text:
    KVETON v. FARMERS ROYALTY HOLDING CO. et al.
    No. 11170.
    Court of Civil Appeals of Texas. Galveston.
    April 3, 1941.
    Glenn & Hill, of Sealy, for appellant.
    Dudley, Hyde, Duvall & Dudley, of Oklahoma City, Okl., and Hollis Massey, of Schulenburg, for appellees.
   CODY, Justice.

This is a companion case to that of Willie Ashorn et ux. v. Farmers Royalty Holding Company et al., 149 S.W.2d 995, opinion in which is this day handed down affirming the judgment of the trial court therein. However, the record in this case is not in all respects parallel to the record in the Ashorn case.

The appellant, Mrs. Albert Kveton, brought this suit in the district court of Austin County, against Farmers Royalty Holding Company, Farmers Mutual Royalty Syndicate, Inc., and M. L. McLain and A. G. Matlage, for cancellation and annulment of certain mineral deeds, and for the cancellation and annulment of a mineral lease held by said A. G. Matlage. She alleged that on October 14, 1931, and for a long time prior thereto, and ever since that time, she was and has been the owner in fee simple of seven tracts of land which are located in Austin and Colorado Counties, and in said petition she described the seven tracts of land by metes and bounds; further, that on said date, G. T. Blankenship and Farmers Royalty Holding Company did unlawfully enter upon said land and dispossess plaintiff of an undivided half mineral interest in said seven tracts of land, and have ever since withheld possession of said mineral interest. The petition then alleges that G. T. Blankenship and Farmers Royalty Holding Company obtained mineral deeds from her to a portion of the mineral interest in the seven tracts of land. In addition to the allegations of about the same facts as were alleged by Willie Ashorn and wife in the Ashorn case as to the fraud in obtaining-said mineral deeds, and as to fault in taking acknowledgment, etc., the appellant further alleged that the description of the land in which said deeds purported to convey said mineral interest was insufficient to identify any land, and that said deeds were therefore null and void. Appellant’s petition contained other allegations, but which are not pertinent to the inquiry of whether the court erred in sustaining appellees’ plea of res adjudicata.

Appellees’ answer contained, in connection with their plea of res adjudicata, allegations to the effect that in March of 1931 appellant filed suit in the district court of Austin County, which was entitled “Mrs. Albert Kveton, a feme sole, v. G. T. Blankenship et al.”, and numbered 6980 on the docket of said court; that judgment was entered in said case on June 29, 1934, finally adjudicating the rights of appellant and the defendants in said suit, in and to the undivided mineral interest which appellant seeks to re-litigate. Appellees alleged that the defendants in said cause No. 6980 other than appellee Farmers Royalty Holding Company were privies to said defendants.

By agreement of the parties the court first took up appellees’ plea of res adjudi-cata. In support of this plea, appellees introduced into evidence the following:

1. The pleadings of the parties in cause No. 6980, inclusive of appellants’ petition.

2. An application, signed by appellant and her attorney, requesting the court to enter an agreed judgment (the substance of which was therein set forth) in the case.

3. The agreed judgment which was entered in said cause.

The pertinent parts of the judgment are as follows:

“It- appearing unto the Court that th,e plaintiffs and defendants have importuned this Court to enter a judgment in said cause in conformity with an agreement; ' and
“It appearing unto the Court that such agreement is fair; that it is advantageous to both the interest of the plaintiffs and the defendants; that it is fairly made and fairly entered into and should be made the judgment of this Court; and,
“It appearing unto the Court that the mineral deeds as set forth and described by the plaintiffs in their original petition, executed by them to the Farmers Royalty Holding Co. and G. T. Blankenship, the rescission of which is a part of the subject matter of this suit, is hereby in all respects denied, and said mineral deeds are hereby fixed and established as valid and subsisting mineral deeds, divesting the plaintiffs of three-eighths of the mineral fee estate in said land in favor of the defendant Farmers Royalty Holding Co., and a one-eighth of the mineral fee estate in said land in favor of the defendant G. T. Blankenship, so that the ownership of the entire mineral fee estate in said land is hereby established and fixed, as between the plaintiffs and defendants, a one-half of the entire mineral fee estate in said land is hereby established and fixed, as between the plaintiffs and defendants, a one-half of the entire mineral fee estate in said land in the plaintiffs; three-eighths of the entire mineral fee estate in said l^nd in the defendant Farmers Royalty Holding Co.; and a one-eighth of the entire mineral fee estate in said land in the defendant G. T. Blankenship, so that each cotenant shall hold such undivided interest as is herein accredited freed from the claim of the other, each being entitled to all of the rights appendant and appurtenant arising out of the estates herein accredited unto each separately as each separately owns an undivided interest in the entire mineral fee estate in said land. * * * ,i
“By the -terms minerals and mineral fee estate as said terms are used in this judgment is meant all minerals whether the same be oil, gas or other minerals, whether similar or dissimilar, and together with the rights of ingress and egress to explore for, mine, produce, treat and store the same, and the lands comprehended within this judgment are those lands described in an exhibit hereto attached, marked Exhibit ‘A’ for identification, and expressly made a part hereof precisely as if the same were copied herein.”
“Exhibit ‘A’”
“Certain tracts or parcels of land, located, lying and being situated in the County of Austin and- County of Colorado, State of Texas.”

It nowhere appears from the record in cause No. 6980 as introduced in evidence . in this case, that the two mineral deeds . contained any more accurate description of the land to which they applied than “certain tracts or parcels of land, located, lying and being situated in the County of Austin and the County of Colorado, State of Texas.” It is quite obvious that such description is wholly insufficient to identify any particular tracts of land in Austin or Colorado Counties.

Appellees insist that. the question of the validity of the two mineral deeds arising out of the nature of the. description of the land contained therein was necessarily determined in cause No. 6980. This may be true; and it may be true that the court also rendered judgment to the effect that the two mineral deeds covered the seven tracts of land described in appellants’ petition in this case. But if the court did so determine, such determination was never incorporated in the judgment as recorded. In the case of Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, our Supreme Court, speaking through Judge Phillips, makes clear the difference between the judicial function of rendering a judgment, and the clerical function of entering the' judgment which the Court has pronounced. If a part of the judgment which was rendered by the Court was not correctly entered, or was omitted, the court may, after term time, and after giving notice to the parties, by an order nunc pro tunc, correct the judgment as entered. If, however, a change is sought in the judgment as rendered, a direct action must be brought for that purpose. “To correct in the trial court, after adjournment of the term, a judgment as rendered, an independent action is necessary, as its jurisdiction of the case is at an end. In the latter instance [i. e., correction of the entry of the judgment] the court may, at a subsequent term, of its own motion or upon the application of parties, order the proper entry because the inherent power that it possess.es as a court over its records endures for the sake of their verity.” Id., 105 Tex. at page 497, 151 S.W. at page 1042.

If the court in case No. 6980 in fact adjudged that the defendants in said suit had an undivided mineral interest in seven specified tracts of land belonging to appellant aggregating more than 2000 acres, or that the two mineral deeds covered said seven tracts, the judgment as entered fails to reflect such judicial action. If this is true, and if the doctrine of laches is not applicable, it will be a simple matter, by a nunc pro tunc order, to correct the entry. If, as appears from the record of cause No. 6980, as introduced in evidence herein, the court did not adjudicate what land the mineral deeds covered, then, of course, the defendants in said cause acquired no mineral rights in appellants’ said seven tracts of land by said judgment. But in any case, the judgment as entered in the record of a court imports verity. And in applying the doctrine of res adjudicata only the judgment as entered of record in a prior action between the parties or their privies will be considered in passing upon whether said prior judgment makes the doctrine of res adjudicata applicable in a subsequent action between such parties.

Upon the foregoing considerations it is necessary to reverse the action of the trial court sustaining appellee’s plea of res ad-judicata, and remand the cause for a new trial. It is so ordered.

Reversed and remanded.


source: Caselaw Access Project

author: CODY, Justice.

license: Public Domain

text:
    Albert KERSTEN et ux., Appellants v. FARMERS ROYALTY HOLDING COMPANY et al., Appellees.
    No. 11169.
    Court of Civil Appeals of Texas. Galveston.
    April 3, 1941.
    Glenn & Hill, of Sealy, for appellants.
    Dudley, Hyde, Duvall & Dudley, of Oklahoma City, Old., and Hollis Massey, of Schulenburg, for appellees.
   CODY, Justice.

This is a companion case to Willie Ashorn et ux., Appellants, v. Farmers Royalty Holding Company et al., Appellees, 149 S. W.2d 995, opinion in which is this day handed down affirming the judgment of the trial court therein.

The record in this case parallels that of the Ashorn in every respect and the briefs filed herein are virtual copies of the briefs filed in the Ashorn case.

The judgment of the trial court is therefore affirmed upon the same grounds set forth in the opinion in the Ashorn case.

Affirmed.


author: MONTEITH, Justice.

text:
    CITY OF HOUSTON v. FINN.
    No. 11118.
    Court of Civil Appeals of Texas. Galveston.
    March 20, 1941.
    Rehearing Denied April 17, 1941.

      R. R. Lewis, Geo. D. Neal,. Morris D. Meyer, Spurgeon E. Bell, and Ed R. Campbell, all of Houston, for appellant.
    Kayser, Liddell, Benbow & Butler, Frank A. Liddell, W. O. Huggins, Jr., and Jack Binion, all of Houston, for appellee.
   MONTEITH, Justice.

This action was brought by appellee, A. C. Finn, to recover for architectural services alleged to have been rendered to appellant, City of Houston, in connection with an application to the Public Works Administration of the United. States, hereinafter called PWA, for a grant to assist in constructing and furnishing a city hall for appellant City. ’

Appellee alleged that appellant by an ordinance had authorized its' mayor to make an application to the PWA for aid in the construction and equipment of a city hall-; that, acting through its mayor, it had orally employed him to render the usual and customary architectural services necessary to obtain a grant of this character and that, acting under said employment, he had performed all the services necessary therefor; that said mayor and city commissioners knew that the PWA required that an applicant for aid of this character must provide and maintain an architect, and that the city council knew of the existence of the agreement between its mayor and appellee, and had acquiesced in and ratified said agreement and had accepted such services and all the benefits thereof, and that appellant was estopped to deny the validity of said contract. Appellee specially pled that there was a general and uniform custom, which was well known to the city council of appellant City, that an architect’s compensation for services rendered in obtaining a PWA grant was not due until after the grant had actually been made by the PWA and accepted by the applicant; that said-grant was actually made to appellant by PWA and was accepted by resolution and ordinance of appellant City on ór about October 13, 1937. He. sought recovery for said services in the sum of $18,180, or in the alternative 1% of the total cost of the construction and furnishing of said city hall, or in the alternative 1% of the total proposed cost of said building and equipment, or in the alternative the reasonable value of his services.

Appellant City answered by general demurrer, special exceptions and denials, and an affirmative defense of the two-year statute of limitation.

In answer to special issues submitted, the jury found, in effect:

1. That at the time of the conversation between the appellee, A. C. Finn, and Mayor Holcombe in August, 1935, it was the intention of the parties that the appellee, Finn, would render further service to the appellant, City of Houston, after the architectural data accompanying the application to the PWA had been prepared and before the grant had been made or refused by the PWA.

' 2. That at the time of the conversation in August, 1935, between A. C. Finn and Mayor Holcombe, it was the intention of the parties that any money to be paid Finn was contingent upon the making of a grant to the City by the PWA.

- 3. That at the time the city council passed the ordinance on September 4,1935, a majority of the city council knew that ap-pellee, Finn, had prepared the preliminary plans and sketches and other architectural data to accompany said application to the PWA.

4. That a majority of the city council knew on September 4, 1935, that the appel-lee, Finn, had prepared preliminary sketches and plans and other architectural data to accompany said application to the PWA at the request of Mayor O. F. Holcombe.

5. That at the time the city council passed the resolution on October 13, 1937, accepting the offer of a grant from the PWA, a majority of such city .council knew that appellee, Finn, had prepared.the preliminary sketches and plans and other architectural data accompanying the application to the PWA.

6. That a majority of the city council knew on October 13,1937, that Finn had prepared the preliminary sketches and plans and other architectural data accompanying the application to the PWA at the request of Mayor Holcombe.

7. That there was a general custom in Houston during the years 1935 to 1937, inclusive, as to the amount of compensation to be paid an architect for preparing the preliminary plans and sketches and other architectural data accompanying the application to the PWA for a grant,

8. That such general custom was one per cent of the estimated cost of construction.

9. That at the time of the conversation between Finn and Holcombe in August, 1935, Holcombe and Finn knew of the existence of such general custom.

10. That at the time pf the conversation between Finn and Holcombe in August, 1935, it was the intention of the parties to be governed by such general custom.

11. That at the time the city council passed the ordinance on September 4, 1935, a majority of the city council knew of the existence of such general custom.

12. That at the time the city council passed the resolution on October 13, 1937, accepting the grant, a majority of the city council knew of the existence of such general custom.

13. That there was a general custom in Houston during the years 1935 .to 1937, inclusive, as to the time of payment to the architect of compensation for preparing the preliminary plans and sketches and other architectural data accompanying the application to the PWA for a grant.

14. That such general custom was that the architect was to be paid after the grant had been accepted by the applicant.

15. That at the time of the conversation between Finn and Holcombe during August, 1935, Holcombe knew of the existence of such general custom.

16. That at the time of the conversation between Finn and Mayor Holcombe in August, 1935, it was the intention of the parties to be governed by such general custom.

17. That at the time the city council passed the ordinance on September 4, 1935, authorizing the mayor to make application to the PWA for a grant, a majority of the city cpuncil knew of the existence of such general custom.

18. That at the time the city council passed the resolution on October 13, 1937, accepting the offer of a grant from the PWA, a majority of the city council knew of the existence of such general custom.

19. That pursuant to the conversation between Finn and Holcombe in August, 1935, Finn prepared and filed the preliminary plans and sketches and other architectural data accompanying the application to the PWA, with the intention that he was. to be paid in money by the City of Houston for rendering such services.

20. That the preliminary plans and sketches prepared by the appellee, A. C. Finn, were not substantially the same plans and sketches prepared in 1928 by Bailey, Hedrick, Gottlieb and, Finn.

21. That $18,181.81 if now paid in cash would fairly and reasonably compensate ap-pellee for the services rendered to appellant in connection with filing the application to PWA for a grant.

Based on the answers to said special issues, judgment was rendered against appellant City in favor of appellee, Finn, for the sum of $18,180, appellee having filed a remittitur in the sum of $1.81.

The record shows that in August, 1935, the mayor of appellant City requested appellee to prepare the preliminary plans, specifications and architectural data necessary to accompany a PWA application for a grant of funds to be used by appellant City in connection with the erection and equipping of a proposed city hall; that appellee complied with said request and transmitted said plans and data, with the forms required by the PWA to the mayor of appellant City; these forms showed the total cost of the proposed project to be $1,818,180.

On September 4, 1935, appellant City passed an ordinance which authorized and empowered its mayor to make such application to the PWA for said grant, and directed the Public Works Director of the City to furnish such information pertaining to said grant as the PWA might reasonably request; the official forms of the PWA and the exhibits, which appellee as architect had theretofore prepared at the mayor’s request, were attached to this proposed ordinance and.were later attached to the application which was transmitted to the PWA. Later, appellee made a trip to the office of the State Director of the PWA in Fort Worth, and to the PWA office in Washington, D. C., in connection with said application.

On October 1, 1937, the PWA made a written offer to appellant City to contribute the sum of $818,180 to be used in connection with the construction and equipping of said city hall. This offer was duly accepted by appellant City by resolution of the city council dated October 13, 1937. Said grant was made on the application which had been prepared and signed by appellee as architect.

Appellee’s plans were not used in connection with the erection of such city hall.

This action was filed on August 22, 1939.

Section 19 of Article 11 of the Charter of the City of Houston provides that no contract shall be entered into by the City until after an appropriation has been made therefor, nor in excess of the amount appropriated, and that all contracts, whenever practicable, shall be made upon specifications, and that no contract shall be binding upon the City unless it has been signed by the mayor and counter-signed by the comptroller, and the expenses thereof charged to the proper appropriation.

Section 19a in Article 11 of said Charter provides that no contract involving the expenditure of money in excess of $1,000 shall be entered into or executed by any officer of the City unless it be by authority of ordinance, and that no ordinance for the appropriation of money or for the making of any contract requiring the expenditure of money shall be passed by the council unless the comptroller has first certified that the money required therefor is in the treasury and unappropriated.

While it is the established law in this state that a municipality cannot be held liable for the breach of a contract, which is illegal because not made in conformity with its charter provisions, on the ground of estoppel, it is equally well .established that a city may be estopped to deny the validity of a contract which it had authority to make but which was executed by an officer without authority or was entered into without the formalities required under its charter, and that where a city accepts the benefits accruing to it under such a contract it 'is bound to perform the obligations imposed upon it thereunder. Panhandle Construction Co. v. City of Spearman, Tex.Civ.App., 89 S.W.2d 1053, 1055; City of Longview v. Capps, Tex.Civ.App., 123 S.W. 160; Gussett v. Nueces County, Tex.Com.App., 235 S.W. 857; McKenzie Construction Co. v. City of San Antonio, Tex.Civ.App., 50 S.W.2d 349; City of Port Arthur v. Young, Tex.Civ.App., 37 S.W.2d 385; 30 Tex.Jur., 343.

Further, the Supreme Court of this state has laid down the rule, first in the case of City of San Antonio v. French, 80 Tex. 575, 576, 16 S.W. 440, 26 Am.St.Rep. 763, and later in the case of Sluder v. City of San Antonio, Tex.Com.App., 2 S.W.2d 841, that while a municipality cannot be held liable under an express contract, illegal because not made in conformity with its charter provisions, it will be held liable on an implied contract for the reasonable value of the benefits which it may have received, on the theory that common honesty and fair dealing require that a municipality should not be permitted to receive the benefits of money, property or services without paying just compensation therefor. In the Sluder case the court held that, under such circumstances, a private corporation would clearly be liable under an implied contract and that there could be no sound reason why the same obligation to do justice should not rest upon a municipal corporation.

In the case of Galveston County v. Gresham, Tex.Civ.App., 220 S.W. 560, 562, writ refused, suit was filed by an attorney for services rendered in connection with the construction of the Galveston seawall. Mr. Gresham, the attorney, was employed in conformity with a resolution passed by the commissioners court of Galveston County. The commissioners’ court declined to pay for such services on the ground that they had no authority to make said contract. This court, in affirming the judgment of the trial court, held: “And if the commissioners’ court thus had the broad power to construct this extension of the sea wall, its like authority to enlist the services of the appellee to that end would follow as á necessary implication; that being deemed essential to the exercise of the power and duty imposed upon it.”

While it is uncontroverted that the .express contract upon which appellee relies for recovery was not made in conformity with the Charter provisions of the City of Houston and is therefore unenforceable, the City of Houston unquestionably had the legal right to make an application to the PWA" for a grant to be used in connection with the building of a city hall and to employ an architect to furnish the necessary services in connection therewith. The jury found, on sufficient evidence, that the services rendered by appellee were of the reasonable value of the amount claimed by appellee, and that they were rendered by him at the special instance and request of the mayor of appellant City, with the knowledge, consent and acquiescence of the majority of the city council, and that the services rendered were necessary under the rules of the PWA.

Under above authorities, appellant City, having received the benefits of the services rendered by appellee, is liable on an implied contract for the reasonable value of the services found by the jury to have been .rendered by appellee, in the event appel-lee’s cause of action therefor is not barred by the two-year statute of limitation (Article 5526, Vernon’s Annotated- Civil Statutes).

Appellant contends that, since appellee’s cause of action is based iipon an implied qontract, it accrued at the time the alleged services were rendered and that therefore appellee’s cause of action, if any, was barred by the two-year statute of limitation at the time his suit was filed. This contention cannot be sustained.

Appellee pled that appellant City, acting through its mayor, had agreed to pay him as compensation for the architectural services to be rendered by him under his alleged contract, if, as and when the PWA actually made a grant to the City of Houston in connection with the application filed; that his services as such architect were completed and accepted by the City on and after September 21, 1937, and that, after, on or about October 13, 1937, appellant became indebted to him in the sum of $18,180.00.

He further pled that there was a well known custom prevalent in Houston during the years 1935 to 1937, inclusive, with respect to the time of payment of compensation for architectural services rendered in connection with the obtaining of a grant from the PWA and that according to said custom the compensation, due an architect in performing said duties was not due until, if, as and when the PWA actually made a grant to the applicant therefor and said grant was accepted.

The jury found, on sufficient evidence, in response to special issues submitted, that it was the intention of appellee and the mayor of appellant City that appellee should render any and all services to appellant after furnishing the preliminary plans, sketches and architectural data that actually accompanied the application to the PWA; that it was the intention of the parties that any money to be paid appellee was contingent upon the grant being made; that there was a general custom in existence in 1935 as to the time of payment of an architect’s compensation in connection with a PWA grant, that the architect was to be paid after the grant had been accepted by the applicant, and that both the city council of appellant and appel-lee knew of the custom on both September 4, 1935, and on October 13, 1937, and intended for it to cover their agreement.

No objections or exceptions to the submission of the above issues or the evidence on which 'the answers thereto were based were brought forward or urged by appellant in this appeal, and although appellant pled the two-year statute of limitation, no request was made for the submission of an issue with respect to the date compensation for services rendered by appellee was due.

It is the settled law in this state that limitation does not begin to run until the. right or cause of action accrues, and the right or cause of action does not exist until facts exist which authorize the person asserting the claim to seek relief in a court of competent jurisdiction from the person due to make reparation. It involves both the existence of the right and facts sufficient to constitute a cause of action. Williams et al. v. Pure Oil Co. et al., 124 Tex. 341, 78 S.W.2d 929, and cited cases.

In the instant case the jury found, upon sufficient evidence, that the date of accrual of appellee’s cause of action was the date of the acceptance of said PWA grant, found to be October 13, 1937. This action was filed on August 22, 1939. Under these facts appellee’s claim was not barred by limitation at the time the suit was filed and the trial court did not err in overruling appellant’s special exceptions or in refusing to instruct a verdict in favor of appellant.

It follows from above conclusions that the judgment of the trial court must be, in all things, affifmed.

Affirmed.


author: COMBS, Justice.

text:
    EMPLOYERS LIABILITY ASSUR. CORPORATION, LIMITED OF LONDON v. CRAWFORD.
    No. 3665.
    Court of Civil Appeals of Texas. Beaumont.
    March 27, 1941.
    Rehearing Denied April 9, 1941.
    King & Rienstra, of Beaumont, for ap- • pellant.
    Elton Cruse, of Beaumont, for appellee.
   COMBS, Justice.

This is a workmen’s compensation case. On jury findings of total and permanent incapacity, the appellee, Charlie Crawford, recovered judgment against appellant for $3,000 in a lump sum.

We have concluded that upon the record the case will have to be reversed and rendered because of the failure of the plaintiff to give notice and file his claim within six months after the occurrence of the injury. The plaintiff was injured June 11,, 1935, by being gassed while working for the Gulf Refining Company in Port Arthur. His claim for compensation' was dated August 18, 1937, and shows to have been filed with the Industrial Accident Board August 24, 1937, more than two years after the injury. And although the jury found the existence of good cause for his failure to file it sooner, the finding is without support.

The good cause alleged for failure to file his claim was to the effect that the plant physician and other medical experts rep- . resenting the employer and the insurance company, from the time he was gassed until about the time his claim was filed, represented to him that his injury was only “temporary and trivial” and' would soon. disappear and “most if hot all of his disability or pain was the result solely of diseases and infections * * * in noway connected with said gassing”; and that the employer gave him lighter work which enabled him to continue his employment.

The facts show that Dr. James W. Long, the plant physician, gave plaintiff emergency treatment on the occasion of his injury. A few days later he complained of headaches and Dr. Long referred him to Dr. Fulbright, an eye, ear, nose and throat specialist, who prescribed treatment for him. Plaintiff continued to work for the Gulf Refining Company for about two years and until June, 1937, when he was laid off. In July he employed counsel, and his claim for compensation was filed in August, 1937, as above mentioned. In the meantime, and during the month of July, he went to California, where he received treatment in the veteran’s hospital. However, his testimony shows that while he was in California he worked as a marine fireman with.a floating fish cannery, and on other jobs until his return to Texas the following year. And that after his return to Texas he worked with the W. P. A. And further that he applied to the Gulf Refining Company for reemployment only three or four days before this suit was filed.

Dr. Long was the only medical witness. He was called by the plaintiff. The testimony shows that Dr. Long did advise the plaintiff that the headaches he complained of were due to an infected sinus and that the condition of which he complains was in no way connected with the gas injury. He is of the same opinion still. The record shows that plaintiff was treated by Dr. Fulbright and that he was examined by two other doctors. None of these doctors was called as a witness. So far as the record shows, no doctor has ever advised the plaintiff that his alleged disability has any causal connection with the gassing. The only testimony in the record that his condition is due to the gassing was plaintiff’s own opinion, and his evidence shows that he had the symptoms he complains of in October after his injury in June. And also that he then considered them the result of the gassing. If it be conceded that plaintiff has a disability resulting from his injury, it is nevertheless obvious that the opinion of the doctors was not a controlling factor in causing him to delay the filing of his claim.

On the facts it is evident that plaintiff showed no good cause for the long delay in filing his claim. Apparently he knew just as much about his alleged" injury a few months after it happened, as he knows now. There was no evidence raising the issue of good cause. V.Ann.Civ.Stat. Art. 8307, Sec. 4a; Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053.

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


author: LOONEY, Justice.

text:
    BURGESS v. WARREN.
    No. 13007.
    Court of Civil Appeals of Texas. Dallas.
    March 1, 1941.
    Rehearing Denied April 5, 1941.

      W. B. Pope and Ernest McCormack, both of Dallas, for appellant.
    Harry C. Crump, Jr., of Dallas, for ap-■pellee.
   LOONEY, Justice.

J. P. Burgess appealed from a judgment in favor of John Warren, for damages alleged to have resulted from injuries sustained while in the service of appellant. Appellant was engaged in operating a .gravel pit, having in his employment more .than three employes, but was not a subscriber under the Workmen's Compensation Law, Vernon’s Ann. Civ. St. art. 8306 et seq.

The material facts are tírese: Appellee ,and a fellow workman were engaged in ■carrying, between themselves, a piece of timber about 3 inches thick, 12 inches wide, ;and weighing about 100 pounds, when, without warning, the fellow workman .negligently dropped his end of the timber to the ground, throwing the weight of the •timber on the end which appellee was .carrying, jerking his- body forward and downward into a bent position, causing the injuries of which he complained.

The only question presented is that, the element of damages submitted in the charge, with reference to the lessened capacity of appellee to labor and earn money in the future was not authorized by the pleading. The pertinent allegations •of the petition are these: “That the violent jerking of John Warren’s body tore, stretched and strained the muscles on his right side, lower back, upper right leg, right hip and abdomen. This injury caused the ■muscles of his back, especially those of the lower border of the ribs down to the pelvic regions, and those on the right side of the body as well as the right hip and upper right leg to be very hard and extremely tender. Plaintiff’s body movements are as a result limited in all directions and he cannot stand in an erect position, his in-, juries forcing him to assume a slightly stooped posture. ⅜ ⅜ * Prior to the date of this negligent injury, plaintiff .was a strong, healthy man capable of earning $2 a day. That said injuries have prevented this plaintiff from obtaining or holding any steady hard work, such as he was accustomed to performing, for at least 11 months and frequently pain and hurt making him incapable of doifig as heavy work as he did before this injury. Because of the loss of earning power and great pain and suffering caused by these injuries plaintiff, John Warren, has sustained actual-damages in the sum of $3,000.00.”

Evidence was introduced, without objection, to the effect that, as the result of his injuries, appellee had sustained a certain percentage of permanent disability. In other words, the evidence fully justified the submission of the issue in regard to the lessened capacity of appellee to labor and earn money in the future.

Issue No. 6, containing the alleged objectionable matter, reads as follows: “What sum of money, if any, if paid now in cash do you find from a preponderance of the evidence will reasonably compensate plaintiff, John Warren, for the physical pain, if any, that he has undergone as a proximate result of the injury, if any, sustained on the occasion in question, and for his lessened capacity to labor and earn money that he has suffered in the past and in the future, if you find there will be any in the future, as a proximate result of the injury, if any, sustained by him on the occasion in question?”

While appellant urged several objections to the charge, no objection was leveled at the submission of the element in regard to the lessened capacity of appellee to labor and earn money in the future; nor did he raise the question in his motion for new trial.

We do not think the court erred in the respect called in question. Indulging all reasonable intendments, we think appel-lee’s petition was a sufficient basis for the introduction of evidence showing that ap-pellee sustained a permanent injury, consequently authorized the charge in regard to his lessened capacity to labor and earn money in the future. Davis, Pruner & Howell v. Woods, 107 Tex. 377, 180 S.W. 100, Syl. 1; Waterman Lumber Co. v. Shaw, Tex.Civ.App., 165 S.W. 127, 130, Syl. 5, 6; Citizens’ Ry. & Light Co. v. Atwood, Tex.Civ.App., 138 S.W. 1101; Dallas Ry. & Terminal Co. v. Davis, 26 S.W.2d 340.

However, as appellant did not object to the charge in the court below, on the ground urged for the first time in this Court, we must assume that he acquiesced in the charge as given. It seems to be well settled that a litigant may not complain for the first time on appeal, that a charge was not justified by the pleading. The doctrine deduced from the decisions is stated concretely in 3 T.J., p. 205, as follows : “It would seem from the authorities that the statute which requires that objections to the charge be presented to the court before it is read to the jury applies to every erroneous charge, whether fundamental error is presented or not, at least in so far as the ‘fundamental error’ is such as may be waived, and irrespective of the fact that the error may be apparent in the record. ‘The statute does not except from its operation errors in the charge which are fundamental. To so hold would ingraft an exception which the legislature did not see fit to make when the statute was enacted.’ Specifically, it has been held that in order to be availed of on appeal objections should first be presented in the trial court, before the charge is read to the jury, to errors in the charge in respect of the burden of proof, the weight of the evidence, and the measure of damages. Similarly one may not object to the form in which issues are worded when he made no objection in the trial court. And where there was no request for the separation of issues the appellant may not on appeal complain that the issue as submitted was multifarious. Nor may an objection first be made on appeal that the charge was not justified by the pleadings or the evidence.” This doctrine is abundantly supported by the decisions. Among others, see City Investment & Loan Co. v. Wichita Hardware Co., 127 Tex. 44, 91 S.W.2d 683, 685; Tanneberger v. Massey, Tex.Civ.App., 124 S.W.2d 949; Culver v. Cockburn, Tex.Civ.App., 127 S.W.2d 328; King v. Roberts, 125 Tex. 623, 84 S.W.2d 718.

It follows from what has just been said, that we are of opinion the court did not err in giving the charge objected to, hence the judgment below is affirmed.

Affirmed.


author: O’QUINN, Justice.

text:
    Frank ZUMMO et al., Appellant, v. N. W. NOLAN, Appellee.
    No. 3838.
    Court of Civil Appeals of Texas. Beaumont.
    March 27, 1941.
    G. H. Wilder, of Beaumont, for appellant.
    Morris & Bennett and S. D. Bennett, all of Beaumont, for appellee.
   O’QUINN, Justice.

This case originated in justice court. The judgment in that court was appealed to the County Court of Jefferson County, at Law, where judgment in the sum of $75 was for appellee. This appeal is from that judgment. From an inspection of the record we have concluded the judgment should be affirmed. On the authority of Associated Indemnity Corp. v. Gatling, Tex.Civ.App., 75 S.W.2d 294; Martinez v. Martinez, Tex.Civ.App., 125 S.W.2d 1119; Southwest Pump Co. v. C. F. Winfield, Tex.Civ.App., 125 S.W.2d 1119; Parker v. Miller, Tex.Civ.App., 125 S.W.2d 1119; Quality Tire Co. v. Chaddick, Tex.Civ.App., 127 S.W.2d 1040; Sagarin v. Holliday, Tex.Civ.App., 127 S.W.2d 1040; Texas & N. O. R. R. Co. v. Futch, Tex.Civ.App., 127 S.W.2d 1040; Maryland Cas. Co. v. Palmer, Tex.Civ.App., 131 S.W.2d 1119, the affirmance is without written opinion. Affirmed.


author: BLAIR, Justice.

text:
    WENCKER v. RAILROAD COMMISSION OF TEXAS et al.
    No. 9156.
    Court of Civil Appeals of Texas. Austin.
    April 2, 1941.
    Rehearing Denied April 9, 1941.
    Harry S. Pollard, of Austin, for appellant.
    Gerald C. Ma'nri-j Atty. Gen., and James P. Hart, Asst. Atty. Gen., for appellees.
   BLAIR, Justice.

This is a Rule 37 case, involving the validity of an order of the Railroad Commission refusing appellant, O. F. Wencker, a permit to drill a first oil well on a 7.8-acre tract of land as an exception to the special spacing rule applicable to the Hawkins oil field in Wood County, where Oil was first discovered on December 29, 1940. This spacing rule requires that each oil well be drilled at a distance of 466 feet from any property line and 933 feet from any completed or drilling well. The rule contemplates the drilling of one well to each 20 acres, but provides exceptions for the drilling of wells at closer distances in order to prevent waste or confiscation of property, being the same exceptions provided for in each Rule 37 promulgated by the Railroad Commission. Appellant sought a temporary injunction to enjoin the Commission from interfering with the drilling of the well, which, after notice and hearing, was denied; hence this appeal.

The map or plat attached to the application for the permit shows the ground situation to be as follows:

The facts show that in 1925 E. M. Slaughter acquired the fee title to lots 1 to 6, both inclusive, in Block 24 of the Hawkins townsite, and in 1926 he acquired the fee title to lots 7 and 8 in said Block 24 of the Hawkins townsite. These eight lots constitute Block 24 depicted on the map at the east end of the 7.8vacre tract in question, containing approximately one acre. In 1929, Slaughter acquired the fee title to a 13.6-acre tract of lánd. On August 21, 1933, he conveyed the fee title to a right-of-way for public road purposes, containing approximately 5½ acres to the State of Texas. This right-of-way strip as depicted on the map cut the 13.6-acre tract into two tracts, being the 7.8-acre tract to the north and in question here, and the 1-acre tract along the south line of the highway and the north line of the railroad right-of-way as depicted on the map. On May 14, 1938, and before the discovery of oil on December 29, 1940, when the so-called state wide spacing rule applicable to, this area provided for regular locations of oil or gas wells at distances of 150 feet from property lines and 300 feet from other wells. Slaughter executed an oil and gas lease to Paul Scott, the lease describing the 13.6-acre tract and excepting therefrom the approximately 5½-acre tract theretofore sold by Slaughter to the State for highway purposes. This lease was assigned on October 25, 1938, by Scott to appellant, O. F. Wencker. On August 13, 1940, Slaughter executed an oil and gas lease to B. F. Phillips covering Block 24 of the Hawkins townsite adjoining the 13.6-acre Slaughter fee tract on its east end as depicted on the map. On November 14, 1940, this lease was assigned by B. F. Phillips to B. F. Phillips, Jr., whose application for four wells thereon was pending before the Commission when the application of appellant for the permit in question was heard and denied. Appellant did not know that Slaughter owned Block 24 until his application for the permit in suit was filed. .On December 19, 1940, appellant applied for a permit to drill a first well upon his 7.8-acre leasehold estate, the well to be located at a point 330 feet east of the west line and midway between the north and south lines thereof, as depicted on the attached map. After due notice a hearing of this application was held by the Examiner for the Railroad Commission, on January 4, 1941, and thereafter, on January 27, 1941, the Commission entered its order denying this permit, stating therein, “that sufficient reason does not exist for the granting of such exception.” At the hearing, however, the Humble Oil & Refining Company appeared by their attorney and protested the. granting of the permit. .

The report of the Commission’s Examiner who heard the application showed that Humble objected upon the ground that the 7.8-acre tract could not be considered as a separate tract, because it was a part of the original Slaughter fee tract of 13.6 acres from which it was by oil leases voluntarily subdivided from Block 24; and upon further grounds, as follows: “Humble makes the contention that the 7.8 acres here involved and the 1 acre on which hearing was postponed must be considered together, particularly since it is their contention that according to numerous cases although the state bought the fee to the highway strip they cannot drill thereon. They contend that there is no showing made of any necessity for spacing this well 330 feet from the west line particularly since the drainage from the Rotondi well could be more effectively prevented by a well in the center than by the proposed location and that .there is now no waste taking place. They pointed out that there is now pending an application by B. F. Phillips for 4 wells on the two small lots owned by Slaughter to the east and that if the wells are not spaced carefully in the Hawkins townsite it will result in a situation like that in Kilgore.”

The Examiner ruled that the 7.8-acre tract and the 1-acre tract were separate tracts and need not be considered together, although appellant offered to have his pending application for acwell on the 1-acre tract located at a point 330 feet from its east line as depicted on the map passed upon at the time, to which Humble objected on the ground that adjacent property owners to the east did not have notice of the hearing. Counsel for appellant suggested that he was informed that Humble owned said property and that counsel appearing for Humble could so stipulate, which he apparently refused to do, and the Examiner ruled that the hearing of the application on the 1-acre tract be postponed. He further ruled that under the state wide rule of 150-300 feet existing at the time of the execution of the oil leases to Scott, and Scott to appellant, and Slaughter to Phillips, the 7.8-acre tract was capable of being developed without an exception, and proceeded with the hearing upon that theory.

The three controlling questions presented for determination are as follows:

1. Did the segregation of thé 7.8-acre Slaughter tract from the Slaughter 1-acre tract, by warranty deed conveying the fee title to the State for highway purposes in 1933, nearly eight years prior to the discovery of oil or gas in the Hawkins field, constitute a voluntary segregation in violation of the state wide Rule 37 then applicable to the area ?

2. Is appellant entitled as a matter of law to a permit to drill a first well on his 7.8-acre tract, considered as a separate tract from Block 24, which was subdivided from the Slaughter fee tract of about 14 acres by the oil and gas leases from Slaughter to Scott and from Slaughter to Phillips as above detailed?

3. Did the Commission act unreasonably and arbitrarily in refusing the permit to drill the well on the 7.8-acre tract at the point requested by appellant?

It is not controverted that the State acquired the fee title to the approximately 5%-acre tract for highway purposes in 1933, nearly eight years prior to the discovery of oil in that area or territory. Nor is there any contention that the sale of the land for highway purposes was made in order to circumvent the provisions of any oil well spacing rule then in existence. In consequence, Question “1” must be answered in the negative under the several decisions holding that the “voluntary subdivision” rule as announced by the courts and as later promulgated by the Commission by its rule of May 29, 1934, is not applicable where a tract of land is subdivided by mere fee conveyance from a larger tract prior to the discovery of oil in the area or territory where the land is situated. Shell Pet. Corp. v. Railroad Commission, Tex.Civ.App., 116 S.W.2d 439, error dismissed; Nash v. Shell Pet. Corp., Tex.Civ.App., 120 S.W.2d 522, error dismissed; Shell Pet. Corp. v. Railroad Commission, Tex.Civ.App., 120 S.W.2d 526, error dismissed.

Nor does the fact that the two tracts were created by conveyance for highway purposes of the fee to the tract which •divides them, affect the right of the owner of each segregated tract to develop it for oil, or affect the right of the same owner of both tracts to develop them separately. Such has been the uniform rule applied by the courts in the cases last cited to the conveyance of the fee to the tract which divides or segregates two or more tracts of land as between individuals. It is true as held in the case of Boone v. Clark, Tex.Civ. App., 214 S.W. 607, error refused, that a commissioners’ court does not have the authority to create a nuisance by executing an oil lease to drill a well on a public road even though the fee thereto is in the county or state; but this case is also authority for the proposition that the adjacent landowner does have the right to develop his land for oil. We know of no authority which would require an owner of land adjácent to a public road to so drill his oil well that others not adjacent will share in the oil underneath the road; nor do we know of any rule which would require such adjacent owner to compensate the State for oil that his well might drain from beneath the public road. Where the State owns the fee title to a public road it may abandon same and sell the land as provided by Art. 6673a, Vernon’s Statutes, Acts 1931, 42nd Leg., p. 170, Ch. 99; but it is manifest that the adjacent owner of land does not have to wait until that is done before he may develop his land for oil. His right to develop was summarized and stated in Dailey v. Railroad Commission, Tex.Civ.App., 133 S.W.2d 219, 221, error refused, as follows: “It has been the uniform holding of this court that the inherent right of the landowner to recover the oil beneath his land is the primary basis for the exception to pre.vent confiscation or to protect vested rights, and that such right is deemed to outweigh other consideration for which the rule was promulgated. The Supreme Court so construed the rule and its exceptions in the case of Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 99 A.L.R. 1107, holding that the exception to protect vested rights must be construed in connection with the rules of property in oil and gas.; that each owner must have a fair opportunity to recover his oil through wells located on his land; that the exercise of the police power under Rule 37 and its exceptions does not change the rule of property, but merely regulates and controls the manner of its use and enjoyment; and that the primary rule of ownership of property is still operative. And both the courts and the Commission, until the instant case, have uniformly held that since the Commission made the exception to prevent confiscation or to protect vested rights, it must apply such exception where a person owns a tract 'of land too small or irregular in shape to be drilled under the general spacing provision of the rule, no question of voluntary subdivision arising; and to permit the drilling of at least one well, which the landowner is entitled to drill as a matter of law.”

We are of the view that appellant had the right to a first well on his 7.8-acre tract, considered as a separate tract from Block 24, although said Block 24 was subdivided from it at a time when Block 24 could not itself be developed as a separate tract, or when considered as a part of the 7.8-acre contiguous tract it might not under the facts be entitled to a well. Appellant did not know at the time he purchased his leasehold estate that Slaughter owned the adjacent Block 24. At the time he purchased the lease oil had not been discovered in the Hawkins field and the state wide rule then applicable to the area provided for the drilling of wells at distances of 150 feet from property lines and 300 feet from other wells, the rule contemplating one well to a little more than two acres. The tract in question contained 7.8 acres. Its average width was approximately 260 feet and its average length was in excess of 1,600 feet.

The courts have held that a tract of land of such size and shape as to be capable of development for oil without the necessity of invoking an exception to the spacing rule, may be segregated from another tract, and that such segregation does not constitute a voluntary segregation in violation of Rule 37. Gulf Land Co. v. Atlantic Ref. Co., 134 Tex. 59, 131 S.W.2d 73, 75; Falvey v. Simms Oil Co., Tex.Civ.App., 92 S.W.2d 292.

Moreover,- in the case of Humble Oil & Refining Co. v. Railroad Commission, Tex.Civ.App., 94 S.W.2d 1197, it is held that where the Commission amended its spacing rule after a tract of land had been segregated, so as to require increased spacing distances, the right of development is determinable by the provisions of the spacing rule existing prior to the amendment, since to apply the amended rule would amount to confiscation of vested property rights legally acquired in good faith and in keeping with the spacing rule applicable at the time. And the court further held that where a tract of land has been voluntarily segregated, but has such size and shape as to substantially and reasonably comply with the regular spacing distances provided for by the applicable rule, such segregation does not constitute a voluntary subdivision in violation of Rule 37, although it is necessary to invoke the provisions for an exception in order to drill a well thereon.

Our above conclusions require that Question “2” be answered in the affirmative, because the facts show that the spacing rule in effect at the time provided for drilling of wells at distances of 150 feet from property lines and 300 feet from other wells, the rule contemplating one well on a little more than two acres; and that appellant’s tract containing 7.8 acres with an average width of about 260 feet and an average length of about 1,600 feet, is of such size and shape that it could be developed in substantial or reasonable compliance with the applicable rule, although it is necessary to invoke the provisions for an exception in order to do so.

Question “3” involves the reasonableness of the action of the Commission in refusing the permit to drill the well on the 7.8-acre tract at the point requested by appellant. The answer thereto also involves the matter of whether the court should set aside the order denying the permit, and by temporary injunction permit appellant pending final hearing to drill the well at the location requested by him. We have reached the conclusion that the court has no such power, unless the evidence shows that appellant is entitled to a well at the requested location as a matter of law. The Examiner’s report to the Commission showed conflict in the evidence or conflict of opinion as to the proper place to locate the well. This conclusion is predicated upon the rule that the matter of the location of • an oil well drilled under exception to the general spacing provisions on a tract of land is a question left to the sound discretion of the Commission; and that it was not conclusively shown on the hearing for the temporary injunction that appellant was entitled to a well at the point requested. Upon this ground alone the judgment of the trial court denying the temporary injunction must be affirmed. In view of the trial on the merits we hold that if the evidence shows that the Commission acted unreasonably and arbitrarily in refusing the permit to drill the well at the point requested, then the Commission’s order denying the permit should be set aside and it should be enjoined from interfering with the drilling of the well. If the right to the requested location is not established, then the trial court should set aside the order denying the permit to drill a well on the 7.8-acre tract; giving appellant the right to have the Commission fix the point at which the well is to be drilled.

Judgment of the trial court is affirmed, with instructions.

Affirmed, with instructions.


author: PER CURIAM.

text:
    M. J. MOORE, Appellant, v. Clyde ECKOLS, Appellee.
    No. 10934.
    Court of Civil Appeals of Texas. San Antonio.
    April 2, 1941.
    J. O. Faith, of Karnes City, for appellant.
    W. T. Scarborough, of Kenedy, for ap-pellee.
   PER CURIAM.

The case is one of fact which the trial judge resolved against appellant, upon-what is deemed sufficient evidence. No good purpose can be served by filing a written opinion, and under the now settled rule none will be filed. Page v. Hart, Tex.Civ.App., 124 S.W.2d 399; Tucker v. Higdon, Tex.Civ.App., 115 S.W.2d 973, and authorities there cited; Texas & N. O. Ry. v. Futch, Tex.Civ.App., 127 S.W.2d 1040.

Affirmed.


text:
    WOOD et al. v. GULF OIL CORPORATION.
    No. 3768.
    Court of Civil Appeals of Texas. Beaumont.
    March 25, 1941.
    Rehearing Denied April 16, 1941.
    For former opinion, see 147 S.W.2d 818,
    Pollard & Lawrence and William S. Reeves, all of Tyler, Gerald C. Mann, Atty. Gen., and Jas. P. Hart, D. D. Mahon, and Edgar W. Cale, Asst. Attys. Gen., for appellants.
    Joe S. Brown, of Houston, and Stanley Hornsby, of Austin, for appellee.
   PER CURIAM.

Appellants’ motion for rehearing was Overruled February 12. After a careful examination of the facts, it is our conclusion that, on that date, our clerk mailed to each attorney of record a post card, correctly addressed but not registered, advising him that the motion for rehearing had been overruled. This notice was duly received by each attorney of record except Messrs. Pollard & Lawrence, who, on the showing made by them, had the burden of the further prosecution of the appeal from our judgment affirming the judgment of the lower court. On the affidavit of Mr. Lawrence we find that the post card mailed to his firm on the 12th day of February was not received by them and that they did not know until March 21 that the motion for rehearing had been overruled. On March 25, 1941, Messrs. Pollard & Lawrence, appearing as “attorneys for appellants,” filed their second motion for rehearing alleging that the order overruling their motion for rehearing had. been entered without notice to them; that they had no notice of the order overruling their motion for rehearing until March 21; that the time for filing the application for writ of error had expired before they had notice that thé motion for rehearing had been overruled; that, unless the order overruling the motion for rehearing is set aside, “appellants will be deprived of due process of law guaranteed under the constitution of the State of Texas and the United States of America.” They further allege: “That no harm will be done* to any party hereto by the setting aside of such order of February 12, 1941, but that a great and irreparable damage and injury will result to said Appellants by the failure of this Court to set aside such order of February 12, 1941, and in order that justice may be done, this Court should set aside said order overruling the motion for rehearing, even though it is not convinced of the merits of appellants’ motion for rehearing, in that the Court can, if deemed wise and expedient by it, immediately after setting aside said order of February 12, 1941, enter a new order overruling said Appellants’ motion for rehearing, which will permit these Appellants to have their day in Court, which is now denied them through no fault or negligence on their part, and at the same time accord to all other parties their rights at law as found and determined by this Honorable Court.”

On authority of Henningsmeyer v. First State Bank of Conroe, 109 Tex. 116, 195 S.W. 1137, 201 S.W. 652, we are compelled to overrule appellants’ second motion for rehearing. We regret that we are not 'in position to grant appellants the relief prayed for.


author: WALKER, Chief Justice.

text:
    AUSTIN ROAD CO. v. FAISZT.
    No. 3843.
    Court of Civil Appeals of Texas. Beaumont.
    March 27, 1941.
    J. T. Adams and W. P. Sexton, both of Orange, for appellant.
    Lamar Cecil and Albert Maverick, both of Beaumont, for appellee.
   WALKER, Chief Justice.

For cause of action against appellant, appellee alleged that “on or about the 15th day of November, 1939, he was driv- ■ ing eastward on the Old Spanish Train Highway between the town of Vidor and the City of Orange (in Orange County), Texas, at about 8 o’clock P. M., and while on the right side of the middle of the highway he ran into the rear end of a parked car, license No. 159-739 Texas, which was was in use by said defendant, its agents, servants and employees and was left in the position above stated when plaintiff’s car. collided with the same, and the position in which said car was so situated at the time of the collision was placed in such position by said defendant and the agents, servants and employees of said defendant.” His prayer was for judgment against appellant in the sum of $221.55, the damages suffered by him in the collision. Appellant duly filed its plea of privilege to be sued in Dallas County, to which appellee duly filed • his controverting affidavit claiming venue in Orange County on the ground “that said collision and said acts of the defendant constituted a trespass within the provisions of Sub. 9 of Art. 1995, R.S.1925.” Appellant has prosecuted its appeal to this court from the judgment of the lower court overruling its plea of privilege. The judgment is erroneous. The facts alleged do not constitute a “trespass” within the meaning of that term as used in Sub. 9 of Art. 1995, R.S.1925. Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645; Roadway Transport Co. v. Gray, Tex.Civ.App., 135 S.W.2d 200.

The facts have been fully developed. The judgment of the lower court is reversed and cause remanded, with instructions to transfer this case to the County Court of Dallas County.'

Reversed and remanded with instructions.


author: WALTHALL, Justice.

text:
    WHITE v. KIRK et al.
    No. 4017.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 23, 1941.
    W. A. Hadden, of Fort Stockton, and Floyd Jones, of Breckenridge, for appellant.
    Johnson & Crumpton, of Fort Stockton, for appellees.
   WALTHALL, Justice.

No briefs have been filed in this court by either party. There is nothing to review.

The appeal is dismissed.


text:
    MOSSLER ACCEPTANCE CO. v. BAKER.
    No. 11126.
    Court of Civil Appeals of Texas. Galveston.
    March 20, 1941.
    Rehearing Denied April 17, 1941.
    Gammage, Gammage & Bauer, of Houston, for appellant.
    Wilmot F. Warner, of Houston, for ap-pellee.
   CODY, Justice.

This suit was filed in a county court at law of Harris County, on October 12, 1939, hy appellee against appellant to recover $229.94, being twice the amount alleged to have been collected as usurious interest by appellant on appellee’s note dated February 19, 1938. The sole contention made here is that the court erred in failing to sustain appellant’s general demurrer to ap-pellee’s petition. It is necessary, therefore, to give a summary of appellee’s petition. We shall hereafter designate appellee and appellant as they were designated in the trial court.

Plaintiff alleged in paragraph II of his petition that on February 19, 1938, he gave his promissory note to defendant. This promissory note is set forth verbatim in plaintiff’s petition. The note, as described in the petition, is shown by its face to be for the principal sum of $521.10, which must be paid to defendant by plaintiff in Houston, together with interest on any unpaid principal from the maturity thereof until paid at the rate of ten per cent per annum; and the principal is made payable in successive monthly installments of $28.95, 'the first installment maturing on March 20, 1938. The note also contains certain provisions not necessary to set forth such as acceleration of maturity, and attorney’s fees clauses, etc. And in said paragraph II, plaintiff alleged that he gave defendant a chattel mortgage on a Ford sedan (describing it) to secure the payment of the note.

In paragraph III, plaintiff alleges that he gave the note to defendant in renewal and extension of a balance of $380, then owing by plaintiff to defendant on the original purchase-money note given for the aforesaid automobile, and also, to cover the insurance premium of $26.13. Plaintiff goes on to allege that the balance of the purported principal of the note, being $114.97, was not in fact principal but was interest computed in advance and “included in the pürported principal sum of $521.10, so that the same became, according to the terms of said note as above set forth, payable absolutely and in any event, whether earned or unearned.”

In paragraph IV, plaintiff alleges he has paid the entire amount of the note “according to the tenor and effect thereof, including the aforesaid sum of $114.97 interest * * * all subsequent to the date of said note; that plaintiff has thereby paid, and defendant has received, a rate of interest in excess of ten per cent per annum upon the contract evidenced by said promissory note; that by reason thereof the defendant has become and is indebted and liable to pay to plaintiff double the amount of the interest so paid and collected but defend ant has failed to pay same, or any part thereof, to plaintiff’s damage in the sum of $229.94.”

Defendant here presents three propositions in support of its contention that the court should have sustained a general demurrer to plaintiff’s petition, the substance of which is as follows:

(1) That, as the note was fair and lawful on its face as pled by plaintiff, plaintiff had to prove that said note transaction was a subterfuge, scheme and device, to charge usury, and that both parties had this purpose in contemplation in entering the transaction, and in order to be entitled to admit proof thereof, plaintiff must first allege same.

(2) That plaintiff did not specifically plead facts to show that within two years from the filing of this suit that he had made interest payments on the note of more than ten per cent per annum for each year, and that some interest payments were made pursuant to the alleged'usurious contract.

(3) That the petition contained no allegation to the effect that plaintiff had demanded payment of his debt (in twice the amount of the usurious interest collected from him by defendant) of defendant, and that defendant had failed and refused to pay the same, etc.

As above indicated, this suit is by a plaintiff to recover from a defendant who, it is alleged, collected usury from plaintiff. The suit is brought under R.S. Article 5073. And, because the statute is penal in nature, the. plaintiff must bring himself strictly within its terms. Commerce Trust Co. v. Best, 124 Tex. 583, 80 S.W.2d 942. The article, so far as it is here material, provides that within two years after the time that a greater rate of interest than ten per cent shall have been received or collected upon any contract, the person paying the same may by an action of debt recover double the amount of such interest from him to whom it was paid.

We are unable to see in what respect the plaintiff failed to plead specific facts to show that within two years of the filing of his action to recover penalties that he had made payments on the note of more than ten per cent per annum for each year, and that such payments were made pursuant to the alleged usurious contract. In the fourth paragraph- of his petition plaintiff alleged that he had paid “the entire amount of said note, according to the tenor and effect thereof, including the aforesaid sum of $114.97 interest to the defendant at its office in Houston, Texas, all subsequent to the date of the note * * It otherwise appears from the petition that the date of the note was February 19, 1938, and .that the installments matured thereon monthly, the first maturing March 20, 1938, and the last, or eighteenth, maturing on September 20, 1939, and the petition was filed on October 10, 1939. While it may be true that the allegations do not set forth the facts with prolixity, certainly as against a general demurrer, the allegations adequately charge that within two years from the filing of the suit, defendant had collected from plaintiff interest payments on the note in question of more than ten per cent per annum. The petition does not undertake to break down the installment payments into their respective proportions of principal and interest. We fail to see, though the point is not before us, how any- good purpose could be served to so break down such installment payments even in response to a special exception, for that is certain which by mere calculation can be made certain. But, however that may be, as against a general demurrer the pleading in the respects referred to was entirely adequate to give the defendant and the court a full knowledge of the amount of usury which defendant had collected from plaintiff within two years from the filing of the petition.

While it is true that the allegations of the petition did not designate the note transaction as one which though fair and lawful on its face was in reality a scheme and device to charge usury, the application of these designations to the facts of the transaction as pled in the petition would be mere surplusage, and would constitute a mere deduction of the pleader from the facts pled. The pleadings clearly show that the principal sum of the $512.10 note consisted of two items, one being a balance of $380 due on the original ptirchase-money note given for the arttomo-bile, and the other being the sum of $26.13 for insurance premiums. While the petition did not in terms add up these two items and state that the true principal of the note consisted of but $406.13, it did state that the interest included in the note, but designated therein as principal, consisted of $114.97. The value received by plaintiff, according to his allegations, before any interest had been earned on the note was thus $406.13, .and the difference between this sum of $512.10 is interest and is by law prorated over the entire period of the loan. Adleson v. Dittmar Co., 124 Tex. 564, 80 S.W.2d 939. The allegations of the petition fully allege the facts of the note transaction; the further allegation to the effect that such transaction was a scheme or subterfuge to charge usury, being but a conclusion from the facts pleaded, could add no force to the facts alleged, and therefore the failure to allege such conclusion is of no consequence. The allegations of the petition show that by the note transaction the defendant collected from plaintiff interest on $406.13 at the rate of approximately twenty per cent per annum. In passing on a general demurrer we must take the allegations as true. Where, from the allegations, it appears that the plaintiff paid commingled principal and interest in 18 monthly payments, and in so doing paid to defendant interest at the rate of approximately twenty per cent per annum, these allegations state a cause of action to recover penalties in double the amount of the interest paid. It is the collection and receipt by the defendant of a greater rate of interest than ten per cent that gives the right, under the statute, to the person paying same an action of debt to recover double the amount of such interest. Commerce Trust Co. v. Best, 124 Tex. 583, 596, 80 S.W.2d 942. Such person is not required to further qualify himself to have an action of debt to recover penalty by demanding payment, etc.

The court did not err in refusing to sustain a general demurrer to the plaintiff’s petition.

■ Finding no error in the judgment, it is accordingly ordered'that the judgment of the trial court is in all things affirmed.

Affirmed,


text:
    WYATT et al. v. HOKE et al.
    No. 3839.
    Court of Civil Appeals of Texas. Beaumont.
    March 27, 1941.
    Rehearing Denied April 9, 1941.
    Hardway, Woodruff & Austin, of Houston, for appellants.
    O. Etheridge and A. A. Turner, both of Conroe, for appellees.
   WALKER, Chief Justice.

This suit was filed by E. I. Hoke and Mrs. Mary Sue Hoke, joined by her husband, I. D. Hoke, against R. O. Wyatt and G. C. Mostyn, sheriff of Montgomery county, praying for an injunction restraining the defendants “from selling or offering for sale, or in any manner attempting to sell” two tracts of land described in their petition under alias execution on judgments against I. D. Hoke et al. On trial to the court without a jury, judgment was entered in -favor of the plaintiffs, granting them the relief prayed for except as to a small mineral interest in one tract of the land.

In his judgment, the court found that one tract, of the land in controversy, containing 100 acres, was “the separate property of the plaintiff Mrs. Mary Sue Hoke” and though the record title was in I. D. Hoke, this land was bought by and for Mrs. Mary Sue Hoke “out of inherit-tance money received from the estate of her deceased father.” The court further found that this tract of land was the separate property of Mrs. Mary Sue Hoke, and that “her husband, I. D. Hoke, never had any interest therein.” Appellants’ assignments is that this fact finding is without support in the evidence. This proposition is overruled. I. D. Hoke testified (Q. & A. reduced to narrative) : “I did not buy this land for myself; J. W. Weisinger bought it for Mrs. Hoke, she was a Weisinger. At the time 'Mr. Weisinger bought this land for Mrs. Hoke, Mrs. Hoke and I were married. There was that little tract of land to be sold right adjoining the Weisinger property in the William Adkins survey, and Mrs. Hoke thought it would be cheap at that price, which was 100 acres. I didn’t pay for the land, I didn’t see any money, I didn’t have one cent of money in the job anywhere. It was Mrs. Hoke’s money. She got her money from her father’s estate. It was money, as I understand, that was set aside in his years of accumulation for each child. Mrs. Hoke bought this land with money she inherited from her father.”

The second tract of land in controversy contained 215.3 acres. This tract of land was inherited by E. I. Hoke, I. D. Hoke and their eight brothers and sisters from their father. Appellant claimed a lien on I. D. Hoke’s interest in this land under his judgment which was duly abstracted prior to the date of I. D. Hoke’s deed to E. I. Hoke. The court found that “about 1923 I. D. Hoke by parol sale sold his interest to E. I. Hoke in the 215.3 acres of land in the McArthur Survey described in the Paragraph III of plaintiff’s petition, being the same land described in the deed from J. K. Hoke, et al., to E. I. Hoke of date August 27, 1934, recorded in Vol. 171, page 196, Deed Records of Montgomery County, Texas; that E. I. Hoke, in 1923, paid the consideration therefor, went into possession of said land and made valuable improvements thereon, to-wit: a barn and .fences; that on August 27, 1934, said I. D. Hoke deeded said interest to E. I. Hoke carrying out said parol sale but reserving one-half of the minerals in his said interest, which I. D. Hoke interest the Court finds to be 1/10 of said tract of land.” Appellants’ assignments against this finding are to the effect that the evidence did not show whether E. I. Hoke made the improvements prior or subsequent to the parol sale to him by I. D. Hoke, and that the evidence did not support a finding that the improvements were made on the faith of the purchase; the additional point is mad.e that plaintiffs’ petition did not plead title in E. I. Hoke under the parol sale. The pleading was sufficient; having pleaded a parol sale, the following allegation was good as against the general demurrer : “That the said I. D. Hoke did not have on May 29, 1931, July 26, 1933, nor at any time thereafter any actual interest in said respective tracts of land.” The evidence supports the court’s conclusions of fact. Mr. E. I. Hoke .testified: “I own the 215 acres. I have lived on it since my father died in 1898. My mother died in 1910. My brothers and sisters sold me their interest in the land each reserving one-half of his or her mineral rights. My brother, I. D. Hoke, deeded me his part in-' 1934, reserving one-half of his mineral rights. I did not pay him any money at that time; I didn’t owe him any money at that time;- I didn’t owe him any money. I had previously paid him the amount of the purchase price in 1923. I' paid him $220.00. The agreement was that I paid him this $220.00 for his interest in the land, that was after the death of my father. The improvements have been kept up since I made the trade with I. D. Hoke; lots of improvements. I put them there. I wouldn’t take these improvements off for a thousand dollars. The improvements consisted of fences, and covering the houses and barns, I covered three houses, I could not tell how much fences. I maintained the place because I am the one that has been using it, I bought the interest of my brothers and sisters. If a fellow is going to live on a place, he wants to keep it up, he wants a roof over his head.” In our judgment, this evidence raised the issue of title in E. I. Hoke under the parol sale. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216.

It follows that the judgment of the lower court granting the plaintiffs their injunction restraining the sale of the property should be affirmed, on the court’s conclusion that I. D. Hoke had no interest in the land at the time defendant Wyatt levied his execution thereon.

Affirmed.


author: PRICE, Chief Justice.

text:
    SOUTHERN UNDERWRITERS et al. v. FRANKS et al.
    No. 4019.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 23, 1941.
    Rehearing Denied April 10, 1941.

      Will R. .Saunders, of Dallas (Henry D. Akin, of Dallas, on rehearing, of counsel), for plaintiffs in error.
    Blakley & Cooper, Haskell H. Cooper, and Hoyet A. Armstrong, all of Dallas, and Joe E.. Kelly, of Fort Stockton, for defendants in error.
   PRICE, Chief Justice.

This is an appeal sought to be perfected by writ of error from a judgment of one of the district courts exercising jurisdiction in Pecos County. The transcript was filed here on the 16th day of February, 1940. Judgment was rendered on the 18th day of October, 1939, against the Southern Underwriters and United Employers’ Casualty Company, jointly and severally, in favor of J. W. Franks. Motion for new trial was filed and same was overruled on the 19th day of October, 1939.

Plaintiffs in er-ror will be herein designated as' appellants, and defendants in error as appellees.

On the 27th day of December, 1939, the Southern Underwriters and United Employers’ Casualty Company filed with the District Court of Pecos County petition for writ of error. On the 27th day of December, 1939, appellants filed writ of error cost bond. On the 28th day of December, 1939, citation in error issued for ap-pellee Franks directed to the sheriff or any constable of Tarrant County. The sheriff’s return thereon shows that same came to hand on the 4th day of January, 1940, and was served on the same day on J. W. Franks. On the 28th day of December, 1939, citation likewise issued on said petition directed to the sheriff or any constable of Dallas County, summoning Hoyet A. Armstrong and Haskell FI. Cooper, attorneys of record for the appellee, Franks. The sheriff’s return thereon shows same came to hand on the,2nd day of January, 1940, and was served on that day.

Appellees have filed motion to dismiss the appeal on account of lack of jurisdiction of this court to hear same. Appellants have likewise filed motion to dismiss the appeal, alleging that on account of settlement and compromise of the judgment the questions involved in the appeal are moot.

It may be that a discussion of these motions is not called for. Appellants and ap-pellees each seek the same end, but on different grounds. If appellees’ motion be sustained, it, of necessity, disposes of that of appellants. The basis of appellees’ motion is that appeal was not perfected on writ of error prior to January 1, 1940.

In May, 1939, the Legislature passed the following statute (Acts 1939, p. 59, Vernon’s Ann.Civ.St. art. 2249a) :

“Section 1. No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.
“Sec. 2. All laws and parts of laws, insofar as they conflict with this Act, are repealed. Writ of error shall continue to be available under the rules and regulations of the law to a party who does not participate in the trial of the case in the trial court.
“Sec. 3. It is hereby provided that this Act shall take effect from and after January 1, 1940.”

In a proceeding on a motion in all respects similar to the motion of appellees here, this statute came before the Waco Court of Civil Appeals. That court, in substance, held that a writ of error proceeding is not perfected and the appellate court does not acquire jurisdiction over the subject matter until waiver or service of citation in error. United Employers’ Casualty Company v. Skinner, 141 S.W.2d 955. The motion to dismiss the appeal was sustained by the Waco Court. A writ of error was denied in this case by the Supreme Court.

.The facts in the above case were almost parallel with the facts here. In that case the petition was filed prior to January 1, 1940, but citation in error was neither issued nor served until after January 1, 1940. The only distinction between that case and the case we have here is that here citation was issued prior to January 1, 1940, but same was not served until after January 1, 1940. It would seem that in conferring jurisdiction both issuance and service are essential. The Act of the Legislature .which we have before quoted gave notice to all who participated in the trial in the lower court that after January 1, 1940, they would not he entitled to a review of their cases through writ of error. Popham v. Patterson, 121 Tex. 615, 51 S. W.2d 680.

■ In the case of United Employers’ Casualty Company v. McGee, Tex.Civ.App., 143 S.W.2d 653, the Waco Court’s holding, on identical facts, was the same as in United Employers’ Casualty Co. v. Skinner, supra.

■ In this case the margin is close, hut citation was not served prior to January 1-, 1940. Service was essential prior to that date to confer jurisdiction on this court.

It is ordered that the motion of appellees to dismiss the appeal be in all things sustained.

It is further ordered that the motion of appellants be dismissed.


text:
    WHITE v. FOWLER.
    No. 4015.
    Court of Civil Appeals of Texas. El Paso.
    March 27, 1941.
    R. B. Rawlins, of Mondhans, for plaintiff in error.
    Hanson Womack, of McCamey, for defendant in error.
   WALTHALL, Justice.

This is an appeal from the County Court of Upton County. The parties will be designated here as in the trial court.

The trial was before the court and judgment for the defendant, from, which this appeal has been perfected.

The plaintiff, Mrs. Iva White, a feme sole, sued the defendant, H. M. Fowler, to recover on an installment note given as part of the purchase money for certain cleaning and pressing equipment and to foreclose a mortgage on puch property executed contemporaneously with the note to secure the note. The petition is in usual form.

The defendant answered with a general denial and a special answer. A consideration of the second paragraph of his answer numbered “2nd” will dispose of this appeal. In this paragraph he pleads a material alteration of the note and mortgage without his consent in this manner: “that since said note and mortgage were given there has been a material alteration in both of said instruments by writing into and adding to said instruments the figures ‘½’ following the word ‘one’ and between the words ‘one’ and ‘months,’ which said alterations were made in sixteen different places in said instruments.” This constituted the only alteration pleaded, and it may be assumed that it was the sole alteration.

In the course of the trial the plaintiff offered her note in evidence and the defendant objected to it on the ground it showed on its face a material alteration and because of variance. The objection predicated on variance was because she had sued, to recover the face of the note, whereas it showed certain credits that had not been acknowledged.

The parties were unable to agree on .a statement of facts, and the court prepared his statement of facts, and on the offer ot the note he makes this statement with respect to what happened then: “The Court, after having examined the note, found same to have been materially altered, and no proof having been offered on the part of the plaintiff in that connection, sustained the objection.”

We are compelled to assume the only alteration the court discovered was the insertion of the figure “½” in writing according to the defendant’s pleading, and the copy of the mortgage attached to the petition. In that situation the law will presume the note and mortgage were in that condition at the time they were executed, and until the defendant discharges the burden on him to show it otherwise.

“If there is no peculiar circumstances of suspicion attached to' the altered instrument, the alteration is presumed to have been made prior to or contemporaneous with its execution. Under this rule the mere fact that there were interlinéations in the instrument would not relieve the defendants of the burden of proving that such interlineations were made after the instrument was -executed.” McKenzie et al. v. Barrett, 43 Tex.Civ.App. 451, 98 S.W. 229, 232.

“Admission of the $1,300 note in evidence was not error. Its alteration is presumed innocent, or to have been made prior to its execution and delivery. * * * This presumption is, of course, subject to rebuttal.” Lawndale Ave. Baptist Church v. Payne, Tex.Civ.App., 103 S.W.2d 1021, 1022.

Under this rule of law, which we believe to be universally adhered tó, the burden was upon the defendant to allege and prove the note and mortgage had been altered. The defendant havin’g made payments on the note, we think he should show that he had not ratified the alteration made in the note. The ruling of the court in excluding the note wrongfully relieved the defendant of that burden and, contrary to the law, placed the burden on plaintiff to show it had not been altered without the consent of the defendant.

• Where the burden of proof is improperly placed upon a material issue submitted to a jury over the objection of the party affected it is reversible error. In a trial before the court when it clearly appears, as it does here, that on a material issue the court erroneously placed the burden, the case should be reversed.

For the error of the court the case is reversed and remanded.


text:
    RICHARDSON v. UNITED EMPLOYERS CASUALTY CO.
    No. 3835.
    Court of Civil Appeals of Texas. Beaumont.
    March 28, 1941.
    Rehearing Denied April 9, 1941.

      Chas. S. Pipkin and J. R. McDougald, both of Beaumont, for appellant.
    Will R. Saunders, of Dallas, for appellee.
   O’QUINN, Justice.

This is a compensation insurance case. Ernest L. Mays was the employer, appellant, Elton Richardson, the employee, and appellee, United Employers Casualty Company, the compensation insurance carrier. On August 10, 1939, while in the course of his employment as an employee of Ernest L. Mays, appellant received accidental injuries for which he claimed compensation. He duly filed with the Industrial Accident Board his claim for total and permanent incapacity, caused by his said injuries, which duly made its final award. Appellant duly gave notice that he would not abide said award, and filed this suit in the district court of Hardin County, Texas, to set said award aside, and to recover compensation as for total and permanent disability.

Appellee, defendant, answered by general demurrer and general denial.

The case was tried to a jury upon special issues, and judgment rendered for appellant in the sum of $1,400, being for the loss of the use of an arm, at the rate of $7 per week, less a credit of $345.60 theretofore paid appellant by appellee, being for 36 weeks- at the rate of $9.60 per week, leaving the sum of $1,054.40 to be paid under the judgment. From that judgment appellant brings this appeal.

We find the record, particularly the answers of the jury to the special issues, in a very confused, inconsistent and unsatisfactory condition. By reason of this the judgment, to our minds, not reflecting an understanding of the special issues, by the jury, and showing inconsistent findings by the jury, we think the judgment should be reversed and remanded for another trial.

In answer to special issue 8, the jury found that appellant had sustained incapacity to work. In answer to special issue 9, they found that he had not suffered “any total incapacity to work.” To special issue 10, they answered that appellant’s “total incapacity to work” began August 10, 1939; and to special issue 11 they answered that the “total incapacity of appellant” would continue “throughout his . natural life.” These findings (10, 11) are in conflict with the finding in answer to special issue 9 where they answered that appellant had not suffered “any total incapacity.” The one destroyed the other.

Special issue 21, as submitted, read:

“Do you find from a preponderance of the evidence that plaintiff’s incapacity, if any, is not confined solely to a total loss of the use of the left arm?”
“In the event your answer to the foregoing issue is in the affirmative, the form of your answer should be: ‘It is not confined solely to a total loss of the use of the left arm’; otherwise the answer should be ‘No.’” The jury answered: “No.”

By this answer, under special instruction of the court, the jury found that the incapacity of the plaintiff was confined solely to the total loss of the use of the left arm. If appellant’s incapacity was confined solely to the loss of the use of the left arm, then he did not suffer total incapacity as found in answer to issues 10 and 11, and so the answer to issue 21 was in conflict with the findings in said issues. Also, in answer to issue 23, affirmatively and correctly submitted, the jury found that the injury of appellant had resulted in the total loss of the use of his left arm. This finding was in harmony with the finding' answering issue 21 mentioned supra, but was in conflict with the answer to issues 10 and 11 that appellant, by reason of his injuries, was totally and permanently incapacitated to work.

In answer 'to issue 19, the jury found that the average weekly wage of appellant was $9.60. It is without dispute that appellant was working for a daily wage of $3.20 per day, and that he worked six days per week. That would be $19.20 he received each week. He had not worked for substantially a whole year immediately before his accident, and there was no proof of another worker who had worked for substantially the whole of the year immediately preceding the accident, and so the issue as to his average weekly wage was submitted under sub-section 3 of Article 8309, Vernon’s Annotated Texas Statutes, as follows: (Special Issue 19) “From a preponderance of the evidence what sum of money, if any, do you find would be an average weekly wage for Elton Richardson, under all the facts and circumstances obtaining in this case, which would be just and fair to the plaintiff and the defendant?” The jury answered “$9.-60.” The pleadings and the evidence raised the issue. As before stated, at the time appellant was injured he was receiving $3.20 per day and was working six days per week. That was $19.20 for each week he worked. Appellee had paid him compensation for 36 weeks at the rate of $9.60 per week. It certainly can be said or presumed that appellee made full investigation of all the facts pertaining to the matter before making these payments, and because of its knowledge of the facts, made the payments. If $9.60 was sixty per cent of appellant’s weekly earnings, then one hundred per cent, or all of his earnings would be $16. This evidently was ascertained by appellee and made the basis of its compensation weekly payments. Taking this as a fact, and there is nothing in the record to deny it, the jury’s finding of his average weekly wage as a basis of computing his weekly compensation was manifest error, or evidenced confusion in the minds of the jury, they probably thinking that the $9.60 paid by appellee was the weekly wage instead of the weekly compensation rate. Appellee pleaded neither fraud nor mistake against its weekly compensation rate paid to appellant, but admits that if plaintiff had plead that rate and asserted estoppel against appellee’s denying same, it would' be bound. We think we should consider all of the facts that tend to show mistake and confusion on the part of the jury in arriving at their answer to the issue.

In his motion for a new trial, appellant alleged that the jury became confused as to the matter of his average weekly wage, upon which to base the weekly cómpensation, and because appellee had paid him $9.60 per week compensation thought that was his weekly wage and so found. We find in the record the testimony of three of the jurors who tried the case, touching upon the question of the jury’s finding of the weekly wage of appellant which tends to support appellant’s allegation relating to confusion and mistake by the jury in passing upon the weekly wage question. We think it should be deduced from the record that the jury, in -considering the question of average weekly wage of appellant, became confused and answered a sum not intended, and which was without support in the evidence.

Assignments presenting others are urged, but as they need not arise on another trial, they will not be discussed.

Because of the inconsistent ainswers of the jury to issues discussed, supra, and the apparent confusion of the jury in answering the issue as to appellant’s average weekly wage from which his weekly compensation rate should be found, the judgment is reversed and the cause remanded for another trial.


text:
    R. W. LINDSAY, Appellant, v. KIECKHEFER CONTAINER CORPORATION, Appellee.
    No. 10919.
    Court of Civil Appeals of Texas. San Antonio.
    March 19, 1941.
    Rehearing Denied April 16, 1941.
    R. D. Cox, Jr., and Strickland, Ewers & Wilkins, all of Mission, for appellant.
    George B. Banks, of Houston, for ap-pellee.
   PER CURIAM.

Affirmed without written opinion. Associated Indemnity Corporation v. Gatling, Tex.Civ.App., 75 S.W.2d 294.