County Rate Hundred

1924 75 86 $2.43

1925 77 76 2.47

1926 65 70 2.47

1927 67 82 2.46

1928 64 82 2.45

1929 68 88 2.43

•1930 69 92 2.43

1931 74 90 2.43

1932 69 81 2.43

1933 77 79 2.43

1934 77 76 2.43

No taxes were ever assessed against the note in question. Under the above rate, if the notes had been assessed at their full face value, the taxes would have exceeded the equivalent of 3 per cent per an-num and the contract would therefore have been usurious; but it cannot be presumed, .as a matter of law, that the notes would have been so assessed at their full face value. While Revised Statutes, art. 7174, contemplates that all property shall be assessed for taxes “at its true and full value,” as a matter of fact this is not always done. Lively v. Missouri K. & T. Ry. Co., 102 Tex. 545, 120 S.W. 852. In fact, the evidence in this case shows that during some of the years in question, property was assessed in the city of Dallas at much less than its true value, and it has been held that an assessment at less than the full value, when uniformly applied, is valid. City of El Paso v. Howze, Tex. Civ.App., 248 S.W. 99, par. 4, writ refused, and authorities there cited. There was no showing as to the basis of valuation of property for tax purposes in the city and county of Dallas prior to the year 1931. During the years 1931-34, inclusive, the basis for assessment for city purposes in the city of Dallas was 45 per cent of the value of the property. There was no showing as to the basis of assessment for county and state purposes for any of the years in question. Therefore, it was not conclusively established by the evidence that under the prevailing standards of valuation and the prevailing rates fixed by the city, county and state, for the years in question, the taxes which might have been levied against the note by the city and county of Dallas and state of Texas would have equalled or exceeded 3 per cent per annum. We certified to the Supreme Court certain questions of law involved in this case, and that court, in connection with the matter here under consideration, made the following statement; “However, the indebtedness- bore only 7 per cent interest per annum. It certainly cannot be said that on its face it was unlawful. Norris v. Land Mortgage Co., supra [98 Tex. 176, 82 S.W. 500]. In order to show that it contained potentialities which would make it usurious, certainly it was incumbent on debtors to prove facts showing that under its terms the interest rate, by reason of tax levies, would at some time during the contractual life of the bond exceed 10 per cent. Without laying down any definite' rule in this respect, we will say that, in our opinion, the burden would be upon the debtors to prove that under prevailing standards of valuation fixed from year to year, and under prevailing rate or rates fixed from year to year, the taxes which might be levied against the bond, when added to the interest contracted for, would cause the amount exacted to exceed the legal rate of 10 per cent per annum upon the amount of the bond unpaid. If and when this fact be established then the con-' tract is to be regarded as usurious from' beginning; but until such fact be established it cannot be said as a matter of law ■ that the contract was usurious. In this particular it is peculiarly within the province of the Court of Civil Appeals to first determine the status and effect of the facts as proven in the case.” See Robertson v. Connecticut General Life Ins. Co., Tex. Com.App., 137 S.W.2d 760, 765.

In the case at bar, the only issue submitted to the jury on the question here under consideration was as follows: “Special- Issue No. 7. Do you find from a preponderance of the evidence that the rate of tax assessable by the city of Dallas, the county of Dallas and the state of Texas, plus the interest as provided in the notes of date, 22nd day of September 1924, during any one year would be an amount in excess of 10 per cent as interest on the amount of the note for $7500.00?” to which the jury answered “No.” As a matter of fact, the evidence was insufficient to authorize the submission of the above'issue, for there was no showing as to the basis of assessment for county and state purposes for any of the years in question. In fact, if the note had been assessed at its full value for state and county purposes and at 45% of its value for city purposes — the basis used by the city from 1931 to 1934 — the tax would not have exceeded 3 per cent of the note, and hence the contract would not have been usurious. But if we should assume that the evidence was sufficient to raise the issue, since the issue was one essential to the debtors’ recovery, the burden was on them to secure a favorable finding thereon, or else they failed to establish a right of recovery. Since the only issue submitted to the jury with reference to this ground of recovery was answered by the jury favorable to ap-pellees, we must hold that the verdict was insufficient to support a judgment for appellants.

The appellants therefore failed to show that the contract was usurious. Since appellants failed to so establish that such contract was usurious, the trial court properly entered judgment for the creditor for the amount of the note with interest and attorney’s fees.

