author: YOUNG, Justice.

text:
    Ronald Earl ROTH et al., Appellants, v. Janet M. LAW et al., Appellees.
    No. 1326.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 30, 1979.
    Supplemental Opinion on Remittitur April 5, 1979.
    Rehearing Denied April 26, 1979.

      Charles R. Dunn, James Wyckoff, Wyck-off, Russell, Dunn & Frazier, Houston, for appellants.
    K. Michael Mayes, G. P. Hardy, III, Har-vill & Hardy, Houston, for appellees.
   OPINION

YOUNG, Justice.

In this motor vehicle accident case, appel-lee, Janet M. Law, individually and as next friend of Lea Rae Law, a minor, sued Ronald Earl Roth, Lilly Ice Cream Company, and Lilly Dairy Products for injuries received when the Law vehicle and a Lilly truck driven by Roth collided. Trial was to a jury which found Roth and Lilly Ice Cream Company liable for resulting injuries to Mrs. Law’s back and Lea’s left eye. Judgment of $7,655.00 in favor of Mrs. Law and of $193,760.00 in favor of the minor child was entered on the verdict. Roth and Lilly Ice Cream Company bring this appeal.

A fair summary of the record indicates the following events. On January 29,1976, appellee and her daughter Lea were travel-ling westbound on a two-lane highway near Bay City, Texas on a dry clear day. As Mrs. Law was approaching the intersection of the highway with Hasama Road, where she intended to turn left, Roth, driving a Lilly truck behind Mrs. Law, pulled into the left lane to pass the Law vehicle. Mrs. Law apparently signaled her left turn, began slowing down and started to turn left when the Lilly truck and the Law vehicle collided in the east bound lane of the highway at the intersection with Hasama Road.

Mrs. Law sustained injuries to her back and Lea, who had been riding in the back seat of the Law automobile, apparently was thrown around in the back seat, striking the door, seat and floor. Lea, however, showed no visible signs of injury after the accident. She did though, complain about a headache and told her mother that her eye hit the door. Thereafter, in March and April of 1976, Lea’s left eye began crossing. Mrs. Law did nothing about it, though, thinking Lea merely needed glasses.

Subsequently, in June of 1976, Lea was struck by an automobile and received a minor skull fracture. During Lea’s examination after this accident an ophthalmologist discovered that Lea’s left eye was suffering a detached retina. The child was then referred to Dr. Alice McPherson, a retinal specialist. Dr. McPherson determined that the retinal detachment most probably was caused by trauma and that it was of long standing, i. e., was not caused by the recent June accident but had occurred at least three months prior to the time she saw Lea in June of 1976. Dr. McPherson performed three operations upon Lea in an attempt to reattach the retina to the wall of her eye but was unsuccessful. As a result, Lea became permanently blind in her left eye.

Appellants bring thirty points of error. Appellants’ points 1 and 2 contend that the trial court erred in allowing Doctor Smith, an ophthalmologist, to testify concerning the retinal detachment because two of his opinions were based solely upon opinions of other physicians as found in the hospital records and the records of Dr. McPherson. We disagree. The evidence shows that Dr. Smith examined Lea on one occasion only, that being a “little over a month” before the case went to trial on August 15, 1977. This examination was routine and because an advanced cataract clouded the minor’s eye, Dr. Smith was unable to personally examine the retina in question although the doctor did observe the total absence of sensitivity to light in the left eye, and that her left eye was crossing. As a consequence, Dr. Smith’s testimony as to the causation and timing of the retinal detachment was totally reliant on the minor’s hospital records, the optical sketches drawn by Dr. McPherson or her staff and the child’s history as related in the hospital records and by the child’s mother.

At trial, Dr. Smith was asked to give opinions on two separate questions. The first question asked if the June 1976 accident caused the retinal detachment. Appellants objected to this question on the sole ground that it was based upon other physicians’ opinions. The objection was overruled and appellants were given a running objection to any of Dr. Smith’s opinions based upon opinions of other doctors. Dr. Smith then answered that in his opinion the June 1976 accident did not cause the detached retina. The second question asked if the January 1976 accident (made the basis of this suit) caused the retinal detachment. He answered that it probably did.

We hold that appellants’ complaint that Dr. Smith’s opinions were based on the opinions of other physicians to be unjustified. About the first opinion concerning the June 1976 accident, Dr. Smith stated that this opinion could be totally based upon the retinal drawings. Regarding the second opinion, we find an absence of any indication that Dr. Smith relied on other medical opinions; indeed, Dr. Smith himself stated that the retinal drawings were the very heart of the medical records, all of which were admitted into evidence.

In response, appellants contend that the retinal drawings are merely medical opinions of the condition of Lea’s retina. We disagree and hold that the retinal drawings Dr. Smith reviewed were not opinions but were objective findings made by Dr. McPherson or her staff. Dr. Smith testified that the making of retinal drawings follows a standardized procedure such that any ophthalmologist could interpret the drawing even if he or she could not see the retina. In general, such drawings are hand sketched reproductions of what the doctor views when looking into the patient’s dilated eye. Further, according to Dr. Smith, the drawings are usually very accurate because they are made in preparation for surgery so that the surgeon will know where to work on the eye. In addition, they are prepared for future reference by the treating doctor and for reference by other doctors who might need to become involved with the patient. Dr. Smith did state, however, that some ophthalmologists would be better skilled than others in making retinal drawings but that essentially ophthalmologists, as a group, would give the same rendition of a certain ocular condition. It should be further noted that Dr. McPherson worked exclusively with retinas and that she and her staff were extremely well practiced in making accurate retinal drawings. Moreover, Dr. Smith was experienced in interpreting Dr. McPherson’s drawings in that she was his medical school professor and taught him the technique of retinal drawing. Dr. Smith also stated that two equally trained ophthalmologists interpreting a retinal sketch would probably come up with about the same interpretation.

At trial, Dr. Smith explained to the jury the observations which he gleaned from the drawings. He explained that the pictures showed extensive scarrings, extensive glios-is (dried blood caked on the retina), cyst formation impigmentation (suggesting trauma) and blood vessels growing into the gliosis (suggesting that the damage had been present for some time). In addition, he stated that the retina appeared fixed and folded (also suggesting that the damage had occurred quite some time in the past). We think Dr. Smith’s opinion was based upon fact rather than opinion.

Under points 1 and 2 appellants also complain that Dr. Smith’s opinion, concerning the January 1976 accident, was not admissible because according to Dr. Smith’s own admission his opinion was based primarily upon the history that the mother had given him. Appellants cite Goodrich v. Tinker, 437 S.W.2d 882 (Tex.Civ.App.—El Paso 1969, writ ref’d n.r.e.) for the proposition that a testifying doctor may not base his opinion, in part, upon the interested testimony of a party. This objection to the admissibility of Dr. Smith’s testimony was not, however, raised at trial and may not be raised now on appeal. Kettle v. Smircich, 415 S.W.2d 935 (Tex.Civ.App.—Corpus Christi 1967, no writ); see also City of Wichita Falls v. Jones, 456 S.W.2d 148, 154 (Tex.Civ.App.—Fort Worth 1970, no writ). Furthermore, even if the objection had been raised at trial, the case of Slaughter v. Abilene State School, 561 S.W.2d 789, 791 (Tex.Sup.1977), makes it clear that a medical opinion is not rendered inadmissible because a testifying doctor bases his opinion, in part, upon an interested party’s case history. Appellants’ points 1 and 2 are overruled.

Appellants’ points 3 and 4 contend that the court erred in allowing Dr. Smith to answer a hypothetical question concerning the causal relation between the January 29, 1976, accident and the retinal detachment because the hypothetical assumed that no other trauma had occurred to the child’s eye prior to January 29, 1976.

It is within the province of counsel to assume, within the limits of the evidence, a state of facts which he contends the evidence justifies and which enables the witnesses to form an intelligent answer from the facts assumed. Pan American Fire & Casualty Company v. Reed, 436 S.W.2d 561 (Tex.Civ.App.—Amarillo 1968, writ ref’d n.r.e.). Hypothetical questions should, though, be restricted to the facts in evidence or to be put in evidence in order to prevent misleading or confusing the jury. J. Weingarten, Inc. v. Tripplet, 530 S.W.2d 653 (Tex.Civ.App.—Beaumont 1975, writ ref’d n.r.e.). In the hypothetical, about which appellants complain, appellees’ counsel asked Dr. Smith to assume his earlier mentioned physical findings based upon the retinal drawings and to assume further “that the only other trauma involving the eye that the little girl had been involved in had to do with an automobile-truck, wreck that took place on January 29,1976.” Given this, Dr. Smith was asked whether it was consistent with his observations for the detachment to have occurred in the January accident. Dr. Smith never answered this particular hypothetical, though, because of subsequent objections. Instead, Dr. Smith was then asked to assume the same physical findings from the drawings and “that there was no trauma that anybody knows about nor was there any complaint or problem with the left eye before an automobile-truck wreck that occurred on January 29, 1976.” Dr. Smith responded that, based upon these assumptions, it was his opinion that the January 29, 1976 accident was causally related to the injury within reasonable medical probability. Appellants’ contention, therefore, is misstated. Even so, we will treat appellants’ argument as if Dr. Smith had answered the first of the above two hypotheticals in the affirmative.

