text:
    EMPIRE INS. CO. OF TEXAS v. COOPER.
    No. 5112.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 5, 1940.
    Rehearing Denied March 11, 1940.

      Hutchison & Fisher, of Paris, for appellant.
    McClintock & Robertson, of Childress, for appellee.
   JACKSON, Chief Justice.

On August 25, 1933, the Empire Insurance Company of Texas, a corporation duly and legally organized under and by virtue of the laws of this State, with its principal place of business at Paris, Texas, issued to Sarah E. Cooper an insurance policy by the terms of which it agreed for certain annual premiums and upon stipulated contingencies to pay to the insured during her life certain indemnity or benefits and after her death to pay all indemnity and benefits thereunder to her husband, Dr. M. A. Cooper, if he survived her.

Mrs. Sarah E. Cooper became permanently and wholly disabled about September 10, 1938, and died on October 10th thereafter.

On December 14, 1938, Dr. M. A. Cooper, the appellee herein, instituted this suit in the District Court of Childress Comity against the appellant, the Empire Insurance Company of Texas, alleging that the policy was an unlimited life insurance policy and insured the deceased against death, in the sum of $1,000 from any and all causes and that Mrs. Cooper having died the amount was due and payable to her husband, Dr. M. A. Cooper, the beneficiary after her death in the policy.

The appellant filed its answer and asserted that it is a private corporation duly incorporated under Chapter 6, Title 78, article 4784 et seq., of the Revised Civil Statutes of 1925. It pleaded that on August 25, 1933, it issued to Mrs. Sarah E. Cooper, in accordance with the provisions of Chapter 6, Title 78, the health and accident insurance policy involved in this litigation but contends that under the provisions thereof it was liable to appellee for the sum of $300 only, which amount it tendered to him on receipt of proof of the death of the insured and also tendered said sum at the trial into the registry of the court for appellee’s benefit.

The case was submitted to the court without the intervention of a jury and judgment rendered that appellee have and recover of and from appellant the sum of $1,000 with interest thereon at the rate of 6% per annum from October 15, 1938, together with costs, and this judgment is before us for review.

The appellant by proper assignments assails the judgment of the trial court and contends that he committed reversible error in holding that the contract was an unlimited life insurance policy insuring the deceased against death in the sum of $1,000 from any and all causes because he claims the policy did not insure the deceased against death unless death resulted directly through external, violent and accidental means in one and the same accident, within ninety days after the date of such accident.

The appellee’s counter propositions are, first, that the court correctly construed the contract as an unlimited life insurance policy which insured deceased against death from any and all causes; second, that there is nothing in the contract nor in the record to show that any information was ever furnished either to the deceased or her husband advising them that the appellant was organized and doing business under Chapter 6, Title 78 of the Revised Civil Statutes of 1925 and therefore the company is estopped to deny that the policy was and is an unlimited life insurance policy.

The record discloses that the parties agreed that all premiums had been paid; that the policy was in full force and effect; that Mrs. Cooper died about the 10th of October, 1938; that appellant is the beneficiary in the policy and entitled to recover the benefits payable thereunder; that proof of death and disability was made and that the insured suffered total disability and died as the result of the disease known as chronic cholecystitis, intractable vomiting and inanition; that the appellant had tendered to appellee $300 when proof of the death of insured was made and had tendered to him that amount in satisfaction of the claim and paid the same into the registry of the court; that the'Empire Insurance Company is incorporated under Chapter 6, Title 78, Revised Civil Statutes of the State of Texas, 1925; that the negotiations between the insurer and the insured were conducted through the appellant as the agent of his wife, Mrs. Sarah E. Cooper.

Chapter 6, Title 78, authorizes not less than five persons to organize a corporation for transacting the business of accident insurance upon the mutual assessment plan and also provides that such a corporation may insure against disability resulting from sickness or disease. It gives in detail the procedure for incorporation, how the business shall be conducted, permits the creation of a reserve fund, and article 4788 of said chapter is as follows: “Any corporation which issues any certificate, policy or other evidence of interest to its members, whereby, upon his death or total disability, any money is to be paid by such corporation to such member, or beneficiary designated by him, which money is derived from voluntary contributions or from admission fees, dues and assessments, or any of them, collected, or to be collected, from the members thereof, and interest and accretions upon, and wherein the paying of such money is conditioned upon the same being realized in the manner aforesaid, and wherein the money so realized is applied to the uses and purposes of said corporation and the expense of the management and prosecution of its business, and which has no subordinate lodges or similar bodies, shall be held to be engaged in the business of mutual assessment accident insurance as contemplated by this chapter, and shall be subject only to the provisions of this chapter.”

The appellee depends on certain provisions of the policy which he urges in his brief to support his contention that the policy insured deceased against death from any and all causes, and the provisions so urged with all others we will consider.

On the back of the policy are the following words:

• “Whole Life Level . Premium Policy * * * Empire . Insurance Company of Texas Home Office: Paris, Texas.
“In the event of death or disability, notice should be given at once to the Company. It is not necessary to employ any person to collect any benefit provided in this policy. Time and expense will be saved by writing direct to the Company.”

On the first page of the policy is this language:

“A Reserve Insurance Company * * * (Incorporated Under the Laws of Texas) * * * Level Premium Policy
“In consideration of the statements and agreements contained in the application for insurance, which is made a part of this policy, and of the payment of (Issued- in lieu of'policy #2988), in advance, and the further payment of $19.25 on or before the 1st day of September in every year thereafter during the lifetime of- the insured:
“The Empire Insurance Company of Texas (hereinafter called the Company) hereby insured Mrs. Sarah E. Cooper in the manner and to the extent hereinafter provided, in the maximum sum of One Thousand Dollars.”

Printed m red ink on the face of the policy is this language: “ * * * The payment of the benefits herein provided for is conditioned upon its being collected by this Company from assessments and other sources, as provided by its by-laws. . The premium herein stated shall not be increased or raised in any manner, but shall remain as stated.”

The policy also contains a table of values and surrender options; provides that if the age of insured has been misstated that the amount payable shall be the amount the premium paid would have purchased if the correct age had been given; that if the insured commits suicide within a year the Company shall only be liable for the amount of the premiums paid; that the policy with the application constitutes the entire contract, and section 12 is as follows: “12. Benefits. This policy insures against death; or the loss of both entire hands or both entire feet, or one entire hand and one entire foot, or the irreparable loss of the entire vision of both eyes, resulting from bodily injuries effected directly, exclusively and independently of all other causes, through external, violent and accidental means, by one and the same accident, within ninety days from the date of the accident, for the maximum amount stated in the front page of -this policy; against total and permanent disability from accident or disease, so that the Insured is, and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit or following any gainful occupation, for Three-tenths the maximum amount stated in the face of this policy. All Claims are payable at the Home Office of the Company, Paris, Texas, within ninety days after satisfactory proof of claim has been filed with the Company at its Home Office.”

In order for appellee’s plea of 'estoppel to prevail it would be incumbent upon him to show that he was authorized to have the contract set aside and reformed for fraud, accident or mistake. This ap-pellee did not seek to do and neither party, under this record, will be-permitted to take a position inconsistent with the terms of the policy to the prejudice of the other. United Fidelity Life Ins. Co. v. Fowler, Tex.Civ.App., 38 S.W.2d 128. The law is that the insured and the appellee are both presumed to have known the provisions of the statute under which appellant was incorporated and to have contracted in contemplation thereof and such statute by implication is written into the contract of insurance; also, that if the proper interpretation of an insurance ■ contract is in doubt the court will adopt the construction which makes the policy conform to the requirements of the law instead of an interpretation which would impute to the insured and insurer an intent to disregard the statute. First Texas Prudential Ins. Co. v. Sorley, Tex.Civ.App., 272 S.W. 346, writ refused; 24 Tex.Jur. 701; § 25.

In Southern Travelers’ Ass’n v. Wright, Tex.Com.App., 34 S.W.2d 823, the Supreme Court, speaking through Judge Sharp, holds that the intention of the parties in an insurance policy controls and that such intention, if the contract is unambiguous, must be determined from the instrument itself; that when a policy is issued and delivered the insured is bound by its terms and in the absence rof fraud, accident or mistake the parties are conclusively presumed to have understood the subject matter and that the terms used were to be given their ordinary and accepted meaning.

This policy is not controlled by the provisions of subdivision 3 of article 4733 for the reason that Chapter 6, Title 78 provides in article 4788 that a mutual assessment company organized under this chapter and title “shall be subject only to the provisions of this chapter.” This is the effect of the holding in Richmond v. Provident Ins. Co., Tex.Civ.App., 91 S.W.2d 1180; Alamo Health & Accident Ins. Co. v. Cardwell, Tex.Civ.App., 67 S.W.2d 337; Empire Insurance Company of Texas v. Arriola, Tex.Civ.App., 80 S.W.2d 1119; International Travelers’ Ass’n v. Bettis, Tex.Civ.App., 52 S.W.2d 1059, writ denied.

The words “A Reserve Insurance Company” in its ordinary and accepted meaning, we believe, were used to designate a company which provided for “the creation of a reserve fund” as Chap-" ter 6 permits. The language “Whole Life Level Premium Policy” is explained, defined and qualified by the provisions contained in this contract that the insured shall pay the premium of $19.25 annually every year during her life and that such premium shall not be increased in any manner but shall remain as stated.

The appellee finally urges with much diligence and zeal that the punctuation contained in Section 12, above quoted, requires the interpretation that the policy insures against three separate and distinct hazards: (1) Death from any cause; (2) against loss of certain named members of the body by accident; and (3) against permanent and total disability. He asserts that the use of the semicolon after the word “death” and after the word “policy” in Section 12 separates it into three dis-. tinct and independent clauses which have no connection with each other and are independent of each other.

The writer claims but a superficial knowledge of punctuation but is afforded some consolation in ascertaining by investigation from the best authorities available that there is “much uncertainty and arbitrariness in punctuation’’; that-“The rules of .punctuation are not absolutely fixed and inflexible and all do not follow such rules as are established” ; that “punctuation is no part of the English language” and “is always subordinate to the text and is never allowed to control its meaning.” W. K. Stoddart v. John Golden et al., 179 Cal. 663, 178 P. 707, 708, 3 A.L.R. 1060, and the annotations beginning on page 1062.

The Supreme Court of Texas holds that punctuation on .account of its fallibility may be resorted to for interpretation only when all other means fail. Amory Mfg. Co. v. Gulf, C. & S. F. R. Co., 89 Tex. 419, 37 S.W. 856, 59 Am.St.Rep. 65. The Supreme Court of the United States holds that punctuation “is a most fallible standard by which to interpret a writing.” Ewing v. Burnet, 11 Pet. 41, 54, 9 L.Ed. 624. Cooley’s Briefs on Insurance, Second Edition, Volume 2, page 1007, upon the fallibility and trustworthiness of the use of punctuation to interpret a writing is in accord with the above authorities. Cyclopedia of Insurance Law, Couch, yol. 1, p. 379, § 185, announces that punctuation is always subordinate to the text and never allowed to control the meaning thereof. The conclusion drawn from the authorities is that punctuation, or the absence thereof, will not control the interpretation of a writing against the plain meaning of the instrument. If the punctuation were eliminated from Section 12 there would be little dr no basis for the interpretation of the policy urged by appellee.

We are not prepared, however, to concede that Section 12, as punctuated, requires holding that the policy issued to the deceased in the sum of $1,000 covered death resulting from any and all causes.

The most satisfactory definition we have been able to find of a semicolon is in 57 C.J. 121, which, in part, is as follows: “According to well established grammatical rules, it is a mark of grammatical punctuation, or a point of punctuation, used for marking off a series of sentences or clauses of coordinate value, or for the purpose of continuing the expression. of a thought, and never for introducing a new idea.” The remainder of the definition, in our opinion, does not change the meaning of the part quoted. “Co-ordinate” means equal, of the same order, rank, degree or importance; not subordinate. Webster’s New International Dictionary. The clauses separated by semicolons were without superiority or inferiority and not independent of each other nor subordinate to each other. Black’s Law Dictionary, Third Edition.

Inasmuch as the insured died from disease and not by accident, and neither fraud, accident nor mistake is alleged and neither party asserts that the contract is ambiguous, the intention of the parties must be ascertained from the contract and the insured is bound by its terms. Both parties are presumed to have known the provisions of the statute, which by implication is a part of the policy and we must adopt the construction which makes the policy conform to the' requirements of the statute. Appellee’s interpretation would impute to both the insured and the insurer an intent to disregard the law since under the statute the appellant was not authorized to issue an unlimited life insurance policy insuring the deceased against death resulting from any and all causes.

The judgment of the trial court decreeing appellee a recovery of one thousand dollars is reversed and here rendered that appellee have arid recover of and from the appellant the sum of $300.


source: Caselaw Access Project

author: GRISSOM, Justice.

license: Public Domain

text:
    LONGHORN DRILLING CORPORATION v. PADILLA.
    No. 1980.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 9, 1940.

      Warren P. Castle, of Dallas, and Lew-’ right, Dyer & Sorrell, of Corpus Christi, for appellant.
    J. Marvin' Ericson, of Corpus Christi, for appellee.
   GRISSOM, Justice.

Angelita Padilla sued Longhorn Drilling Corporation, in the District Court of Nue-ces County, for damages resulting from the death of her minor son who was killed as the result of being struck by a truck, alleged to have been owned by defendant and to have been driven by its agent, servant or employee while acting within the scope of his employment. From an order overruling defendant’s plea of privilege to be sued in Live Oak County, the county of its residence the defendant has appealed.

Plaintiff relied upon exceptions 9 and 23 of Art. 1995, R.S.1925, for her authority for maintaining her cause of action in Nue-ces County. The only proof connecting defendant with the tragedy was made by the introduction in evidence of a certificate from the State Highway Commission showing a receipt from the tax collector of Live Oak County, dated March 14, 1938 for a 1938 license on a 1937 truck with license No. 129-420, showing the then owner to be “Longhorn Drilling”, and on May 1, 1938, an additional license fee was paid on said truck by “Longhorn Drilling Co.”, and the testimony of a witness to the accident that the truck which struck the child, on June 15, 1938, bore said license number.

Defendant contends plaintiff wholly failed to meet the burden of proof required of her to establish that on June 15, 1938 defendant (1) then owned said truck; (2) that its driver was defendant’s agent, and (3) that such agent was at the time acting within the scope of his employment for defendant, and, therefore, the court erred in overruling defendant’s plea of privilege. It is essential to maintain the cause of action against defendant in Nueces County not only to show a trespass committed in said county, or that a “cause of action,, or a’ part thereof arose” there, but defendant’s responsibility for. such trespass, or cause of action, must also be shown. Proof of ,the fact of the commission of the trespass by defendant is as necessary as proof of the place of its. .commission. Proof of each element of thq trespass must be made and the proof must be-such as would support a finding for the plaintiff against the defendant. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Ballard v. Shock, Tex.Civ.App., 91 S.W.2d 385; United States F. & G. Co. v. Garrett, 129 Tex. 587, 105 S.W.2d 868; L. E. Whitham Const. Co. v. Wilkins, Tex.Civ.App., 90 S.W.2d 916; Coyle v. Shailer, Tex.Civ.App., 91 S.W.2d 920; 5 Tex.Jur. 774; 43 Tex.Jur. 857, 859.

“The authorities seem uniform to the effect-that the owner of a car who was not present at the infliction of the injury cannot be held liable, except it be shown that the person in charge, not only was the agent or servant of the owner, but also was engaged at the time in the business of his master.” Gordon V. T. & P. Merc. & Mfg. Co., Tex.Civ.App., 190 S.W. 748, 750, writ refused. Also see 5 Tex.Jur. 774. In order for plaintiff to maintain the suit in Nueces County-, against the defendant, among other things, she was required to prove, under the circumstances, that the truck was being driven by an agent of defendant, and that at the time of the injury he was acting within the scope of his employment. John F. Camp Drilling Co. v. Steele, Tex.Civ.App., 109 S.W.2d 1038.

In Brown v. City Service Co., 245 S.W. 656, 658, the Supreme Court said: “The Court of Civil Appeals [231 S.W. 140] held ’ that the burden of proof was upon the plaintiffs to show that the driver of the automobile did the wrong while acting within the scope of his employment, and complaint of that holding is made here. The holding of the Court of Civil Appeals on that phase of the case is correct; that the driver of the automobile was acting within the scope of his employment at the time of the injury was an element of plaintiffs’ cause of action necessary to their recovery.” See also Renfro v. Elam, Tex.Civ.App., 117 S.W.2d 133, and Waybourne v. Plains Chev. Co., Tex.Civ.App., 125 S.W.2d 344.

In Weber v. Reagan, Tex.Civ.App., 91 S.W.2d 409, 411, Chief Justice Gallagher said: “The authorities all agree that the owner of an automobile is liable to respond in damages for injuries negligently inflicted in the operation thereof when it is shown that' such automobile was being operated at the time by an employee of the owner within the scope of his employment. According to the great weight of authority, when it is shown that the defendant owned the automobile causing the injury and that the same was being operated at the time by his employee, a prima facie case is established, in the absence of testimony tending to show that such employee was not at the time acting within the scope of his employment.”

The evidence stated did not conclusively prove ownership of the truck by defendant at the time plaintiff’s child was struck. Stated differently, the tax collect- or’s certificate showing payment of license fees on the truck by defendant on March 14, 1938 and May 1, 1938 was certainly not conclusive proof that defendant still owned the truck when it struck plaintiff’s child on June 16, 1938. But “A prima facie presumption of ownership arises from the registering of the vehicle, under statutes requiring automobiles to be registered by the owner * * • 42 C.J. p. 750, sec. 240. “In an action for personal injuries caused by a motor vehicle, the burden is on plaintiff to establish the identity of the vehicle which caused the injury, and to show that defendant was the owner, where such facts are material to a recovery. But a presumption that a particular person is the owner may be based on the fact * * that it is registered in his name, that the tag number corresponds to the number of a car registered in his name, that he holds the license * * * But these inferences or presumptions as to .ownership may be rebutted * * Under the general rule, where it is shown that a vehicle once belonged to defendant, a presumption arises that the ownership continues. While this presumption may be rebutted, ownership is presumed to continue until a change is affirmatively shown by defendant.” 42 C.J. p. 1208, 1209, sec. 1007.

In order for plaintiff to bring her case within exceptions 9 and 23 of Art. ,1995, it was incumbent upon plaintiff to discharge the burden of proof resting upon her to establish not only that a trespass was committed in Nueces County (subd. 9) and not only that a part of her cause of action against the defendant corporation arose in Nueces County (subd. 23), but she was further required to establish, under the circumstances of this case, that the truck which struck her child was owned by defendant, that its driver was an agent of defendant, and that such driver was acting within the scope of his employment at the time. John F. Camp Drilling Co. v. Steele, Tex.Civ.App., 109 S.W.2d 1038. Until the plaintiff established prima facie the liability of defendant it was not incumbent upon defendant to prove anything. “A defendant cannot be called on to produce evidence where the plaintiff has failed to bring sufficient .proof to prima facie sustain his cause of action. 2 Wharton on Evidence, § 1268.” Texas & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 456, 84 S.W. 1049, 1052; Davis v. Castile, Tex.Com.App., 257 S.W. 870; Missouri, K. & T. Ry. Co. v. Smith, Tex.Civ.App., 101 S.W. 453; Sullivan v. Cranz, 21 Tex.Civ.App. 498, 52 S.W. 272, writ refused. • Since defendant was under no duty to present evidence, no presumption can be indulged against defendant because of its failure- to present evidence • relative to whether or not the driver of the truck was its employee and at the time in question was acting within the scope of his employment. It has been held, under similar situations, that proof defendant was (1) the owner of the truck and (2) it was being driven by the defendant’s agent or employee, authorized a presumption, in the absence of evidence to the contrary, that (3) such agent was acting within the scope of his employment. Houston News Co. v. Shavers, Tex.Civ.App., 64 S.W.2d 384, 386, writ refused; Texas News Co. v. Lake, Tex.Civ.App., 58 S.W.2d 1044, 1045, writ dismissed; Studebaker Bros. Co. v. Kitts, Tex.Civ.App., 152 S.W. 464; Harper v. Highway Motor Freight Lines, Tex.Civ.App., 89 S.W.2d 448, writ dismissed.

However, we have in this case only the presumption of ownership of the truck by defendant, that fact being presumed from proof that prior to the accident defendant registered and paid the license fees on the truck in question. However, whether the matter of ownership be treated as resting upon a presumption or as otherwise established, the court was not authorized to presume that the driver of the truck on the occasion in question was the agent of the defendant and then to further presume that such agent was at the’time acting within the scope of his employment. A presumption of fact cannot rest upon a fact presumed. But the fact relied upon to support a presumption must be proved. Green v. T. & P. Ry. Co., 125 Tex. 168, 81 S.W.2d 669, 674; Ft. Worth Belt Ry. Co. v. Jones, 106 Tex. 345, 166 S.W. 1130, 1132; Community Natural Gas Co. v. Henley, Tex.Com.App., 24 S.W.2d 10; Texas Unity Oil Co. v. Dolman, Tex.Civ.App., 8 S.W.2d 815, 817, writ refused.

From the conclusions stated, it follows we aré of the opinion plaintiff failed to prove facts essential to establish her right to maintain this suit in Nueces County. It is not apparent that the case is fully developed, and, under the circumstances, we think the judgment of the trial court should be and it is hereby reversed and the cause remanded.


author: NORVELL, Justice.

text:
    RAMSEY et al. v. McKAMEY et al.
    No. 10676.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    Rehearing Denied March 13, 1940.

      Walker & Hammett, of Lampasas, for appellants.
    R. H. Hamilton, of Port Lavaca, and E. B. Ward, of Corpus Christi, for appel-lees.
   NORVELL, Justice.

This is a suit filed December 24, 1938, by Mrs. Elma Ramsey and others, appellants, against T. A. McKamey and John S. Mc-Campbell, appellees, seeking a re-partition of certain lands in the Juan Armendaris Survey, San Patricio County, Texas. The trial court sustained a general demurrer to the petition and upon appellants’ refusal to amend, dismissed the suit, hence this appeal.

In the stricken petition it was alleged, that during the year 1910 a judgment was entered by the District Court of San Patricio County, in cause No. 1410, on the docket of said court, and that in 1915, in cause No. 1741, the same court entered another judgment. Copies of the proceedings in both cases were attached to the petition and made part thereof for all purposes.

From these exhibits, it appears that in cause No. 1410, J. W. and T. A. McKamey brought a suit against Southwestern Land and Cattle Company for partition of that part of the Juan Armendaris Survey lying south and west of Rincon Bayou. The Commissioners of Partition found that the tract of land involved contained 540 acres, and divided the same into two tracts, purporting to contain 270 acres each. One tract was awarded to the Land and Cattle Company and the other to the McKameys.

It also appears that in cause No. 1741, J. W. and T. A. McKamey brought a second suit for partition of the property, naming as defendants, John S. McCampbell and certain minor children, as well as the Southwestern Land and Cattle Company. The court found that the parties to the suit were the sole owners of the tract involved and entitled to partition thereof. Commissioners of partition were appointed, wha “found upon survey that said tract of land contains 540 acres,” which was divided into three tracts, each of which was’ described by metes and bounds. Tract No. 1, supposedly containing 72 acres, was awarded to the minor defendants, Tract No. 2, said to contain 198 acres, was awarded to the Mc-Kameys, and Tract No. 3, said to contain 270 acres, was allotted to Southwestern Land and Cattle Company. The Commissioners’ report of partition and division was duly approved by the court.

■ Appellants plead that they are the owners of Tract No. 3, awarded to the Land and Cattle Company; and that appellee T. A. McKamey owns tracts No. 1 and 2, except for a royalty interest in 72 acres owned by appellee McCampbell, by virtue of a conveyance from McKamey.

Appellants also pleaded that the Juan Armendaris was a junior survey to certain adjoining surveys, and that the calls of the senior surveys limit the lines of the Ar-mendáris Tract; that the County Surveyor of San Patricio County, on February 15, 1938, made a resurvey of that part of the Armendaris Survey lying south and west of Rincon Bayou, which disclosed that said tract contained 377.4 acres, rather than 540 acres.

Appellants did not plead that they were ousted from the lands awarded to Southwestern Land and Cattle Company, by the assertion of paramount title on the part of the owners of the senior surveys. For this reason it seems that no cause of action was stated upon the expressed or statutory warranties of the former partition decrees.

O’Conor v. Sanchez, Tex.Com.App., 229 S.W. 309.

Appellants further plead that no actual survey was made upon the ground at the time of the two partitions; that the fact that the tract involved included only 377.4 acres instead of 540 acres was not known to the court, nor to any of the parties at the time the former partitions were made; that such fact was not discovered until the 1938 survey; that none of the parties had occasion to locate the lines of the tracts set aside by the partitions upon the ground, as the same were unfenced and no improvements were situated thereon; that there existed no fact which would put appellants upon notice that a shortage existed. Appellants say by way of conclusion that the former partitions “were based upon a mutual mistake of fact.”

Appellants pray that commissioners be appointed to re-partition the property and that one-half of 377.4 acres be set aside to them. Appellants do not pray that the former judgments be set aside or vacated.

The doctrine of res judicata may be invoked by general demurrer when a petition discloses that the matters therein set 'out have been adjudicated by a previous judgment. 26 Tex.Jur. 330.

The exhibits attached to the petition here show that a certain specified tract of land, definitely described by metes and bounds, was allotted to appellee and his predecessors in title, by former judicial decrees. The decree of 1910 may have been void for lack of necessary parties. Such an inference may be drawn from the fact that a second suit was filed in which additional parties were made. The 1915 decree (cause No. 1741), however, as pleaded by appellants, was at the most only voidable.

As long as that decree stands, appellants cannot obtain the relief prayed for herein. The parties to the present suit are the same as, or in privity with, the parties to cause No. 1741, and therefore the judgment and 'order in that case cannot be attacked collaterally. 25 Tex.Jur. 681; Burton v. McGuire, Tex.Com.App., 41 S.W.2d 238; 32 Tex.Jur.159.

It seems that one of the primary tests of whether or not a subsequent suit is a direct attack upon a former judgment is the nature of the relief sought. 25 Tex. Jur. 586. Here the prayer of the petition does not request that the judgment rendered in cause No. 1741 be set aside, and the general demurrer to the -petition might well be sustained upon that' theory. Considering the petition as in' effect requesting that the judgment in cause No. 1741 be vacated, the sustaining of the demurrer was.correct upon another theory.

Appellants appealed . to a court of equity for relief against a judgment over 23 years old, saying by way of' conclusion the said judgment was “based upon a mutual mistake of fact as to the subject matter involved.” In order to invoke -the aid of a court of equity for the correction of á judgment entered as a result of “mutual mistake,” appellants must necessarily plead facts showing that the mistake involved did not result from negligence attributable to them or their privies. 25 Tex.Jur. 599. They must also plead, facts constituting a legal excuse or reason for the long delay in bringing this suit. We have herein-above set out the facts pleaded with reference to this matter, and giving every reasonable intendment to the allegations of the petition, as we must do on general demurrer, it is clear that appellants have failed to meet this burden, and their suit is barred by the éqúitable doctrine of laches. Vigi-lantibus non dormientibus aequitas sub-venit.

The judgment of the trial court is affirmed.


author: FUNDERBURK, Justice.

text:
    COMMERCIAL STANDARD INS. CO. v. NELSON MORTG. CO. et al.
    No. 1978.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 9, 1940.
    Rehearing Denied March 8, 1940.

      Seabury, Taylor & Wagner, of Brownsville, for appellant.
    Abney & Whitelaw, C. K. Richards, arid A. B. Cole, all of Brownsville, J. M. Moth-ershead, of Harlingen, West & Hightower, of Brownsville, and P. F. Dominy, of San Benito, for appellees.
   FUNDERBURK, Justice.

Nelson Mortgage Company, a corporation, brought this suit against Grant E. Lovett and Commercial Standard Insurance Company, a corporation, to recover items of indebtedness representing the sale price of citrus fruit purchased by Grant E. Lovett as a “dealer” under the provisions of Vernon’s Ann.Civ.Statutes, Art. 118b. The suit as against Commercial Standard Insurance - Company, the surety upon the bond of said dealer, provided for in section 4(b) of said Art. 118b, was upon' the said bond. Numerous persons intervened, or were made parties, each asserting a claim against Grant E. Lovett and his said surety for the price of citrus fruit sold and 'delivered to Lovett.

Hartford Accident & Indemnity Company and Earle Brown, Jr., were made parties defendant .by the original plaintiff upon an alternative claim to the effect that said defendants/constituted a partnership to whom the citrus fruit was sold.

In a nonjury trial the court adjudged that plaintiff Nelson -Mortgage Company take nothing against Hartford Accident & Indemnity Company, and dismissed the suit as against one Bruce (H. B.) Stone. Grant E. Lovett was adjudged to be liable to plaintiff and the other parties named in the judgment in stated amounts, aggregating $4,533.59. Commercial Standard Insurance Company was adjudged to be liable pro rata .upon the same claims of the same parties to the aggregate amount of $4,428.-96. ($571.04 of'the maximum liability upon the $5,000 bond had been discharged by payment of such amount to Bruce Stone, dismissed from the suii as aforesaid.) Judgment over was awarded the Commercial Standard Insurance Company against Grant E. Lovett, the judgment containing other provisions not deemed necessary to mention.

The honorable trial judge, pursuant to request, filed conclusions of fact and law which, being objected to with request for “further additional and amended findings”, were supplemented by additional, and in some respects, amended findings.

In the original findings were . two as follows:

"HI. * * * on December 24, 1937 there was formed a co-partnership known as the Grant E. Lovett Trust and * ⅜ * this partnership assumed liabilities of Grant E. Lovvett and acquired the assets of Grant E. Lovett.”
“IV. On and after December 24, 1937, all purchases of citrus fruit by Grant E. Lovett were made by him as between himself and his partners in behalf and for the benefit of the Grant E. Lovett Trust, but I find that ⅝11 of the grower-sellers of citrus fruit'to Grant E. Lovett, plaintiff and in-terveners herein who testified on the trial of this case did not know of the formation of said partnership and in making their sales to Grant E. Lovett thought they were making their sales to him as an individual.”

These findings- yvere objected to on the ground, among others, that the “overwhelming preponderance of the evidence * * * shows that the Grant E. Lovett Trust was attempted to be organized but that nothing was accomplished further than the signing of the agreement and the opening of a set of books and that shortly after the signing of such agreement it was discovered that such Trust could not secure a bond as a citrus fruit dealer, and that the business simply continued to be operated by Grant E. Lovett without regard to the trust agreement.” The' additional findings were not conclusions of fact, as distinguished from a statement of evidence supporting such conclusions, as is contemplated by the law providing for the filing, in non-jury cases, of the trial judge’s conclusions of fact and law. No objection, however, was made to the additional findings upon this ground, and we believe that, considering the original findings quoted above, said objections thereto and the additional findings of evidentiary facts, a conclusion of fact is necessarily implied to the effect that none of the citrus fruits, the sale of which is involved in any of the claims in this suit, was sold to Grant E. Lovett Trust, or to anyone, other than Grant E. Lovett, the licensed and bonded dealer.

Only the Commercial Standard Insurance Company has appealed.

The first ground.upon which a reversal of the judgment is sought involves the question of whether appellant was discharged for the reason as contended, that after the execution of the bond as surety for Grant E'. Lovett, an individual, he formed a partnership to-which all the citrus fruit involved, except a very small-amount, was sold, and for the payment of which the copartnership became liable. A part of the foregoing statement of the case anticipates our opinion that the record does not raise this question. Taken alone, the above-quoted original findings of the court would, perhaps, do so. In our opinion, those findings were superseded by findings to the contrary effect. The additional, findings, if regarded only as findings of evidentiary facts, leave no escape from the conclusion that such evidence establishes that all sales of citrus fruit were made to- Grant E. Lovett and not to Grant E. Lovett -Trust.

Nelson Mortgage Company, the original plaintiff, it is true, alleged in part that the sales made by, or for, it were made to Grant E. Lovett Trust, or partnership composed of .Grant E. Lovett and Earle Brown, Jr. In the alternative, however, it alleged that such sales were made to Grant E. Lovett, the individual. It is upon this alternative cause of action that the judgment awards recovery. When inconsistent facts-are alleged in the alternative as a basis for recovery upon different causes of action, the right to do so would be defeated if the inconsistent facts ■ were to be taken as destructive each of the other.

An interesting' question is presented regarding the allegation of the plaintiff’s petition that “The defendant Commercial Standard Insurance Company is a Texas corporation with its principal office in Tar-rant County, Texas.” Said'allegation was attacked by special exception on the ground that it failed to allege “that the defendant Commercial Standard Insurance Company is duly incorporated under the laws of the State of Texas.” Error is assigned upon the action of the court in overruling the special exceptions. This presents : a very old, and often recurring, question in this state, which, it would seem, ought to have been settled long ago. ■ In the Bank of Alabama v. Simonton, 2 Tex. 531, and in Holloway v. M. E. & P. Ry. Co., 23 Tex. 465, 76 Am.Dec. 68, the law of this state, as it then existed, was interpreted.to-the effect, that in á suit by or against a corporation in its corporate name, it was necessary to allege and prove that such party was a corporation. There was no question suggested in those cases that the mere allegation that the party was a corporation would be insufficient. Revised Civil Statutes 1879, Art. 1190, provided that, “In pleading the charter or act of incorporation of any corporation, public or private, organized under the laws of this State, it shall not be necessary to set out at length such charter or act of incorporation, but it shall be sufficient to allege .that such corporation, if it be of the adverse party, was duly incorporated, and if it be of the party pleading it, or of a third party, the date and manner of incorporation shall be stated.” By Act approved April 17, 1883, Acts 1883, c. 101, p. 103, the above was amended to read: “In pleading the charter or act of incorporation of any corporation, public or private, it shall not be necessary to set out at length such charter or act of incorporation, but it shall be sufficient to allege that such corporation was duly incorporated, and such allegation by either party shall be taken as true, unless denied by the affidavit of the adverse party, his agent or attorney.” Obviously, this amendment wrought two changes in the pre-existing law: (1) it abolished the distinction between such a pleading as referable to the adverse party, and as referable to the party pleading; -and (2) it obviated the necessity of the proof of -the fact of incorporation,- unless denied by the affidavit of the adverse party, his agent or attorney.

, In Houston Water Works, v. Kennedy, 70 Tex. 233, 8 S.W. 36, the plaintiff alleged that the defendant was a corporation, but did not allege how incorporated. The sufficiency of the petition was questioned by special exception as follows: “Because it (the petition) fails to state by what authority this defendant was incorporated, or that it was incorporated by any authorized power.” The action of the court in overruling the special exception, being presented as error, was disposed of by the .Supreme Court with this statement: “This matter is regulated by statute, which does not require, when a corporation is defendant, that the petition should set out the charter, or allege by what authority the defendant was incorporated” — citing General Laws 1883, p. 103, being the amendment above quoted. In the light of the earlier judicial decisions, it seems clear to our minds that the Supreme Court simply recognized no distinction between an allegation that the defendant was a corporation and that it was duly incorporated. Upon this view this court in Texas & P. Ry. Co. v. Bufkin, Tex.Civ.App., 46 S.W.2d 712, having the question squarely presented, reached the conclusion that a pleading was not subject to special exception which alleged that a party was a corporation, but omitted to allege that it was duly incorporated. Woodson Mill & Elevator Co. v. Graham Mill & Elevator Co., Tex.Civ.App., 57 S.W.2d 943, and authorities cited.

It is believed that the correctness of said decisions is dependent upon the question of whether an allegation that a named party is duly incorporated presents for determination any issue not presented by an allegation that such company is a corporation. An allegation that a named party is a corporation is an allegation of a provable fact. An allegation that a party is a corporation, duly incorporated,, if anything more, is an allegation of a conclusion of law, or, at least a conclusion of law and fact.

It may be conceded that the Legislature has the power to authorize the allegation of a conclusion of law and to declare as an effect thereof that a party thereby be conditionally relieved of the burden of proof of certain facts. A familiar example is R.S.1925, Art. 2007, relating to pleas of privilege.

But, as applicable .to the question here, if, in addition to the fact that a' party is a corporation, there could be no issue of due incorporation, then it would seem certain that an allegation of due incorporation would neither add to, nor detract from, the allegation that a party is a corporation. Granted that a party is a corporation, then there could be no issue as to whether the party was duly incorporated except in a suit by the state brought to establish by judgment that a corporation was not duly incorporated. “The general rule” says Corpus Juris, “supported by an almost unanimous concensus of judicial opinion and sometimes expressly declared by statute is that the legality of the existence of a de facto corporation can be questioned only by the State in a direct proceeding and cannot be collaterally attacked or litigated in actions or proceedings between private individuals or other corporations, or between them and the alleged corporation itself.” 14 C.J. p. 204, sec. 216. As supporting the text, many Texas Supreme Court decisions are cited.

It seems, therefore, it would be an unnecessarily strict construction of the law, which would impute to the Legislature the intention that in lieu of an allegation of a fact the pleader must substitute an allegation of a conclusion of law, or of mixed law and fact, tendering no justiciable issue, as the condition upon which the pleader is to be relieved of the burden of proving the alleged fact in the absence of affidavit, etc. It is our view, as seems to have been held in the very early cases above mentioned that an allegation that a party is a corporation is sufficient and will relieve the pleader of the necessity of proving the allegation except under the conditions prescribed by the statute. If due incorporation be not an issue additional to the issue of the fact of incorporation, then the last-named fact implies due incorporation.

Even if we are incorrect in this view, we think there is no error shown because one of the interveners alleged that appellant was duly incorporated and no affidavit was filed. The admission of due incorporation involved in that proceeding is not, in our opinion, confined to the controversy between the particular intervener and the appellant. The general rule is that evidence, — and the same would, we think, apply to conditions dispensing with evidence —-is applicable alike tó all parties to the same suit, unless it be expressly and specially limited in its application.

One of the interveners — Earle Brown, Sr. — purporting to act for himself, and as “agent and trustee” for A. Rodger Chamberlain and Walter C. Seelye,” sought recovery of $714 alleged to be due by Grant E. Lovett for citrus fruit sold the latter by intervener and his said principals, acting through their trustee Earle Brown, Jr. To this pleading it was answered by appellant, in part, that “intervener does not sue by written authority of A. Rodger Chamberlain and Walter C. Seelye; that A. Rodger Chamberlain .and. Walter C. Seelye are not and do not appear in the petition of intervention of defendant Earle Brown, Sr., as parties to this suit.” It was prayed that wherefore “he be dismissed with his costs.” The judgment recites that all pleas in abatement and exceptions were overruled.

If Earle Brown, Sr., had authority to bring the action as agent and trustee for Chamberlain and Seelye, it is immaterial that he may not have had authority to authorize Earle Brown, Jr., to act as agent or trustee for Chamberlain and Seelye. Granted that Earle Brown, Jr., may have been without authority to sell citrus fruit of Chamberlain and Seelye, a suit by them for the price thereof would constitute a ratification of such unauthorized action and render it immaterial that he may have acted without sufficient authority in making the sales.

The only question presented for our decision is, not whether Earle Brown, Sr., actually had authority to maintain the suit in his own name as agent and trustee of Chamberlain and Seelye, but whether his pleading was insufficient as a matter of law to authorize him to maintain such action. In our opinion, the pleading was sufficient. If Earle Brown, Sr., in fact had insufficient authority as agent or trustee of said other parties, that was a 'matter, under proper plea in .abatement, to be shown by the evidence, the burden being upon appellant, or to be taken advantage of in the admission of evidence. Earle Brown, Sr., alleged his authority to bring the suit as being that of an agent'and trustee of the other parties. It was unnecessary for him to plead the evidence necessary to establish that allegation.

The -proposition by which it is contended that the judgment, insofar as it awarded recovery in behalf of Earle Brown, Sr., and said other persons for whom he sued as agent and trustee, was unwarranted because there was no evidence of Brown’s authority to sue upon the causes of action of A. Rodger Chamberlain and Walter C. Seelye, we think should be overruled because we are not pointed to any deficiencies in the evidence. It cannot be said, as a matter of law, that any express or necessarily implied authority must be affirmatively shown. To the general rule that one person may not sue in his own name upon a cause of action of another, there are some exceptions. One is, “where the agent has an interest in the 'subject-matter of the contract.” Tinsley v. Dowell, 87 Tex. 23, 26 S.W. 946, 948. We do not think it is our duty to go through the statement of facts to discover, if possible, that Earle Brown, Sr., had no such interest in the subject matter of the suit, as would authorize him to bring the suit for said parties as well as himself.

The other questions are believed to be controlled by our conclusions already stated. In our opinion, the judgment of the court below should be affirmed, and it is accordingly so ordered.


author: DUNKLIN, Chief Justice.

text:
    TEXAS INDEMNITY INS. CO. v. STAGGS.
    No. 13592.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 23, 1940.
    Rehearing Denied March 22, 1940.
    ■ W.-P. Z. German, of Tulsa, Okl., Robert M. Turpin, of Midland, and Bert King and Harold Jones, both of Wichita Falls, for appellant.
    Napier & Napier, of Wichita Falls, for appellee.
   DUNKLIN, Chief Justice.

The Texas Indemnity Insurance Company has appealed from a judgment in favor of Mrs. Dovie Staggs, surviving wife of H. T. Staggs, deceased, for herself and minor children, as compensation under provisions of the Workmen’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq., of this State.

For convenience, Mrs. Staggs will be designated as plaintiff, and the Insurance Company as defendant; which is the reverse of their positions in their pleadings, under provisions of the Workmen’s Compensation Law.

H. T. Staggs was an employee of the Skelly Oil Company, who carried a policy of insurance with appellant, as required by that Act. He was an engineer for that company, supervising the engines used in the company’s pumping plant and keeping them in running order. It did not require all his time to perform his work, but he was required to be in and out of the pumping plant to see that the engines were working properly for 24 hours a day. The main plant of the Skelly Oil Company was located in the town of Burkburnett, where A. H. Bazell, its president, resided. The plant where Staggs was employed was designated as the “booster plant” and was located five or six miles from Burkburnett. Staggs worked nearly all night of October 31st, 1935, repairing a slight leak in the exhaust pipe of engine No. 10 that he had discovered was not properly functioning. He went from the plant to his home, situated on the company’s premises, about eight o’clock of the morning of November 1st, 1935, and there had breakfast with his family. Shortly after finishing his breakfast he left his home to resume his work, and about 9:45 o’clock of the same morning he was found dead,' lying on the floor of the office of that plant. About 9:30 o’clock of that morning A. H. Bazell, superintendent of the Skelly Oil Company, called Staggs over the telephone from the Burkburnett office to inquire whether or not he had succeeded in putting engine No. 10 in work-ing order. After a rather prolonged conversation between them, Bazell gave Staggs some instructions that called for a reply, to which Staggs made no reply. Some fifteen minutes later he put in another call for Staggs and .receiving no reply 'he sent a man to investigate, through •whom he later learned that Staggs had been .found dead.

We quote the 'following statement from -appellant’s brief, which is not challenged by .appellee: “The facts evidence that the engine was located in a large corrugated iron building about seventy by sixty feet. Exhibit No. 12 is a photograph taken at the .plant showing .the distance from the -plant to the house in which Staggs resided, about 600 feet. Exhibit No. 11 shows the office, with its relation to the plant. There are some half dozen ventilators 7 by 1 feet in the top of said building, and its walls were some twelve feet high, with a double gable or half pitched .roof.; that there were some six windows in the building, two doors in the south, two doors in the east, and one door each in the north and west of said building, and one south door and one east door were open at the time Staggs’ body was found. The building was rather an open one, the corrugated iron not going down to the ground; that some ten pipes entered the building, and the corrugated iron was cut away for such pipes, and the iron wás not fitted to such pipes. All around the building the corrugated iron was simply put up against the frame, which left an air space at the frame because of the corrugation. From the engine upon which deceased Staggs had been working to the south door of the engine room, same being the nearest door to the office building, was some forty feet, and the east door of the engine room was some sixty feet from the office. The office was some six by twelve feet in dimension, and was just east of this corrugated iron building which housed the engines, but ‘was some twelve feet away from the engine building. It was approximately twenty-five feet, however, from the south door of the corrugated iron building to the door of the office. The office is just east of the corrugated iron building, but its front is a little further south than the front of the engine building. At the time Staggs? - body was discovered, the wind on that November morning was from the south. It was real cool, and the wind was blowing across his body in the open doorway of the small office building. His body was located right near or down beneath the telephone on which he had been talking to his foreman, Bazell; the telephone receiver, however, was hung up.” -

This suit was instituted by' Mrs. Dovie Staggs, wife of the deceased, for the benefit of herself and three minor children, to recover compensation for the death of her husband, H. T. Staggs. It was-alleged-that while engaged in the duties of his employment he was -poisoned by inhalation-of carbon monoxide gas that escaped from -an ■engine while he was repairing it, and- also that he fell and. struck his head on sope hard object .while descending stair .st^ps after he had finished his breakfast on the morning of November 1st, and was returning to his work. Following those allegations plaintiffs pleaded as follows: “And the plaintiffs allege that said fall and the inhalation of the carbon monoxide gas, both and each caused and contributed to the death of the said H. T. Staggs, deceased.”

Following are findings by the jury in answer to special issues, together with an instruction by the court pertinent thereto:

“Instruction C: You are instructed that the term ‘producing cause’ as' used in this charge, is that cause which, in a natural and continuous sequence, produces the death in issue, and without which the death would not have occurred.
“An accidental injury is an injury as defined above which is caused by a sudden, undesigned, unforeseen and unexpected occurrence of calamitous nature being definite as to time and place.
“1. Do you find from a preponderance of the evidence that the deceased, H. T. Staggs, fell while descending the steps of his house on the morning of November 1st, 1935? Answer: He did.
. “2.. Do you find from a preponderance of the evidence that the deceased, H. T. Staggs, sustained accidental injury to his head in so falling, if he did fall ? Answer: He did.
“3. Do you find from a preponderance of the evidence that such injury, if any, was a producing cause of the death of the said H. T. Staggs, deceased? Answer: Yes. ■
“4. Do you find from a preponderance of the evidence that such injury, if any, was sustained in the course of his employment with Skelly Oil Company? Answer: Yes.
“5. Do you find from a preponderance of the evidence that the deceased, H. T. Staggs, inhaled carbon monoxide gas on or about the 1st day of November, 1935, in the employer’s pumping station? .Answer: ,He did.
“6. Do you find from a preponderance of the evidence that the said H. T. Staggs, deceased, sustained an accidental injury as the result of the inhalation of such gas, if any? Answer: He did.
■ “7. Do you find from a preponderánce of' the evidence that such injury, if any, was a producing cause- of the death of the said H. T. Staggs,' deceased ? Answer: Yes.
“8. Do you find from a preponderance of the evidence that such injury, if any, was sustained in the course of his employment while in the employ of Skelly Oil Company? Answer: Yes.
“9. Do you find from a preponderance of the evidence that the death of the said H. T. Staggs was not caused solely by disease? Answer: It was not caused solely by disease.”

It is insisted by appellant that the evidence wás not sufficient as a matter of law to show that the death of Staggs was caused by either gas poisoning or by an injury to his head, resulting from a fall, as alleged in plaintiff’s petition and as found by the jury.

An autopsy was performed by Dr. D. R. Venable at the request of Dr. Jones, acting for the insurer but who took no part in that operation. Dr. Venable found the cerebral hemorrhage was caused by a rupture of the caretoid artery,, which was sclerosed and high blood pressure, from which Staggs had suffered, theretofore, plus the degenerated condition of the surrounding brain tissues, and he found no evidence indicating poison from carbon monoxide gas as a cause of the hemorrhage; and further, that such poison,would have caused death immediately after it was inhaled. According to the testimony of Dr. L. D. Parnell, who did not participate in the autopsy but who was duly qualified to give his opinion as an expert, if Staggs had inhaled carbon monoxide gas while working on the engine in question during the night of October 31st, in sufficient amount to produce death, he most likely would have died therefrom within a few minutes and long before he. went to his office after eating his breakfast, although it could have caused his death weeks, months or years, later if the poison is inhaled in only small quantities. B.ut according to testimony of both those physicians, fatal poisoning from, carbon monoxide gas is always evidenced: by a reddish discoloration over the upper-part of the body. Dr. Venable testified: positively and unequivocally that there was. no such discoloration on the body. Several, lay witnesses who viewed the body testified they did not notice any such discoloration. Mrs. Staggs alone testified that his skin was of a pink color, although she viewed, his body from the door and immediately after hearing of the death. A. H. Bazell,. the superintendent, testified that after learning of the death he went from Burk-burnett to the pumping plant and found gas escaping in small quantities from engine No. 10, on which Staggs had worked during the night of October 31st. Mrs. Staggs testified that when she went to the engine house after learning of the death of her husband, she detected the odor of gas.

In appellant’s brief, reference is made to the foregoing testimony, followed by the argument that it was insufficient to make out a prima facie showing of death from gas poisoning, in the absence of any testimony that while Staggs was working on engine No. 10 carbon monoxide gas was escaping therefrom and that he inhaled it in sufficient quantities to poison him and that by reason thereof he died about 9:30 o’clock on the following day; and that to hold otherwise would be to violate the familiar rule forbidding the building of inferences upon inferences.

In briefs for appellees, no other facts are pointed out to support the allegation and proof of death from inhalation of carbon monoxide.

We concur in the reasoning advanced by appellant that in order to support the allegation and findings' by the jury in answer to issues Nos. 5, 6 and 7, in substance that Staggs inhaled carbon monoxide gas which was a producing cause of his death, ■ within the meaning of "producing cause", as defined in the court’s charge to the jury, it would be necessary to indulge and build presumptions or inferences upon presumptions or, inferences, in violation of the rule that “a presumption of fact cannot rest upon a fact presumed. The fact relied upon to support the presumption must be proved.” Fort Worth Belt Ry. Co. v. Jones, 106 Tex. 345, 166 S.W. 1130, 1132; 17 Tex.Jur. 247, and other decisions there noted. Such evidence raised only a surmise or suspicion of the fact sought to be established and amounted to no more than a scintilla of proof, which, in legal contemplation, fell short of “any evidence.” Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

But we cannot say, as insisted by appellant that the evidence was wholly insufficient to support the findings of the jury in answer to special issues Nos. .1, 2, 3 and 4, that Staggs fell while descending the steps of his home on the morning of November 1st, 1935, from which he sustained an injury to his head that was a “producing cause” of his death, within the meaning of that term, as defined in the court’s charge.

Mrs. Dovie Staggs testified in part as follows:

“Q. Now, Mrs. Staggs, this morning I believe you told us he had been having trouble this night with engine No. 10? A. Yes, sir.
“Q. That morning did he come home to his breakfast? A. Yes, sir.
“Q. You know what time it was? A. About 8 o’clock.
“Q. After he had his breakfast, after-he was there awhile, tell the jury whether there was any warning from the .horn of any trouble? .A. No, sir, just as he got through eating breakfast the horn on the-front porch blew and he went out to cut it off and to go to the plant and fell down the steps; there’s a concrete block right by our steps and he stumbled and fell down: there and he got up and sat on the porch,, rubbing his head and right shoulder, and I sat there by him a minute, and rubbed his head, and he got up and went on to-the plant to see what was wrong.
“Q. You recall which side he hit the-ground, the right or left? A. It was his. right side of his head and his right, shoulder.
“Q. While he sat on the porch did he make any complaint of present pain in. his head? A. Yes, sir, he said his head hurt a little but he went on down to the-plant to see what the trouble was.
“Q. Did he make any complaint of present pain in his shoulder? A. Yés, sir, he-said his shoulder hurt; he rubbed his. shoulder and his head also, and I rubbed:. his head.
“Q. Did he rub his head? A. Yes, sir,, he rubbed his head and I did, too.
“Q. What part of his head did he rub?A. Right along here.
“Q. You are pointing to the right side-above the right ear? A. ■ Yes, sir.
“Q. Is that where it was ? A. Yes, sir,, it made a little swelled place on his head.
“Q. You felt that when you put your hand ón it? A. Yes, sir.
“Q. You know how long he sat there?A. Not but a few minutes.
“Q. You mean 10 or 15? A. Just about ten minutes.
“Q. And where did he go from there?" A. He went straight to the plant.
“Q. You never saw him any more until you found him dead in the office ? A. No, sir.”

Dr. Venable testified that he found no external evidence of an injury or bruise on the .head, in the absence of which death could not be attributed to the fall testified to by Mrs. Staggs; and further that if Staggs had sustained an injury to his head when he fell, sufficient to cause death, his death would have ensued almost immediately. But he further testified that the blood clot was principally in the ventricle leading to the right side of the brain, and about 3 inches above the right ear.

In the opinion of Dr. Parnell, an injury to the head might produce death several hours later, and that, too, in the absence of external evidence of the blow.

Under a long settled rule of procedure, as against the contention that a finding of fact by the jury is without sufficient support in the evidence, the testimony in support of the verdict must be weighed to the exclusion of any evidence of a contrary import, and if the same reasonably tends to support the finding that challenge of the finding will be overruled. 3 Tex.Jur. sect. 765, p. 1090. In view of the evidence cited above in connection with other circumstances tending to corroborate it, which we will not undertake to enumerate, the proposition now under discussion cannot be sustained without violating that rule of procedure.

Appellant submits this further proposition: “Considering the court’s charge as a whole, the judgment must be reversed and rendered unless the evidence sustains the finding that the blow was a producing cause of death, and also the finding that carbon monoxide poisoning was a producing cause of deatli.” ■

Appellees submit this counter proposition: “The jury having found that monoxide gas was the producing cause of the death, and also that an injury to the head was the producing cause of the death, it is immaterial that the evidence is insufficient to sustain the finding upon both propositions, it being sufficient, if the record sustains the jury’s' findings that the head injury produced the death of Mr. Staggs.”

The merits of those two contentions were submitted to the' Supreme Court by. this question: “Were the findings of the. jury, in answer to special issues Nos. 1, 2, 3 and 4, sufficient, of themselves, to support the judgment rendered awarding plaintiffs compensation for the death of Staggs, independently of further findings in answer to special issues Nos.- 5, 6 and- 7,. which had no sufficient support in the evidence adduced?” And, as shown by the opinion of that Court, Tex.Com.App., 134 S.W.2d 1026, dated January 3rd, 1940 (not yet published [in State Reports]) that question was answered in the affirmative.

Accordingly, the judgment of the trial court is affirmed, upon findings of the jury in answer to issues Nos. 1, 2, 3 and 4, and those in answer to issues Nos. 5, 6 and 7 will be disregarded.


author: FOLLEY, Justice.

text:
    ERWIN v. SHERROD et al.
    No. 5125.
    Court of Civil Appeals of Texas. Amarillo.
    March 4, 1940.
    E. A. Bills, of Littlefield, for appellant.
    , Bean, Evans & Bean, of Lubbock, for appellees. . i ■
   FOLLEY, Justice.

A petition for injunction in this cause was heretofore before this court, in which we restrained the sheriff of Lamb County from executing an alias order of sale commanding him to sell sixteen Maytag washing machines, the subject of this suit, until the final orders of this court. Our per curiam opinion in this matter will be found in Tex.Civ.App., 134 S.W.2d 756 to which we refer for a statement of this case.

This cause was submitted on its merits on February 26, 1940. Theretofore, on February 2, 1940, the appellant, C. G. Erwin, tendered to the clerk of this court his brief for filing in this cause. Such brief not having been presented within the time required, the same was not filed. No excuse has been offered by the appellant for his delay in presenting this brief, no relief has been sought for filing it out of time, and no waiver has been obtained from the appellees in regard to this matter. However, the appellees have filed briefs and present no objections to our consideration of the appellant’s briefs. We therefore shall examine the record for fundamental error.

A decision on the question of fundamental error will incidentally decide the only assignment presented in appellant’s brief. The only issue in the case is the priority of liens upon the property asserted respectively by the appellant and appellees, which issue was resolved against the appellant by the trial court. We deem it sufficient to state that we have examined the record and find ample testimony to support . the trial court’s conclusion in this respect. We are therefore of the opinion that no error of any sort is presented in this case.

The judgment is affirmed.


author: LOONEY, Justice.

text:
    LUCAS et al. v. DALLAS COUNTY.
    No. 12828.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 17, 1940.
    Rehearing Denied March 16, 1940.

      W. R. Herring, of Dallas, for appellants.
    E. G. Moseley and Harold McCracken, both of Dallas, for appellee.
   LOONEY, Justice.

The court below sustaining a plea in abatement to appellants’ suit, dismissed same, resulting in this appeal. The nature of the suit and the facts giving rise to same, are these: Parker V. Lucas and his wife, Esther Lucas, owned 88 and a fraction acres of land in -Dallas County, being community property and their homestead. Dallas County, needing 8.64 acres of the land for public road purposes, instituted condemnation proceedings against Mr. Lucas; these proceedings resulted in judgment in favor of the County, vesting title for road purposes, and awarded Mr. Lucas the sum of $864.68 damages, which was paid into the registry of the court, and was received by him, thus bringing the condemnation proceedings to a close. Soon thereafter, Mrs. Esther Lucas brought this action against the County to recover the premises involved, and for damages, alleging that her husband (Parker V. Lucas) had refused to join her in the suit, or in any suit or action in this or any other court to recover for plaintiff her title and possession to said premises, and for damages, praying that she be accorded permission to prosecute the suit without the joinder of her husband.

The events immediately following, as detailed in appellants’ brief, are substantially that, the defendant urged a plea in abatement on the ground that, being a married woman, plaintiff could not sue alone, which plea would have been sustained but for the request by plaintiff’s counsel for time to induce Mr. Lucas to join his wife as a plaintiff. Afterwards, on Feb. 15, 1938, Mr. Lucas intervened and filed a pleading, the significant allegations of which, showing the capacity in which and the purpose for which he entered the suit, are these: “This plaintiff (Parker V. Lucas) represents to the court that in joining his wife as a party plaintiff herein he does not seek or demand the recovery for himself, for his own individual use or benefit, the title and possession of the described realty or other rights, titles, interest or homestead rights, whether same be separate or community property and rights; that he joins his wife as a party plaintiff in order by legal action to recover for her all of her rights, titles, interests, homestead rights and title and possession of the described land, whether same be a part of her community property or in the alternative a part of her separate property and rights”.

In its first amended answer, filed March 30, 1938, appellee urged, among other defenses, a plea in abatement in three paragraphs, the cumulative effect of the allegations being that, the suit was for the recovery of community property, hence could not be maintained by the wife alone (absent exceptional situations authorizing same), and that, the pleading filed by Mr. Lucas did not cure the defect, in that, he sought to make himself a pro forma party simply, and not an active litigant seeking recovery; and furthermore that the matters sought to be litigated were res adjudicata, having been definitely and finally settled in the condemnation suit.

In its ruling, the court seems to have treated each paragraph as a separate plea in abatement; overruling paragraphs 1 and 2, but sustained paragraph 3, and dismissed the suit. We do not think appellee’s answer presented three separate pleas in abatement, but only one, each paragraph constituting an element of the plea. However, the fact that the court gave a wrong reason for a correct ruling does not vitiate the same.

Appellants present only one assignment of error, complaining of the action of the court in sustaining appellee’s plea in abatement (No. 3) and in dismissing the suit. Appellee cross-assigns error, because the court did not sustain the plea, for the additional reason that, as Mr. Lucas was not the real, but a mere pro forma party plaintiff, disclaiming any right in himself to recover, Mrs. Lucas being the sole active litigant, could not maintain the suit. These questions will be considered together. In the discussion, counsel for both sides have wandered far afield from the only question involved, — that of abatement — and discussed, ably and thoroughly, issues that doubtless would have been involved had the case been tried on its merits.

As we view the case, the decision pivots on the status in the present suit of Mr. Parker V. Lucas; that is, whether, in view of the pleading filed by him, he is to be regarded a real, active, militant litigant, or simply a nominal or pro forma plaintiff. We think it obvious that, no judgment could be rendered in his favor on the pleading filed, in view of the allegations that, “he •does not seek or demand the recovery for liimself, for his own individual use or benefit, the title and possession of the described ■realty or other rights, titles, interests or homestead rights”, etc., and “that he joins his wife as a party plaintiff in order by legal action to recover for her all of her rights”, etc., homestead or otherwise.

It is well settled in this state that, the wife cannot maintain a suit for the recovery of community property (except under circumstances absent here), hence, we think, the plea in abatement was correctly •sustained, if, notwithstanding the pleading filed by Mr. Lucas, she remained the sole active, militant plaintiff in the case. It is ■clear from a reading of Mr. Lucas’ pleading that he did not intend to become an active litigant, representing and suing for the ben•efit of the community estate, of which he is the head, but, obviously, entered ihe suit pro forma, for the purpose of technically •clothing his wife with authority to maintain the suit in her own right. Being ineligible to maintain the suit alone, we do not think -it was within the power of Mr. Lucas, by ■ virtue of the formal pleading filed, to clothe his wife with eligibility, denied under the rules of law, to maintain the suit.

We can readily understand why, after all issues involved in the present suit had been ■finally adjudicated in the condemnation proceedings, and after receiving the amount .awarded to him, that Mr. Lucas would refuse to sponsor the present suit as an active litigant, which, in the last analysis, repudiates and collaterally attacks the judgment rendered in the condemnation proceedings. Although joining as nominal plaintiff in ■ order, as alleged, “by legal action to recover for her all of her rights”, etc., we do not think the case was taken from under the general rule that forbids the wife to maintain a suit for the recovery of community ■ property.

A pro forma party can neither recover, if a plaintiff, nor be cast in the suit, if a defendant. See Avenel v. Iskovitz, et al., Tex.Civ.App., 60 S.W.2d 895; Crowder v. Crowder, Tex.Civ.App., 111 S.W.2d 1161; Fairbanks v. Hayes-Sammons Hardware Co., Tex.Civ.App., 55 S.W.2d 591; Hill v. Kelsey, Tex.Civ.App., 89 S.W.2d 1017; Rhodes v. Taliaferro, Tex.Civ.App., 119 S.W.2d 703.

We are of opinion, therefore, that the court did not err in abating the suit, hence affirm its judgment.

Affirmed.

On Rehearing.

Appellants seem to be apprehensive that, if another suit should be instituted, based upon the cause of action involved in the instant case, they could be defeated by a plea of res adjudicata, based upon the judgment of the trial court and of this Court affirming same. We do not think so. It is perfectly obvious that, neither the court below nor this Court did more than sustain appellee’s plea in abatement; the case on the merits was neither reached nor adjudicated. However, in view of the record disclosures, appellants will likely be met by a plea of res adjudicata, based, not upon the judgment in the instant case, but upon the prior condemnation proceedings.

We have duly considered the motion for rehearing urged by appellants, but, failing to find any reason for changing our decision, the motion is overruled.


text:
    THURMOND et al. v. DAVIS.
    No. 5098.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 15, 1940.
    Rehearing Denied Feb. 19, 1940.

      Sanders & Scott, Howard F. Saunders, and A. P. Smith, all of Amarillo, and J. B. Clark, of Shamrock, for appellants.
    M. Reynolds, of Shamrock, and Cummings & Johnson, of Fort Worth, for ap-pellee.
   FOLLEY, Justice.

This suit was filed by the appellants, Flora M. Thurmond and her husband, I. C. Thurmond, against the appellee, Champ Davis, upon three promissory notes executed by the appellee on May 1, 1936, aggregating the sum of $9,200 and for foreclosure of a deed of trust lien executed by the appellee upon four tracts of land in Wheeler County, Texas, to secure the payment of said notes.

The appellee admitted the execution of the notes and deed of trust, alleged that such notes were in renewal and extension of a note in the sum of $8,000 dated December 1, 1934 executed by him in renewal of two other promissory notes theretofore ex-r ecuted by him for certain shares of stock in the Guaranty State Bank of Texola, Oklahoma.

The appellee further alleged that the appellant I. C.' Thurmond was engaged in the banking business; that Thurmond owned stock in the Guaranty State Bank of Texola and other banking institutions; that I. C. Thurmond and Flora M. Thurmond were husband and wife; that at all times during which the appellee dealt with I. C. Thurmond the latter knew that the Guaranty State Bank of Texola was in a failing and insolvent condition; that Thurmond, acting for himself and as agent for his wife, represented to the appellee that such bank was a solvent institution and that the stock in the same was of a value above par; that such .representations were false; that Thurmond knew they were false and made the same with the intention of de--ceiving the appellee; that the appellee relied upon such representation and was induced thereby to purchase stock in such bank and to execute the notes therefor above mentioned; that the $8,000 note was hypothecated by Thurmond to the First National Bank of Kansas City, Missouri, to secure certain indebtedness owed to it by Thurmond; that on May 1, 1936 the appellants, I. C. Thurmond and wife, paid said debt to the First National Bank of Kansas City after a suit had been filed by the bank against the appellee and I. C. Thurmond and that the said $8,000 note was thereupon renewed by the appellee on May 1, 1936 by his execution of the three notes sued upon herein which were payable to Flora M. Thurmond; that while said note for $8,000 was in the hands of the Kansas City bank such debt was enforceable against the appellee in favor of the bank. because the bank was an innocent holder for value, but that upon payment to-the bank by the appellants of the indebtedness owed by them to the bank and upon the renewal of the indebtedness by the ap-pellee in favor o'f the appellants the same remained tainted with all the fraud alleged in the original transaction in the purchase of the bank’s stock of the Texola bank; that at the' time the appellee renewed the indebtedness on May 1, 1936, and at all times prior thereto, he was ignorant of the fraud perpetrated upon him; and that there was no consideration for the execution of any of the notes above mentioned.

The cause was submitted to a jury'and its findings were substantially as follows: (1) that Flora M. Thurmond authorized I. C. Thurmond to negotiate with Champ Davis and act for her in procuring the notes and mortgages sued upon in this case; (2) that at the time the appellee bought the bank stock I. (5. Thurmond represented to him that said stock was well worth the money and that the securities in said bank were good; (3) that such representations were false; (4) that Champ Davis relied upon such representations; (5) that I. C. Thurmond knew such representations were false; (6) that except for such representations Champ Davis would not have executed the note and mortgage dated December 1, 1934; (7) that the money paid to take up the note of December 1, 1934, by check executed by Flora M.. Thurmond was the community property of I. C. Thurmond and Flora M. Thurmond; (8) that Champ Davis first learned that the. above representations were false on or about November 15, 1938; (9) that at the time Champ Davis purchased the stock in the Guaranty State Bank of Texola, Oklahoma, it had no value; and (10) that I. C. Thurmond .intended that Champ Davis should rely upon said representations. Upon such verdict the trial court rendered judgment for the appellee.

■ The appellants at the close of the testimony filed a motion for an instructed verdict which was overruled by the court.. After the above verdict was returned and before judgment was rendered thereon, the appellants filed a motion for judgment non obstante veredicto which was also overruled by the court. The insufficiency of the testimony to substantiate the appel-lee’s defense of fraud formed the basis for each of these motions. For reversal of the judgment herein the appellants assign as error the action of the trial court in refusing to direct a verdict for the appellants .and in failing to render judgment non ob-stante veredicto in their favor.

The appellee’s only defense to this ac■tion is- the alleged fraud upon the part of T. C. 'Thurmond in the sale of the shares of bank stock to the appellee and the failure of consideration by reason of the alleged insolvency of the bank at the time the stock was sold to him. The evidence with reference to the various transactions upon which the alleged defenses are predicated is very uncertain. The appellee was about eighty years old at the time of the-trial in December, 1938. The alleged fraudulent transactions occurred in 1933 or 1934. The testimony of the appellee upon the issue of fraud is very unsatisfactory, which fact, no doubt, was due in part to his advanced years. Nor does the evidence as a whole clearly reveal the various details in connection with the sale of the stock. Therefore, the basic facts which we find in this case necessarily must be from our deductions from what we deem is a fair analysis of the record as a whole.

In the year 1933 I. C. Thurmond was the owner of 130 shares of the capital stock of the Guaranty State Bank of Tex-ola, Oklahoma. These shares were of the par value of $100. The bank was capitalized at $25,000. Thurmond was then president of the bank, a director and its chief stockholder. In the latter part of 1933, or the early part of 1934, at least before February 6, 1934, the appellee purchased ten shares of the Thurmond stock and was made a director of the bank. On February 6, 1934, at a directors’ meeting in which Davis was present and participated in the proceedings, Thurmond resigned as president of the bank and T. P. Higgins, another stockholder and officer of the bank, was elected president. Davis signed the minutes of this meeting as a director of the bank.

Thereafter, the exact date not being clearly shown, but some time in the early part of 1934, Davis purchased fifty-five more shares of'the Thurmond stock. For his indebtedness for this stock (whether for all of it or only part of it the record does not show) Davis executed a note for $8,000, which was later renewed and divided into two notes, one in the sum of $3,500 ánd the other in the sum of $4,500. The first $8,000 note just mentioned and the other two notes for $3,500 and $4,500 respectively were not' introduced in evidence, but the .various witnesses, including .the appellee, testified in regard to -them. The .indebtedness evidenced by. such notes was secured by a deed of trust upon certain -of the lands involved in this controversy but such deed of trust was. not introduced in evidence and the contents thereo.f were not revealed. Orí or about November 5, 1934, the Guaranty State Bank of Tex-ola was removed from Texola to Clinton, Oklahoma, the latter city being in the same county with Texola. A new charter was issued to the stockholders by the State of Oklahoma and the capital stock of the new bank was increased to $50,000. Champ Davis was shown by the amended articles of incorporation to have been one of the incorporators and owner of fifty shares in the new institution, however, the testimony does not disclose the manner in which he obtained these fifty shares. We therefore do not know and the record does not disclose whether the sixty-five shares in the original bank at Texola were transferred by agreement of the stockholders of the new bank and merged into the fifty shares of the new bank or whether the appellee purchased outright the fifty shares in the new institution at Clinton. The testimony does not show what became of the sixty-five shares in the original bank at Texola. The only shares of stock which were introduced in evidence were the shares in the new bank at Clinton and the two certificates introduced showed Davis to have been the owner of sixty-five shares in the new bank instead of fifty shares as recited by the .amended articles of incorporation. The testimony does show that the Clinton bank was closed in April 1935,' presumably insolvent, however, the testimony in that respect was very indefinite. There was testimony to the effect that the appellee was compelled to pay a $6,500 assessment in connection with shares of bank stock he had bought, but as to whether such assessment was made upon the shares of the Texola bank or the Clinton bank, the record is entirely silent.

On December 1, 1934, after the bank had been moved from Texola to Clinton on or about November 5, 1934, Davis executed a new note for $8,000 in favor of .1. C. Thurmond, such note having a notation on it as follows: “For bank stock at Texola, Okla.”.- The appellee in his testimony denied that this $8,000 note was a renewal note of the former indebtedness for the bank stock, but in his pleadings he alleged that it was a renewal of the former indebtedness, and we. think the other evidence in the case conclusively shows such to be the case. On December 1, 1934 Davis also executed a deed of trust upon certain of the lands involved herein, however, - this deed' of trust was not introduced in evidence and its contents were not otherwise disclosed. The $8,000 note and the deed of trust was by Thurmond placed in the First National Bank of Kansas City, Missouri, as-collateral security for indebtedness sucb bank held against Thurmond. Thereafter, in 1936, the Kansas City Bank filed a suit against Davis in the District Court of the United States upon the indebtedness represented by the $8,000 note of the date of December 1, 1934. The appellant Flora M. Thurmond thereupon paid the Kansas City bank the sum of $8,000 by a check on her bank account in the First National Bank of Shamrock, Texas, said check containing a. notation “For: Champ Davis Note”, and the Kansas City bank then transferred toiler the note and deed of trust lien held by it as collateral security. On May 1, 1936, after such transfer of the $8,000 note by-the Kansas City bank, the appellee renewed the indebtedness due upon the $8,000 note-of December 1, 1934 by his execution of the three notes herein sued upon in the respective sums of $1,200, $3,000 and'. .$5,000, totaling $9,200, which latter amount included the interest accrued on the indebtedness. These three notes were payable to Flora M. Thurmond and bore interest from date at the rate of eight per cent per annum.. At the same time, in order to secure this renewed indebtedness, the appellee. executed a deed of trust ini favor of Mrs. Thurmond upon the following lands in Wheeler County, Texas: section 99 in Block 13; section 3 in Block A-7; section 18 in Block A-7; and the southeast fourth of section 21 in Block A-7, all located by virtue of the H. & G. N. Railway Company Survey.

It is our opinion that the appellee has wholly failed to establish his .defense of fraud in the sale of the stock or his defense of failure of consideration. As above stated the appellee alleged that at the time he purchased the stock Thiirmond represented to him that the Texola bank was a solvent institution and that the stock in the same was of a value above par; that such representations were false; and that relying upon said fraudulent representations he purchased the stock. The testimony reveals that I. C. Thurmond, in company with T. P. Higgins and H. T. Doss, the latter also being a stockholder in the Texola bank, visited, the appellee at his ranch home in Wheeler County, Texas, about the time the stock was sold to Davis. This was the occasion upon which the-ap-pellee contends the- alleged fraudulent representations were made to him. Higgins •did not testify in the trial of the case. Thurmond and Doss did testify. Both of these witnesses denied that any statements were made by anyone present as to the value of the stock of the Guaranty State Bank of Texola. The only testimony on this issue came from the appellee himself and he first testified that Thurmond did not say that the bank stock was “worth the ■money” but merely stated that his brother ■Oscar Thurmond at Clinton was worth .$2,000,000 and that it would not be long until he (I. C. Thurmond) would be worth that much. The next day upon being re•called to the witness stand the appellee .gave the following testimony: “Thurmond ■came out there and says, T came out here to sell you some bank stock’, and I says, 'Mr. Thurmond, I am in no condition to buy bank stock, I haven’t got any money’, and he says, ‘The bank is in .good condition, and the stock is well worth the money.’” It was evidently upon this testimony that the jury made the above finding in regard to the misrepresentations. Granting that we are bound by this testimony and the jury’s finding thereon, still there was no competent testimony to show that such statement was not true.

Only two witnesses testified as to the solvency of the bank in question. The appellant I. C. Thurmond stated that the bank at Texola did not fail but was removed to Clinton after he had severed all his connections with the bank. The other witness was Earl Francis. At the time of the trial Francis lived in Beckham County, Oklahoma, was a commissioner of such county and sheriff-elect to have taken such latter office on January 1, 1939. In the year 1934 and prior thereto he was cashier-of the Texola bank and remained in such capacity until the bank was moved to Clinton. His testimony was that the Texola bank did not “go broke” at any time he was connected with it and that at the time it was moved to Clinton it was, in his opinion, a solvent institution. There was no testimony offered as to the assets and liabilities generally of the bank or whether or not the assets were sufficient to pay the total liabilities of the bank. Nor was there any testimony to the effect that such bank was at any time “unable to pay its debts in the ordinary or usual course of its business”. Turkey State Bank et al. v. Estelline State Bank, Tex.Com.App., 272 S.W. 775, 776; Brenan v. Eubank, Tex.Civ.App., 56 S.W. 2d 513. The only testimony offered by the appellee on this issue was from three cus-tomers of the Texola bank, Lee Jones, Ray Potts and J. A. Bradley. Each of these witnesses testified respectively that he was indebted to the bank and to secure such indebtedness each respectively executed chattel mortgages in favor of the bank upon certain livestock. The total indebtedness of the three witnesses was shown to have been about $2,000. Each of these witnesses’ testimony was further to the effect that after each had delivered the mortgage to the bank that additional property was added in the respective mortgages. Other than these securities no other testimony was offered by the appellee as to the assets or liabilities of the bank in question. In our ■ opinion this testimony fell far short of proving that the bank stock was not worth the money or that the bank was not a solvent institution. At most it could only show that three of the “securities of the bank” were possibly not “good”. In this connection it should be stated that there were no allegations in appellee’s pleadings' to the effect that Thurmond represented to Davis that the “securities in said bank were good” or that he made any representation at all in regard to the bank’s securities. Nor was there any testimony offered that such representations were made. Moreover, H. T. Doss testified without contradiction that the Texola bank paid a dividend to the stockholders at the time he and Champ Davis were directors of such bank. Doss stated that he received a payment of $100 upon his ten shares of stock, which was a ten percent dividend upon the par value of such stock. We think it would be presumed that a bank in failing circumstances or in an insolvent condition would . not and could not pay a ten per cent dividend to its stockholders. It is elementary that to constitute actionable fraud it must appear, among other things, that the alleged representations upon which the fraud is predicated were false. Wilson v. Jones, Tex.Com.App., 45 S.W.2d 572; Panhandle & Santa Fe Ry. Co. v. O’Neal, Tex.Civ.App., 119 S.W.2d 1077, writ refused. This burden the appellee has wholly failed to discharge.

The appellee has not only failed to establish his alleged defense of fraud but he has also failed to show that there was no consideration passing to him in the sale of the stock and in the subsequent renewals of the notes executed therefor. The hiatus in the proof of the falsity of the alleged representations in regard to the value of the bank stock also defeats the appellee’s defense of failure of consideration. In this connection there was no finding of the jury and no evidence to the effect that but for the alleged representations of Thurmond that Davis would not have executed the three notes and deed of trust herein sued upon of the date of May 1, 1936.

Under the above circumstances it is' therefore our opinion that the court erred in failing to instruct a verdict at the conclusion of the evidence and further erred in refusing to render a judgment non obstante veredicto for Mrs. Flora M. Thurmond.

This case seems to have been fully developed in the trial court except for the lack of showing upon the part of the ap-pellee to establish his alleged defenses, and this omission is not shown to have been due to any error of the trial court. We know of no rule of law which requires us to reverse and remand this cause in order that the appellee may have a second opportunity to establish his alleged defenses. The cause of the appellants is a liquidated demand the merits of which the appellee does not dispute except by the above asserted defenses which he has wholly failed to establish. We therefore know no sufficient reason why judgment should not be rendered herein in behalf of Mrs. Thurmond.

The judgment of the trial court is reversed and rendered as follows: that the appellant .1. C. Thurmond take nothing against the appellee, Champ Davis; that the appellant Mrs. Flora M. Thurmond recover of and from the appellee, Champ Davis, the sum of $11,140.17, such sum being the principal and interest at eight per cent, per annum on the indebtedness to the date of the judgment, December 20, 1938, with interest on such $11,140.17 from December 20, 1938 until paid at the rate of seven per cent, per annum, the latter rate of interest being the rate prayed for by appellants to be assessed from the date of the judgment; that the appellant Mrs. Flora M, Thurmond recover from the appellee, Champ Davis, the sum of $100.34 with interest thereon from December 20, 1938 at the rate of six per cent, per annum until paid, said $100.34 being interest at six per cent, per annum upon past due and unpaid interest; that the appellant Mrs. Flora M. Thurmond recover from the appellee, Champ Davis, the further sum of $1124.05 with interest thereon from December 20, 1938 at the rate of six per cent, per annum until paid, said $1124.05 being ten per cent, attorneys’ fees of the amount due on the date of judgment; and that the appellant Mrs. Flora M. Thurmond recover from the appellee, Champ Davis, judgment for foreclosure of her deed of trust lien upon the above described lands as shown by the deed of trust of the date of May 1, 1936 from the appellee to secure the indebtedness herein sued upon, and that order of sale issue as provided by law.

Reversed and rendered.

On Motion for Rehearing.

In his motion for rehearing the ap-pellee seeks to present an issue not heretofore urged and which we therefore did not discuss in our original opinion. He now asserts there is fundamental error in the record because the appellant Mrs. Flora M. Thurmond, being a married woman, failed to show sufficient grounds to authorize her to institute this suit without the joinder of her husband as a real party, it being asserted that her husband, I. C. Thurmond, was only a party pro forma.

Should there be any merit to appellee’s position the record does not support his contention in this respect. The only pleadings of the appellants appearing in the transcript were an amended original petition and a supplemental petition. In neither of these does the term “pro forma” appear. On the contrary I. C. Thurmond is referred to as a “plaintiff”, and, construing such pleadings as a whole, he appears to be a real party for all purposes necessary for the recovery herein in behalf of Mrs. Thurmond.

The motion for rehearing is overruled.