Appellants suggest that, even though we should be correct in holding that the,trial court, in the state of the record, properly entered judgment for appellees, we should reverse and remand the cause for a new trial, because the appellants tried the case under a misapprehension of the law, believing that they had a right to assume that the note, if assessed for taxes at all, would be assessed at its full value, and that in reliance on such belief, they failed to prove the prevailing standards of valuation at which property was assessed for taxes for the county of Dallas and state of Texas during the years in question. They assert' that upon another trial, they will be able to make such proof. The rule seems to be, however, that we are not authorized to reverse and remand an error-less judgment in order that the case may be more fully developed upon another trial. 3 Tex.Jur. 1143; Harris v. Shafer, 86 Tex. 314, 24 S.W. 263; National Life Co. v. McKelvey, 131 Tex. 81, 113 S.W.2d 160.

The judgment of the trial court is affirmed.


author: WALKER, Chief Justice.

text:
    BARRET v. HEARTFIELD et al.
    No. 3614.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 22, 1940.
    Rehearing Denied May 29, 1940.

      Bryan E. Bush, of Shreveport, La., and Orgain, Carroll & Bell and B. D. Orgain, all of Beaumont, for appellant.
    W. O. Bowers and W. C. Ross, Jr., both of Beaumont, for appellees.
   WALKER, Chief Justice.

This is an action for rent eo nomine by appellant, W. M. Barret, against C. A. Heartfield, and appellees, Mrs. R. A. Heart-field and G. B. Heartfield. The case is before us on appeal by appellant from a judgment on an instructed verdict in favor ■of appellees. Judgment was rendered in favor of appellant against C. A. Heart-field on an instructed verdict on the notes sued upon and certain other issues, from which C. A. Heartfield has not prosecuted an appeal.

The facts between appellant and appel-lees are as follows: On the 23rd day of May, 1927, appellant leased to the three defendants in this suit a certain lot in Cedar Grove, Caddo Parish, Louisiana, for a period of ten years from the date of the lease, and in consideration the lessees executed to him their monthly rental notes, one for each month, maturing on the first of the month, during the term o'f the lease. This suit was on the last forty of these notes, the first note in controversy maturing the first day of February, 1934, and the last note on the 1st day of May, 1937, each note for the sum of $150 with interest at eight per cent per annum from maturity, and ten per cent additional as attorney’s fees.

The lot was leased to appellees for a filling station, and appellant was to make on the lot the following improvements: “The Lessor hereby agrees to erect on the above described property a filling station with driveways and equipment suitable to lessees, it being agreed between the parties that the total cost of the'erection of the filling station, laying of paved driveways, equipping and everything in its entirety shall not ,cost more than Thirty-Five Hundred ($3,500.00) Dollars, that any addition which would increase the amount to above Thirty-five Hundred Dollars shall'be placed thereon by the Lessees herein”.

Plans and specifications for the improvements were made a part of the lease contract, and by the contract appellant was obligated to install the following equipment in the filling station: “All equipment with the exception of the plumbing is to be furnished by Wm. M. Barret. The plumbing shall consist of two toilets and and two lavatories with necessary, fittings. The building shall also be piped for gas and water, the contractor to furnish necessary fittings. Wm. M. Barret shall furnish the gasoline pumps, tanks and air compressor but the contractor is to install same and furnish all necessary piping, switches, etc.”

Appellant erected the building and installed the equipment as per his contract; appellees accepted the building as in compliance with the contract, took possession, and began the operation of the filling station. They remained in possession, duly paying the monthly rental notes, until sometime in 1928, when they made a sub-lease to the Heartfield Company, Ltd., .a Louisiana corporation. Whether appellant knew of and consented to this sub-lease was a controverted issue. The corporation paid the lease notes up to and including the note maturing on the first day of December, 1932, and then defaulted in the payment of all other notes. Appellees paid none of the notes- after the sub-lease to the Heartfield Company, Ltd. On the 13th day of January, 1934, appellant instituted suit in the first judicial court of Caddo Parish, Louisiana, on all notes in default against C. A. Heartfield in personam, “and against Mrs. R. A. Heartfield, G. B. Heartfield, The Heartfield Company, Inc, in rem and against all defendants in solido, in the sum of nineteen hundred and fifty ($1950.00) dollars, together with eight per cent per annum interest on each monthly installment of one hundred and fifty ($150.00) dollars from date until paid, beginning on January 1, 1933, together with attorney’s fees of ten per cent on the full amount to be collected, and all costs of this suit.” He plead his landlord’s lien as follows: “Petitioner further avers that there is equipment, merchandise, furniture and fixtures in said leased premises; that he has a lessor’s lien, privilege and right of pledge upon all of the furniture, property, merchandise, fixtures, tanks and equipment in said leased premises, to secure the full amount of the aforesaid indebtedness; and that he has good reason to believe that said sub-leasee and said lessees will remove the furniture, fixtures, equipment, tanks, merchandise and other property out of said premises and that he may be thereby deprived of said lien, privilege and right of pledge.”