Lea’s natural parents released possession of her for adoption in January of 1974. Mrs. Law has had exclusive custody of Lea since that time. Mrs. Law testified that she had no idea as to what happened to Lea physically prior to January 1974. She stated, however, that Lea had no eye problems when they received her in January of 1974. She also testified that Lea had had no visible injury to her head or eyes and made no complaints about them between January 1974 and January 1976. Dr. Smith dated the trauma causing the retinal detachment to have occurred on January 29, 1976, and Dr. McPherson at one point said that the trauma causing the retinal detachment was probably one and a half to two years old, or possibly as long as three to five years old, at the time she examined Lea in June 1976. Consequently, Lea was in Mrs. Law’s exclusive control during the times each doctor estimated that the trauma causing the detachment most probably occurred. To be sure, this testimony does not show the absence of any trauma from the time of birth. The trauma could have occurred while the child was in the possession of her natural parents. The evidence does, though, fairly show the absence of any trauma other than the auto accident during the period of time both ophthalmologists stated the child most probably sustained the trauma which caused the retinal detachment. We hold, therefore, that the hypothetical appellees’ counsel propounded to Dr. Smith was justified by the evidence herein.

Appellants also complain that the previous hypothetical did not accurately reflect the facts in the case because Dr. McPherson mentioned the possibility of child abuse as the prior trauma causing the retinal detachment herein. While it is true that child abuse was mentioned by Dr. McPherson as a possible prior trauma and cause, a hypothetical question may assume facts which the evidence fairly tends to prove, although they may not have been clearly established. Wheatheart Feeders, Inc. v. Fletcher, 453 S.W.2d 902, 905 (Tex.Civ.App.—Amarillo 1970, writ dism’d). In this connection, it was Dr. Smith’s testimony that child abuse was the cause of retinal detachment in less than one percent of all cases. Thus, in the end, we think the evidence fairly tended to prove, though it did not clearly establish, the absence of a trauma prior to the January 29, 1976 accident. Accordingly, appellants’ points 3 and 4 are overruled.

Appellants’ points 5 and 6 complain of an improper instruction to the jury. We need not consider this point, however, because the record reflects that the appellants did not object to this instruction prior to its submission to the jury. Accordingly, the objection is waived. Rule 272, T.R.C.P.; Missouri Pacific Railroad Company v. Cross, 501 S.W.2d 868 (Tex.Sup.1978). Appellants’ points 5 and 6 are overruled.

Appellants’ point 7 contends that the trial court erred in failing to grant appellants’ motion for new trial on the basis of newly discovered evidence. We need not consider this point, though, in that appellants’ motion, which was accompanied with two affidavits explaining the newly discovered evidence, was not presented to the trial court and no hearing was held on the motion. Fergus v. Fergus, 547 S.W.2d 51 (Tex.Civ.App.—Eastland 1977, no writ). Appellants waived any relief they sought based upon newly discovered evidence by failing to request a hearing. Compare Innes v. Greiner, 449 S.W.2d 83 (Tex.Civ.App.—Amarillo 1969, no writ); Senn v. Strange, 366 S.W.2d 612 (Tex.Civ.App.—Amarillo 1963, no writ).

Appellant contends, on the other hand, that Moore v. Maudlin, 428 S.W.2d 808 (Tex.Sup.1968), holds that a motion for new trial based upon newly discovered evidence need not be presented in order for the point to be preserved for appeal. We disagree. The motion for new trial considered in Moore did not deal with new trial points which necessitated the introduction of further proof and the determination of certain fact issues not dealt with in the main cause. Thus, we find that Moore does not control here. Appellants’ point 7 is overruled.

Appellants’ points 8, 9 and 10 assert that there is no evidence to support the jury’s award of $20,000 for future medical expenses, that the $20,000 award was excessive, that the court should have granted a request to reduce the recovery for future medical expenses by fifty percent because of the mother’s negligence and that the jury’s answers to all the damage issues are so excessive as to show bias and prejudice.

Concerning future medical expenses, Dr. Smith testified that a “conservative figure would be $10,000 in future medical.” He gave no other estimate of future medical expenses. Dr. McPherson stated later in the trial that Lea would need more periodic examinations, and that she had Lea set up for an appointment for six months and a year, but no figures were given for the cost of a visit and how regular the visits should be for the remainder of Lea’s life. In response to this evidence, the jury awarded $20,000 future medical. We agree with the appellants that this amount is not justified by the evidence. The plaintiff has not shown a reasonable probability that such amount of expenses will be necessary in the future. Powell v. Underbrink, 499 S.W.2d 206, 211 (Tex.Civ.App.—San Antonio 1973, no writ). Dr. Smith’s estimate was tantamount to stating that the future medical will be $10,000 and possibly more, but how much more is not known. No recovery can be allowed based upon pure speculation. Compare Union Oil Co. of California v. Richard, 536 S.W.2d 955 (Tex.Civ.App.—Beaumont 1975, no writ). The judgment is excessive by $10,000. Appellants’ point 9 is sustained to this extent.

About the contention that appellants are entitled to a fifty percent reduction in future medical expenses because Mrs. Law was found to be fifty percent negligent by the jury, we disagree.

It is well settled law that because the parent is primarily liable for a minor’s medical expenses incurred during minority any cause of action for medical expenses incurred up to the age of 18 belongs to such parent. Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795 (1954); Walsh v. Hurshey, 472 S.W.2d 954 (Tex.Civ.App.—Fort Worth 1971, writ ref’d n.r.e.). In this connection, in a suit like the one before us the plaintiff child (age 6 years) and mother have the burden to request submission of the future medical issue in two separate parts; i. e., 1) future medical for Lea between the time of trial and the time she becomes 18, and 2) the future medical expense for her after she becomes 18. But in this case only one issue as to future medical expenses was submitted, and the issue made no provision for allocating the expenses to the two different time periods. The evidence does not establish as a matter of law when Lea will incur her future medical expenses. Thus, the most that can be said is that the evidence creates a jury issue. After the verdict, appellants requested that the future medical be reduced by the fifty percent negligence of Mrs. Law, thereby assuming that the evidence showed that all of the future medical would be incurred prior to Lea’s reaching the age of 18. No written findings on such omitted issues were requested, though. Thus, we must deem the issues were found by the court in such manner as to support the judgment. Rule 279, T.R.C.P. The court did not reduce the future medical expenses by fifty percent so we must assume the court found that they will be incurred after Lea Law becomes 18. Therefore, appellants’ contention as to the fifty percent reduction is overruled.

Next, appellants contend that all the jury answers can be deemed excessive because the jury’s answer to the future medical issue was excessive. We cannot draw this conclusion based upon one excessive jury award. In determining whether a verdict is excessive, the court must review only the evidence favorable to the verdict and the jury’s determination will not be disturbed as excessive where there is any evidence to sustain it. Thus all the evidence must be considered and not just one award. See Southern Pac. Transp. Co. v. Peralez, 546 S.W.2d 88 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.). In looking at all the evidence we find the awards are not so excessive as to show bias and prejudice. Appellants’ points 8 and 10 are overruled.

Appellants’ point 11 contends that the trial court erred in excluding defendants’ exhibits 3, 4, 5, 6 and 7 which documents would have impeached Mrs. Law’s veracity and would have tended to establish that Lea was a neglected and abused child. Exhibits 3,4, 5, 6 and 7 were the pleadings in a suit brought in March of 1977 by Lea’s natural mother to regain custody of Lea.

The evidence indicates that at a deposition prior to the trial herein, Mrs. Law denied that anyone had ever brought a lawsuit against her other than for divorce. In contradiction to this answer, at trial the defendants sought to introduce the above exhibits. The trial court refused to admit the pleadings in the prior suit. We find no error in this action in that the issue of rightful custody is irrelevant to the issues herein. Appellants’ efforts constituted attempted impeachment on collateral issues. 1 McCormick & Ray, Texas Evidence § 690 (2d ed. 1956). Furthermore, any possible error was harmless in that Mrs. Law admitted at trial her prior untruth concerning the natural mother’s attempted custody suit. Rule 434, T.R.C.P.

Appellants also contend the pleadings should have been admitted to show child abuse. They point to the language of a temporary restraining order directing Mrs. Law to refrain from “molesting or disturbing the child.” This was a statement made by a court in an unrelated matter involving different parties, different facts and different subject matter. It was not admissible to prove child abuse and was merely hearsay. See Colonial Life & Acc. Ins. Co. v. Squyres, 550 S.W.2d 413 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.). Appellants’ point 11 is overruled.

Appellants’ point 12 sets out that the court erred in admitting the deposition testimony of Mrs. Law stated in response to questions concerning Lea’s remarks shortly following the January 29, 1976 accident. The testimony complained of is as follows:

“Q What injuries was your daughter complaining of?
A Her head and her eye.
Q Did she complain of her eye right away.
A No. She stated—at that time she told me she hit her head, her head hit the window, and she had a slight headache, and she hit her eye on the door, but—
Q Was she complaining of her eye at that time?
A No, just—not at that time.
Q What was she complaining of right after the accident, to you?
A That she had a small headache.
Q Anything else?
A No.” (Emphasis supplied).

The above colloquy shows that while Lea did not complain about her eye after the accident that she did tell her mother that she hit her eye on the door. This declaration is admissible under the res gestae exception in connection with the proven fact that Lea was in the back of the Law auto at the time of the accident and was forcefully thrown about in the rear of the car. See Hartford Accident and Indemnity Company v. Hale, 400 S.W.2d 310 (Tex.Sup.1966). Appellants also complain that the statements were self-serving and not admissible. The question of admissibility is one for the discretion of the trial judge, and his decision will not be reversed except upon a showing of abuse of that discretion. Gilmer v. Griffin, 265 S.W.2d 252 (Tex.Civ. App.—San Antonio 1954, writ ref’d n.r.e.). While a trial court should exercise caution in admitting such statements, we find no abuse of discretion in admitting the above testimony. Appellants’ point 12 is overruled.

Appellants’ point 13 submits that the trial court erred in admitting the testimony of Trooper Taylor, the officer who investigated the January 29, 1976, accident. Appellants complain that Trooper Taylor was allowed to state his conclusion that because Mrs. Law’s turn indicator was pushed down that she was signaling a left turn prior to the accident.

Appellants’ reason for this complaint is that Trooper Taylor was never qualified as an accident reconstruction expert and thus could not give an expert opinion on whether Mrs. Law’s left turn signal had been actuated prior to the accident. We find no harmful error. Trooper Taylor did not attempt to give his opinion as to the cause of the accident based upon the physical evidence at the scene. Compare Clark v. Cotten, 573 S.W.2d 886 (Tex.Civ.App.—Beaumont 1978, no writ). He merely stated that he believed that Mrs. Law was giving a signal based upon the position in which he found the turn signal indicator after the accident. Furthermore, Trooper Taylor’s testimony was cumulative of other testimony which showed that Mrs. Law indicated a left turn. Mrs. Law testified that she indicated a left turn prior to the accident. Appellants’ point 13 is overruled.

Appellants maintain in their point 14 that the trial court erred in rendering judgment against Lilly Ice Cream Company for any amount because there is neither pleading nor proof upon which to base such judgment. We need not consider the merits of this contention in that appellant Lilly Ice Cream Company failed to receive a trial court determination as to the absence of pleading and proof to support the judgment. These questions cannot be raised for the first time on appeal. Westinghouse Credit Corporation v. Kownslar, 496 S.W.2d 531 (Tex.Sup.1973); Fulcher v. Texas State Bd. of Public Ace., 571 S.W.2d 366, 368 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n.r.e.). Appellants’ point 14 is overruled.

Appellants generally argue under their points 15 through 30 that the trial court improperly allowed the testifying economist, John Wilson, to answer hypo-theticals based upon facts not in evidence. We disagree. Appellants complain that the hypotheticals used to estimate Lea’s loss of future earning capacity assumed facts not in evidence; i. e., that she would have a “glass eye”, “an eye that is fixed as opposed to the other eye” and “something that is noticable to the public that could be seen from a distance of fifteen feet.” We hold the evidence does tend to prove these facts.

Appellant further complains that Mr. Wilson’s “guesstimate” that Lea’s earning capacity would be reduced by between twenty-five percent and fifty percent was merely conjecture and thus not admissible.

Damages for loss of future earning capacity is always uncertain and they must be proved with the degree of certainty of which they are susceptible. McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943). Where the plaintiff is a child, as in the case before us, who has never earned any money, nor shown any particular abilities or aptitudes, the jury must determine the value of the child’s lost earning capacity based upon their common knowledge and their sense of justice. English v. Hegi, 337 S.W.2d 860 (Tex.Civ.App.—Amarillo 1960, no writ). As a result, any expert’s opinion as to loss of earning capacity for a six year old child will be a rough estimate at best, and probably an educated guess. In the instant case, Mr. Wilson manifested the inherent uncertainty involved in estimating the loss of future earning capacity of Lea by explaining to the jury that his answer was a “guesstimate.” In explaining why his statements were a “guesstimate”, Mr. Wilson said that the types of jobs available in 1989, when Lea would be entering the work force, could be so drastically changed that it would be very difficult to estimate what her loss of capacity to work would be. He then stated that her capacity to work and gain promotions could be reduced by twenty-five to fifty percent.

Under these circumstances we hold that the court did not err in admitting the testimony of Mr. Wilson and that the word “guesstimate” before his opinion went to the weight of his testimony rather than to its admissibility. In addition, any possible error in admitting his testimony was diminished by the jury’s conservative award of $30,000 for loss of future earning capacity. This amount represented less than 7.5 percent loss of future earning capacity based upon projected minimum wage levels. Thus, it is quite probable that the jury disregarded Mr. Wilson’s opinion, and based their answers on their own common knowledge and sense of justice. Thus, any error was harmless. Rule 434, T.R.C.P. Appellants also complain of a comment by the court acknowledging that Mr. Wilson was an expert witness. We find no harmful error in this in that at the time the judge was explaining Mr. Wilson’s function to the jury and then instructing Mr. Wilson to be as clear as possible in making estimates of loss of future earning capacity. The above contentions about Mr. Wilson are overruled.

Appellants’ points 15 through 30 also complain that the jury’s answers to issue 1(a), finding improper lookout by defendant Roth and proximate cause; issue 3, apportioning fifty percent of the negligence to Mrs. Law and fifty percent of the negligence to Mr. Roth; issue 4, finding various damages for Mrs. Law’s injuries; and issue 5, finding various damages for Lea, are supported by “no evidence”, “insufficient evidence” and that the answers are “against the great weight and preponder-anee of the evidence.” After thoroughly reviewing the record we hold the evidence both legally and factually sufficient to support the judgment. Appellants’ points 15 through 30 are overruled.

We find no merit in appellees’ crosspoint asserting appellants’ appeal was brought solely for delay. It is overruled.

In accordance with our sustaining of appellants’ point 9 about the excessiveness of the future medical expenses relative to the minor child, we order that a remittitur of $10,000.00 be filed in this Court by the appellees within ten days from the announcement of this decision, whereupon this Court will reform the judgment of the trial court by the amount of the remittitur; otherwise, the judgment of the trial court will be reversed and the cause remanded for a new trial.

The judgment of the trial court is affirmed on condition of remittitur.’

SUPPLEMENTAL OPINION ON THE FILING OF REMITTITUR

This Court has suggested that appellees remit the sum of $10,000.00 as set forth in the original opinion. The appellees, through their attorneys have filed a remit-titur in the amount suggested by this Court.

Therefore, in accordance with the opinion of this Court heretofore announced, the judgment of the trial court is reformed to the extent of the amount hereby remitted by the appellees so that the amount of judgment against the appellants is reduced to the sum of $191,415.00.

The judgment of the trial court as herein reformed is hereby affirmed.


source: Caselaw Access Project

author: CRITZ, Judge. CURETON, Chief Justice.

license: Public Domain

text:
    GLENS FALLS INS. CO. et al. v. BENDY et al.
    No. 1633—6049.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.
    Gill, Jones & Tyler, of Houston, for plaintiffs in error.
    A. D. Lipscomb, A. Ludlow Calhoun,. D. C. Marcus, B. F. Pye, Howth, Adams & Hart, and Elton Cruse, all of Beaumont, for defendants in error.
   CRITZ, Judge.

The opinion, in this case, of the Court of Civil Appeals is reported at 39 S.W.(2d) 628. We refer to that opinion for a full statement.

It seems from the record before us that C. C. Bendy & Sons carried fire insurance to the extent of $3,000 on one hollow tile building, and $7,500 on certain machinery, equipment, and personal property located in such building. The insurance was carried by Glens Falls Insurance Company, New Jersey Insurance Company, and Norwich Union Fire Insurance Company. The property was destroyed by fire, and, on the refusal of the three insurance companies to pay the loss, separate suits were filed against each of them. The three suits were very properly consolidated and tried as one suit, and this appeal is from the consolidated suit. We make no statement of the pleadings, but it is sufficient to say that they are comprehensive enough to raise the issues here discussed.

The three insurance companies denied liability. on the policies on the ground that a certain provision thereof had been violated. The pertinent portion of such provision reads as follows: “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if ⅜ ⅛ ⅜ before a fire occurs the insured shall obtain or receive information that foreclosure proceedings have been commenced or that notice has been given or posted of sale of any property covered by this policy by virtue of any mortgage'or trust deed.”

The insurance companies pleaded facts which showed as a matter of law that the foregoing provision of the three policies here sued on had been breached prior to the fire in such a manner as to void them. Also the undisputed facts sustain such defense, unless it has been waived by the insurance companies by circumstances which we shall later discuss and decide.

The record shows that the policies here sued on were issued to Bendy & Sons on August 17, 1928. Each contained .the provision above quoted. On August 24, 1928, Stead-man Fruit Company, who is an intervener in this suit, instituted a suit in the district court of Jefferson county, Tex., against Bendy & Sons, the insured, for $2,500, and for foreclosure of a chattel mortgage on certain of the personal property covered by the policies in suit. Citation was duly issued and served. On October 12, 1928, after the suit by the fruit company had been filed and citation issued and served, the property burned.

On October 13, 1928, R. E. Smith & Sons, local agents for the three insurance companies, being also the agents who had issued the policies, were notified of the loss, and about the same time received notice of the suit that had been filed by the fruit company against Bendy & Sons.

The record then shows that the total amount of the premiums of the three policies in suit yras $198.50. Of this amount $184.79 remained unpaid at the time of the fire. The dates we have given demonstrate that a large part of these unpaid premiums were unearned. After the fire and with full information of the foregoing facts, R. E. Smith & Co. demanded of Bendy & Sons the payment of the balance due as premiums on the above policies. This demand covered both earned and unearned premiums. Bendy & Sons promptly complied with this request and paid such money to the agents. This payment was made on October 16, 1928, just four days after the fire.

We conclude as a matter of fact, as well as of law, in favor of the judgment of the trial court, which was against the insurance companies, that the companies themselves received the above premiums so paid to their agents after the fire and retained the money for more than four months after they were fully apprised of the facts above stated. This conclusion is based upon the following undisputed facts: The fire occurred on October 12, 1928; the local agents were notified on October 13, 1928. They immediately demanded payment of the balance due on the premiums; the insured complied with such demand on October 16, 1928; the insurance companies refused payment of the policies very shortly after the happening of the above events; and when they filed their answers in the district court on February 28, 1929, the three insurance companies tendered back the premiums paid with interest.

The record shows that'the insurance companies themselves had full notice of the breach of the policies urged as a defense herein very shortly after the fire. With full notice of these facts they themselves received the premiums collected by their agents and retained them until the time above stated. We conclude as a matter of law that the insurance companies received the premiums from their agents, because in their answers they simply tender into court the premiums so paid, with legal interest from the date of payment. This certainly amounted to an acknowledgment that they had received such premiums. Also- the insurance companies made no effort whatever to show that they had not received and retained the premiums paid to their agents after the fire. Such a record certainly justifies the conclusion that the insurance companies received the premiums paid to their agents and retained the same for more than four months .after they had full knowledge of the breach of the clause in the policies relied on as a defense to this suit.

The above-quoted clause in the three policies of insurance here sued on voiding such policies in the event of the happening of the thing therein mentioned was and is a valid fire insurance contract provision. However, it is certainly a provision that can be waived by the insurer.

It is our opinion that the collection of the past-due and unearned premiums after the fire, and their retention by the insurance companies themselves for more than four months after they knew of such fire and after they knew of the foreclosure proceedings above mentioned, constituted in fact as well as in law a waiver of the breach pleaded by them as a defense herein. 14 R. C. L. p. 1192, paragraph 368.

The conclusion we have reached on the matter above discussed makes it unnecessary for us to decide the question as to whether the local agents themselves can bind the insurance companies to a waiver after the fire where the act of the local agent is not ratified by the principal.

We recommend the judgment of the Court of Civil Appeals, which affirms the judgment of the district court, be affirmed.

CURETON, Chief Justice.

Judgments of the district court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals.


text:
    SHAW v. RYAN et al.
    No. 1676—6068.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.
    L. H. Brittain, of Port Woiffh, and Marshall & King, of Graham, for plaintiff in error.
    E. G. Thornton, of Olney, and S. A. Penix, of Graham, for defendants in error.
   CRITZ, Judge.

Rex Ryan and H. R. Stastny sued T. G. Shaw and H. L. Singleton in the district court of Young county, Tex., seeking to recover an oil and gas mineral assignment or lease covering SO acres of land in such county. In the alternative, Ryan and Stastny sought recovery for the reasonable value of geological services alleged to have been rendered by them to Shaw and Singleton in the sum of $10,000. During the trial Ryan and Stastny abandoned the first count in their petition for recovery of the 80-acre lease, and the case was submitted to a jury on the second count; that is, the count for a money judgment. The jury answered the issues.submitted to them, and the trial court entered a judgment for Ryan and Stastny against T. G. Stíaw for $800, but denied any recovery against H. L. Singleton. On appeal by Shaw, this judgment was affirmed by the Court of Civil Appeals at Port Worth. 41 S.W.(2d) 329. Judge Buck dissented. Sljaw brings error.

It is shown by the record that Ryan, and Stastny did certain geological work for Shaw looking to the discovery of favorable loea-tions for drilling a well for oil and gas in Young county, Tex. After the completion of the work, Ryan and Stastny entered into the following contract with Shaw:

“Ryan & Stastny, Consulting Geologists, “Graham, Texas.
“February 11, 1928.
“Memorandum Agreement.
“This is to confirm a verbal agreement between T. G. Shaw, party of the first part and Rex Ryan and H. R. Stastny, parties of the second part.
“In consideration of geological services rendered by second party in the area of Henry’s Chapel in southeastern Young County, Texas, first party agrees to pay second party two hundred ($200.00) dollars as a cash consideration and deliver an oil and gas lease assignment to an eighty acre tract of land, said eighty acres to be located within one-half mile of a well to be drilled or caused to be drilled by first party.
“In event this well is never drilled it is understood that the lease assignment will not be binding.”

The above contract was duly signed by the parties, Ryan and Stastny signing in person, and Shaw’s name was signed, by his agent, H. L. Singleton.

The jury found that the well referred to in the contract was never drilled. The undisputed facts also show this. It is also undisputed that the 80-acre lease was never transferred by Shaw to Ryan and Singleton. Ryan and Singleton contend that they are entitled to recover the reasonable value of the services rendered by them to Shaw. They were sustained in this contention by the trial court and Court of Civil Appeals; Judge Buck dissenting as above stated. We agree with the dissenting opinion.

A reading of the above contract demonstrates, as a matter of law, that it was entered into as a complete settlement between the parties for the geological services mentioned therein. It is undisputed that the geological services mentioned .in the contract are the same services involved in this suit. No issue of fraud or bad faith is involved. The contract, by its express terms, shows that Ryan and Stastny were to receive $200 as compensation for the services mentioned in the contract, and, in addition thereto, they were to receive an 80-acre lease within one-half mile of a well to be drilled by Shaw. The contract then in no uncertain terms provides that, if the well is not drilled, the lease assignment is not binding. Clearly, the legal effect of the contract is to- make the $200 full payment for the services, unless a certain well is drilled; in which event Shaw is obligated to deliver the lease. The well was never drilled; therefore the $200 is all that Shaw is required to pay under the contract. This is undoubtedly its effect and meaning. The legal effect of a contract is a question of law. It is undisputed that the $200 has been paid to, and received by, Ryan and Stastny.

We recommend that the judgments of the district court and Court of Civil Appeals be both reversed, and judgment here rendered for T. G. Shaw.

CURETON, Chief Justice.

The judgments of the district court and of the Court of Civil Appeals are reversed, and judgment rendered for plaintiff in error, as recommended by the Commission of Appeals.


author: HARVEY, Presiding Judge. CURETON, Chief Justice.

text:
    WALKER v. QUANAH, A. & P. RY. CO.
    No. 1632—6047.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.
    Killough & Dotson, of Vernon, for plaintiff in error.
    C. Y. Welch, of Quanah, and G. E. Hamilton, of Matador, for-defendant in error.
   HARVEY, Presiding Judge.

H. J. Walker sued the Quanah, Acme & Pacific Railway Company for damages in the sum of $25,000 on account of personal injuries alleged to have been received by the plaintiff in a crossing collision. Various acts of negligence were charged against the railway company. The company defended on the ground of contributory negligence, among other grounds of defense. The case was tried to a jury on special issues. In answer to the first sixteen special issues, the jury' found that the railway company was negligent in the various respects inquired about, and that such negligence was the proximate cause of the plaintiff’s injuries. In answer to special issue 17, the jury found the amount of the plaintiff’s damages to be $3,000. To special issue No. 18 the jury answered “No,” which had the effect of finding that the plaintiff did not use ordinary care, on the occasion in question, in certain respects inquired about, and therefore was guilty of contributory negligence. The verdict containing the above findings was received by the trial court, and judgment for the railway company was entered, based on the finding of contributory negligence under special issue 18. In due time the plaintiff filed and presented his motion for new trial, setting up as ground therefor the misconduct of the jury in respects hereinafter shown. The motion for new trial was overruled. The ease was appealed to the Court of Civil Appeals, and that court affirmed the judgment of the trial court.

At the hearing of the motion for new trial, a number of the jurors in the ease were called to testify concerning the alleged acts of misconduct. It appeared from the testimony, without material conflict, that, after the jury had agreed upon their answers to the first seventeen special issues, and while they, were considering their answer to special issue 18, the question was raised by some of the jurors as to whether or not a negative answer to said special issue would defeat a recovery by the plaintiff of the $3,000 damages already found by the jury. After some discussion among the jurors of the question ' thus raised, at least one of the jurors stated, in effect, that a negative answer to said special issue would not prevent the plaintiff from recovering the $3,000 damages, and thereupon all the jurors agreed to answer said special issue “No,” as they did. It might be well to say further that one or more of the 'jurors, during the discussion of the above question, expressed the opinion that a negative answer to said special issue would, defeat the plaintiff’s case entirely. The trial court filed his conclusions of fact in which the following fact findings were made, there being testimony to support such findings:

“I find that the jurors answered the first sixteen (16) special issues presented to them in the court’s charge, the first day after the case was submitted to them, and that they adjourned for the night, and upon returning the next morning they requested that the testimony of the plaintiff be reproduced and upon agreement of counsel the same was read from the court reporter’s shorthand notes; that they then returned to the jury room, and after a reasonably short time they returned with all of the questions answered, as shown by the main charge submitted to the jury in this cause.
“I find that in the evening of the first day of the jury’s deliberations they took a vote on the 18th special issue in the court’s charge pertaining to the contributory negligence of the plaintiff, and the jury stood ten (10) in favor of voting ‘yes’ to said special issue, which would have meant that the plaintiff was not guilty of contributory negligence, and two (2) voted that said special issue should be answered ‘no’; that upon returning to the jury room the next day, after having had the testimony of the plaintiff read to them, they took another vote on said question, and the jury stood six (6) to six (6). That thereupon some considerable discussion arose as to the effect the answer to said special issue would have on the ultimate result of the suit, and it was remarked by some one of the jurors that it would not make any material difference, that the plaintiff would get three thousand ($3,000.00) Dollars anyway, regardless of how special issue No. 18 should be answered, and practically immediately thereafter the jury arrived at a verdict answering special issue ‘no.’ ”

It thus appears from the fact findings of the trial court that the acts of misconduct of which the plaintiff complains actually occurred. To say the least, there arises a reasonable doubt as to whether or not such misconduct affected the verdict in a material way. Indeed, it could be safely said, from the facts stated, without taking into consideration the testimony of jurors regarding their mental operations, that it appears with a reasonable degree of certainty that the misconduct did affect the jury’s verdict in material respects. The well-established rule is stated by Judge Critz in Bradshaw v. Abrams (Tex. Com. App.) 24 S.W.(2d) 372, 374, in these words: “It is certainly the settled law of this state that if, upon a consideration of the whole of the pertinent record bearing on the issue of misconduct, it is reasonably doubtful to the Supreme Court whether the misconduct affected the verdict in a material way, the verdict will be set aside and a new trial granted. {Citing authorities.] On the other hand, it is also the law that, where there is a disputed issue of fact as to whether the misconduct actually occurred, such issue is for the trial court, and his findings on a dis- ' puted issue of fact should not be disturbed by an appellate court, where such findings are supported by the record, even though disputed by other portions of the record.”

We recommend that the judgment of the trial court, and that of the Court of Civil Appeals affirming same, be reversed, and that the cause be remanded.

CURETON, Chief Justice.

Judgments of the district court and Court of Civil Appeals are reversed, and cause remanded to the district court.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: HARVEY, Presiding Judge. OURETON, Chief Justice.

text:
    PROSPER INDEPENDENT SCHOOL DIST. et al. v. COUNTY SCHOOL TRUSTEES et al.
    No. 1625—6341.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.
    W. C. Dowdy and'A. M. Wolford, both of McKinney, for plaintiffs in error.
    W. R. Abernathy and W. P. Abernathy, both of McKinney, for defendants in error.
   HARVEY, Presiding Judge.

This suit is in the nature of a quo war-ranto proceeding brought by the state of Texas on the relation of the Prosper independent school district against the Celina independent school district and the county-board of trustees of Collin county to cancel an order entered by said county board detaching 1,159 acres of land from the Prosper district and annexing same to the Celina district. A general demurrer to the plaintiffs’ petition was sustained hy the trial court, and, the plaintiffs declining to amend, judgment of dismissal was entered. The Court of Civil Appeals has affirmed that judgment.

It is unnecessary to state here the allegations of the plaintiffs’ petition. It suffices to say that same show a cause of action if the Act of the 41st legislature, Eirst Called Session, chapter 47 (Vernon's Ann. Civ. St. art. 2742f, §§ 1, 2), is invalid for any reason assigned in the briefs of counsel for the Prosper district. Section 1 of said act (Vernon’s Ann. Civ. St. art. 2742f, § 1) provides as follows: “In each county of this State the County Board of Trustees shall have the authority, when duly petitioned as herein provided, to detach from and annex to any school district territory contiguous to the common boundary line of the two districts ; provided the Board of Trustees of the district to which the annexation is to be made approves, by majority vote, the proposed transfer of territory and provided, further, that where the territory to be detached exceeds ten per cent (10%) of the entire district the petition must be signed by a majority of the trustees of said district in addition to a majority of the qualified voters of the territory to be detached. The petition shall give the metes and bounds of the territory to be detached from the one and added to the other district and must be signed by a majority of the qualified voters residing in the said territory so detached. Upon receipt of the said petition, duly signed, and upon notice of the approval of the proposed annexation by the Board of Trustees of the district to which the territory is to be added, the County Board of Trustees shall pass an order transferring the said territory and redefining the boundaries of the districts affected by said transfer, the said order to be recorded in the Minutes of the County Board of Trustees. Provided that no school district shall be reduced to an area of less than nine square miles.”

Section 2 (Vernon’s Ann. Civ. St. art. 2742f, § 2) provides that sections 10, 11, and 12 of the Act of the 40th Legislature, Eirst Called Session, chapter 84 (Vernon’s Ann. Civ. St. art. 2742b, §§ 10-12), shall be followed in adjusting outstanding indebtedness affected by the changes in boundaries of school districts, and section 3 repeals all laws in conflict with the act.

The validity of the act is assailed on various grounds. One of those grounds has reference to the omission to provide for notice to and hearing of the trustees of the district from which territory is proposed to be detached. The contention in this respect is to the effect that the absence of such a provision renders the act invalid under the due process clause of the Constitution (article 1, § 19). This contention necessarily presupposes that a school district, in its corporate capacity, has a vested right in respect of the territorial boundaries of the district as originally established. For, if there be no such vested right in the corporation, with respect to the territorial extent of the district, the due process clause, of course, would have no application. That no such vested right exists is hardly debatable; for a school district is, at last, but a subdivision of the state for governmental purposes. The transfer of jurisdiction, which is involved in a transfer of a part of the territory of one district to another district, is clearly within the power of the Legislature. The state Constitution specifically authorizes the Legislature to “provide for the formation of school districts by general or special law.” Article 7, § 3. With this provision present in the Constitution, the contention under consideration can find no solid ground upon which to rest. Indeed, it is extremely doubtful that the contention could be maintained if the above provision did not appear in the Constitution. There can be no doubt, however, that, except whore some right having its foundation in the Constitution will be impaired by the change, the Legislature, by virtue of the above constitutional provision, has authority to change, at will, the territorial boundaries of any school district, and to provide the mode and agencies by which such change shall be effected. Lyford Ind. School District v. Willamar Ind. School District (Tex. Com. App.) 34 S.W.(2d) 854; El Dorado Ind. School Dist. v. Tisdale (Tex. Com. App.) 3 S.W.(2d) 420; State v. Brownson, 94 Tex. 436, 61 S. W. 114; McPhail v. Tax Collector (Tex. Civ. App.) 280 S. W. 260 (writ refused); Terrell v. Clifton Ind. School District (Tex. Civ. App.) 5 S.W.(2d) 808 (writ refused).

The several other contentions of the plaintiffs in error were properly overruled by the Court of Civil Appeals, for the reasons stated by that court.

We recommend that the judgment of the trial court, and that of the Court of Civil Appeals affirming same, be affirmed.

OURETON, Chief Justice.

Judgments of the district court and Court of Civil Appeals are affirmed.


author: SHORT, Presiding Judge. CURETON, Chief Justice.

text:
    PURE OIL CO. et al. v. SWINDALL et ux.
    No. 1378—6010.
    Commission of Appeals of Texas, Section B.
    March 15, 1933.
    Wynne & Wynne, of Wills Point, Vinson, Elkins, Sweeton & Weems, C. A. Sweeton, and Tom Fletcher, all of Houston, and R. G. Storey, of Dallas, for plaintiffs in error.
    Coker, Wilson, Rhea & Neel and Marion S. Church, all of Dallas, for defendants in error.
    Thompson, Mitchell, Thompson & Young, Truman Post Young, and P. G. McElwee, all of St. Louis, Mo., amici curiae.
   SHORT, Presiding Judge.

There are two applications for the writ of error granted in this case, one by the Pure Oil Company and its assignors, and the other , by R. L. Wells, one of the original defendants. The application of the Pure Oil Company and its assignors was granted on the second assignment of error in its application, which is to the effect that the Court of Civil Appeals erred in its opinion in holding that the doctrine of innocent purchaser for value would not be applicable to the Pure Oil Company, and to the other plaintiffs in error, in the application, as a defense to the suit brought by G. W. Swindall and wife, which had for its purposes the cancellation of a deed executed by G. W. Swindall, February 22, 1924, conveying an acre of land to the school authorities of Van Zandt school community in Van Zandt county by reason of fraud and deception in procuring the execution and dev livery of such deed, and also the cancellation of the deed' executed by the school authorities February 21, 1924, conveying the land to R. L. Wells, as well as the cancellation of certain oil leases and easements granted by Wells, and all royalty contracts, titles, and interests claimed by defendants, derived from and under the said deed from Swindall to the school authorities, and to remove said instruments as clouds upon plaintiff’s title, and also to recover the title to and possession of the land. The parties who are made defendants were the Van Zandt School District No. 53, and its trustees and R. U. Wells, the Pure Oil Company, and its assignors, all of whom filed answers, which contained, among other things, as defenses, general denials, pleas of not guilty, estoppel, innocent purchaser, and the limitation statutes of S, 4, 5, and 10 years. The ease was tried to a jury, and, at the conclusion of the evidence, the court directed a verdict for defendants. Upon appeal to the Oourt of Civil Appeals at Dallas, the judgment of the district court of Van Zandt county was reversed, and the case was remanded on the ground, among other things, that there was testimony raising the issue to be decided by the jury of fraud and misrepresentation inducing the execution of the deed of February 22, 1924, and therefore the trial court had no authority to instruct the jury to return a verdict for the defendants. (Tex. Civ. App.) 37 S.W.(2d) 1094, 1097.

The defendants in error make the following statement of the case:

“The Court of Civil Appeals reversed and remanded the case for a determination of certain issues of fact arising on the face of the record by virtue of the testimony that showed that defendants in error acquired good title to the property in controversy from James F. Starr (agreed common source of title) in 1S80, and shortly thereafter defendants in error agreed to convey, and did convey, the property in controversy to the trustees of the school district, to have and to hold so long as used for school purposes, and if' and when said school ceased to use said 'property for school purposes the same would revert to defendants in error, and their heirs. The consideration for this deed was three dollars, fifty cents of which amount was contributed by defendants in error. This deed was lost, and never filed for record.
“After the execution of the first deed, a Mr. Bacon, superintendent of the school, and who was then rooming with defendants in error, requested them to execute another deed to the property, explaining that the first deed was to the trustees of the school community, whereas it should ^have been to the county judge, and defendants in error agreed to execute, and did execute, a second deed, and the only difference in the first and second deeds was that the second deed was made to the county judge, whereas the first was made to school trustees. This deed was delivered to Bacon. It was likewise lost, and never filed for record.
“On February 22,1924, Mr. Horace Cook, a notary public, at the instance of the school trustees and P. E. Neill, one of the trustees of the school, through fraud and misrepresentation, obtained from the defendants in error a deed covering the property made to the county judge, and his successors in office, for the benefit of the school district, the deed having been prepared by the school trustees, and having been presented and represented to the defendants in error as being in all respects the same as the second deed. Defendants in error knew the school trustees, and relying implicitly upon their statements as to the contents of the deed, the terms and provisions of the deed were wholly different and contrary to the terms and provisions of the lost deed. There was no consideration whatsoever paid for the execution of this deed. Defendants in error were old, infirm, uneducated and unable to read or write even their own names. The deed was not read to them. The deed provides: ‘This deed is made in lieu of a deed heretofore executed by me to the above described property, the former deed being lost or misplaced, and not being of record, and this conveyance is to have all the force and effect as original deed.’ The 1924 deed was filed for record June 9, 1927.
“On February 21, 1924, the day before the execution of the deed last above mentioned, two of the trustees of the school community, then called the Van School District, executed and delivered a purported deed of conveyance of said lot to plaintiff in error R. D. Wells. This deed was not authorized by resolution of the board of trustees of the school district or the county school hoard of Van Zandt County. Plaintiff in error, Wells, subsequently executed, an oil and gas lease to the plaintiff in error, The Pure Oil Company, and likewise conveyed certain royalty interest in the land to the other plaintiffs in error. Plaintiff in error, Wells, as witness for himself, upon the trial of the case, admitted that he was not a bona fide innocent purchaser for value without notice. He testified: T acted and relied upon my own judgment to a certain extent. I did not go to the records and cheek them, neither did anybody acting for me. 1 did not investigate the records. I just taken a chance at what they might have.’ (Referring to title of the two trustees who executed his deed.)
“At the time defendants in error executed the 1924 deed they did not know that the school trustees had sold or intended to sell the property to Wells or anyone else, and did not learn that they attempted to sell to Wells until three or four years after they executed the deed. The school district ceased to use the lot in question for school purposes, and had, before the institution of the suit, per'manently abandoned the lot for school purposes, with the intention never to so use it again for school purposes.
“The trial court peremptorily instructed the jury to return a verdict for plaintiffs in error, and the Oourt of Civil Appeals reversed and remanded the ease, holding, among other things, that: ‘An instrument (referring to the February 22, 1924, deed) executed under circumstances that we believe the evidence tends to show Swindall executed the instrument in question, could not have obtained the status of a contract, because never assented to and being void, would possess no greater value in law tiran a mere forgery.’
“Thus it was concluded by the Honorable Court of Civil Appeals that the plaintiffs in error could not claim protection as innocent purchasers under the void instrument.”

The record discloses that the defendants in error did not plead that the instru-mént, the execution of which was alleged to have been obtained by fraud, was not in fact executed by G. W. Swindall. The record also discloses that no plea of failure of consideration was interposed by G. W. Swindall for the execution and delivery of the instrument alleged to have been procured by fraud. However, as we construe the opinion of the Court of Civil Appeals it apparently assumes that the record, as a whole, shows that the transaction evidenced by the instrument, dated February 22, 1924, had no more legal effect, assuming the theory of the defendants in error to be correct, than it would have had assuming the' instrument to be a forgery. The Court of Civil Appeals, among other things, says in its opinion: “We assume, for the sake of the discussion, that plaintiffs will ultimately succeed in establishing their contention, that is to say, that fraud in fact was practiced on G. W. Swindall that led to the execution of the deed sought to be canceled; now, in such event, could defendants, who derived title under said deed, claim protection as innocent purchasers? We do not think so.” In other words, the Court of Civil Appeals holds, in effect, that “if a person is ignorant of the contents of the written instrument, from inability to read, and signs through mistake and misrepresentation, without negligence on his part, such a contract is generally held void for want of assent.” We think this is a correct statement of the law where the litigation is between the parties to the written instrument, or between parties who have notice that the written instrument was executed under such circumstances, as to render its execution void, or with notice of facts which would put persons of reasonable prudence upon inquiry, which, if pursued with reasonable diligence, would have led to the discovery that the instrument was executed under such circumstances as to render its execution void. Steffian v. Milmo Nat. Bank, 69 Tex. 513, 518, 6 S. W. 823; Stacy v. Boss, 27 Tex. 3, 84 Am. Dec. 604; Link v. Page, 72 Tex. 592, 596, 10 S. W. 699; 6 R. C. L. 625, 626. This being the situation of the transaction, the principle of law involved is to the effect that the grantor of such an instrument never having assented to the contract, but who signs an instrument evidencing said contract through mistake on his part, and fraud on the part of his grantees, the minds of the parties did not meet and no agreement was consummated, and therefore the act of signing is void.

We think the record, without dispute, demonstrates the fact to be that the Court of Civil Appeals was correct in so far as it declared that the judgment of the trial court could not be upheld, but on the contrary should be reversed, and the case remanded for another trial, as to R. L. Wells, and the school authorities of the Yan School District No. 53, for the reasons upon which the Court of Civil Appeals based its conclusion as to these parties. We find sufficient evidence in the record to conclude that an issue was raised by the testimony as to whether the instrument of February 22, 1924, had been procured to be executed by the fraud of the parties mentioned, either directly, or by reason of'the fact that the parties had notice of sufficient facts to put them upon inquiry, as to whether this instrument of February 22, 1924, was a genuine one. The grantees in that instrument in fact paid nothing for its execution and delivery. At the time it was executed the grantees had already executed another instrument, hearing the date of the previous day to R. L. Wells, when, according to the record, neither the trustees, nor the school district had any interest in the property. Had not the defendant in error G. W. Swin-dall executed and delivered the instrument of February 22, 1924, the instrument dated February 21,. 1924, would have been utterly ineffectual to convey any interest in the property. At that date the school authorities had ceased to have any interest in the property, and therefore its representatives would have conveyed none. The parties to the instrument, dated February 21, 1924, must hiave known this, and were visited with the consequences of such knowledge. We think the assignments of error presented in th'e application of R. L. Wells should therefore- be overruled, and that as to R. L. Wells, the opinion of the Court of Civil Appeals should be affirmed on the ground that the trial court was in error in directing the jury to find 'a verdict in his favor, inasmuch as a verdict should not be directed by a trial court, unless the evidence, as a matter of law, will admit of no other conclusion.

The defendants in error contend that the other plaintiffs^ in error are not entitled to the protection of innocent purchasers for the same reason that R. L. Wells, and the school authorities would not be, assuming, of course, that a jury should find the material facts supporting the contention of the defendants in error to be true. That we may discuss the more intelligently this contention, it seems necessary to make a brief résumé of the salient facts shown by the record.

The defendant in error G. W. Swindall became the owner of the one acre of land in volved by purchase from Jas. F. Starr, on September 17, 1880. Some time during that year he made a deed to the trustees of the Van School District in this acre of land to he vised for school purposes and to revert to him and his heirs when it should cease to be so used. This deed was lost and was never XJlaced of record. Some six years thereafter a similar deed was executed and .delivered, differing only in the fact from the first deed, that the second deed was made to the county judge of Van Zandt county and his successors in office. This deed was likewise lost and never recorded. The school district continued to use this acre of land from 1880 to 1915, when it apparently abandoned it for school purposes by building another school house on another location. However, it appears that this acre of land was used by various and sundry societies intermittently, if not consecutively, though the record does ' not disclose by what authority the land was used from the time it was abandoned for school purposes up to the. time Wells acquired the apparent ownership of it by the transactions heretofore stated, on February 22, 1924. The record does not disclose, affirmatively, whether Wells thereafter actually used the land or exercised any visible appropriation of it until June 8, 1927, when Wells executed and delivered to the plaintiff in error- E. Eichenberg a mineral lease on the land. The other plaintiffs in error, who are associated with the Pure Oil Company, all hold under conveyances from Wells some interest in the land involved, by virtue of instruments, the dates of which are subsequent to June 8, 1927. The record does not disclose that any of the persons claiming under R. L; Wells had any actual notice of the transaction, evidenced by the instruments dated, respectively, February 21, 1924, and February 22, 1924, beyond what the instruments themselves disclose. These instruments were withheld from the record by Wells until June 9, 1927, and, of course, were not of record when Wells conveyed the mineral rights to Eichenberg. So the real question as to the defendants in error, except Wells and the school district and its representatives, is whether, under this state of facts, the plaintiff in error Pure Oil Company and the others holding under Wells are entitled to the protection of the law as innocent purchasers, the Court of Civil Appeals having held that they" were not, and the Supreme Court having granted the writ of error, based upon the assignment that the Court of. Civil Appeals had erred in so holding.

From the necessities of the case, there are certain risks which a purchaser of land in Texas must assume. One of these is that; the deeds in the chain of title may be a forgery, or that another than the grantor of identical name to the former grantee in a deed may not be the true person who executed the conveyance. Another is that the grantor was mentally incapable of executing the conveyance. Another is that the grantor was a minor or married woman at the time the conveyance was executed under some circumstances. Another is the rights of parties in possession. Another is that there may not have been a legal delivery of some one or more of the deeds in the chain of title, and probably another is boundary questions. However, none of these exceptions to the general rule appear to be involved in this case. Aside from these well known classes of risks a prospective purchaser of land in Texas is entitled in good faith to rely upon written instruments, apparently genuine, which are fair on their face, and which, apparently, place in the would be seller the legal title to the land.

The doctrine of innocent purchaser grows out of the idea that a court of equity will not grant relief against an innocent party where the plaintiff has placed in the hands of another, the apparent power to cause the said party to act to his detriment, and that where one of two innocent parties is to suffer, then the one who has placed in the hands of another the means by which a wrong is done must be the one to suffer. We assume that the execution and delivery of the instrument, dated February 22, 1924, was procured through fraud. So assuming, such an instrument so executed and delivered, in the absence of notice of the circumstances under which its execution and delivery was procured, apparently was fair on its face, and therefore not void, though subject to be declared so by a court of competent jurisdiction under proper pleadings and due proof. In other words, such an instrument so executed, as between the parties, was voidable, and was not void, even between the parties. Furthermore, until such an instrument has been declared to be void, in an authoritative manner, persons who are-ignorant of the circumstances under which the instrument was executed and delivered are entitled to consider it genuine.

However, it must be borne in mind that in determining whether an instrument is void or voidable, it is essential to consider whether the instrument, if genuine, would accomplish the apparent 'purpose of its execution. Clearly an instrument purporting to be the act of A could not bind A, in the absence of negligence on the part of A, when A’s name had been used without authority as grantor in the instrument. In other words, no person can be an innocent purchaser of lands in Texas where one of its links in its chain of title is a forgery. An instrument defective for some reason which is capable of ratification by acts or declarations, as the acts or declarations of the grantor can never be void, provided, of .course, it is shown that the acts were advisedly done, or the declarations advisedly made, that is with knowledge of the true situation. So in the case at bar, assuming that the execution and delivery of the deed, dated February 22, 1924, was procured by fraud, yet if G. W. Swindall, being mentally capable so as to be responsible for bis acts and declarations, with full knowledge that the fraud had been committed, had ratified his act clearly he would be bound by such ratification. Whereas, if the record should have shown that G. W. Swindall never executed the deed, or if he had executed the deed, that he did not deliver it, anything he may have made or done thereafter with reference to this transaction would not be considered a ratification of his act, evidenced by the deed dated February 22, 1924, because the latter transaction would be void, and not merely voidable. That which is void is incapable of ratification. That which is merely voidable may be ratified under proper circumstances. 1st Devlin on Deeds, § 17.

As we understand the opinion of the Court of Civil Appeals, it holds that the deed of February 22,1924, the execution and delivery of which was procured as it was assumed to have been, through fraud, could not be considered by persons ignorant of the fraud, as the act of G. W. Swindall, but rather as a forgery on account of the perpetration of fraud. In Link v. Page, 72 Tex. 594, 10 S. W. 699, 701, there was a question of forgery involved which was decided by the jury against the person claiming the forgery. There was also a question involved of fraud in the execution and delivery of an instrument. In speaking of this situation the Supreme Court, through Associate Justice Gaines, said: “We do not understand that this made the grantee, who perpetrated the fraud, guilty of forgery; but we do understand that, as hetioeen the parties to the transaction [italics ours], the signing and acknowledgment of the writing did not make a contract of conveyance. The attorney of the grantors never having assented to the contract set forth in the alleged conveyance, signed by him through mistake on his part and fraud on part of his grantee, the minds of the paz-ties did not meet, and no agreement was consummated. * * * A purported conveyance, the execution of which is obtained by any fraudulent device by which the grantor is misled as to the contents, is void.” We understand by this excerpt, and especially by the'last sentence when construed in connection with what had been said previous thereto, to mean that as between the parties, the purported conveyance was void. This construction is borne out by what the court later said in the same opinion. “It is further complained that the court erred in failing and refusing to submit to the jury the question whether the defendants were bona fide purchasers or not.” (This is the identical question involved in the case here.) Proceeding the court said: “This was a question of fact depending for its determination upon oral testimony,, and it was proper to have submitted it. But the facts that defendants received their conveyances, and paid value for the land, without notice either of the fraud of Bushick in obtaining his deed, or of the prior conveyance to Robert N. Martin, are undisputed. Is there any evidence in the case by which the defendants should be held to have been put upon inquiry? We think not. * « ⅝ T]le cieed to Bushick is a warranty deed, and purports to convey not a mere chance of a title, but the lands themselves. Under these circumstances if the court had given the proper instructions, and the jury had found for plaintiffs, it would have been the duty of the court below, upon motion, to set aside the verdict. The judgment for the defendants was the only proper judgment which the evidence warranted.”

In the case at bar there was no testimony indicating that the assignees of R. L. Wells were in possession of any fact which would have put them upon inquiry as to the genuineness of the deed of G. W. Swindall to the school trustees of the Van School District. Had there been any such testimony, it would have been proper for the court to have instructed the jury on this question, and submitted the issue whether these plaintiffs in error were innocent purchasers or not. In the absence of such testimony there was no occasion or necessity for the submission of such issue, inasmuch as there was not a question of fact under the record, whether the assignees of R. L. Wells had any knowledge of the circumstances under which G. W. Swin-dall was induced to execute and deliver the deed of February 22, 1924, which was fair on its face.

The court further said in its opinion, in Link v. Page, supra: “We think, also, where the owner of real property negligently clothes another with the apparent title to it, although the execution of the instrument which purports to convey the title may be obtained by fraud, and third parties being misled thereby innocently purchase and pay value for the property, he should be held estopped to deny the validity of the conveyance. This principle was announced by this court in the case of Steffian v. [Milmo Nat.] Bank, 69 Tex. 513, 6 S. W. 823, in which it is held that one who signs and acknowledges a conveyance, to be delivered only upon conditions, may be es-topped to set up the nondelivery by negligently permitting it to pass into the hands of the grantee.” Eylar v. Eylar, 60 Tex. 315; Pool v. Chase, 46 Tex. 207, 210; Graves v. Kinney, 95 Tex. 210, 66 S. W. 293; Cook v. Moore, 39 Tex. 255; Schneider v. Sellers, 98 Tex. 380, 84 S. W. 417.

As we understand the opinion of the Court of Civil Appeals in this case, it holds that should a jury conclude G. W. Swin-dall was induced to execute and deliver the instrument of February 22, 1924, on account of his faith in the statements of Cook, the notary public, who took his acknowledgment, that the contents of this instrument was identical with the instrument he had previously executed in favor of the county judge, when in truth and in fact it was not, then on account of the perpetration of this fraud, the act of Swindall was a futile one, invalid, void, and without the semblance of genuineness, so much so that persons purchasing under that deed for value, without notice of the fraud perpetrated upon Swindall, could not occupy the position of' innocent .purchasers. We think this particular holding in the opinion is incorrect. Had there been any testimony whatever of a substantial nature 'tending to show that the persons holding under Wells had any notice of the fraud perpetrated upon Swindall, then we think the opinion of the Court of Civil Appeals would be correct, but inasmuch as there is no testimony in the record of this character, the rule laid down by the Court of Civil Appeals would not apply to such purchasers. The only fact which, had it been, accompanied with the actual possession of the property remaining in Swin-dall, appearing in the record, calculated to provoke inquiry was the fact that the deed of February 22, 1924, was not placed of record until June 9, 1927. But we do not think this fact, unaccompanied by the continuation of such possession, was sufficient to provoke inquiry, or create a suspicion that the deed of February 22, 1924, was not a genuine one, because Swindall had not been in possession of the property since the year 1880. So far as the purchasers for value from Wells were concerned, they had a right to assume that the deed was genuine when all the facts and circumstances of the case are given due consideration.

