author: KING, J.

text:
    TEXAS & N. O. R. CO. v. TURNER.
    (No. 292.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 20, 1917.)
    1. Pleading <®=^258(1) — Answer — Amendment.
    Striking defendant railroad’s amended answer filed immediately before the trial, which asserted that petition alleged a wrong measure of damages for mules killed, held erroneous, since plaintiff could not have been taken by surprise or the trial delayed.
    2. Damages <§=5>113 — -Killing Mules — Measure.
    In action against a railroad for negligently killing mules, the measure of damages is their market, and not their reasonable, value.
    3. Railroads <®=>482(1) — Ownership op Mules — Supficiency op Evidence.
    Testimony of plaintiff and another witness held to sustain a verdict that plaintiff owned the mules killed by defendant railroad, although both witnesses had made contrary statements before the trial.
    4. Trial @=^352(5) — Special Issues.
    Submitting a special issue whether defendant railroad negligently permitted its fence to be removed, and negligently failed to prevent stock coming upon its right of way, held erroneous because embracing distinct issues capable of different answers.
    5. Trial <S=352(5) — Special Issues.
    Submitting a special issue whether defendant railroad negligently permitted its right of way to be unfenced and negligently ran down plaintiff’s mules, held erroneous because embracing distinct issues admitting different answers.
    6. Trial <s=»352(5) — Special Issues.
    A special issue of fact submitted for a yes or no answer should not embrace distinct questions capable of different answers.
    Appeal from Orange County Court; D. C. Bland, Judge.
    Action by J. S. Turner against the Texas & New Orleans Railroad Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    See, also, 182 S. W. 357; 193 S. W. 1087.
    Orgain, Butler & Bolinger, of Beaumont, for appellant. Bisland & Bruce, of Orange, for appellee.
   KING, J.

This appeal is from a judgment rendered in the county court of Orange county upon answers by a jury to special issues submitted by the court, the suit being, as alleged in plaintiff’s petition, for the reasonable value of certain mules alleged to have been killed by the engine and cars of appellant; plaintiff alleging that the appellant negligently permitted its right of way to be unfenced, and carelessly and negligently ran its engine and cars on and against his mules.

On the day set for trial and prior to the announcement of ready by the parties, appellant filed its first amended original answer, in which was contained a special exception to appellee’s petition, to the effect that the reasonable value of the mules was not the proper measure of damages, but; that the market value thereof was the measure of damages recoverable in the case. -Appellee’s petition nowhere alleged the market value of the mules, and there is no allegation in the petition showing that the mules did not have a market value. The court, upon motion of appellee, struck out defendant’s first amended original answer, for reasons stated in the qualification to appellant’s bill of exception, as follows:

“Defendant’s original answer was filed in this cause on the 23d day of December, 1914, and the cause was regularly tried at the January term, 1915, on said original answer, and during the course of the trial the defendant objected to the introduction of the testimony showing the reasonable value of the mules, on the ground that that was not the true measure of damages, and plaintiff contended at said time that there had been no special objection addressed to that part of plaintiff’s pleadings. The cause was tried and appealed to the Court of Civil Appeals, and reversed and remanded for a new trial; and on the 16th day of April, A. D. 1916, this cause was again called for trial, and went to trial, on defendant’s original answer, and defendant objected to .the introduction of testimony showing a reasonable value of the mules, but the court overruled said objection, because there had been no special objection addressed to that portion of the plaintiff’s pleadings, and the cause again went to the Court of Civil Appeals of the Ninth .Supreme Judicial District, and was again reversed and remanded for a new trial; and on the 16th day of April, 1917, this cause was again called regularly for trial, and after the jury was impaneled and sworn to try the case, and when plaintiff’s counsel arose to read his pleadings, his petition, to the jury, defendant’s counsel informed plaintiff’s counsel that there had been an amended answer filed; and it appearing to the court that this cause having been set for trial at 1:30 p. m. of the 16th day of April, that said amended answer had not been filed before 1 o’clock, and being satisfied that plaintiff’s attorneys’ attention had not been called to the fact, and having inspected said amended answer, was satisfied that there was no new defensive matter set up in said amended answer, and that said amended answer was filed alone for the purpose of presenting special exceptions to the plaintiff’s petition, and being satisfied that the permitting of the filing of said amended answer at that time, and under those circumstances would delay the trial, and believing that defendant was guilty of negligence in not sooner filing an answer, the court sustained motion to strike the same out.”

As shown by appellee’s motion and by the statement of the trial court in the above qualification, no new defensive matter was set up in appellant’s amended answer. We think it was error for the court to strike out appellant’s amended answer, the amendment containing no new matter which was calculated to take the plaintiff by surprise; the only new matter pleaded being a matter of law addressed to the petition of appellee, and it could not have operated to delay the trial, and had said amended motion been considered by the court, the special exception ought to have been sustained, as the true measure of damages is the market value of the mules alleged to have been killed.

We overrule appellant’s assignments of error, wherein it contends that the evidence is not sufficient to support the finding of the jury that the mules, at the time they were alleged to have been killed, were the property of appellee. It is true that appellee had made statements that he had sold the mules prior to the time they were alleged to have been killed, yet he denied upon the trial that he had, in fact, sold the mules, and that they were then the property of himself. It is also true that appellee’s witness Harmon, in whose possession the mules were at the time of their death, put in a claim for the mules, in which he asserted ownership, and he, as well as appellee, makes a different statement upon the trial of the case from that theretofore made. However, we are loathe to disturb the finding of the jury upon this question, as it was peculiarly within their province to determine that disputed issue upon the trial.

