text:
    SURKEY v. SMITH.
    No. 10644.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    Rehearing Denied Feb. 21, 1940.

      Carter & Lewis, of San Antonio, for appellant.
    Harry Hertzberg, Marion ■ R. McClana-han, and Theodore Simmang, all of San Antonio, for appellee.
   MURRAY, Justice.

Appellant, Mosie Wright Surkey, instituted this suit against J. B. Smith, seeking to recover damages caused by the death of her husband, George Surkey, who was struck and killed by an automobile owned and driven by J. B. Smith.

The trial was to a jury and in keeping with the verdict judgment was entered denying Mrs. Surkey any recovery, from which judgment she presents this appeal.

Appellant contends that the court erred in not submitting her requested issues relating to the question of discovered peril. The rule, in passing on the question as to whether there was sufficient evidence to take to the jury the issue of discovered peril, is that if, disregarding all adverse evidence and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable thereto which may be drawn from the facts proved, a jury might have found in favor of plaintiff, then the issue of discovered peril should be submitted to the jury. Fernandez v. Rahe, Tex.Civ.App., 61 S.W.2d 529; Vontsteen v. Rollish, Tex.Civ.App., 133 S.W.2d 589.

With this rule in mind we pass to a consideration of the record in this case to determine whether the issue of discovered peril should have been submitted to the /Jury. George Surkey was struck and Mlled by an automobile owned and operated by J. B. Smith on October 15, 1937. Surkey was struck as he was attempting to cross San Pedro Avenue, as a pedestrian, at or near the intersection of that avenue with West Evergreen Street. Appellant contends that Surkey was struck at the intersection, while appellee contends he was struck some seventy or eighty feet south of the intersection. However, in determining the issue under discussion we must accépt the contention of appellant. Appellant has well stated the most favorable construction to her that can be placed upon the testimony with reference to the issue of discovered peril, which is, in substance, as follows: The appellee was driving south on San Pedro Avenue. Mr. Surkey was attempting to cross from the west to the east' side of San Pedro Avenue at the intersection of West Evergreen Street. The witness T. E. Sharp was driving his car in a southerly direction on San Pedro Avenue when he discovered Surkey in front of him, about fifty feet away. He slowed down his car to permit Surkey to cross in front of him. Appellee, Smith, also driving his car in a southerly direction, passed and cut in front of the Sharp car striking Surkey and causing his death. The accident happened about 7:30 p. m., but a light was burning at the intersection and head-lights were burning on both the Sharp and Smith cars. Smith testified that he was only traveling at the rate of twenty miles per hour, that his brakes were good, and that while traveling at that rate of speed he could stop his car in a distance equal to the length of the. car. Smith never swerved his car in an attempt to keep from striking Surkey, never applied his brakes and never sounded his horn. Smith testified that he did not-see Surkey until he was struck by,the car. Smith also-testified that he was looking to the front and keeping a proper lookout.

It is clear "in Texas that before a recovery can be had on the doctrine of discovered peril in a case of this nature the driver of the car must have actually discovered the perilous position of the injured party, and it is not sufficient that if he did not so discover the position of the injured party that he was guilty of negli-. gence.

It is also clear, however, that the fact that the driver of the car testifies that he did not discover the perilous position of the injured party is not conclusive of the matter and such discovery may be shown by circumstantial evidence. Fernandez v. Rahe, supra; Stinnett v. Gulf, C. & S. F. R. Co., Tex.Civ.App., 38 S.W.2d 615; Hall v. Weaver, Tex.Civ.App., 101 S.W.2d 1035; Gulf, Coast & S. F. R. Co. v. Whitfield, Tex.Civ.App., 206 S.W. 380; Hines, etc., v. Arrant, Tex.Civ.App., 225 S.W. 767; St. Louis Southwestern Ry. Co. of Texas v. Anderson, Tex.Civ.App., 206 S.W. 696.

However, we are of the opinion that the circumstances in this case are insufficient to require a submission of the issue of discovered peril to the jury. Before the evidence would support a finding of discovered peril, the circumstantial evidence would have to show that Smith, the driver of the car, actually discovered the perilous position of Surkey and realized that he could not, or probably would not, extricate himself from such position of peril, and that ' such discovery had been made in time, by the use of ordinary care and by the use of the means at hand and with due regard for his own safety and the safety of the other occupant of the car, to have avoided striking Surkey. We think the evidence corroborates rather than contradicts the testimony of Smith that he did not see Surkey until he struck him. He did not sound his horn, he did not apply his brakes, he made no effort to swerve his car in an effort to avoid striking Surkey. It would be contrary to human nature not to make some effort to prevent striking, a person after discovering, his perilous position. Furthermore, it is shown that this accident happened very suddenly. If Smith was traveling as slow as twenty miles per hour he was traveling thirty feet per second, and it would thus appear that from the time Smith passed the Sharp car until he struck Surkey was less than two seconds. If Smith discovered Surkey the instant he passed the Sharp car he would have had less than two seconds to have realized that Surkey was in a position of peril, that he could not or probably would not extricate himself from his position of peril, and then by the use of the means at hand have had time by the use of ordinary care to have avoided striking Surkey. Jewell v. El Paso Electric Co., Tex.Civ.App., 47 S.W.2d 328; English v. Terry, Tex.Civ.App., 85 S.W.2d 1063, affirmed 130 Tex. 632, 112 S.W.2d 446; Cantu v. South Texas Transp. Co., Tex.Civ.App., 110 S.W.2d 995; Schumacher v. Missouri Pac. Transp. Co., Tex. Civ.App., 116 S.W.2d 1136; Thurmond v. Pepper, Tex.Civ.App., 119 S.W.2d 900; Hornsby v. Houston Electric Co., Tex.Civ.App., 125 S.W.2d 346; Gersdorf-Sloan Ambulance Service v. Kenty, Tex.Civ.App., 75 S.W.2d 903; Huntley v. Psimenos, Tex.Civ.App., 67 S.W.2d 350; San Antonio & A. P. R. Co. v. McMillan, 100 Tex. 562, 102 S.W. 103; Wright v. McCoy, Tex. Civ.App., 131 S.W.2d 52.

To hold that discovered peril is in this case would be, to use the language of Judge Hickman in Terry v. English, 130 Tex. 632, 112 S.W.2d 446, 449, “to hold that in most all negligence cases it is unnecessary to submit specific acts of negligence, but only to submit the general issue of discovered peril. That doctrine cannot be made to serve so broad a purpose.” •

It occurs to us that if the issues relating to discovered peril had been submitted to the jury, and if appellant had secured favorable answers to such issues, nevertheless, under the meager evidence herein we would be compelled to set aside such answers. Therefore, we should not hold that failure to submit such issues constitutes reversible error. Joske v. Irvine, 91 Tex. 574, 582, 44 S.W. 1059.

Appellant by her next proposition contends that the trial court erred in refusing to permit the appellant to place the witness Bost upon the stand and elicit his testimony when the witness appeared in court for the first time at thé conclution of the opening argument to the jury, which had been made by one of appellant’s counsel. We overrule this contention. Appellant proceeded to trial knowing that the witness Bost was not in attendance upon court, and closed her testimony without complaint of any kind with reference to being deprived of the evidence of the testimony of Bost. Under such circumstances the trial court did not abuse his discretion in not re-opening the evidence after the charge had been read to the jury, and one argument completed by counsel.

By her third proposition appellant complains of certain alleged improper argument by appellee’s counsel. The witness Sharp was referred to as “anonymous Sharp.” It was argued that witness Sharp held his hand to his mouth while testifying because he was afraid he would let a lie slip out. These arguments were within the record. Appellant had affirmatively proved that the witness Sharp was located by means of an anonymous letter. The witness Sharp did hold his hand to his mouth while testifying. No objection was made to these arguments at the time they were made, nor was the court requested to instruct the jury not to consider them. We overrule this proposition.

By her fourth proposition appellant complains because she- was not permitted to ask appellee Smith while on the witness stand if he was not a drinking man. There was no allegation of negligence based upon intoxication. Appellant’s own witnesses testified that appellee was not drunk at the time of the accident. The evidence was properly excluded. 45 Tex.Jur. 66; Lanham v. Lanham, 62 Tex.Civ.App. 431, 146 S.W. 635; Texas Law Of Evidence, by McCormick & Ray, p. 403; Jones on Evidence, 4th Ed., vol. 3, p. 1598.

The judgment is affirmed.


source: Caselaw Access Project

author: BOND, Chief Justice.

license: Public Domain

text:
    JACKS v. TEAGUE.
    No. 12954.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 6, 1940.
    Rehearing Denied Feb. 10, 1940.
    Nathániel Jacks, of Dallas, for appellant.
    M. E. Kramer and J. T. Barfield, both of Dallas, for appellee.
   BOND, Chief Justice.

This is an appeal from an order of the 101st District Court of Dallas County, overruling appellant’s motion to dissolve a temporary injunction theretofore granted, restraining enforcement of a judgment of the 68th District Court of said County, and continuing the injunction in force.

In 1937, Lorene Teague, then wife of ap-pellee Louie A. Teague, employed appellant Nathaniel Jacks as attorney, to obtain a decree of divorce, alimony allowance, injunction, division of property, custody of child, and support of the minor, in a suit (No. 31718-A, Lorene Teague v. Louis A. Teague), filed in the 14th District Court of Dallas County, which was 'thereafter duly transferred to the 68th District Court. Appellant Jacks instituted the suit, alleging facts sufficient for divorce, protection of her physical, personal, and property rights, and for reasonable fees to himself, as attorney, contingent and recoverable, in the' decree of the court. The allegations on the issue, material here, are as follows: “That by reason of the aforesaid acts of the said defendant your plaintiff has been forced to employ counsel in the person of Nathaniel Jacks, a duly practicing attorney at the Dallas County Bar, to prosecute this action for divorce and obtain for her the protection and remedies herein prayed for and that such services of such counsel were necessary in the premises by reason of the aforesaid acts of the said defendant, . and by reason of his failure and refusal to agree to any property settlement whatsoever and that thereby and by reason thereof, your plaintiff is entitled to recover her attorney’s fees in this cause and that the sum of Five Hundred and No/100 ($500.00) Dollars, would be a reasonable attorney’s fees for counsel for the plaintiff herein”. On trial, the jury found that $250 “would be a reasonable compensation for the attorney for the plaintiff for services rendered and to be rendered in said cause”. Accordingly, on the 6th day of April, 1938, Honorable Paine L. Bush, Judge of the 68th District Court, entered judgment for divorce, a division of the community rights, and “that the plaintiff do have and recover of and from the said defendant, exclusive of the division of the community property hereinafter set out, as and for her attorney’s fees for the use and benefit of her said attorney, Nathaniel Jacks, and such fees are hereby awarded to him, the sum of Two Hundred, Fifty and No/100 ($250.00) Dollars, and that such attorney’s fees shall be taxed as court costs and for the collection of which together with other costs herein set forth the clerk of this court may have execution against the defendant and upon the collection of such attorney’s fees the clerk of this court shall pay the same to Nathaniel Jacks, plaintiff’s attorney, for his services rendered and to be rendered herein.” No appeal was perfected from said judgment, which thus became final and binding on the parties.

The right of a wife in a divorce action to contract for the services of an attorney is legal, and lodges in the court granting the divorce the power to fix a fee reasonably compensatory for services rendered by the attorney. The attorney’s fee may be awarded on appropriate pleadings, either in the divorce suit, or in an independent action by the attorney rendering the service. The law granting an aggrieved wife such right to contract, and the court to fix and allow reasonable attorney’s fee, vests in the attorney a present beneficial interest in the claim, which may not be divested by the client without a judicial ascertainment. .The attorney who holds a contract of employment, such as the one here, is neither a necessary nor a proper party in a suit for divorce, even though the suit involves a contract for attorney’s fee, to be paid to the attorney bringing the suit. The presence of the attorney as a party litigant is not required; the court on relation of the wife, aggrieved party in the divorce action, fixes the fee and enters judgment on the wife’s pleadings, reserving, however, the beneficial title and interest to the attorney. With this title and ownership go all the rights and privileges which follow the ownership of any like property, however acquired, and reserves to the attorney the right of enforcement in his own name, regardless of the action of his client.

Construing the record in this case, appellant was attorney for the wife of ap-pellee, under a valid contract of employment, the wife agreeing to pay him, contingent on the action of the court, a reasonable attorney’s fee. The suit for divorce and property rights alleged necessary facts for the wife to recover, included proper pleadings in respect to the allowance of attorney’s fee for the use and benefit of her attorney, to warrant the court in granting the divorce, to fix the fee, and enter the judgment “That the plaintiff do have and recover of and from the said defendant * * * as and for her attorney’s fees for the use and benefit of her said attorney, Nathaniel Jacks, and such fees are hereby awarded to him, the sum of Two Hundred, Fifty and No/100 ($250.00) Dollars”. Plaintiff’s petition and the judgment of the court are tantamount to an investiture of title and ownership of the attorney’s fee awarded, and reserve to the attorney the paramount right of enforcement.

It will be observed that the judgment for the attorney’s fee also provides “that such attorney’s fees shall be taxed as court costs”. Evidently from the nature of the suit, the verdict of the jury, and the judgment of the court, the attorney’s fee awarded is not strictly court costs, as the term “court costs” is usually understood. The term as employed in the judgment, viewed in the light of the record, is not used in its technical meaning, as costs taxable in litigation, bat a reasonable interpretation thereof embraces a distinct purpose, a necessary expense for legal services rendered the plaintiff in the suit, taxable as a necessity for the wife. .The erroneous designation of the award as “court costs” does not, in anywise, impair the judgment or the enforcement thereof.

The injunction in this case was granted by the judge of the 101st District Court, to restrain the enforcement of the judgment, by execution issued out of the 68th District Court at the instance of appellant, in the name of the judgment plaintiff, and placed in the hands of the sheriff of Dallas County, who levied upon property belonging to the judgment defendant. We think the court erred in concluding that the judgment is void, which evidently the court did, otherwise he would not have entertained jurisdiction of the cause and enjoined its enforcement for the use and benefit of the owner thereof. Accordingly, the judgment • of the court below is reversed and cause remanded, with instruction that the injunction be dissolved.

Reversed and remanded with instruc-' tions.


author: YOUNG, Justice.

text:
    DULA v. BUSH, District Judge, et al.
    No. 12959.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 23, 1939.
    Rehearing Denied Jan. 27, 1940.
    H. J. Kimball and Levi Topletz’ both of Dallas, for relator.
    J. Earle Kuntz, McDonald & Anderson, and J. E. Rexford, all of Wichita Falls, and George Sergeant, of Dallas, for respondents.
   YOUNG, Justice.

This record presents application of J. B. Dula, relator, for writ of mandamus and prohibition; answer of respondents thereto, together with briefs of the parties and many exhibits in aid of their respective contentions. Previous history of the litigation, resulting in the confusion of judgments which we are called upon to consider, need not be set out, except that same was initiated by the suit of relator and others against Grade Franks and Martin (Marion) Franks, of Wichita County, filed May 16, 1938, to which plea of privilege was seasonably interposed. The plea was controverted, and upon a hearing (June 25, 1938) only a preliminary motion of plaintiff to strike was considered, the notation on the court docket relative thereto being: “Motion to strike Plea of Privilege overruled; plaintiff excepts; defendant may have Notary Public correct jurat by striking ‘Dallas’ and inserting Wichita; plaintiff excepts and gives notice of appeal * * *”> Among other entries on the same court docket, are the following: “Nov. 7, 1938. Deft having failed to amend Plea of Privilege within a reasonable time,- Plea of Privilege overruled; Nov. 7, 1938. Judgment by Default with a Writ of Inquiry awarded; Nov. 18, 1938. Judgment proven for $2000.00 as damages, accounting and costs of court. (Signed) ’Claude M McCallum Judge 101st Judicial District Court sitting for Judge 68th Judicial Dist. Ct. Dallas County, Texas.” On May 13, 1939, Judge McCallum, for the 68th District Court, signed the nunc pro tunc judgment (as of June 25, 1938), overruling said plea of privilege and for $2,000 recovery, pursuant to the above quoted docket notations.

For convenience, relator J. B. Dula will be termed plaintiff and Marion M. Franks et ux, defendants, as in the original suit. On April 17, 1939, defendants filed a motion in the same cause to set aside the prior judgment, overruling said plea of privilege. This pleading, though styled a motion, embraced the essential elements of an equitable bill of review, 17 Tex.Jur. (Equity) Sec. 28, p. 30; certainly so, when all exhibits attached thereto are severally considered. A hearing was sought on the “motion” wherein the aforesaid judgment would be held for naught, and an order entered sustaining their plea of privilege, with a consequent transfer to Wichita County. On April 28, 1939, the motion was heard, all parties announcing ready, the previous judgment overruling plea of privilege set aside; said plea being set for hearing on its merits some weeks later; viz: May 13, 1939. To this action of the court, plaintiff excepted and gave notice of appeal. Upon subsequent contest of the plea, plaintiff declined to offer any evidence, whereupon the court sustained defendants’ general demurrer to the controverting affidavit; and plaintiff refusing to amend, the plea was granted and a transfer of the cause was ordered to the District Court of Wichita County. Plaintiff further excepted to this order of transfer and gave notice of appeal. However, instead of prosecuting his appeal, plaintiff is here seeking a writ of mandamus, to the end that the previous orders of the 68th District Court (of November 1938), in their favor, be respected and enforced; at the same time, asserting the total invalidity of all court orders following the hearings on defendants’ motion of April 17, 1939.

Plaintiff’s counsel has well and thoroughly briefed the law in support of his right to the relief sought. It is recognized that mandamus is an extraordinary remedy and issues only “where the party hath a right to have anything doné and hath no other way of compelling its performance”. 3 Blackstone’s Comm. The writ cannot be availed of where the applicant has an equally effective and adequate remedy by appeal or writ of'error, 28 Tex. Jur. (Mandamus) Sec. 10, pp. 530-532. It is relator’s contention that defendant’s motion of April, 1939, was simply for a new trial, its maximum purpose being a relitigation of the antecedent plea of privilege by piecemeal, and the court’s action thereon was wholly void; in other words, that the trial court, having failed to obtain jurisdiction by such later proceedings, an appeal from the order of transfer (May 13, 1939) would have been futile; and the appellate court would have had no other alternative than to dismiss the appeal for want of jurisdiction, as illustrated in the case of Smith v. Poppe, Tex.Civ.App., 102 S.W.2d 1108.

We must overrule relator’s propositions, because, as already stated, defendants’ “motion” contained the necessary ingredients of an equitable bill of review, praying for a setting aside of the previous order, a rehearing on the original plea of privilege, and for complete relief; i. e., judgment sustaining the ’plea, and a transfer to the proper county. Obviously, defendants could not control the trial court’s method in disposing of the “motion” or bill, and we regard the proceedings of May 13, 1939, as but a continuation of the trial thereon; the net result of the court’s action being the complete relief, or trial on the merits, contemplated by the decisions of our Supreme Court. Humphrey et al., v. Harrell et al., Tex.Com.App., 29 S.W.2d 963. Relator, therefore, should have prosecuted his appeal from the order of May 13, '1939, sustaining the plea, such remedy involving the same subj ect matter as is here presented; and being equally as convenient, beneficial and effective as by mandamus. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063. In Gulf, C. & S. F. R. Co. v. Muse, 109 Tex. 352, 207 S.W. 897, 4 A.L.R. 613, cited by relator, the writ issued because the remedy by appeal was tedious and inadequate, being contingent upon a retrial by jury.

The validity of defendants’ judgment sustaining the venue plea could have been put squarely in issue by simply challenging the jurisdiction of the trial court to entertain the plea, in whole or in part; or, in lieu thereof, by suggestion of fundamental error here. Clearly, an appeal from the court’s action in the premises would have authorized this Court to pass upon the identical subject matter embraced in this record, and to determine the 'legality thereof. “It is true that, when the court in which a judgment has been rendered has not jurisdiction, the appellate court has not power to do that which the trial court could not do; but it has authority and jurisdiction over the void proceedings to declare their invalidity and set them aside.” Williams v. Steele, 101 Tex. 382, 108 S.W. 155, 157. Generally,. as to the principles applicable to the instant case, see Oliver v. Williams, Tex.Civ.App., 98 S.W.2d 246.

Application for mandamus and prohibition denied.


author: O’QUINN, Justice.

text:
    DAVIS v. DOWLEN et al.
    No. 3469.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 27, 1939.
    Rehearing Denied Jan. 10, 1940.

      B. C. Johnson, of Port Arthur, and David E. O’Fiel, of Beaumont, for plaintiffs in error.
    Orgain, Carroll & Bell and Strong, Moore & Strong, all of Beaumont, Donald Campbell and Leslie A. Thompson, Jr., both of Tulsa, Okl., and A. W. Bounds and Winston McMahon, both of Houston, for defendant in error.
   O’QUINN, Justice.

This is a suit in trespass to try title. Annie V. Davis, joined by her husband, Olin Davis, and other parties, as plaintiffs, sued P. A. Dowlen and Mrs. Ida. L. Keith in her individual capacity, as well as, independent executrix of the estate of her deceased husband, John L. Keith, as defendants, to recover title and possession of 10 acres of land, a part of lot or subdivision No. 10 of the west half of the H. Williams league of land in Jefferson County, Texas.

The defendants answered by general demurrer, general denial, plea of not guilty, and specially the 3, 5, 10 and 25 year statutes of limitation. Vernon’s Ann.Civ.St. arts. 5507, 5509, 5510, 5519. Defendants then by cross action sued the plaintiffs for the title and possession of the 10 acres of land described in the plaintiffs’ petition, asserting title to same by virtue of the 3, 5, 10, and 25 year statutes of limitation.

The Stanolind Oil and Gas Company with permission of the court intervened asserting that it had an interest in the property involved, and for cause and right to intervene alleged that it was the holder of an oil, gas and mineral lease duly executed by defendants P. A. Dowlen and Mrs. Ida L. Keith, individually and as Executrix of the estate of her deceased husband, John L. Keith, which said lease covered the 10 acres of land described in the plaintiffs’ petition, which lease was a valid, subsisting lease in full force and effect, and answered plaintiffs’ suit by general demurrer, general denial, plea of not guilty, and specially that plaintiffs’ right to recover was barred by the 3, 5, 10, and 25 year statutes of limitation.

Trial was had to a jury upon special issues, upon the answer to which judgment was entered for defendants for the title and possession of the land. Motion for a new trial was overruled, and plaintiffs have appealed the case to this court by writ of error.

We shall refer to the plaintiffs in error as plaintiffs, and to the defendants in error as defendants, that being their attitude in the trial court.

The record discloses that the H. Williams league of land in Jefferson County had been divided into halves, and that the west half was subdivided into lots or blocks, numbered, the 10 acres here involved being situated in the northwest corner of block 10. Lot or block No. 9 was situated north of and adjoining lot or block No. 10. A tract of 47½ acres, part of lot 10, extended along the north line of lot 10, and the 10 acres here involved was off of the west end of the 47½ acres, being in the northwest corner of lot 10.

All parties agreed that J. P. Armstrong was the common source of title. He acquired title to the 10 acres by warranty deed executed to him by Rufus D. Kent January 30, 1899, said deed covering and conveying to him all of blocks 9 and 10 of the Grigsby partition of the west one-half of the H. Williams league survey. On April 16, 1901, J. P. Armstrong conveyed to B. Milmo the north 47½ acres of block 10, and April 25, 1901, Milmo conveyed to H. G. Bury, Trustee, the west 10 acres of said 47½ acre tract. Plaintiffs claim to hold the title to this 10 acres, and all parties admit that this is the 10 acres here in controversy. It is admitted that the remainder of the 47½ acre tract passed from Milmo by regular chain of title into John L. Keith, in fact it is admitted that title to the remainder of block 10 and all of block 9 passed by regular chain of conveyances into John L. Keith, the 10 acres first above mentioned being the only land in blocks 9 and 10 in dispute.

On February 6, 1904, J. P. Armstrong, by sheriff, executed to H. T. Staiti a deed purporting to cover, among other property, all of blocks 9 and 10, except the 47½ acres sold by Armstrong April 16, 1901, to B. Milmo. June 8, 1904, Staiti conveyed to John L. Keith by special warranty deed all the land that he had acquired under the sheriff’s deed, being all of blocks 9 and 10, except the 47⅜ acres off of the north side of block 10. December 29, 1905, J. P. Armstrong executed to John L. Keith a deed covering all of his interest in blocks 9 and 10 including the 10 acres in controversy, and on December 12, 1906, John L. Keith conveyed to P. A. Dowlen by special warranty deed an undivided one-half interest in all of blocks 9 and 10 of the west half of the said Grigsby partition of the west half of the H. Williams league survey. Thereafter John L. Keith and P. A. Dow-len each claimed an undivided one-half interest in all of blocks 9 and 10, including the 10 acres in question, and together they claimed the entire title to all o'f said blocks 9 and 10.

John L. Keith died leaving a will which named his widow, Ida L. Keith, Independent Executrix and sole devisee, which will was duly probated. Subsequently, on October 1, 1932, Ida L. Keith joined with P. A. Dowlen in executing to G. J. Lee a mineral lease covering all of blocks 9 and 10, and title to this lease passed by regular trans- ■ fers into Intervener, Stanolind Oil and Gas Company. /

As before stated, plaintiffs brought this suit in trespass to try title to the 10 acres, in the northwest corner of block 10, against defendants, Dowlen and Keith. This suit was filed on June 9, 1936. June 29, 1936, Dowlen, who was a lawyer, filed answer for himself and Mrs. Keith, which consisted of a general demurrer, general denial, pleas of not guilty, and the 3, 5, 10, and 25 year statutes of limitation. The court submitted six special issues to the jury. The first inquired whether defendant P. A. Dowlen had matured title to an undivided one-half of the land in controversy under the five year statute of limitation, which was answered “Yes”; the second whether defendant Mrs. Ida L. Keith had matured title to an undivided one-half of the land in controversy under the five year statute of limitation, which was answered “Yes”; the third whether defendant P. A. Dowlen had matured title to an undivided one-half of the land in controversy under the ten year statute of limitation, which was answered “Yes”-; the fourth whether defendant Mrs. Ida L. Keith had matured title to an undivided one-half of the land in controversy under the ten year statute of limitation, which was answered “Yes”; the fifth whether defendant P. A. Dowlen had matured title to an undivided one-half of the land in controversy under the twenty-five year statute' of limitation, which was answered “Yes”; and sixth whether defendant Mrs. Ida L. Keith had matured title to an undivided one-half of the land in controversy under the twenty-five year statute of limitation, which was answered “Yes.” Each of the special issues was submitted in proper form.

All assignments of error, that the court erred in refusing to grant plaintiffs’ motion for an instructed verdict because of the insufficiency of the evidence to support title in the defendants by limitation are overruled. The record abounds in proof supporting each claim.

We overrule plaintiffs’ contention that the court erred in permitting Dowlen to testify that Keith claimed an undivided one-half of the 10 acres, and that he, Dow-len, as claimant of the other undivided one-half, recognized such claim of Keith. It is contended by plaintiffs that such testimony was inadmissible because prohibited by Article 3716, R.S.1925. Said article reads: “In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

We think the statute has no application to the case because the defendant Dowlen was not an heir of John L. Keith, deceased, and the testimony given by him was not as to a transaction with John L. Keith within the meaning of the statute, nor was there a controversy between Dowlen and Mrs. Ida L. Keith either in her personal capacity or as Independent Executrix of the estate of her deceased husband, John L. Keith. Humphreys v. Green, Tex.Civ.App., 271 S.W. 116, writ dismissed. Dowlen’s testimony that he claimed an undivided one-half interest in the land in controversy; that he recognized John L. Keith as the owner of the other half, and after Keith’s death that he recognized his widow Mrs. Ida L. Keith as the owner of same; that he, Dowlen, held possession of, and exercised control and management of the land for himself and Keith, as equal owners; that after acquisition of the land he and Keith paid the delinquent taxes due on the land; that W. A. Decker paid to Dowlen rent on the land annually as provided in a contract between Decker and Keith and Dowlen; and that after acquiring the undivided one-half interest in the land, he and Keith had the land surveyed and built fences enclosing same, was certainly admissible. Plaintiffs prepared and requested the court to give to the jury a special charge that they should not consider any evidence going to show that Dowlen was claiming the land for the benefit of John L. Keith, or the heirs of John L. Keith. This was correctly refused. He and Keith being owners of the land in equal halves, and so joint tenants, and Dowlen having, the exercise of possession and management of the whole for their joint benefit, he was competent to so testify and the testimony was competent and admissible to prove these facts. The whole purpose of the testimony was to show that Dowlen, who managed the land, claimed only an undivided one-half interest in same, and that he recognized Keith’s title to the other half, and after his death he recognized his sole legatee, Mrs. Ida L. Keith, as the owner of the Keith half. He was not a party to an action by or against an executor in the sense contemplated by Article 3716, there being no controversy between him and Mrs. Keith, the executrix of her deceased husband’s estate.

But plaintiffs insist that “the court erred in permitting defendants, over plaintiffs’ objections, to introduce any evidence of their title or claim to the land in controversy, plaintiffs having duly demanded the filing of an abstract of- their title as provided by law, and such abstract not being so filed.” Under this assignment it is contended that defendants, in the absence of complying with the demand for an abstract of their title, could not offer any evidence, documentary or oral, of their title or claim to the land. This contention is not sound.

The statutes covering the right of one party to demand an abstract of title of the opposite party, what the abstract of title shall contain, and the circumstances under which same shall be filed, are as follows :

“Article 7376". After answer filed, either party may, by notice in writing, duly served on the opposite party or his attorney of record, not less than ten days before the trial of the cause, demand an abstract in writing of the claim or title to the premises in question upon which he relies.”
“Article 7377. Such abstract of title shall be filed with the papers of the cause within twenty days after service of the notice, or within such further time as the court on good cause shown may grant; and, in default thereof, no evidence of the claim or title of such opposite party shall be given on the trial.”
“Article 7378. The abstract mentioned in the two preceding articles shall state:
“1. The nature of each document or written instrument intended to be used as evidence and its date; or
“2. If a contract or conveyance, its date, the parties thereto and the date of the proof of acknowledgment, and before what officer the same was made; and,
“3. Where recorded, stating the book and page of the record.
“4. If not recorded in the county when the trial is had, copies of such instrument, with the names of the subscribing witnesses, shall be included.
“If such unrecorded instrument be lost or destroyed, it shall be sufficient to state the nature of such instrument and its loss or destruction.”
“Article 7379. The court may allow either party to file an amended abstract of title, under the same rules which authorize the amendment of pleadings so far as they are applicable; but in all cases the documentary evidence of title shall at the trial be confined to the matters contained in the abstract of title.”

We think that the foregoing statutes have but one purpose, that is to give to either party in a trespass to try title suit an opportunity to know what documentary evidence the opposite party expects to rely upon to support the title he seeks affirmatively to recover. This for the purpose of affording the party demanding the abstract full opportunity to meet any affirmative title presented on the trial by the opposite party. If plaintiffs’ theory be correct, then when a demand is timely made for an abstract of title and the party upon whom the demand is made ' fails literally to comply with the demand within twenty days, he forfeits all rights to defend the suit and thus loses his property without more ado. In other words, if plaintiffs’ insistence be correct when the twenty days have expired and no abstract has been filed, the law suit then ends, and the losing party is without any remedy to protect his rights no matter how clearly he may be entitled to protection by proving his ownership of the premises in contest. We think the purpose of the statute, clearly, is to preserve and protect, and not to take away or to destroy; to help the cause of justice and fairness in litigation, not to pervert or hinder it. It could not have been the intent of the legislature to lay down an iron-clad rule that unless an abstract of title is filed within twenty days after demand, that such failure completely and forever bars even 'the consideration by our courts of the title, however acquired, of the party who so failed, and who, conceivably, might have all of the equities on his side. The legislature could not have intended to lay down such a rule without vesting in some human agency the power to use discretion in enforcing the rule under consideration. That courts have this discretion is clearly manifest in Article 7377. It is there provided that “Such abstract of title shall be filed with the papers of the cause within twenty days after the service of the notice, or within such further time as the court on good cause shown may grant; and, in default thereof, no evidence of the claim or title of such opposite party shall be given on the trial.” (Italics ours.) The granting of further time in which to file the abstract is thus plainly authorized, and whether good cause for the delay has been shown is left to the discretion of the court. Here defendants asked the court for further time, and it was granted, and the abstract thereafter promptly filed. It must be presumed that the court gave consideration to all the facts and circumstances relating to the granting of further time, and that he found that good cause had been shown. Though the demand for the abstract was made on February 1, 1937, and no abstract was filed until October 16, 1937, no injury to plaintiffs is made to appear. The case was not tried until December 1, 1937, some six weeks after the abstract was filed, thus affording plaintiffs ample time in which to inspect and investigate each of the documents there listed. No complaint is made to the contrary by plaintiffs.

Furthermore, the instruments (two deeds, one from Armstrong, the agreed common source, to Keith, and one from Keith to Dowlen) were not offered by defendants as muniments of title in themselves, but as evidence going to show title acquired by limitation — as evidence supporting the plea of limitation. It is not believed that the statute authorizing a demand for an abstract of title has application to evidence of any nature going to support pleas of limitation as a defense to defeat the opponent’s title. Wolf v. Wilheim, Tex.Civ.App., 146 S.W. 216-219, writ denied; Davis v. Cisneros, Tex.Civ.App., 220 S.W. 298, writ dismissed; Hays v. Hinkle, Tex.Civ.App., 193 S.W. 153, writ refused; Stokes v. Riley, 29 Tex.Civ.App., 373, 68 S.W. 703, 704. We shall quote from but one of the cases cited: In Davis v. Cisneros, supra, the court says [220 S.W. 299]: “The instrument was not offered as a muniment of title, but as a circumstance to consider with other testimony in connection with the adverse claim of use and occupation under a limitation title, and was admissible for that purpose.” In the instant case the whole defense was based on the several statutes of limitation. The evidence offered by defendants was in support of the limitation claim. The only issues submitted on the trial were of limitation. These were all answered in favor of defendants. There is abundant evidence in the record to support each of the findings. Moreover, the issue of ten year limitation was submitted without reference to any muniment of title, there being only 10 acres of land involved, adverse holding under muniment of title was not involved, and the issue was submitted simply on adverse peaceable possession, and use and enjoyment of the land for ten consecutive years before the filing of the suit. The finding of this issue, alone, supports the judgment. Further, in the original answer of defendants filed before the demand for an abstract of title was made, title by limitation under the several statutes was specially plead, and so plaintiffs then and all through the progress of the case were advised that the defense of limitation was relied upon to defeat plaintiffs’ title.

We overrule plaintiffs’ assignments that the court erred in the manner of his submission to the jury of the several pleas of limitation, over their objections, the contention being that the special issues submitting the limitation pleas were multifarious for in that said issues submitted the questions of possession, whether the possession was adverse, the payment of taxes, and use and enjoyment of the premises all in one issue, whereas they should have been submitted separately. The six special issues herein heretofore referred to were submitted in the language of the respective statutes of 5, 10, and 25 year limitation. The issues were not multifarious. It required all of the elements mentioned in the court’s charge to compose the one ultimate fact issue. All of them must have coexisted and run concurrently for the time required to have matured title. Reed v. Magnolia Petroleum Co., Tex.Civ.App., 57 S.W.2d 359, writ dismissed; White v. Haynes, Tex.Civ.App., 60 S.W.2d 275, writ dismissed; Rotge v. Dunlap, Tex.Civ.App., 91 S.W.2d 905. In this last case cited, writ was granted, but on another point, and was later dismissed by agreement. Consolidated Casualty Ins. Co. v. Fortenberry, Tex.Civ.App., 103 S.W.2d 1049, 1050, writ refused. In the last cited case Judge Higgins says: “The grouping of facts in a single issue as distinguished from the grouping of distinct ultimate issues, is permissible.”

Other assignments are presented, all of them have been considered, and none of them showing reversible error, are all overruled.

The judgment' should be affirmed, and it is so ordered. Affirmed.


author: PRICE, Chief Justice.

text:
    TEXAS EMPLOYERS INS. ASS’N v. THRASH.
    No. 3825.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 11, 1940.
    Rehearing Denied Feb. 8, 1940.

      Whitaker, Perkins & Turpin, of Midland, and Scarborough & Ely, of Abilene, for appellant.
    Thomas B. Ridgell and G. Ray Lee, both of Dallas, for appellee.
   PRICE, Chief Justice.

This was an action instituted by W. M. Thrash, as plaintiff, hereinafter so called, against Texas Employers Insurance Association, defendant, hereinafter so called, to set aside an award of the Industrial Accident Board. Plaintiff in his petition and also in his testimony alternatively sought to bring himself under the general provisions of the Compensation Act (Vernon’s Ann.Civ.St. art. 8306 et seq.); and also sought recovery for specific injury, including total loss of the right eye and partial loss of the left. It was alleged that he suffered' accidental injury while an employee of Banks G. Moreland by being struck in the eye by a rivet, the result of which was total loss of the sight of the right eye and injury to the left and likewise alleged a total and permanent loss of capacity to work. Defendant answered by general denial. The case was submitted to a jury on special issues. After the verdict was returned the court entered judgment in the sum of $1200, payable in weekly installments of $20 per week, payments to commence as of August 27, 1937, and an additional sum of $19.20, payable in sixteen weekly installments. The defendant .duly perfected an appeal and plaintiff has likewise filed cross assignments of error.

The jury found plaintiff suffered accidental injury as he alleged on August 27, 1937; such injuries were suffered while in the service of Banks G. Moreland, the insured; that same were in the course of his employment; that as a natural result of such injury he suffered total loss of the right eye and partial loss of the vision of the left eye; that the partial loss of vision continued for sixteen weeks and amounted to ten per cent of the total vision of the left eye; that the disability was confined solely to thé eyes; that plaintiff’s average daily wage was eight dollars; that sixty per cent of plaintiff’s present disability was riot due to former injuries.

Most if not all the other issues were pertinent to a recovery for general injury or injuries as distinguished from specific injuries.

If plaintiff’s injuries were specific it is immaterial the extent to which they caused a diminution of his capacity to labor. In case of a specific injury the workman is entitled to recover the amount provided by law even though his incapacity to labor has not been injuriously affected; on the other hand, he is limited to the amount fixed by law for a specific injury even though his capacity to labor has been permanently and totally destroyed. Petroleum Casualty Co. v. Seale, Tex.Com. App., 13 S.W.2d 364; Fidelity Union Casualty Co. v. Munday, Tex.Com.App., 44 S.W.2d 926; Texas Employers Ins. Ass’n v. Maledon, Tex.Com.App., 27 S.W.2d 151.

The findings as .to partial permanent economic disability in no way conflict with the finding of specific injury. In other words, a specific injury may or may not result in economic incapacity. If the injury be specific the finding of economic incapacity is immaterial.

This verdict finds specific injuries to the eyes rather than a general injury. In rendering judgment on the verdict we think the trial court was in error in discounting the amount of the recovery forty per cent. The finding on special issue 27 was immaterial. Such finding unquestionably referred to economic' incapacity and not a decreased functioning of the organs involved. The issue could not refer to injury to the right eye for it was totally gone.

We do not want to be understood as holding that there cannot be a recovery for total permanent disability where specific injury exists coupled with other injuries or where the effects of specific injury extend beyond the portion of the body involved. What we do hold is that where there is only specific injury the recovery is limited to such injury.

Defendant complains of the form of special issue No. 2. It was as follows: “Do you find from a preponderance of the evidence that such injury, if any, sustained by the plaintiff, W. M. Thrash, on or about August 27th, 1937, was sustained by him while working as an employee of Banks G. Moreland?”

It is strongly and plausibly maintained that this does not submit the issue of employment. Giving the wording of the issue the commonly ascribed meaning we do not think it is subject to this criticism. Our opinion is fortified by the definition the court gave of an employee. If the court had substituted for the word “working” “in service,” the words would have been part of the statutory definition of an employee. The query “for whom are you working” does not popularly under all conditions refer to your activities at the moment. It is suitable to convey the query as to “by whom are you employed?” Special issue No. 3 reinforces this meaning gf No. 2. If it y/as meant to be interpreted by the jury as “was he at that moment engaged in a physical work he had been employed to perform,” why No. 3? It is elementary that the submission of the case must be viewed as a whole. The language used in the submission should be interpreted in the light of the issues made by the evidence and pleading. Plaintiff at about the time of the alleged injury was reporting to defendant the first time for work. Under his testimony he was ordered to proceed therewith and did so. Defendant, on the other hand, held the theory and supported same by testimony that when plaintiff reported he was refused work and did not go to work or take any steps appropriate to do so; that he did not go inside the oil tank in the course of construction where he claimed to have been struck in the eye by rivet. Further, under the testimony if plaintiff was working at the time of the injury, it is almost certain his version of the matter is correct and he was an employee.

The form of special issue No. 4 is vigorously assailed. No. 4 was as follows: “Do you find from a preponderance of the evidence that plaintiff has sustained the total loss of his right eye as a natural result of said accidental personal injury, if any, of date on or about August 27th, 1937?”

Defendant introduced testimony tending to show a complete permanent loss of vision in the right eye as a result of an injury occurring in 1919 when plaintiff was in the service of another employer. If there had not been a complete prior loss ■of vision in the right eye, it is contended then that the vision was so small as to he ■of no practical benefit to plaintiff in his trade. Plaintiff, while admitting impairment of vision of his right eye, testified that he had vision in that eye and with glasses same was of practical benefit in the performance of his work.

Suffice it to say under the evidence the issue was fairly raised under the testimony as to whether or not the vision of plaintiff’s right eye had not been practically permanently destroyed prior to the injury complained of here to that member. A short time subsequent to the alleged injury it had been necessary to remove plaintiff’s right eyeball. At the trial he had a glass eye in the right socket.

Section 12, Article 8306, R.C.S., provides for compensation: “For the' total and permanent loss of the sight of one eye.” The ultimate issue was, did he lose the sight of his right eye? I-Ie did not lose it as a- result of the accident, if it was sightless before the injury. On the other hand, the removal of the eye constituted .the total and permanent loss of such vision, if any, as there was in the right eye. If .there was no vision in the eye he did not lose the sight of his eye, but did lose an ■eyeball that did not function as an organ •of sight.

If at the time of the accidental injury to plaintiff’s right eye he had therein any useable vision we think he would be entitled to recover the amount provided in Section 12 of the Article above cited for the total and permanent loss of the sight of his right eye. Hartford Accident & Indemnity Co. v. Leigh, Tex.Civ.App., 57 S.W.2d 605; City of Shelbyville v. Kendrick, 161 Tenn. 149, 29 S.W.2d 251; Travelers’ Ins. Co. v. Richmond, Tex.Civ.App., 284 S.W. 698; Id., Tex.Com.App., 291 S.W. 1085.

On the other hand, if there was no useable vision in the eye at the time of the injury he would not be entitled to recover under Section 12 for the one hundred weeks permanent total disability, or rather the amount equivalent to compensation for such total disability. The issue as phrased was not, under the rather peculiar- facts in this case, apt to elicit a specific and definite finding on an ultimate issue conditioning the liability or nonliability on this feature of the case.

Defendant excepted to the issue as formulated on substantially this ground. We think the assignment presents reversible error. The burden was on the plaintiff to show a loss of sight. The loss of the eyeball might, under ordinary conditions, be construed as a total loss of sight. Surely this would be true if useable sight existed prior to the injury. Here the evidence raises the issue whether useable sight did exist before the injury. It cannot be said that it clearly appears from the record that the jury were not misled by the form of the issue. The loss of the sight of the right eye was what liability depended upon. It is the right of defendant to have this issue clearly and definitely submitted. Sight is a sense and not an organ. It is the power of perception of external objects through the eye. Conceding the non-existence of sight in the eye prior to the injury, we do not mean to hold that the loss of a sightless eye would not present grounds for compensation under the Workmen’s Compensation Act. There is no question but what it would; likewise there is no question but what it would not constitute a specific injury.

In view of another trial we deem it appropriate to consider the question of average weekly wages. It is hardly necessary to set out subsections 1, 2 and 3 of Section 1 of Article 8309, R.S. The basis for compensation is the wages for the year next preceding the injury. Under subsection 1 actual earnings of the plaintiff are used as the base; under subsection No. 2 the wages of an employee other than the plaintiff for the year next preceding are the base; in case neither 1 nor 2 applies by their terms, then No. 3 is applied. The underlying purpose is to compensate to the extent provided, for lost capacity to earn wages, through an industrial accident on the basis of full time employment. Texas Employers Ins. Ass’n v. Clack, Tex.Com.App., 132 S.W.2d 399.

Beyond question, in the instant case subdivision 1 does not apply. The employment began and ended on the same day. Plaintiff had only worked some ten or fifteen days during the year preceding in a similar employment for another employer. Now as to No. 2 the evidence did not show that in the relevant district an employee had worked for substantially the whole of a year, or, had there been such an employee, his wages. This is not strictly the question. The real question is, did the evidence conclusively show that there was no such an employee? There was unquestionably evidence strongly tending to show the non-existence of such an employee. We are inclined to believe the evidence was sufficient in this respect to amount to proof. Federal Underwriters Exchange v. Stewart, Tex.Civ.App., 109 S.W.2d 1031; Texas Employers Ins. Ass’n v. Roberts, Tex.Civ.App., 116 S.W.2d 417; Traders & General Ins. Co. v. Crouch, Tex.Civ.App., 113 S.W.2d 650; Traders & General Ins. Co. v. Locklear, Tex.Civ.App., 119 S.W.2d 153.

However, we make no ruling on the matter as the evidence may be different on another trial. Furthermore, had there been such an employee as contemplated by said subsection 2, the evidence is almost conclusive that sixty per cent of his average weekly wages would have exceeded $20. The employment in which he was engaged was skilled and the wages seem to be rather generally established.

It is unnecessary to discuss the question of the sufficiency of the evidence to sustain the finding as to the average weekly wage, as the evidence may not be the same on another trial.

In regard to the finding as to partial loss of the vision in the left eye the recovery therefor should not, in our opinion, have been discounted forty per cent.

Reversed and remanded for a new trial.


author: BROWN, Justice.

text:
    GRIMLAND v. WILLIAM CAMERON & CO., Inc.
    No. 14005.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 12, 1940.
    Rehearing Denied Feb. 23, 1940.
    E. B. Hendricks, J. E. Warren, Jack Carter, Rawlings & Sayers, and Nelson Scurlock, all of Fort Worth, for plaintiff in error.
    Sleeper, Boynton & Kendall, of Waco, and Charles Kassel, of Fort Worth, for defendant in error.
   BROWN, Justice.

Appellant, Grimland, brought suit against appellee, Wm. Cameron & Company, Inc., alleging that he is a real estate broker and that, in 193S, appellee had a large amount of real estate in the cities of Fort Worth, Waco and San Angelo, Texas, which it desired to exchange for ranch property in Texas, and that the agent of appellee, who was manager of its Fort Worth office, went to the office of George Beggs, in Fort Worth — said Beggs being engaged in the real estate business and being a broker— and listed appellee’s said properties with Beggs and employed Beggs to procure for appellee ranch lands in exchange for its said properties, at a price and on terms acceptable to appellee. That the listing was made with one McBrayer, the duly authorized and empowered agent of said Beggs, who was in charge of the real estate department of said Beggs. That thereafter, and on or about September 1st, 1935, the said McBrayer, acting for George Beggs, with the knowledge and acquiescence of appellee and its said Fort Worth agent, listed said real estate with appellant on the same terms and at the said prices the same had been listed with the said George Beggs, and that said McBrayer, acting for said Beggs, and duly authorized to act, agreed to pay appellant, for his services, one-half the commission that might become due said Beggs, should plaintiff (appellant) procure f.or the appellee and said Beggs ranch lands that could be traded for ap-pellee’s real estate in Fort Worth, Texas, on terms and at prices acceptable to ap-pellee, and “whereby plaintiff was duly employed by the said George Beggs and defendant to find and procure for defendant and the said George Beggs ranch lands in Texas that could be exchanged for defendant’s said real estate in Fort Worth, Texas, on terms and at prices acceptable to defendant.”

Appellant next alleges efforts to interest appellee in several propositions which were acceptable to appellee — one being known as the Caldwell lands. That McBrayer went' to Waco, Texas, to the general offices of appellee and put up the proposition relating to the Caldwell lands, but appellee would not consider the proposition, and that “said officers of defendant were then and there fully informed of plaintiff’s said employment by the said George Beggs, as aforesaid, and made no objection to plaintiff’s said employment, and acquiesced therein, and after having all of said information, and the further information that plaintiff had been principally instrumental in presenting said Caldwell proposition in writing, requested McBrayer to procure for defendant additional propositions of exchange, and whereby defendant then and there acquiesced in plaintiff’s said employment, and did then and there impliedly promise and agree to pay plaintiff and the said George Beggs 2½ per cent commission on any exchange of ranch property for defendant’s said real estate in Fort Worth that might be accepted by defendant at prices and on terms satisfactory to defendant.”

Appellant further alleged that thereafter he went to Waco, to the general offices of appellee, and saw its president, to ascertain at what price appellee would be interested in exchanging its properties for the Caldwell ranch, and to secure a list of all real estate owned by appellee that it desired to exchange for ranch lands, and to ascertain from appellee’s officers whether or not they would be interested in trading for the “McGregor Ranch” in Culberson County, Texas, as well as another ranch in the vicinity of the McGregor Ranch, and that in his interview with the president of ap-pellee company he was advised that one Zimmerman, a vice-president of appellee, was looking after such matters; that Zimmerman was out of the city and plaintiff was invited to return to Waco and to take up all such matters with Zimmerman; that at such time plaintiff told appellee’s president that plaintiff “had been trying to secure from the agent and the owner a tangible proposition to exchange the said McGregor Ranch * * * for a part of defendant’s real estate situated in Fort Worth,-. Waco and San Angelo, Texas, and plaintiff did then and there point out said McGregor Ranch, or the approximate location thereof, on a road map then in the possession of plaintiff, to the said president of defendant.”

That the said president told plaintiff-appellee would be interested in securing a proposition on the McGregor Ranch and then requested plaintiff to secure a proposition from the owners of such ranch on an exchange basis.

That plaintiff thereafter, on or about October 25th, 1935, returned to Waco and interviewed the said vice-president, Zimmerman, who declined to further consider the Caldwell lands; that plaintiff told Zimmerman what he told appellee’s president about the McGregor lands, and Zimmerman told plaintiff appellee would be interested in a proposition relative to the Mc-Gregor lands and requested plaintiff to procure such a proposition from the owners of their agents; and Zimmerman promised to mail plaintiff a complete list of all real estate that appellee owned in Fort Worth, Waco and San Angelo, Texas, that it had to exchange for ranch lands at prices and upon terms acceptable to ap-pellee. That within a few days such list was mailed to plaintiff, “And whereby, and by reason of the facts alleged in this subdivision of this petition, defendant expressly and impliedly employed this plaintiff to procure for defendant ranch land in Texas. And defendant did then and there impliedly agree to pay plaintiff the usual and customary commission charged by brokers in Texas and in Tarrant County, Texas, for their services in procuring an exchange of real estate.” This he alleges to be 2½% “of the value of the real estate procured for exchange.”

Plaintiff further alleged that prior to his first visit to Waco, he had contacted “one Pawkett of the real estate firm of Breeding and Pawkett of Fort Worth, Texas, who claimed he represented the owners and the agents of the said McGregor Ranch and further informed plaintiff that said ranch could be procured by him for exchange' of real estate in Fort Worth and other cities in Texas, and whereupon the said Pawkett was fully informed that plaintiff and George Beggs had certain real estate of defendant’s listed with plaintiff and the said George Beggs for exchange for ranch land in West and Southwest Texas at prices and upon terms acceptable to defendant, and did then and there request said Pawkett to write to the owner' and agent of said McGregor Ranch to come to Fort Worth, Texas, and inspect defendant’s said real estate located in said City.”

Plaintiff next alleges that Pawkett, prior to the time plaintiff contacted him, and many times since such date, corresponded with a real estate broker named Wilmoth, who resided in El Paso, Texas, said Wil-moth being the exclusive agent of and for the McGregor Ranch lands; and that Pawkett advised plaintiff that he, Pawkett, could not secure the agency for the Mc-Gregor Ranch for exchange, and that said Wilmoth was the exclusive agent of. and for same and that Wilmoth would not. agree to divide the commission with Paw-kett, and informed plaintiff that Wilmoth and the owners of the McGregor Ranch would shortly visit Fort Worth to'inspect defendant’s real estate, and that if plaintiff did not agree to divide the commission with him, Pawkett, that he would cause Wil-moth to exchange the ranch for other real estate than that owned by the defendant, but that plaintiff refused to divide the commission'because Pawkett had agreed to look to the owners of the ranch for his commission. That on or about November 5th, 1935, Wilmoth, together with the owners of the said ranch, came to Fort Worth to inspect defendant’s property, and when they arrived Pawkett induced them “to go around plaintiff and to ignore plaintiff”, and they then went to Waco, to defendant’s general offices and entered into negotiations with defendant for exchange of their respective lands, and that the exchange agreement bears date December 31st, 1935; and on or about April 29th, 1936, the agreement was carried out and “the said real estate of defendant, or a part thereof, listed with plaintiff and the said George Beggs was exchanged for the said McGregor Ranch at a valuation of $80,000.00 of the equity the said McGregors had in said ranch.”

Appellant next alleges that he was the procuring cause of such exchange of lands, and that “at the time plaintiff procured said ranch through the said Pawkett, as aforesaid, neither the defendant nor anyone representing the defendant except plaintiff and the said George Beggs and his said agent knew that said McGregor Ranch could be procured as an exchange for a part of defendant’s said real estate. * * That at the various times plaintiff contacted the said Pawkett and induced him to write the said Wilmoth concerning the exchange of said real estate, plaintiff and the said 'George Beggs and the agent of the said George Beggs were still in the employment of defendant as agents and brokers for the purpose of procuring ranch lands for exchange of part of defendant’s said real estate in said city, and that by reason of being the procuring cause for the exchange of said real estate as aforesaid, defendant is justly due the said George Beggs and plaintiff 2½% commission on the valuation. of the said equity of $80,-000.00 of said McGregor Ranchi”

Appellant next alleges that long prior to the filing of the suit, “George Beggs, acting by his duly authorized agent, J. D. McBrayer, for a valuable consideration, assigned and transferred to plaintiff the entire interest of the said George Beggs in and to said commission by reason of a verbal assignment.”

He next alleges that defendant had verbal and written notice that plaintiff and George Beggs “was the procuring cause of said exchange of said property and that plaintiff and the said George Beggs expected defendant to pay them said commission.” That such notice was given defendant prior to the time it entered into the agreement to make the exchange of lands.

He then alleges “that by reason of all of the foregoing alleged facts contained in this petition, defendant at least impliedly employed plaintiff to procure for defendant the exchange of defendant’s said real estate, or a part thereof, for ranch lands in Texas, and impliedly agreed to pay plaintiff and the said George Beggs the usual and customary commission in such cases should plaintiff and the said George Beggs, or either of them, procure for defendant ranch lands in Texas that could be exchanged for a part of defendant’s said real estate, at prices and upon terms acceptable to defendant and that this plea is made in the alternative in the event that the court should hold that defendant neither expressly employed plaintiff nor the said George Beggs for said purposes. And in the alternative plaintiff further alleges that the reasonable value of his said services and the services of the said George Beggs is the said sum of $2,000.00.”

The defendant specifically denied the allegations on which plaintiff seeks to recover and, in connection with giving plaintiff a list of its properties, defendant alleged that it wrote plaintiff as follows: “In order that no misunderstanding shall arise, we desire to state that we are not listing these properties with you for sale; but, on the other hand, we are furnishing you this list in order that you may submit to us for our consideration such deals as you may care to present.”

The defendant alleges further that a proposition was, submitted to it for exchange of its properties for the McGregor Ranch by a broker named Pawkett, and it agreed to pay said broker a commission for his services; that the plaintiff at no time had ever submitted to it any proposition on the McGregor Ranch, and that it in good faith obligated itself to pay Paw-kett a commission for his services without having theretofore had any notice from plaintiff or George Béggs that they, or either of them, were claiming to be the procuring cause of the exchange of lands or that they, or either of them, were claiming a broker’s fee because of such trade.

We will not further notice the pleadings and we apologize for the length of the statement covering appellant’s pleadings, but we have given a rather full picture of his pleadings because we doubt that the plaintiff has alleged a cause of action against the defendant.

The cause was tried to a jury, and after all the evidence was heard, the trial court gave the jury a peremptory charge to find for the defendant.

The plaintiff brings the cause before us on a writ of error and has two assignments of error in his brief, both being to the effect that the trial court erred in peremptorily instructing the jury to find for the defendant.

We do not believe that there is another case on record, where the facts are even practically identical with the instant suit.

The sum and substance of plaintiff’s pleadings are that the defendant, being desirous of exchanging some of its city properties for ranch' properties, employed George Beggs of Forth Worth, a real estate broker, to endeavor to make such exchange, and that one of George Beggs’ duly authorized agents employed plaintiff to assist Beggs in the undertaking and that plaintiff contacted another broker named Pawkett and advised him of the wishes of the defendant and that Pawkett got in touch with the exclusive agent of some ranch owners who were interested in making such a trade and that Pawkett “went around” the plaintiff and ignored him and took the ranch owners to Waco, Texas, and presented them to the defendant, and a contract of exchange of properties was then made between the parties; but that prior to such contract being made, the plaintiff had discussed the very same ranch properties with the defendant’s officers, and they had instructed him to obtain for them a proposition from the ranch owners as well as propositions on other ranches; and that, after Pawkett went around plaintiff, the plaintiff advised the defendant of his connection with the deal and his claim for a broker’s commission in bringing about the trade. That such commission is owing to George Beggs and plaintiff, but Beggs’ duly authorized agent assigned all of Beggs’ interest in the commission to plaintiff.

It appears to us that, under plaintiff’s pleadings, the defendant is not at fault, hut after the facts were adduced, it is clear that neither Beggs nor plaintiff has any claim on defendant for a broker’s fee.

Plaintiff can derive no more right than that enjoyed by Beggs. Plaintiff’s pleadings and his evidence make it certain that plaintiff’s relations with defendant were brought about solely by Beggs employing plaintiff to assist Beggs and his agents in trading defendant’s properties; and plaintiff pleads that these facts were made known to the deféndant. Plaintiff does not contend, nor can he, in equity and good conscience, contend that he was dealing with defendant in any capacity except as a broker working with and through George Beggs in an effort to obtain an exchange of defendant’s properties.

Plaintiff never at any time advised defendant that he alone was engaged in such undertaking and that he was the assignee of all of Beggs’ rights, under whatever contract Beggs had with the defendant. Had he made such disclosure, it is possible that the defendant might not have wanted to deal with the plaintiff, in his individual right.

Plaintiff put McBrayer on the witness stand and this witness testified to his employing plaintiff to assist in the exchange of the properties; “that if he would find something we could trade, that he and I would split the commission from the Cameron end, and whoever he contacted to tell them that they must get their commission from the owner of the land. That was the arrangement I had with Mr. Grimland.”

When questioned about the so called “assignment” to Grimland, this witness said: “I don’t recall whether I ever actually assigned it to him in writing, I did verbally. John came to the office and I told him I was tired of monkeying with the deal and that the office was criticising me for spending so much time on it, and to go ahead, and if he made the deal he could have any commission that our office may be entitled to or might have earned, and to just go right ahead and forget me on the whole matter.” As to any consideration passing, he said: “Well, I don’t know that there was any consideration. I just gave it to him.”

The witness was asked: “Did George Beggs ever authorize you to give away that commission to Mr. Grimland?” To which he answered: “No, other than he just told me to handle the thing to suit myself.”

This witness testified that he knew that any proposition he might make to Cameron & Company, he would have to get some agreement with such company about a commission.

The record shows that neither McBrayer, nor plaintiff Grimland, nor any other person representing or associated with George Beggs, ever submitted to defendant company any proposition covering the Mc-Gregor Ranch.

If plaintiff Grimland stands on what occurred between him and the officers of defendant company, at a time when he was supposed to be associated with George Beggs, in endeavoring to obtain ranch lands for which defendant would trade, and when he did not disclose to such officers that he was acting alone — not in conjunction with Beggs and the agents of Beggs— then he is confronted with the fact that his employment was limited. He was given the following written instructions: “In order that no misunderstanding shall arise, we desire to state that we are not listing these properties with you for sale; but, on the other hand, we are furnishing you this list in order that you may submit to us, for our, consideration, such deals as you may care to present.” (Italics ours.)

It seems clear to us that, under such a contract, neither Grimland nor George Beggs could earn a broker’s commission, until the broker submitted a proposition that was considered by Cameron & Company and a trade finally consummated by reason thereof.

Grimland never submitted any proposition covering the McGregor lands, and the most that can be said of his testimony is that he mentioned such ranch lands to defendant’s officers as a prospective trade and was told to see what kind of proposition he could get from the ranch owners.

The lists mentioned in such letter were not enclosed and some five days later, after the defendant had received a letter from Grimland saying: “You failed to enclose said list and we are waiting for it in order to put it up to Mr. Caldwell” (owner of a different ranch), the defendant answered: “We are enclosing herewith three lists of real estate which we failed to enclose with our letter of October 16th, in order that you may submit to us the proposition for our consideration on the Caldwell ranch. You understand that some of this property might be sold prior to the time that you submit the proposition, because we are not passing up sales.”

It seems significant to us that neither Cameron & Company nor Grimland made any mention of the McGregor Ranch in any one of these three letters.

After Grimland found that Pawkett had “gone around him”, he wrote Cameron & Company, on November 6th, 1935:

“You will recall at the time of my last visit to your office, I submitted to you for your consideration the McGee Ranch (Italics ours), consisting of some forty thousand odd acres of land located in Culberson County and advised you I would get additional information and forward same to you.
“I secured this listing from a Mr. Pau-cett of this city, who had it listed through a Mr. Wilmoth, a broker of Pecos, Texas.
“My understanding, to begin with with Mr. Paucett was that he was to secure his commission if a deal were made from the owner of the ranch taking care of Mr. Wil-moth out of his share of the commission and I was to secure my commission from Wm. Cameron & Company, brokering same with Geo. Beggs. After submitting this ranch to you Mr. Paucett and myself had a controversy over the split of the commission and he advised me that the ranch had been sold to some party in Dallas.
“I received information today that Mr. Paucett and Mr. Wilmoth had visited Waco, submitting this ranch to you and were now in San Angelo inspecting your property, they expecting to make the deal and cutting me out of my share of the commission.
“Knowing you as I do, I am requesting that you advise Mr. Paucett and Mr. Wil-moth of my connection in submitting this property to you and that my share of the commission will be paid in the event of an exchange of the property with you.
“Regarding the Caldwell Ranch, I have been in constant touch with Mr. Caldwell and he has been delayed in coming to Fort Worth due tó the press of business,.but-has ■ advised me that he expects to be here the latter part of this week, at which time we will, come to Waco with him and try .to make a deal on his property. -
“Assuring you of my regret in drawing you and your company into this controversy, and that I will appreciate your 'cooperation with me in the matter, I am, yours very truly.”

If the mistake in the name of- the ranch serves any useful purpose, we would say that calling it the “McGee” ranch would not be sufficient to call the defendant’s attention to the McGregor Ranch, and the details found in the letter telling how and from whom the writer secured the listing, his connection therewith, and the complaint on his part that Paucett (meaning Paw-kett) and Wilmoth were “going around him”, all go to corroborate the further testimony that this letter furnished the first information that Grimland had any connection whatever with Pawkett.

From the record, it appears that Cameron & Company acted in good faith in dealing with Pawkett.. The record affirmatively shows that Cameron & Company gave no exclusive listing to any real estate broker, and that it contracted only to consider definite propositions. The letters between Cameron & Company and Grimland can be construed in no other way than that Cameron & Company would deal with any real estate broker on a “first come, first served” basis, - if a proposition were submitted, considered and a deal made.

But Grimland contends that Cameron & Company’s letter to him, answering, his letter dated November 6th, 1935, shows that Cameron & Company was not “neutral” in its attitude, as between Grim-land and Pawkett.

This contention is predicated upon the language used in such letter, wherein Cameron & Company again called Grimland’s attention to the fact that it had never listed its property with him for sale, and had never authorized anyone to do so; and calling his attention again to the fact that when- he was in Cameron & Company’s office and asked for a list of the properties, he did so in order that he might submit a proposition on the Caldwell ranch; and calling his attention again to the language used by Cameron & Company, in its follow up letter (quoted twice supra), in which it made its position clear and desired to avoid any mistake in connection with its dealings with Grimland, and the letter closes as follows: “In view of your attitude, as expressed in your letter, we will thank you to kindly return to us the lists of property, and we are now advising you that we do not care to f have you submit to us the Caldwell Ranch, or any other property.”

If we correctly analyze the situation presented in the record before us, it is, that Cameron & Company endeavored to make plain to Grimland that he was to obtain and submit to it actual propositions in relation to proposed exchanges of property, which propositions were to be considered by it, and some proposition worked out and accepted before Grimland could claim a commission on any deal made.

Grimland had not submitted any proposition to Cameron & Company which remotely involved the McGregor Ranch. At best he had only mentioned this ranch as a prospective deal to Cameron & Company, and yet, when another broker brought the parties together and caused a proposition to be submitted, Cameron & Company finds Grimland making claim that he is the procuring cause of bringing the parties together.

It was to avoid just such claims and demands that Cameron & Company wrote Grimland, as it did, defining his status and advising him of the basis on which Cameron & Company would deal with him.

Is it small wonder that, under such circumstances, Cameron & Company wrote Grimland as it did and demanded a return of its lists of property in his' hands, and notified .him that it did not care to deal further with him or to consider any proposition he had or might make? We think not!

Cameron & Company was endeavoring to prevent just such a lawsuit as the one before us, namely, a suit based upon the theory that Cameron & Company listed its properties, generally, with a broker and that such broker was the first person to mention, or bring about a meeting of, a• prospective buyer, or trader, with Cameron & Company, and with whom a trade was afterwards made.

The record discloses that Cameron & Company was dealing with several brokers, and had advertised its properties for exchange, and that it held itself out to every such broker as being willing to receive and consider propositions made to it for the exchange of its lands.

Pawkett was the first broker who brought the parties together and secured a proposition for consideration. He alone earned the commission.

If Pawkett “double crossed” Grimland, his cause of action is against Pawkett and not against appellee, Cameron & Company.

The following cases seem to control the case before us: Higdon v. Channell, Tex. Civ.App., 109 S.W.2d 254; Clamp v. Patton, Tex.Civ.App., 5 S.W.2d 584; Lynch v. Elliott, Tex.Civ.App., 114 S.W.2d 1189; Hughey v. Martin, Tex.Civ.App., 15 S.W.2d 656; Walker v. Van Valkenberg, Tex.Civ.App., 291 S.W. 936; Lumsden v. Jones, Tex.Civ.App., 205 S.W. 375.

The judgment is affirmed.