author: FOLLEY, Justice.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. STANTON.
    No. 5139.
    Court of Civil Appeals of Texas. Amarillo.
    April 1, 1940.
    Rehearing Denied May 20, 1040.
    Bradley & Wilson, of Lubbock, and Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellant.
    L. D. Ratliff, Jr., and O. B. Ratliff, both, of Spur, for appellee.
   FOLLEY, Justice.

This is an appeal from a judgment in the sum of $700 in favor of the appellee, H. L. Stanton, against the appellant, Texas Employers’ Insurance Association, in a workman’s compensation suit filed by the ap-pellee by reason of injuries sustained by him from accidental burns on April 27, 1938, in Dickens County, Texas, while in the employment of James Spencer & Son Construction Company, a partnership of contractors engaged in highway construction work in Dickens, Oldham and Deaf Smith Counties, Texas. At the time of the accident the contractors were subscribers under the workmen’s compensation law of Texas and carried two policies of insurance, one in the appellant company, and the other in Casualty Underwriters.

The cause was submitted to the trial court upon an agreed statement of facts and upon this agreed stipulation the judgment herein was predicated. The material portions of such agreed statement as affecting this appeal were as follows: That both of the insurance companies above mentioned were engaged in the compensation insurance business and duly licensed by the State of Texas to carry on such business; that on or about October 24, 1937, the Texas Employers’ Insurance Association issued a policy of compensation insurance to the above contractors for a term of one year covering the location and activities of such company in “Dallas or elsewhere in Texas”; that it “was the intent of said employer firm and said insurer at the time said policy was delivered that the same was to cover all pending business and potentially the future business of said firm in Texas, during the term of said policy”; that about February 18, 1938, the Casualty Underwriters issued and delivered to such contractors a policy of compensation insurance for one year; that the location and activities of the contractors covered by such policy was “Dickens County, Texas, F. A. P. 687-A Highway No. 24, Specific, and elsewhere in Texas”; that the language of each of the above policies was never changed and both were in full force and effect on April 27, 1938, the date of the accident; that in February, 1938, a few days before February 18th, a contract was let by the State Highway officers to such contractors for the construction of a highway in Dickens County subject to Federal Aid and the project was known as “Dickens County, Texas, Federal Aid Project 687-A, Highway No. 24”; that the language of the policy issued by Casualty Underwriters referred to such highway project in Dickens County; that the contractors and Casualty Underwriters intended that such policy should provide exclusive compensation coverage for the contractors in the Dickens County highway construction work; that the contractors never paid any compensation insurance premiums to the Texas Employers’ Insurance Association growing out of the Dickens County job but paid such premiums based upon the job and wages of the employees on the Dickens County project to Casualty Underwriters; that the contractors during the month of April, 1938, also had highway construction work in Oldham and Deaf Smith Counties, Texas and paid to the Texas Employers’ Insurance Association all compensation insurance premiums accruing on account of the Oldham and Deaf Smith projects; that the Dickens, Oldham and Deaf Smith jobs were covered by separate contracts and handled by separate crews of employees; that H. L. Stanton was employed only on the Dickens County job and was so employed on April 27, 1938; that he used his own truck at his own instance in traveling to his work and returning 'home after 'working hours; that no other use was made of such truck except, during the last few days he worked, his employers, with his consent, used such truck for hauling supplies from one place to another where the work was being performed on the highway, paying Stanton 10⅞⅛ per hour for the use of such truck; that during such time the truck had carried around a barrel of gasoline and.some dynamite sticks and caps and still had part of such gasoline and explosives on it at quitting time on the day of the'accident; that at the close of the day on such occasion the foreman on the job requested Stanton to leave the gasoline and explosives on his truck through the night at' Stanton’s barn at his home rather than store the same in the contractors’ magazine located about a mile from the point where the work for the day ended; that Stanton consented to do so and about 7 P. M. started home with the gasoline and explosives on his truck; that he was paid by the hour for the time actually on the job and after quitting time he received no pay either for himself or his truck; that after leaving the job until he was injured his time and movements were subject to his own will without the supervision of his employers; that after leaving the place of work he first drove his truck to the town of Dickens, Texas, passing his home on the way, and had some repairs made on the water pump of his truck at Dickens; that about 8 P. M. he drove to his home premises, turned from the highway into his own yard and drove the truck on across his yard uphill to his barn; that when he stopped at his barn he noticed smoke coming from his truck about the cab seat; that he then noticed the gasoline barrel had fallen over and that some of the gasoline had spilled; that he immediately went to said barrel and stood it back on its end but got some gasoline on his hands and trouser legs; that he then began pulling out the cushion of the truck cab to get at the fire underneath and in doing so was burned by fire which caught on his hands and legs where the gasoline had spilled; that Stanton would have made the same trip that evening in his truck from his work to Dickens for- the pump repairs and then home had his truck been empty; that he sustained disability from his burns; that he gave notice of his injuries to his employers within legal time, filed claim with the Industrial Accident Board within proper time, and duly appealed from its award to the District Court of Dickens County, Texas, which court has full and legal jurisdiction of the suit; that if he is entitled to recover any compensation against the appellant, Texas Employers’ Insurance Association, the amount of such compensation is $700; and that the two policies of insurance herein were in conformity with the Texas standard compensation insurance policy and that each of said policies was duly approved by the Casualty Insurance Commissioner of Texas.

The appellant presents two propositions seeking -reversal of the judgment herein: First, that under the above facts the Casualty Underwriters and not the appellant, was liable under the policies; and, secondly, that the appellee was not in the course of his employment at the time of his injuries. In this connection it should be stated that the Casualty Underwriters was not a party to this suit. Whether or not such company is insolvent the record does not disclose, and, as between the parties hereto, such matter is immaterial.

We think it apparent from the above facts that the contractors herein were engaged in the same general class of business in each of the above named counties. Therefore, the rule applies that such employers of labor operating under the Workmen’s Compensation Act cannot cover part of their employees so employed and leave part of them uncovered. Standard Acc. Ins. Co. v. Barron, Tex.Civ.App., 47 S.W.2d 380, rehearing denied, 122 Tex. 179, 53 S.W.2d 769; Mulkey et al. v. Traders & General Ins. Co., Tex.Civ.App., 93 S.W.2d 582, writ refused. The appellant insists, however, that there is nothing in the Texas compensation law prohibiting an employer from insuring the employees in one county in one company and similar employees in another county in another company, as it contends was done in the instant case. In the Barron case, supra, the observation was made in the opinion of the Court of Civil Appeals that while the law does not afford the employer the power of discrimination against a portion of his employees engaged in the same business "it must be true, as a matter of course, that in carrying out the purpose of the law to protect all his employees he may divide that protection among different insurers, in which case each insurer’s liability would be measured by its limited coverage”. [47 S.W.2d 382.] Since the Supreme Court refused a writ of error in such case we take it that this language of the Court of Civil Appeals had the approval of the Supreme Court and, therefore, where there are proper limitations in the two policies issued upon separate groups of employees by distinct insurers, the rule would be that each insurer’s liability in such case would be restricted to the particular group of employees its policy covered. But we have no such limitations in the two contracts before us. Each of the policies insured the employees of the construction company in a particular county and “elsewhere in Texas”. We grant that the record shows that only the Casualty Underwriters received the premiums paid by the contractors upon the employees in Dickens County, which included the ap-pellee, and that the appellant received the premiums on the employees in the other two counties, but the payment of premiums in one county and not in another is not' conclusive that premiums were not also due the insurers in the other counties. The further rule is that the failure to pay the premiums which may be due upon a policy is a matter of no importance as between the insurer and the employee but only concerns the insurer and the employer. Home Life & Accident Co. v. Orchard, Tex.Civ.App., 227 S.W. 705, writ of error refused. Therefore, the payment of premiums herein upon the respective groups in separate companies will afford us nothing except as it might shed some light upon the intentions of the respective parties. It is apparent from the above stipulations that .as between the contractors and the Casualty Underwriters the policy of the latter company was intended as exclusive coverage for the Dickens County work. But the Texas Employers’ Insurance Association was not a party to such contract and therefore, as far as this policy is concerned, could not share in the intentions of the parties thereto. The policy of the appellant insured the employees of the contractors in Dallas and “elsewhere in Texas”, and in the absence of any testimony or stipulation to the contrary this provision of the policy bespeaks for itself the intentions of the parties thereto. In .connection with such policy it was agreed by the parties to this suit, as above stated, that it was “the intent of said employer firm and said insurer at the time said policy was delivered that same was to cover all pending business and potentially the future business of said firm in Texas during the term of said policy”. This stipulation, we think, in the absence of any .stipulation or agreement to the contrary, presents the presumption that the policy was intended to cover the Dickens County employees and tends to establish the fact that double coverage existed herein for such employees.

In connection with its disavowal of liability the appellant relies chiefly upon the case of American Employers’ Ins. Co. v. Hookfin et al., Tex.Civ.App., 33 S.W.2d 801, writ refused. We think such case is distinguishable from the instant case in one very important respect. The appellant therein, the American Employers’ Insurance Company, was apparently seeking to shift one-half of the liability upon the appellee therein, the Union Indemnity Company, each of which companies had issued policies to the employer. The American Employers’ Insurance Company’s policy apparently covered only Harris County, the place of the liability. The Union Indemnity Company’s policy covered employees in “Galveston, and elsewhere in the State of Texas”. The testi-.aiony therein showed that regardless of the provision in the latter policy as to “Galveston, and elsewhere in the State of Texas” it was not intended by the parties to such contract that it should cover employees in Harris County, but on the contrary the court expressly found upon the oral testimony offered that it was the intention of the parties thereto that it should not cover employees in Harris County. No such situation exists in the case before us. There is not only an absence of evidence or stipulation herein to the effect that it was not the intention of the contractors and the Texas Employers’ Insurance Association to cover the employees in Dickens County by the latter’s policy, but, on the contrary, we think the above facts support the trial court’s implied finding that it was the intention of the employers and of the appellant that the latter’s policy should cover the Dickens County work. Had not the second policy been issued we doubt that the appellant or anyone concerned would have ever questioned the fact that the first policy covered the Dickens County employees. The appellant was not a party to the second contract and after its issuance there was no endorsement placed upon the first policy limiting the liability of the first insurer in keeping with appellant’s present contention nor was there an approval of such a plan by the Insurance Commission of Texas. Article 4913, R.C.S. Under such circumstances we think the question of double insurance has arisen in this case which issue has been resolved against the appellant upon sufficient evidence. Since the Casualty Underwriters is not a party to this suit it is a matter of no concern that, had such company been a party, under proper pleadings the appellant would have been entitled to contribution from it. Under the record before us it is our opinion that the -policy of the appellant included the liability herein and the appellant’s contention in this respect should be overruled. Texas Employers’ Ins. Ass’n v. Jones et al., Tex.Civ.App., 70 S.W.2d 1014, writ dismissed.

