author: CODY, Justice.

text:
    STANDARD ACCIDENT INS. CO. v. THOMPSON.
    No. 11083.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 5, 1940.
    Rehearing Denied Jan. 9, 1941.

      Kemper, Hicks & Cramer, of Houston, for appellant.
    Andrews, Kelley, Kurth & Campbell and F. L. Andrews, all of Houston, for appellee.
   CODY, Justice.

Appellee, operating the property of International-Great Northern Railroad Company, brought suit against appellant in part upon its policy of insurance No. MC-22907, as amended by an endorsement number 37,868, and in part upon an agreement hereinafter referred to. Among other things, appellee alleged that while the policy (as amended) was in effect, he and the Highway Department of Texas were engaged in enlarging an underpass under the I.-G.N.R.R.Co. tracks near Pearsall, Texas, where Texas Highway No. 2 (U. S. Highway No. 81) crosses the I.-G.N.R.R. main line, and that the work which was being done on said underpass made it necessary to construct and maintain a temporary crossing for those using said highway. That on February 6, 1937, one H. D. Talley, while driving his automobile along said highway, struck, or was struck by, one of appellee’s regular passenger trains. That appellee duly reported the accident to appellant, and it was by them agreed that the claims of the heirs of the deceased should be settled, and a settlement with them for the sum of $2,500 was made by appellee with the approval and consent of appellant. That it was agreed that the settlement should be without prejudice to the rights of appellee, and if the terms of the policy covered the liability of appellee to the deceased and his heirs, defendant (appellant) would reimburse the $2,500. Appellee then alleged that the accident was within the terms of the policy, as amended by the endorsement referred to, an “accident caused by or in any way arising from, out of, or by reason of any work * * * being done in connection with the construction of said underpass”. Appellee then alleges, “And in this connection plaintiff would show to the court that the construction of the temporary crossing for State Highway No. 2 and its use by the public generally and H. D. Talley in particular was necessitated by the construction work in enlarging said underpass, and that had it not been for such construction work the accident here in question could never have happened, because said H. D. Talley, in crossing plaintiffs railroad tracks, would have used the underpass already there, and could not possibly have been struck by any of the plaintiffs trains.”

It thus appears from appellee’s pleadings that this suit is brought by him on the theory that it was agreed by appellee and appellant that it was for their mutual benefit to settle the death injury for $2,500, and then litigate between themselves whether the policy covered appellee’s liability, i. e., the liability which it was agreed was one which, for the best interest of both appellee and appellant, should be settled.

Appellant’s answer was confined to a general demurrer and general denial.

At the conclusion of the evidence the court denied appellant’s but granted, appel-lee’s motion for an instructed verdict, and rendered judgment for him for the recovery of the amount paid in settlement of his liability to Mr. Talley’s heirs. The sole question, therefore, is whether, under the pleadings and evidence, the court erred in instructing the verdict for appellee.

Endorsement No. 37,868, which appellee pled amended the policy which he sued on, and which was affixed to the policy, in so far as material, provides:

“Now, therefore, anything in this policy, endorsements, declarations, and statements to which this endorsement is attached to the contrary notwithstanding, it is expressly understood and agreed that in addition to all other obligations imposed upon it by said policy, the Company hereby agrees to insure said assured against loss from liability imposed by law upon the assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered or alleged to have been suffered by any person or persons, including all employees óf assured, caused by or in ány way arising from, out of or by reason of any work whatsoever being done in connection with or incident to the construction of said underpasses, overpasses, approaches and other work in connection therewith and incident thereto and/or by reason of the ownership of, occupancy, use, operation or control by the assured of the premises and property to be described and referred to, or any part thereof, provided, however, this policy shall not insure assured against loss from liability imposed by law upon assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered or alleged to have been suffered by any employee of assured while actually engaged within the scope of his employment by the assured in the performance of work arising out of, incident to or in connection with the construction of said underpasses, overpasses, approaches thereto and other work hereinbefore set out and referred to.”

It is clear to us, and we are constrained to hold that the parties made the provisions of endorsement No. 37,868, controlling. It is appellant’s contention that there are other provisions in the policy of insurance which make it clear that the policy was not intended to cover a railroad crossing collision caused, not by a work train used in connection with work being done on the underpass, but by a regular passenger train. But the language of the endorsement, if broad enough to include, by reasonable construction, liability for the accident here involved, is necessarily broad enough to exclude any contrary provisions, relied on by appellant as limiting such liability. And a familiar rule requires the construction which is more favorable to the insured. Panhandle Steel Products Co. v. Fidelity Union Casualty Co., Tex.Civ.App., 23 S.W.2d 799. By its endorsement No. 37,-868, the insurance company agrees to insure the operator of the railroad properties against loss from liability imposed by law upon the insured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered or claimed to have been suffered by any person which was -“caused by or in any way arising from, out of or by reason of any work whatsoever being done in connection with or incident to the construction of said underpasses, overpasses and other work in connection therewith and incident thereto. * * *» The quoted language is broad, and we are not authorized to place limitations where the parties themselves did not see fit to place any. That the insurance company intended to assume a liability over and beyond the liability of appellee for damages proximately caused by doing work on the underpass is manifested by the absence of any such limitation. And indeed the only limitation which can be imposed by a court in the construction of this language, is that the construction placed on said terms must be a reasonable one, having in mind the situation with which the parties were dealing. It is a matter of common knowledge that there is an ever present danger of collision where highways and railroads cross at the same level. It is in anticipation of, for the purpose of obviating, this danger that overpasses and underpasses are constructed. It was therefore entirely reasonable for appellee, as the operator of a railroad, during the period that it was necessary to divert traffic which passed over Highway No. 2 from passing through the underpass so as to make it cross the railroad in the .very pathway of trains, to insure against losses which the underpass, when open, obviated. In Dorsey v. Fidelity Union Casualty Co., Tex.Civ.App., 52 S.W.2d 775, 776, writ dismissed, this language was used: “It is well known that certain dangers are peculiar to the doing of certain acts. The doing of certain things or the performance -of certain services naturally exposes the one performing such acts to the danger of being injured by third parties as an incident thereto ; and, if one is so injured while performing such service, and if it can be said that the danger of being so injured while performing such act is so closely connected with the doing of the act that it could reasonably have been anticipated as one of the dangers incident to the doing of the act, then the injury is one of its consequences, and is a result thereof.” During the period that the work on the underpass necessitated that the traffic passing over Highway No. 2 stop passing under the railroad and cross at the same level of the railroad, appellee, was, because of such work, naturally exposed to the danger of collisions, as an incident of operating the railroad which the underpass was designed to obviate, and thus subjected to damage suits. It was as reasonable therefore for the parties to anticipate that during the time the work stopped the use of the underpass that crossing accidents might occur, as it was to suppose that there was any need to maintain such underpass after it had been repaired and enlarged. As the terms of the endorsement are broad enough literally to insure appel-lee against the liability here involved, and the construction to that effect is a reasonable one, we are constrained to hold that the endorsement insured against this type of accident. The following cases amply support this conclusion. Panhandle Steel Products Co. v. Fidelity Union Casualty Co., Tex.Civ.App., 23 S.W.2d 799, cited supra; Owens v. Ocean Accident & Guaranty Coip., 194 Ark. 817, 109 S.W.2d 928; Merchants Co. v. Hartford Accident & Indemnity Co., 187 Miss. 301, 188 So. 571, 192 So. 566.

Appellant insists that, as it only insured “against loss from liability imposed by law upon the insured for damages on account of injuries, including death resulting therefrom, accidentally suffered or alleged to have been suffered * * it was necessary, in order for appellee to recover against it, to allege and prove that the $2,500 paid to compromise the claim of the Talley heirs was a loss to appellee from liability imposed by law upon the insured. What would have been necessary for appel-lee to plead and prove, had he brought this suit exclusively on the policy and endorsement is not pertinent because he brought it, in part, on the agreement which he alleged, as hereinabove set forth. And in connection with the alleged agreement, the following facts were proved without dispute:

That within a few days after the accident, appellee gave appellant formal notice under the policy of such accident and of the expectation that a claim would be presented against insured covering Mr. Talley’s death. A few days later, being on February 15, 1937, appellant was furnished with a preliminary report' of appellee’s claim agent regarding the accident, and suggesting that the claim of the Talley heirs be disposed of without litigation, if possible. On February 27th, 1937, appellant was given additional information of the accident, and appellee again suggested that the claim was a dangerous one that should be settled. Appellee’s claim agent again on March 15, 1937, wrote urging settlement of the claim without permitting it to go to suit. On March 17, 1937, appellant’s general counsel wrote to appellee’s General Claim Agent, in part, as follows:

“* * * It was the agreement that investigations and negotiations for settlement were to be conducted by your claim department ; that up to a certain amount you were to exercise your judgment about settling claims and that after settlement had been effected this company was to be billed for the amount paid and for your services in accordance with whatever your methods of bookkeeping were. Owing to the absence of one of our vice-presidents who has immediate charge of the underwriting in connection with this enterprise, I am unable to get his decision upon the question of coverage. This question was considered at our claim conference on February 23, 1937, and it was the decision of that conference that the case is not covered.
“I will examine the policy and would like to have an opportunity to discuss the question with the vice-president referred to. * * * In the meantime, it seems to me that the obvious thing to do for your protection whether this case is covered or not would be to settle the claim and then thrash out the question of re-imbursement to your company later on. Of course, if your view, looking at it solely from your standpoint without reference to the question of insurance, is to allow the matter to go to suit, then you will probably not want to settle; but, if a settlement can be effected for an amount which would be attractive to you if you had no insurance at all, it would seem to me that you would not lose by making a settlement even though this matter were not covered.”

