author: GRAVES, Justice.

text:
    JUSTISS et al. v. NAQUIN et al.
    No. 10885.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 25, 1940.
    Rehearing Denied Feb. 15, 1940.

      W. C. Campbell, of Palestine, and Mc-Entire & Shank, Eckford & McMahon, and James H. Walker, all of Dallas, for appellants.
    Touchstone, Wight, Gormley, Strasburger & Price, of Dallas, for appellees Mrs. Lena Milam and Mary Edith Rupp.
    J. D. Pickett and Tom Pickett, both of Palestine, for appellees G. J. and Ruby Lee Naquin.
   GRAVES, Justice.

Despite an inordinate record over all (inclusive of transcript, statement of facts, and briefs) of about 2,000 pages, this appeal — when reduced to its ultimate of issues material at this time — -is simply one from an aggregate judgment for $8,500 in favor of Ruby Lee Naquin, a minor, and her father, G. J. Naquin ($7,000 hers, $1,500 his), against appellants, J. F. Justiss and his employers, Hassie and Margaret Hunt (composing the partnership of Pen-rod Drilling Company), as for personal . injuries suffered by such minor and entailed expenses cast upon her father, in a collision in Anderson County between appellants’ car, driven by Justiss, and one owned by Mrs. Milam, and driven by Miss Rupp, in which the appellee-minor was riding.

A decree was entered, both upon a jury’s verdict on special-issues and independent findings of the court itself, the ultimate gist of all of which was that the collision had resulted from the concurring negligence of the two drivers of the respective cars, Miss Rupp and J. F. Justiss, the details thereof having been — severally stated— substantially as follows:

“(1) The negligence or Miss Rupp consisted, among other acts, in having steered her car off the pavement, after passing another car, and then cutting the car too sharply to the left to put it back on the pavement; in turning loose of the steering wheel as the car came back on the pavement, the car going at an angle across the eighteen-foot pavement, slowing down all the time, until the front half of the car was entirely off the pavement on the north or east side thereof and the car still im motion, when appellants’ automobile— driven by J. F. Justiss at a speed in excess of 45 miles per hour — approached and struck the Milam car on the right-hand side, toward the back end. The impact of the collision reversed the Milam car, without turning it over, and it rolled slowly down the shoulder of the road, and came to rest pointing in the opposite direction from that in which it had been travelling. At the point of collision, the paved highway extended in a general East-West direction. The collision occurred wholly on Justiss’ half of the highway, which some of the witnesses called the north side, and others ■ called the east side, of the highway. The jury found Justiss to be guilty of negligence, which proximately caused the collision: (1) In approaching the place of collision at a speed in excess of 45 miles per hour; (2) in driving with his car out of control as he approached the place of collision; (3) in driving with his car out of control at the very moment of the collision; and (4) in driving his car at a dangerous rate of speed at the very point where the collision occurred.”

The appellees did not sue Mrs. Milam and Miss Rupp, owner and driver, respectively, of the car carrying the minor, considering themselves in the circumstances precluded from so doing by Texas Vernon’s Ann.Civ.St. Article 6701-b; but appellants did sue them for contribution and indemnity, under averments that their own negligence in the collision, if any, had been passive, while that of Mrs. Milam and Miss Rupp had been active.

The trial court, however, before submitting the' jury-issues, peremptorily instructed a verdict in favor of'Mrs. Milam and Miss Rupp, which, as affected the trial below, took them out of the case; notwithstanding that action, the appellants perfected an appeal, pursuant to their action below, against those two ladies; but, since the original submission of the cause to this court, they have moved here for permission to dismiss that appeal, and upon consideration of the cause as a whole, it has been granted; wherefore, they are no longer involved.

In addition to the findings noted supra, the jury also determined the accident not to have been an unavoidable one, and that the appellants had not been guilty of certain additional acts of negligence under detailed specifications of the appellees that their driver, Justiss, had discovered the minor’s peril in time to have avoided injuring her, had he lived up to the new duties cast upon him by such discovery.

Appellants ably inveigh against the judgment on many grounds, the principal ones being,. in substance, these:

(1)Their motion for judgment non obstante veredicto should have been granted, because “as a matter of law, J. F. Justiss was not bound to anticipate that the driver of a car which was approaching him' from the opposite direction would lose control thereof and veer over on the wrong side of the road; and therefore the negligence-of Justiss could not be a proximate cause of the collision; that the presence of the Rupp car on the wrong side of the road was the sole proximate cause, and the acts' of the driver of the other car in losing control and driving over on the wrong side of the road, were new, independent causes; 'particularly so, since the jury found that J. F. Justiss did not fail to use ordinary care after he discovered the ’ perilous position of the occupants of the Rupp car.”

Substantially this same contention is repeated in another form by their subsidiary ones that the stated findings of negligence against Miss Rupp had, as a matter of láw, concluded the controversy in their favor, thereby disclosing the errors of the trial court, not only in having refused submission to the jury of their specially requested issues 398 to 402, inclusive, but also in overruling their motion for a new trial based upon the same grounds.

(2) That the court erred in its rulings upon the receipt • and exclusion of . testimony, in discarding res gestae declarations of Miss Rupp, immediately after the accident, to the effect that it had been her fault, that all of a sudden she had lost control .of her car, and didn’t know how it happened, etc.

(3) That the trial court reversibly erred in its definitions of “unavoidable accident”, “under control”, and “new and independent cause.”

(4) That there was prejudicial error <in the submission of special issue No. 17 in the form given, because it did not require the jury to make any finding it might return as to injuries to Ruby Lee Naquin, or the extent thereof, “from a preponderance of the evidence”.

(5) That there was error in submitting special issue No. 18, inquiring as to what her father had reasonably and necessarily expended in the care and treatment of Ruby Lee’s “injuries as' proximately resulted from such collision”, because it assumed she had received injuries so resulting; and there was further prejudice in permitting the jury to take into consideration any decreased earning-capacity they might find Ruby Lee would suffer after she had attained the age of 21, because there was no ' evidence supporting such issue.

(6) That the arguments of appellees’ counsel to the jury, Hon. J. D. Pickett, both in his opening and closing ones, as specified in appellants’ propositions 40 to 49, inclusive, were improper, involved matters outside of the record, and were prejudicial ; hence the court committed reversible error in overruling appellants’ motion for a new trial because thereof.

Because appellants’ original brief was amended so as to incorporate for the first time their bills of exception under their .propositions Nos. 40 to 49, inclusive, relating to challenged arguments of appellees’ counsel, referred to in paragraph (6) supra, appellees’ supplemental brief — conforming their own original one so as to constitute a reply thereto — has been permitted to be filed.

So that, as conceived by this court, the summary of appellants’ contentions in preceding paragraphs (1) to (6),- inclusive, reflects at least the major ones of their presentments.

The removal of Mrs. Milam and Miss Rupp as parties in any way to the appeal materially reduces the task of this court in its endeavor to apply the law to the issues left in the cause; it eliminates all pre-existing issues as to whether or not the appellee, Ruby Lee Naquin, was engaged in a joint-enterprise with Mrs. Milam and Miss Rupp, and as to whether or not Miss Rupp's negligence as found by the court and jüry was attributable to her, leaving the cause as now justiciable upon this record to have been undisputedly brought within the purview of Vernon’s Ann.Civ.St. Article 6701-b, known as the “guest statute”; indeed, it is this court’s understanding that the appellants so conceived, their stated motion to dismiss their appeal as to Mrs. Milam and Miss Rupp having carried an alternative ‘prayer that the judgment below be affirmed as to those two parties they had perfected an appeal against; further, they abandoned in arguments all discussion to the contrary.

At all events, the trial court’s theory in the issues submitted to the jury was that the “guest statute” applied, and that action is approved.

Further, under well-settled authority, none of the multitudinous acts .of negligence found by the jury in answering special-issues against Miss Rupp, under whose driving Ruby Lee was in law a guest of herself and Mrs. Milam, were imputable, to Ruby -Lee or her father in this their action against appellants for having, by the latters’ own acts of negligence, caused this collision.

As applied to the resulting situation and to the whole record in so far as reflects it, it is. determined that none of appellants’ enumerated positions should be sustained; the first of them is thought to present the major question in the cause, and, without undertaking to discuss all the minutiae urged in support thereof, which the limitations of this opinion and the court’s time make impracticable, is overruled upon these among other considerations :

By findings of the court and. jury upon sufficient evidence, after'the jury at least had been cross-examined by the submission of special-issues properly seeking to elicit all ultimate matters of fact raised by the pleadings and testimony relating thereto on both sides, it was — in effect — determined :

(1) That the collision and consequent injuries had proximately resulted from the concurring negligence of the two drivers of the respective cars — Miss Rupp for Mrs. Milam, and J. F. Justiss for -appellants ;

(2) That, in view of tiie position and condition of the' Milam car at and immediately before the.collision, Justiss’ negligence in bearing down upon it, unable, to control his car,, at an illegal rate of speed of more than 45 miles per hour, without either stopping, slowing down below that speed, or turning to the left, at least concurred with the likewise-found negligence of Miss Rupp at the sanie time in causing the collision; and that, without such concurring negligence on his part, the accident would not have happened;

(3) That driver Justiss, in all the circumstances, both could and should have anticipated that other cars might be on his side of. the road, and that his failure to do so and slow his speed, or turn his car slightly to the left, constituted a proximate cause of the collision in the absence of which it would not have occurred, along with the predicament Miss Rupp had negligently caused the car she was so driving to be in at the same time;,

(4) That the negligence of Miss Rupp in none of the particulars detailed in the findings upon that subject constituted either the sole proximate cause, or a new and independent cause, of the collision.

These authorities are thought to support the conclusions stated: Art. 827a, Section 8, Texas Penal Code; Art. 790, Texas Penal Code; Gulf, C. &. S. F. R. Co. v. Ballew, Tex.Com.App., 66 S.W.2d 659; Texas Power & Light Co. v. Culwell, Tex. Com.App., 34 S.W.2d 820; Texas Public Service v. Armstrong, Tex.Civ.App; 37 S.W.2d 294, 295; Mahoney v. Beatman, 110 Conn. 184, 147 A. 762, 66 A.L.R. 1121; Sandel v. State, 115 S.C. 168, 104 S.E. 567, 13 A.L.R. 1268; Carvel v. Kusel, Tex. Civ.App., 205 S.W. 941; Galveston, H. & S. A. Ry. Co. v. Packard, Tex.Civ.App., 193 S.W. 397, error refused; West Texas Coaches v. Madi, Tex.Com.App., 26 S.W. 2d 199; Keevil v. Ponsford, Tex.Civ.App., 173 S.W. 518, 519; Anderson v. Reichert, Tex.Civ.App., 116 S.W.2d 772; Blakesley v. Kircher, Tex.Com.App., 41 S.W.2d 53; San Antonio & A. P. R. Co. v. Behne, Tex. Com.App., 231 S.W. 354; Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334; Carey v. Pure Distributing Corp., Tex.Sup., 124 S.W.2d 847; Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063, 1068; Eizenman v. Jaynes, Tex.Civ.App., 33 S.W.2d 254; Missouri, K. & T. R. Co. v. Cardwell, Tex.Civ.App., 187 S.W. 1073; Postal Telegraph & Cable Co. v. Saper, Tex.Civ.App., 108 S.W.2d 259; Gonzales v. City of Galveston, 84 Tex. 3, 19 S.W. 284, 31 Am.St.Rep. 17; Shafir v. Sieben, Mo.Sup., 233 S.W. 419, 17 A.L.R. 637; Farrar Lumber Co. v. McDonald, Tex.Civ.App., 32 S.W.2d 940; 45 C.J., page 921, sections 285, 499; Ramin v. Cosio, Tex.Civ.App., 85 S.W.2d 802; Lancaster v. Browder, Tex.Com.App., 256 S. W. 905.

Neither was there reversible error in the exclusion of the so-called res gestae declarations of Miss Rupp, as tendered through the witness Mrs. Morehead, to the effect that immediately after the accident she had heard a lady say she “was responsible for it”; nor in that of similar purport, as presented through the witnesses, Mrs. Turner Campe and Dr. Barrett; in this court’s opinion, none of these statements came within the res gestae rule, none of them could have been admissible as a declaration against interest, because Miss Rupp—having so been eliminated as a party participant—had no interest left in the controversy; and, above all, because the whole case was tried by the appellees upon the theory that Miss Rupp had committed acts of negligence that concurred with the negligence of appellant Justiss as constituting proximate causes of the collision, hence, in any event, if that defensive position be sound, all. such statements had become immaterial anyway, DeWalt v. Houston, 22 Tex.Civ.App. 409, 55 S.W. 534; San Antonio Pub. Service v. Alexander, Tex.Civ.App., 280 S.W. 753; Red Arrow Freight Lines v. Gravis, Tex. Civ.App., 84 S.W.2d 540; Wheeler v. Oregon R. Co., 16 Idaho 375, 102 P. 347; 76 A.L.R., pages 1126-1128; Foster v. Beckman, Tex.Civ.App., 85 S.W.2d 789; Great Atlantic & Pacific Tea Co. v. Walker, Tex. Civ.App., 104 S.W.2d 627, sec. 6; Metropolitan Casualty Ins. Co. v. Woody, Tex. Civ.App., 80 S.W.2d 771, sec. 2, error dismissed; 17 Tex.Jr. page 642, section 270; Anizan v. Paquette, Tex.Civ.App., 113 S. W.2d 196, error dismissed; Hall v. Simmons, 24 Tex. 227; Volume 39, Texas Digest, Witnesses, Brotherhood of Locomotive Firemen & Engineers v. Raney, Tex.Civ.App., 101 S.W.2d 863, error dismissed:

None of the definitions assailed, that is, those expounding to the jury “unavoidable accident”, “under control”, and “new and independent cause”, are thought, as applied to the individualistic facts of this particular case, to have been tainted with prejudicial error; in their order these definitions were as follows:

(1) “The term ‘Unavoidable accident’, as used in this charge, means an event or injury the happening of which is not caused in any degree, either directly or remotely, by the negligence of any one, and which event or injury could not have been foreseen by the exercise of ordinary care.”

(2) “In connection with Special Issue No. 3, you are instructed that the term ‘Under control’, as applicable to Special Issue No. 3, means that the operator, by the means at his command and by the use of ordinary care, could so lessen the speed of his automobile or even stop it if necessary, as to avoid the danger of a collision without injury to any person or thing he could have reasonably anticipated as probably being on his righthand half of the highway, or near enough thereto to be struck by any part of his automobile.”

(3) “The term ‘New and independent cause’ as used in this charge means the act or omission of a separate and independent agency, if any, which destroys the causal connection between the negligent act or omission of the defendant, if' any, and the1 injury complained of, and thereby becomes, in itself, the immediate cause of such injury, which act or omission of such separate and independent agency could not have been reasonably foreseen by the original wrong-doer in the exercise of ordinary care.”

Authorities considered to authorize this statement as expressive of the rules applicable in the particular circumstances are, respectively as follows:

(1) Vesper v. Lavender, Tex.Civ.App., 149 S.W. 377, error dismissed; Magnolia Coca Cola Bottling Co. v. Jordan, Tex.Civ. App., 47 S.W.2d 901; Galveston H. & S. A. R. Co. v. Waldo, Tex.Civ.App., 77 S. W.2d 326, error dismissed; Brisco v. Metropolitan St. R. Co., 222 Mo. 104, 120 S.W. 1162; Hogan v. Kansas City Public Service Co., 322 Mo. 1103, 19 S.W.2d 707, 65, A.L.R. 129; Standard Oil v. United States, 4 Cir., 264 F. 66, 12 A.L.R. 1404;

(2) Wichita Falls Traction Co. v. McAbee, Tex.Civ.App., 21 S.W.2d 97, par. 7; Texas & N. O. R. Co. v. Mortensen, 27 Tex.Civ.App. 106, 66 S.W. 99, error denied; 65 C.J., page 1203; Carruthers v. Campbell, 195 Iowa 390, 192 N.W. 138, 28 A.L.R., page 949, note on page 952.

(3) Young v. Massey, 128 Tex. 638, 101 S.W.2d 809; Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60; Commercial Standard Ins. Co. v. Shudde, Tex.Civ.App., (affirmed), 76 S.W.2d 561; Stedman Fruit Co. v. Smith, Tex.Civ.App., 28 S.W.2d 622, error dismissed.

The criticism of special-issue No. 17 in that it did not require any finding as to the existence or extent of any claimed injuries to Ruby Lee to be made “from a preponderance of the evidence”, is likewise not well taken; that issue was as follows:

“What amount of money, if paid now in cash, do you find from a preponderance of, the evidence will fairly compensate the plaintiff, Ruby Lee! Naquin, for the injuries, if any, alleged and proved to have been received by her on the occasion in question ?
“Answer: In Figures, if any.” (Italics ours)

This amounts, in sum, to saying that, notwithstanding the emphasis hereby the underscoring, the phrase “preponderance of the evidence” should have been repeated after “alleged and proved”; this appears to this court to be a mere splitting of hairs as applied to the undisputed evidence in this case, wherein the seriousness and permanency of Ruby Lee’s injuries appeared without any sort of dispute, hence that matter should not even have gone to the jury. Hebert v. New Amsterdam, Tex. Com.App., 3 S.W.2d 425 ; Smith v. Peeler, Tex.Com.App., 29 S.W.2d 975; Peeler v. Smith, Tex.Civ.App., 18 S.W.2d 938; Casualty Reciprocal Co. v. Stephens, Tex.Com. App., 45 S.W.2d 143; House v. Robertson, 89 Tex. 681, 36 S.W. 251; Federal Surety Co. v. Smith, Tex.Com.App., 41 S.W.2d 210; 50 C.J., page 827; Southwestern Ry. Co. v. Bradford, Tex.Civ.App., 139 S.W. 1046, error dismissed.

The same thing, in effect, may be properly said of the complaints under special-issue No. 18, designed to elicit what Mr. Naquin had reasonably and necessarily expended in the care'of Ruby Lee’s injuries; in fact, appellants did not complain as to excessiveness in the amounts allowed either Ruby Lee or Mr. Naquin, nor could they successfully have done so under the evidence bearing upon that feature, hence their objections to these two issues would seem to be hypercritical in any event, the degree and character of Ruby Lee’s injuries, as well as the nature and amount of the entailed expense upon her father, together with the amount thereof, having been wholly undisputed.

It was further self-evident — from the overwhelming proof shown of the seriousness and permanency of Ruby Lee’s injuries, inclusive of the particular character thereof, and the respects in which they would deprive her of feminine normality when she reached mature womanhood— that her earning-capacity would necessarily be decreased.

Finally, a number of the arguments to the jury by appellees’ able counsel, Hon. J. D. Pickett, are challenged as having been improper, outside the record, and reversibly prejudicial; this court, after a very careful examination of the whole record relating thereto, is unable to so hold; upon the contrary, while it is thought some of them may have been indiscreet and overdrawn, none were inflammatory nor sufficiently out of the record or unprovoked as to have in reasonable probability entailed injury upon the appellants; indeed, the statement therein that “such attorney himself had been at the scene of the collision immediately after it happened, and no one had seen him take the witness-stand in behalf of his client in the suit”, appears not only to have been supported by the record but to have been in reply to, or at least to have been provoked by, the apparent efforts of appellants during the-trial to connect this attorney up with other law-suits growing out of the same accident ; his further statement, apparently • made without any improper objective that “the court had very generously given him more time in which to argue the case, if he desired”, appears to have- been wholly harmless; counsel further indulged in embellishments and illustrations in his address to the jury, wherein he rhetorically asked that body — in discussing whether- Ruby Lee had been negligent in riding with two other girls on one of the two seats in the Milam automobile — how much space one of their daughters would take up in such a situation, if she weighed approximately what the evidence showed that Ruby Lee and the young girls with her weighed respectively; he then went on to argue from the jury’s assumed answers, or his own imaginings thereon, that “it was common practice in this country for three people to ride on a seat in automobiles, that the ordinary family could not afford more than one car”, etc.

There are a number of like or similar arguments, but it is deemed unnecessary to repeat further the substance of any of them, because, as indicated supra, none of them were inflammatory, no facts not already known to the jury were recited in any of them, nor, intrinsically, were any of them of such a nature as could not have been prevented entirely, or at least denuded of any prejudicial effect, by timely objection thereto made at the time; but appellants neither made any such objections during the trial, nor then requested any charge or other corrective or preventive action of the trial court, in fact made no protest against them until the filing of their motion for a hew trial, which the court overruled;

Wherefore, it is held that no reversal should be ordered under these assignments; Gulf Refining Co. v. Rogers, Tex.Civ.App., 57 S.W.2d 183, error dismissed; Jaffe v. Deckard, Tex.Civ.App., 261 S.W. 390, error refused; Schmidt v. Houston Electric Co., Tex.Com.App., 242 S.W. 1019; Casualty Reciprocal Co. v. Stephens, Tex.Com. App., 45 S.W.2d 143; City of Waco v. Rook, Tex.Civ.App., 55 S.W.2d 649, error dismissed; Volume 36, Texas Digest, Trial, Tennessee Dairies v. Seibenhausen, Tex.Civ.App., 99 S.W.2d 323, error dismissed; American Nat. Ins. Co. v. Hammond, Tex.Civ.App., 91 S.W.2d 432, error dismissed; Texas & N. O. v. McGinnis, Tex.Civ.App., 81 S.W.2d 200, 209, affirmed, 130 Tex. 338, 109 S.W.2d 160; Maryland Casualty Co. v. Hill, Tex.Civ.App., 91 S.W.2d 391, error dismissed; Wells v. Henderson, Tex.Civ.App., 78 S.W.2d 683, error refused; Southwestern Gas & Electric Co. v. Hutchins, Tex.Civ.App., 68 S.W.2d 1085, error dismissed; Ochoa v. Winerich, 127 Tex, 542, 94 S.W.2d 416; Rio Grande E. P. & S. F. R. Co., v. Dupree, Tex.Com. App., 55 S.W.2d 522, error dismissed; Independent Life Ins. Co. v. Hogue, Tex. Civ.App., 70 S.W.2d 629, error dismissed; Robbins v. Wynne, Tex.Com.App., 44 S. W.2d 946; Te.xas Creosoting Co. v. Sims, Tex.Civ.App., 113 S.W.2d.227; Garcia v. Moneada, 127 Tex. 453, 94 S.W.2d 123; Bradley v. Interurban Ry. Co., 191 Iowa 1351, 183 N.W. 493, 495; Dow v. Southern Pac. R. Co., 105 Cal.App. 378, 288 P. 89; Marchetti v. Southern Pac. Co., 204 Cal. 679, 269 P. 529; Campion v. Eakle, 79 Colo. 320, 246 P. 280, 47 A.L.R. 289; 41 Tex.Jur., page 781, section 62; O’Meara v. F. C. Williams et al. 137 S.W.2d 66, this-day decided by this court, and authorities therein cited.

The cause as a whole; although extended and complicated in its reaches, appears to have been discriminatingly tried by the able-trial Judge, and to have been determined in substantial accord with the law and the-facts; this court is, therefore, constrained to uphold the action there taken.

An affirmance will be ordered.

Affirmed.


source: Caselaw Access Project

author: WALKER, Chief Jhstice.

license: Public Domain

text:
    ÆTNA LIFE INS. CO. v. ALLEN et al.
    No. 3552.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 23, 1939.
    On Rehearing Jan. 17, 1940.

      Gordon, Sharfstein, Bell & Weinert, of Beaumont, for appellant.
    Mike Daughtry and Howth, Adams & Hart, all of Beaumont, for appellee.
   WALKER, Chief Jhstice.

On the 2nd day of April, 1936, appellant, .¿Etna Life Insurance Company, issued and delivered to Mrs. Ruby King (now Mrs. H. S. Allen) as an employee of the Rosenthal Dry Goods Company of Beaumont, a policy of insurance whereby, upon the following conditions, appellant agreed to pay appellee the principal sum of $1,000: “If an employee, before attaining the age of sixty years, and while insured hereunder, becomes totally disabled and presumably will thereafter during life be unable to engage in any occupation or employment for wáge or profit * * * such employee shall be deemed to be totally and permanently disabled. Upon receipt at the home office of the company (2Etna Life Insurance Company) during the continuance of insurance on such employee of satisfactory evidence of such disability, the company will pay the amount of insurance in force upon such life at the time such disability commenced, in lieu of all other benefits provided on such life under this policy.”

The group policy issued by appellant to the Rosenthal Dry Goods Company as employer was No. 3741; appellee’s certificate as an employee was No. 131. This suit was instituted by appellee against appellant to recover the principal sum of $1,000 with damages and attorney’s fees, on allegations of permanent total disability within the policy provisions. Appellant answered by general demurrer, special exceptions and general denial.

It is . conceded that the policy was in full force and 'effect; that the statutory damages on the amount sued for was $120; that $370 was a reasonable attorney’s fee. On the verdict of the jury, on the 5th day of December, 1938, judgment was rendered in favor of appellee for the principal sum sued for, and the damages and attorney’s fees agreed upon, making a total recovery of $1,490, with interest at the rate of six per cent per annum from the date of judgment until paid, together with 'all costs of- suit.

; Appellant has briefed its case under assignments of error, without supporting propositions. Appellee, by motion duly filed, has moved to strike the brief on the ground that it was prepared in violation of the briefing rules. The motion is overruled. Under the present statutes regulating briefing, propositions are not an essential element of the brief.

By assignments one to seven, appellant complains of the refusal of the court to submit certain requested issues on its defense, affirmatively plead, that appel-lee’s disability, if any, was temporary and not permanent. On a review of the evidence, we agree with appellant, as against appellee’s contention, that the evidence raised that issue. But it is our conclusion that appellant’s defense was satisfactorily submitted to the jury by special issue No. 6 of the court’s charge. We give the court’s charge on the issue of permanent total disability:

“Special Issue of Fact No. 3
“Do you find, from the preponderance of the evidence that at the date when Mrs. H. S. Allen ceased to be an employee of The Rosenthal Dry Goods Company she had sustained total disability, within the meaning of the definition heretofore given you?
“Special Issue of Fact No. 4
“Do you find, from the preponderance of the evidence, that such ‘total disability’ (if you have so found) was and is permanent within the meaning of the definition of ‘permanent total disability’ as above given you?
“Special Issue No. 6
“Do you find from a preponderance of the evidence that at some time during plaintiff’s future life she will be able to pursue some occupation .or employment which by ability, education, experience and training she is qualified to perform for wage or profit ?”

Issues Nos. 3 and‘4 were answered in the affirmative; issue No. 6 in the negative. It is our conclusion that special issue No. 6 carried to the jury every element of appellant’s affirmative defenses. Appellant requested the court to submit to the jury the following issue:

“Special Issue No. C
“Do you find from a preponderance of the evidence that at some time during plaintiff’s future life she will be able to pursue some occupation which by ability, education, experience and training she can perform, and which will be of profit to her?”

Special issue No. 6 was in substance appellant’s special issue No. C.

The court gave in charge to the. jury the following definition of permanent total disability:

“(b) ‘Total disability’ is defined as follows:
“ ‘Any employee shall be deemed totally disabled if sickness or disease continoúsly prevent the employee from performing any and every duty pertaining to his or her occupation.’
“By ‘total disability’ (if any) that prevented plaintiff, Mrs. H. S. Allen, from performing any and every kind of duty pertaining to her occupation, as above used, is meant such disability as would prevent the said Mrs. H. S. Allen, from performing substantially, or to some material extent, any and every part of the business pertaining to her occupation, or such disability as that ordinary care in the preservation of her life and health would require that she desist from the transaction thereof.
“(c) ‘Permanent total disability’ means and is defined as follows:
“ 'If such total disability (if any) as mentioned in Subsection (b) immediately preceding, began before plaintiff, Mrs. H. S. Allen, was sixty years of age and thereafter presumably during her life, will prevent her from pursuing any occupation or employment for wage or profit, then she shall be deemed permanently and totally disabled.’
“You are instructed that by the phrase ‘permanent total disability’ (if any) that prevented her, the said Mrs. H. S. Allen (if it did prevent her) from pursuing any occupation for wage or profit, as used in this connection, is meant such disability as presumably during the life of the said Mrs. H. S. Allen would prevent her from pursuing and performing substantially, or to some material extent, any and every part of the business pertaining to any occupation for wage or profit, or such disability as that ordinary care, in the preservation of her life and health, would require that she desist from pursuing any occupation whatever for wage or profit.”
We overrule appellant’s exceptions that the court’s definition constituted “a -general charge contrary to the special issue law of the State of Texas,” and that it was on the weight of the evidence in that it instructed the jury: “As drafted said definition constitutes an instruction upon the facts of the case as to what facts should show total and permanent disability and is in effect an instruction to the jury as to how to answer subsequent issues in the Court’s charge using said term.” Nor was the definition subject to the exception that it advised the jury that, if it “should find certain facts to exist,” the facts so found would “amount to total and permanent disability.” We also overrule the exception that the definition constituted “a discussion of the case, in effect telling the jury how to answer particular .questions in view of particular findings.” As we construe the language of the charge, it was nothing more than a definition of the legal terms used in the charge, and left the jury free to answer the special issues “yes” or “no” as instructed by the court, without any suggestion or intimation as to the legal effect of its answers.

Appellant also excepted to the definition on the following additional grounds:

(a) “As drafted, said definition confines the jury in its deliberation to the occupation in which such employee was engaged at the time that such disability is claimed to have become operative and thereby places upon the defendant a more onerous burden than is placed by the policy herein sued upon.”
(b) “Said so-called definition as drafted places a greater burden upon the defendant than imposed by the insurance policy herein sued upon in that it restricts the jury in its consideration to any disability which might prohibit the plaintiff from engaging in the identical occupation and employment in which she was engaged at the time her alleged total disability originated.”'
(c) “As drafted said issue casts upon this defendant a more onerous burden than that required by the policy sued upon, to the prejudice of this defendant, and which said objection was duly and timely presented to the Court and by the Court overruled, whereupon Defendant excepted.”

These exceptions are overruled. In the first part of the definition the court used this language: “Any employee shall be deemed totally disabled if sickness or disease continuously prevent the employee from performing any and every duty pertaining to his or her occupation.” By the language, “her occupation”, the court did not limit the issue of “permanent total disability” to the occupation in which ap-pellee was engaged on the date the total disability accrued. Mr. Chief Justice Bond, writing for the Dallas Court of Civil Appeals in Jefferson Standard Life Ins. Co. v. Curfman, 127 S.W.2d 567, 571, gave the following definition of “occupation,” applicable to and controlling the definition of that term as used in the contract of insurance in issue in this case, and as used in the court’s charge: “The word ‘occupation’ [used in the present certificate] as used in an insurance policy * * * means the vocation, profession, trade, or' calling which the assured has been engaged in for hire or profit, and does not preclude him from the performance of acts and duties which are simply incidents connected with the daily life of men in any or all occupations.” (Italics ours.)

In developing ■ the case, the evidence brought to the jury “the vocation, profession, trade or calling” in which appel-lee had engaged before the accrual of her disability, and presented to the jury the issue as to her ability to perform the duties incident to such “occupation, profession, trade or calling.” The evidence on that issue was conflicting; there was evidence supporting appellant’s theory, which was controverted by appellee’s testimony supporting the theory of permanent total disability. Under Judge Bond’s definition, which we accept as sound law, had the jury found that appellee was able to perform “acts and duties” which constituted nothing, more than simple incidents connected with her daily life, such finding would have been merely evidentiary1 and not determinative.

However, any ■ doubt as to the meaning of the language, “Any employee shall be deemed totally disabled if sickness or disease .continuously prevent the employee from performing any and every duty pertaining to his or her occupation,” is removed by the instruction: “You are instructed that by the phrase ‘permanent total disability’ (if any) that prevented her, the said Mrs. H. S. Allen (if it did prevent her) from pursuing any occupation for wage or profit, as used in this connection, is meant such disability as presumably during the life of the said Mrs. H. S. Allen would prevent her from pursuing and performing substantially, or to some material extent, any and every part of the business pertaining to any occupation for wage or profit, or such disability as that ordinary care, in the preservation of her life and health, would ’ require that she desist from, pursuing any occupation .whatever for wage or profit.” This additional language embraced “any occupation for wage or profit” and, since the charge must be construed as a whole, was supplementary to the language of the first paragraph of the definition.

Appellant also briefs the following exception to the court’s definition of “permanent total disability”: “As drafted said definition does not define the total and permanent disability which the policy in the suit indemnifies against and which is comprehended in 'the contract sued upon, but the same is contrary 'to the terms of said policy, to the prejudice of this defendant.” The policy of insurance did not define “permanent total disability.” In our statement above, we give the language of the policy upon which appellee predicates her disability, “that she be unable to engage in any occupation or employment for wage or profit.” As we construe the court’s charge, it was in explanation of the language of-the insurance contract.

Special issues Nos. 3 and 4, given in our statement above, were not subject to the exception that they constituted a general charge and advised the jury the effect of its answers. The evidence most satisfactorily supports the jury's answers to these issues, and appellant has no assignment to the contrary.

It follows that the judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.

On Rehearing.

The policy in issue contains the following stipulation: “If any employee, before attaining the age of sixty years and while insured hereunder, becomes totally disabled and presumably will thereafter during life be unable to engage in any occupation or employment for wage or profit, * * * such employee shall be deemed to be totally and permanently disabled.”

We quote the following paragraph from the charge copied in the original opinion: “If such total disability (if any) as mentioned in Subsection (b) immediately preceding, began before plaintiff, Mrs. H. S. Allen, was sixty years of age and thereafter presumably during her life, will prevent her from pursuing any occupation or employment for wage or profit, then she shall be deemed permanently and totally disabled.”

This charge in substance submitted to the jury the facts which, on the statement qf the policy, constituted total and permanent disability, and instructed the jury that, if such facts were found to exist, appel-lee should be “deemed permanently and totally disabled.” On authority of our opinion Connecticut Gen. Life Ins. Co. v. Warner, Tex.Civ.App., 94 S.W.2d 514, 516, absolutely on all fours with the facts in this case, the charge copied above constituted a . general charge. We quote as follows from the Warner case: “The court, in his charge to the jury, defined ‘total and permanent disability’- as follows: ‘By the term “total and permanent' disability” is meant that if said total disability, if any, began before reaching the age of sixty (60) years and presumably will, during his life prevent employee from pursuing any occupation for wages or profit, he shall be deemed to be totally and permanently disabled within the meaning of the policy in suit.’ * * * * This definition or charge was verbatim the statement in the policy of what facts would, within the meaning of the policy, constitute total and permanent disability. We do not think that said charge was a definition of any legal term in the charge to which it related, but that it was subject to the objection urged by appellant that it was an instruction upon the facts of the case, that is, as to what facts would show total and permanent disability, and that portion of the charge reading, ‘he shall be deemed to be totally and permanently disabled within the meaning of the policy in suit,’ was a general charge as to the law pertaining to that phase of the case relating to the character and extent of disability covered by the policy sued on, and, being so, was clearly in violation of article 2189, supra.”

The motion for rehearing is granted, and the judgment of the' lower court is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: MONTEITH, Chief Justice.

text:
    KRIDER et ux. v. HEMPFTLING et al.
    No. 10933.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 8, 1940.

      John R. Cox and Lewis Fisher, both of Houston, for appellants.
    Miller & Rutta, of Columbus, for appel-lees.
   MONTEITH, Chief Justice.

This is an appeal in an action of trespass to try title brought by appellees, John L. Hempftling and David Gustafson, as plaintiffs, against appellants, G. F. Krider and wife, as defendants, to recover the title to and possession of lots Nos. 3, 4, and S in Block 19 of the platted subdivision of the P. K. Bartleson Survey in Colorado County, Texas, containing 15 acres of land, and for damages.

Appellees pled a formal suit in trespass to try title. Appellants answered by general demurrer, general denial, and a plea of not guilty. They specially pled the ten years’ statute of limitation, Art. 5510, Revised Civil Statutes. In answer thereto, by supplemental petition, appellees pled that the lots constituting the 15 acres in controversy were surrounded by lands claimed and fenced by them and that said land had never been segregated, or in any manner separated by fences, but was embraced in an enclosure with appellees’ other lands and that no part of said 15 acres had been cultivated or used by appellants for agricultural or manufacturing purposes.

One special issue was submitted to the jury, that of adverse possession under the ten years’ statute of limitation. The jury answered said special issue in favor of ap-pellees. Based on this verdict, the court rendered judgment in favor of appellees for the title to and possession of the land sued for.

The land involved herein consists of three lots of five acres each, located in a tract of 1125.1 acres out of the S.W. Quarter of the P. K. Bartleson survey of a league and labor of land. Appellees relied for recovery on and introduced in evidence, a chain of title from the sovereignty of the soil into themselves. Appellants relied mainly upon their defense of adverse possession of the land in controversy under the ten years’ statute of limitation. They contended that the verdict of the jury was unsupported by the evidence and that the court erred in admitting in evidence certain instruments relied upon by appellees in their chain of title.

Under their first proposition appellants assign error in the action of the trial .court in admitting in evidence, over their objections, a deed from W. H. Getzendaner et al. to J. R. Westmoreland conveying said tract of 1,125.1 acres, of which the land in ■controversy is a part, and a deed from Westmoreland conveying said land to ■George D. Wallace, for the alleged reason that the description of the land conveyed hy said deeds does not cover the land involved in this suit.

The description of said 1,125.1 acres of land in each of said deeds calls to begin at a point in the S.E. line of the Bartleson survey, in the center of the Eagle Lake and Frelsburg public road, and to run thence S. 48½ W. 2,682 varas along the S.E. line of said Bartleson survey to a post in the N.E. side of the Eagle Lake and Ramsey public road and 22 varas N. 48½ E. of the N. boundary line of the Southern Pacific railroad; thence S. 41¾ W- along the N.E. side of said public road 2,362 varas to a stake; thence N. 48½ E. 2,690 varas to a point in the center of the Eagle Lake and Frelsburg public road; thence S. 41½ E. along the center of said public road to the beginning, containing 1,125.1 acres of prairie land.

It will be noted that the deeds in question •each convey and describe said land by both field notes and artificial objects. The particular call upon which appellants’ objections are based is: “Thence S. 41¾ degrees W. along the N.E. side of said public road .2362 varas to a stake.” This call for course “S. 41 ¾ W.” is in conflict with remainder of the call, “along the N.E. side of said ■public road”, for the reason that if the call for course is followed and the call for said ■public road is ignored, the description does not include any portion of the land in controversy or in fact land in the Bartleson survey. On the other hand, the testimony in the record shows that said road at this point runs north 41¾ degrees west and that if the call for.course in said second call be reversed to read “N. 41¾ degrees W.” 2,-.362 varas from the post on the N.E. side of the Eagle Lake and Ramsey public road, referred to in the first call of said field notes, .along the N.E. side of said public road, said field notes will close, all lines called for will reach the corners called for therein and ■will terminate at the beginning point, and said 1,125.1 acres of land will be perfectly ■ described in each of said deeds.

The question to be determined, therefore, is whether said two deeds contain a sufficient description to enable the land intend•ed to be conveyed thereby to be identified with sufficient certainty to be considered in appellees’ chain of title.

The rule is well settled in this state that, in locating land lines, in case of conflicting calls, the order of dignity and control is: (1) Calls for natural objects; (2)calls- for artificial objects; and (3) calls for course and distance, and that calls for course and distance must, in case of conflict, yield to calls .for natural objects and artificial objects. Krider v. Wintermann, Tex.Civ.App., 108 S.W.2d 452; Stafford v. King, 30 Tex. 257, 94 Am.Dec. 304; Thatcher v. Matthews, 101 Tex. 122, 105 S. W. 317; Temple Lumber Co. v. Felts et al., Tex.Civ.App., 260 S.W. 228.

Further, it is held that a deed will not be declared void for uncertainty of description if it is possible by any rules of construction to ascertain from the description, aided by extrinsic evidence, what property it is intended to convey. Rhoden et al. v. Bergman et al., Tex.Civ.App., 75 S.W.2d 993; 8 R.C.L. page 1074.

In 14 Texas Jurisprudence, p. 987, it is said: "The description in a deed or contract, while it need not in itself fully and definitely identify the property conveyed, must contain certain sufficient particulars to afford or point out the means whereby identification may be completed by parol evidence.”

In 14 Texas Jurisprudence, page 989, it is said: “The rule generally for determining the sufficiency of description contained in a deed is that if there is enough to enable a party familiar with the locality to identify the premises intended to be conveyed, to the exclusion of others, it will be sufficient. It is enough that the description points out and indicates the premises so that by applying it to the land it can be found and identified.”

It was the manifest purpose of the parties to each of said instruments to convey land out of the Bartleson survey. There is no conflict in said field notes in so far as calls for distances are concerned and the record shows that if the call for course in said second call is changed so as to conform with calls for the artificial objects and distances called for, the descriptions in said deeds can be made to perfectly describe and identify the l,125il acres of land in question. It follows that the descriptions in said deeds, with the aid of extrinsic evidence, are sufficient to identify upon the ground and convey to the grantees named therein said 1,125.1 acres of land, and thus carry out the purpose and intent of the makers of said instruments, and that the trial court committed no error in permitting said deeds to be considered in appellees’ chain of title.

Appellants assign error in the action of the trial court in permitting appellees to show that other suits were filed against them involving the title to other land in the 1,125.1 acre tract above referred to.

We have carefully considered the evidence pointed out in appellants’ brief under this proposition, but have failed to find any reference to other suits filed against them. There are references in' appellants’ testimony to the claim by them to other land in said survey, however, the record shows that this testimony was first offered by appellants themselves and brought out more fully by appellees on cross-examination.

It is the settled rule in this state that a party, on appeal, may not complain of the admission • of incompetent or improper evidence where he himself has offered or bought out the same evidence or evidence of similar character. 3 Tex.Jur. page 1032.

Further it is held that where one party introduces evidence in regard to an irrelevant matter the other party may not only inquire of the witnesses concerning it but he is entitled to introduce evidence otherwise inadmissible in rebuttal thereof. 17 Tex.Jur. page 370.

Appellants contend that the trial court committed reversible error in permitting the introduction of the will of Matilda N. Giles, relied upon by appellees as- a link in their chain of title, for the alleged reason that Thomas D. Giles acquired only a life interest in the certificate under which the Bartleson survey was located under said will.

Said certificate was transferred by a regular chain of title to Mrs. Matilda N. Jacobs, who was shown to have been subsequently married to Thomas D. Giles. By her will she bequeathed said certificate to her said husband by devising to him all of her personal property, Said will provided that, in the event Thomas D. Giles should die soon and without being married again, the property given him should go to the Natches Female Orphan Asylum. Said will was probated in October, 1868, in Adams County, Mississippi, and a copy with the probate thereof was recorded in Colorado County, Texas, on March 16, 1899.

The record does not show that said certificate was ever sold, or that any other person either claimed it or the land on which it was located. The patent to said land was issued to Peter K. Bartleson, his heirs or assigns, on February 27, 1874. On August 1, 1874, Thomas D. Giles conveyed the lower one-half of the P. K. Bartleson survey to C. R. Johns & Co. Said deed recited that said Giles had become possessed of and was the owner of all personal property of Matilda N. Giles, including the land certificate under which the land involved in this suit was located.

The language of the will in which testatrix devised to Thomas D. Giles all of her personal property does not bear out appellants’ contention. While the devise is subject to the contingency that if he died soon and without being remarried again said personal property would go to an asylum, the record is devoid of any evidence showing that • Thomas D. Giles did die soon thereafter, but that, on the contrary, he executed a conveyance to a part of said land six years later.

There is a further provision in said will which directs that all property be left together and managed by the executors until the legacies therein provided for had been paid. While this is a direction that none of said property could be sold until said legacies were paid, it will be presumed from the subsequent sale of said property by him, that the executors under said will had discharged their duty and kept said property together until all of said legacies had been paid, and that Thomas D. Giles did not have said land located under said certificate and sell the lower half thereof until all the debts and legacies of the estate had been paid.

Further, .after the lapse of more than'70 years since the probate of said will it will be presumed that said legacies were paid, in the absence of evidence in the record to the contrary. - In any event, they are by now barred and not enforceable.

By their sixth proposition appellants assign error in the action of the court in overruling their motion to strike the deposition of David Gustafson, for the reason that said deposition was not kept in the files of the case in the district clerk’s office.

The above deposition was returned and filed by the district clerk of Colorado County on September 9, 1934. Nine terms of court elapsed before the trial of the case in February, 1939. On February 13, 1939, an unverified motion to quash said deposition was filed by appellants’ counsel. There is nothing in the record to show that said motion was ever presented or that the court ruled thereon. When said deposition was offered in evidence in the trial of the case, counsel for appellants objected thereto, “for the reason the deposition was not in the clerk’s office as required by Art. 3763 of the Revised Statutes of this state.” The record does not show that said deposition was not among the papers of the cause or that counsel for appellants was prevented from reading it. The above assignment is overruled.

Under their seventh proposition appellants assign error in the action of the trial court in not granting appellants a new trial or entering judgment in their favor upon the grounds of newly discovered facts in connection with the probate of the will of Matilda N. Giles.

This action was filed by appellees on August 24, 1933. Trial was had on February 13, 1939. The documentary evidence, including the certified copy of the will of Matilda N. Giles, constituting the chain of title relied upon by appellees, was filed in this suit August 28, 1934, nearly five years before the trial. Neither appellants’ original or amended motion for a new trial is verified, nor is there any showing in the record that any evidence was offered by appellants in support of said motion. There is no showing that knowledge of the existence of the claimed new evidence was acquired after the trial, or that their failure to produce it was not due to any want of diligence on appellants’ part, or that such evidence was not discovered and obtained in time to be used when the case was tried, or that the claimed new evidence 'was material.

It is the settled rule in' this state that the applicant for a new trial,- on the ground, of newly discovered evidence, must show that knowledge. of the existence of' the new evidence was acquired subsequent to the former trial and that it was not due to want of diligence that such, evidence was not discovered and obtained in time to be used when the case was tried; that the new evidence is material and not merely cumulative, and that if admitted it would probably change the result .upon another trial. 31 Tex.Jur., page 90, section 81.

It must further be shown that diligence was exercised to procure the testimony for use at the former trial, and the burden is upon the movant to show that he exercised the required diligence. 31 Tex.Jur., pages 95-97, section 84.

Further,* a motion for new trial on grounds of newly discovered evidence must *be verified. Wichita Home Ins. Co. v. Montgomery, Tex.Civ.App., 4 S.W.2d 1041; Ruhrup v. Southwest Cigar Co., Tex. Civ.App., 293 S.W. 284; Haskins v. Henderson, Tex.Civ.App., 2 S.W.2d 864.

Under the above facts, the jury having found on evidence deemed to be sufficient that appellants had not had adverse possession of the land in controversy, cultivating, using and enjoying the same for a period of ten years prior to the filing of this suit, and appellants having failed to show any error in the record which requires a reversal of the judgment, the judgment of the trial ■ court will be in • all things affirmed.


author: DUNKLIN, Chief Justice.

text:
    RIPS et al. v. UNGERMAN et al.
    No. 14066.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 12, 1940.
    Rehearing Denied Feb. 23, 1940.

      Terrell, Davis, Hall & Clemens, Theo F. Weiss, and Leroy Jeffers, all of San- Antonio, and John Atchison, of Gainesville, for appellants.
    Wm. Madden Hill, of Dallas, and Cecil Murphy, of Gainesville, for appellees.
   DUNKLIN, Chief Justice.

On June 3rd, 1939, this suit was instituted in the District Court of Cooke County, by William Ungerman, Louis G. Galamba and Rachael Ungerman, wife of William. Ungerman, against Sam Rips and wife, Celia Rips, A. S. Rips and wife, Isabelle Rips, Ed Rips, Will Rips, and Theo F. Weiss, in which it was alleged that plaintiffs, William Ungerman and Louis G. Ga-lamba, and the defendants, Sam Rips and A. S. Rips, were co-partners and joint adventurers in the development and operation of a certain oil and gas mining lease, covering 40 acres of land, located in Cooke County, Texas. Further, that in the course of operation of the lease, the partnership firm became indebted to various creditors, during the year 1938, in the sum of $7,000, and for which the defendants, Sam Rips and A. S. Rips, as members of the partnership, were liable. With further allegations, in substance, as follows: notwithstanding their partnership liability for the indebtedness above noted, defendants, Sam and A. S. Rips, executed to their respective wives a purported conveyance, of date September 9th, 1938, of their one-half interest in the 40-acre lease above mentioned, without any valuable consideration paid therefor; thereafter, on the 16th of February, 1939, Sam and A. S. Rips, joined by their respective wives, executed to the defendant, Theo F. Weiss, trustee, a purported deed of trust, covering said 40-acre lease, purporting to secure the payment of a promissory note of the grantors, in the sum of $11,000, payable to the defendants, Ed Rips and Will Rips, which said deed of trust and promissory note were executed for the purpose of defrauding the creditors of said partnership and also their personal creditors. Ed Rips and Will Rips are threatening to foreclose the purported mortgage lien on the lease. If the said purported lien be valid (which plaintiffs deny), at all events it is inferior and subject to the rights of the plaintiffs, as members of the co-partnership firm, and as to the creditors of said partnership.

The conveyances so made by A. S. and Sam Rips to their respective wives operated in law to dissolve the co-partnership relation theretofore existing between them and plaintiffs. Immediately upon the ascertainment by plaintiffs of notice of such purported conveyances, plaintiffs demanded an accounting of the partnership affairs, to the end that the creditors of the partnership firm might be protected against the conveyances so made by Sam and A. S. Rips to their respective wives; which demand was refused by the defendants.

Following those allegations, plaintiffs sought a decree of court dissolving the partnership and for the appointment of a receiver to take control of, handle, manage and operate the partnership property, including the oil and gas mineral lease on the 40 acres, and oil and gas drilling equipment.

There were further allegations that any foreclosure sale of the one-half interest which Sam and A. S. Rips conveyed to their wives would tend to defeat the rights of the partnership creditors. It was further alleged that the property and assets of the partnership are not capable of partition and division in kind, and that a receiver should be appointed to sell the same, for the purpose of a final settlement and division between all the parties concerned.

The petition was duly verified by the plaintiffs, and on the same day the judge of the district court of Cooke County, upon an ex parte hearing, in the absence of any notice to the defendants, appointed J. D. Howeth, of Cooke County, receiver, with authority to take over all the assets of said partnership, as prayed for in the petition, with full authority to carry on and conduct the business of the partnership, receive rents, oil runs, collect compound funds, compromise demands and bring suits, and generally to manage the property and hold the proceeds arising from such operation, subject to the orders of this court. June 3rd, 1939, was the date of the appointment of the receiver.

The bond, in the sum of $5,000, required of the receiver, was duly executed, and the receiver so appointed qualified and took possession of the assets, in accordance with the order of his appointment.

On the 17th of June, 1939, the defendants, Ed Rips, Will Rips, Sam Rips and Theo F. Weiss, filed their pleas of privilege, denying their residence in Cooke County, where the suit was instituted, and claiming their residence in Bexar County, all in statutory form.

Subject to those pleas, on June 19th, 1939, all of the defendants filed pleas in abatement, based on allegations that before the commencement of this suit, there was on file and pending in the district court for the 45th Judicial District in and for Bexar County, in Cause No. B-94168, a suit involving the same cause of action, between the same parties, involving the same subject matters, and seeking the same relief,-as that involved in this suit, more particularly hereinafter shown.

On July 19th, 1939, subject to the foregoing pleas of privilege and abatement, all the defendants in the suit, except Weiss, the trustee, named in the deed of trust, filed their motion to vacate and set aside the order appointing the receiver, and dissolve the receivership proceeding. The grounds for that relief were, in substance, as follows: first, the appointment of the receiver was an ex parte proceeding, without notice or knowledge of the defendants; and that, too, in the absence of any emergency shown to exist, requiring such summary action; with further allegations that at the time the receiver was appointed, defendants were in exclusive possession, management and control of the property, and had been such for more than a year; and no foreclosure of any lien against any part of the property was then imminent. Second, because of the pendency of the suit in the district court of Bexar County, as alleged in the pleas of abatement, above noted.

On the hearing of that motion, plaintiffs introduced no evidence, but defendants introduced in evidence a certified transcript of the following pleadings and proceedings in the district court of Bexar County, to show lack of jurisdiction in the district court of Cooke County to determine the merits of this suit and to place the property in controversy in the hands of a receiver:

1. Original petition of Ed Rips and Will Rips, residents of Bexar County, filed in the district court of Bexar County, March 21st, 1939, against William Ungerman, Rachael Ungerman, A. S. Rips and Isabelle Rips, residents of Tulsa,‘Oklahoma, Louis G. Galamba, resident of Kansas City, Missouri, Sam Rips and Celia Rips, residents of Dallas County, Texas, and against the partnership firm of Ungerman and Galam-ba, to recover amounts due on a $11,000 note, of date February 16th, 1939, executed by Sam Rips, Will Rips and their wives, Isabelle and Celia Rips, payable in San Antonio, Bexar County, Texas, and for foreclosure of the deed of trust lien, of even date, executed by those defendants, on an undivided half partnership interest in the 40-acre tract of land in controversy, which were the same instruments alleged by plaintiffs in their suit in Cooke County. William and Rachael Ungérman, Louis G. Ga-lamba, and the partnership firm of Rips, Ungerman and Galamba, were made defendants because of their assertion of some character of interest in the lease, but which was inferior and subordinate to plaintiffs’ lien, with prayer for judgment so decreeing.

2. Issuance of out of state notice, with copy of petition attached, to the defendants, Rachael Ungerman, Isabelle Rips and A. S. Rips, individually and as a member of the joint venture of Rips, Ungerman and Ga-lamba, and William Ungerman, individually and as a member of the same firm, requiring them to appear before the district court of Bexar County on the 1st day of May, 1939, then and there to answer the plaintiffs’ petition filed in said suit on the 21st day of March, 1939, and due service thereof on April 1st, 1939, by the sheriff of Tulsa County; Oklahoma; also a like notice to defendant, Louis G. Galamba, individually and as a member of the joint venture of Rips, Ungerman and Galamba, which was duly served upon him by a deputy sheriff of Jackson County, Missouri, on April 13th, 1939.

3. Citations to the defendants, Celia Rips, Sam Rips, individually and as a member of Rips, Ungerman and Galamba, directed to the sheriff or any constable of Dallas County, commanding them to appear and answer the suit in the district court of Bexar County, on May 1st, 1939, was duly served on those parties by the sheriff of Dallas County, on March 24th, 1939.

4. Verified pleas of privilege and as to venue, filed April 29th, 1939, by Rachael Ungerman, William Ungerman and Louis-G. Galamba, in said suit, alleging that they were not at the time of the institution of the suit, nor at the time of service of process, nor at the time of filing the plea, residents of Bexar County, where the suit was filed, but during those times they were residents of Jackson County, Missouri, and that no exception to exclusive venue in the county of one’s residence provided by law existed. With the further allegation of a fraudulent misjoinder of the defendants, for the purpose of attempting to confer venue as to them; and that as to those defendants, the cause of action asserted was to remove the incumbrances upon the property described in plaintiffs’ petition, or acquire title thereto, venue of which lies exclusively in the county of Cooke, where the land was located; followed by a prayer for a transfer of the case to Cooke County.

5. Verified plea in abatement, filed by William Ungerman and Louis G. Galamba, filed April 29th, 1939, subject to the foregoing pleas of privilege, in which it was alleged that there has existed a mining partnership between these parties and Sam and A. S. Rips, 'as alleged in plaintiffs’ petition, in pursuance of which wells have been drilled and equipped by said defendants, and as the result of such operations, sundry items of indebtedness have accrued to numerous creditors, whose claims and obligations constitute a charge against the leasehold estate and against the assets of the co-partnership firm; that the purported conveyances and the deed of trust, executed to secure the promissory note sued on, by the defendants, Sam and A. S. Rips, to their respective wives, were ineffective against the creditors of the partnership firm of Rips, Ungerman and Galamba, because the same was fraudulent and without consideration. Further, that no accounting or settlement has been had of the partnership affairs, or can be had until the partnership affairs have been adjusted, by reason of which the action to foreclose against the interest formerly owned by Sam and A. S. Rips cannot be maintained.

6. Original answers to plaintiffs’ suit by William and Rachael Ungerman and Louis G. Galamba, without waiver of their pleas of privilege and venue, and pleas in abatement, consisting of a general demurrer and special exceptions to certain portions of the petition; and a general denial; all filed April 29th, 1939.

7. Plaintiffs’ verified plea, controverting defendants’ plea of privilege and 'venue, filed May 3rd, 1939, repeating allegations in their original petition: possession of assets of the partnership by defendants, clouding of title thereto by placing of record false claims of liens thereon; that the note sued on herein is made payable in San Antonio, which fixes venue in Bexar County, under Sub. 5, Art. 1995, Vernon’s Ann.Civ.St., as against the makers, and Sub. 29a, Art. 1995, as fixing venue as against Mrs. Rachael Ungerman.

8. Defendants’ motion to strike plaintiffs’ controverting plea, filed June 26th, 1939.

9. Order of court overruling pleas of privilege, dated June 26th, 1939.

10. Original answer of defendants, Sam Rips and wife, Celia, and A. S. Rips and wife, Isabelle, to plaintiffs’ suit,’ filed May 25th, 1939, in which they admitted the truth of allegations in plaintiffs’ petition; followed by their cross actip nagainst William and Rachael Ungerman and Louis G. Ga-lamba, seeking an accounting and settlement of the partnership between plaintiffs, Sam and A. S. Rips and William Ungerman. and Louis G. Galamba, formed for exploring and developing the 40 acres for oil and gas under the lease in controversy, alleging possession of all partnership assets by Un-german and Galamba, their mismanagement thereof, resulting in loss and damage, and praying for judgment for such damages, •and for appointment of a receiver to take over possession and operation under order of the court; out of state service on that cross action.

The findings and conclusions filed by the trial court, in the instant case instituted in Cooke County, upon a hearing of the motion to vacate the receivership and plea in abatement, show a finding of the institution of the prior suit in the district court of Bexar County, the relief prayed for by plaintiffs therein, the answer and cross action filed therein by A. S. Rips, Sam Rips and their respective wives, Isabelle Rips and Celia Rips, as against William Unger-man, Rachael Ungerman and L, G. Galam--ba, for damages for their fraud and mismanagement of the partnership property, with a further finding that the cross action praying for appointment of a receiver was never called to the attention of the district court in that case, who never took appointment of a receiver under advisement, and no notice was issued thereon until June 30th, 1939, which was some 27 days after this suit had been filed in the district court of Cooke County, and 16 days after the filing of the plea in abatement and motion to vacate the receivership in controversy here.

Following are the trial judge’s conclusions of law, by reason of which the defendants’ plea in abatement and motion to vacate the receivership were'overruled; and from which action defendants have appealed:

“1. That the District Court of the 45th Judicial District of Bexar County, Texas, had no jurisdiction over the defendants, L. G. Galamba, William .Ungerman .and Rachael Ungerman in the original suit filed in said court by Ed Rips and Will Rips to foreclose said deed of trust lien, and that there was a misjoinder of parties to said suit.
“2. That the. District Court of the 45th Judicial District of Bexar County, Texas, had no jurisdiction over the cross-defendants, William Ungerman, Rachael Unger-, man and L. G. Galamba, on account of said cross action because same was not in reference to plaintiffs’ cause of action but was based upon an unrelated and independent claim in no way connected with that of plaintiffs’ and that said cross action was brought without authority in law.,.
“3. That no jurisdiction attached to the District Court of the 45th Judicial District of Texas for the appointment of a- receiver on account of said cross action, and that this court had jurisdiction to appoint such receiver.
“4. That said William Ungerman, Rachael Ungerman and L. G. Galamba did not submit themselves to the jurisdiction of the District Court of the 45th Judicial District of Texas.
“5. That the introduction of certified copies of the pleadings in the District Court of the 45th Judicial District of Bex-ar County, Texas, was insufficient to show the pendency of the suit at the time of the trial in this court.
. “6. That the petition filed herein alleges sufficient grounds for the appointment of a receiver.
“7.. That defendants herein having filed a motion to vacate said receivership error, if error there was, in the appointment of said receiver without notice, was thereby waived.
“8. That said leasehold interest being an interest in land, this court has exclusive jurisdiction for the partition of same.”

The two suits, the first in the district court of Bexar County, and the later suit in Cooke County, were between the same parties in interest; Theo F. Weiss, named as trustee in the deed of trust, being a nominal party only. In both suits, a settlement of the partnership accounts and division of the assets of the partnership formed for exploring and developing the 40 acres for oil under the lease in controversy was involved, and without which the relief sought in each suit could not be awarded. Such settlement of partnership business was also a necessary prerequisite to granting the relief sought in the cross action filed by defendants, Sam Rips, Celia Rips, A. S. Rips and Isabelle Rips.

We believe it clear that the district court of Bexar County acquired original exclusive jurisdiction to decree a foreclosure of plaintiffs’ mortgage lien on the property in controversy, and to require a settlement of the partnership accounts, and as an incident thereto, to determine the interests of all the partners, and plaintiffs’ claim of mismanagement of the partnership property by defendants, and damages arising therefrom, and all other issues tendered by plaintiffs in the second suit.

Therefore, the district court of Cooke County was without jurisdiction of the suit instituted therein, in the absence of which the order appointing the receiver was reversible error.

We believe that conclusion is definitely and conclusively supported by the decisions of our Supreme Court in Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063; Conn v. Campbell, 119 Tex. 82, 24 S.W.2d 813; Way & Way v. Coca Cola Bottling Co., 119 Tex. 419, 29 S.W.2d 1067; Benson v. Fulmore, Tex.Com.App., 269 S.W. 71; Cavers v. Sioux Oil & Refining Co., Tex. Com.App., 39 S.W.2d 862, and others which might be cited. All the defendants were proper and necessary parties to plaintiffs’ suit in Bexar County, and were properly joined. Barton v. Farmers’ State Bank, Tex.Com.App., 276 S.W. 177; National Surety Co. v. Atascosa Ice, Water & Light Co., Tex.Com.App., 273 S.W. 821; Skipwith v. Hurt, 94 Tex. 322, 60 S.W. 423; Brooks Supply Co. v. Gallinger, Tex.Civ. App., 279 S.W. 524, and cases cited. Nor did the alleged misjoinder of parties, if any, in the first suit, operate to defeat jurisdiction of the district court of Bexar County to grant the relief prayed for by plaintiffs in the first suit, which is a point stressed by appellees. 1 Tex.Jur., sect. 49, p. 664; Tide Water Oil Co. v. Bean, Tex.Civ.App., 118 S.W.2d 358; Snider v. Methvin, 60 Tex. 487; Lewis v. Pitts, Tex.Civ.App., 275 S.W. 473, writ of error refused.

Appellees argue that plaintiffs had no statutory right of appeal from the interlocutory order overruling their plea in abatement; and that since the appeal from the order refusing to vacate the receivership necessarily depended upon the right to abate, no appeal would lie therefrom.

Plaintiffs’ right of appeal from the order of the district court of Cooke County, overruling their motion to vacate the receivership, was expressly given by Art. 2250, Rev.Civ.St. As said by the Supreme Court, in Lauraine v. Ashe, 109 Tex. 69, 191 S.W. 563, 565, 196 S.W. 501: “The power’ of the court to appoint the receiver proceeds from its jurisdiction of the cause and is an element of it.”

If, as held by us, the district court of Cooke County acquired no jurisdiction of the suit filed in that case because of the pendency of the prior suit in the district court of Bexar County, then all orders theretofore made or that could be made thereafter, in the Cooke County case, were and would be void, for lack of jurisdiction of the main case.

Since the motion to vacate the receivership for lack of such jurisdiction was meritorious, it was the duty of the trial judge to grant it and then dismiss the suit on his own motion, even in the absence of a plea in abatement or a plea in bar. 15 C. J. page 852, par. 171, and decisions cited.

For the reasons noted, the order of the district court of Cooke County, refusing appellants’ motion to vacate the receivership, is set aside, and the case will be remanded, with instruction to that court to enter that order and to dismiss the suit in its entirety, and tax all costs incurred therein against the plaintiffs in that suit.

Reversed and rendered.


author: MURRAY, Justice.

text:
    HICKS et al. v. WALLIS LUMBER CO.
    No. 10667.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 17, 1940.
    Rehearing Denied Eeb. 28, 1940.
    John T. Spann, of Crystal City, for plaintiffs in error.
    Geo. C. Herman and Jackson & Crawford, all of Crystal City, for defendant in error.
   MURRAY, Justice.

This su>t is in the nature of a bill of review to set aside a judgment in cause No, 2233, in the District Court of Zavala County, styled Wallis Lumber Company v. B. Hicks et al., for the sum of $3,506.50, and foreclosing a mechanic’s and material-man’s lien for the sum of $458.57 of that amount. The judgment was entered November 20, 1934, and this suit was filed after the expiration of the term at which the judgment was entered.

Appellees submit a counter proposition calling the attention of this court to the fact that plaintiffs in error B. Hicks and Laura Hicks did not offer any evidence below tending to establish the fact that they were prevented from presenting any meritorious defenses which they may have had to the original suit by any fraud, accident or acts of the defendant in error, Wallis Lumber Company.

Before a party is entitled to have a judgment set aside by a procedure in the nature of a bill of review he must first show by competent evidence that he had a meritorious defense to the cause of action, and that he was prevented from presenting such meritorious defense by some fraud, accident or the wrongful .acts of the opposing party, unmixed with any fault or negligence of his own. Smith v. Ferrell, Tex.Com.App., 44 S.W.2d 962; Gehret v. Hetkes, Tex.Com.App., 36 S.W. 2d 700.

Plaintiffs in error having failed to make such proof the trial court properly rendered judgment that they take nothing by reason of their suit.

The above holding renders it unnecessary to pass upon the propositions presented in plaintiffs in error’s brief.

The judgment of the trial court is affirmed.


author: MONTEITPI, Chief Justice.

text:
    SACKENREUTHER v. WINSTON et al.
    No. 10903.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 11, 1940.
    Rehearing Denied Eeb. 29, 1940.

      Fulbright, Crooker & Freeman, of Houston (C. A. Leddy and Nowlin Randolph, both of Houston, of counsel), for appellant.
    Lewis W. Cutrcr, of Houston, for ap-pellees Bert Winston and Carroll Sterling Winston.
   MONTEITPI, Chief Justice.

This is an appeal in an action brought by appellant, P. G. Sackenreuther, against appellees, Bert Winston and wife, Carroll Sterling Winston, and Reed Roller Bit Company, to recover the title to and possession of 200 shares of stock of the Reed Roller Bit Company.

Appellant alleged that he had placed an order for the purchase on margin of stock in various companies with the brokerage firm of Sterling & Baker, and that he had deposited with them sums of money and other certificates of stock as collateral in connection with such purchases, but that Sterling & Baker did not buy for him the stock ordered through them; that on the request of Sterling & Baker for additional margin he had placed with said firm two certificates of stock, each evidencing his ownership of 100 shares of the capital stock of the Reed Roller Bit Company, and had instructed them to sell 100 shares 'of said stock on October 27, 1937, and the other 100 shares of said stock on October 29, 1937. Appellant alleged that appellee, Mrs. Carroll Sterling Winston, acting through her father, F. P. Sterling, had instructed Sterling & Baker to purchase for her 200 shares of Reed Roller Bit Company stock, and that said stock was purchased for her on October 6, 1937, for the sum of $6,230, but that on or about October 28, 1937, Sterling & Baker had taken and appropriated the two certificates of the Roller Bit Company stock belonging to appellant and caused same to be transferred on the books of appellee Reed Roller Bit Company into the name of Mrs. Carroll Sterling Winston. Appellant sought judgment directing appellee, Reed Roller Bit Company, to cancel the certificates of stock issued to appellee, Mrs. Carroll Sterling Winston, and to issue a certificate evidencing the ownership of said stock in appellant, for title and possession of said stock, and for all divi-. dends declared thereon since October 28, 1937.

Appellees, Bert Winston and Carroll Sterling Winston, answered by special exceptions, a general demurrer, and a general denial. By special answer they alleged that on or about October 5, 1937, they had placed an order with Sterling & Baker to purchase 200 shares of the common stock of Reed Roller Bit Company for Mrs. Winston; that on October 6, 1937, she paid Sterling & Baker the sum of $6,230 for said stock, and that 200 shares of said stock was issued in the name of Mrs. Carroll Sterling Winston and delivered to her on October 29, 1937.

Appellee Reed Roller Bit Company answered by general demurrer and general denial and by special plea alleged that it had acted, in the transfer of said certificates of stock, in the regular course and conduct of its business without notice or knowledge of any irregularities or conflicting interests in the ownership or transfer of said stock.

No fraud or conspiracy on the part of the appellees in the purchase or transfer of said stock is alleged by appellant, and there is no pleading or evidence’ that ap-pellees, Winston, had any knowledge that the stock delivered to them had formerly belonged to appellant, or that it had been deposited by him as collateral.

The jury, in answer to special issues submitted, found: That appellant unconditionally assigned and delivered to Sterling & Baker two certificates of Reed Roller Bit Company stock; that neither such act of appellant nor his failure to have the assignment and endorsement of his stock certificate contain the reservations, exceptions, and limitations under which said stock was signed and delivered to Sterling & Baker was negligence; that appellee, Mrs. Winston, at the time the stock was delivered to her had no knowledge of any infirmity in the title thereto, and that she was a bona fide purchaser of said stock.

Based on these findings of the jury, judgment was rendered in favor of ap-pellees and that appellant take nothing by his suit.

It was stipulated by the parties that on October 29, 1937, there was outstanding on the books of the Reed Roller Bit Company in the name of appellant stock certificates Nos. CA-1433 and CA-1434, each representing 100 shares of common stock of said company; that on said date, in the regular course of business, the Reed Roller Bit Company received said two certificates by registered mail from Sterling & Baker, with written instructions to transfer them from the name of appellant to the name of Mrs. Carroll Sterling Winston; that attached to each of said certificates was affixed the following writing signéd by appellant:

That in accordance with said instructions Reed Roller Bit Company, on October 29, 1937, cancelled and annulled said two certificates and in lieu thereof issued certificates Nos. CA-4101 and CA-41Ó2, each representing 100 shares of the common stock of such corporation, in the name of Mrs. Carroll Sterling Winston, and forwarded said new certificates of stock to Sterling & Baker and that they were received by Sterling & Baker, on or about October 29, 1937.

The record shows that the firm of Sterling & Baker was engaged in the brokerage business in Houston and the surrounding territory. The firm was adjudged bankrupt on November 2, 1939.

On October 5, 1937, appellee Mrs. Carroll Sterling Winston, through her father, F. P. Sterling, instructed Sterling & Baker to purchase for her 200 shares of Reed Roller Bit Company stock, and an order was placed by them with the firm of Post & Flagg for the purchase of said stock at $31 per share; she was notified that said stock had been purchased for her, and on October- 7, 1937, a check for $6,-230 was delivered to Sterling & Baker covering said purchase. On October 29, 1937, said stock was delivered to her by Sterling & Baker.

The records of Sterling & Baker show that the first 100 shares of Reed Roller Bit Company stock was deposited with them by appellant as collateral on October 10, 1937; that at that time appellant was indebted to them in the sum of $1,-964.13; that on October 20, 1937, the second certificate of stock was deposited by appellant with them as collateral and that at that time appellant was indebted to them in the sum of $4,866.76; that on October 28, 1937, 100 shares of Reed Roller Bit Stock in the name of appellant were sold at $27 per share, amounting to the sum of $2,675.94, and that appellant was given credit for that amount, making a' balance debt of .$2,201,08:

On October 27, 1937, appellant instructed Sterling & Baker to ■ sell' 100 shares of said stock and on October 29, 1937, he instructed them to sell the other 100 shares of said stock held by them. On October 28, 1937, both of said certificates of stock were sent to Reed Roller Bit Company by Sterling & Baker with instructions that they be transferred to appellee, Mrs. Winston.

Mrs. Curtis Green, a former employee of Sterling & Baker, testified that none of the stock ordered by appellant to be purchased by Sterling & Baker on margin was purchased in appellant’s name, but that with the exception of 50 shares of Navarro Oil Company stock, the stock ordered by appellant was on hand at the date Sterling & Baker was declared bankrupt. The witness testified that it was customary with said firm that when a customer placed an order for stock to be bought “on margin” that said stock was not put in the customer’s name, but was bought for the account of Sterling & Baker, or the Sterling & Baker Securities Corporation, and that said stock remained in the name of said company until it was paid for by the customer and ordered out in his name.

It was proven that in the handling of stock transactions “on margin” the regulations required that the customer deposit 40% of the cost of said stock, and that the remainder was financed in New York for his account for which an interest charge was made each month, and that he was required to maintain a balance of 40% at all times; that when a customer purchased stock “on margin” said stock was not transferred to the name of the individual customer until it was paid for in full, but was taken in the name of the broker, otherwise the broker could not use the stock as collateral in the money market of New York; that if the price of stock went below the amount required, the broker was governed under SEC rules and the New York stock exchange and was required to keep accounts margined to a certain point, and in the event the given stock sold below that point it was customary for the broker to call upon the customer to reduce his debt balance by cash deposit or additional collateral; that it is not customary for the broker to have stock transferred to the purchasing customer’s name until he paid for it outright.

Appellant testified that all of the stock ordered by him through Sterling & Baker was bought on margin: that he had never made demand for any of said stock, except 50 shares of Navarro Oil Company stock, and that this was the only stock that he had received from them.

Appellant contends that, since his two certificates of stock were non-negotiable, the title thereto could have passed into ap-pellee, Mrs. Winston, only by estoppel by reason of his negligence, and that, the jury having found that he was not guilty of negligence in delivering and assigning said stock to Sterling & Baker, the court erred in rendering judgment in favor of appellees.

Appellant bases this contention to a large extent on the cases of Phillips v. Citizens’ Nat’l Bank et al., Tex.Com.App., 15 S.W. 2d 550, and State Trust & Savings Bank v. Mayes, Tex.Civ.App., 67 S.W.2d 419. We think that the facts in the two cases above referred to are clearly distinguishable from those in the instant case.

The case of Phillips v. Citizens’ Nat’l Bank, supra, involved a stock certificate issued in the name of C. W. Wilson and by him pledged to T. C. Phillips to secure a loan. Phillips lost the stock certificate and a stranger found it and returned it to Wilson, who thereafter pledged it to the Citizens’ National Bank to secure another loan. The court held that there was no evidence showing negligence on the part of Phillips, but that it was the result of an accident and that the right of the purchaser of a lost certificate to recover as against the original owner thereof on the ground of negligence is not based on the passing of the legal title to the certificate but on the estoppel of the owner to assert his legal title thereto. In its opinion the court further says [15 S.W.2d 552] : “In view of the fact that certificates of stock, when indorsed in blank, are transferable by mere delivery, they are frequently referred to as quasi negotiable. But in such cases the transfer of the title is really upon the principle of estoppel. 14 C.J. p. 665. Thus where an owner of such certificate trusts it to another for a particular use and that other exceeds his actual authority and transfers the certificate to an innocent purchaser for value, the latter may successfully hold the same as against the real owner through estop-pel.”

In the case of State Trust & Savings Bank v. Mayes, supra, also relied upon by appellants, defendant in error, Mary E. Mayes, pledged four certificates of stock as security for a loan. She executed and delivered to the lender, Kramer Security Company, an ordinary assignment of said stock as collateral and also endorsed said certificates in blank. Later the Kramer Securities Company pledged said stock certificates, with no other endorsements thereon, to the State Trust & Savings Bank as security for a loan. Mary E. Mayes learned that the bank was in possession of her stock before the maturity of said note and made demand therefor, tendering the amount due on her loan. The bank declined the tender. The court in its opinion held that the pledgee of stock certificates, endorsed in blank by pledgor, did not have title to the stock and could not vest transferee with title thereto unless the pledgor was guilty of such negligence in the handling of said stock as would estop her from enforcing ownership as against an innocent third party.

In the instant case appellant endorsed the two certificates of stock in question in blank and delivered them to Sterling & Baker, who were not pledgees but were agents of appellant, selected by him to purchase stock for his account, with authority to sell said stock in the event his account with them should require additional margin. Upon being informed that his account required additional margin, he subsequently authorized them to sell both of said certificates of stock.

It is uncontroverted that appellee, Mrs. Winston, was an innocent purchaser' of 200 shares of stock of the Reed Roller Bit Company; that said stock was transferred into her name prior to its delivery to her; that she paid the full value therefor, and that she had no knowledge or notice at the time of its purchase or of its delivery of any connection of appellant with the stock delivered to her, or of any irregularity or conflicting interests in its ownership or transfer.

Our courts have uniformly held that where one of two persons, equally entitled to consideration, as far as their purposes are concerned, must suffer from the delinquency of a third, the loss more properly falls upon him, who, having readily at hand the means of protection, has failed to avail himself of them. Parma v. First Nat’l Bank of Cameron, Tex. Com.App., 63 S.W.2d 692.

The case of United States Fidelity & Guaranty Co. v. Ramey et al., Tex.Civ. App., 261 S.W. 503, 506, involved the theft and sale of a certificate of stock by an employee of a bank to which the stock had been sent for sale. The purchaser of said stock had the certificate cancelled and a new certificate issued to him ánd subsequently transferred it to the defendants, who were sued for the title and possession of the stock. The court held that “* * * a bona fide purchaser for value, who purchases such new certificate without any notice of the fact that the original had been stolen from the owner, would, by this interposition of the association, also be protected, and such purchaser would take title free of any claim by the owner. 14 C.J. p. 774, also part of section 1175; Baker v. Wasson, 53 Tex. 150; Winter v. Montgomery Gas Co., 89 Ala. 544, 7 So. 773; Tafft v. Presidio & F. R. Co., 84 Cal. 131, 24 P. 436, 11 L.R.A. 125, 18 Am.St. Rep. 166.”

The following rule is laid down in 37 Tex.Jur., paragraph 221, page 489: “While a bona fide purchaser of goods from a person who is neither the owner nor an agent authorized by the owner to sell them ordinarily gets no title, there are certain situations in which the settled principles of equity preclude the true owner from asserting his rights to them. Thus ‘where the real owner, by some act or conduct of his, vests the possession and right to personal property apparently in the seller, he thereby estops himself from setting up a claim to them as against a purchaser for value without notice.’ ”

Applying the above authorities to the facts in the instant case, we think that appellee, Mrs. Winston, having purchased said re-issued certificates of stock for their full value without notice of appellant’s equities therein, was entitled to their title and possession.

We have fully considered each and all of the other propositions presented in appellant’s brief. In our opinion, none of them show any error in the record which requires a reversal of the judgment. The judgment of the trial court is in all things affirmed.

Affirmed.

On Appellant’s Motion for Rehearing.

We have .carefully considered appellant’s motion for a rehearing and for additional findings in this cause. In connection therewith, and in response to appellant’s request, we make the following correction in the findings of fact in our original opinion wherein we stated that, “Mrs. Curtis Green, a former employee of Sterling & Baker, testified that none of the stock ordered by the appellant to be purchased by Sterling & Baker on margin was purchased in appellant’s name, but that, with the exception of 50 shares of Navarro Oil Company stock, the stock ordered by appellant was on hand at the date Sterling & Baker was declared bankrupt.”

We correct- the above statement in this respect: “Mrs. Curtis Green,- a former employee of Sterling & Baker, testified that none of the stock ordered by appellant to be purchased by Sterling & Baker on margin was purchased in appellant’s name. In many instances- the stock was not purchased by Sterling & Baker at the. ■time it was ordered by appellant, but, with the exception of SO shares of stock in the Navarro Oil Company, similar stock to that ordered by appellant was on hand at the date Sterling. & Baker was declared bankrupt.”

This correction in no way affects the final determination of this cause as embodied in our former opinion.

Motion for a rehearing is refused.

Refused.