author: GRAVES, Justice.

text:
    ÆTNA LIFE INS. CO. v. SWAIN et al.
    No. 11098.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 13, 1941.
    Rehear in gs Denied March 20, 1941.
    Fouts, Amerman & Moore, of Houston, for appellant

      Burris & Benton, of Houston, for appel-lees.
   GRAVES, Justice.

These respective statements from the briefs of the parties are deemed sufficient:

“This is an action on a certificate of insurance issued by the ¿Etna Life Insurance Company to appellee under a group policy insuring certain employees of the Humble Oil & Refining Company against death and total and 'permanent disability. Appellee was insured (against death and total and permanent disability) in the amount of $2000.00, and this suit was filed by appel-lee to collect the accrued monthly installments which hppellee claimed had matured and become due under the policy commencing from the date on which she had notified the company of her claimed total and permanent disability. The group policy and certificate provided that the company would commence the payment of the monthly installments due under the policy for total and permanent disability six months after the receipt at the home office of satisfactory evidence of such disability. This action was filed prior to the expiration of the six months’ period and the court upon a jury verdict rendered judgment in favor of appellee in the sum of $330.00, plus $39.60 penalties, plus attorney’s fees in the amount of $175.00, which judgment was arrived at, in so far as the principal amount was concerned, by including installments commencing with the date on which notice of total and permanent disability was received at the .home office of the appellant company, rather than six months from said date. The judgment was entered without prejudice to the rights of the ¿Etna Life Insurance Company, in so far as future liability under the policy and certificate was concerned. The ¿Etna Life Insurance Company has duly perfected its appeal from this judgment and this case is therefore properly before this court for review and determination.”

The statement by appellant is sufficient, with the following corrections:

“Appellee, prior to the institution of this suit, advised appellant of her disability and requested of appellant blanks for making proof of loss, which were furnished to her by the appellant, and appellee completed the blank provided to her for such purpose and returned it to the company. The proofs furnished by appellee, contained a positive statement by her attending physician that it was his belief that her disability would be permanent. Appellant arbitrarily refused to consider such proof as sufficient prior to the expiration of the six months’ period after the making of the same. Appellee, after the receipt of the denial of liability by appellant, and before the expiration of the six months’ period, filed this suit.”

The appealed-from judgment was rendered both in response to the jury’s findings on special issues submitted and the court’s independent findings from the evidence; in brief substance, the jury’s answers were that appellee had sustained, on March 14 of 1939, from drinking a solution containing ammonia, totally and permanently-disabling bodily injuries, which disability began after March 14 and before June 19 of 1939; that $175 was a reasonable fee to be allowed appellee’s attorneys for their legal services to her in this case; that her disability was neither partial nor temporary, nor could it be relieved even in part by any reasonable medical treatment during her life.

The court’s added findings were these:

“And it appearing to the Court that the plaintiff, Mrs. Ethel D. Swain, furnished to the defendant ¿Etna Life Insurance Company in June, 1939, satisfactory evidence that while insured under the group policy No. 5357 issued by defendant to Humble Oil & Refining Co. and subsidiary companies and certif. No. 5539 that she became totally disabled by bodily injuries from engaging in any occupation for compensation or profit; and that she will be so disabled for life;
“And it further appearing to the Court that the defendant ¿Etna Life Insurance Company denied liability to the plaintiff Mrs. Ethel D. Swain under said group policy of insurance and certificate issued, to her;
“And it further appearing to the Court that the plaintiffs made due demand upon the defendant ¿Etna Life Insurance Company for the payment of benefits due Mrs. Ethel D. Swain more than thirty (30) days prior to the filing of plaintiff’s amended petition herein; and it further appearing to the Court that plaintiffs requested defendant to increase the first monthly payment to One Hundred and Fifty Dollars ($150.00) and to increase each succeeding monthly payment to Thirty six dollars ($36.00) per month.”
Among a number of propositions urged with that objective, the appellant presents, for reversal, these two:
“Eighteenth Proposition.
“The court should not have rendered judgment in the amount of $330.00, with 12 per cent penalties in the amount of $39.-60, for the reason that said amount under the pleadings was based on the holding by the court that appellant was obligated to commence payment from the date notice of total and permanent disability was given by appellee to the home office, whereas under the pleadings, the evidence, and the terms of the group policy and certificate upon which appellee’s action was based, the appellant company was in no event obligated or bound to pay any amount to ap-pellee until after the expiration of six months from receipt of such notice.”
“Nineteenth Proposition.
“The court should not have rendered judgment for 12 per cent penalties in the amount of $39.60, and attorney’s fees in the amount of $175.00, for the reason that there was no proof of a demand having been made, as required by law, and a refusal by appellant company to pay appel-lee’s claim in accordance with the terms of the group policy and certificate, after demand had been made, as required by law; that when request for additional evidence of total and permanent disability was made by appellant, under the terms of the policy, no such proof was furnished.”

The quoted propositions are both thought to be well taken; in the first place, the appellee sought benefits for disability, not death, which, under the terms of her policy, were payable, expressly by its terms, in monthly installments, payments, in a lump sum being called for only as to death benefits. As this court reads the holdings of our Texas courts as to such a contract, a refusal of the appellant to pay the first, or any succeeding installment, even if undisputedly made, did not authorize the acceleration of the other payments, and permit recovery of them all at once in a lump sum. New York Life Ins. Co. v. English, 96 Tex. 268, 72 S.W. 58; Pan-American Life Ins. Co. v. Welch, Tex.Civ.App., 74 S.W.2d 408, and cited authorities at page 414, bottom column 1.

In the second place, the theory upon which the able trial court accelerated the specified monthly installments, which by the contract were only to begin six months after the insurance company had-received satisfactory proof of the disability — that is, that appellant had denied its liability before the expiration of the six months provided for — is not sustained by the evidence; indeed, it seems clear to this court that, from the undisputed evidence, no such denial , of liability, within the meaning given those terms by our courts, occurred; to the contrary, that evidence is to the effect that appellant, through its claim examiner, in reply to a letter from appellee’s attorneys of August 1 of 1939, making formal demand in appellee’s behalf for permanent total disability under this contract, on August 9 of 1939, responded in writing to such demand, addressed to her attorneys, as follows: “Gentlemen :

“Receipt is acknowledged of your letter ' of August 1 making formal demand for permanent total disability benefits under this insurance. ‘
“In regard to the evidence submitted by you and your client, we observe that there were statements from three physicians. Two of the doctors did not certify to permanent total disability and the third one, in answer to the question regarding such disability, said he did not know, although he did indicate that the total disability might be permanent.
“At our expense we had this insured examined, and the report did not show this insured was permanently totally disabled. In other words, the evidence which you submitted and that which we gathered did not show that this claimant is entitled to benefits under the permanent total disability clause. Because you are making a demand for these benefits you must be of the opinion that this insured comes within the permanent total disability provision and you presumably have evidence' substantiating this. If you have such evidence, we suggest that you submit it to us. It is a condition of the contract that we are not liable unless we are furnished with satisfactory evidence of permanent total disability as described in the policy. We shall be pleased to consider any evidence which you desire to submit.
“Yours very truly,
“/s/ R. J. Peyton,
“Claim Examiner.”

It is likewise shown that this prompt request of appellant for additional evidence of the total and permanent disability the appellee so claimed under the terms of the policy was never granted, and no such proof was ever furnished; wherefore, since the claim examiner’s letter was nothing more in substance and effect than such a request for additional evidence, or proof, of a claim the deficiencies of which had been so specifically pointed out by them, there was in fact and law no denial of liability. Connecticut General Life Ins. Co. v. Williams, Tex.Civ.App., 87 S.W.2d 807; R.S. Article 4736; First Texas Prudential Ins. Co. v. Long, Tex.Com.App., 46 S.W.2d 297.

Under these decisions and cited Article 4736, this demand of the appellee, through her attorneys, on August 1 of 1939, was, by the uncontroverted testimony, not made at a time when the appellee had the right to make it, since, as the court found, the only proofs of permanent and total disability the appellee sent appellant were those received by the letter in June of 1939; whereas, as recited supra, the company was only bound to pay the first one of the installments six months after the receipt of such a notice; so that this demand was made before the agreed-upon six months’ period had expired, and at a time when the company was not obligated thereby to pay anything.

Neither, for the same reason, was the appellee entitled to recover the allowed 12 per cent penalties and the $175 attorney’s fees, her demand for payment having thus been made before compliance with the express provisions of the policy. This was not a compliance with the terms of Article 4736, because the judgment had matured the installments improperly, and the attorney’s fees, based upon it, must fall with it. American National Ins. Co. v. Park, Tex.Civ.App., 55 S.W.2d 1088; American National Ins. Co. v. Shelton, Tex.Civ.App., 83 S.W.2d 698; Metropolitan Life Ins. Co. v. Pribble, Tex.Civ.App., 82 S.W.2d 414; State Life Ins. Co. v. Parks, Tex.Civ.App., 89 S.W.2d 289.

This court is not prepared to hold the trial court to have been without jurisdiction of the cause at all, as appellant contends, being of opinion that, since the suit as declared upon by the appellee discloses a potential contractual liability of $2,000, it made the controversy a justiciable one at the hands of a county court at law, as to the small part of such potential liability here involved.

Since the errors pointed out require a new trial, the other matters discussed in the briefs become immaterial, hence will not be further disposed of.

Judgment reversed and cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: BOND, Chief Justice. BOND, Chief Justice. PER CURIAM.

license: Public Domain

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al. v. BARR.
    No. 12936.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 23, 1940.
    On Rehearing Jan. 11, 1941.
    On Second Motion for Rehearing Eeb. 15, 1941.
    Rehearing Denied March 15, 1941.

