author: O’QUINN, Justice.

text:
    TRAVELERS INS. CO. v. BLUESTEIN.
    No. 3810.
    Court of Civil Appeals of Texas. Beaumont.
    March 21, 1941.
    Rehearing Denied April 2, 1941.
    Pipkin, & Pipkin, of Beaumont, for appellant.
    Orgain, Carroll & Bell, of Beaumont, for appellee.
   O’QUINN, Justice.

A. Bluestein brought this suit in the 60th district court of Jefferson County, Texas, against The Travelers Insurance Company to recover for expenses incurred by him in defending a damage suit filed and prosecuted by Elma Franklin against him in which damages were sought for injuries suffered by Elma Franklin on May 10, 1934, while operating an elevator in a four-story brick mercantile building belonging to said A. Bluestein, which elevator it was alleged was negligently allowed by Bluestein to be unsafe for operation. From a judgment in favor of Bluestein, The Travelers Insurance Company brings this appeal.

Appellee carried a compensation insurance policy with appellant covering Blue-stein’s employees engaged in and about the mercantile business conducted by said Bluestein in the mercantile building which obligated appellant to pay compensation as provided by the laws of the State of Texas for injuries and disability suffered by his said employees while in the course of their employment. Said insurance policy was, in certain contingencies, an indemnification policy. In said policy appellant by its contract obligated itself, after setting forth various requirements for compensation to any employee of appellee injured in the course of his employment, as follows:

“The Travelers Insurance' Company of . Hartford, Connecticut (hereinafter called the company), does'hereby agree with his employer (A. Bluestein) named and described as such in the declarations forming a part hereof as respects personal injury sustained by employees, including death at any time resulting therefrom, as follows :
“One. ■ (b) To indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account- of such injury to such of said employees as are legally employed wherever such injury may be sustained within the territorial limits of the United States of America or the Dominion of Canada.”
“Three. To defend in the name and on behalf of this employer any suits or other proceedings which may at any time be instituted against him on account of such injury, including suits or other proceedings alleging such injury and demanding damages or compensation therefor, although such suit, other proceeding, allegations or demands are wholly groundless, false or fraudulent.”
“Four. To pay all costs attached against this employer in any legal proceeding defended by the Company, all interest accruing after entry of judgment, and all expenses incurred by the company for investigation, negotiation or defense.”

When Elma Franklin filed her suit against appellee to recover damages of him as at common law for the injuries suffered by her in operating the elevator, he notified appellant of the filing of the suit and that said Elma Franklin was at the time she received her injury an employee of his, Bluestein’s, and demanded, under section 3 set out above of the insurance policy, that it defend the suit, which it refused to do, and then appellee secured his own counsel and defended the suit and succeeded in defeating the asserted cause of action against him. This instant suit, as above stated, was filed by appellee against appellant to recover his expenses incurred by him in defending the said suit of Elma Franklin against him.

The controlling question in this suit is whether said Elma Franklin was at the time she received her injury in operating the elevator of appellee, May 10, 1934, an employee of appellee Bluestein. If she was such employee then under the Compensation Law of Texas she could not maintain her said suit for damages as at common law, but would have to look to the compensation insurance carrier alone for her compensation for any disability she may have suffered by reason of her injuries. Sec. 3, Article 8306, Vernon’s Ann. Civ.St. of Texas. '

The petition filed by Elma Franklin in her suit (No. 49S93) against A. Bluestein to recover damages as at common law for her injuries received in operating the elevator, among other things, alleged: “That at all times material to this cause of action the said defendant, A. Bluestein, was the owner of that certain building located upon the premises at the northwest corner of Proctor Street and Waco Avenue in the City of Port Arthur, Jefferson County, Texas; that upon said premises there was and is situated a building four stories in height; that the first or ground floor thereof was and is used as a retail store building by the said defendant; that the said defendant rented or caused to be rented to private individuals, persons, firms and corporations certain office space upon the second and third floors of said building, receiving from such tenants either directly or indirectly the rentals and revenues accruing by-virtue thereof; that the defendant did furnish or cause to be furnished a certain electrically operated vertical elevator for the use and convenience of the tenants and patrons of said building.” (Paragraph 3 of petition.)

In paragraph 4, among other things, it was alleged: “That the defendant, A. Bluestein, knew that said elevator was being used for the purpose of conveying persons having business in said building to the respective floors desired by said persons; that the said defendant further knew that said elevator required the attention of an employee to operate same; that the said A. Bluestein provided said elevator for the convenience of the patrons and tenants of said building; that the said A. Bluestein knew that said elevator required the attention of operators during the business hours of each day; that said A. Bluestein knew or should have known by the exercise of ordinary diligence that your plaintiff was engaged as an elevator operator in said building.”

In paragraph 5, among other things, it was alleged: “* * * and while operating the said elevator in said building with the knowledge and consent of the defendant, the same slipped, fell and dropped, thereby inflicting the injuries whereof plaintiff complains * * *.”

In paragraph 7 she further alleged: “Plaintiff alleges that on May 10, 1934, while operating the elevator in her capacity as an elevator operator, and in the ordinary manner, the same fell from the third floor of said building to the bottom of the pit underneath the lower floor of said shaft; * * *

In her petition in her said suit against appellee, Elma Franklin alleged (paragraph 1) that on May 10, 1934, while in the employment of E. L. Vaughn, a resident of Jefferson County, Texas, she sustained severe accidental personal injuries; (paragraph 4) that “your plaintiff was employed by the said E. L. Vaughn as an elevator operator to operate said elevator on the premises hereinbefore mentioned; (paragraph 5) “That upon the date in question, to wit: May 10, 1934, and while in the course of her said employment with the said E. L. Vaughn, and while operating the said' elevator ■ in said building, with the knowledge and consent of the defendant, * * .* » q'jjg above are all the times there was any mention of or reference to E. L. Vaughn in her petition. It is contended by appellee that these statements as to her being the employee of E. L. Vaughn are but conclusions of the pleader that she was such employee. We think the contention sound. Nowhere in her petition did she allege any connection that E. L. -Vaughn had with the building in which the elevator was operated, or any connection with or control of the elevator; no allegation that Vaughn had any right of control over her; no allegation that Vaughn controlled her in the manner of discharging her duties as operator of the elevator; or that he paid her wages, but instead she merely alleges the conclusion that she was employed by Vaughn.

It is further contended by appellee that the allegations of Miss Franklin's petition, when given a reasonable interpretation, considering the facts alleged, were sufficient to apprise appellant that she was suing as an employee of A. Bluestein. As shown above, she alleged that Bluestein owned the four-story brick mercantile building; that he conducted his own mercantile business in said building; that he rented office space on the second and third floors of said building to others, and received the rents therefor; that he maintained the elevator in said building for the use of himself, his employees and persons wishing to purchase merchandise from him; or to transact business with any of his tenants; that Bluestein knew she was one of the operators of the elevator being operated for his benefit and for the benefit of his business. We think this contention sound. Appellant, upon the filing of the suit, was immediately furnished with a copy of Miss Franklin’s petition containing the allegations above mentioned, and so it was apprised of all these allegations of fact. Its contention .is that as Miss Franklin, in her said petition had alleged that she was employed by E. L. Vaughn as an elevator operator, and that while in the course of her employment with said Vaughn, and while operating the said elevator in said building, with the knowledge and consent of the defendant Bluestein, she received her alleged injuries, that these allegations automatically eliminated any necessity of its defending the suit under its policy of insurance because it 'was alleged that she was Vaughn’s employee. As stated, we' think the allegations of Miss Franklin as to her being the employee of Vaughn and that she was operating the elevator as such employee of Vaughn, in the absence of the allegation of any facts showing any connection Vaughn had with the building in which the elevator was being operated; or the elevator itself, or that he controlled her in the operation of the elevator, or that he paid her wages, were but conclusions, not founded upon any facts plead.

The case was tried to a jury upon special issues in answer to which they found that Miss Franklin was, at the time she received her injuries, May 10, 1934, the employee of Bluestein, and that $500 was a reasonable compensation for the legal services rendered Bluestein by the law firm of Orgain, Carroll & Bell in the defense of Miss Franklin’s suit against Bluestein, which appellant had refused to defend. On the trial, the parties agreed that in addition to the expenses of employing the attorneys appellee incurred the additional sum of $40.30 as necessary expenses in the defense of this suit. On the verdict of the jury, judgment was rendered in favor of appellee against appellant for $540.30, from which this appeal is prosecuted.

For the purpose of this opinion, we concede appellant’s proposition that its obligation to defend Miss Franklin’s suit against appellee, under the terms of its policy, depended solely upon the allegations of fact contained in Miss Franklin’s petition; that is, if on Miss Franklin’s allegations of fact she was not an employee of appellee, at the time she was injured, then appellant was not obligated to defend the suit. These authorities cited by appellant tend to support this proposition: Maryland Casualty Co. v. Moritz, Tex.Civ.App., 138 S.W.2d 1095, writ refused; United States Fidelity & Guaranty Co. v. Baldwin, Tex.Com.App., 34 S.W.2d 815; Travelers Ins. Co. v. Reed Co., Tex.Civ.App., 135 S.W.2d 611; Fessenden School, Inc., v. American Mutual Liability Ins. Co., 289 Mass. 124, 193 N.E. 558, 559. But, as against appellant’s proposition, it is our conclusion that on the fact allegations of Miss Franklin’s petition, herein-before referred to, appellee, Bluestein, was her employer, and the allegations that E. L. Vaughn was her employer was a mere conclusion of the pleader, without support in the .facts. As before stated, she alleged that appellee owned and did business in the mercantile building, in which the elevator was located . and operated; that he owned the elevator; that the elevator was operated for the benefit of ap-pellee and his employees and customers; and that she was employed to operate and did operate the elevator for said purposes. She nowhere alleged any connection that Vaughn had with the building, or the elevator; she alleged no facts showing any right Vaughn had to control her, or that in fact he exercised any control over her, or that he paid her wages. She merely alleged a conclusion that she was employed by Vaughn. Construing the facts -alleged by Miss Franklin, we think they were sufficient to apprise appellant that she was suing appellee as her employer. It is our opinion that the service by 'appellee upon appellant of a copy of Miss Franklin’s petition invoked its duty, under the terms of its policy to defend Miss Franklin’s suit.

In Taylor B. & H. Ry. Co. v. Warner, 88 Tex. 642, 32 S.W. 868, 870, our Supreme Court said: “Every person who is found performing the work of another is presumed to be in the employment of the person whose work is being done, and if the facts be such as to exempt the owner of the property involved, or the person for whom the work is being performed, from liability for the acts of those performing such work, if devolves upon him who claims such exemption to make proof of the terms of the contract, showing that the relation of master and servant did not exist.”

If evidence showing that work is being done for the benefit of a particular party, with that party’s machinery, raises an issue of fact as to whether or not the party doing the work was an employee of the party for whose benefit the work was being done, in the instant case how could it be said that an allegation as made in the suit of Miss Franklin against Bluestein, that her operation of the elevator was for the benefit of Bluestein with his machinery (the elevator), did not present the issue of whose employee she was in operating the elevator, and inform the insurance carrier (appellant) that she was Bluestein’s employee.

In the case of Gulf, C. & S. F. Ry. Co. v. Dorsey, 66 Tex. 148, 18 S.W. 444, 445, the plaintiff, Dorsey, was employed by one railway company to act as night switchman in a “union” yard, jointly kept and used by that company and two others. While performing his duty upon a train track of one of the latter companies, and because of some negligence of that company,- he sustained a personal injury, there arose the question of which company he was an employee when he received his injury. The court held that a question of fact was raised to the effect that the injured party was an employee of not only the company that hired him, but in addition thereto, for the other companies for whose benefit the work was done. The court stated: “that relation between him and the other companies arises by inference from the service and the connection of the companies inter se.”

In Baray v. Escobedo, Tex.Civ.App., 259 S.W. 1099, 1101, where a carpenter was making repairs on a building for the owner, in a suit growing out of an injury, the court said: “The evidence discloses that Meraz was repairing the building for its owner, Baray. The presumption thereupon arose that Meraz was appellant’s servant, and it became incumbent upon appellant to -rebut the prima facie case thus made by showing that Meraz was an independent contractor.”

In the case of Sargent Co. v. Baublis, 215 Ill. 428, 74 N.E. 455, 456, the court said: “In this case the declaration is intended to show the relation of master and servant between the parties, but it contains no express allegation that the plaintiff was in the employ of the defendant or was its servant. The averments in that respect are that the defendant was in the business of operating a foundry in the city of Chicago, that in said business the plaintiff was employed as a laborer, that the plaintiff was directed by the defendant to use the grindstone in qv-'stion in the grinding óf certain articles called ‘knuckles,’ ‘and that plaintiff 'did as he was directed, ^ and was engaged in the grinding of said knuckles-upon said grindstone when he was injured. It is insisted that these averments do not show the relation of master and servant, and it must be conceded that they only do so indirectly. A master is one who has the direction and control of another performing services for him,, and, if one is subject to the orders and directions of another in the performance of services and duties, he is a servant. *' * * We think the averments must be regarded, after verdict, sufficient to show the relation of master and servant and to create the duty alleged.”

The pleading by Miss Franklin of the specific facts as to Bluestein owning the building wherein she operated the elevator; the ownership of the elevator; the purposes for which the elevator was operated; that she was the operator of the elevator; and that the elevator was operated to serve the owner of the building (Bluestein), his' employees, and customers, control the mere conclusions set forth in her petition that she was the employee of Vaughn, in the absence of any fact allegations connecting Vaughn with the building, its control or the ownership or operation of the elevator, or the right to operate or control same. Houston Printing Co. v. Hunter, Tex.Civ.App., 105 S.W.2d 312, 318, affirmed 129 Tex. 652, 106 S.W.2d 1043; Caven v. Hill, 83 Tex. 73, 18 S.W. 323; Massachusetts Bonding & Ins. Co. v. Roessler, Tex.Civ.App., 112 S.W.2d. 275. Neither Miss Franklin nor Vaughn testified.

Under the above-plead facts, appellant could not justify its refusal to defend Miss Franklin’s suit in the mere conclusion of the pleader that Miss Franklin was. the employee of Vaughn. It follows that the judgment should be affirmed, and it is so orderéd.

■ Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    BEAUMONT CITY LINES, Inc., v. HUMPHREY.
    No. 3807.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 20, 1941.
    Rehearing Denied March 5, 1941.
    Pipkin & Pipkin and Chas. S. Pipkin, all of Beaumont, for appellant.
    J. A. Veillon and D. F. Sanders, both of Beaumont, for appellee.
   O’QUINN, Justice.

Appellee, plaintiff below, filed this suit in the 58th district court of Jefferson County, Texas, against appellant, as defendant, seeking to recover damages for injuries to his wife, Leola Humphrey, alleged to have resulted frota, her falling while attempting to alight from a passenger bus operated by appellant; the fall of said Leola Humphrey alleged to have been caused by the driver of the bus having negligently started the bus to moving while she was in the act of alighting from the bus. The case was tried to a jury upon special issues, and resulted in a verdict in favor of appellee for $3,074.80. Judgment was accordingly entered' for appellee, and motion for a new trial was overruled, from which appellant brings this appeal.

Appellee’s suit, as made by his pleadings, is, in substance, that on July 22, 1939, his wife, Leola Humphrey, was a passenger on appellant’s bus, and desired to get off of said bus at the intersection of Avenue B and College Street, in the city of Beaumont, Jefferson County, Texas; that she gave to the driver of the bus the proper signal to stop the bus and allow her to get off of same; that the driver stopped the bus at said point, and that she was attempting to get off of the bus when, before she could alight from same, and while she was trying to alight, the driver caused the bus to suddenly start moving causing her to fall in the bus by reason of which she suffered serious injuries to her person, fully pleading same.

The court submitted the case to a jury upon special issues, among them being:

Special Issue No. 1: “Do you find from a preponderance of the evidence that Leola Humphrey sustained an injury on July 22, 1939, at the intersection of Avenue- B and College Street while getting off the defendant’s bus?” Answered “Yes.”
Special Issue No. 2: “Do you find from a preponderance of the evidence that the driver of defendant’s bus caused the bus to start moving while Leola Humphrey was at the step and attempting to leave said bus at the intersection of Avenue B and College Street?” Answered “Yes.”
Special Issue No. 3: “If you have answered the above special issue No. 2 ‘Yes,’ then answer the following: Do you find from a preponderance of the evidence that causing said bus to start moving, if it was caused to do so, while Leola Humphrey was at the step and attempting to leave said bus, if she was at the step and attempting to leave said bus, was negligence on the part of the driver of defendant’s bus?” Answered “Yes.”

Appellant objected and excepted to issues Nos. 2 and 3 because they assumed the existence of two ultimate facts, (a) that the bus moved, and (b) that the driver of the bus caused the bus to move; that said issues were on the weight of the evidence; and that said issues submitted in one single issue two ultimate issues of fact to be answered “yes” or “no,” when, if properly submitted, the jury might answer one “yes” and the other “no,” and the issues were, therefore, multifarious.

The question whether the bus moved while Leola Humphrey was attempting to alight, and the question whether the driver of the bus caused the bus to move at said time, were strongly controverted issues, so much so that appellant insists that the jury’s answers touching them are without support in the evidence, or so against the great weight and preponderance of the evidence, as to be wrong and so should not be allowed to stand. These two issues (a) whether the bus moved at the time alleged, and (b) whether the driver of the bus caused same to move at the time alleged, go to the very foundation of the case as plead by appellee. Unless the bus moved at the time alleged, appellee would not have any case; also, if the bus moved, but was not caused to do so by the driver of the bus, then appellee, under his pleadings, would not have a cause of action. Yet, these matters were nowhere, submitted to the jury for findings thereon. Instead issue No. 2 assumes that the bus did move at the time inquired; and so was on the weight of the evidence. Issue No. 3 assumes that the driver caused the bus tc start, and inquires whether this was negligence on the part of the driver; this, too, was on the weight of the evidence. We think that the manner in which these issues were submitted was reversible error. Kress & Co. v. Jennings, Tex.Civ.App., 64 S.W.2d 1074, writ dismissed; Gordon v. McIntosh, Tex.Civ.App., 54 S.W.2d 177, 179; (this case is directly in point, and while it does not appear to-have reached the Supreme Court on application for writ, it has been numerously cited with approval, and does not appear to have been criticised by any appellate court); San Antonio Amusement Co. v. Easterling, Tex.Civ. App., 71 S.W.2d 350, 351; Texas Employers Ins. Ass’n v. Van Pelt, Tex.Civ.App., 83 S.W.2d 392; Tucker Oil Co. v. Matthews, Tex.Civ.App., 119 S.W.2d 606, 608, par. 5 syl.; Texas Employers Ins. Ass’n v. Ebers, Tex.Civ.App., 134 S.W.2d 797.

We think that appellant’s assignment that the answers of the jury to special issues 2 and 3 are so against the great weight and preponderance of the evidence as to be manifestly wrong, and so should not be permitted to stand, should be sustained, and we so find.

There are other matters presented as error, but as they should not arise on another trial, we do not discuss them. For the errors discussed the judgment is reversed and remanded for another trial.

WALKER, J., not sitting.


author: WALKER, Chief Justice.

text:
    TEXAS NAT. BANK OF BEAUMONT v. EDSON et ux.
    No. 3824.
    Court of Civil Appeals of Texas. Beaumont.
    March 12, 1941.
    Rehearing Denied March 26, 1941.

      Geo. A. Weller, of Beaumont, for appellant.
    Lamar Cecil and Strong, Moore & Strong all of Beaumont, for appellees.
   WALKER, Chief Justice.

August 10, 1931, E. G. Edson, as a deed of gift, conveyed to his wife, Eleanor W. Edson, the following described property, of the reasonable market value, on the date of the conveyance, of $30,000: J.ots 3, 4, and 5, in Block 485 of the city of Houston, S.S.B.B., Harris' County, Texas. This deed was filed for record in the deed records of Harris county October 13, 1931. On the date Mr. Edson deeded this property to his wife there was against it 'a lien to secure an indebtedness of Mr. Edson in the sum of $17,500, which Mrs. Edson paid out of her separate estate between the dates March 24, 1932, and November 21, 1934. On October 5, 1933, appellant recovered judgment against E. G. Edson in the district court of Jefferson county for the sum of $38,042.49, which was the balance due on certain notes executed by Mr. Edson to appellant prior to August 1, 1931. On January 18, 1937, this judgment was abstracted in the abstract judgment records of Harris county, showing a balance due on the judgment of $31,849.75, also on the 18th day of January, 1937, appellant abstracted a second judgment against Mr. Edson for the sum of $37,104.-74.

On the 19th day of November, 1936, E. G. Edson filed his voluntary petition in bankruptcy; and appellant duly filed its claim in the bankruptcy proceedings. On December 5, 1936, J. Zorn was elected trustee in bankruptcy for the Edson estate, and was discharged as trustee on the 19th day of May, 1937. Edson filed his petition for discharge in bankruptcy on the 31st day of November, 1936, which was granted on the 20th day of June, 1938, over appellant’s objections. During the pendency of the controversy over Edson’s discharge in bankruptcy, appellant never at any g time took any action calculated to render its claim of a lien on the property in question justiciable in the bankruptcy court. No formal demand was made upon the trustee in bankruptcy to take or attempt to take possession of such property, nor was any action of any kind taken by appellant regarding this property.

This suit was filed by appellant in the district court of Jefferson county against appellees, Mrs. Eleanor W. Edson and her husband, E. G. Edson, pleading the execution of the deed by Edson to his wife; its judgment against Edson and the abstracting of these judgments; and quoting from the petition, “That the deed from E. G. Edson to Mrs. Eleanor W. Edson, being a deed of gift as hereinbefore alleged, ■and having been executed and delivered at the time when E. G. Edson was insolvent and without sufficient property within the State of Texas subject to execution to pay his existing creditors, sam.e was therefore void under Article 3997 [Vernon’s Ann. Civ. St.], and the legal and equitable title to said property at all times remained in the defendant, E. G. Edson, and under and by virtue of the recording and indexing of said abstract of judgment, a valid, binding and subsisting lien was created upon said property, and plaintiff is entitled to have same established and foreclosed”; the Edson bankruptcy proceedings; the appointment of the trustee in bankruptcy; and his failure to claim the property in controversy as a part of the assets of the Edson estate. The prayer was that the deed from E. G. Edson to his wife “be decreed void and set aside, canceled and held for naught and that plaintiff’s lien created by virtue of said abstracts of judgment be established and foreclosed and that'the property be ordered sold as under execution.”

Appellees answered by general and special demurrers, general denial, and specially that by reason of the bankruptcy proceedings against Edson and his discharge therein, appellant acquired no lien against the property in controversy. They also specially plead the several statutes of limitations.

On trial to the court without- a jury, judgment was against appellant that it take nothing, and in favor of appellees that they go hence without day and recover their costs, from which appellant has duly prosecuted its appeal to this court.

In support of its judgment, the trial court filed conclusions of fact and law, from which we have taken the facts summarized above. The court further found that on August 10, 1931, the date E. G. Ed-son conveyed the property in controversy to his wife, he was solvent and that this deed “was valid under the provisions of Article 3997 of the Revised Civil Statutes, and that said E. G. Edson was at the date of such conveyance and at the date of its recordation in Harris County, Texas, to-wit: On August 10, 1931 and October 13, 1931, possessed of property within the State of Texas subject to execution sufficient to pay his existing debts.” The court also found in favor of appellees on the issue of four years limitation and- “that the filing of the abstract of judgment herein in Harris County, Texas after November 20, 1936, the date upon which E. G. Edson was adjudicated a bankrupt, did not fix a judgment lien upon the property here involved.”

We affirm the trial court’s conclusion that E. G. Edson was solvent on August 10, 1931, the date he executed the deed in controversy to his wife. The evidence raised the issue that on December 31, 1930, E. G. Edson owned the following property, of the reasonable market value indicated:

Cash in Banks. $ 6,800.00
Stock — The B. F. Goodrich Co. 650 shares. 13,000.00
“ The Texas Corporation 750 shares. 24,750.00
Stock — Equity with Brokers. 25,000.00
“ Various N. Y. Stock Exchange, listed. 100,000.00
“ and Bonds, Miscellaneous. 100,000.00 $ 269,550.00
Stock — The Wilson Holding Company. 603,000.00
“ The Edson Realty Company. 357,000.00 $ 960,000.00
Notes Receivable .1. 43,000.00
Mortgage note Receivable. 3,500.00 ' 46,500.00
Real Estate — Houston, Texas. 56,500.00
“ “ Kansas City, Mo. 6,500.00
“ “ Kaplen, Texas .■. 5,000.00
“ “ Beaumont, Texas . 38,000.00
“ “ Eleanor Apartments & Property. 65,000.00
“ “ Residence and Furniture. 35,000.00 $ 206,000.00
Personal Jewelry, Etc 20,000.00
Automobiles (5) . 5,000.00 $ 25,000.00
$1,507,050.00

The evidence also raised the issue that on. February 1, 1932, E. G. Edson owned the following property, of the market value indicated:

Cash in Banks. $ 2,000.00
New York Stocks. 65,000.00
Miscellaneous Stocks & Bonds. 57,000.00
Stock — The Wilson Holding Company 603,000.00
Stock — The Edson Realty Company... 175,000.00 $ 902,000.00
Notes Receivable . 46,500.00
Real Estate:
Kansas City. 6,500.00
Houston . 10,000.00
Beaumont. 35,000.00
Eleanor Apartments ... 65,000.00
Residence and Furniture 35,000.00 141,500.00
Total Assets $1,090,000.00

The Wilson Holding Company and the Edson Realty Company are Texas corporations. It would serve no useful purpose to review the testimony on the issues of the ownership of this property and of its value. Certain witnesses testified that this property belonged to E. G. Edson, and that its reasonable cash market value was the several sums indicated. The trial was to the court without a jury and he accepted as true their testimony.

Appellant’s construction of the testimony is to the effect that on the date the deed was executed by Edson to his wife, and on the date that deed was recorded, E. G. Ed-son owed debts to the amount of $563,823.-80, and a further liability in a certain receivership proceeding of $100,000.

On the statement made, E. G. Edson owned property of the reasonable market value, on December 31, 1930, of $1,507,050, and on February 1, 1932, of $1,090,000, against an indebtedness as claimed by appellant of $563,823.80. We think the court’s finding that E. G. Edson was solvent on the 10th day of August, 1931, does not contravene in any way the following statement of the law announced by our Supreme Court in Walker v. Loring, 89 Tex., 668, 36 S.W. 246, 247: “It does not mean that the conveyance is valid if the property, at a fair market value, is sufficient to cover the debts. Nor does it mean that it is enough merely that the property, if discovered, is subject to levy and sale. But it means that he must retain property of which he has the open and visible ownership of such value that when subjected to forced sale it will yield a sufficient sum to pay all the existing debts as well as the taxable costs of their collection.”

On this conclusion, the judgment of the lower court must be affirmed; so, we pretermit a discussion of appellant’s assignments against the court’s conclusion “that the filing of the abstract of judgment herein in Harris County, Texas after November 20, 1936, the date'upon which E. G. Edson was adjudicated a bankrupt, did not fix a judgment lien upon the property here involved” — in our judgment this conclusion is a correct construction of the facts of this case on this issue. We also pretermit a discussion of the finding in favor of appellees on the limitation issue.

The judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.

On Rehearing.

Since we pretermitted a discussion of the issues of bankruptcy, we overrule appellant’s request for fact findings on that issue. We also overrule the request to find that certain stocks listed in the original opinion were held as collateral to secure certain indebtedness; these stocks were listed as a part of Mr. Edson’s assets, and the indebtedness which they secured was listed among his liabilities; therefore, the requested findings are immaterial on the issue of Mr. Edson’s solvency. The requested findings as to the value of certain stocks listed in the -original opinion, at dates subsequent to the execution of the deed in issue and the date it was filed for record, and subsequent to the dates on which the values were fixed as listed in the original opinion, are refused; this testimony was all before the court; it is well known that the values of stocks in many instances were wiped out within a few months during the years of ’31-’33. The values of the stocks listed in the original opinion had support in the testimony as of the dates therein reflected; so, as an attack on the court’s findings of fact, on the issue of the values of these stocks, it is immaterial that when they were sold at forced sale in 1932-1933, they brought sums far below the amounts listed in the statement brought forward in the original opinion. We overrule the request to find that the indebtedness against the property in issue was paid with community funds; the evidence supports the court’s conclusion that this indebtedness was paid “out of the separate estate of Eleanor W. Ed-son.” The amount of Mr. Edson’s liabilities, as of the date the deed in issue was executed and recorded, is reflected in the original opinion; therefore, appellant’s requested findings on this point are overruled.

On rehearing appellant insists that the court erred in receiving in evidence the financial statements made by E. G. Edson on December 31, 1930, and February 1, 1932. This case was tried to the court without -a jury. After these statements were received, the witnesses, in testifying in relation thereto, simply used them as memoranda upon which to base their estimate of Mr. Edson’s assets and their value. If the financial statements were not admissible as original evidence, certainly the court did not err in permitting the witnesses to use them, as memoranda for the basis of their testimony.

Appellant makes the following contention: “We call the Court’s attention to the fact that the statement was dated February 1, 1932, and on March 10, 1932, which is thirtyreight days from the date of the statement, Wilson Holding Company stock sold at forced sale for $20.00’ per share. Again sixty days after that date it sold for $20.00 per share. Again sixty days from the date of the statement it sold for $30.00 per share.” The point thus made was simply on tlje weight of the testimony; the fact that the Wilson Holding Company stock, on the dates mentioned, sold at $20 per share, did not as a matter of law control its value on the dates when the deed was executed and recorded.

We pretermitted discussion of the issues on bankruptcy, therefore appellant’s assignments on this issue are overruled.

Appellant advances the following proposition : “The Court should note that the only evidence offered by Mrs. Edson with reference to property owned by Edson was the financial statement of February 1, 1932, and his testimony that he owned this property on October 13, 1931. There is no testimony regarding the value of the properties owned as of those dates.”

In answer to this contention, we simply quote appellant’s 21st proposition: “The court (trial court) erred in admitting in evidence, over objection of plaintiff, the testimony of defendant, E. G. Edson, on direct examination, to the effect that the items listed as assets in his statement dated December 31, 1930, were of the reasonable market value set opposite such items in said statement as of that date.”

23rd proposition: “The court (trial court) erred in admitting in evidence, over objection of plaintiff, the testimony of defendant, E. G. Edson, on direct examination, to the effect that he owned assets listed in his statement on February 1st, 1932, as of that date.”

24th proposition: “The court (trial court) erred in admitting in evidence, over objection of plaintiff, the testimony of defendant, E. G. Edson, on direct examination, to the effect that the items listed as stocks and bonds in his statement of February 1st, 1932, reflected the reasonable cash value set opposite such items in such statement as of that date.”

25th proposition: “The court (trial court) erred in admitting in evidence over objection of plaintiff, the testimony of defendant, E. G. Edson, on direct examination, to the effect that the items listed as liabilities in his statement dated February 1st, 1932, reflected all of his liabilities as of the date of said statement.”

26th proposition: “The court (trial court) erred in admitting in evidence, over objection of plaintiff, the testimony of defendant, E. G. Edson, on direct examination to the effect that the items of real estate in his statement of February 1, 1932, reflected the reasonable market value set opposite such items in said statement as of that date.”

These propositions clearly sustain our conclusion that the court had before it affirmative testimony’ as to the value of the stocks listed in the original opinion on the dates therein set out. We have carefully considered appellant’s assignments against this testimony, and they are overruled.

All assignments to the effect that the court’s conclusions of fact, as brought' forward in the original opinion, are against the overwhelming weight and preponderance of the testimony, are overruled. '

On original submission, as on this rehearing, the court carefully reviewed appellant’s propositions of error on all issues discussed.

The motion for additional fact findings is granted to the extent set out herein, and in all other respects refused. The motion for rehearing is overruled.


author: PRICE, Chief Justice.

text:
    SMITH v. BREWER.
    No. 4059.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 27, 1941.
    Rehearing Denied March 20, 1941.
    John E. Lyle, Hayden W. Head, and Keys & Holt, all of Corpus Christi, for appellant. (
    Jack Pope, of Corpus Christi, for appel-lee.
   PRICE, Chief Justice.

This is an appeal from a judgment of the County Court of Nueces County, wherein L. H. Brewer, as plaintiff, recovered 'against L. C. Smith, doing business under the name of Eagle Loan Company, defendant, a judgment in the sum of $121 and certain barber fixtures alleged to be of the value of $45. Appeal was perfected from this judgment, and same is here for review.

This case was filed in one of the Justice Courts of Nueces County on the 10th day of August, 1939. Plaintiff sought recovery in double the amount of alleged usurious interest paid to defendant during the two years elapsing next prior to August 10, 1939, and recovery of certain barber fixtures. Judgment was against defendant and appeal was perfected to the County Court.

In the County Court the trial was before the court without a jury. Judgment was rendered for the plaintiff as before stated.

On motion of the defendant the court made up and filed findings of fact and conclusions of law.

For convenience the parties will be designated here as they were in the trial court.

On February 2, 1930, plaintiff, a negro barber, borrowed from defendant the sum of $20 and executed therefor a written obligation in the sum of $28, payable in weekly installments of $2.80 each. This was the beginning of a series of transactions between them, closing on the 9th day of May, 1939. During the period elapsing from the initial transaction and the closing transaction, plaintiff borrowed sums totaling about $85. In repayment thereof and for interest, he paid defendant the sum of $350. On the' 9th day of May, 1939, the transaction was apparently closed in the following manner: Plaintiff executed and delivered a note in the sum of $61 to defendant, and a release of any and all claims he might have against defendant for the exaction of usury on the prior transactions. Defendant had advanced to plaintiff the sum of $7. This $7 was included in the $61 note. At the time the note was exacted, plaintiff had overpaid all sums of money borrowed from defendant. Plaintiff’s suit was filed on the 10th day of August, 1939, seeking to recover interest payments for the period elapsing next prior to that date.

The facts as we have stated above are in substance comprehended in the findings of fact of the trial judge. These facts are assailed by the defendant, but on a careful reading of the record we hold that all are sustained by the evidence.

Defendant urges a complete effectiveness of the release we have referred to above to extinguish any cause of action plaintiff may have had. This release we shall not set forth in full. It is substantially the same type of release as set forth in the case of Employees Loan Co. v. Templeton, Tex.Civ.App, 109 S.W.2d 774, 780. This case is strongly relied upon by defendant.

Before discussing that case, let us for a moment consider the contract of May 9, 1939. The new loan of $7 is relied upon as affording consideration for the release. To our minds this was all one transaction. For the advance of $7 to plaintiff defendant received a note for $61 and a release for all previous usury exacted. This seems a rather peculiar transaction, but not improbable when viewed in the light of the prior transactions between the parties. In the first transaction defendant collected interest at a rate in -excess of 200 per cent per annum. A careful study of the meager accounts in the evidence justifies the inference that this was about the prevailing rate of interest charged plaintiff.

In the case of Employees Loan Co. v. Templeton, supra, the following is quoted with approval from Cotton v. Beatty, Tex.Civ.App, 162 S.W. 1007: “‘Where defendant made plaintiff a second usurious loan in consideration of plaintiff’s releasing his right to sue for usury in the first loan, that consideration is sufficient and the agreement is a defense to the usury in the first transaction.’ ”

In each of the above mentioned cases the facts are almost parallel with the facts in this case. There can be no dissent with the proposition that an accrued, cause of action for the collection of usurious interest paid may be compromised and released. It seems to us, however, the fact was overlooked that the release was an integral part of the consideration paid, or promised to be paid, for the use of the money. In fact, it seems to us to amount to a payment of the interest in advance. Now, if the interest reserved in the obligation exceeded ten per cent, the court would not enforce same. By the very express provision of our Constitution such a contract is utterly void.

The case of International Bldg. & Loan Ass’n v. Biering, 86 Tex. 476, 25 S.W. 622, 26 S.W. 39, seems to us to hold that any interest, though less than the statutory conventional interest, is usurious if the obligation is tainted with usury. Likewise the case of El Paso Bldg. & Loan Ass’n v. Lane, 81 Tex. 369, 17 S.W. 77.

Interest is the amount paid for the use of money. It need not be paid in money. It is part of the consideration for making a loan. To paraphrase the language of one of our Presidents, it is hire for money. Usury may be paid by the conveyance of property instead of money. Palmetto Lbr. Co. v. Gibbs, 124 Tex. 615, 80 S.W.2d 742, 82 S.W.2d 376, 102 A.L.R. 474, 482. If so paid, double the value of the property parted with may be recovered, provided suit be filed therefor within the proper time. •

We are not unaware that there is a distinction between recovery of usurious interest with penalty and urging usury as a defense. In our opinion this distinction has no bearing here. Here, the court was called upon to enforce a usurious contract. For, as we have said, the contract of May 9, 1939, was a unitary contract. This release is a sham and a fraud for covering and protection of the exaction of outrageous and unconscionable rates of interest from the poor and defenseless. To sustain it as a defense in this case would put the stamp of legal approval upon illegal extortion. Section 11, Article 16, of our State Constitution, provides: “All contracts for a greater rate of interest than ten per centum per annum, shall be deemed usurious, and the first Legislature after this amendment is adopted, shall provide appropriate pains and penalties to prevent the same.”

Article 5071, R.S.1925, in part, provides: “The parties to any written contract may agree to and stipulate for any rate of interest not exceeding ten per cent per annum on the amount of the contract; and all written contracts whatsoever, which may in any way, directly or indirectly, provide for a greater rate of interest shall be void and of no. effect for the amount or value of the interest only.”

We do not believe that our decision herein on this matter in any way conflicts with the prior decisions of the Supreme Court in relation thereto. We believe it is entirely in harmony with the reasoning of that Court in the cases of International Bldg. & Loan Ass’n v. Biering, supra, and El Paso Bldg. & Loan Ass’n v. Lane, supra; also with Commerce Trust Co. v. Ramp, 135 Tex. 84, 138 S.W.2d 531. We do not mean to say that those cases are direct authority for our position here, but only that our position is not inconsistent with those cases. Nor does it conflict with Stout v. Ennis Natl. Bank, 69 Tex. 384, 8 S.W. 808. There, the note was by a subsequent agreement purged of all usury. The consideration for the release of liability for usury paid was an extension of time on a then valid and subsisting obligation.

Defendant assigns error on the ground that the recovery in the County Court was for a less sum than in the Justice Court and the court charged all the costs against the defendant.

Article 2065, R.S.1925, is cited by defendant as showing that the court erred in not charging the cost of the appeal to the County Court against plaintiff. In this we think the court was in error. If reason there was for not taxing the cost as provided in the statute, same does not appear of record.

It is, therefore, ordered that the costs of appeal to the County Court be taxed against plaintiff. However, this matter does not appear to have been called to the attention of the trial court, and the costs of this appeal will be taxed against the defendant.

In our opinion, the other matters assigned as error are without merit and are overruled;

Our justification for writing at this length is that the question is of great and grave importance, and we realize that what we have said conflicts in a measure, at least, with the decision of the Court of Appeals of Fort Worth, which was discussed in the course of the opinion.

It1 is ordered that the judgment be reformed as above indicated and affirmed.


author: • SUTTON, Justice.

text:
    TEXAS CONSERVATIVE OIL CO. v. JOLLY.
    No. 4035.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 27, 1941.
    Rehearing Denied March 20, 1941.

      Neel, King & Rachal, of Corpus Christi, and F. W. Fischer, of Tyler (L. M. Fischer, of Corpus Christi, of counsel), for appellant.
    J, Woodrow Hazlewood, and Kemp, Lewright, Dyer, Wilson & Sorrell, all of Corpus Christi, for appellee.
   • SUTTON, Justice.

This is an appeal from the District Court of Nueces County. The suit is by D. N. Jolly (appellee here, plaintiff below) against Texas Conservative Oil Company (appellant here, defendant below) on an oral contract to establish an alleged interest of ⅜2⅛ of the oil as produced and marketed from the %ths working interest in certain leases described in the petition until he had received $75 per acre. The trial was to a jury, and on the verdict judgment was rendered by the court for the plaintiff. The defendant in due time filed its motion for a new trial, and, the same having been overruled, gave notice of appeal and perfected an appeal herein.

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

The plaintiff, D. N. Jolly, alleged in his petition upon which he went to trial that he was a petroleum geologist by profession, and that on or about the 13th day of April, 1939, Mr. Louis Titus, president of the Texas Conservative Oil Company, telephoned him at San Antonio, and advised him in the telephone conversation that the Sun Oil Company had offered it (defendant) a “farm-out” arrangement on a lease consisting of 133.18 acres to drill a well; it was offering %ths of the working interest and retaining an overriding ⅛⅛ royalty. Plaintiff alleged Mr. Titus told him in the course of that conversation that the defendant was unwilling to enter into the arrangement and undertake to develop the lease until he .(Jolly) had made a geological examination and approved the lease as a likely oil-producing area. He alleged that on that date he made an investigation of the Sun Oil Company’s maps, the data it had on wells drilled in that vicinity, and such other information as he was able to obtain in the Sun Company’s office in San Antonio; that he later pursued his inspection and investigation and made a favorable report on the lease to Mr. Titus. He claimed that Titus told him that the Company did not consider it worth while to undertake to develop the lease on so small an acreage; that it would be necessary to acquire additional assistance by dry hole or “bottom hole” commitments, or additional acreage, and also to procure a driller who would be willing to take a chance and accept at least a part of his pay in acreage. He further claimed that he and Mr. Titus agreed then that they would each undertake to procure such assistance and make such arrangements; that he then suggested to Mr. Titus what his (Jolly’s) interest should be or his compensation for his services, whereupon Mr. Titus advised him that he would make the same arrangement as was made with him on the Flynn lease. The evidence discloses that Mr. Titus, as president of another operating company, had agreed to pay him and was paying him from the oil as run and marketed .from the Flynn lease ⅝2d of the %ths of the oil until he had received $75 per acre. Mr. Jolly claimed and alleged in his petition that Mr. Titus then, as president and representing the defendant Company, agreed with him that he should have for his services in this undertaking ½2d of the %ths of the oil as produced and marketed from the 133.18-acre lease, less any acreage they might have to give out of it to procure the drilling of a well, and that they would undertake to secure other acreage, and that his interest, that is, ⅝2d of the %ths of the oil, would extend to all additional acreage acquired, if any, in connection with this undertaking. He further alleged that they acquired four additional leases; that they procured Mr. E. A. Graham, a driller, to drill the well on the 133.18-acre tract for 40 acres out of it and $8,310 in cash. He alleged the well was drilled on the 133.18-acre lease and oil discovered in commercial quantities; that after the well came in he requested Mr. Titus to give him an instrument in writing acknowledging his interest; that the defendant failed and refused to comply with the request. He then brought this suit.

The defendant answered with a general exception, special exceptions, general denial, and a special answer, wherein it pleaded the statute of frauds; that three of the four additional tracts were acquired from the Sun Oil Company upon the condition they could not be transferred except with the consent of the Sun.

The question as to whether or not there was any such agreement was one of fact. That question was submitted to the jury and it found the agreement was made as claimed and pleaded by the plaintiff. The defendant Company in its brief apparently concedes that finding to be final, and seeks to avoid , it on seven contentions listed in its brief, as follows:

“1. That Louis Titus, as president of appellant corporation, had no authority to bind appellant to the contract as alleged by appellee.
“2. .That the contract declared upon by appellee, in so far as it purports to cover after-acquired leases, is unenforceable by reason of the statute of frauds.
“3. That the contract declared upon by appellee, in so far as it purports to cover after-acquired leases, is not of sufficient definiteness and certainty, in its essentials, as is required for equity to enforce specific performance thereof.
“4. That the evidence is not of that clear, satisfactory and convincing character as is required to impress a parol trust on realty.
“5. That there is a fatal variance between the contract alleged and the contract proved.
“6. That the judgment rendered is not supported by the verdict of the jury.
“7. That there is a lack of necessary parties.”

In propositions asserted by defendant it takes the position that Louis Titus, as president of the defendant, had no authority to make the contract as claimed and pleaded by the plaintiff, and that he (the plaintiff) having alleged that Titus was duly authorized to make the contract, the burden was on him to prove it, and that the evidence was insufficient to support the finding of the jury on an issue submitted by the court on that question, or to establish it as a matter of law. ¡

The authority of the president of a company or any agent may be established by express authority, a course of dealing,, or estoppel, arising in various ways, or by admission and adoption. We think any one of these or all of them find support in this record.

At the first meeting of the stockholders: of the defendant, held on the 23d day of December, 1938, the following resolution was adopted: “Resolved, that Louis Titus, the president of this corporation, be, and is hereby, authorized and empowered to sell any oil or gas lease or other property belonging to this corporation at such prices and upon such terms and conditions as may be determined by said president, and that any assignment, deed, bill of sale, or other conveyance, when signed by said Louis Titus, as president of this corporation, be the assignment, deed, bill of sale of this corporation.”

At this first meeting of the board of directors they adopted by-laws, and in Section 28 thereof this provision is found: “The president shall preside at all meetings * * * ; he shall have direct charge and supervision of the business of the corporation.”

The evidence in this case shows that Mr. Titus, as president of the Company, made two or more drilling contracts for the drilling of wells on the acreage obtained by it in this project, and paid in part therefor with acreage assigned by him.

In the testimony it is admitted the contract was made with the plaintiff Jolly in so far as it applied to the 133.18-acre tract, and that after the first well came in defendant executed and tendered to Mr. Jolly an assignment covering the 93.18 acres remaining in that lease and the 40-acre Parr lease subsequently acquired; but Mr. Titus, for the defendant, in his testimony denied that he ever made any such contract with the plaintiff applicable , to any additional acreage, and that it merely gave him, notwithstanding the agreement had with him, the interest in the 40-acre Parr tract. It has already been noted, however, that the jury found against him on that issue. The plaintiff alleged a single contract and tied the 133.18-acre tract to all the others. Under the finding of the jury the several tracts stand together or fall together..

We think the court may judicially know that the profession of a petroleum, geologist is now recognized as a highly specialized one, and that people and concerns interested in the development and production of petroleum avail themselves of the services of geologists,' and engage them as they do any other services in the development and production of their properties. The proof in this case shows the defendant recognized the value of the services of the plaintiff and its unwillingness to undertake the "farm-out” proposition offered it by the Sun Oil Company until the lease had been inspected and approved by the plaintiff.

We think the employment was in the ordinary course of defendant’s business.

Under the express authority given Mr. Titus he had the authority to sell this property and convey it upon such terms as he saw fit. We take it he might have sold the property and paid Jolly with the money. We are unable to see any difference between the sale of it and the payment of the proceeds to Jolly and the agreement to deliver him the ⅜2d interest in' the oil from the %ths working interest until the service is paid for.

It is well settled that a corporation, like any other, may not avail itself of the services of another and accept benefits from the services or his property and then defend on the ground that such action was ultra vires, or without authority. Kincheloe Irr. Co. v. Hahn Bros. & Co., 105 Tex. 231, 146 S.W. 1187; Reed v. Continental State Bank of Beckville, Tex.Com.App., 2 S.W.2d 426; W. J. Stevens Co. v. Novice State Bank, Tex.Com.App., 2 S.W.2d 419; 10 Tex.Jur. Secs. 260, 312, 331 and 334, and the many cases cited.

The other contention that the contract declared upon, in so far as it purports to cover after-acquired leases, is unenforceable by reason of the statutes of frauds is, we think, untenable. As we understand and construe the contract as alleged by plaintiff, it is not one for the sale and purchase of real property; but the effect of it was that the plaintiff and defendant entered upon a joint undertaking, the purpose of which was to acquire in the manner indicated and pleaded oil leases and develop them, and that the same should be owned by them jointly, the plaintiff’s interest being ⅜2d of %ths of the oil produced and marketed, if any, from the premises to the amount of $75 per acre. We think the proposition asserted by the defendant that the contract declared upon in so far as it applies to after-acquired leases is not of sufficient definiteness and certainty in its essentials as is required for equity to enforce specific performance thereof, likewise may not be sustained. The effect of the contract was, as claimed and pleaded by the plaintiff and found by the jury, that it should apply to all the acreage acquired by them in this particular undertaking. The evidence shows that all the additional acreage was a part of this project and, in part at least, depended upon the development of the 133.18-acre tract. The plaintiff testified also that at the time he entered into the contract with Mr. Titus for the Company that the leases acquired were specifically mentioned, and it was agreed that they would undertake to procure them. The evidence also shows that the driller, Graham, was procured largely through the efforts of the plaintiff, and that he procured the Parr tract.

What has already been said, we think, disposes of the fourth contention listed above, and we overrule all of defendant’s assignments and propositions asserted in connection therewith.

We are likewise of the opinion the fifth contention is not well taken.

In the sixth complaint is made that the judgment rendered is not supported by the verdict of the jury. That, we think, is probably true. The plaintiff sued for and claimed a ½2d of the oil out of the %ths interest to the amount of $75 per acre. The jury found as a fact that was his contract. The judgment establishes the interest of the plaintiff in the gas as well as the oil, but we think, inasmuch as the plaintiff has conceded that in his brief, and has requested this court to reform the judgment in that respect, that the same may be done.

In the seventh contention listed above, defendant complains that there is a lack of necessary parties; that is, that the Sun Oil Company and the Wellington Oil Company, having each contributed additional tracts and reserved an interest, are necessary parties. We are unable to agree to this contention, because the plaintiff asserts no claim or interest in anything these companies reserved. He makes claim only to a ⅜20 of the oil produced and marketed from the %ths working interest which the defendant acquired. He does not undertake to disturb the interests of these parties, nor to assert any claim to anything of theirs. Of course, he necessarily takes his interest subject to every right of theirs and of which he had notice.

Defendant claims also the judgment cannot be sustained because the evidence shows that the acreage contributed by the Wellington Oil Company upon certain conditions was forfeited because of the failure to comply with those conditions. The plaintiff in his brief likewise concedes that contention, and that the Wellington lease was proved to be worthless, and asks this Court to reform the judgment with respect thereto, and we think that may be done.

Defendant further contends that 63 acres out of the Sun 129-acre tract was sold to the Awoeb Oil Company prior to the time the defendant was made a party to the suit, and that therefore the lis pen-dens notice issued and filed in the suit prior thereto was not binding on the Awoeb Company, and that the judgment is ineffective as to that acreage, and that the Awoeb Company is a necessary party to the suit. This question was not raised in the trial court, except Mr. Titus testified to a sale, but it is not made to appear whether the negotiations were pending or whether they had been completed at the time the defendant was made a party to the suit. He testified that the pendency of the suit and the lis pendens appeared in the abstract, and the Awoeb Company’s attorneys raised it, and that he (Titus), for the defendant, guaranteed the Awoeb Company against the claim, and recovery, if any, of the plaintiff. It appears, therefore, that it had notice of the suit and of the claim asserted by the plaintiff and took the 63 acres, if it had been conveyed, which does not appear in the record other than as indicated, with notice of it, and upon the defendant’s guarantee to protect it against the claim of the plaintiff. We conclude therefore that it was not necessary to stop the trial of the case when that fact developed, as it did, incidentally, and make this concern a party to the suit, and that the judgment is effective as against the 63 acres. At any rate, the Awoeb Company has raised no question nor made any complaint. It had an opportunity to intervene and assert its rights and claims if any it had, if it deemed it necessary and so desired, but it did not do that.

It follows from what we have said that the judgment should be reformed and affirmed.

It is, therefore, the judgment of this Court that the judgment of the trial court be reformed in such manner as to eliminate the Wellington tract of 86 acres, and that the interest sought to be established in the gas be likewise eliminated, and that the judgment establish the plaintiff’s interest in the %zá of the %ths of the oil produced and marketed from the acreage remaining not to exceed $75 per acre.

As reformed, the judgment of the trial court is affirmed.


author: SMITH, Chief Justice.

text:
    DILWORTH v. HUSKY.
    No. 10925.
    Court of Civil Appeals of Texas. San Antonio.
    March 19, 1941.

      L. B. Cooper, of Cotulla, for appellant.
    H. H. Schuenemann, of Kenedy, for ap-pellee.
   SMITH, Chief Justice.

This action was brought by Dallas Husky against J. C. Dilworth, Jr., to recover the amount of a promissory note for $500, with interest and attorney’s fees. Husky recovered as prayed for, in a trial without 'a jury, and Dilworth has appealed upon two assignments of error.

In his first assignment of error appellant asserts that the overwhelming preponderance of the evidence showed that the note sued on was given in payment of a gambling debt, which rendered it null and void as being against public policy. Appel-lee testified quite positively that the note was given for money appellant borrowed from him, and not in consideration of a gambling debt. Other witnesses testified to facts tending to show, and to authorize a finding, that the note grew out of- a gambling transaction, to wit, a game of dice. Appellant himself testified the note “was a settlement for what I owed in this dice game partly.” The result was a conflict in evidence upon that issue. The trial judge resolved the conflict in favor of ap-pellee. That finding is binding on this Court. We overrule appellant’s first assignment of error.

Appellant contends in his second assignment of error that the court erred in receiving the note in evidence, and rendering judgment for appellee thereon, “because such instrument is not a lawful note and creates no liability upon the part of appellant to pay appellee a sum certain in money.”

Copy of the note follows:

“Note
“$500.00 No. - Kenedy, Texas,
Mar 9, 1938
“On or before Mar 9, 1939, for value received, I promise to pay to the order of Dallas Husky at First Nichols Nat Bank Kenedy, Tex - Dollars, as follows, to-wit: $- cash, to be credited hereon and $- on. or before the - day of - 193— $- on or before the -day of-193-and-:until paid m full, with interest at 8% per annum after - until paid, together .with reasonable attorney’s fees if placed in the hands of an attorney for collection. It is further agreed that failure to pay any installment of this note when due shall at the option of the holder mature all installments. ' Each signer, endorser or surety hereby waives protest, notice of non-payment and diligence. This note is given as purchase money for - this day sold and delivered to —-chattel mortgage of even date on the above described property.
“/s/ J. C. Dilworth, Jr.”

It seems to be conceded that the note was given in settlement of an obligation (whatever its origin or nature) for the sum of $500, and it appears to be so from undisputed and conclusive evidence, and this testimony, together with the figures, $500, and the other recitals in the instrument certainly suffice to establish the amount of the obligation to be $500. Garrett v. Interstate Bank, 79 Tex. 133, 15 S.W. 224.

No question is raised as to the sufficiency of the pleadings to support the judgment,, which must be affirmed.


text:
    TEXAS INDEMNITY INS. CO. v. SPRINGFIELD.
    No. 3830.
    Court of Civil Appeals of Texas. Beaumont.
    March 20, 1941.
    Rehearing Denied April 2, 1941.

      Forse & Forsé, of Newton, Fountain, Cox & Sandlin, of Houston, and Adams & Hillin, of Jasper, for appellant.
    Collins, Williams & Garrison, of Lúfkin, and E. A. Lindsey, of Newton, for ap-pellee.
   WALKER, Chief Justice.

This is a compensation case, with appellant, Texas Indemnity Insurance Company, the compensation insurance carrier; Kirby Lumber Corporation, the employer; Bruce Springfield, deceased, the employee; .and appellee, J'. H. Springfield, the father of the deceased, the compensation claimant. After overruling appellant’s motion for an instructed verdict and its motion for judgment non obstante veredicto, the court entered judgment on the verdict of the jury in favor of appellee against appellant in the lump sum of $4,802.54, with interest at .six percent per annum from September 2, 1940, from which appellant has prosecuted its appeal to this court.

Appellant contends that the sole cause of the death of Bruce Springfield was acute hemorrhagic nephritis, of which his employment was in no sense a producing cause, and that the court erred in refusing to instruct a verdict in its favor, and in refusing, after the jury had returned its verdict, to enter judgment in its favor non obstante veredicto.

Bruce Springfield died Monday morning, May 1, 1939, while in the course of his employment with the Kirby Lumber Corporation. At the time of his death he was 18 years old, had been in perfect health all of his life; he had not complained of any illness, ache or pain; he had shown no outward sign within his body of any disease or infection; he weighed from 165 to 170 pounds; while in high school he played football, basketball and baseball, and was “quite a foot racer”; he played ball the day before his death. There was testimony that he had never complained of any physical pain or illness of any kind; on the day he died he ate breakfast at his home; nothing out of the ordinary was observed in his conduct or physical condition; on that morning he went to work with his father in his father’s car; before beginning work he walked about a quarter of a mile; he ate nothing after breakfast.

Bill Martin testified that he was about ten feet from Bruce when he fell; he was not looking exactly at him, a pair of plyers attracted his attention. He had talked to Bruce on the morning he died; he had known Bruce well all his life; Bruce was a fine specimen of manhood and apparently in fine physical condition; he talked with Bruce about 8 o’clock before he died; talked with him just before his death and “did not observe any difference in him from what he had always observed”; Bruce was jolly and laughing; he did not say anything about any pain.

Appellee, the father of the deceased, testified that the deceased spent some time in the C.M.T.C.; he was in training in that camp, something in the way of military training for three summers; he knew that Bruce had to take a physical examination each time before the camp would accept him; Dr. Worthy at Call examined Bruce on Friday before he died on Monday.

Dr. W. R. Worthy testified that he had been for many years a doctor for Kirby Lumber Corporation; he had no suspicion that Bruce was suffering from pain; he examined him shortly before he died:

“I examined him three or four times to go off to the Military camp; those examinations are very casual; there is nothing required very positive about it. The State pays me nothing to make it. I am not paid anything at all. I had a few months previous told his father that I had examined him and that he was one of the best specimens of young manhood I had seen anywhere. When I examined him for employment with Kirby Lumber Company I made a thorough examination. I didn’t make a clinical analysis of the urine or what I might call a microscopic examination at that time. I did make a physical examination when he went to work. I had found him to be and stated to his father he was one of the best specimens of physical manhood I had seen in a long time. If this boy had been suffering with nephritis — hemorrhagic nephritis — to such an extent that he would fall dead within a few months' you would probably have detected it, and would probably not have detected it. If I had taken a urinalysis, I would have if he had nephritis at that time, detected it. I think it would have been discovered at that time. Some of the symptoms of this hemorrhagic nephritis are, well, they generally put on a bloat, if it is not very acute, why, they will show a soggy appearance and show they are not eliminating the proper amount. I found nothing like that in Bruce. * * *
“Q. But from your examination, in your post-mortem operation, you would not tell the jury now, would you, doctor, what this boy died from? A. I would not. The post-mortem examination — until we had a pathologist’s report I wouldn’t say what-he died from. That Dr. Wier handled the post-mortem operation and that he turned the kidneys over to the pathologist and the pathologist did the examination.”

J. B. Smith testified that prior to the death of Bruce Springfield he had been an employee of Kirby Lumber Corporation for twelve years; he knew Bruce Springfield during Bruce’s life; Bruce was fully six feet tall; he appeared to be in good physical condition; had never heard him complain of any ailment or pain while he was on the job; on the morning he died, Bruce was tying lumber to be exported and to be used in making flooring; he was tying behind a machine; the machine was 15 or 16 feet wide; a table was where the lumber came out; the grader was there and he sorted the timber; there were three or four workbenches; they had sawhorses and stacked the lumber; the lumber came out at different lengths; they stack it up until they get a roll and then the tier moves the bench that is full to the end of the bench, and ties it up and loads it on the buggy; they tie the bundles up with wires, larger wire than bailing wire, and they trim the ends of the wire; Bruce usually stood at the end of the benches, pulling the lumber out to the end; he was back and forth, approximately six or eight feet:

“I saw Bruce the morning he died; I saw him fall. He was standing right at the end of the bench, down close to this end, and I was coming along through, walking; I had been over to the water fountain; I was coming back eastward when I saw Bruce. Bruce was talking to Robert Ogden and Bill Martin; it was about nine o’clock. Well, he was standing up and talking to these boys. I went and got my drink and he was standing up facing the boys and they was close together; so, I walked through and I touched one of them and got him to step back so I could pass through. When they stepped back I started to pass right between them, and Bruce just — Bruce stepped back on his leg that way, or something; he had his hack to these benches, and I didn’t notice anything particular; he kind of give down in one leg, then he kind of caught on the other one, and kind of give down and fell back. He struck his head on the table as he fell back, and I reached down to try to help him out; * * * he struck his head on one of those horses,— he struck his head on the end of these pieces and fell in in between the legs,— he hit his head on that. This is a four by four that comes through the top. It is just like a sawhorse. He hit his head on the top board. That board I would say was about an eight by an inch and a half gum board. Just prior to the time he fell, he, I think, stepped backward; you know, when I started to get through he kind of stepped back to give me room to go .between. It is kind of crowded in there at times and they was standing up talking. So, I started to pass through and I touched Bill — I wouldn’t be positive, but I believe it was Bill Martin, whichever one was on that side, and asked them to let me by, and naturally, they both stepped back, Bill and the other two boys stepped back for me to go between them; and that left Bruce something like that far from me when he fell. I saw him fall. He just fell when his legs give way; he kind of give down in' the knees and fell back like that, and across the back of his head, why, he struck that cross piece on the table, and he struck it hard enough and loud enough I could hear the sound of the bump above the noise of the planer. That is pretty hard, I would say. Those planers make a good deal of noise. They were running at that time. After he fell I just stopped when he fell and reached down to help him up. I didn’t think he was probably hurt back, you know; I wasn’t expecting it; and when I caught his hand, he didn’t feel to have any life about him or try 4o get up. I pulled on him; he wouldn’t try to get up, and Jesse Rodrequez come helped me get him from under the table. We kind of worked him around; he kind of gasped a little bit, and one of the boys went and got some water. We put it on his face; he didn’t appear like he was dead; some of them said ‘you ought to carry him to the Doctor,’ and three or four of us packed him up and carried him to Jesse’s car and went to the doctor’s office. When we started to lift him he was laying on his face when he fell under the table; his legs were kind of up there; he fell back with on hand — I disremember _ which hand, but one of his hands was up on his breast like; I just reached down and caught him by the hand and pulled on him. He didn’t try to help himself, and Jesse run around and we got him by both hands and lifted him from under the table, that is, the cross-piece, and laid him down on the floor with his head to the east; that was with his face toward the door, where I come from the water fountain. We put the water on him, and then picked him up like that ánd carried him out to the car, facing that direction. His head was back under the horse. When he struck his head on the table he fell on through, you know, his head and back give way and he went through under the table on his back. When we put the water on him, I put my hand on him and lifted up his head. We raised his head up that way. I believe I was holding his head up when Jesse put the water in his face; just poured it in'his hand and put it on his face. I raised him up like that and I got a little blood on my shirt sleeve. There was a little broken place in the skin the blood came from here, just a small place in the back of his head. The wires cut in tying the bundles had a tendency to roll under one’s feet, if he happened to step on a pile of them; they would probably slip around like gravel or something, mash them or something. Sometimes you stick one in your shoe sole, or something like that. They are not bad to roll; they are not bad about it. * * * While the doctor was making the examination, I told him he struck his head on the table as he fell. The doctor worked around his neck.”

In performing the post-mortem, the doctors did not cut the. skin down on the neck, nor did they examine the vertebrae of the neck; they did not make an X-ray of the base of the skull.

Appellant’s attorneys admitted that ap-pellee’s doctor, A. E. Sweatland, was a qualified physician. Dr. Sweatland testified that he had taught anatomy in the University of. Arkansas for ten years; that he had been practicing in Texas since 1912, and had done special work in surgery and in brain work; “A person can have concussion of the brain without any hem-orrháge of the brain”; a post-mortem operation might not disclose that concussion; a microscopic examination of the brain might not disclose a concussion sufficient to produce death; a person’s neck may be broken to such an extent as to produce death, and it may be that the fracture or break can not be located by palpation:

“Palpation is pressure — gentle pressure with your hands, fingers; any part that you wish to find out, get some information as regards to the condition. You can not by feeling of the neck always locate a fracture or broken vertebra which would be sufficient to produce death in a man-eighteen years old weighing 170 pounds. Such a fracture can be located and definitely determined by X-ray. In my opinion, if a man weighing 170 pounds would fall backward, striking a board some six or eight or twelve inches above the floor with such force to have the noise from the-striking of his head or neck on the board heard above the running sawmill machinery from a distance of three or four feet would in my opinion be a sufficient blow to-break his neck. The symptoms of a broken neck depend on how much of the cord and medulla are involved. You can have a. broken neck — I have had several of them that lived ten days after the neck was broken. Assuming that the striking of the head or neck upon such board was sufficient to produce death, still it would depend on where the neck was broken, what bones were involved and whether the medulla was involved in order to say just what the symptoms would be. Even if the top of the head was removed, the brain taken out, and the cavity- cleaned, and one looked in it by artificial lights you might or might not see the vertebrae of the neck with sufficient clarity to determine whether or not there is a fracture; it would depend on how much displacement there was of the fragments of the vertebrae that were fractured. Some of the symptoms of hemorrhagic nephritis — you can have hemorrhage from the kidneys from a stone passing; you can have hemorrhage from a blow; you can have considerable blood in the urine coming from a severe blow. Hemorrhagic nephritis means hemorrhage of the kidneys, that is the plain definition and nephritis means inflammation of the kidneys. Supposing acute hemorrhagic nephritis is Bright’s disease, Bright’s disease does not produce hemorrhage as a rule. Bright’s disease, unless it is acute inflammation of the kidneys, is rather a long continued affair. A man eighteen years of age at the inception of Bright’s disease, we would expect him, a good healthy young man, to be more likely to throw it off or resist it than an elderly person. There are two divisions of Bright’s disease. There is the acute form; he can have a lot of bloating and swelling and albumen in the urine; and all of that. And then there is the chronic form of Bright’s disease that creeps on and is very often overlooked in older people. In a case of acute Bright’s disease we would expect bloating to be one of the symptoms, if it was acute. It would be the most unlikely thing in the world from a practical standpoint that a young man, eighteen years of age, weighing 170 pounds, who had been examined many times and immediately before his death spent Sunday afternoon playing ball, or a great part of it, goes to bed, makes no complaint, eats a good breakfast the next morning, goes to work about eight or a little after eight, turns around and faces some others and there is no apparent change in his features, color, or anything and then he falls, that such a man died with Bright’s disease that way. I explain that by saying, ‘Well, for the very reason Bright’s disease even in the acute form, doesn’t kill’. If this young man we have been talking about when he fell never regained consciousness, never spoke, and never moved, and died within ten minutes or sooner I would say that acute Bright’s disease did not kill him. If a man such as already described falls backward striking his head on a sawhorse some eight or twelve' inches above the floor with such force that the bump is heard some four or five feet away over the noise of the running sawmill I would say that such a blow would be sufficient to break the man’s neck.”

Answering the questions, could a young man this size live to the time he fell dead, doing his average work, nobody observing any change in him whatsoever; and would he live up to the time with Bright’s disease, nobody observing any change, and fall dead, the doctor said: “Not from Bright’s disease. He could not from any kidney ailment that I know anything about. A young man, as you have described, falling striking the board on the sawhorse as you have described, falling perfectly limp, after which he doesn’t respond in any way and the back of his head was injured enough so that the party putting his arm under the head got blood on his sleeve I would say could have had a severe enough concussion to kill him, and could have had an injury to the medulla. His neck could have been broken by a fall like that. If the lick is sufficient to produce death then one of the symptoms would be paralysis. We would expect a person suffering from acute Bright’s disease to be bloated some days before déath comes. I know of no such case where there was no bloating. There is always bloating in Bright’s disease that would produce death. In acute nephritis the patient begins after a time to show pallor, the blood isn’t what it should be and that shows in the skin. I would think the bloating would be sufficient that intimate friends who were closely associated with him would notice it, if it had gone that far — if it had gone far enough to kill him. I do not think that he could go on without being bloated to such an extent that some-' body would notice it. Usually there are some headaches in those cases, not always continuous. I wouldn’t expect a man before he came to death from acute Bright’s disease to get out and play ball fourteen hours before his death. It is doubtful that he could do it; I would say he could not. He could not, with acute Bright's disease, two hours before death tie up bundles of lumber, doing his regular work as efficiently as ever. I mean it is my opinion it would be impossible for a young man of this kind to go right up until he fell dead without some symptoms that would be noticeable to his people.”

On the testimony as summarized, the court did not err in overruling appellant’s motion for an instructed verdict and in refusing vto enter judgment non obstante veredicto; this conclusion does not require the citation of authorities in its support.

As against the jury’s verdict, it would serve no useful purpose to make a statement of appellant’s evidence.

The evidence raised the issue that the injury received by Bruce Springfield was “accidental”, and was sufficient to establish a causal connection between his ín- ' jury and his death.

Answering special issues, the jury found that Bruce Springfield “fell in the Kirby Lumber Corporation’s planing mill on May 1, 1939”; that in falling he struck his head against a wooden sawhorse; that he “sustained an injury to his head as the result of falling against a wooden sawhorse’1*; that the injury to his head, sus-, tained by Bruce Springfield as a result of falling against a wooden sawhorse on May 1, 1939, “* * * was a producing cause of his death”; and that, as the result of falling against a wooden sawhorse, Bruce Springfield sustained an injury to his neck, which injury was a producing cause of his death. As against these findings, the court did not err in refusing to submit an issue “as to whether Bruce Springfield sustained an accidental injury which produced his death”; that issue was sufficiently covered by the court’s charge.

Appellant complains that because appellee “failed to plead facts to show ‘good cause’ for failure to file his claim for compensation at a date earlier than February 16, 1940, the court was without jurisdiction”; and also that the evidence did not raise the issue of “good cause”; and that “the court erred in failing and refusing to inquire of the jury by proper issues whether plaintiff had good cause for failure to file his claim during all of the time up to the date of filing.” These contentions are overruled. As good cause, ap-pellee plead that within six months after the death of his son, Dr. Worthy told him that his son did not die of injury but from disease; soon thereafter and as soon as he was physically fit he had to go to South Carolina for cancer treatment, where he was compelled to remain until the lapsing of six months; after returning from South Carolina he learned that his son had fallen and had sustained injuries; as soon thereafter as his physical condition permitted, he went to see and employed attorneys to represent him in filing his claim for compensation ; immediately upon learning that he had not been correctly advised of the cause of his son’s death and as soon as he was able to leave his room, he employed attorneys and filed his claim before the Industrial Accident Board. These facts constituted a sufficient allegation of “good cause” for the delay in filing his claim. Ap-pellee’s testimony raised the issues of fact plead by him as constituting good cause. Without quoting from the court’s charge, we hold that the issue of “good cause” was satisfactorily submitted.

In our conclusions on the issue of “good cause” we pretermit a discussion of ap-pellee’s counter propositions that appellant’s answer was not sufficient to support its assignments on that issue; that its assignments are not sufficient to raise the point of want of “good cause”; and that the assignments against the court’s charge are insufficient to support the failure to submit that issue.

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

Affirmed.