author: HIGHTOWER, Jr., C. J.

text:
    TATUM v. ORANGE & N. W. RY. CO.
    (No. 219.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1917.
    Rehearing Denied Nov. 14, 1917.)
    1. Evidence <§=>409 — Release — Modification by Parol Evidence.
    A written contract of release of damages cannot be modified by parol testimony.
    2. Pelease '<§=>17(2) —Validity— Fraud — False Representations.
    In order to have a contract of release of damages canceled on the ground that employer induced such contract by fraudulently promising 1 plaintiff a certain position, it must be shown that, at the time the promise was made, the employer did not intend to give plaintiff the position.
    3..Release <§=>58(6) — False Representations — Sufficiency of Evidence —, Question for Jury.
    In an action to set aside a release of damages, evidence 7held insufficient to warrant submission to the jury of the question of a fraudulent promise to' give plaintiff employment, although sufficient for submission as to whether the promise was made.
    4. Trial <§=>139(1) — Questions for Jury — Sufficiency of Evidence.
    Where reasonable and ordinary minds may arrive at different conclusions to be reached on any issue of .fact, such issue should be submitted to the jury, but where ordinary minds could not differ, it should be taken from the jury.
    5. Evidence <§?=595 — Deliberations of Jury-Inferences.
    A jury is not authorized to render a verdict merely upon inferences drawn by it, but such inferences must have basis in the evidence in order to be warranted.
    6. Fraud <§=>50, 58(1) — Sufficiency of Evidence-Presumption.
    Fraud is never presumed, and, although wide latitude is allowed to prove it, yet it must be established by facts or circumstances sufficiently strong to warrant a finding that fraud existed, or inferences or presumptions based on such facts.
    Appeal from District Court, Orange County ; A. E. Davis, Judge.
    'Suit by T. J. Tatum against the Orange & Northwestern Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Howth & Adams and Jas. A. Harrison, all of Beaumont, for appellant. Holland & Holland, of Orange, and Andrews, Streetman, Burns & Dogue, of Houston, for appellee.
   HIGHTOWER, Jr., C. J.

This suit was filed in the district court of Orange county by T. J. Tatum, plaintiff below, and appellant here, against the Orange & Northwestern Railway Company, defendant below and appellee here, to recover damages alleged to have been suffered and sustained in consequence of personal injuries received by the plaintiff while in the employ of said railway company on March 5, 1911. The property of the railway company was, at that time, in the hands of one Frank Andrews, as receiver, duly appointed by the United States District Court for the Southern District of Texas, said Frank Andrews, as such receiver, also being made a party defendant. Before the trial of the cause was reached in the court below, the said Frank Andrews had been discharged as such receiver, and he was therefore dismissed as a party defendant in this cause. After stating the facts upon which appellant relied as showing negligence on the part of appellee, and his injuries resulting therefrom, appellee also alleged, in substance, that he had theretofore, on March 27, 1912, executed a written contract of release, which recited that, in consideration of $4,300 being paid to Mm by appellant, lié bad relinquished and released and compromised any and all claims and causes of action that he might have against appellee for the injuries sustained by him, but in the same connection further alleged that such contract of release on his part was brought about and induced by fraud on the part of appellee, in the following particulars, to wit: Appellant alleged that at the time the written contract, which by its terms released appellee from any and all liability on account of the injuries sustained by him, and which recited as a consideration therefor $4,300 in money paid to appellant, appellee, in order to induce appellant to make and execute such release, promised appellant that he would be given employment as yardmaster in ■ the switch-yards at Orange for the remainder of appellant’s life, at a salary of $100 per month. Appellant then proceeded to allege that such promise of employment, as yardmaster, induced and: caused him to execute said release, and that he would not have done so but for such promise and inducement, and further alleged that at the time it made such promise of employment to appellant, appellee never intended to carry out such promise, and in fact did not carry out such promise, but that the same was made in bad faith, and with the intention and purpose on the part of appellee to defraud and cheat appellant, and as an inducement to him to enter into and execute such contract of release, and that therefore said written! contract of release was procured by fraud, and was not binding upon appellant, and appellant prayed that the same be set aside and'canceled. Appellee, Orange & Northwestern Bailway Company, after interposing a general demurrer and several special exceptions, none of which it is necessary to discuss in disposing of this appeal, further answered by general denial, plea of contributory negligence, plea of assumed risk, and further specially pleaded and set up the written contract of release of liability here sought to be canceled by appellant. The trial court, at the conclusion of the evidence below, peremptorily instructed the jury to return a verdict in favor of appellee, wMch was done, and judgment was entered in accordance with the verdict, to which action of the court in instructing the verdict appellant duly and properly excepted, and after motion for new trial was overruled, the case was properly brought here on appeal.

We find three assignments of error in appellant’s brief, the first being directed’against the action of the trial court in instructing a verdict for appellee; the second being directed against the action of the trial court in refusing to submit the case to the jury on special issues tendered by him, and the third is directed against the action of the trial court in overruling appellant’s exceptions to the peremptory instruction.

This court may therefore treat the first and third assignments as one, and if we should conclude that those assignments are not well taken, that action would, necessarily, in effect, be to overrule the second assignment, also.

The written contract of release which was executed by appellant, and which is here sought to be canceled, as above explained was as follows:

“General Release.
“Whereas, I, T. J. Tatum, of Orange, Texas, of the county of Orange, state of Texas, was injured on the 5th day of October, 1911, on a line of railroad owned or operated by the Orange and Northwestern Railroad Company, while employed as switchman, and while going from Orange to Bunker Hill on engine 317, the engine was derailed and I was thrown off and caught and dragged by the engine tank. My left leg was broken, my back bruised and sprained, and I was otherwise injured, under circumstances which I claim rendered such company liable in damages, although such liability is denied by such railroad company, and, the undersigned being desirous to compromise, adjust and settle the entire matter: Now, therefore, in consideration of the sum of forty-three hundred ($4,300.-00) dollars to me this day paid by the Orange & Northwestern Railroad Company, in behalf of itself and other companies whose lines are owned or operated by it, I do hereby compromise said claim, and do release and forever discharge the said Orange & Northwestern Railroad Company, and all companies whose lines are leased or operated by it, their agents and employes, from any and all liability for all claims for all injuries, including those that may hereafter develop, as well as those now apparent, and also do release and discharge them of all suits, actions, causes of action and claims for injuries and damages, which I have or might have arising out of the injuries above referred to, either to my person or property, and do hereby acknowledge full satisfaction of all such liability and causes }f action.
“I further represent and covenant that at the dme of receiving said payment and signing and sealing this release, I am of lawful age and egally competent to execute it, and that before signing and sealing it, I have fully informed nyself of its contents and executed it with full inowledge thereof.
“Given under my hand and seal, this twenty-seventh day of March, 1912.
T. .T. Tatum.”

