author: RICE, Chief Justice.

text:
    PERRY NAT. BANK v. LAMB.
    No. 2300.
    Court of Civil Appeals of Texas. Waco.
    Jan. 30, 1941.
    S. R. Allen, of Hamilton, for appellant.
    A. R. Eidson, of Hamilton, for appellee.
   RICE, Chief Justice.

The Perry National Bank of Hamilton brought this suit in the county court of Hamilton county against Oliver B. Lamb, independent executor of the estate of P. B. Lamb, deceased, seeking recovery on .a promissory note executed by deceased. Trial was had to the court without a jury.'

Findings of fact and conclusions of law were filed by the trial court. These findings of fact are not challenged, and are substantially as follows: (1) On November 21, 1934, P. B. Lamb, deceased, executed his note for $349.60, due October 1, 1935, payable to the order of R. L. Maxwell, Inc., at ITamilton, Texas, bearing interest at 10 per cent per annum from date and providing for 10 per cent attorney’s fees. This note, before maturity, was transferred to the Perry National Bank, plaintiff herein, which bank was the owner and holder of the note at the time of trial. (2) P. B. Lamb died January 20, 1937, leaving a written will dated January 15, 1936, naming Oliver B. Lamb, defendant herein, as independent executor; said will providing that no action be had in the county court or other court except to probate the will, and that no bond or other security be required of said executor. Application for the probate of said will was filed January 22, 1937, and an order was entered by the probate court of Hamilton county on February 8, 1937, admitting the will to probate. On the 27th of February, 1937, the executor took the oath provided by statute. (3) This suit was instituted on October 26, 1939. (4) The will of P. B. Lamb, among other things, provided: “I further provide that my said son shall pay my indebtedness at the Hamilton National Bank and the Perry National Bank.” (5) At the time said will was executed testator owed the Perry National Bank a note of approximately $69, signed by one Joe Fuqua as surety, and also the'note sued on in this case. The order admitting the will to probate provides: “That letters testamentary issue to the said Oliver B. Lamb after his taking the oath as required by law.” (6) At the time of the execution of the will testator stated he wanted his son to pay the debt to the Perry National Bank signed by the said Joe Fuqua as surety, but he did not mention the debt sued on. (7) At the time of the execution of. the will, P. B. Lamb knew of the indebtedness sued on in this case being due by him to the Perry National Bank; that he had been notified of the note and had talked to the- president of the bank about the same and promised that he would pay it later. (8) The claim sued on had been properly sworn to and presented to the executor and the latter had refused payment before the filing of this suit.

On the foregoing facts, the trial court filed the following conclusions of law: “As a matter of law, I conclude from the above facts that the note sued on was barred by the statute of limitation of four years; that limitation was only interrupted from the 20th of January, -1937, to February 8, 1937, the date of the order probating the will. As to the second count in plaintiff’s petition, I conclude as a matter of law that the provision in the will relating to the payment of the testator’s indebtedness was insufficient to take this claim out of the bar of the statute, as at the time the testator owed two debts to the plaintiff and the debt sued on was not specified or identified in any way by the provisions of the will, and it could not be determined from the provisions of the will that the instructions in said will applied to the debt sued on.”

The court entered judgment that plaintiff take nothing, from which judgment plaintiff perfected this appeal, and by appropriate assignments challenges the correctness of the legal conclusions set forth above.

Error is assigned to the action of the trial court in holding that plaintiff’s cause of. action was barred by the four-year statute of limitation, Vernon’s Ann. Civ.St. art. 5527. We sustain this assignment. In our opinion, the direction in the-will of P. B. Lamb: “I further provide that my said son shall pay my indebtedness at the Hamilton National Bank and Perry National Bank,” is plain and unambiguous; and refers-to and includes all indebtedness owing by the deceased at the date of his death to each of the banks referred to and not barred by the statute of limitation at the date of testator’s death. Since the note sued on was admittedly not barred when P. B. Lamb died, or when the will was admitted to probate, or when his executor took the statutory oath, it is not necessary for us to determine, and we do not determine, the legal effect of the directions contained in said will as to any indebtedness owing by the testator which was barred at the date of his death.

We believe this case to be ruled by the decision of the Supreme Court of this state in Bullard v. Thompson, 35 Tex. 313. In that case the defendant pleaded in bar of plaintiff’s recovery the four-year statute of limitation, in that more than four years had elapsed from the maturity of the notes and previous to the institution of the suit, exclusive of the time in which suit could not be brought. In this case the maker of the note made a will which was duly admitted to probate, and which, among other things, provided: “In the first place I desire that all my just debts be paid, and first those of my sister, Mrs. Mary Ann Richardson, and of my uncle, Chas. K. Bullard.” In answer to the plea of limitation raised by defendant, the Supreme Court said: “We are clearly of the opinion that Charles A. Bullard, by the following clause in his will, made it obligatory upon his executrix to pay whatever debts he owed-his uncle, Charles K. Bullard: ‘In the first place, I desire that all my just debts be paid, and first those of my sister, Mrs. Mary Ann Richardson, and my uncle, Charles K. Bullard.’ ” The- court further said in reference to said provision: “The very terms, of the will make Mrs. Richardson, the sister, and C. K. Bullard, the uncle, special legatees under the will, to the extent of their several just claims against the estate of the testator. * * * We will only remark further, that there was a valid subsisting indebtedness to the appellant at the time the will of Charles A. Bullard took effect; that the will could not be executed until these debts were paid, Upon the supposition that there were assets to pay them. The will took the debt out of the statute of limitation.”

. In our opinion, the provisions of the will of P. B. Lamb took the debt of plaintiff sued on herein out of the statute of limitation ; and limitation would not begin to run thereon until Oliver B. Lamb, the independent executor, had repudiated the trust imposed upon him by the terms of his father’s 'will. See Kennard v. Kennard, Tex.Civ.App., 84 S.W.2d 315, page 320; Suhre v. Benton, Tex.Civ.App., 25 S.W. 822, page 823.

Since this case appears to be fully developed, it is our opinion that the same should be reversed and rendered, and the judgment of the trial court is reversed and judgment is here rendered that plaintiff, Perry National Bank, recover of and from the defendant, Oliver B. Lamb, in his capacity as independent executor of the estate of P. B. Lamb, deceased, the sum of $349.60, together with interest thereon from November 21, 1934,. at the rate of ten per cent per annum to date hereof, together with ten per cent additional of the amount of principal and interest due as attorney’s fees, and for costs of court, for all of which plaintiff may have its execution.


source: Caselaw Access Project

author: SUTTON, Justice.

license: Public Domain

text:
    McLOUGHLIN et ux. v. SCHNITZER.
    No. 4038.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 30, 1941.
    Fagan Dickson, of San Antonio, for appellants.
    J. Arthur Sandlin, of San Antonio, for appellee.
   SUTTON, Justice.

The principles of law applicable to this case, to-wit: That the granting or refusing of a motion for a new trial on purely equitable grounds is a matter within the discretion of the trial court; that the defense of coverture, where it does not affirmatively show on the face of plaintiff’s petition, is one that must be specially pleaded; and that a married woman is liable on a contract made for the benefit of her separate property, are well settled and require and need no further discussion.

Hereafter it will be the rule of this Court not to write opinions in cases wherein it is not required under the -provisions of the statute, Articles 1873-1876, R.C.S. 1925, unless we deem it necessary and advisable because of some new question raised, or for other cause deemed sufficient by us. To do so adds nothing to our jurisprudence. It unnecessarily adds to the ever increasing volume of written opinions without deciding anything that has not already been decided and repeated many times.

The judgment of the trial court is affirmed.


author: LESLIE, Chief Justice.

text:
    HUDSON et al. v. NORWOOD.
    No. 2077.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 3, 1941.
    Rehearing Denied Jan. 31, 1941.

      Guinn & Guinn, of Rusk, for plaintiffs in error.
    Norman, Stone & Norman, of Rusk, and Shook & Shook, of Dallas, for defendant in error.
   LESLIE, Chief Justice.

The plaintiff, J. C. Norwood, filed this suit against Nettie Hudso'n and husband, James Monroe Hudson, Lucy Phillips and husband, Coy Phillips, for the title and possession of 140½ acres of land, part of the William Killion Survey, in Cherokee County, Texas. The 140½ acres is composed of three tracts: 5 acres acquired from J. F. Ward et al.; 91 acres acquired by C. K. (Knox) Norwood from W. Y. Ballew, and 54½ acres in what is known as the Brigman tract.

The plaintiff’s second amended original petition was in trespass to try title, with counts pleading 3, 5, 10 and 25-year statutes of limitation. The defendant Nettie Hudson, by her second amended answer, answered by general demurrer plea of not guilty, disclaimer of all land lying east of a branch running north and south through the 140½ acres, a plea of 10-year limitation, and that the possession of the plaintiff’s predecessor in title was not adverse to hers in that he (predecessor) had a homestead interest in the property and his possession was consistent with his interest and not adverse to her.

The defendants Coy Phillips and Lucy Phillips disclaimed all interest in the land. The defendant James Monroe Hudson was cited by publication as a nonresident. He did not appear or answer, but judgment was rendered against him for the plaintiff by default as to the title and possession of the 140½ acres, but no judgment for costs waS taken against him.

The court entered a judgment in favor of the plaintiff on an instructed verdict. Mrs. Hudson appeals.

The plaintiff's title to the land was acquired from one who purchased same at an execution sale of the right, title and interest therein owned by C. K. (Knox) Nor-wood, a judgment debtor. •

The litigation arises out of facts in substance as follows: W. H. (William Plen-ry) Batten married Lucy Ballew October 17, 1870. Five children were born to that marriage: Sam Batten, John Batten, Tom Batten, Ruby Batten who married Allen T. Clark, and the defendant Nettie Batten Hudson. January 14, 1887, J. M. Brittain sold and conveyed by warranty deed to W. H. Batten 15S acres of land. The deed was a general warranty vendor’s lien deed, and the entire purchase price of the land as recited in the deed was three vendor’s lien notes for $200 each due, respectively, November 1, 1887, 1888, and 1889.

It is not made to appear that W. H. Batten, or his wife, ever paid any part of said notes, but without dispute, J. M. Brit-tain, the same vendor, immediately after the maturity of the last of said notes, resold the same land to Knox Norwood by general warranty deed, reciting the retention of a vendor’s lien to secure the consideration, namely, Norwood’s three vendor’s lien notes, the first for $166 and the other two for $167 each, due, respectively November 1, 1890, 1891 and 1892. This deed to Norwood was dated January 1, 1890 and Norwood went into possession of the land and remained in possession thereof for about 40 years after the date of the deed.

Knox Norwood’s first wife died August 21, 1886, and said W. H.. Batten died May 11, 1888. Brittain’s deed to said Norwood was dated January 1, 1890 and he married Mrs. Batten, the widow of W. H. Batten, and the mother of Mrs. Nettie Hudson, on May 25, 1892. As an unmarried man Nor-wood acquired the deed from Brittain about two and one half years prior to his marriage to Mrs Batten, with whom • he lived until her death June 29, 1922. He had no children by either wife and he died October 6, 1930.

In substance, the plaintiff’s theory of the case is that where a vendor makes a deed to land and the purchaser does not pay the consideration but executes notes therefor and a vendor’s lien is retained in the deed to secure the purchase price evidenced by the notes, the vendor has the superior title and until the contract is executed or performed on the part of the purchaser by paying the purchase money or discharging the debt, the purchaser or those in privity with him has no title against the vendor or those who stand in his right. Stated with reference to the testimony in this case, it is the plaintiff’s contention that the defendant Mrs. Hudson stands in privity with W. H. Batten, ven-dee, who, as a consideration, executed the first series of vendor’s lien notes to Brit-tain, and failed to acquire legal title to the property by the payment of the same. On the other hand, the plaintiff asserts that he derives his title (by purchase at execution sale) directly from the original vendor, the common source, J. M. Brittain.

On failure of W. H. Batten to pay the three vendor’s lien notes given as a consideration for the land, said Brittain had three remedies: (1) He could have sued for the purchase price and foreclosed his lien; (2) he had a right to sell the land and convey the title to another, thus dis-affirming the contract, and (3) he had a right to bring an action in trespass to try title against the vendee, or others in privity with him. Simpkins, Equity, p. 238. He seems to have elected the second remedy.

The vendor, Brittain, in retaining a vendor’s lien consequently retained the superior title to the land. Stated differently, the original vendee Batten had nothing but an executory contract for title until consideration was paid. Under such circumstances the vendor’s right to rescind or disaffirm the original contract is well recognized. Bunn v. City of Laredo, Tex.Com.App., 245 S.W. 426; Barker v. Temple Lumber Co., 120 Tex. 244, 37 S.W.2d 721, 722; Toler v. King, Tex.Civ.App., 11 S.W.2d 360; Evans v. Ashe, 50 Tex.Civ.App. 54, 108 S.W. 398, 1190; Kennedy v. Embry, 72 Tex. 387, 10 S.W. 88; Scott & Carmody v. Canon, Tex.Com.App., 240 S.W. 304; Graham v. West, Tex.Civ.App., 26 S.W. 920; Sherring.v. Augustus, 11 Tex.Civ.App. 194, 32 S.W. 450, 451, and other authorities hereinafter cited. In this last opinion by Judge Williams, it is said: “A conveyance of the land to another than the original vendee is an exercise of this right, and, if made when the vendor is entitled to rescind, has the effect to defeat even the right of the first vendee to redeem.”

In Barker v. Temple Lumber Co., supra [120 Tex. 244, 37 S.W.2d 722], it was held: “The conveyance from Bennett to Damon was executory. Damon could only perfect his title to the land by paying the purchase-money notes in accordance with the terms of his agreement. Upon his failure to do so, Bennett had the right to rescind the sale and convey the property to others. Likewise Rogers held no title to this property except one conditioned upon the discharge of the obligation for the purchase-money notes. Farmers’ Loan Co. v. Beckley, 93 Tex. 267, 54 S.W. 1027; Hale v. Baker & Rice, 60 Tex. 217.”

The operation of the above principle of law is not affected by the death of the original vendee. In other words, the vendor’s superior title remains unaffected by the vendee’s death. Herman v. Gieseke, Tex.Civ.App., 33 S.W. 1006, 1009; Curran v. Texas Land & Mortgage Co., 24 Tex.Civ.App. 499, 60 S.W. 466, writ refused; New England Loan & Trust Co. v. Willis, 19 Tex.Civ.App. 128, 47 S.W. 389, writ refused; Jackson v. Ivory, Tex.Civ.App., 30 S.W. 716; Toullerton v. Mahncke, 11 Tex.Civ.App. 148, 32 S.W. 238; Robertson’s Adm’x v. Paul, 16 Tex. 472; Rogers’ Heirs v. Watson, 81 Tex. 400, 17 S.W. 29; McKinley v. Keath, 24 Tex.Civ.App. 570, 59 S.W. 813; Head v. Moore, Tex.Civ.App., 232 S.W. 362.

From the Herman case, supra [33 S.W. 1009], we take the following holding in an opinion by Judge Williams : “The fact that one of the heirs was a minor, and others married women, added nothing to their rights under the contract. They succeeded to such rights as Mrs. Gieseke had, and to no others. By her death, Link’s obligations and rights were not increased or diminished. Estes v. Browning, supra [11 Tex. 237, 60 Am.Dec. 238]; Pom.Spec.Perf. § 620; Fry, Spec.Perf. § 620; Walker v. Douglas, 70 Ill. [445], 446. The heirs were not bound by their mother’s contract, but, if they desired to acquire title to the land, they could only do so by complying with the conditions upon which such acquisition depended.”

See, also, Young v. Harbin Citrus Groves, Tex.Civ.App., 130 S.W.2d 896, writ refused; Bothwell v. Farmers’ & Merchants’ State Bank & Trust Co., Tex.Civ.App., 50 S.W.2d 846, affirmed 125 Tex. 488, 82 S.W.2d 945, 84 S.W.2d 229.

In the opinion in Head v. Moore, Tex.Civ.App., 232 S.W. 362, 364, answering the contention that the title did not pass by the subsequent deed because the notes (to secure which the vendor’s lien was retained in the original deed) were barred by four-year limitation, the court said: “The answer to the first objection is that appellant never acquired the legal title to the land from Asher, unless he affirmatively pleads and proves, and the burden is upon him, that he paid the consideration.” (Italics ours.)

To the same effect is the opinion in Evans v. Ashe, and Scott & Carmody v. Canon, supra.

What has been said in effect disposes of the respective contentions of appellant and appellee as they are based upon the Brittain deeds of January 14, 1887 and January 1, 1890. From the facts detailed and others not necessary to recite, it conclusively appears that neither W. H. Batten, nor his heirs, ever acquired the legal title to said property. Obviously, Brittain disaffirmed the original contract to convey the property to Batten by his (Brittain’s) subsequent conveyance to Norwood, who, as noted, went into possession of the property some two and one-half years before he married Mrs. Batten on May 25, 1892.

If the appellant has any right or title to the land or any part thereof. it must rest on some other ground or theory. The record reflects other claims advanced by Mrs. Hudson. She seems to claim the land, or the part thereof lying west of a branch running through the land on the basis of limitation, as well as an alleged parol gift of the same to her by her uncle, Knox Norwood. Also, by virtue of a parol partition whereby the same was allotted to her.

Upon no theory reflected by this record does she appear to have ever had any joint ownership in the property involved. Therefore, no basis exists for any partition of lands in which she had no interest. Batten never acquired the complete title to the land, and neither did his heirs. Partition rights under such circumstances have been fully discussed in an opinion by this court in Walling v. Harendt, 37 S.W.2d 280. That opinion cites numerous authorities on the proposition. Special attention is also directed to the opinion in Reyes v. A. O. Kolberg, Inc., Tex.Civ.App., 101 S.W.2d 351.

Her claim to the land, or any part thereof, based upon a parol gift from Knox Norwood are equally unfounded. No showing of valuable improvements in good faith are shown. The evidence does not sustain any such claim.

The claim of title by 10-year limitation, Vernon’s Ann.Civ.St. art. 5510, is not established by the testimony. The support for such claim is lacking in different respects, but if it be considered valid in other particulars, the claim is not laid to any definitely described tract of land. The record reflects no description by which the court, the sheriff, or any proper authority could identify the land claimed adversely and locate it on the ground. So far as shown, the claim is laid to an undetermined and indefinite tract of land. These observations are relevant in the discussion of the theory of parol gift, as well as the question of partition, and relate to the tract “west of a branch” as well as the 1 ½ acres where stands a house. Houston Oil Co. v. Holland, Tex.Com.App., 222 S.W. 546; Giddings v. Fischer, 97 Tex. 184, 77 S.W. 209; Musgrove v. Foster Lumber Co., Tex.Civ.App., 89 S.W.2d 287; Smith v. Griffin, 131 Tex. 509, 116 S.W.2d 1064. See also Turfitt v. Perales et ux., 5 Cir., 63 F.2d 659.

Appellant seeks to have the judgment of the trial court reversed because it was taken against James Monroe Hudson, a nonresident, cited by publication, who made no appearance, and filed no answer, without the court’s having appointed an attorney to represent said absent defendant and without filing statement of the evidence, approved and signed by the judge, as provided in Art. 2158, Revised Civil Statutes 1925.

The appellee Norwood has heretofore made a motion to dismiss this appeal because said James Monroe Hudson was not a party to the same. That motion was answered and resisted by the appellant Mrs. Hudson asserting that she had been permanently separated from her husband for more than fifteen years; that the property in question was her separate estate, and in serious danger of being lost if she was not permitted to litigate her rights therein. Norwood’s' motion to dismiss the appeal on the ground stated was overruled. The appeal on its merits is now before this court.

It will be observed that Mrs. Hudson, and not her husband, is seeking to take advantage of this point. A different situation would be presented if James Monroe I-Iudson was properly before this court, seeking to have such alleged error considered. Price v. Traders’ Nat. Bank, Tex.Civ.App., 195 S.W. 934, 938. In this opinion it was held: “We have not considered the brief filed by Weadington, since he is not a party to this appeal; the majority of this court holding it to be a rule of appellate practice that under such circumstances his suggestion of fundamental error should not be considered. McKenzie v. Irrigation Co., Tex.Civ.App., 166 S.W. 495, 497; Needham v. Cooney, Tex.Civ.App., 173 S.W. 979.” That case reached the Supreme Court, and in 228 S.W. 160, 162, in an opinion by the Commission of Appeals, it was held: “The Court of Civil Appeals correctly held that Weadington, not having perfected an appeal from the judgment rendered against him, must be held bound by such judgment, and could not claim 'a reversal in his behalf on the appeal by the Days and Mrs. Price. Sullivan v. Doyle, 108 Tex. 368, 194 S.W. 136.” See Anderson v. Silliman, 92 Tex. 560, 50 S.W. 576; Luker v. Anderson, Tex.Civ.App., 10 S.W.2d 149.

It would seem certain that since James Monroe Hudson could not (under the record) be heard to urge this point as reversible error, for greater reasons the appellant must be denied that right. Especially should this be true in view of the evidence generally and the estoppel raised by her previous pleadings and conduct resisting the motion to dismiss this appeal.

The appellant insists that since Norwood holds under a sheriff’s deed to property sold under a judgment and order of sale issued out of the county court of Dallas County on a judgment for $1038.28 with six per cent interest from the date of judgment (April 6, 1931), etc., said amount being in excess of the jurisdiction of the county court, the court should have sustained the appellant’s objection thereto and required the plaintiff’s original petition, or certified copy thereof, to be presented in order to show affirmatively that the county court had jurisdiction to render the judgment.

The judgment under which the sale occurred discloses that it was for the principal .sum of $965.84, with 6 per cent interest on that amount from January 1, 1929, till date of judgment, April 6, 1931. Interest added to the principal gives a judgment of $1,038.28. The amount or matters in controversy at the time of filing the suit, and not the amount of recovery, is controlling. Obviously, the principal amount ($965.84) was not in excess of the' county court’s jurisdiction. Further, this is a collateral attack on the judgment and every presumption is in favor of its validity. We do not believe there is any merit in this contention. Smith v. Ridley, 30 Tex.Civ.App. 158, 70 S.W. 235; 25 Tex.Jur. p. 830, sec. 319 et seq. Also, secs. 324, 337, 338.

Norwood acquired the land at execution sale based on a judgment rendered in the County Court at Law No. 1 of Dallas County, Texas. The contention here made is that the judgment is void, because such court was not authorized by the Constitution of Texas, and, therefore, had no power or jurisdiction to render the judgment upon which the order of sale issued. Any such question appears to have been settled adversely to the appellant by the following decisions: City of Dallas v. Johnson, Tex.Civ.App., 54 S.W.2d 1024; Johnson v. City of Dallas, Tex.Civ.App., 78 S.W.2d 265; Keystone Pipe & Supply Co. v. Osborne, Tex.Civ.App., 73 S.W.2d 120, 124; Allison v. State, 127 Tex.Cr.R. 322, 76 S.W.2d 527; Id., 295 U.S. 717, 55 S.Ct. 828, 79 L.Ed. 1672; Id., 296 U.S. 661, 56 S.Ct. 82, 80 L.Ed. 471; Allen v. State, 122 Tex.Cr.R. 186, 54 S.W.2d 810; Tommy Pool v. State, Tex.Cr.App., 57 S.W.2d 1118.

For the reasons stated, appellant’s assignments are all overruled and the judgment of the trial court is affirmed.


author: GRISSOM, Justice.

text:
    HELTON v. LUSE & FOSDICK DRILLING CO.
    No. 2086.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 24, 1941.
    Maxberry & Vance, of Mt. Pleasant, for appellant.
    T. R. Florey, Jr., of Mt. Pleasant, for appellee.
   GRISSOM, Justice.

R. S. Helton instituted this suit against Luse & Fosdick Drilling Company to recover “permanent damages” to a 163-acre tract of land. Plaintiff .lived on said tract and had long been engaged there in farming and stock raising. It was alleged that plaintiff’s said farm was traversed by a stream known as Trent Branch; that said stream entered plaintiff’s farm on its northwest corner and flowed across said farm in a southeasterly direction; that -said stream was a “stream” or “water course” in the sense that said terms are used in Art. 698a of the Vernon’s Ann. Penal Code of Texas; that the defendant operated six oil wells located in the townsite of Talco, about 4 miles distant from plaintiff’s farm; that defendant released from said wells a flow of water into a trench and that said water found its way into Trent Branch; that there was dissolved in and inter-mixed with said water from said wells, salt, oil and oil well waste; that defendant’s act in turning' said salt water, oil and oil well waste into said stream had resulted in permanent damages to plaintiffs farm; that said act of the defendant was in violation of Arts. 698 and 698a, P.C., Acts 1931, 42d Leg., 1st C.S., p. 88,-ch. 42; that the violation of said statutes constituted negligence per se, and was the proximate cause of the damage to plaintiff’s farm.

The defendant answered, among other things, that there were about 175 oil wells and three refineries in the city of Talco which drain into Trent Branch, and excepted to plaintiffs petition because no method was alleged by which the damages caused by the defendant could be ascertained if plaintiff had been damaged. Defendant excepted to the petition because no act of negligence was alleged, and denied that it had violated the Penal laws of Texas. Defendant further alleged that prior thereto plaintiff instituted a similar suit against Tal-Tex Refinery Company, that judgment was rendered in said cause in November, 1938, in which it was ad-, judicated that no damage had been done to plaintiffs land; that said judgment was a final judgment, and that, therefore, plaintiff could not recover for any damage to his land prior to said date. The defendant further .answered by general denial.

The cause was submitted to a jury on special issues which were answered as follows: (1) That during the two-year period ending February 21, 1939, plaintiff’s farm did not sustain permanent damages; (2) that defendant did not unlawfully release any oil into Trent Branch; (3). that defendant did not release any salt water into Trent Branch; (4) that the salt water referred to in issue 3 neither produced nor contributed to a salinity in excess of 2,000 parts of salt to 1,000,000 parts of water; (5) that the oil referred to in issue No. 2 did not at any time during said period cover the surface of Trent Branch a distance in excess of 300 feet; (6) that the acts of defendant in releasing oil into Trent Branch, if it did, was not a proximate cause of damages to plaintiff’s farm; (7) that the acts of defendant in releasing salt water into Trent Branch, if it did, was not a proximate cause of damages to plaintiffs farm; (8) that Trent Branch has a channel with well-defined bed and banks; (9) that Trent Branch has a current of water; (10) that Trent Branch has a permanent source of water supply; (11) that the cash market value of plaintiff’s farm per acre on February 21, 1937 was $25; (12) that the cash market value of plaintiff’s farm per acre on February 21, 1939 was $25; (13) that the per cent of the total damages to plaintiff’s farm, if any, that was caused by the acts or omissions of the defendant was “none.” Judgment was rendered for defendant and plaintiff has appealed.

The case is presented to this court upon three assignments of error to the action of the court in overruling plaintiff’s motion for a new trial, (1) Because the jury’s verdict that plaintiff’s land had sustained no permanent injuries was contrary to the overwhelming preponderance of the evidence, (2) because the undisputed evidence showed the value of the farm to be $35 or $40 per acre in 1937, and the verdict set the value on that date at only $25 an acre, (3) because the jury was guilty of misconduct because after the jury had retired and “before a verdict was agreed upon, one of the jurors remarked to the jury that T think the plaintiff should have sued all the parties involved in the pollution of Trent Branch and not try to put all the burden on the defendant.’ ”

After a painstaking study of the statement of facts we conclude that the evidence sustains the findings of the jury complained of in the first and second assignments. They are overruled.

With reference to the error complained of in the third assignment, the testimony adduced upon the hearing of a motion for a new trial is uncertain as to just what was said by a juror with reference to his idea as to who should have been sued for the pollution of Trent Branch and leaves in uncertainty the time at which such statement, or a somewhat similar statement, was made. There is evidence sufficient to support a conclusion by the trial court that such a remark by the juror was madfe after the jury had answered special issue No. 1, to the effect that plaintiff’s farm had not sustained permanent damages, as alleged by plaintiff. In other words, the statement was made at a time when the jury had already determined a controlling issue against the plaintiff. It may be well doubted, however, whether or not said statement by an unnamed juror of his opinion as to the justness of plaintiff’s suit against the defendant constituted a “communication made to the jury” or constituted the reception of “other testimony” amounting to misconduct of a jury, within the meaning of Art. 2234, R.S.1925, or, if so, that same was material; that is, reasonably calculated to affect the verdict. However, if a juror expressed the opinion that plaintiff should have sued all the parties contributing to the pollution of Trent Branch and should not have attempted to lay all the blame on the defendant, or, if a juror stated, in substance, that he didn’t see how they could sue one man for damages when all parties were interested in it, or stated as still another witness’ version was “I didn’t know you could sue one, — I thought you would have to sue them all”, and, if it be assumed, for present purposes, that such a statement by a juror would ordinarily constitute misconduct of a jury, within the meaning of Art. 2234, and reversible error, we think this is not necessarily the result under the circumstances of this case. There was testimony that some such statement was made after the jury had come to the conclusion that “Mr. Helton wasn’t entitled to anything” from the defendant, that the question as to whether it might have been different if plaintiff had sued all the parties who contributed to the pollution of Trent Branch was discussed “after we rendered a verdict.” The evidence was sufficient to sustain the court’s finding that some such statement was made after the jury had determined that there had been no permanent damage to plaintiff’s land. Under the circumstances we think the court was authorized to conclude that the statement was made at a time when it was not reasonably calculated to affect the verdict, if otherwise it might have done so. Kaker v. Parrish, Tex.Civ.App., 187 S.W. 517, 521, writ refused; Hansen v. Ponder, Tex.Civ.App., 23 S.W.2d 737, 738, writ refused; Wilson v. Place, Tex.Civ.App., 293 S.W. 322, 324; Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770, 773; Magee v. Cavins, Tex.Civ.App., 197 S.W. 1015, 1019; Texas Utilities Co. v. Dear, Tex.Civ.App., 64 S.W.2d 807, 816, writ dismissed; McMath v. Staten, Tex.Civ.App., 60 S.W.2d 290, 295; E. L. Martin, Inc., v. Kyser, Tex.Civ.App., 104 S.W.2d 592, 596; Farmers’ Nat. Bank v. Harper, Tex.Civ.App., 261 S.W. 160, 162; Traders & Gen. Ins. Co. v. Lincecum 130 Tex. 220, 107 S.W.2d 585, 587; Giles v. Tyson, Tex.Civ.App., 13 S.W.2d 452, 455.

In Paluxy Asphalt Co. v. Helton, Tex.Civ.App., 144 S.W.2d 453, the same plaintiff instituted a similar suit for damages, apparently to the same tract of land, against a different defendant. Recovery there, as here, was not sought on appellant’s negligence, except as a violation of Arts. 698 and 698a of the Penal Code constitutes negligence per se. Judgment in that case was for the plaintiff. The Galveston Court of Civil Appeals, in an opinion by Justice Cody, held that in order for plaintiff to show a violation of said statutes in discharging oil or refinery waste into Trent Branch it was required that the testimony show the oil or waste from the defendant’s plant spread over the waters of the branch, or covered its surface, for a distance of 300 feet. Art. 698a Vernon’s Ann. Penal Code, sec. 1 provides that when a violation of said Act is charged proof must be made that the oil or waste “covered an area of such water in excess of ten thousand (10,000) square feet or was on the surface of a river, stream, bayou or channel of this State for a distance in excess of three hundred (300) feet.” Section 2 of said statute provides, in substance, that it shall not be a violation thereof to discharge salt water into a stream unless such act “produces or contributes to a salinity in excess to two thousand parts of salt in one million parts of water * *

In the instant case, it is undisputed that at the time of the trial of this case there were 670 oil wells in the Talco field; that 187 of these drained into Trent Branch; that at said time there were two refineries draining into Trent Branch. It was agreed that “the defendant and other operators in the Talco field have contributed to the pollution of Trent Branch.” There were neither allegations nor evidence that the defendant discharged oil or oil well waste into Trent Branch and covered the surface thereof in excess of 300 feet, nor is there allegation or evidence that the defendant discharged salt water into Trent Branch that produced or contributed to a salinity in excess of 2000 parts of salt in 1,000,000 parts of water. Plaintiff’s suit depended upon allegations and proof of a violation of the named statutes. The defendant was not shown to have violated said statutes in the absence of such evidence. The evidence relative thereto was to the contrary. Under such situation, under the decision in Paluxy Asphalt Co. v. Helton, supra, the judgment was necessarily for the defendant. Regardless of the questions heretofore discussed, the judgment rendered was the only one that could properly have been rendered in the cause. Handy v. Olney Oil & Refining Co., Tex.Civ.App., 68 S.W.2d 313, writ refused.

The judgment is affirmed.


author: JOHNSON, Chief Justice.

text:
    SOUTHERN UNDERWRITERS et al. v. MOWERY.
    No. 5683.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 14, 1941.
    Rehearing Denied Feb. 6, 1941.

      Will R. Saunders and Claude Williams, both of Dallas, and Stinchcomb, Kenley & Sharp, of Longview, for plaintiffs in error.
    White & Yarborough, of Dallas, and J. •P. Moseley, of Ennis, for defendant in error.
   JOHNSON, Chief Justice.

This suit was filed by M. V. Mowery against the Southern Underwriters and the United Employers Casualty Company to set aside an award of the Industrial Accident Board of Texas, and to recover compensation for alleged disability resulting from personal injury accidentally sustained while working in the course of his employment with Stroud Cable Tool Drilling Company, which company was insured under the Workmen’s Compensation Act by defendants. With respect to his injury plaintiff alleged that while working as an oil well driller for his said employer an explosion occurred October 24, 1937, throwing oil and flames upon his body, face, hands, arms, shoulders, back, stomach, hips and thighs, severely burning him, “practically all over his body,” rendering him unconscious for about two weeks. He further alleged: “That plaintiff’s face, eyes, mouth, cheeks, nose, chin, forehead, and all the soft tissues, ligaments, nerves, muscles and muscular attachments thereof were severely burned * * * that plaintiff’s arms, hands, fingers, thumbs, wrists, elbows and all the tendons, leaders, ligaments, nerves, muscles and muscular attachments, soft tissue and bony parts thereof and those radiating thereto and therefrom, were severely burned, and as a natural result thereof the leaders and ligaments have become drawn * * * that plaintiff sustained second and third degree burns on his hands, each and both of them, wrists, and forearms, and that his fingers have been rendered stiff, and that he can not close either of his hands, either by active or passive manipulations. * * * ”

The petition continues at length to describe the burns and results thereof from which plaintiff claims to have sustained total, permanent disability; and alternatively pleads total temporary, partial permanent, and partial temporary disability. Defendants’ answers contain a general denial. The case was submitted to a jury upon special issues, in response to which the jury found:

(2) That plaintiff accidentally sustained personal injuries on or about October 24, 1937.

(3) That he sustained such injuries while working as employee of Stroud Cable Tool Drilling Company.

(4) That such injuries were sustained by him in the course of his employment with said Company.

(5) That plaintiff sustained total incapacity on said date.

(6) That such total incapacity is permanent’.

(7) That the incapacity sustained by plaintiff naturally resulted from the injuries sustained by him on October 24, 1937.

(9) That said total incapacity so sustained by plaintiff will continue throughout his life.

(10) That the incapacity sustained by plaintiff was not partial.

(24) That plaintiff sustained total incapacity on said date to his' right hand.

(25) That such total incapacity to his right hand is permanent.

(26) That such total incapacity to his right hand will continue throughout plaintiff’s life.

(27) That the incapacity sustained to his right hand was not partial.

(32) That plaintiff sustained total incapacity to his left hand on said date.

(33) That such total incapacity to his left hand is permanent.

(34) That such total incapacity to his left hand will continue throughout plaintiff’s life.

(35) That the incapacity sustained to plaintiff’s left hand is not partial.

(37) That partial incapacity, if any, sustained to plaintiff’s left hand, is not permanent.

(40)That the total incapacity sustained by plaintiff is not temporary.

(41) That the partial incapacity, if any, sustained by plaintiff is not temporary.

(42) That plaintiff’s incapacity is confined solely to both hands.

(43) That his incapacity is not solely the result of hypertrophic arthritis.

(44) That his incapacity is not solely the result of prior kidney trouble.

(45) That his present incapacity is not the result of a prior injury.

(46) That the percentage, if any, of his present incapacity that is not attributable to or connected with or caused by previous" injuries sustained by plaintiff prior to October 24, 1937, is “No percentage”.

(47) That his incapacity is not solely the result of the ravages of old age or senility.

The jury made other findings which are not material to any proposition raised on this appeal and for that reason are not quoted. Judgment was entered awarding plaintiff compensation at the rate of $20 per week for 401 weeks, reduced to a lump sum and credited with payments previously made by defendants of $20 per week for twenty-five weeks. Defendants have perfected writ of error to this court. Plaintiffs in error will be referred to as appellants- and the defendant in error will be referred to as appellee.

Appellants’ 1st, 2nd, and 3rd propositions assert that there is irreconcilable conflict in the jury’s answers to special issues No. 45 and 46. Special issue No. 45 and the jury’s answer thereto-read as follows: “Do you find from a preponderance of the evidence that the plaintiff’s present incapacity, if any, whether partial or total, is not the result of a prior injury received by plaintiff before October 24, 1937?” Answer: “His present incapacity is not the result of a prior injury.”

Special issue No. 46 and the jury’s answer thereto reads as follows: “What, do you find, from a preponderance of the evidence, to be the per cent of plaintiff’s present incapacity, if any, whether total or partial, is not attributable to or connected with or caused by previous injuries sustained by plaintiff prior to .October 24, 1937? Answer in percentage, if any.” Answer: “No percentage.”

It is the contention of appellants, since question No. 46 is phrased in the negative, that the answer, “No percentage”, means “No percentage of plaintiff’s present incapacity is not attributable to or connected with or caused by previous injury,” and that the same amounts to an affirmative finding “that 100% or all plaintiff’s present incapacity is the result of a prior injury,” and that such answer is in irreconcilable conflict with the jury’s answer to special issue No. 45. It is the duty of the court to reconcile apparent conflict in jury answers to material issues if it can be reasonably done in the light of the pleadings and evidence. 41 T.J. 1224, § 360 et seq. If given the meaning placed on it by appellants’ construction, the answer to special issue No. 46 would be without any support in the evidence. But reconciliation of apparent conflict is not to be determined by the fact that the answer to one of the issues is without support in evidence, when, as here, the remedy of motion to render judgment non obstante veredicto, as provided by Article 2211, Vernon’s Ann. Civ. Statutes, was not pursued in the trial court. Hines v. Parks, 128 Tex. 289,. 96 S.W.2d 970. It will be observed that special issue No. 46 is duplicitous by inquiring as to what percentage, if any, of appellee’s present incapacity is not (1) attributable to, (2) or connected with, (3) or caused by, previous injuries. Since in answer to a plain and unambiguous question (special issue No. 45) the jury expressly found that appellee’s present incapacity is not the result of a prior injury, the answer to No. 46 may reasonably be referred to the second inquiry contained therein, that is, as to whether there was any connection between his present incapacity and a prior injury. Howard v. Howard, Tex.Civ.App., 102 S.W.2d 473. To be material the previous injury must have contributed to the present incapacity.' R.C.S. Article 8306, Sec. 12c.' A finding that is immaterial may be disregarded as sur-plusage. Brokaw v. Collett, Tex.Com.App., 1 S.W.2d 1090. There is another reason why. the answer to special issue No. 46 should' not be held in irreconcilable conflict with answer to special issue No. 45. The answer to No. 46 does not expressly affirm as a fact that appellee’s present incapacity is in any degree the result of or connected with a prior injury. In view of the- form of the question, the answer may reasonably be construed as meaning to say that if any of appellee’s present incapacity is attributable to or connected with a prior injury, then in such event all his present incapacity is attributable to or connected with a prior injury. At most there is but an implication of a finding that appellee’s present incapacity is the result of a prior injury. “Such implication should not be held sufficient to contradict and nullify the express finding” made in answer to special issue No. 45. Traders & General Insurance Co. v. Ross, 131 Tex. 562, 117 S.W.2d 423, 425; Millers’ Indemnity Underwriters v. Schrieber, Tex.Civ.App., 240 S.W. 963, writ refused.

Appellants’ 4th and 5th propositions make the contention that the jury’s answers to special issue No. 42 is in irreconcilable conflict with the jury’s answers to special issue No. 5 and No. 6. In answer to special issue No. 5 and No. 6 the jury found that appellee sustained total and permanent incapacity. In answer to special issue No. 42 the jury found that appellee’s incapacity is confined solely to both hands. In determining whether alleged conflict in answers to particular issues is irreconcilable, they may be viewed in the light of other findings. The verdict as a whole should be construed. 41 T.J. 1224, § 360. When this is done the apparent conflict here alleged becomes reconciled; for in answer to special issues Nos. 24, 25, 32, and 33, the jury found that appellee sustained total permanent incapacity to both hands. The term “total incapacity to his hands” as used in the court’s charge was defined to mean the total loss of the use of his hands at or above the wrist. The findings that the appellee sustained total and permanent loss of the use of both hands at or above the wrist raises the conclusive presumption that his incapacity is total and permanent. Article 8306, Sec. 11a, Vernon’s Ann.Civ.Statutes (Acts 1927, 40th Leg. p. 41, Chap. 28, Sec. 1), reads:

“Sec. 11a. In cases of the following injuries, the .incapacity shall conclusively be held to be total and permanent, to-wit:
“(1) The total and permanent loss of the sight of both eyes.
“(2) The loss of both feet at or above the ankle.
“(3) The loss of both hands at or above the wrist.
“(4) A similar loss of one hand and one foot.
“(5) An injury to the spine resulting in permanent and complete paralysis of both arms or both'legs or of one arm and one leg.
“(6) An injury to the skull resulting in incurable insanity or imbecility.
“In any of the above enumerated cases it shall be considered that the total loss of the use of a member shall be equivalent to and draw the same compensation during the time of such total loss of the use thereof as for the total and permanent loss of such member.
“The above enumeration is not to be taken as exclusive but in all other cases the burden of proof shall be on the claimant to prove that his injuries have resulted in permanent, total incapacity.”

So it is seen that the findings in answer to Nos. 5 and 6, that appellee’s incapacity is in fact total and permanent, do not conflict with the findings in answer to Nos. 42, 24, 25, 32, and 33, that his incapacity is confined to both hands, and that such incapacity is the total and permanent loss of the use of both hands at or above the wrists, but accord with the conclusive presumption raised by such latter findings.

Appellants’ 6th and 7th propositions complain of the phrase “at or above the wrist” contained in the trial court’s definition of the term “total incapacity of the hand” and “partial incapacity of the. hands” as used in the court’s charge, reading:

“You are instructed that the phrase ‘total incapacity of the hand,’ as used in the court’s charge means total loss of the use of the hand at or above the wrist; it does not imply an absolute disability to perform any kind of labor, but such incapacity of the hand that it disqualifies a person from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment requiring the use of said hand is ordinarily regarded as total incapacity of the hand.
“You are instructed that by the term ‘partial incapacity of his hand’, as used in the court’s charge is meant the extent, if any, that the injury, if any, to his hand at or above the wrist, in fact destroys or impairs the ability of the hand to be as efficient and competent for performing the usual tasks of a workman after the injury, if any, as it was before; any degree of incapacity in the hand less than total.”

Appellants in the trial court objected to the definition of the term “total incapacity of the hand” for the reason “that said definition is an incorrect legal definition of said term when applied to the specific loss of the use of the hand which, in law, means the loss of the use of the arm below the elbow, and not at or above the wrist, as set out in the court’s charge * * and to the definition of the term “partial incapacity of the hand” for the reason “that said definition is too broad and too general and is not confined to the statutory element concerning the specific loss of the use of the hand which means in law the partial loss of the use of the arm below the elbow and therefore said definition does not confine the jury’s determination to the specific elements set out in the law.” The contention now made is that the testimony of appellants’ doctor witnesses show that appel-lee’s disability is confined to his fingers and that the phrase “at or above the wrist” in said definition is too restrictive and prevents the jury from considering said testimony. We do not interpret the testimony of said witnesses as intending to say that appellee’s incapacity is confined to his fingers, but should such testimony be so construed, appellants failed to request and thereby waived any issue as to appellee’s disability being confined to his fingers. The definition complained of properly (and favorably to appellants) prevented the jury from using incapacity confined to the fingers as a basis for their answer that he had sustained incapacity to his hands, but it did not prevent the jury from considering and weighing the testimony of appellants’ doctor witnesses tending to show, if it dick that appellee’s incapacity is confined to the-fingers, insofar or in the sense that such testimony disputed and tended to disprove the testimony of appellee and his doctor witnesses to the effect that he had lost the use of his hands at and above the wrists. The phrase complained of is framed, and correctly so, in the language of the statute under which appellee sought to recover. Article 8306, Sec. 11a. The propositions are overruled.

Appellants’ 8th proposition complains of the trial court’s action in overruling their objections, that special issue No. 2 is too broad and allowed the jury to take into consideration injuries pleaded but not proved, and injuries proved but not pleaded. The issue reads: “Do you find from a preponderance of the evidence, that plaintiff, M. V. Mowery, accidentally sustained personal injuries on or about the 24th day of October, 1937?” The answer was in the affirmative. Special issues framed similarly to that here under consideration are discussed in the following cases: Southern Underwriters v. Thomas, Tex.Civ.App., 131 S.W.2d 409, and Southern Underwriters v. Wright, Tex.Civ.App., 142 S.W.2d 297, and cases therein cited. It is a settled rule of law that recovery must not be allowed upon a cause of action alleged hut not proved, nor upon one proved but not alleged. But the question of whether a special issue is too broad and for that reason might result in violation of such rule by a judgment being rendered upon the verdict returned in response thereto, generally is to be determined from the pleadings, evidence, and the charge of the court as a whole, in the particular case in which the issue is submitted. We do not think that the issue under consideration is to be condemned as constituting reversible error in all cases without regard to the circumstances of the particular case in which it is submitted. We agree that in a case where the court has permitted proof of an injury different from that alleged in the petition, the issue would be too broad for in such case it might permit an affirmative answer (and judgment) based upon testimony before the jury of an injury not pleaded. Traders’ & General Ins. Co. v. Low, Tex.Civ.App., 74 S.W.2d 122, writ refused; Southern Underwriters v. West, Tex.Civ.App., 126 S.W.2d 510, writ refused. But we do not have that circumstance in this case. In the present case appellants have not pointed out, and our examination of the record has not revealed, any injury shown in the testimony different from that pleaded, nor any pleaded and not' proved. In the statement under this proposition appellants assert “that there is no pleading on behalf of the plaintiff that he had sustained any incapacity to his eyesight or eyes.” The assertion is true, but the fact that appel-lee did not plead that he had sustained any incapacity to his eyes or eyesight is immaterial in this case: (1) Because the inquiry made by the issue is confined to “injury” as distinguishable from “incapacity” ; (2) because there is no testimony showing that the burns resulted in either injury or incapacity to his eyes or eyesight; and no recovery is sought for incapacity to his eyesight or eyes. It will be further noted that special issue No. 2 when read in connection with the court’s definition of “preponderance of the evidence,” defined by the court to the jury as meaning “the greater weight and degree of credible testimony before you”, prevents the jury from considering any injury alleged but not shown in the testimony before the jury. There is another reason why special issue No. 2 does not authorize, reversal of this case, because the judgment rendered is supported by the findings of the jury in answer to special issues sustaining total permanent incapacity as a result of the injury found to have been confined to both hands at or above the wrist. Article 8306, Sec. 11a.

Appellants’ 9th proposition complains of action of the trial court ,in orally, instead of in writing, stating to the jury that their answers to special issues Nos. 27 and 35 were in conflict and to retire and reconcile the conflict. In answer to special issue No. 35 the jury found that appellee’s incapacity to his left hand is not partial. In answer to special issue No. 37 the jury found that partial incapacity, if any, to appellee’s left hand is not permanent. ' It appears from appellants’ bill of exception and the court’s qualification thereof that all the proceedings complained of were in open court and in the presence and hearing of the attorneys for appellants and the attorneys for appellee; that the jury had previously returned into court and announced that they had reached a verdict, and upon examination of same by the court before being accepted, it appeared that the jury had in answer to special issue No. 35 found that appellee had not sustained partial incapacity to his left hand and having so found, the jury did not answer No. 37, inquiring whether partial incapacity to his left hand, if any, was permanent. Whereupon the court orally stated to the jury to retire and answer special issue No. 37. After retiring the jury again came into open court and announced that they had reached a verdict which was examined by the court and in which they had answered No. 37 “Yes”. Whereupon the court orally stated to the jury that the answer to No. 37 conflicted with their answer to No. 35 and to retire and reconcile the conflict. After the jury had been so retired and had closed the door to their room, one of the attorneys for appellants made objection to the court because his statement informing the jury that their said answers were in conflict and directing them to retire and reconcile the conflict was not made in writing. Whereupon the jury again returned into court and announced that they had reached a verdict, which was examined and accepted by the court and in which verdict the jrtry had changed their answer to No. 37 from ‘Yes” to “No.” The contention is made to the effect that an oral statement by the court to the jury calling their attention to the fact that their answers to certain issues are in conflict and directing them to retire and reconcile the conflict is a charge of the court required to be in writing, citing R.C.S. Article 2198, and Scroggs v. Morgan, 133 Tex. 581, 130 S.W.2d 283. The statute and decision last above cited are not applicable to the facts in the present case. The rule governing here is declared in Dallas Ry. & Term. Co. v. Starling, 130 Tex. 379, 110 S.W.2d 557, 558, as follows:

“By a long line of decisions it has been established that a trial judge not only has the power and authority to decline to receive a verdict of a jury containing conflicting findings, but that it is his duty upon discovering such conflict or conflicts to point them out and retire the jury for further consideration of their answers. The appropriate procedure was outlined in the case of St. Louis, S. F. & T. Ry. Co. v. Kaylor, Tex.Com.App., 291 S.W. 216, 218, in this language: ‘Trial courts should, in a preliminary way, read proposed answers being returned by juries to special issues. If a conflict is discovered by the court, he should state to the jury that the answers are conflicting and, in their present status, would not warrant an entry of any judgment in the case. With that information, the jury should be retired for further consideration of the issues and their answers thereto. But the court should not indicate to the jury, or permit counsel to do so, that it would be to the interest of one of the parties to have a certain issue answered in a certain way.’
“The opinion quotes with approval language of similar import from a prior decision of this section of the Commission of Appeals in the case of Wichita Valley Ry. Co. v. Southern Casualty Co., 284 S.W. 940. Among other decisions of like effect may be noted the following: Denison Cotton Mill Co. v. McAmis, Tex.Civ.App., 176 S.W. 621, reversed on other grounds, Tex.Com.App., 215 S.W. 442, 447; Turner v. Missouri, K. & T. Ry. Co. of Texas, Tex.Civ.App., 177 S.W. 204, error refused; Mayo v. Fort Worth & D. C. Ry. Co., Tex.Civ.App., 234 S.W. 937, error dismissed; St. Louis Southwestern Ry. Co. v. Larkin, Tex.Civ.App., 34 S.W.2d 693, error dismissed; Petroleum Casualty Co. v. Bristow, Tex.Civ.App., 35 S.W.2d 246, error dismissed; Traders’ & General Ins. Co. v. Nunley, Tex.Civ.App., 80 S.W.2d 383, error refused.”

The rule above quoted does not expressly state that such instructions should be made in writing, but we think it is to be so implied from the subject matter of the rule. However, we do not think that failure to do so necessarily constitutes reversible error in all cases. Dallas Ry. & Term. Co. v. Horton, Tex.Civ.App., 119 S.W.2d 122, writ dismissed. Failure to do so in the present case did not constitute reversible error, because it affirmatively appears from the record that appellants were not harmed thereby, as will be shown below. When the jury rendered their verdict in the first instance, in which they had found in answer to No. 35 that ap-pellee had not sustained partial incapacity to his left hand, and in which No. 37 inquiring as to the duration of partial incapacity, if any, sustained to his left hand, was not answered, this verdict should have been accepted. The jury having found that appellee had not sustainéd partial incapacity to his left hand, the inquiry as to duration of partial incapacity, if any, sustained to his left hand, passed out of the case. The jury should not have been directed to retire and answer No. 37, and thus attempt to measure the duration of partial incapacity which they had found did not exist; in their efforts to do so neither of the findings, that such partial incapacity, if any, sustained was “permanent” or was “temporary”, would be held in irreconcilable conflict with or change the result of the express finding in answer to special issue No. 35. Traders & General Ins. Co. v. Ross, supra; Millers’ Indemnity Underwriters v. Schrieber, supra.

Appellants have grouped their propositions 10 to 16, inclusive, under one discussion, and we shall dispose of them in like manner. The propositions complain of the trial court’s instructions accompanying each of the special issues Nos. 40, 41, 42, 43, 44, 45, and 47, which instructions directed the jury as to the form or language in which to frame their answers, whether in affirmative or negative, in response to each of said issues. Special issue No. 40 and its accompanying instructions will serve as illustrations. Special issue No. 40 reads as follows:

“Do you find from a preponderance of the evidence that the total incapacity of the plaintiff, M. V. Mowery, if any, as a natural result of the accidental personal injury, if any, sustained by him on October 24, 1937, is not temporary?
“If you find from the evidence that the total incapacity of the plaintiff is not temporary, let the form of your verdict be ‘His total incapacity is not temporary’; if you find from the evidence that the .total incapacity of the plaintiff is temporary, let the form of your verdict be, '‘His total incapacity is temporary.’ ”
Answer: “His total incapacity is not temporary.”

" The contention, in substance, is that the phrase “If you find from the evidence” contained in the instructions directing the jury as to the form of their answers, by implication had the effect of striking down the charge on the burden of proof, correctly expressed in each of the questions inquiring: “Do you find from a preponderance of the evidence * * and put the burden on the appellants of establishing their several defenses presented by said issues; for example, that as to special issue No. 40, the phrase complained of had the effect of requiring the appellants to establish by evidence their defense that appellee’s total incapacity “is temporary,” and that requiring appellants to so establish their defense of temporary incapacity was error. In answer to the contention appellee cites the case of Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314, 316, in which it is said that “the defendant has the burden of establishing by a preponderance of the evidence its defense of partial incapacity,” and which appellee contends is authority for his contention that- no error was committed in requiring appellants to establish (by evidence less than a preponderance) their defense of temporary incapacity. It is further contended that the phrase complained of carries no stronger implication of withdrawing the burden of proof correctly stated in the question than does the instructions suggested in Southern Ice & Utilities Co. v. Richardson, 128 Tex. 82, 95 S.W.2d 956. In the case of Gulf, C. & S. F. Ry. Co. v. Ginn, 131 Tex. 548, 116 S.W.2d 693, 116 A.L.R. 795. The particular phrase referred to by appellee and found at the conclusion of the suggested instructions contained in the Richardson case was improved upon, if not by implication withdrawn. The instructions contained in the Ginn case should in substance be followed and thus avoid the objection here raised; but failure to do so in the present case has worked no reversible error, for 'reasons shown below with respect to each of the issues to which the instructions complained of were attached.

Special issue No. 40 should not have been submitted at all, because the opposite of that special issue, involving the same inquiry, had already been submitted in the affirmative in special issues Nos. 6, 9, 25, 26, 33, and 34, to which issues the alleged erroneous instructions were not attached and in answer to which the jury found that appellee’s total incapacity was permanent, and that it would continue throughout life. The fact that special issues Nos. 6, 9, 25, 26, 33, and 34 submitted the inquiry phrased affirmatively did not require that the inquiry again be submitted and phrased negatively. Wright v. Traders & General Ins. Co., supra.

Special issue No. 41 inquired whether “partial incapacity,” sustained by appellee, if any, is not temporary. In answer to special issues Nos. 10, 27 and 35 (not accompanied by the complained of instructions), the jury found that appellee had not sustained partial incapacity. When the jury found that appellee had not sustained partial incapacity, special issue No. 41 inquiring as to the duration of partial incapacity, if any, became immaterial. See decisions and authorities cited in disposing of appellants’ propositions Nos. 1, 2, 3, and 9.

Special issue No. 42 inquired whether appellee’s incapacity is not confined solely to both hands. The jury answered this issue in favor of appellants. Therefore appellants were not in any way injured by the alleged erroneous instruction accompanying the issue.

Special issue No. 43 inquired whether appellee’s present incapacity is not solely the result of hypertrophic arthritis. This issue was not raised in the evidence. There was no testimony tending to show that ap-pellee’s incapacity is solely the result of hypertrophic arthritis. The only testimony tending to show that appellee was in any degree suffering from hypertrophic arthritis was that of appellants’ witness Dr. I. Goldbloom who testified that from an X-ray picture of appellee’s hands he could see indications of hypertrophic arthritis in the joints of his fingers.

“Q. Whereabouts did he have arthritis ? A. In the joints of his fingers, in his phalanges — all fingers.
“Q. Would you attribute it (incapacity) to the burn? A. I will attribute it to the pre-existing arthritis and the burn.
“Q. Both of them, then, from your standpoint are a contributing cause of his condition? A. That is correct.”

This testimony not only fails to affirm, but expressly negatives the fact that hypertrophic arthritis is the sole cause of appellee’s incapacity. The fact that ap-pellee may have been suffering from preexisting arthritis and that it contributed to his present incapacity is not sufficient; it must have been the sole cause. Texas Employers’ Ins. Assn. v. Parr, Tex.Com.App., 30 S.W.2d 305; Traders & General Ins. Co. v. Wright, Tex.Civ.App., 95 S.W.2d 753, affirmed by Com.App. 132 Tex. 172, 123 S.W.2d 314; Armour & Co. v. Tomlin, Tex.Com.App., 60 S.W.2d 204 ; 45 T.J. p. 492, §§ 98, 186.

Special issue No. 44 inquires whether appellee’s present incapacity is not solely the result of pre-existing kidney trouble. The testimony referable to pre-existing kidney trouble is that of appellee who was asked whether he had ever had any trouble with his kidneys prior to the burns, and in response to which he answered: “Not a great deal.” He further testified that since the injury he had trouble with his kidneys all the time. There is testimony to the effect that if appellee did have any pre-existing disease of the kidneys, the result of the burns would have the effect of aggravating it, in that from the great amount of skin surface burned the system had suffered loss in power of' excretion, or throwing off of poison which from the burned tissue had to be absorbed through the blood and cause injury to the kidneys. There is no testimony that present or preexisting trouble or disease of the kidneys has in any way contributed to the incapacity of appellee’s hands, testified to by all the witnesses, and found by the jury to have resulted from the burns, and upon which the judgment is based.

Special issue No. 45 inquires whether appellee’s present incapacity is not the result of a prior injury. The only testimony of prior injury was that of the ap-pellee. He testified that in 1900 (37 years prior to his present injury), “I sprained my wrist a little bit and was off work three days.” That in 1925 or 1926 (more than 11 years prior to his present injury), he testified, “I sprained my back a little bit,” and was “off work about six days.” That in 1936, he testified, “I got some sand in my eye” and went to see Dr. Hurst, and that Dr. Hurst treated it. He further testified that these were the only injuries he had ever received and that he had entirely recovered therefrom. He further testified that he had regularly been employed doing hard manual labor as an oil well driller for forty years prior to his present injury; that he was physically strong and that “nothing was wrong with me” at the time of the injury. His testimony was in some degree corroborated by the fact that he had been at work as an oil well driller for his present employer for more than a year prior to the injury; and by testimony of Dr. J. H. Ross, who was acquainted with appellee prior to and at the time of the injury, and that appellee was then “indeed an active man.” The previous injuries, if they could be classed as such, are too minor in nature and too remote in point of time to raise an inference of causal connection between then and the present incapacity. There is no testimony claiming that such injuries contributed to appellee’s present incapacity. Texas Employers’ Ins. Ass’n v. Heuer, Tex.Civ.App., 10 S.W.2d 756; Texas Employers’ Ins. Ass’n v. Parr, supra; Texas Indemnity Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026; Casualty Reciprocal Exchange v. Dawson, Tex.Civ.App., 81 S.W.2d 284; Traders & General Ins. Co. v. Wyrick, Tex.Civ.App., 118 S.W.2d 923.

Special issue No. 47 inquired whether ap-pellee’s incapacity is not solely the result of the ravages of old age or senility. The testimony with respect to this issue shows that appellee is sixty years of age; that prior to his injury he had been working as an oil well driller for forty years; that such was hard manual -labor and he had been doing that work for. his present employer for seventeen months and twenty-three days prior to his injury; that he was a strong healthy man with steady nerves; that since his injury he is nervous. Dr. Hurst and Dr. Ross, witnesses for appel-lee, testified that his nervous condition was due to the severe shock from the burns. Dr. I. Goldbloom, witness for appellants, testified: “Q. Now, Doctor, what did you find in this man with reference to anything abnormal in his nervous system? A. He told me that he had been nervous of late years, that he had felt more nervous since he had been burned. I felt that the nervousness, it was my opinion that the existing nervousness that he had, on account of the character of the nervousness, was due to his age, because this type of nervousness can be only due to certain nervous system involvments, in other words, bring involvment and not due to any cause which affect the extremities.”

Dr. McRae, witness for appellants, testified: “It (the nervous condition) is probably a senile thing, coming on with age. However, it can be aggravated a little bit or hastened by trauma.”

None 'of the witnesses testified that old age or senility or the condition of ap-pellee’s nerves had or was calculated to contribute to the disability resulting from the burns to appellee’s hands. There is no dispute in the testimony of all the witnesses but that the disability of appellee’s hands is the direct result of the burns. The dispute is as to the extent of such disability to his hands. As to the burns to appellee’s hands the testimony shows: Dr. Hurst testified that a first degree burn involves the skin; that a second degree burn involves the skin and tissue under the skin; that a third degree burn involves the muscles, ligaments and bones underneath; that the burns to both appellee’s hands, wrists and forearms below the elbows were second and third degree burns, and had rendered them stiff to where he could not grip or close his hands, thus incapacitating them for the purposes of work; that such incapacity was total and was permanent. To the same effect is the testimony of Dr. Ross. Dr. Goldbloom testified: “I would say that the burns on his arms and hands were of the second degree * * * the burned area extended up both arms, involved the wrists and hands * * * below the elbow, from which plaintiff has sustained about 35% disability in the use of both hands, and about 15% 'disability to the fingers on both hands.”

Dr. McRae testified:

“The result of my examination was this, he (plaintiff) has considerable disability in his hands from which he will not recover.”
“Q. In other words, he has some permanent disability in each hand? A. Yes, sir.
“Q. What is your opinion, based upon that examination, now as to the degree or per cent of the loss of the use of his hands ? A. About 50%.
“Q. Each hand? A. Yes, sir.”
Dr. McRae then itemized the disability to each of' his fingers, and gave his opinion as to the extent of the disability to each finger. He further testified:
“Q. I will ask you to state whether or not you formed an opinion as to whether or not the man’s disability was confined to the loss of the use of the hands? A. Yes, sir.
“Q. You have already given your opinion relative to that? A. Relative to the burns, the disability caused by the burns is caused by. the loss of the use of his hands.”

Expressed in other words, all the testimony is in accord that the disability to the hands was caused by the burns.

Appellants’ propositions 17 and 18 complain of the trial court’s action in submitting special issues Nos. 27 and 35, making inquiry, affirmatively phrased, as to whether appellee had sustained partial incapacity of his hands. The contention is made that since appellants would not be obligated to pay as much compensation should the jury have found that such disability was partial, it constituted a ground of defense, and said issues for that reason should have been phrased negatively. The question raised by these propositions was decided adversely to appellants’ contention in Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314.

The judgment of the trial court will be affirmed.


author: CODY, Justice.

text:
    DURDEN v. PATTERSON, District Clerk, et al.
    No. 11222.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 13, 1941.
    A. L. Pierson, Harold Kahn, and J. R. Hill, all of Houston, for relator.
    Carlos B. Masterson, of Angleton, and J. E. Price and J. V. Wheat, both of Houston, for respondents.
   CODY, Justice.

A former application by relator, seeking the same relief now sought in this application was dismissed without prejudice on December 19, 1940. Durden v. Patterson et al., Tex.Civ.App., 146 S.W.2d 296. The parties who were adverse to relator in the trial court have now been joined as respondents to relators’ application for writ of mandamus to compel the clerk and the court reporter, respectively, to prepare and furnish relator, as administratrix de bonis non of the estate of Jacob Kiehlbauch, a requested transcript and statement of facts, without payment or security therefor in a cause No. 27,679 in the District Court of Brazoria County, Texas, styled “The Estate of Jacob Kiehlbauch, deceased, by administratrix, d.b.n., Bernice Kiehlbauch Durden v. Mrs. Kittie Nash Groce et al.” All necessary parties are now before the Court and we now have jurisdiction to act on the application. A fuller statement appears in our former opinion dismissing the application for want of necessary parties. See citation supra. For an understanding of the disposition of the present application, it is only necessary to know that relator was plaintiff and cross-defendant in said cause No. 27,679 in the District Court of Brazoria County, which was a suit in trespass to try title; and that, in a trial without a jury, a judgment adverse to relator was rendered on September 16, 1940, and further, that relator, in open court, duly excepted and gave notice of appeal; that the respondent clerk and the respondent court reporter have refused, as above indicated, to prepare and furnish the transcript and statement of facts without being paid therefor.

Relator was by force of R.S. Articles 2072 and 2276 entitled to appeal without giving bond. And no authority need be cited in support of the proposition that an administrator perfects an appeal in his fiduciary capacity by giving notice of appeal in open court, and is not required to give bond. In other words, an administrator is entitled to the same rights by giving notice of appeal and not giving bond as the ordinary litigant is entitled to by giving bond. But it now appears to be settled that a court reporter is not required to rely on the appeal or supersedeas bond, filed for the purpose of prosecuting the appeal, for collection of his fees for the preparation of the statement of facts, but has the legal right to require the payment of his fees as a condition precedent to the delivery of a transcript of evidence. Johnson v. Cross, Tex.Civ.App., 131 S.W.2d 1054 at pages 1055 and 1056 (citing authorities). And in the cited case it was held: “We think it clear from the language of these articles [R.S. Arts. 2238, 2239, 2324 and 2325 Vernon’s Ann.Civ.St. Arts. 2238, 2239, 2324, 2325] and the decisions of the courts that the court reporter may, before preparing a transcript of the evidence, require the party applying therefor to guarantee that his fees will be paid when the transcript is finally approved, signed by the judge and filed as a record in the cause.” If an ordinary litigant who has perfected his appeal by giving bond is not entitled to a writ of mandamus to compel a court reporter to furnish a transcript of the evidence without paying the court reporter as a condition of having same delivered, no reason is perceived why an administrator would be entitled to compel the reporter to furnish such a statement of facts - without payment therefor as a condition precedent to its delivery. Relator makes no claim that she offered to pay the court reporter his lawful charges for the preparation of a statement of facts, but, on the contrary, earnestly insists that she has the right to compel him to deliver such statement of facts without payment therefor.

We therefore refuse relator’s application for a writ of mandamus in so far as its object is to compel the court reporter to prepare and furnish relator a transcript of the evidence without payment therefor.

It was the unquestioned statutory duty of the respondent clerk to furnish relator a transcript of the record upon relator’s request therefor. But it does not appear from relator’s application that she relies for reversal of the judgment appealed from in cause No. 27,679, aforesaid, upon fundamental error apparent upon the face of the record. The inference from her application is that she would urge assignments of error on appeal in the cause aforesaid based upon showings which would appear from, and only from, a transcript of the evidence. Great certainty is required in applications for mandamus, and relator should show in her sworn application that the issuing of the writ of mandamus against the clerk to compel her to furnish a transcript where it appears that no statement of facts will be available on appeal will serve some useful purpose and not be unavailing. Barrera v. McCormick, Tex.Civ.App., 63 S.W.2d 1084, 1086; West v. Luttrell, Tex.Civ.App., 35 S.W.2d 744; Holcombe v. Fowler, 118 Tex. 42, 9 S.W.2d 1028. Consequently the. application for writ of mandamus, in so far as its object is to compel the clerk to prepare and furnish a transcript of the record, is refused.

Application refused.


author: HALE, Justice.

text:
    SERVICE MUT. INS. CO. OF TEXAS v. TERRITO et al.
    No. 2303.
    Court of Civil Appeals of Texas. Waco.
    Jan. 23, 1941.
    Rehearing Denied Feb. 20, 1941.

      Scott & Wilson and W. E. Cureton, all of Waco, for appellant.
    Lovett, Lovett & Ralston and Richard & A. P. Mays, all of Corsicana, for ap-pellee.
   HALE, Justice.

The Service Mutual Insurance Company, hereinafter referred to as “company,” issued its policy of insurance to Annie Territo, herein referred to as “plaintiff,” with loss payable clause to E. K. Howell as his interest may appear, herein referred to as “intervener,” providing coverage, among other things, for loss caused by theft of the automobile therein described to the extent of the actual cash value thereof. Plaintiff sued to recover the actual cash value of her automobile on account of its alleged loss by theft, and intervener set up his claim for loss as mortgagee. The case was tried on special issues, in response to which the jury found, in part, as . follows : That plaintiff suffered the loss of the automobile in question as a result of theft on October 31, 1938; that the actual cash value of such automobile at the time of the theft was $750; that the company received actual notice of the theft on or about November 1, 1938, from intervener, who was representing the company in procuring for it contracts of the .kind involved in this suit; that within ninety-one days after such loss plaintiff rendered a statement to the company’s adjuster Wilson, in writing, signed by plaintiff and witnesses, containing all the information required by such adjuster, stating the place, time and cause of the loss of said automobile, the interest of plaintiff and all others in said automobile, the sound value thereof’ and ‘the amount of loss thereto, all encumbrances thereon and all other insurance covering said automobile; that such adjuster, acting on behalf of the company, attempted to adjust and settle the claim with plaintiff. The' court rendered judgment in favor of plaintiff and intervener for the sum of $750, and the company has appealed.

By its first assignment the'company contends, that the trial court committed reversible error in overruling its motion for continuance. The record shows that this case was returnable to the April term, at which time the company filed its plea of privilege, and, subject thereto, its verified plea in abatement, setting up the policy provision with respect to proof of loss, alleging that no such proof had, been furnished and that the company had not waived the policy provision with respect thereto. The case was continued to the July term, and again to the October term, and was regularly set for trial for December 11th. Intervener filed his supplemental plea in intervention on December 9th, alleging specifically, for the first time, that 'if due proof of loss had not been furnished, the company had waived same. The case was passed for trial from December 11th to December 13th, and on the latter date the company filed its verified application for continuance upon the ground that it could not procure the attendance of the witnesses whose testimony might be material to the issue of waiver. The company alleged it had used due diligence to procure the testimony of one Wilson, who, if present, would testify that he did not waive the filing of proof of loss. No evidence was adduced upon the hearing of the motion. The company urges that since this was its first application for continuance, the same should have been granted as a matter of right, and furthermore, that the refusal of the court to grant such motion under the circumstances shown constituted an abuse of discretion. We do not believe the application was in strict compliance with the requirements of Article 2168 of the statutes (Rev.St.1925), because the same did not allege sufficient facts to show due diligence conclusively as a matter of law, and because the same did not allege the facts to which the witness Wilson would testify, as distinguished from his conclusion that he did not waive the proof of loss. We can not say, under the record here presented; that the action óf the trial court in overruling the motion for continuance constituted an abuse of discretion so as to require a reversal of the judgment. Gulf, C. & S. F. Ry. Co. v. Brooks, 63 Tex.Civ.App. 231, 132 S.W. 95; Sov.Camp, W.O.W. v. Davis, Tex.Civ.App., 268 S.W. 523; Lipscomb v. James Leffel & Co., Tex.Civ.App., 44 S.W.2d 1008; Empire Gas & Fuel Co. v. Muegge, Tex.Civ.App., 116 S.W.2d 758.

Under appropriate assignments, the company next presents the contention that its request for a peremptory instruction should have been given. It is urged that there was no evidence as to the market value of plaintiff’s automobile at the time of the loss complained of, and that there was no evidence of compliance with the policy provision concerning proof of loss. Intervener testified, in substance, that he had been in the automobile business for about twelve years, buying and selling both new and used cars; that the purchase price of the automobile in question was $849; that such automobile had been purchased new about sixty days prion to its loss; that he saw and serviced-such automobile about three or four days before-it was stolen; that he was acquainted with the reasonable market value and the actual cash value of automobiles in Corsicana on October 31st, and knew the reasonable market value and the actual cash value of the automobile in question on that date, and that such value was around $800. On cross examination the witness testified, in response to a question propounded to him by counsel for the company, that: “Market value is the average value a particular car sells for in a particular locality.” Thereupon counsel for the company moved the court to strike from the record the testimony given by the witness on direct examination concerning market value, which motion was overruled. The company asserts that the testimony thus given by the witness on cross examination renders his direct testimony as to market value of the automobile incompetent and of no probative force. We do not agree with this contention. If such cross examination was proper, the information thereby elicited from the witness would be material only on the weight to be given to his testimony, but the same would not constitute a basis for striking his original testimony from the record.

The policy sued upon provided that within ninety-one days after loss the insured should render a statement to the company, signed and sworn to by the insured, stating the place, time and cause of such loss, the interest of the insured and of all others in the property, the sound value thereof and the amount of loss thereto, all encumbrances thereon, and all insurance covering such property. There was evidence to the effect that intervener acted as the agent of the company in soliciting and delivering the policy sued upon; that immediately after the loss by theft was discovered, plaintiff notified intervener, who in turn notified the company by telephone of such loss; that shortly thereafter D. H. Wilson came to Corsicana, and as the representative of the company, discussed the loss with intervener, with plaintiff and with plaintiff’s attorney; that at the request of Wilson plaintiff gave to him a detailed statement in writing containing all the information requested by Wilson concerning such loss; that Wilson attempted on behalf of the company to adjust the loss with plaintiff. The company did not offer any evidence on the trial and did not request the submission of any issue to the jury.

If the statement which plaintiff rendered to adjuster Wilson had been sworn to, such statement would have been in literal compliance with the provisions of the policy. Since the company had actual knowledge of all the information required to be set out in the proof, we think its action in retaining such proof in its possession and failing to make any objection to the same, and in attempting to settle the claim with plaintiff, would estop the company from denying a waiver of the policy provision that such proof be sworn to. While it was necessary to a recovery for the plaintiff and intervener to show either a substantial compliance with the terms of the policy provision concerning proof of loss or a waiver thereof by the company, we hold that such was conclusively established by the evidence and. the findings of the jury. Franklin Fire Ins. Co. v. Orr, Tex.Civ.App., 36 S.W.2d 576; Potomac Fire Ins. Co. v. Turner, Tex.Civ.App., 67 S.W.2d 1080; Century Ins. Co. v. Hogan, Tex.Civ.App., 135 S.W.2d 224.

Special issue No. 12 as submitted to the jury was as follows: “Do you find from a preponderance of the evidence that within 91 days after loss by theft, if any, of the Plymouth automobile in question, defendant company had actual knowledge of the place, time and cause of the loss of said automobile, if any, the interest of Annie Territo, and of all others therein, if any, the sound value thereof, and the amount of loss thereto, if any, all encumbrances thereon, and all other insurance covering said property, if any?” to which the jury answered “Yes.” The company objected to said issue on the ground that the same was duplicitous and insists in its brief that the issue as submitted combines ten separate facts. Although the issue does embrace numerous elements of fact, we are of the opinion that the grouping of these elements, under the pleadings and evidence in this case, presents only one ultimate controlling issue, i.e., whether the company had actual knowledge of the information required in a proper proof of loss. Austin v. De George, Tex.Civ.App., 55 S.W.2d 585; Hunter v. B. E. Porter, Inc., Tex.Civ.App., 81 S.W.2d 774.

The company complains of the action of the trial court in overruling its motion to strike the testimony of intervener to the effect that adjuster Wilson told the witness after he had taken the written statement from plaintiff that they had been unable to get together on the amount of settlement. In overruling the motion the trial court stated, in the presence of the jury, that such testimony was limited to the questions of agency and waiver. We can not say, under the circumstances shown, that this ruling of the trial court constituted reversible error.

Intervener was also permitted to testify that the contract price at which plaintiff bought the car from him approximately two months prior to its loss was $849, over the timely objection that such testimony was irrelevant and immaterial. We do not believe the evidence was subject to the objection urged. San Antonio Public Service Co. v. Murray, Tex.Civ.App., 59 S.W.2d 851; Schmoker v. French, Tex.Civ.App., 7 S.W.2d 177; American Indemnity Co. v. Jamison, Tex.Civ.App., 42 S.W.2d 801. However, even if the testimony was subject to the objection urged, the error in admitting same was harmless because both the policy sued upon and the chattel mortgage held by in-tervener were admitted in evidence without such objection and each showed the original purchase price of the automobile to be $849.

We have carefully considered all of the assignments presented by the company but we find no reversible error in the case, and therefore the judgment of the trial court is affirmed.