text:
    FIDELITY MUT. LIFE INS. CO. OF PHILADELPHIA, PA., v. ZAPP.
    (Court of Civil Appeals of Texas. Austin.
    Oct. 22, 1913.)
    1. Insurance (§ 523) — Amount Payable — Deduction op Unpaid Premiums.
    A life insurance policy provided for the payment of annual premiums on or before October 1st in each year for 20 years from October 1, 1895. Insured paid one annual premium, and on October 1, 1896, paid a quarterly .premium, carrying the policy to January 1, 1897, at which time he paid an annual premium, receiving a receipt, stating that it paid his dues up to January 1, 1898. Thereafter and until his death he continued to pay annual premiums each year on or about January 1st. In 1903 the company changed to a legal reserve basis, and sent to insured a certificate to be, and which was, attached to the policy, stating the benefits thereunder on that basis, which certificate stated that the policy years were to be counted from October 1, 1895, and to end October 1, 1915, and that all provisions of the policy inconsistent or in conflict therewith were thereby canceled. Insured died December 20, 1910. The policy provided for the deduction of the balance of the dues for the current year of insured’s death. Held, that each policy year commenced on October 1st, and not on January 1st, and hence the company was entitled to deduct the balance of the premium for the year ending October 1, 1911, since if any doubt as to the date of the beginning of th'e policy year was created by the change in the time of paying the premiums, it was removed by the certificate mentioned.
    [Ed. Note. — Eor other cases, see Insurahce, Gent. Dig. §§ 1307, 1308; Dec. Dig. § 523.]
    2. Insurance (§ 599) — Payment oe Loss-Waiver oe Objections to Medium oe Tender.
    Where an insurance company sent to a beneficiary under a policy a check for the amount due, which she retained without objection, except an unfounded objection that it was insufficient in amount, this constituted a sufficient tender, and prevented the recovery of interest.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1495, 1496; Dec. Dig. §, 599.]
    Error to District Court, Fayette County; Frank S. Roberts, Judge.
    Action by Mrs. Isolde Zapp, executrix, against the Fidelity Mutual Life Insurance Company of Philadelphia, Pa. Judgment for plaintiff, and defendant brings error.
    Affirmed in part, and reversed and rendered in part.
    Locke & Locke, of Dallas, for plaintiff in error. C. D. Krause, of La Grange, for defendant in error.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   Statement of Facts.

KEY, C. J.

The nature and result of this suit, and the controlling question and the facts relating thereto, are correctly stated as follows in plaintiff in error’s brief:

“This suit was brought November 3, 1911, by Isolde Zapp, as executrix of the will of H. W. H. Zapp, deceased, against the Fidelity Mutual Life Insurance Company of Philadelphia, Pa., to recover $5,000 principal, interest at 6 per cent, from May 9, 1911, $600, penalties, and $560, attorney’s fees, on a policy issued by said company on the life of said I-I. W. H. Zapp. The company admitted liability on the policy, but claimed that the amount due thereon was only $4,-877.90, the difference of $122.10 consisting of the balance of the premium for the current year, and alleged that immediately after receiving, on February 9, 1911, proofs of the death of the said H. W. H. Zapp, it issued and transmitted on February 11, 1911, to the plaintiff by mail its check for said sum in her favor drawn on the Real Estate Trust Company of Philadelphia, Pa., and that said check ever since had been retained by her. It offered upon the return of said check to pay said money into the registry of the court. The plaintiff acknowledged the receipt and retention of the check, but denied that she had accepted the same, and in her pleading offered to return it to the company. The controversy related to the deduction of $122.10 from the face of the policy, but on it depended the claim of the plaintiff to $600, penalties, and $560, attorney’s fees. The case was tried by the court without a jury, and resulted in a judgment in favor of the plaintiff for $5,000 principal, interest from May 9, 1911, $600, penalties, and $560, attorney’s fees, as prayed for. The defendant moved for a new trial, and upon the overruling of the same, prosecuted a writ of error to this court for the revision of the judgment.
“First assignment of error: The court erred in not rendering judgment in favor of the defendant.
“First proposition: The defendant was not liable under the policy for more than-$4,877.90.
“Point 1: The policy provided for the deduction of the balance of the dues for the current year of the death of the insured.
“Statement: The promise of the defendant under the policy was to pay the sum of $5,000 ‘less the balance of the dues for the current year of the death of the insured, and any indebtedness of the member or beneficiary to’ the company.
“Point 2: The current year of the death of the insured was the policy year, commencing October 1, 1910, and ending September 30, 1911.
“Statement: The provision of the policy regarding the payment-of dues or premiums is as follows: ‘The Fidelity Mutual Life Association of Philadelphia, Pennsylvania, in consideration of the application for this policy, which is made a part hereof, and a'copy of which is hereto attached, and the payment to said association of sixty-nine and 8o/100 dollars for the mortuary and general funds, and eighty-six and ss/ioo dollars as an advance insurance fund, on or before the first day of October in every year, for the period of twenty years from October 1, 1895, does hereby,’ etc.
“The policy is dated August 7, 1895. It also contains a provision as follows : ‘A premium other than the above named will be accepted according to the association’s table of rates, and the same will continue this policy in force for such time as may be mentioned in the receipt for such payment, which must be signed as aforesaid.’
“Shortly after the date of the policy, the insured paid to the defendant the sum of $4.13 as ‘preliminary’ dues until October 1, 1895. On October 2, 1895, the insured paid the ‘annual’ dues of $171.15, due October 1, 1895, and carrying the policy to October 1, 1896. On October 1, 1896, the insured paid a quarterly premium of $40.70 carrying the policy to January 1, 1897. On December 10, 1896, the insured wrote to A. J. Brown, the defendant’s agent at Dallas, Tex., as follows:
“ ‘Fayetteville, Texas, Dec. 10, 1896. Mr. A. J. Brown, Dallas, Tex. — Dear Sir: Can 1 pay you my premium for one year straight now from Jan. 1st? If not & I pay for the balance 9 mos. will you er. me with- the amt I had to over pay you for the last three mos. Consider my premium almost too high at regular rate & if i have to pay additional, am thinking seriously of dropping out of your co. when my time expires, please let me hear from you at your convenience oblige Yours truly, H. W. H. Zapp.’
“The defendant’s agent replied on December 12, 1896, as follows:
“ ‘Dec. 12, 1896. Mr. H. W. H. Zapp, Esq. Fayetteville, Texas — Dear Sir: Replying to your inquiry will say that when your premium falls due on January 1, you can pay an annual premium of $156.15, or continue paying $40.70 per quarter. All insurance pre-minums are due yearly in advance, but when the insured elects to pay quarterly or semiannually, the interest is added to the quarterly or semiannual for the part not paid, which makes it larger for the year than paying an annual premium. If you pay an annual on the first of January, and afterwards want to fall back to quarterly payments, you can do so. Our company allows a policy holder to change his payments to suit his convenience. We think, upon examination, that you will not find any company that issues a policy of this kind at a lower rate than ours, considering the advantages of the policy. We inclose herewith some literature for your perusal. Yours truly, A. J. Brown, General Manager H.’
“On December 28, 1896, the insured wrote the defendant’s agent as follows:
“ ‘Fayetteville, Texas, Dec. 28, 1896. Mr. A. J. Brown, Dallas, Texas — Dear Sir: Inclosed find M. O. for $156.15, amt. of dues for one year on my policy, please forwd. receipt oblige Yours truly, H. W. H. Zapp.’
“On December 29, 1896, the defendant’s agent replied:
“ ‘Dec. 29, 1896. Mr. H. W. H. Zapp, Fay-etteville, Texas — Dear Sir: Your favor of the 28th inst. inclosing P. O. order for $156.-15 in payment of annual premium on policy No. 061008, due Jany. 1. As we have a quarterly receipt for your policy, we will return it to the home office with your remittance, and request them to send you an annual receipt, direct from that office. Yours truly, A. J. Brown, General Manager.’ -
“The defendant issued to the plaintiff a receipt in form as follows:
“Face of Receipt: ‘The Fidelity Mutual Life Association of Philadelphia, Pa. Philadelphia, 1 — 2—1897. Received from Herman W. H. Zapp, of Fayetteville, Tex., owner of policy No. 061003 one hundred fifty six 15-100 dollars in payment of annual dues, payable and due on the first day of January, 1897, which pays such dues up to the 1 day of Jan. 1898. (For terms of mutual agreement see application and policy.)
“ ‘Notice to Policy Holders. This receipt to be valid must be signed by the president and treasurer of the association and in exchange therefor cash or its equivalent be given by the holder of the policy on or before date payment is due. And when payment hereon is made to an authorized agent, such agent must countersign at the date of paying as an evidence of payment to him. O. •O. Bosbyshell, Treasurer. L. G. Fouse, President.
“ ‘Countersigned at - on the - day of-, 18-.
“‘$156.15. -, Agent.’
“Indorsed on face of receipt: ‘Paid Jan. 2, 1897, Home Office. T. H. Eaton.’
“Thereafter, on or about January 1, 1898, January 1, 1899, and January 1, 1900, the insured paid to the defendant a premium of $156.15 and a receipt of substantially the same form as that set out above was executed and delivered to him. Similarly, on or about January 1, 1901, January 1, 1902, and January 1, 1903, the insured paid a premium of the same amount to the defendant, and a receipt, differing in that it omitted the date to which the policy was carried by the payment, but otherwise substantially the same, was executed and delivered to him. Under date of January 8, 1903, the defendant wrote to the insured as follows:
“ ‘Philadelphia, January 8, 1903. Guaranteed Certificate No. 061003. Mr. Herman W. H. Zapp, Fayetteville, Texas — Dear Sir: This company, as you are doubtless aware, changed to the legal reserve basis August, 1899, and since then your policy has been protected by the legal reserve. Inasmuch as ;the safety clause has been entirely eliminated thereby; we think it only right and proper that you should have a certificate to that effect and an explicit statement of guaranteed values, which we herewith inclose. Kindly attach the certificate to your policy and acknowledge receipt of same on the inclosed postal card. The premiums called for in the policy, which you no doubt know are much lower than usually charged for the same kind of a policy, will continue the same. Yours truly, Samuel B. Wylie, Actuary, per G. Enc. 2.’
“With said letter the defendant inclosed a certificate duly executed in form as follows:
“ ‘Age entry 38. Amount $5000. Legal reserve certificate to be attached to policy No. 61003. This is to certify that policy No. 61003, issued by the Fidelity Mutual Life Association of Philadelphia, now the Fidelity Mutual Life Insurance Company, on the 7th day of August, 1895, on the life of Herman W. H. Zapp, of Fayetteville, Texas, has been placed on the legal reserve basis, the company maintaining the full reserve required by law thereunder, and it is agreed that the insured under said policy, by and in consideration of the acceptance hereof, is guaranteed the following benefits:
“ ‘Premiums. — That the safety clause named in said policy is hereby annulled and canceled, and that said policy shall become full paid at the end of the premium-paying period, or October 1, 1915.
“ ‘Surplus.- — The said policy shall, on October 1, 1915, share in the surplus contributed by policies of its class, according to its contribution to such surplus when its distributive share of same as determined by the company, shall be converted annually into reversionary dividend additions.
“ ‘Loan Value. — Within sixty days after receipt of written application, the company will grant, in conformity with its rules then in force, a cash loan, with interest in advance at a rate not exceeding six per cent per annum of the amount stated in the table below, corresponding to the number of completed policy years from October 1, 1895, to date of loan, provided that premiums have been duly paid to the anniversary of said date next succeeding the date when loan is made.
“ ‘Cash Value. — If the said policy and this agreement be legally surrendered on any anniversary of October 1, 1895, the company will pay as a cash surrender value the amount stated in the table below corresponding to the number of completed policy years, together with the distributive surplus (after the date mentioned in surplus clause) as then apportioned and the present worth of the dividend additions, less any loans thereon, or other indebtedness to the company.
“ ‘Nonforfeiture.- — After premiums have been paid for three years from October 1, 1895, then, provided the policy be free from debt, upon the nonpayment of any subsequent premium when due, the insurance will b'e extended without participation in profits for the time stated in the table below, corresponding to the number of full years elapsed since said -date, computed from the date of nonpayment of premium, or if said policy and this agreement be legally surrendered within three months. from date such premium became due, the company will issue in exchange a full paid policy for the amount stated in the table below, corresponding to the same number of full years elapsed. [Here follows a table of the loan, cash and surrender values of the policy.]
“ ‘Reversionary additions proportionately increase the loan and cash values. Should any indebtedness exist values shall be diminished proportionately. Values for years not stated will be furnished on application. Policy years are counted from October 1, 1895. All provisions of said policy inconsistent or in conflict with this agreement are hereby canceled.
“ ‘In witness whereof the Fidelity Mutual Life Insurance Company has caused the signatures of its president and treasurer to be affixed to this contract at its head office in the city of Philadelphia, attested by its secretary, this eighth day of January, 1903. L. G. Fouse, President. Attest: W. S. Campbell, Secretary. O. C. Bosbyshell, Treasurer.’
“On January 11, 1903, the insured received said letter and certificate attached, and attached said certificate to the policy in suit, and replied to the plaintiff as follows:
“ ‘Jan. 11, 1903. L. G. Fouse, President The Fidelity Mutual Life Insurance Co., Philadelphia. Dear Sir: This is to certify that I have received certificate guaranteeing the values on the legal reserve basis under my policy No. 061003 dated August 7, 1895, and that I have attached and filed the same with my said policy. Yours truly, W. W. H. Zapp.’
“Thereafter, on or about January 1, 1904, January 1, 1905, January 1, 1906, January 1, 1907, January 1, 1908, January 1, 1909, and January 1, 1910, the insured paid to the defendant a premium of $156.15, and the defendant executed a receipt of the form last above mentioned.
“In December, 1910, the defendant sent to the plaintiff a notice', reading substantially as follows:
“Face of notice:
“ ‘L. G. Fouse, President, F. X. Quinn, Treasurer. Philadelphia, Dec. 6, 1910. The annual premium on your policy toill be due Jan. 1, 1911, payable to the Fidelity Mutual Life Insurance Company, at its head office, 112-114-116, North Broad street, Philadelphia, Pa.
Amount of Premium.$156 15
Cash Due.$156 15
“ ‘Remit by bank draft, post office or express money order, payable to the Fidelity Mutual Life Insurance Company, the cost of ‘transmission must be paid by the remitter.
“ ‘To Hermann W. H. Zapp, Fayetteville, Fayette Co. Tex. 061003 — 5. If payment called for in this notice is not made when due, the said policy, unless otherwise provided by its terms, will be void, and all payments thereon will become forfeited. A forfeited policy can be reinstated only upon execution of a revival contract, and approval of same by the company.’
“Printed across one end of notice: ‘Bring this notice with you, or send it with remittance. See other side.’
“Back of notice:
“ ‘Notice to Policyholders.
“ ‘The sending of this notice is not a waiver of any forfeiture, and no payment made in pursuance of it shall be valid if policy be not in force on due date stated herein, or if made to any person or agent other than designated herein, unless in exchange for receipt with the signatures of the president and treasurer affixed, and countersigned by the person to whom payment is made.
“ ‘All premiums are due and payable at the head office of the company, unless otherwise directed in writing, but may be paid to an authorized agent or collector on or before the date when due, in exchange' for a receipt with the signatures of the president and treasurer affixed, to be countersigned by the authorized agent or collector to whom payment is made as evidence of such payment to him.
“ ‘No agent of the company or any other person on behalf of the company has any power or authority to make or modify any contract of insurance, to grant credit or extend time for paying any premium or to waive any forfeiture or to bind the company by making any promise or by making or receiving any representation or information. Such powers can only be exercised in writing by the president, vice president, actuary, or assistant actuary of the company at its head office, and cannot be delegated.
“ ‘Is your address as given on the reverse side correct? (Answer yes or no) If you fail to answer this question, we will assume that the address as it appears on the books of the company is correct. If you answer no, then give correct address on line below.
“ ‘(To be signed by the insured.)’
“The insured died December 20, 1910. The claim of the defendant is that the ‘current year’ of the death of the insured was the policy year from October 1, 1910, to September 30, 1911; that only one-quarter of this period, to wit, from October 1, 1910, to December 31, 1910, was paid for, and that the premium for the remaining three-quarters, to wit, $122.10, was proper to be deducted under the terms of the policy.
“ ‘February 11, 1911. In re 0—61003—Zapp. Mrs. Isolde Zapp, Fayetteville, Texas. Dear Madam: We inclose our mortuary check No. 8711 for $4,877.90, payable to your order as temporary administratrix of the estate of Hermann W. H. Zapp, deceased, insured under policy 0 — 61003. The check is in settlement of claim for $5,000 from which we have deducted $122.10, balance of premium still due the company in order to complete the payments for the current policy year. Please see that the accompanying release receipt, properly dated, signed and witnessed, is, with the policy, attached to our cheek when same is forwarded through bank for collection, as the Real Estate Trust Company will not honor such check unless accompanied by both policy and receipt. Yours truly, J. R. Sykes, Assistant Treasurer.’
“The plaintiff’s attorney replied as follows:
“ ‘Law Office of C. D. Krause, La Grange, Texas. Feb. 27, 1911. Policy No. 61003, Hermann W. H. Zapp. The Fidelity Mutual Life Insurance Company, Philadelphia, Pa.— Gentlemen: Yours of February 11th, addressed to Mrs. Isolde Zapp, widow of the insured H. Wi. H. Zapp, together with inclosures, has been referred to me. Now, I cannot understand why you should deduct from the amount due on this policy, viz.: $5000, the sum of “$122.10, balance of premium still due the company in order to complete the payments for the current policy year,” as I am in possession of all the receipts issued by your company to the insured, showing payments as follows: August 24, 1895: “Preliminary dues, payable and due on the 1st day of Aug. 1895, which pays such dues up to the 1st day of Oct., 1895, $4.13.” Oct. 2, 1895: “Payment of advance fee and annual dues, payable and due on the 1st day of Oct. 1895, which pays such dues up to the 1st day of Oct., 1896, $171.15.” Oct. 8, 1896 (receipt from Home Office): “Payment of quarterly dues, payable and due on the first day of October, 1896, which pays such dues up to the 1st day of Jan. 1897, $40.70.” And thereafter showing annual payments of premiums of $156.15 the last of which is dated “Head Office, Philadelphia, Pa. Dec. 28, 1909,” and signed “L. M. Jones, Cashier,” which was in payment for the premium due for the year from Jan. 1, 1910 to Jan. 1, 1911. Now I have advised Mrs. Zapp that, undoubtedly, an error has been committed by some one in the employ of your company, and that if the matter was drawn to your attention and explained, you would promptly rectify the error, and send her additional draft for the balance of $122.10, due her on the policy. I therefore ask that you at once take up this matter and forward to Mrs. Zapp or myself, additional draft for the $122.10, together with another receipt for Mrs. Zapp to execute in lieu of the one you have sent her, and as soon as same have been received, we shall forward same, together with the other draft, through bank for collection, accompanied by the policy, the receipt and receipts for premiums paid. Mr. Zapp, as you know, died on Dee. 20, 1910, eleven days before he should have had to pay another premium. Please take this matter up at once, and give it immediate attention. Yours very truly, C. D. Krause.’
“On March 5, 1911, the defendant answered:
“ ‘March 6, 1911. In re 61003 — Zapp. • Mr. C. D. Krause, La Grange, Texas — My Dear Sir: We are in receipt of your favor of the 27th ult. and replying would call your attention to the fact that this policy was issued with short term insurance from August 7, 1895, to October 1, 1895, which date becomes the anniversary date of the policy. You are possibly aware that all life insur-anee premiums are calculated on an annual basis, and therefore, inasmuch as the premiums on this policy were only paid until January 1, 1911, three quarterly premiums of $40.70 each are still due this company in order to complete the current policy year. Our deduction of this amount is therefore proper, and no error has been made. Tours very truly, H. H. Eouse, for Supt. Claim Dept.’
“The plaintiff’s attorney replied March 28, 1911, as follows:
“ ‘March 28, 1911. Daw Office of O. D. Krause, La Grange, Texas. In re 61003— Zapp. The Fidelity Mutual Life Insurance Company. Philadelphia, Pa. — Gentlemen: Replying to yours of the 6th inst. relative to above policy, I wish to say that I am fully aware that all life insurance premiums are calculated on an “annual basis,” but inasmuch as this “annual basis” was changed in December, 1896, and you thereafter on Jan. 2, 1897, and thereafter regularly annually, issued your receipts to Mr. H. W. H. Zapp, the insured, showing that you at all times received and accepted “annual premiums” on this policy on the 1st day of January of each year, I contend that you have changed the “annual basis” or “anniversary date” for the payment of premiums to January 1st, and inasmuch as Mr. Zapp died on December 20, 1910 — eleven days before such annual premium became due for the year 1911 — and your call upon him for payment of this premium reads “The annual premium on your policy will be due Jan. 1, 1911” — I shall insist upon the payment by your company to the beneficiary of the balance of $122.10, deducted by you when you sent the draft. Should you fail to make prompt remittance for this balance or fail to send draft covering the whole amount due, $5000 in lieu of the draft sent, I shall, after the expiration of ninety days after the receipt by you of the proofs of death, of which you acknowledge receipt of Feb. 9th, 1911, file suit against your company for the whole amount due upon the policy, for the twelve per cent damages upon the policy, for the twelve per cent damages on the amount thereof, and ten per cent attorneys fees for the prosecution and collection of the claim as provided in art 3071 of our Civil Statutes. I shall await your action until April 15th, 1911, and if by that time the matter has not been satisfactorily settled will bring suit as stated. I trust you will see the justness of my contention, and make prompt remittance. Tours very truly, C. D. Krause.’
“The defendant responded on April 4, 1911, as follows:
“ ‘April 4, 1911. In re 61003 — Zapp. Mr. C. D. Krause, La Grange, Tex. — My Dear Sir: Tour letter of the 28th ult. regarding settlement of claim under the above numbered policy has been received and contents noted. Replying would say that the time and manner of payment of premiums has nothing whatever to do with the anniversary date of the issuance of the policy. That remains fixed throughout the life of the policy. This policy was issued August 7th, 1895, with a provision for two months term policy to October 1st, 1895, and provided for the payment of twenty annual premiums on the first day of October of each year, or in lieu thereof quarterly or semiannual premiums as provided by the terms of the contract. The anniversary, therefore, has been at all times October 1. Under your construction, if the anniversary date has been changed, then the insured would lose the benefit of the one-quarter premium which was paid the second year, and had the policy continued in force would have been required to pay twenty full years’ premiums, in addition to such one-quarter premium. Such construction is so obviously incorrect that you have doubtless overlooked this situation in the assertion of your present claim that the anniversary date was changed. I trust that upon further consideration you will see that the deduction of $122.10, being the remaining quarterly premiums for the policy year beginning October 1st, 1910, is entirely proper, and that by permitting the insured to pay one quarterly premium and thereafter annual premiums the company did not increase the obligation of the insured to pay more than twenty annual premiums, or change its own rights to deduct the unpaid portion of the premium for the current contract year. Tours very truly, F. H. Calkins, Supt. Claim Dept.’
“It was admitted by the plaintiff in open court that there was no communication, either oral or written, between the plaintiff, or any one in her behalf, and the defendant since the letter of April 4, 1911, just copied, and prior to the filing of the suit seven months afterwards, November 3, 1911.
“No objection was made to the defendant, except such objections as are set forth in the foregoing letters; and such letters are the only communications of any kind that passed between the plaintiff, or any one representing her, and the defendant from the death of the insured until the institution of the suit. The check was never returned or offered to the company prior to the date of trial, December 22, 1911.”

Opinion,

1. On the foregoing facts, which are undisputed, we hold as matter of law that the beginning of each policy year on the policy in question was October 1st; and as only a portion of the premium for the current year of Mr. Zapp’s death had been paid, the insurance company had the right, by the terms of the contract, to deduct the unpaid portion of the premium for that year, which left, as contended by plaintiff in error’s counsel, only $4,877.90 due upon the policy. That the 1st day of October of each year was intended as the beginning of each premium or policy year is reasonably certain from tbe terms of tbe original contract; and, if tbe subsequent conduct of tbe parties raised any doubt upon that subject, sucb doubt was removed by tbe supplemental contract, wbicb distinctly stated that tbé policy years were to be counted from October 1, 1895, and to end October 1, 1915; and then, to remove all possible doubt, it was distinctly stated: “Policy years are counted from October 1, 1895. All provisions of said policy inconsistent or in conflict witb tbis agreement are hereby canceled.”

2. We also sustain plaintiff in error’s contention that its prompt sending of a check for $4,877.90, and defendant in error’s retention of tbe same without objection, except that it was insufficient in amount, eonstitut-ed a sufficient tender of tbe sum due, and therefore defendant in error was not entitled to recover interest. That proposition is supported by reason and justice, and, in tbe main, by tbe following authorities cited by counsel for plaintiff in error: Greenleaf on Evid. § 601; Bonaparte v. Thayer, 95 Md. 548, 52 Atl. 496; Walsh v. St. L. Exposit. & Music Hall Ass’n, 101 Mo. 534, 14 S. W. 722; McGrath v. Gegner, 77 Md. 331, 26 Atl. 502, 39 Am. St. Rep. 415; Ricketts v. Buckstaff, 64 Neb. 851, 90 N. W. 915; Mitchell v. Vermont Copper Mining Co., 67 N. Y. 280; Shay v. Callanan, 124 Iowa, 370, 100 N. W. 55; Hidden v. German Savings & Loan Co., 48 Wash. 384, 93 Pac. 668; Gradle v. Warner, 140 Ill. 123, 29 N. E. 1118; Polglass v. Oliver, 2 Cromp. & J. 14; Bootbroyd v. Board of Com’rs, 43 Colo. 428, 97 Pac. 255; Thompson v. St. Charles Co., 227 Mo. 220, 126 S. W. 1044; Bessling v. Hoyle & Bro., 1 Tex. App. 117; Beatty v. Miller, 47 Ind. App. 494, 94 N. E. 897.

3. As tbe right to reóover tbe statutory penalty and attorney’s fees is dependent upon refusal to pay tbe amount due, after demand has been made therefor, and as plaintiff in error promptly tendered tbe amount that was due before any sucb demand was made, it necessarily follows that defendant in error was not entitled to recover any penalty or attorney’s fee.

4. For tbe reasons above stated, tbe judgment of tbe trial court, awarding to tbe plaintiff $600 interest, $600 as a penalty, and $560 as attorney’s fees is reversed and set aside, and tbe balance of tbe judgment is reformed so as to reduce tbe total amount of recovery to $4,877.90, to bear interest at tbe rate of 6 per cent, per annum from December 21, 1911, tbe date of tbe judgment rendered by tbe trial court, and as thus changed tbe judgment referred to is affirmed. But tbe judgment so affirmed in favor of tbe plaintiff is not to be enforced until she has returned to tbe defendant tbe check delivered by tbe latter to her for tbe sum of $4,877.90.

Reversed and rendered in part and in part affirmed.


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    PECOS & N. T. RY. CO. v. COFFMAN.
    (Court of Civil Appeals of Texas. Amarillo.
    May 24, 1913.
    Rehearing Denied Nov. 1, 1913.)
    1. Damages (§ 157) — Pleading.
    Under a general allegation of damage, evidence is admissible of all damages wbicb naturally and necessarily result from tbe wrongful act, but if tbe damages sustained do not necessarily result from tbe negligent act, plaintiff must allege the particular damage, unless the law infers such damage from the facts alleged, [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 429-438, 440, 447, 449-453; Dec. Dig. § 157.]
    2. Damages (§ 158) — Pleading.
    Under allegations of the petition in a personal injury action that the injury caused the concussion of plaintiff’s spine, and of the nerves and muscles connected therewith, causing the loss of sensation and mental and physical suffering, evidence of the nature of traumatic hysteria, and that plaintiff might be so affected, was admissible.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§i 441-444; Dec. Dig. § 158.]
    3. Appeal and Eeeoe (§ 978) — Review — Disceetion op Court — New Tbial — Misconduct of Juey.
    The exercise of a trial judge’s discretion in granting or refusing a new trial for misconduct of the jury, under Acts 29th Leg. c. 18, is of the same nature as the discretion vested in the trial court in other cases, and that court can reach a safer conclusion on the question by examining the jurors than can the appellate court from the record.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3866-3870; Dec. Dig. § 978.]
    4. Appeal and Eeeoe (§ 1002) — Findings— Conflicting Evidence.
    A finding of fact on a controverted issue is binding upon the appellate court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    5. Evidence (§ 127) — Declaeations as to Pain.
    In an action for damages for personal injuries, statements of plaintiff as to his pain and suffering made to nurses, etc., were admissible in evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. |§ 377-382; Dec. Dig. § 127.)
    6. Appeal and Eeeoe (§ 216) — Objections at Trial — Requests foe Instructions.
    Any error in an instruction in a personal injury action to find for plaintiff if the jury found that he received “any injuries as alleged in his petition,” in that it did not limit plaintiff’s right to recover to the injury specifically alleged, was not an error of omission, and defendant cannot complain thereof in absence of .a requested instruction calling the court’s attention to the matter.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216.]
    7. Trial (§ 251) — Instructions—Applicability to Issues.
    A request to charge in a railroad passenger’s action for personal injuries, which excluded traumatic hysteria as an element of recovery when it was properly an issue in the case, was properly refused.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 587-595; Dec. Dig. § 251.]

      8. Carriers (§ 318) — Passengers—Actions— SUFFICIENCY OE EVIDENCE — NEGLIGENCE..
    Evidence in a railroad passenger’s action for personal injuries by running into an open switch held to show negligence by the trainmen.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.]
    9. Appeal and Error (§ 1056) — Harmless Error — Exclusion oe Evidence.
    In an action for injuries to a railroad passenger by running into an open switch, any error in excluding evidence that the switch lock was found a certain distance from the switch target after the accident was immaterial, in view of the showing of negligence in running the train into the switch.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.]
    10. Appeal and Error (§ 1052) — Harmless Error — Admission oe Evidence.
    Appellant cannot complain of admission of evidence, where the same evidence was given by the same witness afterwards without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dee. Dig. § 1052.]
    11. Evidence (§ 550) — Expert Testimony.
    A physician, who had never seen plaintiff after he was injured, but based his testimony on the depositions of two other experts, was improperly allowed to testify that a competent masseur in treating plaintiff would be able to observe symptoms of paralysis or grave physical defects; the witness not having himself observed plaintiff’s condition.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2366, 2367; Dec. Dig. §, 55,0.]
    12. Trial (§ 426) — Curing Error — Compromised Verdict.
    On the evening before judgment was rendered the jury divided the aggregate of the individual amounts favored by each juror, the quotient being $13,600, and the next morning some of the jurors favored $14,000 and some $13,000, but it was finally agreed that the disagreement between $13,000 and $14,000 should be determined by a majority vote, which was done; the majority favoring a $14,000 verdict. Held, that any impropriety in thus arriving at the verdict would be cured by accepting plaintiff’s proffered remittitur of $1,000.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 973; Dec. Dig. § 426.]
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Action by J. J. Coffman against the Pecos & Northern Texas Railroad Company. From a judgment for plaintiff, defendant appeals.
    Modified and affirmed.
    Madden, Trulove & Kimbrough, of Amarillo, Terry Cavin & Mills, of Galveston, and Carl Gilliland, of Hereford, for appellant. Knight & Slaton, of Hereford, and Capps, Cantey, Hanger & Short and D. B. Tram-mell, all of Ft. Worth, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HENDRICKS, J.

This is the second appeal of this cause, the first having been made to the Court of Civil Appeals of the Second District, from the district court of Deaf Smith county, reported in 56 Tex. Civ. App. 472, 121 S. W. 219; the judgment of the trial court, for the sum of $17,500, upon that appeal having been reversed by said appellate court.

The appellee claims to have received certain injuries, while a passenger upon one of appellant’s trains, alleging the negligence of appellant in running into an open switch and colliding with some freight cars on the siding, and claiming that by the force of the collision he was thrown from the seat in which he was sitting and against the back of another seat and to the floor of the coach.

First. By different specifications of error, and in different phases, the appellant, railway company, in its first, second, third, and fourth assignments of error, assails the action of the district court in permitting “traumatic hysteria” to become an issue in the cause as a consequential injury, principally contending that the general allegations of plaintiff’s injury are not sufficiently specific to comprehend the proof of the issue. We find from this record that “traumatic hysteria” is a specific disease of the mind, often produced from shock, and the injured person may suffer from loss of sensation as a result thereof, the' same as in paralysis, to the extent of producing anesthesia of the body, believed by the plaintiff to be affected, as that the sufferer in a developed case, as indicated by this record, may stand the application of tests which in a normal body would cause flinching and pain; and, as expressed by one expert, you may “prick him with a pin without any demonstration, just the same as a man with a paralyzed nerve.” Whether functional, or a seated disease; whether with or without a pathoíogical basis, it is clear from this record, as expressed by Dr. Maguire, an expert witness for appellant, traumatic hysteria “often follows a shock, injuries, or accidents or things of that kind,” and “persons suffer a loss of sensation and absence of power in the motor nerves to different portions of the body from that ele-' ment superficially, very similar to that which follows a destruction of the nerve cells, sometimes both of motion and sensation”; and, as expressed by Dr. Herzel, appellee’s witness, traumatic hysteria “is a serious trouble, and affects both motor and sensuory nerves * * * and is hysteria produced from an injury, * * * and they use the word ‘traumatic’ because the man may be in an accident, and he receive a fright at the same time, and in such hysteria he refers to that particular part of the body, but the disease is in the brain, and it remains with him for years.” The testimony of this disease was principally injected into this record by the appellant, as it believed at the trial, and contends now', that evidence of such a complaint was not within the scope of appellee’s pleadings sufficiently to make a presentation of such issue to the jury, and presented by appellant at the trial upon the theory, if appellee was telling the truth as to his sensations, aches, and his pains, he may have been suffering from such a complaint, and not from any “serious spinal cord ailment described by his doctors as emningio mielitis, and sclerosis of the cord,” and did not begin to object to the testimony as supporting an issue in the cause until Dr. Herzel, one of appellee’s witnesses, on direct examination, in rebuttal, testified rather abstractly, as shown by this record, in regard to this specific complaint. However, whatever the source of the testimony, when the matter finally developed, the solution of it as an admissible issue in the cause is referable to the sufficiency of appellee’s pleadings.

The general rule appropriate to this subject is: “The general allegation of damages will suffice to let in proof and to warrant a recovery of all such damages as naturally and necessarily result from the wrongful act complained of. * * * But where damages actually sustained do not necessarily result from the act complained of,' and consequently are not implied by law, the plaintiff must state in his declaration the particular damage which he has sustained, for notice thereof to the defendants”—and Justice Stay-ton, in the same ease, in illuminating the principle, further says: “The rule, however, is satisfied when from the facts stated the law infers other fact or facts; for whatsoever the law infers from a given state of facts, the adverse party is presumed to know, and must take notice of, whether it is specially pleaded or not.” Railway Company v. Curry, 64 Tex. 87.

In the ease of Rapid Transit Ry. Co. v. Allen, 54 Tex. Civ. App. 245, 117 S. W. 486, the Dallas Court of Civil Appeals had under consideration the testimony of an expert that the injured plaintiff was a “mental wreck.” Justice Tolbert said in that ease: “Among the cases of the Supreme Court of this state Railway Co. v. McMannewitz, 70 Tex. 73 [8 S. W. 66] especially seems to be in point; for, if a heart disease can be necessarily or legally implied from injuries to the spine, chest, head, and limbs, we see no reason why the mental condition in which the physician says he found the appellee may not likewise be inferred or implied from her shattered nervous system, and the injury alleged to her head and spine.” In the case of International & Great Northern Railway Co. v. Pina, 33 Tex. Civ. App. 680, 77 S. W. 979, appellee’s allegations were that he was greatly bruised, wounded, and mangled on his head, arms, abdomen, back, and legs, and the contention of appellant in that ease that the allegations were not sufficient to permit proof of fits' and spasmodic attacks, as a result of a congestive condition of the brain, also the evidence of impairment of his eyesight, was overruled. In this latter case, Justice Fly quoted the case of Tyson v. Booth, 100 Mass. 258, where proof of fits, without a special allegation, was permitted under the general allegation of an injury to the spine, chest, head, and limbs. We gather from the Supreme Court of Indiana, in the case of Oölitic Stone Co. v. Ridge, 174 Ind. 558, 91 N. E. 944, this statement of the negative result of the general rule, as follows: “The authorities affirm that the rules of pleading do not exact that every effect or result due to a particular injury, or injuries, shall be set forth in the complaint by the plaintiff in an action like this in order to recover on account thereof.” In that cause proof of a cough, existent for 'two years, and impairment of the appellee’s memory, not specially alleged, was admissible under general allegations of injury to the body, and the Indiana court further said that such ailments were “results which may be naturally and probably traced to or arise out of the facts alleged that he was injured in his head, breast, back, and shoulders,” etc. In this cause appellee alleges that by reason of the sudden jar of the collision, and having been thrown against the seat and floor, he sustained very severe injuries in his back, and side and thereby received and “sustained a concussion and other injuries to his spine, his spinal column, and the nerves and muscles thereof and connected and influenced and controlled therefrom, * * * and hag suffered from loss of sensation, and the motor nerves in the lower part of his body * * * have become permanently injured, which has occasioned * * * partial paralysis,” further alleging a progression of his injuries. He also states, very pertinent we think to the question involved, that he has “suffered from the time of his said injury at various times, both physically and mentally, and all of said injuries and sufferings have been the result of the negligence of the defendant.” The allegations of the concussion to the spine and of the nerves and muscles in connection therewith,- and the loss of sensation and the condition of his motor nerves and of the mental and physical suffering, with the proof that “trau-' matic hysteria” is often resultant from a shock to the nervous system, and the indication here of a loss of sensation of portions of the lower part of appellee’s body, we think sufficiently answer the objections of appellant as to the particular controversy. We presume the principal reply would be that this complaint is not a real, but an imaginary one; if made, the logic is only partially correct, for if the appellee’s condition is proven, whether considered as a nervous or mental affliction, or a compound of both, it is the result of a shock sustained at the time of the concussion, which is clearly alleged, and the whole testimony rather pointedly indicating that it may often result from the concussion alleged and proven. On the whole we think the petition is sufficiently comprehensive to admit the proof, and we overrule the first, second, third, and fourth assignments of error upon this question.

Second. The thirteenth and fourteenth assignments of error raise the question that the reading of a certain article in a local paper by some of the jury, in which a statement was made that a former verdict for $17,500 was rendered in the case, improperly influenced the jury in the present case. A careful consideration of the evidence on this matter fails to show any effect upon the jury in this respect, unless you infer it from the knowledge of the amount of the former verdict having been obtained by some of the jury. One of the jurors, who had read the article, said he had heard some of the other jurors say they had read it, and after the court instructed them not to read the local papers there was no further mention of it, and this juror, Carl, who had read the article, said it did not “cut any figure” with him in rendering the verdict. One of the jurors, Harris, remarked in the presence of another juror, Gass, and possibly in the presence of others, as appellant puts it, that upon a former trial plaintiff was awarded $17,000, but Harris was not shown to have read the paper. This was all before they had begun to deliberate upon the verdict. Gass at first was opposed to any amount, and then favored a verdict for $5,000, before he finally agreed to the final verdict, and said that the remark of Harris did not affect him. The juror Bennett, who testified, said that he had not heard anything about the matter from any source; and the juror Meggert, who also testified, stated that the remark of Juror Harris did not affect him. Harris, who was shown to have favored a high verdict, did not testify. Under Acts 29th Leg., c. 18, where a ground of a motion for a new trial is the misconduct of the jury in matters of this kind, “a new trial may, in the discretion of the court, be granted,” which “discretion” Chief Justice Brown says, in the case of Railway Co. v. Gray, 143 S. W. 606, “is upon the same level with the discretion vested in the trial court in many instances,” and further says that the court trying the case “could form safer conclusions from examining the jurors than this court can from the record.” In that cause “one or more of the jurors stated that the plaintiff ought to have a verdict for $50,000 because the lawyers would get half,” which was acted upon by the trial' court adversely to the railway company, affirmed by the Court of Civil Appeals, and writ of error denied by the Supreme Court in an opinion as indicated. This is a different question than the one presented as to the verdict based upon an agreement to abide by the majority vote discussed in this opinion.

Third. We think the requested charge, the refusal of which is complained of in the eighth assignment, is upon the weight of the testimony; and the refusal of special charge No. 5 by the court, adverted to in the ninth assignment, is clearly harmless under the present rule, considering the whole charge, if the evidence raised such an issue. If the appellee suffered the injuries alleged, the preponderating suggestiveness of the testimony is that they are resultant from the shock and the collision, and special charge No. 6, mentioned in the tenth assignment, would have, if it had been given, excluded an issue we hold admissible; and we think the eleventh assignment of error raises a controverted issue of fact, solved by the jury, binding upon this court. The question with reference to statements made by appel-lee, as to his pain and suffering, to nurses and professional attendants, were .adverted to, and similar statements held admissible, in the former opinion in this case, and there is so much of the testimony of a similar nature admitted without objection, we hold there is no error in this respect.

The fifth and sixth assignments, assailing the charge of the court, wherein he directed the jury that if they found the negligence of the defendant, and that the plaintiff “received or sustained any injuries as alleged in his petition,” to find in his favor, are, we think, untenable; the principal criticism being that the court does not limit plaintiff’s right to recover the injuries specifically alleged. If error, it is one of omission, and appellant in his brief does not refer us to a requested instruction, calling the court’s attention to the matter. Dallas Con. Elec. St. Ry. Co. v. Motwiller, 101 Tex. 520, 521, 109 S. W. 918.

Appellant’s special charge No. 3, the refusal of which is complained of in its seventh assignment, clearly excludes traumatic hysteria as an element of recovery, and if we are correct that it was an issue in the cause, such a charge would have been error.

Eourthi. The facts in exculpation of the engineer and fireman failing to keep a lookout and negligently running into the open switch are so weak, and the testimony of the engineer and fireman, taken as a whole, in connection with the physical facts (notwithstanding the circumstances of extenuation advanced by them), are so strong, indicating negligence in running into the switch, as to practically preclude inquiry in regard to the condition of the switch, and whether the appellant was negligent in opening or permitting the same to remain open. The evidence is conclusive that the switch signal, indicating whether it is open or closed, may be seen for at least half a mile. The engineer claims his attention was distracted by a couple of loose horses driven by a man upon horseback, coming toward a crossing “at right angles to the track,” the horses being some distance, but how far is not shown, from the track when first seen; and the fireman says that at this time he was working with an ejector, although he saw the horses, but this employé is not shown to have ever looked down the track or attempted to observe the switch target during this period. The engineer testifies when he first saw the horses he made a partial application of the air in order to control the train, and, as the fireman testified, after the horses turned away from the track, the engineer released the air, “and he was then about a fourth of a mile from the end of the switch,” and notwithstanding this distance, the engine ran in upon the siding, colliding with the freight cars upon the same, at a speed of about seven or eight miles an hour; they jumping from the engine for safety. At the time the engineer released the air, a quarter of a mile away from the switch, he gaw the open switch and informed the fireman, according to his testimony, and explains that the air in the air chamber was insufficient to make an application for the purpose of stopping the train within the distance of about 1,320 feet, the receptacle for holding the air not having become recharged, which testimony of extenuation is quite unsatisfactory. He further testified “that during the half minute he was watching the horses” (at which time, according to the roadmaster’s testimony, the switch target could have been seen), * * * he was looking right ahead, looking at the horses and down the track,” and the fireman, who was partially watching the horses and working upon the ejector, during the period the switch target could have been observed never looked for the target, with reference to which it was clearly the duty of each to maintain a lookout; the arrangement of the switch signals is solely for that purpose. We do not think there was an exhibition of that high degree of care imposed upon carriers of passengers with reference to this matter; and the assignment with reference to the ruling of the court in refusing to admit the testimony by deposition of one of the railway witnesses, to the effect that the switch lock was found a certain distance from the target after the accident, if error, was, we think, an immaterial one, considering the lack of exoneration of negligence in running this train into the open switch at the speed indicated.

With reference to the assignment raising the question of the inadmissibility of certain letters written by appellee to Avery Turner, the general manager of appellant, before the institution of the suit, it is persuasive that the testimony was admissible upon the issue of good faith, — a vigorous defense by appellant having been made that ap-pellee was malingering as to his injuries; however, the same testimony by the same witness is shown to have been delivered without any objection by appellant.

We do not think the testimony of Dr. Moyer was admissible; and as to the action of the court, rejecting the testimony, complained of in the twenty-third assignment of error, this witness had delivered a prognosis, and reflected opinions as to Coffman’s condition, based entirely upon the testimony of two other experts contained in depositions which Dr. Moyer had read, without ever having examined, or ever having seen Coffman, and which was admitted by the court. After the admission of the opinions of Dr. Moyer, he was then asked, in substance, if a competent masseur, at a certain time, upon treatment of Coffman, would be able to detect any symptoms of paralysis if Coffman had been in the condition his (Moyer’s) prognosis indicated, to which he (Moyer) answered that he believed “that a masseur under such circumstances would observe symptoms of paralysis, or at least grave physical defects,” and which the court excluded. We are unable to found the admissibility of such testimony upon any principle; to permit an expert to advance an opinion as to what another man should observe, based upon a certain prognosis, which in turn is based upon testimony he has read, is an extension of expert testimony, with reference to which appellant has not pointed out the way as to its competency by any authority.

This condition is disclosed under the twelfth assignment. The evening before The judgment was rendered, the jury had divided the aggregate of the individual amounts favored by each juror, and the quotient was $13,600, but did not agree upon the result. The next morning the jury were divided upon amount, some of the jurors insisting upon $14,000 and some for $13,000, the quotient amount indicated above not having been injected into the matter, at least was not agreed upon. It was finally agreed that the difference of opinion and the difference of amount between $13,000 and $14,000 should be left to a vote — whichever amount the majority voted would constitute the verdict of the jury — and, the majority being in favor off $14,000 and so voting the minority yielded to the majority without any further discussion, and the verdict for $14,000 was returned into court. The Indiana Supreme Court held in the case of Houk v. Allen, 126 Ind. 568, 25 N. E. 897, 11 L. R. A. 706 (and we quote the syllabus which properly reflects the opinion) that: “A verdict will not be permitted to stand which is the result of an agreement between the jurors after ascertaining that they are unable to unite upon a verdict to take a certain number of ballots and render the verdict in favor of the party receiving a majority of the ballots cast; the jurors favoring the party in the minority agreeing to abide by the result.”

The Supreme Court of New Jersey, in the case of Ryerson v. Kitchell’s Executors, 3 N. J. Law, 998, announces the same principle in a three line opinion, by saying: “This transaction was unlawful; and the judgment rendered on a verdict obtained in this manner cannot bé supported.” The reasoning in the Indiana case, supra, is based upon authorities involving quotient verdicts agreed to in advance, which have always been denounced, and while the countervailing reasons, in support of the validity of this verdict are strong- — that it is the result of a compromise of conflicting opinions — the minority merely yielding to the judgment of the majority, however, deferring to the authorities, supra, we will accept the remitti-tur of 11,000, offered by appellee in this case, in the event we conclude that the verdict for $14,000 should not have been rendered in the manner indicated. It is conclusive, however, that all the jurors agreed to the lesser sum of $13,000; and, while the rule announced in the Houk Case, decided by the Indiana Supreme Court, is not satisfactory, however, under the particular facts of this case, considering the invitation of the appellee as to the remittitur, we conclude in this particular cause to pursue the following course: The case of Railway Co. v. Gentry, 98 S. W. 226, involved the verdict of a jury which was arrived at by the minority and majority members of the jury drawing straws for the amount each side was contending for; and the members of the jury contending for the maximum amount won. There was a remit-titur to the minimum amount in that case, and the cause was affirmed by the Court of Civil Appeals, and writ of error denied by the Supreme Court; and, upon the authority of that case and the statement of appellee in his brief, we reduce the judgment of the trial court to the sum of $13,000 against appellant, overruling all assignments, with the further order that all the costs of this appeal be taxed against appellee.

Modified and affirmed.


author: JENKINS, J.

text:
    LOONEY v. EVANS.
    (Court of Civil Appeals of Texas. Austin.
    Oct. 22, 1913.)
    1. Contracts (§ 248) — Modification — Intent of Parties — Question for Just.
    Defendant leased to plaintiff part of a farm for a third of the crop, agreeing also to pay him $250 for supervision of the five tenants of the rest of the farm, who were to pay half the crop. Three of the other tenants having left, plaintiff agreed with defendant to take over their land on the basis of half crops. At the end of the season settlement was made of the crops, nothing being said as to the $250. Nothing was said as to the $250 when plaintiff took over the additional land. Held, that whether plaintiff was entitled to the $250 depended on the intent of the parties when the contract was made by which plaintiff took over the abandoned land, which intent was a question for the jury.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1140; Dec. Dig. § 248.]
    2. Contracts (§ 346) — Actions—Quantum Meruiis-Pleading.
    Where defendant leased' land to plaintiff on terms different from those of his other tenants, agreeing to pay plaintiff $250 per year for services in superintending the others, and the parties modified the contract by leasing to plaintiff land abandoned by some of the others on the same terms as they had held under, a petition in an action for such services, alleging the performance of services, of supervision, that plaintiff earned much more than the amount of $250, and praying for all relief to which he might be entitled, raises the issue of quantum meruit.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1714, 1718-1751; Dec. Dig. § 346.]
    Appeal from Milam County Court; John Watson, Judge.
    Action by Mark Evans against Ike Looney. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    W. A. Morrison, of Cameron, for appellant. U. S. Hearrell, of Cameron, for appellee.

      For other cases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   JENKINS, J.

Appellant owned a farm of 650 acres in Milam county. In the fall of 1910, he made a verbal contract with appel-lee, wherein he rented to appellee 50 acres of said farm for one-third and one-fourth of the crop. The remainder of the farm was rented to five other tenants upon the “halves”; that is to say, appellant furnished the teams, tools, and feed, and these tenants ' were to cultivate the land for one-half of the crop. In said contract with appellee, a’ppellant agreed to pay him $250 for looking after his interest in the remainder of the farm, and to see that the tenants properly cultivated the land. In April, 1911, three of the tenants who had leased 240 acres of the land upon the “halves” left the premises, and appellee agreed with appellant that he would take over their land and cultivate it upon the same terms as the other tenants. He did so, and at the end of the year had a settlement with appellant as to rents, in which he retained one-third of the crop oh 50 acres and one-half of the crop on 240 acres. Nothing was said at the time he took over the 240 acres, nor at the time of the settlement of said rents, as to the $250 to be paid him under the original contract. Appellee presented his account for $250 after the 1st of January, 1911, and appellant refused to pay the same, upon the ground that the original contract had been canceled by reason of the second contract above referred to.

There was a judgment for appellee for $250. As to whether or not appellee was entitled to recover the $250 depends upon the Intention of the parties in making the second contract, and this issue should be submitted to the jury under appropriate charge.

The evidence raises the issue of quantum meruit. Appellee did not specifically sue upon quantum meruit, but he did allege his services in looking after the crops raised by the two remaining tenants, as well as his services prior to April, 1911, and alleged that he earned much more than the amount of $250 in his attention and labor for and in behalf of the defendant. His prayer was for $250, and “all relief, in law or in equity, he may be entitled to.” While it would be more satisfactory in a case like this, where under the facts alleged a party may be entitled either to the amount sued for under the contract or upon quantum meruit, to more specifically set out his claim upon quantum meruit, still we are inclined to tlie opinion that the pleadings in this case were sufficient to have demanded the submission of the issue upon quantum meruit. The court instructed the Jury that there was no pleading" on the part of the plaintiff to justify or warrant a finding on quantum meruit, and that they should return a verdict for the defendant as to that issue. In this we think there was error.

For the reason that the evidence is not sufficient to sustain the judgment, and that the testimony did not fully develop the intention of the parties in making the second contract, the judgment in this case is reversed( and the cause remanded.

Reversed and remanded.


author: FLY, C. J.

text:
    LOUISIANA-RIO GRANDE CANAL CO. v. QUINN.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 22, 1913.)
    1. Appeal and Error (§ 564) — Exceptions, Bill op (I 44) — Filing oe Bills op Exception and Statement op Facts — False Dates.
    Where the trial court ordered the statement of facts and bills of exception to be filed, and marked them as approved as of dates long prior to the actual filing and approval, that will give them no added sufficiency, and they will be considered as filed on the date they actually were.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. § -564 ; Exceptions, Bill of, Cent. Dig. § 73; Dec. Dig. § 44.]
    2. Appeal and Error'(§ 564) — Statements op Faco^-Time op Filing.
    Acts of 32d Leg. c. 119, § 7, providing that any statement of facts filed before the time for filing the transcript in the appellate court expires shall be considered as having been filed within the time allowed by law, applies to writs of error as well as to appeals, and hence a statement of facts filed at any time within 12 months after final judgment is in time in case of a writ of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig.- §§ 2501-2506, 2555-2559; Dec. Dig. § 564.]
    3. Exceptions, Bill op (§ 40) — Time op Filing.
    Acts of 32d Leg. c. 119, § 7, providing that any statement of facts filed before the time for filing the transcript in the appellate court shall be considered as having been filed within the time allowed by law,, has no reference to bills of exception, and will not justify an extension of the time of filing.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. $§ 44, 45, 57-64; Dec. Dig. § 40.]
    4. Appeal and Error (§ 14) — Writ op Error-Right to Sue Out Writ — Pendency op Appeal.
    That the unsuccessful party below perfected an appeal by filing a supersedeas bond will not preclude him from subsequently suing out a writ of error, so long as the adverse party did not secure an affirmance of the appeal on cer-tifiea(e.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 48-57; Dec. Dig. § 14.]
    5.Appeal and Error (§ 356) — Appirmance —Affirmance on Certificate.
    Where an appeal is not prosecuted, the ap-pellee may move for an affirmance on certificate at any time during the term to which it was returnable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1926, 1927; Dec. Dig. § 356.]
    Error to Hidalgo County Court; James H. Edwards, Judge.
    Action between the Louisiana-Kio Grande Canal Company and R. E. Quinn. There was a judgment for Quinn, and the Canal Company brings error. On motion to strike the statement of facts and bills of exception.
    Motion granted as to bills of exception, and overruled as to statement of facts.
    F. W. Kibbe and L. J. Folk, Jr., both of Brownsville, for plaintiff in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

The judgment against plaintiff in error was rendered on February 16, 1912, and notice of appeal was given. A supersedeas bond was given by plaintiff in error, which purports to have been filed on March 6, 1912. Nothing further was then done in connection with the matter until January 18, 1913, when plaintiff in error presented bills of exception and a statement of facts, which the county judge ordered the clerk to file as of date April 1, 1912. The statement of facts purports to have been approved April 2, 1912, although such date is not the true one. There is no pretense that the bills of exception and statement of facts were in existence at .the time that the trial judge certifies he approved them, nor when the' clerk certifies they were filed. In other words, the times of approval and filing are false dates, and the act of giving such false certificate should be condemned. Of course, the false dates add nothing to the sufficiency of the bills of exception and. statement of facts, and they will be considered as though filed on January 18, 1913, 11 months after the terjn of court adjourned at which the cause was tried.

Under the terms of Acts 32d Leg. c. 119, § 7, “any statement of facts filed before the time for filing the transcript in the appellate court expires shall be considered as having been filed within time allowed by law,” and we think that applies to a writ of error as well as to an appeal, and that a statement of facts filed at any time within 12 months after the final judgment was rendered would be in time for a writ of error. The provision quoted is broad enough to cover any statement of facts in cases of appeal or writs of error, and the utter folly of providing in the same act for extensions of time to file statements of facts, and then setting aside the whole thing by the provision in question is apparent. That part of the act that is quoted does not, however, have any reference to bills of exceptions. Unknown Heirs of Criswell v. Robbins, 152 S. W. 210.

Plaintiff in error had the right to sue out a writ of error, although it had perfected an appeal by filing a supersedeas bond, and defendant in error had it within his power to have asked an affirmance on certificate at any time during the term of this court, to which the appeal was returnable; but he failed to seek such relief. Thompson v. Anderson, 82 Tex. 237, 18 S. W. 153; Insurance Co. v. Clancey, 91 Tex. 467, 44 S. W. 482; Welch v. Weiss, 99 Tex. 356, 90 S. W. 160; s. c. 40 Tex. Civ. App. 257, 90 S. W. 160.

The motion to strike out the statement of facts and bills of exception is granted as to the latter, but overruled as to the former.