text:
    BROWN EXPRESS, Inc., v. HENDERSON.
    No. 10728.
    Court of Civil Appeals of Texas. San Antonio.
    June 12, 1940.
    Rehearing Denied Aug. 7, 1940.

      Abney & Whitelaw and Seabury, Taylor & Wagner, all of Brownsville, for appellant.
    Carter & Stiernberg, of Harlingen, for appellee.
   MURRAY, Justice.

Appellee, Dewey Henderson, instituted this suit against appellant, Brown Express, Inc., seeking to recover damages resulting from injuries sustained by him when a Chrysler car in which he was riding collided with a truck owned by Brown Express, Inc., and driven by its employee Arlis Cummings. The collision occurred on Highway No. 281, between Brownsville and San Benito, and near a filling station known as -the Oklahoma Filling Station.

The cause was submitted to a jury upon a number of special issues and upon their answers judgment was entered in favor of Dewey Henderson and against Brown Express, Inc., in the total sum of $19,069.70, from which judgment Brown Express, Inc., has prosecuted this appeal.

Appellant’s first complaint is that, over its objection, the witness Arlis Cummings was questioned as to whether or not, subsequent to the collision in which Henderson received his injuries, he had stated to certain named persons that he did not know what happened at the time of the collision, that he, the driver of appellant’s truck, had not had dinner on the day of the accident, and that he was conscious in the hospital the first night; and appellant further complains that when Cummings did not admit making these statements, the named witnesses were permitted to testify that he did in fact make such statements.

This testimony was offered for impeachment purposes and for these purposes it was admissible. Appellant contends that the statements were not res gestae. This is probably true, but where a witness has testified in a case and his impeachment is undertaken, by showing that he has made statements out of court which conflict with his testimony, such statement in order to be admissible need not be a res gestae statement. Jones on Evidence, 4th Ed., p. 1562, § 844, etc.

The evidence shows that Dewey Henderson was riding in a car driven by Lois Blocker and going in the direction of Brownsville, on Highway No. 281, when it collided with a truck belonging to Brown Express, Inc., and driven by Arlis Cummings and. traveling in the direction of Harlingen. The collision occurred on the left-hand or wrong side of the highway, so far as the truck was concerned. Arlis Cummings, who testified as a witness for appellant, explained his being on the wrong side of the road by stating that just as he was near a large. Coca Cola billboard a short distance from the Oklahoma Filling Station, a third car suddenly came out in front of him from behind the Coca Cola sign and caused him to swerve to the left and the collision followed immediately. There was much evidence tending to establish the fact that no car came out from behind the sign. Cummings testified that he had eaten his noonday meal shortly before the accident, and he was not conscious after the collision and did not remember making any statement that he had not eaten, and that he did not know what happened at the time of the accident. State Highway Patrolman Holly-field and Dr. Shaefer were called to the witness stand and testified that each talked to Cummings shortly after the accident, that he was conscious at that time and did make the statements denied by him. We are of the opinion that this was proper impeachment testimony. Gause-Ware Funeral Home v. McGinley, Tex.Civ.App., 21 S.W.2d 347.

Furthermore, the record shows that appellant did not object to this testimony because' no proper predicate had been laid for its introduction or that it was impeachment of a witness upon an immaterial matter, and. having failed to make these objections at the time the evidence was offered appellant will not now be permitted to raise these objections to the admissibility of this testimony. 45 Tex.Jur. 35; Galveston, H. & S. A. Ry. Co. v. Jackson, 93 Tex. 262, 54 S.W. 1023.

Appellant cites the case of Red Arrow Freight Lines v. Gravis, Tex.Civ.App., 84 S.W.2d 540, as sustaining his contention here. That case is not in point. There the admission or statement of the truck driver was offered not as impeachment testimony, but as original evidence. In the case at bar if the statements of Cummings liad been offered as original evidence they would not have been admissible, but where they are offered as impeaching evidence quite a different situation is presented.

Appellant’s fifth proposition is as follows : “In laying a predicate for the purpose of impeachment of a witness, it is improper, under the pretense of affecting the witness’ credibility, to propound questions without any attempt or pretense to establish the truthfulness of the matters suggested by such inquiry and thereby cast insinuations upon the witness as such questions thus propounded can serve but one purpose, and that is of creating in. the minds of the jury a prejudice against the witness.”

In the statement under this proposition is set out the question which was supposed to have been asked by counsel for appellee and the objection supposed'to have been made by counsel for appellant to the supposed question. The question is followed by the following reference: “(S. F. Vol. 1, pp. 2, 60-65).” A reference to Vol. 1 of the Statement of Facts reveals that no such question or objection is contained therein. There is no ■ testimony given by- Arlis Cummings in Vol. 1, and it is therefore clear that the reference must have been to Vol. 2, where the testimony of Arlis Cummings appears. On page 65 of Volume 2 of the Statement of Facts is found the objection set out in the statement, but it is evidently made 'to a different question than that set out in.the statement following the proposition. The record not supporting the statement, the ■ proposition cannot be here considered.

However, it does appear that counsel for appellee did ask Arlis Cummings a number of questions, some of which were answered without objection, and when all of these questions are taken together they practically cover the supposed question set forth in the statement. The substance of appellant’s objection is that these impeaching questions were asked in bad faith with no intention of later attempting to establish the truthfulness of the matters suggested by such inquiry. If we could consider the matter presented we would not sustain the proposition because we cannot agree that the questions were asked in bad faith.

Dr. Shaefer testified that about a week or so after the collision Cummings made the following statement to him: “He (Cummings) understood there was a woman had seen the collision — and by the way, it was at the Oklahoma Filling Station — there was a woman who had said she had seen a car come out from the side road ahead of him and caused him to go over to the left. He said he understood there was a woman had been found who would say she saw a car come into the road ahead of him.”

Dr. Shaefer further testified that Cummings told him the night following the wreck that he (Cummings) did not know how the collision happened.

In view of this testimony we cannot say that counsel for appellee acted in bad faith in inquiring about these matters, although the proof varies slightly from the statements supposed to have been in the question.

Appellant next complains that the burden of proof was not properly placed as to the issues submitted to the jury, because the court in the preliminary part of his charge used the following expressions:

“This case will be submitted to you upon special issues in the form of questions, which you will answer from all the evidence as you may find the facts to beand
“You will only consider the respective issues submitted to you and answer the same as herein directed according as you may find the fact or facts to be from the evidence admitted on the trial for your consideration.”

Appellant insists upon this contention notwithstanding the court framed each issue so as to .clearly indicate its own burden of proof and began each issue submitted, “Do you find from a preponderance of the evidence,” etc. We overrule this contention. Each issue having been framed so as to properly place the burden of proof and to show that an affirmative answer would have to be based upon a preponderance of the evidence, the jury should not have been misled by the preliminary instructions contained in the charge. McFadden Publications v. Wilson, Tex.Civ.App., 121 S.W.2d 430; Miller v. Wyrick, Tex.Civ.App., 96 S.W.2d 253; International-Great Northern Ry. Co. v. Lowry, Tex.Civ.App., 98 S.W.2d 383; Travelers Ins. Co. v. Noble, Tex.Civ.App., 129 S.W.2d 778.

Appellant’s seventh proposition is based upon, its ninth assignment of error. This assignment reads as follows: “The court erred in permitting the witness Shipley to testify over the objection of the defendant that if there had been a third car running along the road along with the truck at and immediately prior to the collision in question, he, the witness Shipley, would have seen the same.”

In its statement under this proposition, appellant complains of evidence given by the witness Peterson and not of evidence given by the witness Shipley. There is no assignment of error complaining of any similar evidence given by Peterson, nor was such complaint contained in appellant’s motion for a new trial. Appellant’s sixth proposition not being supported by an appropriate assignment of error cannot be considered by us. We must here pass upon the same questions as were called to the trial court’s attention in the motion for a new trial. 99 S.W.2d p. XXIX, Rules for the Courts of Civil Appeals, No. 24.

By its eighth proposition of law appellant contends that the court erred in not submitting issues to the jury inquiring whether or not the car in which Dewey Henderson was riding was being operated at a rate of speed in excess of forty-five miles per hour, and, if so, whether or not such negligence in so operating said car was the sole proximate cause of the collision. This proposition is based upon assignments of error Nos. 35 and 36. A reference to these assignments of error shows that no issue on sole proximate cause was requested. It will be recalled that Dewey Henderson was not driving the car, but Lois Blocker was the driver. The negligence of the driver would not necessarily be imputed to thp passenger; therefore, unless such negligence was the sole proximate cause of the collision it would be no defense to appellee’s cause of action. Appellant having failed to request an issue on sole proximate cause will not now be heard to complain because such an issue was not submitted to the jury.

Appellant next complains because in three separate issues the jury were asked in substance if the truck was on its left-hand side of the highway at the time of the collision, a fact which, according to appellant’s contention, was both admitted and conclusively established by the evidence. It is contended that this gave undue emphasis and prominence to the fact that the truck was on the wrong side of ■the road at the time of the accident, and that it amounts to a comment upon the weight of the evidence by the court.

Special issue No. 2a inquired as to whether or not Arlis Cummings operated the truck upon his left-hand side of the highway immediately prior to the accident. The jury answered this issue in the affirmative, thereby finding, in effect, that he was violating Section (A) of Article 801, Texas Penal Code, providing, among other things, that vehicles be driven upon the right-hand side of the highway.

Special issue No. 3a inquired as to whether or not Arlis Cummings,. immediately prior to the collision, drove the truck across to its own left side of the road directly in the path of the car in which appellee was riding, without signal or warning. This issue the jury answered “yes”, thereby finding that Arlis Cummings had violated Section (K) of Art. 801, Penal Code.

Special issue No. 4a inquired as to whether or not Arlis Cummings failed to give the car in which appellee was riding one-half of the road at the point where said cars met upon the highway. The jury answered this issue “yes,” thereby finding that Arlis Cummings violated Section (B), Art. 801, Penal Code.

The Legislature made subdivisions (A), (B) and (K) of Art. 801, Penal Code,' separate offenses. Appellee pleaded the violation of each of these sections and offered evidence tending to support the pleadings. It was not error for the trial court to submit an 'issue on each section. It is true that appellant objected to the submission of these issues because 'it was understood that appellant’s truck was on the left-hand side of the road at the time of the accident, but it also objected to the submission of these issues because there was no evidence upon which to base the issues. Under all the circumstances shown by the record, the trial court did not err in submitting these issues to the jury. Stevenson v. Wilson, Tex.Civ.App., 130 S.W.2d 317; Galveston Electric Co. v. Marangola, Tex.Civ.App., 273 S.W. 311; Rio Grande, E. P. & S. F. Ry. Co. v. Starnes, Tex.Civ.App., 185 S.W. 366; Blakesley v. Kircher, Tex.Civ.App., 26 S.W.2d 1091; McClelland v. Mounger, Tex.Civ.App., 107 S.W.2d 901.

Appellant next contends that the definition of emergency contained in the court’s charge was erroneous, in that it states the situation must arise suddenly without any fault on the part of the party confronted with such situation, etc., when it should have stated that the situation must arise suddenly without negligence, etc. We do not find it necessary to pass upon the question of the correctness of the definition as the jury having answered issue No. 6a “no” were not required to answer issue No. 6c, which was the issue inquiring about the emergency. Moore v. Norman, Tex.Civ.App., 137 S.W.2d 833; Leap v. Braziel, Tex.Com.App., 121 S.W.2d 334; International-Great Northern Ry. Co. v. Pence, Tex.Civ.App., 113 S.W.2d 206.

Appellant’s eleventh and twelfth and thirteenth propositions are without merit and are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    SUMMERS v. JEFFERSON STANDARD LIFE INS. CO.
    No. 10858.
    Court of Civil Appeals of Texas. San Antonio.
    June 26, 1940.
    Rehearing Denied Aug. 7, 1940.
    John L. Dodson, of Del Rio, for appellant.
    Henry, Bickett & Bickett, of San Antonio, for appellee.
   MURRAY, Justice.

This cause was instituted by Mrs. Bessie McDonald Summers against the Jefferson Standard Life Insurance Company to recover upon a certain policy of life insurance issued upon the life of Coy C. Summers, who died on September 17, 1939. The policy was for the principal sum of $1,500.

The premium on the policy was to be paid in monthly installments of $5.28 due on the 15th of each and every month. A grace period of one month (not less than thirty days) for the payment of premiums was provided by the policy. All premiums due and payable under the policy were made and receipts issued and delivered therefor up. to and including May 15, 1939.

The premium due on June 15th was not paid within the grace period and therefore the policy lapsed. On July 20, 1939, five days after the policy had lapsed and become forfeited, the cashier in the San Antonio office of the Jefferson Standard Life Insurance Company wrote a letter to Coy C. Summers, addressed to him at Del Rio, Texas, in which he stated:

“We are indeed sorry to inform you that your above policy has lapsed on our records for the non-payment of the monthly premium due June 15, 1939, in the amount of $5.28.
“We feel sure that this has been an oversight and that it was not your intention to permit this valuable contract to lapse.
“We are therefore enclosing a form which, if you will complete by answering the questions on the front page and return to us together with a settlement covering this premium, we will he glad to refer the matter of reinstating your policy to our Home Office for their attention.”

Afterwards the Company received a check, dated August 3, 1939, in the sum of $5.28, which was tendered in payment of the monthly installment of the premium which had become due on June 15, 1939, but there was no compliance with the request to furnish an application for reinstatement. Promptly after the receipt of the check dated August '3d, the Company wrote a second letter to Mr. Summers in which it stated: -

“Our Home Office has advised that inasmuch as the grace period for the June premium had expired before settlement was received, it is necessary for us to submit an Application for Reinstatement.
“We shall appreciate it very much if you will complete and sign the inclosed form on the front page, only, and return it to us at your earliest convenience.”

But still there was no compliance by Mr. Summers with, the Company’s request for an application for reinstatement. Thereafter, on or about August 29, 1939, there .was receiyed in the San Antonio office of the Insurance Company a check dated August 25, 1939, for $5.28. And the company promptly wrote Mr. Summers as follows:

“We notice that you failed to answer the questions on the Application for Reinstatement of your above numbered policy. We are returning it, herewith, and will appreciate your answering the questions on the front page and returning it to us.
“We are holding settlement offered in payment of the June and July monthly premiums of $5.28; however before we can send this in for the approval of our Home Office it will be necessary to have settlement in connection with the August 15, 1939, monthly premium, also, as the grace period for that premium will expire in a few days.”

Thereafter, two checks, one dated September 11th and the other dated September 13th, were sent to the San Antonio office of the Company, each of said checks in the sum of $5.28. The first two checks were cashed, but the last two were not, they were later tendered back to Mr. Summers,' however after his death. The proceeds of the first two checks were also tendered back.

On September 14, 1939, the Company wrote the following letter to Mr. Summers:

“We have received two checks for $5.28, each offered in connection with the June and July 15, 1939 monthly premium on your policy. This policy lapsed for the non-payment of- the June 15, 1939 monthly premium, and it is therefore necessary that we have the enclosed health certificate completed on the front page only, before we can consider reinstating this policy.
“If you will fill in and answer the questions on the front page of the enclosed application for reinstatement, sign it in front of a witness and return it to us, we will be glad to-submit this to our home office for their consideration. If the reinstatement is approved, the premiums on your policy would be paid to August 15 and the grace period for the payment of the August premium would expire on September 15. That will be tomorrow and wé suggest that you send us another check for $5.28 when you return the health certificate to us.”

There was also another letter, dated August 25th, sent by the Company to Mr. Summers wherein . the Company stated:

“Won’t you please complete the enclosed application for reinstatement in connection with your above numbered policy and send it to us.”

On September 17, 1939, Mr. Summers died as a result of typhoid fever after an illness lasting thirty-two days.

All of the above described letters were received by Mr. Summers.

It was the contention of the Insurance Company that the policy had lapsed for failure to pay the premium due on June 15, 1939, within the grace period. Mrs. Summers contended that the forfeiture had been waived by the Company’s acceptance of the checks dated August 3d and August 25, 1939.

The trial began to a jury, but at the close of the evidence the trial court instructed a verdict for the Insurance Company and Mrs. Bessie McDonald Summers brings this appeal.

It is quite clear that the unconditional acceptance of a past due premium by an insurance company will have the effect to waive the lapsing of an insurance policy and prevent its forfeiture. Bailey v. Sovereign Camp W. O. W., 116 Tex. 160, 286 S.W. 456, 288 S.W. 115, 47 A.L.R. 876; Calhoun v. The Maccabees, Tex.Com.App., 241 S.W. 101; Equitable Life Assurance Co. v. Ellis, 105 Tex. 526, 527, 147 S.W. 1152, 152 S.W. 625.

It is equally true that where a past due premium is retained upon the condition that the insured will furnish an application for reinstatement, together with a health certificate, it does not have the effect of waiving the lapsing of the policy and its forfeiture. New York Life Ins. Co. v. Scott, 23 Tex.Civ.App. 541, 57 S.W. 677; The Praetorians v. Krusz, Tex.Com.App., 58 S.W.2d 27; Grand United Order v. Jones, Tex.Civ.App., 62 S.W.2d 239.

The Jefferson Standard Life Insurance Company made it plain to Mr. Summers that his policy had lapsed for failure to pay the monthly premium due on June 15, 1939, within the grace period, and that before his policy could be reinstated it would be necessary for him to fill out and submit for approval at the Home 'Office an application for reinstatement. This Summers never did and therefore his policy was never reinstated.

The judgment is affirmed.


author: SPEER, Justice.

text:
    WICKETT v. WICKETT.
    No. 14173.
    Court of Civil Appeals of Texas. Fort Worth.
    July 12, 1940.
    Austin F. Anderson and Martin, Moore & Brewster, all of Fort Worth, for appellant.
    Rogers & Spurlock and Slay & Simon, all of Fort Worth, for appellee.
   SPEER, Justice.

This is an appeal by Kenneth L. Wickett from an interlocutory order of the District Court refusing to dissolve an injunction therétofore issued upon the application of the wife, Blanche Wickett. ■

The original injunction, which the court declined to dissolve, enjoined appellant from prosecuting a divorce proceeding then pending in Arkansas.

At a former day of this term', we advanced the case for hearing to June 14, 1940. On the date set for submission, 'appellant’s counsel filed in this court a motion showing that they had not previously represented the appellant, but that subsequent to the date of the judgment from which the-appeal was perfected, they were informed that appellant had prosecuted the divorce proceedings and obtained a decree of divorce, attaching a copy of the decree to the motion.

Counsel expressed their intention to no longer prosecute the appeal and asked that it be dismissed.

Appellee’s counsel filed a reply to the motion, indicating their willingness to the sustaining of the motion of appellant to dismiss the appeal, but asked that the order of dismissal not affect the judgment as entered by the District Court.

The motion of appellant to dismiss the appeal is therefore sustained. This order shall in no way affect the validity or force of the decree of injunction heretofore entered by the trial court, nor the judgment refusing to dissolve it, from which this appeal was perfected. The appeal is dismissed and the costs incurred are taxed against the appellant.


author: YOUNG, Justice.

text:
    CONNOR v. BUFORD.
    No. 12892.
    Court of Civil Appeals of Texas. Dallas.
    June 22, 1940.
    Rehearing Denied July 20, 1940.
    W. S. Bramlett, of Dallas, for appellant.'
    Guthrie & Guthrie, of Dallas, for appel-lee.
   YOUNG, Justice.

E. C. Connor, as defendant in the trial court, is here protesting a jury verdict and judgment against him of $1,234.48, plaintiff’s cause of action being for debt or amounts due for services rendered in remodeling, furnishing and managing certain premises as an apartment house. The case is on second appeal, tried again upon the same pleadings; and a more detailed statement of the facts, nature of claims and defenses thereto is shown in Buford v. Connor, Tex.Civ.App., 118 S.W.2d 451. Reference is thereto made for brevity. The special issues submitted and the jury answers on re-trial, omitting - unnecessary language, were: “(1) Do you find from a preponderance of the evidence that the plaintiff and defendant agreed that the plaintiff should continue the management of the property in question from Oct. 1, 1935 to April 1, 1936, and that the plaintiff was to receive therefor 10% of the gross receipts for such property during such period, in addition to the free'use of an apartment for such time? Answer: Yes. (2) Do you find from a preponderance of the evidence that the plaintiff, on or about the 16th day of March, 1936, told the defendant to secure someone else to manage the apartment? Answer No. (3) What do you find from a preponderance of the evidence would have been one-half of the net profits, if any, in the operation of the apartment in question, under the plaintiff’s management, from April 1, 1936 to Nov. 29, 1936 ? Answer: $400.00. (4) What do you find from a preponderance of the evidence was the reasonable value per month of an apartment, such as Mrs. Buford occupied in the property at 2304 McKinney Ave. from May 9, 1936 up to Nov. 29, 1936 ? Answer $42.50. (5) Do you find from a preponderance of the evidence that on or about Oct. 8, 1935, plaintiff and defendant entered into an agreement, whereby the respective claims of the parties against each other were settled as of that date? Answer No. (6) What do you find from a preponderance of the evidence would reasonably compensate Mrs. Buford for her services in remodeling, furnishing and managing the property in question from August 1934 to Oct. 1, 1935 less the sum of $100.00 which it is admitted has already been paid to her? Answer: $500.00.”

From these findings, the court determined that recovery should be in the above amount, after deducting $14.86 which, according to the decree, plaintiff admitted to have had on hand belonging to defendant. As thus rendered, the total judgment of $1,234.48 is composed of the following items: $70 under Issue No. 1, being 10% of the gross receipts from October 1, 1935, to April 1, 1936; $400 under Issue 3, being one-half of the net profits from operation of the property between April 1, 1936, and November 29, 1936; $283.34 under Issue 4, being value of the apartment plaintiff would have occupied in the property from May 9, 1936; and $500 under Issue 6, for services rendered from August, 1934, to October, 1935. Only a general demurrer was interposed to plaintiff’s petition, followed by general denial and special answer, admitting that plaintiff had undertaken the work of repairing and converting the property in question into an apartment house, at an expense of around $3,500, paid by defendant, for which he had, at all times, expected to pay reasonable compensation; plaintiff then occupying the house as manager, to October, 1935, when a settlement was made; that about such time, plaintiff was indebted to him, in joint account losses on the stock market, for $1,001.55, and defendant canceled this debt in return for plaintiff’s release of all claims for services to such date; the settlement contemplating that plaintiff would have free use of one apartment to April 1, 1936, but without other compensation. That in March, 1936, the parties agreed that plaintiff should continue the management after April 1, and receive one-half the net profits realized from the apartment, but, before the latter date, she requested a release from such agreement, whereupon defendant made other arrangements relative to the apartment’s operation.

No objections were made to the court’s charge or to the issues submitted, and in defendant’s amended motion for new trial, the principal grounds of error were: (1) That plaintiff’s testimony on net earnings of the property during the Centennial was erroneously admitted, no qualification on her part being shown, the statements objected to thereby becoming hearsay and mere conclusions; (2) jury answer to Issue 1, though raised by pleading, was not supported by any evidence of an agreement by defendant to pay 10% of gross receipts; (3) the amounts fixed by the jury, in answering Issues 3, 4 and 6, were manifestly too large, considering the evidence; were not sustained thereby; were excessive, arbitrary figures, resulting from passion and prejudice; that Issue 4 also involved an improper measure of damages. Jury misconduct was alleged, but not made the basis of any assignments.

Appellant’s counsel did not participate in the trial of the cause, which may account for the inclusion in his brief of many propositions, supplemental to those just mentioned. Such additional points may be summarized, however, under four heads, viz.: (a) Plaintiff’s judgment was not final, in that same did not dispose of an alternative plea for $1,000 (even though no evidence was introduced, nor issue requested thereon) ; (b) no item of recovery, as fixed by the jury and allowed by the court, was supported by appropriate pleading; (c) admission of improper evidence and voluntary statements made by plaintiff, highly prejudicial to defendant; (d) certain improper statements of plaintiff’s counsel in the presence of the jury, and in final argument, justifying a reversal.

The condition of this record being as above detailed, and no statutory objections being taken to the court’s charge, only propositions complaining of insufficiency of evidence to support the judgment can be considered; Electric Express & Baggage Co. v. Ablon, 110 Tex. 235, 218 S.W. 1030; or of “error * * * apparent upon the face of the record”; Art. 1837, R.C. Appellant clearly recognizes the situation to be as just stated, by designating his assignments, on the whole, as fundamental points of law; and in investigating same, the Appellate Court is generally confined to the pleading, the jury verdict and the judgment; Clement v. First National Bank, 115 Tex. 342, 282 S.W. 558; not being required to search the statement-of facts for fundamental error; Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S.W. 533, 124 S.W. 85.

The judgment appealed from is a final one, and predicated on the ultimate issues raised by both pleading and evidence. Plaintiff’s alternative plea was not on trial and was effectually disposed of by the award upon her principal cause of action; Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161. Also, plaintiff’s said petition, together with the admitted matters of defendant’s answer, constituted sufficient pleading and ground for the jury issues and answers as comprehended in said final rendition of the court.

It is contended that the item of $283.84 is based upon an improper measure of damages, being the total recovery under Issue 4 of the reasonable value of an apartment in the property, such as plaintiff would have occupied during the 1936 Centennial. period, at $42.50 per month. If Mrs. Buford was entitled to the use of such quarters for the interval referred to, and was deprived thereof, we see no reason why the reasonable value of the particular living space does not properly measure the extent of her damage in this respect. It became part consideration for her management over the period, additional to the agreement for division of net profits. No effort was made by pleading or proof to show that plaintiff did not expend at least that amount per month for another place of abode. “If the defendant wishes to contend that the plaintiff might have prevented or minimized the damage for which recovery is sought, he must set up the defense by special averments.” 13 Tex.Jur., sec. 187, p. 335.

Further propositions deal with assertedly erroneous admission of testimony, alleged prejudicial remarks and argument of plaintiff’s counsel, and of many letters written by defendant, not material to the jury issues. These matters do not come within the purview of fundamental error, tested by the instant facts; American Law Book Co. v. Carter, Tex.Civ.App., 275 S.W. 510; not being such error as lies at the base and foundation of plaintiff’s proceedings and judgment. Houston Oil Co. v. Kimball, supra. Nevertheless, we have thoroughly considered all assignments and propositions, whether specifically discussed or not, and same are severally overruled. Appellant’s complaint that Issue 6 was multifarious was waived, of course, byr not being seasonably objected to; Art. 2185. His one bill of exceptions in the transcript is that of improper argument on part of appellee’s counsel, to which the trial court promptly sustained objection, instructing the jury to disregard the matter. Mrs. Buford’s statement in supplemental petition, concerning her receipts and expenses for the last two months of her tenure is not altogether clear, in view of her other testimony. Appellant offered no proof entitling him to a larger credit than the balance of $14.86 shown by said statement, nor was any issue requested on the point. The court deducted this amount from plaintiff’s total recovery, finding that it was admittedly on hand, belonging to the defendant. Under this record, we are not disposed to disturb such finding, objection thereto being first made on appeal. The judgment of the trial court must be affirmed.

Affirmed.


author: WALTPIALL, Justice.

text:
    TUNSTILL v. PACIFIC MID-CONTINENT CORPORATION.
    No. 3970.
    Court of Civil Appeals of Texas. El Paso.
    July 11, 1940.

      G. G. Tunstill and Richard Owens, both of Fort Worth, for appellant.
    Hubbard & Kerr, of Pecos, for appellee.
   WALTPIALL, Justice.

In this appeal appellant, Tunstill, complains of the action of the District Court of Reeves County in overruling his plea of privilege to be sued in Tarrant County, the county of his residence.

Appellee, Pacific Mid-Continent Corporation, a foreign corporation, having a permit to do business in the State of Texas, brought this suit, as plaintiff, against appellant, W. A. Tunstill, as defendant, to remove cloud from its title to the oil and gas lease on land in Reeves County, Texas, and fully described in its petition as covering the north half of section 10, block 56, township 2 north, Texas & Pacific Railway Company survey, Reeves County, Texas, containing 320 acres, more or less; the lease alleged to be for a primary term of five years, and vested in the lessee and assigns the exclusive right to go upon said premises and develop the same and mine and operate for oil and gas; appellee also sued for actual and exemplary damages in the several amounts specified, for costs and for relief as to which it may be entitled. It is alleged that the lease emanated from E. B. Busby, lessee of the State, and came to appellee from Busby by proper mesne conveyances; that appellee is the owner and holder of said lease which was, at all times complained of, in force and effect; that appellee had the exclusive right to develop the lease and to drill wells for oil and gas thereon, and to such depths as appellee deemed expedient, without interference upon the part of appellant.

That, acting under the terms of the lease, appellee, on July 30, 1938, spudded a well for oil and gas on said lease and drilled same to a depth of 3,315 feet, to which depth neither oil nor gas in commercial quantities was discovered in said well.

On April 1, 1939, appellee entered into a written agreement with Tide Water Association Oil Company, a corporation, whereby said Company agreed with ap-pellee to deepen said well to a depth of 3,342 feet and so much deeper as said Company may desire; that in pursuance of said agreement Tide Water Association immediately began deepening said well to a depth of 3,556 feet until April 6, 1939. The petition then alleged the following, which statement we think to copy here: “The defendant (appellant) conversed with said Company’s authorized agent, servant and employee, W. E. Thompson, at Midland, County of Midland, State of Texas; that in said conversation the defendant then and there gave notice to the Company that he was the landowner of the aforesaid land, upon which the Company was then and there deepening the aforesaid oil well, and that he, the defendant herein, in a threat-' ening manner and- tone of voice, had an agreement in writing with plaintiff whereby plaintiff agreed that in deepening of said well it would not deepen said well to a greater depth than fifty feet below the depth of 3,315 feet, and that in the event that said Company deepened said well tor a greater depth, and by so doing allowed any water to infiltrate into said w-ell or formation or injured said well in any particular, that then and. in that event he would immediately institute suit against said Company for a large sum of damages, and that he would hold the Company liable for trespass and for the ruination of said property,, and that the Company had no right whatever to be there upon said ground without his, the defendant’s, consent first had and obtained, which he'had at no time given said Company; and that if he, the said W. E. Thompson, or the Company, did not know about said written agreement with said plaintiff with reference to the deepening of said fifty feet, that he was then and there placing them upon notice with reference thereto.”

Plaintiff then alleges that prior to the above conversation the Tide Water Association Oil Company had deepened said well to'a depth of 3,556 feet, and had made its election, and had so notified the plaintiff, that it would deepen said oil well to at least a depth of 3,750 feet unless oil, gas or water was encountered at a less depth, and that at said time it was then deepening said well; that because of said threats, claims, demands and statements made by defendant, and solely by reason thereof, the said Company advised plaintiff that it would not so deepen the well, and that it was then revoking and rescinding its election to deepen the well to 3,750 feet, but would, in place and stead, immediately plug the well hack to 3,315 feet.

Plaintiff’s petition then alleges that all of the aforesaid statements, threats and claims made by defendant to Thompson, as copied above, were false and untrue, and were known to be false and untrue by defendant, and were then maliciously and wantonly made with intent, purpose and design to intimidate said Company and to cause said Company to cease and desist its deepening operations; and that the Company did cease and desist from any further deepening operations on said property in furtherance of said contract between said Company and plaintiff, to plaintiff’s damage as stated.

Plaintiff alleged the nature and amount of its several items of damages, which we omit to state.

Plaintiff pleaded in detail and at much length other facts not necessary to state at length here. In substance, pleaded that by the terms of the agreement of April 1, 1939, it was within the option and election of the Company as to what depth it would deepen said well, but that it was the mutual desire and intention of the Company and plaintiff to deepen the well to such depth as to discover and develop oil or gas in commercial quantities, and that but for said acts of defendant the Company would have continued deepening the well; alleged that defendant did not have any rights in said oil and gas lease, except to receive one-sixteenth of the oil and gas produced as royalty; that by reason of defendant’s conversation with Thompson defendant has cast a cloud on plaintiff’s title to the oil and gas lease, and that through and by reason of said conversation defendant’s “said acts constituted trespass on plaintiff’s said property, to-wit, the said well on said land, to plaintiff’s great damage as hereinbefore alleged; that by reason of said trespass on said property so committed by the defendant, and the defendant’s assumption of management and control of the drilling of plaintiff’s said well, defendant has slandered the title of plaintiff’s said lease and his fee title to the oil and gas in and under said land.”

Appellant’s plea of privilege to be sued in Tarrant County is in the usual form of such pleas, and is sufficient to tender the issue of venue.

Appellee, in answer to the plea, filed its controverting affidavit, in which it refers to its original petition and the facts therein alleged, the execution and delivery of the oil and gas lease on the land involved, and the rights asserted therein and by said lease vested in appellee and his assigns, and that by proper transfers appellee is now, and at all times has been, the owner of said property and of the exclusive right therein given to develop the property and to drill wells thereon for oil and gas to such depths as appellee might deem expedient, without interference upon the part of appellant.

Appellee then alleges, substantially as in the petition, that about April 6, 1939, appellant unlawfully interfered with appel-lee in the enjoyment of the exclusive right granted under said oil and gas lease and its mesne assignments and transfers, and interfered with the appellee’s operation of said lease, and by the acts of appellant, as alleged in the petition, unlawfully cast a cloud upon appellee’s title to the oil and gas leasehold herein involved and damaged appellee, “all as is more fully shown by appellee’s original petition, which said original petition and the allegations thereof are here specially referred to and herein adopted, and by this controverting plea appellee adopts the allegations of said original petition and makes the same a part hereof for all purposes, and appellee verifies the facts alleged in said petition herein filed, and says that the same are true and correct.”

The controverting plea alleges that this is a suit to recover damages for clouding title and to remove an incumbrance upon title to land and to remove cloud from title and to quiet title of this appellee to the oil and gas leasehold hereinbefore described, which said leasehold is situated in Reeves County, Texas.

The controverting plea, continuing, alleges : “Appellee (plaintiff) further says that, as shown by the petition heretofore filed herein and adopted and made a part of this controverting plea, this is a suit to recover damages for and based upon a trespass against real property situated in Reeves County, Texas, and for resulting damages for unlawful interference with the exercise of the rights and privileges appurtenant to said real properties therein described.”

Appellant offered no evidence on the hearing of the plea of privilege.

Appellee showed the location of the land involved to be in Reeves County.

W. E. Thompson, a witness for appellee, testified: Lived in Midland, Texas; was district land man for the Tide Water Association Oil Company, and was at the times referred to; his employer Company took over and was deepening a well that was at the time referred to being drilled; on April 6, (1939) “we stopped drilling”; witness had a long distance call that morning from Mr. Tunstill in Fort Worth; the man that was talking over the telephone asked “what we were doing with the well,” and witness, replying, said, “Drilling it”; the man talking said, “The well on my land in Reeves County?” Witness, replying, said, “We are drilling it deeper”; he said, “What are you going to do with show above?” Witness said, “I don’t know, it wasn’t a commercial show, I didn’t think, and we are going to drill on down.” “He said, T am calling to tell you if you drill the well deeper and ruin the upper well, I will institute suit,’ and I told him that I didn’t know anything about law, or anything like that, but that was the first time a lessor ever told us what we could do with a well that we took over to drill.” Witness, further testifying, said: “In the conversation he (Tun-still) said: ‘If you take that well into water and ruin that upper show, why, I am going to institute suit against you.’ ”

Witness said he got in touch with the production superintendent and told him to shut the well down, and “we stopped drilling it and.plugged to 3,315, I think.” Witness identified a copy of a written contract his Company had with appellee to deepen the well, and said that but for the conversation he had with Tunstill, he would, under the contract, have deepened the well.

Appellee offered its lease to the land in controversy in evidence; also appellee’s original petition, and the agreement between appellee and the Tide Water Association Oil Company to deepen the well, and other instruments made exhibits in the case, which we think we need not refer to.

The court, after hearing the evidence, overruled appellant’s plea of privilege, and appellant duly perfected this appeal.

Appellant submits several assignments of error, and refers to appellee’s petition claiming venue of the suit in Reeves County on the ground that the suit was to remove a cloud on the title to real estate, and that the suit involved a trespass to land.

Appellee in its brief said: “We believe there is but one question herein presented to be decided by this Court, and that is whether the acts (of appellant) complained of constitute a trespass in Reeves County, Texas, under subdivision 9 of Article 1995. So believing we present counter propositions” as indicated.

We, therefore, will consider on this appeal appellant’s assignments relating to the issue of trespass only.

The identity of appellant by the witness W. E. Thompson as the person who called him at Midland, Texas, over long distance telephone from Fort Worth, Texas, and had the conversation with the witness detailed above, was established with reasonable certainty we think. Such identity was an issue of fact, and was necessarily determined by the trial court.

The issue for determination by this court upon the plea of privilege and the controverting affidavit being whether or not the evidence shows a trespass upon the property in Reeves County. The issue of title to the property was incidentally involved only, and we think the admission, over objection, in evidence of the deed records showing the copies of the oil and gas lease and the several assignments of the lease from Busby to appellee does not show reversible error.

We are not discussing the issue of removing cloud from title on real estate.

The only issue we think necessary to discuss is whether the telephone conversation between appellant and Thompson, detailed in the above statement of the evidence of Thompson, shows a trespass by appellant on the land in Reeves County, the evidence not showing a physical invasion of the property by appellant.

In discussing the question, and in stating our view of the question presented, we will assume that appellee, through its oil and gas lease, had a right to drill the well for oil and gas on the land, and that by reason of what appellant said to Thompson, was thereby prevented and interrupted and did not drill further on the well, but abandoned further drilling and plugged the well back to what appellant stated it should be.

It has been said that a trespass within the meaning of subdivision 9 of Revised Civil Statutes, Article 1995, includes injuries to persons or property resulting from wrongful acts, either wilfully inflicted or the result of affirmative, active negligence upon the part of the wrongdoer (Mays v. Smith, Tex.Civ.App., 95 S.W.2d 1342; Coleman v. White, Tex.Civ.App., 95 S.W.2d 1018; and cases referred to under 13, par. 22, 43 Tex.Jur. p. 235), as distinguished from injuries that are the result of a mere omission of duty.

The acts of appellant complained of here might be a trespass on the right of appellee to carry out its contract to deepen the well on the land, but not on the land itself. Appellant threatened suit if the well was deepened; the threat caused the work to be discontinued.

When the threat was made appellant was in Tarrant County, and Thompson, to whom the threat was made, was in Midland County. The whole conversation, including the threat, had its application and effect upon appellee’s right to dig the well on the land in Reeves County. Appellant, at the time of the conversation, was not in Reeves County.

To sustain venue in a county other than that of appellant’s residence in the action based on trespass on land, the plain-’ tiff (appellee here) must show that the act complained of was committed in the county where the suit is pending, in this instance Reeves County, and that the act was of such a nature as to constitute a trespass. Waco Cotton Oil Mill v. Walker, Tex.Civ.App., 103 S.W.2d 1071; Jarvis-Tull & Co. v. Williams, Tex.Civ.App., 114 S.W.2d 1218; Lee v. Caldwell, Tex.Civ.App., 125 S.W.2d 619, in which cases it was said that proof of the fact of the commission of the trespass is as essential as proof of the place where it was committed.

In general, trespass on realty is an unlawful entry upon another’s possession and with force. 63 C.J. 893, par. 11. The act causing injury to the realty of another, whether directly or indirectly, is a trespass. But to sustain the venue by the terms of the invoked exception, it must be shown that such alleged trespass took place in Reeves County.

We have concluded that under the evidence and the facts as pleaded, the District Court of Reeves County did not have jurisdiction to try the case under subdivision 9 of Article 1995 of the Revised Civil Statutes, and that the court was in error in overruling appellant’s plea of privilege.

The case is reversed and remanded with direction that the case be transferred to the District Court of Tarrant County for trial on the merits.


author: JACKSON, Chief Justice.

text:
    MURPHY v. BAIN.
    No. 5186.
    Court of Civil Appeals of Texas. Amarillo.
    July 1, 1940.

      Joe Harlan and Shannon, Ochsner & Little, all of Amarillo, for appellant.
    R. E. McLaughlin, of Dumas, and Art Schlofman, of Dalhart, for appellee.
   JACKSON, Chief Justice.

The appellant, Bob Murphy, instituted this suit in the County Court of Moore County against H. T. Bain, appellee, to recover title and possession of certain household furniture, or, in the alternative, the value thereof.

He alleged that he was the owner of the furniture, that appellee was withholding from him its possession and had converted it to his own use and benefit. He prayed judgment for the furniture or' the value thereof which he alleged was $201. He máde application for and obtained a writ of sequestration which was levied on the furniture by the sheriff of Moore County on March 29, 1939..

The appellee, H. T. Bain, as disclosed by appellee’s “amended answer” copied in the transcript, answered by general demurrer and general denial. In a cross-action contained in the amended answer he pleaded that appellant had wrongfully, maliciously and without probable cause therefor secured the issuance of a writ of sequestration and had the furniture sequestered and as a result he suffered $100 damages, the loss of the use of the furniture, $300 damages to his reputation and credit, $9 damages for doctor’s bill incurred for his wife who became ill when-appellant came to the house, claimed the furniture and later had the writ issued and levied, sought two items amounting to $55 attorney’s fees and claimed by reason of appellant’s acts and conduct he had “been damaged in the total sum of $114 as actual damages” and had suffered exemplary damages in the sum of $595 and expended the" attorney’s fee. In his prayer he sought to “recover on his cross-action and counter claim his actual damages of $314.00” and also attorney’s fees and $595 exemplary damages.

In • response to special issues submitted by the court the jury found in effect that the appellant had given the furniture involved to Mary Hamilton; that the writ of sequestration was sued out wrongfully and without probable cause and that the ap’pellee¡ H. T. Bain, had suffered actual damages in the sum of $300. No issue on exemplary damages was submitted to the jury. On these findings the court rendered judgment in behalf of appellee for the furniture and for the sum of $300 actual damages, from which judgment this appeal is prosecuted.

The record indicates that Mary Hamilton had acquired the property and sold it to the appelle.e.

The appellant presents as error the action of the court in rendering judgment against him for the sum of $300 actual damages on the cross-action because he says appellee alleged that he had sustained actual damages in the sum of only $114 and prayed to recover said amount as such damages.

The trial court places a certificate in the transcript in which he designates certain interlineations which he permitted the ap-pellee to make in the answer and cross-action during the trial of the case and then certifies that:

“I have to day inspected Defendant’s Amended Answer and have seen that in each instance the figure ‘$114.00’ has been changed to read ‘$314.00’ and the figure ‘$795.00’ has been changed to read ‘$595.00’. Such changes were made without my consent and order and to day is the first knowledge or notice that I have had of said changes. I do not know when such changes were made, but do know that no request was made for such changes prior to the time the jury returned its verdict nor since said time.
“I make this certificate to accompany the record in this Cause in the event of an appeal.
“Dated this 25th day of August, A. D. 1939.”

The trial court ordered the original “amended answer” of appellee forwarded with the record to this court and it is before us for examination. An inspection of this “amended answer” and cross-action, in our opinion, supports the statements contained in the certificate of the trial judge.

It is elementary that if the pleadings do not support the judgment it will be reversed since facts not alleged, though proved, can form no basis for judicial action. Cooper v. Loughlin, 75 Tex. 524, 13 S.W. 37; 25 Tex.Jur. 478, para. 11; Article 2211, Vernon’s Annotated Civil Statutes.

We think it obvious that under the allegation for actual damages and the prayer in the “amended answer” before the unauthorized interlineations were made therein the appellee was in no event entitled to a judgment for actual damages exceeding $114 with interest. We are also of the opinion that since his allegation of actual damages as copied in the transcript was but for $114 that his recovery for actual damages should have been limited to that amount notwithstanding his prayer was to recover $314 actual damages for the reason that while the prayer may be considered in construing the pleading, it is subordinate to the allegations of facts. Milliken v. Smoot, 64 Tex. 171; Hughes v. McDonald, Land Com’r, et al., Tex.Civ.App., 122 S.W.2d 366; 33 Tex.Jur. 466; Clem Hinds v. E. R. Biggs, Tex.Civ.App., 142 S.W.2d 902.

The statutes of Texas, the rules and the decisions of the courts are very liberal regarding the procedure required for amending pleadings. Article 2001, Vernon’s Annotated Texas Civil Statutes. In this case court was in session and manifestly it was the duty of appellee, if he desired to file an amendment, to secure leave to do so. Evidently he knew that his pleadings were not sufficient to support a judgment for $300 actual damages and if he had made a sufficient showing in an application therefor the court would doubtless háve granted him leave to amend under section 3, article 2001. Rea et al. v. Johnson et al., Tex.Civ.App., 270 S.W. 1077.

In 33 Tex.Jur. 495, para. 71, the author says: “The wording of the statute imports, that only in vacation may an amended pleading be filed without leave. Leave is required if the court is in session, although the petition was not returnable until the next succeeding term.”

In the same volume, page 505, para. 78, the author says: “Accordingly we find that while parties have no right to amend or supplement their pleadings after trial of the case, yet the court has power to allow amendments in his discretion after the testimony has been closed, or even after verdict, provided that the amendment is made for the purpose of sustaining the verdict, does not alter the issues, and was treated by the parties themselves as being included in the case which the plaintiff had to establish and the defendant had to meet.”

See also Milan et al. v. Williams, District Judge, 119 Tex. 60, 24 S.W.2d 391; Southern Enterprises, Inc. of Texas v. Marek, Tex.Civ.App., 68 S.W.2d 384.

The discretion of the court was not invoked and hence not exercised in the instant case.

In our opinion the record shows conclusively that after the trial was had and the verdict had been returned some one made the changes in the allegation and prayer of the cross-action without -leave or knowledge of the court and without the consent of or notice to appellant and that no approval or acquiescence in such changes was made by appellant or by the court. There is no law permitting an amendment to pleadings on file in court by making interlineations therein and certainly there is no authority for so doing without first obtaining leave of the court.

We have found no authority passing on a situation such as confronts us but inter-lineations made in this amended answer for the purpose of supporting a judgment for actual damages in the sum of $300 are in principle we think analogous to the law controlling alterations of an instrument.

In 2 Am.Jur. 608, para. 16, the author says: “A material alteration of an instrument by a party thereto will vitiate it, though made with no fraudulent intent whatever and with an entirely honest motive. The law holds the instrument void not because the thing done is actual fraud, but because a contrary rule would open the door for fraud, and because the alteration changes the legal identity of the paper and causes it to speak a language differing in legal effect from that which it originally spoke.”

See also 2 Tex.Jur. page 963, para. 3, page 702, para. 11.

This assignment we sustain.

The appellant challenges as error the action of the court in refusing to direct a verdict in his behalf on the issue of actual damages because he contends the testimony did not warrant the finding of the jury nor the judgment of the court for such damages. A careful study of the record convinces uS that the testimony is insufficient to authorize a finding of damages for the loss of the use of the furniture since appellee filed a replevy bond and was permitted by the sheriff to retain the possession of the property and was not deprived of the use thereof, and insufficient to support the allegation that appellee suf-.fered damages to his reputation and credit in the sum of $300, or any other amount. However, on the finding of the jury supported by the testimony that the sequestration was wrongful the appellee would ■ be entitled to recover at least nominal damages. 13 Tex.Jur. 70, para. 4.

The judgment is reversed and the cause remanded.


author: PRICE, Chief Justice.

text:
    HENDRICKS et al. v. SWIFT et al.
    No. 4031.
    Court of Civil Appeals of Texas. El Paso.
    July 11, 1940.

      Clyde E. Thomas; of Big Spring, and John L. Fowler, of Odessa, for appellants.
    Whitaker, Perkins & Turpin, of Midland, for appellees.
   PRICE, Chief Justice.

Appellees move herein to dismiss the appeal on the ground there is no jurisdiction, in that the judgment appealed from is not a final judgment.

The case originated in the District Court of Ecfor County. Appellees sued to recover the title and possession of a certain motor vehicle described as a 1939 4-Door Plymouth Sedan, or, in the alternative, to recover the sum of $916, the alleged value of said sedan. Appellants (defendants below) replied by general exception, special exceptions, general denial, and special pleas. The court heard and overruled such general and special exceptions, and in the order evidencing this action is embodied an exception on behalf of appellants. The trial was to a jury, and evidently took place April 2, 1940. On April 2, 1940, appellants filed what is denominated as a demurrer to plaintiffs’ evidence. The record does not show that the parties joined issue on this demurrer. Endorsed on the motion is a statement by the trial court that same was overruled.

At the close of all the evidence appellants moved for an instructed verdict. This was refused, as evidenced by the judge’s signature on the motions.

The case was submitted to the jury on special issues on April 2, 1940. There is no verdict in the record, but we presume the jury failed to agree and were discharged by the court.

On April 6, 1940, defendants filed motion for judgment, and on the same day the court rendered judgment overruling same, which was entered in the minutes, and in which there is embodied an exception to the action of the court and notice of appeal.

It will be noted that the only two orders recorded in the minutes was the order overruling the general and special exceptions of defendants and the order overruling defendants’ motion for judgment.

Article 2249, R.S., Vernon’s Ann. Civ.St. art. 2249, provides in general as to the jurisdiction of this court over appeals, and is as follows: “An appeal or Writ of Error may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases, and from every final judgment in the county court in civil cases of which the county court has original jurisdiction, and from every final judgment of the county court in civil cases in which the court has appellate jurisdiction, where the judgment or amount in controversy exceeds one hundred dollars exclusive of interest and costs.”

We take it that, unless specially provided by statute, this court has appellate jurisdiction only where the trial court has entered a final judgment.

This case does not come within the special jurisdiction conferred as to interlocutory orders, etc.

Generally speaking, a final judgment is a judgment deciding the issues raised by the pleadings of the parties. Linn v. Arambould, S5 Tex. 611, 616.

Clearly, an order overruling a general exception or special exception is not such a judgment; an order refusing to instruct a jury in favor of one party or the other is not such a final judgment; an order refusing to enter judgment is not a final judgment.

There is no final judgment here, and we are without jurisdiction. The orders entered here neither grant nor refuse the relief sought by plcjntiff.

It is ordered that the motion be sustained, and that the appeal be dismissed in accordance therewith.


author: HALL, Justice.

text:
    TEXAS CO. et al. v. FOSHEE et al.
    No. 5537.
    Court of Civil Appeals of Texas. Texarkana.
    June 24, 1940.
    Rehearing Denied July 11, 1940.
    H. R. Wilson, of Houston, Hurst, Leak & Burke, Robert E. Mitchell, and B. Reagan McLemore, all of Longview, Gordon Simpson, of Tyler, and Wm. K. Hall, of Ft. Worth, for appellants.
    Wynne & Wynne, Taylor & Storey, and Lacy, Price & Williams, all of Long-view, and P. G. McElwee, of Houston, for appellees.
   HALL, Justice.

This is a suit in trespass to try title brought by A. B. Foshee and others claiming under an oil and gas lease and A. H. Tubbs and wife claiming to own the fee against the Texas Company and numerous other persons for title and possession of a small tract of land, a part of the Carleton Survey in Gregg County, lying between the Longview and " Tyler highway as located in 1911 and the same highway as relocated in 1930.

Appellants, answered by plea in abatement, general denial, plea of not guilty, and also claimed title to said minerals under the various statutes of limitation. In addition appellants sought compensation for the value of the oil run from the well located on said land. Judgment was for appellees upon the verdict of the jury.

Appellants’ eleventh proposition is: “Since the description in the 'Katherine Ryan lease places the south line of the land therein described in the center of the Longview-Tyler road and accurately and precisely describes the present road by calling for a straight line which fits the course of the present road, but entirely fails to describe the former road which was crooked and which did not follow even approximately the course called for, it can not be said that the description is ambiguous and subject to be explained by parol testimony, and the verdict and judgment locating the line in the center of the former road, based as they are on parol testimony varying and contradicting the field note description, are without support in the competent evidence and contrary to the undisputed, competent evidence.”

The record reflects that A. H. Tubbs and Selmer J. Boles are the sole heirs at law of John S. Tubbs, deceased. On April 20, 1911, A. H. Tubbs conveyed, to Selmer J. Boles his “undivided interest in the J. S. Tubbs, deceased, estate lying and situated North of the Longview and Tyler public road and East of ' Moody creek * ' * * ”, a part of the Carleton Survey. It is the location of the western portion of the south line of this tract uf land which is in dispute here. The following map is helpful as illustrative of the contentions of the parties hereto.

On October 9, 1930, S. J. Boles and wife executed an oil and gas lease to Katherine Ryan covering the tract of land lying north of the Longview and Tyler road and east of Moody Creek, said to contain 25 acres, more or. less, and being the same land conveyed to S. J. Boles in 1911 by A. H. Tubbs, and described by metes and bounds as follows: “Part of the Wm. Carleton H. R. Survey, Beginning at the bridge on Moody Creek in the center of the Longview and Tyler road in the center of the creek; Thence S 78 E with the center of the road 468 vrs. to a corner in the road, same being the S. W. corner of the J. H. Boles tract; Thence N with the j. H. Boles West line 442.8 varas to Plenry York’s corner; Thence S 72 W with the York pasture line 252 vrs. to a corner in the old creek bed'; Thence down the creek with its meanderings the following distances: S 63 W 198 vrs. S 20 W 190.8 vrs to- the place of beginning and containing in all 25 acres of land, more or less.”

This oil and gas lease was on October 13, 1930, assigned to The Texas Company, one of the appellants here. The mineral deeds from S. J. Boles to the other appellants also contain this identical description. Appellees contend that line BXC on the map represents the Longview and Tyler road as it existed in 1911, the date of the conveyance of the 25-acre tract to Selmer Boles by Tubbs, and that the south line of said tract of land as described in the oil lease and mineral deeds held by appellants, lies along said 1911 designation of said road. It is appellants’ contention that the description set out above contained in all the mineral conveyances and lease under which they hold, has its beginning at point A, the concrete bridge over Moody Creek on the 1930 highway and runs in a straight line to point C, fixing the south boundary line of said 25-acre tract along the 1930 highway from A to C. ABX, the shaded portion of the map, constitutes the small tract of land in controversy upon which is located an oil well, marked No. 1. No claim is made by either party to any land or leasehold west of Moody Creek or south of the 1930 highway.

The court below permitted W. E. Tones, the surveyor who ran out the lines to the 25-acre tract in September, 1930, from which he made up the field notes contained in the oil and gas lease from Boles to Katherine Ryan, and under which identical field notes all appellants now claim, to testify, over appellants’ objections, that he actually began his survey of this tract of land at point B.some 50 or 60 feet north of point A, the concrete bridge over Moody Creek on the 1930 highway, and followed the old 1911 highway to X where it merged with the 1930 highway, thence in an easterly direction to point C, the admitted southeast corner of the Selmer Boles 25-acre tract and the southwest corner of the J. H. Boles land. Jones’ testimony placed the south line substantially along BXC and not AC. To the same effect was the testimony of S. J. Boles. There is no controversy over the location of the other lines and corners of the 25-acre Boles tract. To render the testimony of Jones and Boles admissible, the field note description in the oil and gas lease and the several mineral deeds must present (a) an ambiguity on its face, or (b) when said field notes are applied to the ground an ambiguity arises. Davis v. George, 104 Tex. 106, 134 S.W. 326; Blake v. Pure Oil Co., 128 Tex. 536, 100 S.W.2d 1009 (Commission of Appeals approved by Supreme Court). No contention is made, and none can be, by any party to this suit that the field note description contained in the lease and mineral deeds under which appellants hold is ambiguous on its face. It clearly describes and encloses a tract of land. So the only question to be determined is, when an effort is made to apply this description to the ground does an ambiguity arise? The field notes call to commence “at the bridge on Moody Creek in the center of the Longview and Tyler road at the center of creek; Thence S 78 E'with the center of the road 468 vrs to a corner in the road, same being the S.W. corner of the J. H. Boles tract * * This call defines a straight line between “the bridge over Moody Creek” along the center of the Longview and Tyler road to “J. H. Boles’ Southwest corner” on a slightly southeast course. W. E. Jones who surveyed the Boles tract of land and made up the field notes for the description contained in the Katherine Ryan lease, on cross-examination testified:

“Q. When you got down to that point you called your beginning point in your survey, there was a new concrete bridge just down the creek below you? A. Yes, sir.
“Q. The bridge that had formerly been where you called your corner was dismantled? A. Yes.
“Q. And yet, with a dismantled bridge out there you called to begin in the middle of the bridge, in the center of Moody Creek and ran on 78 degrees east with the center of the road, and you knew there was a road below you, the present used road, that pretty nearly fit your course and distance? A. In a way, I had my courses wrong.
“Q. You called it south 78 east, and isn’t that line 77 degrees and 15 minutes east? A. That is what they say.
“Q. Don’t you know ? A. I expect that is right.
“Q. In fact, you know it is right? A. I think so. Mighty good surveyors say it is.
“Q. That is 45 minutes off the course you made? A. Yes, sir.”

S. J. Boles testified that at the time Jones made the survey there were two bridges over Moody Creek, the 1919 wooden bridge and the 1930 concrete bridge. Thus it appears that when Jones placed his beginning corner at the bridge there was at least a question as to whether there was one or two bridges over Moody Creek in the vicinity of his beginning point. Both witnesses agree that the 1930 concrete bridge was in place, but they differ as to whether the 1919 wooden bridge was in place or whether it had been dismantled at the time the survey was made. This fact alone adds strength to the recitation by Jones in the field notes, “beginning at the bridge over Moody Creek.” But granting that there were two bridges, one at A and one at B, over Moody Creek, is there an ambiguity created in the field note description of the lease and mineral deeds when said description is applied to the ground? We think not. When the field notes made out by Jones in September, 1930, are applied to the ground they will substantially fit tract AYDC, and the south line thereof, described by Jones to be a straight line, will lack only a few feet of coinciding with line AC along the 1930 Longview and Tyler road and will have its western terminus resting at the concrete bridge and not at the old wooden bridge on said abandoned highway. Moreover, that portion of the south line BX testified to by Jones as the line he actually ran out on the ground represents a 6 degree 54 minute curve 242.5 feet in length which is described by the judgment rendered herein, “Thence Easterly S 87 Deg. 48 min. East 65 feet; Thence east-wardly with 6 deg. 54 min. curve to the right whose length is 242.5 feet, said curved line passing North two feet of the W. W. Bradley No. 1 well.” (This is the oil well on the land in controversy.) The parol testimony of Jones and Boles which was by the court below admitted in evidence as tending to establish this curved line with its beginning point at B, in our opinion, tended to create an ambiguity rather than to clarify an existing one. It must also be remembered that Jones in this field note description called to begin at “the bridge,” not at a bridge, and although there may have been two bridges over Moody Creek at the time he made up the field notes, when the calls in his description for the south line of said 25-acre tract are placed upon the ground, they are in substantial compliance with the 1930 concrete bridge to the west over Moody Creek, with the creek itself, the 1930 Longview and Tyler highway, and the undisputed southwest corner of the J. IT. Boles land, all of which objects define a straight line running practically “S 78 E” as called for by Jones in said description. This testimony was therefore inadmissible for the reason that it contradicted, modified and changed the unambiguous written description contained in each of the instruments under which appellants hold. In the early case of Anderson v. Stamps, 19 Tex. 460, our Supreme Court stated the rule with respect to admission of parol evidence with, relation to the field note description in a deed thus: “The lines of the survey, as actually marked upon the ground, if they can be found and traced, will control course and distance. But that is where the actual survey can be found and identified as the same called for in the grant. It is not meant that,when: the grant calls far certain known and established natural or artificial muniments and boundaries, these may be controlled by panol proof of a survey entirely inconsistent, and repugnant to all the calls of the grant. No case has gone to any such extravagant length as that. That would be virtually to destroy the written evidence of title, and substitute parol evidence in its stead.”

This rule is also stated by Judge Gaines in Johnson v. Archibald, 78 Tex. 96, 14 S.W. 266, 267, 22 Am.St.Rep. 27, as follows: “If the calls in a grcrnt when applied to the land correspond with each other, parol evidence is not admissible to vary them, by showing that in point of fact they are not the calls of the survey as actually made. But if when so applied they disclose a latent ambiguity, — that is to say, if they conflict with eadh other, — then extrinsic evidence may be resorted to in order to determine the conflict and to show the land actually intended to be embraced by the calls of the survey.”

And again in Thomson v. Langdon, 87 Tex. 254, 28 S.W. 931, 935, Judge Gaines said; “ * * * A writing unambiguous upon its face may become doubtful when applied to the subject-matter of the description. On the other hand, if there be no conflict in the calls found in the field notes of a survey, there is no room for construction, and the calls must speak for the\ms<elves. To permit the introduction of parol evidence to vary the calls would be to violate the familiar nde that extraneous evidence is not permissible to vary a written instrument. * * * But we apprehend that it is not proper to resort to the calls in the field notes of another survey, although made at the same time and by the same surveyor, to create a conflict in case none arises from the calls of the survey in question when applied to the objects called for as actually found on the ground.”

Perhaps the latest and clearest statement of this rule is found in Blake v. Pure Oil Co., supra [128 Tex. 536, 100 S.W.2d 1013], as expressed in the following quotation: “When the description in field notes or in a deed is both on its face and in its application to the ground clear and unambiguous, extrinsic or parol evidence may not be resorted to for the purpose of showing that the surveyor actually ran a line of the survey at a different place from that described in the field notes or deed. Davis v. George, 104 Tex. 106, 134 S.W. 326.” (All italics ours.)

This proposition is therefore sustained. Our holding herein is not in conflict with the rule announced by the Supreme Court in State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228; Blake v. Pure Oil Co., supra, and Gill v. Peterson, 126 Tex. 216, 86 S.W.2d 629, but is wholly in accord therewith.

The conclusion reached above renders unnecessary a discussion of the other propositions brought forward.

The. judgment of the lower court is reversed and here rendered for appellant Th? Texas Company fon the seven-eighths leasehold interest in and to the land described in appellees’ third amend'ed original petition, and for the other appellants for their respective mineral interests in the one-eighth royalty in said tract of land. Judgment is also rendered for The Texas Company for seven-eighths of the value of the oil run from the well on said tract of land, and for the other appellants for their fractional interests in the value of the one-eighth of the oil run from said well.

Reversed and rendered.


author: COMBS, Justice.

text:
    UNITED EMPLOYERS CASUALTY CO. v. DANIELS.
    No. 3628.
    Court of Civil Appeals of Texas. Beaumont.
    July 2, 1940.
    Rehearing Denied July 24, 1940.
    Will R. Saunders and Henry D. Akin, both of Dallas, for plaintiff in error.
    Collins, Williams, Hatchell & Garrison, of Lufkin, for defendant in error.
   COMBS, Justice.

This is a compensation insurance case. The Insurance Company has brought up an enormous record containing hundreds of “objections” “exceptions”, etc., (a matter to which we shall refer again in the course of this opinion), but there was in fact but one issue touching the merits of the case and that was the extent of the plaintiff’s ■ injury. Plaintiff was struck in the back by an empty freight car which knocked him to the ground and a wheel of the car passed over his left foot. In falling, his foot being caught under the wheel, his left leg was twisted and injured, and certain bones of his foot and ankle were fractured, producing ankylosis, adhesions of the tissues, and according to his evidence, he is totally and permanently incapacitated. The jury so found and fixed his compensation at $3,448.67, payable in a lump sum. The Insurance Company has appealed by writ of error. We will refer to the appellee as plaintiff, the position he occupied in the trial court, and to the plaintiff in error as the Insurance Company.

Opinion.

By its first proposition the Insurance Company complains of the action of the trial court in overruling its general demurrer. Its contention on this point is that the plaintiff in his petition showed affirmatively that his claim was not filed with the Industrial Accident Board within six months after the date of the injury and he did not allege or attempt to allege any good cause for failure to file his claim within the six months as provided by the statute. Vernon’s Ann.Civ.Stat. Article 8307, Sec. 4a. The assignment is without merit. The plaintiff alleged that he was injured July 2, 1938, and that “plaintiff within six months after the occurrence of such accident * * * duly made and filed with the Industrial Accident Board of Texas, his claim in writing for compensation * * He did also allege that the claim was filed “on or about the 11th day of January, 1939”, while the six months’ period expired January 3, 1939. But such allegation did not negative the affirmative allegation that the claim was filed within six months. The pleading as a whole avers the filing of the claim within due time. This is certainly true as against a general demurrer. Fuqua v. Mapes, Tex.Com.App., 57 S.W.2d 97; Davies v. Texas Employers’ Ins. Ass’n, Tex.Com.App., 16 S.W.2d 524. We will add in this connection that the record affirmatively shows that plaintiff actually filed his claim August 18, 1938, only about a month and a half after the injury. So the Insurance Company here urges a pure legal technicality, which the undisputed facts show it would be a travesty on justice to sustain.

By propositions 2 and 3, the Insurance Company challenges the sufficiency of the evidence to support the jury’s findings of total permanent incapacity. These assignments are also overruled. It is not questioned that plaintiff’s foot and ankle were crushed, producing ankylosis. He testified at the time of the trial that he suffered severe pains in his back and left leg, and he was on crutches and unable to do any form of manual labor. His medical witness, Dr. Denman, testified from his examination of him, and from X-ray pictures, that because of injuries to bones, muscles, and tendons of the foot and leg, plaintiff had lost 90% of the movement of the foot and ankle; that because of ad-hesions of muscles and tendons, the foot and ankle had become drawn until the foot could not be placed flat on the floor, and that the plaintiff could not walk or stand upon it without severe pain. He expressed it as his opinion that the plaintiff would never be able to do any form of manual labor, the only work which he is qualified to do. The Insurance Company’s medical witness, Dr. Barkley, estimated plaintiff’s loss of movement of the foot and ankle at twenty to thirty per cent, and expressed the opinion that plaintiff’s condition would improve if he would use the foot and leg. But on cross-examination, he was asked: “Q. Now if this man came to you for examination, you would not pass him as being fit to go to work, would you, to do manual labor ? A. No, Sir.”

The record discloses that plaintiff went to Houston at the instance of the Insurance Company and was examined by its Dr. Thomas. Also, that Dr. Pearson, of Beaumont, examined him in Woodville during the trial of this case at the request of the Insurance Company. Yet, neither of these doctors was called as a witness. This brief recital of the evidence is sufficient, we think, to show that the jury’s findings of total permanent incapacity have ample support.

As we understand the Insurance Company’s contention on this point, it concedes the sufficiency of the evidence if Dr. Denman’s testimony be considered. But it insists that his testimony was inadmissible and should have been excluded on its objection to the effect that Dr. Den-man examined the plaintiff for the purpose of testifying in this case, and based his opinion of 'total permanent incapacity partly on subjective symptoms and case history related to him by the plaintiff. The point is not well taken. It is true that a well recognized and wholesome rule of evidence excludes the opinion of a doctor as to the extent of incapacity when the same is predicated in whole or in part upon the self-serving statements of the injured party made during examination conducted for the purpose of enabling the doctor to testify. Texas Employers’ Ins. Ass’n v. Wallace, Tex.Civ.App., 70 S.W.2d 832, and authorities cited; Traders & General Ins. Co. v. Rhodabarger, Tex.Civ.App., 93 S.W.2d 1180; Republic Underwriters v. Lewis, Tex.Civ.App., 106 S.W.2d 1113. But the facts of the present case do not invoke that rule. Dr. Denman examined the plaintiff first in January, 1939, and twice afterwards before the trial of this case in April. He testified positively that plaintiff came to him for examination and treatment. He stated that he did not prescribe any treatment for the plaintiff because he did not know of any treatment that would improve his condition. In that connection he testified: “I don’t know of any treatment for this condition, where you have a complete crushing injury to the foot or small bones and ankylosis had already taken place. There is no doctor living, I don’t think, that could do him any good. * * * In my opinion he has reached his maximum recovery.”

Dr. Barclay corroborated Dr. Denman’s opinion that medical treatment would not improve plaintiff’s condition.

There are several other propositions attempting to present purely technical matters. We are convinced that none of them presents any reversible error if they should be considered. But we do not consider the propositions for the reason that the matters complained of were never “distinctly presented to the trial court,” nor do the assignments distinctly set forth the ground of error for consideration of this court as required by Rule 24. We have become accustomed to reviewing voluminous records, the natural result of the present rules of procedure, but never before have we seen the record of what ought to be a simple compensation case loaded with such an interminable mass of wholly unnecessary and irrelevant matter. As we have already stated, the only seriously contested question in this case was the extent of plaintiff’s injury. Yet the transcript brought here contains 292 pages. Of that number 46 pages are consumed by papers filed by the plaintiff and the orders of the trial court. The balance, 246 pages, consists of matter filed by the Insurance Company. The Insurance Company’s “objections” and “exceptions” to the court’s charge consists of 169 separate divisions, many of them subdivided into a number of subdivisions numbered “a”, “b”, etc. These objections cover 74 pages of the transcript. The able and patient trial judge, perhaps out of an abundance of precaution in view of the multitude of “objections”, submitted 56 special “issues” to the jury. The Insurance Company’s amended motion for new trial contained 630 “grounds” of error, and consumes 142 pages of the transcript. Most of the “exceptions”, “objections” and “grounds” of error were simply repetitions of the same stock objections to each and every issue submitted, including defensive issues. Obviously, they could not have been filed with any intent of pointing out to the trial court matters which counsel believed were material to the preservation of the defendant’s rights. To say that this great mass of meaningless objections was filed by counsel in the sincere belief that they bore some relation to securing a just and fair consideration of his client’s case by judge and jury would be to impeach the intelligence of counsel. When one examines this record he can hardly escape the conclusion that counsel was not in fact attempting to call any error to the attention of the trial court with the view of having it corrected. Rather, the evident purpose was to conceal the meritorious objections, i'f any, with the hope of preserving in the obscurity of a mass of words some point of reversible error. This method of defense, which is all too prevalent in our trial practice, is analogous to that of the cuttle fish which, when confronted by an enemy, simply squirts great quantities of black fluid into the surrounding waters, and seeks to make its escape in a cloud of ink.

This criticism is not directed so much at counsel as it .is toward a system of procedural rules which invites and encourages such practice. We can understand the position of a defense attorney, who, not without some reason, feels that technicalities often supply the chief means of defending his client against possible injustice. In recent years our courts have all but stripped themselves of their fact reviewing function and made decision of each case to turn more upon the observance or non-observance of procedural rules than upon inherent justice and substantive law. This is a serious situation striking at the very roots of our system of remedial justice. The trial of a lawsuit ought to be a sincere effort to get at the true facts and determine the rights of the parties in accordance with the principles of law and justice. That such is not always the condition prevailing under existing rules is strikingly illustrated in this case. It is to be hoped that a system of procedure which produces the condition we see here will be remedied by the new rules which are to be promulgated shortly. It should certainly be possible to formulate common-sense rules which will permit a trial judge to submit such a case as this to the jury upon a few simple nonconfusing questions or issues. But we believe that our courts should not wait for new rules in order to discourage the practice of defense by confusion and concealment. The present condition has been brought about largely by court decisions, and it can to some extent at least be remedied in the same way. In this connection, we express our agreement with the holding of the Austin Court of Civil Appeals in Federal Underwriters Exchange v. Simpson, 137 S.W.2d 132, and Federal Underwriters Exchange v. Walker, 134 S.W.2d 388, 395. So far as this court is concerned, we shall do what we can, and will lend no encouragement to the “cuttle fish” system of trial practice.

The judgment of the trial court is affirmed.

Affirmed.