author: FUNDERBURK, Justice.

text:
    SOUTHERN UNDERWRITERS v. ERWIN.
    No. 1951.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 24, 1939.
    Rehearing Denied Dec. 22, 1939.

      Benbow & Saunders, of Dallas, and J. R. Black, of Abilene, for plaintiff in error.
    Smith & Smith, of Anson, and Scarborough & Ely, of Abilene, for defendant in error.
   FUNDERBURK, Justice.

In due time, following an award of the Industrial Accident Board, the Southern Underwriters, compensation insurance carrier for J. C. Leitz, filed this action in the District Court against J. H. Erwin, employee of said Leitz. Erwin answered, in part, by asserting a cross-action to recover compensation insurance. The Southern Underwriters, who will hereinafter sometimes be called the insurer or defendant, took a non suit and filed defensive pleadings in answer to the cross-action. In a jury trial all issues submitted were found by the special verdict of the jury in favor of plaintiff and against the defendant. In accordance therewith judgment was rendered awarding plaintiff recovery of $6,-399.94 (with provision for payment out of same for attorney’s fees) from which judgment the defendant has prosecuted writ of error to this court.

Counsel for plaintiff read plaintiff’s pleadings to the jury, including allegations to .the effect that defendant had appealed from the award of the Industrial Accident Board and had filed the suit to set aside the award, such reading having been immediately preceded with a statement to the same effect. This action was made the basis of a motion to the court to declare a mistrial, which, being overruled, constitutes the basis for the defendant’s first proposition.

Revised Statutes 1925, Art. 2180, provides that: “The trial of cases before a jury shall proceed in the following order, unless the court should, for good cause, to be stated in the record, otherwise direct: 1. Plaintiff’s petition shall be read to the jury. 2. Defendant’s answer shall be read to the jury. * * * 4. The party upon whom rests the burden of proof on the whole case under the pleadings, shall be permitted to state to the jury briefly the nature of his claim or defense and facts relied upon in support thereof.” This statute was in force at the time of trial. Prior to the enactment of R.S. 1925, Art. 2193, the law permitted the pleadings to go to the 'jury. When said Art. 2193 was amended so as to eliminate the pleadings from documents which the jury was permitted to take with them, that change did not repeal said Art. 2180, since both articles not necessarily in conflict, were in the 1925 revision re-enacted in Pari Materia. There can be no legal wrong consisting alone of the proper exercise of' a legal right. So certainly as that proposition be a sound óné, we think that the reading or statement of the contents of the trial pleadings in obedience to the express mandate of the statute, is not error. If just grounds existed for not reading to the jury the particular part of the pleadings in question, and the court “for good cause to be stated in the record” ought to have directed the omission of such reading and accompanying statement, such action should have been timely requested and the refusal to grant the request, if any, presented for review as involving an abuse of discretion.

Special issue No. 1 was so stated as to call for a finding of whether the employee “sustained a personal injury on the 23rd day of August, 1937”, without further description of the injury, and was objected to in that it was “vague, indefinite and uncertain and fails to confine the jury to the consideration of the character of injury raised by the 'pleadings and is so general that it prompts the jury to speculate on matters outside of the realm of the plaintiff in cross-action’s pleadings and of the evidence introduced at the trial of this cause and prompts the jury to take into consideration any injuries of any kind that may have been received by the plaintiff in cross-action, on or about the 23rd day of August, 1937, irrespective as to whether or not the same were pleaded.” Undoubtedly the issue should have been so stated as to leave no uncertainty that the injury inquired about was the same injury pleaded by the employee. The statement from the record designed to support this proposition does not show that there was any evidence of more than one injury, or of any injury except the one alleged. We are of the opinion that the objection did not point out any fact to show that the issue did not call for a finding of the particular injury alleged, there being no suggestion in the pleadings or evidence of any other injury. Southern Underwriters v. Thomas, Tex.Civ.App., 131 S.W.2d 409.

Special issue No. 9 was: “From a preponderance of ' the evidence fix the number of weeks, in any, of such total incapacity for work, if any, of J. H. Erwin from August 23, 1937.” This issue was conditionally submitted, the condition being that the jury had answered the issue of total incapacity to the effect that the incapacity was total, and the issue of whether the total incapacity, if any was permanent to the effect that it was not permanent. The jury having answered that the incapacity was (1) total and (2) permanent, did not answer said special issue No. 9.

Had the court submitted, as an issue, a question calling for a finding of whether total incapacity, if any, was not temporary, that, according to the decisions, would have been a defensive issue. Special issue No. 9 was likewise a defensive issue. The latter would have been properly conditioned upon a negative finding upon the former; that is to say, upon a finding to the effect that the total incapacity, if any (a matter to be determined by another issue), was temporary. A good statement of the law governing conditional submissions of special issues, as reflected by the decisions, appears in Texas Law Review, Vol. XIII, p. 383, in an article by Mr. J. L. Goggans, Jr. He says: “The general rule in Texas today seems to be that a conditional submission is proper where it presents a component part of a plaintiff’s cause of action or a component part of a defense under a general denial or a component part of an affirmative defense; but not proper where it conditions an entire cause of action, nor an entire defense which directly contradicts the plaintiff’s cause of action nor an entire affirmative defense.” Within the rule as thus stated a defensive issue of total temporary incapacity is a component part of “a defense under a general denial.” No entire defense was conditionally submitted. No defensive issue of total temporary incapacity was. submitted. That issue was not requested, at least no complaint is made of any refusal of such request. Absent the submission of such issue, special issue No. 9 considered as in itself a distinct issue, was wholly immaterial. Unless there was a finding of (total) temporary incapacity it would have been impossible for the jury (as directed) to “fix the number of weeks, if any, of such total incapacity for work, if any.” Defendant, by omitting to request submission of (total) temporary incapacity as a defensive issue, thereby shows, we think, an election to accept the jury’s verdict upon plaintiff’s issue of (total) permanent incapacity as decisive of both issues. That issue having been determined against the defendant, special issue No. 9 is shown to be immaterial-Hence, we conclude that no material error is shown by .its conditional submission. This same question' was determined by us in Traders & General Ins. Co. v. Raymond Ray, Tex.Civ.App., 128 S.W.2d 80.

Special issue No. 2 was: “From a. preponderance of the evidence do you find that the personal injury, if any, sustained by J. H. Erwin was received by him while he was in the course of his employment for J. C. Leitz ?” That such issue was not subject 'to the objection, as contended by plaintiff-in-error, that it assumed the employee was in the course of his employment is too obvious, we think, to require discussion.

Special issue No. 10 was: “From a preponderance of the evidence do you find that J. H. Erwin’s incapacity for work, if any, since August 23, 1937, has not been partial incapacity? Answer ‘His incapacity has not been partial’ or ‘His incapacity has been partial.’ ” Special issue No. 24 was-: “From a preponderance of the evidence do you find that J. H. Erwin did not have a congenital condition prior to August 23, 1937? Answer ‘He did not have a congenital condition’ or ‘He did have a congenital condition.’ ” The contention that these issues, as stated, misplaced the burden of proof, is believed to be without merit. The jury having determined each issue presumably as directed from a preponderance of the evidence, certainly could not have been misled, but on the contrary greatly aided, by the directions as to the manner of evidencing its findings. Each of said questions submitted to the jury did not admit of but two answers— one an affirmative, the other a negative. Each could have been answered “Yes” or “No.” To make certain that whether answered “Yes” or “No”, the jury would clearly express the intended finding, the court merely directed them to answer, instead of “Yes”, that “His incapacity has not been partial”, or that “He did not have a congenital condition.” But that if the answer was “No”, to answer “His incapacity has been partial” or “He did have a congenital condition.”

We are of the opinion that no error has been shown in the action of the court in permitting plaintiff to testify that insurer had paid him $20 per week for 16 weeks, over'the objection that payments, having been admitted to have been made by checks, the checks constituted the best evidence of the payments. The plaintiff did not seek to prove payment by the checks. The conclusion that there was no error in the admission of the testimony is according to our recent decision in Ruppert v. Hermleigh Co-operative Gin & Supply Co., 133 S.W.2d 305.

We are.of the opinion that there was no error in the action of the court in permitting Myatt, father-in-law of plaintiff, to testify that plaintiff complained of pain. The facts disclosed by the record do not show that the testimony was not admissible as res gestae. The burden is upon plaintiff-in-error to show error.

There was no material error in the action of the court in admitting a photostatic copy of the award of the Industrial Accident Board. It was unnecessary to admit the award in evidence, it having been duly pleaded. Vernon’s Ann. Civ. St. Art. 8307b. There is no contention that the award was admitted in the presence of the jury.

The contention that the court erred in failing to grant the request of defendant to instruct the jury not to consider certain argument, and the 'action of the court in overruling the motion of plaintiff-in-error for new trial on account of such argument of counsel for plaintiff to the effect that plaintiff could not be totally disabled and partially disabled, and that a finding of partial disability to 100% would be directly in conflict with the definition of partial disability and the defendant-in-error is either disabled or partially disabled, one or the other, and it is for the jury to determine from the evidence which applies, is likewise overruled. To our way of thinking the issues and the definitions made the subject of the remarks of counsel self-evident. It is certainly a self-evident fact that one cannot be totally disabled and partially disabled at the same time.

Plaintiff alleged that he had not worked for his employer, or for another employer, substantially the whole of the year immediately preceding his injury. He alleged facts, the purpose of which was to enable him to have his average weekly wages determined according to the second of the three methods prescribed in paragraphs numbered 1 to 5, inclusive, of sec. 1, Art. 8309, R.S. 1925. In the alternative, he alleged facts' as a basis for determining his average weekly wages according to the third of said three methods. Special issue No. 17 as submitted was stated thus: “From a preponderance of the evidence do you find that J. H. Erwin worked in the employment in whidi he was working, if any, at- the time of his injury in question, if any, whether for the- same employer or not, substantially the whole of the year immediately preceding August twenty-third, 1937 [date of alleged injury] ?” To the submission of such issue the defendant made the objection, among others, that it erroneously placed the burden of proof upon the defendant instead of plaintiff.

Assuming that the question as thus stated constituted an issue, the burden of establishing which, if not conclusively, then by a preponderance of the evidence, and a finding of the jury was upon the plaintiff, then undoubtedly it did misplace the burden of proof. This is demonstrable by a simple test. Suppose evidence, pro and con, upon the issue had, in the opinion of the jury, been of equal weight. A verdict of “no” would have been required. But a verdict of “no” would have constituted a finding of the issue, as pleaded, for the plaintiff. Hence, the question as stated enabled plaintiff to have a favorable verdict without being supported by a preponderance of the evidence. Note. See page 725.

If the court erred in overruling the objection, we are of the opinion that the record shows affirmatively that the error was harmless. It was alleged, the allegation supported by evidence and the truth thereof established by the verdict of the jury that defendant paid plaintiff compensation for 16 weeks at the rate of $20 per week. There was no pleading by defendant, nor objection to evidence, to the effect that such payments were made as the result of fraud, accident or mistake, or as an aborted effort at compromise. There is an abundance of authority, we think, to support the view that thereby plaintiff’s average weekly wages was sufficiently determined, regardless of any particular method of ascertaining same. Fidelity & Cas. Co. of New York v. Branton, Tex.Civ.App., 70 S.W.2d 780; Texas Employers’ Ins. Ass’n v. Beckworth, Tex.Civ.App., 42 S.W.2d 827; Fidelity Union Cas. Co. v. Dapperman, Tex.Civ.App., 47 S.W.2d 408; Commercial Standard Ins. Co. v. DeHart, Tex.Civ.App., 47 S.W.2d 898; Bankers’ Lloyds v. Seymour, Tex.Civ.App., 49 S.W.2d 508; Globe Indemnity Ins. Co. v. McClurg, Tex.Civ.App., 38 S.W.2d 125; Southern Surety Co. v. Eppler, Tex.Civ.App., 26 S.W.2d 697; Traders & Gen. Ins. Co. v. Slusser, Tex.Civ.App., 110 S.W.2d 598. Such payment was pleaded and established as an admission,- which alone was sufficient evidence of the proper rate of' average weekly wages, particularly 'in the absence of any contrary evidence, thereby rendering it immaterial which of the three methods for determining average weekly wages was employed.

The opinion in Traders & Gen. Ins. Co. v. Patterson, Tex.Civ.App., 123 S.W.2d 766, we think, has no bearing upon the question. The receipt by an employee of compensation at a rate of average weekly wages, less than- the rate due, constitutes no admission that the amount paid .is the amount due. Unless a payment is accepted by way of satisfaction of an accord, there can arise no estoppel, by acceptance of a part payment, to claim the balance due. One having the right to be paid the greater sum has the included right to be paid any part thereof, and there is, therefore, no admission, more certainly no admission against interest, involved in partial payments accepted. On the other hand, why should a compensation insurer voluntarily pay average weekly wages at the rate of $20 if a less rate was due? Absent fraud, accident or mistake, or any effort at compromise, self-interest is regarded as a sufficient guaranty that a rate of $20 was paid because that was the rate at which payment was due.

Under one proposition defendant insists, in effect, that under the second method for determining average weekly wages, the proper rate was shown to be $19.03, and that, therefore, in any event, the award of compensation at the rate of $20 per week was erroneous. This contention would, perhaps, be meritorious, had defendant admitted that average weekly wages was properly determinable, and was determined, by the second method. Other propositions, however, challenge the right of plaintiff to claim compensation according to the second method, and therefore we think that a judgment resting upon the established admission is not subject to the challenge presented by this proposition.

There being, in our opinion, no material error shown from which it results that the judgment should be affirmed, it is so ordered.

NOTE: In Traders & General Insurance Co. v. Weatherford, 124 S.W.2d 423, 429, we said: “We shall in this opinion assume that under the decisions in American Employers’ Insurance Co. v. Singleton, Tex.Com.App., 24 S.W.2d 26; Traders & Gen. Ins. Co. v. Milliken, Tex.Civ.App., 87 S.W.2d 503; Id., Tex.Civ.App., 110 S.W.2d 108; Traders & Gen. Ins. Co. v. Dwyer, Tex.Civ.App., 104 S.W.2d 63; Texas Employers Ins. Ass’n v. Phelan, Tex.Civ.App., 103 S.W.2d 863, and perhaps other decisions following the Middleton [Singleton] case supra, relied upon by appellant, it is the law that before a plaintiff as an employee, or beneficiary of an employee, can recover compensation under the workmen’s compensation statutes, based upon any ■other element of the definition of ‘average weekly wages’ than that embraced in paragraph No. 1, sec. 1, Art. 8309, he must plead, and establish conclusively by the evidence, or by the verdict of the jury (in a jury' case), that such employee had not worked in such employment for the same or . a different employer substantially the whole of the year (immediately preceding the injury).” Later we accepted the above assumption as a correct proposition of law. National Indemnity Underwriters v. Blevins, Tex.Civ.App., 129 S.W.2d 734. However, in the latter case, we could just as well have assumed the proposition as was done in the Weatherford case, and as we are doing in the instant case, its decision being unnecessary.

In the present investigation the writer’s attention has been directed to an opinion by the Texarkana Court of Civil Appeals which appears to be inconsistent with the opinion in-the Singleton case, if the latter be interpreted as we assumed it should be. Traders & General Ins. Co. v. Patterson, Tex.Civ.App., 123 S.W.2d 766. In this case the court held, in effect, that no burden rested upon the compensation claimant to show by a preponderance of the evidence that the first of the three methods of ascertaining average weekly wages was not available before the second method could be resorted to, or that neither the first nor the second was available before resorting to the third method. This decision, so far as the writer cah see, necessarily affected the correctness of the judgment, at least as to the amount thereof. The Supreme Court dismissed the application for writ of error thus indicating approval .of the judgment as correct. Such action naturally suggests the advisability of a re-examination of the opinion in the Singleton case.

A re-study of that case has convinced the writer that it is not necessary to construe the opinion therein as holding what this and other courts of civil appeals have assumed that it did. Some of the reasons upon which that conclusion is based will be set forth in this note, which, it is to be understood, constitutes the individual views-of the writer, and not a part of the opinion upon which the judgment herein rests.

An allegation to the effect that the average weekly wages of an injured employee is a stated sum has been held to be good as against a general demurrer. Davies v. Texas Employers’ Ins. Ass’n, Tex.Com.App., 16 S.W.2d 524; Southern Surety Co. v. Eppler, Tex.Civ.App., 26 S.W.2d 697; Commercial Standard Ins. Co. v. DeHart, Tex.Civ.App., 47 S.W.2d 898; Texas Employers’ Ins. Ass’n v. Arnold, Tex.Civ.App., 57 S.W.2d 954; Traders & Gen. Ins. Co. v. Hicks, Tex.Civ.App., 94 S.W.2d 824; Traders’ & Gen. Ins. Co. v. Williams, Tex.Civ.App., 66 S.W.2d 780. In the last cited case this court, by majority opinion, held that such a pleading was good even as against .a special exception. Such an allegation is undoubtedly an allegation of a conclusion of fact and not a conclusion of law. The allegation of a conclusion of fact is proper pleading; the allegation of a conclusion of law is improper pleading. See authorities cited in Burton-Lingo Co. v. Morton, Tex.Civ.App., 126 S.W.2d 727.

If such an allegation expresses a conclusion of fact, then it is not subject to special exception, as will readily appear from a consideration of the fact that any possible substitute therefor, or any amplifications thereof would constitute averments of matters of evidence, or mere factual elements of the ultimate issue, contrary to the law and rules of pleading. The phrase “average weekly wages” is a legal term. Being such, it requires definition or explanation when, ánd if, used in the statement of a special issue. R.S.1925, Art. 2189. The term “average weekly wages” is defined by statute, R.S.1925, Art. 8309, sec. 1, paragraphs numbered 1 to 5, inclusive. Therefore, an allegation, for instance, that an employee’s average weekly wages was $20 connotes everything embraced within the statutory definition, including the alternatives therein. Traders & Gen. Ins. Co. v. Williams, supra. The definition implies the existence of possibly different grades of evidence by which may be established an issue of average weekly wages. An interested party has the right, of course, to have the issue determined upon the basis of the best evidence available. A compensation claimant cannot prove “average weekly wages” by an inferior grade of evidence, unless and until he has satisfactorily accounted for the non-production of superior grades of evidence. No reason is apparent why this should not be a matter for the determination of the trial judge, the same as other questions involving the “best evidence rule.” If so, there is no occasion for application of the principle requiring issues (alleged facts) to be established by a preponderance of the evidence. This view may well account for the action of the Supreme Court in dismissing the application for writ of error in the Patterson case wherein the inapplicability of the first method of determining average weekly wages was shown only by the testimony of the plaintiff and the contention was overruled that the second method was not available since the uncorroborated testimony of plaintiff at most raised only an issue of fact, in the absence of an establishment of which by the verdict of the jury, the finding of average weekly wages according to the second method would not support the judgment.

Is such a view necessarily in conflict with the opinion in the Singleton case ? If not then it is believed that very compelling reasons exist why it should not be otherwise construed. Some of these reasons may be listed as follows: First. A compensation claimant’s petition which alleges only that the employee’s average weekly wages was a stated sum would be subject to general demurrer contrary to the decisions hereinabove listed. Also, contrary, I think, to the most elementary rules of pleading. Second. It is possible that compensation must be denied solely because, although there be no evidence that the employee worked substantially a year, his beneficiary cannot produce a preponderance of the evidence to show that he did not. This, although there may be an abundance of evidence to establish the employee’s average weekly wages determinable according to the second or third method. Take, for example, the not unreasonably supposable case of a surviving widow of a recently married employee killed under circumstances clearly entitling her to recover compensation, except there be three or four months of the year preceding the injury as to which she can produce no competent evidence either that the deceased was, or was not, employed. Must she be denied any recovery solely on that ground? Is such a view in accord with the spirit and purpose of the law? Third. An employee —more likely the beneficiary of an employee — may in the utmost good faith endeavor to establish the average weekly wages in accordance with the first of the three methods, but, if the matter is to be submitted to the jury whose decision may hinge upon the matter of the preponderance of the evidence he may fail, solely because of inability to produce a preponderance of the evidence. Must such employee or beneficiary be denied compensation by being denied the alternative right, duly alleged, to establish average weekly wages according to the second or third method? Clearly so if the establishment conclusively or by a verdict upon a preponderance of the evidence, be an indispensable requisite to the availability of the second or third method. Fourth. The right of a plaintiff to assert alternative claims and upon failure to establish one, entitled to establish the other, will in practical effect, be denied. The very insufficiency or incompleteness of the evidence to establish the first claim may at once constitute the lack of a preponderance of the evidence to show that recovery cannot be predicated upon such first claim, thereby precluding the alternative claim. Fifth. A compensation claimant desiring to establish his average weekly wages by the first method, but not certain of his ability to do so, must first allege the facts entitling him to make proof according to that method; but since a simple failure to produce sufficient evidence will not entitle him to make proof according to the second or third method, he must, in effect, allege affirmatively (this being, if an issue at all, an independent issue) the facts to show he was not entitled to prove average weekly wages according to the first method. In other words, while endeavoring to show by pleading and a preponderance of the evidence, that he had been employed for a year he must, in anticipation of his possible failure to produce a preponderance of the evidence to so show, by pleading and a preponderance of the evidence, show directly the contrary — that he had not worked a year. The claimant would, in practical effect, be forced to hazard his whole case upon being able to establish his average weekly wages according to the first method, or to take the directly contrary position and hazard his whole case upon being able to show- that the first method was not available. The same likewise as between the first and second method on the one hand, and the third method on the other. Clearly his right to assert alternative claims would, in practical effect, be completely destroyed.

More may be said but this is deemed sufficient to support the above statement that such a construction of the Singleton case should, if possible, be avoided.

In the Singleton case one question, and one only, was decided. That was a question presented by appellant’s contention “that the judgments of the two lower courts should be reversed, and the cause remanded, because there is no legal evidence to establish an annual or average weekly wage of the deceased.” [24 S.W. 2d 27.] This contention was sustained. The evidence failed to show that the first method was applicable in that it only showed that Singleton worked for the Park Corporation (his employer when injured) about 18 or 20 days. The evidence further failed to show “that he [Singleton] had, prior thereto [that is, prior to the 18 or 20 days work for the Park Corporation] earned in any manner a daily or weekly wage.” There could be no ground for any difference of opinion that the evidence failed to show average weekly wages determinable according to the first method. The same is likewise true as to the second method; for said the court: “Nor was it shown that the average daily wage or salary which an employe of the same class working substantially the whole of such immediate preceding year in the same or similar employment in the same or a neighboring place, shall have earned during the days he was employed.” There was not even any contention that there was evidence to establish average weekly wages under the third method. Therefore, without reference to the question now under consideration and wholly unaffected by any such question, the conclusion of the court was correct that “there is no evidence in the record which will sustain the answer of the jury as to the weekly wage of the deceased [$35.00], and therefore no evidence to sustain a judgment of any character against the insurance company.” The court, after making such complete and undoubtedly proper disposition of the case, said: “Furthermore, under the statute the burden is on the claimant to show by competent evidence that it is impracticable to compute the average weekly wage under either subsections 1 or 2 before subsection 3 can be resorted to. Likewise, the burden is on the claimant to show that compensation cannot be computed under subsection 1 before subsection 2 is resorted to.”

It is to be observed that nothing was said about pleading and nothing about submitting issues to the jury. Is the language quoted necessarily inconsistent with the view that before the compensation claimant is entitled to introduce evidence to show average weekly wages according to the second method, it is necessary for him to show prima facie by evidence aliunde, that the first method is not available and that before he can introduce evidence to establish his average weekly wages according to the third method it is necessary- for him to show that neither the first nor second method is available? If a court holds that a plaintiff before he can establish an issue as to the existence and terms of a deed, by parol evidence he must show by competent evidence that it is impracticable to make such proof by production of the deed itself, should that be held to imply a holding to -the effect that an issue is presented, of a character like issues constituting elements of a cause of action or affirmative grounds of defense, and which if not conclusively established by the evidence are required to be submitted for the verdict of the jury? It seems to me no such implication can reasonably be read into any such holding and that the above language from the Singleton case is of exactly like character.

If this view be correct then there is added but an additional reason why the error complained of is harmless.


source: Caselaw Access Project

author: STOKES, Justice.

license: Public Domain

text:
    BRADLEY v. ENGLISH.
    No. 5182.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 16, 1939.
    Rehearing Denied Dec. 11, 1939.

      Walter F. Schenck, of Lubbock, for appellant.
    McWhorter & Howard, of Lubbock, for appellee.
   STOKES, Justice.

This case is before us upon a motion of appellant for an extension of time in which to file the transcript and statement of facts. The record shows the judgment was rendered on the 6th of July, 1939. The motion for a new trial was overruled on the 15th of July, 1939, which was the last day of the term. Notice of appeal was duly entered and the record presented to the clerk of this court for filing on the 25th of September, 1939, which was 72 days after the motion for a new trial was overruled. It is alleged in the motion that the record could not sooner be filed because the county clerk has been crowded with business as shown by his certificate filed with the motion. The certificate of the clerk states that because of the unusually heavy duties of his office, more especially in the recording department, it was impossible for him to prepare and deliver the transcript until the 20th of September, 1939; that such delay was unavoidable and not intentional on the part of the county clerk’s office.

Art. 1839, R.C.S. 1925, as amended in 1933 by the 43rd Legislature, Vernon’s Ann.Civ.St. art. 1839, provides that the appellant shall file the transcript in this court within sixty days from the final judgment or order overruling the motion for a new trial or service of the writ of error; provided, by motion filed before, at, or within a reasonable time, not exceeding fifteen days, after the expiration of such sixty-day period, showing good cause to have existed within such sixty-day period, why said transcript and statement of facts could not be so filed, this court may permit the same to be thereafter filed upon such- terms as it shall prescribe. It will be noted that the privilege of filing the record after the expiration of the sixty-day period is not extended to appellant as a matter of right, but only upon a motion duly filed showing good cause to have existed within such sixty-day period why the transcript and statement of facts could not be filed within the time provided by the statute. The only “good cause” presented by the motion and the clerk’s certificate now before us is that the county clerk’s office was burdened with unusually heavy duties, especially in the recording department. It has been held by the courts of this state from an early day that such a situation does not constitute good cause for failure to present and file the record within the time provided by statute. To sustain the proposition that unusually heavy duties in-other respects is a sufficient excuse for the failure of the clerk to prepare a record for appeal to this court would be equivalent to holding that the matter of recording deeds, mortgages and other routine matters pertaining to a clerk’s office is of more importance than the duty of preparing a record for appeal to this court. We cannot accede to such a proposition. The statute plainly provides that ’the record must be filed in this court within sixty days after final judgment or the overruling of a motion for new trial. It is only for good cause shown by motion filed within fifteen days thereafter that the record may be later filed. No application was filed in this court for a mandamus requiring the clerk to prepare the record. If such an application had been filed the relief, no doubt, would have been granted. The law authorizes clerks to have -deputies and it is no excuse, therefore, to say that the clerk did not have time or was too busily engaged in other departments, to prepare the record for filing in this court. Kernaghan v. Hall, 31 Tex. 126; Austin, Commissioner v. Brelsford et al., 289 S.W. 91; Quanah, A. & P. Ry. Co. v. Watkins, Tex.Civ.App., 193 S.W. 356.

The motion is overruled.


author: BAUGH, Justice.

text:
    GENZER v. FILLIP et al.
    No. 8849.
    Court of Civil Appeals of Texas. Austin.
    Nov. 22, 1939.
    Rehearing Denied Dec. 20, 1939.
    C. C. Jopling, of LaGrange, for appellant.
    George L. Kroll, of LaGrange, for ap-pellees.
   BAUGH, Justice.

This case arose as follows: On November 6, 1915, one Adamcik filed his affidavit with the County Clerk of Fayette ■County that Willie Kadlecek was a lunatic ■or non compos mentis, and asked that he be restrained. The County Judge thereupon ordered that he be arrested and brought before the court; and appointed a commission composed of four physicians and two laymen to determine the facts. This commission made its report finding Kadlecek to be of unsound mind; the court, based upon this report, adjudged him to be a lunatic, and appointed J. V. Dobrava guardian of his person and estate. These proceedings all took place on November 6, 1915. Dobrava thereafter filed his oath and bond and filed his report showing the property of Kadlecek coming into his possession as guardian.

In May, 1927, Dobrava made application to resign as such guardian, his resignation was accepted by the County Judge, Theo. W. Lueders, and Adolph A. Fillip was on July 12, 1927, appointed guardian of the person and estate of Kadlecek. Fillip took the statutory oath, made bond with Frank Antos and Emil Kossa as sureties, which was. approved by Lueders, County Judge, and filed his report, in lieu of an inventory, showing receipt by him, among other things, from Dobrava, of $966.09 in cash belonging to the estate of Kadlecek. Lued-ers was County Judge of Fayette County from January 1, 1925, to December 31, 1932. No further proceedings were had in said guardianship until January 31, 1938, when the then County Judge cited Fillip to appear, give an accounting of his guardianship, and file a new bond. Thereupon, Fillip filed a sworn report showing that Kadlecek was his brother-in-law; that his ward had been living with him for a period of 26 years; had been furnished by Fillip during that period with food, clothing, shelter, and other necessities; that he had, prior to July 12, 1932, used, without application to or order from the court, all of the $966.09 belonging to the ward for that purpose; and consequently had no funds of his ward left. This report was by the court disapproved, Ray Genzer, also a brother-in-law of • Kadlecek, appointed guardian of the person and estate of Kad-lecek, and Fillip removed and ordered to pay over to Genzer the $966.09 received by him as guardian in 1927; and in case he failed or refused to do so, Genzer was ordered to proceed as provided by law to recover same.

Genzer, as such guardian, thereupon filed two suits: One against Fillip and his bondsmen, Antos and Kossa, for loss of the ward’s funds.; and the other against Lued-ers, former County Judge, and the Hartford Accident & Indemnity Company, surety on his official bond, asserting liability against them under the provisions of Art. 4141, R.C.S.1925, on the ground of negligence of the County Judge in not complying with the provisions of that Article of the statute. These two suits were consolidated and the parties ordered to replead. It is not necessary to state all the pleadings here. Among other things, Lueders and his surety' answered that the original proceedings in 1915, wherein Kadlecek was adjudged to be of unsound mind, were void, because the law under which they were had was subsequently held to be unconstitutional by the Supreme Court of Texas; that consequently all subsequent appointments of guardians were void for the reason that Kadlecek had never been legally adjudged to be insane; that Genzer consequently had no authority to sue as guardian; and that no legal liability could be fixed against the County Judge because said proceedings were void.

Genzer thereupon intervened as next friend of Kadlecek and sought recovery, among other things, against Fillip and his sureties, Antos and Kossa, on his guardian’s bond filed in 1927, as a common law obligation. Trial was to the court without a jury. The trial court denied Genzer any recovery in his capacity as guardian; denied him recovery as next friend of Kadlecek against Lueders and the Hartford Accident & Indemnity Company; but awarded judgment for Genzer, as next friend of Kadlecek, against Fillip and his bondsmen for $1821; and in favor of An-tos and Kossa over against Fillip for whatever they might be compelled to pay out on the judgment. From this judgment Genzer in his capacity as guardian only has appealed.

The first question presented is whether the decree of the County Court entered in 1915 adjudging Kadlecek to be a non compos mentis and appointing a guardian of his estate is utterly void; or merely voidable and as such not subj ect to collateral attack. The appellant’s contention in this regard is that since the County Court is by Art. V, Sec. 16, of the Constitution of Texas, ..Vernon’s Ann.St., given jurisdiction over minors, insane persons, etc.; which jurisdiction is effectuated by the various provisions of what, under the 1925 R.C.S., is Title 69, Vernon’s Ann.Civ.St. art. 4102 et seq.; and since that jurisdiction was duly invoked in 1915 by the filing of the statutory affidavit, the arrest of Kadlecek, and bringing him before the court in person; every presumption should be indulged in favor of the validity of the orders made as against a collateral attack. Also that the record of the 1915 proceedings does not affirmatively show them to be void.

The defenses urged by the defendants in the District Court constituted a collateral attack on the validity of the guardianship proceedings. Bearden v. Texas Co., Tex.Civ.App., 41 S.W.2d 447, 459; See also 21 Tex.Jur., p. 214, § 9. We have concluded, however, that the original appointment of Dobrava in 1915 was void. This for the reason that the record affirmatively shows that Kadlecek was never legally adjudicated a non compos mentis. The decree of November 6, 1915, adjttdg-ing Kadlecek to be a non compos mentis affirmatively shows that it was not an adjudication based upon the findings of a jury; nor one based upon evidence heard by the court without a jury after notice served upon Kadlecek; but was predicated •upon, and dependent upon, the findings and report of a commission appointed under an unconstitutional law to ascertain the facts as to Kadlecek’s mental condition. The law then sought to be complied with was held unconstitutional by the Supreme Court in White v. White, 108 Tex. 570, 196 S.W. 508, L.R.A.1918A, 339. Under the holdings of the Supreme Court in Bearden v. Texas Co., 60 S.W.2d 1031, the Probate Court has the power, without a jury trial, to adjudge a person insane. But this holding must, we think, 'necessarily mean or imply that such adjudication be based upon a judicial hearing had for that purpose wherein evidence is adduced. An adjudication essentially implies a hearing by the court, after notice, of legal evidence on the factual issue involved. No such hearing was had in the November 6, 1915, proceeding, and the record in that proceeding affirmatively so shows.

In a comprehensive and well considered opinion, Judge Randolph, in Warrick v. Moore County, Tex.Civ.App., 291 S.W. 950, 955, in discussing this question used the following language: “The question as-to whether a party is of unsound mind is a jurisdictional fact, to be ascertained before such guardian can be appointed, and the order appointing such guardian is based solely upon the ascertained fact of unsoundness of mind. Hence the finding as to the unsoundness of mind is as much a part of the probate proceedings as the order of appointment.”

This holding was quoted by the Commission of Appeals on the issue of jurisdiction in Pure Oil Co. v. Clark, 56 S.W.2d 853.

While the case of Damron v. Rankin, Tex.Civ.App., 34 S.W.2d 360, 363, involved a direct attack upon the validity of the appointment of a guardian without a trial on the sanity issue, the Eastland Court of Civil Appeals held the proceeding invalid, stating that “if it be legal to proceed to trial on the issues in such a case without a jury, the minimum prerequisite to the appointment of a guardian of the person and estate of one of unsound mind would be a judicial ascertainment of the existence of that state of mind by the court at a regular term after the person charged had been served with proper personal notice of the proceeding. * * * Greenwood v. Furr, Tex.Civ.App., 251 S.W. 332; Ward v. Compton, Tex.Civ.App., 203 S.W. 129; Warrick v. Moore County, Tex.Civ.App., 291 S.W. 950.”

The decisions of the courts of the several states are not harmonious on the question of whether a judgment predicated upon an unconstitutional law rendered before such law is so declared by the Supreme Court of the state is utterly void or merely voidable and not subject to collateral attack. See Annotation in 36 A. L.R. 492; 16 C.J.S., Constitutional Law, p. 290, § 101c. The general rule supported by numerous cited cases is stated in 11 Am. Jur., § 148, p. 827, as follows:

“The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and in legal contemplation is as inoperative as if it .had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted. * * *

“Since an unconstitutional statute is void, the general principles follow that it imposes no duties, confers no rights, ere-ates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.” See also 9 Tex.Jur. § 51, p. 467.

In Barton v. State, 89 Tex.Cr.R. 387, 230 S.W. 989, 991, wherein the accused urged as a defense against the felony for which he was indicted that he had been adjudged insane under the provisions of the 1913 act, Acts 33d Leg., c. 163, here involved, the Court of Criminal Appeals stated: “The judgment of lunacy upon which the appellant relies, being void because the law under which it was rendered was contrary to the Constitution of the state, was without force as a judgment.”

We conclude, therefore, that the purported judgment of the Probate Court of November 6, 1915, which is the only judgment on Kadlecek’s sanity, was void, and not merely voidable; and that with it must fall the appointment of a guardian of his estate.

Appellant next contends that the Legislature in 1921 having passed an act providing that “All appointments of guardians under the present law without a jury are hereby validated” (Acts 1921, 37th Leg., Ch. 11, Sec. 1), the purported adjudication by the Probate Court of November 6, 1915, was rendered valid. This contention is not sustained for several reasons, the most obvious of which are; first, that the 1913 Act which had been held unconstitutional was not the “present law” in 1921; and, second, because the Legislature could not validate an unconstitutional act nor vitalize a void judgment by a subsequent enactment. Globe Indemnity Co. v. Barnes, Tex.Civ.App., 288 S.W. 121; Engelman v. Anderson, Tex.Civ.App., 244 S.W. 650; 39 Tex.Jur., § 19, p. 41.

The next contention of appellant is that because Lueders as County Judge appointed Fillip as guardian of the person and estate of Kadlecek, assuming that the adjudication of unsoundness of mind in 1915 was valid, he is equitably estopped to deny the validity of his orders and liable for the consequences of his failure to comply with the provisions of Art. 4141 and failure to protect the estate of said ward.

It is unnecessary for us to here discuss all of the elements of equitable es-toppel. They are basically discussed as applying to varying situations in 17 Tex. Jur., pp. 127 to 147. Nor is it necessary for us to determine in what cases, if any, a public official may be estopped to deny the validity of one of his official acts which was predicated on a former void proceeding. Suffice it to say that the party against whom estoppel is asserted must be guilty of some act, omission, silence or course of conduct, which has resulted in injury to the complaining party. The only dereliction charged against Lueders was his neglect to discharge the duties required of him by Art. 4141. We do not understand that the failure to comply with this statute, though the duty to do so was held to be mandatory in Heyn v. Mass. Bonding & Ins. Co., Tex.Civ.App., 110 S.W.2d 261, 267, makes the county judge absolutely liable on his official bond for the amount of the ward’s estate. The statute itself fixes liability in case “damage or loss result to the estate of any ward through the negligence of such county judge to perform such duties”; and fixes that liability “in an amount equal to the loss due to such negligence.”

And if it be assumed that this statute be held to apply in the instant case, and that Lueders had neglected to comply with it, it is perfectly clear we think that it was incumbent upon Genzer whether as guardian or next friend.of Kadlecek, to show that loss resulted to the estate of Kadlecek from such negligence. While it is true that in 1938 Fillip showed that he then had on hand no moneys belonging to the estate of Kadlecek, though $966.09 of his ward’s money had been turned over to him in 1927, he also showed under oath, which was neither denied nor controverted, that his ward was more than 50 years of age; that he had furnished a home, food, clothing, and other necessities and had cared for him as if a member of his own family for a period of 26 years; and that the funds so received by him had been used by him for that purpose upon the advice of his counsel and of the County Judge. If, therefore, the ward’s funds were spent for his own use and benefit, even though not spent in the manner prescribed by law, he cannot in equity, whether through guardian or next friend, be heard to say that his estate has been damr aged in the amount so spent for his benefit. As held in McEwin v. Luker, Tex.Civ.App., 81 S.W.2d 137, to render a county judge liable in such case, it is necessary to show not only negligence on his part, but that a loss resulted to the estate of the ward as the proximate result of such negligence.

It is true that the court rendered judgment in favor of Genzer as next friend of

Kadlecek against Fillip and his bondsmen; but they have not appealed from this judgment against them and are not here complaining of it. No liability being shown against Lueders as County Judge, the trial court’s judgment is affirmed.

Affirmed.


author: MURRAY, Justice.

text:
    GREAT AMERICAN INDEMNITY CO. v. McMENAMIN et al.
    No. 10626.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 29, 1939.
    Rehearing Denied Dec. 30, 1939.
    John P. Giles, Nat L. Hardy, Johnson & Rogers, and T. M. West, all of San Antonio, for appellant.
    Eskridge & Groce, of San Antonio, for appellees.
   MURRAY, Justice.

F. J. McMenamin instituted this suit in the 73rd District Court of Bexar County against Great American Indemnity Company, seeking to recover' the sum of $3,-000.00, alleged to he the amount due on the judgment in a certain cause styled F. J. McMenamin v. Paramount Pictures Distributing Company, Inc., and being cause No. B-84724, in the 45th District Court of Bexar County. McMenamin sought to recover from the Great American Indemnity Company as the insurance carrier of a certain automobile operated by one L. C. Lowe in the course of his employment by Paramount Picture Distributing Company, and with which automobile McMenamin had a collision in the State of Tennessee.

Josh H. Groce intervened in the suit, setting up. that he had acquired, by purchase, an eleven-twelfths interest in the judgment and was entitled to recover eleven-twelfths of the amount due on the judgment. It is apparent that Josh H. Groce, in purchasing an eleven-twelfths interest in the judgment, did so largely in the interest of the Employers’ Liability Assurance Corporation, Ltd., he being an attorney for such corporation in connection with the matters out of which the original controversy arose.

L. C. Lowe was a traveling salesman for the Paramount Pictures Distributing Company,' Inc., which shall hereafter be referred to as Paramount Pictures. Lowe traveled in an automobile owned by himself. Lowe carried an insurance policy on his car with the Great American Indemnity Company, which will hereafter be referred to as Great American, and his employer, Paramount Pictures, carried a policy covering all automobiles not owned by Paramount Pictures, but used by its employees in its business. The Great American contends, among other things, that its policy was not to be resorted to, due to the policy of the Employers’ Liability Assurance Corporation (hereinafter referred to as Employers’ Liability), while the Employers’ Liability contends that its policy was not to be resorted to, due to the policy of the Great American.

The trial was before the court, without the intervention of a jury, and the court rendered judgment against the Great American for the sum of $3000.00, together with interest, and apportioned it eleven-twelfths to Josh H. Groce and one-twelfth to F. J. McMenamin, from which judgment the Great American has appealed.

The trial judge made findings of facts and also additional findings of facts, which will be here copied:

“On September 23, 1935, L. C. Lowe was the owner of an Oldsmobile automobile, and on such date a policy of public liability insurance was issued to him covering such vehicle by the Great American Indemnity Company, and thereafter, on March 18, 1936, near the town of Crab Orchard, Tennessee, while L. C. Lowe was operating such automobile while acting within the course of his employment for Paramount Pictures Distributing Company, Inc. was involved in an automobile accident in which Margaret McMenamin, the wife of F. J. McMenamin, was injured, and as a result of such accident the said Margaret McMenamin subsequently suffered a miscarriage.

“At the time of such accident the said L. C, Lowe was operating his automobile on the wrong side of the road and failed to keep a proper lookout and was, therefore, liable to F. J. McMenamin for such damages as were sustained by Margaret Mc-Menamin, and I find that at the time of the accident none of the exceptions provided in the policy applied.

“Immediate notice was given of the accident to the Great American Indemnity Company and the Great American Indemnity Company investigated the case but failed to consummate a settlement, although settlement negotiations were inaugurated.

“Within a week after the accident L. C. Lowe reported such accident to Paramount Pictures Distributing Company, Inc. but Paramount, knowing that the Great American Indemnity Company was investigating and handling the matter, and further being under the impression that the damages were trivial, did not make any reports of such accident to any insurance companies.

“At the time of the accident there was in full force and effect a non-ownership policy covering the liability of Paramount in the Employers Liability Assurance Corporation, but such policy required immediate written notice of the accident, and such notice was not given by Paramount to Employers’ Liability Assurance Corporation for the reasons above stated.

“Thereafter, in October 1936, suit was instituted by F. J. McMenamin against Paramount Pictures Distributing Company, Inc., in San Antonio, Texas, but since no service could be had on L. C. Lowe in Texas, L. C. Lowé was not made a party defendant.

“The citation in said suit was tendered to the Great American Indemnity Company because the policy of the Great American Indemnity Company provided extended coverage for any organization legally responsible for the operation of such automobile, but the Great American Indemnity Company ' denied any obligation to Paramount on the sole grounds that Paramount had other valid and collectible insurance and that, therefore, the omnibus coverage did not apply, in accordance with the terms of the policy herein on file.

“That in order .to prevent a default the attorneys for Employers’ Liability Assurance Corporation filed an answer' in said cause, but Employers’ Liability Assurance Corporation reserved its rights to deny liability to Paramount, and Paramount agreed to such reservation of rights.

“Thereafter a trial was had of such cause and judgment was rendered in favor of F. J. McMenamin against Paramount Pictures Distributing Company, Inc., in the sum of $3000, and an 11/12 interest in such judgment was thereafter purchased by Josh H. Groce, attorney for Employers Liability Assurance Corporation, by the payment of the sum of $2250, and Josh H. Groce attorney for Employers’ Liability Assurance Corporation bfecame the owner of an 11/12 interest in such judgment; F. J. McMenamin remaining the owner of the other 1/12 interest.”

Additional Findings of Fact

“(1) I find that immediately upon the happening of the accident the said L. C. Lowe admitted the fact that he was on the wrong side of the road at the time of the accident, and that he had failed to keep a proper lookout, which were the true facts, and because of such facts he expressed his opinion that he was at fault; -but I further find that at such time the said L. C. Lowe was acting individually'and that such admissions of fact were not made while acting within the course of his employment for Paramount Pictures Distributing Company; and I further find that the Great American Indemnity Company was under obligation to investigate the circumstances surrounding the happening of the accident, and that if they failed to ascertain the fact that L. C. Lowe had admitted the true facts at the time of the accident to F. J. McMenamin such was their, own fault, and .that such facts could have been ascertained by the Great American Indemnity Company by investigating this case with reasonable diligence.

“(2) I further find that L. C. Lowe did not in any manner undertake to aid and abet F. J. McMenamin in fixing liability under the policy of the Great American Indemnity Company.”

By its first proposition appellant contends that appellee McMenamin, by accepting the sum of $2250.00, fully and completely settled the judgment he had obtained in cause No. B-84724, and could not thereafter assign an eleven-twelfths interest in such judgment to Josh H. Groce, or any one else. We overrule this contention. It is true that the draft delivered and endorsed to McMenamin by Josh H. Groce contained the following provision, to-wit: “Endorsement by payee, or deposit in bank for account of payee, is acknowledgment by payee of acceptance of this draft in full settlement of the following account, $2250.00.”

It is shown that the draft was both endorsed and deposited in the bank for payment. However, Josh H. Groce was payee in this draft and not McMenamin. There is no description of the account to be settled by the draft, a blank space was left for such purpose but not filled in. From the draft itself and all the surrounding facts and circumstances, it is clearly shown that this draft was not transferred by Josh H. Groce to McMenamin in full settlement of the judgment, but in consideration of a purchase of an eleven-twelfths interest in such judgment.

Appellant’s next proposition is without merit and is overruled. No special exceptions were directed to the petition of intervention and in. the absence of special exceptions the petition will be liberally construed in intervener’s favor.

The evidence is sufficient to show that the automobile driven by Lowe at the time of the collision was the same automobile covered by the policy issued by the Great American, and appellant’s contention to the contrary is overruled.

Appellant next contends that É: C. Lowe violated the provisions of his policy when he voluntarily admitted that he was on the wrong side of the road, and that the collision was his fault, and, further, by giving McMenamin an order to a garage to have his car repaired. We overrule this contention. It seems that Lowe admitted nothing more than the true facts. We cannot conceive of a true statement as to how a collision occurred being sufficient reason for avoiding a policy of public liability insurance. It is true that Lowe agreed to pay for the repairs to McMena-min’s automobile, but this suit is not for any damages to McMenamin’s car, but for personal injuries to his wife.

We now come to the real crux of this lawsuit, which is the contention of both insurance companies that their policy was, under all the circumstances, “excess insurance,” or, in other words, that their policy was to be resorted to only after the policy of the other company had been exhausted. We conclude that the policy issued by the Employers’ Liability was properly held by the trial court to be excess insurance, and could only be resorted to after the limit of the policy issued by Great American had been reached.

Great American refused to defend the original suit for the sole and only reason that it contended through its attorney that its policy did not contain an omnibus clause, and that, therefore, Paramount Pictures could claim no benefits under this policy, Lowe being the named insured. Employers’ Liability investigated and found out that the policy did contain an omnibus clause, and with this knowledge defended the suit and furnished the sum of $2250.00 for the purchase, by its attorney, of an eleven-twelfths interest in the judgment. The Great American having denied liability under its policy for a specific reason, and Employers’ Liability having acted as it has relying upon such statement, the Great American has waived its right to now deny liability for other and different reasons. National Aid Life Association v. Murphy, Tex.Civ.App., 78 S.W.2d 223, 227.

Furthermore, the Paramount Pictures having failed to notify Employers’ Liability of the accident, and this having been brought about to some extent by the fact that the Great American having apparently assumed liability, having begun an investigation of the collision, and having attempted a settlement of the same, it is very doubtful whether or not there would be any other insurance policy to which Paramount Pictures could look for protection other than the policy issued by Great American.

Independent of the above matters, we construe the policy of Great American as being the primary insurance and that of Employers’ Liability excess insurance, only to be resorted to after the limit of the Great American policy had been reached. The Employers’ Liability policy was what may be called a “non-ownership” policy of automobile public liability insurance and contained the following provision, to-wit: “If any assured, other than the named assured is covered by other valid and collectible insurance against the loss covered hereby, such assured shall have no insurance under this policy.”

Said policy further provides as follows: “It is understood and agreed that if there exists at the time of the accident a policy of insurance taken out by or effected on behalf of any one other than the named assured, and under the terms of which policy the named assured is entitled to protection and coverage, then this policy shall operate only as excess insurance over and above the amount of such valid and collectible insurance.”

Paramount Pictures did not own the automobile operated by Lowe, which collided with the automobile of McMena-min, nor did the policy specifically cover such car, it was only taken out to protect Paramount Pictures against liability arising from a collision of any automobile which might be used at the time in the furtherance of its business, and such policy further provided that such insurance should be regarded as excess insurance in the event there was other insurance such as Lowe was carrying on his own automobile. The provisions contained in the policy issued by Great American are not sufficient to render it “excess insurance,” and that of Employers’ Liability primary insurance. When all the facts and circumstances are taken into consideration, as well as the provisions of the two policies, it is plain that just the opposite was intended. Continental Casualty Co. v. Curtis Pub. Co., 3 Cir., 94 F.2d 710; Central Surety & Insurance Corp. v. London & Lancashire Indemnity Co. of America, 181 Wash. 353, 43 P.2d 12; Michigan Alkali Co. v, Bankers Ind. Ins. Co., 2 Cir., 103 F.2d 345; Clements v. Preferred Accident Ins. Co., 8 Cir., 41 F.2d 470, 76 A.L.R. 17; Commercial Standard Ins. Co. v. Harper, 129 Tex. 249, 103 S.W.2d 143, 110 A.L.R. 529; Couch on Insurance, § 186; Philadelphia Underwriters’, etc. v. Moore, Tex.Com. App., 229 S.W. 490; First Texas Prudential Ins. Co. v. Ryan, Tex.Com.App., 82 S.W.2d 635; Burns v. Bankers’ Life Co., D.C., 24 F.2d 714; General American Life Ins. Co. v. Day, Tex.Civ.App., 89 S.W.2d 1012; National Standard Fire Ins. Co. v. Hubbard, Tex.Civ.App., 31 S.W.2d 859.

It is further contended by appellant that the judgment rendered in cause No. B-84724 was an agreed judgment and therefore amounted to an assumption of liability by Paramount Pictures and its liability was thereby waived. We overrule this contention. It is shown that evidence was introduced sufficient to support the judgment rendered. It is true that the attorney for McMenamin stated that he was not asking for a judgment in excess of $3000.00, and the attorney for Paramount Pictures stated that if the judgment was not in excess of $3000.00 there would be no appeal. This instance would not render the judgment an agreed one.

All other contentions made by appellant are without merit and are overruled.

The judgment is affirmed.

SLATTON, J., did not participate in the decision of this case.


author: SMITH, Chief Justice.

text:
    ANDERSON v. ASHER.
    No. 10628.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 29, 1939.
    Rehearing Denied Dec. 30, 1939.
    Atlas Jones and Ross Doughty, Jr., both of Uvalde, for appellant.
    Wiliam J. Fuller, Jr., of Montgomery, Ala., for appellee.
   SMITH, Chief Justice.

Appellee, Asher, recovered judgment against appellant, Anderson, for $175, as broker’s commission for procuring the sale of real estate.

The case was submitted to a jury on special issues to which no objection was made below, and of the specific answer to which no complaint is efficiently made in this Court. The jury findings support the judgment, and no reversible error is shown to have occurred upon the trial.

The judgment is affirmed.


author: JACKSON, Chief Justice.

text:
    McCASKILL v. DAVIS.
    No. 5074.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 6, 1939.

      W. F. Nix, of Amarillo, for appellant.
    Grady L. Fox, of Amarillo, for appellee.
   JACKSON, Chief Justice.

The agreed statement of facts in this case discloses that the appellant, on August 24, 1938, instituted this suit in the County Court of Randall County against the ap-pellee, W. E. Davis, tc> recover an alleged indebtedness for the sum of $296.86. At the same time the appellant made an affidavit, filed a sufficient attachment bond and secured the issuance of a writ of attachment because he asserted that the appellee was about to convert his property or a part thereof into money for the purpose of placing it beyond the reach of his creditors.

The writ of attachment was delivered to the Sheriff of Randall County, who, on August 25, 1938, went to the home of ap-pellee, who resided in Randall County, delivered to him the citation theretofore issued in the case, and exhibited to him the writ of attachment. After a conversation with him the sheriff advised appellee that he would levy on ten head of milch cows and proceeded to write into the writ the following statement: “Seized and levied upon the following described property in the possession of W. E. Davis, to-wit: 10 head of Holstein cows valued at $300.00.” The cattle were in a pasture, a part of the three-quarters of a section of land leased by the appellee, none of which were taken into possession by the sheriff nor disturbed in any way. On the following day the appellee made a replevy bond and his possession of the cattle so levied upon was' never disturbed.

On motion of appellee the affidavit for the writ of attachment was held to be defective and the writ quashed because it omitted the words, “and this writ of attachment is not sued out to injure the defendant”.

The appellee answered by general denial and filed a cross-action against the appellant to recover the sum of $135 actual damages and $265 exemplary damages.

W. E. Black was made a party to the suit on appellee’s cross-action but the court sustained a general demurrer to the cause of action alleged against him and he was dismissed from the case by appellee.

The appellee claimed some credits on the account of $296.86 sued on by the appellant but admitted that he was indebted to appellant in the sum of $252.86. He testified that he did not lose any milk or butter by reason of the wrongful attachment; that the cows were not damaged and were never taken out of his possession, but says he spent $25 driving over the country getting someone to sign his re-plevy bond; that after he replevied the cattle he sold them but not for the purpose of putting them beyond the reach of his creditors; that the ten cows on which the attachment was attempted to be levied were mortgaged and he informed the mortgagee of the attachment, who advised him to sell the cows and pay the mortgage debt; that the cows were each of the reasonable market value of $100, but because of the advice of the mortgagee he sold them for $57.50 per head and he would not have sold them but for the writ of attachment.

The case on agreement of counsel was submitted to the jury without a written charge, a verdict returned awarding appel-lee the sum of $100 and judgment rendered denying appellant any recovery but decreed the appellee damages in the sum of $100, from which judgment this appeal is prosecuted.

The testimony relative to appellant’s personal difficulties with other panties about collecting accounts was obviously inadmissible.

In view of the agreed facts the appellee was not entitled to recover any of the damages he sought to recover against appellant in his cross-action. Johnson v. King & Davidson, 64 Tex. 226; Pye et al. v. Cardwell, 110 Tex. 572, 222 S.W. 153; Osborn v. Paul, Tex.Civ.App., 27 S.W.2d 572; Williams v. De Baca et al., Tex.Civ.App., 113 S.W.2d 566.

The appellee having admitted in his testimony that he was indebted on the account sued for in the sum of $252.86, the court should have instructed a verdict for that amount. Appellant requests that the judgment be reversed and rendered in his behalf for $267.86, with costs, but the agreed statement shows that the difference between the amount of $252.86 and $267.86 was a controverted issue. The appellant states in his brief that the amount exceeding the sum of $267.86 was disputed in the testimony.

The appellant made no motion for judgment non obstante veredicto and without such motion the court generally is not authorized to render a judgment notwithstanding the verdict of the jury, Stallings v. Federal Underwriters Exchange, Tex.Civ.App., 108 S.W.2d 449, but in this case no judgment except one for the appellant was authorized and under such circumstances this court has authority to revei'se and render.

In Vogel et al. v. Allen, 118 Tex. 196, 13 S.W.2d 340, 341, the Supreme Court said:

“It is a general rule that the court is not authorized to render a judgment notwithstanding the findings of the jury. Fant v. Sullivan (Tex.Civ.App.) 152 S.W. 515; Taylor v. Davis (Tex.Civ.App.) 234 S.W. 104; Lemm et al. v. Miller et al. (Tex.Civ.App.) 245 S.W. 90.

“There is, however, a well-recognized exception to this rule to the effect that where, under no view of the pleadings and evidence, the plaintiff is entitled to recover, the submission of the issues and the findings of the jury are immaterial, and may be disregarded by the court. Hays v. Stone, 36 Tex. 181; Baker v. Coleman Abstract Co. (Tex.Civ.App.) 248 S.W. 412; Ferguson v. Kuehn et al. (Tex.Civ.App.) 246 S.W. 674; Crowley v. Chapman (Tex.Civ.App.) 260 S.W. 231; Hicks v. Armstrong (Tex.Civ.App.) 142 S.W. 1195; Stark v. George (Tex.Civ.App.) 237 S.W. 948.

“Under no view of the pleadings and evidence were appellants entitled to recover against appellee; hence the court properly ignored the findings of the jury and rendered judgment for appellee.”

The judgment is reversed and here rendered that appellant have and recover of and against the appellee the sum of $252.86 and costs, together with interest at the-rate of 6% per annum from October 4, 1938, until paid, provided appellant waives, the sum sued for in excess thereof; if he does not, the judgment will be reversed and the cause remanded.


text:
    PICKRELL v. PICKRELL.
    No. 5073.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1939.

      Griffin & Morehead, of Plainview, and James A. Gowdy, of Muleshoe, for appellant.
    E. A. Bills and T. Wade Potter, both of Littlefield, for appellee.
   STOKES, Justice.

This suit was filed by the appellee on January 20, 1938, the purpose of the suit being to recover from appellant, who is his brother, a certain four room house and combination garage and smokehouse which he alleged had wrongfully been removed by appellant from land and premises belonging to appellee, and, in the alternative, for damages. The case was submitted to a jury upon special issues, all of which were answered in favor of appellee, and the court entered judgment accordingly.

The record shows that J. Pickrell and his wife owned considerable land, including labors 19 and 20 of league 642, in Lamb County, and that the town of Fieldton, consisting of a plot of 26½ acres, was established on labor 20 during their lifetime. J. Pickrell and his wife died, leaving as portions of their estate a large number of town lots in the town of Fieldton and labors 19 and 20 of league 642, together with other lands. After the deaths of J. Pickrell and his wife, the appellant herein, H. C. Pickrell, filed a suit in the district court of Lamb County, seeking to have the properties of the estate partitioned between the two sons, consisting of himself and the appellee, and three daughters, who constituted all of the children of the deceased parents. At the August term, 1936, the commissioners in partition who had theretofore been appointed by the court, made their report in which they allotted to appellee, C. E. Pickrell, all of labor 20 and the east twelve acres of labor 19, in league 642, save and except the town lots theretofore cut off of labor 20, consisting of 165 acres of land, together with other real and personal property. They allotted to appellant 77 town lots on the townsite of Fieldton, together with other property.

Labor 20 constituted the homestead of the parents, their dwelling and outbuildings being located a short distance south of the townsite of Fieldton. The record is not clear as to the exact location of the four room house, garage and smokehouse, to recover which appellee brought this suit, but it is sufficient, we think, to show that they were not located on either labor 20 or the east 12 acres of labor 19 but were located on land awarded to appellant. The four room house was a small dwelling house located near the parental residence and had been used by the parents as a place in which to house their hired help and as a tenant house. The garage and smokehouse seem to have been a combination building and were used by the parents and in connection with the four room house. As we have stated, while these structures were located near the residence of the deceased parents, they were not located either on the east 12 acres of labor 19 or on labor 20. The record indicates at least a portion of the garage was located on a strip of land thirty feet in width running along the south side of the townsite which had been laid off as a street in connection with the town of Fieldton. This strip of land was after-wards recovered by appellant, H. C. Pick-rell, in a suit of trespass to try title.

In the latter days of December, 1936, after the estate had been partitioned by the district court, appellant removed the four room house and combination garage and smokehouse from the place where they had been established by his father to his home a few hundred yards distant and the purpose of appellee in filing the instant suit was to recover these structures or their value as damages.

The contentions made by appellant in this appeal are, first, that appellee’s petition alleged a cause of action which exceeded the jurisdiction of the county court. Secondly, that the subject matter of the suit had been adjudicated in the partition suit and his plea of res judicata should, therefore, have been sustained, and, thirdly, that the suit of appellee constitutes a collateral attack upon the judgment in the partition suit.

We cannot agree with appellant in his first contention to the effect that the petition states a cause of action which exceeds the jurisdiction of the county court. It is alleged in the petition that at the time the house was taken by appellant it was of the value of $500 and that the garage and smokehouse were of the value of $300. It is also alleged that in moving the house appellant damaged it to the extent of $100 and that the smokehouse was likewise damaged in the sum of $50. Appellant contends that, in addition to these items, which aggregate the sum of $950, appellee is suing for the rental value of the house in the sum of $140 and of the garage and smokehouse in the sum of $50 and, according to his calculation, the total amount sued for by appellee is $1,140, which is in excess of the jurisdiction of the county court. We do not construe the petition to be a suit for all of these items. While it is alleged the house, before it was moved, was of the value of $500 and the garage and smokehouse of the value of $300, in view of other allegations and the prayer, these allegations really have no place in the petition. As we construe the allegations of the petition, it is' a suit for the title and possession of the buildings removed and, in the alternative, for the sum of $650 which it is alleged was their value after being removed, together with the damages of $150, and reasonable rental value of $190, aggregating the sum of $990, which is within the jurisdiction of the county court. The first contention of appellant is, therefore, overruled.

As to the second contention which involves the appellant’s plea of res judicata, the record shows that in the partition suit in the district court all of the parties appeared and agreed that the court may appoint commissioners to partition the estate. The commissioners were appointed and in due time made their report in which they allotted to appellee labor 20 and 12 acres off of the east side of labor 19, save and except the town lots that had theretofore been taken from labor 20 and platted into a townsite. The report was approved and judgment of the district court was entered in which the titles were confirmed in the parties respectively to whom the various tracts and parcels had been allotted by the commissioners. From this judgment no appeal was taken and it became the final judgment of the district court. The record is not clear as to the exact location of the buildings that were removed by appellant but it seems to be conceded they were not located upon any of the land awarded to appellee, but were actually located upon land that was awarded to appellant. It was the contention of appellee in the trial court, and he so contends here, that labor 20 which was awarded .to him, save and except the town lots, constituted the home place of the deceased parents and it having been awarded to him by the commissioners in' partition and by the judgment of the court in the partition suit, he was entitled to all of the buildings and appurtenances occupied and used by the deceased parents in connection with their home place. He contends that, inasmuch as the four room house, garage and smokehouse were used by the deceased parents in connection with their homestead and as a place of residence for their hired help on the farm, it was the intention and purpose of the commissioners in partition, and of the court in entering the judgment of partition, to allot and decree to him these buildings, although they may have been actually located on land allotted and decreed to appellant. The report of the commissioners in partition does not specify any buildings, improvements or appurtenances but merely describes the land allotted to appellee as labor 20 and the east 12 acres of labor 19, save and except the town lots. Appellee takes the position, therefore, that the report and decree are ambiguous and subject to explanation in this case. In an effort to explain the alleged ambiguity he introduced witnesses, including the three commissioners, who testified over the objection of appellant that the commissioners really_intended to award all of the buildings at the home place to' appellee. Appellant objected to all this testimony upon the ground that it was designed to modify and change the decree in the partition suit; that these matters had all been adjudicated in that suit and that it was a collateral attack upon the judgment in the partition suit. He leveled exceptions to allegations in the petition to this effect, which exceptions were overruled ■ by the court and the action of the court in overruling the exceptions, as well as his objections to the testimony, are made the basis of this second contention.

Neither the report of the commissioners nor the decree of the court in the partition suit mentioned the buildings, improvements or appurtenances to the land awarded to either of the claimants. We do not understand, however, that it is necessary for a conveyance, devise or decree of land to specify its appurtenances or improvements in order that -they may pass with the land conveyed, bequeathed or decreed. The rule is that in the absence of a reservation in the deed, devise or decree, buildings and other articles affixed to or used in connection with realty in such way as to constitute appurtenances or fixtures pass as a matter of course by the conveyance, devise or decree passing the title to the realty. Hunstock v. Limburger, Tex.Civ.App., 115 S.W. 327; Schaefer et al. v. First Nat. Bank, Tex.Civ.App., 189 S.W. 556; Sheets v. Selden et al., 2 Wall. 177, 69 U.S. 177, 17 L.Ed. 822. There is nothing in the report of the commissioners to indicate they intended appellee should have more than that which was located upon the land allotted to him. The “home place” was not alluded to as such in the report. The description of the property allotted to appellee is not different, except in the designation of the property, from that which was allotted to appellant. Neither the word “appurtenances” nor “improvements” is used in connection with either of them. It would seem, therefore, that under the terms of the report and decree of the court in the partition suit, if appellee is correct in his contention, appellant would have as much claim to the buildings and appurtenances located on labor 20 allotted to appellee as appellee ■would have to the buildings and appurtenances located upon the property allotted to appellant.

The trial court seems to’ have been in accord with the contention of ap-pellee that the report of the commissioners and the decree in the partition suit were ambiguous and subject, therefore, to be explained by extrinsic testimony in this case. With this contention we cannot agree. The report and decree plainly allot and award to appellee labor 20, save and except the town lots. That award carried with it all of the improvements located upon that tract of land. Likewise they awarded and decreed to appellant the tract of land upon which the buildings in controversy in this case were located and that award carried with it all of the buildings, improvements and appurtenances located upon that tract. The failure of the report and decree specifically to designate buildings and improvements, as such, did not make them ambiguous. If they were free from ambiguity no extrinsic evidence would be admissible to add to or explain them. Barclay v. Stuart, 4 Tex.Cr.R. 685, 23 S.W. 799; Rosenthal v. Sun Co., Tex.Civ.App., 156 S.W. 513.

Appellee contends in- this connection that the report and judgment failed to describe or specify the town lots awarded to appellant and, for that reason, they were ambiguous and subject to explanation in this suit. The town lots were not awarded to appel-lee, but to appellant. That is, therefore, a matter with which appellee is not concerned in this case. The mere fact that they may have been ambiguous in some respect immaterial to the issues being tried constitutes no warrant for going into the report and decree in the former litigation and making specific all of their parts which may be deemed ambiguous.

Neither can we sustain appellee’s contention that because, the report and decree of the court in the partition. suit did not specifically dispose of the house and garage, the report and decree were afflicted with a latent ambiguity and, therefore, subject to extrinsic evidence. Appellant’s exception to the petition upon that ground and his objection to the testimony offered in support of it should have been sustained. Likewise his objection to special issues Nos. 1 and 2 submitting to the jury the question of the intention of the commissioners should have been sustained. In the absence of ambiguity in the report and former judgment, thus relieving them of extrinsic, explanatory evidence, these allegations, evidence and findings of the jury constituted matters that had been adjudicated in the former proceeding and were subject to the contention of appellant that they were res judicata. They likewise constituted a collateral attack upon the partition judgment as is asserted by appellant under his third contention. All of these exceptions and objections were overruled and in these rulings we think the court committed error for which the judgment will have to be reversed. Without these allegations in the petition, the testimony adduced from the witnesses on this point and the findings of the jury under special issues Nos. 1 and 2, appellee had no basis upon which to maintain this suit. The case seems to have been fully developed and no purpose could be subserved by another trial.

The judgment of the court below will be reversed and judgment here rendered for the appellant.