TMs release was also acknowledged before H. A. Arnold, Jr., notary public in and for Harris county, Tex.

Upon the execution of this contract, the Orange & Northwestern Railway Company did. in fact, pay to appellant the sum of $4,300 as mentioned in the contract.

It will be observed that this written contract of release is a very full, definite, and complete contract, and clearly recites the consideration which moved appellant to its execution, and also acknowledges the receipt of such consideration by appellant.

It is a well-established rule in this state that a contract of this character cannot be altered, changed, or modified in any manner by parol testimony, and we do not understand counsel for appellant to deny that such is the rule in this state, but ever since the decision in the case of Railway Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, it lias been the rule, also, that a contract of this character might be rescinded or canceled if it be pleaded and proved that the party seeking its rescission or cancellation was induced and caused to execute the same by fraudulent representations and promises made and held out to him by the other party thereto at the time of the making and execution of the contract, and this is the rule sought to be invoked by appellant here.

This court has had this case under consideration for some time, not because the testimony bearing upon the question of fraud necessary to be proved in order to set aside the contract as sought by appellant was voluminous, but because of the difficulty which we have felt in determining whether the evidence bearing upon the issue of fraud was sufficient to have compelled the trial court to send that issue to the jury as one of fact, under the liberal rule pertaining to jury trials in this state, and after a most careful study of this question we have concluded that the evidence was not sufficient to have compelled the submission of this issue of fraud to the jury, and that the trial court was correct in peremptorily instructing the jury to return a verdict for the appellee.

We have concluded that the state of the evidence was such that the trial court would not have been authorized to take from the jury the issue of fact as to whether ap-pellee, at the time the written contract was entered into, also verbally promised appellant that he would be given the position of yardmaster at Orange for the remainder of his life, at a salary of $100 a month, for we think that the evidence of appellant himself, and that of his father, J. P. Tatum, was sufficient to have compelled the submission of that issue to the jury, notwithstanding its direct contradiction found in the evidence of appellee’s claim agent, J. P. Gaston, and its then general manager, J. H. Elliott; but, before this written contract of release could be set aside or canceled, appellant was required, not only to prove that this promise of future employment as yardmaster was made by appellee, at the time the written contract of release was executed, and that the same was not, in fact, complied with by appellee, but also appellant was required to prove that the railroad company, who was at the time acting, as this record shows, through the general manager, Elliott, did not intend, at the time this contract was made and the future employment promised, to carry out such promise of future employment, and that therefore such promise of future employment was made for the purpose of cheating and inducing appellant to enter into the contract of release, and the solution of this point, we concede, has given us some difficulty.

The general manager, Elliott, testified emphatically that there was no promise on the part of appellee to give to appellant the position of yardmaster, as claimed by him, and the claim agent, Gaston, also emphatically testified that there was no promise to give to appellant the position of yardmaster, but this witness states that he did say to appellant that it was the policy of the company to give to injured employes such positions as they might be able to fill, etc., and the claim agent, Gaston, further testified that the railroad company had no intention of giving to appellant the position of yardmaster, as claimed by him. This portion of the claim agent’s testimony is seized upon by counsel for appellant as bearing upon the issue of bad faith on the part of appellee at the time the contract of release was executed. In other words, counsel for appellant say that since this witness, Gaston, testified that the railroad company never had any intention of giving to appellant the position of yardmaster, this fact, along with the other testimony on this point, ought to have carried the ease to the jury, and would have warranted the jury in finding that not only the contract of future employment as yardmaster was made, but that it was not the intention of the railroad company to keep such promise. A thorough and careful analysis of the testimony of the witness Gaston leads inevitably to the conclusion that this statement on his part, to the effect that the railroad company, at the time of the execution of the contract, did not intend to give to appellant future employment as yardmaster, was made because the witness knew, or thought he knew, that no such promise was, in fact, made to appellant.

The record discloses that practically the only other testimony upon this particular point was that of appellant himself, and, in substance, his testimony was that at the time the written contract of release was entered into and executed, the general manager, Elliott, told him (appellant) that he might go right on and take the job of yardmaster at that time, whereupon appellant, according to his testimony, replied that he was unable just at that time, by reason of his physical condition, to take the position and discharge its duties; that he did not want to go around the cars and engines on crutches, but that he would commence his duties as yardmaster as soon as he was able, whereupon, according to his testimony, the general manager, Elliott, stated, “All right,” and that was about, in substance, everything that was said between the general manager, Elliott, and appellant.

This contract of release was executed in the city of Houston, and thereafter appellant returned to Orange, his home, and the testimony shows that for several months he was crippled or disabled, on account of his injuries, but that when he felt able to do so, he applied to the railroad company, and asked to be permitted to commence his duties as yardmaster at Orange, under the claimed contract, and was informed by the railroad company that he would have to wait until adjustments with reference to other employes could be made, etc., and that this occurred on several different occasions thereafter, and that finally the railroad company declined to let him take the position of yardmaster, and that he determined that they were not going to do so, etc., and filed this suit. The record also shows that General Manager Elliott severed his connection with the railroad company a short while after the contract of release in question was executed, and before the filing of this suit by appellant, and, really, that there was no further negotiation between Elliott and appellant, after his return to Orange from Houston.

