author: WALKER, Chief Justice.

text:
    NEWLIN v. SMITH.
    No. 3651.
    Court of Civil Appeals of Texas. Beaumont.
    July 3, 1940.
    Rehearing Denied July 24, 1940.

      C. A. Lord, of Beaumont, and Ewell H. Muse, Jr., of Austin, for appellant.
    Lamar Cecil, of Beaumont, and H. M. Kinard, of Orange, for' appellee.
   WALKER, Chief Justice.

M. O. Newlin, doing business as Newlin Truck Lines, is appellant; W. B. Smith is appellee. On or about the 20th day of October, 1938, in a collision in Orange county between an automobile driven by appellee’s wife and one of appellant’s trucks, Mrs. Smith received severe personal 'injuries. This suit was by appellee against appellant for the damages suffered by his wife'. For cause of action he plead ten specific acts of negligence against appellant, each constituting a proximate cause of Mrs. Smith’s injuries. Appellant answered by plea of privilege to be sued in Harris county and, subject to his plea of privilege, by demurrers, general denial, pleas of contributory negligence, etc. On the verdict of the jury, finding in his favor on the specific issues of negligence submitted and against appellant on the issues of contributory negligence, judgment was rendered in appellee’s favor against appellant for the sum of $5,100, the damages assessed by the jury.

As the first step in the trial of this case, the lower court heard and overruled appellant’s “motion for a trial on the plea of privilege separate and apart from the trial on the merits.” This motion was overruled and the case was tried on its merits, with judgment as stated above.

Appellant’s first point, presented simply as a naked legal right, is that the court erred in not granting him a trial on his plea “separate and apart from the trial on the merits.” On the undisputed facts, venue was properly laid in Orange county under Section 9 of Article 1995: “Crime or trespass. — A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the cdunty where the defendant has his domicile.”

There is nothing in the record to indicate that appellant suffered the least injury by the trial- of his plea of privilege, together with’ the case on its merits. On authority of Gilmer v. Graham, Tex.Com.App., 52 S.W.2d 263, 264, appellant’s contention is overruled. In that case the court said: “It is first complained that the trial court erred in refusing to sustain' plaintiff in error’s motion to try the issue raised by the plea of privilege separately from the issues -on the merits of the case. No showing is made that plaintiff in error suffered any injury by reason of being denied a separate hearing on his plea of privilege. As to whether a hearing will be granted on a plea of privilege separate from the trial on the merits rests within the sound discretion of the trial court. Its action in refusing such a hearing will not be revised by the appellate court, in the absence of a showing that the party asserting the plea of privilege has been injured by such ruling. Griffin v. Linn (Tex.Civ.App.) 3 S.W.2d 148; Wichita Mill & Elevator Co. v. Simpson (Tex.Civ.App.) 227 S.W. 352.”

See, also, Wichita Mill & Elevator Co. v. Simpson et al., Tex.Civ.App., 227 S.W. 352; Producers’ Oil Co. v. Daniels, Tex.Civ.App., 249 S.W. 308; De Mars v. Montez, Tex.Civ.App., 277 S.W. 402; Gregg v. De Shong, Tex.Civ.App., 107 S.W.2d 893. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, does not overrule or limit the holding of the Graham case on this point. The cases cited by appellant, as sustaining his contention, were decided on authority of Compton v. Elliott, on a construction of that case with which we do not agree, that, as a matter of law, appellant was entitled to a trial of his. plea of privilege before the case was tried on its merits.

The jury convicted appellant of negligence, proximately causing the accident, in driving his truck at a rate of speed in excess of 25 miles per hour, in failing to drive his truck “upon his right-hand side of the highway,” in failing to give Mrs. Smith “one-half of the road,” in failing “to keep a proper lookout for Mrs. Smith,” in driving his truck into ap-pellee’s automobile while it “was occupying its right-hand side of the highway,” in failing to drive his truck “to the right immediately prior to the time of the collision.” Appellant assigns error against the submission of these issues on the ground that they were not raised by the evidence, and that the jury’s answers against him were against the great weight and preponderance of the evidence, and were without support in the evidence. These assignments are overruled. Appellant’s truck, with its trailer, was about seven feet wide and practically occupied one-half of the road; it had a tonnage capacity of about 20,000 pounds. The evidence so overwhelmingly supports the submission of these issues, and of the jury’s answers thereto, that it would serve no useful purpose to bring forward the evidence as a part of this opinion.

O.n authority of Missouri Pac. R. Co. v. Somers, 78 Tex. 439, 14 S.W. 779, appellant asserts that he was entitled to an instructed verdict because of a conflict on one point between the testimony given by Mrs. Smith by deposition and her testimony as given on the witness stand. This contention is overruled. If the conflict be conceded, it went only to the weight and credibility of Mrs. Smith’s testimony.

We overrule the contention that appellant was entitled to an instructed verdict on the theory that Mrs. Smith was guilty of contributory negligence, as a matter of law, because, after testifying that she was blinded by the approaching headlights, she did not testify 'to any affirmative act done by her for her own safety. The weight of this testimony was for the jury on the issues of contributory negligence.

Appellant assigns error against the refusal of the court to submit certain requested issues on the theory of Mrs. Smith’s contributory negligence. Of these issues, he says: “In other words, the trial court submitted the identical theory in so far as it would allow a recovery by the appellee, but on the request of the appellant, who had pleaded the same acts as contributory negligence, totally failed and refused to submit the defensive theory based on the evidence in the record showing that appellee ran into appellant’s truck while such truck was on the right hand side of the road.” It thus appears that his issues merely submitted the converse of the issues submitted by the court’s charge. This ruling by the court was not error. Texas Employers’ Ins. Ass’n v. White, Tex.Civ.App., 32 S.W.2d 955.

Appellant predicates error on his bill of exception No. 3, from which we quote:

“Be it remembered that upon the trial of the above entitled and numbered cause on the second day of October, 1939, and after the conclusion of the evidence and after the special issues were submitted to the jury, one of Plaintiff’s attorneys, Hollis Kinard, while he was making his closing argument to the jury, told the jury that questions from 1 to 26 should all be answered ‘Yes,’ and he told the jury that they would find' some questions with ‘X marks’ after the number of the questions, and told the jury that special issues 1-X and 3-X and so forth, throughout the special issues to which the letter ‘X’ was affixed, should be answered ‘No’, * * * and said to the jury:
“ ‘There are some thirty some odd issues here — thirty-two—I want to talk to you about those collectively just a minute. They are numbered from one to thirty-two consecutively; and from one to twenty-six; I submit to you that under the evidence in this case that you heard from the witness stand, and His Honor’s Charge, you are entitled to answer yes.’
* * * * * *
“ ‘Gentlemen of the jury, I want to take one question at the time and consider them as such. * * * I submit to you under the evidence you heard in, this case that the first twenty-six of those questions you are entitled to answer yes.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“ T submit to you, gentlemen of the jury, you will find some questions, 1-X and 3-X and so forth. Now, I want you to consider each of those questions separately, but I submit to you under the evidence in this case all those questions requiring an answer ought to be answered no; and in behalf of that little woman we ask you to answer then that way under the evidence you have heard from that witness stand.’ ”

The proposition is that “the court erred in failing and refusing to grant a new trial because of such argument on the ground that such argument of counsel told the jury the effec’t of their answers and requested the jurors to answer the issues favorable to the plaintiff and therefore constituted misconduct prejudicial to appellant on the part of appellee’s counsel.” This proposition is overruled. The argument did not request the jurors to answer the issues favorable to appellee, nor did it advise the jury the effect of their answers. The issues referred to in this argument submitted Mrs. Smith’s contributory negligence. These issues could have been answered in her favor, yet, on the answers submitting appellant’s negligence, appellee might have lost his case. Mr. Kinard was of counsel for “that little woman,” and the jury knew that fact. He was making his address to the jury “in behalf of that little woman.” He had no other office before the jury. His argument was not impassioned, but was a simple statement of a simple fact. There was nothing in his argument to arouse the prejudice of the jury against appellant, nor its bias in favor of appellee. Mr. Kinard told the jury that he wanted them “to consider each of those questions separately,” and to answer such questions “yes,” “under the evidence in this case that you heard from the witness stand,” and that certain other of the questions should be answered “no,” “under the evidence in this case.” In Dallas Ry. & Terminal Co. v. Bankston, Tex.Com.App., 51 S.W.2d 304, 310, the Commission of Appeals said: “Broadly speaking, counsel may exercise the right to advise the jury how, in his opinion, from the evidence, the issue submitted should be answered. He may specifically say issues from 1 to 20 should be answered ‘yes,’ or issues from 21 to 35 should be answered ‘no,’ but it would be highly improper for counsel to appeal to the jury that if they wanted plaintiff or defendant to recover in the suit to answer the issues in a certain way.”

Mr. Kinard’s argument has affirmative support in the Bankston case, and violates no proposition announced therein. His argument has ' support in the following cases. Dallas Ry. & Terminal Co. v. Price, Tex.Civ.App., 94 S.W.2d 884; Miller v. Wyrick, Tex.Civ.App., 96 S.W.2d 253; American Grocery Co., Inc., v. Abraham, Tex.Civ.App., 94 S.W.2d 1231; Phœnix Refining Co., Inc., v. Muller, Tex.Civ.App., 109 S.W.2d 766; International-Great Northern R. Co. v. Pence et al., Tex.Civ.App., 113 S.W.2d 206. The following proposition by Mr. Justice Combs, of this court, in Wells v. Henderson, 78 S.W.2d 683, 690, has met with general approval by the Bench .and Bar: “But we think there is still left some legitimate function for argument of counsel in discussing issues before a jury, and that the rules do not yet require that an attorney shall so present his client’s case that it would be necessary for a bystander to inquire when he is through which side of the case he is on in order to ascertain such fact.”

McFaddin v. Hebert, 118 Tex. 314, 15 S.W.2d 213, is the leading authority in this state for reversing cases for improper argument. Nothing in the argument in the case at bar is condemned by McFaddin v. Hebert.