On his prayer, a provisional writ of seizure was issued commanding the sheriff of Caddo Parish “to provisionally seize, attach and take into your possession the goods, merchandise, furniture and other property now on said leased premises or which may have been removed therefrom within the last fifteen days to the amount of what will suffice to discharge the said debt and costs of suit; and that you give notice of this proceeding, and make return of this writ, stating the manner in which you have executed the same, before our said Court, on the first day of our next term thereof.”

On this writ on the 15th day of January, 1934, the sheriff seized the following property, as shown by his return: “I have seized and taken into my official possession the following equipment: 1 cash register, 1 hall tree, 1 typewriter, 1 check protector, 1 Barough adding machine, 1 steel filing cabinate, 1 Electric vulcanizer, 1 lot auto axcesares, 1 tire changer, 1 tire spreader, 1 steel tire rack, 3 oil containers, 1 coal oil container, 1 greese gun, 2 Tokheim Electric pumps, 1 gas heater, 1 floor jack, 1 steel greese rack, 1 steel safe, 1 office table, 1- 550 & 1- 280 gallon storage gasoline tanks, 1 electric buffer and all notes receivable, 2- 10' gallon visable gasoline pumps, 2- 550 gasoline storage tanks, 1 air compressor, 5 oil containers.”

On the 11th day of April, 1934, appellant was awarded judgment in personam against C. A. Heartfield “and against Mrs. R. A. Heartfield, G. B. Heartfield and The Heartfield Company, Inc. in rem, insofar as may be satisfied out of the proceeds of the property herein seized, and against all defendants in solido in the full sum of nineteen hundred and fifty ($1950.00) dollars.”

The judgment directed the sheriff to proceed to sell the property held by him under the provisional writ of seizure. In executing the writ the sheriff sold to appellant on the 13th day of June, 1934 all the property so seized and held by him. After the sale appellant took charge of the leased premises, and from time to time leased the filling station to third parties, who paid him the rent.

In defense of appellant’s cause of action on the notes, appellees plead generally the facts as stated above. It was the theory of their defense that appellant had evicted them from the leased premises, and by his. acts, conduct, and agreements with them-had terminated the lease contract. By supplemental petition appellant denied generally the facts plead by appellees, pleading that his act in leasing the property was for the benefit of appellees; he conceded appellees, as a credit on the notes in controversy, the full amount of rent collected by him.

Opinion

When the tenant abandons the leased premises, it is the settled law of this state that the landlord may relet the premises by taking proper precaution not to create a surrender by operation of law. Early v. Isaacson, Tex.Civ.App., 31 S.W.2d 515; see criticism of this case 9 Texas Law Review 578. So, the mere ireñtmg of~Eh"&-s filling station by appellant to third parties after appellees’ default in the payment of their rent notes and after they and their sub-lessee vacated the premises in violation of their contract did not terminate the rent contract and did not release appellees, from the payment of the notes in controversy. Marathon Oil Co. v. Rone, Tex. Civ.App., 83 S.W.2d 1028.

To terminate a lease contract or to constitute a surrender, the minds of the parties must meet; the termination or surrender must be by mutual agreement. Early v. Isaacson, supra. On this issue there was a conflict in the evidence. By their evidence appellees contended that appellant had agreed with them to terminate the lease, and that with his consent they had surrendered the property back to him. This issue was strongly controverted by appellant. So, on the issue of mutual surrender and termination, the instructed verdict cannot be sustained.

Appellant had the right to seize by legal process the personal property on the leased premises owned by appellees or their sub-lessee, The Heartfield Company, Ltd., upon which he held a landlord’s lien. In contemplation of law, the occupancy of the filling station by .the sheriff for the purpose of seizing and holding the property upon which appellant had a landlord’s lien was the occupancy of appellees and their sub-lessee, or at most was nothing more than a trespass. Meyer, Weis & Co. v. Oliver & Griggs, 61 Tex. 584. The following proposition is announced by 36 Corpus Juris 260: “An entry by the landlord by virtue of summary proceedings, or the levying of an attachment, a distress warrant or a writ or replevin, coupled with a taking of possession of the premises, does not constitute an eviction.” See also In re Bradley, D.C., 225 Fed. 307; Daniels v. Logan, 47 Iowa 395; Wolf v. Ranck, 161 Iowa 1, 141 N.W. 442; Noble v. Warren, 38 Pa. 340.

The theory upon which these cases were decided seems to be that the occupancy of the sheriff was the occupancy of the tenant, and that no inference as a matter of law can be drawn from the seizure of the property on the leased premises by the sheriff of an intent on the part of the landlord to evict the tenant. These authorities clearly hold that the 'act of the sheriff in entering the premises and seizing the property does not, as a matter of law, amount to an eviction. So, on this proposition the instructed verdict does not have support.

The one remaining fact in the case is the act of appellant in directing the sheriff to seize, and hold, and sell the gasoline pumps, tanks, and air compressor, installed by him as a part of the equipment of the filling station. He installed these pumps and furnished the air compressor as a part of his contractual obligation to appellees. After this property was seized by the sheriff under the direction of appellant, appellees made no further claim to the premises. They treated the acts of appellant as an eviction, and their conduct amounted to a tender of surrender by them to appellant of the leased premises. It is our conclusion that the act of appellant, directing the sheriff to seize and hold and sell the equipment furnished by him to appellees under his contract, as a matter of law, constituted an acceptance by him of the surrender of the premises tendered by appellees; his acts constituted an eviction of appellees and a termination of the lease. We are forced to this conclusion for the simple reason that appellant took from appellees a part of the very property leased by him to them, and which property so taken was essential to the operation of the filling station by ap-pellees. We quote the following proposition from 35 C. J. 1086: “A surrender by operation of law occurs where the parties without express surrender do some act or acts from which it is necessarily implied that they have both agreed to consider the surrender as made — acts which are necessarily inconsistent with the continued relation of landlord and tenant. While it has frequently been said that whether a lease has been terminated by operation of law is a question of intention of the parties, it is, nevertheless, held that this mutual agreement may be implied upon the principle of estoppel from the acts of the parties, independently of, and even contrary to, their actual intent. The surrender or abandonment of a written lease may be inferred from the acts and conduct of the parties.”

The following proposition from Samson v. Rose, 65 N. Y. 411, was quoted by Chief Justice Fly with approval in Calhoun v. Kirkpatrick, Tex.Civ.App., 155 S.W. 686, 687: “The effect of the entry by a lessor, where he may lawfully make it for a breach of condition, is to determine the estate of the tenant altogether, and wholly revest the same in the lessor or his assigns.”

In Collier v. Wages, Tex.Civ.App., 246 S.W. 743, 745, Judge Dunklin quoted with approval the following proposition from Goodman v. Republic Inv. Co., Tex. Civ. App., 215 S.W. 466: “In order that such (re-entry) amount to a resumption of possession it must be inconsistent and hostile to the right of possession of the tenant.”

In answer to what has just been said, appellant advances the following proposition: “The command for provisional seizure did not specifically designate property to be seized, but generally described “goods, merchandise, furniture and other property now on the leased premises.” To determine if a portion of the- leased premises were seized, it is necessary to refer to the sheriff’s return and to the testimony of C. A. Heartfield. Nowhere does it appear that the appellant, or anyone for him, pointed out to the sheriff the specific articles to be seized.”

In his petition in the Louisiana suit, appellant plead “a lessor’s lien” against the equipment, praying for “a writ of provisional seizure” commanding the sheriff to seize the equipment and prayed further that the court recognize and maintain “a petitioner’s lessor’s lien” against the equipment. It was on that petition that the writ was issued to the sheriff, and executed by him in the manner stated above. In our judgment appellant’s proposition does not relieve him of the legal consequences of his act in praying for the seizure and sale of the equipment that he had furnished appellees under his contract with them, which prayer was granted by the court.

It follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.

Affirmed.