author: YOUNG, Justice.

text:
    L. D. BOUNDS, Appellant, v. Kerry Tyrone CAUDLE et al., Appellees.
    No. 1115.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 31, 1977.
    Rehearing Denied April 20, 1977.
    Second Motion for Rehearing Denied May 12, 1977.

      Lee Mahoney, Mahoney, Shaffer, Hatch & Layton, Corpus Christi, for appellant.
    James P. Ryan, Wood, Burney, Nesbitt & Ryan, Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

This is an appeal from two separate judgments resulting from a consolidated jury trial of a probate proceeding and a tort action. These suits arose from the death by gun shot on March 1, 1971, of Robbie Bounds. The children of Mrs. Bounds alleged that their stepfather, Dr. L. D. Bounds, wrongfully caused that death.

Cause # 110,807-A in the trial court was an appeal from the judgment rendered by a county court at law of Nueces County, Texas, admitting the will (wherein Dr. Bounds was designated primary beneficiary and independent executor) of Robbie Morris Cau-dle Bounds to probate. Cause # 115,954-B was an original suit in a district court (the trial court) by Cheryl Kay Caudle and Kerry Tyrone Caudle for damages, both actual and exemplary; for recovery of proceeds under life insurance policies; and for imposition of a constructive trust on property passing under the will of Mrs. Bounds. A judgment in favor of the plaintiff-children was entered in each case. The defendant then perfected his appeal in each case. Thereafter this court ordered consolidation of the cases for purposes of appeal.

The parties tried the cases to a jury which found: (1) that Dr. Bounds shot and killed Mrs. Bounds; (2) that the shooting and killing was intentional; (3) that the shooting and killing was wrongful; (4) actual damages of $10,000.00 for Kerry and $25,000.00 for Cheryl; (5) exemplary damages of $25,000.00 for Kerry and $25,000.00 for Cheryl.

Based upon that verdict, the undisputed evidence, and the stipulation of the parties, the trial court rendered judgment in the probate matter that the will of Mrs. Bounds be admitted to probate and that Dr. Bounds be declared disqualified to serve as independent executor of the estate of Mrs. Bounds. Further, the trial court rendered judgment in favor of Kerry and Cheryl in the other case, the tort case, declaring a constructive trust in favor of Kerry and Cheryl and vesting title to them to the extent of 25% each in all the community property (listed in the judgment) of Dr. and Mrs. Bounds; for all the damages to each, both actual and exemplary, awarded by the jury; for one-half each of the insurance proceeds; and for funeral expenses. Dr. Bounds appeals from both judgments.

Robbie Caudle and Dr. Bounds were married May 18, 1962. Each of them had been married once before and each of them had two children by their respective prior marriages. No children were born to them during their nearly nine years of marriage. Their marriage contained much discord with attendant arguing and actual fighting. On the night of the shooting, the parties had been to the Embers Club with friends for dining and drinking. While there they began an argument which continued until they left to go home, on the way home and after they arrived at home. Soon after their arrival at home, where only she and he were present, a revolver was brandished, Mrs. Bounds was shot twice, and she died almost immediately. The evidence is conflicting about whether Dr. Bounds shot her intentionally or whether she was shot while he was attempting to wrest the revolver from her grasp. Following the death, appellant was indicted for murder, but was convicted only of negligent homicide in the first degree, a misdemeanor.

Appellant has brought forward 21 points of error. We have grouped for discussion many of the appellant’s contentions because several of his contentions are threaded throughout several of his points and sub-points.

This brings us to the appellant’s assertion in points 2(1), (2), 12, 13, 15(5), (6) and (7) that as a matter of law Kerry and Cheryl are not entitled to recover as Mrs. Bounds’ only surviving heirs at law under Tex.Rev. Civ.Stat.Ann. art. 4671 et seq., for actual and exemplary damages. As we have noted, the appellees had pleaded and recovered under Article 4671, et seq., against the appellant for their damages for wrongful death on the theory that the appellant wrongfully killed their mother. Under the prevailing law of this state we hold that these statutory beneficiaries, the appellees, have no cause of action for damages and that part of the tort judgment must be reversed and rendered. The reasons for this result were ably pointed out in Donsbach v. Offield, 488 S.W.2d 494 (Tex.Civ.App.-Austin 1972, no writ). And in our discussion here, we have borrowed liberally from the reasoning and phrasing set out in Donsbach.

As in Donsbach, the denial to the appel-lees of their damages is made necessary by Article 4672 in connection with the doctrine of interspousal tort immunity. This article denies the beneficiaries a death action unless the deceased would have had a cause of action to recover for personal injuries had he or she survived the damaging event. In our case had Robbie Bounds survived the shooting, she would have been denied an action against Dr. Bounds under the well established doctrine of interspousal immunity. Nickerson and Matson v. Nickerson, 65 Tex. 281 (1886). The victim’s disability extends also to the beneficiaries through Article 4672, and the beneficiaries are also precluded. Childs v. Childs, 107 S.W.2d 703 (Tex.Civ.App.-Beaumont 1937, no writ); Wilson v. Brown, 154 S.W. 322 (Tex.Civ.App.—Austin 1913, writ ref’d).

Again as explained in Donsbach, the doctrine of interspousal tort immunity is well entrenched in our jurisprudence, rightly or wrongly. This is true whether the tort was negligent or intentional. Turner v. Turner, 385 S.W.2d 230 (Tex.Sup.1965); Nickerson and Matson v. Nickerson, supra; McGlothlin v. McGlothlin, 476 S.W.2d 333 (Tex.Civ.App.—San Antonio 1972, writ ref’d n.r.e.); Lunt v. Lunt, 121 S.W .2d 445 (Tex.Civ.App.—El Paso 1938, writ dism’d). See Comment: Intra Family Immunity — The Doctrine and Its Present Status, 20 Baylor L.Rev. 27 (1968), for criticism of the doctrine of interspousal immunity. Therefore, the wrongful death and in-terspousal contentions in his points 2(1), (2), 12, 13,15(5), (6) and (7) of the appellant are sustained.

In his points 2(3), (4), 7, 15(1), (2) and (3), the appellant argues that because he has not been sentenced and convicted as a principal or accomplice in willfully bringing about the death of Mrs. Bounds, as required by Tex.Prob.Code Ann. 41(d) and Tex.Ins. Code Ann. § 21.23, the appellees are not entitled: to impose a constructive trust on property passing under her will; to receive the proceeds of life insurance policies on her life.

As we have noted, the only showing in the record of any conviction and sentencing of Dr. Bounds is in connection with the charge of negligent homicide in the first degree. Nevertheless, we disagree with the appellant’s foregoing position about the necessity of conviction and sentencing.

We again point out that the jury in our case found that Dr. Bounds both “intentionally” and “wrongfully” killed Mrs. Bounds. Article 21.23 of the Insurance Code calls for forfeiture of the beneficiary’s interest where the beneficiary (Dr. Bounds) is the “principal or an accomplice in willfully bringing about the death of the insured.” “Willfully” as used in Article 21.23 has been defined by our Supreme Court as “. where the beneficiary intends to kill the insured and the killing is illegal . . . , even though the killing was done under the immediate influence of sudden and violent passion from an adequate case.” Greer v. Franklin Life Ins. Co., 148 Tex. 166, 221 S.W.2d 857 (1949). Therefore, because the jury found an “intentional” and a “wrongful” killing by Dr. Bounds, we uphold the appellees’ recovery of insurance proceeds even though Dr. Bounds has not been “convicted” or “sentenced” for a willful killing.

Appellant urges a similar contention in his constructive trust complaints based on the following language of the Probate Code.

“(d) Convicted Persons and Suicides. No conviction shall work corruption of blood or forfeiture of estate, except in the case of a beneficiary in a life insurance policy or contract who is convicted and sentenced as a principal or accomplice in wilfully bringing about the death of the insured, in which case the proceeds of such insurance policy or contract shall be paid as provided in the Insurance Code of this State, as same now exists or is hereafter amended; nor shall there be any forfeiture by reason of death by casualty; and the estates of those who destroy their own lives shall descend or vest as in the case of natural death.”

Regardless of the above language about “convicted”, “sentenced”, and “casualty”, the courts of this State have adopted the modern view that the law will impose a constructive trust upon the property of a deceased which passed either by inheritance or by will if there is sufficient proof to sustain an allegation that the beneficiary willfully and unlawfully caused the death of the deceased. Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559 (1948); Parks v. Dumas, 321 S.W.2d 658 (Tex.Civ.App.—Port Worth 1959, no writ); Pritchett v. Henry, 287 S.W.2d 546 (Tex.Civ.App.—Beaumont 1955, writ dism’d). Therefore, in view of the jury findings we noted above, appellant’s constructive trust contentions are also overruled. Appellant’s points 2(3),(4), 7, 15(1), (2) and (3) are overruled.

In appellant’s point 1, he attacks the propriety of the trial court’s consolidation for trial of the probate case and the tort case. He says the causes are so dissimilar that he has been prejudiced by the joint trial.

It is well settled law that the trial court has broad discretion in the consolidation and severance of causes of action. It is also established that the trial court’s decision to consolidate or sever a cause of action will not be overturned unless abuse of discretion is shown. McGuire v. Commercial Union Insurance Company of New York, 431 S.W.2d 347 (Tex.Sup.1968); Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956); Cruz v. Guajardo, 502 S.W.2d 610 (Tex.Civ.App.—Corpus Christi 1973, no writ). Rule 174(a), T.R.C.P., states that consolidation is proper where there are “common question of law or fact . . . pending before the court.”

In our case the trial court consolidated a probate case with a tort case containing several causes of action: for wrongful death; for imposition of a constructive trust; and for insurance proceeds. These cases and the causes of action therein presented a common question of fact: whether Dr. Bounds willfully killed Robbie Bounds; and if so, whether he was “unsuitable” to be the independent administrator of her estate; whether he was liable under the Wrongful Death Statute; whether he was subject to a constructive trust being imposed on the deceased’s estate; and whether he should receive life insurance proceeds. Thus, determination by the trial court of this fact question was common to all causes of action and consequently there was no abuse of discretion by the trial court in consolidating them to avoid unnecessary cost or delay. Appellant’s point 1 is overruled.

Appellant’s point 3 complains that the trial court was in error in overruling his special exceptions to plaintiffs’ third amended original petition. After a full review of the record, we are unable to locate the special exceptions upon which this point is based. Without such exceptions, we are unable to determine the specific grounds of which appellant complains and we therefore overrule his point 3. Charlie Thomas Courtesy Ford, Inc. v. Sid Murray Agency, 517 S.W.2d 869 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Barber v. Corpus Christi Bank & Trust, 506 S.W.2d 254 (Tex.Civ.App.—Corpus Christi 1974, no writ).

Appellant’s point 4 asserts error in the trial court’s denial of appellant’s motion for discovery under Rule 167, T.R.C.P. Appellant’s motion was multi-pronged in that it sought a list of all witnesses to be called by appellees and the opinions and theories of Dr. Joseph Rupp, the county medical examiner, whether oral or written. He had received copies of all those which had been reduced to writing; namely, the autopsy report.

The purpose of Rule 167 is to permit inspection and copying of “tangible things” within the opposing party’s custody upon a showing of good cause. Although we are required to give this rule a liberal construction, it was never intended to allow fishing excursions. Texhoma Stores, Inc. v. American Central Insurance Company, 424 S.W.2d 466 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.). Rule 167 was not intended to allow invasion of the opposing party’s thinking processes or that of his expert- witnesses.

Appellant also requested discovery of the names of appellees’ witnesses. In that regard, Rule 167 also provides:

“The identity and location of any potential party or witness may be obtained from any communication or other paper in the possession, custody or control of a party, . . . ”

Appellant, however, still has the burden of showing that the failure of the trial court to grant this request was reasonably calculated to and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P. Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115 (1951). Appellant has failed to meet this burden and therefore we find this error harmless, if error at all. Appellant’s point 4 is overruled.

Appellant’s point 5 asserts that the charge constitutes a general charge. To object to the court’s charge as general, without designating any specific issue, is to no avail. West v. Matteson-Southwest Co., 369 S.W.2d 496 (Tex.Civ.App.—Houston 1963, no writ); Thaxton v. Reed, 339 S.W.2d 241 (Tex.Civ.App.—Dallas 1960, writ ref’d n. r. e.). In reviewing the argument under this point, we find no allegation which directs this Court to the specific issue complained of. Appellant’s point 5 is overruled.

In his points 9 and 14, appellant further challenges the charge of the court for failure to give an instruction on self-defense. Rule 279, T.R.C.P., requires the submission of controlling issues where supported by pleadings and evidence of the case. We find that the evidence presented here does not support an issue on self-defense, as we will demonstrate.

Dr. Bounds testified that Robbie Bounds held the pistol on him as he emerged from the bathroom; that he got close to her and grabbed the gun; that a struggle ensued and Robbie Bounds was shot twice. It was also his testimony that he could not remember if his finger was on the trigger but that he was not trying to put it there or to shoot Mrs. Bounds. Concerning the second shot, Dr. Bounds testified that he did not remember if his finger was on the trigger but that the gun was in Mrs. Bounds’ hand and that he did not cock the pistol. On redirect, Dr. Bounds further testified that his actions were not willful and that he did not intend to kill or to injure the deceased.

It is settled law that the law of self-defense is the same in both civil and criminal cases. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943); March v. Walker, 48 Tex. 372 (Tex.Sup.1877). Therefore, we find the decision in Whitehead v. State, 450 S.W.2d 72 (Tex.Cr.App.1968) controlling. In Whitehead, the defendant was complaining of the trial court’s refusal to submit an issue on self-defense. The Court of Criminal Appeals affirmed the trial court’s decision and indicated that the evidence called for an instruction on accident, but not on self-defense, after quoting the following testimony:

“Q. You never intended to pull that trigger; you never intended to kill Art Peel?
A. No, sir, I never intended to kill him.
* * sf: ⅜ * #
Q. You didn’t want to hurt him, either, though, did you?
A. I didn’t want to kill him.
Q. Did you intentionally pull the trigger or not? That’s what I am trying to find out.
A. No, sir, I never had it in my mind. I flinched and the gun went off.”

See also Sias v. State of Texas, 495 S.W.2d 890 (Tex.Cr.App.—1973) where the court again refused to submit an issue on self-defense in a similar case. Appellant’s points 9 and 14 are overruled.

Appellant’s points 6, 10, and 11 complain of the trial court’s failure to give definitions or instructions on “wrongful”, “accident”, and “proximate result”. Rule 279, T.R.C.P. says:

“. . . Failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment.”

Appellant neither requested nor tendered definitions or instructions on these matters, so there is no ground for reversal on these points. First State Bank & Trust Company of Edinburg v. George, 519 S.W.2d 198 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.). Appellant’s points 6, 10, and 11 are overruled.

Appellant’s point 8 asserts error in the use of the word “wrongful” instead of the word “willfully” in special issue 3. We find no error in this submission. The Supreme Court has construed these two terms in such a way that there can be no prejudicial error from the use of either word. In Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85 (1954), the court discussed the meaning of wrongful as used in the Wrongful Death Act. The court concluded that an intentional killing unexplained is presumed to be wrongful. In Greer v. Franklin Life Ins. Co., supra, willfully was defined as intentional killing which is illegal. Both include the concept of an intentional killing without justification or excuse. Appellant’s point 8 is overruled.

Appellant also complains in points 16 and 17 of the trial court’s refusal to allow introduction of evidence on his suitability to be independent executor as the proponent of the will. Appellant, however, was allowed to introduce this evidence subsequently during the course of the trial. We find that no prejudice is shown where excluded evidence is subsequently admitted. Coulson v. Clark, 319 S.W.2d 183 (Tex.Civ.App.—Austin 1958, writ ref’d n. r. e.); Turner v. Hodges’ Estate, 219 S.W.2d 522 (Tex.Civ.App.—Fort Worth 1949, writ ref’d n. r. e.). Appellant’s points 16 and 17 are overruled.

Appellant’s points 18 and 19 complain of much of the testimony of Dr. Joseph Rupp as invading the province of the jury. Opinion testimony of experts is based upon two elements. First, the subject of the testimony must be so tied to some science,'business, profession, or occupation as to be beyond the average understanding of the layman. Second, the witness must have the necessary expertise, knowledge, or skill in the area so that his opinion will be helpful to the trier of fact. McCormick & Ray, Texas Practice Evidence, Sec. 1400 (1956) and cases cited therein. There is, therefore, no general rule which precludes a properly qualified expert from giving his opinion and this is true even though his opinion is on an ultimate issue'in a case. In Scalf v. Collin County, 80 Tex. 514, 16 S.W. 314 (1891), the Supreme Court said:

“. . . When the issue is one upon which the witness may properly state his opinion, he may do so, notwithstanding his answer embraces the very issue on trial. The conclusion of the witness is then testified to, as any other fact to be considered by the jury, for what they may believe it to be worth. In many cases witnesses may testify to the existence of the very fact to be found by the jury. . . .”

Also, see Payne v. Hartford Fire Insurance Company, 409 S.W.2d 591 (Tex.Civ.App.—Beaumont 1966, writ ref’d n. r. e.); Welch v. Shaver, 351 S.W.2d 588 (Tex.Civ.App.—Amarillo 1961, writ ref’d n. r. e.); Norvell, Invasion of the Province of the Jury, 31 Tex.L.Rev. 731 (1953). Appellant’s points 18 and 19 are overruled.

Finally, in his points 20 and 21, appellant sets forth that the trial court erred in reading to the jury, after deliberation had begun, selected portions of Dr. Rupp’s testimony over appellant’s objection.

Reading testimony to the jury during their deliberations is provided for in Rule 287, T.R.C.P. There it is stated that if the jury disagrees as to the statement of any witness, they may, upon applying to the court, have read to them from the court reporter’s notes that part of such witness’ testimony on the point in dispute. In our case, the jury requested a reading of some of Dr. Rupp’s testimony as follows:

“Can we obtain Dr. Rupp’s testimony in reference to the possibility of two shots being fired accidentally?”

When the jury requests a witness’ testimony be read back to them on a point, the trial judge has broad discretion in deciding what part of the testimony of a witness is relevant to the point in dispute. And only where there is an abuse of that discretion with resulting harmful effects will his action be held erroneous. Aetna Casualty and Surety Company v. Scott, 423 S.W.2d 351 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ). Here the appellant has failed to demonstrate an abuse of the trial judge’s discretion in that he has not shown what testimony was read back to the jury nor has he shown any harmful effect from the reading back of testimony. Appellant’s points 20 and 21 are overruled.

The judgment of the trial court in cause # 110,807-A is affirmed. That part of the judgment of the trial court in cause # 115,-954-B that awards damages, actual and exemplary, is reversed and here rendered that the appellees take nothing. That judgment in all other aspects is affirmed. Costs are taxed one-half to the appellees and one-half to the appellant.


source: Caselaw Access Project

author: McCLOUD, Chief Justice.

license: Public Domain

text:
    Herman Leon HENSON, Individually and d/b/a Henson’s Used Cars, Appellant, v. CITIZENS BANK OF IRVING, Texas, Appellee.
    No. 4989.
    Court of Civil Appeals of Texas, Eastland.
    March 31, 1977.
    Harry J. Joe, Dallas, for appellant.
    Richard S. Geiger, Thompson, Coe, Cousins & Irons, Jim E. Cowles, Touchstone, Bernays & Johnston, Dallas, for appellee.
   McCLOUD, Chief Justice.

This is a case of first impression in Texas. The issue is whether the trial court abused its discretion in dismissing, without prejudice, plaintiffs suit after plaintiff refused to answer certain questions propounded to him during oral deposition on the ground the answers might tend to incriminate him and thus violated his Fifth Amendment rights granted under the Constitution of the United States.

Plaintiff, Herman Leon Henson, d/b/a Henson’s Used Cars, sued defendant, Citizens Bank of Irving, Texas, seeking a declaratory judgment and damages for alleged violations of the Deceptive Trade Practices-Consumer Protection Act, Section 17.41, et seq., Texas Business And Commerce Code. During the oral deposition of Henson, he refused to answer several questions on the ground the questions violated his right against self-incrimination. Defendant filed a motion under Rule 215a, T.R.C.P., requesting the court to dismiss plaintiff’s suit. The court, without entering an order directing plaintiff to answer the questions, dismissed the suit. Plaintiff has appealed. We reverse and remand.

At the time of the deposition, plaintiff was indicted for second degree felony theft arising out of the credit transaction made the basis of his suit.

Plaintiff contends the court erred in dismissing his suit because he had the absolute right to invoke the “privilege” and continue to proceed with his action. We disagree.

The prevailing rule is stated in 4 ALR3d 546 as follows:

“With the single exception of one Georgia case decided in 1924, all the following cases have recognized that a motion to dismiss a complaint, if timely made in the trial court, should be sustained where plaintiff exercised his privilege against self-incrimination to refuse to answer questions pertinent to the issues involved. The rationale upon which these decisions have been based is that although the privilege against self-incrimination is available to either party to a civil action, the plaintiff who invokes this privilege should not be permitted to prevail and, in effect, ‘eat his cake and have it too.’ ”

In Brown v. Ames, 346 F.Supp. 1176 (D.C.1972) the plaintiffs, who had brought a civil suit under the Federal Civil Rights Statutes alleging that they were arrested without legal or just cause, refused to answer during deposition certain questions on the ground the answers might incriminate them. The court said:

“The court does not quarrel with the proposition that each plaintiff can assert his Fifth Amendment right regarding ‘. . . depositions or interrogatories directed against him in a civil action where the answers might incriminate him in a pending criminal case.’ De Vita, v. Sills, 422 F.2d 1172, 1178 (3d Cir. 1970); Duffy v. Currier, 291 F.Supp. 810 (D.Minn.1968). Nor will the court here attempt to compel such answers.
The sole question presented is whether plaintiffs by commencing the action and submitting themselves to the jurisdiction of the court can be compelled either to waive their Fifth Amendment Privilege and respond to discovery proceedings and later of course to cross examination at trial, or have their Civil Rights action dismissed with prejudice. The court answers this question in the affirmative. Lyons v. Johnson, 415 F.2d 540 (9th Cir. 1969); Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968).”

The issue was fully discussed in Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (Minn.Sup.1968) wherein the court concluded that a plaintiff should not be permitted to withhold information which might relieve a defendant of liability and at the same time be permitted to prosecute a claim. The court noted that the risk the plaintiff might succeed in an unmeritorious claim would be so substantial that the plaintiff must either divulge the information or abandon the claim.

In Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955), the plaintiff in a divorce action refused to answer certain questions on the ground her answers might tend to incriminate her. The court said:

“Of course, plaintiff had the right to refuse to answer both the written interrogatories and the questions propounded to her at the hearing on the motion if to answer would tend to incriminate her. But, may she, by virtue of that privilege, obtain affirmative relief of divorce or temporary allowances, which otherwise would be denied to her on refusal to answer pertinent written or oral interrogatories? We have not been cited to nor have we found any case authorizing her to do so.”

The court added:

“To illustrate the anomalous situation that would arise if plaintiff’s contention were to be sustained, let us suppose that the interrogatories propounded to her, both written and oral, had involved some misconduct on her part and peculiarly within her knowledge, such as, although not criminal, would defeat her right to divorce. In such a case, no one would deny that her refusal to answer would defeat her action. Schooler v. Schooler, 258 Mo. 83, 167 S.W. 444, 447(7); Whitmore v. American Ry. Express Co., 219 Mo.App. 294, 269 S.W. 654, 657; Block v. Rackers, Mo.Sup., 256 S.W.2d 760, 764; Meier v. Commissioner of Internal Revenue, 8 Cir., 199 F.2d 392, 396(4). Now, may she by being privileged to refuse to answer certain questions as to her misconduct on the ground that her answer might tend to incriminate her obtain an advantage that less offensive conduct would not afford her? Such a doctrine could enable plaintiff to obtain a divorce without being the innocent and injured party. The answer is obvious. Although plaintiff may refuse to answer self-incriminating interrogatories, yet, when she does, her action must be judged in the same manner and by the same rules as though she had refused to answer any other pertinent written or oral interrogatories.”

The Florida Supreme Court in Stockham v. Stockham, 168 So.2d 320 (1964) said:

“We find that the Fifth Amendment to the Federal Constitution does not operate as a shield in all situations. For example, in Levine v. Bornstein, 13 Misc.2d 161, 174 N.Y.S.2d 574, the defendant therein alleged the plaintiff, an attorney, solicited the action to collect a judgment. Plaintiff attempted to take the Fifth Amendment in response to said allegation and referred to decisions where it was properly interposed, but the Court stated:
‘ * * * However, an examination of the above and other reported cases on the subject reveals that the privilege was always claimed by a non-party witness or by a defendant in court involuntarily, seeking only to defend. It does not follow that the protection of the privilege should be expanded to shield a plaintiff who with one hand seeks affirmative relief in court and with the other refuses to answer otherwise pertinent and proper questions which may have a bearing upon his right to maintain his action. To uphold this inconsistent position would enable the plaintiff to use the privilege as an instrument of attack.’ ”

The eases cited by plaintiff are distinguishable because in each case the party claiming the privilege was a non-party witness or a person in court involuntarily seeking only to defend.

Plaintiff does not have the right to claim his privilege and at the same time pursue his claim. He may be forced to elect whether to claim his privilege or abandon his claim. The privilege against self-incrimination is a “shield and not a sword.”

Plaintiff next contends the court erred in dismissing his suit without entering an order directing plaintiff to answer the questions. Plaintiff argues that had the court entered an order directing him to answer the questions, he might have elected to answer and waive his rights under the Fifth Amendment.

Rule 215a, T.R.C.P., authorizes the dismissal of a suit if “a party . . . refuses to answer any question . . . after being directed to do so by the court in which the action is pending.” The rule clearly provides that before a suit is to be dismissed, the party must refuse to comply with an order of the court. Barrientos v. Texas Employers’ Insurance Association, 507 S.W.2d 900 (Tex.Civ.App.—Amarillo 1974, writ ref. n.r.e.). Defendant answers by saying an order in this instance would have been improper since a person may not be forced to answer a question that tends to incriminate. We think the court erred in dismissing plaintiff’s suit without entering an order directing plaintiff to answer the questions. It is true the court could not compel an answer; however, as argued by plaintiff, he might have answered rather than have his suit dismissed. We have no doubt the court could dismiss plaintiff’s suit if he refused to answer after having been directed to do so. The court should, however, have entered an order and thus given plaintiff the option of either answering or suffering dismissal of his suit.

We hold the court abused its discretion in dismissing plaintiff’s suit and the judgment is reversed and the cause remanded.


author: BISSETT, Justice.

text:
    Joe C. PEREZ et al., Appellants, v. Shirley Louise WILLIAMS, Appellee.
    No. 1162.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 31, 1977.
    Bennie E. Ray, Brownsville, for appellants.
    Lee Arnett, Brownsville, for appellee.
   OPINION

BISSETT, Justice.

This is a suit for specific performance of a contract of sale of land, for damages for an alleged illegal taking of possession of the land, for damages for an alleged conversion of personal property, and for exemplary damages. Joe C. Perez and wife, Violeta R. Perez were plaintiffs in the trial court and Shirley Louise Williams was defendant. Trial was to a jury, which found in the single issue that was submitted that defendant converted certain items of personal property to her own use which had a market value of $729.95. Judgment was signed and rendered which decreed that plaintiffs are not entitled to any rights under the contract of sale. Plaintiffs have duly and timely perfected an appeal from the judgment.

No issues were submitted to the jury in regard to the contract of sale. No objections were made by plaintiffs to the court’s charge.

Plaintiffs, in a single instrument, requested the submission of six (6) special issues, and, in another single instrument, requested the submission of eight (8) special issues. The requested special issues were refused by the trial court. Plaintiffs, in the only points brought forward in this appeal, complained of that action by the trial court.

The disposition of this appeal is governed by the rule set out in Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786, 788 (1941), where the Supreme Court of Texas said:

“It has been repeatedly held by the courts of this State that it is not error for the trial judge to refuse to submit issues when they are all placed in a single instrument and are intermingled in such a way as to be confusing; and, further, that when issues are submitted in such manner, he is not required to search through the requested issues and submit those which are proper and refuse those which are improper.”

Plaintiffs’ points are without merit. In this case the requested special issues were presented to the trial court en masse. Under those circumstances, the trial court was not required to submit any of the requested issues to the jury. Both of plaintiffs’ points are overruled.

The judgment of the trial court is AFFIRMED.


author: McDONALD, Chief Justice.

text:
    J. D. WORTHEY, Appellant, v. FIRST STATE BANK, Milford, Texas, Appellee.
    No. 5747.
    Court of Civil Appeals of Texas, Waco.
    May 31, 1977.
    Rehearing Denied June 30, 1977.
    Glenn Hausenfluck, Fort Worth, for appellant.
    Don Hancock, Italy, for appellee.
   OPINION

McDONALD, Chief Justice.

Appellee Bank on April 11, 1977 filed its motion to affirm on certificate a summary judgment rendered by the trial court January 7,1977. Attached was certified copy of the judgment (which appeared to be a final judgment on its face), and certified copy of the cost bond for appeal. The time for appellant to file transcript had expired by some 35 days. Thereafter, April 28, appel-lee filed in this court a transcript in the case.

This court Affirmed on Certificate on May 5, 1977.

Appellant Worthey has filed motion for rehearing pointing up that the January 7, 1977 judgment is not a final judgment because appellant had filed a cross-action against a codefendant; that such judgment did not dispose of the cross-action (thus not disposing of all parties and issues); and that no order of severance was entered by the trial court. Appellant prayed the Af-firmance on Certificate be set aside.

Appellant’s motion for rehearing granted. The transcript reflects no disposition of appellant’s cross-action, and no order of severance; thus the January 7, summary judgment against appellant was interlocutory, not final, and not appealable. We were without authority to affirm the judgment on certificate. Lucchese v. Specia, CCA (San Antonio) Er.Ref. 281 S.W.2d 725.

Affirmance on Certificate set aside, and attempted appeal is dismissed at cost of appellant.


author: HALL, Justice.

text:
    SOUTHWEST BANK & TRUST COMPANY and Ronald Umphress, Appellants, v. ENGINEERING ASSOCIATES, INC., Appellee.
    No. 5679.
    Court of Civil Appeals of Texas, Waco.
    March 31, 1977.
    Rehearing Denied April 28, 1977.

      John B. Hawley, Parnass & Fowler, Irving, for appellants.
    Henry C. Meyer, III, Wynn, Brown, Mack, Renfro & Thompson, Fort Worth, for appellee.
   HALL, Justice.

Engineering Associates, Inc., appellee, brought this suit against appellants Southwest Bank & Trust Company and Ronald Umphress on the theory that Umphress, acting for Bank, intentionally misrepresented and concealed the true financial condition of Circuit Industries, Inc., causing ap-pellee to extend credit to Circuit, and resulting in the damages sought. Among other defenses, appellants pleaded the two-year statute of limitation. Jury'trial resulted in findings favorable to appellee on the elements of its cause of action and on the limitation question. Judgment was rendered on the verdict awarding appellee $10,000 actual damages and $2,500 exemplary damages. We affirm.

In their first point of error, appellants assert that the evidence establishes their two-year limitation defense as a matter of law.

The suit was filed November 18, 1974. There is evidence showing that in early 1972, an officer of Circuit requested appel-lee to supply certain manufacturing materials to Circuit on credit. Appellee’s president, Yates, checked with several usual credit sources, including Dun & Bradstreet. Circuit had not supplied current financial information to Dun & Bradstreet, and Yates was unable to obtain sufficient information from the sources to make a decision. He returned to Circuit’s president, Ferguson, who told him in substance that Circuit was paying its current obligations, had current liabilities of only $23,000, and was in a good cash-flow position. Ferguson also said that Garcia Corporation had recently advanced Circuit $100,000 on a manufacturing contract. Yates pressed for references, and Ferguson referred him to appellant Bank, instructing him to “talk to only Mr. Um-phress.” Soon thereafter Yates contacted Umphress, who was Bank’s executive vice-president. He was told by Umphress that Circuit maintained its business checking account in a satisfactory manner, that Circuit had received the $100,000 advance from Garcia and it was deposited in Bank (purportedly to Circuit’s credit), and that Circuit was repaying its past loans to Bank satisfactorily. Unknown to Yates, these statements were false. At this time, Um-phress owned at least 17,000 shares of stock in Circuit representing a cash investment of $50,000, was a former director of Circuit, had knowledge of Circuit’s financial condition, and had recently signed a contract under which Circuit would manufacture a product from materials that Circuit was asking appellee to supply on credit. Also at this time, the Board Chairman and another director of Bank were substantial shareholders in Circuit, and Bank had possession of records, controlled by Umphress, showing the true financial condition of Circuit (which was poor), but these records were not open to the public. Relying upon the information received from Umphress, ap-pellee sold to Circuit on credit and the goods were shipped. Circuit did not pay, and in late June, 1972, appellee stopped further shipments. Appellee was one of the petitioning creditors in a bankruptcy proceeding filed against Circuit in November, 1972. The final meeting of creditors in the bankruptcy was on September 23, 1974.

A cause of action based on actionable fraud accrues when the fraud is discovered, or by the exercise of reasonable diligence should have been discovered. Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876, 879 (1962); Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 321 (1941).

Yates testified directly that it was in June, 1973, when he first received information which finally led to his discovery that Circuit did not maintain an active checking account at Bank and that the $100,000 advance from Garcia Corporation was not in fact deposited with Bank to Circuit’s credit. This testimony is inferentially corroborated by other proof. It raises a fact question on the limitation issue. Appellants argue in effect that Yates was charged with knowledge of their deception as a matter of law when he learned in the summer and fall of 1972 that Circuit could not pay its bills and possibly was bankrupt. We disagree. These facts might tend to dispute Yates’s testimony, but they do not conclusively refute it. It is reasonably in-ferable from the record that Yates first began to learn of the fraud from the bankruptcy proceeding proper, in June, 1973, and that he acted diligently in the matter.

Appellants’ first point is overruled.

In their second point, appellants assert that the record conclusively shows that appellee failed to exercise ordinary care in checking Circuit’s “credit worthiness”, thereby negligently contributing to the damage in question. Although we do not agree with this contention, it is immaterial and we overrule it on this ground. Where one has been induced to enter into a contract by fraudulent representations, the person committing the fraud cannot defeat a claim for damages based thereon by asserting that the party defrauded might have discovered the truth by the exercise of proper care. Isenhower v. Bell, 365 S.W.2d 354, 357 (Tex.Sup.1963); Rattan v. Bosley, 446 S.W.2d 345, 347 (Tex.Civ.App.—Waco 1969, no writ).

Appellants’ remaining complaint was not preserved for appellate review.

The judgment is affirmed.


author: JAMES, Justice.

text:
    Benny FARLEY, by and through his next friend, Charles L. Ballman, Appellant, v. M M CATTLE COMPANY, Appellee.
    No. 5665.
    Court of Civil Appeals of Texas, Waco.
    March 31, 1977.
    Rehearing Denied April 28, 1977.

      Edwards & Associates, Lubbock, Jim M. Perdue, William Mac Gann, Miller, Gann & Perdue, Houston, for appellant.
    Robert L. Templeton, Oscar P. Fields, Jr., Amarillo, Rex W. Easterwood, Hereford, for appellee.
   OPINION

JAMES, Justice.

This is a suit for personal injuries growing out of a ranching accident, and is the second appeal herein. After a former trial, the appeal of this cause terminated in an opinion by our supreme court in Farley v. M M Cattle Co. (Tex.1975) 529 S.W.2d 751, whereby the cause was reversed and remanded for new trial on the merits. Thereafter, the case was tried again by jury after which judgment was entered that the Plaintiff take nothing, from which Plaintiff prosecutes this appeal. We reverse and remand.

Plaintiff Benny Farley, acting by and through his guardian, Charles L. Ballman as Next Friend, brought this suit for damages against the Defendant M M Cattle Co. for personal injuries sustained when the horse he was riding collided with another horse ridden by a co-worker while they were in the process of rounding up cattle belonging to the Defendant, M M Cattle Company.

On July 12, 1971, Plaintiff Benny Farley (then a fifteen year old boy), Danny Beebe, James Guinn, and Cyril Houston (Bunk) Farley were rounding up calves from a pasture of the Bear Creek Ranch owned and operated by the Defendant M M Cattle Company. Bunk Farley was the foreman of the ranch and is the father of Plaintiff Benny Farley. On the occasion in question, Danny Beebe (then a sixteen year old boy) and Benny Farley, each on horseback, were engaged in moving about fifty calves when one of the calves broke away from the herd. Plaintiff was riding a horse named “Crowbar.” Both Danny Beebe and Benny Farley rode after the calf to bring it back, and in doing so the two cowboys ran their horses on either side of the running calf for the purpose of guiding it back to the herd. During this rapidly moving process, the horses of the two boys became headed in a direction which if continued would result in a collision. Upon discovering the impending peril, Danny Beebe reined his horse to his left away from Benny Farley’s horse. At almost the same instant Danny Beebe attempted to avoid the accident, Benny Farley’s horse struck the side of Danny Beebe’s horse, causing Danny’s horse to stumble to its knees. Benny Farley’s horse fell to the ground; whereupon Benny was thrown off his horse, thereby causing the severe personal injuries in question.

Trial was had to a jury which made (or refused to make) findings as follows:

(1) Refused to find that prior to the occurrence in question it was agreed between Joe D. Whittenburg (President of Defendant M M Cattle Company) and Bunk Farley that Bunk Farley could hire Benny Farley to work in the employment of M M Cattle Co.

(2A) Bunk Farley was acting within the course and scope of his employment on behalf of M M Cattle Co. in furnishing the horse “Crowbar” to Benny Farley on July 12, 1971.

(2B) Bunk Farley was acting within the course and scope of his employment on behalf of M M Cattle Co. in supervising Benny Farley on July 12, 1971.

(3) At the time of the occurrence in question, M M Cattle Co. acting by and through Bunk Farley:

(A) Furnished Benny Farley with a horse that was not safe for use in the work that was to be done by Benny Farley.

(B) Failed to supervise Benny Farley in the work that was to be done by Benny Farley.

(4A) Failed to find that M M Cattle Co., acting by and through its foreman Bunk Farley, was negligent in furnishing Benny with a horse that was not safe for use in the work that was to be done by Benny Farley.

(4B) M M Cattle Co. acting by and through its foreman Bunk Farley was negligent in failing to supervise Benny Farley in the work that was to be done by Benny Farley.

(5) Failed to find that the negligence shown in 4B above was a proximate cause.

(There is no Special Issue No. 6).

(7A) On the occasion in question, the horse “Crowbar” had dangerous propensities abnormal to his class. The court defined “dangerous propensities” to mean that although the animal is not vicious, he has a dangerous tendency which is unusual and is not necessary for the purposes for which he was being used. The term “abnormal to his class” was defined to mean traits or characteristics which are dangerous and not usual to this particular type of animal.

(7B) On the occasion in question M M Cattle Co. aeting by and through its foreman Bunk Farley knew or in the exercise of ordinary care should have known of such dangerous propensities; and

(7C) Such dangerous propensities were a producing cause of Benny Farley’s injuries.

(8) Benny Farley failed to keep a proper lookout for his own safety while chasing the calf in question, which was negligence and a proximate cause.

(There is no Special Issue No. 9).

(10) Benny Farley failed to slow or stop his horse at a time when he knew that the two horses were after one calf, but that such failure was not negligence.

(11) Benny Farley was “laning” the calf he was chasing on the occasion in question, which was negligence and a proximate cause.

(12A) Benny Farley knew and appreciated the risk and danger that there may have been in riding the horse “Crowbar” on the occasion in question; and

(12B) He (Benny Farley) voluntarily exposed himself to whatever risk and danger there may have been in riding the horse “Crowbar” on the occasion in question.

(13) Refused to find that Bunk Farley and his attorneys acted in collusion with Benny Farley’s Guardian and his attorneys in the preparation or trial of this suit.

(14) Found damages as follows:

(A) $55,000.00 for hospital and medical care for Plaintiff from December 22, 1973 (the date of Plaintiff’s eighteenth birthday) to the date of trial.

(B) $250,000.00 for future hospital and medical care.

(C) “Zero” for Plaintiff’s lost earnings from December 22,1973 to the date of trial.

(D) “Zero” for Plaintiff’s future loss of earning capacity.

(E) “Zero” for past physical pain and mental anguish.

(F) “Zero” for future physical pain and mental anguish.

After jury verdict, the trial court entered judgment that Plaintiff take nothing, from which he appeals. We reverse the trial court’s judgment and remand the cause for retrial on the merits.

Appellant comes to this court on twenty-five points of error. Points nine through fourteen bring into focus the central problem with which we are confronted, to wit: by the jury’s answers to Special Issue No. 7 it found (a) The horse “Crowbar” had dangerous propensities abnormal to his class; (b) the Defendant Cattle Co. knew or in the exercise of ordinary care should have known of such dangerous propensities, which (c) were a producing cause of Plaintiff Benny Farley’s injuries. By such findings the jury established the elements of a cause of action in favor of Plaintiff Benny Farley against the Defendant Cattle Co. based upon strict liability. See Marshall v. Ranne (Tex.1974) 511 S.W.2d 255 and the authorities therein cited. Contributory negligence is not a defense in a strict liability action; however voluntary assumption of risk, if established, is a valid defense. Marshall v. Ranne, supra; Henderson v. Ford Motor Co. (Tex. 1974) 519 S.W.2d 87. Also see Rosas v. Buddies Food Store (Tex.1975) 518 S.W.2d 534; Rourke v. Garza (Tex.1975) 530 S.W.2d 794.

By their answers to Special Issue No. 12 the jury found: (a) that Benny Farley knew and appreciated the risk and danger that there may have been in riding the horse “Crowbar” on the occasion in question, and (b) that he (Benny Farley) voluntarily exposed himself to whatever risk and danger there may have been in riding the horse “Crowbar” on the occasion in question. These jury findings if allowed to stand establish the defense of voluntary assumption of the risk against Plaintiff, which is a proper defense to strict liability, according to the above-cited decisions of our Supreme Court. Also see J. & W. Corporation v. Ball (Tex.1967) 414 S.W.2d 143, 146.

Plaintiff-Appellant asserts that there is no evidence to support the jury’s answers to Special Issue 12(a) and (b), concerning voluntary assumption of the risk on Plaintiff’s part, and that such findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas Law Review 361; In re King’s Estate (1951) 150 Tex. 662, 244 S.W.2d 660. We sustain these contentions.

Plaintiff Benny Farley was about fifteen and a half years of age at the time of this accident, and the horse Crowbar was almost four years old at said time. Bunk Farley lived with his family on Bear Creek Ranch, the ranch owned and operated by the Defendant M M Cattle Company, and was foreman of said ranch. At that time Bunk Farley’s family consisted of his wife, a daughter and his son, Benny Farley. Bunk Farley basically had charge of the ranch operation, and did the hiring and firing of employees, subject only to the control of Joe D. Whittenburg, President of M M Cattle Co.

The horse Crowbar was foaled in August 1967, from a mare belonging to Joe D. Whittenburg, and had been under the care of Bunk Farley all of its life. Bunk started breaking the colt when he was about two years old. The colt rah loose in the pasture until Bunk haltered him. No one had handled the colt from the time he was born until Mr. Farley brought him in and started haltering him, except when Crowbar was castrated at the age of two years. Mr. Farley rode the horse about a year and a half before the accident in question. The horse was originally named “Cimarron”; however, Mr. Farley nicknamed him “Crowbar” because of his cantankerous qualities. Crowbar was a nervous, flighty, irritable, troublesome and contrary type of horse. Mr. Farley said he didn’t have too much sense, and that he was always having trouble with him, that he was “boogerish, snaky, broncish, and ill-tempered”; that he would “jump out from under you when a covey of birds would fly up”, or would “booger” at such things as a rabbit, or bicycle, or vehicle. Moreover, Crowbar was “a horse that would buck with you,” and had thrown Mr. Farley before the accident in question. The horse did not like people, was uncooperative, and would not respond well to being reined. Mr. Farley was the only person that ever rode Crowbar until July 12, 1971, the date of this accident. In other words, Benny Farley had never ridden Crowbar until the date of the accident in question.

Crowbar had been running out with other horses for some thirty to sixty days before Monday, July 12, 1971, Mr. Farley having rounded him up and put him in the lot on the Saturday or Sunday immediately preceding the date of the accident. There had been previous occasions wherein Crowbar had been turned out in the pasture for a month or two; and when he had been thereafter bridled and saddled and ridden, there was a very noticeable difference. On such occasions the horse would be “liable to pitch with you, liable to do anything with you until he gets warmed up; even the second day after you gather him, he’s liable to pitch with you until you get some more hours on him, some more sweat out of him.” With reference to his responding to command after being out in the pasture for a while, testimony showed he would be “rusty” and would not handle like he would after he had been ridden for a month or so.

According to Mr. Farley, they started rounding up cattle at about 7:00 A.M. on Monday, July 12, 1971. The accident happened at about 9:30 A.M. said date. Mr. Farley was the one who instructed Benny to ride Crowbar. This was the first time Benny had been on Crowbar, and was the first time Crowbar had been ridden since he had been running loose. Benny started riding horses when he was about four years old, and had done a lot of work on the ranch.

When Mr. Farley put Benny on Crowbar, the horse pitched; whereupon Mr. Farley told Benny to “pick him up or he will buck you off.” Mr. Farley testified that he did not consider this particularly unsafe or dangerous, considering the general nature of ranch work. Other than this occurrence, during the period of time between 7 A.M. and 9:30 A.M., the approximate time of the accident, Benny had no trouble with Crowbar to the knowledge of any witness.

Let us first consider whether there is any evidence of probative value to support the jury finding that Benny knew and appreciated the risk and danger that there may have been in riding Crowbar on the occasion in question, both at the time he got on the horse the morning of the accident, and at the time he and Danny Beebe “laned” the calf and Benny was injured about two and a half hours later. Then let us consider whether there is any evidence of probative value to support the jury’s finding that Benny voluntarily exposed himself to whatever risk and danger there may have been in riding Crowbar, both at the time he got on the horse that morning and at the time he was injured.

The theory of assumption of the risk, or volenti non fit injuria, contemplates that a party may not recover for injuries received from a voluntary exposure to a known and fully appreciated danger. In Halepeska v. Callihan Interests, Inc. (Tex.1963) 371 S.W.2d 368 our Supreme Court said on page 379:

“The volenti doctrine is an affirmative defense. ‘Volenti’ is a contraction of the Latin phrase, volenti non fit injuria, which means legally that a plaintiff may not recover for an injury to which he assents; that a person may not recover for an injury received when he voluntarily exposes himself to a known and appreciated danger. In this state, the decision -to incur the risk must have been deliberate; i. e., made with knowledge and appreciation of the danger so that it may be said that the person acted as a result of an intelligent choice. Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951). Logically, a plaintiff cannot make an intelligent choice to confront a risk if he does not actually know of the danger, or know such facts as would in law charge him with knowledge of the danger and appreciation thereof.”

At another place on page 379, the Supreme Court goes on to say that the test in volenti is subjective, that is, did the plaintiff actually know and appreciate the risk or danger, and thereafter uses this language:

“The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates. In this it differs from the objective standard which is applied to contributory negligence.”

This subjective standard is described as a person’s “actual, conscious knowledge,” and what a person “should have known” or “should have appreciated” has been said by our Supreme Court to be immaterial to findings concerning assumption of the risk. Massman-Johnson v. Gundolf (Tex.1972) 484 S.W.2d 555.

Moreover, the encounter or voluntary exposure to a known dangerous condition must result from an intelligent choice. Harvey v. Seale (Tex.1962) 362 S.W.2d 310; Babb v. Coleman (Tex.1971) 469 S.W.2d 384; Wood v. Kane Boiler Works, supra. It has been held that the voluntariness of the continued use of a known defective product is dependent upon and gauged by the age, intelligence, experience and judgment of the user. Ellis v. Moore (Tex.1966) 401 S.W.2d 789. That is to say, if by reason of age, or lack of information, experience, intelligence or judgment, the plaintiff did not understand the risk involved, he will not be taken to have assumed the risk. Heil Co. v. Grant (Tyler, Tex.Civ.App.1976) 534 S.W.2d 916, NRE. Also see Dee v. Parish (Tex.1959) 160 Tex. 171, 327 S.W.2d 449.

In the case at bar, it is significant that the accident in question caused severe brain damage to Benny Farley, to the extent that he has not been able to speak and express himself, in addition to practically all of his body being paralyzed. The consensus of medical testimony is to the effect that this situation will not improve in the future as long as he lives. This being so, we have no testimony of any kind available from Benny Farley concerning any phase of this case; therefore, we have no evidence whatever from him with respect to what he subjectively knew about Crowbar and about Crowbar’s dangerous propensities. The jury findings establish that Crowbar had dangerous propensities and that the Defendant M M Cattle Company through its foreman Bunk Farley knew or should have known of these dangerous propensities which were a producing cause of Benny’s injuries. Of course Bunk Farley knew and appreciated these dangerous propensities due to his association with Crowbar all of Crowbar’s life; however, there is no direct evidence in the record to show that Benny knew and appreciated these propensities and the dangers they presented. Moreover, Benny had no free and intelligent choice insofar as riding Crowbar on the date in question. He was instructed by his father, Bunk Farley, who was foreman of the Defendant Cattle Company, to ride Crowbar that day. Would it be fair to say that Benny, a fifteen year old boy had a “free and intelligent choice” to not ride Crowbar, by saying he could simply disobey his father and demand another horse, or stay at home and not work that day? We do not think so. See Marshall v. Panne (Tex.1974) 511 S.W.2d 255.

We have no way of knowing what Benny Farley subjectively knew, and whether he appreciated the risk and danger involved in riding Crowbar that day. To say that he had such knowledge and appreciation of the risk and danger because his father had such knowledge and appreciation would be no more than surmise and speculation. Moreover, we believe as a matter of law that Benny did not voluntarily expose himself to such risk and danger because he had no free and intelligent choice of alternatives. Likewise we believe that there is no evidence of Benny’s subjective knowledge and appreciation, or that he voluntarily exposed himself to danger when he and Danny Beebe “laned” the calf when the accident occurred. It is a matter of common knowledge that fifteen year old boys are likely to be thoughtless, impulsive, and incapable of knowing and appreciating risks and dangers. Here again we have no evidence of what he subjectively knew and appreciated.

We therefore are of the opinion and hold that there is no evidence of probative value to support the jury’s findings in answer to Special Issue 12(a) and 12(b). However, in the event that we are in error in so holding, we further hold that if there is any evidence of probative value to support said findings of voluntary assumption of risk, that said jury findings are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate (1951) 150 Tex. 662, 244 S.W.2d 660.

Appellant’s point number eighteen asserts that the jury’s answers of “zero” to Special Issue No. 14(c), (d), (e) and (f), same being Plaintiff’s damages for past lost earnings, future loss of earning capacity, and past and future pain and suffering, are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. We sustain this contention. The evidence is undisputed that Benny Farley has not been able to work since the accident, and in reasonable medical probability will never be able to work in the future. The jury found his hospital and medical expenses from December 22, 1973 until the time of trial (about thirteen months) to be $55,000.00, and found that his future hospital and medical expenses amounted to $250,000.00. Plaintiff’s expert testimony showed his lost wages from age eighteen to the time of trial amounted to $13,925.00 and the discounted value of his future earnings during his work life expectancy was $497,708.00. The evidence further showed that since the date of the accident Benny has experienced pain and suffering and will continue to experience the same in the future. The jury’s findings of zero for these elements of damages are factually insufficient. Rule 328, Texas Rules of Civil Procedure; Lowery v. Berry (1954) 153 Tex. 411, 269 S.W.2d 795; Carrico v. Busby (Houston 1st, Tex.Civ.App.1959) 325 S.W.2d 413, NRE.

Appellant’s point number twenty complains of the trial court’s exclusion of evidence concerning Plaintiff-Appellant’s medical expenses from the date of the accident, July 12, 1971, to the date of Appellant’s eighteenth birthday, December 22, 1973. We sustain this contention.

By way of Bill of Exception, Plaintiff-Appellant showed Benny Farley incurred hospital and medical expenses of $67,452.77 from the date of the injury (7-12-71) until his eighteenth birthday (12-22-73). This testimony was excluded upon motion by Defendant, and of course no special issue inquired of this aspect of damages. The exclusion of this evidence was error. This suit was brought in behalf of Benny Farley by one Charles L. B. liman as the duly authorized Guardian of the Person and Estate of Benny Farley. We are of the opinion and hold that said Guardian acting in said capacity had the right and duty to sue for said damages in behalf of Benny Farley. See Secs. 229 and 230(b) Texas Probate Code; Littleton v. Jordan (Texarkana, Tex.Civ.App.1968) 428 S.W.2d 472, writ refused.

For the reasons hereinabove stated, judgment of the trial court is reversed, and the cause is remanded for retrial on the merits.

REVERSED AND REMANDED.


author: SPURLOCK, Justice.

text:
    PYRONAUTS, INC., Appellant, v. ASSOCIATED FIRE EXTINGUISHER COMPANY, Appellee.
    No. 17823.
    Court of Civil Appeals of Texas, Fort Worth.
    April 1, 1977.

      Newbern & Hogle, and Richard H. Hogle, Fort Worth, for appellant.
    Attorneys withdrawn — No brief filed.
   OPINION

SPURLOCK, Justice.

This is a suit on an account, and for reboxing charges incurred when merchandise was returned by the buyer, Associated Fire Extinguisher Company (Associated), to the manufacturer, Pyronauts, Inc. (Pyro-nauts), in damaged cartons, and a counterclaim by Associated for promotion expenses, freight charges, and fraud for misrepresentation of the product’s quality. Trial was to a jury, whose findings were uncertain. The trial court awarded $2,945.00 to Associated. Pyronauts appeals.

Reversed and rendered.

Associated filed no briefs in this case; nor did it appear for oral submission. Under Tex.R.Civ.P. 419, this court may accept any statements made by Pyronauts in its original brief, as to the facts or the record as true, unless challenged. City of Dallas v. Holcomb, 381 S.W.2d 347 (Tex.Civ.App.—Dallas 1964), aff’d, 388 S.W.2d 585 (Tex.1964); Sunray Enterprises, Inc. v. Rosenaur, 335 S.W.2d 670 (Tex.Civ.App.—Dallas 1960, writ ref’d n. r. e.); Westchester Fire Ins. Co. v. Burns, 83 S.W.2d 814 (Tex.Civ.App.—Beaumont 1935, writ dism’d); Lake Worth Amusement Co. v. Maples, 36 S.W.2d 1072 (Tex.Civ.App.—Fort Worth 1931, no writ). Therefore, we accept as true any statements made by Pyronauts in its original brief, as to the facts and the record.

Pyronauts is in the business of manufacturing chemicals which it sells to companies that distribute fire extinguishing materials, such as Associated. Associated placed two orders with Pyronauts, for which it was billed $920.00 for the first order, and $9,700.00 for the second. Associated, not satisfied with the quality of the chemicals, sent the second order back to Pyronauts. The boxes were received by Pyronauts in damaged condition, for which Pyronauts charged a 15% reboxing charge, as their contract provided, adding $1,455.00 to the $920.00 still owing on the first order. Associated paid $468.52 toward the account, leaving a balance due of $1,906.48. The parties agreed that Pyronauts would allow a credit on its account for one roundtrip fare between California, Associated’s home office, and Fort Worth, Pyronauts’ home office. This further reduced the indebtedness to $1,680.74, for which amount Pyro-nauts sued. Pyronauts also prayed for interest, attorney’s fees, and costs. Associated filed a counterclaim, alleging that Pyro-nauts fraudulently misrepresented the quality of the chemicals, and that Associated relied on the misrepresentation to its detriment, spending $500.00 to promote the product, and $2,200.00 in freight charges. It prayed for those amounts, in addition to $2,200.00 exemplary damages and attorney’s fees.

The case was submitted to the jury on special issues. The jury found Associated was indebted to Pyronauts in the amount of $1,455.00 reboxing charge, plus $2,000.00 attorney’s fees for preparation and trial, plus $750.00 for appeal to the court of civil appeals and $750.00 for appeal to the supreme court. However, it also found that Pyro-nauts made fraudulent representations, but found actual damages in the amount of “$2200 freight.” It also found $5,000.00 exemplary damages for Associated.

The court reduced these amounts to judgment against Pyronauts in the sum of $2,945.00, from which it appeals.

The jury was not requested to find whether the chemicals were substandard, but rather whether Pyronauts made representations of material facts regarding the production of the chemicals, which they found had been made, were false, were made with the intent to induce Associated to buy them, and were reasonably relied upon to Associated’s detriment. However, the next special issue, “Find from a preponderance of the evidence the amount of money, in dollars and cents, Defendant, Associated Fire Extinguisher Company, sustained as actual damages. Answer in dollars and cents, if any,” was answered “$2200 Freight.” To this, the jury added exemplary damages of $5,000.00.

Taking as fact all representations made by Pyronauts, we find there was no evidence introduced to show what amount, if any, Associated paid for freight. However, attorney for Associated, in his jury argument said, “Did he sustain damages? He sure did. How much? $1,100.00 for the freight to send the 40,000 pounds out there, $1,100.00 to send it back, and $500.00 that he spent at least on his distributorship, or $2,700.00 in damages.”

The rule on reconciling uncertainties and ambiguities in jury verdicts is that the court may look to the pleadings and the evidence. 3 McDonald, Texas Civil Practice Rev., § 15.06.1 (1970). As the court stated in Rountree Motor Co. v. Smith Motor Co., 109 S.W.2d 296, 300 (Tex.Civ.App.—Beaumont 1937, writ dism’d), “It is a rule long sanctioned by the decisions of our courts that reference may be had to the record for the purpose of removing ambiguities and ascertaining the true intent of the verdict of the jury.”

By referring to Associated’s pleadings, we find the figure of $2,200.00 freight, and by referring to its jury argument, we see how the jury was apprised of the figure. While there was no evidence introduced from which the jury could have found $2,200.00 freight, the reference to the pleadings is sufficient to clarify the uncertainty as to the jury’s intent. It intended not to reimburse Associated for any promotional costs or any fraud, but for the freight charges only.

However, the jury was not requested to find whether there was a freight charge, or how much a reasonable freight charge would be. Absent a finding of a charge for freight, the jury cannot find damages for one. 3 McDonald, Texas Civil Practice Rev., § 12.23.1 (1970); State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941); Service Life Insurance Company v. Miller, 271 S.W.2d 301 (Tex.Civ.App.—Fort Worth 1954, writ ref’d n. r. e.). And absent any evidence of a freight charge, an issue would have been improper. Bonney v. San Antonio Transit Company, 160 Tex. 11, 325 S.W.2d 117 (1959); Rubner v. Kennedy, 417 S.W.2d 860 (Tex.Civ.App.—San Antonio 1967, writ ref’d n. r. e.); Wynnewood Development Company v. Belmares, 295 S.W.2d 441 (Tex.Civ.App.—Eastland 1956, no writ); Martin v. Weaver, 161 S.W.2d 812 (Tex.Civ.App.—El Paso 1941, writ ref’d w. o. m.).

We hold the trial court was in error in not having disregarded the jury’s answer to Special Issue 12.

Since we hold there were no actual damages properly awarded Associated, it follows that there can be no exemplary damages either. We therefore hold the trial court erred in not disregarding the jury's answer to Special Issue 13.

We sustain all of Pyronauts, Inc’s., points of error.

We render the judgment that the court below should have rendered. Tex.R.Civ.P. 434.

We reverse the judgment of the trial court and render judgment that Associated Fire Extinguisher Company recover nothing on its counterclaim against Pyronauts, Inc.; we render judgment that Pyronauts, Inc., recover from Associated Fire Extinguisher Company the sum of $1,455.00 actual damages and the additional sum of $3,500.00 attorney’s fee and if Associated Fire Extinguisher Company does not carry this cause of action by appeal or writ of error to the Supreme Court of Texas, then this judgment shall be credited with the sum of $750.00 as attorney’s fee, leaving recovery for attorney’s fee herein in the sum of $2,750.00. See International Security Life Insurance Co. v. Spray, 468 S.W.2d 347 (Tex.1971).


author: SHANNON, Justice.

text:
    Richard ANTRIM, Appellant, v. Milton R. McMURREY et ux., Appellees.
    No. 12520.
    Court of Civil Appeals of Texas, Austin.
    April 6, 1977.

      John T. Anderson, Graves, Dougherty, Hearon, Moody & Garwood, Austin, for appellant.
    Gretchen E. Raatz, Sneed, Vine, Wilkerson, Selman & Perry, Austin, for appellees.
   SHANNON, Justice.

Richard Antrim, appellant, filed suit on a promissory note in the sum of $11,654.56 signed by appellees, Milton R. McMurrey and wife, Katherine M. McMurrey. After trial to the court, the district court of Travis County entered judgment that Antrim take nothing. We will reverse that judgment.

Antrim’s trial petition averred that appel-lees, for a valuable consideration, executed a promissory note in the sum of $11,654.56, and that appellees refused to pay the note. By way of defense, appellees alleged that although they signed the note, the instrument was incomplete at the time of signature. Appellees pleaded that the note “. . . was never intended to become an instrument and was incomplete in all necessary respects and no person was granted the authority to fill in any blanks or attempt to effect completion of such paper.” Appellees alleged further that Antrim’s . . filling in of the blanks in an attempt to make the paper into a promissory note constitutes an alteration which is both fraudulent and material and discharges this Defendant [appellees] from any purported obligations.” Appellees also pleaded that, “No consideration was given by Plaintiff for the signature of Defendant upon such incomplete paper.”

The execution of the promissory note arose from a construction contract by the terms of which Construction 2000, Inc., agreed to build a house for Antrim. Appel-lee Milton R. McMurrey was president of and majority stockholder in Construction 2000, Inc. The contract price for the construction project was $122,134. Antrim’s testimony was that near the time of the completion of the house McMurrey told An-trim that the corporation was failing financially and that both the corporation and Antrim probably would suffer losses. At that time appellees’ bank refused to extend any more credit to the corporation and, in addition, a number of subcontractors on the job had not been paid by the corporation. McMurrey estimated the cost of completion of the house would be about $11,654.56 over the contract price. Antrim testified that McMurrey proposed that a promissory note be executed for that sum payable to An-trim. Milton R. McMurrey signed the note as president of the corporation, and McMur-rey and his wife also signed the note individually as co-makers.

The parties used a printed note form, and the note was signed without advice of counsel. At the time appellees signed the note the blanks for the date, the amount of interest, and duration of the note, were not completed. Later, Antrim filled in the blank spaces and showed the note, as altered, to appellees. Appellees refused to initial the changes which had been made in the note.

Antrim took over the construction project and completed the job. Antrim settled with the subcontractors for about forty percent of the sums which they claimed due.

Upon request the court filed findings of fact and conclusions of law. The court found, among other things, that Antrim did not have authority to complete the note. The court found further that Antrim induced appellees to sign the note by representing to them that he would pay all subcontractors in full, and that appellees would not have signed the note but for Antrim’s representation that all subcontractors would be paid in full. The court concluded that the consideration for the execution of the note failed; that the note was an incomplete instrument pursuant to Tex. Bus. & Comm. Code Ann. § 3.115; that the rules with respect to material alterations were applicable pursuant to Tex. Bus. & Comm. Code Ann. § 3.407; and that the alterations made by Antrim were fraudulent and material and that appellees were discharged from liability pursuant to Tex. Bus. & Comm. Code Ann. § 3.407 (1968).

Antrim argues that the court erred in concluding that the consideration for the execution of the promissory note failed because there was no pleading to support such conclusion. It is true that appellees pleaded there was no consideration for the note, and not that there was a failure of consideration. Nevertheless, Antrim, without objection, permitted the introduction of evidence bearing upon failure of consideration. The issue of failure of consideration, then, was tried by consent. Tex.R.Civ.P. 67.

Antrim claims, and we agree, that the court erred in concluding that the consideration for the execution of the promissory note failed because there is no evidence to support that conclusion.

Appellees maintain that the consideration for their execution of the promissory note was Antrim’s representation that he would pay all of the subcontractors in full. The district court found, as a fact, that Antrim made such a representation.

The evidence pertaining to the supposed representation is as follows. On direct examination McMurrey was asked if it were agreed that the sum of $11,654.56 would be used by Antrim to pay the subcontractors. His response was that he did not recall “. . .an agreement one way or another.” In describing his purpose in meeting with Antrim, McMurrey testified “. I was there for the purpose of signing something to get, you know, everybody kind of off of my back, to get the subcontractors paid off and to get Mr. Antrim’s house closed, you know, with no liens.”

On cross-examination McMurrey was permitted to give hearsay testimony that an officer of the Austin National Bank said “. . . I think the Austin National Bank working with Mr. Antrim, if you’ll take care of this for us, you know, we can probably pay off the subcontractors so that there will be no liens.” McMurrey testified also that based upon what the bank officer and Antrim had told him he thought the subcontractors “were going to be paid in full.” A few questions later McMurrey admitted that he did not recall Antrim telling him that he was going to pay all of the subcontractors in full. Mrs. McMurrey testified that Antrim had never told her that the subcontractors would be paid in full.

We have concluded that the district court’s finding that Antrim made the representation to McMurrey that he would pay the subcontractors in full is supported by no more than a scintilla of evidence, and, as a result, we sustain Antrim’s no evidence point of error.

Appellees’ primary position is that the promissory note was incomplete when signed and that Antrim’s later completions were unauthorized. Antrim’s completion of the note, avow appellees, constituted a material alteration which discharged appellees’ obligation on the note.

The completion of blanks in an instrument is not necessarily an alteration of the instrument. What must be determined is whether the person completing the instrument had the authority to do so. First National Bank of McCook v. Hill, 189 Neb. 581, 204 N.W.2d 90 (1973).

The validity of an incomplete instrument is presently governed by Tex. Bus. & Comm. Code Ann. § 3.115 (1968). That section provides as follows:

“§ 3.115. Incomplete Instruments
(a) When a paper whose contents at the time of signing show that it is intended to become an instrument is signed while still incomplete in any necessary respect it cannot be enforced until completed, but when it is completed in accordance with authority given it is effective as completed.
(b) If the completion is unauthorized the rules as to material alteration apply (Section 3.407), even though the paper was not delivered by the maker or drawer; but the burden of establishing that any completion is unauthorized is on the party so asserting.”

Before the enactment of the Business and Commerce Code, the rule in Texas was that when a person delivered an incomplete instrument there was implied authority for the transferee to fill in the blanks. Republic National Bank of Dallas v. Strealy, 163 Tex. 36, 350 S.W.2d 914 (1961).

Section 3.115 does not expressly grant implied authority to a transferee to fill in incompleted blanks as did the Negotiable Instruments Act § 14 construed in Strealy. Nevertheless, the same result is reached by the placement of the burden of proof. Section 3.115 provides that the burden of establishing that any completion is unauthorized is on the party asserting the lack of authorization. The effect of the allocation of the burden of proof is to imply that the transferee has the authority to complete blanks in the instrument. Holliday v. Anderson, 428 S.W.2d 479 (Tex.Civ.App.1968, no writ); see, Teofan, Commercial Transactions, Annual Survey of Texas Law, 23 Sw. L. J. 88 (1969). This result is consistent with that reached in other jurisdictions under the Uniform Commercial Code § 3-115. In other jurisdictions, once the transferee completes the instrument, it will be enforced as though it was completed prior to signing. Westerly Hospital v. Higgins, 106 R.I. 155, 256 A.2d 506 (1969).

The question then is whether appel-lees met their burden by proving that An-trim did not have the authority to complete the instrument. The presumption of authorization is difficult to overcome. See, e.g., In re Estate of Norris, 532 P.2d 981 (Colo.App.1975). Appellees did not testify that they withheld authority from Antrim to complete the blanks in the note. The only testimony with respect to the authorization question was testimony by the appellees that they did not expressly give Antrim the authority to fill in the blanks. That testimony, alone, will not overcome the presumption that Antrim had the authority to complete the blanks with respect to the date and the prematurity interest. Hutcheson v. Herron, 131 Ill.App.2d 409, 266 N.E.2d 449 (1970). Stated another way, there was no evidence that appellees withheld from Antrim authorization to complete the instrument.

The judgment is reversed and the cause is remanded for entry of judgment for An-trim for the amount of the note, attorney’s fees, and interest.

Reversed and Remanded.


author: O’QUINN, Justice.

text:
    J. D. CASTREJANA, Appellant, v. B. F. DAVIDSON, Appellee.
    No. 12521.
    Court of Civil Appeals of Texas, Austin.
    April 6, 1977.

      Terence A. Willis, Willis & Haley, San Antonio, for appellant.
    Albert M. Walker, Jr., Austin, for appel-lee.
   O’QUINN, Justice.

B. F. Davidson, the appellee, brought suit in April of 1975 against J. D. Castrejana on a promissory note in the principal sum of $6,692. Castrejana, now appellant, answered originally that the promissory note was without consideration. Later by amendment Castrejana pleaded in addition that “the written instrument ... is for the payment of a real estate commission . [and] does not comply with the requirements of Section 28 of the Real Estate License Act” that an agreement to pay a commission be in writing, signed by the party charged, and contain a description of the realty sold.

Trial was before the court without a jury in March of 1976, following which the court rendered judgment on April 30, 1976, that Davidson recover from Castrejana principal of the note, with interest and attorney’s fees.

Castrejana appealed and brings four points of error, directed in the main to the trial court’s failure to compel Davidson to meet the requirements of Section 20(b) of the Real Estate License Act (Art. 6573a, V.A.C.S., as amended, eff. May 19, 1975; Acts 1975, 64th Leg., p. 533, ch. 216, sec. 1).

We will overrule all points of error and affirm judgment of the trial court.

The record shows that Davidson, a licensed real estate broker, handled the sale of a tract of land in Bandera County, owned by the Community Savings and Loan Association of Fredericksburg, by which James C. Miller of San Antonio ultimately acquired such portion of the land as he wished to keep for a home and other tracts were acquired through Miller by different purchasers, of whom Castrejana was one buyer.

Castrejana made a down payment of $5,000, which was not sufficient for Miller to pay the Davidson commission, amounting to more than $6,600. After some negotiating among the parties, Davidson arranged an agreement by which Castrejana would make an open note to Davidson for the amount of the commission, which would avoid necessity of encumbering the Castre-jana tract further than to the extent of normal liens between Castrejana and seller. The note provided for maturity in six months, without interest until maturity.

The trial court found that “although no actual money changed hands between . Davidson . . . and Castrejana, the note made the basis of this suit was fully supported by consideration being the credit owed by Miller to Davidson by way of a real estate commission. The Court finds that the credit extended . . . Castrejana by . Davidson by foregoing the collection of any actual monies at the time of closing from . Miller was a real payment and legally supported by consideration as if actual cash had been paid by Davidson directly to . Miller for the benefit of . Castrejana.” The court also found: “The evidence further shows that no agreement was ever made by Castrejana to pay Davidson a commission either orally or in writing and but for the Plaintiff [Davidson] furnishing the additional consideration to satisfy the price demanded by the seller, this transaction could not have been consummated.”

The trial court “ . . . determined that the transaction did not fall within the requirements of the Real Estate Licensing Act and that the considerations sued for did in fact make up the balance of the purchase price for said property which the evidence shows was purchased for a total consideration of $80,500.00.”

Castrejana’s position on appeal is that “ . . . the promissory note does not satisfy the Real Estate License Act, particularly Section 20(b), and therefore recovery cannot be had.” In the trial Castre-jana identified the promissory note, identified his signature to the note, and admitted he had executed the note offered in evidence in the principal amount on the date shown by the instrument.

His defense at trial and on appeal is that the note does not meet the requirements of Section 20(b) of Article 6573a, V.A.C.S., which provides: “An action may not be brought in a court in this state for the recovery of a commission for the sale or purchase of real estate unless the promise or agreement on which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged or signed by a person lawfully authorized by him to sign it.”

An earlier section of this Act was construed in a similar fact situation by this Court in 1952 with the holding that suit on the promissory note could be maintained, and enforcement of the obligation under the note was not precluded by the Real Estate License Act. In Thompson v. Williams, 246 S.W.2d 506 (Tex.Civ.App. Austin 1952, writ ref’d n. r. e.), this Court had under consideration Section 22 of the Act (now first grammatical paragraph of Section 28), which sets out the same requirements, in substantially the identical language, found in Section 20(b) of the Act, as relied on by Castrejana. Acts 1949, 51st Leg., p. 304, 315, ch. 149.

In Thompson, this Court held that Section 22 of the Act was but an addition to the Statute of Frauds (Arts. 3995, 3995a, V.A. C.S., now Section 26.01, Tex.Bus. & Comm. Code), and within its own terms did not render void or illegal a promise or contract, on authority of an earlier decision by the Supreme Court in Hutchings v. Slemons, 141 Tex. 448, 174 S.W.2d 487, 489-90 (1943), 148 A.L.R. 1320.

In the case now being considered the record shows that Davidson, in his capacity as a licensed real estate broker, fully performed his verbal agreement to bring about sale of the tract by Miller to Castrejana and in effect supplied part of the down payment Castrejana needed to buy the land on terms required by Miller and Community Savings and Loan. Suit on the promissory note was based upon a valid consideration, and enforcement is not precluded by Section 20(b) of the Real Estate License Act. Appellant’s contention that Davidson should not have been permitted to prove that he was licensed as a real estate broker is without merit and is overruled.

Section 20(b) of the Act merely establishes a rule of evidence and may not be construed to impair the obligation of contracts. Hutchings v. Slemons, supra; Thompson v. Williams, supra. In construing this statute, the courts are guided by authorities construing the Statute of Frauds. Lyon v. Harmon, 212 S.W.2d 491, 493 (Tex.Civ.App. San Antonio 1948, no writ); Thompson v. Williams, supra.

It is settled that the Statute of Frauds was enacted to prevent frauds and may not be employed to bring about the very thing it was designed to prevent, even in the absence of deliberate intent or purpose so to defraud. Gardner v. Platt, 68 S.W.2d 297 (Tex.Civ.App. Austin 1934, writ ref’d); Baugh v. Baugh, 224 S.W. 796, 800 (Tex.Civ.App. Austin 1920, no writ); 26 Tex.Jur.2d Statute of Frauds § 9, p. 160 et seq. (1961).

Appellant may not invoke Section 20(b) of the Real Estate License Act as protection to the enjoyment of the fruits of his contract with Davidson. Baugh v. Baugh, supra.

The judgment of the trial court is in all things affirmed.

Affirmed.


author: PHILLIPS, Chief Justice.

text:
    Glen BURKHART, Appellant, v. CONCHO INDUSTRIAL SUPPLY, INC., Appellee.
    No. 12553.
    Court of Civil Appeals of Texas, Austin.
    April 13, 1977.
    Rehearing Denied April 27, 1977.
    Galen A. Moeller, San Angelo, for appellant.
    George S. Finley, Smith, Davis, Rose, Finley & Hofmann, San Angelo, for appel-lee.
   PHILLIPS, Chief Justice.

The question for decision is whether the filing and prosecution of a workmen’s compensation claim tolls the two-year statute of limitations applicable to a tort action arising out of the same injury. The trial court thought not and so held, and we affirm its judgment.

The facts of this case are not in dispute. Appellant was injured in the course of his employment on September 14, 1973. On March 8, 1974, a compromise settlement of appellant’s workmen’s compensation claim was reached and on March 21, 1974, this settlement was approved by the Industrial Accident Board and the amount of the settlement was paid to appellant. On December 12, 1975, appellant brought his third-party suit against appellee alleging appellee to be guilty of negligence.

As the suit was brought after two years from the date of appellant’s injury, appellee contends that the suit was barred by the two-year statute of limitations, Tex.Rev. Civ.Stat.Ann. art. 5526 (1958). We agree.

Prior to September 1, 1973, an injured party who was covered by workmen’s compensation was given an election to sue the third party or make a claim under the Workmen’s Compensation Act, Fort Worth Lloyds v. Haygood, 151 Tex. 149, 246 S.W.2d 865 (1952). If the injured party elected to proceed under the compensation law and received a final judgment in his favor or received a compromise settlement agreement, then either of these served to toll the statute running against the third-party claim. A claimant’s right to sue the third party was barred by limitations two years after the entry of a final judgment or the payment of the award of the Industrial Accident Board. The statute was not tolled against the third party if an injured employee elected to proceed under the compensation law and his case was in litigation for more than two years before a final judgment was entered against him. Such served to bar the third-party claim. To toll the running of the statute against the third-party claim, a compensation claimant had to be successful. This was the law as late as Campbell v. Sonford Chemical Company, 486 S.W.2d 932 (Tex.1972); however, here the Supreme Court recognized that this rule might work an injustice on the third-party defendant because of the delay in pursuing the cause of action against him. The Court attributed such delay to Section 6a of the Workmen’s Compensation Act. The Court then urged the Legislature to change the section. Section 6a provided that the employee waived his claim for compensation if he proceeded against the third party prior to final determination of the compensation claim.

In Campbell the Court said, “We would strongly urge that the Legislature consider an amendment of Article 8307, Section 6a, to allow the injured workman to file a third-party action without thereby losing his compensation rights. The third-party rights should then be governed by Article 5526.”

In 1973 the Legislature amended Article 8307, Section 6a, to allow the employee to proceed either at law against some person other than the subscriber to recover damages or against the association for compensation under the law, and if the employee proceeds at law against the person other than the subscriber, then he cannot be held to have waived his rights to compensation under the law.

The statute of limitations, Article 5526, remained unchanged.

So far as we can ascertain, the case at bar is the first on the point presented since the amendment of Article 8307, Section 6a.

In our judgment, and we so hold, the amendment not only allows a compensation claim and third-party suit to be instituted simultaneously, but it also starts the running of the statute of limitations, Article 5526, from the time of the injury.

Appellant contends that the Supreme Court’s pronouncements on the changes advocated in Article 8307, Section 6a, were nothing more than dicta; however, in our judgment, it is dicta that we would be prudent to heed. In this respect, see Valmont Plantations v. State, 163 Tex. 381, 355 S.W.2d 502, 503 (1962), and Parker v. Bai ley, 15 S.W.2d 1033, 1035 (Tex.Comm’n App. 1929, holding approved). Also see Thomas v. Meyer, 168 S.W.2d 681, 684-5 (Tex.Civ.App.1943, no writ), and Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex.1964).

The purpose of limitation statutes is to compel the assertion of claims within a reasonable period after their origin, and while the evidence upon which their enforcement or resistance rests is yet fresh in the minds of the parties or their witnesses. Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967); Price v. Estate of Anderson, 522 S.W.2d 690 (Tex.1975).

Since the third-party suit was brought more than two years after the date of the injury, the two-year statute of limitations was applicable and the judgment of the trial court is in all things affirmed.

Affirmed.

      . Article 8306, et seq. (1967).

      . Collins, “Workmen’s Compensation,” 28 Sw. L.J. 131, 135 (1974). Also see Robinson v. Buckner Park, Inc., 547 S.W.2d 60, 61-62 (Tex.Civ.App.1977).