Then, on March 22, 1937, appellee’s claim agent wrote appellant’s counsel: “It is the opinion of our legal department that this is not a case of clear liability, but it would be more advantageous to endeavor to effect settlement for some amount around $2500 or $3000 for the purpose of avoiding litigation, and I desire to ask if your company will be agreeable to advancing one-half of this amount, the. other half to be advanced by the trustee of this railroad, and final responsibility to be decided later by arbitration, if necessary.”

Appellant replied on March 30, 1937, to the foregoing proposition: “I am authorized to say that if the case can be settled for some amount not in excess of $2,500.00 we will contribute unconditionally one-half of such amount.”

Shortly afterwards, the claim was settled for the sum of $2,500, and a release executed by the Talley heirs, and appellant was billed for one-half. But the General Claim Agent wrote appellant’s counsel that the action billing appellant for half of the settlement was not authorized, but was done by a subordinate, and he demanded payment of the entire sum of $2,500, and to this letter, appellant replied:

“In connection with this claim our Mr. Hayden (General Counsel) made an offer to your company in compromise up to $1250.-00, a fifty per cent contribution to be fifty per cent with your company. There is a. question in our opinion whether this loss is covered by our policy. We personally do not think it is, but you think it is. The fifty per cent contribution made by Mr. Hayden had been accepted by your company. There is an offer, therefore, and an acceptance. We frankly are not so keen about that proposition. Are we to construe your letter of July 24 as the rejection of that offer and acceptance? If we can so construe it, we are perfectly willing to call the whole thing off and discuss the question of coverage.”

In addition to this letter from appellant, and the other letters above referred to, appellee offered other evidence showing that the only dispute between the parties was whether the particular kind of loss here involved was' covered by the policy. Both parties knew perfectly well that there was no case of clear liability on the part of ap-pellee for causing the death of Mr. Talley, and that a case of clear liability could not have been settled for $2,500, and that the settlement was made to avoid litigation where a jury might find that, different from the view of the parties, the death was the proximate result of the negligence of the appellee’s servants, and the settlement was made for the benefit of whomsoever should be finally found to be liable; for the benefit of the trustee of the railroad, if the accident was not of the character insured against, and for the benefit of the insurance company if the accident was covered. Appellant introduced evidence which, if admissible, tended to establish its theory that this character of accident — resulting from the operation of a regular passenger train— was not intended to be covered by the policy. But there is no evidence, as we view the record, which disputes the evidence to the effect that it was agreed by the parties that the claim should be settled for $2,500, and then that the liability as between insured and insurer should be determined under the policy just as • though liability therefor had been imposed by law on ap-pellee. The only difficulty which we have in passing on the question of whether ap-pellee proved up the agreement which he pled, is to determine whether he establishd such agreement merely by the great preponderance of the evidence, or established it as a matter of law. And we have concluded that the trial court was correct in appraising the evidence as having established such agreement as a matter of law.

Of course, if the pled agreement is proved, then the contention of appellant that appellee must plead and prove that he was guilty of negligence for which the Talley heirs sought damages, is without merit.

Also, had appellee brought this suit on the policy and endorsement alone, appellee would have been compelled to plead and prove that Mr. Talley did not come within the exception; that is, that he was not an employee of the railroad company, engaged in the course of his employment when injured. But the agreement of settlement together with the proof made thereof super-ceded this requirement. And the sole question was whether said pled-agreement was made.

The facts of this case distinguish it from Green Bus Lines, Inc. v. Ocean Accident & Guaranty Corp., Ltd., 282 N.Y. 104, 25 N.E.2d 865. In that case a general demurrer was sustained to the plaintiff’s petition because there was no allegation to the effect that plaintiff, the insured, was under legal liability to pay the damages; but neither was there any allegation of an agreement entered into between the insurer and the insured, after the claim against the insured arose, which superseded the provision that the insured must be legally obliged to pay said claim, and under which alleged agreement the insured paid said claim, saving his rights against the insurer to recover the sum thus paid, if the loss was one of the kind insured against by the terms of the policy sued on.

The judgment of the trial court ought to he affirmed. It is accordingly so ordered.

Affirmed.


source: Caselaw Access Project

author: NORVELL, Justice.

license: Public Domain

text:
    ANSLEY et al. v. MOODY et al.
    No. 10776.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 27, 1940.
    Rehearing Denied Jan. 8, 1941.
    Atlas Jones, of Uvalde, and Harry B. Berry, of San Antonio, for plaintiffs in error.
    Ditzler H. Jones, of Uvalde, for defendants in error.
   NORVELL, Justice.

This is a direct attack in equity seeking to set aside a judgment of the District Court of Uvalde County. The judgment under attack was affirmed by the Beaumont Court of Civil Appeals and writ of error refused by the Supreme Court. We refer to the opinion of the Beaumont Court, Zachry v. Moody, 59 S.W.2d 846, for a statement as to the nature and result of the former suit.

The case is before us upon writ of error, the parties here occupying the same positions as those held by them in the trial court. Plaintiffs are Mrs. Emma Leigh Ansley ' and her husband, J. C. Ansley, and claim under J. H. Zachry, who was a party to the former suit. Defendants in this suit were either parties or privies to parties in the former suit. Unless the pleadings and proof of plaintiffs be sufficient to set aside the former judgment, the doctrine of res judicata -precludes a recovery for plaintiffs.

The facts and circumstances ‘under which a court of equity will grant relief against a judgment upon a direct attack in equity are discussed in United States v. Throckmorton, 98 U.S. 61, 25 L. Ed. 93. There is no evidence in this case indicating the existence of extrinsic or collateral fraud which would vitiate the judgment under attack. The evidence does hot support any other theory which would authorize the judgment’s being set aside. The action of the trial court in instructing the jury to find for defendants was 'clearly correct, and the judgment based thereon is accordingly affirmed. Crane v. Leon & H. Blum, 56 Tex. 325.

Judgment affirmed.


author: ■ WALKER, Chief Justice.

text:
    PHELAN CO. v. SCHNEIDER.
    No. 3757.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 18, 1940.
    Rehearing Denied Dec. 31, 1940.
    C. A. Lord, of Beaumont, for appellant.
    D. F.' Sanders and John A. Veillon, both of Beaumont, for .appellee. ,
   ■ WALKER, Chief Justice.

On the 27th day of April, 1939, the truck of-appellant, The-Phelan Company, collided with the car of appellee, J. E. Schneider, injuring him arid damaging his car. This was an action by appellee against appel-: lant for the damages suffered by him in the; collision. On the trial, the jury found' that the collision was not the- result of an unavoidable accident and convicted appellant of negligence proximately causing ap-pellee’s injuries in the two respects charged against it; in driving its truck at the time of the collision at a rate of speed in excess of twenty miles per hour, and in failing to ■ keep a proper lookout. Appellee was acquitted of the two acts of negligence charged against him by appellant: (a) “Turning his automobiie to his left and to the Westward and across the West half of Park Street at the time and place and under the circumstances.” ‘(b)1 “The failure of the plaintiff to keep a proper lookout for vehicles traveling Southward on Park Street at the time he made said turn.” ' Damages were assessed at $2,350, $2,000 for his personal injuries and $350 for. the damages to his car, From the judgment against it in favor of appellee for the damages awarded by the jury, appellant', has prosecuted its appeal to this, court. The only point made is that on the entire evidence appellee was guilty of contributory negligence, as a matter of law.

The collision 'occurred about the middle of the 1300 block ■ on Park street in the City of Beaumont. This block is about two and one-half times the length of the ordinary block. At that point, Park street runs in a straight line north and south from its intersections with Blanchette (Austin) and Emmett streets, and is about forty feet wide. An old building of the Texas Ice-Company, with a drive in, is on the west side of Park street, and about the middle of the .1300 block. Appellee is about 72 years of age and very hard of hearing.

Testifying in his own behalf, ap-pellee made this statement: “You see, after I turned I thought the man would see me turn and he would slow down.”

