author: SUTTON, Justice.

text:
    BOOMER v. MASSACHUSETTS BONDING & INS. CO.
    No. 4028.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 30, 1941.
    Rehearing Denied Peb. 27, 1941.
    Second Rehearing Denied March 13, 1941.

      Fred C. Knollenberg, of El Paso, for appellant.
    Jones, Hardie, Grambling & Howell and Theodore Andress, all of El Paso, for ap-pellee.
   SUTTON, Justice.

This is an appeal from the County Court at Law of El Paso County.

The parties will here be designated as in the trial court.

The plaintiff, Henrietta Boomer, admin-istratrix of the Estate of Monte H. Boomer, deceased, sued the defendant, Massachusetts Bonding and Insurance Company, to recover the principal sum of $353.33, claimed to be due under a policy of accident and health insurance issued to her deceased husband during his lifetime. She further sought to recover twelve per cent penalty and reasonable attorney’s fees under Article 4736, R.C.S.1925, Vernon’s Ann.Civ. St. art. 4736, because of an alleged failure on the part of the defendant to pay the principal within thirty days after demand therefor. The trial was before a jury, but the court submitted only one issue on'the amount of a reasonable attorney’s fee. He disregarded the verdict and rendered judgment for the plaintiff for the principal sued for and costs up to and including the filing of defendant’s original answer, and declined to permit a recovery of the penalty and attorney’s fees. From this judgment the plaintiff has appealed.

The plaintiff makes a number of assignments of error and asserts a greater number of propositions thereunder. However, there is but one question presented for the determination of this court: Did the trial court commit error in refusing, under the record made, to permit the recovery of the penalty and attorney’s fee ?

As we understand defendant’s brief, it admits the propositions made by the plaintiff, except that before the penalty and fee may be recovered, it must be alleged and proved that the same party who seeks the recovery is the same person who made the demand and in the same capacity. The suit was brought by Mrs. Boomer as the admin-istratrix of the Estate of Monte H. Boomer, deceased. The defendant asserts that she, in that capacity, never made a demand, and that by reason thereof she cannot recover the penalty and fee. The trial court so concluded. The plaintiff, therefore, must overcome that conclusion.

The material facts necessary to a disposition of this appeal and the issue presented are substantially as follows: Monte H. Boomer, on January 12, 1938, was struck by an automobile; the defendant paid the amount of indemnity provided for in the policy, one hundred dollars per month, to June 12, 1939, the last two payments after some controversy; Boomer died September 29, 1939.

October 7, 1939, Mr. R. G. Harris, an agent of the defendant, procured in person and sent in the death claim and proofs of death. October 19th or 20th, 1939, he was authorized to settle with Mrs. Boomer for $250, which sum he offered her, and sought an acceptance and receipt in full settlement of the claim. It was declined and the full claim pursued. On October 20, 1939, Mr. Fred C. Knollenberg, attorney for Mrs. Boomer, wrote the defendant, in part, as follows: “I now make demand upon you, on behalf of Mrs. Monte H. Boomer, for the monthly payments of $100.00 each, for the three months'' and seventeen days, and if same is not paid within thirty days I will avail myself of the statutes in such cases made and provided.”

October 24, 1939, the defendant replied, in part, as follows:

“According to the information which' we have secured also, it appears that the claimant’s disability, at least beginning on or about September 24th, 1939 was not the effect resulting directly and independently of all other causes through external violent and accidental means and the direct result of the claimant’s accidental injury of January 12th, 1938. It appears from medical information in our possession that the insured at that time became disabled because of a serious illness condition which finally resulted in the insured’s death on or about September 29th.
“The beneficiary designated in our contract is not entitled to any of the benefits payable under the policy except in connection with the principal sum which is payable in the event that the insured suffered accidental injuries which result in death within the period prescribed under the terms of the policy, and in which case, the principal sum payable is supplied to the designated beneficiary.
“All other indemnities, however, are paid to the insured during his lifetime and upon his death automatically become due and payable to his estate.”

October 30, 1939, Mr. Knollenberg again wrote to the Company, in part, as follows:

“Now, so there is no question at all about it, we demand of you the payment of the money due the executrix of the estate of Monte H. Boomer, as was intended in my letter of October 20th, since you are going to raise technicalities upon the payment of the indemnity due under your policy; * * *. When the thirty days are up I expect to bring suit against you for Mrs. Boomer as executrix of the estate, and I have so made demand upon you for the payment of the amount due as indemnity under the policy.
“I want to ask you if there is any question at all raised about my demand for either Mrs. Boomer or the Estate of Monte H. Boomer, deceased. Would appreciate hearing from you with regard to that question alone.”

November 7, 1939, the defendant replied, in part, as follows:

“We believe also that there is no question that the insured suffered a fatal illness, which at least had its beginning on or about September 24th, 1939, and from which he succumbed on September 28th and his disability, at least beginning on September 24th, 1939, could not be considered as an effect resulting directly and independently of all other causes through external, violent and accidental means.
“It is not entirely clear from your recent letters whether or not you are making your demand upon the Company in behalf of Mrs. Boomer as beneficiary under the above numbered policy, or as executrix of the estate of the late Monte H. Boomer.
“If she has been appointed as executrix of the estate, then surely the Company should be supplied with a duplicate copy of the letter of appointment * * * and to supply us with the correct name and address of the person who is equitably entitled to the proceeds of our policy and for the disability suffered by the late insured for which indemnity is payable under the terms of our contract.
“May we suggest, therefore, that you kindly comply with the reasonable request of the Company * * * and supply to us a duplicate copy of the letter of appointment of Mrs. Boomer as executrix of the estate and also any explanation which the attending physician may care to supply to the Company covering the lack of medical treatment above referred to or of any additional dates of medical attention which have not been previously reported.”

November 16, 1939, Mrs. Boomer qualified as administratrix of the Estate of Monte H. Boomer, and as such, on November 25, 1939, filed her suit, alleging the demands set forth above but alleging none subsequent to November 16, 1939, the date she qualified.

On January 2, 1940, the defendant filed its original answer, and for the first time admitted liability for the full amount of the principal sued for and claimed. It used this language: “Defendant has made its own investigation of the facts and circumstances, and here and now tenders ■ the amount due under the policy of $353.33.”

Defendant admits the sufficiency of the demands as to form and time of making, but undertakes to avoid them because not made by the same party in the same capacity who sues, Mrs. Boomer, Administra-trix.

The contention of the defendant may be briefly and shortly disposed of. The proceeds of this claim are community property. Art. 4619, R.C.S.1925, Vernon’s Ann.Civ.St. art. 4619; Brand v. Brand, Tex. Civ.App., 102 S.W.2d 310. The plaintiff, therefore, had the right to make the demand, as made, and to receive the money due as community survivor, and failing in that to bring the necessary suit to recover. Speer, Law of Marital Rights in Texas, 3rd Ed., page 852, and the many cases there cited. We will, nevertheless, consider the propositions raised by plaintiff in her brief.

The manifest purpose of the statute is to effect a speedy collection of just claims without diminution; without unnecessary delay and expense.

The defendant admits the justness of the claim and that it was due by the tender made in its answer. It seeks only to avoid the penalty and fee, because no demand was ever made by Mrs. Boomer in the capacity of administratrix. Its position is a little inconsistent in that particular. It authorized its agent, Mr. R. G. Harris, rather promptly after the death of Boomer, to settle'with Mrs,, Boomer for $250, and he presented and suggested and advised the acceptance of the compromise and execution of the receipt. It is nowhere shown in the record in this case that the defendant or its agent ever raised any question whatsoever with respect to the right of Mrs. Boomer to receive the proceeds of the claim. It made no indication that it would pay to the estate. Mr. Knollenbcrg put that question squarely up to the Company. Mr. Knollenberg’s question is not answered. The Company refers to the matter of the appointment of Mrs. Boomer as the representative of the estate and suggests that it should be supplied with copies of the letters, but no indication is made it would pay the claim if it were so supplied. On the contrary, many other reasons are suggested why it had declined. The conclusion cannot be easily escaped that the appointment and demand in that capacity would have made any difference or availed anything. The Company did not make the tender until it was forced to file its answer to avoid a default judgment. Had the matter of appointment been the reason for delay, it could have easily said so and made the tender at any time after November 16, 1939, and there was no occasion to wait until January 2, 1940, the time to file an answer. We think the language of its answer and tender discloses the reasons why it had not sooner paid: “Defendant has made its own investigation of the facts and circumstances, and here and now tenders the amount due under the policy of $353.33.”

We have undertaken to refer to and copy all the testimony relating to the issue here to be decided, and have gone to much greater length in doing so than we desired.

In the case of American National Ins. Co. v. Val Verde, Tex.Civ.App., 35 S.W.2d 1060, 1061, the Company denied liability and sought to avoid the payment of the penalty and attorney’s fee because the certificate of the attending physician showed the deceased had tuberculosis long before the policy was issued, and that death resulted therefrom. Judge Higgins in that opinion said: “When demand was made for payment, plaintiff in error was put upon notice that the validity of the policy was asserted by defendant in error, and under the statute (article 4736, R.S.) plaintiff in error became liable for attorney’s fees and penalty if it failed to pay within thirty days after such demand. To sustain the second proposition would be to ingraft upon the statute an exception which the Legislature did not see fit to make.” Again he says: “Plaintiff in error had ample time to inquire and ascertain the true cause of death and that the certificate was erroneous. The demand for payment placed plaintiff in error upon such inquiry. It apparently made none.”

In this case the Company had paid Boomer full benefits for some seventeen months.

We think the reason and rule laid down by Judge Higgins are applicable here. If the Company were not satisfied with the information it had obtained in the months gone by, it had ample time to secure additional information, as its answer and tender indicate it did procure.

After Boomer’s death and the proofs were made the statute made it the duty of the Company to pay the claim promptly after the demand, or make its position clear and plain for refusing, and if mistaken and it ultimately failed to sustain its reasons in law, then suffer the penalties of the ■statute.

