text:
    KIMMELL et al. v. TIPTON et al.
    No. 2025.
    Court of Civil Appeals of Texas. Eastland.
    May 31, 1940.
    Rehearing Denied June 28, 1940.

      Jack W. Frost, of Eastland, for appellants.
    Blantón & Blanton, of Albany, by Thomas L. Blanton, Sr., for appellees.
   GRISSOM, Justice.

Plaintiffs, Carrie Ella Tipton, joined pro forma by her husband, A. P. Tipton, by their third amended original petition, filed March 15, 1939, in lieu of their petitions theretofore filed in causes 16,779, 17,066, and 17,303, which causes had been consolidated under number 17,303, complained of Fannie J. Kimmell and her husband, Sam Kimmell, Josephine Tipton Latson and her husband, J. H. Latson, Jr., and the Tiptons’ minor children, Chesley, Hervey, Elbert and Leonard Tipton. Plaintiffs alleged that prior to the 12th day of January, 1931, Carrie Ella Tipton owned a certain section of land in Eastland County; that when Mrs. Tipton was a child she had convulsions ; that she had pneumonia three • times, and was sickly, and continued to be in bad health after her marriage; that she was troubled and apprehensive about a prospective serious operation; “that she then was greatly worried and was not possessed of sufficient will-power to resist and refuse to' comply with the wishes and demands made upon her by her father, and on January 12, 1931, upon the demand of her father, she was compelled through their importunities, . and her inability to resist their demands, to sign a trust deed which said C. J. O’Connor had prepared, conveying to her said father, John E. Chesley, as trustee, for her minor children, defendants herein, the aforesaid section of land * * * in trust for the use and benefit of her said minor children.”

That there was no consideration for said deed; that plaintiffs were “informed that the purpose of said deed was to protect plaintiffs’ said section of land * * * from being subjected to the payment of the notes they had given for the land near Scranton”; that the acknowledgment of Mrs. Tipton was not taken separately and apart from her husband, as stated in the acknowledgment to said deed; that John E: Chesley took possession of said land under said deed on January 12, 1931, and managed and controlled it until he died on January 25, 1932; that on September 13, 1932, an attempt was made to appoint Mrs. Kimmell (then Mrs. Pulley) as substitute trustee to take charge of said land; that John I. Chesley, Vida O’Connor, Fannie J. Pulley and C. J. O’Connor signed a document dated the 13th day of September, 1932, purporting to appoint said Fannie J. Pulley substitute trustee; that said instrument was acknowledged by said parties and recorded in the deed records of Eastland County; that said appointment of Mrs. Kimmell as substitute trustee was void and should be set aside and annulled because (1) said parties had no authority in law to appoint a substitute trustee; (2) the trust deed of January 12, 1931 (wherein Mrs. Tipton conveyed said property in trust to her father) was void and should be set aside and annulled because “at the time it was signed, the said Carrie Ella Tipton on January 12, 1931, did not possess sufficient mental capacity under the law to execute a lawful deed of conveyance, and she then was incapacitated from executing a lawful deed of conveyance ; that said fact was then known to the parties who attempted to appoint Mrs. Kimmell as substitute trustee”; (3) that said trust deed was void because Mrs. Tip-ton’s acknowledgment was not taken separately and apart from her husband; (4) that said trust deed, if -valid, did not authorize the appointment of a substitute trustee under the circumstances that existed at the time of the appointment of Mrs. Kim-mell; (5) that no authority was given to C. J. O’Connor to participate in the appointment of a substitute trustee'; (6) that Mrs. Kimmell did not have the right to vote to appoint herself substitute trustee; (7) that Mrs. Kimmell did not have the right to approve her own bond.

Plaintiffs further alleged that on March 29, 1933, Mrs. Tipton’s brother, John I. Chesley, made an affidavit charging her with being of unsound mind; that she was arrested, tried and, on April 25, 1933, adjudged to be of unsound mind, and a guardian appointed for her person and estate; that on April 6, 1936 Mrs. Tipton was adjudged to be of sound mind.

Plaintiffs further alleged that if said trust deed and the appointment of Mrs. Kimmell as substitute trustee both should be held to be valid, then Mrs. Kimmell should be removed (a) because she had forfeited her rights to act as such trustee, by failing to make a report of the condition of said estate on plaintiffs’ request, and (b) because she was not a suitable person to act as such trustee, being unfriendly to plaintiffs and their minor children; that the trust deed was void and should be set aside and annulled because on January 12, 1931, “when same was signed, the said Carrie Ella Tipton was of unsound mind and did not possess sufficient mental capacity to legally execute a deed of conveyance.”

Plaintiffs further sought to recover from Mrs. Kimmell $1,200, rents and revenues Mrs. Kimmell was alleged to have collected from said estate, and to have withheld from plaintiffs, and $7,000 damages for failure to lease said section of land for oil and gas development.

The pertinent provisions of the trust deed from Mrs. Tipton to her father are as' follows:

“That we, Carrie Ella Tipton, joined pro forma by her husband, A. P. Tipton, for and in consideration of the sum of Ten Dollars, and of the love and affection which we have for our children, including those living and those who may hereafter be born, have bargained, sold and conveyed, and by these present do bargain, sell and convey unto John E. Chesley, trustee, * * ⅜ for the sole use and benefit of said children, * * * (Then follows a description of the property.)
“To have and to hold the above described property unto the said John E. Chesley, trustee, and his successor, as hereinafter appointed, together with all and singular, the rights and appurtenances, thereto in any wise belonging and we do hereby bind ourselves, our heirs to warrant and forever defend, all and singular the said premises unto the said John E. Chesley and his successors, against every person whomsoever lawfully claiming or to claim the same, or any part thereof, for the purposes hereinafter mentioned:
“But should the said John E. Chesley fail or refuse to accept the said property under the term's .of this trust, or should he he prevented from accepting same because of death or his condition of health, then the title to the above described property shall pass to and vest in such person as may be designated and agreed upon by the majority of the following named persons to-wit: Carrie E. Tipton, Vida M. O’Connor, Fannie J. Pulley, John I. Ches-ley and Bernie McCrea, if all of said persons or living, but if they are not, then ¿y a * * * majority of those living at the time of such designation or appointment. Such appointment or designation of a substitute trustee hereunder by a majority of the above named persons shall be in writing and duly signed and acknowledged by each of said persons and filed for record in the office of the County Clerk of Eastland County, Texas, after which time the said substitute trustee shall become vested with the title to the above described property, with full power and authority to manage and control the same as hereinafter set forth for the purpose hereinafter mentioned:
“The purpose of this instrument is to create a trust and to convey the above described property to a trustee to be managed and controlled by said trustee for the sole use and benefit of all of the children of the said Carrie E. Tipton, or heirs of her body, and shall exist and be in full force and effect, and be held by said trustee or substitute trustee until the youngest of her said children shall have reached the age of twenty one years, and when the youngest of her said children shall have reached the age of twenty one years, then the above described property and the title thereto, shall become vested in each of the said children of the said Carrie E. Tipton, share and share alike, and shall be owned by them in fee simple.
“The said John E. Chesley, or his successors as trustee shall have full power and authority to manage and control the above property, including the right to lease the same for the purpose of having the same explored for oil or gas or other minerals, and under such terms as the said trustee or substitute trustee may see fit, and also the right to sell, mortgage or dispose of all of said property, or any part thereof, as the said trustee or substitute trustee may see fit for the benefit of the said children, and under such terms as the said trustee shall think fit and proper. . And the said trustee or substitute trustee as named herein shall have the right to receive all rents, revenues, profits or any other income whatsoever from the said property, and all royalties, if any, received from any of the leases executed by him covering the said property, and such trustee- or substitute trustee shall have the right to use, disburse * * * and pay out any or all of the rents, revenues or other income from such property, to any person, or persons, or in any way, that said trustee shall think to be to the best interest of all of said children, during .the entire life of this trust.”

The instrument thereafter provided that 'upon demand of any person interested in the welfare of the children “who are beneficiaries hereunder” the trustee, or substitute trustee, should make a written report showing the true condition of the estate; that not more than one report should be required in any one year; that if such trustee should fail to make such report, when so demanded, he should forfeit his right to act as trustee. The deed was signed and acknowledged by the plaintiffs.

The instrument appointing Mrs. Kim-mell (then Mrs. Pulley), as substitute trustee, on the 13th day of September, 1932, was signed and acknowledged by John I. Chesley, Vida M. O’Connor, and Fannie J. Pulley, with Mrs. O’Connor being joined therein by her husband.

The instrument appointing the substitute trustee recited the conveyance of the section of land by the plaintiffs to John E. Chesley, trustee; that John E. Ches-ley accepted the appointment, took charge of said property and held same as trustee until his death on the 25th day of January, 1932. It further recited:

“And, whereas, said trust deed provides that in case of the death of the said John E. Chesley, a majority of the following named persons, to-wit: Carrie E. Tipton, Vida M. O’Connor, Fannie F. Pulley, John I. Chesley and Bernie McCrea; shall designate and appoint a successor to the said John E. Chesley; and that the title to the above described property should pass to and vest in the said successor so appointed or designated:
“And, whereas, all of the above named persons were given notice, in person, to attend a meeting held for the purpose of electing, appointing or designating a successor to the said John E. Chesley to receive and have the title and possession of the said property as trustee, for the purpose mentioned in said original deed of conveyance; and said meeting was held in the City of Cisco, Eastland County, Texas, on this date; and it was agreed by a majority of those present that Fannie J. Pulley should be appointed, elected and designated successor to the said John E. Chesley ;
“Now, Therefore, _ we, the undersigned, being a majority of those named in the original deed above described, have and by these presents do elect, designate and appoint Fannie J. Pulley of the County of Eastland and State of Texas, as successor to the said John E. Chesley, deceased, and as substitute trustee under said original deed of trust or conveyance, and with full power and authority to do any and all things provided in said original deed which the said John E. Chesley could have done.”

It further provided that Mrs. Kimmell should execute a bond in the sum of $500. Said bond was executed and it was approved by the parties who appointed Mrs. Kimmell substitute trustee.

The minor defendants, acting through their duly appointed guardian ad litem, Hon. Jack W. Frost, filed their first amended original answer, which consisted, among other things, of a general demurrer, special exceptions and general denial. They further pleaded that plaintiffs’ cause of action was .barred by the four years’ statute of limitation.

The cause was submitted to a jury on special issués and'the jury found (1) that on January 12, 1931, at the time plaintiffs executed the trust deed to John E. Chesley, Mrs. Tipton was not capable of understanding the nature and effect of such instrument; (2) that Mrs. Tipton continued under such disability from “1930 until April 6, 1936”; (3) that the acknowledgment of Mrs. Tipton to the trust deed was taken in the presence and hearing of her husband; (4) that the execution of the trust deed by Mrs. Tipton was not procured by undue influence; (5) that the execution of the trust deed was not obtained by duress; (6) that Mrs. Kimmell could not have leased the “mineral -rights to the land * * for a cash bonus and an annual rental”; (8) that Mrs. Kimmell did not fail to furnish a report showing the true condition of the trust estate; (9) that Mrs. Kimmell had the proper regard and consideration for the interest and welfare of the minors.

Judgment was rendered on said verdict that Mrs. Tipton recover the title to and possession of the section of land as her separate property and estate; that the trust deed to John E. Chesley be canceled; that the appointment of Mrs. Kimmell as substitute trustee be annulled; that Mrs. Tipton’s title to said section of land be cleared and freed from all claims of the defendants, and she be granted her writ of possession. The judgment provided that plaintiffs take nothing on their claim for damages against Mrs. Kimmell. (Other provisions of the judgment are not here deemed material.) From said judgment, the minor defendants alone have appealed.

Appellants’ first assignment of error is “The court erred in overruling the motion of the minor defendants for an instructed verdict, timely presented before the court’s charge was read to the jury.” Some of appellants’ propositions thereunder are, in substance, (1) This being a suit to set aside a deed because of mental incapacity of Mrs. Tipton, and Mrs. Tip-ton having testified to the effect that she understood the nature and effect of the deed, such testimony was conclusive against her, and the trial court should have instructed a verdict for appellants; (2) plaintiffs’ witnesses having testified that Mrs. Tipton understood the nature and effect of the trust deed, such testimony concluded her rights in the premises, and the court should have instructed a verdict for appellants; (3) plaintiff having admitted her mental capacity at the time she executed the trust deed, and more than four years having elapsed since its execution prior to the institution of this suit, the court should have directed a verdict for appellants on their plea of the four years’ statute of limitation; (4) plaintiff having failed to offer any proof on the question of mental incapacity at the time of the execution of the trust deed abandoned such issue, and the other alleged grounds for cancellation, namely, duress, undue influence and defective acknowledgment, being precluded by the four years’ statute of limitation, the court should have directed a verdict for appellants; (6) no fraud, duress or undue influence having been pleaded or proved by plaintiffs, the certificate of the notary to the trust deed was conclusive of the facts therein stated.

Appellants’ second assignment of error is: “The court erred in overruling the motion of the minor defendants for a judgment non obstante veredicto, timely considered after due notice given.” The reasons assigned, in the propositions under this assignment, why the court erred in said action are, in the main, substantially the same as under the first assignment. 'Said assignments are attacked by appellees’ principally on the ground that they fail to stat? the reason such action of the court is deemed erroneous. There are many cases that support appellees’ contention; however, this court and the Supreme Court have held that such reason is not a requisite of an assignment of error. We are of the opinion that said assignments are sufficient. Clarendon Land Co. v. McClelland, 86 Tex. 179, 23 S.W. 1100, 22 L.R.A. 105; First National Bank v. Fuller, Tex.Civ.App., 191 S.W. 830, writ refused; 3 Tex.Jur. 847; Thraves v. Hooser, Tex.Com.App., 44 S.W.2d 916; Hardwicke v. Trinity Universal Ins. Co., Tex.Civ.App., 89 S.W.2d 500; Art. 1844, R.S.1936; Panhandle & S. F. Ry. Co. v. Burt, Tex.Civ.App., 71 S.W.2d 390; Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270; Brackenridge v. Claridge, 91 Tex. 527, 44 S.W. 819, 43 L.R.A. 593; Fuqua v. Pabst Brewing Co., 90 Tex 298, 38 S.W. 29, 35 L.R.A. 241.

We call attention to the following testimony of Mrs. Tipton with reference to her allegation and the jury’s finding that at the time she -executed the deed she was not capable of understanding its nature and effect.

"Q. Mrs. Tipton, if you had known that your father was not going to hold that deed temporarily I want you to state to the jury whether or not you would have signed it? * * * A. No.
“Q. Mrs. Tipton, if it had not been for what Mr. C. J. O’Connor told you and what your father, Mr. John E. Chesley, told you; tell the jury whether you would have signed that trust deed? A. No sir, I would not have signed it and I would have the land right now and would have had it leased by now, too, but it’s not leased now. * * * A. I talked to ⅞ Daddy abodt it, or he talked to me about it rather, him and O’Connor.
“Q. They had talked to you about making that trust deed before that day? A. Him and O’Connor had.
“Q. They both had talked to you about making this deed before that day? A. I think they did.
“Q. Do you know whether they did or not; whether they had talked to you about making this trust deed before that day or not? * * * A. I told you I don’t know.
“Q. While you were living at Moran, where did you live ? A. Where did I live ?
“Q. Yes? A. I lived in town.
“Q. Did you have a house in town? A. Why certainly.
“Q. At that time, did you run your household affairs and cook for your children and family? A. I did, but listen I had lived at Moran at different times; the first time I lived there I had some help.
“Q. I am talking about the time you were living there when you signed that deed. A. I did at the time when you are talking about.
“Q. You cooked the meals and took care of your household- affairs yourself? A. I did.
“Q. And you bought groceries for your family ? A. That is what I am doing now.
“Q. And went about all the regular duties that any woman keeping house would do ? A. Sure, I always do.
"Q. Did you have a car at that time? A. Yes, a Model A Ford.
“Q. And you drove your car around town and back and forth to Cisco? A. Certainly, when I got ready I did.
“Q. Now, when you executed this trust deed, Mrs. Tipton, you understood you were conveying this■ 640 acres of land to your father in trust for your children? A. Yes, but I wouldn’t have done that if O’Connor hadn’t butted in and been after me and told me I would lose both places and if O’Connor hadn’t done daddy that way—
“Q. I understand— A. I thought you would.
“Q. You understood that you were conveying it to your father in trust for your children? A. Yes, but I never did want to; I had to, I thought. Listen, what was mine is mine and I have as much right to it as they have to theirs.
“Q. I am not asking why you did it, lam— A. Well, I’m telling you; I think I have as much right to my stuff as you have to yours or O’Connor or Mrs. Kim-mell have to theirs and I wouldn’t take a dime that didn’t belong to me, but they just glory in getting something that don’t, belong to them.
“Q. I understand all that; but you did understand the purpose and nature of that trust, deed— * * *
“Q. You did understand, Mrs. Tipton, when you signed the trust deed, you were conveying the 640 acres, Section 471, to your father in trust for your children? A. Yes, after I was forced to do it; I have sense enough to know it.
“Q. Please just answer my question, Mrs. Tipton— A. That’s what I am doing.
“Q. Mr. O’Connor explained to you what it was for? A. Y es, and if it hadn’t been for him it wouldn’t have happened.
“Q. But he did explain it to you,? A. I said he did. * * *
“Q. What did he tell you? A. He just told me that if I didn’t sign it Ezzell would sue and take both places.
.“Q. What did he tell you about the effect of the deed? A. I don’t know.
“Q. Do you remember whether he told you what you were doing? A. He said I was deeding it to the children. * * *
“Q. Is it a fact, Mrs. Tipton, the real reason you are bringing this suit is that you are not satisfied with anyone being the trustee other than yourself ? A. I think I should have it, it is mine.
“Q. .That is the real reason for this lawsuit, isn’t it, Mrs. Tipton? A. How would you like for anyone to do you that way.
“Q. On September 13, 1932, Mrs. Tip-ton, at the time you say all of the family met at Mrs. Chesley’s house, at the time when Mrs. Kimmell was selected as trustee; you knew at that time, did you not, that you had executed this trust deed about a year and a half before that to your father as trustee for your children? A. Sure I knew it.
“Q. And you knew at that time that the deed gave the legal title to that property to a trustee for your children, didn’t you? A. No, I don’t know that I did.
“Q. You knew you had conveyed it to your father as trustee for your children? A. I knew Daddy was trustee and he treated me right and fair.
“Q. You knew you had conveyed it to your father as trustee, didn’t you? A. I told you I did. * * *
“Q. You made this trust deed, the one you are seeking here to set aside, you transferred this 640 acres to your children, or to your father in trust for the children? A. We made that after we bought 'that place, yes.
“Q. And before the deed or rescission or cancellation was made? A. I reckon so, but I couldn’t tell you for sure, I am telling you just what I know about it.
“Q. What was the purpose of executing the trust deed ?, A. What was the purpose?
“Q. Yes, did you want to turn it over to your father for the benefit of the chib dren? A. I tell you Daddy told me; he said ‘O’Connor has advised that you deed it to me because Ezzell might come in and sue and you will lose both places’, and if it hadn’t been for that we would have been all right.
“Q. And your father made that explanation to you? A. What do you want to lay it all on to Daddy for?
“Q. Well, let’s lay it on to O’Connor then ? A. That will suit better. * * *
“Q. You understood that if you executed that trust deed and appointed your father trustee for the benefit of your children, then if the Garretts or the Ezzells sued yo.u and drew on that trade, they could not come in and take this property away from your children? A. I suppose that was their idea.
“Q. That was your understanding and the reason you signed the deed; is that right? A. I didn’t want to lose my section of land, it was mine and I didn’t want to lose it.
“Q. That was the purpose then of deeding it to your children; that is what you had in mind at that time? A. I guess it was, I don’t know what I had in mind; but if you want it that way, all right.
“Q. It is not what I want, Mrs. Tipton. A. It seems to be, you want it your way.
“Q. I beg your pardon. A. I beg yours too.
“Q. I want to know what you had in mind at the time you made that deed? A. I have told you all I know about it.”

Mr. Tipton testified:

“Q. You testified, I believe, that when Mr. O’Connor took your acknowledgments, he asked you if you understood it, is that right? A. Yes sir.
“Q. And you said, of course, you did understand it? A. Yes sir.
“Q. You understood what you were doing? A. Yes sir, I was signing away all the right I had.
“Q. And your wife understood what she was doing? A. I don't know what she knew.
“Q. Did she ever tell you what she did ? A. She realized what it would mean before she ever signed it.
“Q. She-understood then she was deeding this property in trust for her children ? A. Yes sir. * * *
“Q. What I am asking is: zvhether or not Mrs. Tipton ever told you that she understood [what] was in that deed? A. She told Mr. O’Connor she understood it. * * *
“Q. What did he say when he took your acknowledgments? A. Well, I don’t know whether I can word it or not.
“Q. What do you remember him saying? A. I remember he asked did we both understand what we were signing.
“Q. What did you say to him? A. We told him we did.” ■ ■

Mrs. McCrea, plaintiffs’ witness, and sister of Mrs. Tipton, testified:

“Q. When Carrie made this trust deed, did she know what she was doing? A. Do you know why she did that?
“Q. Just answer my question, please, Mrs. McCrea— A. The reason she did that was because Tipton had left her and she agreed with her Daddy to deed it to her children to protect it for them.
“Q. She knew what she was going to do at the time? A. Yes. * * *
“Q. Well, lady, — I don’t know what you think about that; but at the time your sister Carrie executed this trust deed to your father, was she crazy, or did she have her right mind? Was she sane or insane? A. She was sane, of course she was sane.
“Q. And you think that she has always been sane? 'A. I certainly do.”

Mr. McCrea, plaintiffs’ witness, testified :

“Q. Yancey, I will direct your attention back in 1930; tell the jury whether or not Mrs. Carrie Ella Tipton was ill during the year 1930, and whether or not she had to go to a hospital? A. Yes sir, she had an operation that year.
“Q. Yancey, at that time I wish you would tell the jury just exactly what Mrs. Carrie Ella Tipton’s condition was then and after she got out of the hospital; just what effect it had on her mental condition,. that sickness and everything, just what you observed? * * . * .
“Q. What did you observe as to her condition? A. All I could tell about it, it was at first just like anyone that had a long siege of sickness, she was weak physi.cally.
“Q. Was her mental condition impaired in any way? A. I wouldn’t think so.”

: Mrs. Chesley, Mrs. Tipton’s step-mother and a witness for plaintiffs, testified:

“Q. You have been asked about a trust deed that Carrie executed, did you know about that? A. Yes sir.
“Q. Did you know Carrie at that time and were you visiting with her or she •visiting with you, and did you know about the circumstances of her executing that instrument? A. Yes, it was at my home that it happened — well I beg your pardon, which instrument do you mean, the deed to this section of land?
“Q.. Yes, this section of land in controversy. A. Yes, that was in my home.
“Q. Well, I will ask you this question, Mrs. Chesley, state whether or not, in your opinion, at the time Carrie executed that trust deed, did she have sufficient mental capacity and understanding to knozv and understand what she was doing and the nature of the instrument she zvas signing? A. She had a very good understanding alzvays.
“Q. At that time, when-she signed that trust deed, did she have understanding sufficient to know the nature of the instrument she was signing, when she signed this trust deed to your husband? A. Yes sir, she knew what she was doing• -and she did it as a matter of policy.
“Q. Did she understand the transaction she was making? A. Yes sir.
“Q. Do you think so, Mrs. Chesley? A. Yes sir.”

In Southern Surety Co. v. Inabnit, 1 S.W.2d 412, 415, this court, in an opinion by Judge Hickman, stated the rule with reference to the testimony of and admissions by a party to a suit as follows: “The testimony of a party to a suit and admissions made by him must be construed as binding upon him, and not merely as raising issues of fact. His - testimony is governed by. different rules to those governing witnesses who are not parties. Mhoon v. Cain, 77 Tex. 316, 14 S.W. 24; Nerio v. Christen (Tex.Civ.App.) 189 S.W. 1038; Smith v. [Boston Elevated] Ry. Co. [1 Cir.] 184 F. 387, 37 L.R.A. (N.S.) 429; Hubb-Diggs Co. v. Mitchell (Tex.Civ.App.) 256 S.W. 702.”

In Daugherty v. Lady, Tex.Civ.App., 73 S.W. 837, 838, the court said: “Appellant pleaded in justification (1) the power expressly given by a mortgage on the cattle executed by appellee to him ⅜ * *. As to the first ground of justification, the appellant, by his own testimony, emphatically denied that such a mortgage was ever executed to him by the appellee. His testimony as to this matter was directly contrary to what he had pleaded, cmd should have been taken as conclusive against him * *

In J. R. Watkins Co. et al. v. King, Tex.Civ.App., 83 S.W.2d 405, 407, the applicable rule is stated by Chief Justice Gallagher, as follows: “The weight of the testimony given by a party to a suit as a witness therein is determined by a different rule from that applied in determining the weight to be given the testimony of other witnesses. When a party testifies to positive and definite facts which, if true, would defeat his right to recover or conclusively show his liability, and such statements are not subsequently modified or explained by him so as to show that he was mistaken, although testifying in good faith, it has generally been held that he is conclusively bound by his own testimony and cannot successfully complain if he is non-suited or the court directs a verdict against him. 17 Tex.Jur. pp. 577, 578, and authorities cited in notes 3 and 4; Mhoon v. Cain, 77 Tex. 316, 318, 14 S.W. 24; Southern Surety Co. v. Inabnit (Tex.Civ.App.) 1 S.W.(2d) 412, 415, par. 8; Stephenson v. Barrow (Tex.Com.App.) 15 S.W.(2d) 575, 576, 577; Nerio v. Christen (Tex.Civ.App.) 189 S.W. 1038, 1040 (second column); Smith v. Boston Elevated Ry. Co. [1 Cir.] 184 F. 387, 389, 37 L.R.A.(N.S.) 429; Broad River Lumber Co. v. Middleby [4 Cir.] 194 F. 817, 821, par. 3; Harlow v. Leclair, 82 N.H. 506, 136 A. 128, 50 A.L.R. 973, 976, 977, and note page 979 et seq. The testimony of appellee that the deed from his father to him covered all the lands his father owned at the time and that his father also turned over his cattle to him and thereafter had no property left, was in no way modified-or explained by him so as to permit effective contradiction thereof by proof of isolated circumstances by other witnesses, as attempted by appellee in this case. No reason is shown why appellee should not, under the rule stated, be bound by his own affirmative testimony -given in his oral deposition read in evidence in the case.”

In Burguieres v. Farrell (Tex.Civ.App.) 85 S.W.2d 952, 972, the court said:

“It is a wholesome rule, and should assuredly be applied in suits in equity, that the testimony given and admissions made by a party to a suit must be construed as binding upon him, and not merely sufficient to raise issues of fact. His testimony should, be governed by rules that wholly differ from rules governing witnesses who are not parties. Nerio v. Christen et al., Tex.Civ.App., 189 S.W. 1038; Smith v. Boston Elevated Ry. Co. [1 Cir.] 184 F. 387, 37 L.R.A.(N.S.) 429, 431; Southern Surety Co. v. Inabnit (Tex.Civ.App.) 1 S.W.(2d) 412; 17 Tex.Jur. pp. 577, 578.”
“Admissions’ made by a party while testifying as a witness are conclusive at the trial during which the testimony is given, and also on subsequent trials -of the same case * * * ” 17 Tex.Jur. 577, 578.
“The testimony of a party to a suit and admissions made by him therein are binding upon him. A party is also concluded by the' testimony of a witness whom he has offered; by placing him upon the stand the party vouches for the witness’ crfed-ibility, and the testimony elicited must be taken as true in considering the effect thereof upon the party’s rights.” 17 Tex. Jur. 928, 929.

Also, see Texas Pacific C. & O. Co. v. Bridges, Tex.Civ.App., 110 S.W.2d 1248, 1250; Bailey v. Hix, 49 Tex. 536, 541; Renn v. Samos, 33 Tex. 760, 767; Nerio v. Christen, Tex.Civ.App., 189 S.W. 1038, 1039; Smith v. Railroad Employees Development Co., Tex.Civ.App. 195 S.W. 220, writ refused; Old River Rice Irr. Co. v. Stubbs, Tex.Civ.App., 168 S.W. 28, 32; McMath v. Staten, Tex.Civ.App., 42 S.W.2d 649, 652; Thompson v. Moor, Tex.Com.App., 14 S.W.2d 803, 804; Pickett v. Dallas Trust & Sav. Bank, Tex.Com.App., 24 S.W.2d 354, 357; Texas Prudential Ins. Co. v. Padgett, Tex.Civ.App., 120 S.W.2d 927, 929; Foster v. Woodward, Tex.Civ.App., 134 S.W.2d 417, 420, writ refused; Wristen v. Wristen, Tex.Civ.App., 119 S.W.2d 1104, 1108; Trice v. Bridgewater, 125 Tex. 75, 81 S.W.2d 63, 67, 100 A.L.R. 1014; 20 Am.Jur. 1032.

If at the time the trust deed was executed by Mrs. Tipton she understood the nature and effect of her act in executing it, she cannot cancel it on the ground of mental incapacity. Smith v. Thornhill, Tex.Com.App., 34 S.W.2d 803, 804; Wright v. Matthews, Tex.Civ.App., 130 S.W.2d 413; 14 Tex.Jur. 844; 24 Tex.Jur. 377. The testimony of Mrs. Tip-ton is definitely to the effect that she did understand the nature and effect of her act in executing the deed. Such also was the substance of the testimony of her witnesses set out above. Mrs. Tipton’s testimony constituted a denial of her alleged mental incapacity at the time of the execution of the deed. In her testimony she assigns an entirely different reason (than mental incapacity) for executing the deed. She cannot recover on a ground alleged but definitely repudiated by her as a witness. The other grounds for cancellation alleged (other than lack of separate acknowledgment by Mrs. Tipton), to-wit, undue influence and duress, were found against her.

The jury found in answer to issue 3 that.Mrs. Tipton’s acknowledgment of the trust deed was taken in the presence and hearing of her husband. Plaintiffs’ allegation relative thereto was, in substance, merely that her acknowledgment was not taken separately and apart from her husband, but was taken in the presence and hearing of her husband. The notary’s certificate is in due form; it recites that Mrs. Tipton was “examined by me privily and apart from her husband * * The testimony relative thereto by the plaintiffs is that the acknowledgment of Mrs. Tipton was taken in the presence and hearing of her husband; the notary’s testimony is directly to the contrary. They do agree that plaintiffs and the notary, in separate automobiles, drove from East-land County into Stephens County for the purpose of taking plaintiffs’ acknowledgments to the deed.

There was neither allegation nor proof “that any fraud or imposition was practiced on” Mrs. Tipton “to induce her to acknowledge the deed in question.” Cockerell v. Griffith, Tex.Civ.App., 255 S.W. 490, 493.

We understand the established rule to be that when a grantor actually appears before a notary for the purpose of having his acknowledgment taken, and makes some sort of acknowledgment, the notary’s certificate, if regular in form, is conclusive as to all matters required to be recited therein, except upon allegation and proof of fraud, duress, or imposition known to or participated in by the grantee ; where the grantor has appeared before the notary for the purpose of having his acknowledgment taken, the notary’s certificate cannot be impeached by simply disproving the truth of its recitals. People’s Gas Co. v. Fletcher, 81 Kan. 76, 105 P. 34, 41 L.R.A.,N.S., 1161, 1163. The Supreme Court of Texas, in an opinion by Chief Justice Hemphill, in Hartley v. Frosh, 6 Tex. 208, 216, 55 Am.Dec. 772, relative to this question said: “To impeach the veracity of the certificatej it will not be sufficient to allege that there was no privy examination — that she did not acknowledge the same to be her act and deed, &c. There must be some acts alleged showing fraud; as, for instance, that there- was a fraudulent combination between the Notary and the parties interested. The certificate, in this case, is in conformity with the statutej and cannot be impeached merely by saying that she was not examined apart from her husband.”

The Commission of Appeals in Robertson v. Vernon, 12 S.W.2d 991, 993 (opinion by Justice Speer), said: “The rttle of evidence established in the line of cases headed by Hartley v. Frosh, supra, is a wholesome one, and there is no intention here to depart from it or in any wise to qualify it * *

The Commission of Appeals in Ward v. Weaver, 34 S.W.2d 1093, 1095, (an opinion by Judge Harvey) said: “It is settled that, where a married woman appears before a notary for the purpose of acknowledging an instrument, the fact recitals of the notary’s certificate of acknowledgment are conclusive, unless fraud or imposition is shown. Hartley v. Frosh, 6 Tex. 208, 55 Am.Dec. 772; Davis v. Kennedy, 58 Tex. 516.”

In Ellington v. Bryant, Tex.Civ.App., 293 S.W. 327, and Texas Osage Co-Operative Royalty Pool v. Sullivan, Tex.Civ.App., 93 S.W.2d 566, 567, the facts were essentially the same as in the instant case and were held to be insufficient to justify a judgment canceling the deeds.

In Haskins v. Henderson, Tex.Civ.App., 2 S.W.2d 864, 865, Chief Justice Willson said: “‘A certificate of acknowledgment is conclusive of the facts therein stated, unless fraud or imposition is alleged, and in which the grantee participated or had knowledge.’ Finley, J., in Herring v. White, 6 Tex.Civ.App. 249, 25 S.W. 1016; Ellis v. Lehman, 48 Tex.Civ.App. 308, 106 S.W. 453; Bryant v. Grand Lodge Sons of Hermann (Tex.Civ.App.) 152 S.W. 714; Ellington v. Bryant (Tex.Civ.App.) 293 S.W. 327.” Also see Williams v. Pouns, 48 Tex. 141; Herring v. White, 6 Tex.Civ.App. 249, 25 S.W. 1016; Shelby v. Burtis, 18 Tex. 644, 645; Wiley & Co. v. Prince, 21 Tex. 637; Pool v. E. H. Chase & Co., 46 Tex. 207; Kocourek v. Marak, 54 Tex. 201, 205, 38 Am.Rep. 623.

We think the conclusion is inescapable that the judgment finds no support in the jury finding that Mrs. Tipton’s acknowledgment was taken in the presence and hearing of her husband. See, also Blankenship v. Stricklin, Tex.Civ.App., 77 S.W.2d 339, 340; Blankenship v. Lusk, Tex.Civ.App., 77 S.W.2d 341; Waltee v. Weaver, 57 Tex. 569, 571; Wheelock v. Cavitt, 91 Tex. 679, 45 S.W. 796, and Breitling v. Chester, 88 Tex. 586, 32 S.W. 527.

From the foregoing conclusions it appears that the court should have instructed a verdict for appellants, unless the pleadings and evidence were sufficient to raise issues 4 and 5, to-wit, undue influence and duress,' inducing the execution of the trust deed. However, it is unnecessary to determine whether or not undue influence or duress, or both such issues, were made questions for the determination of the jury, because they were determined adversely to plaintiffs, leaving, under the conclusions heretofore announced, no support for the judgment. We are, therefore, of the opinion the court should have sustained appellants’ motion for judgment non obstante veredicto.

Appellants pleaded the four years’ statute of limitation. Article 5529 provides: “Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.” It is the applicable statute of limitation in a suit to cancel a deed on the ground of insanity of the grantor. Pure Oil Co. v. Ross, 131 Tex. 41, 45, 111 S.W.2d 1076; Neill v. Pure Oil Co., Tex.Civ.App., 101 S.W.2d 402, writ refused; 15 T.L.R. 519; Lott v. Van Zandt, Tex.Civ.App., 107 S.W.2d 761. Article 5535 provides, in part: “If a person entitled to bring any action mentioned in this subdivision of this title be at the time the cause of action accrues * * * a person * * * of -unsound mind, the time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same time after" the removal of his disability that is allowed to others by the provisions of this title.”

Plaintiffs’ asserted cause of action to cancel the deed accrued contemporaneously with the. execution.of the deed on January 12, 1931. If at the time sp-id cause of action accrued, Mrs. Tipton was not insane (as we have heretofore concluded), plaintiffs’ cause of action became barred by limitation four years thereafter, which was prior to the institution of plaintiffs’ suit for cancellation of the deed against appellants. Free v. Owen, 131 Tex. 281, 113 S.W.2d 1221, 1224; Art. 5535, R.S. 1925.

(Italics in the opinion are ours)

It is, therefore, ordered that the judgment, insofar as it adjudges a cancellation of the deed dated January 12, 1931, and an award of title and possession to Mrs. Tip-ton of the section of land conveyed by said deed, be and the same is hereby reversed and judgment rendered denying cancellation of said deed, and denying recovery of title and possession of said land by plaintiffs. In all other respects the judgment is affirmed.

Affirmed in part and reversed and rendered in part.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    ALLEE et al. v. BRETEUL et al.
    No. 3710.
    Court of Civil Appeals of Texas. Beaumont.
    July 3, 1940.
    Rehearing Denied July 10, 1940.

      Tom F. Coleman, Sr., and C. W. Falvey, both of Lufkin, for appellants.
    Collins, Williams, Hatchell & Garrison, of Lufkin, and Ramey, Calhoun & Marsh, of Tyler, for appellees.
   O’QUINN, Justice.

Plaintiffs, M. Garner de Breteul et al., sued defendants, Mrs. Ruby, Allee, a widow, et al., in trespass to try title to 168 acres of land, a part of the J. Magano survey in Angelina County, Texas. All parties defendant, except E. M. Lewis, who was dismissed from the case, answered. Libbe Martin .Bell and her husband, W. A. Bell, et ál'.', intervened setting up title to the land against both plaintiffs and defendants. The case was tried to a jury, but at the close of the evidence the court instructed a verdict for the plaintiffs, ap-pellees here, against the defendants and in-tervenors, which was duly . returned and judgment entered accordingly.

Defendants and intervenors filed their motion for a new trial -which was overruled on December 30, 1939, to which action of the court defendants and intervenors excepted and gave notice of appeal. They filed their appeal bond on January 22, 1940. Appellees duly filed motion to dismiss the appeal because the appeal bond was filed too late, more than twenty days after the overruling of the motion for a new trial.

We have examined the record and find the facts as stated in appellees’ motion to dismiss. December 30, 1939, was the last day of the term of the court. The appeal bond was filed January 22, 1940. The term of the court (Angelina County) could not by law continue ‘more than eight weeks, Article- 199, Sec. 2, Vernón’é Ann.Civil Statutes. The appeal, bond having been filed more than twenty days after the ex-" piration of the term of the .court, and more than twenty days after the motion for a ' new trial was overruled, it was too late and did not confer jurisdiction on this court to entertain this 'appeal. Article 2253, R.C.S.; Dilworth v. Ed Steves & Sons, 107 Tex. 73, 174 S.W. 279; Pessoney v. Cobb-Holman Lumber Co., Tex.Civ.App. 88 S.W.2d 566; Frier v. Krohn, Tex.Civ.App., 104 S.W.2d 537, writ refused.

Appeal dismissed.


author: CODY, Justice. CODY, Justice.

text:
    SCANLAN et al. v. CONTINENTAL INV. CO. et al.
    No. 10868.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 25, 1940.
    Rehearing Denied July 18, 1940.

      Walter F. Brown, of Houston, for appellants Lillian and Stella Scanlan.
    Walter F. Brown, of Houston, for appellant Interstate Circuit, Inc.
    Elbert Roberts and Willett Wilson, both of Houston, for appellees Continental Inv. Co. and National Paving Co.
    Will Sears, of Houston, for appellee City of Houston.
   CODY, Justice.

Our opinion on the former appeal of this case is reported under the style of Scanlan et al. v. Continental Investment Company, Tex.Civ.App., 93 S.W.2d 1189.

On June 12, 1929., the City Council of the City of Houston, upon the petition of the owners of more than 51% of the front-footage of the property abutting on that part of Lceland Avenue between Scott Street and Telephone Road, adopted a resolution to pave it. This was after proper notices to the then owners of the property here involved, and after a hearing duly had on benefits at which said owners did not appear or make any objection to the paving; nor did said owners within the ten days provided by Section 8 of Art. IV-A of the Charter of the City of Houston after the closing of said hearing institute any suit to contest the validity of the assessment, etc. The then owners of the property involved, which lies on both sides of Leeland Avenue, were Misses Kate, Lillian and Stella Scanlan; and joint certificates were issued against them and their property on the assessment which had been made thereagainst jointly. These certificates were assigned by the paving contractor, the National Paving Company, to the Continental Investment Company. And when they were not paid at the maturity of the first installment, after demand, the maturity of both certificates was accelerated, and two suits filed thereon — one to foreclose on the land lying on one side of the street, the other to foreclose on the land lying on the other side of the street. Only one of these suits was tried at that time; and in it the court instructed the jury to return a verdict for the owner of the paving certificates except as to what constituted reasonable attorney’s fees, which was submitted to the jury. On appeal, and after receiving an answer to a question certified to the Supreme Court, this court reversed the judgment of the trial court because the paving lien which it undertook to foreclose was based upon a joint assessment against the undivided interests-of all of the three owners of said property; and the joint assessment and certificates issued thereon were held to be void, and judgment was then rendered by this court for the owners of the property. But upon a motion for rehearing, the majority of the court — sustained by the Supreme Court — ordered the cause remanded in order to afford an opportunity to have a corrected — or reassessment made, said remand being “without prejudice to any proceedings which any of the parties may see fit to institute in the premises.”

Then, on August 24, 1936, after the cause had been remanded for a new trial, the paving contractor, the National Paving Company, and its assignee, the Continental Investment Company, filed a petition with the City Council to correct the paving assessment held to be void because formerly made jointly. Misses Lillian and Stella Scanlan, having in the meanwhile succeeded to the interest of their sister, Miss Kate Scanlan, who had died intestate, were notified of such hearing, and were represented at the meetings of the City Council held on said petition, and they presented numerous objections, including those urged in this trial.

After the hearing on benefits in the correction hearing, separate assessments were made against the undivided interests of the two surviving Scanlan heirs, who then, within ten days, instituted a contest, making the City of Houston, the paving contractor (the National Paving Company) and its assignee, the Continental Investment Company, parties defendant. This suit, over the protest of the Scanlan sisters, was ordered consolidated with the two pending suits, and all parties were required to replead. The Interstate Circuit, Inc., was made a party to the proceeding. The Interstate Circuit, Inc., had bought a piece of the property involved from the Scanlan sisters after the original suits had been filed, and had promptly placed its deed of record, and said deed had been of record for about a year prior to the time that the petition for the correction had been filed with the City Council, but the Interstate Circuit, Inc., was not a party to such correction proceedings, and was not there represented.

The case was submitted to the jury on 62 special issues, and on the jury’s answers, the trial court rendered judgment for the Continental Investment Company, granting it all the relief it sought, principal, interest on the corrected assessment certificates, and attorney’s fees, against the Scanlan heirs, and foreclosed the liens against the Scanlan heirs, and against the Interstate Circuit, Inc., and rendered judgment against the Scanlan heirs on their cross-action.

Appellants, the Scanlan heirs, are urging one hundred and forty-eight assignments of error.

Appellees assert, and appellants do not dissent, that these numerous assignments come within one of the following classes :

1'., That the plans and specifications adopted foi the work to he done on Leeland Avenue were not in accordance with the requirements of the Charter of the City of Houston, and the work done by the contractor was not in accordance therewith.

2. That the paving certificate sued on is invalid for the reason that the engineering and advertising costs on the improvements in question were included as a portion thereof, as well as an emergency additional amount for reinforcing steel not included in the original contract bid.

3. That the provision for attorney’s fees in the assessment certificate and Charter of the City of Houston is invalid and that the judgment as rendered including attorney’s fees based upon the possibility of an appeal is also invalid.

4. That the certificate of special assessment is invalid because the City Council permitted the Street Railway to lay a different type of pavement than that contracted for on the remaining part of the street.

'5. That the court erred in rendering the judgment that it did render on the verdict of the jury because of certain issues being answered favorably to- appellants.

6. That the court erred in giving certain issues that it did give, and in refusing to give certain issues requested by appellants.

7. .That the jury’s verdict was contrary to and not supported by the evidence in finding:

A. That the National Paving Company had substantially complied with its contract in paving Leeland Avenue from Scott Street to Telephone Ro’ad.

B. That the City of Houston acted in bood faith and with due regard to the rights of the abutting property owners in accepting the pavement as satisfactory.

8. That attorney’s fees as found by the jury are not collectible against appellants for the reason: (a) that they have not been incurred; (b) that they are not reasonable; (c) that part of them are based upon the possibility of an appeal which makes them invalid.

9. That the correction assessment proceedings are invalid for the reason: (a) that the date of the ordinance petitioned to be amended is incorrectly given in the correction ordinance; (b) that the subject of the correction assessment ordinance is not clearly expressed in its title; (c) that the ayes and nays were not taken upon the passage of any of the resolutions leading up to or of the passage of the purported assessment ‘ ordinance of October 28, 1936; (d) that the Interstate Circuit, Inc., the purchaser of a part of the property from Lillian Scanlan and Stella Scanlan after original assessment proceedings and before the correction proceedings, was not notified of the amendment proceedings and is not-bound thereby and its property is released from the paving lien.

10. That the paving having been completed more than six years before the petition for correcting the assessment was filed, appellees’ claim was barred by Statute of Limitation.

11. That appellants are not estopped from again presenting questions of irregularities of paving proceedings by: (a) failure to file contest suit within required time after original assessment proceedings; (b) the fact that an appellate court on a former appeal has ruled adversely to their contentions.

We cannot agree with appellees that rulings which were made by this court on the former appeal but which, together with the opinion in which they were made, having been by the court formally withdrawn, are now to be considered the law of the case. When the opinion in which such rulings were announced was withdrawn they ceased to be rulings in the case.

We overrule appellants’ contention that the plans and specifications were not in accordance with the requirements of the City of Houston.

Appellees alleged all steps and prerequisites required by the City charter and the law in making the contracts for the work the levy, assessments, etc., had been complied with. It was shown that appellants were properly notified of the original hearing on benefits, etc., and that they failed to appear at such hearing, or to raise any objection to the validity or irregularity of any proceedings within the time required by the City charter or law, or to file suit within ten days after the close of such hearing, as required by the City charter. In Section 7 of the City charter it is provided that interested property owners may be heard as to any error or invalidity in any proceeding with reference to the work to be done, and that if any objections are made to such proceedings they should be filed with the City Council before such hearing is closed, and that if not so made and filed, they shall be deemed waived. By Section 8 of the charter it is provided unless the interested property owners file suit within ten days to correct the validity or regularity of any .such proceedings, they shall be precluded from such a contest elsewhere. Any claim of defect or error in the proceedings which was not saved to a complainant in the manner there provided is barred. Scanlan et al. v. Gulf Bitulithic, Tex.Com.App., 44 S.W.2d 967, 80 A.L.R. 852, and authorities there cited; Herring v. City of Mexia, Tex.Civ.App., 290 S.W. 792; Clark v. W. L. Pearson & Co., Tex.Civ.App., 26 S.W.2d 382. The purpose of providing that any objections to the validity or regularity to the proceedings shall be thus made be'fore the paving is laid or become barred is 'perfectly obvious. It can work no harm on the property owner to be required to make his objection before the paving is laid, and it is not tight to permit him to gamble on getting improvements to his property at the expense of the paving contractor by urging objections which, if valid, could as well have been urged before the paving was .laid. It seems perfectly clear to us that whatever claim of irregularity or invalidity of appellants which became barred after the lapse of ten days from the close of the 'original hearing on benefits, could never •revive. At. the proceedings to correct the .jo.int assessment appellants could urge any objection pertaining to the point of separate, as distinguished from joint, assessment; they also might urge any error in the amount of the separate assessments, and prevent any higher'assessment from being laid than the increase in the value of their property: that right inheres in the act .of reassessing, and it cannot be injurious to ,the paving contractor or his assignee as • the contractor knows that his work is required to so increase the value of the property of the adjoining owner. There is, however, some advantage in the position of having the increased value of property by reason of the laying of pavement passed on after, instead of before, it has been laid. As appellants’ contention that the plans and specifications were not in accordance with the requirements of the City of Houston was barred ten days after the close of the original hearing on benefits, appellants’ assignments based thereon are overruled.

Appellants’ claim that the paving was not done in accordance with the plans and specifications is one that in its nature can arise only after the work has been completed. And its determination in this case has not been free of doubt and difficulty. The jury found that there was a material change in the paving of Leeland Avenue from Scott Street to Telephone Road from the original plans and specifications prepared therefor by the City of Houston, and found that this material change was required of the paving contractor by the city engineer. The jury found, however (special issue No. 1-A), that the National Paving Company substantially complied with its contract with the City of Houston in paving Leeland Avenue from Scott Street to Telephone Road; and further found (special issue No. 5-A) that the City acted in good faith and with due regard to the property owners along Leeland Avenue in accepting the paving lien as being satisfactory. The charter provides in Section 14, “The recital in such certificates that the proceedings with reference to the improvements therein referred to have been regularly had in compliance with the Charter of the City of Houston, and that all prerequisites to the fixing of the lien and personal liability evidenced by said certificates have been performed, shall be prima facie evidence of the facts so recited and no other proof thereof shall be required; but in all courts said proceedings and prerequisites shall, without further proof, be presumed. * * *” In finding that the National Paving Company had substantially complied with its paving contract the jury arrived at the same conclusion as the City, had to arrive at to establish such fact prima facie. Such finding by the jury took such matter out of the category of mere prima facie proof, and established it conclusively.

As the only possible reason for placing such recital in certificates is to inform intending purchasers relative to the facts recited, the fact that such recital is also found to be true by a jury ought to foreclose all .questions on such score. It might •well happen that a jury, upon the same facts proven, would reach a different conclusion from a City about the way a paving contract has been performed. Will the mere fact that a jury and a City, each in the exercise of good faith, may reach a different conclusion as to the performance of a paving contract take from the City’s conclusion all value? This does not seem to be the conclusion reached in Herring v. City of Mexia, Tex.Civ.App., 290 S.W. 792, 794, where the court said:

“Under other assignments, appellant contends the court erred in refusing to permit him by pleading and proof to show as a defense why he should not be compelled to pay said paving certificate, that the material used in said improvement was defective and not that required by the contract between the city and the paving company, and that the work was defective, etc. The record discloses that on August 7, 1923, the city of Mexia passed an ordinance declaring among other things, that the improvement o'f Kaufman street had been fully and finally completed by Uvalde Paving Company in compliance with the contract, and accepting said improvements, and ordering the issuing of assignable certificates therefor. The improvement having been completed and duly accepted by the city as required by law, and there being no contention on the part of appellant that there was any fraud on the part of the city in accepting said improvement, said acceptance is conclusive against collateral inquiry by appellant as to defects in material or construction. Berwind v. Galveston & H. Inv. Co., 20 Tex.Civ.App. 426, 50 S.W. [413] 415; 1 Dill, Mun.Corp. § 483; Emery v. Bradford, 29 Cal. 75. These assignments are overruled.”

We do not believe that Fisher v. L. E. Whitham & Company, 120 Tex. 516, 39 S.W.2d 869, 875, 876, 79 A.L.R. 1095, is against this, where the court said: “We think, however, that in a case where there is no substantial compliance with the terms of the contract as to quality or quantity of materials, or kind and character of construction or work, the owner is not bound by the acceptance by the city. Certainly the city cannot bind the owner to accept, to his injury, compliance with a purely statutory and involuntary contract, on his part, unless there is at least a substantial compliance therewith by the paving company.” But, however that may be, it is no -injury to the owner when the City in the exercise of good faith accepts the performance of a contract, and a jury finds that such acceptance did not injure the owner, but benefited the owner’s property to an extent in excess of the assessment. We believe that the findings of the jury bring this within the rule that the good faith acceptance by the city binds the owner.

The cost of advertising required by law, the cost of engineering and supervision, as well as emergency expenditures, are incidental and essential to the work, and it was proper for the assessment to cover same.

Section 9 of Art. IV-A of the City Charter expressly provides for awarding attorney’s fees and for their collection. This was not homestead property, and attorney’s fees are properly recoverable. Scanlan v. Gulf Bitulithic Co., supra; Elmendorf v. City of San Antonio, Tex.Civ.App., 223 S.W. 631; Keller v. Western Paving Co., Tex.Civ.App., 218 S.W. 1077; Sullivan v. Roach-Manigan Paving Co., Tex.Civ.App., 220 S.W. 444.

Appellants’ contention that the assessment was invalid because the City Council permitted the Street Railway to lay a different type of pavement from that contracted for on portions of the street not occupied by such tracts is without merit. Section 6 of Art. IV-A of the City Charter provides:

“ * * * the City Council shall adopt the pavements and materials to be used in the construction of said improvements, including that portion of the street occupied by and chargeable to a steam railroad or street railway * * *, provided that the City Council is expressly authorized to adopt and provide for that portion of such street occupied and paid for by any steam railroad or street railway such material or kind of pavement as th'e City Council may deem suitable for that purpose whether it be the same materials and pavements adopted for the balance of the street or not.”

We are unable to say that the verdict was contrary to and not supported by the evidence to the effect that the paving contractor had substantially complied with its contract. As we have noted above, both the City and the jury found such. And it is clearly established that the City acted in good faith and with due regard to the rights of the property owners in accepting the pavement as satisfactory.

We believe, there is no merit in the contention that the amended ordinance is void because of- error with respect to the date of the ordinance petitioned to be amended or that the subject of the correction-assessment is not clearly expressed in the title. A correction ordinance does riot supersede the original assessment ordinance. Gulf Bitulithic Co. v. Scanlan, Tex.Civ.App., 91 S.W.2d 814, except as expressly corrected. We have hereinbefore, in different language, already so ruled. And the ordinance, the caption, etc., seems sufficient to warrant the correction which was actually made.

We believe that the rulings which we have made hereinabove dispose of all of appellants’ contentions except one. And that one is the contention that the corrected certificate was not valid as against the Interstate Circuit, Inc. We are unable to see how Interstate Circuit, Inc., could be bound by proceedings to which it was not a party. It bought pendente lite and with notice of appellees’ rights, and we assume without holding that, had it been made a party to the correction proceeding, that it, and its property, would be bound. But at the time it bought the property there was no completed paving lien against it, though it was subject to being completed. But the City Charter contemplates that, in case of sale of property, the then owner shall be made party to the correction proceeding. A purchaser could not be affected by a proceeding which -he was not a party to, except under the theory of virtual representation, or the doctrine of purchasing pendente lite. We do not see how it would be proper. to treat the purchaser who places his deed of record, as though he had no independent rights. He could have been made a party, and we see no reason for visiting on him the same consequences as though he had been made a party when he was not. The lien should not, therefore, be adjudged foreclosed. It would seem on principle that the proportion of the indebtedness which his property should bear ought to be visited on the remainder of the unsold property, because the vendors had the value of the abutting paving in the purchase price of the property bought by Interstate Circuit, Inc. But this presents difficulties. For it leaves the alternative that the proportion of the paving lien which was assessed against it should be abated from the sum covered by the paving lien due from the Scanlans, though they must continue personally liable therefor. The situation seems to be similar to that of exempt property, where the owners are, however, personally liable. This is a matter which should be adjusted in the trial court, we believe.- We reverse and render, therefore, so much of the judgment as establishes a lien against the Interstate Circuit, Inc., property, and remand the cause with instructions to the trial court to have the proper adjustment calculated on a front-foot basis, and to-render judgment against the Scanlan heirs for the full amount just as though they continued to own the sold property, but for the amount which it is found would have been a charge against the Interstate Circuit, Inc., had it been made a party to the correction proceeding, only a personal judgment shall be awarded against the Scanlan sisters.

The judgment of the trial court is reversed and rendered in part, and in part reversed and remanded with instructions, as above indicated.

Reversed and rendered in part, and reversed and remanded with instructions in part.

MONTEITH, C. J., being disqualified, did not sit.

On Motions for Rehearing.

CODY, Justice.

In their motion for rehearing appellants, other than Interstate Circuit, Inc., complain that their assignments of error were not properly broken down and embraced within the classification which, after careful consideration, was adopted in our opinion. We have concluded that every point raised by said appellants was disposed of by us either expressly or by necessary implication, and that no good purpose would be served by further extending an already long opinion.

We have also considered appel-lees’ motion, in its answer to said appellants’ motion for rehearing, for us to revise the judgment here in lieu of remanding it to the trial court for the purpose of having the proper adjustment calculated on a front-foot basis for the purpose of establishing the amount of the personal judgment awarded against the appellants, the Misses Scanlan. We adhere'to our conclusion that the ordered adjustment is one more properly to be made in the trial court, and appellees’ motion is refused.

The motions of both appellants and ap-pellees are refused.


author: ALEXANDER, Justice.

text:
    MEXIA COMPRESS CO. v. SPEIGHT.
    No. 2238.
    Court of Civil Appeals of Texas. Waco.
    June 27, 1940.
    Bradley & Bradley, of Groesbeck, for appellant.
    L. W. Shepperd and L. L. Geren, both of Groesbeck, for appellee.
   ALEXANDER, Justice.

The plaintiff’s cotton was destroyed by fire while it was stored in the defendant’s warehouse. The jury found that the defendant negligently stacked or tiered the cotton end on end, and that it negligently failed to keep such lookout for fire as an ordinarily prudent person would have done under the circumstances, and that each of such acts of negligence was the proximate cause of the loss. Accordingly, judgment was entered for plaintiff for the value of the cotton. The defendant has appealed.

The appellant contends that the evidence was insufficient to sustain the jury’s finding that appellant failed to keep such a lookout for fire as an ordinarily prudent person would have done under the same or similar circumstances. The evidence shows that the appellant had stored in its warehouse approximately four thousand bales of cotton belonging to various owners. The fire occurred at or near the noon hour. At that time all of the employees were congregated near the office and were engaged in eatingtheir lunches and listening to a radio broadcast of a World Series baseball game. The office was in the southeast corner of the warehouse and the fire started in the northwest corner thereof. There were no employees at or near the place where the fire started. The employees at the warehouse testified that they discovered the fire about the time they finished eating their lunches. One of the witnesses testified that six or eight bales were on fire before the employees discovered the fire; others testified that about twenty-five bales were then on fire. There was a strong north wind blowing and the fire spread so rapidly that it - forced the employees back and rendered it impossible for them to put it out. There was some evidence that a bale of cotton sometimes has fire on the inside when it is brought into the compress and that it may remain therein for four or five days before being discovered. The cotton in question had been brought in at different intervals, but the evidence did not show the exact date on which any of it had been stored in the compress.

The degree- of care that an ordinarily prudent person would have exercised under the same or similar circumstances was a question to be determined by the jury. In determining this question the jury had a right to take into consideration the amount of cotton being stored in the warehouse at the time, the precautions taken to discover the outbreak of fire, as well as all other surrounding circumstances. Since it appears without dispute that fire is sometimes concealed within a bale of cotton when it is brought into the compress, the danger of fire necessarily increased with the number of bales stored therein. Furthermore, the necessity for precaution increased in proportion to the investment involved. In view of the fact that the testimony shows without dispute that a large amount of cotton of considerable value was stored in the warehouse at the time; that there was no watchman or other employee stationed near where the fire broke out; and that at the time the fire was discovered it had progressed far enough to ignite from six to twenty-five bales and was then out of control, we think the evidence was sufficient to justify the jury’s inference that the appellant had not exercised that degree of care that an ordinarily prudent person should have exercised under the circumstances. We therefore overrule this assignment.

Appellant complains of the refusal of the court to submit certain requested issues to the jury, but the record shows that no such alleged errors were raised in the motion for .new trial in the lower court, and, for this reason, these assignments cannot now be considered.- Dist. Ct. Rule 71a; Court of Civil Appeals Rule 24; Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270.

We have carefully considered all other assignments and find no reversible error.

The judgment-of 'the-trial .court is therefore affirmed.


author: O’QUINN, Justice. WALKER, Chief Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. READ.
    No. 3698.
    Court of Civil Appeals of Texas. Beaumont.
    June 24, 1940.
    Rehearing Denied July 3, 1940.

      Pitts & Liles, of Conroe, and Battaile & Burr, of Houston, for appellant.
    W. C. McClain and A. A. Turner, both of Conroe, and Glenn Faver, of Jasper, for appellee.
   O’QUINN, Justice.

This is a workmen’s compensation case. J. S. Hunt Lumber Company, Inc., was the employer, Richard Read, appellee, the employee, and Federal Underwriters Exchange the compensation insurance carrier. On March 21, 1939, while engaged in the course of his employment as an employee of J. S. Hunt Lumber Company, Inc., Richard Read received an injury for which he claimed compensation for total and permanent disability, or in the alternative for such compensation as he might show himself entitled to receive. His claim was duly filed with the Industrial Accident Board on May 2, 1939, and said Board made, its award on June 12, 1939, awarding compensation to appellee. Not being satisfied with the award, appellee duly gave notice that he would not abide the award, and filed this suit to set aside said ruling.

Citation was duly issued to Federal Underwriters Exchange and service of same properly had. It appears that on July 6, 1939, this suit was in vacation dismissed on the motion of the plaintiff’s attorney and the costs paid by him. On August 21, 1939, he filed motion to reinstate the dismissed cause on the docket for trial.

On August 16, 1939, appellee filed suit in the district court of Montgomery County to mature the award rendered by the award of the Industrial Accident Board. Service of citation in this suit was had, and the. suit remained on the docket of the court until some time during the hearing on the plea to the jurisdiction of the court filed by appellant, when the suit to mature the award was dismissed by appellee.

Appellant filed its plea to the jurisdiction against the motion to reinstate asserting that the court was without jurisdiction to restore the case to the active docket of the court for in that as the cause had been voluntarily dismissed and the costs paid by plaintiff the cause had ceased to exist, and so there was, as a matter of law, nothing to be restored to the docket. The motion was heard on September 6, 1939, and judgment entered granting the motion to reinstate the cause on the docket and said cause was placed on the regular docket for trial on the facts.

On September 11, 1939, it not having theretofore answered, appellant filed its original answer consisting of a plea to the court’s jurisdiction to hear and determine the cause, said plea reciting the above facts of appellee’s filing his appeal from the award of the Industrial Accident Board, his dismissal of said cause and full payment of costs of suit, and the filing of the independent suit to mature the award, wherefore said cause ceased to exist, and asked that same be dismissed, and without waiving its said plea then answered by general demurrer, general denial,, and by special answer reciting all the facts from the filing of the claim with the Industrial Accident Board to the order restoring the dismissed cause to the docket for trial on the facts, by reason of all of which the court was without jurisdiction, and further that if the order to reinstate the cause was proper and of any force, then such order had the effect of filing a new suit which was not commenced until the filing of the motion to reinstate on August 21, 1939; that at said date the award of the Industrial Accident Board had ceased to exist, and appellee had abandoned his appeal from the Board’s award, wherefore the cause could not proceed to trial under the same style and number as that of the abandoned or dismissed cause, and hence the court did not have jurisdiction to determine the matter. On October 25, 1939, the court heard this new plea to the jurisdiction and overruled same. The general demurrer was at said time also overruled.

The case was tried to a jury upon special issues, and upon their answers judgment was rendered in favor of appellee for compensation at the rate of $7 per week for 401 weeks beginning on March 21, 1939, to be paid in a lump sum amounting to $2,-259.74. Motion for a new trial was overruled, and we have the case on appeal.

Appellant’s first four assignments, in effect, assert that when appellee in vacation, and before appellant had answered, dismissed his case and paid all court costs to that date, his cause of action as represented by his appeal from the award of the Industrial Accident Board then and there ceased to exist, and in the absence of a showing of fraud, accident or mistake in the dismissal of the case,- the. court could not restore the cause to the docket of the court for trial, and so was without jurisdiction to adjudicate the matter, no fraud, accident or mistake having been shown.

In his motion for reinstatement, as grounds for reinstatement, appellee alleged :

“That as soon as this plaintiff’s attorney received notice from the Industrial Accident Board that his notice of appeal not to abide by the award made in said cause was filed July 3, 1939, his attorney, A. A. Turner, requested and or caused said suit then pending in the Special Ninth District Court of Montgomery County, Texas to be dismissed because the court did not have jurisdiction thereof, that is, if the notice of appeal was actually received and filed by the said Board on July 3, 1939.
“Plaintiff would show the Court that in computing the twenty days for the filing with the Board notices of unwillingness to abide by the final ruling and decision of the Board, made the last day fall on Sunday, July 2nd, 1939. That at the time plaintiff was advised by the Industrial Accident Board that said notice of intention to appeal from the award of the Board had been received and filed on July 3, 1939, plaintiff’s attorney overlooked Sec. SB of Art. 8307 of the Revised Civil Statutes [Vernon’s Ann.Civ.St.] which was an amendment of Sec'. 2 of the Workmen’s Compensation Law effective from and after January 1st, 1938.
“2. Plaintiff would further show the Court that on July Sth, 1939, after the plaintiff was advised by the Industrial Accident Board that the notice of intention to appeal from the Industrial Accident Board had arrived on July 3rd, 1939, and believing said notice of intention to appeal from the award of the Board had been received and filed too late, this plaintiff, through his attorney, on July Sth, 1939, advised the said Underwriters Exchange, of Galveston Texas, that he was going to dismiss or had dismissed said suit, advising them that the plaintiff’s notice of intention to appeal had arrived in Austin, Texas,after the expiration of the statutory period of twenty days, and this being true, the District Court had no jurisdiction of the matter. Plaintiff would show the Court that he was unfamiliar with the amendment of the compensation law as above mentioned and upon receiving the letter from the Industrial Accident Board advising him that said notice of intention to appeal from the award of the Board had been received and filed on July 3rd, 1939, plaintiff’s attorney A. A. Turner, acted upon the assumption that the notice had been filed one day later, all of which induced him to dismiss his cause of action. That believing, said notice of intention to appeal had been received and filed by the Industrial Accident Board more than twenty days after the award was. made in vacation, moved that the case be dismissed. That on July 6th, A.D. 1939 a notation was made on the docket dismissing said cause.
“3. Plaintiff would further show the Court that he labored under the impression that said notice had been filed more than twenty days' after the award, until August 18th, 1939, when advised by the Industrial Accident Board, that his notice of appeal had been received and filed before the expiration of the twenty-days period, and that by filing said notice on July 3rd, 1939, brought same within the statutory period.
“4. Plaintiff’s attorney would show the Court that he had not had an occasion to appeal from the award of the Industrial Accident Board since the enactment of the amendment above referred to, and that he, in good faith, believed that said notice had not been filed within the statutory period, and for this reason he, caused to be dismissed claimant’s cause of action. That said dismissal was purely through mistake and or accident but for which said cause' would still be pending.
“5. Plaintiff would show the Court that he has a meritorious cause of action and has been prevented from prosecuting the suit due to a mistaken idea, as aforesaid. That the dismissal. of said suit and the prosecution of- same has not been due to any willful negligence of the plaintiff or his attorney. That plaintiff has not had an opportunity to present his motion for reinstatement at an earlier date in that he labored under an erroneous impression until August 18th, 1939.
“Plaintiff, would further show the Court that an award was made by the Industrial Accident Board at Austin, Texas, in favor of plaintiff for the sum of One Thousand Six Hundred Ninety Dollars ($1,690.00). That the allegations set out in plaintiff’s petition can be supported by competent testimony upon the trial of this cause.
“6. Plaintiff represents unto the Court that if the suit is not reinstated that he will suffer a great loss and undergo hardships from his inability to have a redress for his injuries heretofore received; that in all fairness to himself that he should have his day in court and that said cause should be reinstated.”

The court overruled the plea to the jurisdiction. The evidence supports the grounds alleged. But it is insisted by appellant that the mistake alleged in dismissing the case was one of law and therefore could not be the basis for reinstatement. If it be admitted that the mistake was one of law, yet, nevertheless, we think the cause should have been restored to the docket, because the undisputed record is that the case was dismissed by counsel for appellee without consulting appellee, or in any manner informing him of the intention to dismiss, but that the dismissal was wholly without appellee’s knowledge or consent, and certainly was to his detriment.

Article 2089, R.C.S., reads: “The plaintiff may enter a discontinuance on the docket in vacation, in any suit wherein the defendant has not answered, on the payment of all costs that have accrued thereon.”

The early statute on the subject of discontinuance read: “The plaintiff or his attorney, etc.,” and then followed verbatim the statute as it now reads. Pasch.Dig. Laws, Art. 1440. The only change in the statute in its reenactment was to omit the words “or his attorney.” It is apparent that by this omission it was intended to limit the power of the attorney to discontinuances when authorized by his client. In Seeligson v. Gifford, 46 Tex.Civ.App. 566, 103 S.W. 416, 417, a suit in which a dismissal on the part of plaintiffs was entered by their attorneys, it was said: “We think the entry by plaintiffs’ attorneys was as much the act of plaintiffs as if they had made it in person. The presumption is that it was authorized by them.” The authority of the attorney to dismiss the suit resting in the presumption that it was authorized, the presumption was subject to rebuttal, and in the instant case it was shown without dispute that the attorney acted without consulting his client — that appellee knew nothing of the dismissal. While an attorney has implied authority to act in the conduct and management of the case in his charge, and his acts ordinarily will be binding upon his client, these acts are limited to matters of procedure, and he is not permitted to do any act or make any stipulation which operates as a surrender of the substantial rights of his client unless specially authorized by his client, and any such act will not be upheld by the courts. 25 R.C.L. 1098.

“In the absence of statute, an attorney can enter a dismissal, discontinuance, or retraxit, which terminates the case on its merits, only where he has been expressly authorized to do' so; but it is generally held that an attorney has implied authority to enter or take a dismissal, discontinuance, or nonsuit, which does not bar the bringing of another suit on the same cause of action.” (Italics ours). 7 C.J.S., Attorney and Client, § 87, Dismissal, pp. 908, 909.

Further quoting from said authority: “Unless such power has been conferred by statute an attorney employed for purposes of litigation can dismiss or discontinue the case on its merits only where his client has specially authorized him to do so * * *. Also, it has been stated generally that the general employment of an attorney to prosecute an action gives him no authority to dismiss it without his client’s consent, or at least, over his objection; but usually it is held that an employment for purposes of the litigation gives the attorney of record the implied authority to enter or take a dismissal, discontinuance, or nonsuit, which does not prejudice the client’s siibstantial rights nor bar the bringing of another suit on the same cause of action.” (Italics ours.)

Under the provisions of the Workmen’s Compensation Act, Vernon’s Ann.Civ.St. art. 8306 et seq., the dismissal of appellee’s appeal from the award of the Industrial Accident Board would have barred appellee’s right to bring another suit on the same cause of action, and deprived him of the relief sought in his appeal. A new suit on appeal could not have been sustained because the twenty day limit in which to file the suit after giving notice that he would not abide the award had long since expired.

The assignments are overruled.

Appellant’s 5th assignment complains that the pleadings and the evidence raised the defensive issue that the total incapacity of appellee was temporary, and appellant having duly excepted to the court’s charge because it did not affirmatively submit such issue, it was error for the court to refuse to submit its special requested issue reading: “Do you find from a preponderance of the evidence that the total incapacity of the plaintiff is temporary? Answer yes or no.”

In answer to special issue No. 6 the jury found that the injury sustained by appellee resulted in total incapacity; to special issue No. 7 that the total incapacity was permanent; to special issue No. 7-A that the total incapacity began on March 21, 1939, the date of the injury.

The pleadings and the evidence raised the issue of temporary total incapacity.

Special issue No. 9 submitted reads: “For what period of time, if any, of such total incapacity, if any, do you find from a preponderance of the evidence was sustained by Richard Read, from and after the beginning date, if any? Answer ‘permanent’ or answer by stating the number of weeks, if any, or answer ‘None.’ ” The jury answered “Permanent.”

Appellee insists that this issue was intended to and did submit to the jury the issue of “temporary total incapacity,” and that the jury correctly answered same “permanent,” they having already found that the incapacity was total and permanent, and so was a finding against temporary total incapacity.

It is insisted by appellant that the issue was meaningless and did not submit any fact for an affirmative finding by the jury. We think this contention must be sustained. After careful consideration of the question, as submitted, we fail to conceive just what fact was intended to be submitted— in fact that any certain matter was submitted. The special issue requested by appellant was clear and explicit, and correctly submitted the issue of temporary total incapacity, and it was error to refuse same.

Other assignments relative to portions of the charge will not be discussed as the matters complained need not arise upon another trial.

For the error discussed, the judgment is reversed and the cause' remanded for another trial.

Reversed and remanded.

WALKER, Chief Justice.

The opinion written by Mr. Associate Justice O’QUINN is adopted as the opinion of the court, except his conclusion that the court erred in refusing to submit ap-pellee’s requested issue: “Do you find from a preponderance of the evidence that the total incapacity of the plaintiff is temporary? Answer yes or no.” The court submitted every element of total, permanent incapacity, and these issues were found in appellee’s favor — all as reflected by Judge O’QUINN’s opinion.

In answering the issues on total, permanent incapacity, the jury necessarily was compelled to weigh all ■ the evidence offered by appellee that his incapacity was permanent and also- the evidence offered by appellant that it was only temporary. So, the jury necessarily found in answering the issues on total, permanent incapacity that appellee’s incapacity was not temporary, that is, the jury necessarily found that appellee had not recovered and would not recover from his total incapacity. Appellant’s requested issue on “temporary” incapacity was simply a negative submission of the issue of “permanent incapacity.”

Appellant’s requested issue concedes that appellee had suffered a total incapacity; on that issue the point between appellant and appellee was whether or not appellee’s incapacity was only temporary. On, that very point, in Texas Employer’s Ins. Ass’n v. White, 32 S.W.2d 955, 958, writ refused, this court said: “Seventh. The court did not err in refusing to submit, as an affirmative defense, appellant’s requested issue as to whether or not appellee had recovered from his injury. Of course, all issues of fact raised by the evidence under proper pleadings should go to the jury. Galveston, H. & S. A. Railway Co. v. Washington, 94 Tex. 510, 63 S.W. 534. But, as said in Hoover v. Hamilton (Tex.Civ.App.) 14 S.W.2d 935, 939, it is not- the duty of the trial court ‘to submit the same special issue of fact to a jury both affirmatively and negatively.’ We do not understand that the Washington case, the leading authority in this state on this point of practice, has ever been given the construction contended for by appellant. That case goes no further than to sustain the proposition announced above. The issues of fact within the rule announced in the Washington case are only such issues as constitute the cause of action asserted by plaintiff or the defenses asserted by defendant. Thus, where an issue is raised by the plaintiff sustaining his cause of action, and the defendant, by evidence extraneous to the plaintiff’s issue, raises an independent issue, constituting a defense thereto, both should be submitted to the jury; for, as said in the Washington case, unless such defensive testimony is called to the attention of the jury by a proper charge, it may be overlooked. Now in this case all the testimony as to the nature of appellee’s injury was before the jury and had to be considered by it in answering question No. 2. Whether or not plaintiff had recovered from his injury was not an independent issue, but was fully embraced in the question submitted.”

Our holding in the White case is not in conflict with our holding in Indemnity Insurance Co. v. Boland, 31 S.W.2d 518; the Boland case was decided on authority of the Washington case, supra, cited by us in the White case.

It is our conclusion that the lower court did not err in refusing to submit appellant’s requested issue.. It is also our conclusion that the assignments not discussed by Judge O’QUINN do not constitute error.

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

Affirmed.