      Locke, Locke, Dyer & Purnell and Hubert D. Johnson, all of Dallas, for appellants.
    George M. Feild, of Dallas, for appellee.
   BOND, Chief Justice.

Charles Jack Barr instituted this suit in a district court of Dallas County, for damages sustained by two automobiles, and for personal injuries, alleged to have resulted from (1) a collision of an automobile driven by appellee and appellants’ train, and (2) a subsequent collision, at some distance from the first, of another automobile driven by appellee, and a telephone -post. It is alleged that the first collision occurred at the railroad crossing on Ervay Street, in the City of Dallas, as the result of defendants’ negligence; and,,that the injuries ap-pellee there received were the direct cause, some hours later, of his losing consciousness and becoming incapable of operating and controlling the automobile in which he was then riding, resulting in the second collision, and further personal injuries and damage.

The specific acts and omissions of the defendant St. Louis Southwestern Railway Company, its agents and employees, alleged to have been negligent, proximately resulting in the accidents, are: (1) Operating the train involved across a public thoroughfare of the City of Dallas without adequate warning of the proximity and approach of such train; (2) no warning signal of any kind was maintained at said crossing, and no watchman or flagman stood there to advise the traveling public, and particularly the plaintiff, of the. approaching train; and (3) no sounding of a bell or whistle, or any other signal, or indication of any character, was given to warn of the approach of such train.

The defendants (appellants) answered by general denial and plea, in general terms, of contributory, inexcusable negligence of the plaintiff.

The case was submitted to a jury on special issues embodying the alleged specific negligence of the defendants and such contributory negligence of the plaintiff, as reflected by evidence and defendants’ answer. The jury found defendants guilty of negligence, in the following respect: That, on the occasion in question, no employee of defendants gave any warning of the approaching switch engine and box cars, and that such failure was the proximate cause of the accidents; also found that defendants’ employees in charge of the switch engine did give warning of the approaching engine and box cars, by ring-, ing a bell and blowing a whistle. The jury acquitted plaintiff of all contributory negligence and assessed his damages at $1,400, apportioned — $1,320 for personal injuries, $45 damages to the automobile involved in the first collision, and $35 damages to the automobile involved in the second collision. On the verdict of the jury, the court entered judgment in favor of plaintiff for said sums, from which defendants have appealed.

The court’s charge, in submitting issues 1, 2 and 3, embodying negligence proximately causing the first collision, in that no employee of defendant gave warning of the approaching train, is challenged as being too general to advise the jury of the nature of the inquiry. This was called to the court’s attention by appropriate exceptions, before the charge was read to the jury. The issues read: “Special Issue 1. Do you find from a preponderance of the evidence that at the. time and on the occasion in question there was no employee of the defendant giving any warning of the approach of the defendant’s switch engine and box cars?”, to which the jury answered “Yes”; then, special issues 2 and 3, whether such failure was negligence and proximately caused the first collision; to which, the jury answered “Yes”.

It will be observed that issue 1 and the answer thereto embody in general terms all acts and omissions of negligence alleged against defendants, resulting in the collision of the trian and plaintiff’s automobile, to the effect that defendants’ employees failed to ring the bell, blow the whistle, give adequate warning, or maintain signals, watchman and flagman at the crossing. From such question and answer, manifestly, it cannot be determined readily in what particularity the jury found defendants’ employees guilty. If the implication is that defendants’ employees were guilty of failure to ring the bell and blow the whistle (and such interpretation evidently could be made of the findings), then such would be in conflict with the jury’s further findings in response to special issues 4, 5, 6 and 6a, to the effect that defendants’ employees were not guilty of negligence in those respects. The generality of the question submitted is the basis of appellants’ assignment and, in our opinion, presents reversible error.

Appellants further assign error on such findings, as presenting the irreconcilable conflict. This is evident, and our conclusion finds support in appellee’s brief, seeking to excuse the ill effects of such inconsistent findings, states that there is no evidence to sustain the special issues, and that questions 4 and 6a, relating to defendants’ employees’ failure to ring the bell and blow the whistle, were inadvertently submitted by the trial court. Absent objections to the court’s charge, appellate courts must presume that the trial court acted in accordance with the evidence; therefore, in the light of the record, we must: sustain the trial court in the submission of the issues.

A liberal interpretation of the evidence justified a jury finding on an issue of “unavoidable accident”. In due time, appellants submitted an appropriate special charge embodying such issue, which was refused by the trial court. Unavoidable accident having been raised by the evidence, we think the court erred in refusing to submit the issue. The jury, having acquitted plaintiff of all contributory negligence in approaching the crossing where the collision occurred, could have, with due regard to the evidence and with propriety, acquitted the defendants of all negligence in the operation of its trian and maintenance of a watchman or flagman at ■ the crossing. There is evidence that the train was backing toward the crossing at a rate of not more than 3 or 4 miles per hour; that the trainmen were keeping a proper lookout; that a flagman or switchman was standing at, or near, the intersection, and gave warning of the approaching train. The track was clear to vision for 71 to 250 feet, according to distance away from the track at the intersection; no obstruction, under the control of the defendants, was there to prevent a person desiring to use the crossing from seeing the approaching train. On the other hand, appellee’s version of the accident presents no negligence on his part; he was unable to see the approaching train until he was within 10 or 12 feet of the track, due to his view being obstructed by buildings, a large truck, and another automobile stationed near the track and between him and the approaching train. He testified that as soon as he saw the train, he applied his brakes and brought his car to a stop within a distance of about 12 feet; that he kept a proper lookout; and that he used ordinary care in approaching the crossing. Therefore, under such circumstances, the jury could, quite logically, have concluded that the collision was an unavoidable accident, that neither party was guilty of failing to exercise due care, and that the- obstructions, over which neither had control, resulted in the collision.

If the evidence supports the finding that the collision was the result of some unknown cause, or in some manner which is not explained, or under circumstances dif-. fering from those relied upon and constituting a part of plaintiff’s case, and which circumstances rebut the charge of alleged negligence for which defendant is responsible; and the jury could have found that neither party was negligent, then the issue of unavoidable accident is presented and should have been affirmatively submitted. Wichita Falls Traction Co. v. Craig, Tex.Civ.App., 250 S.W. 733; Colorado & S. R. Co. v. Rowe, Tex.Com.App., 238 S.W. 908; Russell v. Bailey, Tex.Civ.App., 290 S.W. 1108; Dallas Railway & Terminal Co. v. Garrison, Tex.Com.App., 45 S.W.2d 183; Texas & P. R. Co. v. Edwards, Tex.Com.App., 36 S.W.2d 477; Greer v. Thaman, Tex.Com.App., 55 S.W.2d 519; Orange & N. W. R. Co. v. Luther Harris, 127 Tex. 13, 89 S.W.2d 973.

Assuming that the Railway Company had no watchman or flagman at the crossing to warn the public of the approaching train, as may be implied by the jury’s response to issue 1, — that “no employee gave any warning”, under settled rules of law in this state, such would not, in our opinion, preclude a necessity for submission of unavoidable accident, if raised by testimony. The error of the trial court in refusing to submit the issue is not cured by findings of the jury that defendants were negligent, and that such negligence was the proximate cause of the accident. Glazer v. Wheeler, Tex.Civ.App., 130 S.W.2d 353; El Paso Electric Co. v. Hedrick, Tex.Com.App., 60 S.W.2d 761; Dallas Ry. & Terminal Co. v. Garrison, Tex.Com.App., 45 S.W.2d 183.

Appellants raise the further question that there is not sufficient evidence of liability of the Railroad Company for the injuries and damage to plaintiff in the second collision; and that the trial court erred in refusing to submit special issue limiting liability to the first accident. Plaintiff, apparently without personal injury, drove his automobile from the scene of the first collision to his father’s home, located several blocks away, rested, ate supper, and, while there, experienced some pain and headache which were allayed by sedatives. Thereafter, for the purpose of driving some two miles, or more, to his home, he entered another automobile and while enroute, lost consciousness and collided with a telephone post. There is no showing that plaintiff was suffering any ill effects from the first collision at the time he entered the second automobile; he entered it of his own free will; there was no urgency; he was under no compulsion or necessity to travel under such circumstances. There is no evidence that his unconsciousness, resulting in the second collision, was caused by the first collision, or that same was not superinduced by sedatives, or other causes. The independent intervening events leave to conjecture any causal connection between the two collisions. We think the jury should have been instructed specifically, in accordance with the charge requested by defendants, that no injuries sustained in the second collision could be considered in arriving at their verdict. The plaintiff, seemingly, did not know what occurred at the second collision. All expert medical testimony was, in effect, that plaintiff’s injuries resulted from both accidents. The argument is not sound, which seeks to trace the immediate cause of plaintiff’s injuries to the second collision, through previous stages of mental abnormality, physical suffering and medical treatment, following the first accident. Texas & N. O. R. Co. v. Murray, 63 Tex. Civ.App. 340, 132 S.W. 496.

On another trial, if the evidence is the same as here presented, liability of the defendants should be limited to the first accident by appropriate charge of the trial court.

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

Reversed and remanded.

On Motion for Rehearing.

BOND, Chief Justice.

On motion for rehearing, appellee challenges our findings on several minor matters, not affecting our final conclusion that the issue of “unavoidable accident” was present and should have been submitted to the jury, and that there was irreconcilable conflict in findings of the jury, necessitating reversal and remand of the cause.

