text:
    BEAUMONT IMPLEMENT CO. v. CLUBB.
    No. 3664.
    Court of Civil Appeals of Texas. Beaumont.
    April 20, 1940.
    Rehearing Denied May 1, 1940.
    A. D. Lipscomb, of Beaumont, for appellant.
    LeRoy McCall, of Beaumont, for appel-lee.
   WALKER, Chief Justice.

This suit was instituted by appellant, Beaumont Implement Company, against ap-pellee, O. D. Clubb, in County Court of Jefferson County at Law, Jefferson County, praying for judgment on a promissory note dated the 11th day of June, A. D. 1936, in the principal sum of $332.78, with interest at the rate of 8% per annum and 10% additional attorney’s fees. Appellee answered specially that the note was without consideration.

Under the evidence, the note in controversy was executed by appellee, payable to appellant, on the date and in the amount alleged.

The testimony on the issue of failure of consideration was as follows: On the 21st day of hjovember, 1931, appellee was due appellant on open account $147.04, on two promissory notes $117.11, on interest $5.85, making a total sum of $270. On that date appellee delivered to appellant the following order:

“11/21/31. American Rice Growers Association. Please deliver to Beaumont Implement Company 216 sacks Lady Wright rice which you hold. Beaumont Implement Company will assume charges of 75 cents a sack advance on same; all charges for sacks will be paid by O. D. Clubb. (Signed) O. D. Clubb.”

Appellant accepted this rice, and credited appellee on its books with its value at $2 per sack, making a total sum of $432, less the 75 cents per sack as per the recitation in the order. The value of the rice at $2 per sack fully discharged the item of ap-pellee’s indebtedness to appellant, in issue in this case. In April following the delivery of the order, appellee executed to appellant his note in the sum of $270. The note in controversy was executed by ap-pellee in renewal and extension of the original note.

Appellee testified that the rice was delivered by him to appellant, and accepted by appellant, in full discharge of his indebtedness. tie testified further that the 216 sacks of rice was only a small part of his rice crop, all of which was stored with the American Rice Growers Association; that all of his rice was subject to outstanding liens at the time he executed his order ; that appellant knew of these liens and accepted his rice, subject to these outstanding liens, but that, notwithstanding these liens, the rice was delivered by him to appellant, and accepted by appellant in full discharge of his indebtedness in the sum of $270; that had appellant received more than -$2 per sack for the rice, the excess value would have belonged to appellant and not to him. He testified further that in executing the first note for the sum of $270 he thought it was in renewal and extension of other indebtedness owed by him to appellant; that he owed appellant certain other notes and amounts, and it was his intention that this first note should cover certain of these other items ; he testified to the same facts as to the execution of the note in controversy; that he did not know that appellant was contending that the indebtedness first described above had not been paid until after the note in controversy had been executed.

Appellant’s testimony was to the effect that it took the order, the rice to be sold for appellee’s account and the proceeds to be applied as a credit on the indebtedness in issue, and that it received nothing under the order; that the oustanding liens consumed all of appellant’s rice. The case was sent to the jury on the following special issues, answered as indicated:

“Do you find from a preponderance of the evidence that the account represented by the open account and two notes was settled and discharged by Defendant Clubb by the transfer of his equity in the 216 sacks of rice?” Answered “Yes.”
“Do you find from the preponderance of the evidence that there was a dispute between plaintiff and defendant over the question of zvheather the account was discharged when the note sued on was made ?” Answered “No.”

On the verdict, judgment was entered against appellant that it take nothing against appellee, and in appellee’s favor for all costs incurred.

The evidence, as summarized above, raised the issue, and supports the jury’s finding, that appellant accepted the order, given to it on the 21st day of November, 1931, by appellee in discharge of the indebtedness of $270. On the testimony, it is immaterial that when appellant settled with American Rice Growers Association it received nothing for its rice; that the rice was consumed by the prior liens. There were two theories of the contract on which the rice was delivered; appellant’s theory, that it was delivered as a credit; appellee’s theory that it was delivered in discharge of the indebtedness. The jury found in favor of appellee.

Issue No. 1 was not subject to the following exception: “Plaintiff objects to Issue No. 1 submitted to the jury for the reason that it assumes an order for 216 sacks of rice to be an assignment of the defendant’s equity of redemption in said rice, contrary to the language of the order itself.”

The judgment of the lower court is affirmed.


source: Caselaw Access Project

author: GRAVES, Justice.

license: Public Domain

text:
    AMERICAN MUT. LIABILITY INS. CO. v. WEDGEWORTH.
    No. 10964.
    Court of Civil Appeals of Texas. Galveston.
    April 4, 1940.
    Rehearing Denied May 9, 1940.

      Baker, Botts, Andrews & Wharton and Albert P. Jones, all of Houston, for appellant.
    Collins, Pate, Hatchell & Garrison and Pitser H. Garrison, all of Lufkin, for ap-pellee.
   GRAVES, Justice.

This general statement adopted by the appellee as being substantially correct, is taken from the appellant’s brief:

“This is a suit for compensation under the Workmen’s Compensation Act of Texas. It arose out of an injury alleged to have been sustained by appellee on March 10, 1937, while he was employed by National Supply Company of Delaware in Houston, Harris County, Texas. Claim for compensation was filed with the Industrial Accident Board on January 31, 1938. The Board rendered an award on April 22, 1938, denying the claim on the ground that appellee had failed to show good cause for the delay in filing it. An appeal from the award was taken by appellee to the district court of Harris County on May 23, 1938.
“In his trial pleading appellee alleged that he was injured on March 10, 1937, while in the course of his employment by National Supply Company of Delaware; that his injury had totally disabled him. from work since the date of the accident and that his disability was permanent," that he was entitled to recover compensation from appellant at the rate of $20 pen week for 401 weeks; that in presenting his claim to the Industrial Accident Board and in perfecting his appeal from the adverse award, he had complied with all of the jurisdictional requirements prescribed by the Compensation Law, except with respect to the filing of claim for compensation;, and that he had good cause for failing to file his claim with the Industrial'Accident Board up until the time it was actually filed. At the trial appellee sought to excuse his failure to file his claim for compensation prior to January 31, 1938, on the ground that until a few days before that date, he did not realize the seriousness of his condition and believed until on or about January 28, 1938, that his injury was trivial and would result in no physical incapacity.
“Appellant’s pleading contained á general demurrer, a general denial of the allegations contained in the plaintiff’s petition, and a verified denial of the claim that plaintiff had a good cause for failing to file his claim for compensation before January 31, 1938.
“The cause came on for trial on the 20th day of March, 1939, in the 80th Judicial District Court of Harris County. At the conclusion of the introduction of testimony, appellant moved for a directed verdict in its favor. The motion was denied and an exception duly noted. The case was submitted to the jury on special issues. In brief, the verdict contained the following findings:
“(1) That appellee sustained an injury to his left leg on March 10, 1937, while in the course of his employment by National Supply Company of Delaware.
“(2) That the injury had naturally affected or involved other portions of ap-pellee’s body.
“(3) That the injury produced total incapacity, which began on January 28, 1938, and that such total incapacity is permanent.
“(4) That the total incapacity was not temporary and that appellee had not and would not sustain any partial incapacity.
“(5) That there was another employee of the same class as J. L. Wedgeworth who worked substantially the whole of the year immediately preceding March 10, 1937, in the same or' similar employment as that in which Wedgeworth was engaged when said injury was sustained by him, in the same or a neighboring place to that where he sustained such injury, and that the average daily wage of such an employee was $9.20 per day.
“(6) That manifest hardship and injustice would result to appellee if compensation were not paid in a lump sum.
“(7) That until on or about January 28, 1938, appellee believed that the injury sustained by him on March 10, 1937, was trivial and would result in no physical incapacity, that a reasonable prudent person similarly situated would have entertained such a belief, that his belief was the cause of the delay in filing the claim for compensation until January 31, 1938, that ap-pellee relied on this belief, and that a reasonably prudent person similarly situated would have delayed the filing of claim for compensation until January 31, 1938.
“(8) That the incapacity of appellee was not solely confined to his left leg below the knee.
“(9) That the incapacity of appellee was not caused solely by disease or other bodily conditions having no connection with the injury sustained by him on March 10, 1937.
“After the verdict was received and ordered filed, appellant moved for judgment in its favor notwithstanding the verdict. Counsel for appellee were duly notified in advance of the intention of counsel for appellant to file said motion and executed a proper waiver of further service. This motion was denied, and an exception duly reserved. Appellee moved for judgment in his favor on the verdict. In response to this motion, judgment was entered on April 3, 1939, in favor of appellee for the total sum of $6,286.26, representing lump sum payment of weekly benefits of $20 per week for the period of 355 weeks from and after January 28, 1938. Appellant duly excepted to the entry of this judgment.”

Appellant inveighs here against that determination below through thirteen propositions of law; in different forms the first six of them declare in ultimate purport that the evidence showed, as a matter of law, that the appellee did not have a good cause for failing to file his claim for compensation within the six months required by R.S. Article 8307, section 4a, and could not reasonably have believed that he did have one, as the court and jury found the facts to be on those two material features of the cause; they do not raise the different question of whether such findings were so against the overwhelming preponderance of the evidence as to be clearly wrong. The next three assert it to have been — for differently stated reasons — reversible error for the trial c'ourt to have submitted, over appellant’s objections, special issues Nos. 34, 34a, 35, and 36, or any others of like import, inquiring whether the appellee reasonably believed until on or about January 28, 1938, “that his injury was trivial and would result in no physical incapacity, whether such belief constituted good cause for failing to file a claim for compensation until January 31, 1938, and whether a reasonably prudent person similarly situated would have relied on such belief, because the testimony of ap-pellee, as well as that of his own witnesses, showed that he, pursuant to orders of his personal physician, laid off from work the latter part of May, 1937, stayed at home for about sixty days resting his leg and taking medicine, went back to work the latter part of July, and, after two or three weeks at work, quit a second time, and then returned home where he was unable to work and did not work, because such circumstances showed a disability which began long before January 28, 1938, and which precluded belief of triviality of injury as a good cause for delaying the filing of claim for compensation until January 31, 1938.”

The last three of such propositions present that there was prejudicial error in the court’s refusal to submit appellant’s specially-requested issues Nos. 2 and 3, or at least similar ones, inquiring in effect whether the appellee knew he was unable to work within a month after he returned to his home from Houston in August of 1937, and whether he could have ascertained, by the exercise of ordinary care, the fact that he was disabled to perform some of the duties of his regular employment prior to January 28 of 1938.

After careful consideration of the record, it is determined that none of these contentions should be sustained; as concerns the first group of them so asserting that as a matter of law the verdict was without any support in the evidence, there appears to this court to have been a sort of mixing of metaphors upon appellant’s part; that is, in so, first, moving on the trial for a directed verdict at the conclusion- of the testimony, and, second, for judgment in its favor notwithstanding the verdict the jury had returned, it apparently confuses testimony relating to the ap-pellee’s sufferings of pain and physical inconvenience during the whole of the period from the date of his injury to January 28 of 1938, with what there was dealing with any loss of or reduction in his earning-capacity.

Indeed, under the testimony upon these two features — that is, as to whether he had a good cause and reasonable belief that he had it for delaying the filing of his claim as he did — of the appellee himself, as corroborated by that of Dr. Den-man, it is not easy to see how such claim can be well founded; in order to support the position that the evidence showed the verdict unsupported as a matter of law, the rule on appeal is that only the testimony favorable to the verdict, discarding all that was adverse, should be considered. Haskins v. Panhandle, & S. F. R. Co., Tex.Civ.App., 89 S.W.2d 831; Missouri-K.-T. Ry. Co. v. Cunningham, 118 Tex. 607, 23 S.W.2d 343, 352; Jones v. Jones, Tex.Civ.App., 41 S.W.2d 496; Williams & Chastain v. Laird, Tex.Civ.App., 32 S.W.2d 502; Frazier v. Hanlon Gasoline Co., Tex.Civ.App., 29 S.W.2d 461; Clutter v. Wisconsin-Texas Oil Co., Tex.Civ.App., 233 S.W. 322, error refused; Young v. Blain, Tex.Com.App., 245 S.W. 65; New St. Anthony Hotel Co. v. Pryor, Tex.Civ.App., 132 S.W.2d 620, writ refused; Austin Fire Ins. Co. v. Adams-Childers Co., Tex.Com.App., 246 S.W. 365; Rose v. O’Keefe, Tex.Com.App., 39 S.W.2d 877; Herd v. Wade, Tex.Civ.App., 63 S.W.2d 253, writ refused; Saltmount Oil Corp. v. Imperial, Tex.Civ.App, 98 S.W.2d 418; Walker County Lumber Co. v. Sweet, Tex.Civ.App., 40 S.W.2d 225, writ dismissed; Williams v. National Bank, Tex.Civ.App, 62 S.W.2d 1108, reversed on other grounds, 125 Tex. 619, 84 S.W.2d 691.

This court is unable, to find or hold that there was in law no support for the jury’s findings, in effect, that the appellee did have good excuse up to January 31, 1938, for not filing his claim sooner and a belief until on or about January 28 of that same year that his injury would not result in physical incapacity; at great length, and under repeated examinations by counsel for both sides, he testified that his injury at first was of a minor nature that had no disabling effect upon him, he suffering a slight abrasion and bruising of the skin and muscles of his leg, which did not interfere with his work; that the doctor at that time so told him — that is, that there was no necessity for his laying off work, as the injury would amount to nothing, and he would recover from it without any disabling effects; that at all times following the injury, when he worked, it was for the same company, operating the same machine, doing the same work, earning the same wages, and that at no time from March 10 of 1937, until January 27 or 28 of 1938, was he actually disabled as a result of his injury; he added that he could have worked any time from such date of his injury until the latter part of the following January, had he deemed it necessary, and that testimony was properly evi-dentiary of his physical condition, Standard Accident Ins. Co. v. Williams, Tex.Civ.App., 4 S.W.2d 1023, affirmed, Tex.Com.App., 14 S.W.2d 1015, and authorities cited ; 19 Tex.Jur., pp. 354, 355, and authorities there cited; that he did not realize, until his condition gradually and progressively grew worse and his leg began to swell, with the veins beginning to spread, late in January of 1938, that it was serious; that then, after Dr. Denman had, along about that date, advised him that his condition was serious, and for the first time, he realized that he had become and would henceforth be incapacitated; that he thereupon immediately filed his claim for compensation the next day.

Dr. Denman, shown to have been a highly reputable, experienced, and qualified physician, corroborated the appellee’s testimony to the full extent of his treatment and examinations of him, he having first met and examined him at his office some time in January of 1938; while, obviously, he had not been acquainted with the previous course of the appellee’s condition, he testified, from the standpoint of an expert, that the appellee’s incapacity, as he found it upon this first examination of him, could very likely have been existent only for a short period of time; that, it could have and probably did develop many months after the accident the appellee testified to having happened to him on March 10, 1937. The appellee himself, in consonance with what Dr. Denman testified may have been the antecedent course of the condition he found the appellee in on first examining him, thus summarized how and why he came to file his claim, in answer to cross-examination by appellant’s counsel: “The reason I did not file a claim I did not know I was hurt, that I was as bad as I was, and I decided the day to file the claim when I determined I was not able to go back to work. I did not file a claim for compensation because I did not realize I was hurt. That is the reason I did not file it. If I had realized I was bad off before that time, I would have filed it. I did not file it because I did not realize it.. As soon as I realized it I went ahead and filed my claim.”

As indicated supra, this court finds no testimony that may constitute a blackout of that thus quoted, and none anywhere to a loss of or a reduction in the “earning-capacity” of the appellee prior to January of 1938, which is the only thing made compensable by the statute, there being none allowed for pain and suffering. Texas Employers’ Ins. Co. v. Clark, Tex.Civ.App., 23 S.W.2d 405, writ dismissed; Indemnity Ins. Co. v. Williams, Tex.Civ.App., 69 S.W.2d 519; Holloway v. Texas Indemnity Ins. Co., Tex.Com.App., 40 S.W.2d 75; New Amsterdam Casualty Co. v. Scott, Tex.Civ.App., 54 S.W.2d 175, writ refused; Dissenting opinion, Mr. Justice Graves, American Indemnity Co. v. Boatner, Tex.Civ.App., 86 S.W.2d 239; Traders & General Ins. Co. v. Wright, Tex.Civ.App., 95 S.W.2d 753, approved by Supreme Court, 132 Tex. 172, 123 S.W.2d 314; Safety Casualty Co. v. Walls, Tex.Civ.App., 117 S.W.2d 879, writ dismissed.

If, therefore, these two challenged findings are to stand, it follows that the facts thereby established show good cause extending up to January 31 of 1938 for the appellee’s failure to file his claim with the Accident Board sooner than he did, and that his right to compensation for the total incapacity the jury otherwise found he had suffered did not begin, under the statute, until the eighth day following January 28 of 1938; Jones v. Texas Employers Ins. Ass’n, 128 Tex. 437, 99 S.W.2d 903; R.S. Article 8306, Section 6.

It follows further, as a corollary to these conclusions upon appellant’s first six propositions, that its last four fall also, because the same vice inhered in both its specially-requested issues Nos. 2 and 3 that ran through its initial contention that the whole evidence showed as a matter of law that appellee neither had good cause for delaying the filing of his claim, nor reasonable belief that he had one; in that they both assumed as undisputed facts what the evidence was at least in dispute over — No. 2, that he knew he was unable to work within a month after he returned home to Laneville in August of 1937, and No. 3, that he could have ascertained the fact that he was unable to perform some of the duties of his regular employment prior to January 28 of 1938, by the exercise of ordinary care; in these circumstances, it seems clear that such requested issues were properly refused. Harris v. Thornton’s Dept. Store, Tex.Civ.App., 94 S.W.2d 849; Traders & General Ins. Co. v. Weatherford, Tex.Civ.App., 124 S.W.2d 423; Traders & General Ins. Co. v. Ray, Tex.Civ.App., 128 S.W.2d 80; Cisco Ry. Co. v. McCharen, Tex.Civ.App., 118 S.W.2d 844; Miller v. Fenner, Tex.Civ.App., 89 S.W.2d 506; Edwards v. Gifford, Tex.Civ.App., 132 S.W.2d 155; Jefferson Standard Life Ins. Co. v. Curfman, Tex.Civ.App., 127 S.W.2d 567.

It is further thought these issues were objectionable for other reasons, since the objective thereof appears to this court to have been both immaterial and evidential, in. view of the conclusion above stated, that a good cause for appellee’s delay — as a matter of law — properly flowed from the verdict in his favor on the issues the court did submit.

Recurring to appellant’s second insistence — that the court erred in Submitting its special issues 34 to 36, inclusive, inquiring as to whether appellee believed, until about January 28 of 1938, that he would not suffer physical incapacity from his injury, that a person of ordinary prudence in the same situation would have so believed, and that such belief was a cause of his having delayed the filing of his claim. What has already been said determines this feature also adversely to it; the objections made to these issues submitted by the court merely added details to appellant’s opposing theory of the cause to that upon which it was submitted to the jury in the given issues. These inquiries by the court required the jury to find whether or not the appellee — in good faith and upon substantial and reasonable grounds — entertained the belief at all times from March 10 of 1937, the date of his injury, to January 28 of 1938, the date he learned through Dr. Denman and otherwise of the apparent hopelessness of his physical condition, that his injury was not serious and that he would suffer no physical incapacity as a result thereof. In this court’s opinion, under the pleadings and developed facts, that was the correct theory, even though some of these issues now under consideration appear to have been immaterial, since, as concluded supra, a finding that the appellee did not before know of the serious nor permanent character of his injury and suffered no incapacity before January 28 of 1938, was sufficient anyway to establish in law a good cause for his failure to have sooner than January 31 of 1938 filed his compensation claim; see Jones v. Texas Employers Ins. Ass’n, 128 Tex. 437, 99 S.W.2d 903, supra.

However, whether or not they were all necessary, the submission of these inquiries clearly did not harm the appellant, nor were they subject to the objections it made,, which merely emanated from and were expressive of its previously-stated theory that the appellee, under the facts as a whole, was conclusively shown to have had' no such cause for delay nor any such reasonable belief that he did have.

The authorities already cited are thought to furnish sufficient support for this view. Further discussion is deemed unnecessary, since these conclusions determine the merits of the appeal; they require an affirmance of the trial court’s judgment; it will be so ordered.

Affirmed.

On Appellant’s Motion for Rehearing.

Appellant’s able and earnest motion for rehearing, supplemented by a second argument in support thereof, citing the Supreme Court’s opinion in Texas Employers’ Insurance Association v. G. A. Roberts. 139 S.W.2d 80, has been carefully considered.

The cited opinion in the Roberts case, in this court’s opinion, supports its holding upon original hearing in this cause; indeed, the Supreme Court did not grant the writ-o f-error in the first instance, nor in the second reverse the Roberts case, upon the issue therein raised as to whether he had shown good cause for not sooner filing his claim — on the contrary, it held that Roberts had — under both pleadings and proof — sufficiently sustained his position that he did have such good cause; it is this court’s conclusion that the facts in the present case make out a stronger basis for holding this appellee to have sufficiently raised the issue of his having had a good excuse for not sooner filing his claim than did those in the Roberts case.

Wherefore, a further discussion being deemed unnecessary, the motion for rehearing will be refused.

Motion refused.


author: HALL, Justice.

text:
    RAGSDALE v. DORBANDT et al.
    No. 5697.
    Court of Civil Appeals of Texas. Texarkana.
    April 19, 1940.
    Rehearing Denied May 2, 1940.
    M. M. Guinn, of Rusk, for appellant.
    Norman, Stone & Norman, of Rusk, and Smithdeal, Shook & Lefkowitz, of Dallas, for appellees.
   HALL, Justice.

Appellees agree that appellant’s' statement of the case is correct, and we adopt same, which reads:

“The appellant, Charlotte Ragsdale, instituted suit in the District Court of Cherokee County, Texas, against J. C. Dorbandt and Morris Dorbandt alleging that on or about the 26th day of November, 1935, the said J. C. and Morris Dor-bandt were practicing attorneys at law and were employed by John E. Ragsdale to write a will and that thereafter on or about the 1st day of June 1936, said Dorbandts were employed by John E. Ragsdale and appellant for the purpose of obtaining testimony to show that John E. Ragsdale was a person of sound mind and that the appellant would be the beneficiary under all of the testimony which was or would be obtained relating to such matters showing that a will was completely and properly executed; that in the employment of the said Dorbandts, certain valuable and useful information and knowledge were imparted to them as such attorneys and were acquired during the professional relationship of attorney and client; that a certain cause No. 14,131 in the District Court of Cherokee County, Texas, the plaintiffs in said suit had given written notice of intention to take the oral depositions of J. C. and Morris Dorbandt; that the purpose of the depositions was to obtain. certain confidential communications, information and secrets which were imparted to said attorneys by either John E. Ragsdale or appellant during the professional relationship as attorney and client; that the only facts which said parties could testify to would be those facts obtained by virtue of the employment of said Dorbandts as attorneys, which said J. C. and Morris Dorbandt undertook to ascertain by investigations made by them.
“That the said J. C. Dorbandt so advised the attorney for appellant that he would, if placed under oath disclose any and all facts of which he had knowledge or of which he acquired knowledge by virtue of Iris employment as aforesaid and that he, the said J. C. Dorbandt, felt that he owed Charlotte Ragsdale no duty whatever since he had been discharged from employment. Plaintiff alleged irreparable damages would result to her from the disclosure of such information to the adverse parties; that she had no adequate and legal remedies at law and unless an injunction be granted, she could not be protected.
“On May 17th, 1939, District Judge C. E. Brazil granted the writ of injunction as prayed for, provided the appellant executed a bond which was furnished.
.“On May 24th, 1939, T. W. Ragsdale et al., filed a petition in intervention and in the alternative for a dissolution of the injunction which had been granted, alleging that they were all of the plaintiffs in cause No. 14,131 pending in the District Court of Cherokee County, Texas, and mentioned in the original petition of the appellant, alleging that the admissibility of the testimony of J. C. Dorbandt and Morris Dorbandt, and that the injunction was void upon grounds (a) that it was issued ex parte without the intervenors being made a party; (b) because the intervenors were necessary parties to such injunction suit; (c) and said suit was filed as an independent suit and not as a part of or ancillary to cause No. 14,131, and the only relief sought was a writ of injunction; (d) that there was a permanent injunction issued rather than temporary injunction; (e) because it was issued against J. C. and Morris Dorbandt who resided in Smith County, Texas, and was not returnable to Smith County, Texas, where they resided; (f) because the said injunction prohibited the defendants J. C. and Morris Dorbandt from testifying as to any fact with reference to their observation of John E. Rags-dale, and with reference to the signing and witnessing of wills, from giving the names of the witnesses to the will; (g) because Charlotte Ragsdale, appellant, made affidavit upon the fact that her attorney had a conversation with J. C. Dorbandt and affidavit was based upon hearsay.”

The main case, out of which this action grew, was before this court (Ragsdale v. Ragsdale, 119 S.W.2d 148), on an appeal from an order of the District Court of Cherokee County appointing a receiver for the property in controversy, and was before the El Paso Court of Civil Appeals on an appeal from an order appointing an administrator. Ragsdale v. Prather, 132 S.W.2d 625. Reference is made to both of those appeals for a full and complete statement of the nature of the main suit now pending on the docket of the District Court of Cherokee County, Texas.

The basis for the injunction sought in the court below was the allegation by appellant that attorneys J. C. and Morris Dorbandt of Tyler, Smith County, Texas, “if not restrained, will disclose any and all information obtained by virtue of said prior employment as well as the results of any and all investigations made by said Morris Dorbandt and J. C. Dorbandt and that irreparable injury and damage will result to the plaintiff (appellant) by the disclosure of the secrets * * On May 17, 1939, the court below upon presentation of appellant’s application therefor without notice to any of. the adverse parties, granted the injunction prayed for against J. C. and Morris Dorbandt, attorneys of Tyler, Texas. On June 15, 1939, “pursuant to previous setting and notice to all parties” the motion of appel-lees to dissolve the temporary injunction was granted.

Trial was to the court without a . jury. No findings of fact and conclusions of law were filed by the trial court, and there is no request therefor in the record, so, if the judgment of the court below can. be affirmed on any theory, it is our duty to do so. Texas Creosoting Co. v. Hartburg Lumber Co., Tex.Com.App., 12 S.W.2d 169; Adcock v. Shell, Tex.Civ.App., 273 S.W. 900, writ refused; Boyd v. Keystone Driller Co., Tex.Civ.App., 6 S.W.2d 221, writ refused; Johnson v. Campbell, Tex.Civ.App., 107 S.W.2d 1111 (opinion by Judge Slatton, now of Com.App.); Bolyard v. Toronto Pipe Line Co., Tex.Civ.App., 120 S.W.2d 960, writ dismissed. On the latter hearing testimony was heard among which was that of J. C. and Morris Dorbandt. J. C. Dorbandt, in answer to questions by appellant’s attorney, testified by deposition in part as follows:

“Q. Did I not ask you further if you were going to disclose any confidential communications or any results of any investigation or any matters that had occurred between you and Charlotte Rags-dale and John E. Ragsdale? A. Yes, I think you asked me that question.
“Q. And did you not state then . that when you were placed under oath that you would testify as to what you thought was right? A. Yes, sir, I said'that.
“Q. And did you say anything about— A. Let me explain that answer right here.
“Q. All right. A. And by — if those were the exact words that I used — by that I meant that in case I was placed under oath and compelled to testify in regard to this matter, that I zvould testify as to such matters as in my opinion were admissible in evidence and did not violate my (duty to a client.”.

At said hearing Morris Dorbandt testified by deposition in part as follows:

“Q. Mr. Dorbandt, until you are compelled by the court, if Charlotte Ragsdale (appellant) objects to any testimony that may call for the divulging of ariy confidential communication or the result of any of your investigations while you were employed by her, if you were called upon to give such information, you would refuse to do so? A. If the question that was asked me, if I considered it violated a moral or a legal duty to her, I wózild not answer it.
“Q. Until compelled to do so? A. That’s right.” (All italics ours.)

This testimony, in our opinion, was sufficient to and no doubt did convince the trial judge that the attorneys had no intention of violating the duty they owed appellant, a former client, not to divulge confidential communications received by them during said employment. In these circumstances, the necessity for an injunction to prevent a disclosure of such confidential communication was wanting and the trial judge's order dissolving the temporary injunction theretofore granted without notice was proper. The court below was the trier of the facts involved in this action, and the judgment rendered therein being based upon sufficient testimony, must be sustained.

For another reason we think the judgment of the lower court should be affirmed. To correctly pass upon the admissibility of the proposed testimony, it would be necessary (1) to determine whether the relation of attorney and client existed between the Dorbandts and Charlotte Ragsdale; and (2) whether all, a part, or none of the said testimony was privileged. These questions of law affecting the admissibility of the Dorbandts’ testimony could not be determined at the time of the taking of their depositions by either the Dorbandts themselves, Charlotte Rags-dale, or the Notary. These questions, of necessity, will have to be determined by the district judge in whose court the main case is pending when the depositions are offered in evidence on the trial thereof, and not before.

Finding no error in this record, the judgment is affirmed.


text:
    CONSOLIDATED UNDERWRITERS v. ADAMS et al.
    No. 5472.
    Court of Civil Appeals of Texas. Texarkana.
    April 5, 1940.
    Rehearing Denied May 2, 1940.

      C. A. Lord, of Beaumont, for appellant.
    Jones & Jones, of Marshall, J. E. Smith, of Longview, and Sam T. Holt, of Carthage, for appellees.
   HALL, Justice.

This is a compensation case arising from the death of J. B. Adams at the hands of a fellow-workman while employed by the Sabine Basket Factory. Appellees, Doll Adams and husband, Squirrel Adams, as mother and father of 'J. B. Adams, deceased, instituted this suit to set aside an adverse ruling of the Industrial Accident Board denying them compensation. Appellees alleged “that on or about the 17th day of November, 1936, J. B. Adams was in the employ of the Sabine Basket Factory of Carthage, Panola County, Texas, and as such employee was required to assist in various duties about the Sabine Basket Factory such as the manufacturing, handling, and loading of baskets in and about the premises of Sabine Basket Factory. * * *»

, “That on or about the 17th day of November, A. D. 1936, J. B. Adams, while working within the scope of his employment for the Sabine Basket Factory of Carthage, Texas, and within .the limits of Panola County, Texas, received a fatal knife wound at the hands of a co-employee, J. D. Connor, which wound resulted in the death of J. B. Adams within an hour after the infliction thereof. That the knife wound was inflicted during an altercation between Connor and Adams, which altercation was provoked by Connor and not by Adams and which altercation arose immediately out of the work which the co-ém-ployees were doing, and developed over a dispute as to the manner and means of performing their duties for the Sabine Basket Factory.”

Appellant answered by general demurrer, general denial and specially that J. B. Adams was not fatally injured while engaged in the course of any employment with said factory, but was killed by one Leon Connor; that said injury to Adams was intentional and was inflicted because of reasons personal to him, and not directed against him as an employee of Sabine Basket Factory; that at the time he received his fatal injuries Adams “was aggressively engaged in a personal encounter with one Leon Connor and at said time he was willingly engaged in a fight with said Leon Connor * * * that 'he received said injuries while unlawfully, wilfully, intentionally and aggressively attempting to injure another person.” Appellant further alleged that at the time J. B. Adams received his fatal injury “he was not engaged in any work having to do with or originating in the work, business, trade or profession of said Sabine Basket Factory.” Nor was Adams engaged in the furtherance of the business of said basket factory. That the fatal injury to him was unrelated to the work he was engaged to perform for said basket factory and was not the result of an attempt on his part to prevent “interference with the performance of any duties he owed to said Sabine Factory.”

Trial was to a jury on special issues. The verdict and judgment were for appellees, and appellant has appealed to this court.

Appellant’s first proposition is: “Unaided by the conclusions of the pleader, the plaintiffs’ petition was vulnerable to the general demurrer, in that the allegations thereof were wholly insufficient to show that J. B. Adams sustained his fatal injury within the course of his employment.”

We think the pleadings of plaintiffs to which the general demurrer was directed alleged with sufficient clarity: (1) That J. B. Adams was employed by the basket factory at the time of his death; (2) that he was killed by a co-employee, Leon Connor; (3) that the altercation which resulted in Adams’ death grew out of a dispute between him and Connor “as to the manner and means of performing their duties for the basket factory”, and in the scope of Adams’ employment with said factory; and (4) that the altercation resulting in Adams’ death was provoked by Connor and not by Adams. These allegations, in our opinion, are sufficient to support the judgment rendered herein. But should we be mistaken in this conclusion, still we think the pleading was good as against a general demurrer for the reason that the cause of action stated therein, if defective in form, was amendable. As said in State Banking Board v. Pilcher, Tex.Civ.App., 256 S.W. 996, 1002, reversed by Supreme Court on other grounds, 270 S.W. 1004: “Certainly it cannot be contended with any degree of assurance that, if the trial court had sustained the general demurrer * * * ap-pellee could not, and would not, have been accorded, under the rules of practice, the right to file an amended pleading so as to have removed the effect of sustaining said general demurrer.” Erie Tel. & Tel. Co. v. Grimos, 82 Tex. 89, 17 S.W. 831; Paine v. Hart-Parr Co., Tex.Com.App., 228 S.W. 121; Northwestern Nat. Ins. Co. v. Woodward, 18 Tex.Civ.App. 496, 45 S.W. 185, writ refused.

Appellant’s second proposition relates to the refusal by the trial court of its peremptory instruction. At the conclusion of appellees’ testimony, without introducing any testimony of its own, appellant rested its case and made motion for peremptory instruction which was by the court overruled. Appellant contends that the evidence when viewed most favorably for appellees wholly fails to establish any cause of action against it. The participants in the fatal difficulty as well as all eye-witnesses thereto, were Negroes — common laborers — and their evidence reflected by this record is typical. Some of them saw’ Adams and Connor immediately before the fight, others did not notice them until after the fight began. None of the witnesses saw the beginning of the difficulty. The'actual fight — boxing —was what first attracted the attention of the witnesses. The record shows that Adams and Connor were boys about 18 years of age, employed by the Sabine Basket Factory as common laborers and were actually engaged in the work of unloading baskets and basket tops from a truck into a railroad car immediately before the fight. After the truck had been unloaded the driver thereof requested Connor to crank his truck. The driver’s testimony with respect to events immediately following this request is :

“I picks up the crank and gives it to Leon Connor to crank the truck. I told him to give me a crank. I handed the crank to him and he took it in his hand.
“Q. What did he say? A. Well, he say, Well, I would give it to Levi * * * ’
“Q. Who is Levi? A. J. B. (Adams). But he say ‘He’s a little hot with me, he might hit' me with the crank.’ He did hand Levi the crank. I didn’t hear him say anything else. Adams didn’t say anything that I heard. After Leon handed the crank to J. B. or Levi, I looked around and the crank was lying on the ground and J. B. picks up a basket and slings it after Leon (Connor) and Leon gets after hkn with his knife. When Leon gets after J. B. he runs and Leon runs behind him. I did not see Leon cut J. B.”

Other witnesses saw the boys fighting (boxing) before Adams threw the basket at Connor. Practically all the witnesses agree that when Connor “drew his knife” Adams, the deceased, ran. Joseph Peterson, an eye-witness to the fatal stabbing, testified:

“Q. When they finished boxing what happened, or what caused them to stop boxing? A. Well, this Connor boy got mad and got his knife out at this boy and Adams broke and run and Connor ran after him. He didn’t catch him until he stopped. I saw Adams when Leon caught him.
“Q. What did he (Connor) do? A. Weil,' this Adams boy stopped, stooped and picked up a stick, and this boy (Connor) ran by him and struck him. I saw him stick him with a knife. After Adams was stabbed he threw a stick at Connor and started back to where he was working. He fell before he got back.”

The record shows also that Adams was somewhat larger than Connor and had been practicing to be a professional boxer.

It seems to us from all the facts and circumstances in this record that a reasonable deduction to be drawn therefrom is that the fatal fight grew out of the work of cranking the truck. That is, whether Adams or Connor should crank it. This was a part of the work Adams was employed to perform for his master. It was incident to the hauling of baskets and tops from the factory to the railroad car. It affirmatively appears from this record that Adams was a peaceable boy, and at the time of the fight he said no word until after he had been fatally stabbed by Connor. From the record it also appears that these boys were friendly up to the very time of the fight. We conclude that there is sufficient evidence in this record to support the jury’s answers to special issues Nos. 1 and 2, that the fatal injury received by J. B. Adams originated in and had to do with the work he was employed to perform for the Sabine Basket Factory and that the fatal injury suffered by Adams was received at a time when he was engaged in or about the furtherance of the work he was employed to perform for said factory. Adams’ death was the “result of a hazard ¡reasonably inherent in or incident to the conduct of his work” as common laborer. Among Negro common laborers, quarrels and fights must be expected to result in some instances from the manner and method of performing the work assigned to them. In McClure v. Georgia Casualty Co., Tex.Com.App., 251 S.W. 800, 803, opinion approved by Supreme Court, the following statement from Pekin Cooperage Co. v. Industrial Commission, 285 Ill. 31, 120 N.E. 530, is quoted with approval“All concur in the rule that the accident, to be within the Compensation Act, must have had its origin in some risk of the employment. No fixed rule to determine what is a risk of the employment has been established. Where men are working together at the same work, disagreements may be expected to arise about the work, the manner of doing it, as to the use of tools, interference with one another, and many other details which may be trifling or important. Infirmity of temper, or worse, may be expected; and occasionally blows and .fighting. Where the disagreement arises out of the employer’s work in which two men are engaged, and as a result of it one injures the other, it may be inferred that the injury arose out of the employment. The origin of this difficulty was trifling — the taking of a few staves from the claimant’s rack, to which he objected, saying, as he testified, that if Miller would stay in there he would be up, with the claimant. The dispute was concerning the employer’s work in which the men were both engaged, and there is evidence tending to show that the claimant was not responsible for the assault.”

In Cassell v. United States Fidelity & Guaranty Co., 115 Tex. 371, 283 S.W. 127, 128, 46 A.L.R. 1137, our Supreme Court speaking through Justice Greenwood holds that even pranks practiced by workmen are considered a hazard to be encountered by them, and “constitute a risk reasonably inherent in or incident to the conduct of the employer’s business.” See also Southern Surety Co. v. Shook, Tex.Civ.App., 44 S.W.2d 425, writ refused; Commercial Standard Ins. Co. v. Austin, Tex.Civ.App., 128 S.W.2d 836; Traders & General Ins. Co. v. Mills, Tex.Civ.App., 108 S.W.2d 219; Consolidated Underwriters v. Saxon, Tex.Com.App., 265 S.W. 143; and Travelers Ins. Co. v. Culpepper, Tex.Civ.App., 82 S.W.2d 1054, error dismissed. Many of the decisions examined by us dealing with injury to an employee by a co-employee and holding said injury compensable, lay great stress on the fact situation as here — that there had been no previous trouble between the two employees. This proposition is overruled.

Appellant’s fourth proposition relates to the failure of Squirrel Adams to give notice of injury and death of his son, J. B. Adams, to the Industrial Accident Board, to make claim for compensation before said Board, and to give notice to said Board that he would not abide by its final order. It is undisputed that Doll Adams, the mother of J. B. Adams, • deceased, and wife of Squirrel Adams, alone made claim for compensation to the Industrial Accident Board and she alone gave notice to said Board that she would not abide by its order refusing her claim. The Board made no order with respect to Squirrel Adams. In Doll Adams’ claim to the Board no mention was made of Squirrel or any other beneficiary, except as reflected by the following recitation: “This claim for compensation, with respect to such injury and because of death of deceased, is made in behalf of and for each and all the legal beneficiaries of the deceased, as well as by and for the undersigned, he herein acting for him'self and such legal beneficiaries.” The first time Squirrel Adams’ name appears in this controversy is in the District Court of Panola County where he joins his wife, Doll Adams, in this suit to set aside the ruling of the Industrial Accident Board made and entered against Doll Adams, denying her compensation. The judgment rendered by the trial court in response to the verdict of the jury was in favor of Doll and Squirrel Adams jointly.

It is appellant’s contention that Doll Adams’ claim to the Board for compensation for the death of her minor son did not have the effect of also presenting Squirrel Adams’ claim. The evidence is undisputed that J. B. Adams, deceased, was the minor son of Doll and Squirrel Adams, and under R.C.S. Article 8306, Sec. 8a, of the Workmen’s Compensation Act, as well as the undisputed evidence herein, Doll and Squirrel Adams were the sole beneficiaries under the claim arising from his death. The records show without dispute that on the date Doll Adams filed her claim before the Board, on the date the Board heard said claim, on the date Doll Adams gave notice to said Board that she would not abide by its ruling, and on the date this suit was filed in the court below, Squirrel Adams was confined in the Texas penitentiary. On June 7, 1937, the Industrial Accident Board passed upon said claim of Doll Adams for compensation and declined same, holding “that said Doll Adams has failed to sustain the burden imposed upon her by law to establish by proof that J. B. Adams, deceased, suffered injury which arose in or grew out of his employment for the subscribing employer herein as alleged.” In support of the trial court’s judgment herein we are cited to Texas Employers’ Ins. Ass’n v. Williams, 57 S.W.2d 218, by the Dallas Court of Civil Appeals. That case is remarkably similar in point of fact to this case.- In that case Williams and his wife were divorced, he living in another state. Their son was accidentally killed while working in the course of his employment. Williams and his estranged wife entered into separate contracts with the same attorneys to represent them in collecting the compensation due each for the death of their son. Williams assigned his portion of the claim to his divorced wife- who alone made claim for the death of their son before the Industrial Accident Board. In her application to the Board no mention was made of her divorced husband, but attached thereto was- an affidavit showing his name. The wife also sought before the Board the entire compensation due to her and her estranged husband under the assignment from him. The Board allowed the claim but compensation was awarded to Williams and wife in equal portions as under the statute provided. She alone gave notice of her unwillingness to abide by the award of the Board; that is to say, the husband did not give notice of his unwillingness to abide by the award of the Board. Suit was instituted by the insurer to set aside said award, and appellees in their answer sought a lump sum payment of the whole claim to Mrs. Williams. The trial court in its judgment gave to Mrs. Williams, the mother, one-half the compensation, and to the father one-half, thus in effect affirming the action of the Industrial Accident Board. The Court of Civil Appeals held that the claim by the divorced wife alone to the Industrial Accident Board, together with the affidavit making known the husband, and the further fact that the claim was made on behalf and for all the legal beneficiaries (same as here), was sufficient to confer jurisdiction on the Board over the claim of the estranged husband. In Pruitte v. Ocean Accident & Guaranty Co., 40 S.W.2d 254, 258, this court held that it was not necessary for each beneficiary to make a separate claim to the Industrial Accident Board before it would be authorized to make the award. Stating “the claim as filed by Wm. Pruitte upon the blank furnished by the board, so far as this record discloses, mentions all and gives correct information as to who the beneficiaries of Frank Pruitte were.” (Italics ours.) The case of Security Union Ins. Co. v. Reed, 42 S.W.2d 494, 496, by the Beaumont Court of Civil Appeals, we think, is squarely in point with this case. In that case Luther Kelly filed claim before the Industrial Accident Board on behalf of himself “and other relatives of deceased” giving his address only. Judge Walker, speaking for the court, stated: “In this case no one filed a claim for the minors; we mean to say that the claim filed before the Industrial Accident Board did not give the names of the minors, and gave no information by which they could be identified. * * * Now, since no claim was filed for these minors, the board had no jurisdiction of them.” (Italics ours.)

In this case nothing was stated in the claim of Doll Adams before the. Board which would identify or locate Squirrel Adams. The Board had no information upon which it could notify Squirrel Adams or his legal representatives of the hearing of the claim before it, and the action of the Board thereon. There is no semblance of proof in this record that Squirrel Adams, or anybody for him, gave notice to the Board that he was dissatisfied with the ruling on the claim filed by his wife, Doll Adams. The only notice given the Board with respect to its final ruling on Doll Adams’ claim was by letter from Jones & Jones, Attorneys, and is: “Mr. Sam T. Holt, Attorney for Doll Adamis, claimant in the above case, has employed'us to assist counsel in the case. We are in receipt of your judgment dated June 7, 1937. We give you notice at this time that said claimant is dissatisfied with the award, and will not abide by said final ruling and decision, and shall, within 20 days after giving this notice, bring suit in the court where the injury occurred to set aside the award.” (Italics ours.) In the circumstances here it is our conclusion that neither the Industrial Accident Board nor the District Court of Panola County, Texas, had jurisdiction to determine the rights of Squirrel Adams with respect to the claim for compensation for the death of his son, J. B. Adams. This proposition is sustained.

Appellant’s fifth proposition relates to the failure of the trial court to submit an issue to the jury inquiring whether the injury to J. B. Adams, deceased, was sustained in the course of his employment with Sabine Basket Factory. The trial court submitted the following issues to the jury concerning J. B. Adams’ employment with the basket factory:

Special Issue No. 1: “Do you find from a preponderance of the evidence that the fatal injury received by J. B. Adams originated in and had to do with the work which the said J. B. Adams was employed to perform for the Sabine Basket Factory? Answer Yes or No.”

Special Issue No. 2: “Do you find from a preponderance of the evidence that the fatal injury suffered by J. B. Adams was received at a time when he was engaged in or about the furtherance, of the work he was employed to perform for the Sabine Basket Factory? Answer Yes or No.”

Special Issue No. 3: “Do you find from a preponderance of the evidence that the altercation, which resulted in the injury and death of J. B. Adams, developed over a dispute between J. B. Adams and a fellow employee as to the manner and means of doing the work which they were employed to do for the Sabine Basket Factory? Answer Yes or No.”

The jury answered the issues in the affirmative. It will be noted that these special issues follow substantially the Compensation Act and the pleadings of appel-lees. Their combined submission means the same as the issue requested. While the issue requested is the one more favored by the decisions of this state in compensation cases, yet we fail to see any injury which resulted to appellant from the submission of the issues set out above. Texas Employers’ Ins. Ass’n v. Owen, Tex.Com.App., 298 S.W. 542.

Appellant’s fifteenth proposition relates to the failure of the court to submit to the jury the following special issue: “Do you find from a preponderance of the evidence that at the time J. B. Adams received his injury he was not engaged in a mutual encounter with Leon Connor?”

An examination of the court’s charge will reveal that issues were there submitted to the jury not in the exact verbiage requested, it is true, but which, in our opinion, effectively and completely covered the issue requested. Therefore this assignment is overruled.

We have Carefully considered all other propositions brought forward here and it is our opinion that they are without merit and are respectfully overruled.

The judgment of the court below in so far as it allows a recovery by appellee Squirrel Adams" is reversed and dismissed as to him. In all other repects the judgment of the trial court is affirmed.

Affirmed in part and dismissed in part.


author: STOKES, Justice.

text:
    CARVER et ux. v. GRAY et al.
    No. 5100.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 15, 1940.
    Rehearing Denied Feb. 26, 1940.

      Jack Payne, of Perryton, and G. C. Har-ney, of Sherman, for appellants.
    J. W. Bookhout and Montgomery & Campbell, all of Dallas, for appellees.
   STOKES, Justice.

On the 14th of October, 1933, Owen M. Murray, receiver of the North Texas Trust Company, recovered in the District Court of the 95th Judicial District at Dallas a judgrpent against appellant, E. C. Carver', in the sum of $674.80 upon a paving certificate that had been issued by the authorities of the city of Perryton, Ochiltree County, for paving the street in front of appellants’ residential homestead. Foreclosure of the paving lien was denied upon the ground, as stated in the judgment, that the property was the homestead of the defendant, E. C. Carver, and on the 12th of December, 1933, an abstract of the judgment was issued by the clerk of the 95th District Court which was filed and recorded in the office of the county clerk of Ochiltree County on December 15, 1933, and in the office of the county clerk of Hutchinson County on-the 20th of December, 1933.

The judgment was assigned by Owen. M. Murray to appellee, Claude C. Gray, on the 22nd of November, 1935, and this suit was filed by appellee in the District Court of Ochiltree County on June 25, 1938. Appellee filed his amended original petition on November 28, 1938, and the purpose of the suit was to foreclose the judgment lien upon two town lots and the residence located thereon at Perryton in Ochil-tree County and two other town lots located in the town of Borger in Hutchinson County. He alleged that appellants,. E. C. Carver and wife, had abandoned the Perryton property as a homestead and removed to the town of Borger in Hutchinson County where they had acquired a new residence which they had continued to occupy as their homestead, and established a new business enterprise in which they had continued to engage.

Appellants answered by a general demurrer, a number of special exceptions, general denial, and specially denied they had abandoned their homestead property at Perryton.

The record shows that appellants with their family resided upon, used and occupied the Perryton property until the spring of 1928, when they, with their family, removed to Borger, in Hutchinson County,, where they thereafter continued to live and were living at the time of the trial of this case on the 20th of December, 1938.

Appellee does not controvert the fact that the Perryton property constituted the homestead of appellants and their family until they removed to Borger, but contends, that, upon such removal, it was abandoned as a homestead; that upon such removal appellants acquired, occupied and appropriated premises in the town of Borger as-a homestead and abandoned the Perryton property as such; thus making it subject to his abstract of judgment lien. Appellants do not deny their removal to Borger as alleged, but contend that such removal was only temporary. They deny that they acquired the title to the premises at Bor-ger, and contend that they maintained at all times the purpose and intention to return to Perryton and occupy the premises as a homestead and that same was never at any time abandoned by them.

The case was submitted to a jury upon special issues, in answer to which the jury found' in substance that appellants are the owners of the property occupied by them at Borger as a residence; that appellants removed from the Perryton property to the city of Borger with the intent and purpose of abandoning the Perryton property as their residential homestead, and that appellants were also the true owners of lots Nos. 39 and 40, in block No. 11, in the town of Borger on August 6, 1936. The significance of this last finding will appear in our discussion of the case.

Based upon the verdict of the jury, the court rendered judgment in favor of ap-pellee, foreclosing the abstract of judgment lien'upon the Perryton property and also the lots in Borger above mentioned. Appellants’ motion for a. new trial being overruled, they gave notice of appeal, and present the case in this court upon a large number of assignments of error and propositions of law. We think, however, that the material issues in the case may be disposed of under three_ general contentions, which are: First, that the trial court erred in overruling appellants’ special exceptions to the pleadings; secondly, that the abstract of judgment was ineffective because improperly indexed; and, thirdly, the court erred in refusing to grant appellants’ motion for a peremptory instruction and in overruling their motion for judgment non obstante veredicto.

Under their first contention appellants assert that their special exceptions to the petition should have been sustained because the petition merely refers to the judgment recovered against them in the district court of Dallas County and does not set out the judgment in haec verba nor contain a copy of it as an exhibit. They make substantially the same contention with reference to the abstract of judgment upon which the suit was based and also with reference to the assignment of the judgment by Owen M. Murray, the plaintiff therein, to appellee. Our system of pleading permits, but does not require, a written instrument which constitutes, in whole or in part, the cause of action sued upon or the matter set up in defense to be made part of the pleadings by copy or the original being attached and referred to as such in aid or explanation of the allegations in the petition or answer, but no other instruments of writing, such as deeds, wills, records of courts or agreements which are not sued upon and do not form the basis of a cause of action by the plaintiff or a matter of defense relied upon by the defendant, are required to be copied in, or even permitted as exhibits to the pleading. Indeed, the rules provide that when documents of the latter character are attached, the court will of its own motion or at the instance of a party cause them to be detached and adjudged to constitute no part thereof. The purpose of the rule is to prevent the pleadings from being encumbered with that which is or may be only the evidence of the case. Rule 19 for District and County Courts, 142 S.W. xviii; City of Paris v. Bray et ux., 107 Tex. 188, 175 S.W. 432; White v. Porter et al., Tex.Civ.App., 78 S.W.2d 287.

The only document involved in this contention which could in any sense be considered permissible as an exhibit to the petition was the abstract of judgment. The rules do not require, but only permit, the attachment of such an instrument. It has always been permissible to plead instruments of the character mentioned without copying them or attaching the originals or copies thereof to the pleading provided the pleading is of a character sufficient to apprise the court and the opposite party of the nature of the instrument. Appellee alleged that the clerk of the District Court of Dallas County made out, certified, sealed and delivered to O. M. Murray, plaintiff in judgment, the abstract of judgment showing the names of the plaintiff and defendant, the number of the suit in which the judgment was rendered, the date and amount thereof, and the balance due thereon, together with the amount of court costs and rate of interest specified. He further alleged that the abstract of judgment was presented for filing, recording and indexing to the county clerks of Ochiltree and Hutchinson Counties, and that it was filed, duly indexed and recorded in the abstract of judgment lien records of both counties. The petition was amply sufficient to warrant the court in permitting the introduction in evidence of the abstract of judgment. Likewise, the other instruments referred to were fully described in the petition and all of the information necessary to inform appellants of the nature thereof and to warrant the court in permitting their introduction was included in the allegations. This contention of appellants is, therefore, without merit and their assignments of error in respect thereto are overruled.

Under the next group of assignments appears appellants’ second contention that the court erred in overruling their objections to the introduction of the abstract of judgment lien. The basis of the objection was that the document did not properly appear upon the index of the abstract of judgment liens in Ochiltree and Hutchinson Counties as provided by Art. 5448, Vernon’s Annotated Civil Statutes. In the direct index of the Hutchinson County abstract of judgment liens the judgment was entered under the letter “M” as “Murray, Owen M., Receiver” as plaintiff, and “E. C. Carver” as defendant, giving the page as number 248. It was also entered under the letter “N” “North Texas Tr. Co., by Receiver”, as plaintiff, and “E. C. Carver” as defendant, giving the page as number 248. In the reverse index the judgment is entered under the letter “C”, giving “Carver, E. C.” as defendant, and “Owen M. Murray, Receiver of N. Tex. Tr. Co.”, as plaintiff, the page being shown as number 248. The index of the judgment lien records of Ochiltree County shows that the judgment was indexed in that county in substantially the same manner as is shown by the index of Hutchinson County. The complaint' made by appellants of the manner in which the document is indexed is that the plaintiff in judgment was shown merely as Owen M. Murray as receiver and does not show the name of the company of which he was receiver, and that when the company of which he was receiver was shown it was merely designated by initial and abbreviation as “N. Tex. Tr. Co.” Our courts have said that the object of the statute is not to encumber the registry with full information concerning the abstract of judgment lien. That may be obtained from the judgment lien itself after it has been located by consulting the index. The latter is designed merely to indicate the source from which the full information may be obtained. It was not necessary that the capacity in which the receiver held the judgment be shown by the index. We think the statute was sufficiently complied with and that the document was indexed in such manner as fully to accomplish the purpose of the law. Willis v. Smith, 66 Tex. 31, 17 S.W. 247; Moseley v. Evangelical Theological College, Tex.Civ.App. 34 S.W.2d 638; Cooke v. Avery, 147 U.S. 375, 13 S.Ct. 340, 37 L.Ed. 209.

The substantial and principal question raised by the appeal is presented by the third contention of appellants which is to the effect that the court erred in refusing to give to the jury a peremptory instruction in their favor at the close of the testimony and, their motion for a peremptory instruction being overruled, the court erred in overruling their motion for a judgment non obstante veredicto after the verdict was returned. Under the assignments and propositions raising this question appellants contend that the undisputed evidence showed the town lots and residence at Perryton in Ochiltree County were their homestead and that all of the evidence to the contrary was founded upon conjecture, surmise and suspicion. It is true that the record shows without controversy that, up until the time appellants removed from Perryton to Borger in the spring of 1928, the property at Perryton constituted their homestead. They had appropriated it as such and used it as their home and place of residence for the family for a number of years. Appellant Carver testified in substance that he intended at all times after removing to Borger to return to Perryton at some time and reoccupy his property there as his home. He said that he had not acquired nor appropriated any other property at Borger or elsewhere as a home and that, in his judgment, the town of Borger, being supported almost exclusively by the oil and gas industry, which was, as a rule, temporary in its nature, would sooner or later “blow up”, by which he evidently meant it would probably disappear altogether or disintegrate and ultimately become a town or community of very few inhabitants. He said that, if Borger should encounter such experience or the community should become such as that it would not support the undertaking business in which he was engaged, it was his purpose and intention to return to Perryton and reoccupy as his homestead the premises from which he had removed.

Of course, no one could know the secret intentions and purposes of appellants except themselves and, as asserted by them, this testimony of Mr. Carver was the only direct and positive testimony in the case concerning his intentions. The evidence showed, however, that the property had not been used as a homestead since the spring of 1928; that it had been rented to tenants during all that time and that Mr. Carver paid his poll taxes in Hutchinson County and voted at Borger during all of the time. He had not paid any poll taxes nor voted in Ochiltree County and had not rendered his property there for taxes as a homestead nor claimed the exemption from state taxes allowed by law. The testimony showed, furthermore, that on June 1, 1935, a residence in the town of Borger was purchased for the sum of $525 and conveyed to appellants’ son, an unmarried boy of the age of seventeen years. Immediately thereafter appellants, at their own expense, remodeled the residence at Borger, added two rooms to it, and occupied it as a place of residence continuously thereafter. E. C. Carver testified that this Borger property belonged to his son and tha.t it was paid for partly with money earned by the son. He said that the balance of the purchase price was taken from a fund which he himself had accumulated to be used in paying the son’s expenses in college. The exact amount paid from earnings of the son was inconsequential, however, and the testimony concerning the amount paid out of a specific fund created to pay the son’s expenses in college was indefinite and uncertain. It was further shown that, although in a bad state of repair, no improvements had been made upon the Perryton property since the family moved to Borger and that the Borger property was rendered for taxation in the name of appellants’ son but rendered by E. C. Carver, and that at least one year it was designated by him as a homestead. The tax assessor of Hutchinson County testified that E. C. Carver signed the rendition in his presence and that he asked Mr. Carver if he wished to claim the homestead exemption, to which he replied in the affirmative. It was further shown that in 1938 Mr. Carver contracted to sell the Perryton’ property for a cash consideration of $1,000; that he had an undertaking business in the city of Bor-ger and that the only condition upon which he expected to return and again occupy the Perryton property was the disappearance or disintegration of the town and community of Borger, which, to say the least, was an indefinite and uncertain contingency.

The rule of law is well established that when a family removes from the homestead and rents it to others, the mere renting, of itself, does not destroy the homestead character of the property. One has a right to vacate the homestead and rent it to others and still retain his right of exemption as against creditors if he, in good faith, intends at some future time to return and again occupy it as his home. He may leave on visits of business or pleasure or for the education of his children or temporarily to acquire a more favorable location and means to improve his condition or for the subsistance of his family, and unless he vacates it under circumstances showing an abandonment of it as a homestead, it still retains its homestead status. Shepherd v. Cassiday, 20 Tex. 24, 70 Am.Dec. 372. Renting of the homestead, prolonged absence, and other circumstances and conduct of the owner of a homestead, are, however, proper subjects to be considered in determining the question of abandonment, and the actions and conduct of appellants in this case, detailed by the testimony, were sufficient to bring into question the declaration of appellant, E. C. Carver, that it was and had continuously been his purpose and intention to return and again occupy the Perryton property as his home. Such matters are always questions of fact to be determined by the jury and the court did not err in overruling appellants’ motion for a peremptory instruction. Thornton v. Wear, Tex.Civ.App., 202 S.W. 1038; Griffin v. McKinney, 25 Tex.Civ.App. 432, 62 S.W. 78; Kutch et ux. v. Holley, 77 Tex. 220, 14 S.W. 32; Hinton et al. v. Uvalde Paving Co., Tex.Civ.App., 77 S.W.2d 733; Silvers et al. v. Welch, 127 Tex. 58, 91 S.W.2d 686; Guthrie v. Texas Pacific Coal & Oil Co., 132 Tex. 180, 122 S.W.2d 1049.

The question raised by appellants upon the action of the court in overruling their motion for a judgment non obstante veredicto is controlled largely by the same principles as those which we have discussed. Unquestionably the record presented a case which the court was required to submit to the jury. The testimony of appellant, E. C. Carver, to the effect that he retained at all times the purpose and intention to return and reoccupy the Perry-ton property as his homestead, controverted by the facts alleged and proved concerning his acts and conduct with reference to his residence at Borger, in Hutchinson County, made an issue which the court was required to submit to the jury. The question was submitted to the jury under special issue No. 2, which inquired of the jury if appellant, E. C. Carver, removed from the Perryton property to the city of Borger with the intent and purpose of abandoning the property at Perryton. This issue was answered in the affirmative by the jury and, it being a controverted question of fact, we are not authorized to disturb it. Appellants strongly contend that they did not acquire another homestead in the city of Borger and that the property occupied by them at Borger did not belong to them but belonged to their minor son. It was not controverted that the property was conveyed to the son and stood upon the records of Hutchinson County in the son’s name, but the circumstances under which it was purchased warranted the jury in concluding that it really belonged to E. C. Carver. If any money belonging to the son was used to pay for' the property, the amount was inconsequential, and even though a part of the purchase price consisted of money which was withdrawn from a fund created by the father to defray the expenses of his son in college, it does not necessarily follow that it was money belonging to the son, but rather the contrary conclusion would be the natural one. The fund was no doubt created by the father. It had not been delivered to. the son but was retained by the father for the purpose of defraying the college expenses. It was still, therefore, the property of the father and its use merely diverted from the purpose which he had in mind when it was created.

In our opinion no error was committed by the court in overruling the motion of appellants for a judgment non -obstante vere-dicto, and their assignments of error raising this question are overruled.

The record shows that two other lots in the town of Borger, lots Nos. 39 and 40 in Block No. 11, had been conveyed to appellant, E. C. Carver, by one W. A. Henderson and wife which appellants claimed Mr.' Carver was holding in trust for the corporation of which he was. an officer. Appellants assail the judgment of the court in foreclosing the abstract of judgment lien upon these lots. The question of whether or not Carver was the true owner of these lots or whether - he was holding them in trust for another was submitted to the jury and they found that the lots belonged to E. C. Carver. There was ample testimony to support such finding- and it, therefore, must be considered final.

Appellants make the contention that the effect of the suit, if appellee should prevail, would be to divest E. C. Carver, Jr., their son, of the title to the residence property at-Borger, where they reside and which was conveyed to the son and stands in his name upon the records of Hutchinson County. They assert that the son was, therefore, a necessary party to the suit and no valid judgment could be rendered in the absence of his having been made a party defendant or his appearance in some legal manner.

We cannot accede to this contention. The purpose of the suit was to foreclose the abstract of judgment lien on the two lots and residence property at Perryton and lots Nos. 39 and 40 in block No. 11 of the town of Borger. These latter lots were not the property upon which appellants maintained their residence at Borger, but were lots that had been conveyed to the appellant, E. C. Carver. The residence property at Borger was the property of which the son held the legal title and the title to that property was involved only in an incidental manner as between the parties to this suit. The contention of appellee that appellants were the equitable owners of it and the testimony offered in support of that contention constituted merely one of the circumstances which he contended established the fact that appellants had abandoned the former homestead at Perryton. This was a matter of no legal consequence to E. C. Carver, Jr., and did not constitute an adjudication of the title to the property of which he held the legal title. He had no justiciable interest in the subject matter of the suit and was, therefore, not a proper party to it. Dallas Power & Light Co. v. Carrington, et al., Tex.Civ.App., 245 S.W. 1046; Collin County School Trustees v. Stiff, Tex.Civ.App., 190 S.W. 216.

We have carefully examined all of the assignments of error, propositions of law and contentions made by appellants in the exhaustive brief filed by them and, in our opinion, no error is revealed by any of them. The judgment of the court below will, therefore, be affirmed.


author: WALKER, Chief Justice.

text:
    NEYLAND v. ADAMS.
    No. 3662.
    Court of Civil Appeals of Texas. Beaumont.
    May 2, 1940.
    Rehearing Denied May 15, 1940.
    Synnott & Smith, of Jasper, for appellant.
    J. R. Beck, of Beaumont, and Adams & Hillin, of Jasper, for appellee.
   WALKER, Chief Justice.

The appeal is by writ of error, but the parties will be referred to as appellant and appellee.

In his petition against appellant, A. R. Neyland, appellee, Benjamin Leakye Adams, alleged that appellant operated a grocery store in Jasper, in Jasper county, and that, as an employee of appellant, he received' personal injuries as follows: (a) On or about the 15th day of August, A. D. 1937, his hand came in contact with an unguarded electric buzz fan; (b) on or about the 11th day of January, 1938, while attempting to pick up a sack of feed in appellant’s store, he stepped on á bag containing banana peelings and, falling, suffered a hernia; (e) on or about the 12th day of March, 1938, while driving one of appellant’s delivery trucks, the truck was wrecked and he suffered personal injuries. He plead in detail the negligence against appellant, proximately causing, his injuries. On the allegations of appellee’s petition, appellant was operating his store within the provisions of our Workmen’s Compensation Act, Vernon’s Ann.Civ.St. Art. 8306, § 1 et seq. but did not carry compensation insurance. His prayer was for judgment against appellant for damages for the personal injuries suffered by him.

Appellant answered by demurrers, general and special, general denial, and specially that the store where appellee was working was operated by an independent contractor.

Answering special issues, the jury found the following facts: (a) On the 6th day of July, 1937, appellant had a buzz fan without á guard over its metal blades situated over a checking stand in the rear of his Red & White grocery store in Jasper, Jasper County, Texas; on that date, appellee coming in contact with the buzz fan sustained personal injuries; appellant was guilty of negligence in having the buzz fan in its then condition over the checking stand; which negligence was a proximate cause of appellee’s injuries; for the injuries so received the jury assessed ap-pellee’s damages at the sum of $500. (b) On January 27, 1938, appellee “stepped upon some refuse” in the rear of appellant’s store, thrown there by appellant, or one of his employees, and “as result of slipping and falling on said refuse” ap-pellee suffered a hernia; throwing “such refuse upon the floor” was negligence, which was the proximate cause of the personal injury suffered by appellee; for the injuries so received the jury assessed appellee’s damages at the sum of $165.. (c) Appellant, or one of his employees, furnished appellee a truck to he used by him in delivering groceries from appellant’s store, which was equipped with defective steering gear; while driving this truck appellee had a wreck, and as a result of the wreck sustained injuries; furnishing appellee the defective 'truck was negligence on the part of appellant, which negligence was the proximate cause of the injuries received by appellee in the truck wreck; for the injuries so received the jury assessed appellee’s damages at the sum of $355. The jury found the following additional facts: Appellant operated the store in Jasper on the dates appellee received his injuries, and he had the right to exercise control in the management and operation of the store where appellee was employed. On the three respective dates when he was injured, appellee was an employee of appellant. The injuries received by appellee were not the result of unavoidable accidents. On the undisputed evidence, appellant operated his store within the provisions of the Workmen’s Compensation Act, and did not carry compensation insurance. Judgment was entered in appellee’s favor against appellant for the $1,000 assessed in his favor by the verdict of the jury.

We overrule appellant’s assignments that the evidence was insufficient to support the verdict of the jury on the issues of negligence. We give appellee’s testimony (Q. & A. reduced to narrative) :

(a) “My name is Benjamin Leakye Adams. I know Mr. A. R. Neyland. He fired me about March 12, 1938. Prior to that date I had worked for him seven or eight years. I worked in his store, and drove the delivery truck, and did everything everybody around the store told me to do. I had lots of bosses. The first time I got hurt was in July, 1937, I believe. Mr. Rafe Kirkland, an employee of the store, put a buzz fan on the checking counter where we filled out our orders; Mr. Rafe Kirkland was the butcher in the store. The fan did not have any guards; it had metal blades; it was setting over where I checked out the groceries. I had been to dinner. When I went back, Mr. Billy, the manager, told me there was an order for Mr. Weldon Scott and to rush it on. I went on back there like he told me, rushing; when I went to pick up the box, my hand — I had hold of the box right under the fan, my right hand was hurt. I was all cut up. That fan had been there where I was hurt ever since the first of the summer. Mr. Neyland’s nephew, Mr. Jimmie Braswell, he was helping me fill orders during the summer. I had a little place so hot I spoke about needing a fan back there. Mr. Rafe Kirkland put the fan up there himself. I think the fan had been there ever since ‘about sometime in April’ and I was injured by it in July. Mr. Ney-land was around the store after the fan was put up there. The fan was sticking out there where it could be seen.
(b) “I was hurt again in January, 1938. I had to carry some feed out to deliver. I went back with the sack on my shoulders and somebody had throwed a sack back there and I slipped on it and fell on my back, and the sack of chops fell in the pit of my stomach.
“ ‘Q. What did it do to you ? A. My stomach swoll up and the doctor told me it was a hernia.
“‘Q. A hernia? A. Yes, sir, told me I ought to be operated on.
“‘Q. Yes? A. Mr. Billy said he would see Mr. Neyland — see if he was carrying insurance. He wasn’t carrying insurance.
“‘Mr. Lanier: Your Honor, we object to what others might have said.
“‘The Court: I sustain the objection.
“‘Mr. Beck: We admit the objection and ask the Court to instruct the jury to not consider it.
“ ‘The Court (To the jury) : You gentlemen disregard what somebody else said.’
“I fell about 5 o’clock in the evening. I had been putting up groceries on the shelves, you know, putting up canned goods, and fixing to start out delivering. I would make several deliveries at one time. The feed was in a little place in the store, just enough room for a person to pass through. I didn’t carry the feed out, I fell. I hadn’t carried out any feed before I tried to carry out that sack; that was my first feed order. They throw trash and everything in back there all day long; throw trash on the floor in the back end, I don’t know who threw; the trash. I would sweep up every morning and after that I would start out on deliveries. If I got through delivering about eleven o’clock I would clean up the shelves and re-stock the shelves. Get off at one o’clock to go to dinner. Get back at two and do what deliveries I had. Then mop the store, or something like that. I didn’t see the sack I stepped on; I didn’t fall down on purpose, and I didn’t fall down willfully. I haven’t been operated on.
(c) “The last day I worked for Mr. Neyland was March 12th, Saturday night, 1938. On that day — well, I was in the truck, making deliveries. I was late getting in. A bunch of white ladies had a party and I had to carry around supplies for Monday morning with the truck; when the truck come in the road I planned to make deliveries, I went to turn and to go around a steep embankment and the steering gear locked on me. I shot off over the steep embankment, shot around the corner and it throwed me out through.the side glass and cut my back and head. The steering gear on this car had been bad before. Before my accident, I noticed that the steering gear was bad on the truck, and I told Mr. Billy about it. Two weeks before my wreck, I told Mr. Billy that the steering gear was bad and that it should be fixed. He didn’t fix it. He said he would have to wait until Mr. Neyland came up. The truck hadn’t been fixed. I drove the truck because it was my job, and I didn’t run into the ditch and into that tree on purpose and I didn’t do it willfully. In the accident, I cut my head and fractured my elbow.”

The “Mr. Billy” referred to by appellee in his testimony was Mr. Billy Braswell, who was the manager of appellant’s store for 14 or IS months, covering the period of time when appellee received his three injuries.

It requires no review of authorities to support the conclusion that appellee’s evidence raised the issues of negligence and proximate cause submitted by the court’s charge, and was sufficient to support the jury’s answer to these issues.

The evidence also supports- the jury’s finding that appellee, on the three several dates he was. injured, was an employee of appellant. Under all the testimony, the store belonged-to appellant, and he owned the stock of goods, and from time to time he employed different men to manage it for him. On this issue appellee testified: “I have seen Mr. Neyland around the store; I was in the store the night that Mr. Billy Braswell took over the st'ore. I heard Mr. Neyland tell Mr. Billy that I was getting $8.00 per week and he raised me to $10.00; that Mr. .Gerald Few was getting $15.00 a week and he told Mr. Billy to raise it to $16.00. Mr. Neyland told me to do things around the store. He would come up on Sundays and see them — tell me to clean it up; ‘if I wouldn’t be there he would leave word for me to do it,’ nearly fevery Sunday morning I would have to scrub the tile floor of the store and straighten up the store; ‘if I wouldn’t be there, he (Mr. Neyland) would tell somebody around the store.’ One day when Mr. Neyland was in the store he told me he bought a truck, he told me he was going to buy a new truck; he told me to take care of it and everything. . T was fixing to get fired’ and he (Mr. Neyland) told me I wasn’t working for the manager but for him. .The manager was fixing to fire me for one of his cousins; was going to put one of his cousins in my place. The manager told me he was going to fire me; Mr. Neyland came up that Sunday and told me as long as I drove the truck as well as I was doing nobody could fire me. I always liked Mr. Neyland; I worked for him a long time. I sifted flour for Mr. Neyland. He told me to do it. He would send me sacks of it. He told me himself. I knowed'Mr. Neyland owned the store.”

Appellee’s measure of damages was submitted to the jury by the three following questions:

(a) “What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will reasonably and fairly compensate the plaintiff, Benjamin Leaky Adams, for injuries, if any, proven to have been received by him on July 6, 1937, as a proximate result of negligence of the defendant or- his agents or employees, if any;
(b) “What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will reasonably and fairly compensate the plaintiff, Benjamin Leaky Adams, for injuries, if any, proven to have been received by him on January 27, 1938, as a proximate result of such negligence, if any you have found in Special issue No. 11;
(c) “What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will reasonably and fairly compensate the plaintiff, Benjamin Leaky Adams, for injuries, if any, proven to have been received by him on March 12, 1938, as a proximate result of the negligence of the defendant or his employees, if any?”

We overrule appellant’s exceptions that these issues submit “triple damages.” Each question limited the damages to be assessed by the jury, to such amount as would reasonably and fairly compensate appellee for the injury received by him on the dates alleged.

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

Affirmed.