It is also our opinion that the above stipulated facts are sufficient to' support the trial court’s implied finding that the appellee at the time of the accident was engaged in the due course of his employment. The 1937 amendment to section 1 of article 8309, Vernon’s Annotated Civil Statutes, has enlarged the statutory definition of the word “employee” by adding, among other things, this provision: “provided that an employee who is employed in the usual course of the trade, business, profession or occupation of an employer and who is temporarily directed or instructed by his employer to perform service outside of the usual course of trade, business, profession or occupation of his employer is also an employee while performing such services pursuant to such instructions or directions”. At the time of his injury the appellee was following the instructions of his foreman who directed him to store the gasoline and explosives on his truck in his barn for the night. The fact that the record shows the employers maintained a magazine about a mile from the scene . of the work indicates that it was necessary to keep the explosives and gasoline in a safe and dry place and in following the instructions in this respect we think the appellee was engaged in the furtherance of his master’s business. Such conditions at least presented an issue of fact which has been resolved against the appellant by the judgment of the trial court. This assignment is therefore overruled. Consolidated Underwriters v. Breedlove, 114 Tex. 172, 265 S.W. 128; Maryland Casualty Co. v. Long. Tex.Civ.App., 9 S.W.2d 458; Maryland Casualty Co. v. Kent et al., Tex.Com.App., 3 S.W.2d 414; Federal Underwriters Exchange v. Lehers et ux., Tex.Com.App., 120 S.W.2d 791; Texas Employers Ins. Ass’n v. Schwarz et ux., Tex.Civ.App., 107 S.W.2d 666, and authorities therein cited.

The judgment is affirmed.


source: Caselaw Access Project

author: PRICE, Chief Justice.

license: Public Domain

text:
    SOUTHERN UNDERWRITERS v. YOCHAM.
    No. 3931.
    Court of Civil Appeals of Texas. El Paso.
    March 28, 1940.
    Rehearing Denied May 16, 1940.

      Claude Williams, Henry D. Akin, and Benbow, Saunders & Holliday, all of Dallas, for plaintiff in error.
    Kerr & Gayer, of San Angelo, Roy R. Priest, of Rankin, and Douglas Newton, of Del Rio, for defendant in error.
   PRICE, Chief Justice.

This suit was filed in the District Court of Val Verde County, by Grover Yocham, as plaintiff, against the Southern Underwriters, as defendant. The purpose of the action was to set aside a previous award of the Industrial Accident Board oru a claim for compensation filed by the plaintiff, wherein the defendant was the insurance carrier, and to recover compensation. The trial was by jury, the sub-" mission on special issues. On the verdict a judgment was entered against the insurance carrier in the sum of $4,760. Motion .for a new trial was filed in due time and overruled. Defendant in the suit duly perfected writ of error, and the case is properly before the court for review.

The parties, for convenience, will bear the designation here borne in the District Court.

The following facts are undisputed under the evidence: Plaintiff was employed as a truck driver by the Lone Star Trucking Company, and on the date of the alleged injury his employer carried a policy of workmen’s compensation insurance issued by the defendant covering plaintiff as an employee.

On the 23rd day of March, 1937, plaintiff, while acting in the scope of his employment, was driving a truck for his employer, and there was an accidental collision between the truck driven by plaintiff and a truck or motor vehicle driven by another. In this collision plaintiff alleged he sustained the injuries for which compensation was sought. Established by the verdict are the following facts: That as a result of such collision plaintiff did sustain personal injuries; that as a result of such injuries total permanent incapacity was suffered by plaintiff; that plaintiff was entitled to a lump sum settlement for the compensation due him under the law; that plaintiff’s compensation should be based on an average daily wage of $4.50 per day. The verdict found all material issues as raised by the pleadings and evidence in favor of the plaintiff. In all particulars the verdict is supported by the evidence, and we find the facts in accordance therewith.

In this case there is as a whole no serious or unsettled legal propositions involved. Submission was on seventeen issues with appropriate supporting issues; appropriate explanations and definitions were given by the trial court.

Defendant’s exceptions to the charge occupied some thirty pages of the transcript. The motion for a new trial urged some ninety-nine grounds of error and takes up approximately fifty pages of the transcript. We shall not burden this opinion by setting forth the substance of the objections to the court’s charge. Suffice it to say, they are in all substantial particulars of the same character and nature as those commented upon in the opinion in the case of Federal Underwriters Exchange v. Walker, Tex.Civ.App., 134 S.W.2d 388. Here they merit the same condemnations as were there given. Inherently and intrinsically they evince a studied effort to conceal from the trial judge any merit therein, thus seeking to inject reversible error in the case.

Defendant, by a plea sworn to as to the best of the knowledge and belief of its agent, challenged the jurisdiction of the court. Regardless of the sufficiency of this verification, the basis of the contention seems to be that the award of the Industrial Accident Board inherently shows that it was not a final award; further, that it was not affirmatively shown there was more than $500 involved. The award recites that it was made by the Board on July 7, 1937, after due notice, and it was ordered that Southern Underwriters pay Grover Yocham $13.85 per week for an indefinite period in the future, not exceeding fifty-two consecutive weeks from 'March 23, 1937, unless changed by subsequent award of the Board.

It is the amount claimed in the petition seeking to set aside the award that in respect to amount determines jurisdiction. Booth v. Texas Employers’ Ins. Ass’n, Tex.Com.App., 123 S.W.2d 322.

The award in question here is a final one and sufficient basis for the suit to set same aside. Middlebrook v. Texas Indemnity Ins. Co., Tex.Civ.App., 112 S.W.2d 311, Supreme Court, 131 Tex. 163, 114 S.W.2d 226; Traders & General Ins. Co. v. Baker, Tex.Civ.App., 111 S.W.2d 837.

The copy of award as certified was admissible in evidence. Federal Underwriters Exchange v. Guest, Tex.Civ.App., 129 S.W.2d 708; Federal Underwriters Exchange v. Ener, Tex.Civ.App., 126 S.W.2d 769.

It is urged that plaintiff failed to show that defendant was a legal entity subject to being sued under the name of Southern Underwriters. Defendant appeared under that name and defended; it has filed a bond herein under that name. There is no merit in - this contention. Beyond the shadow of a doubt, defendant was insurance carrier of plaintiff’s employer.

Special issue number one was as follows : “Do you find from a preponderance of the evidence that the truck collision between the truck operated by plaintiff, Grover Yocham, and the panel truck that collided with it in Val Verde County, on or about the 23rd day of March, 1937, caused injuries to the plaintiff, Grover Yocham?”

The jury found the affirmative to this issue.

Defendant urged exception thereto, as follows: “The issue is too general, vague, indefinite and uncertain, and does not confine the jury’s determination and deliberation to the particular type and character of injuries contained in the plaintiff’s petition, and upon which there is proof, but permits the jury to speculate and go outside of the realm of the testimony and pleadings in this case.”

This was not the only exception urged to issue No. 1. It appears among a number of other exceptions urged to this issue. In the statement here these additional grounds of objection urged are not set forth. They are as follows :

“(a) There is no evidence to support the submission of such issue to the jury;
“(b) There are no proper pleadings to support the submission of such issue to the jury;
"(c) The evidence is insufficient to support the submission of such issue to the jury;
“(d) The issue is multifarious and duplicitous and submits more than one fact issue in one special issue;
“(f) The issue is on the weight of the evidence in that it assumes that the collision did result in injuries to the plaintiff, Grover Yocham, and this is a controverted issue of fact.
“(g) . The defendant makes the same objections to this issue as are contained in paragraph four above, without the necessity of repeating the same at this point.”

Each of the special issues submitted by the court are assailed on substantially the same grounds as urged to No. 1, omitting the objection first copied above, as same appears in the submission under the proposition under consideration.

It is to be first noted that the objection fails to point out any injuries alleged as to which there is a failure of proof. In this respect it lacks certainty and clarity. In the statement the defendant is more explicit than in the objection made in the trial court. The statement endeavors to point out for this court injuries alleged, but unsustained by the proof. A careful study of the statement of facts leads us to the conclusion that there was some evidence of all of the injuries alleged by plaintiff. Under the evidence, if plaintiff sustained any injuries resulting in incapacity, they were the result of the collision between the two motor vehicles. The issue limits the injuries inquired about to those received in the collision on the 23rd day of March, 1937. This collision certainly occurred, and its nature and violence were such as to almost inevitably result in personal injury to plaintiff. In the cases of Security Mutual Casualty Co. v. Bolton, Tex.Civ.App., 84 S.W.2d 552, Traders’ & General Ins. Co. v. Low, Tex.Civ.App. 74 S.W.2d 122, and Casualty Underwriters v. Lemons, Tex.Civ.App., 114 S.W.2d 333, cited by plaintiff in error in support of this assignment, the manner of the infliction of the injury was in question, as well as the nature thereof. The ordinary result of lifting sacks is not a damage to the physical structure of the body, and, the natural result of the diseased heart may have caused the death. Carbon black does-not necessarily result in serious eye injury. Gouging in the eye might cause a dangerous and disastrous infection. The death might or might not have been caused from inhaling carbon monoxide gas. In each of the above cases there was a result which might not have been brought-about by the cause attributed in the pleading.

The question raised by the assignment has been before the courts many times, and the decisions have not in all cases been harmonious. In Southern Underwriters v. Kelly, Tex.Civ.App., 110 S.W.2d 153, the almost identical objection here urged was urged to practically the same issue. It was there held such objections were insufficient to call the trial court’s attention to the error claimed. A number of authorities are cited on this point in the opinion. Application for a writ of error was dismissed by the Supreme Court.

But, as we have before stated, the only injuries under the evidence before the jury were the injuries sustained in the collision. The issue confines the jury to a consideration thereof under the evidence. All of the injuries pleaded by plaintiff were confined to the collision. Plaintiff never sought to show any other injuries. There was some evidence sustaining all of the injuries pleaded by plaintiff. After all, the ultimate issues were, Did plaintiff receive personal injuries of the kind alleged in the manner alleged, and the effect of such injuries on his capacity to labor?

In Associated Indemnity Corp’n v. Baker, Tex.Civ.App., 76 S.W.2d 153, a submission substantially in the manner of the submission here was held harmless error. Application for writ of error was dismissed by the Supreme Court.

While we do not think the issue was perfect in form, we are of the opinion that the defendant was in no way harmed thereby. We further hold that the objections, as made, were insufficient under Article 2185 to clearly call the court’s attention to defendant’s ground of complaint. The assignments are overruled.

Under Nos. 6, 7, 8, 9 and 10, complaint is made as to the manner of submission of the basis of compensation and the sufficiency of the evidence to sustain the finding of the jury thereon. Under the undisputed evidence plaintiff had not been employed for substantially one year preceding the injury by his then employer, or by another -employer in a like class of work. Issue No. 12 was as follows: “Do you find from a preponderance of the evidence that there were employees of the same class as plaintiff, Grover Yocham, working substantially the whole of the year immediately preceding March 23, 1937?”

The response was in the affirmative.

Special Issue No. 14 was as follows: '“What do you find, from a preponderance of the evidence, was the average daily wage of the employees, if any, inquired about in Special Issue No. 12?”

To Special Issue No. 12 the defendant interposed the objections as indicated herein to Special Issue No. 1. Objection (c), however, varied a little from type. It was as follows: “(c) The issue is improper under Sub-section 2, Section 1, Article 8309, since it does not follow the terms of said law and comply with the provisions of said law, with reference to the necessary elements set out and contained in said Section and Article of the Statute, and therefore is not a proper inquiry to be made of the jury in this case. 'The defendant further says that said issue is erroneous in that the plaintiff has failed to negative the terms of Sub-section 1, Article 8309, and therefore Sub-section 2 has no application in this case.”

In substance defendant’s seventh proposition asserts that there is no basis in the verdict upon which compensation could be awarded, because there was no additional finding (under No. 12) that such work was done in the same or in a similar employment in the same or a neighboring place. If defendant’s objection to the trial court had been as clear and specific as his proposition here, we feel sure that the trial court would have eliminated the necessity for the proposition. The objection fails to specifically point out the ground of complaint. Even though defendant’s vagueness was inadvertent, the objection is nevertheless insufficient. Walker v. Haley, 110 Tex. 50, 214 S.W. 295; Ford Motor Co. v. Maddin, 124 Tex. 131, 76 S.W.2d 474; Isbell v. Lennox, 116 Tex. 522, 523, 295 S.W. 920; Federal Underwriters v. Walker, supra.

Issue No. 12 was an attempt to submit an ultimate issue. It comprehended a material part of the ultimate issue as to the matter to which it related. It may be -a defective submission, but such a submission- is not a failure to submit. If this be correct, the judgment entered in harmony therewith was justified. Wichita Falls & Oklahoma Ry. Co. v. Pepper, Tex.Sup., 135 S.W.2d 79.

We have carefully read the statement of facts in relation to issues 12 and 14, and deem the evidence ample to justify the findings thereon. A recital and .review of the evidence would unduly lengthen this opinion.

One other matter in this connection should, perhaps, be briefly discussed. Plaintiff pleaded an average daily wage rate of $4 per day. The finding of the jury was an average daily wage of $4.50 per day. Judgment was entered on a basis of an average wage of $4. Before entry of judgment plaintiff filed a remitti-tur for the excess above his pleading. Defendant was clearly not injured thereby, and. hence not entitled to complain thereof. Federal Underwriters v. Cost, Tex.Com.App., 123 S.W.2d 332, loc. cit. page 336.

Assignments not discussed have been considered and overruled.

This case was fairly and ably tried, despite the many difficulties presented to the trial judge. The verdict is sustained by the evidence. No reversible error appears in the record, and the case is affirmed.

On Motion for Rehearing.

Plaintiff in error, among other things, complains that the original opinion did not discuss two assignments relating to argument. These assignments were not discussed because it was deemed that reversible error was not thereby presented. However, out of deference to the motion we shall briefly discuss same.

In the opening argument to the jury counsel for defendant in error used the following language: “Now, gentlemen of the jury, all this man is asking of you is that you give him the same just consideration that you would want him to give to you if you were in his place.”

The exception taken at the time of the argument was in substance that same was prejudicial and inflammatory and had the effect of calling upon the jury to place themselves in the position of the plaintiff in the case and thereby consider and take into consideration in arriving at their verdict other matters than those contained in the evidence and the charge.

We fail to see any particular impropriety in the argument. It does not seem to be an appeal to passion or prejudice. It introduced no new evidence in the case. The appeal was as to the attitude the jury should adopt in considering the evidence before them. They were asked to give the evidence a just consideration, the same just consideration that they would want from the plaintiff were the jurors in the place of plaintiff. Every man has implanted in his heart a love of justice. Plaintiff had a right to expect and demand justice from the jury. A right feeling man would want and expect nothing more. See Rio Grande, E. P. & S. F. Ry. Co. v. Dupree, et al., Tex.Com.App., 55 S.W.2d 522; Texas & P. R. Co. v. Short, Tex.Civ.App., 62 S.W.2d 995; Ochoa v. Winerich Motor Sales Co. et al., 127 Tex. 542, 94 S.W.2d 416.

In the closing argument counsel for defendant in error used the following language: “Now, gentlemen, this is Dr. Middlebrook’s testimony, and the insurance company has had Grover Yocham examined by Dr. Sanders, and x-rayed by Dr. Ross and x-rayed by Dr. Johnson, let me ask you if Dr. Middlebrook’s testimony is not true, and if Grover Yocham’s testimony is not true, why didn’t they bring them in here to show differently.”

The objection to this argument was in substance that same was highly improper and prejudicial, and assumed that Doctors Johnson, Ross and Sanders would have testified contrary to the position of the defendant had they been present, and further that there was no evidence that said doctors were subject to be called by the defendant, and therefore amounted to the giving of improper testimony before the jury.

It seems by an explanation and qualification embodied in the bill that when the case was called for trial and plaintiff announced ready, the defendant (plaintiff in error here) declined to announce until an agreement was entered into in open court in the presence of the court by the attorneys for both sides that X-ray pictures of the plaintiff be taken by a doctor of the defendant’s selection, to-wit, Dr. H. B. Ross, at five o’clock P. M. of that day, and that when such pictures were dry that plaintiff would then be examined by doctors selected by defendant, to-wit, Doctors Johnson and Sanders; subsequently on the same day such pictures were taken, and on the following morning such examination of plaintiff was made, and the court informed of the facts. Neither Dr. Ross nor Dr. Johnson nor Dr. Sanders testified or was offered as a witness, nor were the X-ray pictures taken offered in evidence.

The three doctors mentioned were selected by plaintiff in error and employed, the X-ray pictures taken and the examination made. It seems that Dr. Middlebrook, defendant in error’s witness, was present at the examination. The examination took place during the trial of the case. The circumstances tended to almost conclusively show that these witnesses were available to plaintiff in error. A fair inference is that they were employed to make the examination for the purpose of testifying on the trial for the defendant and for the tentative purpose of contradicting any testimony of plaintiff harmful to defendant that was not in their opinion the truth. The argument conveys no intimation as to what they would have testified. Its gist is that if Yocham and Dr. Middlebrook were not telling the truth, defendant had available witnesses to contradict the testimony. Plaintiff agreed to a medical examination by the agents of the defendant, and defendant failed to avail itself of the testimony of its agents. In our opinion the argument does not present reversible error. See Marek v. Southern Enterprises, Inc. of Texas, 128 Tex. 377, 99 S.W.2d 594; Consolidated Underwriters v. Lowrie, Tex.Civ.App., 128 S.W.2d 421.

We are of the opinion that there is a distinction between the facts of the cases cited by plaintiff in error in its attack on issue No. 1 and the case at bar.

The motion for rehearing is overruled.


author: TIREY, Justice.

text:
    WHITEFIELD v. WHITEFIELD et al.
    No. 2218.
    Court of Civil Appeals of Texas. Waco.
    March 7, 1940.
    Rehearing Denied May 23, 1940.
    Mark Smith and Lem Wray, both of Waxahachie, for appellant.
    J. C. Lumpkins and Hancock & Hancock, all of Waxahachie, for appellees.
   TIREY, Justice.

This suit involves the probate of a written will not produced in court. The will was admitted to probate in the county court. On appeal to the district court, the cause was tried before a jury and on the verdict of the jury the will was admitted to probate. At the conclusion of the evidence, the contestant filed a motion for an instructed verdict. The court overruled said request and this action of the court is assigned as error.

The evidence is uncontradicted on the following facts: That testator, G. H. Whitefield, was a bachelor; that he was a resident of Ellis County, Texas, and that he died June 3, 1938; that on or about August 16, 1933, he employed the Hon. Lynn B. Griffith to prepare a will for him; that said written will was prepared by Mr. Griffith and that testator executed the will in the presence of Mr. Griffith and C. D. Teutsch; that after said will was executed and witnessed by Mr. Griffith and Mr. Teutsch, that Mr. Griffith folded the will and placed it in an envelope and sealed it arid delivered it to the testator and that he had never seen the original since he placed it in the envelope and .sealed' it and delivered it to the testator; Mr. Teutsch, the other subscribing witness to' the will of date August 16, 1933, had died sometime subsequent to the execution of said instrument. Mr. Griffith kept a copy of the will for his files and after the dehth of G. H. Whitefield, he delivered the copy of said will, on June 25, 1938, to the attorney for G. H. Whitefield estate; that G. H. Whitefield was living in the home with his mother during, the year 1932; that during the year 1932 his mother became ill and died in November of that year; that during the last illness of the mother of the testator, she was attended by Miss Essie Clinkscales, who assisted in nursing and caring for her. Miss Clinkscales was a single woman and was engaged to he married to the testator. The contestant, in his motion for an instructed verdict, admitted that the testator, at the time of executing said alleged will (which was August 16, 1933), was of sound and disposing mind and memory.

The proponents undertook to account for the will made on August 16, 1933, by showing that the testator delivered it to Miss Essie Clinkscales, who was not a beneficiary under the will of August 16, 1933; she was placed on the stand by the proponents and testified substantially that during the month of November, 1932, a week or more prior to the death of the testator’s mother, that the testator delivered to her two envelopes, one of which was sealed and one unsedled; that in the unsealed envelope “was some duplicates for ordering.” The sealed envelope was a large envelope and it had the word “will” written on the outside of it with pencil. She never opened the sealed envelope and did not know what it contained except that she could tell by holding it up and looking at it that it had a slip of paper in it; that she kept the sealed envelope until she lost or missed it on a trip that she made to San Antonio after the death of the testator; that when the testator gave the envelopes to her, he said: “There were some papers he wanted me to keep for him. He did not say it was a will.” She further testified that testator did not give her any other instrument or papers other than those he delivered to her in November, 1932, and that she never saw the will dated August 16, 1933, and that she knew nothing about it and that she did not destroy the sealed envelope that the testator gave to her, but that she lost it.

The proponents undertook to contradict the testimony of Miss Clinkscales as to the time the sealed envelope was delivered to her by the testator. The testimony offered by them on this point was wholly circumstantial. Mr. Griffith testified that it was. his best recollection that the sealed envelope which contained the will of August 16, 1933 that he delivered to the testator had on it the name of Farrar & Griffith or Lynn B. Griffith; that the word “will” was written on the outside of the envelope in one corner with a typewriter; it was Miss Clinkscales’ best recollection that the word “will” written on the sealed envelope given to her by the testator in 1932 was written with pencil. She did not remember whether said envelope had on it the name of Farrar & Griffith or Lynn B. Griffith.

Mr. J. Franklin Spears, an attorney,, of San Antonio,: Texas, testified that Miss Clinkscales consulted him in his office in San Antonio in the month of May, 1938, while the testator was in the State Hospital at San Antonio, and that on this particular visit Miss Clinkscales said:: “She stated to me that Mr. Whitefield was considerably upset because his brother had had him placed in the -State Hospital, and that Mr. Whitefield had requested her to tear up the will which she had in her possession. She asked me what to do about it; and I said, ‘Well, if he made the will and gave it to you, and has requested you to destroy it, I see no reason why you should not comply with his request.’ ”

Mr. Spears further testified: “I remember that she had something in her hand, which as I recall, purported to be the will. I did not read it, nor did T see it, * * Mr. Spears further testified : “I did not read any writing or printed matter on the envelope.”

There is no direct testimony that the will of date August 16, 1933, was ever seen by anyone after it was sealed and delivered by Mr. Griffith, the scrivener, to the testatpr; there is no direct testimony that the sealed envelope containing the will of August 16, 1933 delivered by Mr. Griffith to the testator was the sealed, envelope that was delivered by the testator to Miss Clinkscales. The contestant seriously contends that the facts are un-controverted that the will in question was last seen in-possession of the testator and' since the evidence is uncontroverted that it could not be found, such facts raised the presumption that the testator had revoked the same by destroying it and that the proponents had not carried their burden. This contention must be sustained. Chief Justice Gaines, in McElroy v. Phink, 97 Tex. 147, 76 S.W. 753, 754, laid down the rule which, we think, has been followed in Texas. He said: (1) “When the will cannot be produced, but its execution and contents are proved, and it is shown that when last seen it was in the custody of the testator, the presumption being that he has destroyed it with intent to revoke it, the presumption of' continuity is rebutted; and, in the absence of some other evidence, the proponent must fail in his case.” (2) “But no such presumption of revocation arising from .the failure to produce the "will when it has been traced to the hands of another than the testator, and cannot be found, the first presumption should prevail, and the evidence should be held sufficient at least to warrant a finding that the will had not been revoked.”

Judge Baugh, in the case of Aschenbeck v. Aschenbeck, Tex.Civ.App., 62 S.W.2d 326, 327, stated the foregoing rule substantially as follows: “The general and recognized rule is that, where such will was in the possession of the testator or where he had ready access to it when last seen, failure to produce it after his death, raises the presumption that the testator has destroyed it with intention to revoke it, and the burden is cast upon .the proponent to prove the contrary.”

We aré of the opinion that the direct evidence shows that the will of date August 16, 1933 was in the possession of the testator when it was last seen. We are also of the opinion that there is no direct evidence that the testator delivered the will of August 16, 1933, into the hands of the witness Clinkscales. The question therefore arises, Does the evidence raise the issue, by facts and circumstances, that the testator delivered the will of date August 16, 1933, into the hands of the witness Clinkscales for safekeeping? ,The trial court, in his main charge, submitted the question to the jury in this manner: “No. 4. Do you find from the .preponderance of the evidence, if any, that the said G. H. Whitefield, deceased, delivered said will bearing date August 16, 1933, if any, into the custody of the witness Miss Essie Clinkscales?” 'To which I the jury answered in their verdict: “Yes.”

The court has carefully considered the foregoing matter, and we are of the opinion that said fact issue was not raised by the evidence and that there is no testimony to sustain the finding of the jury in its answer to said question. In the case of Parks v. St. Louis S. W. R. Co. of Texas, 29 Tex.Civ.App. 551, 69 S.W. 125, point page 127, we find this general rule: “Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed. No presumption can be drawn from a presumption. If there be no fixed or ascertained fact from which the inference of another fact may be drawn, the law permits none to be drawn from it.” In the recent case of International Travelers’ Ass’n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040, 1044, our present Supreme Court said: “A presumption of a fact cannot rest upon a fact presumed.” Texas Jurisprudence states the rule as follows: “A presumption of fact can not rest upon a fact presumed, or, in other words, one presumption can not be based upon another presumption, nor an inference of fact upon other inferences.” 17 Tex.Jur. p. 247, § 57. The rules above stated are general, but we believe they are applicable and controlling in this case. The proponents offered Miss Clinkscales as their witness and they thereby vouched for her credibility and they are, under the well recognized rule, bound by her testimony. See Pickett v. Dallas Trust & Savings Bank, Tex.Com.App., 24 S.W.2d 354, point page 357. However, there is a well recognized exception to the foregoing rule, and that is that the party offering the witness is permitted to contradict the testimony of such witness by independent facts showing its inaccuracy or falsity. See South Texas Coaches, Inc., v. Eastland, Tex.Civ.App., 101 S.W.2d 878, point page 884. The question arises, Is there any testimony in this record of a fixed or ascertained fact to contradict the direct testimony of the witness Clinkscales that the sealed envelope that the testator delivered to her was delivered to her in the month of November 1932 ? Moreover, where is the testimony, in this record of a fixed or ascertained fact from which the inference can be drawn that the sealed envelope delivered by the testator to the witness Clinkscales contained the will of date August 16, 1933? We are unable to find it. The proponents undertake to probate a will not produced in court, executed on August 16, 1933, and of course that will could not have been delivered by the testator to the witness Clinkscales in November, 1932. After a careful consideration of this testimony, we are of the opinion that it did not raise the fact issue that G. H. Whitefield delivered the will dated August 16, 1933, into the custody of the witness Miss Clinkscales, and that there is no evidence in this' record to sustain the jury’s finding that he did. We therefore hold that proponents have not carried the burden imposed on them by law, and that the judgment of the trial court must be reversed. See Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, point page 1063. Under the rule announced in Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593, point page 594, we do not feel that we can say that this case has been fully developed, and by reason thereof, we reverse and remand this cause for another trial.

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


author: LOONEY, Justice.

text:
    DYSART v. FLEMISTER et al.
    No. 12876.
    Court of Civil Appeals of Texas. Dallas.
    April 20, 1940.
    Rehearing Denied May 18, 1940.
    Fred J. Dudley and Webster Atwell, both of Dallas, for appellant.
    Touchstone, Wight, Gormley & Touchstone and Bromberg, Leftwich, Carrington & Gowan, all of Dallas, for appellees.
   LOONEY, Justice.

L. T. Dysart, Trustee of the bankrupt estate of the Dallas Food Stores, an incorporation, brought this suit, in his official capacity, against J. A. Flemister, W. D. Jones and James N. Tardy, the sole stockholders and directors of the bankrupt company, seeking to recover from each an alleged unpaid balance due the corporation on his stock subscription.

Plaintiff alleged that, the capital stock of the company was $60,000, represented by 600 shares of the value of $100 each; that the same was subscribed by the defendants, as follows: Flemister 480 shares,-Jones 60 shares, and Tardy 60 shares, to whom certificates of stock were issued; contending, however, that the defendants had not fully paid the corporation for the stock, and, as a basis for such contention, alleged in substance that, before being chartered, $60,000 in cash was deposited to the crédit of the .corporation in the Republic National Bank & Trust Company of Dallas, being the full amount of its capital stock; and that, at the time the charter was presented to the Secretary of State for approval and filing, there was also presented a certificate of deposit for $60,000, showing that, that amount was in the Bank to the credit of the corporation, and upon such showing, the Secretary of State filed the charter, and thus the .corporation came into existence; that the money was subsequently used by the corporation in the purchase, from Fle-mister, one of the stockholders and a director, of certain assets (a stock of merchandise and fixtures), paying therefor a sum in excess of the true value of the property, praying for judgment against each stockholder for an amount representing the difference between the true value of the assets purchased and the par value of the stock, which plaintiff alleged to be 60 per cent, of the face value of the stock; in other words, that only 40 per cent, of the par value of the stock was paid. Plaintiff did not allege that the assets purchased were fraudulently over-valued, or that, the value agreed upon was not arrived at in good faith; neither was it alleged that, any stockholder or creditor suffered injury by reason of the transaction; in fact, at that time, there were no creditors.

The court sustained a general demurrer to plaintiff’s petition and, declining to amend, his suit was dismissed, from which he appealed.

The trustee in bankruptcy stood in the shoes of the bankrupt corporation, succeeded simply to its rights and causes of action existing at the time of the adjudication; therefore, if, under plaintiff’s allegations, the corporation could not have maintained the present action against the defendant-stockholders, neither can the trustee in bankruptcy maintain the action (see Note 1, 11 U.S.C.A. § 110). Plaintiff’s allegations show that the full amount of the authorized capital stock of the Dallas Food Stores, Inc., was subscribed by the three defendants, and was paid in cash at the time the charter was filed. That amount, $60,000, was to its credit in the Republic National Bank & Trust Company of Dallas. Obviously, this money belonged to the corporation, was subject to its disposition, in fact, was subsequently expended in the purchase of a stock of merchandise and fixtures.

It appearing that, the corporation was chartered in the manner prescribed by the statute, the subscribing stockholders having fully paid the amounts, respectively, of their subscriptions, placed the' same in the bank to the credit of the corporation, in our opinion fully satisfied the law; hence, under these circumstances, we do not think the corporation could have maintained an action against these defendants for any amount due on the stock, neither do we think the trustee in bankruptcy can maintain the action. For the reason just stated, we are of opinion that the judgment of the court below was correct and should be affirmed and, but for the earnest contention of counsel for plaintiff, which will be discussed later, this opinion would end at this point.

Plaintiff alleged that the amount to the credit of the corporation in the bank was expended in the purchase of a stock of merchandise from Mr. Flemister, one of the stockholders and directors, paying therefor a price in excess of its true value. Based upon this fact, plaintiff seeks to liken the case to one where stockholders pay for their stock in property allegedly taken by the corporation in excess of its true value, contending that the stockholders are liable to the corporation for the difference; in other words, that the true value rule is applicable, without reference to the good faith involved in the transaction.

For the reason heretofore stated, we do not think this question is in the case, but even if so, we are of opinion that the proposition contended for by plaintiff is incorrect. Plaintiff relies upon Cole v. Adams, 19 Tex.Civ.App. 507, 49 S.W. 1052, 1054. The authority cited apparently supports plaintiff’s contention, but, prior to that decision, the questions of law arising in the case were certified to the Supreme Court, and were answered. See 92 Tex. 171, 46 S.W. 790, 792. That suit was by the receiver of a corporation against stockholders to recover balance due upon stock, the contention being, similar to the contention made here — that 50 per .cent, of the par value of the stock was paid for in property of an uncertain and speculative value, hence, the stockholders were liable to the corporation. The certificate embraced all the material facts upon which liability could have been predicated, stating, among other things, that the property received by the corporation, in payment for stock, was taken in good faith and with no intent to deceive or defraud anyone, and concluded by propounding, among- others, this question : “Are the stockholders * * * liable for * * * 50 per cent, of the par value of the stock issued to them on the 22d of May, 1890?” The Supreme Court answered the question in the negative, thereby acquitting the defendants of liability, and, we think necessarily, held that, absent fraud in the transaction, a stockholder is not liable for an unpaid balance due on stock, because, later, it is ascertained that property accepted in payment was taken at more than its true value. However that may be, since the decision by the Court of Civil Appeals in Cole v. Adams, supra, the question has been definitely settled contrary to the contention of plaintiff. A typical case is Smith v. Ideal Laundry Co., Tex.Civ.App., 286 S.W. 285, 287. In disposing of that case, the San Antonio Court of Civil Appeals said: “A corporation may lawfully issue its stock jn payment for property conveyed to it. Of necessity, the representatives of the corporation must be vested with the authority to value the property which it is proposed to acquire. When they do so fairly and honestly and issue stock in payment therefor, the par value of which is equal to the valuation placed by them upon such property, such transaction cannot be set aside, simply because the property in fact was overvalued.” And in Peden Iron, etc., Co. v. Jenkins, 203 S.W. 180, 187, the Beaumont Court of Civil Appeals, quoting from the Supreme Court of the United States, Coit v. North Carolina Gold Amalgamating Co., 119 U.S. 343, 7 S.Ct. 231, 30 L.Ed. 420, said: “ When the charter authorizes capital stock to be paid in property, and the shareholders honestly and in good faith put in property instead of money in payment of their subscriptions, third parties have no ground for complaint. The case is very different from that in which subscription to stock is payable in cash, and where only a part of the installment has been paid. In that case there is still a debt due to the corporation, which, if it becomes insolvent, may be sequestered in equity by the creditors, as a trust fund liable to the payment of their debts. But where full-paid stock is issued for property received, there must be actual fraud in the transaction to enable the creditors of the corporation to call the stockholders to account.’ ” To the same effect, see Southwestern Portland, etc., Co. v. Latta & Happer, 193 S.W. 1115, by the El Paso Court of Appeals, and Park v. Rich, 212 S.W. 947, by the Commission of Appeals.

In the argument, plaintiff also contends that, as against a general demurrer, indulging every reasonable intendment arising from the allegations, the petition presented the issue of fraud.

As before stated, plaintiff did not allege that, the transactions, resulting in the chartering of the Dallas Food Stores and in the purchase of the stock of merchandise, were either fraudulent or fictitious — the gravamen of the charge being that, the $60,000 constituting the full amount of the paid-in capital stock of the company, was expended in the purchase of a stock of merchandise, allegedly at a price in excess of its true value. Based upon these allegations, the pleader drew the following conclusion, to-wit: “Plaintiff would further show to the court that because of the facts hereinbefore alleged, that the defendants resorted to a plan and a scheme to enrich themselves at the expense of the Dallas Food Stores, Inc., and that by virtue thereof they are liable to this plaintiff as trustee for 60% of their subscription of the capital stock of the Dallas Food Stores, Inc., in proportion as the same shall bear to the sum of $42,800.00,”

We do not think it follows, as a matter of law, that “because of the facts hereinbefore alleged”, fraud is to be implied; as fraud is never implied unless the facts from which the implication is drawn admit of such implication. Obviously, the excerpt quoted from plaintiff’s petition is but the conclusion of the pleader, based upon the facts theretofore alleged, which,' in our opinion, do not admit of such an implication. As said by the Supreme Court, in Baines v. Mensing, 75 Tex. 200, 12 S.W. 984, 985: “Merely to characterize an act as fraudulent does not make it a good allegation of fraud. * * * No amount of :mere denunciation of it as a fraud could 'make it so. The facts constituting the ⅜ fraud must be alleged.”

However, we do not think the trustee in -bankruptcy can complain of the action of the defendants in regard to the transactions involved, for the reason that no cause of action arose in favor of the corporation. It appears that, the three defendant-stockholders were the only persons who took part in the organization of the corporation; they subscribed for all its capital stock and, as between themselves, paid according to their subscriptions and invested the money for the stock of merchandise, in the way and manner agreed.

The recent case of McAlister v. Eclipse Oil Co., 128 Tex. 449, 98 S.W.2d 171, 176, was a suit by the corporation to cancel certain stock issued for an oil and gas lease, alleged to have been over-valued. As in the case at bar, only three persons took any part in the organization of the corporation involving the issuance of its capital stock, no creditors being in existence at the time. Among other things, the court said: ‘‘It follows that under the record we have detailed, when this concern was chartered and the properties above described conveyed to it, it became the corporate owner thereof, but the real or beneficial owners of such property were the three stockholders in the proportion in which they held the stock of the corporation. There were no creditors. Under such a record, as between the stockholders themselves, certainly no one or more of them could have questioned the beneficial interest of any one of the others in the properties of the corporation. All this being true, we are unable to see how the corporation’s rights could then rise higher than the rights of all of its beneficial owners, and in this regard there is nothing in this record that would change the status at this time from that which existed at the time it was originally organized and its capital stock originally issued. * * * Under such a record we think that, as between each other, neither the corporation itself nor any of its stockholders has any right to say that the issuance of the stock to McAlister was a void transaction in its in-cipiency. Smith v. Ideal Laundry Co. (Tex.Civ.App.) 286 S.W. 285, and authorities there cited; Nenney v. Waddill, 6 Tex.Civ.App. 244, 25 S.W. 308, and authorities there cited.”

We hold that, defendants having paid in cash for all stock issued, were not liable to the corporation, therefore, are not liable to its trustee in bankruptcy. If, however, we should be in error in the conclusion just announced, we hold that, no fraud appearing in the transactions, the price for the stock of merchandise agreed upon between Flemister and the corporation, acting through at least a majority of its directors, was a valid and unassailable transaction; and furthermore, that the three defendant-stockholders being the beneficial owners of all the assets of the corporation and the only ones involved in the transactions of which complaint is made, neither the corporation nor its trustee in bankruptcy can complain. We conclude that the judgment of the trial court, sustaining the general demurrer and dismissing the cause, was correct, hence is affirmed.

Affirmed.


author: BROWN, Justice.

text:
    MARLETT et al. v. BROWNFIELD.
    No. 14141.
    Court of Civil Appeals of Texas. Fort Worth.
    May 3, 1940.

      H. G. Woodruff and H. E. Lobdell, both of Decatur, for appellants.
    E. I. Key, of Denton, for appellee.
   BROWN, Justice.

W. C. Bronfield is a brother of Mrs. Alpha Balthrop, Mrs. .Lonie Marlett and Mrs. Ammer Kelley, and these four are the children of C. L. Brownfield and Nancy Brownfield (deceased).

W. C. Brownfield brought suit against his three sisters and their spouses, praying for a partition of two certain tracts of land in Wise County, and alleged that he was the owner of five-eighths of a certain portion of the land and an owner of one-fourth of another portion. His title is bottomed on a deed from his father (who is still living) in which the father attempted to convey to him the father’s asserted undivided one-half interest in the first tract, or portion, of land mentioned above, and his right and title to an undivided one-eighth interest in the same tract as an heir of his deceased mother, and to a one-fourth interest in the other lands as such heir of his mother.

Mrs. Balthrop and Mrs. Marlett, joined by their husbands, answered and in addition to denying plaintiff’s rights, as asserted by him, filed a cross-action against him and attacked the deed which appears to have conveyed the first tract, or portion, of land in controversy to both C. L. Brownfield and Nancy Brownfield.

A jury was taken and when the evidence was all in, the trial court submitted only one issue to the jury, which asked the jury: “Do you find from a preponderance of the evidence that at the time Mrs. Fortenberry executed the deed of date August 12th, 1898, the sole grantee in the deed was Nancy Brownfield?” The jury answered: “No.”

The plaintiff moved for judgment as he had prayed for, and the defendants moved the court for a judgment notwithstanding the .verdict, and a separate motion fon judgment in their behalf.

We do not find any record of any order showing what disposition, if any, the trial court ever made of defendants’ motions, or either of them. The judgment, which bears date December 23rd, 1939, is silent on the subject and recites the verdict and thereupon awards title to plaintiff to a five-eighths interest in the first tract mentioned and a one-eighth interest in each of the three sisters (defendants) and a one-fourth interest in the plaintiff and in each said sister to the remaining tract. The judgment recites that the defendants excepted to the judgment and gave notice of appeal to this court.

We have before us three motions: the first, by appellants, is to amend or substitute an appeal bond; the second, by ap-pellee, is to dismiss the appeal on account of no proper bond being-filed in due season; and the third, by appellee, is to perfect the transcript for the purpose of showing that appellants first filed a petition for a writ of error.

We gather from the record presented that the writ of error route was abandoned, and this, evidently, because there was ample time within which to appeal. We gather further that an appeal bond was duly and timely filed with the Clerk of the District Court but same was lost and that appellants then substituted the lost bond with a carbon copy of the original, but that the body of the bond recited that Mrs. Balthrop and her husband were the appellants while the bond discloses that it was made by Lonie Marlett and Ammer Kelley and their respective husbands.

Lonie Marlett and her husband have tendered a proper bond as appellants and same has been approved by the District Clerk, and they pray that it be substituted here as the appeal bond in this cause.

We think the prayer should be granted.

Article 1840, R.C.S., specifically provides that when there is a defect of substance or form in any appeal bond, then on motion to dismiss the same for such defect, the appellate court may allow the same to be amended by filing in such appellate court a new bond.

The words “defect of substance or form” are assuredly broad enough to cover the defects here disclosed.

The motion to substitute, or amend, is granted, and the bond ordered filed.

It follows that the motion to perfect the transcript should be and it is granted, and the motion to dismiss the appeal should be and it is overruled. It is so ordered.


text:
    SOUTHERN UNDERWRITERS v. ALVIDREZ et al.
    No. 3942.
    Court of Civil Appeals of Texas. El Paso.
    April 25, 1940.
    Rehearing Denied May 16, 1940.
    Jones, Turney, Hardie, Grambling & Howell, of El Paso (Henry D. Akin, of Dallas, of counsel), and Will R. Saunders, of Dallas, for plaintiff in error.
    Frank J. Galvan, Jr., and Lea & Edwards, all of El Paso, for defendants in error.
   PRICE, Chief Justice.

Southern Underwriters prosecutes this appeal by writ of error to review the judgment of the District Court of El Paso, County in an action to set aside an award of the Industrial Accident Board in favor of defendants in error. The judgment assailed awards to defendants in error compensation at the rate of $8.31 per week, for 360 weeks, and one-third of which recovery is awarded to the respective attorneys for defendants in error. The judgment further provides that $175 of the compensation awarded he paid to Kaster & Maxon for the burial of the deceased workman, Reyes Alvidrez.

The facts involving liability are few, simple and practically undisputed. At all relevant times here involved plaintiff in error had in effect a workmen’s compensation policy covering the employees of the El Paso Refining Company in the plant of that concern in the City of El Paso. On May 6, 1936, Reyes Alvidrez, an employee of the El Paso Refining Company, while acting in the scope of his employment, was killed by an explosion occurring when he was seeking to charge an oxygen drum in the plant of his employer. Mr. Alvidrez left surviving him his wife, Mrs. Ricarda Alvidrez, Dolores and Maria Al-vidrez, daughters, Reyes and Roberto Al-vidrez, sons, and another daughter, Maria de Socorro Alvidrez, a minor, residing in Mexico. Mrs. Alvidrez gave due and requisite notice to plaintiff in error, and thereafter, on the 29th day of May, 1936, filed claim for his death with the Industrial Accident Board. In this claim the beneficiaries are set forth as those hereinbefore named as surviving deceased Alvidrez, except Maria de Socorro Al-vidrez is 'not specifically named as such. In the claim filed is the following: “This claim for compensation, with respect to such injury and because of the death of deceased, is made in behalf of and for each and all of the legal Beneficiaries of the deceased, as well as by and for the undersigned, he herein acting for himself and such legal Beneficiaries.”

Upon hearing, the Board denied the claim of Roberto, Reyes and Maria (not Maria de Socorro Alvidrez), and allowed the claim of Mrs. Alvidrez and Dolores at the compensation rate of $8.31 per week, dividing same equally between the two said compensation claimants.

Plaintiff in error gave notice of dissatisfaction with the award, and in due time filed suit to set same aside. In this suit Mrs. Alvidrez and Dolores were made defendants.

Now from here on the procedure becomes somewhat more complicated. Suffice it to say, that the plaintiff in error dismissed its suit. The defendants in the suit filed cross-action seeking to recover under the Workmen’s Compensation Act, Vernon’s Ann.Civ.St., art. 8306 et seq.; plaintiff in error filed many and various pleas to the jurisdiction and in abatement, which were all overruled by the court. During the course of the proceeding Maria de Socorro Alvidrez, acting through her next friend, Eugene Edwards, Esq., asked and was granted leave to intervene. She averred in substance that she was a minor dependent daughter of deceased Reyes Alvidrez, and sought compensation on account of the death of her father.

To this plea of intervention of Maria de Socorro plaintiff in error filed a plea to the jurisdiction, setting up its notice and appeal from the Industrial Accident Board, its filing of suit, and that the defendants, nor either of them, gave notice of their unwillingness to abide by the ruling and decision of the Board, and were relying solely upon the notice given by plaintiff in error to said Board, and hence the court had not acquired jurisdiction of the subject matter or the parties.

We think that all matters of merit arising in this appeal will be . disposed of by discussing three matters presented by plaintiff in error: First, as to the jurisdiction of the court in the matter of the intervention of Maria de Socorro Alvidrez; second, as to error assigned in the matter of the court’s charge on the burden of proof; and, third, as to the sufficiency of the evidence to sustain the compensation rate.

In regard to the jurisdictional question, as we have heretofore shown, Maria de Socorro was not specifically named in the claim filed by Mrs. Alvidrez. The general clause in the claim has been set forth. We think the court had jurisdiction in the premises over the claim asserted by the intervention of Maria de Socorro Alvidrez; that likewise there was jurisdiction over the claims of the two defendants. Texas Employers’ Ins. Ass’n v. Williams, Tex.Civ.App., 57 S.W.2d 218; Lloyds Casualty Co. v. Meredith, Tex.Civ.App., 63 S.W.2d 1051; Traders & General Ins. Co. v. Boysen, Tex.Civ.App., 123 S.W.2d 1016, writ dismissed. The filing of the claim gave jurisdiction over the subject matter. The other claimants mentioned in the claim before the Board not being made defendants nor having appealed in their own right, the action of the Board as to them has become final.

The issues as formulated by the court placed the burden of proof in the usual and customary manner. To each of the sixteen issues submitted plaintiff in error interposed the following objection : “Cross-defendant, The Southern Underwriters, further objects and excepts to Special Issue No. -, as submitted, because the same does not furnish any guide or direction as to whom the burden of proof is on, and equally places upon the cross-defendant, The Southern Underwriters, the burden of establishing the negative of such issue, to its detriment and prejudice, and constitutes a charge upon the weight of the evidence.”

The concluding paragraph of its exceptions is as follows: “Cross-defendant, The Southern Underwriters, further objects and excepts to the main charge of the court on the burden of proof because it points out and accentuates and directs to the jury the legal effect of their answers, and especially with reference to the cross-plaintiff recovering as against this cross-defendant, The Southern Underwriters.”

The exception last quoted appears as a part of plaintiff in error’s statement under its proposition. The exception first quoted does not so appear. The exception relied upon is addressed to the main charge. In the main charge there is no charge on the burden of proof. By supplemental charges one and two the court met the objection sixteen times made in the exceptions, and did give a charge specifically placing the burden of proof on intervener and cross-plaintiffs. Here the position is that the issues as formulated in the main charge were sufficient as to the burden of proof. This was not the position in the trial court. If the supplemental charges were erroneous, and we think such is the case as to defendants in error, it presents, we think, a case of invited error. Plaintiff in error induced the court to adopt its theory and then excepted thereto. We are of the opinion that it is in the same position as though it had specifically requested the supplemental charges. Be that as it may, the error was harmless. In reality there was but one contested issue in this case: that was as to the compensation base. A charge that the burden was on defendants in error could in no way have harmed plaintiff in error in informing the jury as to the legal effect as to their answer.

The purpose of the whole proceeding was a recovery. It would have been impossible for the court to have concealed from the jury that the extent of this recovery depended on a determination of the average weekly wages of Alvidrez.

The jury found, in substance, that Reyes Alvidrez worked for his employer, the El Paso Refining Company, in the employment in which he was engaged at the time of his death for substantially the year elapsing next prior to his death; that his average daily wage was $2.40 per day. No complaint is made other than has been before indicated to the form of the issues submitting the facts as to the compensation base. The testimony of Mrs. Alvidrez, although somewhat confusing, sustains the finding of the jury. She was in a position to know the earnings of her husband, if her testimony was true; it was her habit to collect his pay. The verdict does not literally follow the testimony of Mrs. Alvidrez. However, the jury are the judges of the testimony, and it was their province to reconcile any apparent conflicts in same. Part of the time at least Alvidrez was working for his employer on the repair and maintenance of the plant when it was closed down and not running.

The books of the El Paso Refining Company had been destroyed prior to the trial — how and in what manner does not appear. Plaintiff in error offered in evidence a paper or memorandum purporting to have been taken from the books of that Company by its agent showing the wages of Alvidrez from May 4, 1935 to May 6, 1936. The purported memorandum showed wages aggregating $440. Jerome Owen testified that the memorandum had been made in his presence and correctly showed the book entries with reference to the wages of Alvidrez; that he had been bookkeeper for the El Paso Refining Company from some time early in 1936 until it closed, and that he kept the books correctly. J. W. Hunt testified he was succeeded by Jerome Owen as bookkeeper; that during the time he kept the books same were correctly kept. The correctness and accuracy of the memorandum was not further verified. That it was the identical memorandum made by plaintiff in error’s agent is verified only by the testimony of Jerome Owen. The memorandum is dated May 8, 1936; it bears the file mark of plaintiff in error purporting to show it was received May 5, 1936. All of the evidence shows Alvidrez was killed May 6, 1936. The witness Owen stated that the wages of Alvidrez would run. from nine to twenty dollars per week, depending on how many days in' a 'week he worked. The maximum weekly wage shown by the memorandum for any one week during the year was $15.60. This was for the week from April 25th to May 1st, 1936. The El Paso Refining Company had four or five employees. It may be the jury thought the recollection of the witness was more accurate -than the purported memorandum made by another, and that he was mistaken in his statement that the memorandum was correctly made.

Under the record we cannot say that the jury were not warranted in making the findings assailed. It was their province to pass on the facts, and in -doing this to weigh and appraise- testimony. It is our opinion that a case .is ¡presented of a conflict in testimony as to which .the finding of the jury must be respected.

One other matter should be mentioned. It is asserted that the court erred in awarding Raster & Maxon the sum of $175’for funeral expenses over And above the compensation awarded. Under ; óur understanding of the record such proposition is not sustained thereby: If we understand the judgment of the trial court, the amount to be paid Raster & Maxon was to be taken from the - amounts recovered by defendants in error. Alvidrez was killed May 6, 1936; the judgment was rendered October 8, 1938; the compensation rate was $8.31 per week; at the date of the judgment $1,047.06 had mal tured, together with $77.68 interest on delinquent installments; judgment was for this amount, as follows: Mrs. Alvidrez and attorneys, $474.88; Dolores and her attorneys, $237.43; Maria de Socorro and her attorney, $237.43; Raster & Maxon and their attorney, $175.00. The -aggregate of these amounts is the aggregate of the matured installments, with interest.

We find no reversible error in the case.

The judgment is affirmed.


text:
    GOSSETT, Banking Com’r of Texas, v. MOORE.
    No. 14071.
    Court of Civil Appeals of Texas. Fort Worth.
    April 12, 1940.
    Rehearing Denied May 24, 1940.

      Ira Butler, of Fort Worth, for appellant.
    Joe H. Cleveland, of Arlington, for ap-pellee.
   BROWN, Justice.

Appellant, Banking Commissioner of the State of Texas, by virtue of the authority vested in him, closed the First State Bank of Arlington, Texas, on April 12, 1937, because of its insolvency, and made the authorized 100% assessments against the stockholders of record. Appellee was shown to be the holder of three shares of stock in the. defunct bank, each share being of the par value of $100, as disclosed by the stock register of the bank.

After such assessment and demand and the refusal of appellee, Hugh M. Moore, to pay such assessment, suit was brought against such stockholder of record. Moore answered that, in February, 1936, he purchased a motor vehicle from Universal Motor Company and traded in his shares of stock on the trade. He alleged that Thomas Spruance was the president of said bank and likewise president of said Universal Motor Company. That he delivered the stock certificate to Spruance at the said bank and requested him to transfer same on the books of the bank and that Spruance promised to do so at once. That the purchase price of the stock was charged to Spruance on the books of Universal Motor Company.

Moore thus denied any negligence on his part to comply with the provisions of Article XVI, Section 16, of the Constitution of Texas, Vernon’s Ann.St., and of Article 535, Rev.Civil Statutes of Texas, 1925.

The cause was tried to the court and judgment rendered for the defendant Moore. Hence the appeal.

The- fault that we find with the record is the lack of evidence to support the judgment. Moore’s testimony is as follows:

“Q. All right. Now, when you consummated the trade, what did you do with the bank stock? A. Mr. Wright made the trade, and I went down and delivered the stock to Thomas Spruance.
“Q. Tell the court here what conversation, if any, pursued between you and Mr. Spruance at that time. A. I went in the bank. It took two or .three days to make the trade. In other words, they were dickering backwards and forwards. Finally I traded with Mr. Wright, and I went down in the morning. I had a funeral that morning, and so I went down there and told Tom — he was the president of the Universal Motor Company — made the deal and everything with him, and I went'down and got the bank stock and gave it to him out of toy lock box, gave it to him. .He was the president of the bank, and so he took them right then and wrote on some little book and says, ‘I will tend to it right now.’
“Q. And you endorsed that certificate on the back at that time? A. I will declare I don’t remember whether I endorsed it or not.
“Q. Mr. Spruance assured you, however, at that time, he would attend to the details of it? A. Yes; I asked him about it, and he said he would fix it.”

We do not believe that this testimony is sufficient to meet the requirements as laid down by Chapman, Com’r v. Beeman, Tex.Civ.App., 265 S.W. 243, Chapman, Com’r, v. Sparks, Tex.Civ.App., 283 S.W. 338, and Carter v. Brand, Com’r, Tex.Civ.App., 106 S.W.2d 332, all of which are relied upon by appellee.

Moore did not testify that he endorsed his stock certificate, neither did he testify that he told Spruance, the president of the bank, to transfer the stock on the books of the bank.

Because of the insufficiency of the evidence, the case must be reversed and remanded.

We do not believe that the doctrine of notice is available in this case, where Spruance was president of both corporations — the bank and the Motor Company— and where it appears that he was buying the stock from the Motor Company, after it had traded Moore a motor vehicle, for the stock and other consideration. There was a conflict of interests, under such circumstances.

Teagarden v. R. B. Godley Lbr. Co., 105 Tex. 616, 154 S.W. 973.

The judgment is reversed and the cause remanded.


author: NORVELL, Justice.

text:
    CENTRAL SURETY & INSURANCE CORPORATION v. HANKINS.
    No. 10660.
    Court of Civil Appeals of Texas. San Antonio.
    May 8, 1940.
    John Q. Adams, of Harlingen, for appellant.
    Crane & Glarner, of Raymondville, for appellee.
   NORVELL, Justice.

This action was brought by Hankins, appellee, against Central Surety and Insurance Corporation, appellant, as surety upon a bond executed in compliance with the Texas Agricultural Protective Act of 1937, Art. 1287 — 1, Vernon’s Tex.Ann.Civ.St., which is applicable only to the Texas Citrus Fruit Zone defined by Acts 1931, 42nd Leg., p. 838, Ch. 350, Art. 1700a — 2, Vernon’s Tex. Annotated Penal Code.

Palm Valley Canning Company, the principal upon the bond, was not made a party defendant, it being alleged that said company was insolvent, and had been adjudicated a bankrupt.

The condition of the bond was that the principal would honestly comply with the provisions of the Agricultural Protective Act and comply with all contracts made “in connection with the handling of citrus fruits and/or vegetables under said Act.”

Appellee alleged that he had sold or delivered more than 300 tons of spinach to Palm Valley Canning Company; that there was a balance due him of $509.65, and that about 100 tons of this spinach, worth in excess of $509:65, was neither “dried, canned or preserved in any form, but was sold as gathered, except part of it was washed and iced.”

Appellant pleaded an estoppel by judgment, contending that the position of ap-pellee in this case conflicted with that advanced by appellee in a former judicial proceeding instituted against the Palm City Canning Company which resulted in a judgment in favor of appellee for $509.-65. In the former case appellee took the position that the spinach involved had been sold or delivered for canning purposes. See Dunn v. Hankins, Tex.Civ.App., 127 S.W.2d 983.

Section 3 of the Agricultural Protective Act (Sec. 3, Art. 1287 — 1, Vernon’s Tex.Ann.Civ.St.), provides that:

“This Act does not apply to or include: * * *
“(b) Any person or exchange buying farm products for the purpose of reselling the same in dried, canned, or other preserved form.”-

Trial was to the court, and judgment rendered in favor of appellee. The trial court’s findings of fact and conclusions of law contained the following finding: “That said spinach was not sold to be canned, dried or preserved in any form but. the same was sold and delivered to said canning company in its green natural state, and that the said Palm Valley Canning Company resold more than 100 tons of said spinach in. its natural raw state, neither dried, canned or preserved in any form.”

Appellant asserts that this finding is unsupported by the evidence. This contention must he sustained and this holding is fatal to the judgment. It is therefore not necessary to discuss appellant’s special plea of estoppel by judgment.

It is undisputed that a large part of the spinach sold or delivered to the Palm Valley Canning Company by appellee was actually canned or processed. Appellant’s evidence was that all of it was canned except the part which was unfit either for canning or sale in the natural state.

In determining the sufficiency of the evidence to support the finding, we must however view the testimony in the light most favorable to the appellee. J. M. Radford Grocery Co. v. Matthews, Tex.Civ.App., 78 S.W.2d 989; 3 Tex.Jur. 1063. Appellee’s evidence was to the effect that some spinach was hauled away from the canning plant without being processed; that some of it may have been junk” spinach, but probably part of it was fit for resale for human consumption in its natural state. This type of testimony was made the basis of a guess that about one-third of the 300 tons involved was hauled away from the plant. Appellee’s witnesses did not testify that any part of the spinach hauled away from the plant was actually sold “as gathered” except for washing and icing.

The trial court’s finding that more than 100 tons of said spinach was sold in its natural raw state is unsupported except by conjecture and surmise. This is insufficient, and it is therefore our duty to set aside the finding. Rieger v. Smith, Tex.Civ.App., 2 S.W.2d 883.

As appellee failed to prove that the transaction giving rise to his cause of action was one covered by the Agricultural Protective Act or the bond executed by the appellant, the judgment of the trial court will be reversed and judgment here rendered that appellee take nothing. Standard Paint Co. v. San Antonio Hardware Co., Tex.Civ.App., 136 S.W. 1150.

Reversed and rendered.


author: MOORE, Chief Justice.

text:
    QUINN v. PRESS et al.
    No. 7483.
    Supreme Court of Texas.
    May 22, 1940.
    Ray Bland and Kilgore & Rogers, all of' Wichita Falls, for Quinn.
    W. F. Davis, of Wichita Falls, pro se.
    T. R. Boone, E. T. Duff, and Kearby Peery, all of Wichita Falls, for defendants in error.
   MOORE, Chief Justice.

This suit was brought in the District Court of Wichita County by Mary Foley Press, joined pro forma by her husband, on October 14, 1935, against W. F. Davis and J. G. Quinn. The plaintiff alleged, in substance, that in June, 1930, at which time she ’ was unmarried, she loaned $5,000 to defendant Davis, secured by a deed of trust upon certain properties described in her petition, situated in Wichita County, and the amount of the loan being evidenced, by two notes of $2,000 and $3,000, respectively, dated June 2, 1930, and due, respectively, June 2, 1932, and June 2, 1935, and providing for payment of interest at stated dates. The parties will be referred to as they appeared in the trial court.

Plaintiff’s suit was one of fraud against both J. G. Quinn and W. F. Davis, but for reasons hereinafter shown no further notice need be taken of plaintiff’s suit against defendant Davis. With respect to defendant Quinn, plaintiff alleged that at the time she made the loan to Davis, she was defrauded; by reason of Quinn’s representations that the properties securing the loan were worth $20,000, when in truth such properties were valueless except as to one tract of land thereafter foreclosed on under the terms of the deed of trust by the plaintiff, and which was alleged to be of the value of $1,500. She alleged that altogether she realized $2,500 as a result of said loan by collections from the defendant Davis and by reason of such foreclosure, and she laid her damages in the amount of the unpaid portion of such loan, — namely, $2,500.

In the second or alternative count of plaintiff’s petition she alleged that defendant Quinn was acting for her as her agent in the matters concerning such loan, and that he negligently failed to exercise due diligence to ascertain the values of the properties mortgaged, whereby she was damaged and defendant became liable to her in the said sum of $2,500.

The defendant Quinn generally and specifically denied the allegations in plain- . tiff’s petition, and alleged that he assisted her with respect to the loan merely as a friend, and wholly without payment to himself. The defendant further pleaded that plaintiff’s suit was barred by the two years’ statute of limitation.

The case was submitted to the' jury upon special issues, and the answers of the jury to two of these issues are determinative of this case; and they will be discussed later on in this opinion. The .findings of the jury in response to other issues thought to be material were substantially as follows: That defendant Quinn did represent to plaintiff prior to the making of the loan that the collateral security to be placed on the loan was worth $20,000, and that such representations were untrue; that plaintiff in making said loan believed such representations and .relied thereon; that plaintiff suffered damage by reason of not .having collateral security to the value of $20,000 on said loan, and that the damage suffered by her was $2,500; that the values of certain of the properties securing said loan, free of all debts, at the time the loan was made,, were respectively as follows: (a) The W. F. Davis subdivision of a tract of land, $2,500; (b) Davis’ interest in the property known as the Bernard Martin Filling Station, $2,-500; (c) Davis’ interest in the property known as the Williams-Dwyer Filling Station, $5,000; and that the other properties given to secure the loan were, at the date of the loan, valueless. The jury further found that defendant Quinn agreed to look after the securities for plaintiff for the loan in question prior to the time the loan was made; that he failed to use ordinary diligence in making an investigation relative to the value of such -properties, and that had he used such diligence he could have ascertained their value prior to the time the loan was consummated.

Special issues 13 and 22, together with the answers of the jury thereto, are here copied in full.

“Special Issue No. 13.
“When, do you find from a preponderance of the evidence, did the plaintiff Mary Foley (now Mary Press), discover the value of the properties hypothicated to her to secure the loan?
“Answer as you find the facts to be?
“Answer: 1932.”
“Special Issue No. 22.
“From a preponderance of the evidence was the plaintiff, Mary Foley, possessed of such information, prior to the 14th day of October, 1933, as would have incited an inquiry in the mind of an ordinarily prudent person to ascertain the status of the securities and the value of the securities which she held as collateral to the W. F. Davis loan?
“Answer: Yes.”

Neither party objected to any issue submitted by the court to the jury, nor was any request made for the submission of additional issues. From the findings of the jury, and after motion for judgment by both plaintiff and defendants, the court denied plaintiff’s motion and rendered judgment for both defendants. An appeal. was perfected by the plaintiff from the judgment of the district court to the Court of Civil Appeals, Press v. Davis, 118 S.W.2d 982, and that court affirmed the judgment of the district court as to the defendant Davis, but reversed the judgment as to the defendant Quinn, and rendered judgment for plaintiff against said defendant in the sum of $2,500. The case has been brought to this court by the granting of defendant Quinn’s application for a writ of error.

If the plaintiff’s cause of action was barred by the two years’ statute of limitation, then it necessarily follows that the judgment of the trial court was the only judgment that could have been rendered.

It was the basic contention of plaintiff in the Court of Civil Appeals, and in this court, that notwithstanding plaintiff’s cause of action was one sounding in fraud, yet under the facts of the case limitation did not begin ’ to run against her until she had exhausted her remedy on the loan contract by the ultimate foreclosure of the deed of trust against the last remaining piece of property which secured the loan; and that inasmuch as such foreclosure did not take place until less than two years prior to the institution of the suit, plaintiff’s cause of action was not barred by the two years’ statute of limitation. That contention was sustained by the Court of Civil Appeals, and in so holding the court declined to follow previous decisions of this court in the cases of Houston Water-Works v. Kennedy, 70 Tex. 233, 8 S.W. 36, and American Indemnity Co. v. Ernst & Ernst, Tex.Civ.App., 106 S.W.2d 763, in which a writ of error was denied.

It is the settled law of this State that the two years’ statute of limitation, namely, Article 5526, Revised Civil Statutes of 1925, is applicable to an action for damages based upon fraud and deceit. In such a case the cause of action accrues at the time the fraud is perpetrated, unless it is concealed or is not known to the injured party, but in any case the statute of limitation begins to run from the time the fraud is discovered, or could have been discovered by the defrauded party by the exercise of reasonable diligence.

The rule is not changed, as held by the Court of Civil Appeals, because the alleged injured party may not with certainty know at the time the fraud is committed, or at the time' it is discovered, just how much, if any, in dollars and cents he has been damaged. To so hold would create an unauthorized exception to the statutes of limitation, and render the law uncertain in all cases of the nature of the present one. Here the plaintiff waited more than five years after the perpetration of the alleged fraud before bringing her suit, and this she alleged was necessary because she first must have foreclosed her deed of trust against the mortgaged property in order to determine with precision how much she was damaged by the fraudulent representations of the defendant. The fallacy of such a contention is at once apparent, for it will readily be seen that in any similar case of fraud, it could with as much legal propriety be claimed that a delay of seven, eight, or even ten years must be extended to the defrauded party before the statutes of limitation would be put in operation against his cause of action, with the probable consequence’ of bringing into the case many conditions and circumstances not directly attributable to the fraud. But however that may be, and to repeat the language of Judge Martin in Morriss-Buick Co. v. Pondrom, 131 Tex. 98, 113 S.W.2d 889, 890, “we are faced in this case, not with the necessity of announcing any new rule,’ but with the duty of following an old one.”

In the case of Houston Water-Works v. Kennedy, 70 Tex. 233, 8 S.W. 36, 37, the court, speaking through Chief Justice Stayton, said :

“When an act is in itself lawful as to the person who bases an action on injuries subsequently accruing from, and consequent 'upon, the act, it is held that the cause of action does not accrue until the injury is sustained. * * *
“If, however, the act of which the injury was the natural sequence was a legal injury, — by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff’s right,— then, be the damage however slight, limitation will run. from the time the wrongful act was committed, and will bar an action for any damages resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar.” (Italics ours.)

The law announced in the Kennedy case was followed by the Court of Civil Appeals in the case of American Indemnity Co. v. Ernst & Ernst, supra, which was a suit for damages based upon fraud and deceit, and in which the same arguments which have been assigned by the plaintiff in this case to except her cause of action from the statutes of limitation were expressly disallowed. Many authorities were cited by that court in support of its opinion, to which may be added the following: Moore v. Beakley, Tex.Com.App., 215 S.W. 957; Union Central Life Ins. Co. v. Schidler, 130 Ind. 214, 29 N.E. 1071, 15 L.R.A. 89; Briggs v. Brushaber, 43 Mich. 330, 5 N.W. 383, 38 Am.Rep. 187; 23 Am.Jur., p. 994, sec. 175; 17 R.C.L. p. 763, sec. 129; 37 C.J., p. 936, sec. 304.

In so far as this court is advised, the principles of law which were' specifically announced in the Kennedy case and the American Indemnity Co. case, supra, and which are here reannounced, are of general application. In 23 American jurisprudence, p. 994, it is said:

“The mere difficulty of estimation of injury, or that the right is personal, does not bar recovery. * * *
“One who is defrauded through false representations respecting the solvency of another is damnified as soon as he is induced to act in the manner occasioning the loss, and may maintain an action therefor at once. An action for •damages for fraudulently procuring a loan on inadequate security may be maintained as soon as the loan is made; and a cause of action for fraud is not postponed until after maturity of an instrument executed by the defrauder * *

A number of cases are cited -in the footnotes in support of the text and none •contra.

The Court of Civil Appeals alsoheld in this case that it was fundamental error' for the district court to fail to award plaintiff damages under the second count of her petition. That count, as heretofore stated, was based upon allegations that defendant Quinn was acting for plaintiff as her agent in the matters concerning the loan which she made to the defendant Davis, and that Quinn •negligently failed to exercise due diligence to ascertain the values of the mortgaged properties. A cause of action based upon negligence of the agent of a party accrues at the time of the wrongful act, .and consequently limitation commences to run at that time and not at the time of the ascertainment of damages, if any. .'Such a cause of action is subject to the two years’ statute of limitation. Powers v. Schubert, Tex.Civ.App., 220 S.W. 120; Gordon v. Rhodes & Daniel, 102 Tex. 300, 116 S.W. 40; Shaw v. Rogers & Rogers, 117 Wash. 161, 200 P. 1090; 17 R.C.L., p. 763, sec. 129.

No complaint is made in this court of the judgment of the Court of Civil Appeals in so far as it affirmed the judgment in the trial court as to the defendant W. F. Davis, and as to him the judgment of the Court of Civil Appeals is not disturbed. As respects the defendant J. G. Quinn, who was the appellee in the Court of Civil Appeals and is plaintiff in error in this Court, the judgment of the Court of Civil Appeals is reversed and the judgment of the district court affirmed.