Reviewing the entire record, including the statement of facts of some 288 pages, independent of recitals in the respective briefs, we adhere to our former opinion and conclude further that there is not sufficient evidence to support findings, in effect, that the crossing in question was so extra-hazardous or unusually dangerous as to require the use by the Railroad Company of extraordinary means, such as the maintenance of a flagman or switchman at the crossing to warn the public of its trains. However, there is evidence that a switch-man or “field-man”, a Mr. James, was, at the time of the collision, at or near the crossing, discharging the duties of a flagman; also that a Mr. Ward, another of the train crew, was there and that he walked across the street intersection, in advance of the train, to clear the track of a truck, belonging to a Mr. Erwin, which was stationed on the east side of Ervay Street immediately north of the track. Mr. Ward and Mr. Thurman, another member of the train crew, testified that they relayed Mr. James’ signals, that the crossing was clear and that the train could safely pass, to the engineer operating the train.

There is evidence that the train, immediately prior to the collision, was at a standstill on the west side of the intersection, destined to be backed eastward across Ervay Street and onto a switch track. Ap-pellee approached the crossing from the south, and, in response to questions, testified that he entered Ervay Street several blocks south of the intersection, traveling at 20 to 25 miles per hour, and then reduced his speed to 10 to 15 miles per hour; that he was familiar with the crossing, having traveled across the tracks at that point five or six times daily for the last five or six years; had observed trains switching back and forth and was entirely familiar with the' crossing and its surroundings; knew the general location of the building and tracks; knew the trains ran on the tracks, and that they passed over the crossing; that he reduced his speed on the occasion in question to about 10 or 15 miles per hour, up to the time he got on the track; started slackening his speed about 150 feet back; looked on the crossing for a flagman; that he always looked to see if a train was coming; that he didn’t see a train or flagman, though he looked for one. He stated further that he saw a man but did not know whether he was a flagman, or who he was; he paid no attention to him; that the man was talking to a truck driver on the north side of the street; that his attention was directed to the truck and driver (Mr. Erwin) — naturally, was watching to see if the driver was going to pull his truck out in front of him. Testifying further, he said: “I was about 15 or 20 feet from the track at that time (when he observed the truck, and the men talking). I was not over 12 or 15 feet from the track when I first saw the train; I was going about 10 miles per hour. I applied my brakes as soon as I could and stopped the car on the track before the train got there. The train was right on me, — I don’t know, 3 or 4 feet, — struck my car and pushed me 3 or 4 feet before it stopped. I did not see the train when it was standing over on the other side of the street, before it started to proceed into the street. The train wasn’t in view at all until I got up close to the track. When I was back, say 50 or 60 feet from the track, I did not see the train. I never noticed the truck and the truck driver at that time. I always looked for a train when back 100 feet or so from the track. At this time, I looked to the east and to the west for a train — in both directions. I first looked, when about 100 or 150 feet from the track; I did not see any train. I glanced back and forth in both directions, as I approached the track. When I was 100 feet back, the brick building (on southwest corner) obstructed my view; when I was 50 or 75 feet back, I looked for a train; didn’t see any; if I had seen one, would have stopped. I looked for a train when I was 30 to 40 feet from the track, but didn’t see any. I again looked in both directions. At the speed I was going, I could have stopped my automobile when within 20 feet of the track. When the train struck my car it wasn’t. going so awful fast; — I would say, 3 or 4 miles per hour * * * When I drove up on the track, the man, who afterwards told me he was one of the trainmen, was on the north side of the track, the northeast side, talking to this truck driver. I did not see him signal the engine for the train to stop. I did not know whether he did or did not signal the engineer. I saw him over there when I drove on the track.”

The uncontroverted testimony shows further that the brick building, on the southwest corner of the street intersection, which appellee claims obstructed his view, stood 25.7 feet from the center of the switch track on which the train in question was moving, and 23.4 feet from the nearest rail. Ervay Street, between curbs, was 45 feet wide; there was a sidewalk 12 feet wide on the west side, and one 7 feet wide on the east side, making the total distance between the building on’ the southwest corner and the one on the southeast corner 64 feet. At 71 feet south (east of the center of Ervay Street), the view northwestward toward the railroad was unobstructed for a distance of 82 feet; at 44 feet south, the view of the railroad was unobstructed for 110 feet; at south 30 feet, unobstructed for more than a block, and at 20 feet, a clear view could be had up the railroad track as far as one could see.There was no obstruction whatsoever to a clear view between the relative positions above indicated.

Manifestly, there is no reason to believe that an approaching train could not have been seen by appellee had he exercised any degree of care for his own safety before' attempting to cross the railroad track. The evidence reflects inexcusable negligence on his part. Had appellee looked, at any time after he reached a point 70 feet south of the south rail of the track upon which the switch engine and cars were approaching the crossing, he could have seen the train; and at any time before he reached a point, say 20 feet south of the track, his automobile could have been stopped before going upon the track. The street was level and the view in all directions unobstructed. Appellee testified he did not see the train ~ crossing the street until too late to avoid the collision. His attention was directed to the Erwin truck, standing across the track, facing Ervay Street, which he thought was about to move into his lane of travel. As a consequence of his own failure to observe the slowly moving train, he drove upon the track, applied his brakes and stopped his car in front of it.

A judgment based upon alleged negligence of the Railroad Company in not having extraordinary means of warning at or upon the crossing should not be permitted to stand under the facts of this case. Ap-pellee approached the intersection at 10 or 15 miles per hour, looked in both directions — east and west — at a crossing, unobstructed, entirely familiar to and much used by him, yet did not observe the train; thus it might well be said that he would not have seen a flagman, if one had been present.

Failure, if any, of the Railroad Company to have a flagman could not have been and was not the proximate cause of the collision. The train itself, upon the track, was sufficient warning and notice to persons about to use the crossing. Under the evidence, the crossing was not more than ordinarily dangerous, and reasonable minds could reach no conclusion other than that appellant was not guilty of negligence in not maintaining extra precautionary signals at such intersection. By an unbroken line of authorities, the rule seems to be well-established in Texas that appellant was under no-obligation to maintain a flagman or resort to other extraordinary means to warn persons approaching said crossing, unless such crossing is more than ordinar-

ily hazardous. Texas & N. O. R. Co. v. McMahan, Tex.Civ.App., 144 S.W.2d 1019; Texas & N. O. R. Co. v. Stratton, Tex.Civ.App., 74 S.W.2d 746; Texas & N. O. R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113; Thompson v. St. Louis Southwestern R. Co., Tex.Civ.App., 55 S.W.2d 1084, 1085; Robinson v. Houston Belt & Terminal R. Co., Tex.Civ.App., 23 S.W.2d 894, 895; St. Louis S. W. R. Co. v. Hill, Tex.Civ. App., 13 S.W.2d 420; Galveston-Houston Electric R. Co. v. Patella, Tex.Civ.App., 222 S.W. 615, 627; Smith v. Galveston-Houston Electric R. Co., Tex.Civ.App., 265 S.W. 267; Gillham v. St. Louis Southwestern R. Co., Tex.Civ.App., 241 S.W. 512; Galveston, H. & S. A. R. Co. v. Burr, Tex.Civ.App., 291 S.W. 299; Texas & N. O. R. Co. v. Adams, Tex.Civ.App., 27 S.W.2d 331, 334; Louisiana Ry. & Nav. Co. v. Loudermilk, Tex.Civ.App., 295 S.W. 193.

Measured by this rule, the evidence in this case does not raise an issue of negligence on the part of appellant in the respects alleged in the petition. As stated above, appellee was familiar with the situation and surroundings of the crossing and had passed over it five or six times daily for the past five or six years. He paid no attention to the slowly moving train at a time when he could have stopped in safety, but was paying attention to Mr. Erwin and his truck, immediately across the track, until too late to stop his auomobile. His only excuse for not sooner slackening his speed and stopping before going upon the track is that he did not see the train, that he did not recognize the flagman, Mr. James, and that his attention was directed to the truck, thinking it might move forward in his line of travel. It seems to us, in view of appellee’s admissions, that he must be .held guilty of negligence.

The case having been fully developed, and the evidence being insufficient to support findings by the jury to the effect that the crossing in question was more than ordinarily dangerous, and that the Railroad Company was guilty of negligence in failing to give adequate warning of the proximity and approach of its train, proximately causing the collision, appellee’s motion for rehearing is overruled, the judgment heretofore rendered, remanding this cause, is set aside and judgment here rendered that appellee take nothing.

YOUNG, J., dissents on the rendition; otherwise, adheres to the original opinion.

On Second Motion for Rehearing.

PER CURIAM.

Appellee’s second, or amended, motion for rehearing assigns error on our action in reversing and rendering this cause, because of the findings of the jury and the evidence recited in the record, to the effect that appellant had no flagman at the crossing to give warning, thus leading him into a sense of security that no train was approaching, fortified by proof that he had passed over the^crossing many times each day for five or six years, when flagmen were stationed at the' crossing, and he thereby relied on the absent flagman in approaching the zone of danger. We answer the assignment that there are no pleadings justifying such contention.

However, we realize the force of the assignment and other contentions, and that appellee may be able to strengthen his action, both in pleadings and evidence; also, that appellate courts are never justified in reversing and rendering a cause, when there is some reasonable ground that the case has not been fully developed and a reasonable probability of liability shown, on another trial. This, we think, is disclosed in appellee’s motion; therefore, the judgment of this court heretofore rendering this cause in favor of appellants is set' aside and the cause is remanded to the court below for new trial, in accordance with our original opinion.

Cause reversed and remanded.


author: PRICE, Chief Justice.

text:
    FRENCH et al. v. FRENCH et al.
    No. 4007.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 20, 1940.
    Rehearings Denied Feb. 27, 1941.
    Further Rehearing Denied March 13, 1941.

      C. Burt Potter, of Sinton, and Sidney P. Chandler, of Corpus Christi, for appellants.
    Oscar Spitz and Keys & Holt, all of Corpus Christi, and W. B. Moss, of Sinton, for appellees.
   PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of San Patricio County. The action seems to have been originally instituted by Mrs. William French, individually, and George W. French and Charles E. French, as independent executors of the estate of William French, deceased, as plaintiffs, against Kathleen French, as defendant. Kathleen French filed a cross-action therein against George W. French, Charles E. French, Nellie May Sutherland, Violet French, and Mary Grace Griffis, and her husband, James Griffis. Charles E. French filed a pleading seeking relief against the same parties sued in the cross-action of Kathleen French, other, of course, than himself. Mary Grace Griffis, joined by her husband, and Nellie May Sutherland filed pleadings seeking relief against Kathleen French and Charles E. French. Plaintiffs, Mrs.'William French, Charles E. French and George W. French, took a voluntary nonsuit.

The .issues were joined by the parties seeking affirmative relief. The trial was before the court and jury, the case -submitted on special issues, and judgment was rendered thereon. From' the judgment rendered George W. French, Violet French, Nellie May Sutherland and Mary Grace Griffis, joined by her husband, James Griffis, have duly perfected this appeal.

The pleadings are somewhat complicated, but to a proper understanding of the issues involved it is necessary to at least summarize same.

The pleas of Kathleen French and Charles E. French, each separate and filed by different attorneys, with unimportant exceptions to be later noted, are about identical.

Kathleen French’s pleading was in the nature of an action of trespass to try title. She sought recovery from the adverse parties to her action of the title and possession of certain lands in San Patricio County, formerly part of the community estate of William French, deceased, and Sarah Ann French, deceased; she sought the recovery of full title and possession of two tracts aggregating about 108 acres; she sought recovery of an undivided l/12th interest in and to the south 40 acres of the east 80 acres of a certain 188-acre tract, of which the two tracts she sought recovery to in full were formerly a part; recovery of an undivided l/12th interest in a lot situated in the town of Portland in San Patricio County; further, an undivided 13/168th interest in a number of other lots situated in the town of Portland.

She averred that on or about October 28, 1924, Sarah Ann French and her husband, William French, entered into a contract for a valuable consideration that they would make mutual and reciprocal wills, each devising to the other an estate for life in their community property, with the remainder in certain of such property to certain of their children in certain proportions; that as to the 108-acre tract and 40-acre tract of land described, it was specifically agreed that the survivor should have a life estate, with the remainder to their son, John T. French, in the 108-acre tract and with the remainder of the 40-acre tract to their daughter, Rosa Ann French; further, that in pursuance of said contract, on the 28th day of October, 1924, such wills were duly executed. The will of said Sarah Ann French is charged to be in possession of the adverse parties to her action.

She averred that on or about the 5th day of July, 1925, William French died, leaving his will as aforesaid, which was duly probated, and a copy of the will was attached to the pleading and made a part thereof; that John T. French died testate on or about August 31, 1937, leaving a will in which she was the sole beneficiary; that such will had been duly probated; that Rosa Ann French was the sister of John T. French and died intestate on the 30th day of December, 1930; further, John T. French, Sarah Ann French, and those made defendants in her action, were the sole surviving heirs of Rosa Ann French; no administration was had on her estate and none was necessary.

That Sarah Ann French died on or about the 5th day of April, 1939, and upon her death the life estate vesting in her under the will of William French terminated, and the remainders provided for in his will took effect in possession. An attempt on the part of Sarah Ann French to revoke her alleged mutual and reciprocal will of October 28, 1924, was alleged. An election on the part of Sarah Ann French to claim under her husband’s will was averred.

There were numerous alternate allegations and prayers in her pleading which are not deemed necessary to be summarized.

The following is a copy of the will of William French attached to her pleading: “The State of Texas, County of San Patricio.

“Know All Men By These Presents, That I, William- French of the County of San Patricio, and State of Texas, being in good health, and of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all wills by me at any time heretofore made.

“First. I desire and direct that my body be buried in a decent Christianlike manner, suitable to my circumstances and condition in life.

“Second. I desire and direct that my just debts be paid out of my estate without delay, by my executors to be hereinafter appointed.

“Third. It is my will and desire that all of my property, both real and personal, which I may die seized and possessed of, after the payment of all my just debts, together with all expenses incident to the probating of this will, shall pass to and remain the property of my beloved wife, Mrs. Sarah Ann French, during her life time, and at her death, to be disposed of in the following manner,

“(1) I give and bequeath to my daughter, Rosa Ann French, Forty (40) acres of land, being the South Forty acres of the East Eighty acres of a tract of 188 acres now owned by me and my wife lying north of the school house in the town of Portland, in San Patricio County, Texas.

“(2) I give and bequeath to my daughter, Violet French, Forty (40) acres of land being the North Forty acres of the East Eighty acres of a tract of 188 acres now owned by me and my wife,’ lying north of the school house in the town of Portland, in San Patricio County, Texas.

“(3) I give and bequeath to my son, John T. French, One Hundred Eight acres more or less being all of a certain tract of 188 acres owned by me and my wife, lying north of the school house in the town of Portland, San Patricio County, Texas, less the land included in the last two above mentioned bequests.

“(4) I give and bequeath to my son, George W. French one hundred acres of land being Lot No. 4 in Block A of the Nueces Bay Subdivision of the Coleman-Fulton Pasture Co. land in San Patricio County, Texas.

“(5) I give and bequeath to my son, Charles E. French, the land described as One Hundred acres, being the West One Hundred Acres of the Southwest quarter of Section No. 65 of the Geo. H. Paul Subdivision of the Coleman-Fulton Pasture Co. land in San Patricio County, Texas.

“(6) I give and bequeath to my daughter, Mrs. Mary Grace Griffis, Four Thousand Dollars ($4,000.00) in cash.

“(7) I give and bequeath to my daughter, Mrs. Nellie May Sutherland, Four Thousand Dollars in cash.

“Fourth. It is my will and desire that the legacies to be paid in cash, as herein-above mentioned, shall be paid out of any money or personal property of which I may die seized and possessed; but in the event there should be an insufficiency of such money and personal property to pay said cash legacies, in that event, such sum or such deficiency thereof, shall be paid by all other beneficiaries in this will named, such sum to be by them proportionate to the number of acres of land bequeathed to each of them.

“Fifth. I hereby constitute and appoint my three sons, John T. French, George W. French and Charles E. French, joint executors of this, my last will and testament, and direct that no bond shall be required of them as such executors.

“Sixth. It is my will that no other action shall be had in the county or probate court in the administration of my estate than to prove and record this will and to return an inventory and appraisement of my estate and a list of claims.

“In testimony whereof I have hereto set my hand this the 28th day of October, A.D. 1924.

“William French

“Signed, declared and published by William French, as his last will and testament in the presence of us, the attesting witnesses, who have hereto subscribed our names in the presence of the said William French at his special instance and request, this 28th day of October, 1924.

“Geo. N. Bradley

“C. C. Carroll.”

The pleading of Charles E. French, as has been stated, is in all essential particulars the same as that of Kathleen French. He claimed different land under the will of his father, William French, and claimed to have inherited undivided interest from his deceased sister, Rosa Ann French.

George W. French, as independent executor of William French, and individually, . Violet French, Nellie May Sutherland, and Mary Grace Griffis, joinder by her husband, filed answer to the pleading of Kathleen French and Charles E. French. Each consisted of general demurrer, general exception and numerous special exceptions, and plea of not guilty.

Mary Grace Griffis, joined by her husband, and Nellie May Sutherland sought affirmative relief against Charles E. French and Kathleen French. They set up their respective legacies under the wills; the provision therein that in the event there should be an insufficient amount of personal property or money on hand to pay same, same should be paid -by the other beneficiaries under the will in proportion to the number of acres of land bequeathed to each; further, that on the death of William French there was no cash or personal property on hand with which to pay said legacies, and same had not been paid. A lien was claimed on the land sought to be recovered by Charles E. French and Kathleen French to secure the payment of said legacies. It was further set up that if William French and Sarah Ann French made mutual and reciprocal wills, or that Sarah Ann French was bound by the terms of the will of William French, then, they were each entitled to the legacy specified in the will of Sarah Ann French and William French, totaling $8,000 each. These legacies were sought to be proportionately charged against the land sought to be recovered by Charles E. and Kathleen French.

Kathleen French filed answer to the portion of the pleading just before summarized. This answer consisted of a general exception, numerous special exceptions, general denial, and a special pleading. The substance of the plea was that the wills of Sarah Ann French and William French were mutual, reciprocal wills, and thereunder Mary Grace Griffis was entitled to the sum of $4,000 only and the same as to Nellie May Sutherland; that under the terms and provisions of said wills the two $4,000 legacies were to be paid out of any personal property in the hands of the survivor on the death of such survivor, and if such personal property was insufficient, then the balance to be paid by the other beneficiaries under the will as provided in the will; that Sarah Ann French survived her husband, and died on or about April 5, 1939, leaving a large amount of personal property sufficient to pay said legacies in full; but in the event that such proved not to be correct, Kathleen French tendered equity. She then sought a construction of the wills and averred that under a true construction a single legacy of $4,000 each was provided for Nellie May Sutherland and Mary Grace Griffis.

The 'foregoing attempted summary is perhaps inadequate to truly reflect the full scope of the pleadings. Same are rather lengthy, and suffice it to say the issues involved, which we shall hereafter discuss, are all in the compass of the pleadings.

The issues submitted by the court and the findings thereon by the jury are as follows:

“Special Issue No. 1: Do you find from a preponderance of the evidence that on or about October 28, 1924, Wm. French and wife, Sarah Ann French agreed, each with the other, to make testamentary disposition of their community property by each devising to the other an estate for life in all of same, with remainder in certain community property to certain of their children in designated shares or portions?
“Answer: Yes.
“Special Issue No. 2: Do you find from a preponderance of the evidence that Wm. French and Sarah Ann French, on or about October 28, 1924, each executed separate wills in accordance with said agreement?
“Answer: Yes.
“Special Issue No. 3: Do you find from a preponderance of the evidence that Wm. French died, leaving his will dated October 28, 1924, believing that his wife, Sarah Ann French, had executed and had not revoked an identical will, executed by her on October 28, 1924, except that such will of Sarah Ann French named Wm. French as beneficiary where the will of Wm. French named Sarah Ann French as beneficiary?
“Answer: He did.
“Special Issue No. 4: Do you find from a preponderance of the evidence that Sarah Ann French, from and after the probate of the will of Wm. French, deceased, accepted the benefits devised to her by said will of Wm. French, deceased?
“Answer: Yes.
“Special Issue No. 5: Do you find from a preponderance of the evidence that Sarah Ann French, from and after the probate of the will of Wm. French, deceased, exercised dominion over all of the property described in the will of Wm. French, deceased ?
“Answer: Yes.
“Special Issue No. 6,: Do you find from a preponderance of the evidence that Sarah Ann French did not revoke her will theretofore executed by her on October 28, 1924?
“Answer: She did not.
“Special Issue No. 8: Do you find from a preponderance of the evidence that at any time after the probate of the will of Wm. French, deceased, Sarah Ann French elected. to take under said will of Wm. French, deceased?
“Answer: Yes.
“Special Issue No. 11: Do you find from a preponderance of the evidence that cross-plaintiff Kathleen French and husband, John T. French, erected their home and improvements on the 108-acre tract described in cross-plaintiff’s petition in the good faith belief that said 108 acres of land was to be theirs ?
“Answer: Yes.
“Special Issue No. 12: Do you find from a preponderance of the evidence that the home and improvements erected by John T. French and cross-plaintiff Kathleen French on the 108 acres of land described in cross-plaintiff’s petition enhanced the value of said land ?
“Answer: Yes.
“Special Issue No. 13: To what extent do you find from a preponderance of the evidence did the erection of such home and improvements enhance the value of said 108 acres of land?
“Answer: $5,500.00.
“Special Issue No. 14: What, if any, do you find from a preponderance of the evidence was and is the reasonable market value of the home and improvements built by John French and cross-plaintiff Kathleen French on the 108 acres of land: (a) In April, 1925? (b) On April 5, 1939?
' “Answer: (a) April, 1925 $5500.00
(b) April 5, 1939 $5500.00
“Do you find from a preponderance of the evidence that Sarah Ann French did not revoke said will prior to the death of William French?
“Answer: She did not.
“Do you find from a preponderance of the evidence that the separate wills executed by William French and Sarah Ann French, on or about October 28, 1924, in accordance with said agreement, were identical wills, except that the will of Sarah Ann French named William French as beneficiary where the will of William French named Sarah Ann French as beneficiary ?
“Answer: Yes.”

On this verdict the adverse parties respectively moved for judgment.

Judgment on the verdict was rendered on the 26th day of October, 1939. In the judgment Kathleen French was decreed to recover the 108 acres of the 188-acre tract in San Patricio County, same being described by metes and bounds; Charles E. French was decreed to recover the 100-acre tract described in his pleading. As to the undivided interest sought to be recovered by Kathleen French and Charles E. French, same were recovered by each in substantial accord with the prayers of their respective pleadings; the clouds cast by the claims of the adverse parties to the lands awarded respectively to Kathleen French and Charles E. French were in all things quieted.

As to the undivided interest dealt with by the judgment, a partition was ordered, and commissioners were appointed to consummate same.

On the plea for affirmative relief of Nellie May Sutherland and Mary Grace Griffis, joinder by her husband,'it was decreed that they take nothing against Kathleen French and Charles E. French.

It was decreed that under the premises that the full rights of Nellie May Sutherland and Mary Grace Griffis were respectively limited to a single legacy each in the sum of $4,000, the said respective legacies payable out of the money and personal property which Sarah Ann French was seized and possessed of at the time of her death; in case such personal property was insufficient, then the beneficiaries should proportionately contribute in accordance with the acreage received by each under the will; that the payment by Kathleen French and Charles E. French of this proportionate part of the deficiency, if any, should fully discharge all of their obligations to Nellie May Sutherland and Mary Grace Griffis on account of their respective legacies.

The costs, save as to the partition, were adjudged against George W. French, Violet French, Nellie May Sutherland, Mary Grace Griffis and her husband, James Grif-fis.

First, let us consider the facts here presented — consider those matters established by the uncontroverted evidence and those issuable facts determined by the verdict and the findings of the court.

William and Sarah French were husband and wife. The property involved 'herein constituted their community estate. On October 28, 1924, they agreed with each other that each should make a will leaving, the one to the other, a life estate in the community property. The remainders of the community property to be partitioned among their children, as it was done by the will of William French, with legacies in the sum of $4,000 to two of the children that were not devised land. This agreement was consummated by wills executed on that day by each party to the agreement. William French died on the Sth day of July, 1925. His will was duly probated, and at the time of the probate the like will made by his^wife was still unrevoked; that under said will his wife claimed to exercise possession over the entire property and enjoyed the rents and revenues thereof from the death of her husband up to the date of her death. Rosa Ann French died subsequent to her father, William French, and prior to the death of John T. French, her brother. Kathleen was the surviving wife of John T. French, was the sole beneficiary in his will which had been duly probated. Sarah Ann French died April 19, 1939, and prior to- her death sought to revoke her will of October 28, 1924. The will of October 28, 1924, has not, so far as the record shows, been probated or the probate thereof sought. No other will made by her has been probated, but probably the probate of another will has been sought. At the time of her death she was possessed of a considerable sum of money.

John T. French and Kathleen French, in reliance on the terms of the will of William French and Sarah French, made valuable improvements on the land devised to John T. French by his father’s will.

In the light of these facts and the terms of the will, let us endeavor to arrive at the intention expressed by the will. First, let us consider the matter without regard to the legal effect of the will. Clearly he intended that if his wife survived him she should have a life estate in the entire property. We think by the same token it was his intention that that should be the limit and extent of her right in any of the property. If she died before he did, his rights therein to be identical with hers in case he died before she did. That he intended to limit her rights to a life estate is evidenced by the disposition of the entire estate by his will upon her death. He unquestionably intended that the two wills make entire disposition of the community property and the devisees and legatees have the enjoyment and possession of their gifts at the death of the survivor of the marriage. If his wife survived him, upon her death Nellie May Sutherland and Mary Grace Griffis then each became entitled to receive their respective legacies.

The purposes of William French, as evidenced by his will, are none of them unlawful. In dealing with the one-half community interest of his wife he was dealing with property not his own. His will conferred on her rights with respect to his interest in the property which she otherwise would not have had. Further, he limited his right to dispose of his community interest otherwise than the will disposed of same. He primarily charged the legacies, if he survived his wife, on the money and personal property on hand at his death; his wife’s will, in case she survived him, made them a charge on the money and personal property on hand at her death. There was an exact, equivalent and identical consideration supporting the mutual contract as to the wills.

This contract for mutual and reciprocal wills was lawful and binding and could and should be enforced after one of the. parties had died and the will of such deceased party probated. Jordan v. Abney, 97 Tex. 296, 304, 78 S.W. 486; Larrabee v. Porter, Tex.Civ.App., 166 S.W. 395; 43 A.L.R. 1020; Epperson v. White, 156 Tenn. 155, 299 S.W. 812, 57 A.L.R. 607; 60 A.L.R. 627; 102 A.L.R. 491.

The first two cases cited are taken from the case of Wagnon v. Wagnon, Tex. Civ.App., 16 S.W.2d 366, which case, together with Larrabee v. Porter, supra, has much in common with the instant case. In each case writ of error was denied by the Supreme Court. Many of the questions arising by the briefs here receive authoritative answers in these two cases.

However, Kathleen and Charles E. French cannot claim under the will of Sarah Ann French of October 28, 1924. This will has never been probated. Their claim must of necessity be based upon the contract of October 28, 1924, between Sarah Ann French and her husband, or upon the election of Sarah Ann French to claim under the will of her husband. These theories are not necessarily antagonistic. So, as to Nellie May Sutherland and Mary Grace Griffis as to the legacies provided for in the wills. By virtue of their mother’s will they cannot claim, because this, as a will, has never been probated. In the absence of the probate of the will of their mother of October 28, 1924, they may have a claim against her estate in the amount of $4,000 each, but such claims are not claims for legacies under her will.

No personal representative of Sarah Ann French is a party to this litigation. It seems that at the inception thereof she was one of the plaintiffs, but died before the trial. The judgment entered on the 26th day of October, 1939, recites that plaintiffs voluntarily dismissed their suit. It is clear before her death and while the suit was pending the various parties had filed their affirmative pleas for relief, and even though the dismissal were effective, it did not operate to dismiss their pleas. Relief was sought by cross-action as to which, as to all intents and purposes, she was a defendant. As has been stated, no personal representative of hers is a party hereto. All of her. heirs may be parties in some capacity to this suit. However, neither by allegation nor proof does this appear.

