author: LESLIE, Chief Justice.

text:
    MORRISON v. SMITH.
    No. 1983.
    Court of Civil Appeals of Texas. Eastland.
    March 8, 1940.
    Scarborough & Ely, of Abilene, for appellant.
    Ernest W. Wilson and Thos. E. Hayden, Jr., both of Abilene, for appellee.
   LESLIE, Chief Justice.

Mrs. Susan B. Smith, appellee, instituted this suit against J. F. Morrison, operating as Southwestern Peanut Company, appellant, to recover for personal injuries and property damage growing out of the collision of an automobile driven by her with the defendant’s truck. Both parties were traveling in a westerly direction on the Bankhead Highway when the accident occurred between Baird and Clyde in Callahan County. The appellee charged various acts of negligence, etc., and the appellant answered by general denial, pleas of contributory negligence, etc.

In the trial it was, in substance, the theory of the appellant that his truck had turned to the left of the road to pass another car and that after it had so turned and was in the act of passing such car, the appellee, driving at an excessive rate of speed, undertook to pass the truck and in doing so, drove into the truck, causing her car to turn over after careening across the road in front of the truck. The appellant further contended that no horn was blown or signal given by the appellee when she attempted to pass the truck. On the other hand, the appellee’s contentions and testimony were to the contrary. She charged the appellant with turning suddenly to the left and striking her car and that he failed to give any signal or notice that he was about to turn his car to the left. Appellant’s testimony is also to the effect that his truck and trailer were entirely on the left side of the road, passing the car on his right when the appellee, somewhat on the shoulder of the highway, undertook to pass the appellant’s truck.

In answer to special issues the jury found the appellant guilty of negligence: (1) in turning the truck to the left immediately before the collision “without first see- . ing that there was sufficient space for such movement * * * without striking plaintiff’s car”; (2) failing “to give a visible signal of his intention to turn to the left immediately before he turned to the left;” (3) failing “to give an audible sign of his intention to turn to the left” etc-.; (4) in failing “to keep a proper lookout for other cars on the Highway immediately before and at the time of the collision.”

The jury acquitted the appellee of contributory negligence: (1) in attempting to pass the truck while it was passing another car on the highway, (2) in driving at an excessive rate of speed.

The jury also found that the collision did not result from an unavoidable accident.

The first assignments of error complain of the court’s failure to grant a new trial on the ground of newly discovered evidence of the witness Ferguson who is alleged to have seen the accident from a nearby point in a field; and the second group of assignments assert that the court erred in not granting a new trial because of the inflammatory remarks of the appel-lee’s counsel in telling the jury in his closing argument that the appellant’s counsel was “buying, hiring and bringing witnesses” etc. The propositions relating to newly discovered evidence present a rather close question but since we find that the judgment must be reversed on other points we have concluded not to base our decision on any particular view of the first group of assignments. If we are correct in the conclusions presently to be stated, the question of newly discovered evidence becomes immaterial and will not arise upon another trial.

Appellant’s proposition 2 is addressed to the ruling of the court concerning the following remarks of appellee’s counsel: “Let’s get another one. Suppose it happened like he said, with her out on the shoulder; she would have to have overturned to come in there. She couldn’t do it. Off in the borrow pit she would go. They claim that was this man here (indicating) but Davis hasn’t got them here. It wasn’t Mr. Morrison’s duty. He was the man paying their way here. I wonder what they told him when he struck this man. It wasn’t Mr. Morrison’s duty. It was Davis’s duty, because he was buying, hiring and bringing witnesses here * * ”

Proposition 3 is addressed to said attorney’s remarks used at the same time and in practically the same connection. They are as follows: “This other testimony — let’s see their testimony, — that’s Wilcoxen and Young, the parties that Mr. Davis Scarborough paid their way up here. I do not know how they employed Mr. Scarborough in this case — whether it was like the lawyer who will charge you so much if you furnish the testimony, and so much if he furnishes the testimony- I don’t know how they arrive at that, but anyhow Mr. Scarborough paid their way up here. I don’t know how he did that. I have never seen a lawyér with that much money. Anyway, he volunteered that statement * ⅜ ”

Although the trial court instructed the jury to disregard the above remarks, such argument is urged as reversible error for the following reasons: (1) Such comments amounting to .impeachment testimony by counsel (who was not sworn) with respect to the credibility of material witnesses .offered by appellant, and whose testimony bore upon vital issues in the case. (2) Such comment constituted a direct statement of fact by counsel to the effect that the appellant’s counsel had bought and hired witnesses for the appellant. (3) Such remarks were not in reply to any argument of appellee’s counsel or warranted by the testimony. (4) That such statements by appellee’s counsel amounting to a charge that the appellant’s counsel had been guilty of subornation of perjury, and (5) that by such remarks ajid observations the attorney for appellee undertook to break down testimony of witnesses Wil-coxen and Young upon whose testimony (in connection with that of the truck driver) appellant relied to establish the acts of contributory negligence charged to the appel-lee, etc.

On the trial the appellant offered the testimony of witnesses Young and Wilcoxen who had been following the truck for sometime and who at the moment of the accident were about 75 yards behind the truck. They testified, in substance, that the Smith car was about 50 yards behind the truck and 25 yards in advance of their car when the truck began pulling out to the left to pass the car in front of it. That appellee did not pull to the “right hand side of the highway” after passing them, that “she just stayed on the left hand side'of the highway”; that “about the time she got to this truck, * * * the truck had started around another car, and whenever she started around him * * * she hit his [rear left] duals on his truck, and when she did, it threw the back end of her car around that way (indicating). She went plumb around his truck and- turned over.” That the truck and the car (it was passing) were side by side when the Smith car “got up to that point.”

Wilcoxen also testified that the appellee was traveling 50 or 60 miles an hour when it passed the car in which he was driving. Young testified the appellee’s car was traveling “plenty fast.” Both witnesses testified their own car was running about 35 miles an hour. One of these witnesses also testified that he never heard Mrs. Smith blow her horn or give any such signal. The truck driver testified that no such signals or warnings were heard by him.

The findings of the jury on the material issues have'been set-out above. This much of the testimony has been stated to show its conflicting nature and the closeness of the issues drawn. ' In other words,' the jury adopted the appellee’s theory of the case to the total exclusion of appellant’s theory of what occurred. ■ Evidently it disregarded the testimony of Wilcoxen and Young.

Further, the testimony was undisputed that appellant had agreed to pay Wilcoxen and Young for the time consumed, as well as expenses, in attending court to testify in person. Appellant made no effort to conceal these facts, nor does it appear that either the appellant or appellee considered that the payment of such items of expenses and for time was in any measure improper. That is doubtless the correct view' of such acts and it is believed that the presence of witnesses testifying in open court before the judge and jurors is preferable to the production of their testimony by deposition.

Upon the foregoing background of the present litigation we are to determine whether or not the argument complained of was material and prejudicial. We think we are not without authority in this state to guide us to a correct answer to that question. The opinion in Northern Texas Traction Co. v. Nicholson, Tex.Civ.App., 188 S.W. 1028, 1032, is a well-reasoned opinion upon substantially the same state of facts and believed to be well in point here. That was a case in which certain witnesses were induced to attend court and testify upon the understanding that they were to be reimbursed “in the ratio of their earnings for the time they were in attendance upon court as witnesses for defendant.”

The plaintiff’s attorney discussed these witnesses and their testimony as follows: “Now, about these women, gentlemen of the jury, we can’t believe their testimony. They are bought and paid for, as admitted by their claim agent, Douglass.”

In discussing the assignment directed to such argument the court in that case spoke as follows: “One of the limitations of counsel’s right is, however, that he may not state facts not supported by or inferable from the evidence in the case under discussion. Winnsboro Cotton Oil Co. v. Carson [Tex.Civ.App.], 185 S.W. 1002. That counsel’s statement that defendant’s claim agent, ‘had bought and paid for’ certain witnesses, and that the claim agent admitted- that fact, and as a consequence could not be believed, is not fairly supported by or inferable from the evidence is in our opinion, clear. The claim agent testified, in substance, that he had agreed to pay the witnesses while in attendance .upon court in-the ratio. of -what they wer.e earning.The litigation involved a private controversy between the -parties, and there is much reason why the witnesses would not have been willing to quit their employment and sacrifice their -earnings in order to testify in a matter in which they had no interest, and we see no impropriety in the arrangement, or any justification or support in the evidence for the deduction drawn. It is true that the witnesses could -have been forced to attend by tendering their fees, but such a course is obviously beset by many inconveniences and difficulties tending to prevent a full development of the facts. Of course, had any circumstance or fact been proven that would have justified the innuendo of perjury, the argument would have been legitimate; but, in our opinion, that fact is not deducible from the agreement to reimburse the women for the time, lost.”

In this same case it was also contended that the error, if any, was harmless in that the amount of the verdict was -not excessive. In the instant case the judgment is for $4894.65. The court reviewed the testimony in said case and in passing upon the question raised further held: “It was the servants of the defendant in the one instance who testified concerning Mrs. Nicholson’s actions in alighting from the car and who counsel argued did not have to be believed because they were servants, while in the other it was the women referred to by counsel as having been bought and paid for by the claim agent who testified to the facts tending to prove that Mrs. Nicholson was malingering. The evidence so standing, can it be said that the error was harmless because only $5,000 was állowed for a fractured bone? As indicated, we do not think so. The evidence was sharply conflicting and evenly divided on both the issue of the fall from the car and Mrs. Nicholson’s subsequent simulated illness. To discredit the servants of defendant and the women witnesses was but to strengthen the evidence of Mr. and Mrs. Nicholson and their daughter, on the issue of the accident, and that of- her other witnesses on her subsequent illness. Such was the holding in Ft. W. Belt Ry. Co. v. Johnson, 59 Tex.Civ.App. 105, 125 S.W. [387] 389. And in this case, as was said in the case cited, no effort was made to impeach the witnesses sought to be discredited by the argument, nor is any conflict, contradiction,- or inherent improbability shown in their account of the accident, and as a consequence no justification for the charges.” (Italics ours)

That opinion is believed to fit the facts of the instant case. We believe that it ascribes the proper legal effect and consequences to the argument here complained of. The record before us no more warrants the inference and- conclusions embraced in the argument complained of than did the record passed upon in the Nicholson case.

It is unnecessary to lengthen the opinion by a discussion of the authorities which we think definitely'' condemn such argument as prejudicial error requiring the reversal of the judgment of the trial court, even though that court attempts to remove the harm by instruction similar to that given in the instant case. However, we cite the following authorities which,, we think, warrant and require the disposition made of this appeal. Texas Emp. Ins. Ass’n v. Rowell, Tex.Civ.App., 104 S.W.2d 613; Williams v. Rodocker, Tex.Civ.App., 84 S.W.2d 556; Robbins v. Wynne, Tex.Com.App., 44 S.W.2d 946; Woodard v. Texas & P. Ry. Co., 126 Tex. 30, 86 S.W.2d 38; S. H. Kress & Co. v. Lindley et al., Tex.Civ.App., 46 S.W.2d 379; Texas & N. O. Ry. Co. v. Owens, Tex.Civ.App., 54 S.W.2d 848; Southwestern Bell Telephone Co. v. Hardy, Tex.Civ.App., 91 S.W.2d 1075; Gulf T. & W. Ry. Co. v. Culver, Tex.Civ.App., 168 S.W. 514; Guardian Sercurities Corp. v. Mahoney, Tex.Civ.App., 49 S.W.2d 963.

Argument which imputes perjury to witnesses and subornation of perjury to counsel of adverse litigant is not to be taken lightly when it is not sustained by the testimony or reasonable inferences therefrom. There is nothing in the record, taken as a whole, to excuse the argument complained of, or to render it harmless in an affirmative way. There is no better statement of the rule requiring a reversal of the judgment when such error is committed as well as the reason for such rule than that stated in. Bell v. Blackwell, Tex.Com.App., 283 S.W. 765. Certainly there is in the instant case a reasonable doubt of the harmful effect of such argument. Texas Indemnity Ins. Co. v. McCurry, Tex.Com.App., 41 S.W.2d 215, 78 A.L.R. 760.

In appellee’s brief it is insisted that the bills of exception presenting the matter of attorney’s objectionable argument 'are insufficient because they do not disclose either that there was no evidence to justify the argument, or that there was no argument on the part of the opposing counsel to provoke the same. The authorities relied upon to sustain such proposition have been overruled by the opinion of our Supreme Court in West Texas Utilities Co. v. Renner, (appealed from this court) 53 S.W.2d 451.

For the reasons assigned, the judgment of the trial court is’reversed and the cause remanded.


source: Caselaw Access Project

author: WILLIAMS, Justice.

license: Public Domain

text:
    GRANBERRY v. McBRIDE et al.
    No. 5471.
    Court of Civil Appeals of Texas. Texarkana.
    March 7, 1940.

      Bartlett & Patman, of Linden, for appellant.
    Newland, Cornett & Whitworth, of Linden, for appellees.
   WILLIAMS, Justice.

L. M. Granberry, plaintiff below, sued the heirs of A. B. McBride, and in his prayer for relief seeks to cancel, set aside and annul an instrument in writing, signed, acknowledged and delivered by plaintiff on January IS, 1934, to A. B. McBride, now deceased. In this instrument, a general warranty deed in form, plaintiff purports to convey to McBride in fee simple approximately 162 acres of land in . Cass County. Same was recorded in .Cass County Deed Records the next day. The deed recites $381.34 cash in hand paid to plaintiff by McBride and the further consideration of McBride’s assumption of the payment of a balance of $817.83 due by plaintiff to the Federal Land Bank payable cm the amortization plan in semi-annual payments. This suit was filed March 6, 1937. No homestead question is involved. The validity of the Land Bank’s deed of trust lien to secure the $817.83 balance is not questioned. At the time this deed was ■ executed plaintiff admits he owed McBride $381.34, and was in default on his taxes for several years and had failed to meet a number of payments to the Land Bank which had fallen due. McBride paid these delinquencies, and installments and taxes which subsequently came due.

Plaintiff pleaded that at the time he executed the deed he was sick, “incapable of transacting business as might a healthy man,” uneducated, and wholly unfamiliar with the difference between a deed and a deed of trust, and relied upon representations made to him by McBride that the instrument was a deed of trust, and executed the' instrument believing it to be a deed of trust, with the intention solely of securing McBride in the above-mentioned sums of money.-. In other paragraphs of the petition plaintiff pleaded that he executed the purported deed with the “complete and mutual understanding” that McBride would allow him five years from date of deed within which to redeem the land by. reimbursing McBride the amount of the sums above mentioned with 10% interest. In addition to a general demurrer, denial and various special exceptions, defendant pleaded that plaintiff in certain acts and conduct had affirmed and ratified such instrument as a warranty deed.

At the close of the evidence offered by plaintiff, the .court instructed the jury to return a verdict for defendants, and entered judgment denying plaintiff a recovery. No proposition having been advanced upon either, of the two assignments of error, the record will be examined for fundamental error. 3 Tex.Jur. 877, Sec. 613.

Although plaintiff pleaded that he was led to believe he was executing a mortgage, through alleged fraudulent acts and conduct of McBride, his evidence does not support such allegations. He testified that he could read well at the time, but' did not read the instrument or request any one to read it for him. Plaintiff offered no testimony that any one represented the instrument he signed to be' a mortgage. In fact, all the evidence offered is to the effect that McBride agreed to give him five years to redeem the land. This is reflected in the testimony of Granberry. He testified that McBride told him when he signed the instrument: “I am going to hold this land for you for five years, and then if you will pay it out I will deed it back to you; all I want is my money back out of it.” “He told me that at the time.” It is evident that the instrument which plaintiff executed was a general warranty deed conveying a fee-simple title, in which McBride assumed the payment of and became obligated to pay the balance due on a valid subsisting lien then held by the Land Bank. In this, the consideration expressed was contractual. In the absence of proof of fraud, accident or mistake, such a consideration is not subject to be varied or contradicted by parol so as to engraft upon the terms of this instrument this additional alleged oral agreement. Pickett v. Green, 120 Ind. 584, 22 N.E. 737; Pridgen v. Furnish, Tex.Com.App., 23 S.W.2d 307; Matheson v. C — B Live Stock Co.* Tex.Civ.App., 176 S.W. 734; 17 Tex.Jur. 854, Sec. 388; 10 R.C.L. 1044, Sec. 238.

In March, 1936,' McBride sued plaintiff in a forcible detainer suit for possession of this land. If plaintiff had believed he had executed a mortgage instead of a deed, and conceding that McBride had misled him, plaintiff learned in this forcible detainer suit that McBride asserted title and .possession under the deed. Plaintiff’s witness Logwood, the Justice of the Peace who. presided in the forcible detainer suit, when asked what contention plaintiff made in the trial as to why he would not give. McBride possession of the place, answered: “He said McBride owed him $60 for. work on the. fence and he wasn’t going to move until' he paid him. That was his defense to that suit.” Plaintiff did not deny this testimony given by his witness. After McBride had recovered judgment for possession of the land in the forcible de-tainer suit plaintiff on May 22, 1936, entered into a written rental agreement under which he rented the residence building and a hog pasture on the farm for the year 1936, and agreed to surrender possession on or before December 31, 1936. He admits that he made this rental agreement. He further admitted that he paid $60 in cash in advance as rent for the use of the residence and pasture for 1936. Others who cultivated the land in 1934, 1935, and 1936, attorned to McBride with the rents. Plaintiff does not claim to have been under any physical or mental disability at the time of the forcible detainer trial at this time, or when he made the rental contract. These subsequent acts and conduct of plaintiff, viewed in the most favorable light for plaintiff, if it does not refute his contention that the-instrument was intended to.be a mortgage,, amount to a ratification of the instrument-as a deed according to its terms. Minter v. Hawkins, 54 Tex.Civ.App. 228, 117 S.W. 172, 173; Kiehn v. Willmann, Tex.Civ.App., 218 S.W. 15; Missouri Pac. Ry. Co. v. Brazil, 72 Tex. 233, 10 S.W. 403; Newman v. Taylor, Tex.Civ.App., 122 S.W. 425; 10 Tex.Jur. 107 Sec. 62; 10 Tex.Jur. p. 65; 24 Tex.Jur. 385, Sec. 10; 7 Tex.Jur. pp. 943, 947.

The judgment is affirmed.


author: HALL, Justice.

text:
    TEXAS MILK PRODUCTS CO. v. BIRTCHER et al.
    No. 5418.
    Court of Civil Appeals of Texas. Texarkana.
    March 6, 1940.
    Rehearing Denied March 21, 1940.

      Atchley & Vance, of Texarkana, for appellant.
    Wm. V. Brown, of Texarkana, for ap-pellees.
   HALL, Justice.

This is a suit brought by appellees, V. T. Hannon and Johnnie Birtcher, against appellant, Texas Milk Products Company, for damages growing out of a collision of one of appellant’s trucks with Hannon’s gasoline truck driven by Birtcher. Suit was first instituted by Hannon for’ damages to his truck and later Birtcher instituted suit against appellant’ for alleged personal injuries suffered by him as a result of said collision. Both Hannon and Birtcher alleged substantially the same grounds of general and specific acts of negligence. Appellant’s answer consisted of general demurrer, numerous special exceptions, general denial and a cross-action against both Hannon and Birtcher in which it is alleged that Birtcher, individually, and as agent of Hannon and driver of his gasoline truck, was guilty of general and specific acts of negligence. The two alleged causes, of action against appellant growing out of the same collision were consolidated and tried together in the court below. Trial was to a jury on special issues which resulted in a verdict for appellees. Judgment was en-téred for appellees for the damages found by the jury, from which appellant perfects its appeal to this court.

This suit arises out of a collision of appellant’s milk truck with appellee Hannon’s gasoline truck. Birtcher was driving Han-non’s truck in a northerly direction at the time of the collision on the highway between Gilmer and Pittsburg. His truck was loaded with gasoline which had been purchased at Gladewater for Hannon’s filling stations- at Texarkana. Appellant’s truck was traveling south at the time of the collision and was being driven by J. H. Smelley. The following facts' are undisputed: The collision occurred nine or ten miles north of Gilmer. The road at that place is practically straight and runs north and south but is hilly. At the time of the collision, which was about 3:30 p. m., February 26, 1937, appellant’s truck was going up an incline and Birtcher, of course, was going down said incline. The road is asphalt or black-top and is wide enough for two cars to pass with room to spare. The road was wet and slick from rain and sleet which had been falling for most of that day. After the collision the two trucks came to rest both were headed in a southerly direction towards Gilmer, appellant’s truck off the west side of the road and appellee’s truck just off the east side of the road. Appellant’s truck was a little farther south than appellee’s- and headed slightly to the southwest. The impact caused the gasoline truck to catch fire, which fire was communicated to appellant’s truck, both of them being destroyed.

Appellant’s third proposition is: "The issue of unavoidable accident having been amply supported by the pleadings and the proof in the case, the court should have submitted the issue of unavoidable accident as requested by appellant and it was error by the court in refusing to submit such issue to the jury.” The exception to the court’s charge upon which assignment of error No. 3 and proposition No. 3 are based is: “Defendant objects and excepts to the court’s charge as a whole, because it does' not submit to the jury for their determination the issue of unavoidable accident, and the defendant asserting that the issue of unavoidable accident is in the case, here and now respectfully asks the court to submit in appropriate terms a proper definition of unavoidable accident, and to submit an issue to the jury inquiring of them, in the manner and form required by law, whether or not the collision in question was the result of an unavoidable accident.”

Nowhere does it appear in the récord that appellant submitted in writing to the court a special issue embodying the question of unavoidable accident. If appellant desired the submission of such" an issue to the jury, it was incumbent upon it 'to tender same to the court below. An objection alone, directed to the charge of the court for failure to submit an issue to thé jury, is insufficient to present the question to this court for review. This rule has become the settled law of this state as reflected by the following decisions: Gulf C. & S. F. Rwy. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; Hicks Rubber Co. v. Harper, Tex.Sup., 132 S.W.2d 579, Supreme Court affirming Hicks Rubber Co. v. Harper, Tex.Civ.App., 131 S.W.2d 749; Texas & N. O. Rwy. Co. v. Crow, 132 Tex. 465, 123 S.W.2d 649, affirming, Texas & N. O. Rwy. Co. v. Crow, Tex.Civ.App., 101 S.W.2d 274; Southern Underwriters v. Parker, Tex.Civ.App., 129 S.W.2d 738, writ refused; Forth Worth & D. C. Rwy. Co. v. Bozeman, Tex.Civ.App., 135 S.W.2d 275. This proposition is overruled.

By its seventh proposition appellant asserts that “it was misconduct for appellee Birtcher to purchase cold drinks for the juror E. B. Braley during-the time the jury had the court’s charge under consideration and deliberating thereon, before, they had reached a verdict * * * ” for which the trial court should have granted a new trial. .It appears from the record herein that late in the afternoon of the second day of the trial after the cause had been submitted to the jury and after their deliberation for five or six hours, the court permitted them to separate for the night. After their separation, Braley, one of the jurors trying this case, went across the street to a store in front of the court house to get a cold drink. He testified before the court on motion to set aside the verdict that he saw appellee Birtcher “standing on the outside over there, and asked him to take a drink with me. And he told me ‘No’, that he would buy me a drink.”

“Q. And he said that he would pay for your drink? A. Yes.
“Q. Do you remember, Mr. Braley, what you drank over there? A. A Coca Cola.
“Q. And Mr. Birtcher paid for it? A. Yes.
“Q. Of course you didn’t ask him to do that? A. No, I first asked him to drink with me and he said No, he would buy me a drink.
“Q. And he volunteered to pay for yours? A. Yes, sir.
“Q. He turned and went back in the store with you to pay for the drink? A. Yes, he came back in there.
“Q. When you started to leave did Mr. Birtcher say to you, ‘I’ll see you in the morning?’ A. I don’t remember.
“Q. Now, when you came to the court house this morning, Mr. Braley, Mr. Birtcher, the plaintiff in this case, was seated on the seat on the Birdwell store over there? A. I believe he was.
“Q. You went in by yourself and bought a cold drink and drank by yourself this morning? A. Yes, and I asked him to go have a drink.
“Q. And when you went in the store to get your drink Mr. Birtcher and another gentleman also went in and got a drink? A. Yes, sir.
“Q. And were there some other men in there? A. I don’t remember.”
Cross-examination by Mr. Brown:
“Q. Mr. Braley, did you think anything about asking Mr. Birtcher to have a drink with you? A. No. -I asked Judge Atchley (attorney for .appellant) to come have a drink with me this morning.
“Q. So you asked Mr.'Atchley this morning to have a drink with you? A. Yes, ■sir.
“Q. And he declined to take a drink with you? A. Yes, sir.
“Q. Now, at the time you met Mr. Birtcher at the stpre and asked him to Rave a drink with you, I will ask you whether or not you had anything about this case in mind. A. No. I went over there, and saw him and wanted to get a «drink,, and hurry home. * ⅜ * And he said ‘No/ I will pay for you a drink and I want them to drink with you.’ ”

The juror testified that before adjournment that afternoon the jury had answered all the issues down to the one making inquiry of Birtcher’s damages. That the jury was in disagreement on that issue.

“A. * * * It was mixed up. We answered down to where we were to give his amount of damage and we could not agree on'that yesterday evening. And'we skipped that question, letting it ride till this morning and we found these were all here, and we debated on the question and that was where we came in here.. We was mixed up with these numbers.
“Q. About the number of questions? A. Yes.”

The juror further testified:

“Q. In other words, you had answered all the questions down to the one inquiring as to Birtcher’s damages and had even answered some of the rest of the questions following the one about Birtcher’s damages? A. Yes, sir.
“Q. You answered some of the rest of the questions, as well as the ones about Mr. Hannon’s damages? A. Yes.”
On cross-examination the juror testified further:
“Q. Did you have any discussion in the jury room before the court adjourned about Mr. Birtcher’s damages? A. Yes, sir.
“Q. What did you have in mind, Mr. Braley, as to being the amount of damages to award him ? A. I said two thousand dollars.
“Q. Did. you say that out in the jury room? A. Yes.
“Q. Before the jury adjourned? A. Yes.
“Q. Did you agree upon the same amount this morning? A. After a lot of discussion. There was two that did not want to give it. . . ■
. “Q. How many besides you didn’t want to give the two ■ thousand dollars ? - A. Seven to four.
“Q. Seven wanted to. give the amount and four didn’t? A;, Ye?.
⅜ ¾: ⅝ iji • ⅜ sjc
“Q. Were you one of. the. seven that wanted to give him two thousand dollars? A. Yes, sir. ... .
“Q. A.nd that was before he paid for your'drink? A. Yes’.
“Q. And this morning the other four came over to the. seven, was that right? A. Yes, sir.”
Appellee Birtcher testified substantially .as the juror did about buying the Coca Cola for the juror. In- addition Birtcher said he did hot know Braley was a juror; that he only knew one member of the jury, a Mr. Hardin. He didn’t remember having seen the juror Braley before.
“Q. And he asked you to have a drink with him? A. I think I was out on the ground, and he said, ‘Have a coke?’ And I said, ‘No, but I will pay for you one.’ I did not realize who he was or I would not have bought the coke.
“Q. Did you have any improper motive for doing that? A. No, sir.
“Q. Did you say anything else to him? A. No, sir, just said T will see you tomorrow,’ paid for the coke and walked on out.”

Both Birtcher and the juror were at the store the next morning following this incident, but there is nothing in the record to show that anything improper passed between them at that time. This testimony ■was taken the morning the jury returned its verdict, the very next morning after the incident occurred. Appellee Birtcher gave his testimony before the jury reached its verdict and the juror immediately after it returned its verdict.

The testimony of these two parties amounts to simply this: The juror, on being released from duty for the night, rushed over to the little store across the street to get a cold drink. On his way over he passed appellee Birtcher at the front of the store and asked him to have a drink. Birtcher stated that he had already had a drink but would pay for, and did pay. for, a 5‡ Coca Cola for the juror, then turned and left the store, remarking, ‘I’ll see you in the morning,’ which last remark the juror did not remember.

Is this misconduct on the part of the juror Braley and the successful party, Birtcher, under all the facts and circumstances here detailed of such nature as will require a reversal of the judgment of the court below? We think not. In arriving at this conclusion we are not unmindful of the well-recognized-and established rule so ably presented in appellant’s brief that “jurors and parties should keep strictly aloof from each other pending the trial; and if they do not, but meet under circumstances from which injury to a party may be reasonably apprehended, a verdict for the party engaging in the intercourse can not be sustained.” We have carefully examined the authorities cited by appellant and many others besides. In practically all of them there* is 'a fact situation of the successful party not only bestowing some favor upon a juror during the trial of a case, but also engaging in private conversar tion with the juror, or with ample opportunity for such private talk. In such circumstances the courts of this state have uniformly held that the successful party to the litigation will not be heard to explain his conduct, and a reversal will result as a matter of course. But here we have no private conversation and no opportunity for one. The record affirmatively shows that no statement was made by either party about the case. Birtcher did not recognize the juror when he bought the drink for him, neither did the juror remember Birtcher’s saying that he would see him in the morning. Moreover, it is undisputed that all the special issues down to the one relating to the damages to ap-pellee Birtcher, some ten or twelve in number, had been answered by the jury before this incident occurred. It is undisputed that several issues following the one relating to Birtcher’s damages had been answered, including the one respecting the damage to appellee Hannon’s truck. It is also undisputed that before adjournment of court on the afternoon this incident occurred, seven of the jury were in favor of allowing Birtcher $2,000 damages, the exact amount ultimately fixed by the jury; that the juror Braley was of that number and that he was outspoken in his views relating to said amount of damages. These facts and circumstances, to our minds, refute the contention that any injury was done appellant by the happening of, this incident. As said by Judge Sellers of this court in St. Louis S. W. Rwy. v. Gilpin, Tex.Civ.App., 73 S.W.2d 1054, 1057, writ refused, “While we do not think the conduct of the juror was entirely proper under the circumstances, in that he should have left the courteous act of assisting the appellee down the stairs to some one else, yet we are far from the opinion that such conduct was sufficient to authorize the reversal of the case.” See, also, Freeman v. Vetter, 61 Tex.Civ.App. 569, 130 S.W. 190, writ refused; New Nueces Hotel Co. v. Sorenson, Tex.Civ.App., 48 S.W.2d 365, reversed by Supreme Court on other grounds, 124 Tex. 175, 76 S.W.2d 488. While we in nowise condone the acts of the parties in engaging in. this universal custom as reflected by this incident during the trial of the case, we can not bring ourselves to the conclusion that .the act of buying a nickel Coca Cola for the juror Braley, in the circumstances here presented, is such misconduct on their part as will- warrant a reversal .of the judgment of the court.below. This, no .doubt, is the same view taken by the able.trial judge who heard the evidence concerning this incident. Surely some weight should be given to his judgment in matters of this character. Northern Traction Co. v. Woodall, Tex.Civ.App., 294 S.W. 873, and cases there cited. This proposition is overruled.

By its first proposition appellant complains of the action of the trial court in permitting appellee Birtcher to testify as to the effect that his alleged injuries had on other parts of his body, the objection being that his testimony was an opinion of a non-expert witness. This record discloses that appellee Birtcher had theretofore given substantially the same testimony as that complained of here without objection or motion to strike. “The error, if any, was therefore harmless.” Hough v. Grapotte, 127 Tex. 144, 90 S.W.2d 1090, 1092. The proposition is overruled.

We have carefully examined all other propositions and assignments brought forward, and they are believed to be without merit and are respectfully overruled.

The judgment is affirmed.

WILLIAMS, J., disqualified, not sitting.


author: JOHNSON, Chief Justice.

text:
    LION OIL REFINING CO. et al. v. WHITE.
    No. 5463.
    Court of Civil Appeals of Texas. Texarkana.
    March 23, 1940.
    Rehearing Denied March 28, 1940.
    Thompson, Mitchell, Thompson & Young, W. K. Koerner, and G. A. Brown, all of St. Louis, Mo., A. E. Groff, of Houston, and H. P. Smead, of Longview, for appellants.
    Wynne & Wynne and Henry H. Har-bour, all of Longview, for appellee.
   JOHNSON, Chief Justice.

This suit was filed by appellee, Charles B. White, against Lion Oil Refining Company, Shell Petroleum Corporation, Glengarry Oil Company, C. D. Evans, W. G. Winder, John R. Williams, Elizabeth Williams, individually and as community survivor of the estate of herself and John R. Williams, a person of unsound mind, N. E. Williams, as trustee and guardian of said lunatic, John R. Williams. Plaintiff’s second amended original petition on which he went to trial alleges a statutory action of tres-, pass to try title to approximately ten acres of land, a part of the P. McAnally Survey in Gregg County. The petition specially alleges that the plaintiff and those under whom he claims acquired title by adverse possession under the statute of ten years’ limitation, R. S. Article 5510. The answers of the defendants contain general denial, pleas of not guilty, and specially plead the ten years’- statute of limitation, Article 5510; and in the alternative, an outstanding ten years’ limitation title in T. B. Stinchcomb. By supplemental pétition plaintiff alleged that the statute of lim^ itation pleaded by defendants was suspended by reason of plaintiff’s minority.

Trial of the case was to a jury. At the close of the evidence plaintiff and all, defendants moved for directed verdicts in their favor. The court sustained plaintiff’s motion and entered judgment for plaintiff upon the verdict rendered as directed. Defendants appealed. Pending the appeal a settlement of all matters between Lion Oil' Company and Shell Petroleum Corporation and appellee, Charles B. White, was had and by agreed motion the appeal as to said appellants was dismissed.

Appellants complain of the action of the trial court in directing a verdict for appel-lee and in refusing to direct a vérdict for appellants. Neither appellée nor appellants claim any record title to the land. Each claims to have acquired title under the ten years’ statute of limitation. Appellee claims that his grandfather, B. F. (Ben) White, from whom appellee claims to have inherited, was in adverse possession of the land from 1900 to 1917, and thus acquired title. Appellants claim that Ben White, if he did so acquire title, has been divested of such title by the subsequent adverse possession of appellants and those under whom they claim, under the statute of ten years’ limitation. There does not appear to be any conflict in the testimony as reflected by the briefs of both parties. The controlling questions presented are questions of law, namely: (1) Does the undisputed evidence show that Ben White acquired title to the ten acres by adverse possessiqn under the ten years’ statute of limitation; and, if so, (2) does the undisputed evidence further show that Ben White later lost that title by the subsequent adverse possession of appellants and those under whom they claim, under the ten years’ statute of limitation.

On January 1, 1900, G. B. Turner executed a deed to B. F. (Ben) White describing by metes and bounds approximately eighty acres of land, on which was a dwelling house and other improvements. The ten acres in question (not described in the deed) adjoins the eighty acres on the south. At the time said deed was executed and prior thereto (since 1884) the eighty acres and the ten acres were enclosed under one fence as one farm. All the ten acres and a considerable portion of the eighty acres were in cultivation each and every year from long prior to 1900 to and including 1932. There was no fence or markings of any character separating the ten acres from the eighty acres. The ninety acres were enclosed as one tract of land. Upon receiving his deed Ben White went into possession of the entire farm, consisting of the ten acres and the eighty acres. White lived on the farm and cultivated it until 1909, when he moved to Palestine and rented it to Lynn Jones who moved in while White was moving out. Lynn Jones as White’s tenant occupied and cultivated the farm until White sold to Wilson Whitaker. The deed from Ben White to Wilson Whitaker is dated November 8, 1917, and describes the same land (the eighty acres) as described in the deed from Turner to White. Upon receiving his deed Whitaker went into possession of the' entire farm, in February, 1918,, He moved in as Jones was moving out. Jones testified that while he was living on the farm he decided to buy it from White, and for that reason he employed a surveyor to survey it for him, and that the surveyor surveyed it according to the field notes describing the eighty acres. It is not shown that White knew of this survey. Jones further testified that after Whitaker had bought the farm he, Jones, showed Whitaker where the surveyor had surveyed the lines of the eighty acres. Whitaker continued to occupy and cultivate the land, the eighty and the ten acres, as one farm, from 1918 to 1928; inclusive. He sold to B. Feagle by deed dated February 3, 1925, but continued to occupy and cultivate the farm as a tenant of Feagle to whom he paid the rents. Feagle sold to T. B. Stinch-comb April 25, 1928, and Whitaker continued to occupy and cultivate the farm as the tenant of Stinchcomb to whom he paid the rents. Stinchcomb sold to John R. Williams October 15, 1928. The deeds from Whitaker to Feagle and from Feagle to Stinchcomb and from Stinchcomb to Williams each describes the same land (eighty acres) as described in the deed from Turner to White and from White to Whitaker. After receiving his deed, John R. Williams went into possession of the farm. He moved in sometime in December, 1928, as Whitaker was moving out. Williams continued to occupy and cultivate the farm from 1928 to 1932, inclusive, when oil was discovered on it. The other appellants claim mineral interests under Williams. So it appears that the enclosed farm (ten and eighty acres) was occupied and cultivated continuously by the respective claimants either in person or by tenants during all times material to this lawsuit, and under circumstances raising the inference .that each claimed it adversely to the world during his occupancy. There is no drcumstanéé to the contrary.

We think the evidence conclusively shows that Ben White acquired title to the ten acres by his adverse possession from 1900 to 1917, and that he was divested of such title by the subsequent adverse possession from 1917 to 1932 of the appellants and their predecessors.

Appellee contends that no privity of possession is shown between appellant John R. Williams and his predecessors in title, necessary to take the successive possessions under the 'statute of limitation. Neither John R. Williams nor any one of his predecessors held continuous possession for a period of ten consecutive years, but we think the facts above recited under which they successively entered and occupied the land, in the absence of any circumstances to .the contrary, conclusively show the required privity of possession between each of them. Similar, and less cogent facts were held sufficient to establish the necessary privity for tacking the successive possession of the various claimants in McAnally v. Texas Company, 124 Tex. 196, 76 S.W.2d 997.

Appellee further contends that the evidence does not show that the possession of John R. Williams’ predecessors was adverse. We do not sustain that contention. In Hartman v. Huntington, 11 Tex.Civ.App. 130, 32 S.W. 562, 563, the rule here applicable is expressed in the following language: “The question whether or not a possession is adverse to the owner of the ’land is mainly one of fact. If a particular holding is adverse in law, it is so because it is adverse in fact, and all that is necessary in order to reach a correct decision of such a question is to give to the facts in evidence their proper effect, and to determine just what they prove. Ordinarily, when a person in possession of land is shown to have used and enjoyed it as owners of lands usually do, the natural inference is that his possession was taken and held for himself as owner, and that it was ‘therefore inconsistent with and hostile to the claim of another.’ This inference prevails unless something else is shown to qualify and explain the possession.”

Referable to appellee’s plea of' minority, it appears that Ben White died February 2, 1926. Appellee was born April 2, 1912, therefore he was a minor when Ben White died, but limitation had begun to run against Ben White prior to his death, hence was not suspended because of appellee’s minority. 28 Tex.Jur. 240, Sec. 141.

Appellee contends that the judgment against John R. Williams, Elizabeth Williams, individually and as community survivor of the community estate of herself and John R. Williams, a person of unsound mind, and N. E. Williams, trustee and guardian of said John R. Williams, a person of unsound mind, should be affirmed because said appellants failed to file a brief in this court. The brief for appellants filed in this court is signed by some, but not all the attorneys for appellants. It is not signed by the attorneys who represented the above-named appellants in the trial court. It is designated “Brief for Appellants” and the assignments of error are headed, “Appellants assign the following as errors. * * *” But it is not necessary to decide the question as to whether the brief so addressed to this court as “Brief for Appellants” was intended for the. benefit of all the appellants. The two. controlling questions that were presented by the brief were of such nature as that their determination necessarily applied to all the appellants alike. We think that in such circumstances, referable to the particular appellants not filing briefs, said questions may be regarded as fundamental error. Egan v. Lockney Farmers’ Co-op. Soc., Tex.Com.App., 284 S.W. 937.

The judgment of the trial court will be reversed, and judgment here rendered that appellee, Charles B. White, take nothing.

On Motion for Rehearing.

Upon request of appellee, we express the additional finding that the appellants, “John R. Williams (an insane person), Elizabeth Williams (wife of said John R. Williams), individually and as community survivor of the estate of herself and said John R. Williams, and N. E. Williams, as trustee and guardian of said John R. Williams,” never filed any appeal bond. This fact does not, in our opinion, affect the disposition originally made of the case.

Motion for rehearing is overruled.


author: FUNDERBURK, Justice.

text:
    GIBSON et al. v. GILLETTE MOTOR TRANSPORT, Inc.
    No. 1984.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 16, 1940.
    Rehearing Denied March 22, 1940.
    Floyd Jones, of Breckenridge, and Joe E. Childers and Guy R. Mobley, both of Abilene, for appellants.
    L. H. Welch, of Breckenridge, and Ben-bow & Saunders, of Dallas, for appellee.
   FUNDERBURK, Justice.

In this suit by E. L. Gibson against Gillette Motor Transport, Inc. to recover, damages for injuries resulting from a highway collision, the defendant, in addition to defensive pleas, asserted a cross-action against the plaintiff, and impleaded Central ’Surety and Insurance Corporation, insurer of plaintiff, which having paid $525 to Gibson as the result of his injuries received in the collision, claimed subrogation against Gillette Motor Transport, Inc.

In a jury trial the court instructed a verdict for defendant both as against plaintiff and said Central Surety and Insurance Corporation. Plaintiff and said insurance company have appealed.

' There is but one assignment of error, the basis of which being the action of the court in giving the peremptory instruction.

It appears from the briefs of the parties that the correctness of the court’s action, and of the judgment based upon same, are dependent upon whether there was evidence to raise issues of fact required to be submitted to the jury of (1) whether G. B. Miller, the driver of the truck, alleged to belong to defendant, was a servant of defendant, and (2) if so, whether such servant at the time of the collision was acting within the scope of his duties or authority as such servant.

The undisputed evidence showed that the truck alleged to belong to the defendant had attached to it a large van upon which was the name “Gillette Motor Transport Inc.” on the side of it. The evidence well identified G. B. Miller as the driver of the truck and that Miller was an employee of defendant. The collision occurred a few miles west of Breckenridge, Texas, upon a branch of Highway 80. The truck and trailer were heavily loaded with boxes and crates. After the collision Miller had some repairs made to the truck at Breckenridge, requesting the bill to be made out in the name of defendant. An occupant of the automobile with plaintiff, just after the collision, asked Miller who he was employed by, where his company’s offices were and the number of the truck. In answer, and upon request, he wrote down upon a card the following:

“Gillette Motor Transport Inc.
“G. B. Miller
“Dallas
“41.”

In addition, G. B. Miller testified by deposition that defendant was his employer at the time of the collision, that he had worked for the defendant since December 1932, that he was on duty driving the particular Chevrolet truck when involved in the collision, carrying a load for the defendant, that he was making a run from El Paso to Dallas.

Regarding this testimony of Miller the briefs carry a suggestion which constitutes a conspicuous example of a strangely prevalent, misconception of a well-known principle of law. The principle (stated with reference to the law of agency, but equally applicable to the subject of master and servant, employer and employee) is that the fact of agency cannot be proved by the declarations (alone) of the agent. The origin and persistence of the notion that such rule operates to disqualify the agent from testifying as a witness to the fact of agency is a little difficult to understand. 2 Tex.Jur. p. 538, sec. 137.

In our opinion, the evidence was sufficient to raise said issues of fact. In Texas & N. O. Ry. Co. v. Parsons, Tex.Civ.App., 109 S.W. 240, 245, it was said: “The fact that one performs personal services for another, for an agreed compensation, carries with it the presumption of the right of control and discharge by the employer or beneficiary of the services.” Upon appeal the same was, in effect, reasserted by the Supreme Court. Texas & N. O. Ry. Co. v. Parsons, 102 Tex. 157, 113 S.W. 914, 132 Am.St.Rep. 857. In Taylor B. & H. Ry. Co. v. Warner, 88 Tex. 642, 32 S.W. 868, 870, the 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 improved, or the person for whom the work is being performed, from liability for the acts of those performing such work, it 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.” See Liberty Mutual Ins. Co. v. Boggs, Tex.Civ.App., 66 S.W.2d 787 and authorities cited; Traders’ & General Ins. Co. v. Williams, Tex.Civ.App., 66 S.W.2d 780; Jones v. Fann, Tex.Civ.App., 119 S.W.2d 735; Traders & General Ins. Co. v. Boysen, Tex.Civ.App., 123 S.W.2d 1016.

The term “employee” includes" “servant” or “agent.” Any technical distinction between the terms “servant” and “agent” is believed to be without importance in this case. There was evidence to show that the nature of Miller’s duties as an admitted employee were those of a truck driver for a large transportation company. That evidence identified him as a servant, rather than an agent. It was implicit in the fact that he was an employee, that he received pay for his services from the employer.

The decision in American Nat. Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409, is no authority against such conclusion. In that case the contract from- which the employee’s status as a servant or agent was determinable, was in evidence and it was held that such evidence showed such status to be that of an agent and not a servant. In the present case there is no evidence of the nature of the contract of employment between the defendant and Miller. There was no evidence to show that Miller was an agent. The evidence does show that Miller was an employee and that his duties were such as to make him a servant.

Being of the opinion that the judgment of the court below should be reversed and the cause remanded, it is accordingly so ordered.


author: JACKSON, Chief Justice.

text:
    IMPERIAL LIFE INS. CO. v. THORNTON.
    No. 5056.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 13, 1939.
    Rehearing Denied Feb. 5, 1940.
    John G. Whitaker, of Dallas, for plaintiff in error.
    McWhorter, Howard & Cobb, of Lubbock, for defendant in error.
   JACKSON, Chief Justice.

The appellee, Arthur E, Thornton, instituted this suit in the County Court of Lubbock County against the appellant, Imperial Life Insurance Company, to recover on an insurance policy issued by appellant to Columbus E. Thornton in which the appellant agreed to pay appellee $500 or a percentage thereof in conformity with the terms and conditions of the policy at the death of the insured. ■

The appellee alleged the policy was in full force and effect and that the terms and conditions thereof had been complied with by the assured.

The appellant answered by general demurrer, special exceptions, general denial and alleged that under the terms and conditions of the policy appellee was not at the time of the death of insured entitled to recover an amount exceeding the sum of $50, or 10% of the maximum stated in the policy; that it was represented in the application ’ that the insured was in good health mentally and physically, when in truth and in fact he was suffering from heart trouble, arterio-sclerosis; that such representation was material to the risk and Arthur E. Thornton, who made the representation and secured the issuance of the policy, perpetrated a fraud upon the appellant in obtaining the insurance contract. Appellant asserted it is a state-wide mutual assessment corporation organized and existing under article 4859f of the Vernon’s Annotated Civil Statutes of Texas.

The appellee, by a supplemental petition, pleaded a general denial; that the insurance policy was without limitations, was issued as a straight life insurance policy and governed by the general law of life insurance in Texas.

In response to special issues submitted by the court the jury found, in substance, that Columbus E. Thornton was in good health mentally and physically at the time the policy was delivered to Arthur E. Thornton; that the policy was never delivered to the insured but Arthur E. Thornton, the beneficiary, had the permission of Columbus E. Thornton to take out the insurance, .and that in December, 1936, the insured was 80 years of age.

On these findings the court rendered judgment for appellee for the sum of $520 principal and interest, with 6% interest thereon from the date of the judgment, and the insurance company prosecuted this appeal.

The appellant contends that it was a mutual insurance company operating under article 4859f of Vernon’s Annotated Civil Statutes and was authorized to limit the recovery to a percentage of the maximum liability of the policy in the event the death of the insured was the result of stipulated ailments and occurred within certain named periods from the date the policy was issued.

The appellant introduced, and no complaint is made to the admission thereof, its charter which shows the name of the company as originally organized to have been the “Home Protective Association of Texas * * * a benevolent association for the purpose of doing a mutual beneficiary life insurance business.” It offered its amended constitution and by-laws together with an amendment to its charter disclosing that the original name had been changed and the company was now operating under the name of the “Imperial Life Insurance Company”. In evidence also is the certificate of the Board of Insurance Commissioners which states that the “Imperial Life Insurance Company has * * complied with all requirements of law * * * and is hereby authorized to pursue the business of life insurance within this State for the year ending February 28, 1937 in accordance with the provisions of Chapter 245, Acts of the Forty-third Legislature,” which Acts of the Legislature include article 4859f. This testimony, .in our opinion, differentiates this case from Bankers’ Life & Loan Ass’n v. Jayroe, Tex.Civ.App., 127 S.W.2d 291, and dis•closes without controversy that the appellant was a mutual life insurance company and not prohibited by law from writing reasonable limitations on its liability in the policies issued. Imperial Life Ins. Co. v. Cartwright, Tex.Civ.App., 119 S.W.2d 683; Bankers’ Life & Loan Ass’n v. Bond, Tex.Civ.App., 113 S.W.2d 1001; Bankers’ Life & Loan Ass’n v. Chase, Tex.Civ.App., 113 S.W.2d 947.

The appellant contends that the court committed reversible error in excluding, on the objection of appellee, certain limitation clauses in the policy copied below, which restricted the amount of the recovery thereunder to a percentage of the maximum policy liability if death occurred from certain ailments within specified periods.

“Limitations
“Should the Insured carry more insurance than the Maximum policy liability this Company is qualified by law to accept at the time of His or Her death, in such event the Company will not be liable for more than such Maximum policy liability. Should death occur during the first four months from date of issue or any reinstatement the Company shall be liable only, except for purely accidental death, for the return of premiums actually collected plus ten per cent interest and shall be liable for a like amount should death result from pregnancy, any form of heart or kidney trouble, tuberculosis, paralysis, pellagra, arterio-sclerosis, anemia, senility, cancer, insanity, any form of chronic or venereal disease within twenty-four months from date of issue or any reinstatement; should death occur from any cause other than as above stated after the fourth month on risks other than white from ages 1 to 85 and on white risks past 55 years of age after date of policy or last reinstatement thereof the Company will be liable only for ten per cent of the Maximum value of this policy and the liability will automatically increase ten per cent each four months thereafter until the Maximum value is reached thereby.”

In our original opinion we held in effect that the court erroneously permitted the appellee to introduce in evidence portions of the policy and withhold the limitation clauses but held this action to be harmless since the appellant was permitted to introduce the entire policy which included the limitation clauses that ap-pellee had withheld. In this last statement a re-examination of the record convinces us that we were in error. The bills of exception and the action of the court are in the statement of facts and disclose the following:

“Mr. Howard: We offer the policy in evidence (save and except that portion on the third page enclosed in parenthesis).
“Mr. Parmeter: To which,' of course, the Defendant objects. If he is going to introduce the policy he must introduce all the instrument. He can’t take out certain portions no more than he can take out the same.
“The Court: The Court will overrule the objection.
“Mr. Parmeter: Save our exception. Does the Court admit part of that policy with certain portions taken out?
“The Court: Certain sections.
“Mr. Parmeter: What portions?
“The Court: Limitations. It is in brackets, isn’t it?
⅜' * * * *
“Mr. Parmeter: Note our exception' to the court’s ruling. (Mr.' Howard reads part of policy).
* * * * *
“Mr. Parmeter: At this time, Defendant introduces the entire policy in evidence, if your Honor please.
“Mr. Howard: If your Honor please, we object to the introduction of the policy, the printed matter that is enclosed in brackets for the reason that the matters therein stated are prohibited' by law from being inserted in a policy of this character and having been placed in there are in violation of the law.
“Mr. Parmeter: We would like to have this argument in the absence of the jury.
“Mr. Howard: This is not argument. It is an objection I am making. The thing to do and the thing the courts' do-too is to delete that portion of the policy that is in violation of the law because-it cannot have any force and effect. For that reason we object to that portion being in there.
* * * ⅜ *
“The Court is going to permit the-introduction of the policy with part deleted. (Indicating ‘Limitations’ portion of policy).
“Mr. Parmeter: To which ruling of the Court the defendant excepts.”

This ruling excluded the limitations in the clause above quoted which is enclosed in brackets or parenthesis on page three of the policy. In our opinion the refusal of the court to permit the appellant to introduce the entire policy, including the limitations therein stipulated,, constitutes reversible error. 17 Tex.Jur. 374, para. 129.

The clauses creating limitations are not, in our opinion, ambiguous.

If upon another trial the testimony shows appellant to be a state-wide mutual company or if a jury should so find as a fact issue the court would commit error in holding invalid and void the limitation stipulations in the policy and rendering judgment against it for the maximum liability shown in the policy independent of such limitations since they are valid and show the amount of appellant’s liability under the facts is subject to reductions according to the limitations on liability.

The opinions of the courts reveal some conflict and Considerable confusion as to the liability of an insurance company on a policy containing limitations on liability not inhibited by law. Judge Martin, formerly of this court, after, reviewing some of the decisions pertaining to limitation clauses, in Georgia Home Ins. Co. v. Trice et al., Tex.Civ.App., 70 S.W.2d 356, 357, says: “The last rule is, we think, sufficiently stated by Judge Alexander in the case of American Insurance Co. v. Maddox (Tex.Civ.App.) 60 S.W. (2d) 1074, 1077, from which we quote: ‘However, the rule as recognized by our Supreme Court and enforced in this state is that where the general liability of the insurer is thus limited by the terms of the' policy, the burden is on the insured to both allege and prove that the loss sustained by him comes within the general liability thus assumed by the insurer, and in addition that it does not come within any of the excepted causes.” Citing many authorities.

This rule was followed in Travelers’ Ins. Co. v. Barker, Tex.Civ.App., 96 S.W.2d 559, in an opinion by the lamented Chief Justice Hall. See, also, Metropolitan Life Ins. Co. v. Wilson, Tex.Civ.App., 102 S.W.2d 454; Imperial Life Ins. Co. v. Cartwright, supra; Aetna Casualty & Surety Co. v. Tobolowsky, Tex.Civ.App., 120 S.W.2d 460; Colorado Life Co. v. Shofner, Tex.Civ.App., 125 S.W.2d 638.

The record discloses that the policy was issued December 3, 1936; that the insured died May 1, 1937; hence, the policy had been issued more than four months but less than twenty-four months when the insured died. Under -these undisputed facts and the above authorities the burden was upon appellee to prove that the insured did not die from heart trouble as pleaded by appellant and contained in the exceptions to liability. The record discloses that appellant tendered to appel-lee the premiums paid with interest thereon and refused to pay the maximum value of the policy, contending that the insured died from heart failure.

The appellee, not the appellant, had the burden of proving by conclusive testimony or, if the testimony was controverted, having a jury finding that the insured did not die from any of the excepted causes enumerated in the policy during the time that the exceptions were effective. Neither was it the appellant’s duty to object to the failure of the court to submit such issue. ■

In Miller v. Fenner, Beane & Ungerleider et al., Tex.Civ.App., 89 S.W.2d 506, 513, it is said:

“A party not charged with the burden of establishing an issue in the trial of a case is, in the absence of its submission, under no . duty to request its submission and waives no right because of a failure to do so.
* * * * *
“It would appear to be wholly unreasonable to hold that a party not having the burden of establishing an issue (such burden being upon the' other party) and therefore not being under any duty to request submission of the issue, should nevertheless be required to object to the failure or refusal of the court to submit it.”

The original opinion is withdrawn, the motion overruled, and the judgment is reversed and the cause remanded.


author: PRICE, Chief Justice.

text:
    HERNDON v. COCKE.
    No. 3917.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 23, 1940.

      James W. Paulk and Hazel & Ruhmann, all of Alice, for appellant.
    Lloyd & Lloyd, of Alice, and Emmett B. Cocke, of San Antonio, for appellee.
   PRICE, Chief Justice.

This is an appeal from the order of the District Judge of Jim Wells County granting, after hearing, a temporary injunction. The injunction in terms enjoined the appellant, J. L. Herndon, and C. W. Price, as sheriff, from selling' or offering for sale merchandise, furniture, or person-, 'al property constituting the stock in trade or fixtures of a drug store in Alice, Texas, ■under a writ of execution issued out of the District Court of Zavala County, and further from withholding -the possession of said property in the store from appel-lee, A. T. Cocke. Prior to the issuance of this injunction Price, as sheriff, at the instance .of appellant, had levied the writ of execution referred to in the order upon the property described therein as the property of L. C. Cocke, and incidental to the levy was holding same in the storeroom where same was situated. The writ .of execution ran in favor of appellant and against L. C. Cocke, and was for the amount of $1,367, interest and costs.

Appellee’s petition alleged the levy of the writ and that the property levied upon was his property and not of execution defendant in the writ. It was further alleged that at the time of the seizure the property was being used by appellee in the operation of a drug store in the .City of Alice; that by the seizure of said property and retention of the storeroom, the business was completely closed; further, that the sheriff was threatening td sell the property under the writ and would do so unless restrained, to appellee’s irreparable damage; that the sheriff was holding possession of the store and the contents. Damages were alleged, including loss of profits, loss of good will, and losses as to such elements in' the future. The action of defendants was alleged to be wilful and arbitrary. The amount of damages was alleged at $2,000, but the petition does not allege the value of the property seized. After service of. the notice to show cause appellant and his co-defendant, Price, answered. The answers were practically the same. In substance they consisted of a general exception, various special exceptions, and a plea to the merits that the property involved was the property of the execution defendant in the writ and not that of ap-pellee. Further, that if the property was the property of appellee, that appellee and the execution defendant had both represented the property to be that of said defendant prior to the levy of the execution, and appellee was now estopped to assert ownership in the property.

A hearing was had in vacation, and on same the general and special exceptions of appellant and his co-defendant were overruled and the temporary injunction in'terms as above indicated granted. Appeal was perfected by J. L. Herndon, the plaintiff in the writ of execution and defendant here.

It is urged that, the petition not disclosing the value of the property levied upon, the court was without jurisdiction to grant the temporary injunction. The petition does not show. the value of the property. However, the petition does not show that the matter was within the original jurisdiction of any other court. The law is, we think, that if it does not so show it is sufficient to sustain the jurisdiction. Gamel v. Smith et al., 3 Tex.Civ.App. 22, 21 S.W. 628; Cotton v. Rea et al., 106 Tex. 220, 163 S.W. 2.

The general effect of the injunction granted was to give the plaintiff, as a substitute for the remedy provided in Article 7402, R.S.192S, a sort of equitable right of trial of property. The injunction bond in effect stood in the place of the bond required by Article 7403. In our opinion it had the effect of preventing a waiver of damages for seizure, as would have been the case had the proceeding been under 7402 and related articles.

Appellant urges that plaintiff’s allegations as to irreparable injury and the lack of adequate legal remedy are insufficient to sustain the injunction. Irreparable injury and lack of legal remedy as conclusions are alleged many times in the petition of appellee. The factual base justifying these conclusions as alleged is that the property when seized, constituted the fixtures and stock in trade of a drug store which was then being operated by appellee, and that the seizure and retention of the property would destroy and did to an extent such going business. The value of the drug store as a going concern is not stated in the petition. Value of the good will is not averred, or that the drug store was or could be operated profitably. There is the allegation, however, that the damages to date had been the sum of $2000. It is not stated that the defendants were unable to respond in damages. If the legal remedies available to appellee were not sufficient to afford relief, this fact must be inferred from the averred facts as have been narrated above. We believe that the allegations were sufficient to justify the injunction to the extent at least of preventing the sale. Sumner v. Crawford, 91 Tex. 129, 41 S.W. 994; Berwald’s, Inc., v. Brown et al., Tex.Civ.App., 69 S.W.2d 221.

We are likewise of the opinion that such allegations were necessary to justify the issuance of an injunction. West Texas Utilities Co. v. Farmers’ State Bank, Tex.Civ.App., 68 S.W.2d 648.

That part of the injunction ordering the restoration of the goods to the possession of appellee presents a matter of some difficulty. It is clear that under the writ from the District Court of Zavala County there was no right to take possession of the storeroom. However, as to the other property the effect of the injunction as granted was to terminate the rights acquired by appellant by virtue of the levy. If the property was the property of L. C. Cocke, appellant, by virtue of the-levy, acquired a lien thereon. Kanaman v. Hubbard, 110 Tex. 560, 222 S.W. 151. The continued possession of the property by the sheriff to be dealt with as the law provides in such cases was perhaps necessary to the continued existence of this lien. See Turley v. Brewster, 33 Tex. 188. Furthermore, if the property of L. C. Cocke had been seized under a writ of execution from the Zavala District Court it might amount to an interference with the process of that court. We do not mean to hold that it is not within the jurisdiction of a court to enjoin a sale of property seized by the process of another court ■where the property -is not subject to seizure under the writ. This jurisdiction has been exercised many times. The order here is broader than merely enjoining the sale. It releases a levy.

In* the case of Sumner v. Crawford, supra, the seizure of the property was clearly unlawful. There partnership property had been seized for the individual debt of a partner, when the levy should have been by notice. In Berwald’s Inc., v. Brown, supra, the property had not been seized and the injunction was not mandatory, but preventive.

Here, appellee, by giving bond in the sum of $1000, obtained possession of property which, had he pursued his remedy of trial of right of property, he could not so obtain without giving bond in double the amount assessed by the sheriff. The value of the property is not shown by the pleadings of the parties nor the statement of facts. There is an averment in the cross action of appellant that same did not equal the amount called for in the execution writ.

On the other hand, the mandatory portion of the injunction was perhaps the only way to protect a going business pending a final trial. It is clear that appellant is in no position to complain of the awarding of the storeroom to the possession of appellee.

However, the property has been taken from the custody of the sheriff and possession thereof awarded to appellee. The question is perhaps moot. A dissolution or modification of the injunction in this respect at this time would perhaps be of no value to appellant. Part of the property at least was a stock of goods, the very purpose of the injunction being that same might be sold in the regular course of trade.

It appears. by the briefs that the property of L. C. Cocke is now under the jurisdiction of the bankruptcy court.

It is complained, further, that the court erred in refusing the timely motion of appellant to fix the amount of the super-sedeas bond. This question is also moot. If this was error, it cannot be remedied now. The function of a supersedeas is to suspend the execution of the judgment pending appeal.

In our opinion the questions on the exceptions, general and special, are still open to the ruling1 of the trial court. The general exception, and perhaps some of the special exceptions, presented matters in bar and could only be ruled upon in term time. Mosel v. San Antonio & A. P. Ry. Co., Tex.Civ.App., 177 S.W. 1048; El Campo Light Co. v. Water Co., 63 Tex.Civ.App. 393, 132 S.W. 868; Lane v. Jones, Tex.Civ.App., 167 S.W. 177; City of Wichita Falls v. Whitney, Tex.Civ.App., 11 S.W.2d 404.

On the whole case we believe that the appeal should be dismissed as presenting moot questions. It is clear to us that the injunction preventing the sale and commanding a return of the storeroom was in ' the discretion of the court; we are not so sure as to that portion in effect commanding the return of the personal property.

The appeal is dismissed for the reason that the questions tendered are now moot.


author: -.MONTEITH, Chief Justice.

text:
    BUTLER v. PRICE.
    No. 10930.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 29, 1940.
    Rehearing Denied March 28, 1940.

      Earle P. Adams, of Crockett, for appellant.
    Kennedy' & Granberry, of Crockett, for appellee.
   -.MONTEITH, Chief Justice.

This is an appeal from a judgment of the county court of Houston County in an action brought by appellant, C. W. Butler, Jr.s against appellee/ Perry A. Price, on a note for'the sum of $490.85, executed by appellee and payable to appellant on demand.

'Appellee answered by general demurrer, 'a general denial, and pled specially that prior to the execution of said note he was indebted to appellant on an open account which was barred by limitation; thát appellant, who was a member of the Texas Prison Board, intimated to him that if he would execute and deliver to him a note for said barred debt he would secure a position for him in the penitentiary system as a convict guard.

Based on these allegations appellee pled (1) that said note was without consideration; (2) that the consideration therefor had wholly failed; (3) that said consideration was contrary to public policy and void; and (4) that said note did not speak the entire agreement between the parties, in that it was understood between him and appellant that said note would be paid out of the proceeds of his earnings as such convict guard.

The jury, in answer to three special issues submitted, found in effect: (1) That prior to the execution of said note . appellant had made representations to ap-pellee that he would assist him in securing a job with the Texas Penitentiary system; (2) that such representations were made for the purpose of inducing appellee to execute said note; and (3) that áppellee believed said representations to be true and relied upon them at the time he executed the note.

The court also submitted the following special issue No. 4, which the jury failed to answer: “Do you find from a preponderance of the evidence that defendant, Perry A.,Price, executed and delivered the note in ■ controversy on .the condition that the plaintiff, Dr.' C. W. Butler, Jr., would assist him in.securing-a job with the penitentiary system?”

Based-on the answers to said three issues the trial court rendered judgment in favor of defendant. , .

At the conclusion of the evidence by both sides, appellee filed his admission, under district and county court rule No. 31, to the effect that he had executed the note sued on and that appellant had a good cause of action as set forth in his petition except in' so far as it might be defeated by the facts of his answer. Under said admission he was accorded the right to open and close in the argument.

Under the established law of this state this admission constitutes an abandonment of all defensive matter, except that in the nature of confession and avoidance, including an abandonment of the plea that the note sued on was without consideration. National Bank of Commerce v. Williams, 125 Tex. 619, 84 S.W.2d 691; Rector v. Evans, Tex.Com.App., 6 S.W.2d 105; Ferguson v. American Bank & Trust Co., Tex.Civ.App., 13 S.W.2d 459, writ refused.

Under this record the controlling question to be determined in this appeal is whether the issues submitted to the jury and the judgment rendered thereon by the trial court are supported by the pleadings of appellee.

In his original answer appellee alleged that appellant: “approached defendant and intimated to him (amounting to a statement) that if he, defendant, would execute and deliver to him, plaintiff, a promissory note for said barred debt, due on demand, he, plaintiff, would secure for defendant a position in the penitentiary system of Texas as a convict guard. * * * That defendant would not have executed said note except for the promises and representations made to him by plaintiff, and defendant further says that plaintiff has wholly failed to carry out his promises and has failed to even attempt to do so.”

The court submitted the following issue No. 1: “Do you find from a preponderance of the evidence that prior to the time that defendant executed the note involved in this suit the plaintiff, Dr. C. W. Butler, Jr., made representations to the defendant, Perry A. Price, that he would assist him m securing <a job with the Texas Penitentiary System?” (Emphasis ours). The jury answered this issue in the affirmative.

The jury found in answer to issue No. 2 that the representations inquired about in issue No. 1 were made for the purpose of inducing appellee to execute said note, and in answer to issue No. 3 found that ap-pellee believed said representations to be true and relied upon them at the time he executed said note.

The jury failed to answer issue No. 4 inquiring as to whether appellee executed and delivered said note on the condition that appellant would assist him in securing a job with the penitentiary system.

The fact that special issue No. 1 was not based on any pleadings in the record was definitely pointed out to the court in the objections made by appellant to the submission of said issue, and said objections were carried forward by assignment of error. Appellant further requested that the court submit to the jury an issue as to whether, prior to the execution of said note, the plaintiff represented to defendant that, if he would execute and deliver, to him the note sued on,, he would secure for him a position, in the penitentiary, system. The court refused to. submit said issue.

The record shows the following testimony in reference to the execution of said note by appellee: “I came on to Crockett to Dr. Butler’s office and we talked for some time before I signed the note. I told him that I wasn’t making any money farm-' ing to pay on my old debts and that I had quit farming and that I wanted to get a job guarding convicts or some other job in the Penitentiary System, and that if I had such a job I would be able to pay my old debts. He told me that he thought I rated a better position than a guard’s job, that he would like to see me manager of one of the farms since I had had experience both in farming and in guarding convicts. He said that he was in a position to help me get a position in the Penitentiary System, and he intimated to me by the way he talked that he would help me get such a job if I signed the note for my account, and I believed him. I do not believe, that I would have signed the note if he had not intimated to me that he would help me get a job in the Penitentiary System. He told me. that there were not any jobs open just then, but. that something was going to. work out and for me to watch the newspapers and keep in touch with him; that I should write him a postal card every week until something developed.”

On. cross-examination defendant testified: “Yes, on the day I came to Dr. Butler’s office, that is on the 23rd day of December, 1938, I came in intending to sign the note. Mr. Lively had told me earlier that morning the amount of the note and that Dr. Butler was going to help me. * * •* No, in the conversation I had . with Dr. Butler there in his office before I signed the note he did not tell me, in so many words,, that if I would sign the note he would secure a position for me in the Penitentiary System, or that he would help me secure such- a position if I would sign the note. There was no argument between Dr. Butler and myself about signing the note, and T did not tell Dr. Butler that I had any objections to signing it. ■ No, I did not tell Dr. Butler in so many words that I would give' him a note if he would secure a job for me in the Penitentiary ■ System,’or. that I would give him a note if. he would help me to get. a. job in the Penitentiary. System. But he did tell me that he would help me .sqcune a position, in the Penitentiary System.!’. ■

On - re-direct- examination he testified,: “On the day I signed the note and before I signed it, Dr. Butler and I did not have 'a-positive agreement that I would sign such note only if he would,.get me ⅞ job in the-Penitentiary System, but all that/'he said-led'm'e to believe that if I would sign the note he would get me such a position; and this together with what Mr. Lively had told me is the reason I signed the note.”

Defendant testified that Mr. Lively told him: “Mr. Lively told me that he had reported to Dr. Butler the night before on our conversation the day before, and that Dr. Butler was very much interested in me and would help me get a job with the Penitentiary System.”

The law is well settled in this state that the relief granted by the court must be such, and only such, as is warranted by tlie pleadings; Floydada v. Gilliam, Tex.Civ.App., 111 S.W.2d 761; Harris v. Goodloe et al., Tex.Civ.App., 58 S.W.2d 156; Shackelford v. Neilon, Tex.Civ.App., 100 S.W.2d 1037; that one who seeks to avoid a written obligation must clearly plead his defenses, Tarlton v. Daily, 55 Tex. 92; Klock v. Dowd, Tex.Com.App., 280 S.W. 194; and that a trial court cannot render judgment to conform to the verdict of a jury on issues not ráised by the pleadings.

In the instant case appellee alleged that appellant intimated to him that, if he would execute and deliver to him a note for said barred debt, he would secure a position for him in the penitentiary system. By his admission, filed for the purpose of securing the right to open and close in the argument, appellee abandoned every defense pled by him except that of "failure of consideration. A careful study of the facts shows that there is no testimony in the record tending to prove that appellee executed and delivered said note because of a promise by appellant to secure a position for appellee in the penitentiary system, or that appellant promised appellée that said note, or any part thereof, might be paid out of appellee’s salary when said position was secured for him.' Further, the issues submitted require a finding, not as to' whether he would secure a position for him, but as to whether he would assist him in securing a position. These issues were not raised by appellee’s pleadings and, we think, can form no basis for the judgment in this cause.

The errors pointed out require, in our opinion, a reversal of the judgment of the trial court. We have not dismissed the other assignments brought forward in appellant’s brief for the reason that they will, in all probability, not arise upon an-’ other .trial.

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

Reversed and remanded.


author: ' HALL, Justice.

text:
    TOSH v. DRYMAN et al.
    No. 5465.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 29, 1940.
    Thomas Shearon and Perkins & Perkins, all of Rusk, for appellant.
    Guinn & Guinn, of Rusk, Malone, Lipscomb, White & Seay, of Dallas, and Lasse-t'er, Simpson, Spruiell & Lowry, of Tyler, for appellees. >
   ' HALL, Justice.

This suit, a bill of review as provided by' R.S. Article 4328, was filed by appellant in the County Court of Cherokee County, seeking to set aside and vacate certain orders theretofore entered in said court in the matter of the guardianship of the estate of James Emil Stubblefield, Samantha' Stub-blefield,. Evelyn Stubblefield, and .Nancy Ellen Stubblefield, minors, authorizing -and confirming sale of real estate belonging to the estate of said minors, and pursuant to which orders conveyance of the real estate had been made. The county court sustained a general demurrer to plaintiff’s bill of review and dismissed the case on the grounds that the county court was without jurisdiction to hear and determine same because conveyances had been made pursuant to the orders attacked. An appeal was taken to the District Court of Cherokee County where a like judgment was entered upon the same grounds, sustaining a general demurrer and dismissing the suit. An appeal was perfected to this court.

It is agreed that the controlling question presented by the appeal is: “After conveyance has been consummated pursuant to the orders attacked, does the county court have jurisdiction to entertain a bill of review as provided by R.S.1925, Article 4328, seeking to vacate the orders of the probate court granting and confirming the guardian’s sale of land?”

The precise question was by this court certified to the Supreme Court, and answered in the negative, in the case of Farley v. Dorsey, Tex.Com.App., 135 S.W.2d 89. On authority of that case the judgment of the district court sustaining the demurrer and dismissing the cause for want of jurisdiction is affirmed.