author: WALKER, Chief Justice.

text:
    SHAW v. TAYLOR.
    No. 3783.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 19, 1940.
    E. J. McLeroy and E. J. McLeroy, Jr., both of Center, for appellant.
    E. B. Lewis, of Center, and Long & Strong, of Carthage, for appellee.
   WALKER, Chief Justice.

This was an action in district court of Shelby county by appellant, W. B. Shaw, describing himself as “plaintiff and contestant,” against appellee, J. C. Taylor, described as “defendant and contestee.” Appellant’s prayer was that he have judgment “declaring him to be the duly and legally elected school trustee for Fellowship Common School District No. 72, Shelby County,” and that the certificate of election issued to appellee “be cancelled,. rescinded and held for naught.” On trial to the court without a jury, judgment was that appellant “take nothing,” from which he has duly prosecuted his appeal to this court.

In support of the judgment, the trial court filed the following conclusions of fact and law, all having support in the pleadings of the parties; the conclusions accurately state the nature and contents of appellant’s petition and of appellee’s answer:

“Findings of Fact
“1. I find that, pursuant to legal notice and in accordance with law there was held in the Fellowship Common School District No. 72 on April 6, 1940, an election for the purpose of electing one Trustee for said district, the results of the election ascertained and returns _ duly made to the proper officials.
“2. I find that at said election only 92 votes in’'all were cast, of which the contestant, W. B. Shaw, received 44 votes, contestee, J. C. Taylor, received 45 votes, and Ray Dickerson received 3 votes, which facts are reflected by the returns made by the- election officers.
“3. I find that the returns of said election were canvassed by the Commissioners Court of Shelby County, Texas, on April 1$, 1940, and that J. C. Taylor was by it declared to be elected; and that J. C. Taylor has qualified by taking the oath of office prescribed by law.
“4. I find that W. B. Shaw filed his contest on April 17, 1940, alleging and claiming that Leonard Brown and Mrs. Leonard Brown, who voted in said election for J. C. Taylor were not legally quali- ’ fied voters in said election by reason of the fact that they did not reside in Fellowship Common School District No. 72, and further alleging that Harvey Williams and his wife, Mrs. Harvey Williams, who.voted in ■ said election and voted for contestee, J. C. Taylor, were not legally qualified voters to vote in said election by reason of the fact that they did not reside in said Fellowship Common School District No. 72, and that no other grounds of contest were specified.
“5. I find that notice of said contest, together with duplicate original of contestant’s petition, was served oh J. C. Taylor on April 18th, 1940.
- “6. I find that on the 17th day of April, 1940, the Judge of this Court ordered that a special term of this Court be held for the 'purpose 'of trying and disposing of this election contest.
“7. I find that -no written reply to said contest was delivered to contestant, his agent or attorney or filed by the contestee until April 29, 1940, when he came by his counsel and filed pleas, in abatement, and, subject to the action of the Court on said pleas, his answer upon the merits, which answer was filed by leave of the Court-, and that a motion by contestant to strike said answer was overruled by the court after a hearing as to the facts.
“8. I find- that on April 6, 1940, Leonard Brown and his wife, Mrs. Leonard Brown, did not reside in Fellowship Common School District No. 72 and had not so resided for a long time prior to said date; and that said Leonard Brown and his wife, Mrs. Leonard Brown, voted for and their votes were counted for the contestee, J. C. Taylor.
“9. I find that Harvey Williams and his wife, Mrs. Harvey Williams, on April 6, 1940, were residing outside of Fellowship; Common School District No. 72 and within the boundaries of .Center Independent School District at Center, Shelby County, Texas; but that their absence from Fel-' lowship Common School District No. 72 was merely temporary absence and that when' removing from said District their intention was to be absent temporarily and then . to return and continue their actual residence within the boundaries .of Fellowship Common School District No. 72 and that said Harvey Williams and his wife,' Mrs. Harvey Williams, voted for the ’con-testee, J. C. Taylor, and their votes were counted for him.
“10. I find that in his answer or reply to the contest J. C. Taylor set up and alleged that Vessie Harvey and his wife, Mrs. Vessie Harvey, were permitted to vote in said election, that they voted for W. B. Shaw, that they were not qualified voters in said election because of the fact that they had not resided within the boundaries of Fellowship Common School District No. 72 a sufficient length of time to qualify them to vote in said election.
“11. I find that Vessie Harvey and his wife, Mrs. Vessie Harvey, were permitted to vote in said election,, that they cast their votes therein for contestant and said votes were counted for contestant, W. B. Shaw; that they had lived in the State’of Texas for more than twelve months and in Shelby County for more than six months prior to the date of the election but had .resided Qutside the boundaries of Fellowship Common School District No. 72 until November 17, 1939, upon which date they moved into said District' with the intention to permanently reside therein and so resided from November 17, 1939, up to April 6, 1940, and thereafter within the boundaries of said Fellowship Common School District No. 72.
“12. I find that both the contestant, W. B. Shaw, and the contestee, J. C. Taylor, were possessed of the qualifications prescribed by law for a trustee of said Common School District on the date of said election and on the date of the canvass of the returns thereof.
“Conclusions of Law
“1. I conclude that Leonard Brown and his wife, Mrs. Leonard Brown, were not legally qualified to vote in said election.
“2. I conclude that Vessie Harvey and his wife, Mrs. Vessie Harvey, were not legally qualified to vote in said election.
“3. I conclude that Harvey Williams and his wife, Mrs. Harvey Williams, were qualified to vote in said election.
“4. Based upon the foregoing Findings of Fact and Conclusions of Law I conclude that contestant received 42 legal votes and contestee, J. C. Taylor, received 43 legal votes, and that J. C. Taylor is the duly elected and qualifiedvTrustee of said Common School District.”

Appellee presents his cross assignment of error that the court erred in overruling his plea in abatement, challenging the jurisdiction of the court to entertain appellant’s cause of action, on the ground that appellant’s only relief was by proceedings in quo warranto. This contention is overruled. Relief by quo warranto is simply a concurrent remedy to appellant’s right to maintain this suit for the office of school trustee. 34 Tex.Jur. 624; Public Officers, Sec. 60.

Appellant’s only point against the judgment challenges the court’s conclusion of law that “Vessie Harvey and his wife, Mrs., Vessie Harvey, were not legally qualified to vote in said election.” This conclusion of law was based on the tenth and eleventh conclusions of fact, as copied above. Appellant presents his point by the following proposition: “Voters residing in the State of Texas for more than one year and in Shelby County, Texas, for more than six months are not required to reside in a common school district in said county for six months preceding the annual trustee election in such school district in order to be eligible to vote in said election, and Vessie Harvey and wife, Mrs. Vessie Harvey, who resided in the State of Texas for more than twelve months before April 6, 1940, and in Shelby County, Texas, more than six months next immediately preceding April 6, 1940, and who moved into Fellowship Common School District No. 72 of Shelby County, Texas, on November 11, 1939, with intentions to permanently reside therein and so resided from November 17, 1939, up to April 6, 1940, and' thereafter, within the boundaries of said school district, possessed the residential qualifications to vote in the annual trustee election held in such school district on April 6, 1940.”

The election of school trustees of common school districts such as Fellowship Common School District No. 72 of Shelby County is controlled by Articles 2745, 2746, 2746a, R.S.1925, Vernon’s Ann.Civ.St. arts. 2745-2746a, in all matters covered by these articles. But matters not controlled by these articles of our statutes are regulated by the general provisions of our election laws regulating such matters. Scherz v. Telfer, Tex.Civ.App., 74 S.W.2d 327. The qualification of voters in trustee elections in common school districts are not prescribed by the articles of the statute cited above, nor are such qualifications prescribed by Title 49 of our statutes, “Public Education.”

The election in issue—the election of a trustee for Fellowship Common School District No. 72—in respect to the qualifications of the participating voters is controlled by the following articles of our general election laws:

Article 2923: “The provisions of this title shall apply to all elections held in this State, except as otherwise provided herein.”

Article 2955: “Every person subject to none of the foregoing disqualifications who shall have attained the age of twenty-one years and who shall be a citizen of the United States, and who shall have resided in this State one year next preceding an election, and the last six months within the district or county in which he or she offers to vote, shall be deemed a qualified elector. * * * In any election held only in a subdivision of a county for the purpose of determining any local question or proposition affecting only such subdivision of the county, then in addition to the foregoing qualifications, the voter must have resided in said county for six months next preceding such election. The provisions of this article as to casting ballots shall apply to all elections including general, special and primary elections.”

Fellowship Common School District No. 72 is a political subdivision of Shelby county, municipal in character and local in interest. The annual trustee election held in this district is a matter affecting only the district. Warren v. Robinson, Tex.Civ.App., 32 S.W.2d 871, 872, seems to us exactly in point, construing Article 2955 as defining the qualifications of voters in matters regulating a subdivision of a county — a question affecting only such subdivision of the county. Writing the opinion of the court, Chief Justice Fly said: “The only provisions as to residence in the election law is that the'voter must have resided in the state for one year and in the county where the election is held for six months preceding the election, and yet it is insisted that, when the election is in any subdivision of the county, six months’ residence in the subdivision is required by law. Directly the contrary is provided in article 2955, Rev.Stats., as follows: ‘In any election held only in a subdivision of a county for the purpose of determining any local question or proposition affecting only such subdivision of the county, then in addition to the foregoing qualifications, the voter must have resided in'said county for six months next preceding such election.’ ” Under the construction given above by Chief Justice Fly to Article 2955, a voter does not have to reside in the subdivision for six months next preceding the election; the statute requires only that he reside in the county for six months next preceding the election. So, on authority of Chief Justice Fly’s opinion, it is our conclusion that to be eligible to vote in a trustee election in a common school district the voter need not have resided in that school district for any particular length of time, provided he is a bona fide inhabitant of the district and has resided in the state twelve months and in the county six months next preceding the election.

Little v. State ex rel. Parsell, 75 Tex. 616, 12 S.W. 965, 969, is interestingly in point in the construction of Article 2955: “It is complained that the court erred in the following instruction to the jury, contained in the general charge: ‘By the language “who shall have resided in the state one year next preceding an election, and the last six months in the district or county in which he offers to vote,” is meant, at any state or district election a person would be qualified to vote for state or district officers, if he possessed none of the disqualifications mentioned in paragraph 2 of this charge, and had lived one year in the state next preceding such election, and the last six months in the district in which he offered to vote; but at an election held for the purpose of locating a county-seat, and to elect county officers only, the test as to residence, in order to be a qualified elector, would be one year in the state next preceding such election, and the last six months in the county in which he offered to vote.’ We think the court correctly interpreted the language quoted in the charge. It is found in section 2, art. 6, of the constitution [Vernon’s Ann.St.] In our opinion, it admits of no other reasonable construction. When construed as meaning that a residence of six months in the district should qualify an elector to vote for district officers, we have no difficulty in determining what district is meant. But, if we should say that such residence gives a right to vote for county officers, we should be at a loss to know whether it is the congressional, judicial, senatorial, or legislative districts in which the voter was to reside in order to acquire the qualification. If such had been the intention, the kind of district would have been named, or there would have been some language in the provision indicating some rule by which the question could be determined. Besides, the construction claimed' by appellant would render the words ‘or county’ superfluous; because every county in the state is, and will in all probability continue to be, a part of some district. Since the district includes the county, it was unnecessary to have used the word ‘county,’ if it had been intended that a residence in the district should give the qualification to vote for county officers.” Citing Article 2955, supra, and Warren v. Robinson, supra, 16 Tex.Jur. 46, Elections, Par. 36, announces the following proposition: “It is provided by statute that, in any election held only in a subdivision of a county for the purpose of determining any local question or proposition affecting only such subdivision of the county, then, in addition to the foregoing qualifications, the voter must have resided in the county for six months next preceding the election.”

From what we- have said, it follows that Mr. and Mrs. Vessie Harvey were legally qualified to vote in the election in issue, and since they voted for appellant, on the calculation made by the court in his conclusions of fact, appellant received a plurality of the votes cast. It is therefore ordered that he be declared the duly elected trustee of Fellowship Common School District No. 72, Shelby County, and that the certificate of election granted to appellee be cancelled and held for naught.

Judgment of the lower court in favor of appellee reversed and judgment here rendered for appellant.

Reversed and rendered.


source: Caselaw Access Project

author: .LESLIE, Chief Justice.

license: Public Domain

text:
    GARRETT v. WILLIAMS et al.
    No. 2073.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 6, 1940.
    James E. Faulkner, of Henderson, for appellant.
    Joe C. Gladney and J. M. Burns, Jr., both of Henderson, for appellees.
   .LESLIE, Chief Justice.

From a judgment in the trial court in favor of the plaintiffs (Leuvinia Williams joined pro forma by her husband, R. W. Williams) the defendant Charley Garrett appeals by virtue of an affidavit of inability to pay costs in lieu of a regular appeal bond. Neither litigant has briefed the case in this court. We have examined the record for. fundamental error and, finding none, the judgment of the trial court is affirmed on the authority of Haynes v. Radford Groc. Co., 118 Tex. 277, 14 S.W.2d 811. It is so ordered.


author: STOKES, Justice.

text:
    RUGGLES v. JOHN DEERE PLOW CO. et al.
    No. 5228.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 2, 1940.
    Rehearing Denied Jan. 13, 1941.

      Reeder, Reeder & Reeder, of Amarillo, for appellant.
    Adkins, Pipkin, Madden & Keffer, of Amarillo, for appellees.
   STOKES, Justice.

Appellant, A. B. Ruggles, filed this suit against Jqhn Deere Plow Company, Russell H. Boyd, and Saunders Implement Company, seeking to recover damages for personal injuries and injury to his automobile sustained by him in a collision between his automobile and a truck and trailer owned and operated by one Joe Allred in Oldham County on November 13, 1937. At the close of the plaintiff's testimony, the defendants presented to the court a motion for a peremptory instruction in their favor. Appellant did not contest the motion in so far as it applied to the Saunders Implement Company, admitting that the testimony had failed to disclose that Boyd was the agent of, or in any manner connected with that Company; but he did contest the motion in so far as it applied to the John Deere Plow Company and Russell H. Boyd. The motion was sustained by the court and the jury was instructed to return a verdict in favor óf the defendants, which was done, and judgment was entered by the court against appellant, from which he has perfected an appeal.

The record reveals that shortly after dark on November 13, 1937, appellee Boyd, who was an employee and agent of the John Deere Plow Company and engaged in his line of duty as such employee at the time, was traveling south on an unpaved highway. About three miles south of Wildorado, in Oldham County, he met Joe Allred, who, incidentally, is not a party to this suit, and, desiring to talk with Allred, Boyd hailed him and caused Allred to stop his truck on the east portion of the highway while Boyd stopped his car on the west portion thereof immediately opposite All-red’s truck. Boyd got out of his car and talked with Allred for a short time, and either while he was talking with Allred or before alighting from his car, Boyd observed the lights of a car approaching from the south a mile or more from where he and Allred were engaged in the conversation. The car approaching from the soutli proved to be appellant’s automobile, being operated by him. He was traveling north, which was the same direction in which Allred’s truck was headed. Before appellant reached Boyd and the truck, Boyd got back into his car and started on south at a low rate of speed, and immediately after meeting and passing Boyd, appellant ran into the rear end of Allred’s trailer and truck. The impact of the collision practically demolished appellant’s car and he also received serious personal injuries.

As we have stated, there is no question concerning Boyd’s agency of the John Deere Plow Company, and appellees do not contest the proposition that if appellant made out a case against Boyd and the evidence shows that Boyd was negligent in the matters alleged by appellant, both he and his principal, the John Deere Plow Company, are liable for any injury or damage to appellant that was proximately caused thereby.

Appellant contends that Boyd was guilty of negligence per se in parking his car on the traveled portion of the highway when it was possible for him to have moved it off to the side and clear of the traveled portion ; in not leaving a space of at least fifteen feet in the clear on the traveled portion of the highway opposite his car while it was parked, and in causing his car and the truck to be so parked as that a clear view of the truck could not be had for a distance of two.hundred feet in each direction, because each of these acts was in violation of the provisions of Art. 827a, Sec. 10, Vernon’s Annotated Penal Code. He also charges that Boyd was negligent in failing to start his car from where it was parked until appellant’s car was within twenty-five feet of it; that he was negligent in driving his car at a dangerously low rate of speed immediately after leaving the scene of the conversation, and that appellant was in a perilous position preceding the collision, which was discovered by Boyd, and that Boyd could have prevented the collision by the use of means at hand, which he failed to do.

Appellant contends that each of the above acts of alleged negligence was a proximate cause of his injury and that he was entitled to have each of them submitted to the jury.

Having alleged that the acts of Boyd were responsible for the collision-; that they constituted negligence and that they were proximate causes of his injury, the burden rested upon appellant to prove such allegations, that is, that the-acts were committed by Boyd as alleged; that they constituted negligence and that they were proximate causes, or at least one of them was the proximate cause, of his injury and damage.

The evidence is practically undisputed in any of its details. The motion for a peremptory instruction was presented to the court at the close of the plaintiff’s testimony. The appellees offered no testimony whatever. It becomes necessary, therefore, to examine the testimony of appellant and his witnesses to ascertain whether or not his assignments of error in respect to the action of the court in giving to the jury a peremptory instruction are well taken. It may be assumed, we think, that Boyd was guilty of negligence in parking his automobile o'n the traveled portion of the highway. The evidence shows that it was not only possible for him to move it off of the traveled portion into the borrow pit, but he could have done so with little difficulty. The borrow pit was only a gradual slope and ample space existed for him to have parked his car entirely clear of the traveled' portion of the road. The evidence is somewhat conflicting as to the distance between Boyd’s car and Allred’s truck when they were both parked, but in, considering the testimony in its most favorable light to appellant, we shall assume that the space between the two was less than fifteen feet. This also was an act of negligence on Boyd’s part. He was negligent in these respects because his acts in parking his car and in failing to leave a space of at least fifteen feet in the clear for the passage of other cars traveling upon the highway were in violation of the provisions of Art. 827a, Sec. 10, of the Penal Code of this State.

As to the other acts of negligence charged by appellant, viz., Boyd’s failure to start his car from where it had been parked until appellant was within twenty-five feet thereof, and in driving it at a dangerously low rate of speed immediately after resuming his journey, in our opinion no actionable negligence is shown. It would seem that Boyd could not have been guilty of negligence in failing to start his car until appellant was within twenty-five feet thereof, and in driving at a low rate of speed, within themselves, would be nothing more than that which Boyd had a perfect right to do unless appellant was in a position of peril at the time and Boyd could be charged with negligence in these respects because of appellant’s perilous position. It is a matter of common knowledge that automobiles, as well as other vehicles,- travel at a low rate of speed for some distance immediately after they begin to move and certainly the mere starting and the low rate of speed, within themselves could not have constituted negligence. A consideration of the question of appellant’s perilous position will, therefore, dispose of these latter allegations.

Appellant contends that Boyd saw his .car approaching from the south at least a mile before it reached the place where Boyd was engaged in the conversation with Allred; that Boyd knew appellant would pass the spot where he and All-red were standing; that Boyd’s car and Allred’s, truck were parked in the road in such manner as that appellant could not proceed up the road north without coming in contact with one of them; that the truck was standing immediately opposite Boyd’s car and appellant’s view of its position was obscured by Boyd’s lights so that appellant could not see the truck and that, because of these conditions and Boyd’s acquaintance with them, Boyd knew, from the time he first saw appellant’s car, that appellant was in a perilous'and dangerous position. There is no contention that Boyd’s lights were unusual nor that they were glaring or blinded appellant so that he could not see ahead of him. Appellant testified that his own lights were in perfect condition; that he was traveling at a rate of speed of about forty miles an hour and that he could have stopped his car within twenty feet or slightly more. It is not shown nor claimed that Boyd knew appellant did not see the truck. Appellant testified that if the truck or trailer had been equipped with lights or reflectors he could and would have seen them at least one hundred fifty feet before he reached the truck. He did not say the truck and trailer were not equipped with lights and reflectors, but that he did not see them. Assuming they were not so 'equipped, the testimony does not show that Boyd knew it and we think he was warranted in assuming that appellant would stop a safe distance before colliding with them, as appellant said he could, and would, have done if he had seen them. We think, therefore, that Boyd could not have known appellant was in a position of peril, until it was too late for him to do anything that would have prevented the accident. Moreover, the testimony does not contain a suggestion of any act or thing which Boyd could have done after the earliest time- when, under the circumstances, he could have discovered the peril, that would have prevented the collision. In many cases the courts have laid down the rule that the doctrine of discovered peril-does not apply, nor can recovery be had upon that theory, unless there is an actual discovery, of the peril of the injured person by the . party charged with negligence; and it must be shown that he discovered' it in time to avoid the injury by the use of means available to him at the time. Wichita Falls Traction Co. v. McAbee, Tex.Civ.App., 21 S.W.2d 97; Texas & P. R. Co. v. Breadow et al., 90 Tex. 26, 36 S.W.'410, 411; Northern Texas Traction Co. v. Singer, Tex.Civ.App., 34 S.W.2d 920; Malone v. City of Plainview, Tex.Civ.App., 127 S.W.2d 201.

Under the law as it is written by the courts in the cases above cited, and many others, Boyd cannot, under the evidence in this case, be charged with negligence upon the theory of discovered peril, and appellant’s assignments of error relating to these matters will be overruled.

The other assignments of error pertain to the acts of Boyd which appellant alleges were negligence per se, being in violation of the provisions of Art. 827a, Sec. 10, of the Penal Code. They are, first, that Boyd was negligent in parking his car on the traveled portion of the highway -when it was possible to have moved it off to the side of that portion; secondly, that he was negligent in not leaving a space of at least fifteen feet in the clear on the traveled portion of the highway, and, thirdly, that he was negligent in parking his car and causing the truck to be so parked as that a clear view of the truck was not available for a distance of two hundred feet in each' direction. As we have suggested, it may be assumed that these acts of Boyd constituted negligence per se. They are specifically forbidden by the provisions of the statute and if these acts of Boyd could be said to be the proximate cause of the collision and resulting injury and damage to appellant, they were questions that should have been submitted to the jury. Negligence, however culpable, is not actionable, however, unless it is shown to be the proximate cause of the injury. Feille v. San Antonio Traction Co., 48 Tex.Civ. App. 541, 107 S.W. 367; Schoellkopf Saddlery Co. v. Crawley, Tex.Civ.App., 203 S.W. 1172; Kramer v. Stubblefield, Tex.Civ.App., 60 S.W.2d 1063.

Under his allegations appellant had the burden of proving that the collision between . his car and the' truck and trailer was due to the negligence alleged by him, that is, to Boyd’s negligence in parking his car on the highway or his negligence in not leaving a space of fifteen feet in the clear so that other traffic on the highway could pass, or the manner in which he caused the truck to be parked, or all of these alleged acts of negligence. Pace v. Moore et al., Tex.Civ.App., 210 S.W. 238. It was not definitely shown by the testimony how far Boyd had proceeded from the place where his car had been parked when appellant passed him, nor was it shown whether Allred had resumed his journey. The evidence does not show whether Allred’s truck was still standing or was moving at the time of the collision, nor, if moving, how far it had traveled from the place where it was parked on the highway to the place where the collision occurred. Both appellant and Boyd testified that Boyd’s car was in motion and had traveled some distance from the place where it had been parked when the collision occurred. Appellant testified that the collision occurred immediately after he passed Boyd’s car, but this does not show whether there was a space of twenty-five feet, one hundred feet or any other distance existing between the truck and Boyd’s car when the collision occurred. Allred was not called as a witness. Appellant, testifying in his own behalf, said the traveled portion of the highway was twenty-four feet in width and that he did not know where, with reference to the graded or used portion of the highway, his car hit the truck. Fie said he did not know whether the truck was out in the middle of the road or proceeding down the traveled portion of it on its proper side of the road, but he said that with the borrow pits no deeper than they were on the west side of the road and the conditions generally which existed there, if he had seen the truck he could have gone around it to the left, even if he had been put to the necessity of going over the -small ridge by the borrow pit and that he would have done so if he had seen the truck. He said furthermore that if he had seen the truck and had gone .around it to the left the collision would not have occurred. Testifying further on this phase of the case appellant said that if the truck or trailer had been equipped with lights or reflectors he could and would 'have seen them at least 150 feet before he reached the truck and trailer, and that he ■could and would have stopped his car within a space of twenty feet or slightly more. No other witness testified concerning the •question of whether the truck and trailer were equipped with lights or reflectors. Thus it will be seen that, according to appellant’s own testimony, the collision occurred because of one or the other of two ■.things and Boyd could not have been responsible for either of them: First, if the trailer was equipped with lights or reflectors appellant was guilty of contributory negligence in not seeing them because he •says he could have done so at least one hundred fifty feet before he reached the trailer. Secondly, if the truck and trailer ■were not equipped with lights or reflectors, their absence caused the collision because .appellant’s failure to observe the truck was due to the fact that there were no lights •or reflectors on the rear of it. It is difficult to see how Boyd could be charged with either of these conditions. According to .appellant’s own testimony, he could and would have turned to the left and passed the truck on that side if he had seen it. It would have been impossible for him to •do this if Boyd’s car had not traveled a .sufficient distance to create a space between his car and the truck of sufficient width for appellant to. pass.

In view Of what we have said and the testimony concerning the matters discussed, we think it is conclusive that appellant failed to make out a case of negligence upon which he was entitled to recover against appellees. Conceding that •Boyd was negligent in parking his car on the highway in the manner in which it was parked and that he was negligent in not leaving an open space of at least fifteen feet for the passage of other traffic, and in •causing the truck to be parked under conditions where a clear view of it was not .available for a distance of two hundred feet, still the testimony adduced by appellant shows clearly that these acts of negligence were not the proximate cause.of ap•¿pellant’s injury. Boyd’s car was not parked •when the collision occurred and, inde.ed, it ■is not shown that the truck was still standing on the highway. The conclusion is inescapable, we think, that the collision 'occurred either because of the absence of lights or reflectors on the truck or the negligent failure of appellant to do that which he said he-could and would have done if the truck had been equipped with lights or reflectors, that is, discover them at least 150 feet before he reached the truck and either have stopped his car, as he said he could have done, or passed around thé truck to the left and avoided the collision as he also said he could and would have done, if he had seen the truck.

These considerations lead us inevitably to the conclusion that appellant failed to make out a case against Boyd or to establish by the evidence the essential elements of the acts of negligence pleaded by him, and the court below, therefore, did not err in giving to the jury a peremptory instruction to return a verdict in favor of the appellees.

The judgment will be affirmed.


author: BOND, Chief Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. EDWARDS.
    No. 12939.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 7, 1940.

      Touchstone, Wight, Gormley & Touchstone, of Dallas, for plaintiff in error.
    John B. Poindexter, of Dallas, for defendant in error.
   BOND, Chief Justice.

This is a workmen’s compensation case. The Industrial Accident Board denied the claim of defendant in error, W. H. Edwards, for compensation; on findings of the jury, the district court rendered judgment in his favor against plaintiff in error for $3,425.55, for partial .incapacity.

The policy of insurance was issued by plaintiff in error to Carter B. White. Edwards, an employe of White, received his alleged injuries while painting a two-story house. The contention is, that his right kidney was torn from its anchorage, causing it to move, or what is sometimes termed “floating kidney,” resulting in severe pain and physical disorder. The gravamen of plaintiff in error’s complaint on appeal is the insufficiency of evidence to sustain liability.

Edwards sustained no visible injury to his body. The theory upon which he claims ' disability is based upon the kidney displacement. He testified, in effect, that he was on the lower section of an extension ladder, about 10 feet from the ground, pushing or lifting the upper section, to make the ladder sufficiently long to reach the gable of the house which he was, by his employer, directed to paint; and that, while thus engaged, the ladder moved or gave way at the bottom — “settled down on the side of the house,” as he termed it. After fastening or locking the two sections together, he climbed down the ladder to the ground, where he and Mr. White put it in proper place; and testified that, while on the ground, he “felt dizzy and his back began to hurt.” However, he again ascended the ladder, finished the painting of the house, and worked about the premises the rest of the day, without expressing complaint to anyone of injury.

The alleged ladder incident occurred on May 28, 1937, and in the following August, he went to see Mr. White relative to his injury; whereupon, Mr. White sent him to the Traders & General Insurance Company (a company wholly disconnected with the transaction), and the agents of that company referred him, for examination, to a Dr. Glass who, according to Edwards’ testimony, diagnosed his troubles as appendicitis, or kidney disorder, and recommended an operation. Thereafter, Edwards says, he was directed to a Dr. Webb, who also made a physical examination of him and diagnosed his troubles as a kidney disorder. 'Neither Dr. Webb nor Dr. Glass gave testimony.

On September 9, 1937, Edwards was examined by Dr. Cowart and, on his testimony, the causal connection between the floating kidney and the ladder incident, as related by Edwards, is the basis for the judgment. Perforce of plaintiff’s pleadings, ' he was burdened with the duty of proving the causal connection of the floating kidney and its attending consequences, with the alleged ladder incident.

We repeat, there was no visible injury; no complaint of injury at the time of the alleged accident; no strain of muscles or ligaments from adjusting the ladder; no pain or physical disorder was experienced while on the ladder, and no recourse to a physician until months afterward. Edwards continued to work as a painter, for other employers, at intervals after the ladder incident, until time of trial.

Dr. Cowart testified that, on September 9, 1937, he discovered a “mass pushed down,” movable, with his hand's a distance of about six inches up and down Edwards’ back, discernible through the muscles, flesh and tissues of his back, which he diagnosed as “floating kidney.” He further testified that he could not tell the cause of such abnormality; that a considerable number of people possess this variety of kidneys, and that such condition may result from many causes; that it is often congenital; or may be caused by intra-abdominal strain.' Moreover, he testified that a floating kidney causes no pain unless, forsooth, it presses upon or kinks the ureter, thus obstructing flow from the duct or gland. True, Dr. Cowart testified, over objection, that, in his opinion, from what Edwards told him in conjunction with the physical examination, the floating kidney and attendant pain were the result of the ladder accident; but, he said further, “from my physical findings, I do not know.”

Then he answers the question: “Assuming, Doctor, that a person should be standing about midway on the first section of an extension ladder, holding and pushing the upper section up above his head with his two hands, in this position (indicating), with the upper part of the ladder away from the house, and the ladder should come loose at the bottom and turn sideways; and, assuming that person is trying — straining and exerting to hold that upper section of the ladder in an upright position and keep it from falling to one side: Is it — in your opinion, is it probable for a person to cause a kidney, by reason of that strain, to be displaced downward?” Answer: “Yes, yes, that would be possible if the weight was added, or if the man got in sufficient strain. * * * yes, it would be possible. In others words, it is a question of increased intra-abdominal pressure — that is, pressure inside. * * * ”

Question: “Now, Doctor, in your opinion, is that the cause of Mr. Edwards’ trouble ? * * * ” Answer: “My opinion * * * is — from my physical findings — I don’t know.”

It is evident, the testimony adduced does not show that the kidney displacement and the pain and suffering incident thereto were the natural result of the alleged ladder incident; being as consistent with the hypothesis that the employe’s disability was the result of a congenital “floating kidney”, as with the hypothesis that it was the natural result of the accident. The extent of the probative effect of it is, that the kidney displacement might have been, and within the realm of possibility was, caused by the turning of the ladder; and, of equal effect, that it was congenital, or the result of other causes. There is, therefore, no evidence supporting the inference that the kidney displacement, its accompanying pain, and Edwards’ disability, were the result of the accident, and more probably correct than other possible inferences. Such being the case, the jury would not be warranted in making an arbitrary choice. Our appraisal of the evidence convinces us that there is no valid conclusion expressive of Edwards’ condition, as being the result of the ladder occurrence. Obviously, the purported hypothetical question propounded to Dr. Cowart does not follow the evidence adduced; his answer merely reflects a possibility, based upon speculation and conjecture dehors the record. There is no evidence that Edwards suffered a strain or unusual discomfort in raising the ladder.

The burden of proof being on defendant in error to show that his alleged injuries were caused by the accident, it was not enough to show that his condition might have, or could have, resulted from the ladder occurrence, especially so, when the evidence is uncontroverted that Edwards’ condition might be the natural result of other causes. The evidence adduced has not the probative force necessary to show that the disabilities of Edwards were the result of his lifting a section of ladder in performance of his employment, any more than that it is congenital, or the result of other causes. Gulf, C. & S. F. Ry. Co. v. Young, Tex.Civ.App., 284 S.W. 664; Texas Pac. Fidelity & Surety Co. et al. v. Hall, Tex.Civ.App., 101 S.W.2d 1050. Therefore, the jury could not speculate as to whether Edwards sustained an injury, and conjecture whether or not his alleged physical disability was caused by injury, or congenital floating kidney. The assignments challenging the sufficiency of the evidence are sustained, requiring a reversal of the cause. There are many assignments based on errors of the trial court in admission and rejection of testimony, which, in all probability, will not occur on another trial; they are overruled.

Judgment of the court below is reversed and cause remanded.

Reversed and remanded.


author: FUNDERBURK, Justice.

text:
    GARZA et al. v. RINGOLD et al.
    No. 2104.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 20, 1940.
    Rehearing Denied Jan. 17, 1941.
    Conner & Conner, of Eastland, and L. R. Pearson and Beverly S. Dudley, both of Ranger, for appellants.
    Frank Sparks, of Eastland, and L. H. Flewellen, of Ranger, for appellees.
   FUNDERBURK, Justice.

The Ranger Independent School District brought this suit against A. E. Garza and wife, Louise Garza, E. A. Ringold, Frank Sparks, and John Hassen for recovery of taxes against said Garza and wife- due on Lot 7 in Block 19, of the original town-site of Ranger, Texas, and for foreclosure against all said defendants of a tax lien upon said property. The City of Ranger, County of Eastland and State of Texas were impleaded as nominal defendants (also referred to as interveners) by reason of “their claims for taxes due them”' upon the same property. With particular reference to the defendants E. A. Ringold,. Frank Sparks and John Hassen it was alleged that “said defendants do, af the time of the filing of this petition, own and claim an interest in the real estate or lands and lots subject to taxation as hereinafter set out”; that is, the same property above mentioned.

The State of Texas, the County of East-land and the City of Ranger each set up its claim for taxes and for foreclosure of its tax lien. The defendant E. A. Ringold by an alternative plea in cross-action sought to recover against A. E. Garza for a debt and foreclosure of a vendor’s lien upon the same property.

In a trial by jury a single issue was submitted, the verdict whereon was to the effect that the property in question was of the reasonable cash market value of $1,950-In addition the court found that A. E-Garza (his wife being acquitted of liability on account of coverture) was liable for taxes, plus interest on said property as follows: (1) To Ranger Independent School District $615.30; (2) To the City of Ranger, $1,193.78; (3) To the State of Texas and County of Eastland, $1,565.21. The award of the recovery of said sums was decreed to each of said parties with foreclosure of tax liens. E. A. Ringold was awarded recovery against A. E. Garza of the sum of $1,773.71, with interest, and foreclosure of vendor’s lien, subject, however, to the foreclosure decreed in favor of the State and said other municipalities-

The judgment, in part, recites: “It appearing to the court that the purchaser under the sale herein ordered in favor of the plaintiff and interveners, tax units, would acquire such property subject to-redemption from such sale and also a stay of writ of possession therefor for two-years after the date of such sale as provided by chapter 10, title 122 of Revised Civil Statutes of State of Texas, Vernon’s Ann.Civ.St. art. 7319 et seq., relating to the collection of delinquent taxes; and it further appearing to the court that the purchaser under the sale herein ordered in favor of E. A. Ringold would acquire such property subject to the decree herein rendered in favor of plaintiff and interveners, but free from stay of writ of possession or right of redemption from such sale; it is ordered that if the respective judgments herein rendered shall not have been satisfied within twenty days from date of entry hereof, upon application of any party entitled thereto, the clerk of this court shall issue an order of sale directing the sheriff •or any constable of Eastland County, Texas, to seize and sell the land and premises aforesaid as under execution and as hereinafter set forth.”

The manner of sale thus referred to as thereinafter set forth was that the officer making the sale should first offer such property for sale subject to the judgment and decree in favor of the State and the other municipalities, together with the respective rights and remedies thereunder. As to the sale thus decreed it was provided that the proceeds should be applied first to the liquidation of the judgment in favor of E. A. Ringold against A. E. Garza, the balance, if any, to be paid to defendant A. E. Garza. It was provided that the purchaser at such sale should have writ of possession for the property after the expiration of 20 days.

It was next ordered that the officer executing such order of sale should thereupon offer the property for sale subject to stay of writ of possession and right of redemption as provided under chapter 10, title 122 of the Revised Civil Statutes of Texas, etc. As to such second sale, it was provided that the proceeds should be applied to the liquidation and payment pro rata to the several taxing units to the extent of the amount of judgment rendered in favor of each, respectively, with interest and costs. It was ordered that the officer making such sale should in no event sell such property for a less sum than $1,950, adjudged as the value thereof under the verdict of the jury, and recited as being a lessor amount than the aggregate amount of taxes due to the State and other municipalities. It was provided that' should such property be sold for $1,950 or more, but less than the full amount of taxes due, that the proceeds should be prorated among the several taxing units in proportion to the amounts awarded each. It was further provided that should the proceeds of such second sale exceed the total amount of taxes due, the excess should be paid to E. A. Ringold and should the proceeds of both such sales be more than sufficient to pay the claims of all parties, the excess should be paid the defendant A. E. Garza.

After the court had overruled their motions for a new trial, the Ranger Independent School District, the State of Texas and County of Eastland, the City of Ranger and A. E. Garza and wife, Louise Garza, appealed.

Appellants A. E. Garza and wife appealed without supersedeas. As to the other appellants, the judgment was superseded only so far as the law attached that effect to their appeals. It may be granted that the judgment insofar as it affected the State of Texas and said municipalities was superseded. In our opinion, the judgment as between E. A. Ringold and A. E. Garza and wife was not superseded.

The question for decision may be stated thus: Is the judgment in decreeing the first sale, considered in the light of the other provisions of the judgment, unwarranted under the pleadings, and prejudicial to the State of Texas and County of Eastland and to the said Ranger Independent School District and the City of Ranger, or either of them?

From the pleadings, the verdict of the jury supplemented by the findings of the court in no way challenged, it is apparent, we think, that the first sale ordered was not in its real nature a sale of the land, but at most a sale of A. E. Garza’s right of redemption which continued two years from the date of the sale under foreclosure decreed in favor of the State and said municipalities, together with the right of possession and use of the property for such time. It is apparent that with sale decreed of property of the value of $1,950 to pay judgments aggregating at least $3,-374.29, E. A. Ringold, the ■ junior lienor, would be entirely‘deprived of any security, unless he was substituted to the right of redemption, and the right of possession and occupancy of the land during the two years’ time in which the law would not ■ permit the State or said municipalities to have possession of such land, or to own same discharged of the right of redemption. For the court, in effect, to award to Ringold such' right' of redemption and two years’ possession and occupancy of the property, thus substituting Ringold to the rights of Garza, could, so far as we see, in no way prejudice the other appellants. The effect of the judgment was to award to the State and said other municipalities all the relief to which they were entitled in-any event, and to award to Ringold only the rights of Garza in the property, which, under the law, could in no event inure to said other appellants.

The provisions of the judgment complained of appear to us to afford a rather happy illustration of the. utility of equity to effect justice in a situation where the ordinary principles of law may be inadequate. The pleadings of the parties and the prayer for general equitable relief, we think, was full support for the judgment.

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


author: GRISSOM, Justice.

text:
    STANDARD PAVING CO. v. McCLINTON.
    No. 2078.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 20, 1940.
    Hiram G. Brown, of Mt. Pleasant, for appellant.
    Cook & Russell, of Mt. Pleasant, for ap-pellee.
   GRISSOM, Justice.

Plaintiff, Millard McClinton, obtained judgment against defendant, Standard Paving Company, for damages to plaintiff’s residence alleged to have been caused by blasting done by defendant in clearing stumps from the right of way for a highway adjacent to plaintiff’s residence. The defendant has appealed.

Defendant’s witness, a powder salesman for the Atlas Company, had testified that if a judgment was rendered against defendant it would not cost his company anything; in other words, that he had no interest in the case. On recross-examination by plaintiff’s counsel the following occurred:

“Q. Help you to hold your job, won’t it? A. My business is to sell.
“Q. And to help in these problems? A. I assist them with their blasting problems.
“Q. This is one of the problems, isn’t it? A. Yes, first one in six years.
“Q. Now, if your company is paying your expenses, everybody knows these companies carry insurance for things like that.”

The defendant objected tc> the remarks of plaintiff’s counsel, and to the asking of said question, because it was incompetent, irrelevant and immaterial and prejudicial to the rights of defendant; “that counsel knew when he asked such a question that any such reference to insurance or carrying of insurance was improper”; and defendant moved the court to declare a mistrial. The motion was overruled. Defendant excepted. The jury was instructed not to consider the question or remark of plaintiff’s counsel.

We cannot agree with the interpretation of this portion of the record by plaintiff. He contends the witness and attorney were talking of the Atlas Company. He says the question was not clear enough to convey to the jury the idea that appellant had insurance to protect it from a judgment in. this case. We think the reasonable conclusion from the quoted and connected testimony is that plaintiff’s counsel was talking about the defendant, and similar companies, when he made the statement in the presence of the jury that everybody knew that they carried insurance “for things like that.” We think it highly probable the jury so understood plaintiff’s remark. We find no justification for such remark. Under the circumstances, such action was error and reasonably calculated to injuriously affect defendant. Texas Co. v. Betterton, 126 Tex. 359, 88 S.W.2d 1039; Page v. Thomas, 123 Tex. 368, 71 S.W.2d 234; Coon v. Manley, Tex.Civ.App., 196 S.W. 606; Carter v. Walker, Tex.Civ.App., 165 S.W. 483, 487; Gordon Jones Const. Co. v. Lopez, Tex. Civ.App., 172 S.W. 987, 991; Lone Star Gas Co. v. Coates, Tex.Civ.App., 241 S.W. 1111, 1112; Acola v. Magnolia Pet. Co., Tex.Civ.App., 261 S.W. 384, 385; Texas Power & Light Co. v. Stone, Tex.Civ.App., 84 S.W.2d 738, 742, writ refused; Texas Coca-Cola Bottling Co. v. Lovejoy, Tex.Civ.App., 138 S.W.2d 254, 256, writ refused; 33 Tex.Jur. 279, 41 Tex.Jur. 745; Missouri P. Ry. Co. v. Mitchell, 72 Tex. 141, 10 S.W. 411; Levinski v. Cooper, Tex.Civ.App., 142 S.W. 959, 962.

The only issue in which the question of defendant’s negligence was attempted to be submitted to the jury was No. 2, reading as follows: “From a preponderance of the evidence, do you find that the defendant, Standard Paving Company was guilty of negligence in failing to use such ordinary care as cm ordinarily prudent person would use in like dr similar circumstances in the exploding of the explosive material?” (Italics ours.) Defendant objected to said issue, among other things, because it had the effect of telling the jury that defendant was negligent in exploding the explosive material; because it was an affirmative charge on the weight of the evidence and calculated to prejudice the rights of the defendant, and 'left the implication that the court believed defendant was negligent in exploding the explosives used within the distances it was exploded of plaintiff’s premises.

We think it is plain that the court by the use of the language employed told the jury the defendant failed to use ordinary care in exploding the explosive material, and then asked whether or not such act was negligence.. Plaintiff’s judgment necessarily rests upon the jury’s affirmative answer to said ‘ question. We think it is clearly erroneous and requires a reversal of the judgment. Galveston Elec. Co. v. Marangola, Tex.Com.App., 283 S.W. 777; A. J. Anderson Co. v. Reich, Tex.Com.App., 260 S.W. 162; St. Louis S. W. Ry. Co. v. Ristine, Tex.Com.App., 234 S.W. 1086; Tanner v. Drake, Tex.Civ.App., 47 S.W.2d 452; Besteoir v. Besteoir, Tex.Civ.App., 18 S.W.2d 829; Honea v. Arledge, 56 Tex.Civ.App. 296, 120 S.W. 508.

In connection with the discussion of issue No. 2, in view of another trial, we call attention to the fact that plaintiff’s petition failed to allege any specific act of negligence. It was excepted to by defendant for said reason and because the allegations of negligence were too general and vague to apprise the defendant of what facts the plaintiff would attempt to prove as constituting negligence, and insufficient to permit the defendant to prepare for a trial and contest of such issues. In the language of Judge Slatton in Kootsey v. Lewis, Tex.Civ.App., 126 S.W.2d 512, “It is enough to say that where negligence is pleaded generally and a special exception is directed thereto, the pleader should be required to be more specific, sufficient, at least, to apprise his adversary of the kind of proof he will be required to meet upon the trial.” Also see Missouri P. Ry. Co. v. Hennessey, 75 Tex. 155, 157, 12 S.W. 608; Garrow, McClaim & Garrow v. Allen, Tex.Civ.App., 260 S.W. 887; Poteet v. Blossom Oil & Cotton Co., 53 Tex.Civ.App. 187, 115 S.W. 289; Independent Eastern Torpedo Co. v. Carter, Tex.Civ. App., 131 S.W.2d 125; Lancaster v. Hall, Tex.Civ.App., 277 S.W. 776; Metzger v. Gambill, Tex.Civ.App., 37 S.W.2d 1077, writ refused.

In cases of this character it is necessary for a plaintiff to allege and prove negligence. Indian Territory Illuminating Oil. Co. v. Rainwater, Tex.Civ.App., 140 S.W.2d 491, 492. Proof of the happening of 'an accident constitutes no proof of negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 405, 105 S.W.2d 195; Phillips v. Citizens’ Nat. Bank, Tex.Com.App., 15 S.W.2d 550, 552; Davis v. Castile, Tex.Com.App., 257 S.W. 870, 871; Alley v. Texas Electric Co., Tex.Civ.App., 134 S.W.2d 762; Texas Hotel Co. v. Cosby, Tex.Civ.App., 131 S.W.2d 261.

The judgment is reversed and the cause remanded. ' ■


text:
    CALLISON v. STATE.
    No. 12947.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 14, 1940.
    Harvey W. Lindsay, of Dallas, for appellant.
    Andrew Patton, Dist. Atty., and E. G. Moseley and Harold McCracken, Asst. Dist. Attys., all of Dallas, for appellee.
   BOND, Chief Justice.

This suit was instituted in the name of the State of Texas by relator Robert L. Jones, Chief of Police of the City of Dallas, and prosecuted by the Honorable, Andrew Patton, District Attorney of Dallas County, against W. E. Callison, for the purpose of condemning, confiscating and destroying certain property belonging to Callison, claimed to be gambling .paraphernalia and seized by the Chief óf Police. The suit was brought under and by virtue of Arts. 636, 637 and 638 of the Penal Code of the State of Texas, Vernon’s Ann.P.C. arts. 636-638. The defendant sought return of the property on the ground, (1) that it was not of that character denominated and inhibited by statute as gaming tables, devices and other equipment, and (2) that it was not being used or exhibited for the purpose of gaming. On hearing before a district judge of Dallas County, the property was determined to be gaming devices per se, to-wit, punch ■ boards, prohibited by the Penal Code of the State of Texas as gaming devices, and the court ordered “50,000 punch boards , of various sizes, shapes and names, now in possession of the sheriff of Dallas County, Texas, owned and possessed by the defendant, destroyed.”

Our Penal Codes Art. 619, makes it punishable for any person, directly or through another, to keep or exhibit for the purpose of gaming, any bank or gaming device, whether named or not; Art. 623 (Id.) defines the word “exhibit” as intending “to signify the act of displaying the bank or game for the purpose of obtaining bettors”; Art. 636 (Id.) authorizes the sheriff or other peace officer to seize and take possession of all gaming devices, and to keep same pending a hearing before a court to show cause why such articles should not be destroyed; and Art. 637 provides procedure of trial to determine the character of the property seized as being gambling devices, and whether same "was being used for gaming purposes.” ■ This last Article expressly provides''that-“Property not of that character or not so used shall be ordered returned to the person entitled to possession of the same.” (Italicized for emphasis.)

Under the verbiage of the statute, a gambling device is determined, not only by its character but' by the purposes for which it is exhibited. It'is a game, having a keeper, dealer, or exhibitor. Its charac-, ter is based upon the principle of one against many — the keeper, dealer, or exhibitor against the bettors, directly or indirectly, and, to come under the condemnation, it must be used or exhibited; that is, displayed for the purpose of obtaining bettors. It is not essential that it be shown that such devices were actually in use at the time of seizure to bring them under the ■condemnation of the law, if it be shown, directly or otherwise, that they were exhibited or displayed for the purpose o.f gaming. The mere fact that a gaming device is found in possession of another does not authorize its confiscation, condemnation .and destruction, unless it be shown that the device is being used or exhibited in such ■manner as to signify the purpose of gaming.

The testimony in this case is undisputed. The defendant owned and had in his possession, locked in his warehouse, a quantity of materials and boards, commonly known as “punch boards”. The materials seized.were parts (not assembled)., of. punch boards, to make complete devices. The defendant was not using the boards for any purpose other than for sale, or. offer of, sale, to wholesale dealers in and out of Texas. He was a designer, of boards and novelties, and obtained such for the purpose of sale only. He was not- the keeper, dealer, or exhibitor of such devices for the purpose of obtaining bettors. On information that the boards were store,d.in defendant’s warehouse, the officer clothed himself with a search warrant, broke open the warehouse, and seized all materials designed to put up punch boards, as well as all completed boards, with printed matter and directions for their use.

There is no question that the punch boards were designed for gambling purposes, that they can be used for no other purpose, and that the materials seized were designed to make punch boards. A brief description will suffice to show that the boards were gaming devices, and that they could serve no useful or legitimate purpose; the boards contain possibly 200 to 300 holes, spreading over the faces, in which are sealed pieces of paper bearing numbers which correspond with exposed numbers appearing on the boards. In accordance with’ attached instructions, a consideration —ordinarily 5‡, 10‡, 25‡, etc. — is paid for the privilege of punching one of these holes, and, if the piece of paper punched out bears a number corresponding with a number on the board, a prize, either of money or merchandise, is awarded. The numbers punched from the holes control the amount of money or kind and value of merchandise won — if any. A card or sticker on the face of the board indicates the winning numbers and, unless the piece of paper punched from the hole bears a winning number, no prize is awarded by the keeper or exhibitor. Many of the concealed pieces of paper — and we might say, a great majority of them — do not bear, winning numbers; thus, the player gets no prize, and, of course, loses his money paid for the privilege of a chance to win against overwhelming odds. Obviously, the punch boards are lotteries; purely games of chance or luck. The numbers are hidden from view until punched from the board by players. No skill is exercised in the operation of the game, and the boards can be used for no purpose other than gaming; they were designed for that purpose only.

The aim of the statute, under which this proceeding is brought, is to prohibit the use or exhibition of all possible games that fall under the classification of lotteries or gambling devices. The character of the property seized, that is, its make-up, does not authorize its confiscation and destruction. The hoards were stored and locked in a warehouse, and were, in no manner, used or exhibited for the purpose of gaming or obtaining bettors.

In the enactment of the statutes under which this action was brought, the Legislature did not see fit to condemn all property that might be used for gaming, and authorize its destruction, unless it be shown that such property was designed for gaming and was, at the time of seizure, being used for the purpose of gaming. Thus, courts cannot extend the statute so that gaming devices may be confiscated and destroyed in the absence of evidence that same were being used or exhibited for gaming. That such was not defendant’s purpose, is evident. The property was so stored that it could not reasonably be said that it was exhibited, and, certainly, it was not being used for gaming.

The judgment of the court below is reversed, the order condemning, confiscating and destroying defendant’s property is set aside, and the cause is remanded with instructions that the property seized be ordered returned to defendant.

Reversed and remanded with instructions.


author: LESLIE, Chief Justice.

text:
    HUGHES v. AMERICAN NAT. INS. CO.
    No. 2674.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 13, 1940.
    Charles W. Hackett, of Texarkana, for appellant.

      William V. Brown, of Texarkana, for appellee.
   LESLIE, Chief Justice.

James Hughes instituted this suit against the American National Insurance Company to recover on an insurance policy issued to his wife. The trial was before the court and jury and at its conclusion a judgment in favor of the defendant was rendered on motion therefor notwithstanding the verdict. Hughes appeals. The parties will he referred to as in the trial court.

The pleadings and testimony disclose, in substance, that the defendant, on May 2, 1938, issued and delivered the policy to Mary Hughes on her application containing answers to certain questions as follows:

“Question No. 15. Does any physical or mental defect exist? Explain in full on reverse side. Answer: No.”
“Question No. 17. From what illness or •disease have you suffered during the past five years? State all of them on reverse side hereof, giving date of each. If none, so state. Answer: None.”

The application contained warranties and representations as follows: “I hereby apply for insurance for the amount herein stated and I declare and warrant that the answers to the above questions are complete, correct and true to the best of my knowledge and belief. I agree that said answers with this declaration shall form the basis of a contract of insurance between me and the American National Insurance Company and that any policy which may be granted in pursuance of this application shall be accepted subject to the terms, conditions and agreements in said policy.”

The policy contained the following provision: “This policy shall be void if the insured is not alive and in sound health on the date hereof” (May 2, 1938). The application contained the stipulation: “I further agree that no obligation * * * shall exist against said company on account of this application * * * unless said company shall issue a policy in pursuance hereof, and1 the same is delivered to me on the day it hears date, and unless on said date I am alive and in good health * * The defendant charged the breach of these warranties and representations.

In answer to special issues the jury found (1) that Mary Hughes was in sound health on the 2nd of May, 1938, and that the “illness of Mary Hughes during the month of April” did not cause or contribute to cause her death on May 17, 1938.

According to the undisputed testimony of Dr. G. U. Jamison who attended her during her last illness, she took sick April 5, 1938, at which time he was called to give her professional attention. He then treated her for “pelvic cellulitis”, an “inflammatory condition involving the contents of the pelvic cavity. That is, the * * * organs in the pelvic cavity, including the pelvic peritoneum. The peritoneum is a lining membrane of the abdominal and pelvic cavities. The two cavities are continuous and it is reflected over the organs contained in the abdomen; that is, the stomach and the intestines. That * * pelvic cellulitis is an inflammation of that covering over the organs, as well as the walls of the cavities.”

He further testified that from April 5, 1938, to April 24, he paid her three visits, during all of which time he was treating her for' said complaint. That approved medical treatment was administered, including “prescribed rest” and “ice bags applied to her lower abdomen.” That from April 5 to April 24 she was in bed and during such time she was under his treatment.

In the death certificate issued by this physician he stated that the “immediate cause of death” was intestinal obstruction and that the “contributing cause” was “probably adhesions from old pelvic cellulitis.” That the deceased was treated by him “in April, 1938, for pelvic cellulitis.” His testimony elucidated and explained the circumstances reflecting the tendency of such illness to produce locked bowels. He stated that such “adhesions * * * is a sort of growing together of the organs with connective tissues that forms as a result of the inflammatory exudate in the cavity. That is where two are inflamed and one touches the other they will grow together.” As stated in the death certificate, the doctor testified that the immediate cause of her death was intestinal obstruction, that a “contributing cause of her • death” was “probably adhesions from old pelvic cel-lulitis.” That the pelvic cellulitis “contributed to her death.”

The plaintiff testified himself that the deceased had locked bowels about April 5 or 9 when the doctor was called to treat her. That she died with that trouble May 18. The doctor was again called either the last of May 17, or in the early part of the 18th.

The application for this insurance was made April 12, 1938. This was about one week after the first attack of April 5 and also after the physician had attended and treated her at least once. The undisputed testimony is to the further effeGt that the insurance agent handling the transaction only had authority to receive the application for insurance, deliver the policy when issued at the home office, and collect weekly premiums. That such field agents or solicitors “had no authority to pass on applications or to issue policies of insurance.” The policy itself provided “agents * * * are not authorized and. have no power to make, modify or discharge contracts or to extend the time for payment of any premium, to waive any lapse or forfeiture or any of the company’s rights or requirements, or to bind the company by any pomise, written or oral, not contained in this policy.”

The materiality of the representations, the company’s reliance thereon, and its right to have correct information or true answers to the questions in the application, is so obvious that no discussion of the same is necessary. The insurer is entitled in such cases to the true history of the applicant’s prior condition of health, treatments, etc., incident to such illness, as well as the applicant’s condition of health at the time it undertakes to issue and deliver a policy. Gonzalez v. Alianza Hispano-Americana, Tex.Civ.App., 112 S.W.2d 802.

It is very certain that the soliciting agent had no authority to bind the company to make insurance contracts, and no agreement made by him without the company’s knowledge and consent, or fraud perpetrated by him on the company, would have the effect to modify the stipulation requiring that the insured be in good health and alive when the policy of insurance was delivered. Great Nat. Life Ins. Co. v. Hulme, 134 Tex. 539, 136 S.W.2d 602. The undisputed evidence establishes that the deceased was not in good health at the date of the purported delivery of the policy (May 2, 1938). The testimony makes it appear definitely that the alleged policy of insurance was obtained by' fraud, and that it was, therefore, void from its inception and never effective or enforcible as a contract. Considering the testimony as a whole, reasonable minds cannot differ on these considerations.

The law applicable to the facts is stated and applied in numerous authorities, among them, American Nat. Ins. Co. v. Lawson, 133 Tex. 146, 127 S.W.2d 294; Great Nat. Life Ins. Co. v. Hulme, 134 Tex. 539, 136 S.W.2d 602; Gonzalez v. Alianza Hispano-Americana, Tex.Civ.App., 112 S.W.2d 802; First Texas Prudential Ins. Co. v. Pedigo, Tex.Com.App., 50 S.W.2d 1091; Indianapolis Life Ins. Co. v. Powell, 133 Tex. 547, 127 S.W.2d 172. These authorities are to the effect that a provision in a life insurance policy that it shall not take effect unless the insured is in sound health at daté of policy is valid and enforcible whether or not the insured knew the condition of her health. They further hold that compliance with the stipulation in a life policy that no obligation is assumed by the insurer unless the insured be alive and in sound health at the date of the purported policy is a condition precedent to the policy’s becoming effective. This bears directly upon the facts and issues of the instant case, and an application to them of the rules of law stated in these authorities' sustains the action of the trial court in rendering a judgment notwithstanding the verdict.

The judgment of' the trial court is affirmed.


text:
    ANDERSON et ux. v. SCOTT.
    No. 2072.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 6, 1940.

      Clayton W. Feild, Jr., of Marshall, for appellants.
    Percy Woodard, of Marshall, for ap-pellee.
   LESLIE, Chief Justice.

This was a suit in trespass to try title. The defendant entered a general demur--rer, general denial, plea of not guilty, etc. The trial resulted in a judgment in favor of the defendant that plaintiffs take nothing, etc. The plaintiffs appeal by affidavit of inability to pay costs. . Neither litigant has briefed the case in .this court, and the appeal is therefore dismissed on the authority of Haynes v. Radford Groc. Co., 118 Tex. 277, 14 S.W.2d 811. It is so ordered.


author: GRAVES, Justice.

text:
    UNITED EMPLOYERS CASUALTY CO. v. BEZDEK.
    No. 11173.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 19, 1940.
    Rehearing Denied Jan. 16, 1941.

      E. A. Simpson, of Amarillo, and Will R. Saunders, of Dallas (W. E. Johnson, of Dallas, of counsel), for appellant.
    Fitzpatrick & Wells, of Houston, for appellee.
   GRAVES, Justice.

This appeal — in a compensation case — is from a $6,118.05 judgment against the appellant and in favor of the appellee, entered by the 10th District Court of Galveston County, both in response to a jury’s verdict on special issues, submitted and upon independent 'findings of the court itself from the evidence, as for total, permanent disability resulting to the appellee from an injury received by him on May 24, 1939, in Galveston County, Texas, while in the course of his employment as an oil well worker for Glenn H. McCarthy, Inc., for which the appellant was the compensation insurer.

The special issues, together with the jury’s answers thereto, were as follows:

“Special Issue No. 1. Do you find from a preponderance of the evidence that cross-plaintiff, Joe Bezdek, on or about the 24th day of May, 1939, was employed by Glenn H. McCarthy, Inc., in drilling an oil well in Galveston County, Texas?
“Answer ‘Yes’ or ‘No’, as you find the facts to be.
“Special Issue No. 2. Do you find from a preponderance of the evidence that on the date in question the United Employers Casualty Company was carrying a valid policy of Workmen’s Compensation Insurance for the benefit of Joe Bezdek as an employee, if he was such employee, of Glenn H. McCarthy, Inc., to compensate him in the event of personal injury, if any, which he might sustain while employed by Glenn H. McCarthy, Inc., in drilling an oil well in Galveston County, Texas, if he was so employed?
“Answer ‘Yes’ or ‘No’, as you find the facts to be.
“Special Issue No. 3. Do you find from a preponderance of the evidence that on the date in question Joe Bezdek in the course of his employment in drilling an oil well in Galveston County, Texas, if he was so employed, received personal injuries?
“In this connection you are instructed that the term ‘Personal Injuries’, as used above, means damage or harm to the physical structure of the body and such disease or infection as naturally result therefrom.
“Answer ‘Yes’ or ‘No’, as you find the facts to be.
“Special Issue No. 4. Do you find from a preponderance of the evidence that such injury, if any, totally incapacitated Joe Bezdek to labor?
“In this connection you are instructed that the term ‘totally incapacitated’, as used above, means that the injured man, if injured, is disqualified from performing the usual tasks of a workman in such way as to enable him to procure and retain employment at ordinary work. The term does not imply an absolute disability to perform any kind of labor, but means disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment.
“You will answer ‘Yes’ or ‘No’, as you find the facts to be.
“Special Issue No. 5. Do you find from a preponderance of the evidence that the result of his injuries, if any, is permanent?
“In this connection, you are instructed that the term ‘permanent’ means that such results, if any, will continue for the rest of his life.
“You will answer ‘Yes’ or 'No’, as you find the facts to be.
“Special Issue No. 6. If you have answered Yes to Special Issue No. 4 do not answer this issue, but if you have answered No to No. 4, then answer'this issue.
“Do you find from a preponderance of the evidence that such injury, if any, partially incapacitated Joe Bezdek from labor?
“In this connection you are instructed that the term ‘partially incapacitated’, as used above, means that the man is able to perform only a part of his regular labor and that his earning capacity has been reduced partially but substantially.
“Answer by giving the per cent of incapacity or by No, as you find the facts to be.
“Special Issue No. 7. If you have answered No to Special Issue No. 6, do not answer this issue, but if you have answered by giving per cent of disability, then answer this issue.
“How long will the partial disability, if any, continue?
“Answer by giving the number of weeks, if any.
“Special Issue No. 8. If you have answered Yes to Special Issue No. 3, then answer this issue, otherwise do not answer.
“From a preponderance of the evidence what do you find to be the average weekly wage of Joe Bezdek at the time of his injury, if any? You multiply the average daily wage as found by a preponderance of the evidence by 300 and divide by 52.
“You will answer by stating the amount in dollars and cents.
“Special Issue No. 9. If you have answered Yes to Special Issues 4 and 5, answer this issue, but if you have answered No to either No. 4 or 5, do not answer this issue.
“Do you find from a preponderance of the evidence that manifest hardship and injustice would result if a lump sum settlement of existing liability, if any, be not made?
“Answer ‘Yes’ or ‘No’, as you find the facts to be.
“Special Issue No. 10. If you have answered ‘Yes’ to Special Issue No. 9, answer this issue, but if you have answered No to Special Issue No. 9, do not answer this issue.
“What do you find from a- preponderance of the evidence is the present value of the sum of money due to Joe Bezdek, if any, if paid at this time instead of in weekly payments ?
“Answer by stating the amount in dollars and cents.
“Special Issue No. 11. From a preponderance of the evidence, how many weekly payments, if any, are now past due to Joe Bezdek, the cross-plaintiff?
“You will answer by giving the number of weekly payments, if any, as you find the facts to be.
“Answers.
“To each of the first five special issues the jury answered ‘Yes’.
“No answer was made to issues Six and Seven.
“To Special Issue No. Eight the answer was $34.61.
“To Special Issue No. 9 the jury answered ‘Yes’.
“To Special Issue No. 10, the jury answered, $7,280.00.
“The jury did not answer Special Issue No. 11.
“Whereupon in open court the cross-plaintiff filed a remittitur to reduce the amount of recovery by a lawful discount.”

The decree recited that the total so awarded was for $20 per week for 401 weeks of compensation for total permanent disability, reduced to a lump sum; that the appellant had theretofore paid 37 weekly installments of compensation, totalling $740; that under the verdict there was then due appellee $343 of weekly .payments, which, discounted at 6%, amounted to the sum of $5,692.32, which, plus the sum of $425.73, made up the final total of $6,118.05, it being apportioned two-thirds to the ap-pellee, and one-third to his attorneys.

Inveighing here against the decree so adverse to it, the appellant makes, in substance, these four contentions:

(1) The trial court reversibly erred in admitting the testimony of Dr. L. B. Cor-bett, which was wholly by deposition, in these three particulars: (a) “That based on his interpretation of purported X-ray pictures he had taken of appellee, which were not attached to his deposition”; (b) “That permitting him to express an opinion concerning the physical condition of appel-lee, when it appeared that he examined him merely to ascertain his physical condition and not for treatment, and did not treat him”; (c) “that giving his version with reference to what the X-ray pictures of appellee showed.”

(2) The trial court erred in submitting the issue of partial incapacity of the ap-pellee conditionally, the appellant having been entitled to an unconditional submission of that issue, irrespective of how any other issue had been answered. •

(3) The court further erred in submitting such partial incapacity “in that Special Issue, No. 6, relating thereto, inquired therein as to whether or not any partial incapacity existed, and also the further inquiry as to what the percentage thereof was,, if any”.

(4) The burden of proof having been upon appellee to establish the affirmative of the issues submitted, the court erred in preceding the special issues with the general declaration that the jury should answer them “from a preponderance of the evidence, as you find the facts to be”, then defining “preponderance of the evidence” to mean “the greater weight and degree of credible testimony”, and concluding with the direction that, “each of said issues should be answered yes or no, as'you find the facts to be”; because said instructions “had the effect of misleading the jury on the burden of proof, on each of the issües submitted, and left the impression with the jury that in order for them to answer any of the issues submitted from a defensive standpoint, such answers would have to be supported by a preponderance of the evidence.” '

Disposing of these presentments seriatim, it is concluded:

(1)-The several objections ‘to, these three specified portions of Dr. Corbett’s testimony were, in substance, (a) “it did not appear that by education, training, or otherwise, said Doctor was qualified to .take, read, and interpret X-ray pictures correctly”; (b) “no predicate, had been laid for the expression of. his opinion, hence an opinion based in part upon the subjective symptoms of appellee should not have been permitted”; (c) “it was not shown that an X-ray picture of the appellee in the medical and legal sense of that term was actually ever made.”

• It may be that technical error inhered in some of these challenged'.rulings, but if so, it is’concluded that.the record otherwise shows no prejudice to have resulted therefrom, especially- i'n that the same evidence was elicited from other witnesses who were, without &"doubt, shown to be qualified to give it, hence any professional opinions upon the same thing from; Dr. Corbett that may have been admitted were merely cumulative anyway, so were harmless. 19 Tex.Jur. par. 46, bottom page 71, footnote.17, and cited authorities.

Moreover, appellant clearly errs in these attacks in so far as they question the qualifications of Dr. Corbett to give his opinion as an expert, either in answer to hypothetical questions or upon his own examinations of the appellee, upon his purely objective symptoms; this for the reason that, under the testimony, the doctor was clearly qualified as such an expert, wherefore such of his testimony as was bas.ed upon his general examination as a trained physician, and surgeon was clearly admissible, and there is nothing in this record to show just what part of the criticised testimony was so based — that is, on purely objective symptoms — and what may have been based upon what the appellee and others told him, or purely subjective symptoms. This situation would, therefore, apparently bring this cause under the principle applied in Wininger v. Security Mutual Cas. Co., Tex.Civ.App., 120 S.W.2d 614, which holding, in turn, was bottomed upon Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170.

. It .was' shown that Dr. Corbett took the full prescribed college course in medicine, was a member of the Texas State Medical Society, had served as interne in the Memorial Hospital in Houston for one year, and had. practiced his profession of a physician and surgeon in the City of Houston for 15 years; these facts plainly qualified him for the role of an expert medical witness, whose opinions were receivable as such, especially since appellant offered nothing whatever to the contrary; indeed,' presumably at leást, the learned trial court, under the testimony referred to, took judicial cognizance of the Medical Practice Acts, both civil and criminal, of Texas, under which Dr. Corbett could not have so practiced his profession without the qualifications therein prescribed; see ;Vernon’s. Texas Annotated Civil Statutes, Arts. 4495 to 4512, inclusive, and Vernon’s Annotated Penal Code of Texas, Chapter 6, Medicine, Arts. 739 to 745, inclusive.

In'these circumstances, added to the undisputed fact that -Dr. Corbett never undertook to take any X-ray pictures himself of the appellee, -nor were any X-ray pictures or.platesr-offered in evidence in connection with any of his testimony, such authorities (cited by appellants) as Smith v. State, Tex.Cr.App., 99 S.W. 100; Republic Underwriters v. Lewis, Tex.Civ.App., 106 S.W.2d 1113; Texas Employers’ Ins. Ass’n v. Wallace, Tex.Civ.App., 70 S.W.2d 832; and Kansas City, M. & O. R. Co. v. Swift, Tex.Civ.App., 204 S.W. 135, were not based upon analogous facts to those here; that is, no X-ray photographs wefe offered in this instance, Dr. Corbett was so shown to be a thoroughly qualified medical witness, and' this testimony was not, like that in many of appellant’s cited cases, limited to that of medical experts, but was far from it. Indeed, entirely independently of any testimony of Dr. Corbett upon either the extent of the appellee’s injuries, or the probable duration thereof, or of the resulting incapacity therefrom, there was ample admissible testimony undisputedly presented from several lay-witnesses, who sustained • such intimate relations with appel-lee as to make it clearly receivable, to fully sustain if not require the verdict the jury rendered, on all those features; wherefore, in any event, Dr. Corbett’s opinion testimony — whether violative of the strict rule some of appellant’s invoked authorities pronounce against receipt of a medical expert’s opinion, based partly upon the subjective symptoms of an allegedly injured person— was only cumulative anyway, hence does not call for a reversal.

The appellee’s own testimony, together with that of a number of other lay witnesses, all of which was undisputed in any respect, was, standing alone, amply sufficient to support the jury’s findings, both upon the nature and extent of his injuries, his condition at the time of the trial, and that he was at that time totally and permanently incapacitated, within the meaning of the definitions of those terms, as given in the court’s charge; it is unnecessary to reiterate, or even to make a résumé of that testimony, since the quoted findings of the jury fully reflect the issues it'was material upon; in the given circumstances its admissibility is supported by these authorities: Texas Employers’ Ins. Ass’n v. Scott, Tex.Civ.App., 46 S.W.2d 348; Texas Employers’ Ins. Ass’n v. Burnett, Tex.Civ.App., 52 S.W.2d 771; Petroleum Casualty Co. v. Bristow, Tex.Civ.App., 35 S.W.2d 246; Standard Accident Ins. Co. v. Williams, Tex.Civ.App., 4 S.W.2d 1023, 1026; Oilmen’s Recip. Ass’n v. Hayes, Tex.Civ.App., 295 S.W. 675.

No. (2). This proposition, based for authority upon Wright v. Traders & General Ins. Co, 132 Tex. 172, 123 S.W.2d 314, alone, is considered inept here, for these among other reasons: The holding in the Wright case upon which it was so rested, as correctly reflected in the cited report thereof in syllabi 1 to 5, inclusive, at page 314 of 123 S.W.2d, was specifically applied only to a case wherein the pleadings and evidence raised ultimate issues of fact over both total and partial disability; whereas, no such situation exists here, in that there' was no issue of partial disability properly raised upon this trial by either party; the appellee sued for total incapacity alone and tendered proof upon that- only, declaring in effect that it existed at the time of this trial to .the exclusion of any other compensatory right in himself, except the monthly payments therefor that had accrued up to that date; the appellant, in turn, did not plead any partial incapacity as affecting the appellee, nor did it offer any proof nor request any submission, upon such a point, merely contenting itself with an objection to the court’s special issue No. 6, directing the jury not to answer as to-whether there had been partial incapacity if they had already found under issue No. 4 that total incapacity existed, on the mere assertion that it — whether or no — was entitled to a-positive and unconditional submission of whether or not there had been partial incapacity.

In these circumstances, under the latest holdings of our Supreme Court, if appellant desired tried out an issue as to-whether or not the appellee at the time of this trial was only suffering from partial incapacity, if any, it could and should have properly raised such an issue by pleading,, proof, and request for submission of an inquiry upon it, and not having done so in. any respect, the principle applied in its cited Wright case is inapplicable, and it waived that matter. Traders & General Ins. Co. v. Garry, Tex.Sup, 143 S.W.2d. 370; Wichita Falls & O. R. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79; Traders & General Ins. Co. v. Burns, Tex.Civ.App., 118 S.W.2d 391; Georgia Casualty Co. v. Ginn, Tex.Civ.App., 272 S.W. 601; Federal Surety Co. v. Scott, Tex.Civ.App., 22 S.W.2d 157.

Furthermore, the mere fact that Dr. Corbett answered a cross-interrogatory of appellant to the effect that the appellee: could then “do some form of work, but not hard physical labor”, did not, standing alone, raise any material and ultimate issue of fact in appellant’s favor over whether or not the appellee was then suffering from partial incapacity, in the circumstances otherwise existing; indeed, even if such an issue had been otherwise properly raised by pleading, sufficient proof, and request for its submission, that statement would not have supported partial incapacity anyway, under the court’s quoted definition of “totally incapacitated” in special issue No. 4, which was a correct one. Georgia Casualty Co. v. Ginn, Tex.Civ.App., 272 S.W. 601; Federal Surety Co. v. Scott, Tex.Civ.App., 22 S.W.2d 157.

Obviously, appellant’s subsidiary claim under No. (3), supra, that it had been also entitled to a further inquiry as to what percentage of partial incapacity existed, if any, falls with its principal one upon this feature, under the holding that no real issue of partial incapacity existed.

The (4th) and major onslaught upon the form of the issues submitted by the trial court, as quoted supra, is likewise thought not to square with the latest holding of the Supreme Court upon this identical situation; while appellant relies upon such cases as Federal Surety Co. v. Smith, Tex.Com.App., 41 S.W.2d 210; Gulf States Utilities Co. v. Moore, 129 Tex. 604, 106 S.W.2d 256; Federal Underwriters Exchange v. Rigsby, Tex.Civ.App., 114 S.W. 2d 354, our Supreme Court in the later one of Traders & General Ins. Co. v. Jenkins, Tex.Com.App., 141 S.W.2d 312, distinguishes them all on the facts from this cause, and, in applicable effect holds that the trial court’s framing of the special issues here was correct, did properly place the burden of proof upon this appellee to establish the affirmative of the issues submitted, and did not tend to confuse the jury in understanding where that burden lay.

No extended discussion of the differentiation made by the Supreme Court of the Jenkins case from those upon which appellant relies is called for, since those two lines of holdings are specifically and definitely declared and speak for themselves; suffice it to say, however, that the plain distinction between the form in which the issues in the Jenkins case (as well as here) were submitted — that is, in effect, in the language of this special issue No. 4: “Do you find from a preponderance of the evidence that such injury, if any, totally incapacitated Joe Bezdek to labor”, and that condemned in those prior holdings, to wit, “Was or was not the plaintiff totally disabled” — lies in the facts that the former cases, using both the positive and negative forms of inquiry, left their meaning in doubt, thereby confusing the jury over where the burden of proof lay on the inquiries ; whereas, that disjunctive form of combining both the positive and negative on the inquiry was discarded in the Jenkins case, as it also was in this case, and the positive form only of inquiry was substituted, which the Supreme Court' held completely cured the objections the appellant here appeals to.

In other words, it is clear that the learned trial court in submitting this cause to the jury on July 5, 1940, appears to have correctly applied the Supreme Court’s ruling, then just made, on June 19, 1940, in the Jenkins case, and to have submitted these issues in conformity thereto.

These conclusions require an affirmance of the challenged judgment; it will be so ordered.

Affirmed.


author: SMITH, Chief Justice.

text:
    TEXAS LIQUOR CONTROL BOARD v. GREEN.
    No. 10939.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 11, 1940.
    Rehearing Denied Jan. 15, 1941.

      Gerald C. Mann, M. C. Martin, W. Pirtle Watts, and Geo. W. Barcus, all of Austin, for appellant.
    John J. Pichinson, of Corpus Christi, for appellee.
   SMITH, Chief Justice.

Texas Liquor Control Board, through its Administrator, ordered cancellation of a liquor permit previously issued to Mrs. G. E. Green in Nueces County. Mrs. Green appealed from that order to the District Court, which rendered judgment nullifying the order of the Board, which has appealed to this Court.

The trial court rendered judgment upon the following findings of- fact and conclusions of law:

“Findings of Fact.
“I. On April 8, 1940, a hearing was set before the Texas Liquor Control Board on a complaint filed to cancel or suspend Package Store Permit No. 1163 owned by Mrs. G. E. Green, Permitee.
“II. That 9 affidavits consisting of 11 pages were offered in evidence and presented to the Administrator at the time of such hearing on behalf of the Per-mitee, Mrs. G. E. Green, the plaintiff herein; that the Administrator hearing such cause spent approximately two (2) minutes in the reading and consideration of such affidavits.
“HI. That the actual reasonable reading of the evidence offered by the Per-mitee at such hearing would take approximately ten (10) minutes.
“IV. That it was therefore a physical impossibility to properly read and examine the affidavits offered in evidence by the said Mrs. G. E. Green, Permitee, in the time devoted to such reading by the Administrator.
“V. That at the time of the hearing the Administrator failed to reasonably and properly read and examine the affidavits offered in evidence by the said Mrs. G. E. Green, Permitee.
“VI. That at the time of the hearing the Administrator arbitrarily failed to properly read and consider the affidavits offered in evidence.
“VII. That the Administrator of the Texas Liquor Control Board at the time of the hearing in question, without adequate determining principle, cancelled the Package Store Permit of the Permitee, Mrs. G. E. Green.
“Conclusions of Law.
“I. That the failure of the Administrator, Bert Ford,' to properly consider the affidavits and evidence presented to him at the time set for the hearing, was arbitrary and capricious.
“II. Due to such arbitrary and capricious action on the part of the Administrator, the hearing was not such as is contemplated by the Texas Liquor Control Act and the order of the said Bert Ford, Administrator for the Texas Liquor Control Board, cancelling the Package Store Permit No. 1163, should be in all things set aside and held for naught.”

Those findings of fact were timely prepared and filed by the trial judge upon the written request of appellant. They were brought up in a supplemental transcript upon appellee’s motion and after notice to appellant, who made no objection thereto. Appellant has not questioned those findings by assignment of error, proposition or otherwise, wheretore they become binding upon this Court, which is therefore without power to go behind them or revise or minimize their effect. The result .is that this Court is confronted with a conclusive adjudication that the Administrator’s order cancelling appellee’s permit was arbitrarily and capriciously made, and, that being the case, it was the duty of the trial court to set aside that order, as was done. King v. Falls County, Tex.Civ.App., 42 S.W.2d 481; Bradley v. Texas Liquor Control Board, Tex.Civ.App., 108 S.W.2d 300; Texas Liquor Control Board v. Floyd, Tex.Civ.App., 117 S.W.2d 530.

Taking the record as presented ■here, this Court has no alternative but to give effect to the positive and unchallenged findings of fact made by the trial court, which sustain the judgment.

Affirmed.