author: WALKER, J.

text:
    SOUTHLAND-GREYHOUND LINES, Inc., v. COTTEN.
    No. 2193.
    Court of Civil Appeals of Texas. Beaumont.
    June 30, 1932.
    Rehearing Denied Dec. 28, 1932.

      H. M. Kinard, of Orange, Barnes & Barnes, of Beaum'ont, and John H. Awtry, of Dallas, for appellant.
    Dies, Stephenson & Dies, of Orange, for appellee.
   WALKER, J.

This was a suit by appellee, E. E. Cotten, against appellant, Southland-Greyhound Lines, Inc., for damages for personal injuries to his wife, and for damages to :his automobile, resulting from a collision between one of appellant’s buses and appellee’s sport model Ford coupé, on the Beaumont-Orange Highway in Orange county on the evening of November 9, 1929, between 6 and 7 o’clock. Appellee had with him in his car his wife and young daughter about ten years old, and was driving from Beaumont to Orange. The collision occurred on the west side of Coale’s creek, that is, on the Beaumont side, about eight miles from Orange. At this point there was a bridge across the creek, and on the west side of the creek were guard rails for some distance up to the bridge, on both sides of the highway. As appellee approached the bridge, a six-wheel log truck, loaded with logs, was parked on the highway on the west side of the bridge, headed towards Orange. The truck was near the guard rails, with the right wheels off the pavement, bogged down, and the left wheels on the concrete pavement. Immediately behind the truck, also headed towards Orange, was parked a Chevrolet car. This car was parked as near the guard rails as possible, with its right wheels off the pavement and the left wheels on the concrete pavement.' It was dark and drizzling rain at the time. As appellee drove up to these parked cars, he saw a car approaching him from towards Orange and, believing that he did not have time to drive around these two parked cars in time to avoid a collision with the approaching car, he brought his car to a stop immediately behind the Chevrolet car. A moment or two after he stopped his car he was hit by appellant’s bus, which had been following closely behind him for several miles. Upon trial to a jury appellant was convicted' of actionable negligence in (a) driving at a dangerous rate of speed, (b) driving with defective brakes, and (c) driving without keeping a proper lookout;- - The jury found in appellee’s favor on all defensive issues such as contributory negligence, sole proximate cause, etc., and assessed his damages at $30,167.50. From judgment in his favor for that sum the appeal was duly prosecuted to this court.

Appellant asserts that “the overwhelming preponderance of the evidence is contrary to an affirmative finding that the brakes on the bus in question were inadequate.” This proposition is overruled. Mr. George A. Foreman, a passenger on the bus at the time of the collision, testified;

“I was sitting in the front. I was acquainted with the driver of the bus. I know his name, it was Norris, J. T. Norris. It was drizzling rain at the time this collision occurred. I have driven cars about fifteen years. I have had occasion to use brakes to bring them to a stop. * * * I saw the car ahead of us when it was brought to a stop, that is the car with which we collided. I saw that car stop. I would judge that car was several hundred yards ahead of us when it was brought to a stop. I would say it was over 100 yards, anyway, ahead of the bus. I state to the jury I was riding in the front part of the bus and saw the car ahead of us with which the bus collided when that car was brought to a stop. The bus driver drove up within a distance of about, I should think 75 feet of the car that was parked, or the car that was stopped ahead of him, and I thought he was going to stop, and he pushed his clutch, I guess it was his clutch in and did not seem to get any response from the ear and he pulled his emergency brake, the emergency brake is the brake in the middle of the car, what I would call the emergency brake, and it did not stop the ear any, the car just slided right on down and hit the car ahead of it. As he was going into it — after he started to stop and going down to the car, he said, T am bound to hit, I am bound to hit them. I am bound to hit them.’ He wasn’t talking to me any more t.han he was anyone else. I was in the seat just back of him, looking right over his shoulder. Immediately after the collision occurred I had occasion to examine the brake of that bus. When the collision occurred, I don’t know whether all got out of the bus or not, but several did. Mr. Norris did, and so did I, and one or two-others, I don’t know who they were — he talked to the folks in the car. I walked down and looked at the wreck where the car had hit — where the bus had hit t'he other ear, and I come back to the bus before he did, and I just got in the seat, the driver’s seat, and tried the brake to see if it would work, and it did not seem to — it pulled right on up easy, pulled clear on back without any resistance whatever. The driver and I talked about the collision coming in town after the wreck. I said ‘Norris, I don’t think, you are to blame for the aecident.’ I said ‘it is the fault of the ear, you have got no brakes on the car,’ and I said ‘If I was you, I would be mighty careful driving from here into Orange.’ He says ‘I am going to be careful,’ something similar to that, that is about what was said.”

Since the finding on the issue of defective brakes is sustained by the evidence and is sufficient to support the judgment in appel-lee’s favor, we pretermit a discussion of the propositions, challenging the finding that the speed of the bus was negligent and that the operator of the bus failed to keep a proper lookout at the time of the collision.

The jury was given the following definition of “proximate cause” and of certain terms used in the definition:

“You are instructed that the term ‘proximate cause,’ as that term is used in the following issues, means a moving and efficient cause, without which the injury in question would not have happened; an act or omission becomes a proximate cause of an injury whenever such injury is the natural and probable consequence of the act or omission in question and one that ought to have been foreseen by a person of ordinary care and prudence in the light of attending circumstances. It need not be the sole cause, but it ■must be a concurring cause, which contributed to the production of the result in question and but for which the said result would not have occurred.
“The term ‘moving cause,’ as used in the above definition, means that cause which is present and acting in bringing about the re-, suit.
“The term ‘efficient cause,’ as used in the above definition, means simply the working cause, or that cause which produced effects or results.”

Error is assigned against this definition on the following grounds: (a) It did not include “the idea of continuous sequence unbroken by an independent cause”; (b) “it reduced proximate cause to a contributing cause, or merely to a concurring cause”; (c) it failed to submit the idea of “new and independent cause.” As against these exceptions this definition of “proximate cause” was sustained in West Texas Coaches, Inc., v. Madi (Tex. Civ. App.) 15 S.W.(2d) 170, on authority of Texas & P. Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, and Seale v. Railway Co., 65 Tex. 274, 57 Am. Rep. 602.

The trial court’s definition of “efficient cause” was taken from Words and Phrases, First Series, vol. 3, p. 2323, on authority of Pullman Palace Co. v. Laack, 143 Ill. 242, 32 N. E. 2S5, 18 L. R. A. 215, and we think was sufficient to give the jury a reasonably satisfactory understanding of the meaning of the term. In Blanch v. Villiva (Tex. Civ. App.) 22 S.W.(2d) 490, we suggested certain definitions of this term, chosen by us from Words and Phrases; after a careful review df all the definitions cited’ by this excellent' and most comprehensive work. But, though we did not select the definition given in this case, we do not think it should be construed as error.

As against the definition of “proximate cause,” exceptions were also reserved to the court’s refusal to define the term “natural consequence” and “probable consequence.” These terms were not separately submitted in the charge, as the exceptions would suggest, but the one term “natural and probable consequence” was used. On authority of Rio Bravo Oil Co. v. Matthews (Tex. Civ. App.) 20 S.W.(2d) 342, we do not think it was error to refuse to define this term. In the case cited we held that “natural and continued sequence” were ordinary words of- simple meaning and required no definition. For other authorities in point, see Texas & Southwestern Digest, Trial, @=>219, where most of the cases on this point are digested.

Though requested by appellant, the trial court refused to submit to the jury the following issues of sole proximate cause: (a) The failure of the driver of the log truck and the driver of the Chevrolet car, as these cars were parked ahead of appellee’s Ford coupé, to have proper lights ou their cars to warn traffic on the highway; (b) the act of the driver of the log truck and the driver of the Chevrolet car in parking their cars on the highway; (c) the failure of the driver of the log truck and the driver of the Chevrolet car to place signals or post a watchman in front of and in the rear of their cars to warn traffic that their cars were parked on the highway. As grounds of contributory negligence against appellee, the court refused to submit the following issues, requested by appellant: (a) The failure of appellee to have his ear properly lighted in the rear; (b) as to whether or not appellee could have driven around the parked cars ahead of him at the time and place in question, and thereby have avoided the collision; and (c) the issue as to whether or not appellee kept a proper lookout for the approach of traffic. These issues were all pleaded by appellant, and by appropriate propositions it is urged that the refusal to submit them to the jury constitutes reversible error. These issues were all properly refused, in that, under the undisputed evidence, they were not raised as fact issues of sole proximate cause or of contributory negligence. The testimony of the driver of the bus fully supports this conclusion. The driver, Mr. J. T. Norris, testified as follows:

“My name is J. T. Norris. In November, 1929, I was driving a bus from Beaumont to Orange. My bus was involved in a collision. * * * It was raining at the time and we approached this bridge here. Several miles back up the road there was a Ford car passed by the bus, and I followed this car for some distance, and as we approached the bridge at this creek, this car ran up or drove up behind a truck that was parked on the road and stopped, but owing to the fact that there was some very bright lights I did not see the truck —I couldn’t see the truck, and at the time I saw the Ford stop, it stopped very suddenly in front of me, driving a heavy bus, and I couldn’t stop, and eased it into the back end of the Ford. There was a car coming from the opposite direction, I say. The cars — ■ there was several cars approaching at that time, that is, I passed a car just before and then another one about the time I got to it, there were some very bright lights, very blinding lights ahead. * * * I was about 50 or 75 yards from the ear I ran into before I was blinded by the lights. When I came out of the blinding lights so I could see there I was I judge around 50 or 60 feet, around 50 ft. from it. I did not see the Cotten’s car stop light flash through the headlights of those cars. I did not see any stop light at any time. * * * If I had known that the Cotten car had stopped when it was at fifty or seventy-five yards ahead of me, I could have had time to have stopped, and would have been in position to have stopped. I did not see any sign of the car stopping when it was fifty or seventy-five yards from me. Í was following it, as I went into the light, ju'st like I had been following it all the way from Beaumont, after I come out of it the car was stopped. In other words it seemed to me like the car just stopped. When I come out of the light, it was standing there stopped.
“ * * * On the day this collision occurred, I was following Mr. Cotten. That is, he had passed me back up the road. I had been following him several miles. I could say it was over two miles. I really did not know. Like I say, several miles. I had been trailing him several miles. I was driving about 50 or 75 yards, may have been from that to 200 yards, just driving on what I consider a safe distance. I don’t know. I may have been a little closer at times and a little further at times. At this particular time I had been driving about twenty-five miles an hour. I believe I was approaching a bend at the time this collision occurred, slight bend. There is a bend in the road. I don’t know, some people call it a sharp bend, some don’t. It is not so sharp. I tell the jury I was 50 or 75 yards and trailing Mr. Cotten at the time he stopped his car, and I have ^tated at the time he stopped his car I wás looking straight ahead. I did not say I saw him when he brought his car to a stop. I said I saw the car, looked like it was practically stopped. There was a bright light come up, I was following him, and when I come out of this light this car was suddenly stopped. I had been following him. I stated in the former trial of this case I was looking at him at the time he stopped and he was 50 or 75 yards away when he did stop. I had been watching his car all the time. That is true, I had been watching the car all the way. I saw the car just as it stopped. It was 50 or 75 yards from me when I drove into that light. I think I stated on the former trial of this case I had my eyes on the car at the time it stopped and it was 50 or 75 yards from the car at the time it did stop.
“ ⅜ * * Q. If you saw him 50 or 75 yards before the collision occurred, there wasn’t anything to stop you after that time, is that your answer? A. I might before that —no sir, I was watching. After I saw the car stopped, there wasn’t anything to obstruct my view.
“ * * * i judge the lights on that car that I was driving were shedding their light 75 yards, something like 75 yards. My lights were reflected on the back of this car at the time, and I could see Mr. Cotten’s car at that distance. When I saw Mr. Cotten’s ear stopped a distance of 50 or 75 yards before the collision took-place, the car that Mr. Cotten stopped for to pass the truck must have been 75 yards the other side of this truck, that is it must have been 75 yards on in the direction of Orange from Mr. Cotten’s car at that time. It would not have been safe for Mr. Cotten to have attempted to go around the car ahead of him on account of that approaching car. * * ⅞ tiie time I was trailing the car of Mr. Cotten he had a red tail light on his car. It was just a park light. That was shining at the time I struck him.”

From this testimony of Mr. Norris it appears clearly that he was driving closely behind appellee’s car, that appellee’s car was in the range of the bus lights when it stopped, and that he saw appellee’s car stop. Thus, it appears conclusively that none of the matters submitted by these requested issues could have been the sole proximate cause of the collision and, if appellee was negligent in any of the respects charged against him, such negligence was not a proximate cause of the collision and; therefore, not an act of contributory negligence.

Issue No. 12 was as follows: “Do you find from a preponderance of the evidence that the plaintiff, E. E. Cotten, at the time and place of the collision, did not have his car properly lighted at the front and rear?” Appellant challenges this issue as being duplicitous, in that it submitted in one question the inquiry as to the lights on the front and the rear of appellee’s car. Under all the evidence, appellee had a tail-light on his automobile and it was burning at the time of the accident. There is some testimony to the effect that he did not have a stop light, but no testimony that he did not have a tail-light; in fact, as shown by the testimony of Mr. Norris, he admitted that appellee had a tail-light and that it was burning. If there is any testimony to the effect that appellee did not have a tail-light, it was only of a negative nature, and could have no probative force against the testimony of the driver himself. Also, it ■should be said that this issue was immaterial in that Mr. Norris had appellee’s ear in full view at all times and the presence of lights on the car would not have given him any information he did not have.

We overrule appellant’s assignments against the court’s definition of unavoidable accident, which was taken literally from the ■definition given in Stedman Fruit Co. v. Smith, 28 S.W.(2d) 622, and there approved in an opinion by Mr. Chief Justice Hightower of this court.

Appellant challenges the jury’s verdict, assessing damages for', nurse hire, incurred by appellant' for his wife, on the grounds: (a) It was without a scintilla of evidence in its support; (b) appellee, who testified bn this issue, was not a qualified witness. These objections are overruled. The girl employed by appellee to wait upon his wife was' about twenty years old; there was no testimony' that she was a trained nurse or that her services were technical or professional. On the contrary, the testimony was that she lived in the house with appellee and his wife and -waited upon appellee’s wife, performing the necessary services in caring for her. On this Issue appellee testified:

“I have someone to stay with my wife, a nurse. It is necessary for me to keep a nurse there all the time. I have had a nurse there ever since my wife was injured. I pay her about $5.00 a week and feed and clothe her, room and board. It would be pretty hard for a fellow to estimate how much that would-'be per month. Including the. amount I pay her and board and lodging, I imagine it would be'somewhere around, expense would be somewhere around $40 or $50. Of my own personal knowledge; I know it would be somewhere around $40 or $50, a month.”-
“The nursing charge I heretofore mentioned, that is a reasonable charge for that service.”
“Miss Fontenot is about twenty. Her father and mother are dead. She is making her home there with us. I take care of her and give her money when she needs it. She •costs me around $50.00 a month to keep her. I feed and clothe her. I give her a salary.”

Mrs. Ether Gotten testified as follows: “I have a girl waiting on‘me in the home. We take care of her board and room and pay her. It amounts to about $50.00 a month. That is a reasonable charge for those services.” City of Dallas v. Moore, 32 Tex. Civ. App. 230, 74 S. W. 95; Dallas Consolidated Electric St. R. Co. v. Carroll (Tex. Civ. App.) 152 S. W. 1165.

The submission to the jury of the is■sue. of damage to appellee's, car was excepted to on the ground that there was not a scintilla of evidence in the record as to the fair and reasonable market value of the ear immediately before the collision in question. This objection is overruled. The testimony of Mr. C. A. Garrett on this issue was as follows:

“My name is C. A. Garrett. I live in Orange, 704 Fourth Street. My business is Ford salesman. I have been engaged in, that line of employment six years. I had occasion to examine an automobile owned by Mr. B. E. Cotten about the 9th day of November, 1929. I knew that car prior to that time. At the time I had occasion to examine the car on Or about the date-1 have just mentioned, it had been in a collision. I was acquainted with the market value of second-hand Ford cars at that time. This was a sport coupe. I was' acquainted with that value in the vicinity of Orange. I had had occasion to sell secondhand Ford automobiles prior to that time and at the time and since then. I know the cash market value of that car owned by Mr. Cot-ten immediately before the collision occurred and in the vicinity of Orange.”
“At the time I last saw that car before the collision occurred, the actual selling price- of that car was $500.09. I had occasion to inspect that car immediately after the collision occurred. I offered him $275.00. That was the actual cash market value of it at that time.”
“I couldn’t say the value I estimated on the car as $500 was three weeks before the collision. It was no longer than a week.”

The point appellant makes is that an examination of the car a week before the collision cannot afford a basis for estimating its value -at the time of the collision. For the week following the examination of the car by Mr. Garrett there was no evidence that it was abused. In fact, Mr. Cotten testified that he had driven it up. to Saratoga, in Hardin county, a distance of about sixty-five miles, and was driving it home, and there was.no ev idence of the least abuse of the car other than would follow from its ordinary use. 5 Tex. Jur. 649; 13 Tex. Jur. 415; Hartford Fire Ins. Co. v. Ry. Co. (Tex. Com. App.) 239 S. W. 919, support this ruling.

The verdict in favor of appellee for the damages suffered by his wife is challenged on the following grounds:. (a) It is excessive; (b) there was no evidence in the record as to the value of the wife’s services to appellant, nor was there any allegation of the life expectancy of the appellee, nor was there any allegation of the life expectancy of the wife or the value of the wife’s services; (c) there was no pleading or proof as to the amount.Mrs. Cotten could have, .earned during the remainder of her life, nor as to the- length of. time she would have been;able to earn wages, nor was there any pleading or proof as to the value of her services to appellee had she not been injured. These exceptions are all overruled. There was no special exception challenging the sufficiency of appellee’s petition in the respects assigned. In its statement under these propositions, ’appellant does not quote from the pleadings in support of its assignment of their insufficiency. An examination of appel-lee’s trial petition shows that he pleaded his damages generally, and the facts upon which his claim was based. If appellant desired a more specific pleading, the defects in the pleading should have been called to the trial court’s attention by special demurrrers. It was not necessary that appellee prove specially the value of the services of his wife, as this is a matter of common knowledge; the value of the wife’s labor does not admit of direct proof. 13 Tex. Jur. 402. The testimony was that appellee was thirty-eight years old and his wife thirty-six years old at the time of the collision. Given their ages, their life expectancy was a matter of judicial knowledge. Appellee testified as follows as to the extent of his wife’s injuries and the expense occasioned thereby:

“I stated we carried my wife to the hospital. I saw her after she arrived at the hospital. She was vomiting. * * * Since this' collision occurred, my wife has been an invalid, and I don’t know, just everything wrong, looked like, with her, invalid —can’t eat, can’t sleep, can’t sleep, can’t rest; can’t do anything only just suffer all the time. She remains in the bed all the time. She is under the care of doctors all the time. I know how much she weighed at the time this collision occurred. It was 13pounds. I would judge she weighs now somewhere around seventy or seventy-five pounds, maybe more, maybe not so much. I could not tell you exactly. She has to lay on a cot with' twelve inch boards under the bed, where there will be no springs, don’t you see, and she has to stay propped up on this bed all the time. She can’t lay on her side, just has to lay right on her back all the time. She suffers with her head and shoulders and down her spine. Her right limb is paralyzed from here down, no feeling whatever. She can’t move it, and the doctors can’t find no feeling in this right leg here, along here from down there. That is from ‘here’ about the waist, on to the bottom of her foot. She is not able to go or move from place to place by herself. She can’t get out of bed at all. She couldn’t get out of the bed if it was afire. She would just have to stay there, that is dll. She can’t use herself, she couldn’t walk, and she couldn’t crawl. If she was to fall off the cot, she couldn’t crawl off. If it is necessary to move her from place to place, I carry her in my aims like she is a baby, and when I am not in the house the girl carries her.
“I have someone to stay with my wife, a nurse. It is necessary for me to keep a nurse there all the time. I have had a nurse there ever since my wife was injured. I pay her about ¡¡55.00 a week and feed and clothe her, room and board. It would be pretty hard for a fellow to estimate how much that would be per month. Including the amount I pay her and board and lodging, I imagine it would be somewhere around, expense would'be somewhere around $40 or $50. Of my own personal knowledge, I know it would be somewhere around $40 or $50 a month. My wife was in good health immediately before this collision occurred, before she received these injuries. She was able, to do her household work prior to that time. She did do it. Prior to the time my wife was injured, she cooked and she washed and she kept boarders and milked cows, and just anything that there was to do around the place, and used to, when we lived on the farm, she helped me just anything there was to do on the farm, she would do it, picked cotton, chop cotton, or anything like that, she helped, and since I have been working around oil fields and sulphur fields, she has been keeping boarders and doing her household work. I have had doctors attend my wife since she was injured.
“They have given her (meaning doctors), I reckon, everything there was to give her. They have given her medicine to make her sleep. They tried that a while, and they quit it. It did not have any result and they did not give it to her. My wife used to get an hour’s sleep at night, about an hour, but now maybe it is seventy hours before she sleeps a bit, and maybe it is fifteen or twenty minutes, maybe thirty minutes, maybe not so long. She has got dark circles around her eyes here. They come from around here down on her cheek bone like, big around both eyes. They are beneath her eyes. They don’t go above no further than the eyes, something like that. My wife is not able to retain food. She can’t eat anything. She can’t sleep, she can’t drink nothing hardly, everything she eats or drinks swells and bloats her in the stomach and makes her sick all in the stomach, she vomits and it shortens her breath.”
“I stated that I have had some four or five doctors attend my wife. * * * I have paid some of them and some I haven’t paid. The amount of money I have paid to these doctors for attending my wife, since she received these injuries, and as a direct result of the injuries, besides what I owe, would be hard for a fellow to get to, unless he kept right up to it, but I figure around $1500 or $2000. I think what I have paid the 'doctors and what I am due them now is somewhere around there, it cost me Mr. Stephenson. I think I owe these doctors now somewhere around $1800 or $1900, here in Orange, and I owe that one in Louisiana some. I don’t know just how much. I will have to find out about that and I owe Dr. Bell in Liberty. I don’t know what his hill is, and I don’t know exactly what Dr. Barker’s bill is at Thibodeaux.”
“I testified in this case yesterday. I have determined the amount of money that I have paid out on account of the injuries received by my wife in this collision. It is approximately about $850.00. That is the amount I have paid out in money. I have incurred some bills which have not been paid. I have become liable and bound to pay obligations that I have incurred on account of the injuries received by my wife, for medical purposes, doctor’s visits and such like. It is about $1375, something like that. That is medical services rendered by doctors for my wife. That is a reasonable charge for that service. I have incurred obligations for medical treatment for my wife on account of the injuries she received in the collision mentioned in plaintiff’s petition. I am acquainted with the amount due. I know of my own knowledge the amount of the obligations. I owe Dr. Barker $200.00.”
<■***1 pnow 0ne thing, I was making and saving $200. a month and I aint saved a dime since, spent all I had. I had been saving $200 a month something like a year, hardly so long. I had saved up something like $2400 in cash. Take all my expenses, what this called for, it taken all I had and all I could make since then.”

Mrs. Ether Gotten testified as follows:

“My age is thirty-seven the first of November. I have been married seventeen years. E. E. Gotten is my husband. I have one child. That is a girl. ⅜ * * At the time I was married I was in absolutely good health. * ⅜ * I was able to do my household work at that time. I was able to do my household duties and also I worked in the field. That was when we were farming, I picked cotton, chopped cotton, thinned corn. I had duties around home. I milked my cows and did my washing and ironing. I moved from there to Saratoga, Texas. I did my household work while I was living at Sara-toga, Texas. * ⅜ * I kept boarders. At times I kept from six, eight, ten, twelve, something like that. I did the cooking. I did my washing, ironing, and all my household work. I milked my cows. * * * We then moved to Rosenberg, and from there we went to Boling, Texas. ⅜ * ⅜ I had the measles at Bolling. That is all the sickness I had there. I never did suffer with ány other character of ailment or disease other than having the measles.”
“Since this collision took place, I have just suffered death. I haven’t had a moment’s ease since I was hurt, from my head plumb down. My head, my back, my left limb, the ankle, the knee, and hip, my shoulders, and I haven’t had a moment’s rest since I was hurt. I suffer death all the time. I haven’t had a moment’s ease, can’t sleep, can’t eat, and can’t rest, can’t turn over, can’t get over on the left side or right side, can’t raise up, just like you see me lying is the way I have to lie all the time, can’t lie down, can’t get any lower than you see me now. My right limb is perfectly dead, doesn’t have any feeling at all from the short ribs down, just half down, I am not able to go from place to place by myself. I am not able to get up from the position in which I am compelled to remain. When they move me, they carry me in their arms, just like you would carry a baby. My husband carried me in his arms, just like you would carry a baby. I recall how much I weighed at the time this collision occurred. I weighed 13 7 ½, pounds at the time. . My health was good at that time. I had never had any serious sickness or ailment prior to that time, except the measles. I had never suffered from spinal meningitis. I" had never had pellagra or any kind of disease like that. It is necessary for me to have a- nurse or someone in the home to take care of me. That has been necessary ever since I was hurt. Before I was married to Mr. Gotten and up until my marriage, the condition of my health was good. I don’t have any rest at all. I am compelled to lie in the position I now occupy. I have to lay just like you see me here, on my back, lie flat like this, can’t lower myself. I have to lay on a cot with twelve-inch boards, can’t lay on a spring, have to lay on a twelve-inch board on a cot with a mattress. The position I am now assuming is almost a sitting position. That is just the way I stay all the time. I was brought into the court room today in an ambulance. I never told anyone that I had suffered from meningitis. I never did suffer with any of the pains that I am now suffering from before I received these injuries in the collision. My hearing is not as good as it was. It has been impaired. I can’t see to read, can’t see to write or sew or anything like that. I can just see big headlines on anything and it makes me sick, sick, sick. Everything I look at close to me, it makes me deathly sick. I did not suffer from any of these conditions previous to this collision. I have a girl waiting on me in the home. We take care of her board and room and pay her. It amounts to about $50.00 a month. That is a reasonable charge for those services. This nurse lives in the home with me and my husband and daughter. ⅜ ⅞ * . I recognize this picture. That is a picture of myself. That was taken two weeks4 before I was hurt. * * * I weighed 137½ when this picture was taken. I don’t know what my present weight is. It is estimated between seventy and seventy-five pounds. That is my daughter present there with me.”

Dr. O. J. Barker, appellee’s family physician, testified that he had had Mrs. Cot-ten under his care. “She is very much emaciated; she would weigh about eighty pounds; she doesn’t sleep well; she is suffering from paralysis of her right leg. She is unable to move at all; it’s insensible to heat; she can’t move it. There is some discoloration to her eyes. * * * From my examination of Mrs. Cotten, and from the history of her case as related to me by her, in my opinion it looks like the cause of her present condition is some injury. It would look like Mrs. Cotten is permanently, totally disabled from the length of time she has been in that condition.”

Dr. J. E. Bell testified that he knew Mrs. Cotten about four years ago and began treating her about six weeks ago. She had lost about thirty or forty pounds in weight since he first saw her. “She has a wasting of the right leg and flaccid paralysis of the right leg, loss of sensation in the entire leg from the foot up to the crest of alignment, she has alternate periods in which the abdomen distends, gas and bloats up until she is immense in size, then this goes down and she is hardly ever — bowels hardly ever move, she will go sometimes a week, almost paralysis of- the bowels. She is in a very nervous condition, she says she doesn’t sleep hardly any at all * * * . and she is continually in pain. * * * From my examination of Mrs. Cotten and from the history of 'her case as related to me by her, I think no doubt the injury resulted in the paralysis'of the leg. Prom my examination of Mrs. Cotten and from the history of the case as she related it to me, I think there is no question but that she is permanently, totally disabled.”

The testimony of these two doctors was in all things corroborated by Dr. P. W. Lawson and Dr. Wiley O. Jones. Dr. L. O. Thompson, a witness for defendant, testified: “I would not undertake to tell the jury that the injuries of Mrs. Cotten, received in this collision, are not the cause, of her present condition. ⅜ * ⅜ In my examination and in my care I found evidence of traumatism which might produce paralysis.”

Appellant asked Dr. II. E. Giddings, who was testifying by deposition, the following question: “If it be tr.ue that several years prior to the illness for which you treated Mrs. Cotten she 'had suffered a severe attack of spinal meningitis and had suffered an attack of pellagra, which caused serious damages, and if it be true that during March, 1929, she suffered a. rather serious attack of measles, and during • that attack • she at times. suffered a paralytic condition of the body, losing control of her body and suffering stiffness of the' limbs, and if she suffered those conditions when she was sick with meningitis, then, doctor, in your opinion is she liable to have a return of those paralytie conditions even without suffering any traumatism? A. (Not allowed) Yes it’s possible.”

H. E. Giddings, deposition taken October - 7,1930:

“To Direct Int. 14:
“Mr. Stephenson: We object to it, leading. Based upon assumption he has knowledge of certain facts.
“The Court: Sustain the objection.
“Mr. Barnes: We except.”

Appellant’s hypothetical question was based upon the testimony of Mrs. A. B. Gladney that she knew Mrs. Cotton and at one time helped nurse her through an attack of measles, and that Mrs. Cotten told her that at one time while living in Polk county she had had an attack of spinal meningitis and would have “kinda stiff spells and she wouldn’t be able to raise her head off the pillow. Mrs. Cotten mentioned having pellagra during the time when I knew her.” Mrs. O, E. Stevens testified: “Mrs. Cotten told me that she had spinal meningitis once before she came here— she was not always in control of her body and limbs during that illness, she would lie there lifeless for about a week that I know positive of. * * Mrs. Cotten did not mention her condition when she had meningitis as compared to a condition when she was suffering with measles when I knew her.” We do not’ think this testimony formed a predicate for the question asked Dr. -Giddings, in that it was not shown that the conditions, suffered.by Mrs. Cotten prior to the collision ¿nd referred to in the question as “those paralytic conditions,” were similar to the condition following the collision. But if improperly excluded, this ruling should not constitute reversible error. Appellant correctly asserts that whether or not this ruling was harmful depends upon the full consideration- of the whole record. On the issue suggested by this question and answer appellant offered the following expert testimony: “In iny opinion I should not think the paralysis of a party suffering a traumatism would be due to the trau-matism if the party involved in the trauma-tism should have been taken into a hospital immediately after the traumatism was suf-fered and had been under the care and observation of a competent physician for a period of approximately two days, and dur-; ing that time he found no fractures, no evi-' dence of severe contusions and discharged her at the end of that time because he found no evidence of any injury which would necessitate his further treating her or keeping her' in the hospital, and then after a period of three or four months she develops paralysis.. I should not think the paralysis would be due to that traumatism after having gone that long without showing symptoms.”

Then Dr. Pearce, in concluding his testimony, said: “If there is nothing there to suggest traumatism to any parts, I shouldn’t think that the injury had anything to do with a paralysis that might show up four or five months later on. When I went to see her, I told her would like to have her at the hospital a day or two so that we could get some tests made. It could be possible that that-paralytic condition that did develop-in the following March might be due to an acute attack of nephritis or Bright’s disease.”

Dr. L. O. Thompson of Orange,' Tex., in estimating the merits of this claim, said; “ * * There was no evidence of any paralysis’ at the time I saw her last I saw her last at the hospital. I was satisfied to have this lady leave the hospital. I did not think at that time she needed any further hospitalization or treatment from me. I saw her after she suffered the paralysis in the limb. At that time I made a- request for a laboratory test and further examination. I did not get that permission given to me.”

Dr. H. E. Giddings) testifying by deposition, said: “I found Mrs. Ootten in a.stupefied and highly nervous state upon my first visit. At that time I called in additional medical help, Dr. Toxie Davison. That case at that time was.in .such a state as to make me recommend and secure a nurse * * ⅜ Mrs. Ootten was suffering from measles at that time; It was'a rather severe attack of that disease. * ' *■ * In giving me her history as to prior sickness and- disease, she mentioned some nervous disease, I do not know the nature of it,' that she had some time before.”

Then Dr. Giddings, in' a letter dated May S, 1930, written to Mr.’ Stevenson,' appellee’s counsel, testified in this language: “When I was called to see her March 11, 1929, she was quite nervous. She was suffering with a very high fever and lay in a stupefied condition. * * * During the attack of measles Mrs. Ootten was in a highly nervous state, .simulating an attack of paralysis.”

In view of this testimony by recognized ev-perts, it should be said that, if the exclusion of the answer, “yes)'it’s possible,” to the hy-, pothetical question was error, the error was harmless.

There is no merit in the contention that ap-pellee failed- to allege facts -showing that the driver of the bus, J. T. Norris; at the time and place in question, was actually engaged in the course of appellant’s employment. That fact was alleged generally and the evidence, admitted without exception, was undisputed that he was the driver of the bus in full charge of it at the time of the collision.

The court improperly refused to sustain appellant’s peremptory challenge to the juror Mr. R.- E: McKague. This juror testified that he knew appellee, had visited in his home oil a number of occasions, was present in the courtroom during a part of the previous trial of this case, and heard argument of counsel on the previous trial. But appellant’s exceptions to this ruling of the court does not show injury, that is, having exhausted one of his peremptory challenges on the juror R. E. McKague, the record does not show that he was compelled to accept an objectionable juror. Galveston, H. & S. A. Railway Co. v. Thornsberry (Tex. Sup.) 17 S. W. 521; International & G. N. Railway Co. v. Owens, 58 Tex. Civ. App. 177, 124 S. W. 210; Russell v. Bailey (Tex. Civ. App.) 290 S. W. 1108; 3 Tex. Jur. 487.

As stated above, I)r. H. E. Giddings, testified for appellant by depositions. Ap-pellee read to the jury the cross-interrogatory: “Do you do any medical work for insurance companies or for corporations in any' respect?” The answer was: “Yes, the Tex'-) as-Gulf Sulphur Company.” Objection was urged against this question that it “was prejudicial and inflammatory, in that it injected the idea of an insurance company’s protecting the defendant into the minds of the jury.” There was no merit in this objection. The. question and answer were admissible on cross-examination for the purpose of affect-, ing the credibility of Dr. Giddings, arid also, to show -bias or interest on his part. Wentworth v. Crawford, 11 Tex. 127; Missouri, K. & T. Ry. Co. v. Calnon, 20 Tex. Civ. App. 697, 50 S. W. 422; Shumard v. Johnson, 66 Tex. 70, 17 S. W. 398; Jimmie Guest Motor Co. v. Olcott (Tex. Civ. App.) 26 S.W.(2d) 373, 375. Also, as appellant was operating its bus under the provisions of our general statutes, requiring it to carry liability insurance, the admission of the question was without prejudice -because the jury was presumed to know this fact. Monzingo v. Jones (Tex. Civ. App.) 34 S.W.(2d) 662.

Appellant duly excepted to the following argument made to the jury by Hon. Martin Dies, counsel for appellee': “Mr. Barnes was present at the taking of these depositions, ■or most of them,” and “I know the corporation has got the advantage. They have got the money. They can go all'over the State of Texas and bring their witnesses here.” We agree with appellant, on authority of Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 39 S.W.(2d) 1091, that if this argument was improper it constitutes reversible error if,-under all the circumstances, there is any reasonable doubt of its harmful effect, or unless it affirmatively appears no prejudice resulted. Mr. Barnes, referred to in the argument, was counsel for appellant on the trial of this ease. This argument was excepted to at the time it was made, and on appellant’s request the court charged the jury to disregard it; but in submitting the charge the court failed to call the jury’s attention to the statement, “I know the, corporation has got the advantage;” As appellant failed to call-the court’s attention to this omission in the charge, the entire argument must stand as covered by the charge.

While there was no evidence that Mr. Barnes was present when the depositions were taken, two of his witnesses, one living in Jefferson county and one in Orange county, testified that he interviewed them before the trial and took written statements from them. Of course, he had the right to do that, an.d also he had the legal right to be present when the depositions of his witnesses were taken. To say that he was present at the taking of the depositions did not charge him with doing an illegal act, and was no more inflammatory than the admitted fact he interviewed certain of his witnesses and took statements from them. It is improbable that the statement that Mr. Barnes was present when the depositions were taken could have had any influence whatever on the jury. But if it was objectionable, the court’s charge relieved it of error.

The second part of the argument had some support in the facts. Many of appellant’s witnesses were nonresidents of Orange county, one living in San Antonio, Tex., one or more in Jefferson county, Tex., one or more at Bolling, Tex., one at Houston, Tex., and one or more at New Gulf, Tex. These witnesses testified that before the trial they were visited by one of appellant’s representatives and each of them gave this representative a written statement of what he knew about the case. After making these statements, the depositions of most of them were taken and read on the trial. But at least two of the nonresident witnesses were present in court and testified from the witness stand. The record also showed that immediately after the accident the names of the passengers and their places of residence were taken by one of appellant’s agents and at that time statements were taken from some of the witnesses. These facts afforded a reasonable basis for the statement that appellant was able to go all over the state and bring its witnesses to court. From this fact the conclusion logically followed that appellant “had the money.” While the proof of the investigation made by appellant in the preparation of its case for trial may not have justified the argument “I know the corporation has got the advantage,” we do not think this statement was so inflammatory, in view of the attending circumstances, that its evil effects, if any, were not eradicated :by, the court’s charge. Discussing a similar argument in Davis, Agent, v. ¡Hill (Tex. Com. App.) 29S S. W., 526, 527, it was said: “Where a matter is improperly before the jury, ordinarily, a ruling by the court to that effect, and especially an instruction not to consider-the same, will be held to cure the error. * * * The court’s instruction to the jury not to consider the same must be' held to have relieved the case of any probable error. Jurors must be presumed to have obeyed the instructions of the court, so far as they were capable, and the language complained of is not of that inflammatory character, and is not of that evidentiary nature as to preclude the conclusion that the jury did obey the court’s instruction, or even to make the matter at all doubtful.”

Believing the case was properly tried in the court below, the judgment appealed from is in all things affirmed.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    FIREMEN’S FUND INS. CO. v. FARRINGTON et al.
    No. 8943.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 7, 1932.
    Rehearing Denied Jan. 18, 1933.
    Thompson, Knight, Baker & Harris, W. C. Thompson, and Geo. S. Wright, all of Dallas, for appellant.
    Johnson & Peden, of Houston, for appellees.
   FLY, C. J.

This suit was brought by H. L. Farrington and Mrs. R. R. Le Master, to recover on a fire insurance policy issued by appellant to Far-rington on a two-story frame building owned by him in the country near Goliad. Mrs. Le Master owned a mortgage on the house. The cause was submitted to a jury on one special issue, to wit: “Was Joseph Wearden acting as the agent of the plaintiff, H. L. Farring-ton, when he delivered the fire insurance policy, issued by the defendant, to the J. M. Burns Company for cancellation on April 1, 1931?” which was answered in the negative. Upon that answer judgment was rendered in favor of appellees for $3,500, apportioned $3,-000 to Mrs. Le Master and $500 to Farrington.

The facts show that a policy of insurance against fire, on a house owned by Far-rington, was issued to appellees by the insurance company. Mrs. Le Master had a deed of trust on the property to secure her in a debt of $8,000 due by Farrington to her, and it was provided in the policy that, in case of loss by fire, the insurance was to be paid to Mrs. Le Master. The house was consumed by fire on April 2, 1931, and it appeared that on March 30, 1931, the insurance company had instructed the J. M. Burns Company, agents of the insurance company, to cancel the policy on the house. Wearden was the trustee in the deed of trust to Mrs. Le Master from Farrington. He had the policy in his possession, and, when notified that appellant desired to cancel Farrington’s policy, he went to the agent of appellant and delivered the policy to him, with the understanding that another policy in another reputable insurance company was to be delivered to him. Wear-den was the agent of Mrs. Le Master, but was not the agent of Farrington, and had no authority from him to surrender the policy for cancellation. No notice was ever given to Farrington, or any one representing him, that appellant, insurance company, desired or intended to cancel the policy. It was provided in the policy that, if a cancellation was desired, five days’ notice should be given of. such desire.

In a case much stronger as to agency than the facts .as to agency in this case, it was .held that one Bain was not the agent of the insured as to cancellation. The question was exhaustively discussed, and, although a writ' of error was granted by the Supreme Court, it affirmed the judgment of this court, and reiterated its conclusions as to the question of agency. -The writ was probably granted■ because this court overruled the decision of another Court of Civil Appeals. Gulf Ins. Co. v. Landamore, 22 S.W. (2d) 978, 979; same case by Commission of Appeals, See. Nat. Fire Ins. Co. v. Gulf Ins. Co., 41 S.W.(2d) 17. The jury correctly answered the issue, and, as that was the only issue, the court correctly rendered judgment for appellees. • :

The policy was issued to Farrington,' and the agent of the mortgagee had no' áu-thority to bind the insured as to the policy. She had no authority over the policy, except as her interest might appear in case of a fire, and her interest could be destroyed at any' time by payment of her mortgage. If it be true, as contended by the insurance company, that appellant should not be held liable to Mrs. Le Master, it is not damaged by the judgment in her favor, because appellant was at least liable to Farrington in the full sum found against it, and Farrington alone could complain because a part of his judgment was given to some one else. Neither can appellant be heard to complain of a failure to furnish proof of loss, when it denied all liability. All of its propositions are overruled.

The judgment is affirmed.


author: O’QUINN, J.

text:
    PROVIDENT LIFE & ACCIDENT INS. CO. v. ADAMS.
    No. 2284.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 14, 1932.

      Avery & Wallace, of Center, for appellant.
    Anderson &. Lewis, of Center, for appellee.
   O’QUINN, J.

Appellee sued appellant in the justice court of precinct No. 1 of Shelby county on a health and accident policy issued by appellant to appellee, to recover in the sum of $80 fon total disability for one month, together with 12 per cent, penalty, $9.60, and $50 attorney’s fee, alleged to be a reasonable fee in suits of this character. Judgment in said court was rendered for appellee for $80 for disability, $9.60 as penalty, and $50 attorney’s fee, the same being taxed as costs of suit. The insurance company appealed the case to the county court' Where the cause ’ivas tried to a jury upon special issues, and, upon their answers to said issues, judgment was rendered for appellee in the sum of $40 for disability, $4.80, being 12 per cent, penalty, and $50 attorney’s fee, same being taxed as costs of suit. Motion for a new trial was overruled, and the case is before us on appeal.

Appellee has filed motion to dismiss the appeal for want of jurisdiction in this court to hear and determine the matter. This contention is based'upon subdivision 2 of article 1819, R. ,S. 1925. This section provides that the Courts of Civil Appeals shall have appellate jurisdiction in cases “of which the county court has original jurisdiction, or of which the county court has appellate jurisdiction when the amount in controversy or the judgment rendered shall exceed one hundred dollars, exclusive of interest and costs.”

Appellee contends that, as the case originated in the justice court, and the amount in controversy, exclusive of interest and costs, was less than $100, and likewise the judgment of the county court on appeal, no appeal lies to this court. Appellant insists that the amount in controversy exceeded $100 because the attorney’s fee is a part of the amount in controversy. If this contention is correct, we have jurisdiction, but not so if the attorney’s fee should be excluded.

The expression, “The amount in controversy,” as used in subdivision 2 of article 1819, supra, means the sum of money or the value of the thing originally sued for, and not the amount of the judgment in the county court on appeal. Gulf, C. & S. F. R. Co. v. Cunnigan, 95 Tex. 439, 441, 67 S. W. 888.

Article 2226, R. S. 1925, provides: “Any person having a valid claim against a person or corporation for personal services rendered; labor done, material furnished, overcharges' on freight or express, lost or damaged freight or express or stock killed or injured, may present the same to such person or corporation or to any duly authorized ■agent-' thereof; and if, at the expiration of thirty days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for the full amount thereof as presented for payment to such person or corporation, he may also recover, in addition to his' claim and costs, a reasonable amount as attorney’s fees, not to exceed twenty dollars, if represented by an attorney.”

■ The attorney’s fee provided for by this, statute has been construed to be a part of. the amount in controversy. Wichita Val. R. Co. v. Leatherwood (Tex. Civ. App.) 170. S. W. 262, and, therefore, should be considered in determining the amount in controvef- ■ sy for jurisdictional purposes. St. Louis S. W. R. Co. v. Post (Tex. Civ. App.) 220 S. W. 129; Davis v. Fore (Tex. Civ. App.) 250 S. W. 783. The attorney’s fee, under this stat-; ute, cannot be considered as costs, but to; the; contrary forms a part of the amount'in con-r troversy originally sued for within the stat-i utes fixing the jurisdiction of courts. Houston Packing Co. v. McDonald (Tex. Civ. App.) 175 S. W. 806; Houston & T. C. R. Co. v. Patterson (Tex. Civ. App.) 193 S. W. 691.

Article 4736, R. S.’1925, provides: “In all' cases where a loss occurs and the life insur-. anee company, * ⅜ * or life and accident, health and accident, or life, health and. accident insurance company liable therefor j shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve per cent damages on the amount of such loss' together with reasonable attorney fees for' the prosecution and collection of such loss.”

This statute, like article 2226, supra, allows attorney’s fees in the nature of penalties. Neither statute makes the attorney fee taxable as costs of suit, and so under this, statute, before its amendment, April 27, 1931,, the attorney’s fees were a part of the amount. in controversy, and were so considered for Jurisdictional purposes. But article 4736 • was amended by the Porty-Second Legislature (chapter 91, p. 135, Acts Regular Session, 1931 [Vernon’s Ann. Civ. St. art. 4736]) by adding to it the provision that “such attorney fee shall be taxed as a' part of the costs in the case.” The costs of suit never constitute any portion of the “amount in controversy” which is to be considered in determining jurisdiction. We think it plainly manifest that the Legislature, knowing the construction placed on the statutes allowing the recovery of attorney’s fees, but not providing that they should be taxed as costs, in' amending the statute, article 4736, and directing that the attorney’s fee therein provided should be taxed as costs, intended to take such attorney’s fees out of the construction theretofore given the statute, and to make the attorney fee chargeable as costs only and not a part of the amount in controversy.

The attorney’s fee not being a part of the amount in controversy, the judgment was not appealable, and the motion to dismiss is sustained.

Appeal dismissed.


author: SELLERS, J.

text:
    PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. THURMAN.
    No. 4278.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 1, 1932.
    Rehearing Denied Jan. 5, 1933.
    Thompson, Knight, Baker & Harris, of Dallas, for appellant.
    Sanders & McLeroy, of Center, for appel-lee.
   SELLERS, J.

The appellee, Merritt B. Thurman, Jr., brought this suit by next friend to recover of appellant, the Pacific Mutual Life Insurance Company of California, the sum of $2,000, with interest, penalty, and attorney’s fees, alleged to be due appellee as beneficiary in a certain policy of life insurance issued by appellant on the life of Merritt B. Thurman, Sr., on October 1, 1924. It was also alleged that Merritt B. Thurman, Sr., died on September 27,1929", at which time the policy was in full force and effect. The appellant refused payment of the policy on the ground that the policy had lapsed prior to the death of the insured, and was therefore not in force on the date of insured’s death. The trial was before the court without a jury and resulted in judgment for appellee for the sum of $2,701.30, from which judgment the appellant has duly prosecuted this appeal.

It appears that the annual premium due by the insured, Merritt B. Thurman, Sr., to appellant on this policy was $00.66, and that the first two annual premiums were paid in advance in cash. The third annual premium which was due October 1, 1926, was paid ‘by giving a note which is as follows:

“$64.30 10 — 1—27
2.64
60.66 October 1, 1926.
“On the first day of April, 1927, without grace, I promise to pay to order of the Pacific Mutual Life Insurance Company of California, at its office in Los Angeles, California, Sixty and 66/100 Dollars in United States Gold Coin, with interest at the rate of six per" cent, per annum from date.
“This note is given for the Annual premium due October 1, 1926, on Policy No. 55474 issued on the life of .Merritt B. Thurman, whereunder said Company is the insurer, and shall be considered an indebtedness on and secured by said policy.
“Merritt B. Thurman,
“Post Office Box 601, El Dorado, Ark.”

The due date of this note was extended until October 1, 1927, when another annual premium was due, but neither the annual premium due on this date nor the note were ever paid, and the policy lapsed for failure to pay this, the fourth annual premium.

The question presented is whether under the terms of the policy the appellant had a right to charge the premium note against the reserve in the policy and thereby reduce the amount of the reserve which would otherwise have been available for the purchase of extended insurance, as provided by the non-forfeiture provision of the policy. If the note was properly charged against the reserve of the policy, then the policy was not in effect on the date of insured’s death; but. if it could not be so charged, then the policy was in force on the date of the death of the insured.

The identical question here presented was before this court in the case of Amicable Life Insurance Co. v. White (Tex. Civ. App.) 38 S.W.(2d) 860. The provisions in the policy here sued on are the same in all material respects as those contained in the policy in the White Case, and it was there held that the company could not charge the premium note against the reserve of the policy. The policy does not provide in any way for the taking of an assignment of the reserve in the policy for the purpose of securing such note.

But appellant insists tliat this case may be distinguished from the White Case in that the premium note in this case provided that the indebtedness evidenced by the note should be considered an indebtedness on and secured by said policy, whereas the note in the White Case did not so provide. We do not think this fact could in any way change the conclusions reached in the White Case, and we respectfully submit that in our opinion the appellant was unauthorized to charge the premium note against the reserve of the policy.

The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    ELY et al. v. ELLIOTT et al.
    No. 2815.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 19, 1933.
    James Y. Allred, Atty. Gen., and A. R. Stout, Asst. Atty.. Gen., for appellants.
    J. M. Caldwell, of Midland, and Lea, Mc-Grady & Edwards, of El Paso, for appellees.
   PER CURIAM.

This is an appeal from the granting of a temporary injunction restraining W. R. Ely, Cone Johnson, and D. K. Martin, composing the board of highway commission of the state of Texas, and L. A. Givens, state highway engineer, from changing the designated route of State Highway No. 1, also designated Federal Highway No. 80, as it now exists.

Appellees have filed a motion to dismiss the appeal because the transcript filed by appellants does not include the injunction bond. Appellants in reply have tendered a supplemental transcript and prayed that same be filed and considered.

We have concluded that we should permit the filing of the supplemental transcript, and, therefore, the motion to dismiss should be overruled.

The prayer in appellee’s petition reads: “Wherefore, premises considered your petitioners pray for themselves and for all of the citizens of the City of Odessa in the State of Texas that your Honorable Court grant his Most Gracious Writ of Injunction against the Honorable Highway Commission of the State of Texas, and L. A. Givens, State Highway Engineer, commanding them, their agents, servants and employees to desist and refrain from exercising or attempting to exercise any control whatsoever over the streets of the City of Odessa, Texas, and that particularly they be restrained from changing the designated route of State Highway No. 1, Federal Highway No. SO,-, as the same now exists within the City limits of the City of Odessa, Texas, and especially that they be restrained from creating a burden upon the traffic on Second Street in the City of Odessa, Texas, from its intersection with the East city limits thereof to the West city limits thereof, and that they in general be restrained from exercising or attempting to exercise any control whatsoever over the streets and alleys of said city, the- exclusive control of which is vested in the City of Odessa, as incorporated and by virtue of general law. They further ask, for costs and for general relief.” ■

One of the errors assigned by appellants is that the temporary injunction was erroneously granted because there was no prayer for such relief by appellees. With their position we must agree. Nowhere in the pleadings do the appellees seek a temporary injunction or a temporary restraining order and without such a prayer the court could not grant such relief. Fort Worth Acid Works v. City of Fort Worth (Tex. Civ. App.) 248 S. W. 822; Panhandle Const. Co. v. Plain et ux. (Tex. Civ. App.) 52 S.W.(2d) 504; Yellow Cab & Baggage Co. v. City of Amarillo (Tex. Civ. App.) 20 S.W.(2d) 855, and authorities therein cited.-

The order of the trial court must therefore ' be reversed, and the temporary injunction dissolved, and it is so ordered.


author: LEVY, J.

text:
    MORRIS & DICKSON CO., Limited, v. SIMMONS et al.
    No. 4244.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 7, 1932.
    Rehearing Denied Oct. 20, 1932.

      King, Mahaffey, Wheeler & Bryson, of Tex-arkana, for appellant.
    Keeney & Moseley, of Texarkana, for ap-pellees.
   LEVY, J.

(after stating the case as above).

The appellant presents as error the refusal to enter judgment against the appellees for the amount of the appellant’s debt, for which it sued-in this action. It is believed error may not be predicated in rendering judgment in favor of W. B. Simmons discharging him from liability upon the amount of'the debt sued for. The obligation existing of assuming to pay “one half the indebtedness of the $Y,000.00 owed by the Cut Rate ■ Drug Store at this date” has been extinguished, and there was discharge of the contract by performance. The $7,000 was the sum expressly fixed by the contract as payable, and one-half that sum was the share W. B. Simmons was under obligation to pay. He has actually paid, as the trial court was warranted in finding as a fact, more than one-half the $7,000 owing by the Cut Rate Drug Store. It is believed, though, considering every fact and circumstance in the case, that the appellee H. A. Simmons is not in a position so clear and certain of remedy against liability as respects his existing obligation. His particular existing obligation, as reflected by the provision of the written contract, was that of assuming to pay without limitation or condition “all indebtedness now owed (July 28, 1928) by the Cut Rate Drug Company for fixtures, goods, wares, merchandise and taxes.” And the undisputed evidence shows that. H. A. Simmons has not discharged such contract obligation by full performance. He has paid all the outstanding debts due and owing by the Cut Rate Drug Company, including taxes and all of the indebtedness owing appellant except the sum of $704, which it sues for in this action. If the appellee H. A. Simmons has an equity in the pleaded defense against liability of fraud, deceit, and mutual mistake, it does not appear in the evidence.

The evidence, affirmatively shows without conflict that H. D. Hardeman and H. A. Simmons had verbal negotiations respecting the sale of H. D. Hardeman’s half interest in the drug store, and in those negotiations they came to agreement on terms of sale, but there appears nothing in their negotiations in anywise pointing to an understanding that their contract should not be evidenced by formal writing. There does appear some evidence going to show that there was no understanding that there should be a written contract, yet there was no evidence that their contract should not be reduced to and evidenced by formal writing as done. And it is believed that every fact and circumstance in the case goes to show that the previous oral negotiations were intentionally merged into the formal writing as a binding contract, and there was no mutual mistake in point of fact in reducing to a written form the provisions embodied in the formal writing. It affirmatively appeared that H. D. Hardeman had the written instrument prepared as embodying the contractual provisions agreed upon, and delivered it over to I-I. A. Simmons, who, with full opportunity to read it and without any protest whatever, executed it and kept a duplicate copy of it. He never at any time aft-erwards made complaint to Mr. Hardeman that there had been any mistake as to its preparation or its execution. Therefore in the circumstances the written instruments must be regarded as evidencing and expressing the terms of agreement mutually adopted by the parties. Kansas City Packing Box Co. v. Spies (Tex. Civ. App.) 109 S. W. 432.

A binding obligation being fixed on the parties, as reflected by the written instrument, do the circumstances afford equitable grounds of relief to Mr. H. A. Simmons, upon the charge of fraud or mutual mistake? It is urged, in effect, that H. D. Hardeman made false representations to Mr. H. A. Simmons of the amount of indebtedness owing by the Cut Rate Drug Company at the time of the sale of the drug store on July 28, 1928. Assuming upon this appeal that in point of fact fraud or deceit was practiced in the respects claimed, and that the precise contract provision sued on was induced by either false representations, deceit, or mistake, yet, it is thought, it must be nevertheless ruled that Mr. H. A. Simmons is legally bound to fulfill the contract, for the circumstances conclusively establish that he has elected to affirm the contract of purchase and to. waive the fraud or mistake in the making of the contract. As shown by the evidence, H. A. Simmons purchased the one-half interest of H. D. Hardeman in the drug store and promised to pay as a part of the purchase price an indebtedness of the vendor Hardeman to another person. H. A. Simmons has actually paid all the debts assumed, including taxes, except the balance of $704 admittedly due on the appellant’s debt. Upon the completion of the audit of the books of the Cut Rate Drug Company, made in May, 1930, Mr. Simmons plainly and certainly discovered that he had been injured, as claimed by him, by fraudulent representations as to the amount of the outstanding indebtedness of the vendor Hardeman undertaken to be assumed. After ascertaining the false representations, and being fully apprised of the alleged fraud, the vendee Simmons made no complaint or offer to return anything to the vendor Hardeman. The vendee Simmons continued to keep and enjoy the property purchased and without complaint pr objection whatever, from the date of the completed audit of the books in May, 1930, to the date of the trial in December 30, 1931, about a year and a half. In the facts, the defense of rescission may not be predicated, because there was no election of rescission. A partial rescission, as respects the precise amount of the debt in suit, would not be allowable because the contract of sale in this case was not divisible, and the rescission must be in toto or not at all. 2 Black on Rescission, § 583, p. 1365; 13 G. J. § 682, p. 623. And in the facts the acts of the vendee manifest a waiver of fraud in making the contract, by accepting and holding on to the property after he had timely knowledge that he had been defrauded. Smith on Fraud, § 136; 2 Black on Cancellation, § 561, p. 1319; 20 Tex. Jur. § 69, p. 106; 7 Tex. Jur. § 6, p. 891. The above rules apply as well to mistakes. Horan v. Long, 11 Tex. 230; and other cases. There is no pretense in the evidence that the property purchased and conveyed by the vendor Hardeman was worth less than the amount paid to the vendor and the debts which have been actually paid by the vendee Simmons, including the balance due appellant. The vendee therefore has suffered no loss or damage because of the alleged fraud. 1 Elliott on Contracts, ■ § 91, p. 163; George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456; Pitts v. Kennedy (Tex. Civ. App.) 177 S. W. 1016; 20 Tex. Jur. § 133, p. 183.

The judgment is affirmed as to W. B. Simmons, and the judgment as to H. A. Simmons is reversed, and judgment is here rendered in favor of appellant against H. A. Simmons for the debt sued for. The cost of appeal will be taxed one-half against H. A. Simmons and one-half against appellant; the costs of the trial court will be taxed one-half against appellant and one-half against H. A. Simmons.


text:
    THOMPSON v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    No. 4262.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 15, 1932.
    J. G. Turner, of Dallas, and Clark, Harrell & Clark, of Greenville, for appellant.
    Crosby, Estes & Estes, of Greenville, for appellee.
   SELLERS, J.

The plaintiff, Eldon Thompson, brought this suit in the district court of Delta county against the defendant, St. Louis Southwestern Railway Company of Texas, to recover for personal injuries in an accident which happened on Park street in the city of Commerce, Tex., where the Sherman .branch of said railway crosses said street. Plaintiff was injured when the automobile on which he was riding was suddenly turned to the left by the driver of the car to prevent a head-on collision with one of defendant’s trains which had the street crossing blocked. The automobile turned over into a ditch and threw the appellant under the train, where he was severely injured.

The plaintiff alleged that the defendant was negligent in failing to keep a flagman at the crossing with a lighted lantern to warn persons using said crossing of appellee’s trains, and also in failing to install an electric signal bell or signal lights or other mechanical devices at said crossing to warn said persons psing the same.

The defendant answered by general demurrer, a number of special exceptions, and pleaded contributory negligence in several particulars.

The case was tried to a jury which found, among other issues submitted, that the defendant was negligent in' both the particulars alleged, which negligence was the proximate cause of appellant’s injury. The'jury also found that the car was being driven in excess of twenty miles an hour and this speed contributed to cause the injury. They further found that the plaintiff was guilty of contributory negligence by riding on the running board of the car. Plaintiff’s damages were assessed at $8,000. Upon the verdict of the jury the court entered judgment for the defendant, and plaintiff has duly prosecuted this appeal.

The appellant, Eldon Thompson, has several assignments of error complaining of misconduct of the jury upon which he relies for reversal of the judgment appealed from, but we are also confronted with several cross assignments of error by appellee attacking the jury’s finding of negligence on the part of appellee as unsupported by the evidence; and, since this court has concluded that appellee’s assignments must be sustained, we deem it unnecessary to consider appellant’s assignments, for if there is no evidence of negligence on the part of appellee, the court’s judgment is correct no matter what ground the court relied upon in rendering it.

By an unbroken line of authorities the rule seems to be well established in Texas that the appellee was under no obligation to keep a flagman or resort to other extraordinary means to warn persons approaching said crossing, unless the crossing is more than an ordinarily hazardous one. Gillham v. St. Louis Southwestern Rwy. Co. of Texas (Tex. Civ. App.) 241 S. W. 512; St. Louis Southwestern Rwy. of Texas v. Hill et ux. (Tex. Civ. App.) 13 S.W.(2d) 420; and other cases therein cited.

The facts with reference to this crossing may be substantially stated as‘follows: Park street in the city of Commerce runs north and south, is 21 feet wide, and paved. The Cooper-Commerce highway intersects Park street about 800 yards north of where appellee’s railroad crosses said street, and all the traffic on this highway passes over Park street in going into and coming out of Commerce. The traffic over this crossing, as estimated by witnesses, is about 15 cars an hour during the daytime, and about 2 to 5 cars an hour at the tim'e of night the accident occurred, which was about 2 o’clock a. m. Park street from the point where the highway intersects it is a gradual slope to the south until it reaches a point about 27 feet north of the railroad crossing involved, and then the grade starts gradually upward. There is evidence of a difference of 8.8 feet in the elevation of Park stfeet from the lowest point, which is 27 feet north of the railroad ‘ crossing, to a point 400 feet north on said street, which is about one-half the distance from where the Cooper highway enters Park street to the railroad crossing. Appellee’s railroad runs almost east and west where it crosses Park street; but it may be fairly said that it runs in a general direction from the southeast to the northwest. When approaching this crossing from the north on Park street, there is a house on the right which is about 150 feet from the crossing, and after passing this house there is nothing to prevent one’s view to the right, except two trees and the telephone poles along Park street; the ground being smooth between this house and the railroad. On the left-hand side in approaching from the north there is a house about 50 feet north of the railroad and an embankment between the house and the railroad about 10 feet high. There is also a road leading off from Park street to the east between this house and the railroad. The evidence is silent as to how many trains use this crossing a day; nor does it reveal the speed at which appellee’s trains run in approaching this crossing.

Our conclusion is that the facts as disclosed by the record are insufficient to raise an issue of negligence and support the jury’s finding in the particular that the crossing involved is so extrahazardous as to require the appellee under the rule above set out to maintain a flagman or some mechanical device to warn those using the highway of appellee’s trains. Robinson v. Houston Belt & Terminal Rwy. Co. (Tex. Civ. App.) 23 S.W.(2d) 894.

At the time of the accident appellant and three others, all young people, were returning from Paris, Tex., where they had been to some character of social function. While on the way home, and when stopped to assist some one who was having car trouble, Carlton Robertson, one of the occupants of the car with appellant, was struck in the arm by a bullet apparently fired by some one who lived nearby. He was being ,carried to a hospital in Commerce when the accident occurred in which appellant was injured. At the time of the accident Mrs. Montie Compton was driving the car which it seems was one-seated. The injured boy and a Miss Maurine Somer-lin were both on the seat with the driver, and appellant was riding on the running board of the car. Mrs. Compton, Miss Somerlin, and appellant all testified in this case, tout both Miss Somerlin and appellant admitted they were not noticing for a train at the time of the accident. Mrs. Compton, the driver testified: “I was going, I guess, about twenty or twenty-five miles an hour and we were going down a steep incline — the road goes right straight down — and as we were going on down the highway I was very careful, trying to be as careful as possible because I felt like I already had one boy and I didn’t want to hurt a'ny one else. We entered near this railroad crossing. The crossing looked clear to me because I could see my lights reflect on the other side of the track on the track — it looked clear — and as I neared tlie track I was almost on the train before I saw it; it was a black oil car and the night was awful dark and I didn’t see any sign of a car until I was on the train, then I tried to keep from running into the train and turned -to my left trying to make the little dirt road or keep from hitting the train, and as I did I went over that embankment and my car turned over. * * *»

The evidence shows that appellant, Miss Somerlin, and Mrs. Compton were all familiar with the crossing. There is evidence that a full moon was shining, and that there was an electric light at some distance on each side of the crossing which gave some light to it. The engine of the train which had the crossing blocked was some six or eight car lengths west of the crossing, and the train was either still or was moving slowly at the time of the accident.

After careful consideration of all the facts, the material parts of which we have above set out, we are of the opinion that the evidence is such that it must be said that the driver of the car was guilty of contributory negligence as a matter of law. Robinson v. Rwy. Co., supra.

The judgment of the trial court is affirmed.


author: GRAVES, J.

text:
    HOUSTON GAS & FUEL CO. v. SPRADLIN et al.
    No. 9762.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 25, 1932.
    Rehearing Denied Nov. 10, 1932.
    Baker, Botts, Andrews & Wharton, F. G. Coates, S. H. German, and J. T. McCullough, all of Houston, for appellant.
    Ansel M. Kahn, of Houston, for appellees.
   GRAVES, J.

The appellee, Mrs. Spradlin, a married woman, merely joining her husband with her pro forma, without averment that he had abandoned her or for other reason had refused to become a real party to the action, sued to recover damages for personal injuries to herself from a natural gas explosion in her home, alleged to have proximately resulted from the negligence of the appellant; throughout the entire petition not only was it alleged that she alone as plaintiff sustained the liability and the damage, her husband not being again mentioned, but the prayer was that she as plaintiff recover damages in the sum named and for such other and further relief “to which she may show herself justly entitled.” In other words, the pleading itself discloses that she is a wife, that her husband is not a party except purely as a matter of form with no excuse whatever appearing for his nonjoinder, and that the sole thing she seeks is damage resulting to herself from personal injuries.

The appellant filed no special exceptions nor plea in abatement objecting in that way to the failure of the husband to become a real party to the proceeding, but did in limine raise the matter as a structural defect by first filing a general demurrer to the petition, next asking by motion for an instructed verdict on that account, and finally demanding a new trial because of it.

In response to a verdict on special issues in ber favor, tbe court originally gave Mrs. Spradlin alone a judgment for $15,500 and costs; subsequently, after tbe filing of appellant’s amended motion for a new trial, at tbe instance of appellee’s counsel, there was filed wbat is termed a reformed judgment, wherein it is decreed that both Mrs. Spradlin and ber husband, Mr. Spradlin, recover tbe $15,500 and costs, tbe appellant excepting to this action also and being again overruled.

The appeal is from tbe amended or reformed judgment decreeing tbe recovery to both tbe husband and wife in tbe circumstances recited.

In this court appellant reiterates its contention below, that tbe petition failed to state a cause of action, and that fundamental error being apparent upon tbe face of tbe record, tbe trial court erred in overruling its general demurrer. This position is sustained. In Texas, by well-settled authority, not only do damages for personal injuries to a married woman constitute community property, but tbe husband alone may sue for its recovery as such. Ezell v. Dodson (1883) 60 Tex. 331; Texas C. Ry. Co. v. Burnett et ux. (1884) 61 Tex. 638; Arnold v. Leonard (1925) 114 Tex. 535, 273 S. W. 799; Teague v. Fairchild (Tex. Com. App. 1929) 15 S.W.(2d) 585; Galveston, H. & S. A. Ry. Co. v. Baumgarten et ux. (1903) 31 Tex. Civ. App. 253, 72 S. W. 78; Northern Texas Traction Co. v. Hill (El Paso Tex. Civ. App. 1927) 297 S. W. 778, error refused; Wartelsky et al. v. McGee et al. (1S95) 10 Tex. Civ. App. 220, 30 S. W. 69; Barmore v. Darragh et al. (San Antonio Tex. Civ. App. 1921) 227 S. W. 522; Yellow Cab & Baggage Co. v. Smith et al. (Ft. Worth Tex. Civ. App. 1930) 30 S.W.(2d) 697, dismissed for want of jurisdiction; National Life & Accident Ins. Co. v. Casas et al. (El Paso Tex. Civ. App. 1931) 36 S.W.(2d) 323.

It is equally as well settled with us that a person merely joined pro forma is not a real party at interest in tbe litigation. Yellow Cab & Baggage Co. v. Smith, supra; National Life & Accident Ins. Co. v. Casas et al., supra.

A third and just as clearly determined dénouement in our jurisprudence is that, while tbe absence of tbe husband as a real party under such circumstances as here obtain might have been raised by plea in abatement or special exception, the appellant was not relegated to that method, but could reach it as well by general demurrer, motion for new trial, suggestion of fundamental error on appeal, or otherwise; indeed, it became the duty of the court itself to refuse to proceed to judgment whenever the omission came to its knowledge. 'Speer’s Law of Marital Rights in Texas (3d Ed. 1929) § 513; Adams v. Bankers’ Life Co. (Tex. Com. App.) 36 S.W.(2d) 182; Peveler v. Peveler, 54 Tex. 53; Barmore v. Darragh, supra; Collins et al. v. Herd (Waco Tex. Civ. App. 1927) 295 S. W. 216; 3 Texas Jur., page 181, par. 120; Middlebrook Bros., v. Zapp, 73 Tex. 29, 10 S. W. 732; Milliken v. Smoot, 64 Tex. 171.

Neither, we think, did the belated effort to so amend or reform the judgment after the filing of the motion for a new trial as to permit the husband also to share in the recovery first allowed get anywhere; it was a nullity for the lack of necessary pleadings to support it. It is fundamental, as held in Middlebrook v. Zapp, supra, and authorities therein cited, that a judgment .must conform to the pleadings.

Wherefore, the husband alone being the real party at interest, and he' not having in any such capacity been brought in nor participated, and the wife not having had any authority to maintain the suit, it follows that the judgment cannot be permitted to stand; a reversal has accordingly been ordered, and the cause has been remanded.

Reversed and remanded.


text:
    GIFFORD MOTOR CO. v. PHILLIPS.
    No. 9789.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 3, 1932.

      McEarlane & Roane, of Richmond, for appellant.
   GRAVES, J.

Pearl Phillips, appellee, filed suit in the county court of Wharton county, Tex., for conversion of a Ford automobile of the alleged value of $300; the appellant, Gifford Motor Company, filed an answer, composed of a general demurrer and general denial, and thereafter, to wit, on the 24th day of September, 1931, at the September term of court, judgment by default, reciting that it was upon a liquidated demand evidenced by an instrument in writing, was entered, without the introduction of any evidence in support thereof, either written or oral.

On, the 3d day of October, 1931, at that same term of county court at which the judgment was entered, appellant filed its motions to set aside the judgment and grant a -new trial, alleging its lack of knowledge of the setting of the cause, if any; that it was through no fault or lack of diligence on its part that the judgment by default had been taken; that it had a meritorious defense (setting same forth), and it was desirous of having the judgment set aside, and of having a trial on the merits of the case, so that it might have its day in court; but the court, after considering these motions filed, and the evidence and. argument in support thereof, did, on the 12th day of October, 1931, in all things overrule them.

While ample assignments have been in due course of procedure properly presented and supported, none were really needed, since the trial court’s action constitutes fundamental error, apparent upon the face of the record, there being so shown to be neither pleading nor evidence to sustain the judgment; the suit was upon an unliquidated demand — for conversion of the automobile of the alleged value of $300 — while the judgment was entered as upon a liquidated demand evidenced by an instrument in writing, no such document, nor evidence of any sort, having been heard. Houston Gas, etc., Co. v. Spradlin, 55 S. W.(2d) 1088, in this court, opinion filed October 25, 1932; Albaugh-Wright Lumber Co. v. Henderson (Tex. Civ. App.) 33 S.W.(2d) 228; Casualty Reciprocal Exchange v. Alessandro (Tex. Civ. App.) 34 S.W.(2d) 636; Cisco & N. E. Ry. Co. v. Ricks (Tex. Civ. App.) 33 S.W. (2d) 878; Duke v. Gilbreath (Tex. Civ. App.) 10 S.W.(2d) 412; Gause-Ware Funeral Home v. McGinley (Tex. Civ. App.) 41 S.W. (2d) 433; Hill v. Alexander (Tex. Civ. App.) 195 S. W. 957; Matrimonial Mut. Ass’n v. Rutherford (Tex. Civ. App.) 41 S.W.(2d) 719; Norvell-Shapleigh Co. v. Lumpkin (Tex. Civ. App.) 150 S. W. 1194; Rasmussen v. Grimes (Tex. Civ. App.) 13 S.W.(2d) 959, 960; Stewart v. Byrne (Tex. Com. App.) 42 S.W.(2d) 234; West Texas Utilities Co. v. Nunnally (Tex. Civ. App.) 10 S.W.(2d) 391; Wilke v. Finn (Tex. Com. App.) 39 S.W.(2d) 836; Article 2211 of 1925 Revised Civil Statutes.

The judgment will be reversed, and the cause remanded.

Reversed and remanded.