author: BUCK, J.

text:
    TURNER v. PARKER.
    (No. 12167.)
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 19, 1929.
    Taylor, Muse & Taylor, of Wichita Falls, for appellant.
    Bullington, Boone, Humphrey & King, of Wichita Falls, for appellee.
   BUCK, J.

On November 19, 1926, J. E. Parker filed suit in the Seventy-Eighth district court of Wichita county against J. H. Turner, on a promissory note, dated March 10, 1926, in the sum of $4,600, due four months after date, payable to J. E. Parker at Iowa Park, Tex., with interest at the rate of 8 per cent, per annum from date, and with the usual attorney’s fee, and asking for a judgment for the principal of tke note, interest, and attorney’s fees. To these pleadings J. H. Turner filed an answer on January 31, 1927. Said answer consisted of a general demurrer, a general denial, and a special answer setting up a contract entered into by Parker on the one side and M. L. May and J. H. Turner on-the other. This contract, referred to in Turner’s answer, referred to the fact that Parker had conveyed to M. D. May and J. H. Turner a certain oil and gas lease on 20 acres of land in Archer county, being more particularly described as lot 2, block 121, American Tribune New Colony lands. The said contract further provided:

“Whereas, as additional consideration not mentioned in said assignment, the said M. D. May and J. H. Turner further agree to drill for the said James E. Parker a well at any location selected by the said James E. Parker in Archer or Wichita County, Texas, to a depth of Sixteen hundred fifty (1,650) feet unless oil is found in paying quantities at a lesser depth satisfactory to the said James E. Parker.
"Now, therefore, we, the said M. L. May and J. H. Turner bind and obligate ourselves to drill said well aforesaid for the said James E. Parker at our own cost and expense except the same James E. Parker shall furnish the casing, tubing and rods and other equipment necessary to complete said well in the event an oil sand is reached and casing is used. The said James E. Parker shall notify us thirty (30) days in advance of the location upon which the said well is desired, and we agree within said thirty (.30)' days to begin, operations for the commencing of said well and to prosecute the same with due and reasonable diligence until the same is completed. In the event we fail to comply with this contract, we agree to pay to the said James E. Parker, as his damage of the breach thereof, the sum equal to the amount of the cost of drilling said well.”

This contract was signed by James E. Parker, J. H. Turner, and M. L. May, on March 27, 1924. Turner and May were partners in oil operations in Archer and other counties.

The well was not drilled, as provided in the contract, and subsequently J. H. Turner gave to James E. Parker a note for $4,600, the estimated cost of drilling the well. Prior to the giving of the note, Parker demanded of Turner and May that the well be drilled at a location in Wichita county. Suit was filed on the note, and judgment was obtained for $4,600, together with interest, costs, and attorneys’ fees. This judgment was affirmed by the Court of Civil Appeals at Amarillo, reported in 4 S.W.(2d) 639. A writ of error to the Supreme Court was refused.

On December 3, 1928, J. H. Turner filed what is styled a bill of review, in the district court of Wichita county, where the case of Parker v. Turner was instituted. He set up the facts heretofore stated, and further pleaded:

That he employed J. S. Dickey, a lawyer of Wichita Falls, to defend him. That plaintiff in the bill of review hereinbefore noted, hereinafter styled plaintiff, believed that Dickey was a good lawyer and competent mentally to defend said suit, and mentally able to understand the nature of the suit and the nature of the defenses which plaintiff had to said original suit, and to plead such defenses and to establish the same by the evidence which plaintiff in this suit had to the original suit filed. That plaintiff told said Dickey that the note was given as an accommodation note to enable Parker to raise money thereon, and that it was not intended as an evidence of indebtedness of Turner to Parker, but, when said note had been used by. Parker for the purpose of raising money and the obligation incurred by the hypothecation thereof by Parker, the note was to be returned to Turner. That he further told Dickey that it was agreed between him and Parker that in no event would he be liable for more than one-'half of the cost of drilling the well in case the well should not be drilled by the firm of Turner & May, and that therefore he was not liable- for more than one-half of the note subsequently given by him to Parker. That said Dickey told plaintiff that he had talked with Parker’s attorney, T. R. Boone, and that the said attorney agreed that in no event would he ask for more than one-half of the face value of the note, interest, costs of suit, and attorneys’ fees. That Dickey told him that said Boone agreed that his contention as to being liable for only one-half of the note was founded on fact and truth. That therefore he did not make M. L. May a party defendant, inasmuch as, by the statement Dickey made to him as to Boone’s agreement, he did not think that said May was a necessary or proper party:

That at the time of the employment of Dickey as his attorney, he did not know that Dickey was mentally unbalanced and not capable of properly representing him, and not capable of understanding what was necessary to plead and to prove in said cause. That plaintiff himself was a man ignorant of law and of trial procedure, and depended on Dickey entirely to advise him and to represent him in the trial of said cause, and gave to Dickey all of the facts pertaining to said cause, as to the execution and delivery of said contract as heretofore set out, as well as the execution of said note sued upon, and informed him that in no event was he to be liable for more than one-half of the said note. He further pleaded that the provision in the contract aforesaid between Parker on the one side and Turner & May on the other, that the well was to be drilled either in Archer or Wichita county, was a mistake, and Wichita county had been inserted in said contract by a mistake, and that said Dickey informed him that all he had to. do was to plead a mutual mistake in this respect, and that the insertion of Wichita county in the contract as one of the counties where the well was to be drilled was a mutual mistake. That Dickey informed plaintiff that he would plead as a defense such mutual mistake, and could defeat said note by so pleading. That he further informed plaintiff that the note was an accommodation paper and without consideration, and that he could defeat the same. That, as a matter of fact, at the time of employment of Dickey by plaintiff, and during the entire trial, including the appeal to the Court of Civil Appeals, and the application for writ of error to the Supreme Court, said Dickey was of unsound mind, and not capable of understanding the issues which should have been drawn in the pleadings, and that said Dickey did not plead the mutual mistake, and did not plead that in no event was Turner liable for more than one-half of the cost of drilling said well, nor was he liable for more than one-half of the note given in lieu of said drilling contract. That said Dickey instructed plaintiff to secure for him a cashier’s draft for $1,900, informing the plaintiff that he had pleaded that plaintiff was only liable for one-half of the cost of drilling said well, which would be about $1,900, and he wanted to deposit with the clerk said draft to pay this .amount in case the judgment should go against plaintiff. That plaintiff did procure and deliver to said Dickey a cashier’s draft in the sum of $1,900 to be deposited with the clerk for the purpose of paying off the amount which might be found due Parker.

That, if he had known that Dickey was not mentally capable of representing him properly in said suit of Parker v. Turner, he would have employed some one else. That, in truth and in fact at the time of employment of Dickey, said Dickey was under such mental derangement as to wholly render him unable to understand the nature and extent of the defenses submitted to him by plaintiff, and was mentally unable to understand how to plead and prove such defenses.

Plaintiff further pleaded that, by reason of the insanity of his attorney, he was denied his “day in court,” and that the judgment obtained against him theretofore in said district court and later affirmed by the Court of Civil Appeals was unjust and unwarranted, and should be set aside. He tendered a su-persedeas bond in the sum of $1,400, being more than twice the amount of the judgment theretofore obtained against him, including interest, costs, and attorneys’ fees, and. prayed that the same be filed, pending a further consideration of said bill of review. He further prayed that, in the event said supersedeas bond did not lie, a temporary writ of injunction be issued, restraining the defendant Parker from collecting or attempting to collect the judgment theretofore obtained, and restraining the sheriff of Wichita county from prosecuting a writ of execution in the attempt to collect said judgment during the pendency of this suit.

The bill of review is quite lengthy, covering some 18 pages, but we believe we have briefly stated all of-'the essential elements thereof.

The application was heard by the district court, and evidence was introduced, and the court held as follows: “The court after hearing said cause is of the opinion that the review plaintiff, J. H. Turner, is not entitled to either, order, and is of the opinion that his prayer for the suspension of the execution on the judgment as well as an injunction against said execution, should be in all things denied.”

Prom this judgment plaintiff has appealed.

Opinion.