If Mary Grace Griffis and Nellie May Sutherland have a claim against her estate, either by the contract to make mutual wills or by their mother’s election to take under her husband’s will, some sort of an administration would seem to be necessary. Sarah Ann French left some seven or eight thousand dollars on deposit in banks at the time of her death.

Unless the contract of Sarah Ann French of October 28, 1924, and the probate of her husband’s will in pursuance of that contract, or her election to take under his will, divested her of all but a life estate in the lands, she died seized of an estate in fee simple in one-half thereof. Upon the death of Sarah Ann French, Charles E. French and Kathleen French asserted the right of the exclusive possession of part of the lands herein involved. Who might authoritatively question that right? Manifestly, the legal representatives of Sarah Ann French might do so; the heirs of Sarah Ann French might do so, if there was no administration and no necessity therefor. Suppose this judgment be affirmed, would it be binding on her legal representatives ? As such they have never had their day in court.

The heirs cannot recover property unless there be a showing made that no administration is pending on the estate of the intestate and no necessity therefor. We think that suit cannot be maintained against an heir for the recovery of real estate without a showing that there is no administration and no necessity therefor.

Article 1982, Revised Statutes, provides: “In every suit against the estate of a decedent involving the title to real estate, the executor or administrator, if any, and the heirs shall be made parties.” See, also, East v. Dugan, 79 Tex. 329, 15 S.W. 273; Bluitt et al. v. Pearson, 117 Tex. 467, 7 S.W.2d 524; Jones v. Gibbs, 133 Tex. 645, 130 S.W.2d 274; Stanley v. Stanley, Tex.Civ.App., 139 S.W.2d 876.

In other words, Kathleen and Charles E. French cannot recover on their cross-action without a showing that there is no administration on the estate of Sarah Ann French and no necessity therefor. If claim the other parties have, it is as heirs or devisees of Sarah Ann French. Her legal representatives should be parties hereto, or a valid legal reason given for their nonjoinder.

Too much has probably been said in the discussion of this case on its merits. What has been said as to the merits is not binding on the subsequent trial. It was merely offered by way of suggestion.

The case is reversed and remanded on account of the nonjoinder of necessary parties.

On Rehearing.

We have in this case carefully reviewed our disposition thereof in the light of the motions for rehearing filed by appellants and appellees, and believe that the case has been correctly disposed of.

At the time of the dismissal of the original suit Mrs. Sarah Ann French was dead. This is perhaps unimportant. The parties so considered it, and we so consider it.

However, in the last analysis, Charles French and Kathleen French seek to specifically enforce the contract between Mr. and Mrs. William French to make mutual and reciprocal wills. William French’s will has been probated; that of his wife has not. The jury found Mrs. French made such a will and never revoked same. This finding, however, does not give the will of Mrs. William French, that is, the will she made at the time William French made his will, any effect in law. The finding is not binding on the Probate Court. The judgment, among other things, specifically enforced the alleged contract between William French and his wife. No representative of her estate was before the court other than, perhaps, some of her heirs.

Both motions for rehearing are overruled.


author: GRISSOM, Justice.

text:
    LOWE et al. v. CITY OF MUNDAY et al.
    No. 2110.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 14, 1941.

      Davidson & McMahon, of Abilene, for appellants.
    M. F. Billingsley, of Munday, for appel-lees.
   GRISSOM, Justice.

The City of Munday and Munday Independent School District instituted this suit in the District Court of Knox County against F. A. Lowe, H. O. Wooten, and H. O. Wooten Grocer Company, residents of Taylor County. Plaintiffs alleged that G. W. and Tom Haney formerly operated a store under the name of Haney Grocery in the city of Munday. That, about September 4, 1939, the Haneys became insolvent and made a voluntary assignment to F. A. Lowe, for the benefit of their creditors, and executed a deed of assignment to him which was accepted; that Lowe was an employee and officer of Wooten Grocer Company “and in this instance is and was the alter ego of said H. 0. Wooten Grocer Company and was acting for said H. O. Wooten Grocer Company in the matters and things hereinafter alleged.” Plaintiffs’ next allegation was as follows: “Plaintiff further avers that they and each of them after having received notice of such assignment from the said F. A. Lowe, assignee, filed their claims with him * * * and agreed to accept under said deed of assignment.” (Italics ours.) There followed allegations of assessment of taxes by the City against the “stock and fixtures” belonging to Haney Grocery for the years 1932 to 1939, inclusive, amounting to $266.26,- and assessment of taxes by the school district for the years 1933 to 1939, inclusive, in the sum of $128.-60, and that such taxes, penalties and interest constituted a valid and subsisting lien against said stock and fixtures, and were a prior lien thereon to that of any other creditor. That Lowe, acting for the Wooten Grocer Company, took possession of the property of Haney Grocery of the Value of $2,240; that Lowe notified the creditors of. Haney Grocery that a sale of its assets would be made on September IS, but that sale was postponed; that thereafter on September 24, on Sunday, Lowe, acting with Wooten Grocer Company, and without notice to the creditors, removed the stock, fixtures and assets of Haney Grocery from Munday “thereby depriving the creditors of said Haney Grocery of the value thereof, and misappropriating and misapplying such assets to the use and benefit of said F. A. Lowe and H. O. Wooten Grocer Company * * * Plaintiffs alleged “that by reason of the illegal, fraudulent, conspiracy and conduct and action on the part of said defendants, that these plaintiffs have lost their debt, and that by reason of such conduct on the part of the defendants and each of them, they and each of them have become personally liable, to plaintiffs and other creditors for the full value of the property, estate and assets of said Haney Grocery so misappropriated and embezzled as aforesaid.” Plaintiffs alleged that the assignment was not a statutory but a common-law assignment. It was alleged that the “fraud” of defendants culminated and was practiced upon the creditors in Knox County, and “such conversion of said assets so occurred at the time and place here-inbefore alleged, which gives this court jurisdiction of the persons and the subject-matter of this suit.” Plaintiffs prayed for judgment for the value of the property converted and “that a substitute as-signee be appointed by the court, after the said F. A. Lowe has been legally removed from his office of trust, given and granted by the terms of said deed of assignment” and for a personal judgment against defendants for the sum of $2,240, “the value of such property so converted.”

The H. O. Wooten Grocer Company and F. A. Lowe filed their pleas of privilege to be sued in the county of their residence.

Plaintiffs filed a controverting affidavit replying to both pleas of privilege in which they repeated many of the allegations of their petition, and it was made a part thereof.

Plaintiffs alleged that venue of the suit was in Knox County under secs. 5, 7, 9, 12 and 30 of Art. 1995, R.S.1925, Vernon’s Ann.Civ.St. art. 1995, subds. 5, 7, 9, 12, 30. In the controverting affidavit plaintiffs alleged “That thereafter on or about September 8, 1939, the plaintiffs for themselves, filed with said assignee, F. A. Lowe, their claims for the above described taxes, as well as some water bills, and accepted under the tertns of said assignment, and thereby agreed to accept whatever sum was paid as dividends from the sale of the assets of said partnership property so conveyed * * *(Italics ours.)

The trial was to the court. The court rendered judgment overruling the pleas of privilege and said defendants have appealed.

The evidence showed that the Haneys, prior to 1931 and up to September 4, 1939, were doing a grocery and meat market business at Munday in Knox County under the name of Haney Grocery; that on September 4, 1939, a deed of assignment was executed to F. A. Lowe, for the benefit of the creditors of Haney Grocery. That the Haneys resided and had their business in Knox County; that Lowe at the time of the assignment and thereafter was an employee of Wooten Grocer Company and was requested by Haney to act as assignee; that at the date of the assignment the Haneys were indebted to Wooten Grocer Company and it had obtained a judgment foreclosing a mortgage lien on the fixtures of Haney Grocery.

For the purpose of this opinion we assume, without deciding, that plaintiffs, when they filed their claims with the as-signee, had tax liens against the stock and fixtures of the Haney Grocery and plaintiffs’ liens were superior to that of Wooten Grocer Company. Art. 7269, R.S.1925; Kirk v. City of Gorman, Tex.Civ.App., 283 S.W. 188; Salt City Co. v. Padgett, Tex.Civ.App., 186 S.W. 391; City of Ft. Worth v. Boulware, 26 Tex.Civ.App. 76, 62 S.W. 928; State v. Lowman, Tex.Civ.App., 115 S.W.2d 794, 799; State v. Nix, 134 Tex. 476, 133 S.W.2d 963, 966; Texas Bank & Trust Co. v. Bankers’ Life Co., Tex.Civ.App., 43 S.W.2d 631; 30 Tex.Jur. 494; 37 Texjur. 1021; 40 Tex.Jur. 206; 61 C.J. 947; 44 C.J. 1339; Mission Independent School Dist. v. Armstrong, Tex.Com.App., 222 S.W. 201; Black v. Baker, 130 Tex. 454, 111 S.W.2d 706; In re Brannon, 5 Cir., 62 F.2d 959; Texas Land & Cattle Co. v. City of Ft. Worth, Tex.Civ.App., 73 S.W.2d 860; Zachary v. City of Uvalde, Tex.Com.App., 42 S.W.2d 417; In re Cardwell, D.C., 52 F.2d 158; Cassidy Southwestern Commission Co. v. Duval County, Tex.Com.App., 3 S.W.2d 416.

The suit was not maintainable in Knox County under Sec. 5 of Art. 1995. There was no evidence adduced raising the issue that either of the appellants had contracted in writing to perform an obligation in Knox County. Venue in Knox County was not shown under Sec. 12. Plaintiffs’ suit was a suit for conversion, not for foreclosure of a lien; but, if they had sought foreclosure of a lien, plaintiffs alleged that the property upon which a lien was asserted was not then situated in Knox County. See Wilson v. City of Belton, Tex.Civ.App., 206 S.W. 366. Exception 7 authorizes the maintenance of a suit in cases of fraud and defalcation of public officers in the county in which the fraud was committed or the defalcation occurred. The evidence was insufficient to raise an issue of fact as to a fraud or defalcation of a public officer in Knox County. The evidence was uncontradicted that the assignee sold the property to Wooten Grocer Company before it was moved from Knox County; there was no evidence that the sale was made in Knox County.

Plaintiffs seek to maintain the suit in Knox County under exception 30, upon the theory that Art. 266, R.S.1925, relátive to statutory assignments, confers venue of this case in Knox County. It is at least doubtful that “venue is expressly prescribed” in Art. 266, within the meaning of exception 30, but, if Art. 266 conferred venue in the county in which the assignee resides, that would constitute no support for plaintiffs’ contention here. The as-signee in the instant case resides in Taylor County. The assignment involved in this suit is not the statutory assignment referred to in Art. 266, but is a common-law assignment. Plaintiffs so allege in their petition and state in their brief.

The only exception we deem worthy of extended discussion is number 9, which provides: “A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile.”

A conversion may constitute a trespass. Bowers v. Bryant-Link Co., Tex.Com.App., 15 S.W.2d 598; American Mortgage Corp. v. Smith, Tex.Civ.App., 35 S.W.2d 1092; Bramblett v. Roby State Bank, Tex.Civ.App., 67 S.W.2d 450. If plaintiffs’ allegations and proof raise the issue that property upon which plaintiffs have a lien was converted by defendants in Knox County, then the judgment overruling appellants’ pleas of privilege must be sustained.

Appellants’ first proposition is that plaintiffs having pleaded and proved that they accepted under the assignment made by Haney Grocery to F. A. Lowe, assignee, and agreed to accept whatever sum was paid as dividends from the sale of the assets of said partnership conveyed to said assignee, appellees thereby waived their lien, if any, and appellants could not be guilty of a conversion of the stock and fixtures.

We have heretofore quoted the allegations in plaintiffs’ petition to the effect that plaintiffs, after receiving notice of the assignment from Lowe, assignee, filed their claims with the assignee “and agreed to accept under said deed of assignment.” We have also heretofore quoted plaintiffs’ allegations in their controverting affidavit to both of appellants’ pleas of privilege to the effect that plaintiffs filed their claims for taxes with Lowe, assignee, “and accepted under the terms of said assignment, and thereby agreed to accept whatever sum was paid as dividends from the sale of the assets of said partnership property so conveyed * * ⅜.”

Since plaintiffs expressly alleged that they accepted “under the terms.of said assignment” and agreed to accept whatever sums were paid as dividends from the sale of the assets of Haney Grocery by the as-signee, we call attention to some of the provisions of the assignment, as follows:

“It being the intention that the property hereinafter assigned is for the purpose of payment of the bona fide debts of the grantor and all creditors of the grantor shall share in the proceeds of said sale in proportion to their respective claims and without preference in the proceeds of such property.
“The said F. A. Lowe is to have immediate possession and control of all of the above mentioned assets and is hereby especially empowered to handle, manage, sell and dispose of the above named property as in his judgment he deems best. The said F. A. Lowe is empowered to continue the above business as a going concern, or to sell the entire assets as he desires and is empowered to vest title in the purchaser or purchasers thereof, and may collect any and all indebtedness now owing Haney Gro. Co., and receipt for same, and is to have full and complete authority and control over said business.
“The title to the property described herein is fully vested in the said F. A. Lowe, consisting of the stock of merchandise, fixtures, delivery equipment, notes and accounts and cash on hand belonging to the said business.”

Appellants introduced no evidence upon the hearing ' of the pleas of privilege. Plaintiffs proved by the assignee that he sent out notices to all the creditors of a sale of the assets of Haney Grocery; that the only bidder present at the time and place stipulated in the notice to the creditors was Mr. Wooten, of Wooten Grocer Company. That Lowe made an effort “to stir up” some interest, but was not able to interest any bidders in the property; that later, as assignee, he did sell the stock and fixtures under the terms of the deed of assignment at private sale; that he sold a part of the fixtures and the stock to Wooten Grocer Company.

Mr. Harrell was tax collector for the City of Munday. His wife was tax collector for the school district. He testified that he was acquainted with the tax rolls of both, and particularly with the assessments by plaintiffs against the stock, merchandise and fixtures of Haney Grocery. He testified:

“Q. It is also true that when the plea of privilege was filed here by the defendants, a controverting plea was filed by * * * counsel for both of these taxing bodies; that is correct isn’t it? A. I don’t know about that. I presume it was.
“Q. He was authorized to file these pleadings? A. Yes, that’s right.
“Q. And it is alleged that the taxing bodies, both the City and Independent School District, filed claims with Mr. Lowe, the Assignee, for your taxes, including some water bills, and accepted under the terms of the assignment and agreed to accept whatever sum was paid as dividends from the sale of the partnership property so conveyed to Mr. Lowe; that is true, isn’t it? A. That’s right.
“Q. You did agree to accept these dividends, whatever they might be? A. That’s right.
“Q. Didn’t you so understand that by doing that, that you thereby authorized Mr. Lowe to dispose of the property? A. In a legal manner, yes sir.
“Q. If the property was so disposed of, you would look to the assignee for the dividends for your taxes; isn’t that correct? A. Yes sir.
“Q. And would relinquish any claim to the property ? A. That’s right.”

On re-direct examination:

“Q. You also understood that the taxing bodies had a preferred lien to anybody else on this specific property? A. I understood that ours was a preferred claim.
“Q. And you filed it with that idea in view? A. That’s right.”

On further cross-examination:

“Q. You couldn’t figure on a preferred lien and relinquish the lien both at the same time? A. This is the exact method I had used before.
“Q. Under the terms of this pleading and your understanding of what you were doing, you were then only to look to the dividends, and not to the property, for your taxes, weren’t you ? A. I was willing to accept our pro rata part, and all we were asking was that we be shown fair play.”

The court’s seventh finding of fact is as follows: “That both the City of Munday and the Munday Independent School District duly filed their claims with the said F. A. Lowe, assignee, on or about September 8, 1939, and agreed to accept under such assignment.” Notwithstanding the foregoing, the court found that appellants ■converted the stock and fixtures of Haney' Grocery in Knox County.

There could be no conversion of said property as against plaintiffs, unless they were lienholders, nor if the liens were waived. As heretofore stated, we assume for present purposes, that at the time the assignment was made to Lowe, and prior to plaintiffs’ acceptance under the terms of the assignment and agreement to accept whatever dividends were paid them from the sale of the assets of Haney Grocery, that plaintiffs had a superior lien against some of the property involved. Nevertheless, Lowe, by the terms of the deed of assignment, was expressly authorized to dispose of the assets of Haney Grocery upon which plaintiffs had a lien and plaintiffs expressly alleged they consented thereto. Certainly a lienholder cannot authorize the sale of property and then successfully assert that the sale constituted a conversion. First National Bank of Cuero v. San Antonio & A. P. R. Co., 97 Tex. 201, 77 S.W. 410, 412; 42 Tex.Jur. 533; Hogg v. Magnolia Pet. Co., Tex.Com.App., 267 S.W. 482; Campbell & Rosson Live Stock Commission Co. v. Border Nat. Bank, Tex.Com.App., 270 S.W. 539; Oats v. Dublin Nat. Bank, 127 Tex. 2, 90 S.W.2d 824.

Plaintiffs say their.tax collectors could not waive their tax liens. Mr. Harrell testified they intended to do so; but, if plaintiffs’ tax collectors were without legal power to waive their liens, which we do not decide, the allegations of plaintiffs’ petition and controverting affidavit are not 'that the tax collectors, but plaintiffs, consented to the sale. Under plaintiffs’ allegations and proof they were not authorized to maintain this suit in a county other than that of appellants’ residence under exception 9, Art. 1995. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Id., Tex.Civ.App., 55 S.W.2d 247; A. H. Belo Corp. v. Blanton, Tex.Civ.App., 126 S.W.2d 1015, 1024; Id., 133 Tex. 391, 129 S.W.2d 619, 621.

It should be remembered that the language of this opinion is directed only to questions of venue, under the allegations and proof as they now exist in the instant case, and should not be construed as intended to express any opinion as to the merits of the case.

The judgment is reversed and the cause, as to appellants, transferred to a District Court of Taylor County.


text:
    JACKSON et ux. v. McCRARY.
    No. 4033.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 6, 1941.
    Rehearing Denied Feb. 27, 1941.
    W. C. Roche and Travis White, both of El Paso, for appellants.
    Robert L. Holliday and Harold L. Sims, both of El Paso, for appellee.
   PRICE, Chief Justice.

This is an appeal from a judgment of one of the District Courts exercising jurisdiction in El Paso County. Lester P. Jackson and Pauline Nash Jackson, as plaintiffs, sued Tom McCrary, as defendant, to recover damages for personal injuries alleged to have been inflicted upon plaintiffs and damage to their property by the negligence of defendant’s agent, in leaving in the nighttime an . unlighted truck parked upon the highway with which the automobile driven by plaintiff Lester Jackson collided, and thus inflicting injuries for which recovery was sought. Defendant answered by a general denial and detailed plea of contributory negligence. The trial was before the court and a jury. The case submitted to the jury upon special issues, and upon the verdict of the jury the court rendered judgment in favor of the defendant. This appeal was duly perfected by Lester P. Jackson and Pauline Jackson from the judgment entered.

A detailed statement of the pleadings is deemed unnecessary. The pleadings of the parties were sufficient in all respects to present the issues presented by this appeal.

The statement of the nature and result of the suit made in appellants’ brief is not objected to by appellee, although some additions thereto are made in his brief. We shall adopt the statement made by appellants.

On the night of July 17, 1939, Mr. and Mrs. Lester P. Jackson, of Clint, were driving on the lower valley road on their way home from El Paso. With them were two friends, John Brown and Guy Price. The night was unusually dark, the sky being heavily clouded, although there was no rain.

At about half past nine they passed another car, occupied by Mr. L. R. Lopez, of Fabens, and his wife and children, going in the opposite direction. The lights on the Lopez car momentarily interfered with Jackson’s vision, but immediately after passing the Lopez car he saw standing in the road ahead of him a large truck, heavily loaded, without lights or warning signals of any kind. Jackson cut his car to the left in an effort to pass around the obstruction and avoid a collision, but did not succeed. The left-hand edge of the projecting body of the truck struck the right side of Jackson’s car. Brown and Price, the two guests in Jackson’s car, were killed. Mrs. Jackson was permanently injured; Jackson was injured also, though less seriously.

This is a suit by the Jacksons against the owner of the truck for their personal injuries and various items of - property damage.

The defense charged Jackson with contributory negligence in several respects and also denied any negligence on the part of the truck driver. It was admitted that the truck was on the road without lights; but it was claimed that the lights went out suddenly because of the failure of a fuse; that the driver was obliged to inspect the side of the road to find out whether it was possible to drive off at that point without running into trees or ditches; that he made the inspection as quickly as possible and having ascertained that he could drive off, had just started to do so when the -collision -occurred.

The jury found that the truck driver was -guilty of negligence proximately causing ■or contributing to cause the injuries complained of in leaving the unlighted truck in ■the highway too long, in failing to have a red light on the projecting load, in failing to keep a lookout, in failing to light the flares with which the truck was equipped, , and in failing to give warning to the plaintiff.

They acquitted Jackson of contributory negligence in all respects except one. In answer to issues 26 and 27 they found that Jackson was operating his automobile at a “high, dangerous, and excessive rate of speed in view of the place and circumstances surrounding him at said time.” However, the jury also found that Jackson failed to slow down or to apply his brakes after seeing the truck, and that such failure was not negligence.

Plaintiffs’ motion to set aside the verdict and grant a new trial on account of the conflict was overruled and judgment entered for the defendant.

The case is before us on two assignments of error; the first, in substance, asserting that on account of a material conflict in the findings of the jury the verdict was not sufficient to support the judgment entered; the second asserts error on account of the exclusion of evidence.

Issues ample to support a recovery by appellants were found in their favor. Hence support for the judgment entered must be based on the finding of the jury on the issue of contributory negligence. All issues, save one, submitting contributory negligence were found in favor of appellants. Special issues 26 and 27 found in favor of the defendant, and the findings of the jury thereon are as follows:

Special Issue 26: “Do you find from a preponderance of the evidence that just prior to or at the time of the collision in question, the plaintiff Lester P. Jackson qperated his automobile at a high, dangerous and excessive rate of speed in view of the place and circumstances surrounding him at said time ? Answer yes or no.”

“We answer Yes.”

Special Issue 27: “Do you find from a preponderance of the evidence that the operation by the said plaintiff of his automobile at a high, dangerous and excessive rate of speed, if you have found he so operated said automobile, was a proximate cause of, or .proximately contributed to cause, the collision in question? Answer yes or no.”

“We answer Yes.”

In connection with special issue 26, “high, dangerous and excessive rate of speed” was defined, in substance, as a greater rate of speed than a person of ordinary prudence would have operated same under the same or similar circumstances.

It is asserted that the findings on these issues conflict with the findings of the jury on special issues 30 and 31; and likewise with the findings on special issues 33 and 34. , .

Special issues 30 and 31 and the findings of the jury thereon are as follows:

Special Issue 30: “Do you find from a preponderance of .the evidence that the plaintiff Lester P. Jackson failed to slow his automobile after discovering defendant’s truck on said highway? Answer yes or no.”

“We answer Yes.”

Special Issue 31: “Do you find from a preponderance of the evidence that the failure of the plaintiff Lester P. Jackson to slow down his automobile,- after discovering defendant’s truck upon said highway, if he did so fail, was negligence ? Answer yes or no.”

“We answer No.”

Special issues 33 and 34, as follows:

No. 33: “Do you find from a preponderance of the evidence that the plaintiff Lester P. Jackson failed to apply the brakes on his automobile after discovering the defendant’s truck upon said highway ? Answer yes or no.”

“We answer Yes.”

No. 34: “Do you find from a preponderance of the evidence that the failure of the plaintiff Lester P. Jackson to apply the brakes on his automobile after discovering defendant’s truck upon said highway, if he did so fail, was negligence? Answer yes or no.”

“We answer Ño.”

It will be observed that 30 and 31 submit almost- the same issues as 33 and 34. The application of the brakes, we take it, was the means of slowing down, — perhaps not the only means in decreasing speed in a measure at least. For the purpose of -the consideration of this assignment, the two findings alleged to be conflicting with issues 26 and 27 may be assumed as practically identical. Literally, 26 and 27 find that just prior to or at.the time of the collision plaintiff operated his automobile at a negligent rate of speed, and such negligence proximately contributed to the collision. In 30 and 31, 33 and 34, that after the discovery of appellee’s truck appellant’s failure to slow down did not constitute negligence.

It is well established that if there ■be irreconcilable conflict between material findings in the verdict, that same will not support a judgment in favor of either party. Speer’s Special Issues, p. 563, par. 434; Stiles v. Union Terminal Co., Tex.Civ.App., 1 S.W.2d 947; W. J. Stevens Co. v. Novice State Bank, Tex.Com.App., 2 S.W.2d 419; Price v. Seiger, Tex.Com.App., 49 S.W.2d 729; 41 Tex.Jur. p. 1226, par. 361, note 3.

It is likewise established that it is the duty of the trial court to reconcile apparent conflicts in the jury’s answers, if it can be reasonably done, in the light of the facts of the particular case, the pleadings and evidence, the manner in which the issues were submitted, and in view of the other findings when considered as a whole. 41 Tex.Jur. p. 1224, par. 360.

It is clear here that the issues asserted to be in conflict are material issues. The findings on 26 and 27 control the judgment of the court. If these be nullified by conflict with 30 and 31, there is no basis for a judgment in favor of the defendant.

The question in this appeal, then, is, not as to the effect of an irreconcilable conflict, but as to whether or not there is such an irreconcilable conflict.

Special issues 26 and 27 cover the period of time just prior to or at the time of the collision in question; 30 and 31 cover the period of time lapsing from the discovery of the truck by Jackson until the collision.

The words “just prior to,” as used in 26 conveyed the idea to the jury, “immediately preceding,” or “just before”; that is, without appreciable lapsing of time before the accident. Missouri, K. & T. Ry. Co. of Texas v. Cardena, 22 Tex.Civ.App. 300, 54 S.W. 312; McGee v. West, Tex.Civ.App., 57 S.W. 928.

There was evidence that before the discovery of the parked truck by Jackson his vision had been interfered with by the lights of the Lopez car. Jackson said he saw the truck when h,e was 75 to 100 feet therefrom. This was an instantaneous impression formed upon questionable opportunity to make a correct estimate. The jury may have found he was much nearer. Evidently they discredited his testimony that he did slow down. The evidence, we think, would justify the inference that by an attempt to slow down after he saw the truck, the collision would neither have been averted nor minimized. In other words,, that after perceiving the truck, it was too-late to slow down. We take it that at all times a plaintiff is charged with the duty of exercising ordinary care for his own-safety; likewise, that his duty to exercise due care does not exact the doing of a useless and futile thing. The law does exact of a plaintiff, even though he negligently places himself in a position of peril, due-care for his own safety. But even though, after being placed in a position of peril, he exercises due care, but through the operation of his prior negligence he is injured, he cannot recover. Batey v. Greenwood Floral Co., Tex.Civ.App., 113 S.W.2d 647, affords an illustration of this principle. There, the deceased was negligent in going behind the truck which he knew 'was about to be backed. There was also a find-, ing that he was not negligent in failing to step clear after the truck started backing. The two findings were held not to constitute a conflict.

We hold that there was not such irreconcilable conflict in the verdict in the matters complained 'of as preclude the rendition of the judgment appealed from.

The other assignment is as to the exclusion of evidence upon an issue which was found in favor of appellants. We deem it unnecessary to pass upon same.

It is ordered that the judgment be affirmed.


author: LESLIE, Chief Justice.

text:
    AMMON v. DeMAYO.
    No. 2083.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 31, 1941.
    Shead & Smith, of Longview, for appellant.
    H. P. Smead, of Longview, for appellee.
   LESLIE, Chief Justice.

This is a suit by plaintiff, Frank De-Mayo, against Jack Ammon to recover on a promissory note and to foreclose a chattel mortgage lien securing the same. The trial court rendered a judgment in favor of the plaintiff as prayed for, and the defendant has appealed. The cause is before this court without having been briefed by either party. The appeal is therefore dismissed. Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.2d 811.