author: FUNDERBURK,' Justice.

text:
    HAILE et ux. v. FEDERAL LAND BANK OF HOUSTON et al.
    No. 1969.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 5, 1940.
    Rehearing Denied Feb. 2, 1940.

      Y. W. Holmes, of Comaiiche, for appellants.
    Carl Runge and J. V. Wheat, both of Houston, for appellees.
   FUNDERBURK,' Justice.

I. H. Haile and wife, while owning and occupying as their home a certain 156-acre tract of land, acquired a 480-acre tract about two miles distant from the former. Forty-four (44) acres of the 480-acre tract, separated by fences from the remainder, had situated upon it a dwelling house into which the Hailes moved from the 156 acre tract. Subsequently, while occupying the 480-acre tract, for all purposes of a homestead, Haile and wife executed a deed of trust upon it, excepting, however, the 44 acres upon which said dwelling house was located, said 44 acres, with the 156-acre tract upon which they had formerly lived, they declared to be their homestead, and in the deed of trust recited a dedication of the same as such. The Federal Land Bank of Houston, to secure which the deed of trust was executed, upon due foreclosure sale, became the purchaser of the land.

' I. H. Haile and wife brought this suit, being an action in trespass to try title, against the said Federal Land Bank of Houston, and others, to recover 156 acres of the land covered by the deed of trust based upon the claim that the deed of trust was void because the land to the extent of the 156 acres was part of the homestead of the plaintiffs.

Issues were duly joined (1) as to whether the land was part of the homestead of plaintiffs, and (2) if so, whether the plaintiffs were estopped to claim the land as such.

In a non-jury trial the court rendered judgment for defendants and against the plaintiffs, from which the latter have appealed.

It is uncontroverted that the 44 acres upon which the plaintiffs were living, when the deed of trust was executed, was a part of their homestead. Whether ' 156 acres contiguous thereto, being likewise a part of the 480-acre tract, was also a part of the homestead, constituted one of the issues which the plaintiffs had the burden of-establishing. If unjler the evidence such issue was one of fact it was determined against the plaintiffs and the judgment, at least insofar as it is attacked by this appeal, was proper. The judgment was improper only if the 156 acres in suit was, under the un-contradicted evidence, as a matter of law, a part of the homestead at the time of the execution of the deed of trust.

We think the issue was one of fact. It was made an issue of fact in this way. The disconnected 156 acres had been the homestead of plaintiffs. It was still a part of plaintiffs’ homestead when the deed of trust was given, unless it had been abandoned. Whether it had been abandoned was dependent upon the good faith intention of I. H. Haile. The occupancy and use by the Hailes of the disconnected 44-acre tract was, if any evidence, certainly no conclusive evidence of an abandonment of the 156-acre tract as homestead. By changing their actual dwelling place from the 156-acre tract to the disconnected 44-acre tract any question that the 44-acre tract had become part of the homestead was obviated; but such fact alone was no evidence of an abandonment of the homestead as it previously existed. Both facts were entirely consistent. The character of use made of the 156-acre tract after plaintiffs moved from same to .the 44-acre tract is believed to be of no conclusive importance. Even if there was absolutely no use made of it, that did not show conclusively that it had been abandoned as a homestead. To effect that result there would have to be a concurrence of both a cessation of use and the absence of any intention to resume such use. At the time of the execution of the deed of trust in question if a writ of execution had been levied upon the 156-acre tract formerly occupied as the home of plaintiffs, can it be doubted that the plaintiffs could have defeated it by establishing the absence of intention to abandon it? We think not. It is deemed unnecessary to enter upon any extended discussion of the subject. The decision in Hughes v. Wruble, 131 Tex. 444, 116 S.W.2d 368, seems to be conclusive. That was a case wherein the homestead question arose upon a mortgage given while the homestead claimants were actually using the mortgaged property for the purposes of a home. In that respect it was the same as the instant case viewed from the standpoint of the appellants. The proposition was reaffirmed and applied as declared in Carstens v. Landrum, Tex.Com.App., 17 S.W.2d 803, 804, that “where the tangible facts respecting two places are such* that the homestead character will attach to either, to the exclusion of the other, according as the husband and wife intend, a declaration by the spouses of their intentions in this respect may estop them from disputing the truth of the declaration.”

In Texas Pacific Coal & Oil Co. v. Guthrie, Tex.Civ.App., 100 S.W.2d 125, 130, we recognized certain decisions as "apparently supporting the proposition that if a homestead claimant once having a homestead admittedly or conclusively shown, testifies that ever since the cessation of occupancy or actual use thereof as a homestead he has at all times had the intention to again resume such occupancy or use as a home, a question of fact is presented which is required to be submitted to the jury.” Our conclusion that Texas Land & Loan Co. v. Blalock, 76 Tex. 85, 13 S.W. 12, and other, decisions cited, were distinguishable from the cases to which that proposition was applicable was, in effect, overruled by the Supreme Court. Guthrie v. Tex. Pac. Coal & Oil Co., Tex.Com.App., 122 S.W.2d 1049.

It would seem to be a just appraisal of the result of the last named decision that the doctrine of the Blalock case as applicable to the question at issue is now limited to cases wherein there is presented no issue as to the abandonment of a former homestead. In other words, in any case in which the evidence raises any such issue, then also by the same evidence is raised a question of fact as to the homestead character of property actually occupied at the time of the execution of a mortgage thereon.

Being of the opinion that there was no error in the action of the court in any respect of which complaint is made, and that the judgment should be affirmed, it is accordingly so ordered.


source: Caselaw Access Project

author: PRICE, Chief Justice.

license: Public Domain

text:
    COATS et al. v. STEWART et al.
    No. 3886.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 14, 1939.
    Rehearing Denied Jan. 11, 1940.

      Brachfield & Wolfe, of Henderson, for appellants.
    Tom L. Beauchamp, of Austin, and Clifford L. Stone, of Henderson, for appellees.
   PRICE, Chief Justice.

This suit was filed in the District Court of Rusk County on the 19th day of October, 1932, by appellees, as plaintiffs, against W. B. Coats, T. H. Coats, Homer L. Heckford, D. L. Wakeman, and Homer E. Florey, as defendants. Before the trial appellees dismissed their suit as to defendants Florey and Wakeman. The case was submitted to the jury on seventeen special issues and a verdict was returned thereon. On the verdict judgment was rendered by the Court in favor of appellees cancelling a certain mineral deed from appellees to the appellants T. H. Coats and W. B. Coats, and adjudging recovery of $9,858.-62 against said appellants; further, that appellees recover from appellants and defendant Heckford the sum of $1,000. Appellants T. H. Coats and W. B. Coats duly perfected their appeal from this judgment and the case is here for review.

This appeal is from the judgment on the second trial of this case. On the first trial both appellees here and appellants there perfected an appeal from the judgment to the Texarkana Court of Civil Appeals. The judgment was reversed and the cause remanded for a new trial. The basis of the reversal was on argument of counsel on both sides. Other matters were not discussed in the opinion. See Stewart et ux. v. Coats et al., Tex.Civ.App., 91 S.W.2d 421. The pleadings on the two trials were practically' identical, and for a statement thereof we will literally follow that contained in the opinion on the former appeal.

J. H. Stewart and wife, O. J. Stewart,, as plaintiffs in the trial court, sued W. B. Coats, T. H. Coats, and Homer Heckford, seeking to recover of the three defendants the sum of $1,025 alleged to be the balance due plaintiffs as the consideration for the-conveyance of an oil and gas lease executed by plaintiffs and Homer Heckford to J. C. Prine. It was alleged by plaintiffs that they and Homer Heckford were-equally interested in said oil and gas leasehold, and that they joined in the lease with Heckford to Prine; that Heckford represented that the consideration paid by Prine was $2,000, and that he settled with plaintiffs upon that basis, whereas in truth and in fact, they alleged, Prine paid Heck-ford the sum of $4,000. Plaintiffs further alleged that defendants W. B. and T. H. Coats were partners of and interested with Heckford in the transaction, and were liable to plaintiffs for their share of the lease money- unaccounted for by Heck-ford.

Plaintiffs’ petition also sought to cancel a mineral deed executed by plaintiffs, conveying to W. B. and T. H. Coats the one-eighth royalty interest in 6.11 acres of land belonging to plaintiffs, for which W. B. and T. H. Coats paid plaintiffs a consideration of $500. One of the alleged grounds itpon which plaintiffs sought to cancel the royalty deed was that it had not been properly explained to Mrs. Stewart in taking her acknowledgment thereto.

Defendants W. B. and T. H. Coats answered by general denial and a denial under oath of the alleged partnership with Heckford.

This might be added: That appellees sought judgment likewise for the value of the proceeds of the royalty oil from the oil lease sought to be cancelled.

There are two separate causes of action alleged by appellees. We shall first consider the one involving the $1,000 joint recovery against appellants and their co-defendant Heckford.

Appellees employed defendant Heckford, a surveyor, to ascertain by a survey if there was any excess acreage included in the oil and gas lease theretofore made by them as to their homestead. Heckford, as compensation for his services, was to receive one-half interest in seven-eighths of the mineral under any of the excess acreage he succeeded in establishing. He established an excess acreage which was. finally settled at about four acres. Appel-lees conveyed an undivided one-half of seven-eighths of the mineral interest under this excess acreage to H. C. Heck-ford and Wakeman and Florey, Wakeman and Florey having aided Heckford in some of the legal matters involved. Thereafter on the 15th day of September, 1931, appellees, Heckford, Wakeman and Flo-rey executed an oil and gas lease to J. C. Prine conveying the entire seven-eighths mineral interest under this tract of land. The one-eighth mineral interest under this deed or lease remained in appellees.

Appellee J. H. Stewart delivered this lease to Heckford, or in some lawful way it came into his possession. Heckford delivered the lease to Prine, receiving $4,-000 therefor. Out of this $4,000 he paid $1,000 to appellee J. H. Stewart. At the time of this payment representing to Stewart that he had received only $2,000 for the lease. One thousand dollars he gave to his wife; $1,450 he delivered to appellants. The disposition of the balance of $550 does not appear. However, he did not account to Wakeman and Florey, his co-owners, for their interest in the property. Appellees sought recovery of $1,-025 on this transaction from appellants on the theory that in the transaction whereby the lease aforesaid was sold to Prine appellants were partners of Heckford. The exact allegation is as follows: “The said Homer L. Heckford had associated with himself W. B. Coats and T. H. Coats as partners in this transaction.” Thereafter follow allegations of misrepresentation and misappropriation by appellants and Heckford. The portion of the pleading quoted, taken with its context, is the foundation of the legal duty alleged by appellees as owed by appellants to them. It was founded on the alleged relationship between appellants and 'their co-defendant Heckford. This relationship was sought to be submitted to the jury by special issues one and two.

Special issue No. One was as follows: “Do you find from a preponderance of the evidence in this case that T. H. Coats and W. B. Coats were jointly interested with Homer L. Heckford in the contract made with J. H. Stewart and wife, dated September 15, 1931, which purports to convey to J. C. Prine a one-half interest in the seven-eighths mineral lease in and under the land in controversy in this suit ?” To which the jury responded in the affirmative.

Special issue No. Two was as follows: “Do you find from a preponderance of the evidence in this case that T. H. Coats and W. B. Coats were jointly interested with Homer L. Heckford in the ownership óf the oil and gas lease on the land in controversy in this suit at the time of the sale and transfer of same to J. C. Prine?” To which the jury responded in the affirmative.

Appellants make a vigorous attack on the sufficiency of the two issues to submit the relationship as pleaded by appellees as existing between appellants and Heck-ford. It is asserted that the judgment for $1,000 is not supported by the verdict.

Unquestionably the liability of appellants herein depends upon their relationship to defendant Heckford. It might make for clarity here if it be interjected that at all relevant times herein appellants sustained to each other the relationship of partners. The business of the partnership was real estate and consisted in part at least of dealing in oil and gas leases in the neighborhood of the town of Overton, Texas.

If appellants and Heckford were acting together in the sale of the lease to Prine and the payment of the consideration to the parties entitled thereto, there could be but little question as to the liability of appellants for the wrongful acts of Heckford as partner, even though the joint action involved only the sale of this lease. It matters not strictly what their relation be called. If this were established we think liability would be established even though the relationship might be that of partners, joint adventurers or co-conspirators.

Let us analyze the two issues. Special issue No. One does not accurately describe the lease or contract sought to be inquired about. It describes the same as a contract made with J. H. Stewart and wife, dated September 15, 1931, which purports to convey to J. C. Prine a one-half interest in the seven-eighths mineral lease. The mineral lease in question purports to convey a seven-eighths interest in the minerals underlying the land. J. H. Stewart and wife were only among the lessors executing the lease. However, we do not think the jury could probably be misled by this inaccuracy. Homer L. Heckford was unquestionably interested in the lease, in that he was a co-owner with Stewart and wife in the minerals, the subject matter of the lease. Under the evidence the issue does not arise as to whether Heckford or appellants had any interest either legal or equitable in the one-half interest of Stewart and wife. There is no evidence that appellants ever had any interest, either legal or equitable, in the lease or in the seven-eighths of the minerals underlying the land in question.

Now, we think what must have been intended to have been submitted by the issue was, did appellants and Heckford act jointly in the sale of the lease to Prine and collection of the proceeds. But the issue does not call for a finding on this point. No ultimate fact is submitted in the issue. An affirmative finding thereon is as consistent with the non-liability as with the liability of appellants.

Much of what is said applies to special issue No. Two. The only circumstance of much cogency in the record to show appellants’ interest in Heckford’s interest in the oil and gas lease in question is the fact that from the money re'ceived from Prine, Heckford paid to appellants the sum of $1,450. Now, if Heck-ford paid to appellants, as equitable .owners in the lease, more than they were entitled to receive this might be grounds for liability to appellees. This, however, is hot the ground of liability under the allegation of appellees. 41 Tex.Jur., Sec. 235, p. 1038.

As in the case of special issue No. One, we do not think that special issue No. Two submits an ultimate issue or is sufficient basis for a judgment against appellants in favor of appellees. Neither special issue No. One nor No. Two submits an ultimate issue raised by the pleadings. The following cases are deemed to support what we have said in regard to issues Nos. One and Two: Root et al. v. Tomberlin, Tex.Civ.App., 36 S.W.2d 596; Cox v. Bond, Tex.Civ.App., 91 S.W.2d 479, writ dismissed; Republic Production Co. v. Collins, Tex.Civ.App., 7 S.W.2d 187; Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102 S.W.2d 1031.

In view of the possibility of another trial on this feature of this case, we deem it not inappropriate to make a very general suggestion as to the manner as to submission of this issue. If on the next trial the issue arises under the pleadings and evidence as to appellants and Heckford acting together in the sale of lease and the collection and misapplication of the consideration, that this very question be submitted. Should the issue as to the joint misapplication of the sale price so arise,, this should be submitted. ■

We realize that it is undisputed that appellants received $1450 of the money arising from the sale of this lease. The verdict further establishes that no consideration passed between Heckford and appellants. The evidence may be sufficient to support this finding. To say the least, the testimony of appellants and of Heckford was rather hazy and unsatisfactory as to the indebtedness claimed. If these facts give rise to liability it is our view that the pleadings failed to allege a basis therefor. A state of facts to entitle one to recover must have basis in the pleading as well as in the evidence. 41 Tex.Jur., sec. 235, p. 1038; R.S. Art. 2189.

Almost contemporaneously with' the execution and sale of the lease we have heretofore discussed appellees signed a mineral deed purporting to convey to appellants the one-eighth royalty interest held by them in and. to the mineral underlying the tract. The royalty interest sold being the .one reserved in the Prine lease here-inbefore discussed.

Since the 17th day of September, 1931, appellants have collected large sums therefrom from the lessee or his assigns. Appellants paid $500 as consideration for this deed. Upon the delivery of the deed he gave appellee J. H. Stewart a check for $500 signed by appellants. Appellee J. H. Stewart deposited this check in the bank to his wife’s credit. There is some evidence to support the inference that appel-lee’s wife thought this $500 was part of the money derived from the sale of the lease to Prine.

Appellees alleged that the property was their homestead and that appellee Mrs. Stewart had never acknowledged same, and had never appeared for that purpose before the officer purporting to have taken her acknowledgment thereto. Appellees, as we have before stated, sought to have the conveyance set aside and likewise to recover the amounts collected on the royalty interest by appellants. It might be here noted that the acknowledgment of Mrs. Stewart to the conveyance was in due form for a married woman’s separate acknowledgment and purported to have been taken before J. L. Eason, a notary public for Rusk County, Texas, and duly certified to by him as such.

Special issue No. 14 submitted by the court to the jury was as follows: “Do you find from a preponderance of the evidence in this case that Mrs. O. J. Stewart did not appear before J. L. Eason for the purpose of acknowledging the execution of the mineral deed in question to T. H. Coats and W. B. Coats ?”

The answer of the jury thereto was that “she did not.” If this property was the homestead of appellees at the time of the purported conveyance same was ineffective to convey the homestead interest. Vernon’s Ann.St.Const. Art. 16, Sec. 50; R.S. Art. 1300; Sanger et al. v. Calloway et ux., Tex.Com.App., 61 S.W.2d 988.

The issue of whether or not the property at the time of the conveyance was the homestead of appellees was not submitted by the court to the jury. Appel-ants contend that under the evidence the homestead or non-homestead character of the property was for the determination of the jury. Further, it was a vital, ultimate issue, the establishment of which by the appellees was essential to a recovery on this branch of the case; that, the court not having submitted the issue and appellees not having requested the submission thereof, same was waived by the appellees. In other words, lacking a finding by the jury on the issue of- homestead, the verdict is insufficient to support the judgment.

Appellees only contest the premises of the proposition. In reply thereto they urge that the evidence established without dispute that the property in question was their homestead and it was not in this state of the evidence a question for the jury.

Appellants assert that the testimony came from interested witnesses and the issue was for the jury. It is unquestionably true that where the sole evidence <as to the existence of a fact is from an interested witness or witnesses the issue is ordinarily for the jury. For this elementary proposition there is no want of precedent. Pope v. Beauchamp, 110 Tex. 271, 219 S.W. 447, is typical of the long list of cases supporting this general rule. There is no real conflict' in. the cases as to the principle. In the application of the principle conflict has arisen and perhaps will continue to occur. The exact quantum of proof to raise or establish an issue is not capable of exact determination. In the last analysis it must be determined by human opinion. This opinion should be guided and controlled by certain well-known legal principles.

A party having the burden of proving an issue may fail if interest in the issue discredits his testimony. However, there is an exception to the rule that the testimony of interested witnesses may be disregarded as proof of a fact. One is where, for instance, the opposing party, present in court to dispute or offer contradictory testimony, fails to do so. Brown v. McKinney, Tex.Civ.App., 208 S.W. 565, writ refused.

If the testimony is clear and uncon-tradicted and if false it is easy to obtain testimony contradictory thereof, the rule does not necessarily apply; likewise does not a'pply where the uncontradicted testimony of the interested party is corroborated by the facts as evidence. Dunlap v. Wright, Tex.Civ.App., 280 S.W. 276; Houston v. Holmes, Tex.Civ.App., 262 S.W. 849; First National Bank v. Humphreys, Tex.Civ.App., 166 S.W. 53; Sigmond Rothschild Co. v. Moore, Tex.Civ.App., 22 S.W.2d 533; Great Southern Life Ins. Co. v. Dorough, Tex.Civ.App., 100 S.W.2d 772, and authorities there cited; Homestead B. & L. Ass’n v. Youngblood, Tex.Civ.App., 111 S.W.2d 827; Jerke v. Delmont State Bank, 54 S.D. 446, 223 N.W. 585, 72 A.L.R. 27; Taylor-Link Oil Co. v. Anderson, Tex.Civ.App., 92 S.W.2d 499.

The home of appellees was in a very short distance of the town of Over-ton. Appellants’ agent in purchasing this property had surveyed same for appellees a short time before. Appellants had acted as brokers for appellees in the sale of other royalty interests under their homestead. Appellants’ counsel failed to even cross-examine appellees on their testimony on the homestead issue. This is the second trial of this case and appellants had ample time and opportunity to investigate the truth or falsity of the testimony of appellees on the homestead issue. The maintainance of a home, especially where a large family of children are reared, is an open, visible state of facts, the proof or disproof of which is easy. According to the testimony of appel-lees they had occupied this property as a home for something over thirty-seven years. The testimony is absolutely uncon-tradicted. If one reads the testimony in this case in the light of the surrounding circumstances, it cannot but carry conviction that the question of homestead was too clear to be an issuable fact. The whole theory of the trial before was that the property was the homestead. We think there is no merit in this proposition.

It is urged that appellees have never offered to do equity by tendering back the $500 paid by appellants for the deed. They pleaded no such defense. Further, this property being a homestead, appellee Mrs. Stewart never having appeared before the notary, the deed was void. It was not necessary to go into equity to have same set aside. Wheelock v. Cavitt, 91 Tex. 679, 45 S.W. 796.

Appellants never sought to have the said sum of five hundred dollars off-set against their liability for the royalty oil.

By assignments of error numbers ten and eleven the action of the trial court is' assailed in allowing counsel for appellees in the examination of appellant W. B. Coats, to read from the testimony of W. B. Coats. One proposition is made under these two assignments, the seventh, which is as follows : “The testimony of a witness on a previous trial is admissible only for the purpose of impeaching such witness or refreshing his memory and cannot be used as original evidence.”

Neither the assignment, the proposition, nor the statement under the proposition, shows wherein appellants have been injured. W. B. Coats was a party. If damaging admissions were made in his former testimony, the appellees were entitled to prove same; if the former testimony was in accordance with the testimony given on the trial appellants were not harmed thereby. We believe no reversible error is shown as to these assignments.

Appellants’ bill of exception No. 2, omitting the formal parts thereof, was as follows: “Be it remembered that upon the trial of the above styled and numbered cause in this court on the 6th day of October, 1938, that C. L. Stone, one of the attorneys for the plaintiffs, in his opening argument to the jury said: ‘There is no controversy over the fact that Jim Eason went to the home of J. H. Stewart, and that fact is admitted, but that he did not tell her the purpose for him being there; and at the last trial of this case they had Jim Eason present and Heckford was missing, now at the present trial Eason is missing and Heckford, against whom a default judgment was taken in the former trial of this case, is here pinch-hitting for Eason.’ To which remarks the defendants then and there excepted because the same was prejudicial and inflammatory; and further that such argument was not based upon the record in this case as the record fails to show that any default judgment was ever taken against the said Heckford, and which exception was by the court overruled; and the defendants W. B. and T. H. Coats here now tender this their bill of exception to and on account of said ruling of the court and ask that the same be approved, signed and filed as a part of the record in this cause.”

It is asserted that this argument violated three of the rules governing argument: “(1) Stating facts outside the record; (2) referring to the absence of 'witness whom the evidence showed was not available; and (3) telling the jury the result in a previous trial.”

The former default judgment in the case was not introduced in evidence. Appellants, however, did offer in evidence a judgment of the County Court wherein judgment was rendered against Heckford in favor of Florey and Wakeman. Many of the same issues were involved as were involved in the $1,000 cause of action asserted herein by appellees. In the County Court case the witness Heckford admitted here that he had sworn falsely. Heckford, however, gave strong testimony, if believed, showing that Mrs. Stewart did appear before the notary. He was not, however, called as a witness by appellants. Appel-lees called him as a defendant adversely interested to them under the right given by the statute. Article 3769c, Vernon’s Ann.Civ.St. art. 3769c. Appellants did not examine the witness as to the facts surrounding the taking of the purported acknowledgment of Mrs. Stewart. We cannot say, in view of all of the circumstances, the fact that a judgment by default had been taken against Heckford could have injuriously affected his credibility as a witness. In the light of the record we do not see how appellants were prejudiced by the argument as to Eason. The evidence was that the whereabouts of Eason were unknown. No criticism of defendants could be implied for their failure to call Eason as a witness. Under our interpretation of the argument none was made. Eason did testify as a witness for appellants at the former trial.

It is to be borne in mind this argument was part of the opening argument and appellants had an opportunity to reply thereto. We have no doubt they availed themselves of this opportunity. Taking the whole record into consideration we believe this argument does not present error of sufficient gravity as to justify a reversal of the case. However, we do not approve the argument.

The amount of money received by appellants from the royalty interest under the deed was not submitted to the jury in the charge of the court. Appellants’ sixty-first assignment of error complaining of this matter is as follows: “The court erred in rendering judgment for plaintiffs for the sum of $9858.62 against the defendants W. B. and T. H. Coats as royalty collected under the mineral deed for the reason that there was no legal and competent evidence showing that defendants had received any such sum upon which the court could base such a finding.”

The proposition urged thereunder is as follows: “There was no evidence to support the court’s finding that defendants, W. B. Coats and T. H. Coats had received $9,858.62 from the royalty interest in controversy and the court erred in rendering judgment against them in that amount.”

No other assignment is briefed on this point. We take it that under the assignment we are only called upon to consider the sufficiency of the evidence to support the finding, and not that the evidence was insufficient to have the effect of absolute proof.

Appellant W. B. Coats testified that up to the 21st day of November, 1936, he had received on the royalty interest' $4,929.31; that that was one-half' of the royalty; that since said date the royalty payments had been tied up in the pipe lines. Appellants jointly claim the one-eighth royalty interest and so claim same here. We deem the evidence ample to support the finding.

It is ordered that the judgment be reversed and remanded as to the $1,000 recovery against appellants; that that portion of the judgment be affirmed as to Homer L. Heckford; that that portion of the judgment setting aside the mineral deed and awarding a recovery in the sum of $9,858.62 be affirmed.


author: STOKES, Justice.

text:
    FARMERS COOPERATIVE SOC. NO. 1 OF QUANAH v. MARYLAND CASUALTY CO.
    No. 5095.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 18, 1939.
    Rehearing Denied Jan. 29, 1940.

      Williams & Bell, of Childress, for appellant.
    Cantey, Hanger, McMahon, McKnight & Johnson and James C. Wilson, Jr., all of Fort Worth, for appellee.
   STOKES, Justice.

On the 24th of November, 1937, appellant, Farmers Cooperative Society No. 1, owned and operated a cotton gin at Quanah and was also engaged in the business of selling certain goods, wares and merchandise, among which was gasoline, kerosene and other associated commodities, its gasoline service station being located at the gin. One William D. Boswell was a customer of appellant and, between five and six o’clock in the afternoon of the date mentioned, he went to appellant’s place' of business with a can or container of approximately five gallons capacity and applied to appellant’s agents and servants in charge to purchase a quantity of kerosene, commonly termed coal oil. He was served by one Jim Har-rill, a clerk of appellant, who received from Boswell the price of the quantity of kerosene purchased by the latter. By a mistake of some kind, the exact nature of which is not shown by the record, the can or container was filled with gasoline or a mixture of gasoline and kerosene so that the liquid delivered was of much greater inflammable and explosive nature than kerosene. Upon receiving and paying for the liquid, Mr. Boswell carried the same to his home, which was located some 350 yards from the premises of appellant, and about two hours later, his wife, Effie Ann Boswell, in preparation for filling a lamp, poured a portion of the liquid from the five gallon container into a smaller one, intending thence to transfer it to the empty lamp. As it was growing dark, in order to see more clearly what she was doing, before pouring the liquid into the small container, Mrs. Boswell placed another lamp about four or five feet from the container into which she was pouring the liquid and, the liquid being of a much greater explosive nature than kerosene, its fumes or vapors were communicated to the lighted lamp and an explosion ensued. As a result of the explosion Mrs. Boswell’s clothes ignited and she was badly burned. The husband, being in the house, and observing the perilous condition of Mrs. Boswell, ran to her and succeeded in extinguishing’ the flames, but in doing so he inhaled flames, gases and vapors which irritated his' throat and lungs so that he immediately became very ill. Pneumonia developed in two or three days and Mr. Boswell’s death followed in about a we'ek.

Appellant, at the time, was carrying a policy of indemnity insurance which had been issued by appellee, termed “Manufacturers' Public Liability Policy”, by which appellant was insured against loss from liability imposed bylaw upon appellee on account of bodily injuries and death accidentally suffered by persons not employed by appellant, with certain exceptions and under conditions specified in the policy which will hereinafter be discussed.

On the 4th of March, 1938, Mrs. Boswell filed a suit against appellant in the district court of Hardeman County for damages occasioned by the alleged negligence of appellant in delivering gasoline or other similar explosive liquid to her husband instead of kerosene which he had purchased. On the same day, March 4, 1938, Mrs. Boswell for herself and as next friend for L. B. Boswell, a minor son, joined by Mattie Helms, a feme sole, and a number of other adult children, filed another suit of the same nature against appellant and on the 11th of October, 1938, judgments were rendered in these causes of action in favor of Mrs. Boswell and some of the other plaintiffs.

On December 28, 1937, after being notified of the explosion and the death of William D.' Boswell, appellee made an investigation and notified appellant that, under the terms of its policy, it was not liable to appellant and would not accept the defense of the’ two suits that had been filed by the Bos-wells against appellant. Appellant itself thereupon undertook the defense of the suits and on October 11, 1938, the entire controversy, including both suits, was settled by an agreement and compromise between the parties, which resulted in the judgments of that date which were for the total sum of $1,539 in favor of the plaintiffs. In defending the suits, appellant was subjected to an expense of attorney’s fees and court costs and it paid the judgments and the attorney’s fees and court costs amounting in the aggregate to $2,403.74.

On November 17, 1938, appellant filed this suit against appellee to recover upon the policy of indemnity the amounts paid by -it in discharging the judgments and the attorney’s fees and court costs in the former suits. The case was tried by the court without the intervention of a jury on the 14th of December, 1938, and resulted in a judgment in favor of the appellee and denying appellant any relief.

The controlling issue in the case as presented by the briefs involves the question of whether or not appellee, under the terms of the indemnity policy, was obligated to appear and defend the two suits filed by the Boswells and to pay the judgments entered therein. If, by the terms of the policy, appellee bound itself to perform that duty on behalf of appellant, the judgment of the trial court is erroneous. On the other hand, if the provisions of the policy are Such as not to cover the kind of suits filed, or the nature of the claims asserted by the Boswells, or if those suits and claims fall within one or more of the exceptions made by the provisions of the policy as being those not included in its general terms, then appellee was not obligated to appear and defend the Boswell suits nor to pay the judgments that were entered therein and the judgment of the trial court must be affirmed.

The ^general insuring clauses of the policy provide that in consideration of the premium paid, appellee would insure appellant against loss from liability imposed upon it by law for damages, either direct or consequential, on account of bodily injuries, including déath resulting therefrom, accidentally suffered or alleged to have been suffered by any person not employed by appellant while upon the premises or upon the sidewalks or other ways immediately adjacent thereto provided for. the use of employees or the public, occupied by appellant in the conduct of the business and. at the places named in Item IV(a) of the.Schedule of statements in the policy. This clause contained a parenthetical provision which extended the situs of such injuries to places elsewhere than the premises of appellant, “if caused by employees of the assured engaged as such in said business and at . said place, but who are required, in the discharge of their duties, to be from time to time at other places; provided such bodily injuries or death are suffered as the result of accident occurring within the term of this insurance * * *. ”

'Under Sub. VI, a number of obligations which appellant may assume or which may be imposed upon it by law, are specified as being those which are not covered by the policy. Among them is No. 6 which specifies as an exception, or one not covered by the policy, “any accident caused directly or indirectly by the consumption, use, installation, removal, repair, change or demonstration elsewhere than upon the premises owned by or under the control of the assured and described in IV(a) of the Schedule hereof, of any goods, articles, or product, manufactured, handled or distributed by the assured.”

The rule of law is well established that where the language used in an insurance policy is plain and unambiguous the courts must enforce the contracts as made by the parties. Such policies or contracts of insurance should be construed most favorably to the insured, but they must not be so construed as to substitute a new contract for the one made in plain and unambiguous language by the parties themselves. Maryland Casualty Co. v. Hudgins, 97 Tex. 124, 76 S.W. 745, 64 L.R.A. 349, 104 Am.St.Rep. 857, 1 Ann.Cas. 252; Continental Casualty Co. v. Wade, 101 Tex. 102, 105 S.W. 35; United States Fidelity & Guaranty Co. v. Baldwin Motor Co., Tex.Com.App., 34 S.W.2d 815, and authorities there cited.

The policy here involved insured' appellant against loss from liability imposed by law upon it for damages, either direct, or consequential, on account of bodily injuries or death resulting therefrom accidentally suffered or alleged to be suffered by any person or persons not employed by appellant while upon the premises or sidewalks adjacent thereto. It confined such accidents to the premises named in the policy except at places where injury or damage may be caused by employees of appellant engaged as such in the business at Quanah but who were required, in the discharge of their duties, to be from time' to time at other places. It bound appellee to defend suits against appellant to enforce such claims although they may be groundless. Appellant contends that the policy covered and bound appellee to defend it against the suits and claims asserted by Mrs. Boswell and her children because, it says, the accident which resulted in the death of William D. Boswell, the husband and father, really happened upon appellant’s premises. It contends in this connection that the word “accident” implies more than that which happened at the very time of the explosion in the home of William D. Boswell. It asserts that the word has a broader meaning and encompasses all the facts and circumstances that transpired not only at the time of the explosion but the causes which brought it about. It contends, therefore, that the real accident consisted in the negligent delivery, on the premises of appellant, of gasoline instead of kerosene to William D. Boswell when he applied at'appellant’s place of business to purchase kerosene. The import of appellant’s claim in this respect is tersely illustrated by appellant in a quotation from an early Kentucky case wherein it is said that “where one, standing on a scaffold, unintentionally lets a brick fall from his hand, and it strikes a person below. Here the dropping of the brick, as it was not intended by the former, and was unforeseen by the latter, is, in the broadest sense, an accident.” Hutchcraft’s Executors v. Travelers’ Ins. Co., 87 Ky. 300, 8 S.W. 570, 12 Am.St.Rep. 484.

The reasoning is, therefore, that, because the employee of appellant at its place of business made a mistake and delivered to Mr. Boswell gasoline instead of kerosene, and that the substitution was unintentional and unknown by any of the acting parties, and since MrN Boswell took the gasoline directly to his home and the injury to him and his wife resulted in her efforts to place some of the iiquid in a lamp, the accident consisted of the accidental and unintentional substitution ■ of gasoline for kerosene at the. premises of appellant. We cannot go along with appellant in this analysis. It is true that many definitions of “accident” are found in the decisions and text books. The variation in them usually is governed by the circumstances which brought about the casualty or catastrophe involved. It has been said that “accident” is a synonym of “casualty” and in its use in connection with insurance, it generally is held to import a casualty or misfortune resulting in injury or damage. Webb v. Baldwin, 165 Mo.App. 240, 147 S.W. 849; McCarty v. New York & E. R. R. Co., 30 Pa. 247; Eaton v. Glindeman, 33 Idaho 389, 195 P. 90.

It is also true that, when used without restriction or qualification in contracts, although they be contracts of insurance or indemnity agreements, the meaning of the word is broader than the restricted definition of an event happening suddenly and violently. Globe Indemnity Co. v. Banner Grain Co., 2 Cir., 90 F.2d 774.

It may be that the unintentional substitution of gasoline for kerosene, when Boswell called for and purchased the latter, could be termed an accident in that it happened unintentionally and without design of any of the parties involved, but nothing in the nature of a casualty or injury resulted from the ■mere delivery of the liquid at the filling station or premises of appellant. That incident was completed and closed when the substance was delivered by the employee of appellant and received by Mr. Boswell. There was no unbroken sequence continuing from the delivery of the liquid to the explosion which occurred at the Boswell home two hours later. If Mr. Boswell had deposited the gasoline in the garage or other store room at his home and no effort had been made to utilize it for a year or two years, it would be fatuous to suggest that when it ultimately was poured into a lamp or other container, although a year or two years after its delivery, an explosion that resulted could be called an accident which happened upon the site of its purchase two years before. If appellant is correct in its reasoning, the time that may elapse between the delivery of the liquid and the explosion would not destroy the nature of the ■catastrophe nor determine whether or not it was an accident that happened at the premises where it was delivered.

Sec. VI of the policy,-eliminating the words contained in it that are not material here, provides as follows: “This policy • does not cover: * * * (6) any accident caused directly or indirectly by the '* * * use * * * elsewhere than upon the ■premises owned by or under the control of the assured * * * of any goods * * * "handled or distributed by the assured.”

Appellant makes the contention that the “use” of the liquid purchased by Mr. Boswell began upon the premises of appellant at the filling station where it was ■delivered to Mr. Boswell for use at his home. This contention, like that concerning “accident”, which we have discussed, •Cannot be sustained. The policy plainly provides that it does not cover accidents •caused by the use of goods handled by appellant elsewhere than upon its premises. Manifestly Mr. Boswell intended to use at "his home the kerosene which he thought he was purchasing at appellant’s filling station. It would be indeed an unusual extension of the common acceptation of the word “use” to say that Mr. Boswell began using the liquid when he purchased it. The contraction and quotation we have made of the sixth exception contained in Sub. VI of the ■policy shows clearly, we think, that the parties agreed, when the policy was written, that appellee would not be liable to appellant for an accident nor to defend a suit filed agaiñst it upon a claim of the nature involved in the two suits filed by the Bos-wells, based upon the use which was made at his home of the commodity purchased by Mr. Boswell at appellant’s place of business.

The next contention made by appellant is that the insuring clause of the policy covers the injuries sustained by Mr. Boswell and his wife wherein it provides that appellee would insure appellant against loss from liability imposed by law upon it for damages, direct or consequential, on account of bodily injuries, including death resulting therefrom, accidentally suffered or alleged to have been suffered by any person not employed by it while upon its, premises “and elsewhere if caused by employees of the assured engaged as such in said business and at said place, but who are required, in the discharge of their duties, to be from time to time at other places.” The contention in this respect is based up.on the facts revealed •by the record to the effect’ that appellant had in its employ one Oscar Burch whose regular duty consisted of driving a truck to Wichita Falls and back, transporting gasoline and kerosene, and at times when he was not busy with the truck he was in attendance at the station on the premises of appellant. Appellant contends, therefore, that, even though it is held that the accident did not occur on the premises of appellant as provided by the' policy and that the use of the gasoline was not made upon the premises as further provided therein, it was caused elsewhere by Oscar Burch who was required, in the discharge of his duties, to be from time to time at other places. In other words, the contention is that the allegations of the plaintiffs’ petitions in the two suits filed by the Bos-wells alleged that the act of negligence causing the injuries happened upon the premises of appellant; that the evidence supports these allegations and that such negligence was that of Oscar Burch who, the record shows, had made a trip to Wichita Falls and returned with a load of gasoline or kerosene on the day the accident occurred. That, inasmuch as Oscar Burch was an employee whose duties required him from time to time to be at other places, and the gasoline was substituted in the tanks on the premises of appellant for kerosene, the accident and injury come within the quoted provision of the policy.

We cannot accede to this contention. The insuring clause, of the policy limits accidents and injuries covered by it to those which happen upon appellant’s premises. The clause last referred to is in parenthesis and merely extends the situs of certain accidents and injuries from appellant’s premises to places where the truck driver may necessarily go in the discharge of his duties if, in the discharge of those duties at such places, accidents and injuries otherwise covered by the policy at the premises of appellant should be caused by him.

The policy here involved is one of indemnity. It bound appellee to defend suits for damages arising from causes and under conditions specified in the policy.' It has been held, and is a well established rule, that the insurer under such a policy cannot be called upon to defend a suit against the insured in which the petition upon its face alleges a state of facts not covered by, but excluded from, the provisions of the policy. The petitions in the Boswell cases clearly revealed a state of facts that were not covered by the policy held by appellant. The accident occurred, not upon appellant’s premises or sidewalks or ways connected therewith as provided by the policy, but Occurred at the home of William D; Boswell, which, the record shows, was 350 yards away. The use of the commodity purchased by Mr. Boswell began when Mrs. Boswell undertook to fill the lamp at their home. ' It was not such an ac-cidént as happened or was caused by the employee, Oscar Burch, in the discharge of his duties elsewhere than upon the premises and appellee, therefore, was not required under the terms of its policy to defend the Boswell suits nor to pay off the judgments rendered therein. United States Fidelity & Guaranty Co. v. Baldwin Motor Co., Tex.Com.App., 34 S.W.2d 815; Maryland Casualty Co. v. Texas Fireproof Storage Co., Tex.Civ.App., 69 S.W.2d 826.

From what we have said it is obvious that, in our opinion, appellee was not liable to appellant in any sense whatever and that the judgment entered by the trial court was the correct one. Appellant’s assignments of error are, therefore, overruled and the judgment of the court below will be affirmed.


author: TIREY, Justice.

text:
    MAGEE v. BARNES.
    No. 2231.
    Court of Civil Appeals of Texas. Waco.
    Jan. 18, 1940.

      Bartlett & Bartlett, of Marlin, for plaintiff in error.
    E. M. Dodson, of Marlin, for defendant in error.
   TIREY, Justice.

This is a suit on a verified account. The account in toto was denied under oath. The parties will be designated as in the court below. The suit originated in the Justice Court and was duly appealed to the District Court of Falls County where it was tried before a jury and judgment was rendered for plaintiff on the verdict of the jury. The first item in the account sued on stated: “11/27/36 áccount to date $71.52.” The remainder of the account is fully itemized. The defendant’s amended, verified answer in the district court on which he went to trial consisted of a general demurrer and general denial. There was no exception to the item “11/27/36 account to date $71.52.” Upon the trial of the case, plaintiff testified fully as to his system of bookkeeping. He conducted a filling station. The record discloses that he made out purchase slips in duplicate, had these signed by the purchaser, kept the original as his record and delivered the carbon copy to the purchaser. These tickets constituted his record of purchaser’s account. He introduced in evidence a signed statement as follows:

“Quincy Barnes-Marlin, Texas, 12-3-1936
Gas acct. to date $71.52
Oil paid 20.00
Bal. $51.52
(signed) Ross Magee.”

The plaintiff explained that under his system of bookkeeping he closed his accounts on the night of the 26th day of the month so as to give time to 'make out his bills and get them out by the first; that all items charged after the 26th of the month were included in the next month’s account. He further testified that the defendant’s account up to Novémber 27, 1936 amounted to $71.52; that defendant came in on December 3rd and made a payment of $20, leaving a balance due of $51.52, and that he had the defendant sign the ticket as above set out. Plaintiff further testified that he then delivered to defendant all of the charge tickets up to November 27, 1936. He further testified that defendant made some purchases on the 27th, 28th, 29th and 30th of November and on the 1st, 2nd, and 3rd of December and that all óf these items were included in defendant’s December account and were not included in the signed ticket for $71.52. Each of the purchases referred to in plaintiff’s testimony beginning with November 27, 1936 were duly itemized on the verified account introduced in evidence.

Defendant has assigned as error that the uncontradicted evidence introduced by the plaintiff showed that defendant owed a balance of $51.52 on the 3rd day of December, 1936, “and it was error for the trial court to refuse' to instruct the jury that it could only find in favor of plaintiff in the sum of $51.52, plus the amount of purchases made by defendant after December 3, 1936.” This contention cannot be sustained. While the article of the Revised Statutes, Vernon’s Ann.Civ.St. art. 3736, with reference to sworn accounts in a sense affects the manner of pleading, in the final analysis it creates merely a rule of evidence to be applied solely to proving open accounts under certain given conditions. See Miller v. L. Wolff Mfg. Co. of Texas, Tex.Civ.App., 225 S.W. 212; Macaw v. Pecos Valley Alfalfa Land & Oil Co., Tex.Civ.App., 248 S.W. 808; 1 Tex.Jur. p. 337, § 40. The defendant having denied -the plaintiff’s account in toto under oath, he thereby put the plaintiff to proof of his entire case. In 1 Tex.Jur. p. 336, § 39, it is said: “In accordance with the settled rules of evidence, admissions of a defendant may. be introduced to prove the correctness of the items of an account, and to prove ■ an allegation that a balance is due and owing.” Again, Texas Jurisprudence announces the rule: “Extrinsic evidence is admissible to prove the date of an undated instrument, or to show the true date of a document regardless of any statement of date contained in the writing.” 17 Tex.Jur. p. 827, § 372. See, also, Dunn v. Taylor, Tex.Civ.App., 107 S.W. 952.

In view of the foregoing authorities, we think a fact question was raised to be submitted to the jury and the court properly submitted the issue to the jury.

We have carefully considered the other errors assigned by defendant and believe that they are without merit. We have also carefully considered the testimony and; in our opinion, it is ample tó sustain the verdict of the jury.

The judgment of the trial court is in all things affirmed.


author: LESLIE, Chief Justice.

text:
    JEFFERSON STANDARD LIFE INS. CO. v. YOUNG.
    No. 1959.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 15, 1939.
    Rehearing Denied Jan. 26, 1940.
    Cantey, Hanger, McMahon, McKnight & Johnson, of Fort Worth, and Turner, Sea-berry & Springer, of Eastland, for appellant.
    Allen D. Dabney, of Eastland, and Calla-way & Callaway, of Brownwood, for ap-pellee.
   LESLIE, Chief Justice.

This is a suit by Hattye Maurine Young,, widow of S. A. Young, deceased, on a policy of life insurance in the face amount of $1500 issued by the Jefferson Standard Life Insurance Company as a joint policy on the lives of Mr. and Mrs. Young.

In her original petition, filed January 12, 1937, the plaintiff alleged the issuance, execution and delivery to herself and husband of the policy sued upon; that her husband, S. A. Young, died an accidental death January 12, 1935, a few days short of one year after the issuance of the policy. She further alleged that at the time of her husband’s death all premiums had been fully paid and that the policy was in force- and effect.

Recovery was sought for the face amount of the policy and for an additional sum of $1500 provided therein as double indemnity in the case of death resulting from accidental injury. On the double indemnity feature she alleged that her husband fell from the mezzanine to ths lobby floor in the Burch Hotel in Breckenridge sustaining a skull fracture and other injuries from, which he died the following day.

Among other defenses, the defendant answered that the policy by its terms had. lapsed on account of the non payment of the monthly premium falling due November 16, 1934. That said premium was not paid, on its due date, nor within the following 30 days grace period.

By supplemental petition plaintiff denied, that the policy had lapsed.

In the alternative, the plaintiff pleaded matters of waiver and estoppel, issues on which were not submitted to the jury. In answer to the sole issue submitted, the-jury found that said November premium, was paid. A judgment was entered thereon in favor of the'plaintiff for the sum of $3,000, (the same embracing the double indemnity coverage), with interest, etc. This judgment is challenged by assignments of error to the effect that the evidence showed “conclusively that the November 16 premium was not paid and that the policy in question had lapsed by its own provisions.” And further, that the overwhelming testimony negatived the payment of said premium.

In presenting this appeal the appellant (defendant) has gone upon the theory that “the non-payment of premium is a defensive issue, the burden of proof on which is cast upon the defendant.” Without passing on that question we shall assume the proposition to be correct and proceed to consider the questions raised by viewing the testimony and all reasonable intendments arising therefrom in the light most favorable to the appellee.

The policy was dated January 16, 1934. The premiums were payable on the 16th of each month. The evidence, documentary and otherwise, bearing in particular upon the question under consideration, is substantially reflected by the following schedule:

This schedule gives the due date of each premium, the date (if any) of each check, date of .deposit by insurance company in Fort Worth bank, date check paid by drawee bank, as well as premium receipts produced and related instruments or exhibits. With the exception of the check for the June premium, which was turned down for insufficient funds but immediately taken up by the Youngs, there is nothing unusual entering into the history of this insurance transaction from the viewpoint of either litigant during the months of January, February, March, April, May, June, July and August, 1934. When the policy was taken out in January the initial premium was paid. Premium checks for the above months were identified by plaintiff and applied to the premiums for the respective months. The check for each said month’s premium was of a date within the relevant 30 days grace period of such month, but, as will be seen, each such payment was after the due date of the premium paid. The schedule so shows.

The premium checks, plaintiff’s exhibits C to I, correspond to the premium receipts introduced as defendant’s exhibits 1 to 7. Special attention will now be directed to the circumstances surrounding the premiums falling due in September, October and November, 1934.

The plaintiff, after diligent search for a check, “or September check”, paying th.e premium falling due on the 16th day of September, was unable to find any such check dated or issued within the 30 day grace period of that month except the October check (undated) presently to be discussed. This undated check identified and given by Mrs. Young for a premium, was deposited by the defendant in the Fort Worth bank October 10,- 1934 (see schedule) and paid by the bank October 11, 1934. This check was introduced as plaintiff’s exhibit J. A premium receipt (plaintiff’s exhibit L) corresponds to this October check. The delivery and payment of this October check fell within the grace period following the due date of the September premium and was applied to the payment of the same.

While on the witness stand Mrs. Young testified that the checks identified by her were all she had found among the papers and canceled checks where she or her husband kept, or would most likely have kept them, and that they were given by herself in payment of premiums on the policy. In response to a question by her attorney “Have you — or did you or not write a separate check or check for the September premium” she testified: “I am not positive. Mr. Young made a trip to Fort Worth often and he could have made payment then.” On objection the court struck out all of this answer except the words “I am not positive.”

Our view that the undated October check was by the interested parties intended to be and was properly applied to the premium due September 16, results from a careful study of the whole record. The plaintiff admitted she could locate no September check pertaining to the payment of that month’s premium; but if by check (other than the October check) or other competent testimony, payment of the September premium could be established, that would leave the undated October check (cashed October 11th) to be applied, as apparently contended for by plaintiff, to the premium falling due October 16 and the plaintiff would then be in a position logically to seek or insist upon the application of the November 27 check to the payment of the November 16 premium and such an application as that, if correct, would place the policy in good standing until December 16 and during the 30 day grace period thereafter which would extend the life of the policy to January 16, 1935, a date beyond the death of Young, which occurred January 12, 1935.

That such insistence is without foundation appears at once when other phases of indisputable testimony are given due consideration. For instance, when the check of November 27, written and identified by Mrs. Young, was transmitted to the company, she and her husband each signed and transmitted with that November check an individual application to have the policy in suit reinstated because they had defaulted in the premium payment due October 16. These applications were introduced in evidence (exhibits 8 and 9) and each of them contains the following preamble: “Whereas, policy above numbered lapsed by reason of non payment of premium or note due on October 16, 1934, I hereby make application for reinstatement of said policy and warrant the answers to the questions below t© be true.”

These applications contained other significant declarations by the Youngs. They were presented in good faith to the company and a reinstatement of the policy obtained thereby. Obviously the undated October check was applied as .intended by the interested parties' to the September premium, for the payment of which the plaintiff was admittedly unable to produce a check or other competent evidence, and the "October premium was paid as evidenced by said applications. The declarations in these applications were made at a time (November 28, 1934) when the Youngs were evidently in good health and at a considerable period of time before S. A. Young sustained the unfortunate accident resulting in his death. No death claim had accrued and no suit was pending or contemplated. If the November 28 check had been applied in any other way than to the payment of the October premium, it would have been contrary to the express direction given by the Youngs in said instruments.

Except as hereinafter noted, this record contains nothing indicating any attempt by plaintiff to show any other payment of premiums to the defendant after the date of the November 28 check. That check, by the direction of the Youngs, having been applied to the October premium, tne November premium remained unpaid, unless the evidence of its payment is found elsewhere. The record before us contains no such evidence. When the Youngs presented the November check and the accompanying applications to the defendant seeking a reinstatement of the policy on account of the October default, no one could know better than they the status of their premium payment record. No receipt for the premium falling’ due November 16 was produced.

While the Youngs could have paid the October premium in advance of the due date, nevertheless their uniform practice during the life of the policy was to pay after such date, as disclosed by the schedule and testimony. This, of course, is but a circumstance, not controlling in itself, but it throws light on a material issue and corroborates other testimony, which independently and of itself compels the ultimate conclusions entertained by the court. Further, there is no pleading of fraud, accident or mistake in reference to the applications . for reinstatement. We find nothing in the testimony to affect or in any way nullify the conclusive effect of the recitals and declarations found in the applications for reinstatement of the policy for default in the payment of the October premium. Bankers’ Life & Loan Ass’n v. Chase, Tex.Civ.App., 113 S.W.2d 947, Taking the testimony as a whole, it is not only barren of competent evidence to show the payment of the November premium, but to the contrary the testimony establishes its non payment.

Further, and in response to a letter written to the company in behalf of the Youngs by the company’s agent, Odell Bailey, that company on December 26, 1934 (prior to the accident and death) wrote a letter giving the status of the Youngs’ premium payments on this policy. This letter showed premiums paid from February to October, substantially as indicated in the schedule and the company wrote in connection with this report, the following: “You will notice that Mr. Young got behind with the September premium as he failed to forward us his check for that month until October. He sent the October premium in •November but it had to be reinstated as we had sent the receipts back. Hence, the reason the October premium was not recorded until December 13 * *

The agent, Odell Bailey, wrote in ink at the bottom of the above letter this notation: “If this is correct, it makes the November and December premiums due. Odell.”

This letter with that notation was transmitted to the Youngs. Not finding the Youngs at home, Bailey pushed this letter under the door of their residence and they received and read it about the 27th or 28th of December, 1934. Bearing in mind the October premium had been paid and the policy reinstated as per the November check and applications,, it is obvious the letter just quoted and the notation by Odell Bailey carried to the insured about December 28, 1934 definite information of the new status of premium payments and especially as it related to the months of November and December. This was but a few days before the insured’s death.

The circumstances surrounding the death of Mr. Young and the plaintiff’s conduct at the time are significant. Plaintiff was at Ranger when the accident occurred on January 11, 1935. Being notified she went at once to the scene of the accident and attended her husband until his death the next day. He never recovered consciousness. At the time and under such circumstances the plaintiff was importuned by friends to ascertain the status of her husband’s insurance. .This she did. The defendant’s agent, Odell Bailey, was called to Breckenridge for consultation. It resulted that a check dated January 10, 1935, for $19.98 carrying the name of S. A. Young as the signature thereto (so signed by Mrs. Young) was received about January 14 or 15 by the Fort Worth office of the defendant. The amount of this check was exactly three times the usual monthly premium of $6.66 and presumably was intended for premiums falling due November, December and January. Said check was accompanied by two blank applications for reinstatement of the policy. One application was signed by Mrs. Young in person and the other carried the name of S. A. Young, but it was not shown who signed his name thereto. These instruments were executed the evening of the 11th of January while Mr. Young was unconscious, from which he never recovered. Plaintiff testifies she instructed no one to sign her husband’s name to the application and that she did not know who signed it and that she signed certain of the instruments at the request of Mr. Bailey. The agent, Odell Bailey, forwarded these instruments to the company. The .defendant did not cash the check. The check reached the Fort Worth office January 15 and the home office January’ 21. The instruments were immediately returned to the local agent with instructions to return them to Mrs. Young.

Concerning these instruments and omitting formal parts, the defendant’s local agent, Odell Bailey, wrote the Fort Worth office on January 14, 1935, the following:

“Enclosed is the papers and check on lapsed policy 500260 — Young. These papers and check were delivered to me 8 p. m. January 11, 1935 and by 8:30 I found out Mr. Samuel Agustus Young had been in an accident and was at the point of death, the accident happened about 3 p. m. I then informed Mrs. Young, his wife, that it would be impossible to reinstate this policy and explained why and she agreed with me.
“Very truly yours,
“Odell Bailey.”

As before observed, Mrs. Young testified she looked after the premium payments, and paid by check, that they were drawn on the First National Bank of Breckenridge except the initial payment which was by check on the Texas State Bank of Breckenridge. That the checks produced were all that she had and that a premium receipt was received for each premium paid by her. Upon the trial the records of the banks where the deceased Young had been doing business at the times material toi this litigation were produced. The permanent records of the insurance company at the Fort Worth branch office, as well as the home office were introduced in evidence. The above records and several checks in payment of premiums, premium receipts and applications for reinstatement disclose remarkable harmony and point with certainty to the non payment of the November premium. If there be anything in the testimony partaking of a contrary nature, such suggestion or statement, if any, does no more than create a mere surmise or suspicion to that effect and therefore does not in legal contemplation amount to any evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

In support of our conclusions on the question above discussed and deemed controlling we cite Bankers’ Life & Loan Ass’n v. Chase, 113 S.W.2d 947, writ dismissed; Campbell v. Atlas Life Ins. Co., Tex.Civ.App., 113 S.W.2d 619; National Life & Accident Ins. Co. v. Casillas, Tex.Civ.App., 63 S.W.2d 396; Texas Life Ins. Co. v. Mansel, Tex.Civ.App., 105 S.W.2d 899; American Nat. Ins. Co. v. Meneses, Tex.Civ.App., 42 S.W.2d 1047; National Life & Accident Ins. Co. v. Robledo, Tex.Civ.App., 93 S.W.2d 1198; Excelsior Mut. Life Ins. Co. v. Davis, Tex.Civ.App., 77 S.W.2d 287.

These authorities merely deal with cases in which analogous fact situations were considered. They illustrate the proper interpretation and effect to be given such testimony and, we think, sustain this court’s conclusions.

If we are correct in the above holding the questions involving recovery by reason of the double indemnity feature of the policy becomes immaterial.

We have carefully examined the record in view of the assignments asserting error in the action of the trial court in refusing to submit issues of waiver and estoppel. We do not believe there was any error in the trial court’s ruling in that respect.

This case has been fully developed. Much of the testimony is documentary. For the reasons assigned the' judgment of the trial court is reversed and judgment here rendered for the appellant.