It is appellant’s theory of this case that appellee knew that he could not safely cross the street in front of appellant’s truck at the rate of speed it was making when he first saw it and started to make his turn, but he made the turn expecting appellant to reduce the speed of its truck. If that theory of the evidence must be accepted, then, on authority of Burton v. Billingsly, Tex.Civ.App., 129 S.W.2d 439, appellee was guilty of contributory negligence, as a matter of law. In that case Burton, in the middle.of the block, turned his automobile to his left in front of an oncoming automobile, knowing. that this automobile was travelling at about forty miles.an.hour, and that he could not make the crossing unless the speed of this automobile was reduced. In explaining- his attempt to cross,.the street, and it wasjhis only explanation, he testified that he, thought the driver of the approaching car, “surely would reduce his rate of- speed before reaching him.” Knowing that the driver was violating the law, the - court held that Burton could not indulge the “thought”- — indulge the-presumption — that the driver would reduce the speed of h'is truck to a lawful rate of speed. In support of its construction of the statement made by appellee, appellant brings forward in its brief the following additional testimony given by, him:

'“I turned away from the east side of the street and headed into the. west half of Park street; I kept on driving across the west half of Park street until I was struck. There is no street between Emmett avenue coming in from the east and Austin street; also called ■ Blanchette street. When I turned to my left, .1 was not turning into a-street. At-that time'I was driving ajiout^ 20 miles per hour; I slowed down just a little bit when I turned because my car skidded; the pavement was wét there. I turned my car suddenly to the left, driving 20 miles an hour, .and then I drove straight into the curb. I got struck when the front wheel of my car was over where the curb should' be. The distance from where my car was struck to where I thought the'approaching truck was when I first saw it — I stepped it off at 85 steps. I saw the Phelan truck coming around the corner,- the turn there at Aüstin street. I could not say how fast it was coming, all I know is he hit me when I got over across the street; that is all I know. I judge it was coming about 45 miles an hour. At the time I saw the Phelan truck 85 steps away, I judge it was coming 45 miles an hour. I could not say how fast it was coming when I first saw it, it must have been coming fast. I know it was not creeping along-by a. long ways. When it made that turn there it .looked like it was coming at a pretty rapid speed. My judgment as to how fast it was coming would- be. about 45 miles an hour. At the time I started to make the left turn, the Phelan car was about 300 feet from me. At that time I judge it was travelling about 45 miles an hour.
“Q. Did you have time, from your judgment,'from the standpoint you started to make that turn, would you say you had time to make that turn before he got to where you were on Park Street? A. Well, that is a hard question to answer.
. “Q. When you turned to your left, you say you looked ? A. You see, after I turned I thought the man would see me turn and he would slow down. * * *
, “Q. - When you started to make the left hand turn, in your opinion, -if the truck had been travelling'at 20 miles an hour, Task you whether, or not you would .have had time to make a 'turn to the left? A. I had lots of time.”

This testimony brought forward by appellant, does "not'compel the conclusion that appellee attempted to cross in front of its truck, knowing that he could not cross unless the rate of speed of the truck was reduced: On' that point we quote again appellee’s statement: “Q. Did you have time, from your judgment, from the standpoint you started to make that turn, would you say you had time to make that turn before he got to where you were on Park Street? A. Well, that is a hard question to answer.”

Even on that statement, the court could not have instructed a verdict against ap-pellee.

The law of this case is simple. If, at the time he started to make his turn across Park street, appellee, in the exercise of ordinary care, believed he could safely cross in front of appellant’s approaching truck, then he was not guilty of contributory negligence as a matter of law. As we have said above, that issue was not foreclosed against him by the testimony brought forward by appellant. The testimony brought forward by appellee clearly raises the issue in his favor, that he was not guilty of contributory negligence as a matter of law. We quote:-

“Just about a quarter of eleven I left my place to come up for dinner to my son-in-law’s. My son-in-law lives on Park street. I was coming up Park street. I was coming up Park street north. As near as I could go, I was coming up Park street; just about the time I got abreast of it (the old ice plant) I was ready to turn. I looked in my glass to see if anybody was following me; I seen there was not; I looked ahead, and there was a car coming just around the bend. That was about 600 feet, and when I started to turn he was about 300 feet, and I turned and run in on the other side where the curb was to be; I turned west to the left, and when I turned I just got the front wheel of the car to the curb; I suppose a lot of you know where that is on Park street there; ice factory; the front wheel of that truck struck me and throwed me right across on the seat over there that way and broke my collar bone and hurt my shoulder. After I turned my car to the left, I think it must have travelled about SO feet before it was struck — well the front wheel was over where the curb is supposed to be. I turned to the left after looking in my glass. I could not say how fast the Phelan car was coming; all I know, he hit me when I got over across the street; that is all I know. I judge it was coming about 45 miles.
“Q. And you, after looking in your glass, you turned to your left, did you? A. Yes, I seen that he was going, I could make that turn easy. I have been driving a car long enough to understand distance.
“Q. Although the Phelan car had traveled, you say, you thought 300 feet while you looked in the glass to see if anything was behind, and before you made your turn, you nevertheless made the turn in front of that oncoming car, did you say? A. Well I seen that the car was far enough ahead for me to make the turn easy.
“Q. Did you think it was coming very fast? A. Well I couldn’t say how fast it was coming. I didn’t expect it was coming — .”

This testimony by appellee clearly raised the issue that, having observed appellant’s truck and its rate of speed, he thought he could safely cross Park street.

Subdivision (K) of Article 801 of the Penal Code provides that “the person in charge of any vehicle upon any public highway before turning, stopping or changing the course of such vehicle shall see first that there is sufficient space for such movement to be made in safety.” As a matter of law, appellee did not violate this statute; the evidence quoted above raised the issue in his favor that, at the time he attempted to make the crossing, he thought there was “sufficient space for such movement to be made in safety.” This statute does not impose on the driver of the automobile the absolute duty to “see first” that there is sufficient space to turn, stop or change the course of his car in safety, but only to exercise ordinary care in making that decision. O. K. Theater Corp. v. Rehmeyer, Tex.Civ.App., 115 S.W.2d 985. We do not understand that appellant construes this statute as invoking an absolute duty. We quote from its brief: “In this case the plaintiff before changing the course of his automobile — that is, before turning the same quickly and directly to his left across his left-hand side of Park Street, in the middle of a block, saw the defendant’s truck approaching, recognized the short distance it was from him and estimated its speed; but notwithstanding that, he made the turn to the left in the middle of the block, knowing, as he in effect says, that there was not sufficient space for such movement to be made in safety, because he says that he thought the driver of the truck would see him turn and would slow down; so it follows as the night the day that he did recognize and realize that there was not sufficient space or time in which to make the turn in safety so far as his own action was concerned.”

The evidence does not support appellant’s contention brought forward in this argument that appellee knew “that there was not sufficient space for such movement to be made in safety”; on the contrary, the evidence raised the issue that he thought he could make it in safety.

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

Affirmed.


author: MONTEITH, Chief Justice.

text:
    UNITED EMPLOYERS CASUALTY CO. v. McCLOUD.
    No. 11165.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 12, 1940.
    Will R. Saunders, of Dallas (W. E. Johnson, of Dallas, of counsel), for appellant.
    Peden, Johnson & Peden, of Houston, for appellee.
   MONTEITH, Chief Justice.

This is an appeal in a compensation suit brought by appellant, United Employers Casualty Company, against appellee, George McCloud, to set aside an award of the Industrial Accident Board, wherein he was awarded compensation for total and permanent incapacity, alleged to have been the result of an injury sustained by him in the course of his employment with the P. & E. Construction Company, who carried compensation insurance with appellant.

Appellee filed answer and cross-action in which he alleged that while engaged in installing fire plugs for the City of Houston in the course of his employment with the P. & E. Construction Company, his foot slipped, causing him to fall and that a large part of the weight of one of said fire plugs was thrown on him, causing him to suffer accidental personal injuries and that as a result thereof he had become totally and permanently disabled.

Appellant answered by general demurrer, exceptions, and general denial.

In' answer to special issues submitted, the jury found, in effect, that on October 4, 1939, appellee sustained an accidental injury in the course of his employment with the P. & E. Construction Company which resulted in his total and not partial incapacity to work or labor, and that such total incapacity was permanent and not temporary; that he had not recovered from said injury, and would not recover therefrom; that he was not and would not be able to perform the usual tasks of a workman, and that his disability would continue the same throughout his lifetime. $22.-08 was found to be his average weekly wage.

Based on the answers to said special issues, judgment was rendered in favor of appellee and against appellant for the sum of $13.25 per week for a period of 401 weeks, commuted to its cash value and apportioned two-thirds to appellee and one-third to his attorneys.

The controlling issue made by the pleadings in this appeal is whether appellee received the injuries alleged, and if 'so the extent thereof, or whether, as contended by appellant, the alleged injuries were simulated.

Appellant’s first contention is that the court erred in overruling its application for a continuance because of the absence from the state of H. L. Perkins, a member of the ■partnership in whose favor said policy of insurance was issued. In its application, which is not shown to have been controverted, appellant alleged that it was a first application for continuance; that the witness Perkins was a material witness and that he was temporarily absent from the state and beyond the jurisdiction of the court; that his testimony wa's material in that he would testify that on various occasions since the alleged injuries of appel-lee he had seen him walk normally and without limping and in such manner as to indicate that he had no disability. It alleged that it had used due diligence to secure the attendance of said witness, in that he had promised appellant to be present on the date the case was set for trial and that appellant had relied upon said promise and had expected ’ him to be ■ present on that date; that on May 10, 1940, four days before the case went to trial, it was found that said witness was temporarily absent in another state and out of the jurisdiction of the court and could not be located or served with a subpoena;' that from May 10 to May 14, 1940, appellant had been endeavoring to locate and communicate with said witness by telephone but had been unable to do so. Said application was sworn to by Charles Crenshaw, who stated on oath that he was an agent and attorney for appellant; that he had authority to. make said affidavit and that the matters and things set forth in said application were true and correct as therein stated.

' Appellee, when interrogated with reference to- his ability to walk without crutches, testified as follows:

“Q. I asked you if you had walked since you were injured without your crutch; you said you had walked once in your home? A. Yes, sir.
“Q. Have you walked anywhere else? A. I was trying to think last night. I want to be positive about my trying to walk, but I think I have tried to walk two or three times without the crutches.
“Q. When was that, soon after you were hurt? A. Yes, sir, that was soon after I got hurt.
“Q. Did you walk far-at the time? A„ No, sir, I never have walked any further than I imagine from here, to that door.
“Q. How did that affect you, if it did affect you? A. Well, I got hurt in this leg and sometimes it just feels like I ain’t got no leg. I put it down on the ground with my weight and it just goes right down like I didn’t have any leg. I don’t have any power in this leg at the time.”
Dr. C. J. I. Ekman, a witness for appel-lee, stated that, in his opinion, appellee was-totally and permanently disabled. When asked as to appellee’s ability to walk without crutches, he testified as follows:
“Q. Have you had him try to walk in the office without the aid of crutches? A. I have.
“Q. Can he walk and get up without the aid of crutches? A. No.”

Dr. L. G. Pawelek, a witness for appellant, testified that on October 5, 1939, he examined appellee and found no objective evidence of any injury, and that, after keeping appellee under observation and testing him, it was his conclusion that ap-pellee had.no disability.

Dr. J. M. Filippone, a witness for appellant, who had appellee under observation - and treatment for approximately six weeks after his alleged injury, testified that he could find nothing objectively wrong with him except a slight rigidity of the muscles of the lower back which soon passed away. He testified that in his opinion appellee was malingering.

Article 2168, Revised Statutes of 1925, provides that: “If the ground of siich application be the want of testimony, the party applying therefor shall make affidavit that • such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause-of failure, if known; that such testimony cannot be procured from any other source; and, if it be for the absence of a witness, he shall state the name and residence of the witness, and what he expects to prove by him; and also state that the continuance is not sought for delay only, but that justice may be done; provided that, on a first application for a continuance, it shall not be necessary to show that the absent testimony cannot be procured from any other source.”

This being a first application for continuance, the questions presented under this assignment are, whether appellant’s application was in compliance with said Article 2168, whether the testimony sought was material, and whether appellant had used due diligence to procure such testimony.

The application in question was in substantial compliance with the statute. It was properly verified and was not controverted by appellee, consequently the facts alleged therein must be accepted as true. The absent witness resided in the City of Houston, where the case was set for trial. He was a member of the partnership in whose favor said policy of insurance was issued and had promised appellant to be present during the tidal of the case and had stated he would testify that on various occasions since the alleged injuries of appellee he had seen him walk normally and without limping and in such a manner as to indicate that he had no disability. This testimony was material, in that it strongly corroborates the testimony of appellant’s two medical witnesses who testified on the trial that appellee’s alleged injuries were simulated, and it is in direct conflict with the testimony of appellee and Dr. Ekman, both of whom testified that ap-pellee was unable to walk without the aid of crutches. There can, we think, be no doubt but that the jury was entitled to have the benefit of this testimony and that the failure to procure it was prejudicial to ap- ' pellant’s case.

The fact that the absent witness resided in Houston; that he had been notified of the setting of this case and had promised appellant to attend the trial thereof and to testify were, we think, sufficient facts to excuse appellant from taking the prescribed 'statutory steps to enforce the .attendance of the witnes's or from taking his' deposition. Hargrave v. Texas & P. Ry. Co., Tex.Com.App., 12 S.W.2d 1009; Haley Fisheries, Inc., v. Payne, Tex.Civ. App., 48 S.W.2d 437.

This is particularly true since our courts have uniformly held that, in determining the materiality of the testimony sought from an absent witness and in ascertaining whether the trial court abused its discretion in overruling a first application for continuance which has not been controverted, an appellate court must not only look to and consider the facts alleged in such application, but it must take into consideration the testimony taken on the trial of the case. Ward v. Brown, Tex.Civ. App., 122 S.W.2d 684; Haley Fisheries, Inc., v. Payne, Tex.Civ.App., 48 S.W.2d 437; 9 Tex.Jur., § 83, p. 760.

While ordinarily the granting or refusing of a motion for continuance rests within the sound discretion of' the trial court, the exercise of this sound discretion is always subject to review, particularly when the statute with reference to applications for continuance has been, in every way, complied with, in which case there is no presumption that the court did not abuse its discretion. Gulf, C. & S. F. Ry. Co. v. Brooks, 63 Tex.Civ.App. 231, 132 S.W. 95, writ refused.

Taking into consideration the facts alleged in said application for continuance and the facts adduced in the trial of the case, both of which were material, we think that appellant was justified in relying on the promises of said witness to be present and was excused thereby from taking the prescribed statutory steps to enforce his attendance.

We have not considered the other assignments brought forward. They will, probably, not arise in another trial.

The judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


author: McClendon, chief justice.

text:
    ARMSTRONG et ux. v. MARSHALL.
    No. 8974.
    Court of Civil Appeals of Texas. Austin.
    Nov. 27, 1940.
    Rehearing Denied Dec. 31, 1940.

      W. C. Huffaker, Jr., of Tahoka, and Nelson & Brown and Geo. W. McCleskey, all of Lubbock, for appellants.
    Bauknight & Mann and J. Byron Brown, all of Austin, for appellee.
   McClendon, chief justice.

Bill Armstrong and wife sued Bob L. Marshall for damages caused by the alleged wrongful killing of their son Walter Armstrong. They sued both as parents and as sole heirs at law of deceased. The damages claimed were: $8,000, loss of financial support; $5,000, mental and physical pain suffered by deceased prior to his death; and $343, burial expenses, itemized as funeral ($198), cemetery lot ($90), and tombstone ($55). Marshall plead self-defense. The judgment, upon a special issue verdict, was in favor of Marshall, and Mr. and Mrs. Armstrong have appealed.

Appellants’ brief contains seven assignments of error, which, however, present but two grounds for reversal:

1. Asserted incompetence of Marshall under R.C.S. Art. 3716 to testify in his own defense to conversations and transactions with deceased prior to and at the time of the killing.

.2.'Asserted insufficiency of the plea of self-defense to authorize (a) evidence, (b) submission of issues, and (c) judgment thereon.

As to the first ground it suffices to say that if the statute is applicable the admitted testimony clearly came within its inhibitions.

In so far as the suit was for loss of future contribution to appellants’ support, the statute has no application, and appel-lee’s testimony was admissible. Wallace v. Stevens, 74 Tex. 559, 12 S.W. 283.

In so far as the suit was for damages accruing to the estate of deceased, the language of the statute clearly applies, and the testimony was inadmissible.

The question then arises whether, being inadmissible as to the latter branch of the suit it should have been excluded altogether. This question depends upon the severability vel non of appellants’ action as parents for prospective contribution to their support, on the one hand, from their action as heirs for damages recoverable by deceased’s estate, on the other.

There are many reported cases dealing with severability as applied to this statute; and efforts to reconcile them have not met so far with general satisfaction. The leading case upon the subject is Spencer v. Schell, 107 Tex. 44, 173 S.W. 867, holding nonseverable an action upon a promissory note by the surviving wife in the dual capacity of owner in her own community right of a half undivided interest in the note, and as owner of the other half interest as heir of her husband. The opinion cites with apparent approval and distinguishes the cases of Harris v. Warlick, Tex.Civ.App., 42 S.W. 356; Field v. Field, 39 Tex.Civ.App. 1, 87 S.W. 726, and Evans v. Scott, Tex.Civ.App., 97 S.W. 116.

In King v. Morris, Tex.Com.App., 1 S.W.2d 605, the suit was by the surviving wife and daughter to recover sums illegally paid as usurious interest on a promissory note which was community property of deceased and his surviving wife. It was held that the interest of the surviving wife was severable from that of the daughter and that the statute did not apply to the former but did to the latter. The opinion was delivered by Judge Critz upon rehearing, in which a former contrary holding of Judge Nichels (Tex.Com.App., 298 S.W. 412) was overruled. Judge Critz quotes at length from Chief Justice Phillips’ opinion in Spencer v. Schell, and distinguishes the two cases apparently on the ground that the entire property (the note) passed to Mrs. Schell as surviving wife and as heir. Stress is laid upon that portion of Judge Phillips’ opinion to the effect that if the suit were for recovery of [107 Tex. 44, 173 S.W. 868] “distinct and severable interests,” the testimony would be admissible as to one interest and not as to the other. The decision in King v. Morris has never been questioned, so far as we have been able to find. It was expressly followed in Theophilakos v. Costello, Tex.Civ.App., 54 S.W.2d 203, a closely analogous case (opinion by Judge Alexander of the Waco Court).'

Jones-O’Brien, Inc., v. Loyd, Tex.Civ. App., 125 S.W.2d 684, presented another analogous case to that of King v. Morris; the only distinguishable difference being that the surviving wife brought the suit in her own behalf and as guardian of her minor children. The suit was for real estate claimed as community property of plaintiff and her deceased husband. The testimony was admitted as to the wife’s interest but excluded as to that of the children. The Eastland Court (Judge Fun-derburk writing) held the two interests non-severable and the evidence inadmissible as to both. Quite a lengthy review of the decisions is givens but no reference is made to King v. Morris. Writ of error was granted in that case upon the holding of non-severability of the interests. However, the case was later disposed of upon agreed motion, and the question presented was not passed upon by the Supreme Court.

If the sole determining criterion as to severability be whether the interests asserted are united in a single individual, then clearly Marshall’s evidence was wholly inadmissible. But we cannot take this view of it. The suit in Spencer v. Schell was upon a promissory note, the entire title to which was in Mrs. Schell. True she deraigned her title to each of two undivided half interests from different sources, one of which was through heirship. But the thing sued upon was a single entity, the note; and the decision that the interests therein were not severable is expressly rested upon the holding that “the right to their enforcement constitutes an indivisible cause of action.”

The only analogy here to the Schell case lies in the fact that the interests sued upon are held by the same parties. But there is no merger of these interests into a single cause of action, nor is the recovery sought of a single item of property or upon a single chose in action. The recovery here sought is upon two wholly separate and distinct causes of action arising under two separate statutes. As heirs of their deceased son appellants’ suit was predicated upon the survival statute, art. 5525 Vernon’s Ann.Civ.St. art. 5525, and the right of recovery based upon and limited to that which had accrued to the deceased at the time of his death. The cause of action which survived was one for unlawful injury and the recovery limited to the incident damage, which, ■ in the instant case, was asserted to be (other than burial expenses noted later) physical and mental pain suffered by deceased up to the time of his death.

The other cause of action sued upon arose under the death statute (Art. 4671). It was predicated upon the unlawful killing of their son and tlieir right of recovery was predicated upon and limited to the damages sustained by them as a result of such unlawful killing. The thing sued for in each cause of action was specific items of damage, each of which was wholly distinct and separate from and wholly unrelated to the other. This is true irrespective of the fact that the two causes of action grew out of a single act of appel-lee. It was the effect of that act operating separately and distinctly upon the rights of different individuals and in a wholly different manner which brought into being two separate and distinct causes of action; the one for injury and consequent damage to the deceased which he suffered and was entitled to recover during his lifetime, and which passed by the survival statute to his heirs; the other for injury and consequent damage to the parents which they suffered in the death of their son. The fact that the suit embraced two separate and distinct causes of action, which were severable as related to Art. 3716 is clear. In this connection we refer to the recent case of Norman v. Valley Gin Co., Tex.Civ.App., 99 S.W.2d 1065, error refused.

Since the evidence was admissible as applied to one of the causes of action in suit, and no request was made by appellants to limit it to the other cause of action, and no assignment of error is urged to the court’s failure so to limit it, appellants are not in position to complain of its admission. This, we think, is the effect of the holding in King v. Morris.

In their evidence in chief appellants relied solely upon an admission by ap-pellee to connect him with the death of their son. Promptly after the killing appel-lee drove to the sheriff’s office and made the statement that he had killed Walter Armstrong. Appellee contends that appellants’ introduction of this admission constituted in effect the calling of appellee as a witness and removed the bar of. the statute to the complained of testimony of appellee. The general, well established rule that an admission when introduced by the opposing party may be denied or explained by the party against whom it is introduced is invoked. In First Nat. Bank v. Rush, Tex. Civ.App., 227 S.W. 378 (opinion by Chief Justice Huff of the Amarillo Court), it was held that a memorandum introduced by an administratrix might be explained by the opposing party, who made the memorandum. A case which appears directly in support of appellee’s contention is Smith’s Appeal, 52 Mich. 415, 18 N.W. 195. Clearly such admission, when offered as evidence, may be denied (Garner v. Cleveland, 35 Tex. 74); and, correlatively, the party making the admission may give his versioh of its text and the circumstances under which it was made, and may supply omissions from the admission testified to. Since our above holding determines the issue, we have not deemed it necessary to extend our research as to this latter question sufficiently to rest a decision thereon.

As to the second ground for reversal : The plea of self-defense reads: “For further answer herein, without waiving any of the foregoing pleas, but still insisting upon same, the defendant says that he did not wrongfully kill Walter Armstrong but acted in self defense; that he shot Walter Armstrong because he was in anticipation and fear of serious bodily injury or death by the said Walter Armstrong; that the said Walter Armstrong made threats against his life accompanied by actions which led him to believe that he was in danger of being seriously injured or killed by the said Walter Armstrong; and that he, Bob L. Marshall, had reasonable grounds to substantiate said fears.”

There was no exception to this plea; but its total insufficiency to raise the issue of self-defense is urged on the ground that no facts are plead which would constitute such defense, but only legal conclusions are alleged. We overrule this ground of reversal. The pleading we believe alleges the essential ultimate facts constituting the plea of self-defense. The allegations (1) that appellee was motivated (shot Walter Armstrong) by “anticipation and fear of serious bodily injury or death”; (2) that de-. ceased had made “threats against his life accompanied by actions which made him believe that he was in danger of being seriously injured or killed by” deceased; (3) that “he had reasonable ground to sustain said fear,” were all of facts. Mental state is certainly a fact; so also are the specific causes for its inducement. After all the paramount purpose of pleading is to give notice of what is relied upon as a ground of recovery or defense. Clearly this plea was sufficient for that purpose. The case appears to have been fully developed by both sides on this issue; and there is no intimation in the record that appellants suffered the slightest detriment as a result of any inadequacy in the pleading. Had appellants desired a more detailed statement of facts regarding this defense, they had the right to make demand therefor by special exception to the pleading. For a full discussion of district court rule XIX requiring pleadings to be of facts and not .mere conclusions, see 33 Tex.Jur.,. pp. 430 et seq.

As concerns the cause of action: of appellants as parents of deceased for future contribution to their support, the issue of self-defense became immaterial under jury findings to the effect that appellants suffered no injury as a result of the death of their son. Whether, therefore, self-defense was properly plead or the evidence of appellee thereon was properly admitted, became academic; and any error in that regard was rendered harmless. In answer to special issues 1A and 2, the jury found that had deceased lived he would not have made financial contribution to appellants. These findings are not attacked in any way and manifestly they preclude recovery on this branch of the case.

The same is true as to the item of mental and physical pain and suffering of deceased in appellants’ suit as heirs. The uncontradicted evidence is that deceased was unconscious from the time he was shot until his death which occurred shortly thereafter, and the jury found (issues 3- and 4) that deceased did not suffer mentally or physically from the time he was shot until he died.

Under any possible theory of the case the asserted error with regard to the issue of self-defense is harmless save only as to the items included in burial expenses. These items were properly proved and found upon, and under the authorities they appear to be recoverable either by the estate or the parents (the latter having paid them). See 33 Tex.Jur., p. 140; 17 C.J., p. 1338; 16 Am.Jur., p. 37. These items are clearly severable from the items of loss of contributions and pain and suffering of deceased, independently of rule 62a and the construction placed thereon in Phœnix Assur. Co. of London v. Stobaugh, 127 Tex. 308, 94 S.W.2d 428, and cases there cited. First Nat. Bank v. San Antonio & A. P. R. Co., 97 Tex. 201, 77 S.W. 410 (opinion by Chief Justice Gaines) is directly in point. See, also, Donada v. Power, Tex.Civ.App., 186 S.W. 871, and cases there cited, and 3 Tex.Jur., p. 1150.

The trial court’s judgment is affirmed.


author: O’QUINN, Justice.

text:
    MULDOON et al. v. STERNENBERG et al.
    No. 3640.
    Court of Civil Appeals of Texas. Beaumont.
    June 20, 1940.
    Rehearing Denied Dec. 11, 1940.
    H. C. Cunningham, A. M. Huffman, and Strong, Moore & Strong, all of Beaumont, for appellants.
    James F. Parker, of Kountze, for appel-lees.
   O’QUINN, Justice.

This is a boundary suit, in form of trespass to try title, by appellees, Mrs. Emma B. Sternenberg et al., against appellants, J. M. Muldoon et al., for title and possession of a tract of land on the west end of the John A. Vickers league in Hardin ■county, titled in 1835, bounded on the north and south by the original boundary lines of the league, on the east by Beech Creek, and ■on the west by the E/B line of the Hiram Barber survey. The Barber survey of 1,280 acres was patented in 1870 by field notes that call for its • E/B line to be a •common line with the Vickers’ W/B line. The old land office map of Hardin county showed no vacancy between the Vickers .and the Barber. Appellees owned all of the Vickers west of Beech Creek, and all ■of the Barber survey.

Appellants owned the George W. Eaton .■survey, patented on field notes made as of June 8, 1908, and laid upon what appellants claim was a vacancy between the Barber on the west and the Vickers on the east.

. The location on the ground of the E/B line of the Barber was established beyond question, and was conceded by appellants. The only point in issue is whether the Vickers extended west to adjoin the Barber survey. The issue was tried to the court without a jury, and found in favor of appellees. Judgment was entered fixing the W/B line of the Vickers as a common line with the established E/B line of the Barber, and in favor of appellees and against appellants for all of that part of the Eaton in conflict with the Vickers. Judgment was for appellants for that part of the Eaton not in conflict with the Vickers. Appellants have duly prosecuted their appeal to this court.

The issue in the lower court was simply one of fact. The Vickers lies immediately west of and adjoining the Nelson, which was also titled in 1835. The N/B line and the S/B line of the Vickers are merely extensions west of the N/B line and S/B line of the Nelson. The field notes of the Nelson and the Vickers call for their N/B line to be north 2,500 varas from their S/B line; this distance in fact was 2,’556.7 varas. There was no controversy as to the location on the ground of the N/E corner and S/E corner of the Nelson. Extending west from these corners were two old lines, identified as the N/B line and S/B line of the Nelson, to the points located by the court on the ground as being the N/W corner and S/W corner of the Vickers, and as located and fixed by the court these corners are in the E/B line -of the Barber. On these old lines were found line trees of an age practically with the original lines as located in 1835. The Vickers and the Nelson are parts of a block of league surveys made in 1835 by surveyors Veatch and Brown. A boundary tree of one of these surveys was found and identified as having been marked by surveyor Brown; the mark was practically of the date of 1835. Measurements from this tree located the west boundary line of the Vickers, as fixed by the court in this judgment. Many other facts and circumstances are in the record supporting the court’s judgment, but it would serve no useful purpose to bring them forward as a part of our statement. It is sufficient to say that we have carefully examined the record, and the record supports the court’s judgment; the facts given above support the court's judgment. No point of technical boundary law is presented by the appeal,

The judgment of the lower court should be in all things .affirmed, and it is accord-indv so ordered.

, Affirmed.


author: BAUGH, Justice.

text:
    RICHARDSON et al. v. HUGHES.
    No. 8939.
    Court of Civil Appeals of Texas. Austin.
    Nov. 27, 1940.
    Rehearing Denied Dec. 31, 1940.

      Collins, Jackson & Snodgrass, of San Angelo, for appellants.
    R. G. Hughes, of San Angelo, for appel-lee.
   BAUGH, Justice.

Upon a re-examination of the record and a careful consideration of appellants’ motion for a rehearing, we have concluded that the motion should be granted. To prevent unnecessarily encumbering the published reports, we are withdrawing the former opinion written herein, and substitute this in its stead.

This suit was by Robert Hughes, independent executor of the estate of Mrs. Emma Cornell, deceased, owner of and upon certain vendor’s lien notes originally executed in 1914 in part payment for 96 acres of land in Irion County, payment of which was subsequently assumed by D. L. Hess; for foreclosure of such lien; and against the Richardsons as claiming an interest in said lands, alleged to be subordinate to such lien.

The Richardsons answered setting up a judgment lien arising out of a judgment in favor of Mrs. Richardson against Hess, duly abstracted and recorded in Irion County, a levy of execution upon, and sale by the sheriff thereunder, the lands as the property of Hess, the purchase thereof by Mrs. Richardson at such 'execution sale, and sheriff’s deed to her. Further, that the vendor’s lien asserted by Hughes was barred by limitation of four years.

Trial was to the court without a jury and judgment rendered for plaintiff as prayed for; hence this appeal. Upon request duly made, the trial court filed findings of fact and conclusions of law.

The ' controlling question presented is which lien,-the judgment lien or the vendor’s lien, is superior.

The original vendor’s lien notes were variously assigned, and their maturity dates extended. The land also was conveyed several times wherein the grantee assumed payment of the indebtedness against it, and some of it was paid off. The only conveyance pertinent to our inquiry here was one to D. L. Hess on October 25, 1930, recorded December 23, 1930, wherein Hess assumed a merged balance of about $3,400, then due on said notes to the estate of M. A. Smith, deceased, of which Jerry Monroe was then temporary administrator. On December 17, 1931, Jerry Monroe as such temporary administrator applied to the Probate Court of Tom Green County, where administration of the Smith estate was pending, for authority to bring suit against Hess on said notes. This authority was granted, suit thereon filed in Tom Green County, and notice of lis pendens filed in Irion County on December 18, 1931. This suit, however, was without application to, or authority of, the Probate Court, compromised and settled by such temporary administrator upon payment by Hess of $500 and his execution and acknowledgment of an extension agreement dated June 3, 1932, extending the maturity dates of said notes to June 1, 1934. This compromise of such suit, and the extension agreement made by Hess, was reported by him to the Probate Court on September 19, 1932. Said notes and lien were thereafter assigned to Hughes as executor and no question is raised as to his ownership. The extension agreement was not filed for record in Irion County until October 15, 1936.

Meantime, Mrs. Lela Viola Richardson had on February 6, 1933, obtained a personal judgment against D. L. Hess for $1,-800, had caused same to be abstracted, and an abstract thereof filed in Irion County on August 15, 1934, properly recorded and indexed. Alias execution was issued out of the District Court of Tom Green County on said judgment to Irion County, on January 8, 1935, said lands levied upon and sold at sheriff’s sale as the property of Hess, and bought in by Mrs. Richardson by crediting the amount of her bid — $250 —on her judgment against him.

Appellants’ first contention is that under the facts above stated the notes sued on were barred of record by limitation under Arts. 5520, 5522, and 6627, R.C.S., Vernon’s Ann.Civ.St. Arts. 5520, 5522, 6627, when the levy was made and when Mrs. Richardson bought in said lands, and that her purchase of the lands at execution sale in February, 1935, gave her good title thereto.

The last recorded extension of said notes showed.the last due to mature on January 1, 1927; but by deed, duly recorded, dated October 25, 1930, D. L. Hess, the grantee, assumed payment thereof. Under this assumption, it is now settled that said notes would not be barred by limitation until four years thereafter, that is, October 25, 1934. Bellah v. Dennis, 129 Tex. 367, 104 S.W.2d 490, and cases therein cited. Consequently, when Mrs. Richardson filed her abstract of judgment in Irion County on August 15, 1934, the notes and vendor’s lien securing them were still valid obligations and her judgment lien inferior thereto. And the extension agreement of June 3, 1932, extending their maturity to June 1, 1934, continued such superiority of lien at least to June 1, 1938, if it were a valid extension and the holder of said notes not barred from asserting it by failure to have the extension agreement recorded until October 15, 1936.

Appellants contend that the purported extension agreement asserted by appellee as tolling the statute of limitation was void for lack of mutuality, and because made by the temporary administrator of the Smith estate, without permission or authority to - do so granted by the Probate Court. In this regard the record shows the following: That Jerry Monroe was on July 15, 1929, appointed temporary administrator of the estate of Mrs. M. A. Smith, in lieu of the First National Bank of San Angelo theretofore appointed by the court as temporary administrator, and the temporary administration continued. Said order of appointment, however, did' not in any manner define or express the powers conferred upon Monroe, as is clearly contemplated that it should under Arts. 3373 and 3379, R.C.S. 1925. Since he was to succeed the First National Bank as such temporary administrator, it may be inferred that such order of appointment clothed him with the same powers as> had been conferred by the Probate Court upon the .bank. The order appointing the bank as temporary administrator, however, is not shown of record, and we cannot determine the powers delegated to it.

No order of the Probate Court is shown to have ever been entered making permanent Monroe’s appointment as temporary administrator. Pie appears to have continued only as temporary administrator and on December 17, 1931, more than two years after his appointment, he applied, in his capacity as temporary administrator, to the Probate Court for authority to bring suit on said notes. The order of the Probate Court only authorized him to bring such suit and foreclose the lien. It did not authorize him to settle, compromise, or otherwise collect-or extend the debt, after suit thereon had been filed.

The • extension agreement relied upon was signed by Hess and by the “attorney, for the holders” of the notes. Report of this compromise and extension was made, to the Probate Court on September 19, 1932, signed and sworn to by Mrs. R. G. Hughes, not by Monroe in his capacity as temporary administrator. Such report of his action in the premises is not shown t.o have ever been ratified or approved by the Probate Court. On the other hand, when Monroe as temporary administrator filed his account on April 29, 1936, in connection with the application for discharge of himself and the sureties on his bond (which evidently was in the nature of a final account, and though not shown in the record, it presumably showed what he had done with the notes against Hess), the order of the Probate Court thereon expressly refused to approve such account. The record further showed that when Guinn Williams, who had been appointed permanent administrator of the -estate of Mrs. M. A. Smith, sold and transferred, under order of the Probate Court, numerous assets of the Smith estate, including the Hess notes, to appellee herein on June 9, 1937, only the original notes were described with recital that interest thereon had been paid up to 1929, and no reference to any extension thereof was made.

From these facts and circumstances, it appears that the compromise settlement of the suit which Monroe as temporary administrator was authorized and directed to bring, and the execution of the extension agreement, was not only not authorized by the Probate Court, but that the court failed and refused to approve it afterwards. And it was held in Willis v. Pinkard, 21 Tex.Civ.App. 423, 52 S.W. 626, that where suit was filed without such authority so given by a temporary administrator, even a subsequent order of the Probate Court could not give it validity.

Art. 3379, in addition to limiting the powers of temporary administrators to those specifically expressed in the order of the court appointing them, further expressly provides that “any acts performed by them as such administrators that are not so expressly authorized shall be void.” This statute is to be strictly construed in limiting the powers of such temporary administrators. Thompson v. Southwestern Drug Corp., Tex.Civ.App., 129 S.W.2d 350.

Compromise of an insurance claim by a temporary administrator, absent express authority to do so, was held ineffective in Germania Life Ins. Co. v. Peetz, Tex.Civ. App., 47 S.W. 687, 689. In Fenimore v. Youngs, 119 Tex. 159, 26 S.W.2d 195, the Supreme Court held that a temporary administrator must have express authority to do so, before he can maintain a suit. In Ramirez v. First State Bank & Trust Co., 92 S.W.2d 523, 525, the San Antonio Court of Civil Appeals held (which holding was approved by the Supreme Court in 133 Tex. 178, 126 S.W.2d 16) that an extension or renewal of a note made without express authority of the court to do so was not binding on the estate. And the necessity for such authority was recognized by the Legislature in Acts 1931, 42nd Leg., p. 842, Ch. 352, empowering an administrator “upon application and order authorizing same (to) extend any obligation owing by or owing to such estate.” See Vernon’s Ann. Civ.St. Art. 3432a.

We conclude, therefore, that in the absence of a showing of express authority to do so, the attempted renewal and extension by the temporary administrator of the notes in question was void, and did not toll the running of the statutes o.f limitation against them.

Nor are appellants estopped to deny the invalidity of such extension on the ground that Hess, having made such agreement, would be estopped to deny it. If the act of the temporary administrator were void, and the Smith estate not bound by it, Hess would not be bound. A void contract cannot be rendered enforceable by estoppel. State Nat. Bank v. Fink, Tex.Civ.App., 24 S.W. 937; First National Bank v. Dupuy, Tex.Civ.App., 133 S.W.2d 238, 239; 10 Tex.Jur., § 149, p. 260.

The other question presented is one of notice. That is, assuming the extension agreement to be valid, whether ap-pellee lost his right to assert it by failure to record the extension agreement until October 15, 1936. If the agreement were void, its registration was a matter of no consequence. The rule in such cases is that if a party claiming the status of innocent purchaser against a prior unrecorded lien have knowledge of such facts as to put “a person of ordinary prudence upon inquiry, which, if reasonably pursued, would disclose the existence of the. unrecorded encumbrance,” he will be charged with notice. And whether he has, presents a question of fact for determination by the trial court. Martin v. Thaxton, Tex.Civ.App., 103 S.W.2d 877, 879; 29 Tex.Jur., § 54, p. 860. The trial court found that appellants’' attorney, prior to the levy of execution, was apprized of sufficient facts relative to the outstanding lien held by appellee, which if inquiry had been made would have disclosed to them its existence. Without setting it out here, we think the evidence was sufficient to sustain such finding; but if, as stated, the extension contract were void, the question of notice becomes immaterial.

Since we are not prepared to say that the case has been fully developed on the question of the temporary administrator’s authority in the premises, the cause will be reversed and remanded instead of rendered. For the reasons stated, the order heretofore entered affirming the judgment of the trial court is set aside; and the judgment of the trial court is reversed and the cause remanded for another trial.

Reversed and remanded.


text:
    CHANEY, Constable, v. STATE ex rel. BUNDRICK.
    No. 10992.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 18, 1940.

      Joe Burkett, of San Antonio, for appellant.
    D. Richard Voges, of Floresville, for ap-pellee.
   NORVELL, Justice.

This is a suit in the nature of quo war-ranto, brought by the State of Texas on •the relation of D. K. Bundrick against Melvin Chaney, involving the office of Constable of Precinct No. 3, Wilson County, Texas. It appears that Chaney was appointed Constable of said Precinct by the Commissioners’ Court of Wilson County on August 12, 1940.

The information charges that Chaney is disqualified to hold the office because for six months next preceding his appointment he was not a resident citizen of Wilson County, but, on the contrary, resided in Bexar County, where he claimed his residence. This was the only ground pleaded as a basis for a judgment ousting Chaney from office. After a trial before the court without a jury, a judgment of ouster was entered, from which Chaney has appealed.

Neither the plaintiff nor the relator below has filed a brief in this Court, although said parties, through their attorneys, joined with appellant in filing a motion to advance this cause upon the. docket of this Court, which motion was granted under the provisions of Article 6256, Vernon’s Tex.Civ. Statutes, and the cause set for December 11, 1940, as stipulated in the agreed motion.

It appears that Chaney is a married man, living with his wife, and that his wife, together with their children, resided in Wilson County from October or November, 1939, up to the time of the trial. Appellant testified that he claimed Wilson County as his risidence. Article 2958, Vernon’s Tex. Civ. Statutes provides that the residence of a married man not permanently separated from his wife is where his wife resides. We therefore conclude that appellant had been a resident of Wilson County for six months prior to his appointment, and that he was improperly ousted from office upon the pleaded theory that he was a nonresident.

Certain witnesses testified that Chaney stated in their presence that he had voted in Bexar County in the Democratic primary election held on July 27, 1940. This evidence, however, is insufficient to raise a fact issue concerning the residence of Chaney when considered in connection with the wife’s uncontradicted testimony as to where she actually resided, coupled with Chaney’s claim of residence in Wilson County. The wife’s testimony was obviously of such a nature that it could easily be contradicted if untrue.

The question of the effect of Chaney’s having cast an illegal vote, if he did so, is not involved here, as the only disqualification pleaded was nonresidence.

The judgment of the trial court is reversed and judgment here rendered that ap-pellees take nothing.


author: GRAVES, Justice.

text:
    CAWLFIELD v. BRANDENBURG.
    No. 11074.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 20, 1940.
    Rehearing Denied Dec. 19, 1940.

      John C. Harris, Jr., of Houston, for appellant.
    H. H. Brandenburg, of Houston, for ap-pellee.
   GRAVES, Justice.

This brief statement of the cause, acquiesced in by the appellee as being correct, has been taken from appellant’s brief:

“This suit originated in the justice court, precinct No. 1, of Harris County, Texas. H. H. Brandenburg sued W. F. Cawlfield and Lehigh Building Corporation for $200 paid by Brandenburg to Cawlfield under a contract. The justice court gave judgment for Brandenburg against Cawlfield and Le-high Building Corporation, and the county court at law — on a trial de novo — gave judgment that plaintiff recover against defendant Cawlfield and take nothing against defendant Lehigh Building Corporation.”

Since the appeal is thus one from the county court at law, and an affirmance of the judgment rendered below has been determined upon here, no written opinion is required of this court; in deference, however, to the aid furnished by counsel for both sides in filing full briefs, this general statement of the grounds upon which the affirmance has been determined is made:

The trial court had jurisdiction, because the appellee, as plaintiff below, did not declare upon nor seek a rescission of a final building contract between the parties for the construction of a dwelling at a total cost of $6,000 — an amount beyond the jurisdiction of the county court at law; but he merely sued for $200 damages for appellant’s breach of his antecedent and preliminary agreement to return appellee the $200 advanced by the latter for ultimate application by appellant upon such building contract, in event the parties were later unable, either to agree upon the details of it, or an FHA loan upon it could not be obtained, these contingency provisions of their preliminary contract being as follows:

“Third, the house and single garage to be constructed is to be designated by and built under the supervision of George Rustay, an architect employed by the buyer, and the obligations of this agreement shall cease and determine and the parties shall be put in their original positions, if and whén they shall become unable to agree upon the nature, extent, and the details of the plans and specifications to be prepared by George Rustay for the construction of a $4,800 dwelling and single garage, or if an FHA loan satisfactory to contractor cannot be secured.
“Fourth, if the parties are unable to reach an agreement as to the exact nature in every detail of the house to be constructed, they shall then enter into a construction contract, of which the design of the house, together with its plans and specifications, shall be a part.”

These contingent provisions alone were declared upon, no rescission having been sought, and the trial court, in support of its judgment, found in effect that these indispensable preliminaries to the consummation of the final building contract had not been attained, and that appellee had paid appellant the $200 he so agreed to pay in advance, thereby complying with his undertaking; but that the appellant had breached his part of the contract by refusing'to return the $200, adding, as to the latter’s consequent liability to the former, these conclusions of law:

- “3. Plaintiff in paying over the $200 and m securing plans and specifications and in attempting to reach an agreement with defendant W. F. Cawlfield upon a house to be built for $4,800 has carried out his part of the contract.
“4. Defendant W. F. Cawlfield, in refusing to repay the $200, has breached the contract.”

These findings and conclusions, it is thought, take the cause out of that class of holdings upon which appellant relies, to the effect that where the suit either requires the interpretation or seeks a rescission of a contract involving amounts of money beyond the court’s jurisdiction, it has no authority to entertain it; because, here, there was involved only a preliminary undertaking binding the parties to enter into a $6,000 contract, upon the happening of the specified future events', and not otherwise; since these events did not come about, the amount in controversy in this instance was reduced to the $200 advanced on the on.e side, and wrongfully withheld upon the other, after it had been so found that the contemplated building enterprise could not be entered upon between the parties: 10 Texas Jurisprudence 52; Northern Texas Realty & Construction Co. v. Lary, Tex.Civ.App., 136 S.W. 843; Faulkner v. Otto, Tex.Civ.App., 230 S.W. 447; 11 Texas Jurisprudence, 737, 739; Davis v. Fant, Tex.Civ.App., 93 S.W. 193; Smith v. Moore, Tex.Civ.App., 155 S.W. 1017; Daily v. Brown, Tex.Civ.App., 26 S.W.2d 400; 10 Texas Jurisprudence, 395; 5 Williston on Contracts, Secs. 1338 and 1455; Rochells v. Brockman, 152 Ill.App. 253; Greer v. International Stock Yards Co., 43 Tex.Civ.App. 370, 96 S.W. 79; Davis v. Fant, supra; Smith v. Moore, supra; Cain v. Fry, Tex.Civ.App., 86 S.W.2d 270; Riley v. Atmar, Tex.Civ.App., 213 S.W. 682; Rick v. Farrell, Tex.Civ.App., 266 S.W. 522.

■ Further discussion being deemed unnecessary, the affirmance indicated will be entered.

Affirmed.


author: MONTEITH, Justice.

text:
    NEYLAND v. BRAMMER.
    No. 11063.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 20, 1940.
    Rehearing Denied Dec. 19, 1940.
    C. C. Carsner, of Victoria, for appellant.
    J. G. Howard and F. R. Guinn, both of Houston, for appellee.
   MONTEITH, Justice.

This is an appeal in an action of trespass to try title brought by appellee, J. L. Brammer, against appellant, O.. L. Ney-land,' for recovery of the title to and possession of. 100 by 125 feet of land out of the southwest corner of Block 15 of the James Bute Addition to the City of Houston.

In addition to a formal suit in trespass to try' title appellee alleged that he had acquired title to the property in controversy in satisfaction of a valid and subsisting' obligation due him by the estate of J. L. Brammer, deceased; that the appellant, by virtue of a lis pendens notice, was asserting s.ome character of lien against said property, and that a cloud had been cast upon the title thereto by virtue of such lis pendens notice; he sought title and possession of the land, and that the cloud cast thereon by said lis pendens notice be removed.

Appellant answered by general demurrer, general denial and plea of not guilty. He specially pled that he held a valid claim against the estate of J. L. Brammer, deceased, and Mary Louise Brammer, as evidenced by his suit against Mary Louise Brammer, individually and as representative of and sole devisee under the will of J. L. Brammer, deceased; that he had filed his lis pendens notice while the property in controversy was a part of the property belonging to the estate of J. L. Brammer, deceased; that said claim was still due and unpaid and that appellant had a prior and superior claim to said property to that of plaintiff, J. L. Brammer, Jr.

In a trial before the court without a jury judgment was rendered awarding ap-pellee title to and possession of the land in controversy, and removing the cloud cast upon appellee’s title by virtue of said lis pendens notice.

. J. L. Brammer died on February 5, 1928, leaving a will in which his wife, Mary Louise Brammer, was named independent executrix and sole legatee. She immediately qualified as such executrix. On January 7, 1930, O. L. Neyland, appellant herein, filed a suit in the district court of Harris County, styled O. L. Neyland v. Mary Louise Brammer, No. 171,785, on the docket of said court, in which he sought recovery of the value of certain shares of stock alleged by appellant to have belonged to him and to have been converted by the said Mary Louise Bram-mer subsequent to the death of her husband.

On June 19, 1934, while the above suit was still pending, appellant filed what he termed a notice of lis pendens, describing specifically the property involved herein and referring to the suit above mentioned. Thereafter, by deed dated July 25, 1934, Mary Louise Brammer conveyed the property in controversy to appellee herein.

After a trial of the case of Neyland v. Mary Louise Brammer in the district court of Harris County in which judgment was rendered denying Neyland recovery on his claim, the case was appealed to this court where it was reversed and remanded for a new trial on the issue of the value of the shares of stock alleged to have been converted. The case of Neyland v. Mary Louise Brammer is still pending in the district court, of Harris County. No final judgment has been rendered therein.

This appeal involves a construction of Article 3314 of the Revised Statutes of 1925.

Appellant claims a statutory lien upon all of the property belonging to the estate of J. L. Brammer, deceased, including the property in controversy, and Contends that appellee took title to the property in controversy subject to said lien for the full amount of his claim set up in said cause No. 171,785.

The parts of said Article 3314 material to this appeal provide that: “When a person dies, leaving a lawful will, all of his estate devised or bequeathed by such will shall- vest immediately in the devisees or legatees; * * * subject, however, to the payment of the debts of the testator.”

This article does not, in express terms, provide for a lien in favor of a creditor on the property of a testator in the hands of an executor or administrator and no method is provided by statute for the enforcement of a lien thereunder. It follows that, under said article, the rights of a creditor to pursue his property in the hands of an executor or administrator after the death of a testator are unchanged. Prior to the death of a debtor, a creditor may subject the debtor’s property to his debt by attachment, garnishment or execution. After the debtor’s death, while his property is in the hands of an executor or administrator, the same results can be attained by the filing of a claim in the probate court. In the event the property of a deceased debtor is in the hands of an independent executor, the creditor may subject it to his debt by the same methods that were available to him while the debtor was alive — by attachment, garnishment or execution. If the property of the deceased debtor is in the hands of devisees or dis-tributees, the creditor may, by suing, establish his debt and subject the property in their hands thereto. Patton v. Smith, Tex.Civ.App., 221 S.W. 1034; Roberts v. Carlisle, Tex.Civ.App., 4 S.W.2d 144.

The rule that where property is in the hands of devisees, distributees or heirs, a creditor must pursue it and subject it to his debts by the same methods that were available to him while the debtor was-alive, is upheld in the case of Horton v. Gibson et al., Tex.Civ.App., 274 S.W. 292, 294, in which an alleged lien similar to that in the instant case was sought to be enforced. In this case the court in its opinion says: “In the above cases [referring to cases cited therein], and other cases, our Supreme Court says much about the creditor’s lien on the nonexempt property of his deceased debtor, but we do not think by these expressions is meant a lien, as that term is generally understood. A lien on either personal property or real estate arises only by virtue of a contract or some statutory provision. A creditor has a quasi lien or interest in the nonexempt property of his debtor, that is, he has the right to have it applied to the payment of his debt, and the fact the debtor dies does not create any additional rights in such nonexempted property. Our Supreme Court has never held that the lien here referred to is such a one as can be foreclosed in court, as liens are usually foreclosed.”

It follows that where property' is in the hands of devisees, distributees, or heirs as the result of said Article 3314, a creditor of the deceased’s estate may sue such heir, distributee, or devisee and thereby establish his claim against such estate, in which event the court will, under appropriate prayer, subject the property received by such heir, distributee, or devisee, to the satisfaction of the judgment rendered in such cause.

Until a debt has been established, however, the creditor can no more assert a lien against the assets of the deceased’s estate than he could have asserted during the debtor’s lifetime.

In the instant case, appellant, by said lis pendens notice, attempted to fix a lien on property in the hands of appellee which he could not have asserted had J. L. Brammer been alive, since, during his lifetime, in the event J. L. Brammer had refused to carry out his agreement to transfer the stock involved in cause No. 171,785, appellant could have sued, and in the event he recovered judgment could have established a judgment lien against this and all other property belonging to J. L. Brammer. Prior to taking these steps he would have had no lien against said property. The claim on which cause No. 171,785 is based is now pending in the district court of Harris County and is unliquidated, since no judgment has been rendered therein, and until appellant ha$ secured a judgment in said case his right under said Article 3314 to subject the assets of the estate of J. L. Brammer, deceased, cannot under above authorities ripen into a lien, and since no proper steps have been taken by appellant to create a lien against the estate of J. L. Brammer, deceased, by securing judgment in said suit, appellee is justified in seeking to have the cloud on the title to the property in controversy, created by said lis pendens notice, removed.

Appellee contends that since the suit of Neyland v. Mary Louise Brammer was for conversion and in nowise involved the title to or any interest in the property in controversy, said lis pendens notice was not effective as notice of a pending suit involving the property in controversy. Article 6640, Revised Statutes of 1925, provides that: “During the pendency of any suit or action, involving the title to real estate, or seeking to establish any interest or right therein, or to enforce any lien, charge or encumbrance against the same, any party seeking affirmative relief therein, may file a notice of the pendency of such suit with the county clerk.of each county where such real estate, or any part thereof,, is situated. Such notice shall be signed by the party filing the same, his agent or attorney, setting forth the number and style of the cause, the court in which pending, the names of the party thereto, the kind of suit and description of the land affected.”

Volume 28, Texas Jurisprudence, page 223, reads in part as follows: “In any event, the lis pendens doctrine applies only where the litigation involves property which must be so specifically pointed out by the proceedings as to warn the whole world that they meddle with it at their peril. In other words, the property must be described in the pleadings.”

In the case of Bowen v. Kirkland, 17 Tex.Civ.App. 346, 44 S.W. 189, suit was brought by an heir against an administrator to set aside administration proceedings and to remove the administrator. Pending the trial the heir sold some of the property belonging to the estate to a third party. The court in its opinion held that lis pendens had no application in the case, in that neither the title nor possession of .the land in question was involved in the litigation between the heir and the administrator, and that any judgment that could have been rendered therein would not have concluded the issues of title or possession to the particular land in controversy, since the property purchased must he the subject of the controversy to he settled by the suit. It held that lis pen-dens did not apply where a collateral question only was involved which might ultimately affect the title of the parties relating to the property purchased.

If appellant had succeeded in obtaining a final judgment against Mary Louise Brammer, as independent executrix, the judgment would have had the collateral effect of establishing a lien upon the property of the estate; however, the establishment of such a lien would have been merely incidental to the issue involved in the case of Neyland v. Mary Louise Brammer.

For this reason the judgment of the trial court is in all things affirmed.

Affirmed.