Appellant, under appropriate assignments of error, complains of special issues Nos. 4 and 5 submitted to the jury, because in each of said issues are submitted two separate and distinct issues of fact, one of which the jury might decide to answer in the negative, and one in the affirmative, or vice versa; said issues being as follows:

“No. 4: Do you believe from the evidence that the defendant railroad company negligently permitted its right of way fence to be removed, and negligently failed to keep its place in such condition as to prevent stock from coming upon its right of way? Answer ‘Yes’ or ‘No.’
“No. 5: Do you believe from the evidence that the defendant railroad company did negligently permit its right of way to be unfenced and carelessly and negligently run its engine and cars on and against the mules of plaintiff at the time and place alleged in plaintiff’s petition? Answer ‘Yes’ or ‘No.’ ”

We sustain said assignments. A special issue of fact submitted to a jury for their determination, to which the jury, are instructed to answer “Yes” or “No,” should submit for their consideration a single question, and should not combine two separate and distinct questions of fact, one of which might be answered in the negative, and the other in the affirmative, or vice versa, by the jury. Appellant also complains of. the charge of the court in submitting the reasonable value of the mules as the measure of damages, instead of the market value. These assignments must be sustained, as timely exceptions were made in writing, as required by statute, to the charge of the court in this respect.

There are other matters complained of in appellant’s brief, which we do not deem it necessary to discuss, as they will not necessarily arise should this case be tried again, and this opinion followed.

For the errors pointed out, this cause is reversed and remanded.

HIGHTOWER, C. J., did not sit in this case.
      <®soFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    LIBERTY HARDWOOD LUMBER CO. v. STEVENS.
    (No. 267.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 29, 1917.
    Rehearing Denied Jan. 9, 1918.)
    1. Logs and Logging ⅜=^8(5) — Breach of Contract — Instructions — Evidence to Warrant.
    Evidence of breach of a logging contract by failure of defendant to furnish sufficient logs to keep plaintiff’s team busy and to provide ample skidway examined, and found sufficient upon which to base instruction to the jury as to the amount and measure of damages.
    2. Appeal and Error ⅞=»997(3) — Review-Direction of Verdict.
    Refusal of defendant’s submitted instruction to direct a verdict was not error, where there was evidence satisfactory to the trial court to support a verdict for the plaintiff.
    Error from District Court, San Jacinto County; L. B. Hightower, Sr., Judge.
    Suit by A. G Stevens against the Liberty Hardwood Lumber Company. Judgment for plaintiff, new trial denied, and defendant brings error.
    Affirmed.
    Williams & Neethe, of Galveston, and J. M. Hansbro, of Cold Springs, for plaintiff in error. Campbell & Campbell, of Livingston, for defendant in error.
   BROOKE, J.

This suit was brought in the district court of San Jacinto county by defendant; in error, A. G. Stevens, against plaintiff in error, Liberty Hardwood Lumber Company, a, corporation, to recover from the latter the sum of $3,403.30 as damages for an alleged breach of contract. The contract alleged upon was in writing, dated September 3. 1914, and by its terms plaintiff in error agreed to put two good mule teams to hauling logs for defendant in error to the amount of 25,000 feet per day, more or less, according to weather conditions, laid alongside of plaintiff in error’s track in good shape for same to be loaded on cars, at a price for the first quarter of $1.50 per 1,000 feet, price for second quarter, making not to exceed half mile haul, 25 cents extra, measurement to be by Doyle-Scribner rule inside one bark. It would, perhaps, be better to set out the contract in full, as follows:

“Big Creek, Texas.
“This contract made this the 3d day of September, 1914, by and between A. G. Stevens, of San Jacinto county, party of the first part, and the Liberty Hardwood Lumber Company, of Big Creek, Liberty county, Tex., party of the second part, to wit:
“The party of the first part hereby agrees to put two good mule teams to hauling logs for the party of the second part, to the amount of 25,000 feet per day, more or less, according to weather conditions, at the following prices:
“Laid alongside of our track in good shape for us to load same on cars; price for the first quarter $1.50 per thousand feet. Price for the next quarter, making not to exceed half a mile haul, 25 cents extra; measurement to be by Doyle-Scribner rule, inside of one bark.
“The party of the second part agrees to take all of the logs hauled by party of the first part at prices named above, paying for same on or about the 15th of each month.
“The party of the second part further agrees to keep ample skidway along the track for the unloading of the above logs.
“This contract shall be in full force twelve months from date.
“Witness our hands this the 3d day of September, A. D. 1914.
“Signed in duplicate.
“A. 6. Stevens.
“Liberty Hardwood Lbr. Co., “J. M. Saunders.
“Witnesses:
“O. V. Langston.
“J. B. Shelton.”

Plaintiff in error agreed to take all of the logs hauled by defendant in error at the prices named above, paying for same on or about the 15th of each month, and to keep ample skidway along the track for the unloading of the logs. Defendant in error also alleged that at the time of the execution of the writ-' ten contract it was agreed between the parties that plaintiff in error should keep sufficient quantity of logs sawed in the woods at all times to keep defendant in error’s teams busy, which logs should be cut from virgin timber. He further alleged that on the 24th day of April, 1915, he, at the special instance and request of plaintiff in error, put into service a third team, plaintiff in error urging him to put on its sidings 37,500 feet of logs per day, instead of 25,000, as originally agreed upon and expressed in the written contract, and agreed to take all said logs under the same terms and conditions provided for in that contract. It was further alleged that about May 2d plaintiff in error ordered defendant in error to stop hauling logs entirely, and placed other teams at work hauling for the mill, which hauling defendant in error could have done; that because of the failure of plaintiff in error to keep; ample skidways along its track defendant in error was forced to haul all short haul logs with wagons instead of carts, so that the logs could he decked on the limited skidway furnished, which was done at a loss to defendant in error and greatly retarded the moving of logs; that on the 2d day of May, 1915, the defendant withdrew from the woods all the men engaged in sawing logs and men engaged in keeping up skidways, and took up a part of its tramways, and began cutting timber that had been left on the former part of the cutting, requiring defendant in error to haul a greater distance over and through treetops of the former cutting, and that for want of logs defendant in error was required to maintain his teams and teamsters in idleness; that defendant in error was well equipped with teams, carts, wagons and labor, and could with ease have hauled as much as 37,-500 feet per day, or more, was anxious and willing to do so, and repeatedly urged plaintiff in error to replace the sawyers, and keep up the trains and skidways and put him in good timber, but it would not; that during the months of May, June, July, August, and three days in September defendant in error could and would have hauled, as per terms of his agreement with plaintiff in error, 4,-050,000 feet of logs, amounting to $6,075, whereas, by failure of plaintiff in error to comply with its obligations, promises, and agreement, defendant in error was only able to haul 1,787,000 feet, amounting to $2,681.70, entailing a loss upon him of $3,393.30; and that plaintiff in error was further indebted to him in the sum of $10.45 upon timber hauled by him which it refused to pay him. Wherefore he prayed judgment for the sum of $3,403.30, interest and costs.

Plaintiff in error, in answer, pleaded general demurrer, special exceptions, and general denial.

By trial amendment defendant in error alleged that from and after the 2d day of May, 1915, plaintiff in error did remove its log sawyers from the woods and all men engaged in keeping up skidways for said logs, and did take up part of the tramway, and what few men plaintiff in error did furnish to cut logs were required to cut over timber that had once been cut, necessitating and requiring the defendant in error to haul the remnant logs that were so cut through treetops a greater distance than should have been required of him, especially so since the tramways had been taken up and removed and the further fact that it refused to furnish ample skid-ways, and that at the time of the execution of the written contract made mention of in defendant in error’s petition, plaintiff in error then had in its employ sufficient men sawing logs, preparing skidways sufficient to keep the defendant in error’s teams busy, and that his labor was retained by plaintiff in error until about the 2d day of May, 1915, when plaintiff in error withdrew said labor, as complained of in defendant in error’s petition.

The case was tried before a jury, and upon the following charge:

“Gentlemen of the Jury: The plaintiff, A. G. Stevens, sues the defendant, the Liberty Hardwood Lumber Company, to recover- damages for an alleged breach of contract, the same contract now in evidence before you, commonly called a logging contract. The plaintiff’s charge in substance succinctly stated being that the defendant breached said contract in failing to furnish sufficient logs to keep the plaintiff’s teams busy and failed to provide ample skidway.
“The defendant denies the allegations of plaintiff’s petition charging breach of contract as alleged, and this places the burden of proof upon the plaintiff to establish by a preponderance of the evidence by which is meant the greater weight of credible testimony the material allegations of his petition.
“You are charged that, if by a preponderance of the evidence you find that the plaintiff was ready, willing, and able to haul the quantity of logs as stipulated in the contract before you, hut that he was prevented from hauling same on account of the defendant’s failure to furnish sufficient logs for him- to haul and failed to furnish ample skidways as alleged by plaintiff, then the defendant would be liable to plaintiff for such amount of damages as he has sustained by reason of such failure (if there was any) on the part of defendant, and the measure of damages in such case is the difference between the quantity of logs in feet actually hauled and the quantity of logs which the plaintiff could and would have hauled had the defendant on its part complied with the terms of the contract, computing at the rate for hauling for the first quarter $1.50 per 1,000 feet, price for the next quarter making not to exceed half a mile 25 cents extra. And if you find the defendant liable under the evidence, applying the foregoing instructions, then return a verdict for plaintiff for such amount as you find him entitled to. If you do not find the defendant liable, then return a verdict for the defendant.
“You are the exclusive judges of the facts proved, the credibility of the witnesses and weight to be given to the testimony, but you receive the law from the court, and must be governed thereby.
“L. B. Hightower, Judge Presiding.”
“We, the jury find for tie plaintiff, A. 6. Stevens, the sum of $3,403.30.
“E. L. Ross, Foreman.”

The court rendered judgment in favor of the defendant in error in the sum found by the jury, with interest and costs. Plaintiff in error filed motion for new trial, and thereafter its amended motion, wheh was by the court overruled. On January 8, 1917, plaintiff in error duly filed with the clerk of the. court petition for writ of error with supersedeas bond. Citation for writ of error was issued to defendant in error, and was duly returned, showing him to have been duly served on January 13,1917. A remittitur has been filed in this court in the sum' of $168.75, and judgment is prayed to be remitted in that sum.

The first, second, and third assignments of error will be grouped and treated together, viz.:

(a) “The court erred in submitting in its main charge to the jury for determination by them the issue as to the amount of plaintiff’s damage, because the evidence herein is wholly and legally insufficient to raise such an issue and is legally insufficient to support any finding for damages or any amount in favor of plaintiff, such error having been complained of in paragraph No. 2 of plaintiff in error’s amended motion for new trial.”
(b) “The court erred in its main charge to the jury, wherein it charges them to find the difference between the amount of logs plaintiff actually hauled and the amount he should have hauled if his contract with defendant had not been breached by it, for the reason that there is no evidence herein sufficient to raise such issue, and that there is no evidence herein .upon which a finding by the jury upon such issue can be based; such error having been complained of in paragraph No. 3 of plaintiff in error’s amended motion for new trial.”
(c)“The court erred in refusing plaintiff in error a new trial, because the verdict herein and the judgment rendered thereon were wholly unsupported by the evidence herein, in that there is no evidence herein legally sufficient to show the difference between the amount of logs plaintiff could have hauled had the defendant not breached its contract with him and the amount actually hauled by him, such ground having been set up in paragraph 4 of plaintiff in error’s amended motion for new trial.”

The proposition under these assignments is as follows:

“The evidence herein being wholly insufficient to afford any reasonable basis upon which any amount of damages to plaintiff could be intelligently arrived at, he was not entitled to re-COTer any sum, and the court committed prejudicial error in submitting the issue as to the amount of his damage to the jury.”

Therefore the complaint to be passed on is that there is no evidence in the case whatever that would raise the issues submitted by the court. We have examined the testimony, and believe, with the trial court, that there is evidence upon the issues raised that, if not entirely satisfactory to this court, to say the least of it, was satisfactory to the trial court, which heard the testimony, and which refused a new trial in the cause, anil inasmuch as there is no quantity of evidence that is prescribed by the law, it is sufficient, if there is testimony which is believed by the jury, to uphold the judgment.

So far as this court is concerned, we are not concerned with the amount of testimony adduced, but only as to the question of whether or not there is testimony, together with the reasonable conclusions therefrom, and all these conclusions must be held to favor the upholding of. the judgment of the lower court. These assignments are therefore overruled.

The record discloses the fact that only one special requested charge’ was asked by the plaintiff in error, which was as follows:

“Now comes-Liberty Hardwood Lumber Company, defendant in the above styled and numbered cause, and at the close of plaintiff’s evidence, and before the giving of the court’s main charge, requests the court to charge the jury as follows: ‘Gentlemen of the Jury: You will return your verdict as follows: We, the jury, find for the defendant’ ”

This requested charge was marked “Refused” by the trial judge.

The plaintiff in error asked no further special instruction, and seem to have rested their case entirely upon the propositions heretofore submitted. Without going into the matter and reviewing the testimony in extenso, we are of opinion that the action of the lower court was correct, and should be affirmed, less the amount remitted.

It is so ordered.
      <®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    CAPITOL LIFE INS. CO. OF DENVER, COLO., v. DRISCOLL.
    (No. 773.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 19, 1917.
    Rehearing Denied Jan. 10, 1918.)
    1. Insurance <§=>128(1) —< Life Insurance —“John Doe” Application — Effect.
    Where plaintiff made a “John Doe” application for life insurance, and defendant accepted it and instructed him to make formal application in his own name upon which the policy would be issued, there was a contract to insure.
    2. Insurance <§=>128(2) — Life Insurance— “John Doe” Application — Effect.
    Allegations that plaintiff made a “John Doe” application and was instructed to make formal application and he would be accepted, that plaintiff submitted to examination and was passed, and that he was refused solely on account of facts disclosed by the “John Doe” ap.-plication, sufficiently show that the examination conformed to the “John Doe” application. 8. Insurance <§=>128(1) — Life Insurance-Consideration.
    Submission to physical examination by one who had made a “John Doe” application was sufficient consideration to support an agreement to issue policy.

      4. Insurance <§=>128(1) — Life Insurance-Contract — Execution.
    Where plaintiff made a “John Doe” application for life insurance, and defendant instructed him to make formal application and the policy would be issued, and plaintiff submitted to examination but defendant refused to issue policy except at accelerated rate, there was a breach, of contract to insure, and defendant was liable in damages.
    5. Damages <§=>120(1) — Breach of Contract for Insurance.
    Where an applicant contracts, for a certain character of insurance policy and such policy is refused, and he can then only obtain a like policy at an increased annual premium, the proper measure of damages is the difference between the premiums of the policy contracted for and the policy he can get.
    Appeal from) District Court, El Paso County; P. R. Price, Judge.
    Action by J. I. Driscoll against the Capitol Life Insurance Company of Denver, Colorado. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    F. C. Knollenberg, of El Paso, for appellant. J. F. Woodson, of El Paso, for appel-lee.
   HIGGINS, J.

Appellee, Driscoll, brought this suit to recover damages arising from the breach of a contract alleged to have been made by appellant to enter into a contract of insurance upon his life.

Succinctly stated, the allegations of the petition show: That in November, 1913, Mr. Lay, the local agent of defendant, solicited plaintiff to take a life insurance policy with the defendant company. Plaintiff told the agent he desired to procure insurance, but was afraid he could not do so as he had once been declared to be afflicted with a diseas'e which caused insurance companies to decline risks such as plaintiff would be. The agent suggested to plaintiff that he make out what is known as a “John Doe” application for a policy of insurance, such application to state the facts in regard to the disease with which he had been afflicted, and the agent represented that he would submit the application to the company, and, if it would accept plaintiff as a risk with knowledge of the facts stated in such application, then plaintiff could procure insurance with the defendant. That, acting upon the suggestion of the agent who was authorized to make such suggestion and authorized to induce plaintiff to make said application, plaintiff miade out said John Doe application for a policy of insurance for $3,000, in which application he stated the conditions in regard to the disease with which he had been told he was afflicted. That it is usual and customary for life insurance companies to have said applications so made out, and, if the risk covered by the application was as therein represented, then the policy of insurance would be issued to the real applicant if said facts were as stated in the application, or said policy would be refused, as the company might see fit. That said application was delivered to the agent and by the agent delivered to the proper officers of the company, and, after the receipt of such application, the defendant agreed to accept plaintiff as a risk and to issue to him a policy for $3,000 on his life to be paid for in 20 annual installments of $103.77 each, plaintiff being at that date of the age of 30 years, and said company agreeing to accept this plaintiff as a risk, if the facts in regard to his previous health and physical condition were as stated in said application and if he would pass the medical examination required. That, after being advised that he would be accepted as a risk as mentioned above, plaintiff submitted to a mledical examination by the company’s physician, and the physician passed plaintiff for insurance. Plaintiff made out a formal application to the defendant after being advised that he would be accepted as a risk, and, upon making such formal application, plaintiff paid to the company through the agent, Lay, the sum, of $10 as a part of the first annual premium. That, after said formal application had been made and the medical examination had been made, plaintiff was advised by defendant that it would issue a policy for $3,000, but at the rate required for persons of the age of 41 years, at an annual premium of $133, or a difference of $29.23 to be paid for 20 years, and defendant refused to issue a policy for $3,000 based upon the real age of plaintiff and upon which the premium would have been $103.77 for 20 years. Plaintiff refused to accept the policy tendered and demanded the policy contracted for and tendered the first year’s premium, which tender was refused, and the company refused to deliver the policy agreed upon. That plaintiff only submitted to the medical examination upon the representation and agreement of the defendant after plaintiff! had submitted his John Doe application that the policy of insurance -would be issued to him for $3,000 at the annual premium of $103.77, and plaintiff would not have submitted to such an examination unless the defendant had led him to believe .that his application would be accepted if he could pass the medical examination required. That he did pass the medical examination, but the policy was refused by defendant solely on account of facts stated and made known to the defendant in the John Doe application. Plaintiff could not now obtain a policy for $3,000 or any other sum except at an advanced age of 10 or 11 years over his real age, except at an additional premium of $29.23 per year; whereby plaintiff had been damaged to the extent of the difference in the 20 annual premiums of the policy which he could obtain and the policy which defendant had agreed to deliver, such difference being in the sum of $29.23 to be paid for 20 years, amounting in the aggregate to the sum of $584.60, for which amount plaintiff prayed judgment. There was a trial without the aid of a jury and judgment rendered in Driscoll’s favor for $584.60. The insurance eomipany appeals.

Findings of fact and conclusions of law were filed by the trial court as follows:

“Findings of Fact.
“(1) Some time in October, 1913, the plaintiff was a resident of El Paso county, Tex.. H. A. Lay, during that month and since was and has been agent of defendant at El Paso, Tex., being the head man of defendant at said city, with other agents under 'him, and Ee being authorized to solicit insurance for defendant, and defendant being a nonresident corporation.
g!) During October or November, 1913, H. ay, agent for defendant, solicited the plaintiff to take a life insurance policy with defendant company. Plaintiff advised Lay he wanted insurance, but on account of previous condition of his health he was afraid to apply for fear he would be rejected, which would place him at a disadvantage on future applications for insurance. It was agreed between plaintiff and Lay that plaintiff would take a John Doe application or medical examination to defendant, same being an unsigned application or examination, the maker not being known to the company to whom made. Said John Doe examination was made by plaintiff in October or November, 1913, to D. H. Hoffecker, El Paso physician of defendant (Exhibit C). Such examination was made at the request of agent Lay for the defendant, the plaintiff appearing before Dr. Hoffecker and furnishing the information for such John Doe examination.
“(3) In 1906 plaintiff had been examined by a physician in Italy, and advised he had one lung affected. Plaintiff came to the United States, and in the latter part of 1907, or early part of 1908, Dr. Crouse, of El Paso, Tex., examined plaintiff and advised him he was cured.
“(4) In the Jo'hn Doe examination plaintiff informed Dr. Hoffecker that he had contracted a cough in 1906, came to El Paso in 1907, and got over it in three months, and also advised Dr. Hoffecker that a doctor had told him in 1906 that the upper part of one lung was involved; and plaintiff, during such medical examination, told Dr. Hoffecker that Dr. Crouse had been his physician treating him for the cough and lung trouble.
“(5) The John Doe examination showed that plaintiff, in 19Ó6, was advised of the affection of one lung, also that plaintiff had 'had a disease of the lung, and also that he had had a chronic cough.
“(6) I find that the statement that plaintiff had had a disease of the lung and chronic cough in the John Doe examination was sufficient to advise defendant he had had or probably had tuberculosis; but I also find that the defendant, when it received the John Doe examination, had ample information therein to advise it of that fact, and also that defendant’s examining physician, Dr. Hoffecker, knew from plaintiff’s statements made to him at the time of the John Doe examination that Dr. Crouse had treated plaintiff, and defendant could have ascertained plaintiff’s entire condition by communicating with Dr. Crouse, both Drs. Crouse and Hoffecker residing in the city of El Paso, Tex. And I further find that the plaintiff made no fraudulent concealment of any fact regarding his present or past condition, and divulged to the defendant’s examining physician all information that the plaintiff possessed.
“(7) Plaintiff made his John Doe examination on a request for a 20-payment policy in defendant company for $3,000, at an amíuál premium of $103.77; the age of plaintiff at the time of such John Doe examination being 30 years.
“(8) The agent of defendant got from Dr. Hoffecker the John Doe examination or application (Exhibit C, except as to date). Same was sent to defendant at its home office in Denver, Colo., the latter part of October or early part of November, 1933. Shortly thereafter, H. A. Lay, agent of defendant, advised plaintiff that defendant had requested plaintiff to submit his regular examination for insurance, and Agent Lay had been requested by said defendant to so notify plaintiff; that the defendant had requested that plaintiff submit his regular application; that where a John Doe application or examination is made for insurance, and the company to which it is made will accept the risk on the facts stated therein, such company requests the regular application, and, if it will accept the risk outlined in the John Doe application, no regular, application is called for. Upon receiving such- request the plaintiff then made a formal application for $3,000 policy, 20 payment, with defendant, at an annual premium of $3.03.77 (Exhibit A), being the same kind of policy upon which the plaintiff had made his John Doe application or examination; and plaintiff also underwent another medical examination by the company physician, which examination showed substantially the same as the John Doe examination. It is the custom for insurance companies, when they receive the John Doe application or medical examination, to either accept or reject the risk as shown by such examination or application, and, if the risk is accepted, to request the risk to make his formal application.
“(9) After the plaintiff had made his formal application and medical examination, as .requested by plaintiff, the defendant refused to deliver the policy for which he had applied and for which he had made the John Doe application. The plaintiff had paid $10 to H. A. Lay, the agent of the company, to be applied on the first annual premium of the policy applied for.
“(10) Plaintiff was still insurable on refusal of the company to issue the policy applied for, but only at an advanced age. The difference between the annual premium on the policy he made his John Doe application for, and the only policy he could get, was $29.23 per year for 20 years.
“(11) Plaintiff demanded the policy he applied for and tendered the full first year’s premium therefor.
“(12) Plaintiff was advised by tbe agent of defendant that his John Doe application had been accepted and that the policy would be issued on formal application. The formal application was thereafter made and formal examination and report made.
“(13) After defendant had refused to deliver policy to plaintiff for which plaintiff had made John Doe application, the only similar policy plaintiff could get in a solvent company would be payable in 20 annual premium payments of $133 each, being the accelerated policy issued to a person 31 years of age but based on an age of 41 years.
“(14) Prom all of which I find that plaintiff applied (by John Doe application) for a $3,000 policy in defendant company, payable in 20 annual premiums' of $103.77 each; that defendant agreed to deliver said policy to plaintiff; that thereafter defendant refused to deliver such policy, although plaintiff demanded it and made proper tender.of premium.”
“Conclusions of Daw.
“I therefore' conclude from the foregoing facts:
“First. That the plaintiff was entitled to receive from the defendant in the latter part of 1913 a policy of insurance on his life in the amount of $3,000; said policy to be fully paid up in 20 years at an annual premium of $103.-77, which policy the defendant refused to deliver.
“Second. That on account of the ⅛ defendant’s breach of its contract to deliver said policy the plaintiff is entitled to damages from the defendant.
“Third. That plaintiff’s measure of damages is tile difference between what he would have had to pay for the policy promised, and what he would have to pay for a similar policy at the accelerated age, which would be 20 times the difference in the annual premiums, or $584.60.
“Fourth. Judgment was therefore accordingly entered for the plaintiff against the defendant for said sum of $584.60.”

An examination of the statement of facts discloses that the findings of fact are sustained hy the evidence, and such findings are approved.

The first and second assignments complain of the overruling of exceptions to the petition based upon the theory that the petition failed to show a contract made by defendant to deliver a policy of insurance. The petition is not subject to the objection urged. It shows the submission of a John Doe application by plaintiff at the solicitation of defendant’s agent and the acceptance by defendant of this John Doe application, with instructions to plaintiff to make out a formal application in his own name, upon which the policy would be issued. This shows an agreement to issue a policy upon the formal application which was made by plaintiff.

Another assignment complains of the overruling of a special exception to the petition upon the ground that it does not allege that the medical examination conformed to the John Doe application. This is without merit, because the petition distinctly alleges that, after being advised by the company that he would be accepted as a risk, plaintiff submitted himself to a medical examination by the regularly employed physician of defendant, and said physician and medical examiner of defendant passed the plaintiff for insurance as desired by plaintiff. In another paragraph of the petition, it is again alleged:

“This plaintiff did pass said medical examination required by said company, but said policy was refused by the defendant company solely on account of facts which were stated and made known to said defendant company in the John Dpe application, hereinbefore mentioned, and for no other reason.”

These allegations show that the plaintiff had satisfactorily passed the medical examination required by the defendant company.

Another exception complains of the sufficiency of the petition upon the ground that a valid consideration for the policy was not alleged. The petition alleges that plaintiff submitted to the medical examination only upon the representation and agreement of the defendant, after the submission of the John Doe application, that the policy of insurance would be issued to him for $3,000, and that plaintiff would not have submitted to such examination unless the company had led him to believe that his application would be accepted, if hé could pass the medical examination. The submission by plaintiff to the medical examination which he would not have done except for the representation and agreement of the company to issue the policy was a sufficient consideration to support the agreement of the company to issue a policy. For which reason, this exception, likewise, is without merit.

The remaining 22 assignments are all directed against the tidal court’s findings and conclusions and the measure of damage applied. , We will indicate 'our view of the controlling questions in the ease, which will dispose of these remaining assignments.

The plaintiff was solicited to take insurance, and reluctantly consented to do-so, feeling that he had been previously afflicted with a disease (tuberculosis) which might preclude the acceptance of his application for insurance, and, realizing that the refusal of one company to accept his application would be to his disadvantage upon applications made to other companies in the future, he pursued the course usually pursued by insurance companies under those circumstances, viz. the use of a John Doe application, which states his condition and which application is submitted to the company. If the company will take the risk on the John Doe application, a formal application is then made containing the same facts, and, as a matter of course, the policy is issued. The John Doe application was made to the agent of the company. He submitted to the medical examination and the application was presented to the company. Plaintiff was then in effect advised by the agent of the company that his John Doe application had been accepted, and, acting upon that advice, he submitted to another medical examination and made formal application for a policy. The agent admits that when he told the plaintiff Ms John Doe application had passer muster that meant to the plaintiff that he was accepted as a risk. Mr. Lay, the agent, testified that, after the John Doe application was made and sent in, he went to Dris-coll’s office and told him that the company had instructed him to have plaintiff examined upon a regular application, which meant, according to the usual custom with all insurance companies, that the John Doe application had passed muster. Dr. Wor-sham, a witness for the defendant and medical director of the Two Republics Life Insurance Company, testified that the insurance company determines from the John Doe application whether or not it will accept or reject the risk on a regular application, and where they accept the John Doe application they should issue a policy on a regular application; that it is the universal custom, where a company has agreed to issue a policy on a John Doe application, the man then goes and submits to a medical examination again and makes his regular application, and, if it is identical with the John Doe application and nothing is left out, he gets his insurance. If the insurance company, with the same facts shown on the John Doe application, accepts the risk, it is customary to accept a regular application. It appears that after plaintiff had made his formal application, 'as requested by defendant, the defendant refused to deliver the policy for which he had applied and for which he had made the John Doe application. Plaintiff was still insurable on the refusal of the company to issue the policy applied for, but only at an advanced age. The difference between the annual premiums on the policy he made his John Doe application for and the only policy he could get was $29.23 per year for 20 years. Plaintiff demanded the policy he had applied for and tendered the full first year’s premium. It will therefore be seen that plaintiff made a John Doe application, and defendant thereafter requested him to make a formal application which he did; the same conforming in all respects to the facts stated in the John Doe application. The company refused to deliver the policy called for by the John Doe application, plaintiff still insurable, but only at an advance of premiums of $29.23 per year for 20 years. Under these facts, the court properly found that defendant had agreed to execute and deliver to the plaintiff the policy called for in the John Doe application, and, upon its failure so to do, defendant became liable in damages for the breach of its contract.

It is not a question of the authority of the local agent, Lay, as is urged in the eighth assignment, for the reason that the agent, juay, has not pretended to agree to issue a contract or to change any of the conditions thereof. He simply places the facts before the company, itself for action by it, and the company, having had the facts presented to it by the John Doe application, has accepted the risk and agreed to issue the policy upon the formal application being made. The company is in a different position to that occupied upon an ordinary application for a policy. If Driscoll had made an application for insurance without having made a' previous John Doe application, the company would have been in a position to accept or reject his solicitation for insurance. But here, it already had the facts as to the risk prior to the making of the formal application. Having that knowledge, and with the John Doe application before it, when it had plaintiff to make a regular application, it was in the attitude, according to the understanding and custom of insurance companies, of having accepted the John Doe application for insurance, and, when Driscoll complied with its instructions by making a formal application, he was in the attitude of having accepted the proposal of the company to issue to him a life insurance policy. This brings us to the question of the measure of damages.

Where an applicant contracts for a certain character of insurance policy and • such policy is refused, and he can then only obtain a like policy at an increased annual premium, the proper measure of damages, we think, is the difference between the premiums of the policy contracted for and the policy he can get. Supreme Lodge v. Neeley, 135 S. W. 1046; Provident, etc., v. Ellinger, 164 S. W. 1024. This is the measure applied by the trial court in this case and was the proper one.

There is no merit in the contention that there was no evidence that plaintiff suffered any damages as a result of the breach of the contract to deliver the policy contracted for. The court found that the only similar policy that the plaintiff could get in a solvent company would be an accelerated policy issued to a person 31 years of age and based on an age of 41 years, at a higher premium. Summing up the whole case, it may be said that the trial court’s findings and the evidence show that, upon plaintiff’s John Doe application, the defendant company agreed to deliver the policy applied for upon a formal application therefor being. made; that defendant breached that contract, for which it became liable in damages in the sum awarded by the trial' court.

The judgment is therefore affirmed.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
      <®^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    VRABLEC v. KOCUREK.
    (No. 7500.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 20, 1917.)
    1. Brokers <§=43(1) — Right to Commissions —Statute of Frauds.
    Contract employing a broker to negotiate a sale of land, to mereljr entitle him to commissions, need not be in writing, under the general statute of frauds, though it must be for Mm to execute a binding contract of sale.
    2. Pleading <§=>403(3) — Complaint Cubed by Answer.
    Any insufficiency of description, in broker’s complaint for commissions, of the lands plaintiff was authorized to sell, is cured by the answer identifying them.
    Appeal from Austin County Court; G. S. Cumings, Judge.
    Action by Tom Vrablec against August Kocurek. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    C. G. Krueger, of Bellville, and Mathis, Teague & Mathis, of Brenham, for appellant. C. C. Glenn, of Sealy, for appellee.
   LANE, J.

This suit was instituted by appellant, Tom Vrablec, against appellee, August Kocurek, to recover the sum of $500, which he claimed to be due him as a commission for selling a certain tract of land for appellee.

Appellant, plaintiff in the trial court, alleged that on the 14th day of October, 1912, he purchased from appellee a certain 72¼ acres of land situated in Austin county, Tex., about 2½ miles west of the town of Wallis, in said county; that said tract consisted of 67¼ acres of prairie land and 5 acres of timber land; that plaintiff paid a part of the purchase money therefor, and executed his notes for the balance of said purchase price; that thereafter, and after said notes became due, defendant demanded payment thereof, and as plaintiff was unable to make such payment, it was agreed by said parties that, if plaintiff, Vrablec, would recon-vey said land's to defendant, Kocurek, the latter would enter into a contract with plaintiff engaging him to resell said land; that thereafter, on November 1, 1915, in pursuance of said agreement, said parties executed the following contract:

“The State of Texas, County of Austin.
“Know all men by these presents that I, August Kocurek, have this day given Tom Vrablec the authority to sell my land consisting of 67⅛ acres of prairie and 5 acres of timber land for the sum of sixty dollars an acre for prairie and forty dollars for timber per acre. I allow the said Tom Vrablec the sum of five hundred dollars as commission for selling above land as soon as sold and deed made. I am not to receive less than $2,000.00 cash and balance on time on above land.
“This contract to be null and void after November 1, 1916.
“Witness our hands this 1st day of November, 1915. August Kocurek.
“Tom Vrablec.
“Witness:
“Henri Kosik.
“J. C. Matejka.”

He further alleged that by the execution of said contract defendant authorized and empowered plaintiff to sell said land for the prices and on the terms stipulated in said contract at any time prior to the 1st day of November, 1916, and that by said contract defendant promised, obligated, and bound himself to pay plaintiff the sum of $500 for his services in the event plaintiff made a sale of said land before said 1st day of November, 1916, in accordance with the terms of said contract; that after the execution of the contract, and before the 1st day of November, 1916, plaintiff did procure at different times three different purchasers for said lands, to wit, Henri Kosik, Rudolph Hranicky, and Martin Haidjek, for the price and upon the terms stipulated in the contract, and that each of said proposed purchasers were ready, willing, and able to purchase said land at such price and under such terms and conditions, but that defendant refused, and still refuses, to convey said land to said purchasers or either of them.

Defendant, Kocurek, filed and presented special exceptions to plaintiff’s petition as follows:

“Specially demurring and excepting herein, defendant says that the contract in this case declared upon by plaintiff, and now for the first time exhibited in this court,.is wholly insufficient for plaintiff to maintain this suit upon, and is contrary to the statutes of fraud, in that it wholly fails to describe any lands, or to furnish the means of description of any lands, that were to be conveyed, on all of which defendant now prays judgment of the court, and he will ever pray.
“Defendant further excepts and demurs to all of paragraph No. 3 of plaintiff’s original petition, wherein the said petition undertakes to describe the lands alleged to have been intended to be conveyed by the contract herein declared upon by plaintiff, and says that the same is wholly insufficient, and is contrary to the statutes of fraud, and that plaintiff thus seeks to ingraft upon the said written contract and agreement a description which is wholly wanting in the said contract, and now excepts to the same, and prays the court to strike the same from the record, and he will ever pray.
“Further specially demurring and excepting to paragraph No. 4 of plaintiff’s original petition, defendant shows to the court that plaintiff therein alleges that he reconveyed certain lands to the defendant during the year 1915, ‘upon the agreement and understanding that the land should be sold, through the agency of plaintiff, in accordance with the terms of the contract hereinafter set out,’ when in deed and in fact plaintiff has neither ‘set out’ his said contract, nor has he indicated in his said original petition at what period of the year the land was ‘conveyed back’ to defendant. Wherefore defendant prays the court that the said paragraph No. 4 be also stricken from the record and held for naught, and he will ever pray.”

The trial court sustained all of said exceptions, and, upon plaintiff’s declining to amend his petition, the cause was dismissed; it being recited in the judgment of dismissal that the court took such action “because the contract sued upon is within the statute of frauds.”

The action of the court in sustaining said exceptions and in dismissing tlie cause • is complained of by appellant in Ms sole assignment of error.

The contract sued upon by appellant was not within the statutes of fraud, and the court erred in holding to the contrary.

The rule with reference to contracts of employment between a broker and his principal is stated in Ruling Case Law, vol. 4, p. 249, § 6, as follows:

“Contract of employment between a broker and his principal may be either oral or written, unless there is an express statutory provision requiring it to be reduced to writing, and this is true irrespective of the nature of the properly relative to which negotiations are to be instituted. The reason for this is that the ordinary statute of frauds, requiring contracts for the sale or purchase of real or personal property to be in writing, is intended to apply only to agreements the purpose of which is to effect an actual change of some kind in the title to the property involved, and hence has no application to a mere contract of 'employment by which one person is to act as the broker of another in negotiating a sale or purchase of the property of the latter. The employment of a real estate broker is no exception to the rule, for his duties seldom require him ■ to conclude or execute a contract of sale.”

Again, same volume, page 300:

“As we have previously seen, the usual provisions of the statute of frauds requiring contracts for the sale or purchase of real or personal property to be evidenced by a written memorandum thereof are intended to apply only to agreements which contemplate effecting a change of some kind in the title to the property involved, and have therefore no application to a mere contract of employment by which one person is to act as the agent of another in negotiating a sale or purchase of property, so as to defeat the rights of such an agent acting under parol authority to recover the agreed compensation.”

An agency to sell real property may be created by parol, and a broker in whose hands real property is placed for same under a parol agreement may recover the commission agreed upon if he effects a sale, or produces a purchaser ready, able, and willing to comply with the terms specified. Womack v. Douglas, 157 Ky. 716, 163 S. W. 1130.

Where a broker is employed by the owner of real property to sell the same, and it is contemplated that the broker shall procure a contract between himself and the proposed purchaser wMch will mutually bind the owner and the purchaser, his authority to execute such contract is required to be in writing, and where no such authority is given, authority to make such contract does not exist. But where the broker has been employed to make sale of real property by the owner, either by parol or by writing, and produces a purchaser who is ready, able, and willing to purchase upon the terms proposed by the owner, and is prevented from concluding such purchase by the owner’s refusal to convey the property, the broker is entitled to the commission agreed upon between him and the owner, and in such case the necessity for a binding contract to purchase is unnecessary, in the absence of a contract that he shall so bind the purchaser. Henderson & Grant v. Gilbert, 171 S. W. 308; Levy v. Duncan Realty Co., 178 S. W. 984; Goldsberry v. Thomas, 178 Mo. App. 334, 165 S. W. 1179.

When the pleadings; of both parties are considered, we think it is apparent that appellee was sufficiently advised of the identity of the tract of land for the sale of which appellant seeks to recover a commission.

Plaintiff alleged that on the 14th day of October, 1912, he purchased from defendant a tract of land situated 2½ miles west of the town of Wallis in Austin county, consisting of 72½ acres, 67¾ acres of which was prairie land, and 5 acres of which was timber land; that after paying a part of the purchase money, and finding that he was unable to pay the remainder, he reconveyed said land to defendant; that, in consideration of such reconveyance, defendant agreed to and did enter into the contract hereinbefore set out. Defendant in Ms answer averred that on the 14th day of October, 1912, he conveyed to plaintiff certain premises; that he repurchased said premises from plaintiff; that he repurchased the same for a homestead for himself and family; that he owned no other lands, nor has he since acquired any other lands, and does not own any other lands than that repurchased from plaintiff; that he moved upon the said premises as soon after his repurchase as plaintiff would vacate same, etc.

Averments in an answer may be looked to in aid of the petition, when such averments cover the want of averments in the petition. Gaston v. Wright, 83 Tex. 282, 18 S. W. 576; Lyons & Gribble v. Logan, 68 Tex. 524, 5 S. W. 72, 2 Am. St. Rep. 511; Hill v. George, 5 Tex. 89; Thomas v. Bonnie Bros., 66 Tex. 637, 2 S. W. 724; Grimes v. Hagood, 19 Tex. 249.

Looking, then, to the pleadings of .both parties, we think the land in question was sufficiently described to identify it as the land which appellee authorized appellant to sell.

We think the trial court erred in sustaining appellee’s exceptions to appellant’s petition and in dismissing the cause.

The judgment of the trial court is reversed, and the cause is remanded for trial on its merits.

Reversed and remanded.
      cgsaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes