author: GRAVES, Justice.

text:
    WALLER-McCUMBER, Inc., v. FIELDS.
    No. 10925.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 11, 1940.
    Rehearing Denied Feb. 29, 1940.

      Fitzpatrick & Wells, of Houston, and Touchstone, Wight, Gormley, Strasburger & Price and Allen Wight, all of Dallas, for appellant.
    Simpson, Dorenfield & Fullingim, of Amarillo, and Benbow & Saunders, of Dallas (Henry D. Akin, of Dallas, of counsel), for appellee.
   GRAVES, Justice.

The gist of this action, as well as .of the disposition thereof below; is thus in part stated in appellant’s brief:

“This is a suit by Waller-McCumber, Inc., as assignee of Texas Fire & Casualty Underwriters, a reciprocal insurance exchange, against R. B. Fields, to recover premiums on certain policies of insurance against the liability of the latter as employer, either under Workmen’s Compensation Act or otherwise, and against liability for personal injuries and property damage to third persons. The trial court allowed the plaintiff a recovery of the premiums on certain of the policies, but denied it a recovery of the premiums on others, and also denied it a recovery of its claimed premiums computed on the unreported pay-rolls on the policies on which it was otherwise allowed a recovery. * * *
“The policies involved * * * were four in number:
“(1) May 27, 1937, Workmen’s Compensation and employer’s liability on Louisiana operations, Policy No. WC-202317;
“(2) May 27, 1937, Public liability and property damage on Louisiana operations, Policy No. P.M.C.-82737;
“(3) April 17, 1938, Workmen’s Compensation and employers’ liability on Louisiana operations;
“(4) April 27, 1938, Public liability and property damage on Louisiana operations; and a similar group of policies dated April 27, 1938. * * *
“In addition to the reported pay-rolls on ' the Texas business, there were alleged to be unreported pay-rolls amounting to $4000.00, on which the claimed premiums sued for aggregated $530.00. * * *
“The earned premium on the reported pay rolls amounted to $6560.47.
■ “The defendant denied liability for the unpaid premiums on, the Texas policies, and was sustained in his position by the trial court, with judgment accordingly.”

The material substance of the challenged judgment — rendered by the court without a jury’s aid — inclusive of a concluding specification of the extent to which notice of appeal therefrom was given, is this:

“* * * the court finds that the plaintiff herein sues to recover of and from the defendant herein premiums upon the various policies of insurance * * *, which .gaid policies of . insurance the court finds covers the defendant’s operations in Texas as to certain of said policies and covers defendant’s operations in Louisiana as to certain of said Policies, which are identified in the evidence heard, * * the court finds and decrees that by virtue of the issuance of the policies •* * covering the defendant’s Texas operations, that the defendant stands legally indebted to the plaintiff at this time, subject to deductions hereinafter mentioned, for premiums on the Texas policies amounting to the total sum of $6560.47; but from the pleadings of the parties and the evidence heard, the'court finds that heretofore and prior to the filing of this suit the defendant has duly paid to the plaintiff to be credited on the premiums due under the Texas- Policies * * * '$2018.88, so that the court finds that, subject to the credits hereinafter mentioned, the defendant at this time stands justly indebted to the plaintiff for premiums due on the Texas policies, that is, the policies covering the Texas operations, in the sum of $4541.59; but the court further finds * * * and decrees that prior to the filing of this suit the defendant turned over to -the plaintiff the note of Frank Bennett, or the Bennett Petroleum Company, * * * said note amounting' to the principal sum of $1987.-50, plus interest accrued thereon in the sum of $89.37, making a total principal and interest due on said note of $2076.87; and * * * the court further finds and decrees that the plaintiff accepted said note from the defendant not as collateral security for plaintiff’s debt but as absolute payment on defendant’s account to plaintiff, so that the court finds that the total remaining debt owed by defendant to plaintiff because of premiums due on the policy covering the defendant’s Texas operations of $4541.59 is further subject to a credit of $2076.87, leaving a net balance of debt owed by defendant to plaintiff because of premiums due under the policies issued to defendant covering his Texas operations by Texas Fire and Casualty Underwriters of $2464.72.
“* * * the court further finds and decrees that the plaintiff alleges and shows * * * that the defendant became indebted to plaintiff because of premiums accruing and becoming due under the policies * * * issued by Texas Fire and Casualty Underwriters to defendant and covering his operations in the State of Louisiana in the sum of $2527.44. * * * The court further finds, adjudges, and decrees, that prior to the filing of this suit the defendant, R. B. Fields, paid in cash to the plaintiff, which the plaintiff credited on the premiums due under the Louisiana policies, the sum of $1059.14, so that * * * the plaintiff now sues the defendant for the remaining unpaid portion of the premiums alleged to be due on the policies in question covering defendant’s Louisiana operations in the sum of $1468.30; but * * * it is ordered, adjudged and decreed by the court that the plaintiff take nothing as to the defendant as to the $1468.30 premiums sued for herein as being the remaining sum due on premiums accruing under the policies covering defendant’s operations * * *.
“The court further finds, adjudges and decrees that the defendant * * * is entitled to recover of and from the plaintiff the sum of $1059.14, heretofore paid in cash by defendant to plaintiff and credited by plaintiff on the total premiums of $2527.44 claimed to have accrued as premiums on the policies covering the defendant’s Louisiana operations, and he is entitled to have said sum of $1059.14 so paid by defendant in cash to plaintiff and credited on the Louisiana premiums, credited in turn on the balance of defendant’s debt due as premiums on the policies covering defendant’s Texas operations, said balance of said Texas debt being $2464.72, * * * leaving the defendant justly and legally indebted to the plaintiff as premiums on the policies covering defendant’s Texas operations in the sum of $1405.58.- * * *
“The court further finds, * * * that the plaintiff sues the defendant herein to recover premiums alleged to be due on the Texas policy * * * on a pay-roll of defendant accruing between the 19th of July, 1938, and prior to August 22, 1938, of about $4000.00, but the court finds that the defendant is not indebted to the plaintiff on said pay-roll for any such premiums * * *.
“To all that- portion of this judgment herein denying .plaintiff recovery for the $1468.30 remaining on the total Louisiana premiums of $2527.44 sued for herein, and to all that portion of the judgment herein allowing defendant to credit on his debt to plaintiff for premiums on the policies covering defendant’s Texas operations the sum of $1059.14 paid by defendant to plaintiff and credited by plaintiff on the premiums due on the policies covering defendant’s Louisiana operations, the plaintiff excepts and objects, and gives notice of appeal.”

Otherwise than as appears in the quoted judgment, no findings of fact nor conclusions of law were either requested or filed.

Appellant inveighs against this adverse determination below, mainly through four propositions of law, in general substance as follows:

(1) In the refusal to include in its recovery the amounts of unpaid premiums on the workmen’s compensation policies, covering the appellee’s operations in the State of Louisiana;

(2) In its having credited on the account of the appellee the amounts paid by him on the policies covering his Louisiana operations;

(3) In that there was not included in the recoveries awarded it the amounts of unpaid premiums on policies of public-liability and property-damage, covering the appellee’s operations in the State of Louisiana ;

(4) In its failure to include in recoveries allowed it the amounts of unpaid premiums on certain alleged unreported pay-rolls covering the appellee’s operations in the State of Texas.

After careful consideration of the extended record, aided by able briefs and oral arguments of both sides, this court has concluded that none of appellant’s contentions should be sustained, but that the trial court’s quoted judgment reflects the justice of the cause, as shown by the record brought here.

In the first place, there is no impeachment of the final recitation in the decree so fixing the limited reaches of this appeal; as is plainly apparent therefrom, there is no exception to nor notice of appeal from that portion of the judgment denying the appellant any recovery upon the alleged unreported pay-rolls on Texas business; such notice of appeal was an indispensable prerequisite to the bringing of that feature of the cause under review here, pursuant to R.S. Art. 2253, Vernon’s Ann. Civ. St. art. 2253, in its absence, this court has no jurisdiction to consider appellant’s assignments attacking the trial court’s action in denying its claim with reference to such alleged unreported payrolls; R.S. Art. 2253; Universal Credit Co. v. Vance, Tex.Civ.App., 117 S.W.2d 508; Veatch v. Gilmer, Tex.Civ.App., 111 S.W. 746; Gilmer’s Estate v. Veatch, 102 Tex. 384, 117 S.W. 430.

In the second place, if that claim were here for review, it could not be sustained anyway; this for the reason that the judgment allowed appellant the full $6,560.47 so claimed by it for “earned premiums on the reported pay-rolls on the Texas operations, subject, however, to the deductions hereinafter mentioned”, as the decree, in purport recites.

Moreover, there was further neither pleading nor proof of any specific amounts under this claim, and from stipulations of the agreed facts it becomes clear that appellant waived it, hence became estopped to thereafter set it up; this appears from pages 6 to'9, inclusive, of the statement of facts, wherein the appellant’s duly-authorized agent, Cooper, in express terms agreed with appellee’s bookkeeper, Myers, to the effect that no pay-rolls of the ap-pellee would or should be reported to the appellant, or to its predecessor in interest, for the period from July 19 of 1938 to August 22 of 1938; wherefore, in no event, was the appellant entitled to recover for any premiums claimed on such pay-rolls after July 19 of 1938.

In support of its first three propositions, appellant relies upon a postulate of fact not supported either by the trial court’s findings or’ the evidence, to-wit, that the policies of workmen’s compensation and employers’ liability insurance it sued upon were “executed and delivered in Texas by a Texas company to a Texas citizen, which policies, however, might, for convenient and satisfactory performance, involve acts in the State of Louisiana, where the insurer had no license to write insurance”. -There is no finding nor evidence supporting this assumption that the insurance was written in Texas by a Texas company, nor any showing,.as to the place where the contracts were actually made, issued, or delivered; on the contrary, all that appears is that at the time of this trial below the appellee was a citizen of Texás, his address at the date the policies bore, as well as thereafter on June 1 of 1937, being given as Oklahoma City, Oklahoma; further, that the policies were procured both from a company organized under the laws of Texas and through an agent doing business there, neither of whom had any permit to write insurance in the State of Louisiana; furthermore, as will more fully hereinafter appear, both under the stipulation of agreed facts and the terms of the policies themselves, the trial court would have been justified in so doing, if not required, to conclude that the .contracts not only were referable to but actually called for the construction thereof under the laws of Louisiana.

It is true, however, that the policies were issued on the official Texas forms for workmen’s compensation insurance, one covering appellee’s operations and employees in Texas, and one at least purporting to cover his operations and .employees in Louisiana; but—in consonance with the compensation system in vogue in Texas—although carrying such Louisiana coverage as stated, they undertook to release the liability of the appellee as an employer to an injured Louisiana employee upon a Louisiana job, which provision ran directly contrary to the Louisiana laws, under which .no such liability could be released.

The theory, therefore, of the learned ⅛⅛1 court’s judgment, presumably at least, was that the sued-for premiums on the policies so covering the appellee’s operations and employees — having been procured from an agent and insurance company without either license or permit to assume such risks in Louisiana, and which were performable there — were not only violative of, but affirmatively null and void under, the laws of the State of Louisiana; and that, perforce of such invalidity of the contracts as sought to be so applied, the appellant should be denied its coveted recovery upon the unpaid premiums thereon; consequently, that the ap-pellee, in turn, who had not known of such invalidity at the time he took out the policies, should be credited on his valid obligations to the appellant upon the Texas policies with the premiums he had paid the appellant on such illegal Louisiana engagements up to the time of his so discovering.

This court is unable to find fault with the judgment so grounded; on the contrary, it is held to have been -the only one that could properly have been rendered upon what must here be assumed to have been the facts underlying it; these authorities are thought to fully sustain this conclusion: American Nat’l. Ins. Co. v. Smith, Tex.Civ.App., 13 S.W.2d 720, writ of error refused; 14 R.C.L. 866, Section 37; National Life & Accident Ins. Co. v. Smith, Tex.Civ.App., 20 S.W.2d 142, writ of error refused; Hartford Fire Ins. Co. v. Galveston H. & S. A. Ry. Co., Tex. Com.App., 239 S.W. 919; Johnson v. Employers Liability Assur. Corp., Tex.Civ. App., 99 S.W.2d 979, writ of error refused; Federal Underwriters Exchange v. Doyle, Tex.Civ.App., 110 S.W.2d 618, also Tex.Civ.App., 111 S.W.2d 742; Texas Employers’ Ins. Ass’n v. James, 131 Tex. 605, 118 S.W.2d 293.

In other words, since there is clearly sufficient evidence in the record to have sustained them, with none necessarily running to the contrary, and especially if that be deemed necessary in support of its judgment, the trial court, in addition to those recited in its quoted decree, will be deemed to have made these pertinent findings: (1) That these policies not only related exclusively to appellee’s operations and employees in the State of Louisiana, but contemplated both performance and construction there; (2) that the law of Louisiana denounced as illegal and void the provisions purporting to relieve the appellee of any liability as an employer to his employees in Louisiana, as might have lawfully been done in Texas; (3) that, as a result of such proscription by the laws of Louisiana, all legal consideration for the appellee’s promise to pay the premiums under such Louisiana policies had entirely failed; (4) that the appellant, standing merely in the shoes of a foreign corporation operating in Louisiana without a permit to do such business there,'and having no better right than it would have had, and claiming under agreements directly contravening the laws of that state, was without any enforceable right against the appellee.

At the time of the taking out of these policies, by the undisputed evidence, the appellee did not know that appellant’s assignor had not so complied with the Louisiana laws as to be competent to write valid workmen’s compensation insurance risks located in that state, and, as soon as he discovered the vice in these contracts, he repudiated and required the cancellation thereof.

It follows from what has been said that this case on its facts makes a different one for adjudication than those relied upon by the appellant — most if not all of which rest at last upon the well-settled doctrine that the law of the forum controls; but, as sought to be applied here, that rule is inapplicable in the absence of any showing that these contracts were made in Texas between Texas citizens, as assumed by appellant, and were not at least made in contemplation of, and for • actual enforcement in, the State of Louisiana, as indicated supra; hence, the vital element for such an application of the law of the forum to this cause is taken away, making inapplicable any of appellant’s able arguments that proceed from that theory; this situation distinguishes the cause at bar from any of .those cited by appellant, such as Allgeyer v. State, 165 U.S. 578, 580, 17 S.Ct. 427, 41 L.Ed. 832.

Without further discussion, it follows from these conclusions that an affirmance should be had; it will be so ordered.

Affirmed.


source: Caselaw Access Project

author: WALTHALL, Justice.

license: Public Domain

text:
    GREEN v. FRANKLIN DRESS CO., Inc.
    No. 3897.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 8, 1940.
    Rebearing Denied Feb. 29, 1940.
    Wilchar & Wilchar, of El Paso, for appellant.
    Marvin E. Whittington, Loomis & Kirkland, and Del W. Harrington, all of El Paso, for appellee.
   WALTHALL, Justice.

The parties will be designated, respectively, as plaintiff and defendant, as in the trial court.

On October 5, 1938, plaintiff, Franklin Dress Company, a corporation of Chicago, Illinois, filed this suit on a verified account for goods, wares and merchandise consisting of ladies ready-to-wear garments ordered by Davis Green, defendant, sometime in June, 1938. The amount alleged to be due and unpaid was the sum of $642.86. The defendant denied owing the plaintiff anything and filed a sworn denial to said account, and in addition thereto filed a cross-action against the plaintiff in which he alleged in substance that he was engaged in the mercantile business and handled exclusive models of women’s suits, and as such had built up a reputation for handling exclusive models; that defendant ordered the goods from plaintiff and that a part of the contract was that the models so ordered were to be -exclusive; that defendant discovered that the plaintiff had violated this agreement, in that plaintiff had furnished like models to other merchants in the City of El Paso that defendant had purchased exclusively, thereby violating the contract. The defendant sent the plaintiff a check in full for the merchandise that he had used up to the time of the discovery of the breach and returned the remainder. He alleged that his reputa-tio'n as a handler of women’s exclusive models of merchandise had been damaged and alleged his damages in the sum of $900. Plaintiff answered this cross-action by special exceptions, general exception and general denial.

The case was tried to the court without the intervention of a jury and judgment was rendered on the 3rd day of March, 1939, in favor of the plaintiff for the full amount sued for, $642.86, to which judgment the defendant in open court excepted and gave notice of and perfected this appeal.

Plaintiff shipped the identical goods to defendant as ordered, part of which defendant received and accepted and refused to accept the balance. Defendant’s refusal to accept the balance of the goods was based on his contention that plaintiff had violated or breached the contract and had sold to merchants in El Paso like models of the goods exclusively sold to him. Defendant made no complaint as to the quality of the goods, the models, styles, sizes Or character of the goods received or shipped to him. He pleaded by cross-action his damages to his reputation as a merchant handling exclusive models in El. Paso by reason of other merchants having for sale the same models of women’s ready-to-wear merchandise.

Plaintiff did not cash the check sent by defendant for the goods received and accepted ; and sued defendant for the full contract price of the goods shipped to him.

Defendant submits that on receipt of notice of his refusal to accept further shipment of goods, it was plaintiff’s duty to mitigate the damages, if any, plaintiff might suffer, and that in the absence of such proof no judgment should have been rendered for .plaintiff.

At the time defendant gave notice of his repudiation of the contract, the contract was not wholly performed. All that was required to be done at that time was the delivery of some of the goods called for by the contract. Under such circumstances, plaintiff had two remedies: he could have accepted the repudiation and sued for damages on the breach; ór he could elect to consider the contract still in force, sue on the contract and hold defendant responsible for his non-performance. This plaintiff did.

We think the case of Texas Seed & Floral Co. v. Chicago Set & Seed Co., Tex.Civ.App., 187 S.W. 747, writ of error refused, and the cases referred to, directly in point. In that case it is held that one party to the contract cannot by himself rescind a contract. The renunciation itself does not amount to 'a rescission. Greenwall v. Markowitz, 97 Tex. 479, 79 S.W. 1069, 65 L.R.A. 302; Kilgore v. Northwest Texas B. Soc., 90 Tex. 139, 37 S.W. 598.

Based on the theory that the contract was ended by defendant’s notice to plaintiff and that plaintiff’s suit was on a breach of the contract, and also on the assumption that plaintiff had breached the contract, defendant submits propositions which we think aré not pertinent to the case made by the pleadings and on facts contrary to those necessarily found by the trial court and upon which the judgment was rendered. Plaintiff’s suit was upon the contract and not upon a breach of it It is true that if plaintiff had not performed its part of the contract, it had no cause of action; but the court did not so find, but found to the contrary. The question would then seem to be whether the judgment has support in the evidence.

The evidence on the one specific issue of fact seems to be whether or not one of the model dress numbers, 1039, included in the contract with defendant, was in the Myron Shop, El Paso, Texas, on or about July 15, 1938, or shortly thereafter, the Myron Shop then being under the management and control of Alfred A. Ratner for the Frank Rubenstein Corporation, as testified to by the witness Mrs. Green.

If we have sufficiently or correctly stated the fact at issue, the evidence, which we have read and carefully considered, is sufficient to justify and sustain the trial court’s judgment in favor of the plaintiff. The costume suits go by numbers. The costume suit style as indicated by number 1039 was ordered by Franklin’s on October 7,1938, after defendant had cancelled his contract in July, 1938.

We think under the evidence the court was not in error in admitting in evidence the invoices three, four, five, six and seven of the goods ordered by the defendant and attached to the petition. The evidence shows that the numbers on the invoices were the goods sold to defendant.

We have found no reversible error, and the case is affirmed.


author: BAUGH, Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. SIMPSON.
    No. 8860.
    Court of Civil Appeals of Texas. Austin.
    Feb. 21, 1940.

      Benbow, Saunders & Holliday and Charles Crenshaw, all of Dallas, for plaintiff in error.
    Frank C. Dickey, Ballinger, and M. E. Sedberry, of San Angelo, for defendant in error.
   BAUGH, Justice.

This is a workmen’s compensation case. Federal. Underwriters Exchange was the insurer; H. B. Zachry & Company, the employer, and James M. Simpson, Jr., the employee. Simpson was injured in Con-cho County, on May 8th, 1936, for which injury he was awarded compensation by the Industrial Accident Board. Federal Underwriters sued in Concho County to set aside the award. Simpson filed his cross-action, whereupon the insurer took a non-suit, the case was transferred to the District Court of Runnels County by agreement, tried to a jury on special issues, Simpson found to be totally and permanently disabled, and compensation awarded him for 401 weeks; hence this appeal.

The injuries suffered were alleged as follows: “* * * that while cross-complainant was in the discharge of his duties as such truck checker for said employer on or about May 8, 1936, and in the course of his employment in his master’s said business, another employee of said employer was swinging a sledge hammer in the discharge of his duties as such employee, and accidentally swung such hammer against cross-complainant’s left arm and body and broke said arm about half way between the elbow and the shoulder joint, and bruised, injured, and dislocated the bones, muscles, and nerves in said cross-complainant’s left arm and left shoulder and left shoulder joint and said injuries to said arm and shoulder and to the bones, muscles, and nerves therein were such as to deprive the cross-complainant of the use of said arm and shoulder for work of any kind and as a result of said injuries said arm and said shoulder became and are now diseased and damaged and will continue to be diseased and damaged as a result of said injuries, to such an extent as that cross-complainant has suffered ever since, is now suffering and will continue permanently to suffer total disability or total incapacity .to labor on account of said injuries * * *»

In answer to special issues submitted to them the jury found:

1. That Simpson’s left arm was broken between the’ shoulder and elbow;

2. That he suffered injuries to the muscles and nerves of his left arm;

3. That he suffered injuries to his left shoulder and shoulder joint;

4. That the injuries found resulted in his total permanent incapacity, as that term was defined in the charge.

Insurer’s first contention is that neither the pleadings nor the proof are sufficient to authorize recovery for total permanent disability, for the reason that at most no more than a total loss of his left arm was pleaded or proven; and that consequently its maximum liability is limited by Sec. 12, Art. 8306, R.C.S., to 60% of his average weekly wage for 200 weeks.

The rule was laid down in Petroleum Co. v. Seale, Tex.Com.App., 13 S.W. 2d 364, 365, approved by the Supreme Court, that where injury results to a particular member of the body, compensation for loss of which is specifically provided by the statute, liability of the insurer is limited to that amount, even though the loss of, or injury to, that particular member actually results in total permanent incapacity of the employee to labor. This holding has been frequently followed and applied. See Texas Employers Ins. Ass’n v. Galloway, Tex.Civ.App., 40 S.W.2d 973; Texas Employers Ins. Ass’n v. Neatherlin, Tex.Com.App., 48 S.W.2d 967; Consolidated Underwriters v. Wilson, Tex.Civ.App., 111 S.W.2d 865; Traders & General Ins. Co. v. Marrable, Tex.Civ.App., 126 S.W. 2d 746 ; 45 Tex.Jur., § 175, p. 607. This rule, however, does not preclude an employee from recovery under the more liberal provisions of the Workmen’s Compensation Law, if he allege and prove that the injury to the particular member additionally extended to and affected other portions of his body, or impaired his general health to such an extent as to totally and permanently incapacitate. .him. See Seale and Neatherlin cases, supra; 45 Tex.Jur., § 178, p. 612; and numerous cases there cited.

While Simpson alleged injuries not only to his left arm, but also to his left shoulder and left shoulder joint, and. the jury found that such injuries were suffered; a careful reading of the testimony shows, in the last analysis, no more than the loss of the use of his left arm. The break in the bone was not properly adjusted, there was limited use of the elbow and hand, and limited pivoting of the arm at the shoulder joint; but there was not a loss of the arm, nor total loss of the use of it. The impairment of its use was placed by the insurer’s physician at 20%, and by the employee’s physician, both of whom testified, at not exceeding 60%. The evidence was sufficient to show that he was, and would continue to be, unable to use that arm to perform any physical labor with it. But it was not contended, and we do not interpret Simpson’s own testimony to be, that any other portion of his body or his general health was impaired; nor that he still could not do anything that he could have done had he lost his arm above the elbow. The injury did not impair the use of his right arm, nor his general health. He testified that he could ride a horse or drive a car; that he represented his district in the Legislature; that he had engaged in the real estate and insurance business; and his physician testified that the injury would not prevent him from performing any clerical work not requiring the use of his left arm. Under these facts and circumstances, his recovery should have been limited under Sec. 12, Art. 8306, to the loss of the use of his arm. 45 Tex. Jur., § 174, p. 606, and cases cited.

Plaintiff in error next contends that the court erred in submitting ■ issue 15a inquiring whether or. not the injuries received by Simpson were confined solely to his left arm; and in not submitting its requested issue inquiring whether or not his “incapacity”, if any, resulting from such injuries, was confined to his left arm. There was no error in this. Injury and incapacity are not, of course, synonymous. In the issue complained of the extent of the injuries only, raised by the pleadings and the evidence and controverted by the insurer, was the subject of the inquiry. The extent of the incapacity resulting therefrom was submitted to the jury in other and separate issues, wherein they were asked whether such injuries, already determined by proper inquiries, resulted in Simpson’s incapacity, and whether such incapacity resulting therefrom was total or partial, permanent or temporary. This contention is therefore overruled.

Plaintiff in error next contends that the trial court’s definition of the term “total incapacity”, in view of the particular facts of this case, was inadequate.' The definition given was identical with that set out in 45 Tex.Jur. § 159, p. 585, and has had repeated approval by the courts. (See footnotes under section cited.) A similar contention was made and overruled by the Supreme Court in Texas Employers’ Ins. Ass’n v. Brock, 36 S.W.2d 704. Manifestly the language of the charge, “disqualified from performing the usual tasks of a workman in such way as to enable him to procure and retain employment,” is not subject to the complaint that the jury would be led to believe that it related only to the character of employment in which Simpson was engaged at the time of his injury. Western Indemnity Co. v. Corder, Tex.Civ.App., 249 S.W. 316. It was comprehensive enough to include any employment which -the employee, after his injury, was qualified to perform.

The next contention urged is that as submitted special issues 1, 2- and 3 were duplicitous and multifarious, in that1 there was included in one issue the question not •only whether Simpson received the particular injuries inquired about; but whether he received same “on or about May 8th, 1936, in the course of his employment as an employee of H. B. Zachry & Company?”

If there had been a conflict of evidence upon, or a controversy over, the separate fact issues included in the questions propounded to the jury, -this contention would undoubtedly be good. That is, if it had been controverted that Simpson was employed by Zachry & Company; whether he received any injury; and if so, whether it was received in the course of his employment; then these issues should have been submitted separately. If error, it was manifestly harmless in the instant case for the reason that there was no dispute as to the actual facts. The whole case was tried upon the issues of the extent of Simpson’s’injuries; and the extent of his incapacity resulting therefrom. While the only testimony as to Simpson’s employment was by Simpson himself, there was nothing to cast any suspicion upon its verity; the insurer made no attempt to refute it, though it could readily have done so 'had it not been true; and the case was tried throughout on the assumption, if not. upon the definite admission by plaintiff in error, that Simpson was such employee and that his injuries were received in the course of his employment. Since the case must be reversed, it is not amiss to here observe that the volume of the record could be greatly reduced, the time of the courts conserved, and the costs to the litigants materially lessened, by a pretrial agreement between the parties on uncontroverted facts, and the next trial hereof confined to the only material issues involved,—that is, the extent of the employee’s injuries, and the degree and extent of resulting incapacity.

We think it was error to permit Simpson to testify, over objection, that from the best of his knowledge and experience, he did not believe he would ever be able to use his arm; and that it was doubtful whether a successful operation could be performed upon it. This clearly invaded the field of expert testimony in which the injured employee was not shown to have been qualified to give an opinion. This exact character of testimony was condemned in Stowell v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 259 S.W. 311; and Texas Employers Ins. Ass’n v. Brock, Tex.Com.App., 36 S.W.2d 704, 706. See, also, 19 Tex.Jur., § 232, p. 361. Nor can we say that such testimony was harmless in the instant case, especially in view of the fact that neither of the two physicians who were qualified to testify on this issue rated Simpson’s disability as total and permanent. Such testimony is clearly distinguishable from that involved in General Life Ins. Co. v. Potter, Tex.Civ.App., 124 S.W.2d 409, relied upon by defendant in error.

Plaintiff in error’s next contention relating to recovery by Simpson from the insurer of medical fees is without merit. This contention is that the employee failed to plead and prove that he had given notice to the insurer of the need of such service, and that it had failed, neglected or refused to furnish same. The statute, Sec. 7, Art. 8306, Vernon’s Ann.Civ.St. art. 8306, § 7, does require such notice to be given the insurer, that it may have opportunity to furnish such services; but it likewise makes the insurer liable for first aid treatment after injury procured by the employee. Manifestly, setting by a physician of a badly broken arm comes within this category and the reasonable expense incurred by the employee for that purpose was all that the judgment allowed. See Aetna Life Ins. Co. v. Harris, Tex.Civ.App., 83 S.W.2d 1087; Maryland Cas. Co. v. Moore, Tex.Civ.App., 74 S.W.2d 769; Id., 129 Tex. 174, 102 S.W.2d 1118.

While the case must be reversed for the reasons stated, we have concluded that good cause exists for not taxing all the costs of the appeal against appellee. See 11 Tex.Jur. § 77, p. 363. The issues involved in this suit were few and simple, yet the transcript herein consists of 186 typewritten pages, approximately 40 pages of which are single spaced. The Insurance Company’s objections and exceptions to the court’s charge comprise 58 typewritten pages. The first 2<$ of these objections are identical, consisting of 8 subdivisions each, in stereotyped form, directed separately to each of the issues submitted to the jury, many of which have no application thereto. They are identical with those condemned by us in an appeal by this same insurer from a judgment in favor of Walker against it, reported in Federal Underwriters Exchange v. Walker, Tex.Civ.App., 134 S.W.2d 388, wherein they are copied and here referred to. In brief, when considered separately they constituted 208 objections to the court’s charge. In addition to these there were lodged against such charge 38 other objections and exceptions, many of them containing several subdivisions setting up separate objections. These 38, when the subdivisions are considered separately, contain 109 objections, or a total aggregate of 317 objections and exceptions to the court’s charge in a case where, as above stated, the issues were few and simple, the only real controversy involved being the extent of Simpson’s injuries, and the degree and length of his incapacity resulting therefrom.

In its motion for rehearing these objections and exceptions were reiterated, and 57 additional grounds of error asserted as arising out of the trial, or from the judgment rendered. In brief, 374 grounds of error were set up in said motion. These are all brought into the transcript and constitute the major portion of it.

This method of procedure, and the useless and inexcusable enlargement of the record as a result, constitutes such a flagrant and palpable abuse of judicial process and imposition upon the trial court; and manifests such a design to thwart, rather than promote, orderly procedure; and to impede the prompt, simple and economic administration of justice, that we are unwilling to let it pass without a judicial condemnation. By virtue of such unwarranted, inapplicable, and previously designed method of procedure adopted by plaintiff in error, the record herein has been uselessly lengthened; and the cost thereof unnecessarily increased. Under these facts and circumstances, notwithstanding a reversal herein, there is no just ground for visiting upon appellee herein the additional costs incurred because of such method of procedure resorted to in the trial court by the plaintiff in error. In our opinion, and we so expressly find, it constitutes “good cause” for taxing at least one-half of the cost of making up the transcript against the plaintiff in error.

For the reasons stated, the judgment of the trial court is reversed and the cause remanded for another trial. $61.75 of the costs, being one-half of the cost of making the transcript, are ordered taxed against the plaintiff in error; the remaining costs to be taxed against the defendant in error.

Reversed and remanded.


author: SMITH, Chief Justice.

text:
    URBAN v. FIELD et al.
    No. 10637.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 4, 1939.
    On the Merits Jan. 17, 1940.
    Rehearing Granted Feb. 14,1940.
    Motion for Rehearing Overruled March 6, 1940.

      E. L. Dunlap, of Victoria, for appellant.
    Ralph W. Wofford and W. L. Edwards, both of Victoria, for appellees.
   SMITH, Chief Justice.

This is an attempted appeal from a judgment rendered in a county court in a case originating in a justice of the peace court.

The record in this Court does not include a transcript of the record made, or any of the proceedings had, or papers filed in the justice of the peace court. Specifically, it does not include the pleadings filed, the judgment rendered, or any order made in the justice of the peace court, or notice of appeal, or appeal bond, if any, filed therein. In short, the transcript of the record filed in this Court does not disclose any fact that could give the county court jurisdiction of the cause (3 Tex.Jur. p. 398, § 284), and so long as the county court is not shown to have acquired jurisdiction, this Court can acquire none.

The appeal will be dismissed, unless appellant, on or before December 15, 1939, tenders a record showing evidence of jurisdiction, together with motion for leave to file same herein, as a part of the record. 3 Tex.Jur. p. 757, § 541.

On the Merits.

Appellant having supplemented the transcript by showing jurisdiction in the County Court, the appeal will be-considered on the merits.

The suit originated in a justice of the peace court upon the petition of Mrs. Lula Field, alleged to be “joined herein formally by her husband, R. M. Field.” It was alleged that Mrs. Field was a resident of Victoria County and her husband a resident of Nue-ces County; that she was the owner of a certain automobile, which she used in her taxicab business in the City of Victoria; that defendant, Urban, owned and operated a truck, and that through his negligence said truck collided with Mrs. Field’s said car, damaging it. Mrs. Field prayed for judgment against Urban for damages to the car and for loss of time to her taxicab business, and judgment was rendered in favor of Mrs. Field and her husband, jointly. Urban has appealed. The parties will be referred to as plaintiffs and defendant, respectively, as in the trial court.

. It appeared from plaintiff’s petition that she was a married woman with a living husband, but there were no allegations in the petition that herRusband, who was joined, pro forma, as plaintiff, had abandoned her, or had refused to join her as a real party plaintiff. She alleged that the damaged automobile was her property, and that the damages complained of were sustained by her and the business she was operating. Th'e rejcord discloses, affirmatively, that plaintiff’s written petition yms not supplemented by oral pleadings, and therefore the rights and remedies of plaintiff must be tested solely by allegations in the written pleadings, without aid from the usual presumption, available in cases originating in justice of the peace courts, that written pleadings have been supplemented by oral pleadings sufficient to support the judgments rendered in such cases.

Defendant urged the general demurrer'to plaintiff’s written petition, but the trial judge overruled the demurrer, and this appeal turns upon'the propriety of that ruling. We are of the opinion that, under well' established rules in this State, the trial court erred in overruling defendant’s general demurrer.

It must be presumed from the facts alleged by plaintiff that the damages sought to be recovered constituted community property of the Fields. Lamar & Smith v. Stroud, Tex.Civ.App., 5 S.W.2d 824; Logan v. Logan, Tex.Civ.App., 112 S.W.2d 515.

The wife may not sue in her own name to recover community assets, without joinder by her husband, or without-affirmatively alleging that she has been abandoned by him, or that he refused to join in the suit. Bettis v. Bettis, Tex.Civ.App., 83 S.W.2d 1076, 1078; Western Union Tel. Co. v. Owings, Tex.Civ.App., 38 S.W.2d 831; Atkins v. Dodds, Tex.Civ.App., 121 S.W.2d 1010, 1015; Houston Gas & Fuel Co. v. Spradlin, Tex.Civ.App., 55 S.W.2d 1086; Rhodes v. Taliaferro, Tex.Civ.App., 119 S.W.2d 703, and authorities there cited.

It is not sufficient if the husband is joined pro forma, as a party plaintiff, for in such case he is merely a nominal, and not a real, party, to be directly or personally bound by the judgment. Houston, etc., Co. v. Spradlin, supra, and authorities; Atkins v. Dodds, Tex.Civ.App., 121 S.W.2d 1010, 1015.

The fact that the judgment for damages was rendered jointly in favor of husband and wife does not cure the defects in the pleading, .for such judgment was .without force, since the husband was not a real party to the suit, and need not be bound by the judgment, or enforce it to his benefit. Middlebrook v. Zapp, 73 Tex. 29, 10 S.W. 732; Milliken v. Smoot, 64 Tex. 171; Houston etc. Co. v. Spradlin, supra.

Where, as in this case, then, the wife sues for injury to community property, joining her husband pro forma and riot as a real party, without allegations showing that he has abandoned her, or for any reason has refused to join her-in the suit, the error is fundamental and the petition is subject to general demurrer. Houston, etc., Co. v. Spradlin, Tex.Civ.App., 55 S.W.2d 1086; Rhodes v. Taliaferro, Tex.Civ.App., 119 S.W.2d 703, and authorities.

‘ Applying the rules stated to this -case, the trial court erred in overruling defendant’s general ,demurrer to plaintiffs petition, and for that reason the judgment will be reversed and the cause remanded. The original opinion on the merits will be withdrawn and this substituted therefor.

Reversed and remanded.


author: COMBS, Justice.

text:
    GENERAL AMERICAN LIFE INS. CO. v. MARTIN.
    No. 3553.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 7, 1940.
    Rehearing Denied Feb. 21, 1940.

      Hamilton, Lipscomb, Wood & Swift, of Dallas, for plaintiff in error.
    Sanders & McLeroy, of Center, for defendant in error.
   COMBS, Justice.

Defendant in error, William E. Martin, whom we will refer to as plaintiff, instituted this suit against plaintiff in error, General American Life Insurance Company, which we will refer to as the defendant company, to recover $1,472, cash surrender value of a policy of life insurance issued to him by the Missouri State Life Insurance Company. He prayed for statutory penalty of 12% and $400 attorney’s fee. The trial was to the court and practically upon an agreed statement of facts. The parties filed a stipulation in which all of the facts except those relating to the residence of the plaintiff and the amount of attorney’s fee were agreed to. The policy in question was a 20 year payment plan policy for the face amount of $2,000, issued to plaintiff January 23, 1918, by the Missouri State Life Insurance Company, a Missouri corporation. All premiums on the policy were paid as they became due until all of the 20 payments were made, maturing the policy in January, 1938. According to its terms the cash surrender value of the policy at maturity was $1,472, the amount sued for. But the defendant company contends that the cash surrender value of the policy was reduced by virtue of the purchase agreement whereby it acquired the assets of the Missouri State Life Insurance Company, which became insolvent, so that the liability of the defendant company on the cash surrender feature of the policy was at the time of the trial $1,020.41, which amount it offered to pay. This is the controlling point in the case. The pertinent facts, as reflected by the agreed statement, were: On August 26, 1933, the Missouri State Life Insurance Company, which issued the policy, became insolvent and the Superintendent of the Insurance Department of the State of Missouri filed a suit in the circuit court of that state to have it declared insolvent and enjoin it from further doing business. By proper judgment of the court the Superintendent of the Insurance Department sold all of the assets of the Missouri State Life Insurance Company to the defendant company on September 7, 1933. Under proper orders of the court, a purchase agreement was entered into by the terms of which the defendant company agreed to assume the policy obligations of the Missouri State Life Insurance Company, with the proviso however: “Liens. — Inasmuch as the present appraised value of the assets purchased hereunder is less than the required reserves, a lien (adjusted to the nearest dollar) equal to 50% of the terminal reserve on each policy of life insurance and each annuity policy as such reserve has been established in the accounts of the Old Company, computed as of September 1, 1933, to the date to which premiums on such policies have been paid, will be established and placed against each such policy.” Copies of the purchase agreement were mailed to all policy holders, inclúding the plaintiff. On October 23, 1933, the court entered an order directing all parties having claims against the old company to file them within a specified time. The Superintendent of the Department of Insurance of the State of Missouri, wrote plaintiff a letter in which he referred to the purchase agreement fornsOrly sent him, and also to the order of the Circuit Court relative to filing claims, and enclosed a copy of the order. In that letter the Superintendent of the Department of Insurance stated: “Having negotiated the purchase agreement for the benefit of the policy holders, I believe that it is to the best interest of substantially all of the policy holders to continue to carry the insurance formerly placed with the Missouri State Life Insurance Company.” It is admitted that the letters, copies of orders, etc., were received by the plaintiff but he appears to have made no reply. However, he continued to pay the premiums on his policy as they came due, paying them to the defendant company until January, 1938, when the 20 yearly payments were completed. He then wrote to the defendant and demanded payment of $1,472, the full surrender value of the policy according to its original terms. The1 defendant company refused to.pay that amount, offering to pay only the $1,020.41, the amount to which the cash surrender value was reduced by the provisions of the purchase agreement above mentioned. This suit followed.

The trial court entered' judgment for plaintiff for the full amount sued for $1,-472 principal, plus 12% penalty and $400 attorney’s fee. He filed a finding of fact and conclusion of law in which he said: “I conclude further, as a matter of law, that the attempted lien of defendant against plaintiff’s policy was ineffectual because the court proceedings in Missouri were never sanctioned or approved by the Commissioner of Insurance in this State nor by the Board of Commissioners of this State, by reason of the incontestable clause - in said policy, and further that the court did not have jurisdiction of the person of the plaintiff, although he knew of said proceeding he was never served with any process and never agreed for defendant to take over the policy sued on herein.”

Opinion.

It is apparent from the trial court’s findings and conclusions, as quoted above, that he based his judgment for plaintiff on the theory that the Missouri proceedings, by virtue of which the defendant company acquired the assets of the old company and entered into the purchase agreement, could not bind the plaintiff to the terms of the agreement which reduced the surrender value of the policy.-

I-n support of that theory, plaintiff contends here that the Missouri State Life Insurance Company, the old company, could not substitute a new insurer, the defendant company, without his consent. Washington Life Ins. Co. v. Lovejoy, Tex.Civ.App., 149 S.W. 398. That the judgment of the Missouri court could not bind him to the terms of the purchase agreement .'because he was not a party to the Missouri court proceedings, and also that the agreement could not bind him unless same was submitted to and approved by the Insurance Commissioner of this state. Vernon’s Ann. Civ.St., arts. 5040, 5041.

As we view it, the. controlling principle in this case is not whether, the Missouri court had jurisdiction and power to compel the plaintiff to accept the purchase agreement but rather that under the facts the plaintiff has 'elected to be bound by the agreement. When the Missouri’ State Life ‘Insurance Company was placed in the process of liquidation because of insolvency in 1933, the plaintiff had the right to file his claim with the proper authorities as he was directed to do by the judgment of the circuit court. He might, in that manner, have asserted any claim which he had against the'Missouri State Life Insurance Company on the policy, or which aróse by reason of its breach. The Missouri State Life Insurance Company was a Missouri corporation. No question is raised, or could be, as to the jurisdiction of the Missouri-court to declare that company insolvent and. liquidate its affairs under the pertinent statutes of Missouri, .as was done. Those statutes were fully :plead and agreed to and the proceedings of the-circuit court of Missouri appear to have been in -conr formity therewith. By virtue of those ¡proceedings the assets'‘-of-the -Missouri .State Life Insurance Company were sold' torthe defendant company.; Tn -connection with its purchase of those -assets- the defendant company entered into the purchase agreement whereby it agreed to assume the policy obligations of the old company, but upon condition that the policy, obligations be reduced as specified in the provision here-inabove quoted. Plaintiff, along with other policy holders, had the right to accept the obligations of the' defendant company in lieu of his claim against the old company. He could- not, of course, do both. With full knowledge of the facts he continued to pay premiums on his policy, paying them'to the defendant-company until the twenty payments were completed, a period of five years. He then made -his claim and filed this suit in which he asserts liability against the defendant company by reason of the purchase agreement. Thus, he has elected to accept the obligations of the defendant'company in accordance with the purchase agreement. This is necessarily so because whatever liability the defendant company has for the obligations of the old company arose solely by virtue of the purchase agreement. And having accepted the terms of the purchase agreement made for his benefit, the plaintiff necessarily is bound by all of the terms of the agreement. He cannot accept a part of the provisions of that agreement and at the same time elect not to be bound by others which limit the obligations of the original policy. He must accept the contract as he finds it in its entirety or reject it altogether.

The judgment of the trial court will be reformed so as to award to the plaintiff $1,020.41. As so reformed, the judgment of the trial court is affirmed.

On Rehearing.

Appellee in his motion for rehearing complains that we did not discuss in the original opinion the matter of his alleged right to interest, penalty and attorney’s fee allowed him by the judgment of the trial court.

It is our view that the twelve percent penalty and attorney’s fee allowed by the statute (Vernon’s Ann.Civ.St. art. 4736) for failure of certain insurance companies to pay claims within thirty days aft-' er demand has no application to the character of claim asserted in this suit. It will be noted that the penalty and attorney’s fee are allowed “in all cases where a loss occurs”. The statute is penal in nature and must be strictly construed. Washington Fidelity National Insurance Company v. Williams, Tex.Com.App., 49 S.W.2d 1093. The policy involved here is .á life insurance policy and the “loss” insured against was death. The claim here sued on is not for loss but for the cash surrender value which the insured, by the terms of the policy, had the-right to claim in lieu of the life insurance provided by the policy. We deny ap-pellee’s claim for penalty and attorney’s fee for the reason that in our opinion it does not come within the provisions of the .statute.

The insurance company contends that it is not liable for interest for the reason that it had no right nor option to pay the surrender value of the policy to appellee until such time as he should make claim therefor and surrender the policy; -that it has stood ready at all times to pay, and has offered to pay, the amount which it owed the plaintiff and has been prevented from doing so because plaintiff demanded a larger sum than it owed.

It is our conclusion that when the plaintiff filed this suit he thereby made unconditional demand for payment of the cash surrender value of the policy, and that appellant in order to escape liability for statutory interest rested under the burden of making an actual tender into the registry-of the court of the amount due. It made-no such tender but has retained the money. We therefore hold that appellee is entitled to interest on the $1,020.41 due him by appellant from and after the 27th day of May, 1938, the date this suit was filed. Accordingly the judgment heretofore entered by-us will be reformed so as to allow appel-lee the statutory six percent (6%) interest.


author: ALEXANDER, Justice.

text:
    FIRST NAT. BANK OF RAYMONDVILLE v. SOLIS et ux.
    No. 2183.
    Court of Civil Appeals of Texas. Waco.
    Feb. 8, 1940.
    Rehearing Denied March 7, 1940.

      Jesse G. Foster and R. F. Robinson, both of Raymondville, for appellant.
    West & Hightower, of Brownsville, for appellees.
   ALEXANDER, Justice.

This suit was brought by Jose Solis and wife against The First National Bank of Raymondville to recover the title and possession of and to remove cloud from 44 acres of land in Cameron county. The facts are substantially these: Solis and wife mortgaged the property to the bank in 1931 to secure the payment of a pre-existing unsecured debt. This mortgage was renewed in 1932. In 1933 they deeded the property to the bank in cancellation of said indebtedness and at the same time the bank recon-veyed it to them in consideration of certain new vendor’s lien notes in an amount slightly in excess of the old debt. The plaintiffs alleged that the mortgages were void because the property was their homestead at the time the mortgages were given .and that the subsequent conveyance to the bank was void because plaintiffs were induced to sign same by representation that it was a mere extension of the old indebtedness. A trial before the court without a jury resulted in judgment in favor of the plaintiffs for the title and possession of the land. The bank has appealed.

We think the evidence was sufficient to sustain the trial court’s finding that the property constituted Solis’ homestead at the time the two deeds of trust were given. Solis and his family began to occupy the property as a homestead when he inherited the property in 1910. Solis’ second wife died while the family resided on the property and Solis and the children continued to reside thereon until he married his third wife in 1929. His third wife owned her own home in Sebastian, a nearby village of approximately 200 inhabitants, where she and her children resided at the time of her marriage. Solis moved to Sebastian and lived with her. ■ At about the same time Solis bought a lot in Sebastian and built a combination residence and store building thereon. Some of his children moved to town and lived in the store building and helped carry on the business. Solis worked in the store a part of the time but denied owning any interest in the business. He claimed that the business belonged to his son and a third party, and that he was merely working as a clerk for the firm. Solis and some of his children resided in Sebastian from 1929 to September, 1932. On said last date Solis and his family moved onto an 8-acr'e tract of land adjoining the 44 acres in question and since that time have cultivated both tracts of land with their own labor. There is evidence that some of Solis’ children, some of whom were minors, resided on and cultivated the farm in question during all of the years in question with the exception of the years 1931-32. During those years the farm was rented out to a tenant. Solis testified positively that he never intended to abandon the farm as a homestead but intended at all times to return to and occupy the same as a homestead. The court evidently accepted Solis’ view of the testimony. If so, then the court properly held that the property was Solis’ homestead, for even though Solis left the farm and occupied in Sebastian other property owned by himself or his wife, this would not constitute an abandonment of the old home on the farm so long as he never formed the intention of abandoning same. There was ample evidence from which the court could have concluded that Solis had at all times intended to return to and occupy the farm as a family homestead, and so long as this condition existed, the farm actually remained the family homestead. Coyel v. Mortgage Bond Company, Tex.Civ.App., 124 S.W.2d 204, and authorities there cited; Blanks v. First National Bank, Tex.Civ. App., 44 S.W.2d 393; 22 Tex.Jur. 81.

The evidence is not sufficient as a matter of law to estop the plaintiffs from claiming the projperty as their homestead. The deeds of trust contain no express representations to the effect that the mortgaged property was not mortgagors’ homestead. The defendant introduced evidence to show that at the time each of the deeds of trust was given Solis orally represented that the property was not his homestead, and that he was then claiming -the business -property in Sebastian as his homestead. This business property was included in the first deed of trust but omitted from the second one, and the bank claims this was because Solis at the time asserted that it was his homestead. Solis, however, denied all of these representations and the judgment in his favor implies a finding that he did not make the representations. His evidence alone was sufficient to raise an issue to be decided by the trier of the facts. Moreover, the trial court expressly found that the bank at all times knew that the 44-acre tract in question was Solis’ homestead. If this latter finding be true, then Solis’ representations to the contrary were immaterial.

■ There is evidence that in a suit by a third party to foreclose a mortgage lien on the business property in Sebastian, an attorney representing Solis had, in 1933, interposed a plea claiming that property as Solis’ homestead. However, Solis, who was a Mexican, was unable to understand the English language, and there is no evidence that he knew that any such defense had been interposed in his behalf. The plea of homestead was not sustained in that case. We cannot say as a matter of law that Solis was estopped to set up his plea of homestead in the present suit.

Since the property was Solis’ homestead at the time the mortgages were given, the purported liens thereon were void. Constitution, Art. 16, sec. 50, Vernon’s Ann.St.; 22 Tex.Jur. 281.

During the years 1937 and 1938, Solis’ tenant, over his protest, paid the rents due for the use of said farm for said years, amounting to approximately $500, to the bank, and the bank applied same as a credit on Solis’ debt to it. Solis filed a cross-action to recover for said rents and has cross-assigned as error the failure of the trial court to grant such relief. There was no error on the part of the trial court in this respect. Although the crops grown on the homestead were exempt so long as they were ungathered, when they were gathered and thus severed from the land, they lost their exemption. 22 Tex.Jur. 196; Coates v. Caldwell, 71 Tex. 19, 8 S.W. 922, 10 Am. St.Rep. 725. Since these rents, or the proceeds thereof, were not exempt at the time same were appropriated by the bank, the extent of Solis’ recovery therefor would be a judgment for debt, which judgment would be subject to offset by the bank’s debt against Solis.- The bank has already allowed Solis credit on his debt -to the bank for the rents so appropriated by it, and hence Solis has suffered no injury.

The judgment of the trial court is affirmed.


author: WILLIAMS, Justice.

text:
    KERR v. FOLSE.
    No. 5542.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 15, 1940.
    Reg L. Jones, of Henderson, for appellant.
    Joe C. Gladney and R. B. Stephen, both of Henderson, for appellee.
   WILLIAMS, Justice.

Roy G. Folse sued D. W. Kerr for dissolution of an alleged partnership existing between them, for an accounting and judgment for one-half the net value of the assets. The court has filed findings of fact and conclusions of law. The court found that these parties entered into a partnership agreement under which Kerr was to furnish the necessary capital to construct a building and equip and stock it as a drug store, and Folse to manage and operate same; the profits to be divided evenly, and when Kerr’s one-half of the profits amounted to the sum advanced by him in the installation of said business, Folse to become owner of one-half the assets. The court further found that Kerr advanced the necessary funds; Folse operated the business until Kerr caused him to close the store, at which time Kerr took same over; that the assets at such time were of the value of $1,400, charged with partnership debts $442. The above findings are not assailed.

The court further found that Kerr advanced $2,116.73 in the installation of said business and had received as his part of the profits before the store closed the sum of- $2,550, which was in excess of the amount originally advanced. The partnership was dissolved and Folse awarded judgment for $479, being one-half the net assets.

Under Kerr’s first two propositions he attacks the last two findings of fact, contending that the undisputed evidence shows the amount of money advanced by him was $3,116.73; and the amount received by him out of the profits amounted to $1,559.-50. And under his third proposition he asserts that not. having been reimbursed in the amount of his advancements, Folse is not entitled to recover. This in its final analysis rests upon questions of fact involved in the former propositions.

It appears from the evidence that after Kerr advanced the initial capital in the sum of $2,116.73, he also paid deferred monthly installments on a soda fountain, totaling $990.50, plus a small amount of interest. These two items aggregate approximately the $3,116.73 contended for. On the other hand, the evidence shows that Kerr received and indorsed checks issued by the partnership in the total sum of $4,000. Of this sum Kerr claims checks to the amount of $770.75 were in repayment of a loan he had made to the partnership. There is some controversy over this item. If Kerr’s contention be granted that $770.75 was in repayment of a'loan, and if he is allowed the further sum of $990.50 for payments on the fountain, these two items when subtracted from the $4,000 would still leave a balance in excess of the initial capital he invested, which he had received back. From above observations, without going into the question of bookkeeping used by the court or detailing further evidence, we would not be justified in disturbing the findings of the court where there is some evidence to support same. Burnette v. Bassett, Tex.Civ.App. 117 S.W.2d 483; Oden v. McAdams, Tex.Civ.App., 108 S.W.2d 920; 3 Tex.Jur. p. 1102.

The judgment is affirmed.


text:
    ROBERTSON et al. v. SNODGRASS.
    No. 8863.
    Court of Civil Appeals of Texas. Austin.
    Jan. 31, 1940.
    Rehearing Denied Eeb. 28, 1940.

      Baker & Baker, of Coleman, for appellants.
    E. M. Critz, of Coleman, for appellee.
   BAUGH, Justice.

This suit involves the validity of a deed of trust executed by Mrs. Lillie Robertson, joined pro forma by her husband, H. A. Robertson, on an undivided ⅛ interest in 532 acres of land in Coleman County, to secure an indebtedness of $2,500 due by H. A. Robertson to his brother R. C. Robertson. It was brought by D. L. Snodgrass, trustee in bankruptcy of the estate of H. A. Robertson, in trespass to try title and to set aside said deed of trust. Trial was to a jury on special issues. After they had returned their answers thereto, and upon motion of the plaintiff, appellee here, the trial court set aside their findings as not being supported by the evidence, and as being immaterial to a decision of the case, and made independent findings of fact upon which judgment was rendered in favor of plaintiff. From this judgment the defendants have appealed.

The deed of trust in question was executed on July 12, 1937, and filed for record in Coleman County, on October 4, 1937. H. A. Robertson filed his voluntary petition in bankruptcy on December 28, 1937, on which he was subsequently discharged. He did not list any interest in the land in question as one of his assets; nor the debt to his brother R. C. Robertson as one of his liabilities.

The plaintiff, duly appointed trustee in bankruptcy, pleaded the invalidity of said deed of trust, though variously stated, on substantially the following grounds:

■ 1. That the property involved was at the time of the execution of said deed of trust either the separate property of H. A. Robertson, or was the community property of himself and wife; and that since he joined his wife only pro forma in its execution, it was not a binding obligation upon him nor legally sufficient to convey his interest.

2. That the recited debt to his brother which it was given to secure was fictitious and that he did not owe it.

3. That it was voidable at the instance of the trustee because executed within four months of the time that H. A. Robertson filed his voluntary petition in bankruptcy on December 28, 1937.

4.That H. A. Robertson was insolvent when it was executed and that it was executed for the purpose of hindering, delaying, and defrauding his other creditors.

To these pleadings the defendants filed only a general demurrer, general denial, and plea of not guilty.

Four issues were submitted to the jury. No others were requested by either party. From the fact they were not objected to by the plaintiff, biit were objected to by the defendants on several grounds, unnecessary to state here, we take it that they were prepared, or acquiesced in, by the plaintiff as presenting his theory of the case. In response to them the jury found:

1. That on July 12, 1937, when said deed of trust was executed, H. A. Robertson did owe said R. C. Robertson the sum of $2,-500.

2. That at that time the said H. A. Robertson, being heavily in debt, was not being pressed by some of his creditors.

3. That said deed of trust was not executed with the intention and purpose of hindering and delaying his creditors.

4. That it was not executed with the intention and purpose of preventing any of H. A. Robertson’s creditors from levying upon said lands.

These issues having been found against . the plaintiff he then moved that these findings be set aside as without support in the evidence; and that judgment be rendered in his favor non obstante veredicto. This the trial court did, on his own independent finding that said property was either the separate property of H. A. Robertson or the community property of himself and wife; and that the deed of trust as executed, — that is by Mrs. Lillie Robertson, joined pro forma by her husband, H. A. Robertson, — ' was ineffectual to convey his interest.

The Bankruptcy Act provides two grounds upon which a trustee or creditor may set aside a conveyance by a bankrupt prior to the time a petition in bankruptcy is filed. Sec. 96, Title ll.U.S.C.A. p. 336,. relating to “preferred creditors,” authorizes the avoidance of a conveyance of the bankrupt’s property, which would amount to a preference, if made when the grantor was insolvent and within four months prior-to the date his petition in bankruptcy is filed. In computing this four-month period the date of the recording of such instrument, regardless of the date of its execution, is determinative. 6 Tex.Jur. § 46, p. 64; 6 Am.Jur. § 286, p. 686. Under this provision of the Act it is immaterial what the purpose and intent of the grantor may, have been.

Sec. 107 of said Act, Title 11 U.S. C.A.’, relating' specifically to “liens, conveyances, transfers, and assignments” makes void such conveyances or liens, if made within four months of filing the petition in bankruptcy “with the intent and purpose on his part to hinder, delay, or defraud his creditors,” etc. Under this provision of the Act, the purpose and intent of the grantor must be shown.

From the pleadings of the plaintiff and the issues submitted to the jury it is manifest that the plaintiff sought to set aside said deed of trust under the provisions of Sec. 107, if the deed of trust were otherwise valid. That being true, the findings of the jury were material. We are clear in the view that the trial court erred in setting them aside as not being supported by the ’evidence. Appellee’s contention that there was no evidence to sustain the verdict is, we think, but an attack on the credibility of the testimony of interested witnesses, and does not show a lack of any evidence to sustain the findings made. Thus only a matter for the jury to determine is presented. . The only testimony on these issues was that of R. C. Robertson, H. A. Robertson and his wife, Lillie Robertson; and all testified that the debt was owed for moneys furnished by R. C. to H. A. Robertson at various times and in various sums. H. A. Robertson testified that ’ when the deed of trust was. executed, he had no intention of taking bankruptcy, nor to hinder, delay or defraud any of his creditors. That his decision to take bankruptcy resulted from acts of his creditors in November, 1937, some three months after the deed of trust was executed. Consequently, the findings of the jury, having evidence to support them, were binding on the trial court.

• Under the plaintiff’s own pleadings, it was incumbent upon him to show not only the insolvency of H. A. Robertson at t-he time he executed the deed of trust, but also that the property on which it was given was not the separate estate of Mrs. Lillie Robertson, but was either the separate property of H. A. Robertson, or the community. property of himself and wife. The deed of trust itself purported to be only on the property of-the wife, and there was testimony from which the jury could have found that it was her separate property. If so, -it was not liable for the -debts of her husband. The issue of the true ownership thereof was consequently raised by both pleading and evidence and the burden rested upon the plaintiff to show that it was a part of the assets of the bankrupt and subject to the payment of his debts; and that he was insolvent at the time the deed of trust, assuming it to be valid, was executed. Jackson v. Steele, Tex. Com. App., 57 S.W.2d 95, 96; 6 Tex.Jur. § 45, p. 63, and cases cited; Perkins v. Nevill, Tex. Com.App., 58 S.W.2d 50.

Since the pleadings and the evidence raised the issue as to whether H. A. Robertson, the bankrupt, owned the property in question at the time of the transfer, a fact necessary for the plaintiff to establish before it could, in any event, be set aside, and since the trial was to a jury, that issue should have been submitted. Even if plaintiff did not waive -it, by failure to request its submission, we think the - trial court, after the jury had answered adversely to the plaintiff the issues submitted to them, was without authority to then find other facts not submitted nor requested to be submitted to the jury, as a basis for- a judgment non obstante veredicto; unless, as a matter of law, such facts were conclusively established and no jury issue were raised.- But no such case ’is here presented. Material issues, essential to plaintiff’s right of recovery, on which the evidence was not conclusive, were not submitted to the jury. If the court could, after findings adverse to plaintiff ’on the only issues submitted, then ignore them, or set them aside, and make independent findings of his own on other controverted fact issues and render judgment thereon, trial, by jury would be rendered meaningless. San Antonio Public Service Co. v. Tracy, Tex.Civ. App., 221 S.W. 637; Citizens’ Nat. Bank v. Texas Compress Co., Tex.Civ.App., 294 S. W. 331; Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084.

For the reasons stated, the judgment of the trial court is reversed and the .cause remanded for another trial.

Reversed and remanded.


text:
    WATLEY v. SHOULTS et al.
    No. 5536.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 25, 1940.
    William Lane and Timmins & Bath, all of Marshall, for appellant.
    Huffman & Huffman, of Marshall, for .appellees.
   WILLIAMS, Justice.

Appellant, W. W. Watley, administrator of the Estate of Ida Solomon, deceased, sued in regular statutory trespass to try action to recover of appellees, E. C. Shoults and G. W. Huffman, defendants below, title to ½ interest in a 100-acre tract of land out of the McCown and Casey H. R. Surveys in Harrison County. Defendants’ answer contained a plea of not guilty, and other defenses not necessary to detail. Plaintiff sought recovery on the theory that the tract was acquired with community funds of Gordon Solomon and Ida, his third wife. A deed dated in 1933, reciting a cash consideration, purports to convey the tract to defendants..

Gordon was married to Charity when he purchased in 1883 a tract containing approximately 400 acres of land. He married Ida on January 23, 1891. In 1892 Gordon, joined by Ollie Smith, who was the only surviving child of Miami Solomon, ■ his second wife, executed a. timber deed containing a general warranty of title to W. L. Sloan, in which they conveyed the standing timber on about 270 acres of the above tract. This deed granted to Sloan “as much time as he may desire or find convenient to cut and remove the timber.” It recites $150 cash paid, and further consideration of Sloan’s promise, “when the timbered land is surveyed, so as not to include any of the cleared land, I will pay $1.25 per acre, including the amount already paid. Also one hundred acres of land when the timber is removed therefrom.” (Italics ours.) Sloan, in turn, in 1901 conveyed this timber so purchased, together with other timber off a large tract of land he owned close by, to the Pine Ridge Lumber Company, who within three or four years time had cut and removed the timber purchased by it. In 1906 Elizabeth Sloan, surviving widow of W. L. Sloan, executed a deed conveying to Gordon Solomon 100 acres of land, being the land in controversy. The consideration expressed in this deed reads: “This deed is made for the purpose of curing defect in title of said grantee by reason of the fact that the deed which was made by W. L. Sloan to him was lost or misplaced without having been recorded and this is made in substitution thereof.”

In response to special issue No. 4, the jury found from a preponderance oi the evidence that the 100 acres in c-ontro-versy was conveyed to Gordon as part of the consideration for the timber purchased from him under the timber contract dated July 2, 1892; and to No. 6, the jury found from a preponderance of the evidence that the 100-acre tract was paid for out of the community property of Gordon and Charity Solomon. The court correctly required the jury to find from a preponderance of the evidence that the property was paid for out of the community of Gordon and Charity Solomon; in effect; th'at from a preponderance of the evidence it was not the community of Gordon and Ida. Moss v. Ingram, Tex.Civ.App., 224 S.W. 258; Page v. Henderson, 129 Tex. 652, 106 S.W. 2d 673; Gillespie v. Gillespie, Tex. Civ. App., 110 S.W.2d 89. Upon these and other findings not necessary to detail, judgment was entered that plaintiff take nothing. Plaintiff’s motions for an instructed verdict and for- judgment non ob-stante veredicto upon ’ which his propositions are grounded involve the alleged insufficiency of the evidence to support above findings.

The land purchased in 1883 and the growing timber thereon became no part of the community estate of Gordon and Ida Solomon, or of her separate estate. , There is a total absence of any evidence that the community of Gordon and Ida in any wise handled or supervised the cutting and removing of the timber sold to Sloan. ■ On the contrary, the Pine Ridge Lumber Company supervised and furnished the means for its removal. Therefore, if the consideration for the conveyance of the 100 acres in controversy to Gordon was in part payment of the growing timber on the 270 acres sold to Sloan, the said 100-acre tract did not become any part of the community of Gordon and Ida. Dixon v. Sanderson, 72 Tex. 359, 360, 10 S.W. 535, 13 Am.St. Rep. 801; Rose v. Houston, 11 Tex. 324, 326, 62 Am.Dec. 478 ; 23 Tex.Jur. p. 89, Sec. 66; Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799; Comm. of Internal Revenue v. Wilson, 5 Cir., 76 F.2d 766; Gillespie v. Gillespie, supra.

The land in controversy was conveyed to Gordon during his marriage to Ida, and by virtue of Article 4619, R.C.S. of 1925, Vernon’s Ann.Civ.St. art. 4619, gives rise to the presumption that it was community "of 'these two. From the evidence offered by defendants in rebuttal to such presumption it is to be observed that W. L. Sloan agreed to convey 100 acres of land in part payment of the timber when the same was removed; 'the timber was-removed by 1904 or 1905; his widow executed a deed in 1906 conveying exactly 100 acres to Gordon; this deed recites that it was made in substitution of a deed formerly made by her husband. The deed records disclosed no deed from Sloan to-Gordon. There is no evidence of any other transaction between Sloan and Gordon. Thirty-odd years have passed and the Sloans, Gordon, and all his wives are dead. This evidence offered in rebuttal to the presumption presented a question of fact. We are not prepared to say that the jury’s-findings are without support in the evidence.

The judgment is affirmed.