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

Affirmed.


source: Caselaw Access Project

author: ALEXANDER, Justice.

license: Public Domain

text:
    MOELLER et ux. v. TRAVELERS INS. CO.
    No. 2362.
    Court of Civil Appeals of Texas. Waco.
    July 11, 1940.
    Thomas B. Bartlett, Jr., of Marlin, for appellants.
    Renfro & Kilgore, of Dallas, for appel-lee.
   ALEXANDER, Justice.

The case is before the court on appel-lee’s motion to affirm on certificate because of the failure of the appellants to file the transcript within the time provided by statute. Vernon’s Ann.Civ.St. art. 1839. Final judgment was rendered in said cause on April 12, 1940, and notice of appeal was given. The appeal was perfected on April 20, 1940, by the filing of pauper’s oath in lieu of appeal bond.

Although the time for filing the transcript in this court expired sixty days after the date of judgment, the appellants have wholly failed to file such transcript. The appellee’s motion for affirmance on certificate was filed oh June 27, 1940, during the term of court to which appellants’ appeal was returnable.

Under Article 1841, R.C.S., the appellee is entitled to an affirmance on certificate of the judgment of the trial court. The motion to affirm on certificate is granted, and the judgment of the trial court affirmed.


author: GRAVES, Justice.

text:
    GOLDENROD FINANCE CO. v. WARE.
    No. 11005.
    Court of Civil Appeals of Texas. Galveston.
    July 18, 1940.
    Rehearing Denied Aug. 1, 1940.
    Lewis & Ingram and Mrs. Lynne Tam-borello, all of Houston, for appellant.
    C. M. Wilchar, Jr., and Sam G. Croom, both of Houston, for appellee.
   GRAVES, Justice.

This appeal is from a judgment of the 56th District Court of Galveston County, sitting without a jury, wherein the ap-pellee, who was the defendant and cross-plaintiff below, was awarded the title to and possession of Lots 59 and 60 in Section 13 of the I. & G. N. Ry. Survey in Galveston County, comprising 20 acres of land, against the appellant, who was plaintiff and cross-defendant below, and wherein the appellant, as such plaintiff, was awarded title to and possession of the west ¾ of Lot 58. in such Survey, containing 7½ acres, but was denied any recovery upon its plea of damages against the defendant.

At appellant’s request and pursuant to statutory requirement, the learned trial court filed, as in support of its judgment, findings of fact and conclusions of law that are so full and clear, in giving not only a comprehensive statement of the nature and result of the suit there, but in also containing such a controlling and correct statement of the issues of law presented upon the appeal here, that they are thus, in material substance, fully quoted:

“It was agreed that Walter E. Fruit and Julian E. Fruit was the common source of title.
“Plaintiff’s Title.
“Plaintiff introduced in evidence the following instruments.
“G. W. Deed from Fruit and Fruit to W. B. Lewis covering the land involved and other lands, dated April 25, 1928, filed for record May 21, 1928, and recorded in Book 419, p. 133, deed records of Galveston County. Consideration $2000.00 cash..
“G. W. Deed from W. B. Lewis and wife to J. E; Sawhill, covering the same land conveyed by Fruit and Fruit to Lewis, dated April' 28, 1928, filed for record May 21, 1928, and recorded in Book 419, page 133. Consideration $20,000.00, being $10,-000.00 in cash and the execution and delivery of two promissory vendor’s lien notes for the sum of $5000.00 each, payable to vendor W. B. Lewis.
“Sale and transfer from W. B. Lewis and wife to The Gray Realty Company of the two $5000.00 vendor’s lien notes described in deed from Lewis and wife to J. E. Saw-hill; dated April 28, 1928, filed for record May 21, 1928, and recorded in Book 410, page 456. Consideration $10,000.00 cash. The transfer reciting that it conveyed to The Gray Realty Company ‘the said notes and said lien and all liens and titles held by them in and to the said land.’
“Sale and transfer from Gray Realty Company to R. E. R. Lloyd and wife of the two $5000.00 vendor’s lien notes in question, dated May 4, 1928, filed for record December 29, 1928, and recorded in Book 415, page 629. Consideration $10,-000.00 cash. The transfer reciting that it conveyed to Lloyd and wife said notes together with, all the contract lien, vendor’s lien, rights, equities, titles and interest in said land, which Gray Realty Company had by virtue of being the legal holder and owner of said notes.
“Lis pendens notice in cause No. 147,489, entitled T. A. Smith v. W. B. Lewis et al., pending in the District Court of Harris County, Texas; filed in the.office of the County Clerk of Galveston County, Texas, orí May 31, 1928, and recorded in Book 1, page 114.
“Lis pendens notice in cause No. 147,489, entitled T. A. Smith v. W. B. Lewis et al., pending in the District Court of Harris County, Texas; filed in the office of the County Clerk of Galveston County, Texas, on November 15, 1928, and recorded in Book 1, page 120.
“Certified copy of final judgment rendered by the District Court of Harris County, Texas, in said cause No. 147,489, entitled T. A. Smith v. W. B. Lewis et al., on the 4th day of November, 1930.
“Plaintiff also introduced in evidence certified copies of various pleadings filed in said cause No. 147,489, T. A. Smith v. W. B. Lewis et al., consisting of the following:
“Plaintiff Smith’s Original Petition filed May 29, 1928.
“Original answer of Defendant J. E. Sawhill, filed June 29, 1928.
“Original answer of Defendant W. B. Lewis and Cross-action wherein he im-pleads W. C. Gray and Gray Realty Company, filed August 1, 1928.
“Plaintiff Smith’s First Amended Original Petition filed March 16, 1929.
“Original Answer of Defendants W. C. Gray arid wife and Gray Realty Company, filed April 15, 1929.
■ “Original Answer of Defendants R. E. R. Lloyd and wif-e, filed July 8, 1929.
“Second Amended Original Petition (?) of M. J. Huggins, filed Feb. 25, 1930. (M. J. Huggins evidently intervened in the cause. This pleading is styled her Second Amended Original Petition filed in lieu of all other pleadings theretofore filed by her in said cause; Plaintiff’s attorney stated in open court to the trial court that they could locate no other or previous pleading by M. J. Pluggins among the papers in cause No. 147,489).
“Plaintiff Smith’s Third Amended Original Petition, filed July 12, 1930.
“Answer of Defendants -R. E. R. Lloyd and wife, filed November 4, 1930. (This is the First Amended Original Answer for the Defendants Lloyds, but it is not so denominated).
“Certified copy of a temporary restraining order granted in cause No. 147,489, on May 29, 1928. ,
“Certified copy of a temporary injunction granted in cause No. 147,489 on June 2, 1928.
“Certified copy of a judgment rendered by the District Court of Harris County, Texas, in cause No. 147,509, entitled Roene Cage et al. v. W. B. Lewis et al., on July 18, 1928, wherein judgment was rendered in favor of Roene Cage and husband against W. B. Lewis and J. E. Sawhill for $4570.21, with foreclosure of a vendor’s lien on certain property not involved in this suit.
“Execution and order of sale issued on said judgment, issued Sept. 1, 1928, together with Sheriff’s return thereon showing the same to have been executed on September 6, 1928, by the sale of the property described in said order of sale, and resulting in a credit on said judgment of $2,932.-35.
“Certified copy ' of the abstract of the judgment aforesaid showing same to have been filed for record in the office of the County Clerk of Galveston County, Texas, on September 29, 1928. The testimony of the County Clerk of Galveston County was that said abstract of judgment was properly indexed as against defendants W. B. Lewis .and J. E. Sawhill and in favor of plaintiffs Cage and wife.
“Certified copy of Pluries Execution issued by the District Clerk of Harris County on the judgment aforesaid, issued October 6, 1934, to the Sheriff of Galveston County, commanding him to make out of the property of Defendants Lewis and Sawhill, the balance due on said judgment, to-wit, $1,637.86, together with the Sheriff’s return thereon, showing that said pluries execution was executed on October 10, 1934, by the levy upon and sale of the property involved in the instant suit, to plaintiff Roene Cage. The levy and sale reciting that it was all interest owned in said property by defendants Lewis and Sawhill on October 10, 1934.
“Alias execution issued on said judgment to Sheriff of Harris County on October 3, 1928, returned ‘not executed’.
“Sheriff’s deed to Roene Cage,- dated December 11, 1934, recorded June 11, 1936, conveying to her all title and interest in said property which the defendants Lewis and Sawhill had on October 10, 1934.
“Quit-Claim deed from Roene Cage to M. J. Huggins, dated March 6, 1939, covering the land involved and which she purchased at said sheriff’s sate. G. W. Deed from M. J. Huggins to Goldenrod Finance Company conveying the land involved in this suit, dated February IS, 1937, filed for record May 5, 1937.”

By virtue of the foregoing instruments and muniments of title, plaintiff Goldenrod Finance Company claims to deraign good and superior title to the land involved from the agreed common source, Fruit and Fruit.

