author: BROWN, Justice.

text:
    TEXAS CO., et al. v. TURNER.
    No. 14038.
    Court of Civil Appeals of Texas. Fort Worth.
    March 22, 1940.
    Rehearing Denied April 12, 1940.

      Cantey, Hanger, McMahon, McKnight & Johnson, James C. Wilson, Jr., and Car-lisle Cravens, all of Fort Worth, and John Davenport, of Wichita Falls, for appellants.
    Napier & Napier, of Wichita Falls, for appellee.
   BROWN, Justice.

In the motion for a rehearing, our attention is called to the fact that we overlooked a stipulation that was agreed upon in open court, by counsel for the two litigants, and through such oversight we erroneously made statements that'should not be in the opinion.

We accept responsibility for this error, although the index to the Statement of Facts made no mention of the stipulation and no reference to the record where the stipulation is to be found was made in any brief.

May we respectfully request that all briefs contain references to the record where either testimony, evidence or stipulations may be found? -This will not only materially assist us in reviewing cases but will lessen our chances to fall into error.

Because of our error, we withdraw the original opinion and substitute therefor the following opinion, with full right of the parties litigant to'file, should they or either of them see fit to do so, a second motion for a rehearing.

Opinion.

Appellee Meak Turner brought suit against the Texas Company and one J. J. Hagan, for personal injuries sustained by him, alleged to have been received in a collision between his truck and a car owned by the Texas Company, and driven by one of its employees.

The defendants answered by a general demurrer, a general denial and several special pleas of contributory negligence.

Appellee’s petition is bottomed solely upon the principle of discovered peril.

The cause being tried to a jury, when the taking of testimony and evidence was concluded, the ■ defendants moved for a peremptory instruction, and their motion was denied.

The trial court submitted the cause upon special issues.

The first issue is: “Do you find from a preponderance of the evidence that the driver of the automobile observed the truck as he approached the same, and knew and realized the perilous position of said truck and its occupant, and knew and realized such facts at a time when, by the use of the means at hand, having due regard for his own safety and the safety of his automobile, and the contents thereof, He could have avoided the collision by the exercise of ordinary care?” The jury answered: “He did.”

The defendants objected to the submission of this issue, first on the ground that the evidence does not raise the issue of discovered peril, and second, because the issue is multifarious, and submits the entire case and all of the elements and necessary issues on the question of discovered peril in one question, and the defendants, by a full and complete objection, pointed out to the trial court the several component parts of the principle on which discovered peril is and must be predicated, and, without waiving their objection to such question being submitted, because it is not supported by the evidence, requested that the question of discovered peril be submitted in the necessary dependent issues.

These objections were overruled.

The next issue submitted is a reiteration of a portion of issue No. 1, which the jury was called upon to answer in one answer to said issue No. 1.

This issue No. 2 asked the jury to find whether or not the driver of the automobile “failed to exercise ordinary care at the time referred to in special issue No. 1, to use the means at hand to avoid the collision, having due regard for his own safety, the safety of his automobile and the contents thereof.” The jury answered: “He did.”

To issue No. 3, the jury found that such .failure was the proximate cause of plaintiff’s injuries. To issue No. 4, they found damages in the sum of $15,000, and to issue No. 6, the jury found that the collision was not an unavoidable accident. Objections were made to all issues, but will not be discussed because of the conclusions reached by us.

The defendants moved for judgment notwithstanding the verdict, and such motion was overruled.

The trial court rendered judgment for Turner against the Texas Company and J. J. Hagan, jointly and severally, for $15,000.

Defendants’ motion for a new trial being overruled, they have appealed, and present twenty-three assignments of error, but we deem it necessary to consider only a few controlling points.

The plaintiff pleaded that the car which struck his truck was being driven by the defendant J. J. Hagan, “who was then an employee of the defendant, The Texas Company, and while in the course of his employment as such employee.”

The only evidence that connects either of the defendants with the accident is a stipulation found in the Statement of Facts, as follows: “It is agreed that the car in question was the defendant Texas Company’s car.”

We doubt that this agreement is sufficient to discharge the burden cast upon the plaintiff requiring him to make out a prima facie case.

In Brown v. City Service Co., 245 S.W. 656, 658, Com. of Appeals decision, expressly adopted by the Supreme Court, we find the following language:

“The Court of Civil Appeals held that the burden of proof was upon the plaintiffs to show that the driver of the automobile did the wrong while acting within the scope of his employment, and complaint of that holding is made here.
“The holding of the Court of Civil Appeals on that phase of the case is correct.
“That the driver of the automobile -was. acting within the scope of his employment at the time of the injury was an element of plaintiffs’ cause of action necessary to their recovery. The burden of proof rests on the party affirming a fact in support of his cause. We think the testimony above quoted is sufficient to sustain that burden unless overthrown by defendant’s testimony.”

The distinction between the Brown case, from which we have quoted, and the case at bar, is that there was evidence to show that the driver of the offending car was an employee of the defendant, and evidence tending to show that he was engaged in his master’s business when the accident occurred.

Here we have a stipulation that the car belonged to the defendant, but neither stipulation nor proof that its driver was an employee of the defendant, and none tending to show that the driver was then acting within the' scope of his employment.

There is neither stipulation nor proof tending to show who was the driver, much less any tending to show that it was the employee expressly named as the driver and joined as a party defendant. See National Cash Register Co. v. Rider, Tex.Com.App., 24 S.W.2d 28, reversing Tex.Civ.App., 13 S.W.2d 414, an opinion by the Commission of Appeals, expressly approved by the Supreme Court. See, also, Shrader v. Roberts, Tex.Civ.App., 255 S.W. 469, and Texas jurisprudence, Vol. 5, para. 161, pages 779, 780, and many cases cited under note No. 19.

But this cause was presented solely upon the issue of discovered peril, and we do not believe that this issue was raised.

Taking the testimony of the plaintiff, and it is all of the evidence tending to show how or why the collision took place, he said: that before he attempted to drive his truck across the highway he looked back west and saw an automobile about a mile or a mile and a quarter down the road. He could not tell whether it was moving or standing, at that distance. That when he had driven his truck across the paved portion of the highway and was on the graveled shoulder, “Well, I heard a crash and I felt myself being lifted in the air and I knew that somebody hit the car and it turned over in the air and then it hit the ground. Then it turned again and my head hit the top or something; the top of the car,- and that was about the last thing I remember except I just had a faint remembrance of going over again. And the next thing I knew why I could hear something chopping and I found out later they was chopping the top of the car out and pulled me out, and I was dazed, of course, didn’t know what was going on but I remember some lady she said that she would take me to the hospital.”

This evidence not only does not tend to connect both of the defendants with the accident, but is wholly insufficient to raise the issue of discovered peril, even if the defendants were shown to be parties to the accident.

We discussed the doctrine of discovered peril in Texas Electric Service Co. v. Kinkead, Tex.Civ.App., 84 S.W.2d 567, writ dismissed, and we cited and quoted from our Court of Last Resort.

We are of opinion that the trial court erred in not instructing the jury to find for the defendants.

Although we do not consider it necessary to a decision in the instant suit, we feel that we should discuss the first issue submitted by the trial court, because we hold that it is distinctly multifarious.

Appellee contends that it is not subject to such criticism and cites us to the opinion in the case of Austin v. De George, Tex.Civ.App., 55 S.W.2d 585, writ dismissed. Appellee says that opinion should be followed, rather than our opinion in Shannon et al. v. Horn, 92 S.W.2d 1090.

■The Austin-De George case was decided late in the year 1932,- while the Shannon-Horn case was decided in the Spring of 1936.

Applications for writs of error in ep.ch case were dismissed, and we take this opportunity to discuss these two cases.

In the application for a writ of error in the case of Shannon et al. v. Horn et al., Tex.Civ.App., 92 S.W.2d 1090, we find the applicant has summed up his contentions about as follows:

The holding of the Court of Civil Appeals that the defendants were entitled to have the jury charged generally that the defendant had a right to assume that Horn would obey the “stop” sign at the scene of the accident is contrary to every case on the point. (The cases said to be in conflict were cited and copied from in the application.)

The holding of the Court of Civil Appeals that one of the issues on discovered peril was duplicitous is not only in conflict with the cases cited and discussed, but is also in conflict with the well settled rule that where all the facts are undisputed except one, that the issue is not duplicitous.

Among the cases cited and quoted from as supporting the contention that there is a conflict is Austin v. De George, Tex.Civ.App., 55 S.W.2d 585.

The editor, who prepared the Shannon v. Horn case for publication, has set forth five syllibi, showing the rulings of the Court of Civil Appeals, on which the judgment of reversal and remand is predicated.

“1. Duty imposed by doctrine of discovered peril is invoked by actual discovery of peril, not by mere fact that defendant could or ought to have discovered peril.
“2. In intersectional automobile collision case, special issues submitted on question of discovered peril held not objectionable on ground that they did not confine jury’s inquiry to specific acts or omissions pleaded.
“3. Special issue as to whether defendant motorist discovered truck driver’s perilous situation in time so that he could have avoided intersectional automobile collision by ordinary care held duplicitous and on weight of evidence.
“4. In intersectional automobile collision case, duplicitous special issue on discovered peril held reversible error.
“5. In intersectional automobile • collision case, defendants held entitled to instruction, in connection with special issues on discovered peril, that defendant motorist was not required to anticipate that plaintiffs’ decedent would drive truck into intersection and pass by stop sign, but had right to assume that decedent would stop truck before he reached intersection.”

It is quite obvious that the Court of Civil Appeals reversed and remanded the Shannon-Horn case because the issue touching discovered peril is duplicitous and on the weight of the evidence, and such court further held that the defendant was entitled to an instruction in connection with the issues on discovered peril, that the defendant was not required to anticipate that the driver of the truck would disobey the “stop” sign and drive into the intersection, but had the right to assume that the truck driver would stop.

It was strenuously urged in' the application (which we have studied) that the holding of the Court of Civil Appeals is in direct conflict with the case of Austin v. De George, 55 S.W.2d 585.

An inspection of the opinion in the Austin-De George case shows that the Court of Civil Appeals held that the issue touching discovered peril is not multifarious, but further held that even if it were multifarious that would not require a reversal because the party raising the question had admitted the facts that were incorporated in the issue, and which might render it multifarious.

But all of the holdings in relation to the issue of discovered peril, are rendered un-controlling and are shown to be holdings not necessary to the rendition of the judgment reached by the Court of Civil Appeals, as that court affirmed the judgment rendered for the defendant below because the jury convicted the plaintiff (appellant) of negligence which proximately contributed to the accident.

If we understand fairly well the holdings of the Supreme Court in dismissing the two applications for writs of error, in the cases discussed, that court could well dismiss the application in the Austin-De George case because the judgment of the Court of Civil Appeals was correct, in that the plaintiff below could not recover because of her act of contributory negligence, and the other rulings complained of are immaterial to a decision in that case. But in the Shannon-Horn case, the question of the multifariousness of the discovered peril issue was the principal question which brought about the decision in the Court of Civil Appeals, and if it is in conflict with the holding in the Austin-De George case, even though such holding was not necessary to a determination of the correctness of the judgment of the trial court and that of the Court of Civil Appeals affirming the trial court, it occurs to us that the Supreme Court would have granted a writ and would have approved either the holding of the Waco Court of Civil Appeals or the holding of this court.

We pretermit discussing other propositions raised.

The judgment of the trial court is reversed and judgment is here rendered for appellants.


source: Caselaw Access Project

author: STOKES, Justice.

license: Public Domain

text:
    HEMSELL et al. v. SUMMERS et al.
    No. 5134.
    Court of Civil Appeals of Texas. Amarillo.
    March 25, 1940.

      James W. Witherspoon, of Hereford, J. W. Hassell, of Dallas, and Únderwood, Johnson, Dooley & Wilson, of Amarillo, for appellants.
    Moss & Young, of Tulsa, Old., and Sanders & Scott, of Amarillo, for appellees.
   STOKES, Justice.

Appellee, Florence O. Summers, filed this suit against appellants, Clennon C. Hemsell and Columbian Fuel Corporation, on behalf of herself, her three minor children, and Laura L. Summers. She alleged that she was the surviving wife and her children were the surviving children and Laura L. Summers was the surviving mother of J. W. Summers, deceased; that the death of J. W. Summers was occasioned by the negligence of appellant, Clennon C. Hem-sell, and that the Columbian Fuel Corporation was also liable therefor by virtue of the fact that Hemsell was its employee and that the death of J. W. Summers resulted from a collision between an automobile being operated by Summers and another automobile being operated by Hemsell, who, it is alleged, was at the time engaged in the performance of the duties devolving upon him as an employee of the Columbian Fuel Corporation. The record shows that on the 9th of October, 1937, at about 11:30 o’clock P. M., J. W. Summers was driving his automobile from his home at Dumas to the place where he was working in the oil field in Moore County. Clennon C. Hemsell was an employee in the geological department of appellant, Columbian Fuel Corporation, in connection with oil producing properties owned by it in Texas, New Mexico and Kansas. He was returning from the company’s property in Kansas where he had been some few days and the two met at the point indicated when a collision occurred between their automobiles which resulted in the death of J. W. Summers.

The case was submitted to a jury upon sixty special issues, and upon the verdict returned by the jury in answer thereto, judgment was rendered in favor of -appel-lees in the total sum of $30,890, apportioned between them by the jury in response to appropriate special issues. Appellants filed a motion for a new trial and the same being overruled they excepted, gave notice of appeal, and the record is now before us for review.

The briefs present forty-three assignments of error and fifteen propositions of law' for -our consideration, the principal contentions being based upon the charges and instructions submitted by the court to the jury in connection with the special issues. Under special issue No. 54 the court asked the jury to find what sum of money, if paid now to Florence O. Summers, would reasonably compensate her for the actual damages which she sustained, if any, by reason of the death of J. W. Summers. In connection with this special issue the court charged the jury that, in arriving at the amount of actual damages, they may consider only the following items: (1) Necessary and reasonable funeral expenses paid by Florence O. Summers for her husband’s funeral. (2) The amount of money that would have been used by the deceased, J. W. Summers, to support and care for the plaintiff, Florence O. Summers, for a period of 34½ years, in the manner to which she was accustomed and would expect to be cared for. This last charge or instruction was excepted to by appellants upon a number of grounds and, their exceptions being overruled, they have brought the exceptions forward in the record and it constitutes the first contention in their brief. The principal objections made to the charge were that it was on the weight of the evidence and assumed that the deceased husband would have lived 34½ years; that he would have used a certain amount of money to support and care for appellee, and that it deprived the jury of their proper and lawful discretion by giving to them a fixed mathematical formula by which they should be controlled in arriving at an answer to the special issue.

At about the close of the testimony counsel, in a conversation between them in open court, made a stipulation concerning the introduction of the American Experience Table of Mortality compiled by insurance companies. The stipulation was the result of a rather loose and indefinite conversation held between counsel in open court, but we think the effect of it was that counsel for appellants agreed that the mortality table would show that the deceased, J. W. Summers, had a life expectancy as alleged in appellees’ petition and that the American Experience Table of Mortality, not being immediately available, should be considered in evidence without the details of its formal introduction. Other than testimony concerning the manner of life, employment, habits and customs of the deceased, this is all of the evidence shown by the record concerning his life expectancy. The rule is well established in this and most other jurisdictions that, in the trial of a case of this kind, in determining life expectancy, the jury is not bound by the general averages in life insurance tables. Such tables are, in fact, of little value in determining the life expectancy of any particular person. They are estimates from the general average of the lives of many people and are perhaps of great value to life insurance companies engaged in insuring the lives of men and women, but they are of little service to a jury in determining the length of the lifetime of any particular person whose life expectancy becomes a material question. Our statute, Art. 4677, R.C.S., 1925, does not attempt to fix the damages recoverable in suits of this character, but leaves it to the jury to assess such damages as its members think proportionate to the injury resulting from death. Many such cases have been decided by our courts, however, and the rule is well established by the decisions that the damages which may be recovered under the statute are such pecuniary benefits as the plaintiff had a reasonable expectation of receiving from the deceased had he lived. City of Galveston v. Barbour, 62 Tex. 172, 50 Am.Rep. 519; Hines v. Kelley, Tex.Com.App., 252 S.W. 1033; Ward v. Cathey, Tex.Civ.App., 210 S.W. 289; Texas-Mexican R. Co. v. Higgins, 44 Tex.Civ.App. 523, 99 S.W. 200; Galf C. & S. F. R. Co. v. Compton, 75 Tex. 667, 13 S.W. 667.

The effect of the charge given by the court was to take from the jury the prerogative of deciding the fact question of life expectancy of J. W. Summers, deceased. It, in effect, told the jury to fix the amount of money which he would have contributed to his wife during a period of 34½ years, if he had not been killed in the collision. The question of life expectancy of the deceased husband was not only a question of fact, but a very important one. Under our ’system it was unquestionably one that should have been left to the jury. In the case of Texas-Mexican R. Co. v. Higgins, supra, the court said [44 Tex.Civ.App. 523, 99 S.W. 203] : “Hence, while mortuary tables may be taken as evidence of how long a man may live, the question in every case where one has been deprived of his life by the actionable negligence of another is left for the jury to determine from the evidence before it and the observation and experience of its members.” This holding is in keeping with the rule that has consistently been adhered to by the courts of this state through practically all of its history.

The charge was further objectionable because, in effect, it instructed the jury to fix the amount which the deceased husband would have contributed to the support and care of appellee “in the manner she was accustomed to and would expect to be cared for.” The question with which the law is concerned in such cases and which should be submitted to the jury is the pecuniary benefits the surviving wife had a reasonable expectation of receiving during the time which her deceased husband would have lived but for his untimely death in the accident. Authorities supra. The amount which it may have taken to support and care for Mrs. Summers in the manner in which she would expect to be cared for might be entirely different from the amount which she had a reasonable expectation that her husband would be able to contribute and would have contributed to that purpose. We think the charge given by the court in connection with special issue No. 54 was subject to all of the criticisms and objections made to it by appellants and that, in submitting it to the jury, the court committed reversible error.

In special issue No. 55 the court requested' the jury to find the amount of money, if paid now in cash to Laura L. Summers, mother of the deceased, that would reasonably compensate her for the actual damages she sustained, if any, by reason of the death of J. W. Summers. In connection with this special issue the jury were charged that in arriving at the actual damages, if any, they may consider the amount of money the deceased son would have paid to h'is mother for her support and maintenance during the remainder of her natural life of approximately twenty years. This charge was erroneous in assuming that the surviving mother would have lived approximately twenty years. It is true the table of mortality used in the case gave her a life expectancy of 20.2 years, but the jury were entitled to consider other things beside the mortality table. The general health, appearance, customs and habits of the surviving mother were proper elements to be considered by the jury and the court should not have taken from them the prerogative, of deciding a question of this character which is purely one of fact. Moreover, the jury were entitled to take into consideration the fact that the money, if any, was. to be paid immediately instead of being, contributed in small amounts over a period of years. This was necessary in order to arrive at the present value of-the benefits to which she was entitled. It is not unreasonable to suppose that the jury would have considered - that the payment of such an amount in a lump sum justified a reduction from what its total amount would have been at the end of a long period of time. Appellees contend that the appellants ad-, mitted that the mother’s life expectancy was 20.2 years and,- there being no other evidence in the record, the court did not err in assuming it to be such. We cannot accede to this contention. In the first place, we do not interpret the agreement to be an absolute agreement that Mrs. Summers would live 20.2 years. As we interpret the stipulation, it was only an agreement that the American Experience Table of Mortality may be introduced in evidence without the formal, details incident to procuring it and actually presenting it to the jury. In the second place, as we have already stated, the table of mortality is not conclusive, even though there was no other evidence in the record concerning the probable length of Mrs. Summers’ life. Such matters, under our system, are left largely to the judgment of the jurors themselves and, when a jury is assembled to try cases of this nature, the court should never take from them the prerogative of determining such issues.

In special issue No. 56 the court asked the jury what sum of money, if paid now in cash, would reasonably compensate James Summers, the minor son, for the actual damages he sustained by reason of the death of his father.- In connection with this special issue the court instructed the jury, among other things, that they may take into consideration the loss of love and care and fatherly advice. In this we think the court erred. It was held by our Supreme Court in International & G. N. R. Co. v. McVey, 99 Tex. 28, 87 S.W. 328, 329, that the damages recoverable in such cases are such pecuniary benefits as the plaintiff had a reasonable expectation of receiving from the deceased had he lived. The court there said; “By pecuniary benefits is meant not only money, but everything that can be valued in money, and includes, in case of a minor child who is suing for the death of a parent, the reasonable value of such nurture, care, and education as the child would have received from the deceased parent had such parent lived. But neither sorrow for the death of the deceased relative * * * nor the loss of his or her society * * * are* recoverable in such cases. [Houston City St. R. Co. v. Sciacca, 80 Tex. 350, 16 S.W. 31; Taylor, B. & H. Ry. Co. v. Warner, 84 Tex. 122, 19 S.W. 449, 20 S.W. 823.]” Although the statute does not make such distinction as is indicated by the above quotation, our courts have consistently held that no recovery can be had for the loss of parental society, companionship and other like elements. The reason for the holding is that such elements of loss are incapable of pecuniary estimation. The distinction between the loss of parental care, nurture and education on the one hand, and the loss of society, companionship and other like elements on the other hand, is apparent. The former is capable of being estimated in monetary value. It is a matter of common knowledge that it costs money to rear, nurture and educate children. The amount varies according to the ambition, ability and earning capacity of the parents and the station in life maintained by them. The amount of money devoted to the nurture, care and education of children by those occupying the various positions in society is capable of fairly accurate calculation. Not so, however, with reference to emotional elements, such as the society and companionship of a parent. These are incapable of any sort of monetary evaluation. The same is likewise true in regard to the natural love and affection which a parent bears toward his child or the child toward the parent. It proceeds from the emotions and for that reason must be classed in the same category as society and companionship. We agree with appellants concerning the charge of the court in this connection and sustain their sixth proposition.

Under the 57th special issue the court requested the jury to find what sum of money, if paid now in cash to Patricia Summers, a minor daughter of the deceased, would reasonably compensate her for the actual damages she sustained, if any, by reason of the death of her father. In connection with this special issue the court charged the jury that in arriving at the amount of actual damages, if any, they may take into consideration the amount that would have been contributed to the education of Patricia Summers through some higher school of learning. The only testimony in the record concerning the matter of educating the children was given by Mrs. Summers who testified that her husband was devoted to the children; that she and her husband had discussed the matter of educating them and that he was quite anxious for them to finish high school and have college training. Even if it had been proper for the court to suggest to the jury specifically that they may take into consideration the item of the expense of a college education, this testimony would not have furnished a sufficient basis for it. What we have said in regard to other similar items mentioned by the court in his charge to the jury is sufficient to show, we think, that in giving this charge the court also committed error. The charge was on the weight of the evidence and exceeded the prerogative of the court in designating to the jury specific items which fell entirely within the category of fact questions. The jury should have been permitted to decide these matters from the evidence before them without an assumption by the court that such expenses would have been incurred.

The next contention made by appellants likewise has reference to the charge of the court. Appellants excepted to the charge because it failed expressly to exclude any consideration by the jury of such elements as sorrow and grief of the surviving children on account of the death of their father. As we have stated, the only elements recoverable in cases of this nature are those of a pecuniary nature. It is well settled that no recovery can be had for sorrow and grief over the loss of a loved one, pungent and distressing although these sentiments may be. In- the absence of some instructions to the jury of a nature which excludes a consideration by it of such elements, it is only natural that they should regard them as being highly proper as elements of recovery. It was held in International & G. N. R. Co. v. McVey, supra, that the jury should always be instructed concerning such matters and we think the court should have so instructed the jury in this case. Appellees contend in this connection that the exception concerning the failure of the court so to charge the jury was too general; that no specific instruction having been tendered by appellants with the request that it be given to the jury, the refusal of the court to give it was not reversible error. Without passing upon the question of whether or not it was necessary that a special charge be prepared and presented ⅛0 the court in order to preserve the exception, we will observe that it is the better practice to do so. It can easily be done in a definition or explanation of the term 'support and maintenance’ and thus avoid the rule which forbids the giving of a general charge in a case submitted upon special issues. Thurmond v. Chandler, 125 Tex. 34, 81 S.W.2d 489. Appellants presented and requested the court to give to the jury a number of special issues upon the question of sole proximate cause, one of which was as follows: “Do you find from a preponderance of the evidence that the lights on the car that was travelling ahead of the Summers car were not the sole proximate cause of the collision in question?” The evidence showed there was a car travelling in front of the Summers car. Hemsell testified it was only a short distance in front, while the witness, Sasser, who was in the car with Summers when the accident occurred, testified that it was some distance down the road ahead of the Summers car. The only manner in which the front car could have been the sole proximate cause of the collision and the death of Summers was that Hemsell became blinded by the brightness of its lights and that seems to be the basis upon which the special issue was requested. Hemsell testified that, although the lights on the front car were bright and blinded him, yet he remained on the right hand side of the highway. If that is true, then, according to his testimony, the lights on the front car could not have been the sole cause of the accident. The only other witness who testified concerning the matter was Sasser and, according to his testimony, the front car was so far ahead of the Summers car that it could not have been responsible for the accident. There was, therefore, no basis for the submission of special issue No. 11 requested by appellants.

The other special issues requested by appellants on the question of sole proximate cause referred to the acts and conduct of the deceased, J. W. Summers, or the manner in which his car was being operated. The court submitted special issues as to each of them upon the question of proximate cause of the injury and it is held by our courts that ‘proximate cause’ being broader and more comprehensive than sole cause and more proof and a greater burden of evidence being required to prove that an act of negligence was the sole cause than merely to show that it was a proximate cause, it is not error to refuse to submit the question of sole proximate cause as to such matters where the same question is submitted as to the proximate cause of the injury. Carter v. Ferris, Tex.Civ.App., 93 S.W.2d 504. We do not think the record now before us reveals any condition which requiréd of the court a submission of the question of sole proximate cause.

The next contention made by appellants is without merit and we discuss it only in view of another trial. It is to the effect that the court erred in refusing to submit a requested special issue presented by appellants upon the question of the intervention of a new and independent cause or agency. We do not think that question is presented by the record or the testimony. The rule is that new and independent cause cannot be ascribed to the acts or omissions of the parties to a personal injury suit or to those involved in the catastrophe for whose injury or death the suit is maintained. The requested special issue referred to acts and omissions of J. W. Summers who was killed in the collision and to the manner in which his car. was being operated. Summers being involved in the catastrophe, and his injury and death being the basis of the cause of action, his acts or omissions could not constitute new and independent agency. Magnolia Petroleum Co. v. Owen, Tex.Civ.App., 101 S.W.2d 354, and authorities there cited.

The only issue remaining which we deem it necessary to discuss has reference to the argument of counsel for appellees in discussing the case before the jury. The effect of the remarks objected to was to criticise counsel for appellants for introducing the petition and judgment in a divorce suit which had been filed by Florence O. Summers a year or two after the marriage of herself and her deceased husband. We think the argument was highly improper. It was not an explanation of any testimony nor a criticism of the demeanor of any witness. It concerned the act of counsel for appellants in introducing the evidence. The record in the divorce case was admissible and was admitted without objection. Counsel are privileged to discuss the conduct of an adversary and to denounce acts which have been shown by the evidence or which are fairly deducible therefrom but neither litigants nor their attorneys should be denounced or criticised for introducing any sort of admissible evidence. That is their right. In doing so counsel is only performing his duty to his client and the court. Objection was made to the argument for the reason that it was improper and inflammatory and in response to the objection counsel for appellee made the statement that he intended for it to burn. In response to the objection the court remarked that the objection would be overruled; that it was a matter for the jury to determine. Obviously this was error. The improper remarks having been made by counsel, the court should have instructed the jury not to consider them for any purpose.

A number of other assignments of error are presented and insisted upon by appellants but what we have said sufficiently indicates that, in our opinion, the judgment should not be permitted to stand. For the errors pointed out, the judgment of the court below will be reversed and the cause remanded.


author: BOND, Chief Justice.

text:
    AMERICAN NAT. INS. CO. v. TROSS.
    No. 12845.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 24, 1940.
    Rehearing Denied March 23, 1940.
    W. B. Handley, of Dallas, for appellant.
    Barnes & McElroy, of Terrell, for ap-pellee.
   BOND, Chief Justice.

This suit involves a $1,000 insurance policy, issued by the home office of the American National Insurance Company at Galveston, Texas, upon the life of Francis T. Tross, and payable to his wife, Emma K. Tross, as beneficiary. This policy, dated June 3, 1937, was issued in accordance with the application of the insured, with premiums payable quarterly, on the first day of June, September, December and March; the anniversary date being June 1 of each year. The policy was forwarded to the Company’s agent, Mr. McKay, at Dallas, Texas, for delivery to the insured on payment' of the initial premium. One of the numerous provisions of the policy reads: “15. Semi-Annual or Quarterly Premiums. Provided the anniversary date is not changed as a premium due date, the mode of premium payment may be changed from annual to semi-annual or quarterly installments or vice-versa, in accordance with the premium rates endorsed on the cover page of this policy.” On the cover page, is endorsed : “Annual Rate $26.58 Semi-Annual Rate $13.82 Quarterly Rate $7.04”.

The policy sued on was delivered to the insured on June 15, 1937, at which time, he expressed a desire to avail himself of the privilege granted (as quoted above) of paying the initial annual premium of $26.-58, instead of the quarterly rate of $7.04. The agent, McKay, acceded to this request and allowed the insured to pay the premium at the annual rate prescribed on the cover page of the policy, without change in the anniversary date thereof. The agent, who did not then possess an official 'receipt for payment of an annual premium, evidenced the transaction by changing the words and figures of a quarterly receipt, which accompanied the policy, to show payment of an annual premium. Under such circumstances, the policy was delivered by the agent to the insured and was retained by him until his death on March 5th, 1938.

The case was submitted to the jury on two special issues, and none other was requested. The jury found that the annual premium of $26.58 was actually paid to the agent on delivery of the insurance policy in question; and that $350 was a reasonable attorney’s fee to compensate plaintiff’s attorney for services rendered. Accordingly, judgment was rendered for plaintiff for the face value of the policy, with 12% statutory penalty, and $350 attorney’s fee; hence this appeal.

Appellant’s assignments of error pivot upon authority of the Company’s delivering agent to accept the initial premium on the policy at the annual rate of $26.58, instead of the quarterly rate of $7.04; and to change the words and figures of the quarterly receipt, which accompanied the policy from the home office, to a receipt evidencing payment of the first annual premium. Appellant bases its contentions on the limitations of the agent’s authority, prescribed by Art. 4732, R.S., reading: “No policy of life insurance shall be issued or delivered in this State, or be issued by a life insurance company organized under the laws of this State, unless the same shall contain provisions substantially as follows: 1. That all premiums shall be payable in advance either at the home office of the company or to an agent of the company upon delivery of a receipt signed by one or more of the officers who are designated in the policy”; and on Sec. 16 of the policy, reading: “16. Premiums, Where Payable. All premiums are due and payable in advance at the Home Office of the Company, but may be paid to an authorized agent of the Company in exchange for a receipt duly signed by the President or a Secretary of the Company and countersigned by the agent named therein. * * * ”

The provisions of the statute and limitations on the agent’s authority to collect premiums are for the protection of both insured and insurer, to prevent imposition by an unauthorized agent in collecting premiums on a completed insurance contract. To make such provisions and limitations of binding force, there necessarily must be a valid subsisting contract embodying such provisions ánd limitations.

It is evident, by force of the quoted statute and terms of the policy, that the insured’s acceptance of the policy, which evidenced the agent’s limitation to collect premiums upon delivery of a receipt signed by one or more of the officers designated in the policy, made such conditions binding upon himself, and visited notice of the agent’s limitations. “A party, after he has accepted a policy [italicized for emphasis] giving powers to an agent to collect renewal premiums only upon a receipt furnishe'd and signed by the general officers and countersigned by the agent, written in the face of the policy, has notice that the agent’s power in collecting is limited”. Kansas City Life Ins. Co. v. Elmore, Tex.Civ.App., 226 S.W. 709, 713. However, to bind either party, a consummated agreement must have been entered into and the terms thereby agreed upon by the parties. The policy in suit, by express provision, gave the insured a right to pay the initial premium at either the quarterly, semi-annual or annual rate. The agent, McKay, was entrusted with the policy for delivery to the insured, with authority to collect the premium in accordance with the terms of the policy, thus effectuating a complete agreement between the insured .and the insurer on terms expressed in the policy. The insured elected to pay an initial annual premium of $26.58, instead of a quarterly premium of $7.04, which, under the terms of the policy, he had an absolute right to do. Thus, relying upon the agent’s authority to collect the initial premium, he paid the annual premium as found by the jury, which, we think, is amply supported by evidence. It can safely be said that, if the Insurance Company entrusted the policy to its agent for delivery to the insured, and the policy allowed the insured to pay the first premium quarterly, semiannually, or annually, and the insured, relying thereon, paid the premium to the agent, the insurer cannot be heard to say that such agent had no authority to collect. As the policy was delivered to the insured on payment of the annual premium, it is immaterial whether the agent delivered to insured an official receipt, other than to evidence payment of such premium. The conditions of the policy, on delivery, became the obligations of the parties during the life of the policy, irrespective of the delivery of an official receipt. The insurer could not escape liability, even though no receipt was ever issued, if proof is made that the initial premium was actually paid, thus bringing the contract into being. Because, forsooth, the agent faile'd to account to his principal for the premium paid (as disclosed by the evidence), or changed a receipt which accompanied the policy for the initial premium, the obligation of the insurer is not affected. The payment of the initial annual premium carried the policy over to the next anniversary date. Provisions. in life insurance policies, limiting the agent’s authority to collect premiums when possessed with official receipts signed by designated officials of the Company, ordinarily apply only to the collection of renewal premiums; such cannot apply to agents having authority to deliver policies and collect the initial premiums provided therein, to carry the policies into effect.

In Lauze v. New York Life Ins. Co., 74 N.H. 334, 68 A. 31, an insured, at the time of delivery of the policy, paid the soliciting agent the first premium (which, it was admitted, he had a right to receive), and the policy involved there, as in the instant case, provided that the premiums must be paid at the home office, unless otherwise provided, and, in any case, in exchange for .an official receipt signed by certain designated officials. It was held that the payment of the second premium to the soliciting agent, without the production and delivery of the receipt described in the policy, was not such a payment as would bind the insurer.' So, in the case at bar, the delivering agent had power to collect the initial premium; the policy provides that the initial premium may be paid quarterly, semi-annually, or annually, leaving it to the exclusive discretion of the insured as to the mode of such payment. Thus, we think, the insured, having the right to exercise such privilege, and the agent having been clothed with authority to consummate the transaction by delivery of the policy on payment of the premiums therein provided, the Insurance Company cannot escape liability because of the agent’s lack of authority to improvise a receipt by changing words and figures of an official receipt showing the true transaction.

In the light of the record, our final conclusion is, that the insured having been granted the right to pay the first premium either quarterly, semi-annually, or annually, under the express terms of the policy, and the first annual premium having been paid, as found by the jury, and the policy delivered, the policy became an enforceable obligation on the death of the insured; accordingly, appellant’s assignments are overruled, and-the judgment of the court below is affirmed.

Affirmed.


author: GRAVES, Justice.

text:
    BLOCK v. TARRANT WHOLESALE DRUG CO.
    No. 10993.
    Court of Civil Appeals of Texas. Galveston.
    March 21, 1940.

      Morris Pepper and Charles E. Heidings--felder, Jr., both of Houston, for appellant.
    L. Edward Mooney, of Houston, for ap-pellee.
   GRAVES, Justice.

This appeal is from a judgment of the court below, sitting without a jury, denying the appellant any recovery against the appellee, upon a sworn account for a claimed balance of $695.60, which he, as the assignee of Ambrose & Company, had declared upon as being due by the Drug Company for merchandise it was alleged to have purchased during the months of November and December, 1936, from Am-brose & Company.

Among other answering pleas, the appel-lee filed in writing a sworn denial of the account, as well as of the justness thereof, in whole or in part.

The only evidence offered by. appellant in support of his cause of action was the deposition of Jay L. Ambrose, which had been taken in Denver, Colorado, pursuant to the Texas statute.

The appellant offered such witness’ answers to all direct interrogatories, which the court admitted, except inquiries 8 and 13, these being excluded on objection that the witness had not been qualified to testify as to certain values; whereupon the appellee introduced his answers to the cross-interrogatories, in which the witness admitted unequivocally that all his testimony so given on direct examination in reference to the accounts involved in the controversy had been made by him from his books and records — none of them from his own knowledge or memory.

.Thereupon, the court, on motion of the appellee, struck out all such testimony of the witness, on the holding that the same was secondary evidence, that appellant had not complied ufith the “shop-book” rule in proving "up the books of account involved; appéllant then, at that stage, after he had proceeded to trial and had so introduced his testimony, asked leave of the court to withdraw his announcement of ready, which was denied, whereupon he rested his case, without offering any further testimony ; this action was followed by the court’s entering the judgment indicated in favor of appellee.

Under the disposition determined upon for this appeal after a careful consideration thereof, no written opinion is required of this court; but in deference to the zeal and assistance of counsel for both sides in having painstakingly briefed it for consideration here, this brief statement of the grounds upon which an affirmance will be entered is made:

(1) The deposition as such was not stricken out, as appellant urges, but merely the answers of the witness Ambrose, which were shown to have become inadmissible, by reason of his admission on cross-examination that he had testified wholly from his books and in no instance from his memory; the law in such an instance being that, as against the sworn dep.\al in writing of an account, questioning its justness in whole or in part, its prima facie character of proof is destroyed, and the cause of action thereby sought to be presented must'be proven as in ordinary cases; R.S. Article 3736; Walker-Smith Co. v. Watson, Tex.Civ.App., 271 S.W. 224; Gustafson v. Zunker, Tex.Civ.App., 257 S.W. 1114; Gulf Refining Co. v. Nelson, Tex.Civ.App., 227 S.W. 549; Continental Lumber & Tie Co. v. Miller, Tex.Civ.App., 145 S.W. 735.

(2) There was no sufficient showing made to admit secondary evidence of the contents of Ambrose & Company’s books of account, in that appellant did not explain his failure to produce the original books, either by showing that they had been lost or destroyed, or that they were beyond the court’s jurisdiction, or even that — by the exercise of ordinary diligence — they could not have been produced in court; 17 Tex.Jur., p. 486, § 189; Locke v. Wallingford, Tex.Civ.App., 265 S.W. 1086; Clay v. Richardson, Tex.Civ.App., 9 S.W.2d 413, 38 S.W.2d 849.

(3) Neither was it shown that, the secondary evidence of the witness Ambrose was from books of Ambrose & Company that were so kept as to render the books themselves admissible; nor that the entries tendered as coming therefrom had been made in such books of the company in the regular course of its business at about the date of the transactions here involved, or that the entries were such as to indicate what the charge was for, or that the entries offered had been made by one duly authorized; 17 Tex.Jur., p. 506, § 201; Locke v. Wallingford, Tex.Civ.App., 265 S.W. 1086; Caldwell v. McGarvey, Tex.Civ.App., 285 S.W. 859; Stark v. Burkitt, 103 Tex. 437, 129 S.W. 343; Kimball-Mathews v. Nagel, Tex.Civ.App., 235 S.W. 318.

(4) It having undisputedly appeared that all the stricken testimony of the witness Ambrose had been taken from his books, and none from his own knowledge or memory of the transaction, it was thereby rendered incompetent, hence was properly discarded; City v. Crooker, Tex.Civ.App., 252 S.W. 341; Kimball-Mathews v. Nagel, Tex.Civ.App., 235 S.W. 318; Marshall & E. T. R. Co. v. Petty, Tex.Civ.App., 145 S.W. 1195.

(5) Finally, it being, under our procedure, within the sound discretion of the trial court as to whether it will grant or refuse a litigant leave to withdraw his announcement of ready after he has gone into the trial and has produced the testimony upon which he relies, a refusal of the right of withdrawal in this cause was not error; because, this appellant failed to ask such leave until after the court had indicated that its decision would be adverse to him, and he did not then show either surprise by such announcement of the court, or whether or not he would be able to obtain other competent evidence to support his cause, or whether he would suffer actual injustice or harm by going on with' the trial; Hamilton v. Bell, 37 Tex.Civ.App. 456, 84 S.W. 289; Mynatt v. Howard Tex.Civ.App., 273 S.W. 276; Yeakley v. Gaston, 50 Tex.Civ.App. 405, 111 S.W. 768; Day v. Anderson, Tex.Civ.App., 62 S.W.2d 201; Cross v. Texas Military College, Tex.Civ.App., 65 S.W.2d 794; Texas Co. v. Ramsower, Tex.Com.App., 7 S.W.2d 872; Zurich General Accident & Liability Ins. Co. v. Wood, Tex.Civ.App., 10 S.W.2d 760; City v. Rosen, Tex.Civ.App., 203 S.W. 84; Georgia Casualty Co. v. Campbell, Tex.Civ.App., 266 S.W. 854; Aniol v. Aniol, Tex.Civ.App., 62 S.W.2d 668.

An affirmance will be entered.

Affirmed.


author: LOONEY, Justice.

text:
    DALLAS JOINT STOCK LAND BANK v. NEWTON.
    No. 12850.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 24, 1940.
    Rehearing Denied March 23, 1940.
    Lawther, Cramer, Perry & Johnson, of Dallas, for appellant.
    Bond, Crofts & Bond, of Terrell, and Fred T. Porter, of Kaufman, for appellee.
   LOONEY, Justice.

This is a boundary suit. In a formal action of trespass to try title, appellee, W. A. Newton, sued the Dallas Joint Stock Land Bank of Dallas, to recover four acres of land located in Kaufman County. Appellant answered by general denial and plea of not guilty. Appellee contended that, the land in controversy was part of the A. Nail Survey; appellant contended that it was either a part of the Martha Music Survey, or part of a vacant strip between the Nail and Music Surveys. The jury having found that the land was a part of the Nail Survey, appellee recovered.

The finding of the jury, in our opinion, was fully authorized by evidence. The two surveys are parts of what is known as the “King Block” of surveys in Kaufman County; were patented by the Republic of Texas in 1845, the Music, on April 30, and the Nail, on July 11. The Land Office map shows that the surveys aré parallelograms, having two corners and a boundary line in common. One of the corners has been recognized for forty or fifty years, and is marked by a bois d’arc stake. A straight line, run by course and distance, from this recognized corner to the other corner, forms the common boundary line of the two surveys, and, not only forbids the idea of a vacancy, but shows that, the land in controversy is in the Nail Survey. The Land Office map, presumably compiled from the original filed notes returned to, the General Land Office, fails to reveal a vacancy; besides, the field notes of the patents to the' surveys call, for common bearing and witness trees. In view of these facts, we do not think any verdict other than that which was rendered would have been authorized.

Appellant also c’omplains of the action of the court in overruling the motion to withdraw its announcement, strike from the record the report and maps of Frank R. Lewis, surveyor, continue the case until next term, and appoint a new suveyor to locate the lines and corners -in controversy, etc. This motion was made during the trial of the case, and after appellee had introduced evidence, and rested.

Bearing upon this question, the record discloses that on December 7, 1937, appellant filed a motion for the appointment of a surveyor, and, although the record falls to disclose any action by the court on the motion, on March 30, 1938, Frank R. Lewis filed what purports to be his report as surveyor. Although the case was not tried until December, 1938, over eight months after the surveyor’s report was filed, it was not objected to by either party, and no part of the report was offered in evidence, or relied upon, except that, appellant put in evidence the attached plats and -maps. Stripped of all confusing surplusage, -appellant’s motion was for a continuance and the appointment of another surveyor.

We do not think the court abused its discretion in overruling this motion. It came entirely too late. Besides, in view of the record as heretofore disclosed, we think it altogether unreasonable to assume that, a correct survey of the Nail and Music would reveal a vacancy between them, or show that, the four-acre tract in controversy was not in the Nail Survey. The judgment of the court below, in our opinion, should be and is hereby affirmed.

Affirmed.


text:
    DENTON v. CARRELL et al.
    No. 12831.
    Court of Civil Appeals of Texas. Dallas.
    March 2, 1940.
    Rehearing Denied March 30, 1940.
    Shelby S. Cox, of Dallas, and Grisham & Grisham, of Tyler, .for appellant.
    Lawther, Cramer, Perry & Johnson, of Dallas, for appellees.
   LOONEY, Justice.

Elbert I. Denton sued Dr. W. B. ■ Carrell, Dr. Sim Driver and Dr. P. M. Girard (practicing, physicians), as partners, operating in Dallas under the style of Carrell-Driver-Girard Clinic, to recover damages for alleged malpractice. The court sustained a demurrer to appellant’s petition on the ground that it appeared his cause of action was barred by the two years’ statute of limitation, and dismissed the suit; this appeal ensued.

Appellant alleged, m substance, that, having sustained a spinal injury in the month of December, 1930, resulting in partial paralysis, with the hope of obtaining relief, he arranged with defendants for a surgical operation, which was performed by Dr. Carrell on November 24, 1931. being an incision over plaintiff’s spine, aboul) ten inches in length, beginning about 7ouJ inches below the center line between his shoulder blades, and extending downward;] that, in closing the wound, the operating ^surgeon negligently left and permitted to remain therein, a quantity of gauze or spongef)and that, within a few days after the operation, appellant was discharged from the hospital, with the gauze or sponge sewed up in the wound; that he was without knowledge of such fact and without] means of ascertaining the facts with refer-' ence thereto; that the imprisoned foreign substance caused infection, inflammation, boils and sores, and, especially from February, 1935, to November 17, 1935, appel-j lant suffered greatly from sores and boila that broke out on his body, and, particularly, at a point about three inches above the lower point of the wound, a large angry, stubborn sore or boil appeared that, at intervals, apparently healed, but would return, become inflamed and discharge pus; ■alleging in detail his suffering, concluding, as follows: that, “On the 17th day of November, 1935, and in the night time, plaintiff was sick, almost unto death by reason of the condition hereinabove described, and being attended by his mother on said occasion in her effort to cleanse and treat said wound, there appeared in an •opening of said boil or sore being at a point in said wound or incision what appeared to his mother to be the core of a 'boil; that after working with same for a ■time, she discovered said foreign substance .and pulled from said sore the gauze on ■sponge which had been left therein by thei •defendant at the time of closing said wound •during and after said operation, and the, presence of which was wholly unknown to the plaintiff, as aforesaid,- until it was so removed by his said mother.”; alleging further that, after the removal of the foreign substance, his body threw off the •poison and infection and his general health improved, etc.

That appellant alleged a cause •of action, there can be no doubt, in view of the authorities (sée 33 T.J. pp. 345-346, ■sec. 61, and authorities there cited), and that the cause of action arose on the date and at the time the alleged negligent acts were committed, there can be ho doubt. As stated in Steele v. Glenn, Tex.Civ.App., 57 S.W.2d 908, 910, “ ‘The general rule is that a right of action accrues whenever facts come into existence which give rise to a cause of action.’ * * * A cause of action based upon a consummated legal wrong! accrues immediately, regardless of whetherl or not the injured party has knowledge of' the wrong.”

The alleged cause of action having arisen on November 24, 1931, the date of the operation, and the suit not having been filed until December 15, 1936, more than five years after the date of the operation, appellant’s cause of action was barred at the time the suit was instituted, that is, if the statute of limitation was in operation from that date. But, if the statute was noti put in operation until November 17, 1935,1 the date appellant alleges that, for the first* time, he discovered foreign substance had been left in the wound when the incision was closed, his cause of action was not barred when the suit was instituted. So, the real question for our determination is, whether or not appellant’s allegations were sufficient, as against a general demurrer, to admit proof, showing or tending to show, that he was not negligent in failing to sooner ascertain the facts constituting his alleged cause of action, that is, that foreign substance had been left in the wound at the time of the operation.

Although appellant’s counsel have discussed at length the subjects of fraud, fraudulent concealment, and the fiduciary relationship existing between the parties, we do not think that the rules of law applicable to those subjects primarily are involved; the case, in our opinion, is controlled by the law of negligence.

We think it obvious that, anticipating the interposition of a plea of limitation, appellant sought, by suitable allegations, to lay the basis for the admission of evidence bearing upon the issue, whether pr not he was guilty of negligence in not sooner discovering the facts constituting his cause of action. The petition discloses the relationship of the parties, the evident reliance of appellant, a layman, upon the skill of the’operating surgeon; also that appellant did not know, and was without means of ascertaining that, foreign substance had been left in the wound, and, further, that this fact was not ascertained until November' 17, 1935, when his mother, dressing the sore on his back, pulled out gauze or sponge that had been imprisoned in the wound since the operation on November 24, 1931.

Under these allegations, we think evidence could have been introduced, showing the relationship of the parties, their respective relationships to the transaction, the means, opportunity, capacity or skill of appellant, a layman, for ascertaining the facts, from which a jury could have determined whether or not, under all the facts and circumstances, appellant negligently failed to avail himself of the means of information that would have led to an earlier discovery of the facts constituting his cause of action.

For the reasons stated, we think the court erred in sustaining the demurrer and dismissing the suit; therefore, the judgment is reversed and the case is remanded for further proceedings.

Reversed and remanded.


author: MONTEITH, Chief Justice.

text:
    ELLIS et ux. v. MICHIGAN REALTY CO. et al.
    No. 10947.
    Court of Civil Appeals of Texas. Galveston.
    March 7, 1940.
    Rehearing Denied April 4, 1940.

      J. S. Bracewell, of Houston, for appellants.
    T. E. Richards, Jr., of Houston, for ap-pellees.
   MONTEITH, Chief Justice.

This is an appeal in an action in trespass to try title brought by appellants, J. H. H. Ellis and wife, Annie K. Ellis, against National Bond & Mortgage Corporation, and appellees National Debenture Corporation, Michigan Realty Company, and Keswick Corporation, for the title to and possession of Lot 2, Block 21, Brooke Smith Addition to the City of Houston.

Appellants, in addition to a formal petition in trespass to try title, alleged that appellees were claiming rights in said property by virtue of a note secured by a deed of trust on the land in controversy, and a purported substitute trustee’s sale thereof; that said loan was usurious in character, and that nothing was due thereon at the time of said sale; that said substitute trustee was never legally appointed .under the terms of said deed of trust, and that said sale was void for the reason that the property in controversy had been taken over by the payee of said note under an agreement whereby it would manage the property in question and apply the rentals and revenues received therefrom to the payment of said indebtedness; that said payee, the National Bond & Mortgage Corporation, had held said property by virtue of said agreement up to the time of said foreclosure sale, and that appellants had had no notice of said sale.

Appellees answered by general demurrer, general denial, and pleas of not guilty.

Michigan Realty Company specially pled that it was a purchaser for value in good faith and not liable to account for the rentals of said property.

Keswick Corporation pled that it had incurred various sums in connection with the renting and upkeep of said property.

National Debenture Corporation alleged that the title to said property was in the Michigan Realty Company. It denied that said loan was usurious, and pled various expenses incurred by it in connection with the upkeep of said property. By cross-action it pled that if the title thereto was not in the Michigan Realty Company, that then it, National Debenture Corporation, had .acquired said note in due course and was entitled to a foreclosure thereof; that appellants had defaulted in the payments of installments thereon and had failed to pay taxes assessed against said property, and that it, National Debenture Corporation, had removed the original trustee and appointed Wm. E. Arnold as substitute trustee and had requested him to sell said property as provided in said deed of trust; that said substitute trustee had declared said note accelerated and all amounts due thereon due and payable; that he had conducted such sale in accordance with the instructions of said appellee and in compliance with the provisions of said deed of trust and the law governing said sale. It prayed, first, that title be vested in the Michigan Realty Company, and in the alternative that it be given judgment for the balance due on the debt.

In answer to special issues submitted, the jury found that said loan was usurious in character, and the rental value of said property.

On motion of appellees the court, properly considering the usury findings immaterial, rendered judgment in their favor and that appellants take nothing by their suit. At the time the court announced his judgment and prior to the entry thereof, appellants took a non-suit without prejudice against defendant National Bond & Mortgage Corporation, and sought leave to file a trial amendment changing their prayer for relief to enable them to recover of appellee National Debenture Corporation the difference between the amount claimed to be due by them on said note and the amount paid for said property by National Debenture Corporation at said substitute trustee’s sale. The court overruled said motion to file a trial amendment.

No issues were requested or submitted on the questions of the validity of said foreclosure sale or as to an agreement or waiver by appellees of their rights to a foreclosure under the terms of said deed of trust.

The record shows that on May IS, 1928, appellants executed their note for the sum of $6,000, payable to the National Bond & Mortgage Corporation, and secured by a deed of trust covering the land in controversy to Joe M. Green, trustee. By instrument . dated June IS, 1928, National Bond & Mortgage Corporation assigned said note and the liens by which it was secured to Century Trust Company of Baltimore and Henry Laith, as trustees.

Appellee National Debenture Corporation acquired said note and lien by assignment. By trustee’s deeds, one dated April 7, 1936, and one dated October 5, 1936, Wm. E. Arnold, as substitute trustee ur der said deed of trust, conveyed the land in controversy to Michigan Realty Company for a recited consideration of $5,400.

Said deed of-trust provides: “The Trustee, or any successor or Substitute Trustee, may be removed at any time by an instrument in writing under the hands of the holders of a majority in amount of said indebtedness then outstanding, and in case of any such removal a successor and substitute may be named, constituted and appointed by the holders of a majority in amount of said indebtedness without other formality than an appointment and designation in writing. * * * It is expressly agreed that the recitals in any conveyance made to any purchaser by the Trustee, or any Substitute Trustee, shall be full evidence of the matters therein stated, and no other proof shall be requisite of request by the holders of said indebtedness on the Trustee to enforce this trust, or of the amount of the indebtedness for which the sale is made, or of the advertisement or sale, or any particulars thereof, or of the removal of the Trustee or Substitute Trustee, and of the appointment of a Substitute Trustee as herein provided; and all prerequisites to said sale shall be conclusively presumed to have been performed, and the sale made under the powers herein granted shall be a perpetual bar against Grantors, their heirs and assigns.”

Said substitute trustee’s deed, ' dated October '5, 1936, contains the following recitations: “And default haying been made in the payment of said indebtedness and in the payment of taxes, I, the undersigned, having been duly appointed by the holders of said indebtedness after the refusal of the original trustee to act and his removal by the holder of the indebtedness, I, having been requested by a majority of the holders of said indebtedness, do declare the same at once due and payable and proceed to enforce said trust, did, in pursuance of said request, declare the entire indebtedness at once due and payable, and did, on the 6th day of October, A. D. 1936, (that being the first Tuesday in said month), and after all prerequisites having been complied with, * * * after having given notice of the time, place, and terms of said sale by posting notices thereof * * * and after I had complied with all terms and requisites of said deed of trust authorizing sale, * *

Appellants contend that appellees waived their option to accelerate th,e maturity of said note and to sell said property at foreclosure sale by their action in taking over said property to manage and to apply the revenues therefrom to the payment of said indebtedness. This contention cannot be sustained.

We have carefully examined the record and find no evidence which tends to show an agreement or understanding of any kind which might constitute a relinquishment of any rights under said deed of trust as to the acceleration of maturity of said note or of the sale of said property by the holders of said note, nor were any issues requested nor submitted as ' to any such agreement or understanding.

Appellants further contend that the sale under said deed of trust and the trustee’s deed were invalid because the deed was executed by Wm. E. Arnold as substitute trustee. As above stated, the deed of trust provides that the trustee, or any successor or substitute trustee, may be removed by an instrument in writing, and in case of such removal a successor or substitute may be named without other formality than an appointment and designation in writing. It states also the, provision that the recital in any conveyance made by any substitute trustee shall be full evidence of the matters therein stated, and no other proof shall be requisite of request by the holders of said indebtedness, or of the advertisement, or sale, or any particulars thereof, or of the removal of the trustees and of the appointment of a substitute trustee as therein provided. The recitation in the substitute trustee’s deed that the undersigned “having been duly appointed", “after the refusal of the original trustee to act,” can only mean that said .substitute- trustee was appointed in accordance with the terms of the deed of trust under which said powers were conferred, and since said deed of trust provided for an appointment in writing, the language in said substitute trustee’s deed stating that he had been duly appointed can have but one meaning, that is, that he was appointed in writing.

Appellants contend that since said property had been sold by Wm. E. Arnold as substitute trustee on April 7, 1936, that the sale of October 6, 1936, which recited that said sale was made on that date, is invalid. This contention cannot be sustained. We know of no rule which prevents a second sale of property under a deed of trust where all prerequisites of said sale have been complied with,

It is now the established rule in this state that the recitals in a deed of trust to the effect that in case of sale all prerequisites of sale shall be presumed to have been performed, and that all statements of fact in any conveyance given under the deed of trust as to the advertisement of sale, the removal of trustee and appointment of substitute trustee, etc., shall be prima facie evidence of the truth of the facts stated. Natali et al. v. Witthaus et al., Tex.Com.App., 135 S.W.2d 969; Adams v. Zellner, 107 Tex. 653, 183 S.W. 1143; McFarlane v. Whitney, Tex.Com.App., 134 S.W.2d 1047.

Appellants assign error in the refusal of the trial court to grant their motion to file trial amendment changing their prayer for relief in order that they might recover from appellee National Debenture Corporation the difference between the amount ' claimed to be due by them on said note and the ¿mount paid for said property by National Debenture Corporation at said substitute trustee’s sale.

After the court had announced its decision to render judgment in favor of ap-pellee Michigan Realty Company, counsel for appellants requested permission to file a trial amendment setting up said facts. In overruling appellants’ motion the court entered the following order: “The foregoing was presented before signing of the decree but after judgment was rendered and in all things overruled, to which plaintiff in open court excepted.”

Plaintiffs’ prayer for relief was as follows : “ * * * that defendants be compelled to file herein under oath a true and correct account of all rents collected under and by virtue of said agreement; that they have judgment for title, and that they have judgment for rents collected as aforesaid, for costs of suit and such other and further relief as they may be entitled to receive.”

The jury was requested to find, in answer to issues submitted, not the amount of rentals collected, as prayed for by appellants, but the reasonable monthly rental value of said property for which no recovery was sought.

While the record contains photostatic copies of records, showing certain payments ostensibly made on said $6,000 note and agreements as to amounts collected by the Keswick Corporation, we are referred to no statement showing the total amount of payments made thereon or the expenses, if any, chargeable against such payments.

Obviously, the trial amendment sought to be filed by appellants would have authorized a recovery not permitted under their prayer, unless they were entitled to such relief under their prayer “for such other and further relief as they may be entitled to receive”, in which event a trial amendment was not necessary.

The law is well settled that the filing of trial amendments rests largely in the sound discretion of the trial court and that such discretion will not ■ be disturbed unless it clearly appears from the record that there has been an abuse thereof. National Life & Accident Ins. Co. v. Hines, Tex.Civ.App., 50 S.W.2d 364; Rivers v. Griffin, Tex.Civ.App,, 16 S.W.2d 874. Further, our courts have uniformly held that it was not intended by the rule allowing the filing of trial amendments that an amendment might be made as a matter of right so as to include an amendment setting up a new cause of action or new defenses not pleaded or set up in some former plea and which might cause a re-opening of the cáse after proceeding to trial. Bender v. Bender, Tex.Civ.App., 187 S.W. 735.

In this case -the trial court overruled said application for leave -to file trial amendment, after a thorough - hearing of the facts. A consideration of the record convinces us that the trial court did not, in so ruling, abuse his judicial discretion.

These conclusions require an affirmance of the trial court’s judgment; it will be so ordered.

Affirmed.


author: ALEXANDER, Justice.

text:
    PIONEER BUILDING & LOAN ASS’N v. COMPTON.
    No. 2162.
    Court of Civil Appeals of Texas. Waco.
    March 14, 1940.
    Rehearing Denied April 11, 1940.

      Street & Street and Nat Harris, all of "Waco, for appellant.
    Fitzpatrick & Dunnam, of Waco, for ap-pellee.
   ALEXANDER, Justice.

In 1929, W. C. Compton borrowed from ■the Pioneer Building & Loan Association -the sum of $7,500, to be repaid in monthly installments, and secured the payment of same by deed of trust on a residence and a business house in the city of Waco. Compton failed to meet his payments and in February, 1932, he assigned to the Loan Company all rents to become due on the property and authorized the Loan Company to collect and apply such rents on the indebtedness. In March of the same year he executed a chattel mortgage to the Loan Company on certain household and business fixtures located in the buildings in question to secure the payment of a note in the sum of $1,100, executed by him to cover the installments that were then past due. In 1933, being further in default, Compton executed a bill of sale to the personal property in question to the Loan Company. -Compton filed this suit against the Loan Company in trespass to try title to recover the property, and, in the alternative, it was alleged that at the time of the execution of the bill of sale the Loan Company had agreed' to credit the value of said personal property on his indebtedness, and further that the Loan Company had impliedly agreed to exercise reasonable diligence in keeping the real property rented; and that it had negligently failed to do so. Compton sought to have the value of the personal property, together with the rental value of the property, and certain other payments made by him, applied to the extinguishment of said indebtedness, and for cancellation of the deed of trust lien. Upon the trial of the case, the jury found that at the time of the execution of the bill of sale, it was understood that the Loan Company would apply the value of the personal property to the debt, and that it was of the value of $3,475. The jury also found that the rental value of the property from March, 1933, to the date of the trial was $100 per month, and that the defendant had failed to exercise reasonable diligence to keep the property rented. The trial court credited the debt with certain payments claimed to have been made by Compton, together with the rental value of the property, and the value of the personal property, and, after allowing credit for certain repairs and taxes, found that the Loan Company was indebted to Compton in the sum of $2,048. Accordingly, the deed of trust lien was canceled and judgment was rendered in favor of Compton against the Loan Company for $2,048. The Loan Company has appealed.

Compton claimed that at the time of the execution of the bill of sale it was understood and agreed that the Loan Company would credit the debt with the value of said personal property. On the other hand, the Loan Company contended that the personal property was assigned to it merely for convenience, with the understanding that the Loan Company, if it saw proper, could sell the property and apply the proceeds of the sale on the debt. It is not clear whether the plaintiff intended to allege that the Loan Company was to credit the debt with the value of the property as set out in the petition, or merely the actual or market value of the property. At one place, it was alleged that the debt was to be credited with the value of the property, and at another the value of the property as set out in the petition. If it was the purpose of the petition to allege an agreement on the part of the defendant to credit the debt with the specific values as set out in the petition, then the findings of the jury are insufficient to support the judgment, because there was no finding of an agreement that the debt would be credited with the specific values as set out in the petition. However, since the case must be reversed on account of other errors, we do not deem a decision of this question necessary at this time. The question will doubtless be clarified on another trial.

A part of the personal property consisted of household and kitchen furniture. There was no proof that this property did not have a market value or a real value, nor that it could not be reproduced or replaced, but the court, over the defendant’s objection, permitted Compton to testify as to the value of the property to him and then submitted an issue to the jury as to what was “the actual value to the plaintiff, W. C. Compton, of the household and kitchen furniture.” The jury found the sum of $2,000 in answer to the above issue, and the Loan Company’s debt was credited with this amount. In tort cases it is sometimes held that a party whose personal property has been negligently destroyed or wrongfully taken from him may testify as to the value of the property to him. However, this is allowed only when the proof shows that the property does not have a market or real value and cannot he replaced or reproduced. The Commission of Appeals, in speaking through Judge Sharp, in International-Great Northern R. Co. v. Casey, 46 S.W.2d 669 [1-6] said: “The rule is settled that, where property- is destroyed or injured, which has a market value, this must be shown by the owner as the measure of damages; where it has neither a market value nor a real value, hut it is shown what it would cost to replace or reproduce the article, then such cost is the measure of recovery. Where it has neither a market value nor a real value, and it can.not be reproduced or replaced, then in that event it would, be proper to show what it was worth to the owner.”

See, also, Missouri, Kansas & Texas R. R. Co. v. Crews, 54 Tex.Civ.App. 548, 120 S.W. 1110; Allis-Chalmers Mfg. Co. v. Board, Tex.Civ.App., 118 S.W.2d 996, par. 7; 13 Tex.Jur. 150, 156; 19 Tex.Jur. 188-200; Chicago Fire & Marine Ins. Co. v. Harkness, Tex.Civ.App., 58 S.W.2d 171, 173; Taylor County v. Olds, Tex.Civ.App., 67 S.W.2d 1102. Such testimony by a party as to the value of the lost property to him is at best a mere guess by a nonexpert interested witness. The rule permitting such testimony grows out of the necessities of the case and should be resorted to only when other proof is not available. For the same reason, the court should, not submit to the jury an issue as to the value of the property to the owner unless it has been established that it has no market or real value and cannot be reproduced or replaced. For the reasons above stated, the trial court erred in permitting Compton to give his opinion as to the value of the property .to him and in submitting the issue in the form above set out.

Compton alleged that at the time he assigned to the Loan Company the right to collect the rents from the building, it was agreed that the company would credit the debt with the reasonable rental value of the property. There was, however, no finding by the jury as to any kind of an agreement, either express or implied, in this respect, yet the court held the Loan Company liable for the reasonable rental value of .the property during the time the Loan . Company had possession thereof. In the absence of such finding, the verdict was insufficient to support the judgment. The evidence was possibly sufficient to raise the issue of an implied agreement to exercise reasonable diligence in renting the property and to support the finding that the Loan Company negligently failed to perform its obligation in this respect. If recovery should be allowed on this theory, the measure of damages would be the amount of rent that could have been collected from the property by the exercise of reasonable diligence during the period in question. This would not necessarily be the rental value of the property, for it often occurs that property is rented for its value, but the tenant fails to pay his rent. The Loan Company had charge of the property during the depression, and it is a well known fact that many tenants failed to pay their rent during that period. In fact, at the time plaintiff assigned the rents to the Loan Company, some of the tenants to whom he had rented the property were eight months in arrears in the payment of their rents. In this same connection, it should be noted that the business house consisted of four units, one of which was a café. The testimony variously estimated the rental value of the café from $40 to $60 per month and up. Compton admitted,- however, that he authorized the Loan Company to lease the café for a period of one year for $25 per month. If he thus agreed to the renting of this unit at less than its rental value, the Loan Company would not be required to account for the full rental value of the premises. Pioneer Building & Loan Association v. Cowan, Tex.Civ.App., 123 S.W.2d 726. No account of this agreed reduction in rent was taken into consideration by the court in fixing the Loan Company’s liability for its negligent failure to properly rent the premises.

A witness was permitted to testify that in October, 1932, she paid to the Loan Company for Compton the sum of $700 on the indebtedness in question, and that a representative of the Loan Company then stated to her that such payment put the loan in good shape, and from this she concluded that all past-due payments had been made. The court submitted to the jury an issue as to whether such payment covered all sums then past due on the loan, to which the jury answered “yes.” Based on such finding, the court declined to allow the Loan Company to recover for any installments that were past due and unpaid on that date. The Loan Company had reconvened and was seeking judgment for its debt. It set out the original contract and all payments that had been made thereon. This showed a considerable portion of the indebtedness past due and unpaid at the time the payment in question was made. Compton had not plead any payments on the indebtedness as he was required to do under Article 2014. See, also, 32 Tex.Jur. 696. Upon another trial, if Compton should desire to prove any payments other than those conceded by the Loan Company, he should specifically plead such payments and the court should submit in a more specific way whether or not the plaintiff had made the payments so claimed by him and from the findings of the jury thereon calculate whether or not the loan was paid up in full to the date in question.

Several witnesses were permitted to give their expert opinion as to the market value of the personal property without first showing sufficient experience to qualify them as experts in that line. This should be avoided upon another trial.

Compton alleged in general terms that the loan contract was usurious and void, but did not allege sufficient facts to show that the contract was usurious. Upon the trial, plaintiff was permitted to testify that he had expended large sums of money in improving the property in question. He also testified that at the time he assigned the personal property to the Loan Company he was compelled to leave the state in order to take care of a brother who was a World War veteran. These matters have no connection with the issues to be tried by the jury. They only serve to prejudice the minds of the jury. Upon another trial, this should be avoided.

The other errors complained'of will not likely arise in the same manner upon another trial, and for that reason need not be discussed at this time.

On account of the errors above pointed out, the judgment of the trial court will be reversed and the cause remanded for a new trial.

TIREY, J., took no part in the consideration and disposition of this case. .