We say that this evidence is practically all there is in the record on this vital point, and by this appellant contends that the issue of fraud or bad faith was sufficiently raised and compelled the submission of the issue to the jury. We understand the rule in this state to be that where the state of the evidence is such that reasonable and ordinary minds may differ or arrive at different conclusions to be reached on any issue of fact, such issue should then be submitted to the jury, and this court has at all times been guided by that rule, but the converse is also the rule; that is, where the state of the evidence is such that reasonable and ordinary minds could not differ as to the conclusion that ought to be reached from a given state of facts, then it is the duty of the trial judge to take such issue away from the jury, as was done in this .case.

We have been unable to find any fact or circumstance in this record from which we could say that the jury in the trial court would have been authorized to find that at the time the written contract of release was executed, the railroad company, acting through its representatives negotiating this settlement, did not intend to give to appellant the position of yardmaster at Orange, if, indeed, such promise was made, unless we should hold that the fact that the position was not given him, taken in connection with the further fact that the jury would have been authorized to find that the position of yardmaster was promised him, would be sufficient to carry such issue to the jury. It might be that a jury would infer that the railroad company had no intention of complying with such a promise, if made, but the question with us is: Are there sufficient facts and circumstances in this record to have warranted such an inference? A jury is not authorized to render a verdict merely upon inferences drawn by it, but such inferences or deductions on the part of the jury must have a basis in the evidence, in order to be warranted, and that is the question with this court.

The rule, as we understand it, is that fraud is never presumed; and, while we also understand that in cases where fraud is alleged, a wide latitude is allowed in the proof to establish the issue, yet the issue must be established by facts or circumstances sufficiently strong to warrant the jury in finding that the claimed fraud existed, and it will not be permitted merely to infer or presume that fraud existed, as claimed, without such fact or circumstance upon which to base such inference or presumption.

According to the appellant’s own testimony, Mr. Elliott told him that he might go on to work in the position of yardmaster, at the time this release was executed, doing such duties as attending to the telephone, etc., but that, being informed by appellant that he was not physically able to do so, but stating that he would go ahead as soon as he was able, Mr. Elliott, at the very same time, assented, saying, “All right.” Now, from those facts, and the further fact that the position of yardmaster was never thereafter given to appellant, can it be said that the jury would have been warranted in finding that at the very time this contract of release was executed, the railroad comjpany, acting through its agents negotiating the release, did not intend to give to appellant the position of yardmaster, as claimed by him, and that therefore the contract of release was fraudulently induced and brought about, as claimed by appellant? We think that the jury would not have been warranted in so finding, and that the trial court would not have been warranted in submitting the point for their consideration.

It will not do to say that merely because the promise of the position of yardmaster was made to appellant, and because it was not given him, the jury might infer the fraud on the part of the railroad company, as claimed by appellant, because, if we should so hold here, then it would be, in effect, to hold that wherever the verbal promise or inducement is established as having been made at the time of the execution of the complete contract, and such promise should not thereafter be complied with, then the proof of fraud would be complete, and therefore we would be holding in effect, that any written contract between parties, however important the subject-matter and solemn the form taken, might be set aside and annulled on the ground of fraud, merely by showing that some verbal promise, made as an inducement to the execution of the contract, was not carried out or performed. In other words, we would be, in effect, holding that a written contract may be set aside and canceled by showing a verbal promise, which was an inducement to one of the parties to execute the same, and then showing that the verbal promise was not complied with. We believe there is no precede-"' for such, a holding in this state, and we would hesitate to establish such a precedent.

From what we have said with reference to the first and third assignments of error, it follows that thfe second assignment of error, also, should be .overruled, and, finding no error in the action of the trial court, all assignments of error are overruled, and the judgment is, in all things, affirmed.
      <gw»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    WILLET BROS. v. WESTERN NAVAL STORES CO.
    (No. 269.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 1, 1917.)
    1. Physicians and Surgeons <S^>24(2) — Itemization ob Account — -Action by Physicians.
    The complaint in an action by physicians to recover for attendance, medicine, etc., furnished several persons, should itemize as to each person the amount charged for medicine, the amount charged for examination, that charged for the visit, the charge for the prescription, etc.; no further itemization of the account being necessary.
    2. Pleading ⅞=»228 — Action o-n Account-General Exception to Petition.
    Where the exception to plaintiffs’ petition embodying an account was general, some' of the items of the account being correctly pleaded, it was error to dismiss the entire account, and to refuse to hear testimony as to its justice.
    Appeal from Newton County Court; W. E. Gray, Judge.
    Suit by Willet Bros, against the Wester^ Naval Stores Company. Prom a judgment of dismissal, plaintiffs appeal.
    Cause reversed, and case remanded for new trial.
    A. L. Shaw, of Newton, for appellant. Porse & Ferguson, of Newton, for appellee.
   BROOKE, J.

This suit was instituted by appellant against appellee for the sum of $107.35, with interest, alleged to be due said appellant upon the account set out in appellant’s petition and attached exhibit. Ap-pellee excepted to the account upon the ground that it was not sufficiently itemized, whereupon appellant amended his former pleadings, in paragraph 6 of their third amended original petition alleged, as shown below, that the account was itemized as definitely as appellant could itemize it. Plaintiff further set out that said accounts were itemized, and set forth each item as requested by the said agents of defendant, and that said account specified, designated, and set forth each item as best plaintiff could, owing to the length of time since said accounts were created, and that neither the defendant nor its agents had at any time previous to this requested a more specific itemization of said accounts, and that plaintiff did not keep a set of books, wherefore they have not kept a complete itemized account with defendant, so that it was then impossible for plaintiff to render a more complete itemized account than shown by the pleadings, and the aforesaid account attached as Exhibit A. The case was heard and judgment rendered on the pleadings, without testimony; the court having sustained the exception of appellee to the items of the account. Appellant confessed its inability to amend to conform to the rulings of the court, whereupon the case was dismissed, with costs against appellant.

The first assignment of error is as follows:

“The court erred in rendering judgment herein, in favor of the defendant and against the plaintiffs, for the reason that in order for the court to have dismissed the case on defendant’s demurrers and exceptions, and defendant herein to recover, the defendant must by its exceptions, being special exceptions, setting forth such particular charges against defendant not properly itemized, and it being fully shown by the defendant’s pleadings that said exceptions are nothing more than general exceptions to each paragraph of plaintiff’s petition, and the judgment of the court dismissing the case in favor of the defendant and against the plaintiff was therefore erroneous.”

The case was tried, upon plaintiffs’ third amended petition, which was as follows:

“Gome now the plaintiffs, Willet Brothers, a partnership composed of Dr. H. L. Willet and J. M. Willet, who resides in Newton county, Texas, by leave of the court, for the purpose first had and obtained, file this their third amended petition, in lieu of their original petition filed herein on the 5th day of August, A. D. 1914, in the said justice court, and also in lieu of their first amended petition filed September 5, 1914, and as an amendment to their second amended petition filed herein on the 8th day of July, A. D. 1916, complaining of the Western Naval Stores Company, a private corporation, of the city of New Orleans, state of Louisiana, and doing business in the state of Texas, with an office in the town of Newton, Newton county, Texas, and hereafter styled defendant, aver that service may be had on said Western Naval Stores Company by serving L. M. Autrey, general manager of the said defendant, at Newton, Newton county, Texas, and for cause of action plaintiffs represent to the court that heretofore to wit:
“1. That on or about the 31st day of May, A. D. 1912, plaintiffs at the special instance and request of the defendant, by and through its agents, Ira Coleman, Tom Douthet, and L. M. Autrey, each of the county of Newton, state of Texas, rendered medical services for and sold medicine to the said Western Naval Stores Company, at the several times specified in the account hereto attached marked ‘Exhibit A’ and made a part hereof, that said service was rendered by treating and visiting the persons named therein, and by delivering the medicine to each as designated in said account, and as hereafter pleaded, at the request of the said defendant as aforesaid.
“2. Plaintiffs further represent to the court that at the special instance and request of the defendant, by and through its agent, Tom Douthet, manager of camp No. 1 of the said Western Naval Stores Company, in Newton county, Texas, that they did render medical service for and sell to the said defendant medicine for camp No. 1, as follows, to wit:
July 22, 1912. For Arthur Johnson, examination and medicine .$1.50
(This item was perhaps subject to the demurrer as no amount has been stated as a specific charge for the examination and the specific amount charged for medicine.)
July 22, 1912. For Arthur Johnson, prescription . 1.00
(That item is sufficiently stated.)
July 26, 1912. For Hozy Scott, examina-
tion and medicine . 2.75
(This is subject to the criticism _ above stated, and it should have been specifically stated the amount that was for the examination and the amount for the medicine, without further description.)
Oct. 5, 1912. For Ed Ward, examination
and medicine . 4.35
(This should conform to what has been said above.)
Oct. 12, 1912. For Auther Sapp,.l visit
and medicine. 8.75
(This item is subject to the same criticism.)”

This entire paragraph was called in question by the following demurrer:

“That paragraph 2 of said petition fails to set out the medicine delivered and services rendered, and does not show the nature thereof and the charges made for each item thereof, for which defendant excepts specially to said paragraph and to each item thereof as therein set forth, and of this it prays judgment of the court.”

The only just criticism that could he made of this paragraph is the failure of the pleadings to state the amount charged for examination and the amount charged for medicine to the various parties, or the amount charged for the visit and the charge for medicine. The same should have been separately charged, and, subject only to this criticism, the same would be a proper averment.

In paragraph 3 of plaintiff’s petition he says:

“At the special instance and request of the defendant, by and through its agents, Ira Coleman, manager of camp No. 2, of the said Western Naval Stores Company, in Newton county, Texas, and L. M. Autrey, General Manager of said Western Naval Stores Company, that they did render medical aid for and sell to the said defendant medicine for camp No. 2, as follows to wit:
May 31, 1912.
For George lies, 2 visits and medicine ... .ij ! 5.50
June 28, 1912.

.ij

For G. Green, examination, prescription, medicine __.". 10.15
June 28, 1912.
For Homer Ree, 5 visits, circumcision, medicine . 22.30
June 28, 1912.
For Charley Wooton, visit and medicine... 4.10
July 11, 1912.
For Auzzy Noris, 2 visits and medicine .... 6.15
July 11, 1912.
For Will Benton, medicine . 1.40
(This item is correctly pleaded.)
July 11, 1912. For Ed Ward, 10 visits
and medicine. 23.05
July 22, 1912. For Bill Walden, examination and medicine 3.25”

The above items are subject to the criticism as set out heretofore in paragraph No. 2. In other words, the charge should be made for the visit, for the examination, for the prescription and medicine, and the item of June 28, 1912, should have stated so much for visit, so much for circumcision, and so much for medicine. Except for this' alleged vice, paragraph 3 would not be open to objection. In other words, we mean to say that it is not necessary to itemize the medicine, or the kind of medicine, but only the amount charged for the medicine, the amount charged for the examination, and the amount charged for the visit, and the amount charged for the prescription and for the circumcision. No further itemization of the account would have been necessary or called for.

In paragraph 4 of the petition plaintiff alleges that at the special instance and request of the defendant, by and through its agents. Ira Coleman, manager of camp No. 2 of the said Western Naval Stores Company, in Newton county, Texas, and L. M. Autrey, general manager of said Western Naval Stores Company, that they did render medical aid for and sell to the said defendant medicine for camp No. 2, as follows, to wit:

Aug. 6, 1912. For Harris Renels, examination and medicine.
Aug. 9, 1912. For Bill Walden, 2 visits and medicine.
Aug. 18, 1912. For Elic Whitaker, 2 visits and medicine.
Aug. 18, 1912. For G. Green, 4 visits and medicine.
Aug. 24, 1912. For Auzzy Noris, 1 visit and medicine.
Sept. 14, 1912. For Lonzo Danels, 2 visits and medicine.
Sept. 31, 1912. For Ben French, medicine.
(This item is correctly pleaded.)
Oct. 13, 1912. For Elic Whitaker, 1 visit and medicine.

The alleged vice in paragraph 4, as above, is that a charge should have been specified, stating what was made for the examination, and what was made for the medicine, and what charge was made, for visits. In no further particular was it necessary for the items to be set out in plaintiff’s pleadings. So far as pretending to itemize the services rendered, except that it was medical service, and the nature thereof, except that a visit was had, or circumcision had, no further particularity was needed with reference to the medicines and services, except the charges that were made therefor. In this connection, the record shows the following:

“On this the 2d day of January, A. D. 1917, came on to be heard the above entitled and numbered cause upon plaintiff’s third amended original petition this day filed, and defendant’s second amended original answer, in answer thereto, and defendant having called up its demurrers and special exceptions to said petition, as they appear in its said answer, challenging the sufficiency of said petition as to the itemization of the account therein declared upon, and having presented the same to the court, the court being of the opinion that said demurrers and exceptions are supported by law, they are in all respects sustained. And the plaintiffs having failed to amend to conform to the ruling of the court, confessing their inability to do so, and electing to abide by their pleadings, the cause is therefore dismissed, and all costs adjudged against said plaintiffs and in favor of said defendant, for which it may have its execution.”

In other words, just because the plaintiff in this case was not able to specify how much it charged for examination, how much for visit, and how much for medicine, the lower court refused to permit him to prove his said cause of action. We do not believe the grouping of tlie fact, in tlie item, that they were visited and medicine given, should be considered, save when so much is charged for medicine and so much for a visit, the time having already been given at which the charges were made, and the plaintiff evidently knew how much he charged for a visit, and therefore was able, by a mathematical demonstration, to show how much was for a visit, and therefore how much remained in the charge for medicine.' In the opinion of this court, therefore, there will be and can be no definite reason why the plaintiff can not, even in the absence of any written memo-randa, be able to state how much he charged-for a visit, and how much for examination, and therefore how much he charged for medicine, at the various dates mentioned in the various accounts.

In the form as presented to this court, the exception was a general exception. It was error on the part of the court, some of the items being correctly pleaded, to dismiss the entire account and refuse to hear testimony with reference to the justice of same. We believe, upon another trial of the cause, that no trouble will be experienced with reference to the proper pleading, and that therefore the parties may be able, without real trouble, either before the court or before a jury, to have justice meted out to them in this cause.

For the reasons above stated, this cause is reversed, and the ease remanded for a new trial.
      <g^?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    McMAHAN et al. v. McMAHAN et al.
    (No. 7757.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 20, 1917.
    Rehearing Denied Nov. 17, 1917.)
    1. Wills <s=>60S(2)~Construction — Rule in Shelley’s Case.
    The rule in Shelley’s Case does not preclude a construction of the technical words “heirs of the body” so as to ascertain the testator’s intention,
    2. Wills @=^608(3) — Estates Devised — Rule in Siieiíey’s Case— “I-Ieiks oe the Body.”
    An item of testator’s will giving, devising, and bequeathing to a daughter named “for and during her natural lifetime only, with the remainder and fee in the heirs of the body of my said daughter, if any, and if no bodily heirs, then to descend and pass as in item 6 of this will, the following lands,” devised to the daughter a life estate only, where in construing such item with the others it is apparent that the phrase “heirs of the body” did not mean heirs in the legal sense, making the rule in Shelley’s Case applicable, but only children of tlie daughter who should be living at her death.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Heirs of the Body.]
    3. Wills <®=>457 — Construction — Technical Words.
    It is permissive to consider the language of the whole will for the purpose of ascertaining the intention of the testator, provided the language so considered indicates that the words “heirs of the body” were used in a narrower sense than their true one.
    Appeal from District Court, Hill County; Ilerton B. Porter, Judge.
    Suit by Mrs. Ethel McMahan and others against Píar^y McMahan and others for construction of the will of P. M. Greenwade, deceased. From the decree rendered, a motion for new trial having been overruled, the guardians ad litem of the infant defendants appeal.
    Reversed and rendered.
    G. D. Tarlton and Morrow & Morrow, all of Hillsboro, for appellants. J. J. Averette, of Houston, and Wear & Frazier, of Hills-boro, for appellees.
   TALBOT, J.

This suit was instituted by the appellees, Mrs. Ethel McMahan and others, against certain children of P. M. Green-wade, deceased, and against Harry McMahan and others, who were minors and grandchildren of the said Greenwade. The purpose of the suit was to have the will of P. M. Greenwade construed and obtain an adjudication that it vested in appellee Mrs. Ethel McMahan, under the rule in Shelley’s Case, a fee-simple title to certain land therein devised to her, as shown by item 3 of the will. W. C. Morrow and Tarlton Morrow, composing the law firm of Morrow & Morrow, were appointed guardians ad litem of the minor defendants, and upon a hearing in the trial court the contention of the appellees that the rule in Shelley’s Case was applicable to the item of the will in question was sustained, and a decree entered to that effect. A motion for new trial having been overruled, the guardians ad litem prosecuted an appeal for the minors to this court. There is no controversy about the facts. The will of P. M. Greenwade was probated in Hill county, Tex., and was introduced in evidence on the trial of this’case. Parol evidence was offered to the effect that P. M. Greenwade was married twice; that his second wife survived him; that he left four children by his first wife and three by his second wife; that the children of his second wife were Mrs. Ethel McMahan, one of the appellees, and Mrs. Julia McCowan and Mrs. Nena Owen; that Mrs. Ethel McMahan was the only one married at the time the will was made; and that she has children. We shall state and quote only so much of the will as we deem material or important to be considered in determining the question presented. By the second item of his will P. M. Greenwade devised to his wife, Myra L. Greenwade, “for and during her natural lifetime only,” with remainder to his daughters, Ethel McMahan, Julia Greenwade, and Nena Greenwade, his “plantation of nearly 400 acres of land adjoining the city limits of Whitney in Hill county, Texas.” In this clause of the will the testator further says:

“I also will and provide that the remainder of fee so devised to our said daughters, Ethel McMahan, Julia Greenwade and Nena Green-wade, shall pass to them share and share alike, or to the heirs of their body should either of them be dead and leave such heirs, but should either of them die before the death of my said wife, Myra E. Greenwade, and leave no heirs of her body, then the share or portion to which she would be entitled, if living, shall pass to and descend to the other two, if living, but if one of the other two should be dead, then to the one living and the bodily heirs of the deceased one, if any, but if no bodily heirs then the survivor of them shall take the whole remainder or fee, my intention being that the children only of my present wife, Myra E. Greenwade, shall take and hold this remainder of fee.”

Item 3 of the will, and the one directly involved in this suit, or so much of it as is necessary to state, reads as follows:

“Subject to item XII of this will, I give, devise and bequeath to my beloved daughter Ethel McMahan, for and during her natural lifetime only, with the remainder and fee in the heirs of the body of my said daughter, if any, and if no bodily heirs then to descend and pass as in item VI of this will the following lands: [Then follows the description of several tracts.]”

In items 4 and 5 of the will the testator made similar bequests to his daughters Julia Greenwade and Nena Greenwade, both of whom since the execution of the will have married and become Mrs. Julia McGowan and Mrs. Nena Owen, respectively. The material part of item 6 of the will is as follows:

“I will, desire and direct that should all or either of my said daughters, Ethel McMahan, Julia Greenwade and Nena Greenwade, die without leaving a child or children of her body, then the share or portion herein devised to her in items III, IV and V, respectively, shall pass and descend to all my children named in item XI of this will, who are then living and the bodily heirs of such of them as may be dead, if any, per stirpes, my intention being that my estate shall remain in my own family.”

Item 11 reads thus:

“Subject to item XII of this will, the entire balance and residue of my estate at the time of my death, after the payment of all of my debts and funeral expenses, and all of the bequests named in this will, and wheresoever situate, be it real, personal or mixed, I will, devise and bequeath to my beloved wife, Myra E. Greenwade, and to my children, James W. Greenwade, Pines S. Greenwade, Pearl Green-wade, Clay, Ethel McMahan, Julia Greenwade, and Nena Greenwade, if living, but should any of them die before I do and leave no bodily issue, then the share or portion to which he or she would be entitled under this item, shall pass and descend to those of them who may be living, and the bodily heirs of such of them as may be dead, if any, per stirpes.”

In item 12 of the will, and which is Tefer-Ted to in item 11, above quoted, the testator, after stating in effect that he knows the property he has, its value and condition, better than any other person, and that he had no desire to discriminate against his wife or either of his children, but that he simply desired to be just and fair to each of them and to place such restrictions and conditions only upon the bequests made them as his long experience had taught him to be best for them and each of them, he says:

“I therefore declare, will and direct that should my beloved wife or either of my beloved children, or the bodily issue of them or any of them, refuse to accept this will and the terms and conditions herein contained, then and in that event and as to such one or more of them as shall contest this will, I do cancel, withdraw and annul, set aside and for naught hold, any item or provision of this will which gives, devises and bequeaths to such contestant or contestants any property or thing whatsoever, but it is my will and desire that such contestant or contestants shall take nothing whatever from or under this will, and it is my will and I direct that the property, real, personal or mixed, devised herein to such contestant or contestants, be it especial or residue, shall pass to such of them only as shall not contest this will, in all things and in all respects as though such contestant or contestants were dead, without leaving bodily issue, and as herein provided should they die, and to be distributed and disbursed among those of them who shall not contest this will.”

The question for decision is whether the appellee Mrs. Ethel McMahan by the terms of the third item of her father’s will acquired a fee-simple title to the land thereby devised to her or only an estate for life. The trial court held, as shown by its judgment, that the testator, Greenwade, used the words “heirs of the body,” “child or children of her body,” and “bodily heirs,” found in the will interchangeably, but that by the words “child or children of her body” in every connection in which they appear in the will the testator meant “heirs of the body” or “bodily heirs,” in the general sense essential to the application of the rule in Shelley’s Case. It is clear that the third paragraph of the will, standing alone, would by force of the rule in Shelley’s Case vest in Mrs. Ethel McMahan a fee-simple title to the land therein described. This result would follow, notwithstanding it is declared in said paragraph*^ the will that the property therein described is bequeathed to Mrs. McMahan “for and during her natural life only,” because of the use of the technical words “heirs of the body” of Mrs. McMahan by the testator to describe the persons who should take after her death. This rule, however, does not preclude a construction of the technical words so used so as to ascertain the testator’s intention. Simonton v. White, 93 Tex. 56, 53 S. W. 339, 77 Am. St. Rep. 824. In McMurry v. Stanley, 69 Tex. 227, 6 S. W. 412, it is said that:

“In construing the will all [of] its provisions should be looked to for the purpose of ascertaining what the real intention of the testatrix was; and, if this can be ascertained from the language of the instrument, then any particular paragraph of the will which, considered alone, would indicate a contrary intent, must yield to the intention manifested by the whole instrument.”

This rule of construction has been announced and followed in many adjudicated cases, notably the case of Simonton v. White, supra, and the more recent cases of Hopkins v. Hopkins, 103 Tex. 15, 122 S. W. 15, and West v. Glisson, 184 S. W. 1042.

In Hopkins v. Hopkins, cited, the Supreme Court was called upon to construe a deed, and in tlie opinion of tlie court it is said:

“The several parts of the deed are not to be considered without reference to each other, but are to be construed together, and the effect of one upon the other so determined,” and that, “according to the principle uniformly applied by this court, * * * the construction which carries into effect the intention, where that is lawful, is to be adopted in preference to that which defeats it” — citing Hancock v. Butler, 21 Tex. 804, and Simonton v. White, supra.

Following the rules thus announced, and after declaring that those who were to take in that case after the death of the first taker were called indiscriminately “heirs,” “children,” and “issue,” the Supreme Court held that the word “heirs” was used in the sense of children or issue, not in its technical legal meaning, and that tlie deed in question vested in the grantee, son of the grantor and first taker, a life estate only in spite of the use of the word “heirs” with remainder to his children.

Adhering to and applying the rules announced in the cases to which we have referred in the construction of the will before us, in what sense did the testator, Green-wade, use the words “heirs of the body” of his daughter Mrs. Ethel McMahan in the third item or clause of his will? Did he mean thereby “heirs in the legal sense, that is, those appointed by law to take by inheritance from the first taker, in regular succession from generation to generation”? Or were they used only to designate the children of Mrs. McMahan who should be living at her death? If the testator used the words in their legal sense, the rule in iShelley’s Case would apply, and vest the fee in Mrs. Mc-Mahan, for no mere declaration of an intention to limit the estate to one for lif(^c<gild prevail over the effect given by law io the use in its legal sense of the technical words, “heirs of the body.” But, on the other hand, if those words were used only to designate the children of Mrs. McMahan to take by purchase as remainderman, the rule in Shelley’s Case would not apply and the testator’s intention must be given effect. Without much hesitancy we have reached the conclusion that the testator when he used the words “heirs of the body of my said daughter” (Mrs. Ethel McMahan), in. the connection in which they appear in the third paragraph of his will, had in mind and intended thereby to designate the children of Mrs. McMahan as the persons to take the estate devised to her at her death.

