author: FUNDERBURK, Justice.

text:
    PACE v. PIERSON et al.
    No. 2059.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 1, 1940.

      E. V. Hardwick, of Stamford, for appellant.
    Oliver Cunningham, of Abilene, and Walter Murchison, Jr., of Haskell, for appellees.
   FUNDERBURK, Justice.

John W. Pace, payee and holder of a note against A. C. Pierson, brought suit upon same, and, collateral to that suit, instituted garnishment proceedings against Haskell National Bank of Haskell, Texas. The answer of garnishee was, in part, to the effect that A. C. Pierson owned 15 shares of stock in said bank. Mrs. M. S. Pierson, mother of A. C. Pierson, intervened. Intervener alleged, in effect, that the 15 shares of stock represented by two stock certificates for 10 and 5 shares, respectively, had, prior to the garnishment proceedings, been assigned, transferred and delivered to her “by written assignment on the backs thereof” and that “it was agreed by and between this intervener and A. C. Pierson that the assignment and delivery of the said stock certificates was for the purpose of securing” a previously described $1,800 note of A. C. Pierson executed to intervener “and was to be and operate as a pledge of certificates and the shares they represented to the payment of said note and that said transaction should fix a lien on the certificates and the shares of stock which they represented for the payment of the note according to its face and tenor.”

In a nonjury trial judgment was rendered to the effect that the 15 shares of stock should be sold subject to the lien asserted by intervener. The plaintiff has appealed.

Appellant has briefed eight assignments of error which are in reality but a single assignment of error seven times repeated, namely, that “the court erred in rendering judgment in favor of the intervener.” Such action of the court is alleged to be erroneous for a number of different reasons, each set forth as a part of the several assignments of error. Such reasons are to the general effect: (a) that intervener’s own testimony affirmatively showed there was no pledge of the stock; (b) that there was no evidence 'to show a pledge of the stock; and (c) on-the issue of the pledge of stock, there was a fatal variance between the pleadings and evidence.

We may appropriately, we think, first notice the contention with reference to a variance between the pleadings and the evidence of a pledge. It was unimportant upon any issue in the case whether if the stock had been pledged, the time it was pledged was “some day during the first half of the month of April, 1939”, as in one place alleged, or was “on or about May 15, 1937”, which the evidence, claimed to be at variance with the pleadings, tended to show. Independently of the above allegation it was further alleged that the time was “long prior to the issuance of the writ of garnishment”, etc., and thus was tendered the material issue, namely, Was the pledge, if any, made prior to the garnishment action? Any question of the variance complained of qpuld only be raised, if at all, by objecton to the admission of the testimony. It can have no important bearing upon the only questions to be determined, namely, whether the judgment was supported by the evidence.

Aside from any question of a transfer of the stock by A. C. Pierson to inter-vener by written assignment so as to vest legal title in her, and considering only whether there was evidence to support a conclusion that the stock had been pledged to intervener so that the garnishment could not affect her rights, we think there was evidence sufficient to support a finding that the stock was pledged. There was evidence of such fact and the testimony of the inter-vener, which, it is contended, showed conclusively there was no pledge was not sufficiently clear in its entire purport as to show conclusively as a matter of law that the stock was not pledged. We shall not extend the opinion by quoting the evidence upon which we reach this conclusion as we think independently of this question the judgment is fully supported. As to whether the stock was pledged we think the evidence raised an issue of fact.

As shown in the above statement of the case, intervener alleged that the stock certificates had been assigned, transferred and delivered to her “by written assignment on the backs thereof.” Proof of that allegation was made and was sufficient to support the judgment for intervener. Indorsements on the stock certificates alone constituted such proof, except the fact of delivery. The difference should be borne in mind between the stock and the certificates of stock. A certificate of stock in a corporation is not the stock itself, but merely evidence of the ownership of the stock. Yeaman v. Galveston City Co., 106 Tex. 389, 167 S.W. 710, Ann.Cas,1917E, 191; Strange v. Houston & T. C. Ry. Co., 53 Tex. 162; Cattlemen’s Trust Co. v. Turner, Tex.Civ.App., 182 S.W. 438; West Texas Utilities Co. v. Ellis, Tex.Civ.App., 102 S.W.2d 234. Ownership ‘of stock in a corporation is properly classified as personal property, but it is property of an intangible nature and, therefore, incapable of possession in the same sense as tangible personal property. Shares of stock in a corporation being intangible personal property, delivery of the possession thereof by the owner to another can only be a symbolical delivery. Such delivery is symbolized by delivery of the stock certificates. Such delivery is analogous to the delivery of a deed. In either case, when once delivery is effected it is not material in whose possession the stock certificate, or the deed, may be, except as such possession may be evidence of a question of whether the stock or the land, as the case may be, has been re-transferred or re-conveyed. In other words, just as possession of a once delivered deed is not conclusive of the possession of the land, so possession of a once delivered stock certificate is not conclusive of the possession of the stock.

The indorsements upon the back of the stock certificates constituted, as between A. C. Pierson and intervener, legal title to the stock in the latter. . As said by Chief Justice' McClendon, in Kerr v. Tyler Guaranty State Bank, 283 S.W. 601, 602: “* * * indorsement in blank and delivery of a corporation stock certificate passes the legal title to the stock as between the parties to the transfer and as to creditors of the transferor, regardless of whether the transfer has been made on the books of the corporation.” The authorities cited in support of this proposition, we think, fully sustain it.

It is a thoroughly well-settled principle of the law relating to garnishments that a garnishor can acquire no other or greater right in property than the defendant has. Ordinarily, the statement is made with reference to the rights which the defendant has against the garnishee. “The plaintiff [garnishor] is subrogated to the rights of the defendant; he acquires no greater right by service of the writ than the defendant would be able to assert and enforce in an action against the garnishee. The plaintiff steps into the shoes of his debtor, and is entitled to recover nothing if it appears that nothing is owing to the debtor.” 20 Tex.Jur. 802, sec. 76. Where the garnishment relates, not to debts owing to the defendant by the garnishee or effects in possession of the garnishee belonging to the defendant, but to ownership of stock in the garnishee corporation, the above cannot, of course, be literally applied; but it is, nevertheless, just as true that the garnishor “steps into the shoes of his debtor and is entitled to recover nothing if it appears” that the debtor has transferred or encumbered the stock in such way that he is not the owner of the same.

A corporation in answering under oath as a garnishee that the defendant owns shares of stock in the corporation must be held, we think, to make such answer with reference to the fact as shown by its records. When, therefore, the garnishee in this case answered that A. C. Pierson owned 15 shares of stock in the bank that simply meant that according to the bank records he owned 15 shares of stock. Such answer concluded no question of the ownership of the stock as between A. C. Pierson and intervener. Since, under the rule above referred to, a simple assignment by indorsement and delivery of the stock certificates passed the legal title to the assignee without reference to any transfer upon the records of the corporation, the corporation could not, as a garnishee, be expected to answer under oath whether the defendant owned shares except as the fact appeared from its stock transfer records.

After all, then, the question is: What rights as disclosed by the findings, implied by the judgment in favor of the intervener, did A. C. Pierson have in the 15 shares of stock? The answer is he had none, except as shown by allegations or admissions of the intervener. According to the indorsements upon the certificates, the shares of stock represented thereby had all been transferred to intervener. The evidence of the ownership of the stock showed that intervener was the owner. According to some of the evidence, A. C. Pierson had no right or interest in the stock. According to the admissions of the intervener made in her pleadings and evidence he did have some interest, but it was subject to intervener’s rights to have the amount of her note paid out of the stock. Garnishor, succeeding only to such right as Pierson had, was by the judgment awarded all that the law allows, in that he was awarded a sale of the stock, but subject to the claims o.f the intervener.

As to whether there was evidence to support a conclusion of fact that the certificates had been delivered to inter-vener, we think there was undoubtedly sufficient evidence. The certificates had been attached to the note as security for which the transfer of the certificates was made and notes and certificates placed in the private_ lock box of intervener. That, we think, shows the necessary symbolical delivery of the stock. It is immaterial by whose hand the certificates were so attached to the note and placed in the lock box. It is only material that that was done for the intervener and with the intention on the part of A. C. Pierson and inter-vener that a transfer was to be thereby effected. There was at the very least, we think, an issue of fact raised by the evidence which the judgment, by implication, concludes against the appellant.

It is, therefore, our conclusion that the judgment should be affirmed, and it is accordingly so ordered.


source: Caselaw Access Project

author: NORVELL, Justice.

license: Public Domain

text:
    CANALES et al. v. CLOPTON.
    No. 10764.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 13, 1940.
    Rehearing Granted Dec. 11, 1940.

      . J. T. Canales, of Brownsville, H. P. Guerra, of Rio Grande City, and Kennedy Smith, of Raymondville, for appellants.
    R. M. Bounds, of McAllen, and John A. 'Pope, of Rio Grande City, for appellee.
   NORVELL, Justice.

This is an action of trespass to try title brought by appellee, John H. Clopton, for the recovery of title and possession of cer-íáiñ lands situated in Starr County, Texas.

. Certain defendants in this action, namely, Dr. Jose G. Garcia, Rita Garcia, San Juana Garcia-and J. T. Canales, the latter acting in the capacity of a trustee, reconvened and prayed for judgment against Clopton for title and possession of “El Refugio” Banco No. 92 and “El Barrito” Banco No. 93, ■containing 221.7 and 272 acres of land, respectively. Clopton dismissed his action and the case was tried upon the plea of re-convention. Trial was to the court without a jury and judgment rendered against the cross-plaintiffs who have appealed.

The lands in controversy lie near the Rio Grande, which is the international boundary line between the United States of America and the Republic of Mexico. The lands now comprising the bancos were situated in Mexico prior to 1917, when by a sudden change in the channel of the river Banco No.-93 was cut to the American side of the river.-' A -similar change in the river occurred-in 1919, which resulted in the cutting of Banco No. 92 to the American side.

The treaties and conventions between the United States and the Republic of Mexico, applicable to this case, are fully set out and analyzed in the San Lorenzo cases by the ÉÍ Paso Court of Civil Appeals. The holdings in these cases were expressly approved by the Supreme Court, and a discussion of the same is unnecessary in this opinion. See San Lorenzo Title & Improvement Company v. City Mortgage Company, Tex.Civ.App., 48 S.W.2d 310; Id., 124 Tex. 25, 73 S.W.2d 513; San Lorenzo Title & Improvement Company v. Clardy, Tex.Civ.App., 48 S.W.2d 315; Id., 124 Tex. 31, 73 S.W.2d 516; San Lorenzo Title & Improvement Company v. Caples, Tex.Civ.App., 48 S.W.2d 329; Id., 124 Tex. 33, 73 S.W.2d 516.

It is sufficient to say that neither of the. bancos involved had an area of 250 hectares (approximately 600 acres), nor a population of 200, and therefore the changes in the river occurring in 1917 and 1919 transferred the political sovereignty of the lands involved to the United States but did not change the private ownership of. the bancos.

Clopton is the owner of Porciones 86 and 87,'ancient jurisdiction of Camargo, now situated in Starr County, and proved a paper title thereto emanating from the sovereignty of the soil. Appellants claim ownership of the Camargo porciones situated in Mexico across the Rio Grande opposite appellee’s land.

J. H. May, the county surveyor of Starr County, testified that by using field notes of R. C. Trimble, prepared in the years 1853 to 1857, covering Porciones 86 and 87, as well as other porciones in the vicinity, he was able to approximately locate the southeast corner of Porcion 87 (the east por-ción), which was on the bank of the Rio Grande. The south boundary line of the two porciones, which was the river, could therefore be located as it existed in 1853 or thereabouts, and it appears that at that time the channel of the Rio Grande ran a considerable distance south of the position now occupied by the two bancos ' in controversy.

The area now occupied by the bancos (with the exception hereinafter mentioned) originally lay within the Trimble field notes of Porciones 86 and 87, which were pre-sumedly included in the patents issued by Governor Sam Houston in 1860, under the provisions of the Relinquishment Act of 1852.

It is appellants’ theory that by a process of erosion on the American side and accretion on the Mexican side, the land now in the bancos became part of the Mexican porciones claimed by them and their predecessors in title. Manry v. Robison, 122 Tex. 213, 56 S.W.2d 438.

The burden of proving their title rested upon appellants, under the well recognized rule that one must recover, if at all, 'on the strength of his own title and not upon the weakness of that of his adversary.

In. order to meet this burden, appellants relied upon proof of possession to establish title.

The' trial court upon proper request, among others, made the following findings:

“I find that while said lands were on the South or Mexican side of the Rio Grande River, Juan Garcia Pena and his descendants (under whom appellants claim) occupied' the same intermittently by tenants, but that they never had said lands under fence and that said occupation was not hostile or under any claim of title; that said occupation continued up to the time that the lands known as Bancos 92 and 93 were transferred back to the North or American side of the Rio Grande River; that said occupation by Juan Garcia Pena and his descendants through tenants consisted of intermittent use of said lands without them moving thereon. * * *
“I find that what is known as Banco 93 was transferred back to the American side of the Rio Grande River by avulsion in the year 1917, and that what is known as Banco 92 was transferred back, to the American side of said River by avulsion in the year 1919.
“I find that immediately after Bancos 92 and 93 were transferred back to the American side of the Rio Grande River Luis Garcia (a grandson of Juan Garcia Pena) sent or directed some farmers to farm a portion of said Bancos 92 and 93, "but that neither the said Luis Garcia or any of said farmers during that time actually lived on said Bancos 92 and 93, and each farmer' only farmed a small portion of said Bancos, and that the balance of said Bancos was not used by’any of them; and that during some years on account of severe droughts or for other reasons some of said farmers did not raise any crop on said lands and that when a crop was raised by said farmers they remitted a portion of the proceeds of same to the credit of Luis Garcia, and that the occupation and possession of said farmers and Luis Garcia was not exclusive; that neither Luis Garcia nor any of these said farnqers ever fenced any part of said Bancos, and at all times, from the time the said Bancos were transferred back to the American side of the Rio Grande River as found * * * above, until the present time, the lands involved in this suit were under the fence of John H. Clopton and his predecessors in title and they exercised a sort of joint possession with Luis Garcia and said farmers concerning said property.”

From these findings the trial court concluded that the possession shown by appellants and' those under whom they claim was insufficient to raise a presumption of. title.

Unless appellants' evidence in regard to possession is such that a presumption of title must follow as a matter of law, this Court can not disturb the findings and conclusions of the trial court.

As aboye pointed out, it seems clear that the area occupied by the lands in controversy originally lay within the field notes of Porciones 86 and 87. It is not shown when these lands were transferred to the Mexican side, .except that such change occurred sometime between 1853 and 191-7. Testimony as to the possession of the Mexican porciones across the river from Porci-ones 86 and 87 is meager, and consists for the most part of witnesses’ statements as to claims of ownership, which if admissible at all, are clearly without much probative force. It does appear that small tracts upon the bancos were farmed by various parties as tenants of Juan Garcia Pena and his descendants. The testimony of one of appellee’s witnesses indicates thát shortly after the bancos were cut to' the American side, in 1917 and 1919, they were placed under the fence of Mrs. A. M. Kelsey Bass (appellee’s predecessor in title), who then owned the south part of Porci-ones 86 and 87, and that the use of ⅛⅛ lands in the bancos by tenants of the descendants of Juan Garcia Pena was permissive and not exclusive.

The doctrine that title.or ownership may be inferred from possession is. ⅜ rule of evidence' and not of property. Humble Oil & Refining Company v. Wilcoxon, Tex.Civ.App., 70 S.W.2d 218. The nature of the possession necessary to ,raisfe a presumption of title, as well as the province of the court and jury (the trial judge here) in a case involving proof of title by possession, is discussed in Lynn v. Burnett, 34 Tex.Civ.App. 335, 79 S.W. 64, 66, wherein Judge Stephens, speaking.' for the Fort Worth Court of Civil Appeals said:

“It has several times been held in this state that proof of prior possession of land is prima facie evidence of title, and sufficient to warrant a recovery in trespass to try title . against one entering without ti-tie. * * * Such possession must, of course, be actual, and must be so clearly defined as to give the claimant the exclusive dominion over the property. Page v. O’Brien, 36 Cal. 559. And before the judge is authorized to take the case from the jury the evidence must be conclusive, leaving no room for doubt as to the fact of actual possession. It is not enough that the evidence is without conflict in establishing the facts relied on to show actual possession, but these facts must themselves conclusively prove such possession. It is often the case that there is no dispute as to the circumstances offered in evidence to establish a given fact'—-such,' for instance, as residence or actual settlement—and yet the proper inference to be drawn from these facts involves a difference of opinion, and should be left in the first instance to the jury. The fact of actual possession belongs to this class.” See, also, Lund v. Doyno, Tex.Civ.App., 57 S.W.2d 868; Id., Tex.Com.App., 91 S.W.2d 315.

We can not say on the record here that appellants’ evidence of possession was such as required the trial judge to hold that a presumption of title arose as a matter of law. This holding calls for an affirmance of the trial court’s judgment, and it is unnecessary to discuss other theories advanced by appellee in support of the judgment.

Appellants’ fifth proposition raises a point regarding the taxing of part of the costs in the court below. We hold that the trial court did not abuse his discretion in allowing appellee to file a disclaimer to that part of Banco No. 92 lying west of the west boundary line of Porcion 86, after the taking of testimony had been com.pleted, nor in taxing costs pertaining to the" cross-action against appellants. 33 Tex.Jur. 505, § 78. Appellants’ proposition is accordingly overruled.

For the reasons above stated, the judgment of the trial court is affirmed.

On Motion for Rehearing.

Appellants have filed a thorough and vigorous motion for rehearing asserting that their proof of possession was sufficient to raise an inference of title as a matter of law. We have again examined the statement of facts in the light of appellants’ motion and are of the opinion that our original holding on this point was correct. This court is unauthorized to set aside an express finding of a trial court in a non-jury case, unless there is no evidence to support the finding or such finding is manifestly contrary to the overwhelming preponderance of the evidence. Shaw v. Centerfield Oil Co., Tex.Civ.App., 10 S.W. 2d 144. This is true even though the appellate court in weighing the evidence might have reached a conclusion different from that of the trial court. Crawford v. Beaver-Electra Refining Co., Tex.Civ.App., 273 S.W. 892.

Appellants contend that the trial court erred in finding “that all matters not herein specifically enumerated are found in favor of cross-defendant (appellee) John H. Clopton.” This general finding was not considered by us in our disposition of this case, and any error existing by reason of its presence among the trial court’s findings is therefore harmless.

As pointed out in our original opinion, appellee, Clopton, filed a disclaimer as to part of the lands sued for in appellants’ cross-action. Upon this disclaimer, the trial court dismissed appellants’ cross-action, insofar as it pertained to the lands described in the disclaimer. This was error and the judgment of the trial court will be reformed so as to allow appellants judgment for the lands and premises described in appellee’s disclaimer. Williams v. Humble Oil & Refining Co., Tex.Civ.App., 139 S.W.2d 346, and authorities therein cited. It does not appear that this particular error was called to the attention of the trial court and therefore the cost of this appeal will be taxed against appellants. Snyder v. Compton, Tex.Civ.App., 29 S.W. 73.

The judgment of the trial court will be reformed, as above indicated, and as reformed, affirmed.

Appellants’ motion for rehearing is granted to the extent indicated, and in all other respects it is overruled.


author: LESLIE, Chief Justice.

text:
    OWENS et al. v. BARHAM, Co. Atty.
    No. 2123.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 8, 1940.
    Williamson & Nordyke, of Stephenville, for appellants.
    C. O. McMillan, of Stephenville, for ap-pellee.
   LESLIE, Chief Justice.

This is an action brought by B. D. Owens and O. O. Fox, as contestants, against Clint A. Barham, County Attorney of Erath County, as contestee, for the purpose of contesting an election held in Palm Rose School District in said county, to determine whether or not a majority of the legally qualified voters residing in said district desired the consolidation of the same with the Pur-vis School District in said county.

The contestee filed a plea in abatement and also answered by general demurrer, special exceptions and general denial. A trial was had before the court without a jury, and the court sustained “the plea in abatement and the general and special exceptions of the Contestee,” and dismissed the cause at the expense of contestants, who prosecute this appeal.

The plea in abatement is to the effect that the contestants have no justiciable interest in the subject matter of this suit, that they bring the contest in “their own right as individuals and not in a representative capacity.”

Owens and Fox, the contestants, allege the facts concerning the election, and that they were at the date thereof “legally qualified, resident property tax paying voters in said Palm Rose District”, that said consolidation would increase the tax burdens of contestants and all other property taxpayers in the district, and impose various inconveniences and hardships on their children in attending the consolidated school, etc.

In showing the right of these contestants to institute this proceeding, such allegations went very much beyond the requirements of Arts. 3069 and 3070 (Vernon’s Ann. Civil Statutes) as construed in De Shazo v. Webb, Tex.Civ.App., 109 S.W.2d 264; Id., 131 Tex. 108, 113 S.W.2d 519. Under these authorities “any resident of such county, precinct, city, town or village, or any number of such residents, may contest such election * * It was error to sustain the plea in abatement or the exceptions on this ground and such contention is sustained.

The appellants contend that the court erred in each of the rulings referred to. The appellee insists that the general demurrer was properly sustained on general principles, as well as on the specific contention that “where a petition in an election contest merely alleges that the person who voted at such an' election was not 21 years of age on the day of the election, such petition does not allege a fact showing that such voter was disqualified for the reason that the petition does not allege that the voter was under 21 years of age.”

This attack is addressed to. that part of appellants’ petition, namely, “Mrs. M. H. Cook, one of the persons who voted in said election, voted in favor of consolidation and on said election day, March 20,1940, the said Mrs. M. H. Cook was not 21 years of age and was not a legally qualified voter on the day of said election when she cast said vote.” Appellee insists this is the only allegation of fact, or attempted allegation of fact, relating to the legality of such vote, and that “so far as the allegations of the petition in this tase are concerned the said Mrs. M. H. Cook may have been 22 years of age on the day of election, or she may have been more than 60 years of age on the day of election, or any other age except 21. There is no statute or other law in our State which confines the right of persons to vote to only those who are 21 years of age and the trial court did not err in sustaining the general demurrer to the contestants’ petition.”

We arei of the opinion that the pleading was not subject to the general demurrer on these grounds. The clear meaning of the allegations is that Mrs. Cook had not attained the age of 21 years when she voted. If mistaken in this view, reasonable intendments indulged in favor of the pleading would certainly give it no other meaning. The principle is elementary and citation of authority unnecessary.

Further, we find other allegations in the pleading compelling these conclusions. And, if it be conceded that there is a legal conclusion in some parts of the pleading to the effect that the facts alleged constituted her “a legally qualified voter”, such conclusion may be totally disregarded and the pleading would still remain sufficient as an allegation of the fact that the voter was under 21 years of age when she voted. To interpret the pleading otherwise would be to give undue importance to an unwarranted technical construction. This assignment of error is also sustained.

For the reasons assigned, the judgment of the trial court is reversed and the cause remanded.


text:
    CHASTAIN et al. v. GILBERT et ux.
    No. 2060.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 8, 1940.
    Rehearing Denied Dec. 20, 1940.

      Floyd Jones, of -Breckenridge, for appellants.
    L. H. Welch, of Breckenridge, for ap-pellee.
   FUNDERBURK, Justice.

In this suit by A. G. Chastain and J. F. Chastain against T. G. Gilbert to recover upon promissory notes and- foreclose ⅛ chattel mortgage lien on a combine and certain cattle, Mrs. Roxie Gilbert, wife of T. G. Gilbert, intervened, asserting that the cattle constituted her separate property which her husband was without authority to mortgage. The defendant T-- G. Gilbert filed a cross-action seeking cancellation of said notes and mortgage. In a trial by jury, judgment upon the verdict of the jury was rendered for the deferidant to the effect that plaintiffs take nothing by their suit and (relating to the cross-action) that said notes and mortgage be canceled. No issues tendered by the pleadings of Intervener were submitted, and as to that phase of the case the judgment provided “that Intervener Roxie Gilbert take nothing by reason of her plea in intervention.” The only exception to the judgment was by the plaintiffs, who alone have ap7 pealed.

Neither the defendant T. G. Gilbert, nor the Interverier Roxie Gilbert presents any cross assignments of error.

It not appearing that the judgmeS as, relating to the intervention is affected by any fundamental error, and in the absence of any cross assignments of error, that judgment is affirmed.

It is our conclusion that the court should have granted appellants’ motion for an instructed verdict in their favor. The evidence admissible under the pleadings was not such as to afford, the necessary support of the judgment for the defendant. There was no evidence to support the issue of want of consideration for the notes and mortgage. The notes were given in payment for a combine sold and delivered to the defendant. The defendant himself testified that the combine had some value. He could not, therefore, in the absence of agreement, return the machine and thereby absolve himself from liability upon his notes, simply upon the theory alone that the notes were given without consideration.

If the allegations of defendant’s cross-action were intended to assert a cause of action for breach of a warranty as to the condition of the combine, the un-controverted evidence showed that the sale contract was in writing and expressly provided no warranty. The evidence, if any, of a parol warranty was, therefore, by such written instrument shown to be incompetent. It was not one of the purposes of the suit to avoid such written instrument.

Besides, the pleading did not support the judgment based upon a warranty and the breach thereof, since the remedy for the breach of a warranty would be the recovery of damages, and not rescission of the contract of sale. No .recovery of damages was sought.

The only other theory upon which the judgment could rest would be rescission and cancellation of the contract of sale because of false and fraudulent representations. The only representations shown by the evidence were promises to be performed in the future. Such promises, insofar as they were alleged in the cross-action, cannot be treated as warranties and thereby support the judgment, because, as already said, the remedy for breach of warranty would be an action for damages and not for rescission. As elements of actionable fraud such promises were insufficient. Neither the pleadings nor the evidence was sufficient to show actionable 'fraud based alone upon the nonperformance of promises.

As to pleading there was no allegation to the effect that plaintiffs made the promises without intention at the time to perform same. In that respect the pleading was insufficient to state a cause of action for rescission of the sale and cancellation of the notes, and mortgage under the authority of many decisions, of which it is deemed sufficient to cite the leading case of Chicago, T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218, 19 S.W. 472, 31 Am.St.Rep. 39.

If there was any evidence to support a conclusion of fact to the effect that the alleged promises were made without intention of performance, it is certainly true that such evidence did not conclusively establish the issue. Such issue constituting an essential element of defendant’s cause of action, if any, he had the burden of pleading and proving it. Such issue was not submitted, nor, according to the record, requested to be submitted. The appellants were under no duty to request its submission. Hence, they are not barred from contending, as they do, that there was no evidence to support the judgment for the defendant and that the court should have granted their motion for judgment in their favor.

These conclusions require that the judgment be reversed. It does not appear that under proper pleadings the defendant may not have a defense against the notes. The case was evidently not tried with proper regard to controlling principles of law. Hence, we conclude that it should be remanded for further proceedings. Williams v. Safety Cas. Co., 129 Tex. 184, 102 S.W.2d 178. It is so ordered.

Affirmed in part; reversed and remanded in part.


author: SMITH, Chief Justice.

text:
    SLATTERY v. EMPIRE DOCK & BOAT CO., Inc.
    No. 10819.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 11, 1940.

      J. Hodge Thompson and W. O. Slattery, both of Corpus Christi, for appellant.
    Kleberg, Eckhardt & Lowe, of Corpus •Christi, for appellee.
   SMITH, Chief Justice.

W. O. Slattery brought this action .against Empire Dock and Boat Company, Inc., alleging that the latter had wrongfully converted to its own uses a certain boat belonging to Slattery. The parties will be referred to as plaintiff and defendant, respectively, as in the trial court.

Plaintiff alleged that* he took title to the boat while it was in the possession of defendant, as bailee, and thereafter, on or about January 17, 1939, made lawful ■demand on defendant for possession of the 'boat, which defendant refused, thereby converting the property, to plaintiff’s damage in the amount sued for. ,

The cause was tried by the court without .a jury, and judgment was rendered denying any recovery to plaintiff, and for defendant on its cross-action for dockage. The trial judge timely filed his written findings of fact and conclusions of law, as follows:

“Findings of Fact.
• “1. That plaintiff became the owner of the boat ‘Lady Esther’ upon the 28th day of December, 1938, and was the owner of such boat on or about January 17, 1939, the date •of its purported conversion by defendant.
“2. That defendant' came into lawful possession, as bailee, of such boat prior to •ownership by plaintiff and remained in lawful possession thereof after such boat became the property of plaintiff.
“3. The weight of the evidence shows that at no time has plaintiff been refused possession of such boat ‘Lady Esther’ and particularly that plaintiff was not refused possession thereof on or about January 17, 1939, the date of the alleged conversion.
“4. The defendant docked and cared for said boat for plaintiff and the reasonable charges for such services amounted to the sum of $20.00.
“Conclusions of Law.
“1. The Court finds that under the facts and law there was no conversion of the boat ‘Lady Esther’ by defendant at any time and particularly on or about January 17, 1939. * * *
“3. The Court finds, therefore, that plaintiff should not recover anything from defendant, but that defendant should recover against plaintiff. * * * ”
The case, when stripped of nonessentials, becomes a very simple one, purely of fact. It is submitted upon plaintiff’s three assignments of error, and the appeal will be disposed of on those assignments, rather than upon plaintiff’s propositions of law.

Plaintiff contends in his first assignment of error that the trial judge erred in his second finding of fact that plaintiff was not at any time, and particularly on the date alleged' by him, refused possession of his boat. The evidence was in sharp conflict on that issue, and the trial court’s finding thereon is therefore binding upon this court. We overrule plaintiff’s first assignment of error.

In his second assignment of error plaintiff contends that the court erred in finding that the boat was not converted by defendant. That assignment must be overruled because the evidence amply supported that finding. For a like reason we overrule plaintiff’s third and remaining assignment of error, that “The trial court erred in finding that the appellee docked and cared for the boat ‘Lady Esther’ for appellant and that the reásonable charges therefor were $20.00.”'

These conclusions encompass and dispose of the several incidental questions discussed under plaintiff’s propositions of law rendering them immaterial. to the appeal.

No reversible error is presented, and the judgment is affirmed.


author: GRISSOM, Justice.

text:
    PURSER v. POOL.
    No. 2068.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 22, 1940.
    Thomas & Thomas, of Big Spring, for' appellant.
    Brooks- & Little, of Big Spring, for ap-pellee.
   GRISSOM, Justice.

J. D. Purser instituted this suit against Frank Pool on a parol contract for the purpose of recovering a real estate broker’s commission, for procuring the sale of defendant’s land.

The defendant’s answer contained a general demurrer and special exceptions which were directed at plaintiff’s failure to allege (1) that the contract sued on was in writing and signed by the. defendant or his agent, and (2) that plaintiff was a duly licensed real estate dealer or salesman. The court sustained the general demurrer and exceptions and, plaintiff declining to amend, dismissed the case. From the judgment of dismissal, plaintiff has appealed.

The alleged agreement between the plaintiff and defendant for the sale of defendant’s land by the plaintiff for a commission was made in May, 1938. Under the allegations the sale was consummated and plaintiff became entitled to his commission on August 9, 1939. His cause of action arose then. The 46th Legislature on June 21, 1939, p. 560, passed a bill known as the Real Estate Dealers License Act, now Art. 6573a, Vernon’s Texas Statutes, 1939 Cumulative Supplement. Sections 13 and 22 are the subdivisions of said Article directly involved. They are as follows:

“Sec. 13. No person or company engaged in the business of acting in the capacity of a real estate dealer or real estate salesman within this State shall bring or maintain any action in the courts of this State for the collection of compensation for the performance of any of the acts mentioned in Section 2, Subdivision (a) hereof, without alleging and proving that such person or company was a duly licensed real estate dealer or salesman at the time the alleged cause of action arose.”
“Sec. 22. No action shall be brought in any court in this State for the recovery of any commission for the sale or purchase of real estate unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereto lawfully authorized. This provision shall not apply to any action for commissions pending in any court in this State at the effective date of this Act.”

This Act became a law ninety days after June 21, 1939, the date of the adjournment of the Legislature, which, according to our calculation, is September 19, 1939.

By virtue of the alleged contract and his compliance therewith, .plaintiff, on August 9, 1939, was entitled under the law that then and theretofore and thereafter, at least until September 19, existed, to recover from the defendant his real estate dealer’s commission. This was true regardless of whether plaintiff was a licensed real estate dealer at the time the cause of action arose, and regardless of whether the contract for the commission was in writing and signed by the defendant, or his authorized agent. Plaintiff’s right to enforce his contract was a vested right. When his cause of action arose there was no such thing a? a licensed real estate dealer or salesman referred to in section 13 of Art. 6573a.

Article 1, Sec. 16, of the Constitution of Texas, Vernon’s Ann.St. provides: “No '* * * retroactive law, or any law impairing the obligation of contracts, shall be made.” If said sections of Article 6573a were intended by the Legislature to have the effect of depriving plaintiff of the benefit of his contract they are void, because violative of said constitutional provision. At the time the commission contract was entered into and at the time it was consummated, the law permitted plaintiff to recover his commission regardless of whether the contract was in writing and signed by the defendant and notwithstanding plaintiff was not a licensed real estate dealer. Plaintiff’s right of action to enforce the obligations of this valid contract was a vested right of which he could not be deprived. The law at said times placed a two years statute of limitation upon a suit for recovery of such commissions under a parol contract. The laws existing at the time the contract was made, so far as material rights and remedies are concerned, became a part of that contract. It is, of course, recognized that the Legislature may change judicial methods and remedies for enforcement of contracts, but even as to remedies the Legislature does not have the power to so alter the remedies or procedure as to deprive a person “of a right secured to him by the constitution, as for example, by an act which impairs the obligation of a contract, or impairs vested property rights.” J. J. Langever v. H. H. Miller, 124 Tex. 80, 76 S.W.2d 1025, 1029, 96 A.L.R. 836. Also, see Currie v. First Nat. Bank in Big Spring, Tex.Civ.App., 96 S.W.2d 731, writ refused; Cattle Raisers Loan Co. v. Doan, Tex.Civ.App., 86 S.W.2d 252, 255, writ refused; 9 Tex.Jur. 537, 541.

Under the trial court’s interpretation of the statute, the rights of the plaintiff under his contract and the law as it existed at the time of the execution of the contract and at the time his cause of action arose has been summarily and permanently taken from him. There was no legal notice whereby he became advised of the necessity of sooner instituting suit on the contract. Art. 6573a became a law September 19, 1939. Under such construction plaintiff was immediately deprived of all the benefits, value of and rights under the contract which accrued at the consummation of the contract on August 9. It cannot be said that the statute merely operated to shorten the period of time within which plaintiff might file his suit. The question does not arise as to whether or not the time within which his suit might be instituted was unreasonably shortened. This act would not have the effect of giving plaintiff notice that if he did not file his suit before September 19, 1939, it could not thereafter be filed, or would be subject to a plea of limitation. It is not a limitation statute. If it is to be construed as retroactive, it had the effect of permanently prohibiting the judicial enforcement of a contract valid when made and when consummated forty days prior to the effective date of the statute. The passage of the act on June 21, 1939, did not give the plaintiff legal notice of anything. It did not operate as notice or otherwise until it became a law, ninety days after adjournment of the Legislature, that is on September 19, 1939. Popham v. Patterson, 121 Tex. 615, 624, 51 S.W.2d 680.

The last sentence of section 22 taken alone indicates an intention that the statute operates retrospectively. But “in determining the legislative intent, the court should not look alone to any one phrase, clause, or sentence of the act, but to the entire act * * *.” Popham v. Patterson, 121 Tex. 615, 623, 51 S.W.2d 680, 683.

«⅜ * * it is a sound rule of construction that a statute should have a prospective operation only, ynless its terms show clearly a legislative intention that it should operate retrospectively.” Cooley, Constitutional Limitation, 7th Ed., 529. It is a rule of common acceptation that statutes are not to be construed as operating retrospectively -unless the entire statute evinces the intention of the Legislature that it should do so. This is true even in the absence of a constitutional prohibition and should certainly be the rule where such construction would result in its invalidity. Piedmont & Arlington Life Ins. Co. v. Ray, 50 Tex. 511, 519; Rockwall County v. Kaufman County, 69 Tex. 172, 6 S.W. 431; Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249; Bowden v. Crawford, 103 Tex. 181, 183, 125 S.W. 5; Freeman v. W. B. Walker & Sons, Tex.Com.App., 212 S.W. 637, 638; City of Fort Worth v. Morrow, Tex.Civ.App., 284 S.W. 275, 277; Galveston, H. & S. A. Ry. Co. v. Wurzbach, Tex.Civ.App., 189 S.W. 1006; Johnson v. Smith, 112 Tex. 222, 227, 246 S.W. 1013; Hester & Roberts v. Donna Irrigation Dist., Tex.Civ.App., 239 S.W. 992, 993; Drought v. Story, Tex.Civ.App., 143 S.W. 361, 363, writ refused; Atwood v. Kelley, Tex.Civ.App., 127 S.W.2d 555, 557; Wilson v. Work, 122 Tex. 545, 62 S.W.2d 490; Harrigan v. Blagg, 124 Tex. 117, 77 S.W.2d 524; 9 Tex.Jur. 540; 39 Tex.Jur. 52.

Looking to the entire act, we think the Legislature did not intend to deprive real estate dealers of the benefits of valid parol contracts made and consummated prior to the date said act became a law and at a time when a real estate dealer’s license could not have been obtained, because such a license was unknown to the law.

We mean to hold (1) that Art. 6573a was not intended to operate retrospectively' so as to have the effect attributed to it by the trial court. But (2) if such construction is required, that sections 13 and 22 are void, insofar as they affect the obligations of contracts made prior to September 19, 1939, because violative of Art. 1, sec. 16, of the Constitution of Texas. We, therefore, hold that the trial court erred in sustaining the general demurrer and exception's and dismissing the case.

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


author: ALEXANDER, Justice.

text:
    LANG et al. v. HARWOOD.
    No. 2256.
    Court of Civil Appeals of Texas. Waco.
    Nov. 28, 1940.
    Rehearing Denied Dec. 19, 1940.

      W. C. Taylor, John F. Sheehy, and Carlton J. Smith, all of Waco, for appellants.
    Ñaman, Howell & Boswell, of Waco, for appellee.
   ALEXANDER, Justice.

This suit' was brought by Ophelia Har-wood against Dee Lang and Chas. A. Lenz for damages for the alleged conversion of certain monkeys, a lion, and other show animals, and a tractor and trailer and other equipment. A trial before a jury resulted in a joint and several judgment against both of the defendants for $2,345 actual damages, and against Chas. A. Lenz for the sum of $1,625 exemplary damages. Both defendants have appealed.

The material facts are substantially as follows: While the property in question was at Danville in Vermillion County, Illinois, Mrsl Harwood, who lived in Chicago, Cook County, Illinois, mortgaged it to Lenz to secure the payment of a note in the sum of $400, due November 1, 1938. The mortgage contained a power of sale and authorized the mortgagee to take possession of the property in the event he felt himself insecure. Under the law in Illinois, a sale under the powers contained in a chattel mortgage can be had only in the county where the property was situated at the time the mortgage was given or in the county where the mortgagor resided. About the time the debt in question matured, Lenz went to Gideon in New Madrid County, Missouri, where the property was being used in a show, and, being unable to find Mrs. Harwood, took possession of the property without her consent, moved it to Cairo, Illinois, and sold it under the powers contained in the chattel mortgage. One Mc-Ferrin bought the property in at the sale and immediately sold' it to Lenz. Sometime thereafter, Lenz sold the property to Lang. The property was at Waco in Lang’s possession at the time this suit' was filed.

At the outset, the appellee presents many objections to the form and substance of appellants’ brief. Ordinarily, we do not write on questions of this kind, but in view of the frequency with which' these questions arise, we deem it proper to give consideration thereto in this case.

It has long been the policy of this court to apply the most liberal construction in favor of the sufficiency of the brief and to give effect thereto, if it is possible for us to ascertain either from the assignment, proposition or statement and argument the point intended to be presented thereby. Clifton v. W. R. Thompson & Sons Lbr. Co., Tex.Civ.App., 100 S.W.2d 392, par. 1; State Teachers’ Mutual Life Ins. Co. v. Mims, Tex.Civ.App., 74 S.W.2d 549, par. 1. We have pursued this liberal policy because, in our opinion, a holding that a brief is insufficient tends to frighten the lawyers, and, as a consequence, they are caused to greatly multiply the number of their assignments of error and propositions and unnecessarily lengthen their briefs and thus increase the work to be done by this court. The Supreme Court has likewise pursued a liberal policy in the construction of the rules with reference to briefs. Thraves v. Hooser, Tex.Com.App., 44 S.W.2d 916, par. 1; Cammack v. Rogers, 96 Tex. 457, 73 S.W. 795.

Appellants’ brief is entirely too long. It contains 106 pages, whereas it should not have exceeded 25 pages. The work of the Court of Civil Appeals is very heavy and the attorneys should undertake to simplify the work as much as possible. Long briefs greatly increase the work of the court and unnecessarily decrease its efficiency. Such long briefs have a tendency to confuse rather than clarify the points to be passed on by the courts.

The statement of the nature and result of the suit, as contained in appellants’ brief, covers 6 pages, whereas it should not have been any longer than the opening statement in this opinion. It sets out in detail the pleadings of both sides. This is wholly unnecessary and quite improper when the sufficiency of the pleadings is not challenged. ' A statement of the nature and result of the suit as embodied in the brief should not contain a full history of the case but should contain only a statement of the general nature of the suit — that is, whether it is a suit in trespass to try title, for personal injuries, or for debt with foreclosure of lien or the like; whether it was tried before the court or a jury; and who was successful in the lower court. If neces-. sary, this may be followed by a fuller statement of the general nature of the case, but this should be done only when it is necessary in order to enable the court to understand the general nature of the questions involved; and such fuller statement should never contain the details to be considered in connection with the propositions or points to be considered later. Texas Land Co. v. Williams, 48 Tex. 602, 613. All unnecessary references to names, dates, amounts, and other details tend to magnify their importance and thus detract from the really important facts.; Furthermore, it is of no value to give the details of a case before the points to be decided are first called to the attention of the court. The details should be reserved and stated after and in connection with the particular point for reversal to which they are applicable.

A Court of Civil Appeals is vested with discretion in considering assignments not briefed or presented in strict conformity to the rules, and it is not their policy to disregard assignments merely because of technical violations of the rules. Although an assignment does not merit consideration, the court may notice it if, under the peculiar circumstances, the rule should not be strictly enforced. Clifton v. W. R. Thompson & Sons Lbr. Co., Tex.Civ.App., 100 S.W.2d 392, par. 3, and cases there cited. The brief before .us contains 59 assignments of error, whereas 10 assignments would have been ample to have raised all of the material points in the case. All that is required of an assignment of error is that it point out the particular ruling of the court complained of. For example, the following assignments have been held sufficient: “The court erred in overruling defendant's application for a continuance.” Missouri, K. & T. Ry. Co. v. Howell, 87 Tex. 429, 30 S.W. 102. “The court erred in overruling the defendant’s general demurrer to plaintiffs’ original petition.” Clarendon Land Investment Co. v. McClelland, 86 Tex. 179, 23 S.W. 576, 1100, 1103, 22 L.R.A. 105. “The court erred in failing and refusing to submit to the jury special issue No. 4, requested by defendants * ‘ * Green v. Hall, Tex.Com.App., 228 S.W. 183, 184. “The court erred in overruling the defendant’s plea to the jurisdiction.” Davis v. Burnett, Tex.Sup., 7 S.W. 678. For other illustrations of the sufficiency of assignments of error, see Green v. Hall, Tex.Com.App., 228 S.W. 183; Long v. Red River, T. & S. Ry. Co., Tex.Civ.App., 85 S.W. 1048; Wigglesworth v. Uvalde Live Stock Co., Tex.Civ.App., 126 S.W. 1180. The above illustrations will suffice to demonstrate the simplicity required in the preparation of an assignment of error. It is sufficient for the assignment to merely state the ruling that was made and that it was error. It is not only unnecessary, but improper, to include in the assignment the reason why the ruling is thought to be erroneous. Clarendon, etc., v. McClelland, 86 Tex. 179, 23 S.W. 576, 1100, 22 L.R.A. 105; Dist. Ct. Rule 101a.

The brief contains 35 propositions. Many of them are greatly involved and others are mere abstract propositions. The following will serve as examples of the abstract propositions contained in the brief: “Pleadings cannot be amended or supplemented after judgment is entered.” “Where one of two innocent parties must suffer, the one who made the loss possible must bear the loss.” Such abstract propositions are mere general statements of abstract rules of law applicable alike to all cases. They do not advise the court as to the questions to be decided nor the reasons for the reversal of the particular case under consideration. They are therefore improper. 3 Tex.Jur. 880; Wright v. Maddox, Tex.Civ.App., 286 S.W. 607; Clonts v. Johnson, 116 Tex. 489, 294 S.W. 844, pars. 1—3; Gulf, C. & S. F. Ry. Co. v. Tarver, Steele & Co., Tex.Civ.App., 295 S.W. 320. It should be noted that the court rule does not call for “propositions of law.” It calls for “propositions or points upon which the appeal is predicated.” Court of Civil Appeals Rule 30. The new. rules adopted by the Supreme Court, but not yet .effective, do not mention propositions at all but .call, for “a statement of the points upon which the appeal is predicated.” Texas Rules of Civil Procedure 418. All that is required is that the proposition set out the point to be decided or reason for reversing the case. In Shanks v. Carroll, 50 Tex. 17, it was said that in each proposition should be propounded or affirmed some matter or thing done or refused to be done in the court below, embraced in the appropriate assignment of error, for which the judgment should be reversed or sustained. See also Wright v. Maddox, Tex.Civ.App., 286 S.W. 607. The following are samples of suitable propositions for the presentation of the points to be decided: “This case should be reversed because counsel in his closing argument told the jury that the defendant was protected by insurance.” “Plaintiff’s petition was subject to the defendant’s general demurrer because it'failed to allege that plaintiff was the owner or 'holder of the note sued on.” “This case should be reversed on account of the refusal of the court to give to the jury the defendant’s requested issue No. 1, as to plaintiff’s alleged contributory negligence in approaching the scene of the accident at a high rate of speed, because such issue was raised by the pleadings and the evidence.” “The court should not have permitted the witness, Will Brown, to testify that George Smith told him that the car was traveling in excess of 40 miles per hour at the time of the accident, because such testimony was hearsay.” “The court should not have permitted the plaintiff to amend her pleadings by the filing of a plea •of non est factum after the verdict had been returned and the jury discharged.” A simple statement such as above illustrated will ordinarily be sufficient to point out the reason for the reversal of the case. However, even though the propositions are not drawn in accordance with the rules, we find it the better policy to consider and give effect to them if the point intended to be presented can be ascertained from either the proposition, the statement or argument in connection therewith. Each holding .by an appellate court that a proposition is insufficient tends to multiply the propositions presented in subsequent briefs and thereby increase the work to be done by the appellate court.

Appellants’ brief contains 22 pages •of testimony of a witness quoted in question and answer form from the statement -of facts for the sole purpose of showing that the witness was not qualified to give her opinion as to the value of the personal property involved in the suit. All that is required in this connection is that the brief contain a fair, condensed statement of the facts pertinent to the point under consideration with suitable reference to the page of the record where the facts may be-verified. Of course, where the construction to be placed on testimony depends on the peculiar wording of the answer given by the witness, the question and answer should be quoted verbatim, but it is seldom that more than one page of such testimony need be quoted.

We have thus deviated from our custom and written at length on the form and substance of this brief with the view of simplifying and improving the briefs to be filed in the'future. Notwithstanding the defectiveness of appellants’ brief, we believe that it is sufficient to enable the court to ascertain the points intended to be presented, and hence all of appelleé’s objections thereto are overruled.

Appellant Lenz presents several propositions in which it is contended that since he took possession of the property by virtue of the provisions of the chattel mortgage which authorized him to do so in the event he should feel 'himself insecure, appellee could not maintain a suit for conversion of the property in the absence of a prior demand for a return thereof. Such a rule would probably be applicable where the defendant still had possession of the property and could return same, but where, as in this case, defendant Lenz took possession of the property and placed the same beyond his power to return same, a prior demand is not a condition precedent to a suit for conversion. 42 Tex.Jur. 525, 528. Moreover, the defense in this case shows that the defendants would not have responded to a demand for a return of the property, and hence the absence of such demand does not require a reversal of the judgment. 42 Tex.Jur. 528; 1 Tex.Jur. 637; Neyland v. Brammer, Tex.Civ.App., 73 S.W.2d 884; Fisher v. Dow Bros., 72 Tex. 432, 10 S.W. 455.

As stated at the outset, the chattel mortgage contained a provision for sale of the property in satisfaction of the debt. Appellant Lenz undertook to justify his exercise of ownership over the property by showing that it had been sold in compliance with the terms of the mortgage. Under the law of Illinois, such a sale could be made only in the county where the property was situated at the time the mortgage was given, or in the county where the mortgagor resided. While said appellant proved a sale purportedly under the terms of the mortgage, he failed to prove that the sale took place either in Vermillion, county, where the property was situated at the time the mortgage was given, or in Cook county, where the mortgagor resided. The proof shows that the sale took place at Cairo, Illinois, but there is no proof that this was anywhere near either of the places .Just mentioned. Since plaintiff was admittedly the owner and in possession of the property immediately prior to the alleged conversion, the burden was on the defendant not only to establish the existence of the mortgage but to prove a valid sale thereunder. 65 C.J. 102, sec. 179; Gale v. Gale, 70 Vt. 540, 41 A. 969; Mosteller v. Holborn, 20 S.D. 545, 108 N.W. 13. The defendant Lenz cites the cases of Haynes v. Western Union Telegraph Co., Tex.Com.App., 231 S.W. 361 and Kent v. National Supply Co., Tex.Civ.App., 36 S.W.2d 811, and contends that under the rule there announced the presumption would be in favor of a valid sale under the chattel mortgage and that the burden was therefore upon the plaintiff to prove' that the alleged sale was not valid. It should be noted, however, that in each of the cases last cited the suit was not one between the mortgagor and mortgagee in which the validity of the sale under the mortgage was a direct issue, but was one between a prior mortgagee who was an alleged purchaser under foreclosure sale and a third party who claimed title thereto in which the validity of the sale under the mortgage was only a collateral issue. We do not think the rule there announced is applicable here. In the case at bar, as above stated, it was conceded that the plaintiff was the owner of the property and in possession thereof immediately prior to the alleged conversion. If the defendant was to establish his right to the property, the burden was on him not only to prove the existence of the mortgage but a sale thereunder' — and this necessarily included the burden of proving a valid sale. In order to prove a valid sale, it was necessary for the defendant to prove that the sale had taken place either in the county where the mortgage was executed or in the county of the plaintiff’s residence. This he failed to do. In addition, there are a number of circumstances in evidence which furnish some proof that the sale was not made according to law, among them being the testimony of Dee Lang that several months after the alleged conversion, Lenz had him take the property back to Danville, Illinois, which was several hundred miles from Cairo, where the first sale took place, for another sale, because the first sale was supposed to be illegal. Consequently, we cannot say that the evidence was insufficient to support the verdict in this respect.

The court inquired in one issue as to the value of a truck or tractor and a trailer used in connection therewith. This is assigned as error. It appears from the evidence that the trailer was specially built for use in connection with the tractor in hauling the show animals and equipment. They were used as a unit. There was no contention that appellant Lenz had not exercised such ownership over both the tractor and the trailer as to amount to a conversion of both of them, and hence the defendants were not injured by including both items in the same issue.

There was ample evidence to show that the property, because of the peculiar nature thereof, did not have a market value. Therefore, the court did not err in using the intrinsic or actual value as a standard of compensation. 13 Tex.Jur. 418.

Mrs. Harwood, who was a married woman, brought the suit without the joinder of her husband. The testimony showed that her husband had deserted her and refused to join in the suit. The evidence showed without dispute that all of the property, except a dog and some other animals of small value, were her separate property, she having inherited the title thereto from her first husband. She testified that the dog and other animals were either found or given to them, but she did not make it clear whether this occurred during the first or second marriage. . The evidence is susceptible of the construction that it was during the first marriage, and if so, she inherited it from her first husband and it was her separate property. Under the circumstances, she had a right to maintain the suit in her own name without the joinder of her husband. Revised Civil Statutes, art. 1983.

The appellant Lenz does not contend that the award of exemplary damages as allowed by the jury is excessive.

We have thus reviewed all of the material assignments asserted by appellant Lenz and find no reversible error. The judgment as to said appellant must be affirmed.

Appellant Dee Lang alleged that he purchased the tractor avid trailer from Lenz and that prior thereto Mrs. Harwood had placed in Lenz’ hands a certificate of ownership thereof, duly signed by her, showing that she had conveyed said property to him. He further alleged that she had clothed Lenz with the indicia of ownership thereof; that he relied thereon and was so induced to purchase said property, and that by reason thereof he was an innocent purchaser and was not liable for conversion of the property. Mrs. Harwood did not file a sworn denial of the execution of the instrument as is required by Revised Statutes, art. 2010. Upon the trial, Mrs. Harwood testified that she had previously executed said assignment to another party and that Lenz had altered the same by erasing the other assignee’s name and inserting his name in lieu thereof. The jury found that Dee Lang relied on the assignment signed by Mrs. Harwood, but that Lenz had altered it as above set out without Mrs. Harwood’s consent. After the verdict had been received, the jury discharged, and judgment entered, the trial court permitted Mrs. Harwood to amend her pleadings by filing a plea of non est factum. This ruling is assigned as error.

Mrs. Harwood’s unverified denial of Dee Lang’s allegation was insufficient to authorize the introduction of evidence in support thereof or the submission of an issue thereon to the jury, even though no exception was directed to its insufficiency. Even though evidence was received, without objection, in support of her plea, it could not be considered. 33 Tex.Jur. § 174, p. 625; Thomason v. Berry, Tex.Com.App., 276 S.W. 185; International & G. N. Ry. Co. v. Tisdale, 74 Tex. 8, 11 S.W. 900, 4 L.R.A. 545. Consequently, as the record stood at the time of the trial, Lang’s allegation that Mrs. Harwood had executed the assignment and thus clothed Lenz with the indicia of ownership stood unchallenged and required no evidence in support thereof. If Dee Lang relied on the assignment as found by the jury and was deceived thereby, then he should not be held liable for the conversion, because Mrs. Harwood, being more at fault than he was, should bear the loss. Parma v. First National Bank of Cameron, Tex.Com.App., 63 S.W.2d 692. It is true that Mrs. Harwood undertook to amend her pleadings by filing a sworn plea of non est factum, but this could not be done after the verdict had been received and the jury discharged. When the trial was concluded, Dee Lang needed no evidence to prove his claim because his plea had not been denied under oath. After the verdict, it was too late for him to introduce evidence in support thereof. Very clearly the purported amendment came too late. Warren v. Ward Oil Corp., Tex.Civ.App., 87 S.W.2d 501; Hall v. Wilbarger County, Tex.Civ.App., 37 S.W.2d 1041; 49 C.J. 483; 43 Tex.Jur. 506. In view of the error above indicated, the judgment as to Dee Lang must be reversed.

The judgment of the trial court in favor of Mrs. Harwood as against the appellant Lenz is affirmed. The judgment of the trial court in favor of Mrs. Harwood against Lang is reversed and the cause is remanded for a new trial.


text:
    FEDERAL UNDERWRITERS EXCHANGE v. PRICE.
    No. 2056.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 8, 1940.
    Rehearing Denied Dec. 6, 1940.

      Touchstone, Wight, Gormley & Touchstone, of Dallas, for appellant.
    E. W. Napier, of Wichita Falls, for ap-pellee.
   GRISSOM, Justice.

This is a Workmen’s Compensation case. Walter Price 'instituted this suit against his employer’s insurance carrier, Federal Underwriters Exchange, to recover compensation for disability alleged to have resulted from injuries suffered on or about the ISth day of July,. 1937. Said injuries were alleged to have resulted by reason of oil being accidentally spilled or blown on plaintiff’s legs, causing an infection or poisoning to set up on his legs and body, rendering him. totally and permanently disabled.

The defendant answered by general demurrer, exceptions, general denial, and a special answer in which it denied' that plaintiff sustained any accidental personal injury while working about a well on his employer’s lease “after January 17, 1937.” Defendant further alleged “that whatever infection or skin eruption the plaintiff may have suffered * * * was not the result of any accidental injury suffered by plaintiff since January 17, 1937 at which time the plaintiff claims^ that he sustained burns to certain portions of his body which resulted in certain skin eruptions and for which he has been paid compensation by the defendant, and on or about July 18, 1937, the plaintiff executed and delivered a compromise settlement receipt in full compromise, settlement, accord- and satisfaction of all compensation and claims for compensation which he had or could have had against defendant by reason of injuries received by him on or about the 17th -day of January, 1937, and on occasions thereafter connected therewith, which said compromise agreement was approved by the Industrial Accident Board of Texas on July 25, 1937, whereby all claims for compensation that plaintiff then had or might thereafter have as an employee of George B. Ray from skin eruptions in the future were fully compromised, settled and satisfied, and the alleged infection or poisoning * * * which the plaintiff alleges set up on both of his legs and body for which he sues herein, are connected with the alleged injury of January 17, 1937, and the infection or poisoning resulting therefrom and is merely a recurrence thereof, for which the plaintiff has beeh heretofore fully satisfied by the defendant and plaintiff cannot be heard to recover again for such infection or poisoning for which a settlement and accord has been entered into and fully satisfied]”

In answer to the special issues submitted, the jury found:. (1) That plaintiff sustained an injury while operating a rod-pulling machine on or about the 15th day/ of July, 1937; (2) .that such injury was accidental; (3) that said injury was sustained while in the course of his employment with George B. Ray; (4) that plaintiff suffered disability as the result of such injury; (5) that said injury was a producing cause of plaintiff’s disability; (6) that plaintiff was not totally disabled; (8) that plaintiff suffered partial disability as a result of such injury; (9) that such partial disability existed from July 15, 1937, until the date of the trial; (10) that during said period, plaintiff was disabled 75 percent; (11) that plaintiff will suffer partial disability as a result of such injury; (12) for the remainder of his natural life; (13) that the extent of plain-j tiff’s future partial disability will be 51 per cent; (14) that plaintiff told his fore-* man about said injury within thirty days after its occurrence; (15) that there was not another employee of the same class as plaintiff who worked substantially the whole of the year immediately preceding the time of plaintiff’s injury in the same or similar employment in the same or a neighboring place; (16) that the average weekly wage of plaintiff for the year immediately preceding July 15, 1937, deemed just and fair to both parties was $28 per week; (17) that plaintiff’s disability was not brought about solely by his being burned on January 17, 1937; (18) that plaintiff’s incapacity was not caused solely by being sprayed with oil on an occasion or occasions other than on or about July 15, 1937; (19) that plaintiff’s present incapacity was not caused solely by being sprayed with oil while working for Hart & Taylor in April, 1938. The court rendered judgment for plaintiff on said verdict against defendant for the sum of $1,222 and $69.30 accrued interest. The defendant has appealed.

The defendant’s first proposition is that the court should have directed a verdict for it because plaintiff and defendant, on July 6, 1937, entered into a compromise settlement agreement which was approved by the Industrial Accident Board in accordance with which defendant paid plaintiff $85 and which said agreement released defendant “from the injuries and incapacity for which plaintiff sues.” It is undisputed that about January 17, 1937, plaintiff received burns while working for George B. Ray, his employer in the present suit. As a result of the burns plaintiff was off from work from January 17 until February 14, 1937. He signed a compensation settlement receipt acknowledging payment of compensation for this period of disability. He returned to work about February 14, worked for about two weeks and then a breaking out, similar to that alleged to have caused the incapacity for which he here sues, started from the burn on the lower part of his left leg and began spreading itntil it was solid over his leg. After two or three weeks of this irritation plaintiff stopped work and was under the care of doctors. He was absent from -work at this time for about five weeks; that is, from about May 15 until June 26, 1937. His claim for compensation was reopened and further compensation was claimed because of the breaking out. The plaintiff was paid additional compensation. In connection with this additional claim for compensation, plaintiff made an affidavit in which the manner in which he suffered the burns and the payment of compensation therefor were recited. The affidavit contained the following statement: “For some unknown reason infections, eruptions, irritations and diseases began to develop over my body and particularly on both legs and ankles and thighs after I had been back working for about ten days.” It also contained the further statement : “My condition now is satisfactory, but of course I realize that such eruptions or irritations may again arise and that after working on said lease I may again be obliged to quit work and continue with some medical treatment. I dó not know whether the conditions above described that have occurred since I returned to work on February 15, 1937 are in any manner related to the accident and injuries and burns that I received on or about’ January 17, 1937.”

Plaintiff’s testimony is, in substance, that he completely recovered from the burns and the skin irritation above referred to, and returned to work for the same employer in June, and about July 15, 1937, while removing wet tubing from an oil well he had oil blown on him and he became saturated with oil, especially from his waist down. That since said occurrence, on or about July 15, 1937, whenever he gets oil on him he suffers skin irritations and eruptions which cause incapacity. The substance of the medical testimony relative thereto is that plaintiff had developed an allergy to oil and that hereafter as long as he lives when he comes in contact with oil he will suffer these skin eruptions and that this will result regardless of what portion of his body comes in contact with oil, that is, regardless of whether or not the portions of his body that were burned on January 17, 1937, come in contact with oil. To sustain its first proposition, defendant cites Lumbermen’s Reciprocal Ass’n v. Day, Tex.Com.App., 17 S.W.2d 1043; and Texas Emp. Ins. Ass’n v. Lee, Tex.Civ.App., 21 S.W.2d 56. These cases hold that a compensation claimant is not entitled to-recover additional compensation on the sole ground of a showing of a change in condition after a compromise settlement. While we do not doubt the correctness of said decisions, they are not controlling here, unless the undisputed evidence shows that the injury of July 15, 1937 (that is, the time when plaintiff says he was saturated with oil by having it blown upon him while he was removing the tubing from an oil well and the severe skin eruptions that followed), did not constitute a separate injury, but is merely a part of the result of the injuries settled for in the compromise agreement of July 6, 1937, or merely a recurrence of the previously existing disease resulting from, the burns. We think it is not conclusively so shown. We think there is evidence of a separate and distinct injury about the 15th day of July, 1937. We further think there is evidence sustaining the conclusion that the plaintiff’s prior injury and resulting infection for which he had settled merely caused plaintiff to become, predisposed to the injury and illness following the spraying with oil on July 15,. that the prior burn and disease caused the allergy to oil, a predisposition and susv ceptibility to oil poisoning, which did result when plaintiff became saturated with oil about July 15. It is definitely .settled that the fact that a prior disease has-weakened the resistance of plaintiff and made him more susceptible to an injury-does not preclude his recovery under the Workmen’s Compensation Law for such in-juryj

TEe greatest difficulty we have encoun-ered is in determining whether or not the evidence is sufficient to authorize a finding of an accidental injury within the meaning of the Workmen’s Compensation Law. Vernon’s Ann.Civ.St. art. 8306 et seq. Defendant contends that an accidental injury is not shown, hut that the evidence discloses plaintiff is suffering from an occupational disease.

In Barron v. Texas Emp. Ins. Ass’n, Tex.Com.App., 36 S.W.2d 464, 465, Barron had, prior to the injury which was the basis of his suit, come in contact with poisonous gas emitted from producing oil wells on the lease on which he worked and, during the months preceding the injury in question, his eyes had several times become inflamed and on one occasion he had been “almost knocked out when gauging an oil tank from the fumes arising from this oil.” He had recovered from this attack. At the time of the injury made the basis of his claim for compensation he was engaged in lowering tubing into' an oil well. At the beginning of this job a small amount of gas was coming from the well, but later the gas was discharged in an unusually heavy volume. As a result of this “heavy and unusual gassing” Barron was injured and he recovered compensation for the disability resulting therefrom. It was there contended that the defendant was entitled to an instructed verdict because the evidence disclosed that Barron was suffering, from an occupational disease and not from an accidental injury. The court said: “A disease acquired in the usual and ordinary course of an employment, which from common experience is recognized to be incidental thereto, is an occupational disease * *

It was held that Barron’s incapacity was due to an accidental injury and not an occupational disease, among other reasons, because the amount of gas which came from the well at the time of his injury was unusually heavy and the consequences which resulted from inhaling gas could be traced definitely to this particular gassing, “and not to the slow and gradual process of inhaling the same during the time he had been in the employment of the Atlantic Production Company. While it is true he had prior to the occasion in question inhaled this gas to some extent, yet it was diluted with a mixture of air and not in a heavy volume; while on the occasion of his injury, heavy escapes of the gas caused him to inhale an unusual amount thereof, which is shown ■to have resulted in positive injury to the physical structure of his body, that is, to his nasal passages, throat, and lungs.”

The court further said:

“In this case it is shown plaintiff in error received an unusual and heavy gassing at a particular and definite time, the result of which was to inflict a structural injury to his physical body. The injury in the Graham Case [Aetna Life Insurance Co. v. Graham, Tex.Com.App., 284 S.W. 931] was one brought about by such a slow and gradual process that it could not be said her injury was received at any particular time. It was merely the cumulative effect of her continuous exposure to a danger necessarily incident to the performance of her duties. * * *
“A disease contracted as the direct resuit of unusual-conditions .connected with] the work and not as an ordinary or reasonably to be anticipated result of pursu-yi ing the same should be considered as an accidental injury. Thus pneumonia caused by the inhalation of gas generated by an explosion has been held to be an accident. [Citing authorities.] Blindness to an employee received while using wood alcohol in his work due to excessive use during a rush period is an accident within the meaning of the Workmen’s Compensation Law. [Citing authorities.]
“What is termed an accident must be something out of the ordinary, unexpected, and definitely located as to time and place. If the injury is incurred gradually in the course of the employment and because thereof, and there is no specific event or occurrence known as a starting point, it should be held to be an occupational disease and not an injury resulting from accident.”

In Fidelity & Casualty Co. of New York v. Neas et al., 5 Cir., 93 F.2d 137, 138, Neas, a power company lineman, was accustomed to climbing electric light poles. He had high blood-pressure. On the occasion in question he had ascended two poles in succession and on reaching the ground staggered to his truck and slumped down in the seat. He was taken to the hospital where he died in a few hours of massive cerebral hemorrhage. The medical witnesses were in agreement that the hemorrhage was the cause of death and that it was due to the giving away of weakened arterial walls in the brain. That increase in blood pressure would result from exertion and could precipitate such a hemorrhage. It was there urged that an accident was not shown and that the evidence disclosed Neas’ death was due to an occupational disease. The court said: “The arterial injury which happened to Neas was not a willful injury, and was unexpected and not in the usual course of events, and is traced to a definite time, place and cause.”

It held the evidence was sufficient to show an accidental injury within the Workmen’s Compensation Law, and not an occupational disease.

In Hartford Accident & Indemnity Co. v. Jones, 5 Cir., 80 F.2d 680, 681, appellant contended the injured employee’s disability was caused by an occupational disease and not an accidental injury.- Jones was engaged in the business of repairing automobiles and trucks for his employer. After working on a truck for about three days, which work required the use of red gasoline, a breaking out appeared on and between, his fingers. This was an unusual length of time to work on a job. Jones worked 8 hours a day and had his hands in the gasoline about half the time. The gasoline poisoned his hands resulting in his disability. Throughout his employment Jones was required to do work which caused him to place his hands in this gasoline, but it was not customary for him to have his hands in gasoline every day, nor for so long a time, as upon the particular occasion in question. Neither he nor the other employees had suffered from the use of such gasoline before. A doctor testified that Jones had acute dermatitis, developing into cancer and causing swelling, cracking and skinning of his hands. He testified he did not know whether Jones’s “condition is due to a continuous exposure or to a single exposure to gasoline. A continuous use of gasoline might produce it. One severe exposure might cause it.” The court held that the medical experts’ inability to say whether Jones’s condition resulted from one prolonged exposure or frequent repeated exposures did not prevent the jury from making a finding on that point and that the evidence was sufficient to sustain a finding of an accidental injury. The court said there was no real foundation in the evidence for a belief that Jones’s acüte skin condition was an occupational disease ; that such condition was not the usual and ordinary result of Jones’s occupation, and was not recognized in common experience to be incident to that occupation. The court further said: “The fact that Jones, at least since his injury, seems to be peculiarly sensitive to the effects of the red gasoline does not defeat him. An injury may often accrue to one man who is in a state of weakness that would not have resulted. the same way in a hardier man. If there be a real injury, the background of his peculiarities will not defeat compensation for it. * * * Although the present is not a strong case for the claimant, we think ther.e was evidence from which it might be inferred that the inflammation of Jones’ hands was-due to unusual exposure to this red gasoline at a sufficiently certain time and place- and in the course of his employment, and that it was not the manifestation of a disease usual in and recognized as incident to his occupation.”

We think the evidence is sufficient to-sustain the finding of accidental injury.

In this connection see also Employers’ Liability Assurance Corp., Ltd. v. Flint, Tex.Civ.App., 14 S.W.2d 1046, writ refused; Houston Packing Co. v. Mason, Tex.Civ.App., 286 S.W. 862.

In Traders & General Ins. Co. v. Weatherford, Tex.Civ.App., 124 S.W.2d 423, 426, we considered the question, whether or not an accident must be independent of and precedent to the injury. We held that “an injury * * * may be caused by an accident or in its initial stage may itself be an accident, and in the one-case as well as in the other, be compensable if resulting in disability.” In this connection, see also Maryland Cas. Co. v. Rogers, Tex.Civ.App., 86 S.W.2d 867, 870; International Travelers’ Ass’n v. Francis, 119 Tex. 1, 23 S.W.2d 282; Bryant v. Continental Cas. Co., 107 Tex. 582, 589, 182 S.W. 673, L.R.A.1916E, 945, Ann.Cas.1918A, 517.

Applying the principle announced in said decisions to the facts of the instant case, we think it is evident that plaintiff’s disability did not result from an occupational disease. We further think the evidence is sufficient to support a finding of an accidental injury. It is-true that there is evidence which, taken alone, would lead to the conclusion that one employed as Price was on July 15, 1937, would in the natural course and pursuit of his occupation expect to get oil on him. However, giving consideration, to the entire record, it is evident that although such employees must of necessity come in some degree in contact with oil and grease it was unusual for a person to be saturated with oil to the degree that plaintiff was on the occasion in question. Fidelity & Cas. Co. v. Neas, supra. We think it may be reasonably deduced from the evidence that the only necessary connection between the prior burn and skin eruption and the dermatitis with which plaintiff was suffering was that the prior trouble merely produced a sensitive skin making plaintiff more susceptible to the. oil poisoning which he received when he became saturated with oil about July 15.

Defendant contends the undisputed evidence shows that the subsequent injury (being saturated with oil on July 15) could not have occurred except for the prior injury (burns) and that under Art. 8306, § 12c,. where two injuries contribute to the same incapacity,, the employee can only recover the compensation to which the subsequent injury would have entitled him had there been no prior injury, and that, therefore, the court should have instructed a verdict for defendant. That which we have heretofore said, we think, is a sufficient answer to this proposition; that is, that the evidence was sufficient to authorize a finding that the only connection between the prior trouble and the oil saturation was to make the employee more susceptible to said injury. We are of the opinion that if the only effect of a prior injury is to make an employee more susceptible to a subsequent injury, said statute is not applicable. We think that Art. 8306, § 12c, is not shown to be applicable to the fact situation here disclosed. However, if said statute is applicable, then the duty to obtain submission of such issues was on defendant. Williamson v. Texas Ind. Ins. Co., 127 Tex. 71, 76, 90 S.W.2d 1088; Texas Emp. Ins. Ass’n v. Stephens, Tex.Civ.App., 22 S.W.2d 144, 146; Texas Ind. Ins. Co. v. Perdue, Tex.Civ.App., 64 S.W.2d 386, 388, writ refused; Petroleum Cas. Co. v. Bristow, Tex.Civ.App., 21 S.W.2d 9, 12; Nobles v. Texas Ind. Co., Tex.Com.App., 12 S.W.2d 199; Traders & Gen. Ins. Co. v. Watson, Tex.Civ.App., 131 S.W.2d 1103, 1107; Colorado & S. Ry. Co. v. Rowe, Tex.Com.App., 238 S.W. 908. It is evident the defendant has not placed itself in position to complain because of its failure to prepare the issues contemplated in Art. 8306, § 12c, and request their submission. Harris v. Thornton’s Dept. Store, Tex.Civ.App., 94 S.W.2d 849, 854; Harris v. Leslie, 128 Tex. 81, 96 S.W.2d 276; Gulf, C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183. Also see Traders & Gen. Ins. Co. v. Watson, Tex.Civ.App., 131 S.W.2d 1103.

This is true despite the fact that the issues must be so stated as to place the burden of proof thereof on the claimant. Hartford Acc., etc., Co. v. Shelton, Tex.Civ.App., 119 S.W.2d 118; New Amsterdam Cas. Co. v. Rutherford, Tex.Civ.App., 26 S.W.2d 377, 381; Galveston, etc. v. Washington, 94 Tex. 510, 63 S.W. 534, 537; Art. 8306, § 12c; Rosenthal Dry Goods Co. v. Hillebrandt, Tex.Com.App., 7 S.W.2d 521, 523; 22 C.J. § 15, p. 70.

Defendant requested the court to-submit the following special issue: “Do you find from a preponderance of the evidence, if any, that the breaking out on the plaintiff, if any, is not a re-occurrence of the breaking-out, if any, with which he was afflicted immediately prior to the month of July, 1937?” We think the real question was whether or not the plaintiff’s incapacity was the result of his previous injury, which was submitted in special issues 17 and 18. Further, defendant contends the court erred in failing to submit to the jury the question whether or not plaintiff’s injuries were caused solely by an occupational disease and in failing to define occupational disease. What we have heretofore said, we think, sufficiently answers this contention. However, we do not agree with defendant’s contention that “If it i's possible to say that his [Price’s] injuries did not arise from the previous burns, that then as a matter of law his injuries arose from an occupational disease.” Relative to whether or not it was an issuable fact as to whether plaintiff was suffering from an occupational disease, we think the evidence does not in any wise bring this case within the tests laid down in the authorities dealing with occupational diseases heretofore cited.

Special issue No. 10 asked the jury to fix the extent of plaintiff’s partial disability. The jury’s answer fixed the extent of plaintiff’s partial disability from June! 15, 1937, to date of trial at 75 percent.! In answer to issue 11, the jury found that' plaintiff .would suffer partial disability in the future and, in answer to 12, that such future partial disability would exist for the remainder of his life. Special issue 13 asked the jury to find the extent of plaintiff’s future partial disability. The jury answered “5 percent.”

Defendant objected to issues 10 and 13 for the reason they were immaterial and could not form the' basis of a judgment in that they could not serve as a basis for determining the proper rate of compensation where the disability resulted from a general, as distinguished from a specific, injury, and that the proper issue would be one inquiring the difference between the wages earned by the plaintiff “at the time of his injury and the wage earning capacity thereafter.” Plaintiff’s partial incapacity having resulted from a general and not a specific injury, his compensation rate is to be determined under Section 11, instead of Section 12, of Article 8306. In other words, plaintiff is entitled to 60 percent of the difference between the average weekly wages earned by him prior to his injury, and his wage earning capacity subsequent to the injury, during his period of partial incapacity within the statutory limitation of 300 weeks. Art. 8306, § 11. The jury found plaintiff’s average weekly wage prior to his injury was $28. It further found that from March 15, 1937, the date of plaintiff’s injury, to the date of the trial, May 27, 1939, plaintiff suffered 75 percent disability, and that thereafter he would suffer 5 percent incapacity. The finding of 75 percent incapacity was equivalent to a finding that, during said period,. plaintiff’s earning capacity was $7 per week. Thus $21 was the difference between plaintiff’s average weekly wages prior to the injury and his earning capacity from the date of injury to the date of trial. Sixty percent of said difference ($21), that is, $12.60, was therefore, his compensation rate during said period. There is no material difference between a finding that plaintiff suffered 75 per cent disability and a finding that, during said period, his earning capacity was $7 per week. The same reasoning applies to the finding of the percentage of future disability. The jury, in effect, was so advised by the definitions and instructions given. While it may be preferable to ask the jury to find in dollars and cents the difference between the average weekly wages prior to' the injury and the wage earning capacity subsequent to the injury, as suggested by defendant (or better still, to have a finding of plaintiff’s, average weekly wage prior to the injury and. a finding of his average weekly wage earning capacity during the existence of his partial incapacity), there is no reason to believe that a different compensation rate would have resulted. The manner in which said issues were submitted has been held not to be reversible error in Traders & General Ins. Co. v. Patterson, Tex.Civ.App., 123 S.W.2d 766, 768, writ dismissed, and in Siller v. United States Fidelity & Guaranty Co., Tex.Civ.App., 93 S.W.2d 529, 530, writ dismissed. We have been unable to find any case where such manner of submission alone was held to be reversible error. In this connection, see also General Acc. Fire & Life Assur. Corp. v. Bundren, Tex.Civ.App., 274 S.W. 671, affirmed, Tex.Com.App., 283 S.W. 491; Traders & Gen. Ins. Co. v. Snow, Tex.Civ.App., 114 S.W.2d 682; New Amsterdam Cas. Co. v. Crow, Tex.Civ.App., 16 S.W.2d 560.

All of defendant’s assignments of error, including those relating to the argument of counsel, have been considered and are overruled.

The judgment is affirmed.