Plaintiff also introduced in evidence the following instruments for the limited purpose of showing the cloud that defendant has cast upon its title and which it sued to remove:

“Original petition filed in cause No. 44,821, entitled R. E. R. Lloyd et al. v. J. E. Sawhill, in the District Court of Galveston County, Texas.
“Certified copy of final judgment rendered in cause No. 44,821, entitled R. E. R. Lloyd, et al. v. J. E. Sawhill, by the District Court of Galveston County, Texas, on January 12, 1929, whereby all title to the land involved in this suit was divested out of defendant J. E. Sawhill and title and right of possession vested in plaintiffs R. E. R. Lloyd and wife.
“G. W. deed from R. E. R. Lloyd and wife to J. M. Lowry conveying the land involved, dated February 14, 1929, filed for record March 7, 1929, and recorded in Book 429, page 456; recited consideration ■ — $15,000.00 cash.'
“G. W. deed from J. M. Lowry to J. E. Light conveying the land involved, dated. March 21, 1929, filed for record April 29, 1929, and recorded in Book 423, page 505. Consideration — $10.00 and other valuable considerations.
“G. W. deed from J. E. Light to J. L. Grice conveying the land involved, dated April 12, 1929, filed for record April 26, 1929, and recorded in Book 427, page 469; consideration — $10.00 and other valuable considerations.
“G. W. deed from J. L. Grice to O. C. Baker conveying the land involved, dated August 10, 1929, filed for record August 14, 1929, and recorded in Book 431, page 537; consideration — $10.00 and other valuable considerations.
“G. W. deed from O. C. Baker to defendant herein, Elbert Ware, conveying the land involved, dated November 30, 1930, filed for record August 19, 1931, and recorded in Book 467, page 398; consideration — $10.00 and other valuable considerations.
“Defendant’s Title.
“Defendant for the purpose of showing superior title in himself offered in. evidence the following instruments.-
“The deed from Fruit and Fruit to W. B. Lewis.
“The deed from W. B'. Lewis to J. E. Sawhill reciting the execution and delivery by Sawhill of the two vendor’s lien notes, to the order of vendor W. R. Lewis.
“The transfer of said notes by W. B. Lewis to Gray Realty Company.
“The transfer of said notes by Gray Realty Company to R. E. R. Lloyd and wife.
“First Amended Original P’etition filed by the plaintiffs R. E. R. Lloyd, and wife, on December 15, 1928, in cause No. 44,-821, in the District Court of Galveston County, Texas, against J. E. Sawhill.
“Certified copy of final judgment rendered in said cause by the District Court of Galveston County, whereby all title to said land was divested out of the defendant J. E. Sawhill and invested in plaintiffs Lloyd and wife.
“He also introduced into evidence in the order named the deed from Lloyds to Lowry; from Lowry to Light; from Light to Grice; from Grice to Baker; and from Baker to defendant, Elbert Ware.
“Plaintiff contends in the trial court that the filing of the Smith suit in Harris County on May 29, 1928, (cause No. 147,-489) placed in litigation the validity of the deed from W. B. Lewis to J. E. Saw-hill as well as the validity of the two vendor’s lien notes recited in said deed; and that the filing of the first lis pendens notice in. Galveston County on May 31, 1928, placed the world on notice that the deed and notes were in litigation and that all who dealt with said land or said notes after the filing of said notice did so subject to the judgment to be finally rendered in said cause. Plaintiff further contends that the filing of the second lis pendens notice in Galveston County on November IS, 1928, was further notice to all the world that said deed and said notes were in litigation and that all who dealt with said land or said notes did so subject to the judgment to be finally rendered in said cause.
“It is further contended by plaintiff that the filing of said lis pendens notices qnd the pleadings up to the date of the last notice (November 15, 1928) apprised Lloyd and wife, and all the world, that the validity of said vendor’s lien notes was being litigated in said suit, and that Lloyds’ position as an innocent purchaser for value of said notes was being disputed. And that consequently Lloyd had no legal right to go into the District Court of Galveston County and sue Sawhill for rescission and recovery of the title and possession of said land; that Lloyds’ judgment thus obtained was void, and being void, Lloyd had no title he could convey to Lowry, and that defendant by reason of this principle de-raigned no title from and under Lloyd.
“Plaintiff contends that the final judgment rendered by the District Court of Harris County in cause No. 147,489, had the effect of not only vacating and annulling the deed from Lewis to Sawhill, but also adjudged the two vendor’s lien notes to be fraudulent and void and cancelled and annulled same; that said judgment further decreed that R. E. R. Lloyd and wife had no rights thereunder; that all title, right and interest in said land was divested out of Lloyd and wife and vested in M. J. Huggins, successor to the rights of W. B. Lewis. In other words, that the effect of said judgment was to place the vendor W. B. Lewis and his successor, M. J. Huggins, back in possession of the unincumbered title to said land free from all and any effect of his deed to Sawhill and the notes. ,
“Plaintiff also contends that if it be mistaken in the foregoing contention, then it has good and superior title to said land under Roene Cage; that the filing of the abstract of the Cage judgment in Galveston County on November 15, 1928, prior to the filing of the cáse of Lloyd v. Sawhill, fixed and established a lien on said property as the property of J. E. Sawhill, and that the title which Lloyd got by judgment of the District Court of Galveston County on January 12, 1929, was incumbered with Roene Cage’s judgment lien; and that the levy and sale by the Sheriff of Galveston County under the pluries execution aforesaid wiped out whatever title Lloyd might have obtained by said judgment. That plaintiff now holds the title thus conveyed by the sheriff under said execution, levy and sale.
“A proper decision of this case requires an analysis and construing of the pleadings in the Harris County suit and a construing of the final judgment rendered therein; a construing of the two lis pen-dens notices and their legal effect; a determination of the rights'of Lloyd as the owner and holder of the two vendor’s lien notes, and the effect of the judgment obtained by him in the Galveston County suit; and the effect of the filing of the abstract of the Cage judgment, and the effect of the levy and sale under the pluries execution.
“All of these instruments will be before the appellate court for its consideration and for such legal construction as that court may think proper.
“The trial court has arrived at the following conclusions of law:
“1. That the filing of the abstract of the Cage judgment did not affect or abridge the right of the holder of the vendor’s lien notes to sue on said notes and foreclose the lien, or in the alternative to sue for rescission and recover title to the land. That the filing of said abstract merely created a lien on such interest or title that the defendant J. E. Sawhill had in said land at the time same was filed or that he might have thereafter acquired. Roene Cage had notice at the time she filed her abstract of judgment that Saw-hill had only an executory contract to acquire title- to the land, and that whatever title he had was consequent upon his paying off and discharging sai'd purchase money vendor's lien notes. Her remedy was to pay off said notes if she desired to effectuate her lien.
“2. It is also the court’s opinion and. conclusion that the suing out of the pluries execution and the levy upon and sale of the property in . question thereunder did not constitute a foreclosure of said abstract of judgment lien, nor a sale on execution based thereon. I am mindful of the numerous cases which hold that the holder of a judgment lien does not have to bring a suit to foreclose his lien, but may do so by execution. However, I do not think this line of cases apply where the judgment debtor merely sues out an ordinary alias or pluries execution directed to the sheriff directing him to make the sum of money in question out of any property of the defendant subject to execution, and under which the sheriff levies upon and sells such interest in the property selected as the defendant in judgment had on the date of said levy, as was done in the instant case. Such course shows no purpose.or intention to rely upon the lien as fixed and established by the filing of the abstract of judgment.
“3. It is the trial court’s opinion and conclusion that the lis pendens statute abolishes the common law rule of lis pendens, and that said statute is not intended to affect the purchase or dealing in negotiable vendor’s lien notes or in - any right of property flowing from such notes. This is my consruction of Pope v. Beauchamp, 110 Tex. 271, 219 S.W. 447. I do not think the 1927 amendment of the lis pendens statute was intended to alter the principle laid down in this case.
“4. Regardless of the soundness of this conclusion, it is the trial court’s opinion and conclusion that neither the lis pendens notice filed May 31, 1928, or the one filed November 15,1928, put Lloyd or his vendee, Lowry, on notice that the validity of the two vendor’s lien notes in question was being litigated in the Harris County suit. Neither did the pleadings in said suit, until March 16, 1929, give any information that, the validity of said notes was in litigation in said suit or was being questioned.
“5. The validity of the notes was first attacked in said suit on March 16, 1929, by the filing of plaintiff’s First Amended Original Petition. Theretofore no mention had been made of said notes. By that pleading plaintiff made R. E. R. Lloyd and wife parties to the litigation and alleged that the execution and delivery of said notes by Sawhill to Lewis, and their transfer by Lewis to Gray Realty Company, and by Gray Realty Company to Lloyd and wife, was all in -fraud of plaintiff, and that Lloyd was a party to said fraud and was not an innocent purchaser of said notes, and prayed that said notes and their attending lien be cancelled and annulled along with said deed from Lewis to Saw-hill. This was several months after Lloyd had obtained the judgment in Galveston County for the Superior title retained in said deed to secure said notes, and after Lloyd had conveyed the land to Lowry. Lowry was never made a party to the Harris County suit.
“6. Assuming that our lis pendens statute affects the dealing in negotiable notes and the rights and remedies flowing therefrom, still it is this court’s opinion and conclusion that the world is free to deal in and with such notes until notice is imparted by either the lis pendens notice or the pleadings in the suit to which said notice directs attention, that the validity of such notes has been attacked in such suit.
“7. That no such notice or information was imparted in this case by either the notices or the pleadings in the case, and that therefore Lloyd had a legal right to seek and obtain judgment in the Galveston County suit for rescission and recovery of the superior title as he did, and having obtained title to said land had the right to convey same to Lowry.
“8. And finally it is the opinion and conclusion of the trial court that the final judgment rendered in the Harris County suit on November 4, 1930, did not decree said - notes vacated or annulled, and did not decree that said notes did not carry superior title to said land, and did not decree that Lloyd, and wife were not innocent purchasers of said notes for value. But, bn the other hand, it is the opinion and conclusion of this court that said judgment expressly validated said notes and sustained Lloyd’s claim of innocent purchaser.
“9. As I view the situation, there were four separate, independent and ultimate fact issues involved in the Harris County suit, growing out of the deed from Lewis to Sawhill. There were of course a number of other issues involved in that suit relative to' property and matters not germane to this deed transaction.
“The four separate and independent issues referred to were, (1) the validity of the deed from Lewis to Sawhill; (2) the validity of the purchase money notes executed and delivered by Sawhill to Lewis; (3) the bona fides of the purported sale and transfer of the notes from Lewis to Gray Realty Company; and (4) the bona fides of the purported sale and transfer of the notes from Gray Realty Company to R. E. R. Lloyd and wife. The notes had purportedly been sold and transferred by Lewis to Gray Realty Company, and by Gray Realty Company to Lloyds prior to the institution of Smith’s suit to cancel the deed. And in this connection I find and conclude as a matter of fact and law that the written transfer of said notes from Gray Realty Company to Lloyds was executed and delivered on May 4, 1928, as said transfer indicates on its face to have been.
“10. The last three of these issues were injected into the Harris County litigation, but not until the 16th day of March, 1929, when Lloyds were brought in and the validity of the notes, and the bona fides of Lloyds’ acquisition thereof, was for the first time questioned. Prior to this date only the validity of the deed had been placed in issue in said suit.
“Prior to this date Lloyds had by judgment of the District Court of Galveston' County recovered the superior title to said land inhering in said notes, and had sold and conveyed the land to Lowry. AJ1 this was shown of record in Galveston County on and prior to the 16th day of March, 1929.
“11. On July 8, 1929, Lloyd and wife filed an answer setting up Mrs. Lloyd’s coverture; demurred and excepted to plaintiff’s and cross-plaintiff’s pleadings on file; questioned the jurisdiction of the court and pleaded a general denial. . :
. “On November 4, 1930, the date judgment was rendered, Lloyd and wife filed á1 second answer in which they disclaimed all right, title and interest in and to all the land described in plaintiff’s petition. Said answer also contained a general demurrer; a general denial; and a prayer that plaintiff take nothing as against them. It also contained an allegation that they purchased the vendor’s lien notes for value before maturity and without knowledge of any defect or vice therein, and prayed to be discharged with their cost.
“12. The judgment rendered in said Harris County suit on November 4, 1930, specifically cancelled .and annulled the deed 'from Lewis to Sawhill and divested out of all defendants all title to said land and vested title and right of possession as to ten acres of said land in plaintiff Smith, and title to the remaining 35 acres in M. J. Huggins. It specifically awarded damages to plaintiff Smith in the sum of $3,500.00 against all defendants save and except defendants Lloyd and wife. It specifically awarded damages to intervenor M. J. Huggins in the sum of $23,643.00 against defendant J. E. Sawhill. It dismissed the defendant Mrs. W. C. Gray from the suit, and awarded Lloyd and wife judgment for their costs against plaintiff.
“The judgment concludes: ‘All issues against all parties not herein specifically disposed of are adjudged against the parties raising such issues’.
“13. If the lis pendens notices filed in Galveston County in connection with the Harris County suit had the legal effect of placing Lloyd and Lowry, and all those holding under them, on notice that Lloyd’s filing of the Galveston County suit and its prosecution to judgment, and his subsequent sale of the land to Lowry and by Lowry to others, were all subject to nullification by the judgment to be finally rendered in the Harris County suit, then in such event, it is the opinion and conclusion of this court that said judgment cannot be construed as wiping out Lloyd’s rights as owner and holder of said notes, nor in any manner affecting the force of Lloyd’s judgment in Galveston County on his subsequent sale of the- land to Lowry and by him to others.
- “14. The judgment did not specifically pass upon the validity of said notes nor determine Lloyd’s claim of innocent purchaser. These issues were raised by plaintiff Smith and cross-plaintiff Lewis "and his successor, Huggins. The judgment de-efees that alb-issues mot specifically -dis-
posed of are adjudged against the parties raising such issue.”

In view of this able résumé and determination of the issues raised upon both sides, it is deemed unnecessary to do more-than add appellate action to that as so stated. This court does that by reiterating all the findings of fact as its own, none of which have been successfully attacked, and by approving, as being sound, so much of the stated conclusions of law as may be— in this way — epitomized:

(1) The rights of Lloyd as a holder in due course for valuable consideration before maturity of the two vendor lien notes, aggregating $10,000, were fixed before the lis pendens notice in the Smith suit was filed on November 16 of 1928, in Galveston County; hence, neither he nor the appellee, who claimed under him, were bound thereby;

(2) Since Lloyd was not a party to that suit, the filing of such lis pendens notice at that time and place did not preclude him from maturing the legal title to the land in suit here, and then transferring it, as he did;

(3) The recording of the abstract of the Roene Cage v. J. E. Sawhill and W. B. Lewis judgment on September 29 of 1928, after such two vendor lien notes had been bought by Lloyd on May 4 of 1928, did not impair Lloyd’s legal right to rescind the inhering vendor’s lien contract, upon default in the payment of such notes to himself, and to enforce his attending superior title therein carried against the land in suit;

(4) The sale on October 10 of 1934 of this 20 acres by the sheriff of Galveston County, under alias execution out of such Cage v. Sawhill and Lewis judgment, conveyed only the interest Sawhill and Lewis had in the property on the date of that levy — October 10, 1934.

As supporting conclusions 1 and 2 supra, this court cites these authorities: 43 Tex.Jur. 300; Henderson v. Hawley, Tex.Civ.App., 237 S.W. 341; Smith v. Pate, Tex.Civ.App., 43 S.W. 312; Lander v. Rounsaville, 12 Tex. 195; 41 Tex.Jur. 475; Barker v. Temple Lumber Co., 120 Tex. 244, 37 S.W.2d 721; Pope v. Beauchamp, 110 Tex. 271, 219 S.W. 447; West v. First Baptist Church, 123 Tex. 388, 71 S.W.2d 1090; Prouty v. Musquiz, 94 Tex. 87, 58 S.W. 721, 996; Terrell v. Allison, 21 Wall. 289, 22 L.Ed. 634; 28 Tex.Jur. 330; Notes in 2 L.R.A. p. 49 and cited authorities; R.S. Article 6643 (1925)-and R.S. Article 6643, as amended in 1927, Vernon’s Ann.Civ. St. art. 6643; Hartel v. Dishman, Tex.Civ.App., 116 S.W.2d 891; Sparks v. Taylor, 99 Tex. 411, 90 S.W. 485, 6 L.R.A.,N.S., 381; Fielder v. Houston Oil Co., Tex.Civ.App., 165 S.W. 48.

As supporting conclusions 3 and 4, these authorities are deemed sufficient: Price v. Traders’ National Bank, Tex.Civ.App., 195 S.W. 934; Traders’ National Bank v. Price, Tex.Com.App., 228 S.W. 160; South Texas Lumber Co. v. Nicoletti, Tex.Civ.App., 54 S.W.2d 893; Payne v. Bracken, 131 Tex. 394, 115 S.W.2d 903; Ilse v. Seinsheimer, 76 Tex. 459, 13 S.W. 329; Allday v. Whittaker, 66 Tex. 669, 673, 1 S.W. 794; Michael v. Knapp, 4 Tex.Civ.App. 464, 23 S.W. 280; White v. Provident National Bank, 27 Tex.Civ.App. 487, 65 S.W. 498.

Without further discussion, the judgment will be affirmed.

Affirmed.

On Appellant’s Motion for Rehearing.

Appellant’s motion for rehearing, ably and earnestly presented by its learned lady-lawyer, Lynne Tamborello, who has more than once graced these drab precincts to the benefit of this Court in reaching its determinations, has been carefully considered; neither was there “a hasty and ill-considered decision” originally rendered. On the contrary, the learned trial court is shown to have spent well-nigh one full month in hearing and determining the cause there, while here on the appeal similar mature consideration has been given the review of its decision.

Nor will this court venture a jousting with appellant’s counsel over her “philosophy of the law”, since, in its opinion, as applied to this piece of practical litigation, the philosophy of the facts as found by the trial court overrides it at all events.

Those facts — at least the controlling ones — are thus again, epitomized, and in no material respect successfully attacked by appellant, in the appellee’s brief:

“(1) Fruit and Fruit executed a warranty deed to W. B. Lewis, on April 25, 1928, conveying the property in question, together with other property.
“(2) On April 28, 1928, W. B. Lewis, et ux, executed a warranty deed to the property m question, together with other property to J. E. Sawhill, reciting that part of the consideration was evidenced by two vendor’s lien notes in the principal sum of $5,000.00, each, signed by J. E. Sawhill and payable to the order of W. B. Lewis.
“(3) On April 28, 1928, by a written transfer executed by W. B. Lewis et ux., said two vendor’s lien notes, aggregating $10,000.00, were transferred to Gray Realty Company, reciting a payment of $10,-000.00 in cash for said notes.
“(4) On May 4th, 1928, by written transfer, said two notes aggregating $10,-000.00 were transferred by the Gray Realty Company to R. E. R. Lloyd et ux., reciting a cash consideration of $10,000.00.
“(5) On May 29th, 1928, T. A. Smith filed suit in the District Court of Harris County, Texas, against W. B. Lewis and J. E. Sawhill, charging fraud, but this suit did not involve the property in controversy.
“(6) On August 1, 1928, W. B. Lewis filed his answer and cross action in this suit in Harris County, Texas, and made W. C. Gray and the Gray Realty Company a party thereto and mentioned this property in controversy in said pleading.
“(7) On November 15, 1928, W. B. Lewis caused a lis pendens notice to be filed in Galveston County, Texas, describing in it the property in controversy, and reciting that the defendants in said suit in Harris County, Texas, were Gray Realty Company and W. C. Gray.
“(8) On December 6, 1928, R. E. R. Lloyd filed suit in Galveston County, Texas, on the two notes aggregating $10,-000.00, because of default in payment of semi-annual interest.
“(9) On January 12, Í929, Lloyd obtained judgment against Sawhill on his amended petition, wherein he rescinded the sale and obtained the' title and possession of the property in controversy.
“(10) On February 14, 1929, Lloyd et ux. conveyed the property in controversy to J. M. Lowry, under whom appellee, Elbert Ware, claims title by regular conveyances.
“(11) On March 16, 1929, Lloyd and wife, are for the first time, made parties to the T. A. Smith suit in Harris. County, Texas.
“(12) On November 4, 1930, Lloyd and wife filed a disclaimer in said T. A. Smith suit in -Harris County, Texas, and alleged that they paid $10,000.00 in cash for said two vendor’s lien notes, but had sold said property before they were joined in said suit to J. M. Lowry.
“(13) On, November 4, 1930, judgment was entered in the T. A. Smith case in Harris County, Texas, in favor of M. J. Huggins, mother of W. B. Lewis, as to the property in question. It is noteworthy that R. E. R. Lloyd and wife were dismissed, and no costs assessed against them in this case.”

Upon those facts alone, it is this Court’s reiterated conclusion that no other judgment could have been properly rendered than the one here challenged.

Neither is it material that this Court, following a like inadvertence in the ap-pellee’s brief, cited in its original opinion these three cases, the first two of which have been reversed by the Supreme Court and writ of error granted in the third one, to-wit: Smith v. Pate, Tex.Civ.App., 43 S.W. 312, Fielder v. Houston Oil Co., Tex.Civ.App., 165 S.W. 48, and Hartel v. Dishman, Tex.Civ.App., 116 S.W.2d 891.

On the reconsideration, those three citations have been eliminated from the original opinion, but in all other respects this Court is constrained to leave it unchanged.

The motion for rehearing will be refused.


author: JACKSON, Chief Justice.

text:
    COMMERCIAL STANDARD INS. CO. v. FIRST STATE BANK OF VERNON et al.
    No. 5169.
    Court of Civil Appeals of Texas. Amarillo.
    June 3, 1940.
    Rehearing Denied July 1, 1940.

      Ned McDaniel and Edwin Luecke, both of Wichita Falls, for appellant.
    Berry, Warlick & Bunnenberg and Storey, Storey & Donaghey, all of Vernon, for appellees.
   JACKSON, Chief Justice.

The record shows that on June 9, 1938 A. H. Smith executed his promissory note’ for the sum of $351, payable to the First State Bank of Vernon, Texas, or order in twelve equal monthly installments of $29.25 each, and of even date therewith executed a chattel mortgage on a 1937 Ford V-8 truck to secure the payment of the note. On September 19, 1938 the Commercial Standard Insurance Company in consideration of the payment of a premium of $30.15 issued and delivered to A. H. Smith its policy on the truck insuring him against loss by fire in the sum of $350 for the period of one year and providing that any loss on the truck should be payable to. the First State Bank as its interest might appear. Smith paid the monthly installment of $29.25 due on July 9th and August 9th, respectively, but thereafter defaulted and made no other payments.

On February 23, 1939 the First State Bank of Vernon, hereinafter called the bank, instituted this suit in the County Court of Wilbarger County against A. H. Smith, hereinafter called the insured, on the note for $351 and to foreclose the chattel mortgage on the truck, and against the Commercial Standard Insurance Company, hereinafter called the insurer, to recover as mortgagee under the loss payable clause in the policy the sum of $350.

The bank alleged the ownership of the truck in the insured, the note, the mortgage, the two payments, the default, the issuance of the policy by the insurer, the loss payable clause in its behalf contained therein; that the bank and insured. had duly performed all of the conditions required of them or either of them by the terms of the policy; that. on September 23, 1938 the truck was totally destroyed by fire; that notice and proof of loss had been given, demand for payment made, the refusal to pay, and sought judgment .against the insurer and the insured jointly and severally for the sum of $350 and costs.

The insured answered by general demurrer, special exceptions, general denial and adopted as his answer the allegations in the bank’s petition.

The insurer answered by general demurrer, general denial and alleged as a defense that under the declaratory provisions in the contract of insurance the injured was required to inform the insurer whether within a year immediately preceding the issuance of its policy any other company had cancelled any policy covering the truck; that the insured represented that no other policy had been cancelled covering the truck during such period when in truth and in fact one or more policies had been issued and cancelled by other insurance companies, all of which was known to the bank and the insured or in any event they had full opportunity to know thereof and had the insurer been so informed it would not have issued the policy sued on; however, if mistaken as to the effect of such misrepresentations on the right of the bank then, in the alternative, insurer prayed for judgment against the insured for any sum adjudged against it in favor of the bank.

A jury was impaneled, selected and ■sworn but at the conclusion of the testimony the court peremptorily instructed the jury to find for the insured against the insurer on its cross-action and for him upon his action against the insurer and in favor of the bank against the insured and the insurer jointly and severally. The jury answered in compliance with these instructions and a judgment was rendered that the bank recover against the insured and the insurer jointly and severally the' sum of $324.86 with interest from date until paid at the rate of 10% per annum, and that the insured on his action against the insurer recover the sum of $25.14 with interest from the date of the judgment until paid at the rate of 6% per' annum, together with costs, from which judgment this appeal is prosecuted.

The provisions of the policy material to a consideration of this appeal are:

(Under the head Declaration)
“The insurance afforded is only with respect to such and so many of the following Coverages as are indicated by a specific premium charge or charges' set opposite thereto. The limit of the Company’s liability against each such Coverage shall be as stated herein, subject to all of the terms of the policy having reference thereto. * * *
* * * * *
“The automobile is fully paid for by the Named Assured and there is no lien, mortgage or other encumbrance thereon, except as follows: Note of $351.00 payable monthly. * * *
“Subject to all the terms of the policy, all of which are made a part of this Item, loss, if any, under Agreements C * * *, payable as interest may appear to the Named Insured and First State Bank, Vernon, Texas.
\ ⅝ # ⅜ $ *
“No automobile insurance has been can-celled by any Company during the past year except as herein stated nil.
*****
“This policy is made and accepted subject to the provisions, exclusions, conditions and declarations set forth in this entire policy * * *.
“This Company’s liability for loss or damage to the automobile shall not exceed the actual cash value thereof at the time any loss or damage occurs, and the loss o,r damage shall be ascertained or estimated accordingly, with proper deduction for depreciation however caused * * *.
“In the event of any loss or damage, whether insured against hereunder or not, the Insured shall protect the property from other or further loss or damage, and any such other or further loss or damage due directly or indirectly to the Insured’s failure to protect shall not be recoverable under this policy.
* * * ⅜
“By acceptance of this policy the Named Insured agrees that the statements in the Declarations are his agreements and representations, that this policy is issued in reliance upon the truth of such representations, and that this policy embodies all agreements existing between himself and the Company or any of its agents relating to this insurance.
* • * * * *
“This entire policy shall be void if the Insured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof; or in case of any fraud, attempted fraud, or false swearing by the Insured, touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”

The insurer assails as error the action of the court in peremptorily instructing a verdict against it because he contends that the testimony presents for the jury a fact issue as to whether a policy issued by some other insurance company had been can-celled within a year next preceding the issuance of the policy here involved.

We believe the testimony sufficient to raise the issue, if available to the insurer as a defense but we are of the opinion that such issue was immaterial since there is nothing in the record to show that any representation or violation of any declaratory provision of the policy contributed to bringing about the destruction of the truck.

Article 4930 of Vernon’s Annotated Civil Statutes reads as follows: “No breach or violation of the insured of any of the warranties, conditions or provisions of any fire insurance company, contract of insurance or application therefor, upon personal property, shall render void the policy or contract, or constitute a defense to a suit for loss thereon, unless such breach or violation contributed to bring about the destruction of property.”

If the insurer should offer testimony tending to show that such representation and violation of the provisions of the contract contributed to the destruction of the property it would present a fact issue between the insurer and the insured to be determined by the jury.

Article 4931 of Vernon’s Annotated Civil Statutes reads as follows: “The interest of a mortgagee or trustee under any fire insurance contract hereafter issued covering any property situated in this State shall not be. invalidated by any act of. neglect of the mortgagee or owner of said described property or the happening of any condition beyond his control, and any stipulation in any contract in conflict herewith shall be null and void.”

Under this statute obviously such issue would be no defense to the cause of action alleged by the bank since admittedly it was the mortgagee. Girard Fire & Marine Ins. Co. v. Farmer, Tex.Civ.App., 36 S.W.2d 282, affirmed by the Commission of Appeals in 53 S.W.2d 1016. See also Universal Automobile Ins. Co. v. Morris Finance Corporation et al., Tex.Civ.App., 16 S.W.2d 360; Camden Fire Ins. Ass’n v. Harold E. Clayton & Co., 117 Tex. 414, 6 S.W.2d 1029.

The insurer challenges the action of the court in directing a verdict against it since the policy limits the liability therein to the actual cash value of the truck at the time the loss or damage occurred and no certain or conclusive proof was offered of the amount of the loss or damage to the truck. The insurer requested special issues on the value of the truck immediately prior, to and immediately after the fire, which were refused. The cashier of the bank testified that when he made the loan for the bank he examined the truck and in his opinion it had a cash market value at that time, some ten weeks before the fire, of $450 or $500. The insured, the owner, testified that the truck was in a wreck after he purchased it but that he had it repaired and, in his opinion, it had a cash market value at the time of the fire of $450 to $475 and that it was of no further use as a truck. Mr. Shivers testified that he sold the truck to the insured for about $450 and he saw it after, it had been wrecked but before it was repaired and it was worth from $250 to $275 but if properly repaired it might be worth $450. The cashier of the bank and the insurer were unquestionably interested witnesses. The policy stipulated that the insurer’s liability for loss or damage to the truck should not exceed the actual cash value at the time the loss or damage occurred and that subject to all the terms of the policy any loss by fire was payable to the bank as its interest appeared.

In Gulf, C. & S. F. Ry. Co. et al. v. Davis, Tex.Civ.App., 225 S.W. 773, 775, the court said: “It is a rule of law, too well settled to require citation of authority, that the jury,.being the sole judges of the credibility of the witnesses and the weight to be given their testimony, are not bound by the statements of interested witnesses, even though they may be undisputed by the testimony of others. It is the peculiar province of the jury to examine such testimony in the light of all the facts and circumstances of the case, and to give such weight to the same as they may consider proper. It is also settled law that where a fact is sought to be established by opinion evidence, not amounting to the certainty of positive proof, although not disputed by other evidence, the jury are free to give such weight to the same as in their judgment it may be entitled to. We think these rules are specially applicable in a case like this, where the evidence is in some respects conflicting, and where the proof in part proceeded from an interested witness and in part from other witnesses, whose opinions seem lacking in positiveness, or where the facts upon which they are based in the judgment of the jury might be inadequate.”

In Simmonds et al. v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332, 334, in an opinion by Commissioner Smed-ley, the above holding is approved, many authorities reviewed, and the court concludes that: “It is settled by th'e authorities that the jury in determining facts is not bound by the opinions of witnesses.”

It' will be noted that the judgment in favor of the bank, together with the judgment in favor of the insured, was for the sum of exactly the face of the policy, $350. A jury could have, under the testimony, found a smaller amount.

The bank contends that the provisions of the policy limiting the liability of the insurer to the actual cash value of the property destroyed or damaged is not applicable to the amount it may recover since article 4931, supra, constitutes a part of the contract between it and the insurer and the agreement between them was that the $350 as to them was a liquidated demand. We do not accede to this construction of the statute and the policy. The bank in support of this contention cites Home Ins. Co. v. Boatner et al., Tex.Civ.App., 218 S.W. 1097, and Norwich Union Fire Ins. Soc., Limited, v. Citizens’ Building & Loan Ass’n, Tex.Civ.App., 7 S.W.2d 144. Each of these cases, it will be observed, related to improvements on land and was therefore not insurance on personal property, and the property loss was total. Article 4929 of Vernon’s Annotated Civil Statutes makes the amount of the policy on such property a liquidated demand when the loss is total but provides that the article has no application to personal property.

The bank also contends that' the evidence was sufficiently definite and certain to establish the amount of the loss and dam-, age at the time of the fire.

Two of the witnesses were interested parties and in addition to the uncertainty and conflict in their opinions the testimony shows without controversy that after the fire the truck had a junk or salvage value, the amount of which is not shown.

In 13 Tex.Jur. 152, para. 65, the author says that the measure of damages for personal property is the difference between the market value immediately before and immediately after the destruction or injury thereto provided there is a market valué, which is apparent from the record in this case.

In Whitley v. Kinsel Motor Co., Tex.Civ.App., 94 S.W.2d 202, it is held that the difference between the market value of an automobile before it was wrecked and its market value after the wreck was the proper measure of damages. In Anderson et al. v. Reichart et al., Tex.Civ.App., 116 S.W.2d 772, the holding is to the same effect.

In Webb-North Motor Company v. Ross, Tex.Civ.App., 42 S.W.2d 1086, it is held that where the testimony is conflicting as to salvage value the issue should be submitted to the jury.

This assignment is sustained.

The insurer complains of the refusal of the court to permit it to propound leading questions to the opposite parties who were unfriendly and adverse witnesses whom it had placed on the stand. Without entering into a discussion of this contention we call the attention of the court to article 3769c of Vernon’s Annotated Civil Statutes.

It is elementary that all fact issues when the case is tried to a jury should be submitted to it for determination unless such issue is abandoned or waived.

The judgment is reversed and the cause remanded.


author: PER CURIAM.

text:
    ARCOLA SUGAR MILLS CO. et al. v. HOUSTON LIGHTING & POWER CO. et al.
    No. 11138.
    Court of Civil Appeals of Texas. Galveston.
    Aug. 1, 1940.
    C. I. McFarlane and’ Walter F. Brown, both of Houston, for relators.
    Tom Martin Davis, of Houston, for respondents.
   PER CURIAM.

The application of petitioners herein for the writ of mandamus, together with the answers of the respondents thereto, as well as the written arguments of both sides, having been this day considered by this court, and the court, after such hearing and consideration, not being clearly of opinion that — upon the facts stated in the petition — the prayed-for writ should be awarded, but, on the contrary, being of opinion that — at best — no right either upon the law or the facts is shown in the petitioners to such writ, it is hereby refused.


text:
    TEXAS EMPLOYERS INS. ASS’N v. MITCHELL.
    No. 5133.
    Court of Civil Appeals of Texas. Amarillo.
    March 18, 1940.
    On Rehearing June 10, 1940.
    Rehearing Denied July 1, 1940.

      T. R. Boone, of Wichita Falls, for appellant.
    Johnson & Oliphant, of Dallas, for ap--pellee.
   JACKSON, Chief Justice.

This suit was instituted by M. Mitchell, the appellee, on November 8, 1938, in the District Court of King County against the Texas Employers’ Insurance Association, the appellant, to set aside the decision of the Industrial Accident Board refusing his claim for compensation and to recover compensation for accidental injuries he claims to have sustained on December 11, 1932, while in the employ of the Bull Stewart Equipment Company, which he says carried insurance with appellant for the protection of its employees.

He alleged that he was totally and permanently disabled or in the alternative partially disabled by an injury he received on December 11, 1932; that he filed his claim within six months after he was injured but if he did not good cause existed for not doing so which continued until his claim was filed. The good cause asserted is that he believed at the time of the injury he would soon recover'therefrom, that his disability would neither be serious nor permanent and that after he learned he had been seriously and permanently disabled he thought such disability was the result of disease until just prior to filing his claim.

By agreement of the parties the cause was transferred from the District Court of King County on March 27, 1939, to the District Court of Cottle County.'

On April 15, 1939, the appellant answered by general demurrer, general denial, alleged that if appellant is suffering any incapacity it is due to disease and infections for which it is not liable and denied under oath that appellee gave notice to his employer, Bull Stewart Equipment Company, within thirty days from the time he received his injury or filed a claim for compensation with the Industrial Accident Board within six months from the date of the accidental injury he alleges.

The trial was begun on April 17, 1939, and 'On the next day the appellee, to have the pleading correspond to the evidence, with leave of the court filed a trial amendment in which he pleaded that he was an employee of the Bull Stewart Equipment Company and an employee of the Safety Convoy Company, both engaged in the same business of transporting automobiles by trucks; that a majority of the stock in each company was owned by the same stockholders ; that both had offices in the same building and had the same address; that the insurance policy' issued by appellant covered the employees of both of said companies and the trial amendment was intended to be considered with and in addition to the allegations in the original petition.

The appellants filed numerous exceptions to the trial amendment the effect of which was that the two alleged employers were separate and distinct corporations under the record; that the claim filed by appellee with the Industrial Accident^ Board asserted that he was in the employ of the Bull Stewart Equipment Company when injured but was, in fact, under the record, in the employ of the Safety Convoy Company; that the Board had never considered ap-pellee’s claim for compensation with the information as to whom the true employer was; that the true employer had never been notified that a claim had been filed and the district court had no jurisdiction to pass upon the award or the case until the question of appellee’s claim was determined by the board after having been furnished with the name of the true -employer. The appellant denied under oath that the Bull Stewart Equipment Company and the Safety Convoy Company were one and the same party or that they were engaged in the same business. These objections to the trial amendment were overruled, to which action of the court appellant excepted

. In response to special issues submitted the jury found, in effect, that appellee believed that the disability he suffered was the result of disease not caused by the injury until immediately before he filed his claim for compensation; that in so believing he acted as a person of ordinary care and prudence would have acted under similar circumstances; that he sustained personal injuries to his back in the lumbar region about December 11, 1932; that such injury did not result in total incapacity but that he did sustain partial incapacity and that such is permanent; that the appellee has or will sustain partial permanent incapacity to the extent of 50%; that it would be just and fair to both parties to fix the average weekly wage of appellee from January 11, 1931, to January 11, 1932, at $25 per week; that he was entitled to a lump sum settlement; that his incapacity was not the sole result of disease.

Upon this verdict the court rendered judgment in favor of appellee setting aside the award of the Industrial Accident Board and decreed that he was entitled to recover 'the sum of $7.50 per week for 300 weeks beginning December 11, 1932, from which judgment this appeal is prosecuted.

The appellant by proper assignments contends that appellee having claimed before the Industrial Accident Board that his employer was “Bull Stewart Equipment Company” and having obtained the ruling of the Board thereon, he was not entitled to recover in court upon the theory that he was in the employment of “Safety Convoy Company” as this issue of the “course of employment with the Safety Convoy Company” was' never passed upon by the Industrial Accident Board and therefore the District Court was without jurisdiction of the suit.

The record shows that appellee stated in the claim filed with the Industrial Accident Board that he received his injuries “while in the course of my employment for Bull Stewart Equipment Company of Dallas;” that no claim was ever filed with the Board stating that appellee was employed by the Safety Convoy Company; that the name of the true employer was disclosed on the trial of the case in District Court and appellee by trial amendment for the first time asserted he was in the employment of both companies.

In support of the jurisdictional question presented appellant relies on the holdings in Associated Employers’ Reciprocal v. Griffith et al., Tex.Civ.App., 264 S.W. 346; Griffith v. Associated Employers’ Reciprocal et al., Tex.Civ.App., 10 S.W.2d 129; White v. United States Fidelity & Guaranty Co., Tex.Civ.App., 45 S.W.2d 756; Traders & General Ins. Co. v. Garry, Tex.Civ.App., 118 S.W.2d 340. Each of these cases except the Garry case, supra, was disposed of in the appellate court before article 8307b, Vernon’s Ann.Civ.St., became effective. The record in the Garry case in which writ of error was granted fails to disclose when the case was tried in the district court but since article 8307b is not discussed or mentioned in the opinion we shall assume that the trial was had prior to the effective date of said article.

In Traders & General Ins. Co. v. Belcher, Tex.Civ.App., 126 S.W.2d 35, 37, writ denied, it is held: “Article 8307b, Acts 1937, c. 261, p. 535, relating to presumptions on appeal from the Industrial Accident Board are not applicable here since said Act became the law after the appeal from the board and trial of this cause.”

Article 8307b is as follows:

“In the trial of any case appealed to the court from the board the following, if plead, shall be presumed to be true as plead and have been done and filed in legal time and manner, unless denied by verified pleadings :
“(1) Notice of injury;
“(2) Claim for compensation;
“(3) Award of the board;
“(4) Notice of intention not to abide by the award of the board;
“(5) Filing of suit to set aside the award.
“Such denial may be made in original or amended pleadings; but if in amended pleadings such must be filed not less than seven days before the case proceeds to trial. In case of such denial the things so denied shall not be presumed to be true, and if essential to the case of the party alleging them must be proved.”

This statute became effective ninety days after May 22, 1937, and was in force at the time of the trial of the instant case. The Safety Convoy Company was notified of the injury, but appellant denied under oath that appellee gave notice to the Bull Stewart Equipment Company within thirty days from the time he was injured or filed a claim for compensation with the Industrial Accident Board within six months from the date of the alleged injury, denied that the Bull Stewart Equipment Company and the Safety Convoy Company were one and the same party or that they were engaged in the same business, but did not ■deny under oath that any claim for compensation was filed.

The assignment challenging the jurisdiction of the court is overruled.

The appellant assails as error the action •of the court in refusing to direct a verdict in its behalf inasmuch as the testimony is ■insufficient to support the finding of the jury that good cause existed for the failure of appellee to file his claim within six months and that in so failing he acted as .a person of ordinary care and prudence under the same or similar circumstances;

The appellee claimed that he received his injury on December 11, 1932. The record shows that he filed his claim with the Industrial Accident Board on July 28, 1938, hence there elapsed from the time of the injury until he filed his claim five years, seven months and seventeen days.

The appellee testified in substance that he and two other men, on December 11, 1932, were on the road from Dallas to Lubbock each driving a truck. The roads were slip-, pery, and to keep one of the trucks from slipping into the ditch by the roadside he was pushing on the side of the truck with his shoulder, but the truck slipped and did something to his back which caused him to suffer immediate pain. He drove the truck on to Lubbock and also on the return trip to Dallas, and when he arrived his back •was paining him. He went home; his wife rubbed it with liniment and put hot cloths on it; he went to bed where he remained for a couple of days then reported to the Safety Convoy Company and was sent by it to Dr. Riddler, the appellant’s ■physician, who examined him and had an X-ray picture made and advised him there was nothing wrong with his back. On account of this injury he did not work for some two to four weeks then began again ; made two or three trips with the truck but had trouble with his back, then quit or was discharged because of his inability to work and went into the grocery business, which he is still conducting with the assistance of his wife. He also had a filling station a while and for some six months previous to the trial, in addition to the grocery store, - operated a skating rink. About six months . after he was injured he realized his back • was in a bad condition. Every time he lifted anything heavy he had trouble and had never since been able to do any manual labor that required stooping or lifting, but did not connect his trouble with his injury but thought probably it was rheumatism or something of that kind although he had never been troubled with rheumatism prior to his injury. He first learned that his disability was probably caused by the injury he sustained on December 11, 1932, in June, 1938, when so advised by Dr. Crawford. He hired Johnson & Oliphant, attorneys, to represent him and they filed his claim on July 28, 1938. He consulted six or seven doctors before he was examined by Dr. Crawford but was never advised by any of them that he had rheumatism or that his trouble was caused by his teeth, tonsils or local infection. He knew there was something the matter with his back after December 11th, and some six months subsequent to that time he could not secure or hold a job, could not do manual labor, no one told him he had no claim or advised him not to file a claim. Dr. Riddler, the physician of appellant, advised him three or four weeks after the injury that there was nothing wrong with his back, that it was just a catch, but appellee knew, he says, he got the catch in the injury and knew that when the doctor told him there was nothing wrong with his back that such statement was not true.

The record in this case discloses that the appellee is thirty-three years of age, possesses average mentality and business ability, as is shown by the businesses which he has conducted since his injury. There is no suggestion in the record that appellee was imposed upon by anyone connected with his employer or anyone connected with appellant or deceived by anyone else relative to his injury or his claim.

In Johnson v. Employers Liability Assur. Corporation, 131 Tex. 357, 112 S.W.2d 449, 450, in passing upon the testimony offered to sustain good cause, Commissioner Martin, speaking for the Supreme Court, said: “If, as found by the jury, the claimant had an injury producing a hernia in December, which appeared immediately and caused pain, it overtaxes human credulity to believe he did not find it out until the following August. About as plausible would be the contention that a claimant lost his forefinger but did not know it until eight months after, when, as here, the testimony shows he was apparently normal and going about his daily life as usual. Here we have the paradoxical situation of a jury knowing he had a hernia, but the party, who bore upon his body the evidence of it, and' who suffered the pain, was without knowledge of that which he could see and feel. It he did not know it by its medical name, he unquestionably knew he had the injury.”

This is not a case where the complainant was not apprized of the injury at the time of the accident nor one that developed entirely after the accident. According to the testimony of appellee the injury was immediately followed by pain in his back. He went to bed for two days when he got home because he was suffering with his back, then consulted appellant’s doctor relative to the pain in his back and was advised there was nothing the matter with his back. The pain grew worse notwithstanding the doctor’s advice, and he quit work in a few weeks because of the condition of his back. About six months after the injury he knew his back was in bad condition, could do no manual labor that required lifting or stooping, knew that what the doctor pronounced a catch was due to the injury to his back. This condition continued for more than five years. He says he probably thought he had rheumatism though he had never had it before he was hurt, was not advised by any of the numerous physicians that it was rheumatism, nevertheless, he states that he never connected his suffering or inability with the injury until in June, 1938 after he had consulted Dr. Crawford. Doubtless, he did not know whether the pain produced by the injury was due to a strain of the muscles, ligaments or tendons or a sprain or fracture of a joint or a vertebra, but obviously, to our minds, a person of ordinary prudence would have connected his pain and inability with the injury he received on December 11, 1932 before five and a half years had elapsed. Texas Employers’ Ins. Ass’n v. McGehee, Tex.Civ.App., 75 S.W.2d 123; Texas Employers’ Ins. Ass’n v. Herring, Tex.Com.App., 280 S.W. 740.

The provision that the employee must make his claim within the time specified in the statute, Vernon’s Ann.Civ.St. art 8307, § 4a, is mandatory, Bailey et al. v. Texas Indemnity Ins. Co., Tex.Com.App., 14 S.W.2d 798, and if he does not the burden is on him to show that good cause existed to justify his failure. This issite depended entirely on appellee’s testimony which is indefinite, uncertain and unsatisfactory. The facts in the record, in our opinion, are conclusive against the statement that the complainant never connected his pain, suffering and incapacity with the accidental injury he received until in June, 1938. The finding that good cause existed in this case for the long delay in filing the claim is an abuse by the jury, we think, of their province as the triers of facts as we judicially know they sometimes do. Kuntz et al. v. Spence et al., Tex.Com.App., 67 S.W.2d 254.

The testimony, .we think, is insufficient to sustain the finding of good cause and the court erred in refusing to direct a verdict in behalf of appellant and to sustain its motion for a judgment non obstante vere-dicto.

The judgment is reversed and rendered.

On Motion for Rehearing.

In the original opinion in this case the court reversed the judgment of the trial court in favor of appellee and rendered judgment against him for appellant.

In his motion for rehearing the appellee strenuously insists that the testimony, considered in the light most favorable to him, is sufficient to support the finding of the jury on the issue of good cause and warrant the judgment of the court in his favor.

We have re-examined the record and concluded that we were in error in rendering judgment against appellee and to that extent the motion for rehearing is granted. In our opinion, a great preponderance of the evidence impels the conclusion that the finding of the jury on the issue of good cause is unwarranted.

In Bankers’ Life & Loan Ass’n v. Chase, 114 S.W.2d 374, 378, this court said:

“It is the duty of this court to set aside a judgment of the trial court when the evidence so greatly preponderates against such judgment that a new trial should be granted in the interest of justice.
“In Logue v. Southern Kansas Ry. Co., 106 Tex. 445, 448, 167 S.W. 805, 806, the Supreme Courts states the law as follows: ‘The rule is that the Court of Civil Appeals may reverse a judgment on the weight of the testimony, but that court cannot render judgment if the evidence, when considered in the light most favorable to the party in whose favor the judgment is rendered, would sustain the judgment of the trial court.’ ”

See also Texas Employers’ Ins. Ass’n v. Bauer, Tex.Civ.App., 128 S.W.2d 840.

The motion for rehearing is granted, the judgment heretofore entered in this court reversing and rendering the cause against appellee is set aside and the judgment of the trial court is reversed and the cause remanded.


author: SMITH, Chief Justice.

text:
    CONTINENTAL PIPE LINE CO. v. GANDY.
    No. 10860.
    Court of Civil Appeals of Texas. San Antonio.
    July 17, 1940.
    Temporary injunction dissolved, and cause in so far as plaintiff prayed for tem.porary injunction dismissed.
    Burney Braly, of Fort Worth, and Boone, Henderson, Boone & Davis, of Corpus Christi, for appellant.
    Keys & Holt, of Corpus Christi, for appellee.
   SMITH, Chief Justice.

Appellee, W. S. Gandy, brought this action for a temporary injunction, and for perpetual injunction on final hearing, restraining appellant, Continental Pipe Line Company, from constructing, maintaining and operating a telephone line along a public highway traversing appellee’s land in Nueces County.

It appears from the record that appellant is a common carrier of petroleum products by pipe line, under authority of the statute, and under like authority sought to erect and operate said telephone line. Arts. 6018, 6019, 6020, R.S.1925. The trial court granted the temporary injunction, which was superseded, and ordered the injunction suspended pending this appeal.

We are of the opinion that the subject matter of this suit, to-wit: appellee’s cause of action for temporary injunction, no longer exists, and that the questions involved therein have become moot, in that it appears from the record that the telephone line in question has been fully completed and is now in operation. It is true, the questions of the character of the highway occupied by appellant’s utility, the nature of appellee’s estate in the land occupied by the highway and appellant’s utility, and the question of damages have not been adjudicated, but insofar as those questions are still in the case they are to be settled in a trial of the lawsuit on its merits.

The preliminary question, however, of whether appellant shall or shall not construct its telephone line and put it in operation is no longer a live subject of. controversy, since those acts have been actually consummated, and are existing facts and this Court may not now, in this proceeding for temporary injunction, say whether those acts were wrongfully committed.

It appears that the proper order to enter in this Court in such case is one dissolving the injunction and dismissing the cause insofar as appellee prays for a temporary injunction, and it is so ordered, at the cost of appellee, who was plaintiff below. Service Finance Corp. v. Grote, 133 Tex. 606, 131 S.W.2d 93; University Interscholastic League v. Sims, 133 Tex. 605, 131 S.W.2d 94; Tritico v. Texas Liquor Control Board, 133 Tex. 388, 128 S.W.2d 379; Spencer v. Steele, Tex.Civ.App., 132 S.W.2d 146.


text:
    GUARANTY SECURITIES CORPORATION et al. v. MARSHALL.
    No. 10965.
    Court of Civil Appeals of Texas. Galveston.
    July 29, 1940.
    For former opinion, see 140 S.W.2d 262.
    Cole, Patterson & Cole, of I-Iouston, for movants, L. O. Tarrant and John Massey.
    Lewis W. Cutrer, of Houston, for respondents.
   PER CURIAM.

In the case of Guaranty Securities Corporation et al., plaintiffs in error v. Marshall, Tex.Civ.App., 140 S.W.2d 262, L. O. Tarrant and John Massey were sureties on the supersedeas bond executed by the plaintiffs in error. As will appear from the opinion in that case, we affirmed the judgment of the trial court as to item No. 1, being for $2,050; and we reversed and remanded the judgment of the trial court as to item No. 2, being for $1,908; and we reversed and rendered the judgment of the trial court as to item No. 3, being for $3,600. Judgment was summarily rendered against the sureties for the sum of $2,050, and our clerk sent a copy of the judgment to the attorneys of both sides on the date judgment was entered. No application for a writ of error to the Supreme Court was filed, and thereafter, in regular course, the mandate on the judgment was regularly issued from this court on June 24, 1940, and filed in the trial court on the next day.

On July 6, 1940, L. O. Tarrant and John Massey, sureties as aforesaid, filed a motion in this court for the recall of the mandate issued by this court, and that this court correct its judgment by vacating so much thereof as awarded summary judgment against the sureties on the super-sedeas bond for the sum of $2,050. The said Tarrant and Massey also have moved for an injunction enjoining the execution of this court’s judgment against the sureties on the supersedeas bond, and. in that connection show that the sheriff of Montgomery County has levied execution on lands belonging to the said Tarrant and will sell the same at execution sale on the 6th day of August, 1940, unless enjoined from so doing.

We have no doubt that Tarrant and Massey are legally bound by the supersedeas bond to pay the amount of the judgment affirmed against plaintiffs in error. In rendering summary judgment against the sureties on the supersedeas bond that they pay the amount of the judgment affirmed against the plaintiffs in error, we necessarily decided that we had the jurisdiction which we exercised. We decline now to reopen the case, after the mandate has been filed in the trial court, to reconsider the judgment rendered by us in said cause. It is not in the public interest that a mandate be recalled, and the judgment upon which it is issued be reconsidered upon grounds which should have been presented, if at all, when the case was before us, and before mandate had issued on the judgment. We therefore, refuse the motion to recall the mandate and to consider the judgment.

Upon the same consideration, it is obvious that the motion for injunction should also be refused, which is accordingly done.


author: MURRAY, Justice.

text:
    COMMONWEALTH CASUALTY & INS. CO. v. WHITE.
    No. 10851.
    Court of Civil Appeals of Texas. San Antonio.
    June 26, 1940.
    Rehearing Denied Aug. 7, 1940.
    Goggans & Ritchie, William P. Goar, and Chrestman, Brundidge, Fountain, Elliott & Bateman, all of Dallas, for appellant.
    Spears, Conger, Baskin & Spears, of San Antonio, for appellee.
   MURRAY, Justice.

This suit was instituted by James F. White against Commonwealth Casualty and Insurance Company, on a health and accident policy, seeking to recover the sum of $1,050 because of his total incapacity and loss of time due to his having developed pulmonary tuberculosis on or about April 13, 1938, and $150 hospitalization.

The cause was submitted to the court without the intervention of a jury upon an agreed written statement of the facts. Judgment was rendered in White’s favor in' the sum of $1,200, from which judgment Commonwealth Casualty and Insurance Company has prosecuted this appeal.

Appellant’s first contention is that the Company is not liable because White, by failing to pay a quarterly premium of $12, which came due on January 10, 1938, caused his policy to lapse for a period of seven days and therefore when he was stricken with tuberculosis on April 13, 1938, his policy had not been in continuous force for the six preceding months. The policy provided that “Disability resulting from tuberculosis * * * shall be covered only if the disease originates after the Policy has been in continuous force for the six (6) preceding months.”

The policy was issued to White on July 10, 1935, and had been continuously in force from that date up until he developed tuberculosis on April 13, 1938, unless the lapsing of the policy from January 10th to 17th, 1938, for tardy payment of quarterly premium had the effect of rendering the policy not “in continuous force.”

The policy also contains the following provision: “Any premium received after the due date may be accepted as a reinstatement, and upon the representation of the insured being in good health and free from any injury or sickness, and in lieu of a health certificate at the time of the Company’s acceptance, but only to cover accidental injury thereafter sustained and such sickness as may begin more than fifteen days after, the date of such acceptance.”

The tuberculosis did not begin until more than fifteen days after the policy was re-instated by the Company’s accepting the' delayed premium on January 17, 1938.

Therefore, the question to be decided is: Was the policy in continuous force for the six months next preceding April 13, 1938? In other words, when the tardy payment of the premium was accepted by the Company, did that have the effect of waiving the forfeiture, or did it have the effect of setting up a new contract of insurance ?

There is a variance between the rules followed in the different states, but it is clear that in Texas the rule is that such acceptance of tardy payments has the effect of waiving the forfeiture and the policy is to be regarded as being in continuous effect. State Mutual Life Insurance Company v. Rosenberry, Tex.Com.App., 213 S.W. 242; Lowry v. Aetna Life Ins. Co., Tex.Civ.App., 120 S.W.2d 505.

Appellant next contends that appellee, White, is not in a position to claim the premium-waiver provision of the policy, as no premium was paid on July 10, 1938, and the policy lapsed on that date and ap-pellee could not claim any benefits for any disabilities continuing after that date.

The premium waiver provision of the policy reads as follows: “When claim for permanent total disability of the Insured, due to bodily injury or sickness covered by this Policy, has been filed and approved while this Policy is in force, there will be no further payments due, but the insured will draw benefits as provided in the Policy.”

The agreed facts as to appellee’s disability are as follows:

“That on April 13, 1938, plaintiff became ill with tuberculosis in his left lung, and plaintiff has, since said date of April 13, 1938, been afflicted with such disease of tuberculosis, and such affliction was continuous until March 13, 1939, and subsequently.
“That plaintiff became totally disabled on April 13, 1938, because of said tuberculosis, and from said date to the date of March 13, 1939, plaintiff, has, on account of such tuberculosis, necessarily suffered total disability and total loss of time.
“That because of such tuberculosis, the plaintiff, on April 13, 1938, became totally disabled and was confined, and has been continuously confined within doors since. said date of April 13, 1938, and until March 13, 1939; and plaintiff has because of said illness from tuberculosis, required, and has received, since April 13, 1938/ to March 13, 1939, regular visits at least once a week, at his place of confinement, by a regular licensed 'physician other than himself or a relative. * * *
“That written notice of the accidental injury was given to the defendant company, within the time required by the terms of the policy; and notice of the illness or disease was likewise given to the defendant company within the time required and specified by the policy.”

This suit was for total disability from April 13, 1938, until March 13, 1939. It was also expressly agreed between the parties that this suit was without prejudice to the rights of the parties for disability existing after March 13, 1939.

The‘agreed statement of facts is sufficient to show that as far as ..this lawsuit was concerned appellee had been totally and permanently disabled, and that such disability had been reported to appellant within the time required by the policy.

It occurs to us that a fair interpretation of this premium-waiver provision is that so long as the insured is totally disabled he will not be required to pay premiums. The provision is put in insurance contracts on the theory that when the insured becomes totally disabled he will in all probability be unable to pay premiums, therefore, they are waived by the company. It is unimportant whether or not the claim for disability had been approved by appellant, the waiver would become operative from the date of the total and permanent disability and not from the date the claim might be approved by the insurance company. State Life Insurance Co. v. Barnes, Tex.Civ.App., 58 S.W.2d 189; Southland Life Insurance Company v. Gatewood, Tex.Civ.App., 115 S.W.2d 723.

We cannot construe this policy as meaning that even though White became totally disabled on April 13, 1938, from a sickness covered by the policy, and although'he filed proper claim for such disability with the company within the proper time, he would nevertheless have to continue to pay his premiums thereafter as they became due, or otherwise the insurance company would be relieved 'from further liability.

The judgment is affirmed.


text:
    H. M. COHEN LUMBER & BUILDING CO. v. McCALLA, Judge.
    No. 11133.
    Court of Civil Appeals of Texas. Galveston.
    Aug. 1, 1940.
    Woodul, Arterbury & Folk and Roy L. Arterbury, all of Houston, for relator.
    Wood, Morrow, Gresham & McCorquo-dale, M. S. McCorquodale, and Sam Levy, all of Houston, for respondent.
   PER CURIAM.

Relator herein sues- the Judge of 'the 127th District Court of Harris County, Hon. Kenneth McCalla, alone, in an original application to this court for a writ of mandamus to compel him to so change the records in his court in cause No. 243,976, wherein Steve Panos is plaintiff, H. M. Cohen Lumber & Building Company, relator herein, is a defendant, H. Charney is a defendant, N. D. Dobbins is a defendant, Maryland Casualty Company is a defendant, and Maryland Casualty Company is a cross-plaintiff, as to reflect that relator’s original motion for a new trial in such cause below was actually filed there on June 6 of 1940, instead of on June 1 of 1940, and to consider relator’s amended motion for a new trial in that cause, which was filed on June 22 of 1940, as a duly and regularly filed instrument in that proceeding.

It is obvious that, the other parties in such cause No. 243,976 are vitally interested in the controversy to which such application for mandamus relates, and that each of them is a necessary party to such a proceeding; wherefore, since no one of such parties is before this court, it becomes plain that the application is fatally defective for the want of them all as the necessary parties thereto.

The petition will accordingly be dismissed, without prejudice to the right of relator to again present the same to this court with all necessary parties included. Williams v. Wray, 123 Tex. 466, 72 S.W.2d 577; Goebel v. Carter, 124 Tex. 314, 77 S.W.2d 215; Kelly v. Lobit, Tex.Civ.App., 134 S.W.2d 428.

Respondent’s motion to dismiss for want of necessary parties granted and petition dismissed.