This conclusion is based upon a consideration of the whole language of the will, and particularly that found in the sixth paragraph thereof, when read and considered with the express direction given by the testator in the third paragraph, which, as we have seen, is entirely permissible for the purpose of ascertaining the intention of the testator, provided the language so considered clearly indicates that the words “heirs of the body” or the like were used in a narrower sense than their true one. Hopkins v. Hopkins, supra. Booking to the third item or paragraph of the will, we find that the testator therein expressly directs, in the event Mrs. Ethel McMahan at her death leaves no “bodily heirs,” that the land devised to her shall “descend and pass as in item 6 of the will, and similar direction is given with respect to the bequests made to his daughters Julia Greenwade and Nena Greenwade. In item 6 of the will, as has been seen, the testator wills and directs “that should all or either of my said daughters, Ethel McMahan, Julia Greenwade and Nena Greenwade, die without leaving” a child or children of her body, “the share or portion herein devised to her in items III, IV and V, respectively, shall pass and descend to all my children named in item XI of this will, who are living, and the bodily heirs of such of them as may be dead, if any, per stirpes, my intention being that my estate shall remain in my own family.” Whether item 6 just quoted is or is not necessarily made a part of item 3 by the language of said items, they must be considered together in arriving at the meaning of,the testator in using the words “heirs of the body óf my said daughter” and “bodily heirs” found in the third item. So considered, and having reference also to other language of the will, we think they should be construed to mean child or children of the body of Mrs. Ethel McMahan. The estate granted to Mrs. McMahan is expressly declared to be one for life “which could not be if the remainder in fee really were limited to heirs.” As we view the will, the remainder in fee is granted to the “children” of Mh*s. McMahan, and not limited to her heirs in the technical sense of that word. By so construing the language of the will the very clear intent of the testator can have effect, whereas, if the word “children,” as used therein, is to be read as meaning heirs in its technical sense, it will be defeated, a result which is to be avoided. As pointed out in West v. Glisson, 184 S. W. 1042, it is very unusual for any one to die without “heirs,” if this word be construed to mean “those appointed by law to take by inheritance from the first taker in regular succession from generation to generation,” and manifestly it was not contemplated by the testator, Greenwade, that this would be the condition of his daughter Mrs. McMahan, since at the time of the execution of the will she had living a father, a husband, and brothers and sisters, who, if they had died prior to the death of Mrs. McMahan, would perhaps themselves, or some of them, have left heir's, who would probably in such an event have been the heirs of the daughter, Mrs. McMahan. In such case, however, it is evident, we think, that the testator did not intend that such heirs should inherit the property or any part of it as heirs of Mrs. McMahan, but that said property should pass under the will.

We deem it unnecessary to pursue the discussion through the other language and expressions in the will which indicate that the intention of the testator was to restrict Mrs. McMahan’s interest to a life estate and to grant the remainder in fee to her children. This counsel for appellants in their exhaustive brief have done. The question turns-upon the meaning of the words “heirs of the body,” or “bodily heirs,” found in the will, •and we have no doubt that they were used in the sense of “children.” This is the controlling question in the ease, and renders unnecessary a discussion of the propositions urged in appellees’ supplemental brief. It will suffice to say that this case is not ruled by the authorities cited in that brief.

This conclusion requires that the judgment of the district court be reversed, and that judgment be rendered in this court in accordance with the views expressed in this opinion, and accordingly it is so ordered.

Reversed and rendered.
      ©=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KING, J.

text:
    DUNNAGAN v. EAST TEXAS COLONIZATION & DEVELOPMENT CO. et al.
    (No. 261.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 18, 1917.
    Rehearing Denied Nov. 14, 1917.)
    1. Appeal and Eero® ©=>327(7), 336(1) — Parties — Waiver.
    In trespass to try tide, where judgment ran for all defendants, including one original defendant and one defendant made a party because it had warranted title to the other defendants, the original and warranting defendants were adversely interested and necessary parties to a writ of error, and the defect could not, under court rule 9 (142 S. W. xi), be waived, except by voluntary appearance of said defendants, the judgment not being severable.
    2. Appeax, and Error ©=>336(1) — Parties.
    When parties adversely interested are not made parties to the writ of error, or petition therefor, the Court of Civil Appeals has no jurisdiction of the case.
    3. Appeal and Error €==>336(1) — Defect in Parties — Waiver.
    While a motion to dismiss for want of jurisdiction, owing to defect in parties, should be filed within 30 days after the filing of - the transcript, as directed by rule 9 (142 S. W. xi), no waiver results from the failure to so file.
    4. Appeal and Error <@=>395 — Bond—Amendment.
    The court will not dis&iss a writ of error for insufficiency of the bond, but will give opportunity to amend.
    Error to District Court, Angelina County; L. D. Guinn, Judge.
    Suit by J. A. Dunnagan against the East Texas Colonization & Development Company, W. J. Patterson, and others. Judgment for defendants, and plaintiff brings error, and defendants move to dismiss the writ.
    Motion sustained and writ dismissed.
    T. H. Stone and H. E. Stephenson, both of Houston, for plaintiff in error. Mantooth & Collins, of Lufkin, and Blount & Strong, of Nacogdoches, for defendants in error.
   KING, J.

This suit was instituted by plaintiff in error, J. A. Dunnagan, in the district court of Angelina county against W. J. Patterson, Hooks & Hayter, composed of S. B. Hayter and .T. M. Hooks, East Texas Colonization & Development Company, the Angelina Orchard Company, and Rosabella G. Henning, in the form of trespass to try title to 1,874 acres of land. In due time the Angelina County Lumber Company made itself a party defendant under article 7735, Vernon’s Sayles’ Texas Civil Statutes 1914, which provides:

“When a party is sued for lands, the real owner or warrantor may make himself, or may be made, a party defendant in the suit, and shall be entitled to make such defense as if he had been the original defendant in the action”

—and defended in behalf of its vendees, contesting the claim of plaintiff in error to the land. The ease was submitted to a jury upon special issues, and judgment was rendered December 7, 1915, in favor of all of the defendants, including the Angelina County Lumber Company. In due time the plaintiff in error filed his motion for a new trial, which was overruled. On December 6, 1916, plaintiff in error filed his application for writ of error to this court. The application states the names and residences of all parties to the suit and the judgment, with the exception of Rosabella G. Henning and the Angelina County Lumber Company, who are not made parties defendant in the application. The transcript was filed in this court on the 27th day of March, 1917. On the 30th day of May, 1917, a motion was filed by the defendants in error, who were made parties by plaintiff in error in his application, to dismiss this 'appeal because plaintiff in error did not in his application state the names and residences of all the parties adversely interested to him in this: That said petition for writ of error failed to state the name and residence of Rosabella G. Henning, a defendant in said cause, and failed to state the name and residence of the Angelina County Lumber Company, a defendant in said cause, alleging that said parties defendant were adversely interested in this cause to" plaintiff in error. Plaintiff in error contests this motion upon the ground that it was not filed as provided by rules 8 and 9 of the Court of Civil Appeals (142 S. W. xi), rule 8 requiring:

“All motions relating to informalities in the manner of bringing a case into the court shall be filed within thirty days after the filing of the transcript in the Court of Civil Appeals, otherwise the objection shall be considered waived if it can be waived by the party”

—rule 9 requiring:

“Motions to dismiss for want of jurisdiction to try the case and for such defects as defeat jurisdiction in the particular case and cannot be waived, shall also be made and filed at the same time; provided, however, if made afterwards they may be entertained by the court upon such terms as the court may deem just and proper.”

The only question to be determined is whether the defects pointed out in the motion to dismiss defeat the jurisdiction of this court and under the law not subject to waiver. From the pleadings in the case and from the judgment, it appears clearly that Rosa-bella G. Henning and the Angelina County Lumber Company are adversely interested to plaintiff in error and should therefore have been made parties in tbe application for writ of error and their names and residences should have been given as provided by statute. Rosabella G. Henning is one of the original defendants in the suit, and no judgment was taken against her. The Angelina County Lumber Company, defending on behalf of its vendees, admits its liability to them in case plaintiff in error should show title to the land, but stoutly contests the claim of plaintiff in error to the land. The judgment concludes as follows:

“Wherefore it is ordered and adjudged by the court that the plaintiff, J. A. Dunnagan, take nothing by his suit herein against the defendants, or any of them, to wit, East Texas Colonization & Development Company, a corporation, W. J. Patterson, Angelina Orchard Company, a corporation, S. B. HayteiyT. M. Hooks, and Rosabella G. Henning, and that all of said defendants recover from said plaintiff their costs in this behalf, for which let execution issue,” etc.

Further quoting from the judgment:

“And under the judgment of the court, as above set out, it appearing that the Angelina County Lumber Company made party defendant' herein on its warranty of title of said land is not liable by reason of the fact that there was no failure of title. It is the judgment of the court that the other defendants take nothing upon their plea against said Angelina County Lumber Company, because of there being no failure of title warranted by them, and that said company go lienee without day and recover its costs in his behalf expended.”

The judgment rendered in the district court is an entirety, and the rights of the parties are not severable. This court, therefore. cannot revise it without all the parties adversely interested to plaintiff in error being before it. The questions raised by defendants in error go to the jurisdiction of the court, and c-annot be waived except by the voluntary appearance of the parties, Rosabella G. Henning and the Angelina County Lumber Company, which they have not done.

When parties adversely interested are'not made parties to the writ of error, or petition therefor, the Court of Civil Appeals has no jurisdiction of the case; and, while a motion to dismiss for want of jurisdiction should be filed within 30 days after the filing of the transcript, as directed by rule 9, no waiver results from the failure to so file. Ferguson v. Beaumont L. & B. et al., 154 S. W. 303. Plaintiff in error cites Murphy v. Williams, 103 Tex. 155, 124 S. W. 900, as upholding his contention that defendants in error waived their right to urge a dismissal of this appeal, because their motion was not seasonably filed. The extent of the holding of the Supreme Court in that case is that objections to irregularities in the appellate proceedings which do not render them void and entirely defeat the jurisdiction of the appellate court, such as misdescription of the judgment of the trial court in the petition and bond for writ of error in the Court of Civil Appeals, are waived by failure to raise the question in the latter court. It appears that the application in that case for writ of error described the judgment in every particular with the exception of the date of the judgment. The case was heard in the Court of Civil Appeals without objection, and was raised by motion for the first time in the Supreme Court. The Supreme Court held further that the judgment was sufficiently described so as to identify it, and that the motion to dismiss would have been without merit had it been seasonably filed and urged in the Court of Civil Appeals.

It will be borne in mind that this suit was against Rosabella G. Henning together with the other defendants, not only for the land in controversy, but for a large amount of damages as shown by plaintiff’s petition, and the judgment not only concludes the rights of the parties with reference to the title to the land, but also with reference to the claim for damages.

With respect to that part of the motion of defendants in error as to the Angelina County Lumber Company and Rosabella G. Henning not being made beneficiaries in the bond, we would not dismiss the case on account of a defective bond, but under the statute would give plaintiff in error the right to amend his bond.

We are of opinion that the failure to make Rosabella G. 'Henning and tbe Angelina County Lumber Company parties defendant to the writ of error, as set up in motion of defendants in error, precludes this court from considering this appeal for want of jurisdiction. Article 2088, 'Vernon’s Sayles’ Tex. Civ. Stat.; Young v. Russell, 60 Tex. 684; McKnight v. McKnight, 124 S. W. 734; Clark v. Lowe, 58 Tex. Civ. App. 576, 124 S. W. 733; Pryor v. Krause, 150 S. W. 972; Ferguson v. Beaumont L. & B. et al., 154 S. W. 303.

The motion is sustained and the writ of error dismissed.
      <SS=>For omer cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes