author: JOHNSON, Chief Justice.

text:
    TRADERS & GENERAL INS. CO. v. MAXWELL.
    No. 5649.
    Court of Civil Appeals of Texas. Texarkana.
    July 25, 1940.
    Rehearing Denied Aug. 1, 1940.

      Lightfoot, Robertson, Gano & Johnston, of Fort Worth, and Caves, Waldrop & Shaw, of Henderson, for plaintiff in error.
    White & Yarborough, of Dallas, and H. H. Wellborn, of Henderson, for defendant in error.
   JOHNSON, Chief Justice.

This appeal by Traders & General Insurance Company is from a judgment awarding John C. V. Maxwell, an oil field worker, compensation for permanent total loss of the use of his right leg, sustained February 13, 1937, while working as an employee of Adams Brothers Drilling Company, Inc., of which Traders & General Insurance Companywas the compensation insurance carrier. John C. V. Maxwell will be referred to as appellee and Traders & General Insurance Company as appellant.

Special issue No. 4 submitted to the jury reads: “Do you find from a preponderance of the evidence that plaintiff sustained total incapacity of his leg as a natural result of the accidental injuries, if any, sustained by him on or about February 13, 1937? Answer Yes or No.” (The jury answered “Yes.”) Referable to the question the trial court instructed the jury as follows: “You are instructed that the phrase ‘Total incapacity of his leg’ as used in the Court’s charge means total loss of use of the leg; it does not imply an absolute disability to perform any kind of labor, but such incapacity of the leg that it disqualified a person from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment requiring the use of said leg, is ordinarily regarded as total incapacity of the leg.”

The defendant objected to the court’s definition of the phrase “total incapacity •of his leg” as used in the charge, which objections read as follows: “Said defendant objects and excepts to the court’s main charge particularly the definition of the term ‘total incapacity’ for the reason that such definition is improper in cases of the. kind established under the evidence here and submitted to the jury, in that the case here both under the evidence and the charge involves merely a question of specific injury and not one of general disability, and for the further reason that such definition does not take into consideration that part of the law which provides that such workman is to pursue and retain any employment of any kind, and as here' defined has the effect of advising the jury that they shall consider only that character of employment theretofore performed by him prior to the injury, and to that extent is upon the weight of the evidence, and in that connection the said defendant requests the court to prepare and submit to the jury in connection with his charge an amended and corrected definition of such term including therein those matters called here to the attention of the court.” And in addition thereto further objected to such definition as follows: “Said defendant objects and excepts to the court’s main charge and particularly and in addition to the definition of the term ‘total incapacity of his leg’ for the reason that same is not a proper definition in that the definition given involves a question of the extent of the, ability of the plaintiff to pursue and retain employment and to perform the usual tasks of a workman, when under all the evidence herein and under the charge of the court and special issues submitted the question is only on,e of a specific injury and therefore should be based only upon the extent of percentage of disability to that particular member.”

Special issue No. 7 submitted to the jury reads: “Do you find from a preponderance of the evidence that plaintiff sustained partial incapacity of his leg as a natural result of the accidental injuries, if any, received by him on or about February 13, 1937? Answer Yes or No.” (The jury answered “No.”). Referable to special issue No. 7 the court instructed the jury as follows: “You are instructed that by the term ‘Partial incapacity of his leg’ as-used in the court’s charge is meant the extent that the injury to his leg in fact destroyes or impairs the ability of the leg to be as efficient or competent for performing the usual tasks of a workman after the injury as it was before; any degree of incapacity in the leg less than total.”

The defendant objected to the court’s definition of the phrase “partial incapacity of his leg”, which objections read as follows: “Said defendant objects and excepts to the court’s main charge particularly the definition of the- term ‘partial incapacity’ for the reason that such definition is improper in cases of the kind established under the evidence here and submitted to the jury, in that the case here both under the evidence and the charge involves merely a question of specific injury and not one of general disability, and for the further reason that such definition does not take into consideration that part of the law which provides that such workman is to pursue and retain any employment of any kind, and as here defined has the effect of advising the jury that they shall -consider only that character of employment heretofore performed by him prior to the injury, and to that extent is upon the weight of the evidence, and in that connection the said defendant requests the court to prepare and submit to the jury in connection with his charge an amended and corrected definition of such term including therein those matters called here to the attention of the court.” And in addition thereto further" objected to such definition as follows: “Said defendant objects and excepts to the court’s main charge and particularly, and in addition to the definition of the term ‘partial incapacity of his leg,’ for the reason that same is not a proper definition in that the definition given involves a question of the extent of the ability \of the plaintiff to pursue and retain employment and to perform the usual tasks of a workman, when under all the evidence herein and under the charge of the court and .special issues submitted the question is only one of a specific injury and therefore should be based only upon the extent or percentage of disability to that particular member.”

Appellant’s first four propositions assert that'the trial court erred in overruling its above-quoted objections to the court’s definition of the phrase “total incapacity of his leg” and of the phrase “partial incapacity of his leg” as used in the court’s charge. The complaint now urged against said definitions is that they include or take into consideration the loss of the use of the leg for “purposes of work”; that (R.S. Article 8306, Sec. 12) in providing compensation for the loss of the use of a specific member the character of the use (for the loss of which compensation was intended) does not include and is not referable to its use for purposes of work. Expressed in the language of appellant, the contention is that “the com-, pensation provided for a specific injury has to do with and is controlled by the loss or percentage of the loss of such member as an integral part of the body, or the loss of physical or bodily function.” The phrase “loss of such member as an integral part of the body, or the loss of physical or bodily, function”, as used by appellant, is not explained further than that it is not intended to include loss of the use of the member for purposes of work. It is claimed that the theory advanced by appellant is supported by the decision in Fidelity Union Casualty Co. v. Munday, Tex.Com.App., 44 S.W.2d 926, 928, in which case it is held that to recover compensation for the loss or the loss of the use of a specific member, it is not necessary to show, in pleading or proof, that incapacity for work in any degree has in fact resulted therefrom. The decision in the Munday case is based upon Section 12 of Article 8306, which provides compensation for the loss of certain enumerated members of the body, and further provides: “In the foregoing enumerated cases of permanent, partial incapacity, it shall be considered that the permanent loss of the use of a member shall be equivalent to and draw the same compensation as the loss of that member.” (Italics ours.) The statute thus denominates the loss of such member, or the loss of its use, as partial incapacity. So, in providing compensation therefor the law conclusively presumes that in the loss or the loss of the use of such a member the workman has sustained partial incapacity, and for that reason it is held in cases of such specific injuries that it is not necessary to show that incapacity has in fact resulted therefrom. That the character of use of such a member, for the loss of which use the law intends to provide compensation, includes its use for purposes of work is further made clear by Judge Harvey in decision of the third point decided in the Munday case, wherein it is held that for temporary total loss of the use of the hand, the law contemplates payment of the same compensation, during existence of such incapacity, not exceeding ISO wheks, as in case of permanent loss of the hand. And that such is the proper construction to be placed upon said Section 12 of Article' 8306, even though as a result of such construction a temporary total loss of the use of a hand for as much as ISO weeks would call for the same total amount of compensation as if the loss were permanent, because “the degree of incapacity. for work, which results exclusively from a temporary, total loss of the use of a hand, is, for the time being, the same as if such loss were permanent. In either case, the resulting incapacity for work is only partial.” We further note from the statement of the Munday case made by the Court of Civil Appeals, 26 S.W.2d 676, 677, the trial court in submitting the issue, No. 3, inquiring as to whether Munday had sustained partial loss of the use of his right hand, instructed the jury as follows: “You are instructed that the term ‘partial loss of the use of his right hand/ as used in special issue No. 3, is meant the extent that the injury to his hand in fact destroys or impairs the ability of the hand to be as efficient or competent for zvork after the injury as it was before.” (Italics ours.) Upon findings of the jury guided by the above-quoted definition, the trial court entered judgment awarding Munday compensation for temporary total loss of the use of his right hand for fifteen weeks and thereafter for permanent partial loss of the use of his right hand for a period of 12S weeks. The Court of Civil Appeals reformed the judgment of the trial court. The Commission of Appeals reversed the judgment of the Court of Civil Appeals and affirmed the judgment of the trial court. Thus it appears that the Commission of Appeals has, contrary to the contention of appellant, in language used in its opinion and by its decision affirming the judgment of the trial court in the Munday case, impliedly affirmed that the character of use of a specific member for the loss of which use compensation is awarded includes the use of such member for purposes of work. Definitions similar to that used by the trial court in the Munday case and by the trial court in the present case have been held substantially correct. United States Fidelity & Guaranty Co. v. Brandon, Tex.Civ.App., 31 S.W.2d 846; Traders & General Ins. Co. v. Porter, Tex.Civ.App., 124 S.W.2d 900, writ refused; Texas Employers Ins. Ass’n v. Olesky, Tex.Civ.App., 288 S.W. 244; Texas Employers Ins. Ass’n v. Craig, Tex.Civ.App., 284 S.W. 336.

Appellant’s propositions, 5, 6, 7, 8 and 9 charge that the findings of the jury that appellee sustained permanent total loss of the use of his leg are without support in the evidence. The contention is not sustained. Evidence supporting the findings of the jury is found in the testimony of appellee and that of his witness Dr. Irvin Pope, Jr. Appellee, Maxwell, testified in substance that he had been engaged in the oil field work practically all his life; that he only reached the Sth grade in school and was not qualified in education or training to do any kind of work other than manual labor; that on February 13, 1937, he was working for Adams Brothers Drilling Company, Inc., as a derrick .uiaii, which was “rough-neck” work on the drilling rig; that while assisting in unstopping a gas line, between the main line and the boiler, an explosion occurred in the joint he was holding, throwing the pipe against him, knocking him backwards, breaking his right leg and bursting his kneecap, rendering him unconscious; that after he regained consciousness he was carried to Dr. Tubbs’ office at Arp; and later removed to Dr. Shirley’s office at Tyler ; and from there to Dr. Driver’s office at Dallas; that his leg was put in a cast; that he stayed in Baylor Hospital about four weeks, confined to his bed; then was carried to his home, where he remained in bed about three weeks and was then able to get up and down about one week, was taken to Carroll-Driver Hospital for further treatment, and the cast was removed; that he went back to Dallas for treatment three or four times; that a steel brace was put on his leg; that about the last of July or first of August, 1937, he went back to work for Adams Brothers Drilling Company; that Mr. Adams is his brother-in-law and that Mr. Adams gave him a job of firing a boiler; which task he performs while sitting in a chair fixed for him for that purpose,' by turning on and off the fuel oil that heats the boiler; that the work causes him to suffer pain in his leg from his knee to his hip and back; that to stand or put weight on his leg causes pain and causes his knee to swell; that he bathes it in liniment and wraps it in hot towels ; that he can not bend his right leg like his left one; that in walking over ground that has rocks, timber or something like that, he has to pick his way because his leg is not strong enough to hold him up; that his knee is wobbly and has to set his foot down flat; that splinters of bone have been working out of his knee ever since the accident; that he has tried to get oil field work other than firing the boiler but could not pass the required physical examination ; that he could have gotten a job from H. L. Hunt but the doctor would not “pass him.”

Dr. Irvin Pope, Jr., testified in substance that he first examined appellee, Maxwell, in April, 1938; that he had also examined him just before the trial in October, 1938; that he had supervised the taking of X-ray pictures of appellee’s left knee and of his injured right knee, which pictures were exhibited on trial and as to which Dr. Pope testified: “You will notice the difference in appearance of this and this side, this is the patella, this (referring to the injured knee) has been badly mashed and shattered and parts of the bone have been absorbed; it has a moth-eaten appearance, this has been destroyed, you will notice the patella, the separation, the clear space between this large bone in the good knee and how closely it fits down, in addition to that there is a little fracture line in the large bone of the lower leg, the fracture extends from here up to and through the knee joint.” He further testified in substance that the fracture is about 3½ inches; that it is not back in good position, the fact that the fracture extends into the joint cavity proper, together with the injury to the patella, the synovial fluid having been lost, explains why the kneecap has been pushed down close to the bone and is resting on the bone; by moving it with your hand you can feel the bone grating; the synovial fluid which lubricates the joint has been lost; the synovial sac injured to such extent that it can not form more fluid; that the injury to the bone extends above and below the knee joint; that the injury has healed to all the extent that it will heal; that in April, 1938 witness also made a general examination of Maxwell and found that, except as to his right leg, the functions of his body were normal; that there is a limitation of motion in his knee joint; that he can not bend it as far back, or straighten it out, without pain, and that when you manipulate it with the hand you can feel the bones working together; it is witness’ opinion that it will hurt and pain Maxwell very much to exert himself or place weight upon the leg and might get an inflamed condition that would cause a swollen joint, and would have the effect of further weakening the knee; that as to use of the leg for purposes of work, witness is of the opinion that the use of the leg is totally destroyed, and that there is no chance for it to improve.

The fact that the claimant may perform work not requiring use of his leg, such as firing a boiler in the manner here testified to, and that he can walk without use of cane, crutch or brace, when to do so causes him pain, swelling, inflammation, and further weakening of the knee, of which condition it is testified there is no chance of improvement, does not, as contended, show as a matter of law that he has not suffered permanent total loss of the use of the leg within the meaning of Article 8306, Sec. 12, R.S. Ætna Life Ins. Co. v. Bulgier, Tex.Civ.App., 19 S.W.2d 821; Dohman v. Texas Emp. Ins. Ass’n, Tex.Civ.App., 285 S.W. 848; Fidelity Union Casualty Co. v. Munday, Tex.Civ.App., 26 S.W.2d 676; Texas Emp. Ins. Ass’n v. Moreno, Tex.Com.App., 277 S.W. 84; Texas Emp. Ins. Ass’n v. Craig, Tex.Civ.App., 284 S.W. 336; Texas Indemnity Ins. Co. v. Carson, Tex.Civ.App., 21 S.W.2d 691.

Under its propositions 10, 11 and 12, appellant complains of the action of the trial court in overruling its' objections to special issue No. 7 (we have heretofore quoted special issue No. 7). The claimant pleaded that he had sustained total incapacity of his leg, and, as an alternative plea, that he had sustained a partial incapacity of his leg. There was testimony supporting each of said pleas. The trial court submitted special issue No. 4 (quoted above), inquiring whether the jury found from a preponderance of the evidence that claimant had sustained total incapacity of his leg; and also (unconditionally) submitted special issue No. 7, inquiring whether the jury found from a preponderance of the evidence that the claimant had sustained partial incapacity of his leg. The jury answered special issue No. 4 in the affirmative, and No. 7 in the negative. Appellant’s objections to special issue No. 7 filed in the trial court read as follows: “Said defendant objects and excepts to the court’s main charge and particularly Special Issue No. 7, for each and all of the reasons heretofore assigned to the submission of Special Issue No. 1, and same are here now adopted and made a part hereof as though fully written herein, and for the further and additional reason that said issue as framed is multifarious and duplicitous in that it involves two questions in one, in that it involves a question of incapacity, and also a question of partial incapacity.” The objections to special issue No. 1 referred to and made a part of the objections to special issue No. 7 read as follows: “Said defendant objects and excepts to the court’s main charge, particularly Special Issue No. 1, (Do you find from a preponderance of the evidence that plaintiff, John C. V. Maxwell, sustained accidental personal injuries on or about February 13, A. D. 1937? Answer ‘Yes’ or ‘No’. Answer: ‘Yes’) for the reason that there is no evidence of any kind or character, and particularly no evidence of sufficient probative value, upon which to base the submission of said issue ; and for the further reason there are not sufficient pleadings upon which to base the submission of such issue, and not sufficient evidence upon which if an answer was made thereto to base the- entry of a judgment thereon; and for the further reason that said issue as framed is upon the weight of the evidence in that and for the additional reason that as framed it has the effect of advising the jury that certain matters recited therein are in the opinion of the court tru-e, and for the further reason that said issue as framed and based upon a finding from the -jury from a preponderance of the evidence together with the instructions to the jury on how to answer such issue and particularly in this case as to answer- same 'yes’ or ‘no’ is misleading and confusing to the minds of the jury and has the effect of placing the burden of proof upon 'the defendant to establish the negative of said issue by a preponderance of the evidence, and has the further effect of placing the burden of proof upon the defendant to establish its contention with reference thereto by a preponderance of the evidence, and for the further reason that said issue as framed clearly places the burden of proof upon the defendant.”

Appellant now complains of special issue No. 7, in its 10th proposition, because “said special issue erroneously placed the burden of proof upon the defendant insurance company to prove that the claimant, Maxwell, had received a partial incapacity of his leg as contradistin-guished from claimant’s contention to the effect that he had suffered permanent total disability to such member because the burden of proof on said issue No. 7 was upon the plaintiff and not upon the defendant”; and in its 11th proposition appellant complains of special issue No. 7 because “such issue placed the burden of proof upon the insurance company to establish that claimant had sustained a partial incapacity of his leg, whereas the burden of proof upon such issue under the pleadings and evidence, was upon the claimant and not upon the defendant insurance company”; and in its 12th proposition appellant complains of special issue No. 7 because, “the form of such issue placed the burden of proof on it to establish partial incapacity to said member contrary to the express terms of the Workman’s Compensation Act.” Expressed in other words, the objection now raised (though not so expressed or requested in the trial court) against special issue No. 7 is because it was not submitted in the negative, so as to read: “Do you find from a preponderance of the evidence that the plaintiff has not sustained a partial incapacity of his leg as - a natural result of the accidental injury, if any, received by him on or about February 13, 1937?” We overrule the proposition for two reasons: (1) Because the objections filed in the lower court did not point out to the trial judge the objection now raised. San Antonio Public Service Co. v. Murray, 127 Tex. 77, 90 S.W.2d 830; Isbel v. Lennox, 116 Tex. 522, 295 S.W. 920; Perkins v. Nevill, Tex.Com.App., 58 S.W.2d 50; Gulf, T. & W. Ry. v. Dickey, 108 Tex. 126, 187 S.W. 184; Walker v. Haley, 110 Tex. 50, 214 S.W. 295; Ford Motor Co. v. Maddin, 124 Tex. 131, 76 S.W.2d 474; Chisos Mining Co. v. Llanez, Tex.Civ.App., 298 S.W. 642; Gulf, C. & S. F. Ry. v. Hines, Tex.Civ.App., 4 S.W.2d 641; Norwich Union Indemnity Co. v. Wilson, Tex.Civ.App., 17 S.W.2d 68; Chase Bag Co. v. Longoria, Tex.Civ.App., 45 S.W.2d 242; Ft. Worth & D. C. Ry. v. Rowe, Tex.Civ.App., 69 S.W.2d 169; McWilliams v. Hailey, Tex.Civ.App., 95 S.W.2d 985. (2) Because the objection now raised against special issue No. 7 has been expressly overruled in Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314.

Propositions 13, 14 and 15 assert that reversible error was committed by counsel for appellee by reading to the' jury paragraph 4 of appellant’s answer and thereupon stating to the jury that said answer had been sworn to by counsel for appellant, when in fact the affidavit to the answer referred only to paragraph 3 thereof; and. that such action of the attorney for appellee was reversible error notwithstanding the fact that the trial court at the time, and in accordance with request of counsel for appellant, withdrew the statement from the jury and instructed them not to consider same. Paragraph 4 of appellant’s answer in substance alleged that appellant had theretofore made payments to appellee totaling $400 under misrepresentation of fact on the part of appellee as to his injury, and for which appellant was entitled to a credit and judgment over against appellee. In the course of his argument to the jury counsel for appellee stated that he wanted to read a portion of defendant’s answer, no objection was offered, and he proceeded to read paragraph 4, whereupon attorney for defendant stated that he objected to a reading of a portion of the paragraph unless all of it was read, and the attorney continued reading the paragraph and concluded same with the statement: “That is sworn to, before me, the undersigned authority, on this day personally appeared John T. Gano.” Then Mr. Gano, attorney for appellant, stated: “Object to the misstatement of counsel that (the affidavit) applies to paragraph 3. He hasn’t read all of the paragraph (No. 4).” Then Mr. Yar-borough, attorney for appellee, stated to Mr. Gano: “You take it and read it, what I did not.” Mr. Gano: “I will be glad to.” And then Mr. Gano read all of paragraph 4 to the jury as well as the affidavit attached to the answer, which affidavit states: “That the matters set forth in paragraph 3 are, to the best of his knowledge, information and belief, true.” Whereupon further remarks, addressed to each other, passed between the attorneys, wherein Mr. Gano was requested to read paragraph 3 which he correctly refused to do, because it contained denial of jurisdictional facts. (The matters set forth in paragraph 3 were not read or quoted to the jury by either party.) Mr. Gano then stated: “I ask the court to instruct the jury not to consider the argument of counsel that I swore to paragraph 4. I did not.” Whereupon the court did so instruct the jury. We find nothing alleged in paragraph 4 that an affidavit to which would have been prejudicial to defendant. Though incorrect and claimed to have been inadvertently made, the statement of the attorney, to the effect that paragraph 4 had been sworn to by attorney for defendant, could not reasonably be calculated to have had any prejudicial effect upon the mind of the jury. Certainly beyond any question of a doubt, the statement was not of such inflammatory nature but that its effect, if any, against defendant was withdrawn by the reading of the affidavit which itself plainly shows that it did not refer to paragraph 4, and by the action of the court in so instructing the jury. Davis v. Hill, Tex.Com.App., 298 S.W. 526; Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054.

Appellant’s 16th and 17th propositions complain of the action of the trial court in permitting appellee to testify on direct examination that his kneecap was broken into “31” pieces. It appears from the record that on cross examination ap-pellee was further questioned about the same matter by attorney for appellant as follows.

“Q. The bone itself was not protruding? A. Yes, sir, the flesh was knocked back, I could see part of the kneecap that was left.
“Q. You testified on direct examination the kneecap was broken into 31 pieces, you don’t know that yourself, the doctor told you that? A. Yes, sir.
“Q. That was based on what somebody told you? A. Yes, sir.
“Mr. Gano: We move to strike that part of the testimony.
“The Court: Sustained, and instruct the jury not to consider that part of this witness’ testimony as to the number of bones.”

We think that all doubt as to error in permitting appellee to testify that his kneecap was broken into “31” pieces was unquestionably withdrawn by the action of the trial court in sustaining appellant’s motion to strike the testimony, upon its being developed that same was hearsay, and the charge of the court instructing the jury not to consider same. Davis v. Hill, supra; Ramirez v. Acker, supra.

Appellant’s 18th and 19th propositions complain of the action of the trial court in overruling its objections to the court’s instructions to the jury following special issue No. 5 reading as follows: “Do you find from a preponderance of the evidence that the total incapacity of his leg, jf any, sustained by plaintiff on or about February 13, 1937, is permanent? Answer ‘yes’ or ‘no’.” Answer: “Yes.” It is contended that the instructions of the court directing the jury to answer the question “Yes” or “No” was “misleading and confusing to the jury and in effect advised the jury to answer said question ‘Yes’ or ‘No’ without regard to the previous instruction of the court to answer from a preponderance of the evidence.” The contention is overruled. Traders & General Ins. Co. v. Jenkins, Tex.Com.App., 141 S.W.2d 312 (not yet reported [in State report]); Stevenson v. Wilson, Tex.Civ.App., 130 S.W.2d 317; Federal Underwriters Exchange v. Bullard, Tex.Civ.App., 128 S.W.2d 126; Willis v. Smith, Tex.Civ.App., 120 S.W.2d 899; Federal Surety Co. v. Smith, Tex.Com.App., 41 S.W.2d 210; Hickman v. Sullivan, Tex.Civ.App., 128 S.W.2d 457; Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: ALEXANDER, Justice.

license: Public Domain

text:
    GIBSON et al. v. AMERICAN UNITED LIFE INS. CO.
    No. 2329.
    Court of Civil Appeals of Texas. Waco.
    July 18, 1940.
    L. W. Shepperd and C. Willard Brown, both of Groesbeck, for appellants.
    Witt, Terrell, Lincoln, Jones 8t Riley, of Waco, for appellee.
   ALEXANDER, Justice.

The American United Life Insurance Company filed a plea of interpleader in the district court of Limestone county, in which it alleged that it had issued a life insurance policy on the life of one D. H. Gibson in the sum of $1,000, payable to the insured’s wife; that the beneficiary named in the policy died prior to the death of the insured; and that plaintiff was ready and willing to pay the amount of the policy to the rightful owner thereof, ■ but that there were several rival claimants to said fund and plaintiff could not safely pay the same to any of them. The plaintiff joined all of said rival claimants as defendants, paid what it conceived to be the amount due under the policy into the ?eg-istry of the court, and prayed for an injunction restraining the defendants from maintaining any other suit against the insurance company to recover the amount due under the policy. The court granted a temporary injunction as prayed. Some of the claimants have appealed.

The appellants do not challenge the right of the insurance company to maintain the suit, nor do they question the right of the court to grant a temporary injunction restraining the bringing of suits in other courts to recover the funds due under the policy, but they do claim that the injunction is so broad as to deny them their rights to appear and file an answer in this suit, setting up their claims to the funds due under the policy. The material part of the injunction provides that the defendants “are hereby enjoined and restrained from instituting or prosecuting any suit or other proceedings against the plaintiff in this or any other court on account of the money herein involved, or on account of the contract of insurance aforesaid, until the further order of this court. * * * and that the defendants and each of them be notified and required to file herein their respective answers or other defenses on or before the 4th day of November, 1940. * * *”

We have very carefully considered the terms of the injunction and have reached the conclusion that there is substantial doubt as to its meaning. It is very probable that the court merely intended to enjoin the defendants from harassing the plaintiff by the bringing of other suits and intended to preserve to them the full right to appear and set up in this suit their claims to the funds due under the policy in question. However, the injunction issued by the clerk, when literally construed, actually enjoins the defendants from “prosecuting any suit or other proceeding against the plaintiff in this or any other court on account of the money herein involved. * * *” If this order should he literally construed as written, it would prohibit the defendants from asserting in this suit their claims to the funds due under the policy. This, of course, would not be authorized under the facts of this case, for certainly the defendants ought to have a right to present in this suit their claim to such funds. We are of the opinion that there is sufficient doubt as to the meaning of the terms of the injunction as to justify the action of the defendants in seeking a review of the judgment by appeal rather than running the risk of violating its terms and thereby- subjecting themselves to contempt proceedings by appearing in the suit and laying claim to the funds due under the policy. The judgment of the lower court will be reformed so. as to merely enjoin the defendants from bringing any other suit to recover the funds due under said policy, but allowing the defendants the full right to appear in this suit in the lower court and assert their claims to the funds which they may claim to be due them under the terms of the policy in question.

As so reformed, the judgment of the trial court will be affirmed. .■


author: SMITH, Chief Justice.

text:
    KEYS v. ALAMO CITY BASEBALL CO.
    No. 10901.
    Court of Civil Appeals of Texas. San Antonio.
    July 10, 1940.
    Sam G. Newton and Van H. Archer, both of San Antonio, for appellant.
    House & Irvin, of San Antonio, for ap-pellee.
   SMITH, Chief Justice.

Appellee, Alamo City Baseball Company, has filed its motion, first, to dismiss the appeal because the appeal bond was not timely filed, second, to strike statement of facts .because it includes an ex parte statement of the official court reporter, and, third, in the alternative, to strike the ex parte statement from the filed statement of facts.

The appeal bond was timely filed below, that is, within thirty days after motion for new trial was overruled, but it - is defective in form and substance in that it does not disclose the date of, or efficiently describe, the judgment from which appeal is sought to be prosecuted. These defects, however, are such as may be cured by substituting a proper new bond, which will be allowed. Art. 1840, R.S.; 3 Tex.Jur. p. 344, §§ 241, 242.

The court reporter has attached to the statement of facts an ex parte statement, under date of May 23, 1940, which, not having been agreed to by the parties or approved by the trial judge, cannot be considered for any purpose on this appeal, and will therefore be stricken as prayed for by appellee. 3 Tex.Jur. p. 627, § 440. But this does not warrant striking the entire statement of facts.

Accordingly, appellee’s motion to dismiss the appeal will be overruled on condition that appellant file a new and sufficient appeal bond, approved by the clerk of this Court, on or before July 20, 1940; otherwise the appeal must be dismissed. Ap-pellee’s motion to strike statement of facts will be overruled, but its motion to strike the ex parte statement of the court reporter will be granted, all at the cost of appellant


author: SPEER, Justice.

text:
    DAVIS et al. v. BEARD et al.
    No. 14132.
    Court of Civil Appeals of Texas. Fort Worth.
    June 28, 1940.
    Tom N. Cope, of Atlanta, for plaintiffs in error J. Lewis Davis .and Louise A. Miles.
    P. O. Beard and Huffman & Huffman, all of Marshall, for defendant in error J. A. Pipsaire.
   SPEER, Justice.

J. A. Pipsaire, one of the defendants in error in the above styled cause, has filed a motion in this court to dismiss the cause from the docket because no proper service of citation on him has been Had, he having made no answer or appearance waiving the issuance and service of process. His motion here is limited strictly to the purposes sought therein.

Plaintiffs in error filed their petition for writ of error on August 31st, 1939. They filed bond on September 1st, 1939. Citation in error, was issued on September 2nd, 1939, to Harrison County, for service on several defendants in error, including Pipsaire. The citation concluded with this language: “Herein fail not, and of this writ make due return within - days from the date of issuance hereof, * *

The officer’s return shows that the process was received on September 3rd, 1939, and was served on three of the named defendants in error on the 5th and on the other on the 8th day of September. The • return shows: “J. A. Pipsaire not in this county.”

The record further shows that a citation was issued by the District Clerk of Cass County on October 10th, 1939, addressed to the sheriff or any constable of Harrison County, for service on J. A. Pipsaire, commanding the officer to make due return thereof within 60 days from the date of its issuance. The return shows that it came to hand on October 11th, 1939, and was served on J. A. Pipsaire on the same date, “By serving P. O. Beard as his attorney.”

Movant claims that he lives in Gregg County, and that no process was ever issued for him to that county. His amended petition, upon which the case was tried in Cass County, filed September 19th, 1938, gives his residence as being in Gregg County. After defendants had filed pleadings, Pipsaire and others filed a supplemental petition, reciting his residence to be in Plarrison County. No effort, it seems, was made to have process issued to Gregg County; from the view we take of the motion before us, it is unnecessary for us to determine whether or not sufficient diligence is shown by plaintiffs in error to have process served on Pipsaire, in person, in Gregg County.

It will be observed that neither of the citations issued was made returnable within 20 days after the date of their issuance, as provided by Article 2260, R.C.S., but one bore no date at all in which it was to be returned, and the other provided 60 days; each was technically in violation of the provisions of the statute cited. However, they appear to have been promptly received by the officer to whom they were addressed and executed, as far as possible, well within the 20 days provided bylaw. We are not inclined to hold the citations void for this irregularity. Brillhart v. Beever, Tex.Civ.App., 198 S.W. 973.

By Article 2262, R.C.S., it is provided that if the citation is returned not executed (on Pipsaire, as was done in this case), the clerk shall issue an alias or pluries citation, which process shall “indicate how many previous citations have been issued.”

By Article 2263, R.C.S., provisions are made for. service on defendant in error’s attorney of record, when he cannot be found in the county of his residence.

The citation issued on October 10th, 1939, made no mention of previous citations having been issued, nor the number, whether alias or pluries. This process was served on “P. O. Beard, as his (Pipsaire’s) attorney of record.” While Mr. Beard was also a defendant in error, he is shown by the record to have been the attorney of Pipsaire also.

It'has been held (hat when one or more citations have already been issued in such cases as this, the provisions of Article 2262, requiring that subsequent ones shall recite they are alias or pluries, as the case may be, are mandatory. Failure to contain such provision is fatal to the process. Weisenberger v. Weisenberger, Tex.Civ.App., 299 S.W. 915; American Nat. Ins. Co. v. Rodriquez, Tex.Civ.App., 147 S.W. 678; United States Fidelity & Guaranty Co. v. Daniel, Tex.Civ.App., 52 S.W.2d 108; Id., Tex.Civ.App., 84 S.W.2d 1079; Vineyard v. McCombs, 100 Tex. 318, 99 S.W. 544.

In the last cited case, it was held that the citation served on the attorney of record was invalid and conferred no jurisdiction on the Court of Civil Appeals because (1) the citation served on the attorney in Travis County only showed that defendant in error could not be found in Dallas County, where the petition in error alleged him to be, and did not show the diligence used to locate him in Dallas County; and (2) the citation served on the attorney did not disclose that it was an alias, as required by Article 1397 (now Article 2262).

Under the facts disclosed by the record, the motion will be sustained. The-writ of error will not be dismissed by us, but as directed by our Supreme Court in Vineyard v. McCombs, supra, the cause as. it now stands will be stricken from the docket, without prejudice to the rights of plaintiffs in error to pursue such course and remedy they may see proper, to cure the errors shown to exist in the citations. It is so ordered.


author: GRISSOM, Justice.

text:
    COUNTY BOARD OF SCHOOL TRUSTEES et al. v. GRAY et al.
    No. 2114.
    Court of Civil Appeals of Texas. Eastland.
    June 21, 1940.
    Rehearing Denied July 15, 1940.
    Frank Sparks, of Eastland, for appellants.
    M. E. Lawrence, of Eastland, for appel-lees.
   GRISSOM, Justice.

The Boards of Trustees of Mangum Common School District No. 53 of East-land County and Carbon Independent School District of Eastland County presented their joint petition to the County Board of School Trustees of Eastland County asking the county board to annex Mangum Common School District to Carbon Independent School District. The names of all the trustees of said petitioning districts were signed to the petition and, on March 12, 1940, it was presented to and acted upon by the County Board, and that board duly entered an order annexing Mangum Common School District to the Carbon Independent School District.

This suit was instituted by N. B. Gray •et al., against said County Board, the County Superintendent of Schools of East-land County and the Carbon Independent School District. Plaintiffs sought to enjoin defendants from putting said order into effect. Plaintiffs alleged the order was void, among other things, because (1) defendants were' attempting to effect a “consolidation of the two school districts without the consent of the entire Board of School Trustees of Mangum Common School District” and (2) because no election had been held in the Mangum Common School District, at which a majority of the voters of said district voted in favor of “consolidation, annexation or any other form of uniting the two districts.” (3) For the same reasons, plaintiffs alleged that if defendants were attempting to group said districts for rural high school purposes, the order was void. Plaintiffs alleged that the Mangum district “had a scholastic population of twenty” and that the “Mangum Common School District .No. 53 is a Common School District, having less than 400 scholastic population, and that the Carbon Independent School District is an independent school district having 250 or more scholastic-population”, and that said County Board had no authority to “consolidate” said districts, or to annex the Mangum district to the Carbon district.

Upon a trial to the court judgment was rendered enjoining defendants from putting into effect its order annexing the Man-gum district to the Carbon district. The defendants have appealed.

We have not been favored by a brief for appellees, but appellees, and the court, evidently construed Chapter 19A, Vernon’s Texas Civil Statutes, 1936, entitled “Rural High Schools”, as authorizing the formation of only rural high schools, and, in particular, as not authorizing the annexation of a common school district to an independent district by action of the County Board with the consent of the trustees of the districts affected.

Article 2922a provides that the County School Trustees shall have the authority to form rural high school districts by “grouping” certain common and independent school districts “for the purpose of establishing and operating rural high schools”, but said statute further recites: “provided also that the county school trustees may annex one or more common school districts * * * to an independent district having two hundred and fifty or more scholastic population upon the approval of the board of trustees of each school district affected; provided that when one or more common school districts are so annexed * * * to an independent district having two hundred and fifty, or more scholastic population, * * * a board of trustees shall be elected from the district at large and shall have the management and control of the district as enlarged until the time of the next election and qualifications of trustees for common and independent districts, as provided by General Law.”

Article 2922b provides that rural high school districts shall be classed as common school districts. It further recites: “provided that all independent school districts enlarged by the annexation thereto of one or more common school districts as provided for in Article 2922a shall retain its status and name as an independent school district, and shall continue to operate as an independent school district under the provisions of the existing 'laws and the laws hereafter enacted governing other independent school districts, except as otherwise provided for herein.”

Article 2922f prescribes the manner in which elementary schools may be abolished. As evidence of the fact that Chapter 19A deals with other schools than rural high schools, we call attention to the fact that article 2922f provides for the consolidation of white and colored schools by the board of trustees of “rural high school districts or an independent district, as the case may be * * *Said article further provides: “Whenever one or more common school districts are annexed * * * to an independent district under the provisions of Section 1, [by section 1 is meant Art. 2922a], such * * * independent district shall maintain elementary schools of such classification as the county board may designate in each district so annexed, for the same length of term provided for the schools of the said * * * independent district. Provided such schools may be discontinued by the local board of trustees when the average daily attendance of any such schools for the preceding year is less than twenty.”

Article 2922h, dealing with the outstanding bonds of school districts, refers to rural high school districts and to “independent districts] to which one or more common school districts are annexed, as herein provided for * * *

Article 29221, relative to the power of a board of trustees of a school district to levy and collect taxes, among other things, states: “provided that the local taxes previously authorized by a district * * * annexed to a * * * independent school district, as provided for herein, shall be continued in force until such time as a uniform tax may be provided for the benefit of the rural high school district or said common or independent district as enlarged by the annexation of said common school districts thereto.”

Article 29221 (1) provides, among other things, that the trustees of an independent school district which levies and collects a maintenance tax shall admit into the public schools of the district, free of tuition, all persons over six and not' over 21 years of age at the beginning of the scholastic year, if such person or his parents, or legal guardian, resides within said common or independent school district. Section 2 of said .article also refers to independent school districts.

Although Chapter 19A deals principally with rural high schools, it provides that the County School Trustees may annex a common school district to an independent school district, having 250 or more scholastic population, upon the approval of the board of trustees of each school district affected. It further provides that when a common school district has been annexed to such an independent school district the independent district, so enlarged by the annexation thereto of a common school district, shall retain both its status and name as an independent school district and shall continue to operate as an independent school district.

We construe th'e statutes in question, to-wit, Arts. 2922a to 2922Z (1), Vernon s Texas Civil Statutes 1936, as authorizing the County Board of School Trustees to do exactly what it did under the circumstances that admittedly existed at the time of its annexation of the common school district to the independent school district.

It has been held to be immaterial whether or not one of the trustees of the Mangum district desired to withdraw his name from the petition for annexation, in that it has been determined that it is only required that a majority of said board sign such petition consenting to the annexation. Barnhart v. County Board of School Trustees, Tex.Civ.App., 108 S.W.2d 770, 771,

No election was required. The consent of the trustees of both districts was sufficient to authorize the annexation by order of the County Board of School Trustees. 37 Tex.Jur. 880; Brockman v. Echols, Tex.Civ.App., 22 S.W.2d 686; Countz v. Mitchell, 120 Tex. 324, 333, 38 S.W.2d 770. See also Page 1642, Chapter 418, Acts 44th Leg., First Called Session, 1935, Vernon’s Tex.Civ.St.1936, art. 2806a.

The judgment of the trial court is reversed and judgment rendered dissolving the injunction.

(Italics in the opinion are the court’s.)


text:
    MULLINS et al. v. McDOWELL et al.
    No. 5662.
    Court of Civil Appeals of Texas. Texarkana.
    July 11, 1940.
    Rehearing Denied July 18, 1940.

      Malone, Lipscomb, White & Seay, of Dallas, and Sam Williams, of Mt. Pleasant, for appellants.
    T. J. Ramey, of Sulphur Springs, and Hiram G. Brown, of Mt. Pleasant, for appellees.
   JOHNSON, Chief Justice.

This is an appeal from a judgment of the trial court sustaining pleas of privilege. Appellants, Mr. and Mrs. D. N. Mullins and United States Fidelity & Guaranty Company, residents of Dallas County, Texas, filed this suit February 25, 1938, in the District Court of Titus County against Phil T. Henley and W. L. McDowell, residents of Hopkins County, Texas, to recover damages sustained on account of the death of Jasper N. Mullins, a son of Mr. and Mrs. D. N. Mullins. Plaintiffs alleged that Jasper N. Mullins was killed in an automobile collision in August, 1937, in Titus County, as the result of negligence on the part of said defendants in the manner in which an automobile, owned by McDowell, and in which McDowell and Henley were riding, and driven by Henley, was driven into and caused to collide with an automobile in which Jasper N. Mullins was riding, which collision occurred on Highway No. 1 about one mile West of Mt. Pleasant in Titus County. The United States Fidelity & Guaranty Company alleged that it had discharged to Mr. and Mrs. D. N. Mullins, parents of Jasper N! Mullins, its liability as a carrier of compensation insurance on Jasper N. Mullins, and by reason thereof said company sought to recover under its right of sub-rogation. Joined in said action for damages said plaintiffs also alleged an action against Mrs. Flora Ratliff to cancel two deeds executed by W. L. McDowell and wife, N. C. McDowell, to said Flora Ratliff on or’about October 9, 1937, conveying lands situated in Hopkins and Wood Counties. Mrs. Flora Ratliff is the daughter of W. L. and N.. C. McDowell. Plaintiffs claimed that said deeds were executed without consideration and for the fraudulent purpose of preventing plaintiffs from collecting their claim for damages against W. L. McDowell, and that such conveyances by McDowell to Mrs. Flora Ratliff rendered McDowell insolvent. Mrs. Flora Ratliff and her husband, W. H. Ratliff, and Mrs. N. C. McDowell, residents of Hopkins County,, were made parties defendant. All defendants filed pleas of privilege to be sued in Hopkins County, the county of their residence. Plaintiffs duly filed their controverting affidavit, incorporating therein their first amended original petition and claimed that venue of the suit as to Henley and McDowell was properly laid in Titus County under subdivision 9 of Article 1995, which subdivision provides that a suit based upon crime, offense or trespass, may be brought in the county where such crime, offense or trespass was committed; and that in any event venue was properly laid in Titus County under said subdivision 9 as to the defendant Henley who was driving the car at the time of the collision, and as to all of the remaining defendants venue was properly laid in Titus County under subdivision 29a of Article 1995, Vernon's Ann.Civ.St., which subdivision provides: “Whenever there are two or more defendants in any suit brought in any county of this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”

The issues as to the pleas of privilege were tried to a jury. In response to special issues submitted the jury found: (1) That at the time of the collision and just prior thereto the automobile in which Henley and McDowell were traveling was being driven on the south side of the main traveled portion of Highway No. 1 while going in a westerly direction. (2) That such act was a proximate cause of the collision. (3) That the automobile in which Henley and McDowell were riding at the time of the collision -was being operated at a rate of speed in excess of 45 miles per hour. (4) That such act was a proximate cause of the collision. (5) That Henley was operating the car at the time of the collision while he was in a state of intoxication. (6) That such act was a proximate cause of the collision. (7) That McDowell was negligent in permitting Henley to operate the car in which they were riding while Henley was in a state of intoxication. (8) That the car in which Henley and McDowell were riding was being operated on the left-hand side of the road in the direction in which it was proceeding without the driver having a clear and unobstructed view ahead for a distance of at least fifty yards. (9) That such act was a proximate cause of the collision. (10) That Henley was not operating the car at the time of the collision at the request of McDowell. (11) That at the time of the collision Henley was operating the car with the consent of McDowell. (12) That at the time of the collision Henley was not operating the car on a mission for McDowell. Judgment was entered overruling the plea of privilege as to the defendant Henley; and sustained the pleas of privilege as to the defendants McDowell, Mrs. Flora Ratliff, W. H. Ratliff, and Mrs. N. C. McDowell. From an order overruling their motion for new trial plaintiffs have appealed from the judgment of the court sustaining the pleas of privilege as to the defendants McDowell, Mrs. Ratliff, W. H. Ratliff, and Mrs. McDowell.

Appellants objected and excepted to the submission of special issues No. 10 and No. 12, wherein the trial court inquired of the jury: (10) as to whether at the time of the collision Henley was operating the car at the request of McDowell; and (12) as to whether at the time of the collision Henley was operating the car on a mission for McDowell. Appellants objected and excepted to the submission of said issues upon the ground that the undisputed evidence showed that Henley was operating the car at the request of McDowell and on a mission for McDowell. Appellants duly filed their motion asking the trial court to disregard the jury’s answers to such questions because said answers were contrary to the undisputed evidence, and prayed that the trial court enter judgment notwithstanding the jury’s answers to said questions, and upon the verdict of the jury in answer to the other issues submitted and upon the uncontradicted evidence. All of these exceptions and motions were overruled by the trial court, to which appellants duly excepted and now assign error.

The undisputed evidence shows that on the morning of August 26, 1937, McDowell drove his car from his home in Sulphur Springs to the business section of that city where he found Henley and asked him if he “wanted to go out and around” with him. Henley consented and got in the car, and at the request of McDowell did the driving. During the course of that day and up into the early part of the night, the accident occurring about 8:30 p. m., Henley and McDowell (Henley doing the driving) drove to Honey Grove, Bonham, back through Commerce, Sulphur Springs, and to Mt. Pleasant, and had started back to Sulphur Springs when the collision occurred about one mile west of Mt. Pleasant. Henley testified that McDowell had a pint of whiskey with him when Henley first got in the car that morning; that he could tell from McDowell’s actions that he had been drinking; that as soon as they drove out on the highway McDowell drank the pint of whiskey; that Henley bought a bottle of bay rum at Honey Grove and McDowell drank that; that McDowell bought another pint of whiskey at Commerce and drank that; that whenever they came back through Sulphur Springs McDowell was drunk. That they did not stop in Sulphur Springs but that he, Henley, thinking it would sober McDowell up, drove on to Mt. Pleasant where they purchased some beer which both of them drank. Henley testified that he did not drink any of the whiskey or bay rum and that he drank only half a bottle of beer. J. W. Blackstone who saw Henley at a service station at Mt. Pleasant shortly before the collision testified that Henley was drunk at that time. McDowell’s testimony in substance is to the effect that he was so drunk that he does not “recollect” leaving home or anything that happened on the trip. It is shown, however, that he was able to drive his car into town and request Henley to drive him “out and around,” which Plen-ley did at McDowell’s request. McDowell testified that if he had any business at any of the towns they visited he does not remember it. We think the undisputed evidence shows that Henley was still driving the car on the mission on which they embarked on the morning of that day, and that McDowell’s request to do so had not been withdrawn. Having constituted Henley his agent for driving around that day, McDowell could not relieve himself of liability as a principal actor in the affirmative acts of negligence committed by his driver, Henley, by reason of the fact that he, McDowell, had gotten so drunk, if he did, that he did not know what he was doing at the time of the collision. In other words, McDowell’s intoxication did not terminate Henley’s agency. That the principal may be sued either jointly or alone for damages resulting from affirmative trespass committed by the agent in the county where the trespass was committed appears to be settled. Barnes v. Moro, Tex.Civ.App., 76 S.W.2d 831; Vaught v. Jones, Tex.Com.App., 17 S.W.2d 779; Schuller v. Fears, Tex.Civ.App., 67 S.W.2d 343; Jarvis-Tull & Co. v. Williams, Tex.Civ.App., 114 S.W.2d 1218; Campbell v. Wylie, Tex.Civ.App., 212 S.W. 980. We think the jury’s findings in answer to special issues No. 10 and No. 12 should have been disregarded as being contrary to the undisputed evidence, and that upon the undisputed evidence and the other findings of the jury the plea of privilege as to W. L. McDowell should have been overruled.

Complaining of the court’s action in sustaining the pleas of privilege of Mrs. Flora Ratliff and husband, W. H. Ratliff, and Mrs. N. C. McDowell, appellants make the following contention, in substance: (1) That their suit for damages against Henley and McDowell is maintainable in Titus County under subdivision 9 of Article 1995; (2) that appellants are “creditors” of W. L. McDowell within the meaning of Article 3997, R.C.S., declaring voluntary conveyances void ás to prior creditors, and citing the case of Colby v. McClendon, Tex.Civ.App., 116 S.W.2d 505, 511, which holds that “one who is entitled to remuneration for damages arising from tort is just as much a creditor of him who is liable for such damages as is the person who holds against him any other sort of claim”; (3) that being a creditor of McDowell, appellants had the right to join in one suit (a) their action against McDowell for damages, and (b) their action against his grantee, Mrs. Flora Ratliff, for cancellation of the alleged fraudulent conveyances to her, citing the case of Ward v. McKenzie, 33 Tex. 297, 298, 7 Am.Rep. 261, and Waddell v. Williams, 37 Tex. 351. Said cases hold that a suit by a creditor against his debtor to establish his debt and against the debtor’s grantee to cancel a fraudulent conveyance “is not demurrable for multifariousness or for misjoinder of defendants” under our liberal practice, avoiding a multiplicity of suits. The question of venue was not raised in either of those cases. For purpose of deciding the question of venue raised in the present suit, it may be assumed, without affirming, that a creditor suing his debtor to establish his debt, may also join in such suit his action against the debtor’s grantee, to cancel an alleged fraudulent conveyance, is .permissible under our liberal procedure; but such permissible procedure would not be controlling over the grantee’s statutory privilege, when insisted upon, to be sued in the county of his residence. Nor is such procedure within or covered by subdivision 29a of Article 1995. That is to say, McDowell’s grantee, Mrs. Flora Ratliff, who is the principal defendant in appellant’s action for cancellation of the deed of conveyance to her, as well as Mrs. N. C. McDowell and W. H. Ratliff, are not “necessary parties” to appellants’ action for damages against McDowell. Appellants contend that the issue of venue here under consideration as to said Flora Ratliff, W. H. Ratliff, and Mrs. N. C. McDowell, is controlled by the decision in the case of Pioneer Bldg. & Loan Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284. We do not agree with that contention. It is our opinion that the issue of venue as to said defendants is controlled by the decision in Scott v. Scott, 133 Tex. 1, 123 S.W.2d 306, 126 S.W.2d 626 (Sup.Ct. answering certified questions from 5th Court of Civil Appeals, 126 S.W.2d 525).

The judgment of the trial court sustaining the plea of privilege as to W. L. McDowell will be reversed and judgment here rendered overruling same. The judgment of the trial court sustaining the pleas of privilege of Mrs. Flora Ratliff, Mrs. N. C. McDowell, and W. H. Ratliff is affirmed.

Reversed and rendered in part, and affirmed in part.


text:
    BRAGDON v. WRIGHT et al.
    No. 5630.
    Court of Civil Appeals of Texas. Texarkana.
    July 3, 1940.
    Rehearing Denied July 18, 1940.
    Percy Woodard, of Marshall, for plaintiff in error.
    Cornelius & Heaton, and Shelburne H, Glover, all of Jefferson, for defendants in error.
   JOHNSON, Chief Justice.

Hettie Wright and Walter Wright were married September S, 1936. They lived together as husband and wife only a short time, when it is alleged that Walter was persuaded by a relative, Brozier Green, to leave Hettie and live with said relative. Walter was drawing compensation as an ex-soldier of the World War. G. T. Haggard was his guardian. Hettie was told that Walter was a ward of the federal government and that she had violated the law in marrying him. She was threatened with violence and criminal prosecution unless she signed a waiver of service of citation and consented to his getting a divorce. After the waiver was executed, a suit was filed in the 76th District Court of Marion County, on April 30, 1937, styled Walter Wright by his Guardian and Next Friend, G. T. Haggard, v. Hettie Wright, No. 11443, on the docket of said court, asking that said marriage relationship be dissolved on the alleged ground that Walter was of unsound mind at the time of the mar-riagc and mentally incapable of entering into the marriage contract. No citation was issued and served nor any character of notice given Hettie of the pendency of said suit, other than the purported waiver executed prior to the filing of said suit. She did not appear or file any answer therein. On May 11, 1937, judgment was entered in said cause dissolving the marriage relationship existing between Walter and Hettie. Walter died in August of the same year, intestate, seized and possessed of 52 acres of land and certain personal property comprising his separate estate. Hettie did not learn of the rendition of said .judgment until more than six months after its entry, whereupon she filed the present suit, on December 22, 1937, in the Fifth and subsequently transferred it to the Seventy-sixth District Court of Marion County, against G. T. Haggard, the former guardian of Walter Wright, and K. J. Bragdon, temporary administrator of the estate of Walter Wright, deceased, asking that the judgment in cause No. 11-443 be set aside, on the alleged grounds, in substance, that Walter Wright was not insane or mentally incapable of entering into the marriage contract at the time he and Hettie married, and that the judgment in said cause was procured through fraud committed upon Hettie and upon the court; and that no jurisdiction had been procured over the person of Hettie in that the purported waiver was executed prior to the filing of said suit, in violation of the provisions of Article 2224, R.C.S., and for that reason constituted no notice. Trial of the present suit was to a jury, upon special issues, in answer to which the jury found:

“(1) That G. T. Haggard procured the execution of the waiver of service of citation in cause No. 11,443, either in person or through other persons, by the fraudulent representations and intimidations alleged in plaintiff’s third amended original petition;
“(2) that Hettie Wright executed the waiver of service of citation in cause No. 11,443, through fear of bodily injury or ■ criminal prosecutions;
“(3) that the waiver of service of citation in cause No. 11,443 was signed by Hettie Wright before April 30th, the date that the petition in said cause was filed;
“(4) that at the time of the marriage of Hettie Wright and Walter Wright, said Walter Wright had sufficient mental capacity to know and understand the nature of the contract and relationship he was assuming;
“(5) that Hettie Wright did not know of the rendition of the judgment in cause No. 11,443, dated May 11, 1937, within six months from the time said judgment was rendered;
“(6) that Hettie Wright was without fault in not moving to set aside the judgment rendered on May 11, 1937, in the case of Walter Wright, by G. T. Haggard as guardian and next friend vs. Hettie Wright, prior to December 22, 1937;
“(7) that the judgment annulling the marriage of Walter Wright and Hettie Wright rendered on May 11, 1937, was procured .through the fraud of the defendant, G. T. Haggard;
“(8) that Hettie Wright was wholly without fault in allowing the rendition of the judgment annulling her marriage to Walter Wright; and
“(9) that Hettie Wright was not a procuring cause of the rendition and entering of the judgment dated May 11, 1937, annulling the marriage of Walter Wright and Hettie Wright.”

Upon the findings of the jury judgment was entered setting aside the judgment in cause No. 11,443. Defendant Bragdon as administrator of the estate of Walter Wright, deceased, appealed by way of writ of error.

None of the appellant’s propositions are supported by statement of the facts upon which they are based or any reference to the pages of the record where the same may be found, and for that reason do not comply with Rule 31 for the preparation of briefs for Courts of Civil Appeals, except appellant’s proposition No. 4; which proposition we think is sufficient to raise the contention made under it to the effect that since the judgment in cause No. 11,-443 is regular upon its face and rendered by a court of competent jurisdiction that its invalidity for want of jurisdiction over the person of the defendant Hettie Wright, and for fraud in its procurement, could not be shown except in a direct attack and that to constitute same a direct attack all parties to be affected by setting said judgment aside must be before the court. The contention is that the collateral kin of Walter Wright would be affected by setting said judgment aside and that they, were not parties to the present suit.

It appears that Walter Wright’s father and mother died prior to his death and that he had no brothers and sisters, but has collateral kin. If the judgment in cause No. 11,443 is permitted to stand, the collateral kin of Walter Wright will inherit his property, if any, left after his creditors are satisfied; and if the judgment is vacated, the property will be inherited by Hettie Wright. In the present suit Hettie seeks only to cancel the judgment in cause No. 11,443 and does not seek to recover the property. But it is apparent that the collateral kin of Walter Wright have an interest in maintaining the judgment and will be materially affected by its cancellation. The judgment in cause No. 11,443 is regular on its face and recites waiver of notice by the defendant Hettie Wright. It was shown without objection to the testimony that the waiver of notice was executed prior to the filing of said suit. A waiver of notice executed prior to the filing of a suit is void and will not support a judgment. Article 2224, R.C.S.; McAnelly v. Ward, 72 Tex. 342, 12 S.W. 206; O’Neal v. Clymer, 21 Tex.Civ.App. 386, 52 S.W. 619. A judgment rendered without acquiring jurisdiction over the defendant by some character of lawful notice, waiver or appearance is generally said to be void. But such expression is not entirely correct, because a void judgment is one without any force or effect and may for that reason be attacked in any court in any proceeding, either directly or collaterally. Though entered without jurisdiction having been in fact acquired over defendant (as was the case in the judgment here attacked) a judgment that is regular on its face and rendered by a court of general jurisdiction has a binding effect until set aside in a direct attack. Such is so for the reason that our courts accord absolute verity to the jurisdictional recitals contained in such a judgment. Such a judgment does not yield to a collateral attack. Fraud in its procurement, or failure to give notice may be shown only in a direct attack, unless the judgment attacked affirmatively reflects the want of notice. Carroll v. McLeod, 133 Tex. 571, 130 S.W.2d 277. To constitute a direct attack upon a judgment the suit must be filed in the court in which the judgment was rendered and have before the court all parties that may be affected by setting it aside. In Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932, 934, it is said that for an attack upon a judgment to be a direct attack “all persons who might be in any way affected by its result must be before the court.” So, it appears that the collateral kin of Walter Wright are necessary parties to the suit in the attack made by appellee upon the judgment in cause No. 11,443. The serious question now arises as to whether or not, upon the undisputed facts, shown below, the collateral kin of Walter Wright may be regarded as being parties to the present suit. They were not formally named as defendants. But they employed an attorney to represent them and gave him written power to do so. The attorney did not file a formal plea of intervention in their name. But he appeared in court, presented and urged all defenses upon the trial, by pleadings filed in the name and with the consent of the administrator of the estate of Walter Wright. In other words, the collateral kin of Walter Wright through their attorney voluntarily appeared in court, took exclusive charge and control of the defense, filed and presented all the necessary and proper answers and pleas, selected the jury, examined and cross-examined the witnesses, and litigated every issue as effectively as could have been done had they formally intervened or otherwise appeared in their own name instead of in the name of the administrator of the estate of Walter Wright. In the case of Haines v. West, 101 Tex. 226, 105 S.W. 1118, 1119, 130 Am. St.Rep. 839, our Supreme Court held that a party who had voluntarily made herself a party to a suit under an assumed name “was, in fact, a real party to the suit” and was bound by the judgment rendered therein. In the case of American Indemnity Co. v. Fellbaum, 114 Tex. 127, 263 S.W. 908, 910, 37 A.L.R. 633, the Supreme Court quoted with approval from 15 R.C.L. §§ 481, 483, the rule of law that “courts look beyond the nominal parties, and treat all those whose interests are involved in the litigation and who conduct and control the action or defense as real parties, and hold them concluded by any judgment which may be rendered.” In the case of Utilities Ins. Co. v. Montgomery, 134 Tex. 640, 138 S.W.2d 1062, the holding in the Fell-baum case was distinguished, but approval of the above-quoted rule does not appear to have been withdrawn. The facts of the case before us clearly come within such rule, and we do not see any reason for withholding its application. Therefore we' hold that the collateral kin of Walter Wright were real parties to the present suit, in the sense that they were sufficiently before the court to authorize it to adjudicate the issue of invalidity of the judgment in cause No. 11,443 for want of notice to or- jurisdiction over Hettie Wright, the defendant in said cause.

The judgment of the trial court will be affirmed.