The law will not require a claimant to qualify as the legal representative of an estate to receive the benefits under a policy of insurance. To do so would require such claimants to spend a good part of many small claims on court costs and attorney’s fees; whereas the purpose of the statute is to protect the claim. If this procedure were required, it would open the gate always for compromises on the basis of reductions equal to such expenses and result in hardships and injustices. In many instances the claimant is the sole heir at law of the deceased and no necessity exists for an administration. The ■defendant was put on notice of the assertion of the right to the proceeds of the policy by Mrs. Boomer. The law will presume one in possession of a policy is entitled to the proceeds due under it. If the Company had any doubts about its liability, or Mrs. Boomer’s right to the proceeds, it should have made the investigation it did make and have taken the legal steps open to it under the law and tendered the proceeds in due time, if it desired to avoid the penalty and fee. The defendant had a choice between two courses: It could, as it did, decline to pay and take the chance of being wrong and incurring the penalty and fee; or, if it had any doubt as to the right of Mrs. Boomer to receive the proceeds, file an interpleader, or tender the amount into court promptly, and let her incur the expense incident thereto; or, if wrong, take the consequences. There was no more obligation, certainly, resting upon her to incur the expense to establish the correctness of her position than upon the defendant to establish its.

The effect of the position of the defendant is that it was doubtful as to the right of Mrs. Boomer to receive the proceeds of the policy in the capacity demanded, and that it, therefore, acted in good faith in withholding payment until she had qualified as the representative of the estate. Had that been the only position taken by it, and had it promptly made the tender after her qualification, there might be more force to the argument. But, as has been said, no exception to the statute has been ingrafted upon it, except where the insurance company is in doubt as to whom the money should he paid on account of conflicting claims; and then only when it acts in good faith and makes known its position promptly and clearly, and promptly admits its liability and makes a bona fide tender of the full amount due. New York Life Ins. Co. v. Veith, Tex.Civ.App., 192 S.W. 605; Southwestern Ins. Co. v. Woods Natl. Bank, Tex.Civ.App., 107 S.W. 114; Grand Lodge Knights of Pythias of Texas v. Watson, Tex.Civ.App., 145 S.W.2d 601.

In the case of New York Life Ins. Co. v. Veith, supra [192 S.W. 606], it is said: “No question as to the good faith of a defense to the policy can be interposed to prevent collection of the penalties; but the only exception to the statute is when an interpleader is sought in good faith and promptly. If the question of good faith as to a defense was allowed to intrude itself into the trial of cases against insurance companies, it would be a difficult matter to ever obtain a judgment for penalties.”

Our views, as expressed on this controlling issue in the case, make it unnecessary to pass on the assignments challenging the action of the court in excluding certain testimony.

The trial court found that a reasonable attorney’s fee for the prosecution of this suit in the trial court and on appeal was $225. No question about the amount and reasonableness of the fee has been raised. It is within the province of the court to fix a reasonable fee. American Nat. Ins. Co. v. Points, Tex.Civ.App., 131 S.W.2d 983; Pacific Mutual Life Ins. Co. of California v. Berryhill, Tex.Civ.App., 69 S.W.2d 784.

The judgment of the trial court is reversed and judgment here rendered in favor of plaintiff for the principal sum of $353.33, together with twelve per cent penalty thereon, $42.40, and attorney’s fees in the sum of $225, a total sum of $620.73, together with interest thereon from March 21, 1940, and all costs.

Reversed and rendered.

On Rehearing.

We gladly eliminate the reference made to the letter of the defendant dated June 2, 1939, found in our original opinion. This is done without passing on its admissibility. We think the reference must have occurred • by reason of its admission and reading to the jury without objection, but later stricken.

We have concluded the fee allowed should be reduced from $225 to $150, and our former judgment reformed to that extent. The defendant for the first time in its motion for rehearing raised any question about the trial court’s finding that a reasonable fee is $225. We thought we made clear in our original opinion that amount had been adopted because no question had been raised as to the amount and reasonableness of the fee. The defendant knew the plaintiff had caused the trial court to find on the amount and reasonableness of the fee for the purpose of this appeal; that that was the principal issue briefed, or rather presented for determination, oh appeal. No exception or objection was urged there. The defendant prepared and filed its brief in response to that filed previously by the plaintiff, and neglected to make any reference to the amount and reasonableness of the fee. That question we think could have . been more appropriately raised in the trial court, or in the brief, rather than here in this motion for rehearing. Had it been done we would not have been led to believe the amount and reasonableness of it was acquiesced in by the defendant, nor would we have been made the victim of counsel’s intemperate language. We do not want counsel to gain the erroneous impression that his intemperate language has influenced us to alter the amount of the fee. We have done that on our own considerations of what we think a reasonable fee ought to be under the circumstances in this case, and one we would have originally fixed but for the silence of the defendant which caused us to believe it had consented to the amount and reasonableness of it as found by the trial court.

The defendant, we think, misconstrues what we said about the plaintiff’s right to make the demand and receive the proceeds of the policy as community survivor. We could not and did not undertake to constitute her the community survivor by our opinion — the law makes her that. We were passing upon the sufficiency of the demand. The fact that she brought the suit as ad-ministratrix has nothing to do with the sufficiency of the demand, nor does it constitute her some other person or individual, any more than had she made the demand as Mrs. Monte H. Boomer, and filed the suit in the name of Henrietta Boomer.

The judgment will bear interest at six per cent from April 1, 1940.

We find no merit in the motion, and it is overruled.

Our original opinion and judgment will be reformed in accordance with the views herein expressed.


source: Caselaw Access Project

author: LESLIE, Chief Justice.

license: Public Domain

text:
    MAYES et ux. v. WEST TEXAS UTILITIES CO.
    No. 2107.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 21, 1941.
    Rehearing Denied March 21, 1941.

      Scarborough, Yates & Scarborough, of Abilene, for appellants.
    Wagstaff, Harwell, Douthit & Alvis, of Abilene, and Eskridge & Groce, of San Antonio, for appellee.
   LESLIE, Chief Justice.

J. R. Mayes and wife instituted this suit against the West Texas Utilities Company to recover damages by reason of the death of their son, Troy Mayes, who was electrocuted while climbing a transmission tower owned by the defendant. The defendant answered by general denial, special pleas, etc., and the court submitted the case to the jury on plaintiffs’ testimony. The jury’s answers to the special issues were returned into court. Each party made motion for judgment on the verdict, and the defendant also moved for judgment notwithstanding the verdict. Said motions came on for hearing and the court was of the opinion that “the plaintiffs under-no circumstances are entitled to a judgment, but that both the defendant’s motion for a judgment on the verdict and its motion for judgment notwithstanding the verdict * * * should be sustained.” Judgment was entered accordingly.

On November 231939, Troy Mayes, a boy twelve years and four months of age, was electrocuted while climbing a transmission tower belonging to the defendant and situated'on land owned in fee by the West Texas Utilities Company. The tower was 40 or 50 feet high, and was similar to those in common use by such companies. At the time of the accident the boy had climbed about 18 feet up the tower, at which point he came in contact with the hanging wire charged with electricity. At the time of the accident the boy was accompanied by his twin brother, Roy Mayes. The latter testified that before the. accident he did not see the loose wire; that they were crossing the pasture and climbed the tower to locate themselves; that they had lost their bearings. The tower was about 2 miles east of the city of Abilene and situated in open pasture covered with mesquite timber. Roy testified that prior to that time, he had never climbed the tower, played around the same, nor cut across the pasture, by or under the tower. The testimony does not disclose that any one else had theretofore climbed the tower, nor that the ground surrounding the base had been habitually used by children as a playground. The pictures of the tower found in the record disclose that rather large sharp or jagged rocks covered the base of the tower. The first spike by which the company’s employees ascend the pole is about 6 or 7 feet above the ground.

As we interpret this record, the plaintiffs predicate liability primarily upon allegations that the tower' in question constituted an attractive nuisance and as maintained amounted to an implied invitation to Troy Mayes to climb upon it. On the, other hand, the appellee denies the existence of any such attractive nuisance at the time of the accident, and contends that Troy Mayes was a trespasser on its property. If at the time of the accident the deceased boy was a trespasser under the circumstances, then other issues decided by the jury, being in conflict with each other, become immaterial, and the appellee would be entitled to a judgment.

Many issues were submitted to the jury, among them the twelfth and thirteenth, answered as indicated. Question 12 was:

“From a preponderance of the evidence do you find that defendant’s tower from which Troy Mayes fell was so built, arranged and equipped as to be unusually attractive as a place to climb to a boy of the age of Troy Mayes? Answer yes or no.
“Answer No.
“If you have answered question No. 12, yes, and only in that event then answer
“Question No. 13: From a preponderance of the evidence do you find that Troy Mayes was caused to go upon defendant’s tower by and as a result of the unusual attractiveness of the said tower on the occasion in question ? Answer yes or no.
“Answer No.”

While the jury gave these unqualified answers to said important questions, nevertheless our conclusions herein are based upon what we deem to be the conclusive nature of the testimony in the case. The entire testimony has been read and given most careful consideration and we- are forced to the conclusion that, as a matter of law, no attractive nuisance was shown to exist.

Since the undisputed testimony shows that the deceased climbed upon the private property of the defendant without any invitation, express or implied, he was unquestionably a trespasser. As such, the defendant owed him no duty, except not to willfully injure him. There are neither pleadings nor testimony of any intentional injuries. Under such circumstances no liability existed on the part of the defendant, and the court correctly entered the judgment notwithstanding the verdict.

The law applicable to such facts is elementary. It is stated in 30 Tex.Jur., p. 857, sec. 174, as follows: “ * * * the owner or occupant of real property is under no obligation to make it safe for the ben■efit of trespassers, intruders or mere licensees coming upon it without his invitation, express or implied,”

As applied to a case based upon the theory of attractive nuisance an approved statement of the law in that respect is to be found in Texas Power & Light Co. v. Burt, Tex.Civ.App., 104 S.W.2d 941, 942, writ refused, in an opinion by Judge Alexander: “The doctrine of attractive nuisance, which holds the owner liable for injury to children who trespass on his property, applies only where such owner maintains an instrumentality or appliance that is so unusually attractive that it appeals to the childish impulses of children of tender age in such manner as in a sense to constitute an invitation to them to play thereon, and that such appeal, and the dangers incident thereto, should be foreseen and care taken to prevent the evil consequences.” (Italics ours.)

As a case in point we cite Texas-Louisiana Power Co. v. Bihl, Tex.Com.App., 66 S.W.2d 672, 674, opinion by Judge Critz. It is there held that an ordinary pole used by electric light, telegraph and telephone companies was not an attractive nuisance. The pole in that case was but 20 feet high, and the transmission lines supported by it carried 2300 volts of current. As in the instant case, there was a loose or suspended wire. The transmission line itself was not the statutory 22 feet from the ground. In disposing of the case the Supreme Court said: “It is the overwhelming weight of authority that ordinary poles used by electric light, telephone, and telegraph companies are not attractive nuisances, and we are unable to conclude that the loose wire already described made this pole so unusually attractive and alluring to young boys to climb as to impliedly invite them to do so. This conclusion settles this case.”

As applied to the instant case, the brother-in-law of deceased testified there was nothing unusually attractive about the tower on which the boy was electrocuted, that it was similar to those in use generally over the State. Taken as a whole, we find no testimony that the tower was in any respect “unusually attractive.”

We take from Texas Power & Light Co. v. Burt, supra, this further pertinent holding: “In the case of Simonton v. Citizens’ Electric Light & Power Co., 28 Tex.Civ.App. 374, 67 S.W. 530, the court held that an electric light pole, located in a public street where children commonly congregated and played, with spikes driven therein at convenient places for aiding in climbing the pole, was as a matter of law not an attractive nuisance. The Supreme Court refused a writ of error in that case. In the case of Texas-Louisiana Power Company v. Bihl (Tex.Com.App.) 66 S.W.(2d) 672, in an opinion by Mr. Justice Critz, the court followed the holding made by the Court of Civil Appeals in the Simonton Case and held that an electric light pole erected on or near the premises of the father of the injured child, which pole had attached thereto a loose wire which could be used for climbing the pole, was as a matter of law not an attractive nuisance. The tower here undep consideration does not appear to be any more attractive to young children than the ordinary electric light pole such as was under consideration in the cases above referred to.”

To the same effect is the opinion in Corder v. Houston Lighting & Power Co., Tex.Civ.App., 38 S.W.2d 606, writ refused.

In the foregoing conclusions we think there is nothing out of line with the opinion in Quisenberry v. Gulf Prod. Co., Tex. Civ.App., 63 S.W.2d 248, 250. In that case we were dealing with a situation described as one in which “there was a strong likelihood of the accident” and where the-“danger was one not ordinarily encountered,” meaning, in substance, one unusually attractive.

In the instant case, as pointed out, there is no testimony that the tower was any more dangerous to the public, or attractive to children, than the tower in common use for such purposes throughout the State. The twin brother did not discover the hanging wire until he had climbed the tower, and the suspended wire would have injured no one who refrained from trespassing upon the tower. The evidence does not stamp the tower as an attractive nuisance.

The appellants further insist that regardless of the fact that Troy Mayes might have been a trespasser when the accident occurred, still the defendant would be liable in that part of its equipment (suspended wire) came below a point 22 feet above the ground (as specified in Art. 1436, R.S. 1925), which fact alone, it is contended, rendered the defendant liable for the death of the child. That statute, in part, provides, “Such lines [power] shall be constructed upon suitable poles in the most approved manner and maintained at a height above the ground of at least twenty-two feet * * * as the exigencies of the case may require.”

It is undisputed in the instant case that the transmission lines of the defendant were 40 or '50 feet above the ground, and that the suspended wire was no part “of such line.” However, if it be regarded as a part of the equipment, we do not believe that the above statute requires that all pieces of its wires and lines carrying high voltage shall necessarily be not less than 22 feet above the ground. As plausibly argued by the appellee, transformers, stations, switches and other equipment involving the use of wire would then have to be erected upon platforms not less than 22 feet above the ground. Even distribution lines could not be connected to customers doing business on the ground. Obviously, the appellee’s transmission lines were not less than 22 feet above the ground. We do not believe that the statute under consideration imposes liability merely upon the fact that a suspended wire reached within about 15 feet of the ground.

However, if it be considered that the appellee violated some statutory duty, still the facts reflected by this record would create no cause of action in favor of the trespasser on private property. Our Supreme Court in Burnett v. Fort Worth Light & Power Co., 102 Tex. 31, 112 S.W. 1040, 1041, 19 L.R.A.,N.S., 504, held: “We fail to see how a trespasser acquires any right by reason of the negligence arising from the violation of an ordinance of a city or a statute, rather than from negligence at common law.”

The opinion in the Burnett case was cited and quoted from extensively in the recent decision of our Supreme Court in the case of Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302, 305, where Judge Critz makes the following statement:

“ * * * the general rule is that as regárds the liability of the owner or occupant of land for damages arising out of his negligence to persons coming on such land, there is no distinction to be drawn between cases of common-law negligence and cases of statutory or per se negligence.
⅝ ⅜ ⅜ ⅜ ' ⅜ ⅝
“It is the general rule, as established by our decisions, that the owner or occupant of real property is under no obligation to make it safe for the benefit of trespassers, intruders, or mere licensees coming upon it without his invitation, express or implied.”

We are of the opinion that there is no merit in this last contention. As stated above, numerous issues were submitted to the jury. There were conflicts in the findings and it would be necessary to reverse and remand this case, were it not for the matters above discussed and conclusively established.

The judgment of the trial court notwithstanding the verdict is correct and is affirmed. It is so ordered.


author: YOUNG, Justice.

text:
    DALLAS PHOTO-ENGRAVERS’ UNION NO. 38 v. LEMMON.
    No. 13149.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 8, 1941.
    Rehearing Denied March 8, 1941.
    Jack Johannes and Roy E. Cogdill, both of Dallas, for appellant.
    S.Austin Wier and Howard E. Moore, both of Dallas, for appellee.
   YOUNG, Justice.

Appellee, J. H. Lemmon, instituted mandamus proceedings in the trial court against the Dallas Photo-Engravers’ Union No. 38, to compel the setting aside of a suspension order and fifty-dollar fine, which had been theretofore assessed by defendant body. Upon a jury trial, and at the close of the testimony, both parties made request for peremptory instruction, whereupon the court dismissed the jury and granted plaintiff’s motion; the judgment rendered restoring Lemmon to full membership and holding null and void the prior sentence of suspension and fine. The defendant, here appealing from such order and decree, is a ■trades union, organized as a voluntary, unincorporated association. It is a branch of the International Photo-Engravers Union of North America, operating under printed constitution and by-laws, with formulated rules for the conduct of its affairs. These rules provide a way of handling all accusations and charges against a member; in substance, that such shall be presented in writing to the executive board (a designated five), who shall determine if the charges are cognizable, reporting their findings to the' next regular meeting of the Union; the latter body then deciding by majority vote whether the case shall be prosecuted. If the decision be affirmative, then a trial commission of seven is set up to hear the charges under given regulations, and a vote of five is necessary to sustain them. This committee is empowered to pass sentence, reporting to the Union their action. The losing party may then appeal to the Union as a whole, and upon a hearing, a two-thirds vote of the members present is required to sustain the sentence, which then becomes the judgment of the local body. In any examination, trial, or appeal, the accused is enti-titled to counsel, who must be a member of the Union; and in chapter 1 of defendant’s constitution, is provided: “This Union shall in all things be governed by the constitution and general laws of the International Union of North America * * Turning to the laws of the basic organization (also in evidence), we find right of appeal from the decision of a local union is assured to every member in good standing; Section 1, Article 21 thereof, reading: “Every member shall be guaranteed a fair trial on any charge or complaint filed against him and must be afforded an ample opportunity of defense and every member agrees to and is required to exhaust all remedies and resources for redress oy adjustment of any complaint, grievance or charge, provided by the Constitution and General Laws before taking his case to the civil courts.” Such appeal by an aggrieved member of a subordinate body shall be first to the president of the International Union, then by either party to the executive committee thereof, and. then, if need be, to the next general convention. Mr. Lemmon, when he became a member of defendant body, signed the following declaration in his dues book: “I, the undersigned, do hereby accept the Constitution and By-Laws of the International Photo-Engravers Union of North America, and hereby declare that I am fully in accordance with the rules of the same.” He testified, in effect, to no knowledge of any right of appeal from the local order to the International, but Ernest Fritz, his counsel-member, in turn testified that after plaintiff’s sentence had been approved by defendant, he had advised Lemmon to prosecute a further appeal to the parent organization.

The examination, trial, and appeal through the local Union’s machinery occurred on and prior to September 29, 1940, the date of his ultimate suspension and fine; no attempt being made to obtain further redress, as afforded by the International constitution and by-laws. Plaintiff’s application for mandamus charged, in substance, j that he was arbitrarily suspended, the Union acting in bad faith, without just cause j or notice, whereby he was deprived of a I fair and impartial trial; that the constitu- I tion and by-laws -relating to trial regula- jj tions were ignored, the proceedings being Í conducted in secret, thus precluding him'¡ from facing and cross-examining adverse) witnesses; that all accusations were conclu- ) sively refuted, his conviction resulting alone 1 from certain unfounded prejudices of the Union majority.

Defenses, both in, pleading and fact, were that plaintiff had been accorded a fair trial, pursuant to the rules of the order, which were in evidence; raising by plea in abatement, and later in motion for peremptory instruction, the familiar proposition of law that courts will not interfere with the internal management of a voluntary association, such as a labor union, on behalf of an aggrieved member, until he exhausts all remedies within the organization. Appellee admits the general rule to be as just stated, but argues that it is unnecessary to pursue further remedies within the association (1) when fraud, oppression or bad faith is established in the initial proceedings of the local; and (2) when the internal appellate processes are inadequate to afford relief, or where appeal thereto would be futile. Plaintiff nowhere points out wherein his recourse to the International body might be inadequate, save possible delay incident to pursuing the various Union remedies, and his cause thereby becoming moot, a situation just as certainly applicable to civil litigation. Ap-pellee’s contention otherwise is no more than that the judgment of the Union was illegal and void. But this showing, without further exceptional facts, is entirely insufficient, we think, to warrant judicial interference, if organization channels are available and not appealed to. No decision in Texas jurisprudence has been more uniformly followed and cited than Screwmen’s Ben. Ass’n v. Benson, 76 Tex. 552, 13 S.W. 379, 380, Judge Gaines, for the Supreme Court, there held, under facts quite analogous: “But, if there be a right of appeal, should a mandamus be awarded before that remedy has been exhausted ? We think not. It seems to us that the rule that this extraordinary writ will not lie where another adequate remedy exists, applies with peculiar force to this class of cases. Members of such associations, • having voluntarily constituted tribunals to adjust their differences, should not be permitted to re-' sort to the courts of justice to set aside the illegal awards of such tribunals as long as there is another body which has power to reverse the sentence, and which has not been appealed to. The presumption is that .if plaintiff had appeared before the association at a proper meeting, and had taken an appeal from the sentence of the board of trustees, the sentence, if illegal,' would have been set aside. At all events, if refused, it would have been soon enough for plaintiff to have applied to this court for restitution through a writ of mandamus. If his expulsion was illegal, and if the association had refused, upon appeal, to set it aside, it may be that this court would have granted redress. We think it matters not that the order of expulsion may have been contrary to law and void, and such as this court would not hesitate to annul in case there was no appeal within the association. The point is that it was the action of the tribunal created in accordance with the constitution, and the appellee had an adequate remedy by appeal within the society itself.”

Appellee’s cases either cited the authority just quoted from, or affirm the general rule there stated. Referring to them, St. Louis & Southwestern Ry. Co. v. Thompson, 102 Tex. 89, 113 S.W. 144, 19 Ann. Cas. 1250, was a damage suit to which the rule is not applicable. In Brown v. Harris County Medical Soc., Tex.Civ.App., 194 S.W. 1179, and Willis v. Davis, Tex.Civ. App., 233 S.W. 1035, the association laws made no adequate allowance for relief by appeal; and in Brotherhood of Railroad Trainmen v. Price, Tex.Civ.App., 126 S.W.2d 74, writ refused, it is clearly the opinion of Chief Justice Monteith that the civil action oh grounds of fraud, oppression or bad faith is cognizable after appellate .remedies of the society are exhausted and not before. Plaintiff’s interpretation of the aforesaid doctrine would leave it entirely without forcé or meaning. In Fraser v. Buck, Tex.Civ.App., 234 S.W. 679, 684, also cited by appellee, the ruling of Chief Justice Pleasants is altogether favorable to appellant’s contention here. We adopt the final paragraph of the opinion, which is decisive of this appeal: “Our conclusion is that the trial court erred in overruling the plea in abatement, and that the judgment should be reversed, and judgment here rendered dismissing plaintiffs’ suit without prejudice to again appeal to the courts, after having exhausted their remedy in the association, to protect them in their rights of property or then personal rights and privileges as members or officers of the association in event such rights should be illegally invaded or denied by the action of the tribunals of the association.”

Among other cases demonstrating uniform adherence to the general rule of Screwmen’s Ben. Ass’n v. Benson, supra, can be cited Sawtell v. Feser, Tex.Civ.App., 235 S.W. 960; International Longshoremen’s Ass’n, Local No. 329, v. Williams, Tex.Civ.App., 102 S.W.2d 1072; Grand International Brotherhood of Locomotive Engineers v. Marshall, Tex.Civ.App., 119 S.W.2d 908, writ refused; Webb v. Chicago, R. I. & G. Ry. Co., Tex.Civ.App., 136 S.W.2d 245. The mandamus action was premature and renders unnecessary a discussion of appellant’s further assignments or propositions. This cause is reversed and judgment here rendered dismissing plaintiff’s suit without prejudice to his rights at law, after the stipulated association remedies have been exhausted.

Reversed and rendered without prejudice.


author: GRISSOM, Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. POLSON.
    No. 2102.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 7, 1941.
    Rebearing Denied March 7, 1941.

      Lightfoot, Robertson & Gano, of Fort Worth, and Coffee & Coffee, of Big Spring, for appellant.
    Martelle McDonald and Brooks & Little, all of Big Spring, for appellee.
   GRISSOM, Justice.

Pairlee Poison instituted this suit against Federal Underwriters Exchange, the employer’s insurance carrier, to recover compensation under the Workmen’s Compensation Act, Rev.St.1925, art. 8306 et seq., on account of the death of her husband on August 9, 1939. She alleged his death was the result of an accidental injury received by him on January 9, 1939, while in the course of his employment with the Lincoln Tank Company. Plaintiff alleged that on January 9, 1939, while in the regular course of his employment with the Lincoln Tank Company, her husband tugged with the lever of a boomer fastening down a chain upon the truck of his employer and in doing so received an accidental injury, in that, such exertion placed a strain upon his heart, injuring it and causing it to give way, whereby he suffered a heart stroke that caused his death on August 9, 1939.

In response to special issues submitted to them the jury found, among other things, that: (1) On January 9, 1939 Joseph Elmore Poison sustained an injury to his heart; (la) that such injury was sustained in pulling the lever on the boomer; (2) that said injury was an accidental injury; (3) that such injury was received in the course of his employment with the Lincoln Tank Company; (4) that such injury was a producing cause of Poison’s death; (5) that Poison’s death was not caused solely by an existing diseased condition independent of an accidental injury sustained on January 9, 1939; (6)' that Poison had not worked in the same or similar employment for substantially a year immediately preceding January 9, 1939; (7) that there were no employees of the same class as Poison who worked substantially the whole of the year immediately preceding said date in the same or similar employment in Howard County, or in neighboring places; (8) that the average daily wage of Poison that would be fair and just to both parties was $5; (14) that Poison did not recover from the cardiac failure of the heart of January 9, 1939; (15) that Poison would not have died if he had not received the accidental injury on January 9, 1939.

Judgment was rendered on the verdict for plaintiff and defendant has appealed.

As heretofore shown, the jury found, in answer to issues 1, la, 2, 3, 4, 5, 14 and 15, that Poison sustained an injury to his heart on January 9, 1939; that such injury was sustained in pulling the lever on a boomer; that the injury was an accidental injury; that such injury was received in the course of his employment with Lincoln Tank Company; that said injury was a producing cause of Poison’s death; that' Poison’s death was not caused solely by an existing diseased condition independent of plaintiff’s accidental injury sustained on January 9, 1939; that Poison did not recover from the cardiac failure of the heart of January 9, 1939; that Poison would not have died if he had not received the accidental injury of January 9, 1939.

By its first ten propositions, defendant contends that the evidence was insufficient to sustain the answers of the jury to said issues. It is particularly urged by defendant that the evidence is insufficient to authorize the finding. that the deceased employee suffered an accidental injury on January 9, 1939 in the course of his employment with the Lincoln Tank Company, or that the injury of said date, if any, was a contributing cause of the plaintiff’s death in August, 1939. Defendant insists the evidence shows that on January 9, 1939 Poison was suffering ■Arith high-blood pressure and a diseased heart, and that his death in August 1939 was , caused by such disease, or a stroke occurring shortly before his death, and at a time when he was not employed by the Lincoln Tank Company. In support of its contention defendant, although citing many authorities, apparently relies largely upon the decisions in Texas Pacific Fidelity & Surety Co. v. Hall, Tex.Civ.App., 101 S.W.2d 1050, by this court, and Texas Employers’ Ins. Ass’n v. Burnett, 129 Tex. 407, 105 S.W.2d 200. With reference to the Hall case it is urged that the evidence in the instant case does hot justify an inference that Poison’s condition after pulling the lever that unfastened the boomer on the lumber truck on January 9, 1939 was caused by an accidental injury in preference to an inference that such condition was caused by a preexisting disease.

Mr. .Couch, a fellow employee of deceased and an eyewitness to the alleged accidental injury of Poison, testified, in substance, that he and Poison went together in a truck on the morning of January 9, 1939, to the railroad yards for the purpose of unloading and hauling lumber for the Lincoln Tank Company; that when they got there another truck had already been spotted for the same purpose; that preparations were made to load this truck which had been driven there by a Lincoln employee by the name of Taylor; that the Taylor truck was equipped with a two-wheel trailer which consisted merely'of a frame without a body; that a bolster set over the rear wheels crossways with them; that the bolster was a piece of timber about 6x8 tapering from the center. The purpose of the bolster was to serve as a rest for the lumber. In order to prevent this bolster from wobbling around when the truck was empty it had been chained or “boomed down.” The bolster was fastened down by a chain that ran under the tongue and was then fastened -and held tight by a boomer. The boomer was a “contraption” with a lever arranged so that when the boomer was pulled shut the chain was drawn up and the tension was put on it, the tension being maintained by the boomer. The lever was about 2 or 2½ feet long. Poison went over to unfasten the boomer. The chain was tight. A pull or jerk on the lever was necessary to open the boomer. Poison took hold of the boomer; after he opened it, he turned it loose. The witness Couch was standing within about 3 feet of Poison waiting to catch the chain after Poison released the boomer and unhooked the chain as Poison would, then ordinarily have tossed the chain to him. Couch glanced away momentarily at a passing train; he did not receive the chain as he expected, and four to ten seconds after the boomer opened he noticed Poison leaning over the frame of the trailer in a peculiar manner and apparently saying or trying to say something to him. He stepped around the wheels to Poison, and Poison said “Hold me, I’m falling.” Couch placed his arms under Poison’s arms and Poison’s knees seemed to give way. Couch and Taylor then assisted Poison into a truck. At noon Poison was taken home. Couch further testified that from his past experience he would say the boomer was fairly tight on the occasion in question, that it took quite a bit of pull or jerk to release a boomer of this kind. That' the boomer could be released by throwing the weight of his body against it, or by a jerk. That he saw Poison take hold of the lever on the boomer a few seconds before he noticed Poison in the condition mentioned. That he saw Poison. start to pull the lever. That when he saw Poison leaning against the truck and apparently trying to call for help the lever on the boomer had been pulled back and the tension on the chain relaxed.

Mrs. Poison testified they were married in 1923; that Poison had worked for the Lincoln Tank Company since they were married except for about two years; that on the morning of January 9, 1939 he looked and acted as usual. That she saw him when he came in at noon; that he couldn’t walk good, didn’t seem like himself, that he had never been in that condition before; that she saw he needed a doctor and immediately took him to Dr. Hogan. Her effort to state what her husband told her as to the cause of his condition was prevented by an objection to such testimony. (It is here referred to only because defendant stresses the fact that Mr. Poison did not give &, history of an accident to Dr. Hogan.) Mrs. Poison further testified that during the year preceding January 9, 1939, Mr. Poison worked about 200 days for the Lincoln Tank Company, averaging about 8 hours work per day; that his job was that of a tank setter and was irregular and intermittent in its nature. In this connection, we call attention to the fact that the evidence discloses that this was approximately the maximum amount of work that could be done by a person in such employment. Mrs. Poison further testified that Poison had never had a stroke or “give way” prior to January 9, 1939; that Poison was advised in 1932 that he had high blood pressure and should go to a lower climate; that he went to the Rio Grande Valley for about two months, that he was able to pick cotton on the return trip from the Valley; that he had erysipelas in 1937 which probably caused him to lose one or two weeks’ work; that he had no serious illness until January 9, 1939. That prior thereto he worked when there was a job to be done, and ate and slept normally right up to the morning of January 9, 1939. That when she brought Poison back from Dr. Hogan’s office on the day of the accident he stayed in bed six weeks; that after that he didn’t do anything but sit around the house. That when warm weather arrived he got out of the house some, worked two or three days for the Lincoln Tank Company, that this work consisted of painting an office and in telling the boys in the bolt-house what to do, that this work was supervision work, and he did no lifting. That this work for the Lincoln Tank Company was about the 1st of July, 1939; that the only other work he did from the date of the injury on January 9, 1939 to the date of his death in August, 1939, was 1 ½ days work caulking tanks for a refinery about the last of June, 1939. That after the visit to Dr. Hogan’s office on January 9, Dr. Hogan made visits to Poison’s home until Mr. Poison was able to go to Dr. Hogan’s office. That Mr. Poison took the medicine Dr. Hogan prescribed for him “all the time.” That immediately prior to Poison’s death on August 9 he had been confined to his bed one day, that he had not been doing any kind of work immediately prior thereto; that he had just been sitting around the house for several days or weeks; had not seemed to have any particular difficulty, but was just weak and sat around. Mr. Poison was 63 years old at the time of his death.

Dr. Brown testified in response to a hypothetical question that in his opinion Poison had a diseased heart and in exerting himself in pulling on the lever on January 9 he suffered an acute heart attack, bringing on a break in the compensation of his heart, from which he did not recover. That by a break in the compensation of the heart he meant that even though a person has a heart disease, if he is still able to go about his regular duties and perform his regular work, that is referred to as a heart that is compensating; that when something goes wrong with the heart so that he can no longer perform his duties, that is spoken of as a break in compensation. That until the break in compensation the heart is considered as a good heart, but when the break in compensation occurs and he can no longer follow his occupation, then he has a bad heart. That in his opinion Poison had a diseased heart, that the exertion caused some dilatation and caused something to go wrong with his heart, probably a letting-go of the heart muscles that caused the break in compensation. That in his opinion Poison’s condition was caused by this break in compensation and was the result of the occurrence of January 9; that in his opinion Poison had a heart attack while pulling bn the lever. That Poison’s death was a gradual process, dating back to January 9, 1939; that the seven months intervening before Poison’s death was a lingering illness; that the incident occurring on January 9 was the producing cause of Poison’s death. That if Poison suffered a stroke just prior to his death “it was part of the same picture.” That the jerking on the lever precipitated Poison’s heart attack; that such exertion caused a strain which caused his heart “to let-go.” This statement of Dr. Brown is supported by the testimony of defendant’s witness, Dr. Bennett, to the effect that in his opinion the pulling on the lever “most likely” caused Poison’s heart attack on January 9.

In Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581, 582, the Supreme Court, in an opinion by Justice Critz, reversed the judgment of the Court of Civil Appeals, 94 S.W.2d 1221, holding that there was no evidence of probative force tending to show that Vera Carter sustained an injury to the blood vessels of her brain in the course of her employment. In that case no one saw Carter sustain an accidental injury. No specific date of such an injury was fixed. The evidence showed that she was a maid in a hotel, that for about a week before she quit work she would complain of pains in her head and would have to lie down and rest These pains would appear after she had been working in hot rooms and lifting heavy articles; that during one of these spells she was sent home and from there to the hospital where she died about 30 days later. That before she began having these spells with her head she was in fairly good health; that she had high blobd pressure and “may have had other physical ailments.” There was medical testimony to the effect that the symptoms detailed evidenced a possibility of cerebral hemorrhage. That such hemorrhage could be caused by heavy lifting. That, assuming such symptoms, it was the doctor’s opinion the hemorrhage was due to the straining and lifting incident to 'Carter’s work in the hotel. Relative thereto Justice Critz said: “If this hemorrhage occurred while Vera was at work, and was brought on, produced, or caused by her having to lift and carry heavy loads, and move heavy furniture, we think accidental injury in the course of employment has been established. Southwestern Surety Ins. Co. v. Owens, Tex.Civ.App. 198 S.W. 662, writ refused; Georgia Casualty Co. v. Mixner, Tex.Civ.App. 289 S.W. 420, writ refused. It has been held that strain sustained by an employee in the course of his employment is generally regarded as an accidental injury. This being true, it certainly ought to be held that a ruptured blood vessel brought on, produced, or caused by heavy lifting or moving of heavy objects in the course of employment is an accidental injury.”

The judgment of both the Court of Civil Appeals and the District Court were reversed and judgment was rendered for the plaintiff, the surviving husband of Vera Carter.

In Texas Employers’ Ins. Ass’n v. Lovett, Tex.Civ.App., 19 S.W.2d 397, 399, writ refused, it was contended that the evidence did not show an accidental injury within the course of Lovett’s employment. Lovett was the employee of a gin company. For several years prior to his death he was afflicted with an organic heart disease, known as angina pectoris. On October 4, 1937, the deceased employee tried to help get the wagon of a customer who had a bale of cotton to be ginned over the seed box by taking hold of a rear wheel and rolling the wagon. Failing in this, he went to the front of the wagon and pulled down on the tongue. The mules shied and jerked deceased to one side. Deceased went to his office nearby. About two minutes thereafter, the customer saw deceased wiping his forehead and complaining of a pain in his chest. Deceased then went to a store, took some soda and said that he had a recurrence of his old indigestion. Later he stated to others that he had a pain in his chest that might be caused by dust from the gin. He was taken home and died within two or three hours after helping with the wagon. He was 49 years of age, and had been in apparent good health and without pain until after he had exerted himself by helping get the wagon in place. Expert witnesses testified in answer to hypothetical questions that in their opinion deceased died of angina pectoris, precipitated by over exertion in helping with the wagon. One doctor testified “it shows that the violence he was subjected to was the straw that made the break.” Another testified “I think the attack was precipitated or brought on by the exertion, and, while sort of indirect, it was just as real as if he had been hit on the side of the head; it would have an effect on his heart.”

The Court of Civil Appeals held that such evidence authorized the finding of the jury that Lovett died as the result of an accidental injury received in the course of his employment. The Supreme Court refused a writ of error. It should be noted that Lovett gave no history of an injury but referred to, and evidently attributed, his pain to a recurrence of his “old indigestion.”

As fully sustaining the action of the trial court in the particulars now under investigation, we cite: Travelers Ins. Co. v. Johnson, Tex.Civ.App., 84 S.W.2d 354; Hurd v. Republic Underwriters, Tex.Civ.App., 105 S.W.2d 428; Texas Employers Ins. Ass’n v. Shifflette, Tex.Civ.App., 91 S.W.2d 787; Consolidated Underwriters v. Christal, Tex.Civ.App., 135 S.W.2d 127, 130, writ refused; Traders & General Ins. Co. v. Wright, Tex.Civ.App., 144 S.W.2d 626, 629, writ refused; Texas Indemnity Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026; Texas Employers Ins. Ass’n v. Wright, Tex.Civ.App., 118 S.W.2d 433.

We think that neither the Hall case, nor the Burnett Case are controlling here. They hold that proof of lowered resistance of an employee due to an injury is insufficient to authorize recovery under the Workmen’s Compensation Act where the proof does not .go further and show a causal connection between the lowered resistance and the death of an employee. In the Hall case the injury was alleged to have been sustained in August, 1929, and was alleged to have been a producing cause of Hall’s death in November, 1934. It was contended there was no evidence that the injury contributed to Hall’s death. The evidence showed without dispute that the immediate cause of Hall’s death was pneumonia. There was evidence that Hall’s injury contributed to cause a physical condition which rendered him more than ordinarily susceptible to pneumonia. We held that such proof was insufficient to show that the physical condition was the cause of pneumonia. In that case, there was not even opinion evidence that Hall’s condition of susceptibility was the cause of his pneumonia. The plaintiff’s medical witness refused to so testify. Under such circumstances we held that there was no evidence that Hall’s susceptibility to pneumonia by reason of his lowered resistance was in fact the cause of his pneumonia. The evidence in that case certainly is not on a par with the evidence in the instant case. There may be some doubt as to whether or not the evidence as to Poison’s accidental injury in the course of his employment for the Lincoln Tank Company should be classified as circumstantial, but, be that as it may, we think the evidence is sufficient to authorize the jury’s finding that Poison sustained an accidental injury in the course of his employment. Contrary to the fact situation in the Hall case, here there was evidence from plaintiff’s medical witness that in his opinion the strain incident to the jerking or pulling of the lever was the cause of the breaking down of Poison’s heart, and contributed to his death in August, 1939. The decision in Texas Employers’ Ins. Ass’n v. Burnett, 129 Tex. 407, 105 S.W.2d 200, 201, may be very clearly distinguished upon the facts of the cases. The facts of that case and in the instant case are not comparable. The question decided in the Burnett case, as stated by Judge German (and as pointed out by us in Traders & General Insurance Company v. Wright, 144 S.W.2d 626, 628, writ refused), was that the beneficiaries of a deceased employee did not have the right to recover compensation for his death “due directly to an independent intervening agency, having no connection with or relation to the original injury, although the injury may have to some extent reduced the power of resistance of the deceased, and in that manner contributed in some degree to his death.”

Also, see Southern Underwriters v. Hoopes, Tex.Civ.App., 120 S.W.2d 924, writ dismissed; United States Cas. Co. v. Vance, Tex.Civ.App., 91 S.W.2d 465, writ refused.

Defendant’s propositions 1 to 10, inclusive, are overruled.

With reference to Poison’s wage rate the evidence was that Poison had not worked as much as 300 days during the year preceding his injury; that he had only worked approximately 200 days during said period; that he was paid 62½ cents per hour and worked 8 hours per day, making $5 per day. His job was a tank setter and such work was irregular and intermittent in its character. When work of this kind could be obtained he worked seven days per week as long as it lasted. The evidence was further to the effect that no other workmen of the same class in that or in a neighboring community worked for as much as 300 days during the year preceding Poison’s injury. That the tank setters in the witness Couch’s crew made 75 cents an hour, when that kind of work could be obtained, worked 8 hours a day and made $6 per day. The evidence eliminated Subsections 1 and 2 of Sec. 1, Art. 8309, as applicable to the case. The jury found, under Subsection 3 of said Article, that $5 per day would be a just and fair daily wage, and the judgment was based thereon. Said finding and the action of the court in basing its judgment as to the wage rate thereon are assailed by the defendant in its eleventh to fifteenth propositions, inclusive. The wage rate is assailed as being manifestly unjust and unfair because the employee could not have earned said amount as wages if he had not been injured.

In Texas Employers Ins. Ass’n v. Clack, 134 Tex. 151, 132 S.W.2d 399, 401, the Supreme Court, through an opinion by Judge German, said: “One of the underlying purposes of our compensation statutes is to compensate an injured employee, not merely for loss of earnings, but for loss of earning capacity, at a wage rate based on his capacity to earn when employed on a full-time basis. Maryland Casualty Co. v. Drummond, Tex.Civ.App., 114 S.W.2d 356, 360, writ refused; Traders & Gen. Ins. Co. v. O'Quinn, Tex.Civ.App., 111 S.W.2d 859, writ refused.”.

In Maryland Casualty Co. v. Drummond, 114 S.W.2d 356, 361, writ refused, the Beaumont Court of Civil Appeals, in an opinion by Justice Combs, said: “In considering the matter of fixing just and fair wage another question arises on the record before us, which is, where the injured employee was employed for part time work only is his weekly wage rate to be limited to his capacity to earn in similar part-time employment, or shall it be based on what he could earn by working full time? We think the authorities hereinabove cited have settled the proposition that the wage rate is to be based on the employee’s capacity to earn when employed on a full-time basis.”

To the same effect are the decisions in Federal Underwriters Exchange v. Woods, Tex.Civ.App., 140 S.W.2d 285, 286; Traders & General Ins. Co. v. O’Quinn, Tex.Civ.App., 111 S.W.2d 859, 861; Texas Employers Ins. Ass’n v. Hamilton, Tex.Civ.App., 95 S.W.2d 767, 771; Maryland Cas. Co. v. Stevens, Tex.Civ.App. 55 S.W.2d 149, 152, writ refused; Traders & Gen. Ins. Co. v. Locklear, Tex.Civ.App., 119 S.W.2d 153, 157.

If Subsections 1 and 2 of Sec. 1 of Art. 8309 are not applicable to the facts of a case so that the employee’s average weekly wage may be determined in accordance therewith, and the wage rate is to be determined in accordance with Subsection 3 of Sec. 1, Art. 8309, that is, in such manner as “may seem just and fair to both parties”, and if, as stated by the Supreme Court in the Clack case, the purpose of the compensation statutes is to compensate an injured employee “for loss of earning capacity, at a wage rate based on his capacity to earn when employed on a full-time basis”, then, the trial court did exactly what said statute contemplates. Said propositions are overruled.

We think the hypothetical question propounded to Dr. Brown by the plaintiff was not subject to the objections made. Shuffield v. Taylor, 125 Tex. 601, 83 S.W.2d 955. Defendant’s sixteenth proposition is overruled.

The remaining propositions assail the action of the court in refusing to submit issues requested by the defendant. They were immaterial and the related material ultimate issues were submitted. These propositions have been duly considered and are overruled.

The judgment is affirmed.


text:
    WITTY v. ROSE et al.
    No. 4010.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 30, 1941.
    Rehearing Denied March 6, 1941.

      B. D. Kimbrough, of McAllen, for appellant.
    J. Hodge Thompson and W. O. Slattery, both of Corpus Christi, for appellees.
   SUTTON, Justice.

The order overruling appellees’ first motion for rehearing has heretofore been set aside and the case reinstated on that motion. We have concluded to .withdraw the original opinions, reversing and rendering this cause and substitute therefor this opinion.

This is an appeal from the 117th District Court of Nueces County. The parties will be here designated as in the trial court.

The suit is one by plaintiff in debt to recover on a dormant judgment rendered in his favor December 14, 1928, in the County Court of Nueces County against the defendants, Samuel Rose and Mrs. J. P. Rose. Subsequent to the proceedings had in the County Court, the County Court jurisdiction was by law transferred to the District Court. Hence this suit in the District Court.

The trial was before the court and the judgment that plaintiff take nothing. To which the plaintiff duly excepted, and from that judgment has perfected this appeal.

This cause, under our view of the case, might be, and if it could, ought to be, affirmed without an opinion, except one proposition involved here has, we think, never heretofore been decided.

The appellant (plaintiff below) in several assignments of error challenges the correctness of the trial court’s action in rendering judgment against him. These assignments fall in one or the other of four groups. He assigns as error the holding and conclusion of the trial court that the docket entry made by the County Court on the docket March 14, 1928, is insufficient to set aside the dismissal judgment entered on .March 6, 1928, and to reinstate the case. He also challenges the correctness of the judgment of the trial court because, he asserts, the judgment .on which he sues is regular on its face, not subject to collateral attack, and must be accorded full verity. He also complains that the court wrongfully admitted evidence “ali-unde the judgment record in cause No. 2594” to prove the invalidity of such judgment. He also complains of the action of the court in holding and concluding that the defendants’ defenses- are barred by limitation, and that they are precluded by laches.

The minutes of the County Court, which are the authoritative records of the court and by which this cause must be determined, disclose these facts: That in cause No. 2954 on the docket of the County Court of Nueces County, styled C. L. Witty v. Samuel Rose et al., on the 6th day of March, 1928, a judgment altogether regular on its face and in form was entered dismissing said cause for the failure of plaintiff to comply with the rule for costs. It recites:

“On this the 6th day of March, A. D. 1928, came on to be heard the above entitled and numbered cause, and it appearing to the Court that plaintiff has been properly ruled for costs in said cause at the term of court preceding this (the March term), and it further appearing to the court that the plaintiff herein has failed to file his bond for costs in said cause, and defendants having moved that the said cause be dismissed:
“It is therefore ordered, adjudged and decreed by the Court that the said cause be and is hereby in all things dismissed at plaintiff’s cost.”

This judgment was carried into the minutes.

On the 14th day of December, 1928, at a subsequent term of the court, plaintiff recovered a judgment against these defendants by default for $280 and costs. This judgment is regular and sufficient on its face and as to form. It likewise went into the minutes. It recites service and the failure of defendants to answer, etc., but makes no reference whatever to the judgment of dismissal or the reinstatement of the cause. It is on this judgment plaintiff seeks to recover in this suit.

In defense of plaintiff’s suit herein, the defendants, among other things, say the plaintiff is not entitled to recover because of the former judgment of dismissal, which he alleges became final. Plaintiff takes the position that he ought to recover because at the same term of the County Court, on March 14, 1928, the court set aside the judgment of dismissal and reinstated the case by a notation made on the docket in these words and figures: “3,14,28, plaintiff produced bond showing file mark November, 1927, and this cause is reinstated.” There was no written order made and carried into the minutes. The docket entry did not go into the minutes. The defendants say this was not sufficient to set aside the judgment in their favor; that they knew the dismissal was entered; that they had no notice of the docket entry nor of the default judgment against them until this suit was filed. The trial court in its findings of fact and conclusions of law found these facts to be true. In other words, on this phase of the case found the equities in favor of the defendants, if this proof be admissible.

The plaintiff contends this cannot be, because it is a collateral attack on his judgment which is regular on its face and imports perfect verity. We agree with this proposition.

The judgment of dismissal was a perfect and final judgment, and was an end to that lawsuit until properly set aside. The docket entry was insufficient to do that. It required an order of the court entered of record in the minutes, and the law prescribes the procedure. Article 2291, R.C.S.1925; Morris v. Natl. Cash Register Co., Tex.Civ.App., 44 S.W.2d 433, and cases there cited. The record proper and not the docket entry is the authoritative evidence of the court’s action.

That a solemn judgment of a court of record cannot be collaterally attacked and can only be impeached by the record itself, or in a direct proceeding brought for that purpose, has long been the law, and a doctrine about which there is no dispute, and one about which there is no conflict between the courts. Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325; Carroll v. McLeod, 133 Tex. 571, 130 S.W.2d 277.

There might be many authorities cited, but we deem it unnecessary. The plaintiff applies this to his judgment and invokes it to give validity to it. The doctrine is sound, but when he about faces he is met squarely with the former judgment of dismissal, to which the same doctrine is applicable with equal effect.

We here find in the record of the court two judgments by the same court, in the same suit, between the same identical parties, and dealing with the same subject matter, and each imports equal verity. We have been cited no case, and find none, deciding this question. We think it must logically follow that when there are two such judgments, each importing equal verity and differing only in point of time, that the one prior in time must prevail, and this we so hold.

Since the dismissal judgment was never set aside, the court was without authority to render the subsequent judgment. According to the record there was no case pending in which the judgment could be rendered. The record affirmatively shows the invalidity of the judgment sought to be revived. We are not unmindful of the broad power and discretion of a trial court to deal with its judgments in term time when exercised in accordance with the law.

The plaintiff pleaded laches and limitation and raises these questions in his assignments. The defendants had a judgment in their favor, and until set aside they were required to do nothing. These assignments and propositions, therefore, have no application and are overruled.

The plaintiff in his fifth assignment of error says the court erred in admitting evidence aliunde the judgment record in cause No. 2594 in the County Court to prove the invalidity of such judgment, but our attention is nowhere directed to such testimony, and there is no bill of exceptions complaining of the court’s action in admitting any evidence aliunde the record, nor do we otherwise find where any such complaint has been perfected in the record,- and we therefore overrule such assignment.

The action of the court in this case must demonstrate that we have given careful consideration to all the assignments. We find no error that justifies the reversal of the judgment, and the judgment of the trial court is therefore affirmed, and it is so ordered.


author: FUNDERBURK, Justice.

text:
    STAFFORD v. POWELL.
    No. 2088.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 31, 1941.

      Thomas & Thomas, of Big Spring, for appellant.
    Vernon D. Adcock and Carl Rountree, both of Lamesa, and Bruce Graham and Currie McCutcheon, both of Dallas, for appellee.
   FUNDERBURK, Justice.

H. C. Powell brought this suit against Earl E. Stafford. The primary pleadings at the time of the trial were plaintiff’s second amended original petition and “Defendant’s Answer to the Second Amended Original Petition of Plaintiff.” As reflected by the plaintiff’s said pleadings the suit was one to recover damages for an alleged eviction of plaintiff from premises owned by the defendant, of which plaintiff had possession under a written rental contract then in force.

The sum of $150 was claimed as actual or compensatory damages, and $1,000 as exemplary or punitive damages. In a jury trial, judgment upon a special verdict was rendered awarding plaintiff recovery of $145.50 for actual damages, and $450 for exemplary damages. From this judgment the defendant has appealed.

For convenience the appellant will be referred to as defendant, and the appellee Powell will be referred to as plaintiff, the same as in the trial court.

In one trial of the case by jury the court instructed a verdict for the defendant. Thereafter the court sustained plaintiff’s motion for new trial. No evidence was heard on such motion for new trial. In the succeeding trial the defendant pleaded in bar the verdict of the jury rendered in response to the peremptory instruction as res adjudicata. The correctness of the court’s action in overruling such plea of res adjudicata is the first question presented for decision.

The action of the court in sustaining plaintiff’s motion for new trial had the effect of setting aside'the verdict of the jury. Only a final judgment will support a plea of res adjudicata. When and if a verdict, instead of a judgment upon a verdict, is the subject matter of a plea in bar, the verdict must be one which has not been set aside, or, at least, one which the court has no power to set aside. Hume v. Schintz et al., 90 Tex. 72, 36 S.W. 429; Texas Coca-Cola Bottling Co. v. Lovejoy, Tex.Civ.App., 112 S.W.2d 203.

It is immaterial to the question now under consideration whether the court was in error, or not, in sustaining the motion for new trial. The court undoubtedly had the power to do so and whether such power was exercised properly or improperly the result was to set aside the verdict and render it ineffectual to bar recovery in another trial of the case.

Plaintiff’s claim for exemplary damages for which the verdict of the jury awarded recovery of $450 was based upon allegations to the effect that he was forced to leave the rented premises by said “abusive language and threats of violence.” The “abusive language and threats of violence” thus referred to were by a third party, Ed Stafford, who was a brother of the defendant, it being alleged that “said Ed Stafford in an angry and threatening manner cursed and abused plaintiff and ordered plaintiff from said premises.” Regarding the authority of Ed Stafford to act for the defendant, the only allegation was that the defendant “took his brother, Ed Stafford, upon said premises on said 21st day of June, 1938, and said Ed Stafford on behalf of said defendant, began plowing up the bean crop of the plaintiff.” When plaintiff, as a witness, started to testify concerning the threats and abusive language by Ed Stafford, his testimony was objected to “unless it is shown it was in the presence of the defendant. Hearsay and ex parte statement.” The honorable trial judge, among other things, remarked that “this plaintiff established that Ed Stafford was acting for this defendant and any statements made by Ed Stafford in the presence of this plaintiff would be admissible.” Objection was made and exception taken to such remark of the court upon the ground, among others, that it was “a comment on the weight of the evidence.” Plaintiff, by his own testimony, showed that defendant at the time, in effect, disapproved the action of his brother Ed Stafford. Plaintiff further admitted that the defendant did not use abusive language or threaten him. The evidence did not, we think, conclusively show that the acts of Ed Stafford in cursing plaintiff and ordering him off the premises were imputable to defendant. His honor’s remark, it would seem, was well calculated to influence the jury to the prejudice of defendant, and we are unable to see with the requisite certainty that an admonition to the jury to disregard such remarks completely rebutted the presumption of its harmful effect.

Plaintiff’s claim for actual damages, as pleaded, was to the effect that after June 21, 1938, the day when defendant plowed up the crop of beans, or, in other words, the day that plaintiff was evicted from the premises, the defendant “thereafter had all government acreage reduction contracts in. connection with the said farm for the year 1938 placed in the name of defendant as producer, and entitled to all the said government checks; $150 was due plaintiff as renter of said farm and by reason of defendant’s action therein plaintiff was damaged $150 in actual damages.”

There was no evidence as to the nature of the contracts, if any, thus referred to. Plaintiff testified that there was a government check on the farm, that he. did not receive any of it, that he was familiar with the rules of the government and the amount that would have been allowed for that particular farm that year. It was then objected that “any information he might have received as to the amount of government checks to be paid upon that farm for that year could only be a matter of hearsay.” The objection was overruled and the witness permitted to testify to the effect that one-fourth of the government payment would be “approximately between $140 and $150.” Interrogated further as to the source of his information, plaintiff said that other than the fact that he had received four checks, his only other source of information was the county agent. “I told him [the County Agent] the amount of the crop I had in, and he figured approximately the amount the check would be.” Thereupon the objection to the evidence as hearsay was renewed and overruled. It does not appear from the evidence, nor do we know judicially, that the receipt of the four checks on other property would qualify the witness to give his opinion in evidence. It would seem to have been clearly shown that the evidence was hearsay. 17 Tex.Jur. p. 525; McCormick & Ray, Texas Law on Evidence, 458, 461; Rathbun v. Miller, Tex.Civ.App., 266 S.W. 818; Webb v. Smith, Tex.Civ.App., 288 S.W. 624.

The defendant contends that plaintiff had procured the rental contract under false representations as to the amount of other land he was farming the same year. Specifically, the contention was that the plaintiff had only 70 acres, when in fact he had 170. Plaintiff, as witness, having denied that he made such representation, the defendant offered witnesses to prove that he had done so. This evidence was offered upon the issues of exemplary damages and upon objection was excluded. This action is presented for review. We think the evidence should have been admitted. It was not admissible to justify an unlawful eviction; but we think it was admissible as tending to show that the eviction, even if unauthorized was not the result of malice.

Two or three other propositions of defendant should perhaps be sustained, but for the fact that they relate to issues entirely foreign to the cause of action asserted by the plaintiff, or any defense asserted by defendant, as reflected by their trial pleadings. Plaintiff pleaded, in effect, a compromise settlement of a claim of the defendant for damages against plaintiff for wrongful sequestration. The defendant asserted no such claim in this suit, as shown by his trial pleading. Therefore, while we agree that there was no evidence to show the alleged compromise it is a matter wholly immaterial in this case.

Other propositions asserted by the defendant are without discussion overruled.

In view of another trial we think it may be advisable to mention some serious, if not fatal, defects in the pleadings, and other proceedings in this case, not presented for review by any of the assignments of error.

Plaintiff alleged no contract with defendant other than a written rental contract, all the terms of which were set out in the pleadings. That contract did not include, or make any mention of, any agreement between the plaintiff and defendant as to contracts with the government. The result is that the only contract, for the breach of which the suit sought recovery, did not authorize recovery of $150 for actual damages as claimed. It would also follow that a failure of the pleadings to show any right to actual damages would, at the same time, constitute a failure to show any right to exemplary damages. ,

The written contract alleged by the plaintiff clearly, we think, constituted as between plaintiff and defendant the relation of landlord and tenant, and not the relation of share croppers. If we are correct in this view, plaintiff’s petition sought no recovery of general damages for the breach of the contract. What might have constituted general damages were avoided by the plaintiff’s having later procured possession of the crops which he gathered and marketed. The only claims, therefore, for actual damages were special damages, the rule concerning which is that they must be clearly alleged so as to show that they were reasonably within the contemplation of the parties at the time of the making of the contract, or, at least, at the time of the breach of the contract.

The rental contract alleged by the plaintiff declared the agreement of the parties that “in case of a dispute in regard to the cultivation of said crops” the lessee would “abide by the decision of three witnesses and peacefully allow the said lessor to carry out the decision.” This was undoubtedly an agreement for arbitration and we think to state a cause of action based alone upon the breach of the contract involving a question of the proper cultivation of the crops, it was necessary for plaintiff to allege an offer to arbitrate, or facts to show a waiver of such provision by defendant.

For the reasons set forth in the first part of this opinion, it is our conclusion that the judgment of the trial court must be reversed and the cause remanded, which is accordingly so ordered.


text:
    HROMAS v. MILLER et al.
    No. 12991.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 15, 1941.

      Aldridge & Aldridge, of Farwell, and Lawrence F. Green, of Dallas, for appellant.
    Griffin & Morehead, of Plainview, for ap-pellees.
   YOUNG, Justice.

This is a venue case. Mayes Miller and R. E. Cogswell, residents of Castro County, are owners and holders of the promissory note in suit, by transfer, for value, from the payee therein, L. H. Bowie, who is alleged to reside in Dallas County; appellant having executed the note to the order of Bowie. The action of plaintiffs was in Dallas County, on an obligation for $245, dated April 2, 1938, due September 1 thereafter, and “payable at the place of residence of the owner or legal holder of this note at his or their option.” Hromas seasonably interposed his plea of privilege, which was controverted, heard, and overruled, and appeal taken. Bowie was joined in the suit perforce of his assignment or transfer to plaintiffs, judgment being sought jointly and severally against both defendants. Testifying at the trial (December, 1939), Mr. Bowie established his then residence as in Dallas County, but the record is silent concerning his place of residence when the note was signed and delivered to him.

Appellees have not seen fit to file reply briefs, but their controverting affidavit in the trial court asserts that Subds. 4, 5 and 29a of Art. 1995, Vernon’s Ann.Civ.St., apply; and it can be assumed that the order appealed from is based on one or more of these exceptions to the venue statute.

Subd. 29a is clearly not applicable, because the petition was filed in the county of a resident defendant. Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347. Appellees cannot claim that the wording, “payable at the place of residence of the owner or legal holder of this note at his or their option,” is sufficient to meet the requirements of Subd. 5 (as amended 1935), because no particular county of performance was expressly named at the time the contract was made. It would follow, therefore, that Subd. 4 is not available to plaintiffs below. Mr. Bowie, the payee, could not have maintained suit in Dallas County by reason of the indefinite wording just quoted. The provisions, in part, of said exception, read: “The transfer or assignment of a note or chose in action shall not entitle any subsequent holder to sue thereon in any other county than that in which such suit could have been prosecuted if no assignment or- transfer had been made.” Thus, the statute, in explicit language, precludes the assignee of a note from basing a suit thereon in any county in which the assignor could not have maintained the same. Merritt v. Wooten Grocer Co., Tex.Civ.App., 35 S.W.2d 1071. Further authorities in point on propositions just discussed are Turner v. Ephraim, Tex.Civ.App., 28 S.W.2d 608; McManus v. Texas Development Bureau, Tex.Civ.App., 73 S.W.2d 655; W. T. Rawleigh Co. v. Karnes, Tex.Civ.App., 103 S.W.2d 431; Warner v. First Nat. Bank of Bowie, Tex.Civ.App., 142 S.W.2d 897.

The trial court should have upheld the plea of Hromas. Its judgment overruling same is reversed and here rendered, sustaining such plea of privilege and changing the venue as to appellant to the County Court of Palmer County; the court below making such orders and the clerk thereof performing such duties as are provided under Art. 2020, R.S., Vernon’s Ann.Civ.St. art. 2020, when a plea of privilege is sustained.

Reversed and rendered, with instructions.


author: MURRAY, Justice.

text:
    HEWETT v. LEPPANEN.
    No. 10868.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 29, 1941.
    Rehearing Denied March 5, 1041.
    R. H. Mercer, of San Antonio, for appellant.
    McClanahan & Loughridge, and Norman S.Davis, all of San Antonio, for appellee.
   MURRAY, Justice.

This is an appeal from an order overruling a plea of privilege filed -by Claudia Blanche Hewett.

The main suit was instituted by Katie Leppanen, in the 57th Judicial District Court of Bexar County, Texas, against Claudia Blanche Hewett, seeking to recover damages resulting to her from the death of her son Nilo Waldeman Cook, allegedly run over arid killed by Miss Hewett in Bexar County, Texas. Claudia Blanche Hewett filed a plea of privilege to be sued in the County of Victoria, the county of her residence.

Katie Leppanen filed a controverting affidavit alleging that, within the meaning of Exception 9 to Article 1995, Vernon’s Annotated Civil Statutes, appellant, Hewett, committed a trespass in Bexar County.

After hearing evidence, the trial court overruled Claudia Blanche Hewett’s plea of privilege and she has prosecuted this appeal.

The evidence shows that on the night of November 28, 1937, Claudia Blanche Hewett, accompanied by two other persons, was driving her car in a southerly direction along the highway leading from San Antonio to Pleasanton. About eleven miles south of San Antonio she struck a man by driving her automobile against him. As a result of the collision the man died. She was driving at the rate of forty-five miles per hour, at the time of the collision. She saw the man on the highway only a fraction of a second before she struck him. Just before the collision another automobile was approaching her from the south with bright lights. She was not blinded by these lights, but they did make it more difficult for her to see. She was on her own right-hand side of the highway. She did not slacken her speed as the other car approached.

Appellant contends that the evidence does not show such a trespass as will sustain venue under Exception 9, Article 1995, supra.

The decisions are clear that in order to sustain venue under said exception nine you must not only allege but prove by evidence that the defendant committed a crime, offense or trespass in the county where the suit has been filed. In the case at bar a trespass is relied upon, and in order to establish such a trespass the plaintiff must show that the injury alleged has occurred and that it was caused either by the wilful act or by the active negligence of the defendant. Douglas v. Williams, Tex.Civ.App., 83 S.W.2d 686; Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Robbins v. McFadden, Tex.Civ.App., 61 S.W.2d 1032; Jones v. Womack-Henning & Rollins, Inc.; Tex.Civ.App., 53 S.W.2d 635; Universal Transport & Distributing Company v. Ramos, Tex.Civ.App., 47 S.W.2d 857; Bettis v. Rayburn, Tex.Civ.App., 143 S.W.2d 1011.

■Appellee, in her controverting affidavit, alleged five acts of negligence, to-wit:

“(1) That the defendant operated her car in a careless and negligent manner, in that she failed to keep a proper lookout for persons along the road, and, in particular, for the said Nilo Waldeman Cook.
“(2) That the defendant operated her car at the said time and place in a careless and negligent manner, in that she was driving at a rate of speed so great and excessive that she could not have stopped, by the use of means at her command, within the range of her visibility.
■ “(3) That the defendant was operating her car in a careless and negligent manner, in that she was driving the same at a speed of more than forty-five (45)'miles per hour, which constituted a violation of the Penal Code of this State.
“(4) That the defendant operated her automobile in a careless and negligent manner, in that she was driving at such a rate of speed as was reckless and excessive under the facts and circumstances and at the time in question.
“(5) That the defendant operated her automobile in a careless and negligent manner, in that the road at and near the place of the said accident was clear and unobstructed, and the defendant saw and discovered the said Nilo Waldeman Cook, and that it was obvious and evident to the defendant that the said Nilo Waldeman Cook was in a perilous position and that there was no avenue of escape to him, but that the defendant failed to use the means at hand, consistent with her safety and with the safety of the persons riding with her, to avoid striking the said Nilo Waldeman Cook, whereby the injuries resulting from said collision could have been avoided.”

The first alleged act of negligence relates to a failure to keep a proper lookout, which could not constitute active, affirmative negligence.

The third item relates to driving in excess of forty-five miles per hour, which was not supported by the evidence.

The fifth item relates to discovered peril, which was not supported by any evidence.

This leaves only the second and fourth items, which are closely related and relate generally to driving at an excessive rate of speed under all the circumstances. Appellee’s contention under these two .items are summed up in the following quotation from her brief, to-wit: “* * * the láw seems to be clear, therefore, that evidence of the act of a motorist in driving her car,after being blinded by the lights of an oncoming vehicle, at such a rate of speed that she could not stop within the range of her visibility, as did the appellant in the case at bar, is sufficient to sustain a finding of negligence by the trial court; that such negligent operation of her car, under the authorities, constitutes a trespass under Sec. 9 of Art. 1995; and that the proof of such negligence, resulting in a collision occurring in Bexar County, is sufficient on which to sustain venue in said county.”

. The trouble about this contention is that it is unsupported by any evidence and is. contrary to the evidence.

The only witness to testify was appellant, herself. She testified positively that she was not blinded by the lights of the oncoming automobile.' There is no evidence to show when the deceased got upon the highway, for aught this record shows he may have stepped upon the highway at the second he was struck. No one states that he was there any sooner. Appellant was on her own right-hand, side of the highway, she was not exceeding the speed limit prescribed by law, nor was she violating any penal statute at the time of the collision. She was not therefore guilty of negligence per se. The evidence does not show her to have been otherwise guilty of negligence. Bettis v. Rayburn, supra.

The appellee having failed to offer evidence sufficient to show that a trespass was committed by appellant in Bexar County, the trial judge erred in 'overruling appellant’s plea of privilege.

The order overruling the plea of privilege will be reversed and the matter remanded.