The only statutory bill of review is found in article 2236, Codification (Rev. St.) of 1925. It provides:

" “In eases in which judgment has been rendered on service of process by publication, where the defendant has not appeared in person or by attorney of his own selection:
“1. The court may grant a new trial upon petition of the defendant showing good cause, supported by affidavit, filed within two years after such judgment was rendered. The parties adversely interested in such judgment shall be cited as in other cases.
“2. Execution on such judgment shall not be suspended unless the party applying therefor shall give a good and sufficient bond payable to the plaintiff in the judgment, in double the amount of the judgment or value of the property adjudged, to be approved by the clerk, and conditioned that the party will prosecute his petition for new trial to effect and will perform such judgment as may be rendered by the court should its decision toe against him.
“3. If property has been sold under the judgment and execution before the process was suspended, the defendant shall not recover the property so sold, but shall have judgment against the plaintiff in the judgment for the proceeds of such sale.”

Certainly appellant’s case does not come within this article, for he was duly personally cited, and was present in court at the time the judgment was entered against him. The bill of review statute was passed in 1846, soon after Texas became a state of the Union. It has been consistently held that the statute is not applicable except where the defendant was cited by publication and where he has not appeared in person or by attorney of his own selection. Chrisman v. Miller, 15 Tex. 159; Doty v. Moore, 16 Tex. 592; Yturri v. McLeod, 26 Tex. 84; Lewis v. City of San Antonio, 26 Tex. 316; Cundiff v. Teague, 46 Tex. 475.

Since appellant did not come within the statute, he is not entitled to the remedies therein provided, and the trial court did not err in refusing to allow the supersedeas bond to he filed, as provided for in said statute.

As to the prayer for injunction, we are not prepared to say that the trial court erred in refusing to grant the temporary writ or restraining order. If the so-called bill of réview be considered a sufficient plea in an equitable proceeding to vacate a judgment theretofore entered by the district court, and affirmed by the Court of Civil Appeals, and a writ of error denied by the Supreme Court, or if sufficient as an application for the common-law writ of eoram nobis, which we do not definitely decide, still we think, under the state of the testimony, that it was within the discretion of the trial court to grant or deny said application for a temporary injunction, and that the exercise of his discretion, under the facts shown, is not subject to review. An injunction is a harsh writ, and should not be awarded, where evidence is heard upon the grounds for the writ, unless the applicant shows himself- by good and sufficient proof to be entitled thereto. A preliminary injunction should not issue unless a prima facie ease is made out. 32 Corpus Juris, p. 351, § 582.

The defendant Parker denied all of the allegations upon which plaintiff relied for reopening and vacating the judgment theretofore rendered, and specially denied that Wichita county, mentioned in the contract as one of the counties in which the well might, under the contract, be drilled, or a demand made by him for the drilling thereof, was inserted in the contract by mutual mistake. He testified that it was understood and agreed by him and by Turner & May that he had the right to demand that the well be drilled in Wichita county. He further testified that he did not agree with Dickey that Turner was bound for only one-half of the note, or for only one-half of the drilling expenses. He further denied that the note was given as an accommodation paper. His attorney, T. R. Boone, denied that he agreed with Dickey that he would ask for judgment for only one-half of the note, and denied that he agreed that Wichita county was inserted in the contract by mutual mistake, or by any sort of mistake.

It was further shown that Judge E. R. Wilson, a former district judge and a member of the firm of Oarrigan, Brittain, Morgan & King, assisted Dickey in the trial of the case of Parker v. Turner, and there was no claim that Judge Wilson was insane or was not a-capable lawyer. It is true that Judge Wilson testified for the plaintiff, and stated that it was his recollection that the pleadings had been drawn when he entered the case. He testified that it was a little hazy in his mind, but that it seemed to him that Turner’s answer had -been filed before he got into the ease; that he did not remember dictating any answer, or part of any answer, that was used in the case; . that Mr. Dickey got up the pleadings, it was his remenbrance, and that he was of the opinion that Dickey had every defensive pleading included in the answer that was necessary; that he made objection to the court as to the introduction of testimony he thought inadvisable; that at that time Dickey was not insane, so far as he knew; that Dickey conducted the lawsuit as a sane lawyer or a person with a sound mind; that he did not notice anything out of the ordinary in the manner and the way that he proceeded with the lawsuit; that he had seen numerous lawyers try lawsuits; that he had sat on the district bench, and was district attorney for a short time before that; that he was county attorney for Denton county for six years.

The proceedings in the trial of the original lawsuit were introduced in this case, and they showed that Judge Wilson objected to certain testimony offered by the plaintiff in that suit with reference to the note being an accommodation paper. The Court of Civil Appeals at Amarillo mentions in their opinion the question of- the note given being an accommodation note. Hence it was evident that that issue was made. Both Mr. Turner and Mrs. Turner testified on the original suit, and both declared that the note was given as an accommodation to Parker, with no understanding that Turner should be bound except as an accommodation maker to third parties. Further, Mrs. Turner testified as to various con-vers'ations had between Parker and Turner with reference to drilling the well, and that Mr. Turner did not feel that it was his place to drill the well after he and May had dissolved partnership.

Taking the evidence as a whole, we do not feel that we are authorized and justified in disturbing the judgment of the trial court. Hence the judgment is affirmed. This action does not in any manner interfere with the right of appellant to prosecute his action for a reopening and vacation of the judgment, but we merely affirm the judgment rendered by the trial court denying the suspension of the judgment, by means of the filing of the supersedeas bond and the execution of the judgment, and denying the injunctive writ prayed for.


source: Caselaw Access Project

author: PHEASANTS, C. J.

license: Public Domain

text:
    HOOVER v. HAMILTON.
    (No. 9161.)
    Court of Civil Appeals of Texas. Galveston.
    Feb. 5, 1929.
    Rehearing Denied Feb. 28, 1929.
    Vinson Elkins, Sweeton & Weems, Fred R. Switzer, and Richard T. Fleming, all of Houston, for appellant.
    T. W. Gregory, Sam Streetman, and Andrews, Streetman, Logue & Mobley, all of Houston, for appellee.
   PHEASANTS, C. J.

This suit was brought by appellee against appellant to recover upon a contract, the terms of which are alleged in plaintiff’s pleading to be, in substance: That, if plaintiff would assist defendant in carrying out a contract between him and Mr. Don Hall, a building contractor, for the promotion and construction of a sixteen-story office building in the city of Houston, to be known as the Houston Medical Arts Building, and to be specially equipped and adapted for offices for members of the medical profession, the defendant would pay to plaintiff one-half of all the commissions or profits which would accrue to him from the performance of his contract with Don Hall.

The petition alleges that, by the terms of the agreement between Don Hall and defendant, Hall was to advance the money necessary to purchase a suitable site for the location of the proposed building and all expenses necessary in carrying out the promotion plan, which included the organization of a Texas corporation to hold title to the property, all or substantially all of the capital stock of such corporation to be assigned to Hall in consideration of his conveyance to it of the property upon which the building would be built; and that 1-Iall would then enter into a' contract with the corporation to construct the building in accordance with plans and specifications, and for a price to be agreed upon by him and the corporation.

By the terms of this alleged contract between defendant and Hall, the defendant was to negotiate and arrange for the purchase of a suitable location for the building, and negotiate and procure a loan or loans of the money necessary to carry out the enterprise, to be secured by a lien upon the building and the land upon which it would be located, and that defendant would receive as compensation for his services such commissions as might be agreed upon by him and Hall. It is then alleged that: “An essential part of the carrying out of the enterprise was that it should be endorsed by the Harris County •Medical Society, and in order to procure this endorsement it was necessary that a suitable location for the building be determined on, a contract secured for the purchase of same and plans and specifications of the building made, all satisfactory to said Society.”

The petition further alleges that, in accordance with the contract and agreement between plaintiff and defendant, the plaintiff assisted the defendant in selecting a suitable site for the building and in procuring an option for its purchase from its owner for a consideration of $124,000, and in further performance of his agreement aided and assisted defendant in procuring the approval and in-dorsement of the Harris County Medical Association of the enterprise, and of the plans and specifications and location of the pro1 posed building, and in every way aided and assisted the defendant in, the performance of his part of the work necessary in the promotion and completion of the enterprise; the services so performed by plaintiff being set out in detail in the petition.

After alleging the final performance of defendant’s contract with Don Hall, and the completion of the building, the plaintiff claims various amounts, as due him under his contract with the defendant for one-half of the commissions and profits received by him under his contract with Don Hall; the amounts so claimed aggregating the sum of approximately $23,000.

The defendant answered by general demurrer and a general denial of the allegations of the plaintiff’s petition.

The trial of the cause in the court below with a jury resulted in a verdict and judgment in favor of plaintiff.

In answer to special issues submitted by the court, the jury found that the defendant made the contract with the plaintiff as alleged in plaintiffs’ petition; that defendant received, as part of his compensation for carrying out his contract with Don Hall, $2,000 as commissions paid him by the Adair Realty & Trust Company; that defendant received from Don Hall, as compensation for performing his part of the contract with Hall for promoting and carrying out the enterprise, •$10,000 in money and a note for $30,000; that Don Hall now holds $10,000 of the capital stock of the corporation before mentioned, which he admits -belongs to defendant or to the defendant and plaintiff, as a part of the commissions or profits accruing to defendant in carrying out the enterprise.

The jury further found that plaintiff’s agreement with defendant to use his influence to secure the indorsement of the enterprise by the' Harris County Medical Society did not include any agreement on the part of defendant to conceal from the medical society the fact that plaintiff was to receive compensation for his services in procuring the indorsement of the enterprise by the society.

In accordance with the verdict and the undisputed evidence, plaintiff recovered judgment against the defendant in the following amounts:

(1) For $647.05, being one-half of the commissions received by the defendant upon the sale of the said real estate after deducting the expenses incurred by defendant and the amount already paid by defendant to plaintiff.
(2) $5,000, being one-half of the two amounts of $5,000 each collected by defendant from Don 1-Iall.
(3) $1,000, being one-half of the $2,000 collected by the defendant from Adair Realty & Trust Company, with interest on said several sums from the dates when they were severally collected by the defendant.

Plaintiff also recovered an undivided one-half interest in the $30,000 note executed by Don Hall to defendant, and a one-half interest in 100 shares of stock of the Medical Arts Building Company at the par value of $100 each, held by said company (Don Hall) for the benefit of plaintiff and defendant.

The appellant has 'filed quite a lengthy brief, presenting a number of assignments and propositions upon which he urges a reversal of the judgment. It would serve no useful purpose to set out or discuss the propositions in detail; all of them have been duly considered by us, and none can, in our opinion, be sustained.

The first and main contention in the brief is that the contract sued on is unenforceable, because obnoxious to public policy, in that it contains an agreement by plaintiff “to receive a secret profit to induce third persons having confidence in him and believing him to be financially disinterested to do some act. by which he would receive some financial profit,” and that such contract is unenforceable because it is a “contract for a reward to influence by apparently disinterested advice the conduct of a third person.” This contention is based upon the evidence of plaintiff to the effect that he did not tell any of the members of the Harris County Medical Society, when he advocated before the society and in personal interviews with its members the indorsement of the proposed Medical Arts Building to be constructed upon the plan offered by Mr. Hall and defendant, that he would receive a part of the promotor’s compensation accruing to defendant under his contract with Hall.

The evidence shows that plaintiff was a charter member of the Harris County Medical Society, has been prominent in all of its affairs, and stands high in its confidence and councils.

We think appellant’s contention is fully answered by the fact that the Harris County Medical Society was a purely social organization, with no capital stock, and that neither the Society nor any member thereof incurred any financial obligation by the indorsement of the enterprise. Such being the relation of the parties to each other and to the subject-matter of their negotiations, a very delicate sense of propriety might have required of plaintiff a full disclosure to the society of his financial interest in the enterprise, but he was under no legal obligation to make such disclosure. The sphere of operation of municipal law is not so enlarged as to include mere questions of propriety, but is limited to questions affecting substantial material rights of persons or of property. No such case is presented by this record. The undisputed evidence shows that the medical society incurred no obligation of any kind by its indorsement, and had no financial interest in the subject-matter of the contract.

None of the many eases cited in appellant’s brief sustain his contention that the contract sued on by plaintiff is unenforceable, because plaintiff’s financial interest in the subject-matter of the contract was not disclosed to the medical society. In all of the cited cases the contract held unenforceable because it was “an agreement to receive a secret profit to induce third persons, having confidence in him (the plaintiff) and believing him to be financially disinterested, to do some act by which he would receive some financial profit,” the third persons so influenced either incurred liability by their act, or were real parties in interest in the subject-matter of the contract. As illustrative of the character of these cases and the extent to which the doctrine is applied, we quote the following from Fletcher on Corporations, vol. 1, p. 277, § 135:

“135. Secret Profits: — In General. As a result of the fiduciary relation or relation of trust and confidence sustained by a pro-motor, he will not ordinarily be permitted to retain a secret profit made out of his transactions or dealing with, or on behalf of the corporation or corporators.
“By a secret profit is meant such profit as is made without disclosing the same to the real parties in interest in obtaining their express or implied consent thereto.”

It is manifest that the rule here announced has no application in the instant case, because the medical society was not a real party in interest, but, on the contrary, had no interest in the contract.

The case of Simon v. Gerlitz, 63 Tex. Civ. App. 172, 133 S. W. 464, largely relied on by appellant to sustain his contention, does not support the proposition that the concealment by plaintiff from the medical society of his interest in the enterprise rendered his agreement with the defendant unenforceable. The party from whom the facts were concealed in the cited case had a real interest in the subject-matter of the contract, and fraud was practiced upon him by the plaintiff to induce him to make the contract by which the defendant in the case had received the profits in which plaintiff had a secret interest. Of course the fraud of plaintiff in that case was condemned by the court, and his contract held unenforceable. In that case the court further held that, the suit being one to enforce the contract, and not a suit by á joint owner to recover an undivided interest in specific property, the plaintiff could not recover. The jury in this'ease found upon sufficient evidence that- the contract between plaintiff and defendant did not include an agreement that plaintiff should conceal from the medical society his interest in the profits of the' enterprise. Under this finding, appellant’s attack upon the contract must fail, and, if the plaintiff’s suit is considered one to enforce the contract, his failure to inform the medical society of his personal interest in the enterprise could not defeat his claim against defendant. McConnon & Co. v. Marshall (Tex. Civ. App.) 280 S. W. 323.

But it is well settled by our decisions that suits of this character are not to be regarded as suits to enforce the illegal contract. In the case of Floyd v. Patterson, 72 Tex. 202, 10 S. W. 526, 13 Am. St. Rep. 787, the court says: “In these cases, and in many similar ones which need not be cited, it is held that the cause of action is not dependent upon the illegal transaction. When the plaintiff shows that the defendant has received of a third party money for his use, the law from the naked fact implying a promise, the case is made out without going into the illegal transaction, and the defendant will not be permitted to set up the illegality of the original contract in order to defeat a recovery.”

This holding is quoted and approved by our Supreme Court in Hartford Fire Insurance Co. v. City of Houston, 102 Tex. 319, 116 S. W. 36, and has been followed in many opinions by our Courts of Civil Appeals.

Appellant next assails that portion of the judgment awarding appellee one-half of the commissions received by appellant for the sale to Don Hall of the land he thereafter conveyed to the Medical Arts Building Company for the location of the building, and one-half of the commissions received by appellant from the Adair Realty & Trust Company for securing for that company the contract to loan the money necessary for carrying out the enterprise, on the ground that appellee, being the president of the building company at the time of the conveyance of the land to the company, and at the time the contract with the Adair Company was made, any secret agreement by which appellee would receive a portion of the commissions earned by appellant in effecting the sale of the land and obtaining the loan contract was contrary to public policy and unenforceable.

The undisputed evidence shows that there was no agreement to conceal, and no concealment from any one having any interest in the Medical Arts Building Company, that appel-lee had an interest in these commissions. The undisputed evidence further shows that the building company was created by and for Don Hall, to be used by him in carrying out the enterprise. He testified: “The consideration of ten thousand dollars recited in the deed (from Hall to the Building Company) was not the actual consideration; the actual consideration was the entire stock of the Medical Arts Building Company. That was conveyed to me and I ’became the owner of the entire capital stock of the company. There are ten doctors that are Directors in the company and they hold a qualifying share each. Each share is of the par value of one hundred dollars. With the exception of that ten shares and the one hundred shares that I hold to await the adjustment of this matter, I own the balance of the stock at this time. In the final agreement between myself and Dr. Hoover it is stated that I buy from him all his right, title, equity and interest in and to 2,900 shares of the capital stock of the Houston Medical Arts Building Company; as I have already testified, 1 paid for the entire stock with this land on which the buildwig is constructed. ZM Sooner never paid any money for any of the stoelc, nor conveyed any property in payment of any of said stock."

When- considered in the light of the facts shown by the undisputed testimony, there is nothing in the agreement between appellant and appellee which is violative of public policy or of good morals, Don Hall testified that he knew of appellant’s receiving a commission from the owners of the property conveyed to him and subsequently conveyed by him to his creature, the building company, and also knew of the commissions paid appellant by the Adair Company, and was told by appellant that appellee had a one-half interest in appellant’s profits as a promoter of the enterprise.

Being the sole owner of the property and the only person who could have complained of these- commissions, he made no complaint at the time and makes none now, and it certainly does not lie' in appellant’s mouth to make such complaint. Bates v. Dunn (Tex. Civ. App.) 293 S. W. 231.

The trial court did not err in refusing to submit to the jury any of the special issues requested by the appellant. The is-, sue submitted by the court was as follows:

“(1) Did defendant agree with plaintiff that in consideration of services to be rendered by plaintiff, plaintiff should receive one-half of all profits or commissions which would accrue to defendant in the carrying out of the Medical Arts Building enterprise?” To this issue the jury answered “Xes.”

Defendant requested the submission of the following issues, which were refused:

“No. 1. Was it agreed that the plaintiff should receive as compensation for Ms services anything except $10,000.00 in stock in the corporation to be formed and one-half the commission accruing on the sale of real estate less the expenses?
“No. 2. Did the defendant promise to pay the plaintiff $10,000.00 in stock and one-half the sale of real estate less expenses incurred?
“No. 3. If you have answered the foregoing special issue No. 2 in the affirmative, and only in that event, you will answer: Did the defendant promise to pay the plaintiff any other compensation either in money or in property?”

None of these requested issues present any special defense, and none of them were pleaded by appellant; his answer consisting only of a general demurrer and general denial. The requested issues only negative a part of plaintiff’s alleged contract, which was found by the jury to have been the contract made by the parties. It certainly cannot be the law that in submitting a ease to a jury on special issues the trial court can be required to submit affirmatively every material conflict in the evidence.

The finding of the jury that “the defendant agreed with the plaintiff that in consideration of the services to be rendered by plaintiff, plaintiff should receive one-half of all profits or commissions which would accrue to the defendant in the carrying out of' the Medical Arts Building enterprise,” is a positive and unequivocal finding against the issues requested by the defendant, and it is inconceivable that a jury of any degree of intelligence would directly contradict themselves by giving an affirmative answer to the requested issues. It seems to us that it would be farcical to conduct judicial proceedings on the assumption that a jury might so contradict itself.

When a ease is submitted by a general charge in which the jury is not requested to find the particular determining fact issues in the case it is both proper and necessary that the attention of the jury should be directed to the conflicting claim of the parties raised by the evidence, and informed that, if they find that plaintiff’s claim is supported by the evidence, they should return a verdict for plaintiff, but, if they find defendant’s claim is sustained by the evidence, the verdict should be in his favor.

The reason for such affirmative submission of the conflicting claims of the parties arising upon the evidence does not exist when a jury is asked to find a particular fact without being informed as to the relevancy of such fact to the claim of either party, and we know of no rule which requires a trial court to submit the same special issue of fact to a jury both affirmatively and negatively, and such double submission of the same fact would have been the effect of the court’s charge in this case if the issues requested by the defendant had been submitted. Galveston, H. & S. A. Ry. Co. v. Mallott (Tex. Civ. App.) 6 S.W.(2d) 437; Wichita Valley Ry. Co. v. Williams (Tex. Civ. App.) 6 S.W.(2d) 439.

Common sense, which is or should be the basis of every rule of law, forbids the application in this case of the rule invoked by appellant. The application of the rule invoked, in cases submitted on special issues, should be, and, as we interpret the decisions of our Supreme Court, can only be made when a defendant specially pleads a fact or group of facts which, if true, constitute an independent affirmative defense to the plaintiff’s claim, and the rule has no application where the evidential fact issue requested to be submitted only negatives the issue submitted by the charge of the court. Missouri, K. & T. Ry. Co. v. Parker, 20 Tex. Civ. App. 470, 49 S. W. 717, 50 S. W. 606; Texas & P. Ry. Co. v. Hagood, 21 Tex. Civ. App. 442, 52 S. W. 574; Texas Trunk Ry. Co. v. Ayres, 83 Tex. 268, 18 S. W. 684; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517.

In discussing this question, the Court of Civil Appeals for the Eleventh District, in an opinion by Chief Justice Hickman,, says: ■‘Article 2190, R. S. 1925, provides for the submission of all issues made by the pleadings and evidence when a case is submitted upon special issues. Under such practice, it is the duty of the jury to determine the facts without reference to the consequences of the answers to the special issues. Whatever. may have been the practical effect of the enactment of the law relative to the submission of special issues, one of its purposes was evidently to simplify the method of charging the jury, and thereby lessen the probability of errors in the charge of the court. This purpose would be subverted rather than served by requiring a dual submission of every fact issue.” Wichita Valley Ry. Co. v. Williams, 6 S.W.(2d) 439.

This statement of the rule has our entire approval, and is, we think, a conclusive answer to appellant’s contention.

There is no merit in appellant’s further contention that the trial court was not authorized to render judgment in appellee’s favor for one-half of the 10 shares of stock held by Don Hall, and a half interest in the $30,-000 note executed by Hall in payment of compensation due by him to defendant for services performed in carrying out their joint enterprise. The judgment is not against Hall, nor the present holder of the $30,000 note, neither of whom were parties to the suit, but the fact that these parties are not bound by the judgment does not defeat appellee’s right to have his title to a one-half interest in this property as against the appellant determined in this suit. Hall in his testimony admits plaintiff’s interest in the stock and note, and the present holder of the nonnegotiable note is a nonresident and could not have been subjected to the jurisdiction of the court by personal citation. There could be no injury to defendant in having his and plaintiff’s rights in the property adjudicated in this suit, and the finality of that adjudication is not affected by the fact that it is not binding upon the present holders of the property.

It is, we think, unnecessary to discuss the remaining propositions presented in appellant’s brief.

Eor the reasons above given, we think the judgment should be affirmed, and it has been so ordered.

Affirmed.


author:
LANE, J. GRAVES', J. PLEASANTS, C. T.
     GRAVES, J.

text:
    AMERICAN EMPLOYERS’ INS. CO. v. SINGLETON.
    (No. 9237.)
    Court of Civil Appeals of Texas. Galveston.
    Dec. 21, 1928.

      Hunt, Moseley & Hunt and C. A. Teagle, all of Houston, for appellant.
    J. Dixie Smith and H. G. Butts, both of Houston, for appellee.
   LANE, J.

It is shown that on the 20th day of April, 1927, one G. A. Singleton, deceased, was an employee of the Houston Park Corporation, “a subscriber,” as that term is used in our compensation statutes, which held a compensation insurance policy covering the employees of said Park Corporation issued by the American Employers’ Insurance Company ; that on said date G. A. Singleton, while in the course of said employment, received an injury which resulted in his death; that Singleton was unmarried, and surviving him as his sole heir and beneficiary was his mother, Mrs. Maggie Singleton; that Mrs. Singleton in due time and manner presented her claim for compensation on account of the death of her son to the State Industrial Accident Board; that said board made an award in favor of the claimant, from which award both the claimant and the insurance company in due time and manner gave notice of their dissatisfaction, and in due time Mrs. Singleton filed this suit in the district court of Harris county against the American Employers’ Insurance Company, praying that the award made by the State Industrial Accident Board be set aside and held for naught, and that she be permitted to recover from the insurance company 60 per cent, of the average weekly wage'of her deceased son, which she alleged to be $35, for a period of 360 weeks, payable in a lump sum. She also alleged that she had employed J. Dixie Smith, an attorney at law, to represent her in the suit, and had agreed to pay him one-third of any sum recovered by her in the same.

Defendant insurance company answered by general denial, and by special plea alleged that the award of the Industrial Accident Board was contrary to the law and the evidence, and prayed that the same be in all things annulled, and that it go hence without day, etc.

The cause was submitted to a jury upon special issues, in answer to which they found that G. A. Singleton did, on the 20th day of April, 1927, receive a personal injury in the course of his employment, which was the proximate cause of his death ; that the average weekly wage of G. A. Singleton, just prior to his death, was $35; that manifest hardship and injustice would result to Maggie Singleton if compensation to which she is entitled is not paid her in a lump sum.

Upon tlie evidence and verdict of the jury the court rendered judgment in favor of Mrs. Singleton against the American Employers’ Insurance Company for the sum of $5,360.25, to be paid in a lump sum; that one-third of such sum should be paid to J. Dixie Smith. From such judgment the insurance company has appealed.

Appellant’s first contention is that the court erred in permitting the witness J. S. Damon to testify that the leg of G. A. Singleton, deceased, “was paining Mm very much,” because the witness was not a medical expert and because the testimony was but •the conclusion of the witness. The contention cannot be sustained. We have carefully read the testimony of Damon, as it appears in the statement of facts, and nowhere does he make the statement attributed to him by appellant. The statement of the witness as disclosed by the statement of facts is, that “he (deceased) complained of pain, he told me his leg was paining him too much to continue work, and he ■discontinued his work.” If, however, the testimony had been as stated by the appellant, its admission would not constitute reversible error, as it could in this case have no material effect upon the jury trying the case.

Again: Admitting that the testimony was but a conclusion of the witness, a nonexpert, the fact so stated so indisputedly appears that such was a fact that the contention of appellant based thereon is not to be' seriously considered. Such testimony, however, has been held to be admissible in the following cases: Texas & N. O. R. Co. v. Clippenger, 47 Tex. Civ. App. 510, 106 S. W. 155; International & G. N. R. Co. v. Smith (Tex. Civ. App.) 90 S. W. 926.

By its second proposition appellant insists that there was evidence to show that the deceased, before his injury, was in a diseased condition, and that, as there was no eyewitness to the alleged injury, the evidence was insufficient to justify the submission of the injury and proximate cause to the jury.

We think the contention is without merit. It is shown that, before the deceased went to work for the Park Corporation, he worked on the farm of his mother, Mrs. Maggie Singleton. She testified that he was a strong robust man; that he had not suffered from injury, to her knowledge, before the alleged injury occurred.

The witness Mrs. Mackey testified that she was employed as cashier at the park at the time of the alleged injury to the deceased; that she worked in a booth on the grounds; that the booth was knocked from its foundation by a Ford car; that when that happened she saw the deceased; that in two or three minutes after the booth was struck he came to it and'asked if she was hurt, and he then told her that the car had run over him; that it struck his leg; that he was complaining' of pain; that she had only known him on the day of the accident'; that, from his appearance when she saw him before the accident, she judged him to be very well, a robust man; that after the accident, on the next day, he limped; that from that time until he left the park he limped.

We think there was ample evidence calling for the submission of the issue of injury and proximate cause.

The witness Dr. Shilling testified that he was called to see the deceased on the 31st day of May, 1927; that he had an X-ray picture made of his injured or diseased limb at that time, as deceased began to have temperature, which indicated infection; that later he and another doctor, who was called into consultation, decided that the trouble was an infection of the bone; that the condition might have been due to trauma, which is an injury that -bruises the tissues and lowers the vitality along there and that starts the germs growing, which it would not do if the tissue was in normal condition; that deceased gave him the history of receiving an injury at the point indicated; that, assuming he did receive such injury, and considering the facts about which he had testified, he would say the condition which he had found the deceased to be in was the result of the injury.

His testimony, when read as a whole, is to the effect that it was his opinion that the trouble which resulted in the death of the deceased was caused by the injury of which complaint is made in this suit.

The testimony of the several witnesses was amply sufficient to justify the submission of proximate cause.

The trial court submitted to the jury the following inquiry: “What sum of money do you designate as the average weekly wage of G. A. Singleton which you may deem just and fair to both parties, plaintiff and defendant?” In answer to which the jury answered : “$35.”

Appellant complains of the submission of such inquiry, insisting that the evidence was insufficient to authorize the jury in finding any sum as weekly compensation, because the undisputed evidence shows that G. A. Singleton had worked for his employer for only about 18 days, and there was no evidence tending to show what the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same' or in similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed. It being provided by subsections 1 and 2 of section 1 of article 8309 of Revised Civil Statutes of 1925 as follows:

“1. If the injured employs shall fes worked in the employment in which >her working at the time of the injury for the same employer or not, substantially the whole of the year immediately preceding the injury, his average annual wages shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed. 1
“2. If the injured employé shall not have worked in such employment during substantially the whole of the year, his average annual wages shall consist of three hundred times the average daily wage or salary which an employé of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed.”

The undisputed evidence does show, as contended by appellant, that '6. A. Singleton worked only for about IS or 20 days for the Park Corporation; and it is not shown by any evidence that he had, prior thereto, earned in any manner a daily or weekly wage, nor was it shown that the average daily wage or salary which an employé of the same class working substantially the whole of such immediate preceding year in the same or similar employment in the same or a neighboring place, shall have earned during the days he was employed.

It will be observed that by subsections 1 and 2 of section 1 of article 8309, two methods are prescribed for arriving at the weekly wage of an injured employé: First, by showing that he had worked in the employment in which he was working at the time he suffered his injury substantially the whole of the year immediately preceding the injury, and by showing his average weekly wage during such employment; and, second, that in the event such proof 'could not be made, because such employé had not so worked for substantially one year, such weekly wage can be fixed by showing what the average daily, .wage or salary. of an employé of the same class, working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or neighboring place, was during the days when so employed, and that it is provided by subsection 3 of section 1 of said article that in the event the weekly wage of such injured employé cannot be established in either of the ways prescribed in subsections 1 and 2, for the reason of the shortness of the time of the employment of the two classes of persons named in subsections 1 and 2, or that for other good and sufficient reasons it is impracticable to compute the average weekly wage as defined in subsections 1 and 2, such weekly wage shall be computed by the board in any manner which may seem just and fair to both parties.

While it was shown that the weekly wage of the deceased could not be established by the method prescribed by subsection 1 of the statute, it was not shown that such wage could not be established by the method prescribed in subsection 2 thereof. And to our minds it seems from the several sections of the statute that the Legislature provided that the wage could be established under the provisions of subsection 3 only in the event it could not be done under the provisions of either subsection 1 or 2.

If the issue presented by appellant’s complaint had not been foreclosed against it by our Supreme Court in the.case of Lumbermen’s Association ,v. Warner, 245 S. W. 664, the majority of this court would unhesitatingly sustain its contention. But since, in the opinion of the majority of this court, the Supreme Court, in the opinion last referred to, has given to the statute above mentioned a construction contrary to the construction we would give it, as indicated by what we have said above, and as the Supreme Court is by law clothed with superior authority, we must yield to its construction of the law, though we think such construction unsupported by sound reason.

Being bound by the construction given to the statute by the Supreme Court, as announced in the case referred to, the majority of this court holds that the trial court did not err in submitting the inquiry complained of in the form in which it was submitted.

By other propositions appellant makes contention that there was testimony to the effect that deceased died of pneumonia, and therefore it was error for the trial court to refuse to submit to the jury the following special issues, at the request of appellant:

“No. 2. Did the deceased, Singleton, die of a disease of the lungs called pneumonia?
“No. 3. Was the deceased, Singleton, afflicted with any disease or infection at the time he is alleged to have been injured that proximately caused his death?
“No. 4. Was the deceased, Singleton, prior to and at the time of his alleged injury on April 20, 1927, suffering from any infection or disease that created or caused the formation of pus or septic poisoning in his body?
“No. 5. If you have answered that the deceased, Singleton, on and prior to the 20th day of April, 1927, was afflicted with septic germs in his body then you will answer the following: Was such infection the proximate cause of his death?’ ”

We do not think the court erred in refusing to submit the tendered inquiries to the jury.

The only defenses pleaded by ai>pellant were: First, a general denial; and, second, “that the award made by the State Industrial Board * * * was contrary to the law and the evidence, in that there were no facts shown making this defendant liable to pay compensation to the plaintiff in any amount.” It is therefore apparent that appellant did not plead as a defense that the deceased was afflicted with some disease or infection at the time of his injury which resulted in his death. If, therefore, it should be conceded that there was sufficient evidence to carry such issue to the jury, which concession we are not prepared to make, still appellant was not entitled to have the issue-submitted to the jury, as it did not plead the supposed illness of the deceased as a defense.

In M., K. & T. Ry. Co. v. Parker, 20 Tex. Civ. App. 470, 49 S. W. 717, 50 S. W. 606, it was held that, before a party is entitled to a charge grouping the evidence, he must specify and group the facts in his plea.

In Texas & P. R. Co. v. Hagood, 21 Tex. Civ. App. 442, 443, 52 S. W. 574, 575; the defendants specially answered as follows: “And for special answer herein, if necessary, they * ⅜ * say that said plaintiff ought not to recover herein, for the reason that at the time of and just before the accident the deceased was himself guilty of negligence whi.eh directly and proximately caused and contributed to the said accident.” Upon trial, defendants offered evidence tending to show specific acts of negligence on the part of the plaintiff. The court instructed the jury, if they should find that defendant was negligent, and should also find that the deceased, for whose death the suit was brought, was also guilty of negligence which directly or proximately caused or contributed to the accident, the plaintiff could not recover. -The 'defendant requested the court to charge the jury (1) that, if they should find from_ the evidence that the deceased stood upon" the railway track and was there struck and killed, and they should further find that a reasonably prudent person, in the exercise of ordinary care, would not have so stood on the railroad track, the plaintiff could not recover. They also asked other charges relative to other specific acts of the deceased, shown by the evidence but not pleaded. These requested charges were refused, and, on appeal, the defendant complained of such refusal. In deciding the issue, the court said; “It is thus seen that the defense of contributory negligence was submitted to the jury quite as specifically as it was pleaded.”

In M., K. & T. Ry. Co. v. Parker, 20 Tex. Civ. App. 470, 50 S. W. 606 (writ of error denied), the court said: “That, in order to entitle the defendant to a special charge grouping the facts constituting the grounds of the defense of contributory negligence, they must have been pleaded.” See Fort Worth & Denver Ry. Co. v. Morrow.(Tex. Civ. App.) 235 S. W. at page 668, col. 2.

We think that-a careful reading of the case of Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, cited by appellant, will disclose that the court rendered the decision did not intend to depart from the holding of the cases above cited.

Having come to the conclusions relative to the material issues involved ás shown by what is said above, the majority of this court think that the judgment should be affirmed, and it is therefore accordingly so ordered.

Affirmed.

GRAVES', J.

(concurring). While I concur in the judgment of affirmance, I do not desire to be committed to a number of the expressions in the opinion, especially those embodying the construction of article 8309 (Rev. St. 1925); I fully agree with the construction put upon that statute by our Supreme Court in the case of Lumbermen’s Association v. Warner, 245 S. W. 664.

On Motion for Rehearing.

PER CURIAM. Rehearing denied.

PLEASANTS, C. T.

(dissenting). I am unable to agree with my associates in the af-firmance of the judgment in this case. The affirmance of the judgment is based upon the opinion of the Commission of Appeals in the case of Lumbermen’s Association v. Warner, 245 S. W. 664. This opinion was not expressly approved by the Supreme Court, but we may, and probably should, assume that the adoption by the Supreme Court of the judgment recommended by the Commission of Appeals carried with it the approval of the construction given by the Commission of Appeals of article 8309, Revised Statutes 1925.

It seems clear to me that the opinion of the Commission of Appeals in the case cited is unsound if it be construed to hold that, under the article cited, an employee who had worked less than a substantial portion of a year immediately preceding his injury would be entitled to receive compensation for 300 weeks at the average daily wage theretofore received from his employer, without further evidence of his earning capacity. I do not think this is the necessary construction to be placed on that opinion. Other evidence as to the earning capacity of the injured employee is set out in the opinion of the Commission of Appeals, and I am persuaded that it was upon this evidence that the learned judge who wrote that opinion held that the evidence was sufficient to sustain the amount of compensation awarded by the trial court. As I interpret this statute, when the injured employee has only worked in the employment in which he was engaged at the time of his injury for less than a substantial portion of the year immediately preceding the injury, he is not entitled to receive compensation based upon his average daily wage earned during his employment, in the absence of other evidence as to his earning capacity. If the statute be construed in accordance with appellee’s contention, the clause which only permits the average daily wage received by the employee in the employment in which he was engaged at the time of injury to be taken as tbe basis for bis compensation when be bas worked in sucb employment a substantial part of tbe immediately preceding year, is practically nullified.

Under sucb construction tbe statute means that you can take tbe average daily wage for any time, however short it may have been, that tbe employee bad worked for the subscriber immediately preceding his injury, as a basis for compensation when no other basis is shown by tbe evidence. This seems to me to be an unreasonable construction of tbe language of tbe statute-which, in my opinion, in sucb circumstances, plainly requires additional evidence as to tbe earning capacity of tbe employee to authorize a finding by a trial court or jury of tbe amount of compensation to which tbe injured employee is entitled.

I think appellant’s assignment, which complains of the verdict on tbe ground that tbe evidence is insufficient to sustain tbe finding by the jury of tbe amount of compensation due appellee should be sustained.

I agree with my associates that tbe trial court did not err in refusing tbe special issue requested by appellant. I do not agree, however, that this question is affected by the failure of appellant to specially plead that tbe death of appellee’s husband was caused by disease and was. not due or contributed to by the accidental injury sustained in tbe course of his employment. Such defense being only negative of tbe claim of appellee that tbe death of her husband was caused by the accidental injury sustained by him in tbe course of bis employment, it was clearly available under a plea of general denial.

Tbe cause having been submitted on special issues and the court having submitted to the jury the question of whether tbe death of tbe deceased was caused by tbe accidental injury, he was not required to submit the purely negative issue of whether it was not due to disease.

In the recent case of Hoover v. Hamilton, 14 S.W.(2d) 935, tbe views of this court on this question are more fully stated.

I think the motion for rehearing should be granted, tbe judgment reversed, and tbe cause remanded.

GRAVES, J.

(concurring). I have concurred in overruling tbe motion for rehearing, being unchanged in opinion as to tbe construction that should be given article 8309, Revised Statutes, but I do not accept- tbe view expressed in the original opinion of Judge Lane that appellant was required to specially plead that deceased was afflicted with some disease as a predicate for tbe special issues it requested; the issues given submitted the same thing in effect, merely- in different form, and for that reason the refusal of those so requested was not error.


author: LANE, J.

text:
    GARRETT v. INTERNATIONAL TRAVELERS’ ASS’N et al.
    (No. 9247.)
    Court of Civil Appeals of Texas. Galveston.
    Feb. 12, 1929.
    Rehearing Denied Feb. 28, 1929.
    Fine G. Bedford, of Galveston, and Williams, Williams, McClellan & Lincoln, of Waco, for appellant.
    Levy, Levy, Barker ⅜ Kahn, of Galveston, and Seay, Seay, Malone & Lipscomb, of Dallas, .for appellees.
   LANE, J.

On tbe 9th day of February, 1925, International Travelers’ Association, a corporation incorporated under chapter 5, title 71, Revised Civil Statutes of 1911, as a home mutual accident company, for tbe purpose of transacting tbe business of accident insurance upon tbe mutual payment plan, without capital stock and without lodges, hereinafter for convenience referred to as tbe association, issued its accident and health policy by which it insured Holland T. Garrett against loss resulting from bodily injuries effected directly, independently, and exclusively of all other causes through accidental means, subject to-the terms, provisions, and limitations in the policy. Mrs. Mollie E. Garrett, mother of insured, was named as beneficiary in tbe policy.

It is provided by article 1 of sucb policy that in case of death effected directly, independently, and exclusively of all other causes through accidental means, the association would pay the beneficiary the sum of $5,000. Article 6 of the policy is as follows:

“Special Indemnities.
“Blood Poisoning — Septicsemia.
“Blood poisoning or septicaemia resulting directly from bodily injuries shall be deemed to be included in said terms, ‘bodily injuries.’ ”

Section 5 of article IT of tbe policy is as follows:

“The term ‘bodily injuries,’ wherever used in this policy, shall be understood to be bodily injuries effected as described in the insuring clause.”

On the 20th day of January, 1926, while the policy was in force and effect, Holland T. Garrett, the insured, died as a result of blood poisoning. Due notice and proof of such death was given to the association. Thereafter, in due time and manner, the beneficiary named in the policy made demand upon the association for payment of the amount due on the policy; thereupon the association, on or about the 8th day of June, 1926, refused and thereby failed to pay said sum so due.

Thereafter, on the 81st day of March, 1927, the association and the International Travelers’ Assurance Company, hereinafter called the Assurance Company, entered into agreement, by the terms of which the association assigned and set over to the Assurance Company all of its properties and assets, admitted and not admitted, in consideration for which the Assurance Company agreed to re-insure and did reinsure all the policies theretofore issued by the association which were in force April 1, 1927, and to assume any and all liability outstanding against the association on the 1st day of April, 1927, and to assume and carry out the full obligations of the association evidenced by policies issued by it prior to April 1, 1927, and to make no defense against such policies, except such as could have been made by the association itself.

The Assurance Company was and is incorporated under provisions of chapter 3, title 78, of the Revised Civil Statutes of 1925, and is what is known as an old line company. On the 12th day of January, 1928, after the aforesaid agreement had been entered into, and after the Assurance Company had taken over all the properties, assets, etc., of the association, by virtue of 'said agreement, Mrs. Mollie E. Garrett, the beneficiary named in the policy, by and through her attorneys, made demand in writing upon the Assurance Company for payment of the sum due by the terms of the policy, to wit, $5,000, with legal interest thereon. Said Assurance Company refused to make the payment demanded, or any part thereof.

Upon such refusal, Mrs. Garrett brought this suit on the 13th day of January, 1928, against the association and the Assurance Company, jointly, to recover on the policy the sum of $5,000, together with interest thereon, and to recover the statutory penalty and attorney’s fees, as provided by law, which she alleged to be the sum of $2,000.

The plaintiff alleged that the insured died as the result of “bodily injuries effected directly, independently, and exclusively of all other causes through accidental means,” in that he died from an accidental injury to his nose and its coincident inoculation or infec-' tion with germs or bacteria, which infection rapidly spread and caused carbuncular infection of insured’s face and scalp, or, in other •words, septicsemia or blood poisoning; that insured, because of cold with which he was afflicted, or some other reason, rubbed his nose, picked at it, or irritated it with his hands and with his handkerchief, and by such means produced an abrasion of the skin or mucous membrane of the nose, through which injury and by which means, coincidentally with the use of the means and infliction of the injury, there was introduced into the insured’s system the septic matter or germs which resulted in blood poisoning or septi-esemia,

Alternatively, appellant alleged that, if mistaken in her allegation that the means which produced the injury to insured’s nose produced also, coincidentally therewith, the blood poisoning, then the infection was communicated by the use of the means aforesaid applied as an exterior force to inject and introduce the germs, which act of injection and communicating the infection constituted a bodily injury from which blood poisoning occurred as a direct result; that whatever the focus of infection, and whether or not there was a preceding or coincident abrasion of the covering of the nose, the aforesaid act of insured whereby septic matter and germs were injected into his system constituted an accidental bodily injury from which blood poisoning and death directly resultedthat blood poisoning, whether accompanying or following directly and proceeding from a bodily injury, was, under the facts alleged, a contingency expressly insured against by the terms of the policy in suit.

Defendants filed a joint answer, by which they pleaded a general denial, and specially pleaded section 5 of article 11 of the policy, whereby the term “bodily injuries,” as used in the policy, is defined to be such only as is described in the insuring clause of the policy; that is, such “bodily injuries” as were received through violent, external, and accidental means. They alleged that the infection from which the insured died resulted from his previous diseased condition, or that such diseased condition co-operated in causing his death, and that they were not liable to the plaintiff under the terms of the policy for death caused by either of such conditions.

The association pleaded the fact that it was incorporated under chapter 5, title 71, Revised Oivil Statutes of 1911, and was not amenable to penalties and attorney’s fees, as provided by law against old line companies. The Assurance CompEfhy pleaded that it assumed all liabilities of all kinds and character of the association existing on March 31, 1927, but only such as then existed; that the insured died on the 20th day of January, 1926, more than a year prior to the assumption of liability by it of the obligations of the association, and, as said association was not liable for statutory penalties and attorney’s fees, the Assurance Company was not liable therefor, as it did not assume any such liability, there being none to assume.

On the trial appellees offered no evidence whatever. At the conclusion of appellant’s evidence the trial court granted appellees’ motion for peremptory instruction, and judgment was entered accordingly that appellees go hence without day and recover their costs. Mrs. Garrett has appealed. ,

As cause for a reversal of the judgment of the trial court, appellant insists that the court erred in peremptorily instructing a verdict for the defendants, and in rendering judgment for defendants upon a verdict returned in accordance with such instructions, in that the evidence was and is sufficient to support a finding by a jury that blood poisoning, from which insured died, was the result of an external force; that such blood poisoning was received through “accidental means”; that blood poisoning was not the natural consequence of a pre-existing disease, but that insured’s diseased condition, if any, at most furnished a condition upon which an intervening agency operated to cause blood poisoning and death; therefore the court should have submitted the issues raised by the evidence to the jury, and it erred in not so doing; that blood poisoning is a contingency expressly insured against under the policy, to the extent, at least, that when death results from such cause, consequent upon bodily injury, blood poisoning “will be deemed,” as provided in the policy, “a bodily injury effected directly, independently, and exclusively of all other causes through accidental means” ; that it is a reasonable inference from the facts and circumstances shown that insured’s death was an unexpected, unusual, and unforeseen result of his act in rubbing his nose with his hand and handkerchief, and that his death was accidental and caused by accidental means.

•We think the contentions of appellant should be sustained. It was shown that just preceding his death the insured had a cold; that during such period he rubbed his nose with his hand and handkerchief and picked at it with his hand; that he had a pimple or sore on his nose, which he rubbed, and squeezed with his hand and handkerchief; that his nose during the times mentioned was raw and chafed as a result of the rubbing and picking he gave it; that it was affected with blisters and pimples. It was shown that bacteria or germs were present on insured’s hands and handkerchief and about his nose at the times mentioned; that they were always present on his hands and nose; that he died from a carbuncular infection of the nose, which spread over his face and head; and it was also shown that such an infection constituted blood poisoning,or septicaemia, as those terms are used in the policy, and that such infection could arise only through the introduction of germs from the outside.

The evidence raised the issue as to whether carbuncular infection was present on insured’s hands and handkerchief and about his nose at the times above mentioned. The showings above mentioned aré not presumptions drawn from presumptions, as contended by appellee, but they are the ultimate facts, drawn as reasonable inferences from a group of facts and circumstances testified to by witnesses. In 22 Corpus Juris, p. 84, § 27, it is said: “It is permissible for a court or jury to draw several conclusions or presumptions of fact on the same circumstances, and, in order that presumption may be indulged, it is not necessary to believe that the thing presumed has been actually done, but it is sufficient if the evidence leads to a conclusion that it may have been done, and that its existence would be the solution of the difficulty arising from its nonexistence.”

We think the jury might have reasonably found from the evidence t'hat insured infected his nose by rubbing it and picking at it with his hands and handkerchief; that the carbuncular infection resulted from an external force, to wit, the rubbing and picking 'of the nose as above mentioned, rather than from natural causes. Dr. Duve testified that he had been for many years the family physician of Garrett and knew that his general health had been good, and, testifying further, he said:

“In the course of my practice I have had occasion to treat carbuncles and carbuncular infections, boils, and things like that a great number of times. In my experience I have noticed more carbuncular infections at the back of the neck and shoulders. I have never seen in my experience a carbuncular infection of the face. I will state that in my judgment and opinion a carbuncular infection of the face is of unusual and infrequent occurrence. My patients have had carbuncles, lots of them. My patients have had colds, and lots of them. None of their colds ever resulted in a carbuncular infection of the face. It is barely possible that a carbuncular infection, in the absence of an artificial abrasion, or opening in the skin, may be communicated to the underlying tissues through the hair shafts or sweat glands or mucus glands, or anything that way; it is barely possible, but hardly probable. * ⅜ *'
“Now, as to the most probable means of it being communicated, I will state the chances are it may be caused by a slight abrasion of the skin, or an inflamed area, whereby the germs will gain entrance into the skin through the skin, or through a hair shaft. I have said that could be done either way. The most probable way a carbuncular infection is communicated would be from an exterior force or trauma, for tbe reason that most cases are on tbe neck, where tbe sweatband, or collar button, probably irritates the skin and pores.
“Assuming that, a germ or germs of carbuncular infection are communicated through an abrasion of a traumatc nature in the skin, by force of rubbing, or by the fingers used in picking the nose, and that an infection results, where this condition exists it is probable that the abrasion and the infection occurred at the same time. I will state there would be more probability of infection from picking it with the fingers, or rubbing it, probably with a handkerchief that was not clean, than there would be in it coming through a hair shaft. The matter of force and rubbing applied to the area, germs being present, as to whether or not that would tend to drive the germs in, I will state, nature has thrown a wall around there to protect it, and the rubbing or pressure would have a tendency to spread the germs.
“In answer to the hypothetical question, ‘Assume as true that on the 7th day of January, 1926, Holland Taylor Garrett had a cold, with probably an inflammation of the sinus area, and that his nose was on that night' — the skin of the nose was found to be swollen, red and broken, and assume that by the 9th day of January there was at the lower edge of the nose a carbuncular infection, and assuming that during the time covered by the question that Holland Taylor Garrett had been rubbing his nose with his handkerchief and with his hand, and picking at it with his fingers; that in my opinion would cause the infection. Under the conditions as outlined in the question, assuming that to be true, the infection could have resulted from the rubbing of his nose with his hand and handkerchief, and from his having picked at his nose with his fingers.
“I remember the conditions that were assumed with reference to the existence of a cold, with the sinus inflamed, and the existence of a red, irritated, and broken condition of the skin of the nose, and now, assuming that, while the nose is in that condition, but before there is any infection of the nose, the area is rubbed with the hands, with the hand and a handkerchief, and picked at by the fingers, and later a. carbuncular infection of the nose at the lower extremity is definitely ascertained, I will then state, in my opinion, that the rubbing of the nose and the picking at it was a probable source of the infection. Assuming the conditions already stated with reference- to the cold, and with reference to the sinus being involved, and assuming that by the use of the hand and handkerchief, as has been mentioned, an abrasion or breaking- of the skin of the nose is caused, and subsequently, within a short time, a few days at most, a carbuncular infection is definitely ascertained,-1 will state in my opinion the means which caused the abrasion at the same time communicated the infection.
“I stated on cross-examination that rubbing with the hand or handkerchief over an abrasion of the skin is calculated to cause an infection, a' carbuncular infection, of the nose, and I will state, I mean by that that, where an infection results, it occurs probably as a result of the rubbing, probably as a result of rubbing with infected fingers or an infected handkerchief. I do not mean to say that in a usual or ordinary case of cold, where a place is inflamed, that a carbuncular infection would result. I said that in all my experience as a doctor treating colds that has never occurred. I say that infection does occur, and more probably the source of the infection would be by the rubbing of the hand or handkerchief over an open surface.’’

Dr. Wall testified that it would be more probable that the germs of infection would go through the covering of the nose by the impetus of rubbing.

Dr. Singleton testified that the cause of Garrett’s death was septic or blood poisoning 'from a carbuncular poisoning. Testifying further, he said:

“Assuming that this young man, Mr. Garrett, about the 7th day of January, 1926, had a cold, and that on that night, at least, his nose was irritated, and a break in the skin of the nose, and a condition where pimples were present, or cold blisters, and with his nose in that condition, he rubbed his nose with his handkerchief, and with his hand, and picked at. it, that could have been a means of communicating the infection which I later observed. My answer that such a condition could have been the source of the infection would assume there was present on his hand or handkerchief, or that area there, bacteria. Bacteria can be carried on a handkerchief, and they are always present on the hands. That form of bacteria which produced this infection is always present on the hands, and in the nose, and probably everywhere else about you.
“With the bacteria present, as I have just stated it is always, the use of the hands and handkerchief in rubbing an opening or abrasion in the skin would be reasonably calculated to inject the bacteria into the tissues; if you had bacteria on your hands or handkerchief, and it came in contact with an abrasion, you could reasonably expect it to affect a raw tissue.
“I stated th?it bacteria is always present on the hands. It is also about the nose, on the outside and on the inside, in your mouth and everywhere; bacteria is present everywhere, except where the Surface or other lining is covered. Now, with that in view, if you rubbed the surface, it would probably be'a means of injecting the bacteria through the covering into the inner tissue; if you would rub the surface, and the bacteria was on there, it probably would get in the tissues where it could grow, and if the surface had not been rubbed, and if that bacteria had not gotten through the surface, they probably would not grow.”

Whether the blood poisoning from which insured died was the result of'an external force, received through accidental means, or was the natural consequence of a pre-existing disease, was a question for the determination of the jury.

In the case of Bryant v. Continental Casualty Co., 107 Tex. 582, 182 S. W. 673, L. R. A. 1916E, 945, Ann. Cas. 1918A, 517, Chief Justice Phillips, of our Supreme Court, quotes with approval the definition of the term “accidental means,” as used in policies such as the one under consideration, made by the United States Supreme Court in United States Mutual Accident Association v. Barry, 131 U. S. 100, 9 S. Ct. 755, 33 L. Ed. 60, as follows: “The term ‘accidental’ was used in the policy in its ordinary, popular sense, as meaning ‘happening by chance; unexpectedly taking place; not according to the usual course of. things; or not as expected’ ; * * * that if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs, which produces the injury, then the injury has resulted through accidental means.”

In the Bryant Case the facts showed that the insured died from sunstroke, caused by exposure to the sun on a hot day while pursuing his usual avocation as collector of accounts in his ordinary way. Our Supreme Court in that case held the insured’s death was caused by “accidental means.”

In Robinson v. Ætna Life Insurance Co. (Tex. Com. App.) 276 S. W. 900, the term above mentioned is defined as meaning “happening by chance, unexpectedly taking place, not according to the usual course of things, or not as expected”; an event which takes place without the foresight or expectation of the person acted upon.

In Fort Worth Mutual Benevolent Association v. Miller (Tex. Civ. App.) 280 S. W. 338, it is said: “It may be said that the death of Mrs. Miller falls within the definitions from Words and Phrases and from Black’s Dictionary, above given, in that the thing or cause or agency which produced her death was the rupture of the blood vessel in her brain, and that, while her act in pushing the car was voluntary, the result was wholly unexpected. And this conclusion seems to accord with the decision of Chief Justice Phillips in the case of Bryant v. Continental Casualty Co., 182 S. W. 673, 107 Tex. 582, L. R. A. 1916E, 945, Ann. Cas. 1918A, 517. * * * While numerous authorities have been examined, and while we have had some difficulty in arriving at a determination, we have finally concluded that, under the authority of the Bryant and Barry Cases, supra, we must repudiate the contention here made, as in the Barry Case, that, because Mrs. Miller voluntarily engaged in the pushing of the car, and because there was nothing unintended or unusual in her acts, therefore her death does not come within the obligatory clauses under consideration. It may be said that the immediate cause of the death was the bursting of the blood vessel and not the pushing of the car; that the result was unintended and unexpected, and hence such as insured against. See, also, the cases of International Travelers’ Ass’n v. Branum (Tex. Civ. App.) 169 S. W. 389, and Robinson v. Ætna Life Ins. Co. (Tex. Com. App.) 276 S. W. 900, and cases therein cited.”

As supporting appellant’s contention we cite the following cases: Frances v. International Travelers’ Ass’n (Tex. Civ. App.) 260 S. W. 938; Horton v. Travelers’ Ins. Co., 45 Cal. App. 462, 187 P. 1070; Interstate Business Men’s Accident Ass’n v. Lewis (C. C. A.) 257 F. 241; Business Men’s Accident Ass’n v. Schiefelbusch (C. C. A.) 262 F. 354; Lewis v. Ocean Accident & Guarantee Corp., 224 N. Y. 18, 120 N. E. 56, 7 A. L. R. 1129; Townsend v. Commercial Ass’n, 231 N. Y. 148, 131 N. E. 871, 17 A. L. R. 1001; Caldwell v. Iowa State Traveling Men’s Ass’n, 156 Iowa, 327, 136 N. W. 678, and many other authorities cited in appellant’s brief.

In the Caldwell Case, last cited, it is said: “It has been repeatedly held that, in the absence of direct evidence on the subject, a presumption arises that the wound was not intentionally inflicted either by the assured or by another. This presumption is almost the equivalent of a presumption that the wound was inflicted through accidental means. The authorities, however, stop short of announcing the presumption in this later form. They do hold, however, that the presumption first stated is available to the plaintiff as' affirmative evidence, and that an inference may be drawn therefrom by the triers of fact that the wound was caused by accidental means as the only other alternative.”

By appellant’s fourth proposition it is insisted that the court erred in instructing a verdict for appellees, because there was evidence sufficient to sustain a verdict by the jury that insured died, directly, independent-' ly, and exclusively of all other causes, from blood poisoning or septicaemia, a contingency expressly insured against by article 6 of the policy, which reads as follows:

“Special Indemnities.
“Blood Poisoning — Septicaemia.
“Blood poisoning or septicaemia resulting directly from bodily injuries shall be deemed to be included in the said term bodily injuries.”

Appellant’s contention under this proposition is that, as the article mentioned is so prominently inserted in the policy, it should be held that blood poisoning or septicaemia, however incurred, or on whatever account, is a contingency expressly insured against, and signifies' a special indemnity, and that by such provision appellees intended that the insured should be led to believe that it provided a special indemnity against blood poisoning, regardless of how it occurred.

The insuring clause (the first clause) of the policy indemnifies “against loss resulting from bodily injuries effected directly, independently and exclusively of all other causes, through accidental means, * * * subject to the terms, provisions and limitations in this policy.”

By section 5 of article 11 of the policy it is provided: “The term ‘bodily injuries,’ whenever used in this policy, shall be understood to' be bodily injuries effected as described in the insuring clause.”

We are not inclined to agree with the contention of appellant last stated, but, in view of the conclusions reached by us relative to the right of appellant to have the cause submitted to the jury upon other issues above stated, it is unnecessary to discuss this contention. Having reached the conclusions •above expressed, it becomes our duty to reverse the judgment and remand the cause; ■and it is accordingly so ordered.

Reversed and remanded.