The case of Ramirez v. Bell (Tex. Civ. App.) 298 S. W. 924, in its facts are very similar to those in the case at bar. In that case Bell exhibited to a Mexican, who was unlettered and unlearned, a warranty deed and represented to him that it was a mortgage, in reliance upon which fact the grantor executed and delivered the deed. This was a misrepresentation as to the contents of the deed, and the court held that the deed was voidable only at the election of the defrauded, and that the maker could not assert the fraud against a bona fide purchaser. The Supreme Court refused a writ of error in that case, and inasmuch as the opinion contains an exhaustive discussion of the legal principles involved, we pretermit any further discussion, believing that the opinion in Ramirez v. Bell states substantially the law of this case. It is true there is respectable authority in support of the holding in the opinion of the Court of Civil Appeals, that the procuring of the execution and delivery of an instrument by misrepresentation of its contents is a forgery, but by the great weight of authority it is held that falsely procuring a genuine signature to an instrument does not constitute forgery. 26 L. R. A. (N. S.) 138, note; 26 C. J. 900, notes 52 and 53. All the other assignments of error in the application of the Pure Oil Company and its assignors have been considered and we think they should be overruled.

We recommend that the opinion of the Court of Civil Appeals, in so far as it reverses the judgment of the trial court and remands the case, as to plaintiff in error R. L. Wells, be affirmed (the school district and its legal representatives not having applied for a writ of error); and as to the other plaintiffs in error, the judgment of the Court of Civil Appeals be reversed, and that of the trial court affirmed.

CURETON, Chief Justice.

The judgment of the Court of Civil Appeals is affirmed in so far as it reverses the judgment of the trial court and remands the case as to the plaintiff R. L. Wells, and as to the other plaintiffs in error, the judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed, as recommended by the commission.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


text:
    TURNER et al. v. WILLACY COUNTY.
    No. 1642—6074.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.

      Jesse G. Foster, of Raymondville, and Chas. L. Black, of Austin, for plaintiffs in error.
    A. B. Crane, of Raymondville, for defendant in error.
   CRITZ, Judge.

It seems from the record before us that on or about August 30, 1924, one A. F. Lee was appointed by Judge Cunningham, judge of the criminal district court of Willacy county, Tex., as attorney ad litem to represent 217 nonresident property owners in certain tax suits then pending in that court. The court allowed Lee a fee of $3 in each of said suits, and the several judgments adjudged that such fee should be taxed as costs and be collected by.the sheriff of Willacy county, Tex., for Lee.

On or about December, 1924, Joe Turner, the then sheriff of Willacy county, collected for Lee the fees in the 217 cases, amounting to $651. It seems that Lee’s whereabouts became unknown, and the sheriff was therefore unable to pay this money over to him. Sheriff Turner went out of office in 1926 and turned this money over to his successor R. H. Teller. Teller went out of office in 192S, and turned the money over to his successor L. I). Snow. In December, 1928, the commissioners’ court of Willacy county ordered this money paid over to the county treasurer of such county, to be placed by him to the credit of its road and bridge fund. Sheriff Snow promptly obeyed the above order.

About October 12, 1929, after the above money had been paid over to the treasurer of Willacy county, A. F. Lee, by an instrument in writing duly executed by him, and for a valuable consideration, transferred and assigned to Mrs. Joe Turner all his right, title, and interest in and to the above money. After becoming owner of such fund by assignment as above shown, Mrs. Turner made due claim on the commissioners’ court of Willacy county for the same. The commissioners’ court rejected the claim, and this suit followed in the district court. Trial in the district court resulted in a judgment for Mrs. Turner. On appeal by the county to the Court of Civil Appeals at San Antonio, this judgment was reversed, and judgment rendered for the county. 40 S.W.(2d) 843. Mrs. Turner brings error.

At this point we deem it proper to quote the statutes involved in this controversy. They are articles 104, 105, and 106, P. C. of Texas, 1925. They read as follows:

“Art. 104. Each county and precinct officer who shall in his official capacity collect or receive any money or fees belonging to another person, shall inform such person of the collection of such money or fees, and promptly pay the same over on demand to the one entitled thereto, taking receipt therefor which shall be entered or noted in his fee book.
.“Art. 105. On or before the second Mondays in March, June, September and December of each year, said officers shall make written sworn report to the commissioners court of all such moneys and fees so collected by them during the quarter last preceding and remaining in their hands uncalled for, giving the number and style of each cause in which the same accrued and the name of the person entitled thereto, which report shall be filed with the county clerk and by him kept for future reference and examination.
“Art. 108. Each officer collecting or having the custody of any money or fees embraced within the provisions of this law at the expiration of four years from the time of collecting or receiving such money or fees, in all cases where the same have not been paid over to the person entitled thereto, shall pay the same to the county treasurer of his county, accompanying the same by -an itemized statement, as provided in Article 105, which shall be filed and kept by said treasurer; and said money or fees shall be by him placed ⅛ the credit of the road and bridge fund.-' The treasurer shall issue to said officer his receipt for said money or fees itemizing the same as above provided, which receipt shall be filed by said officer with the county clerk. Any officer upon retiring from office having any money or fees in his hands embraced within these provisions and which are not due to be turned over to the treasurer as herein provided, shall turn the same over to his successor in office, together with an itemized list of the same, taking receipt therefor, and his successor shall report and pay over the same to the county treasurer in accordance with the provisions hereof.”

As we understand the opinion of the Court of Civil Appeals, it holds that the above statutes partake of the nature of statutes of limitation, and that their effect is to create a four-year statute of limitation and make it begin to run in favor of the county the moment a county officer receives any money or fees belonging to another person. We are unable to agree with this conclusion.

It is our opinion that the very wording of the above statutes negative any purpose to deprive the owner of his title to the funds included in their provisions. It is clear that the officer who collects such funds does so by virtue of his office, and he holds them at all times subject to the demand of the owner. It follows, therefore, that while these funds remained in the hands of the several sheriffs of Willacy county they were mere trust funds belonging to Eee, and the sheriffs-were mere trustees.

When we come to examine the statutes for any words that operate to vest the county with title to such funds when paid over by the officer, we are unable to'discover them. On the contrary, we think the statutes affirmatively evidence a contrary intent. Article 104, supra, provides that any officer who shall collect money or fees belonging to another shall inform such person of the collection of the same and promptly pay the same over to him on demand, taking his receipt therefor. Article 105 provides that the officer collecting such money or fees shall make Quarterly reports under oath to the commissioners’ court showing all such moneys and fees so collected, etc., and giving, among other things, th& name of the person entitled to such money. This article then particularly requires that such report shall be filed with the county clerk and by him kept for future reference. Article 106 provides, in substance, that after the expiration of four years from the receipt of such money or fees by the officer, where same have not been called for, they shall be paid over to the county treasurer, and placed to the credit of the county road and bridge fund. This article plainly negatives any intent to vest title in the county as against the rightful owner by, in detail, providing a method to preserve a record of ownership. In this connection we call attention to the fact that article 106 particularly provides that, when such funds are deposited with the county treasurer, the depositor shall accompany the same by an itemized statement, as provided in article 105, which shall be kept by the treasurer. When we refer back to article 105 to ascertain what the itemized statement therein provided for shall contain, we find that it particularly provides that it must contain “the name of the person entitled thereto.” (Italics ours.) It follows therefore that article 106, in effect, provides that when the money is deposited with the county treasurer, it shall be accompanied by an itemized statement showing the name of the person entitled thereto, and this statement must be kept by the treasurer. Article 106 then provides, in effect, that the treasurer shall issue to the officer making the deposit a receipt for such money or fees, and itemize the same as above provided. In other words, the statute, in substance and effect, provides that the treasurer shall issue to the depositing officer an itemized receipt showing the name of the person entitled, to the monenj. It is then provided that this final treasurer’s receipt shall be filed with the county clerk. All such provisions demonstrate to us that the prime purpose of the three statutes is to protect the owner of the funds rather than to deprive him of his property. Finally, nowhere do the statutes say the money shall become the property of the county.

At this point, we wish to say that we do not want to be understood as holding that these statutes would be constitutional if they did not attempt to give the county the fee title to these funds in the manner contended for by the county, as against the legal owner. That matter is not before us, because the statute attempts no such result.

Our decision of the issue already discussed makes it proper that we pass on another issue in a way raised in the county’s brief in the Court of Civil Appeals tout not passed on by that court on account of the fact that its opinion made it unnecessary.

The record shows that the county pleaded as a special defense in the district court that Lee was not a licensed attorney at the time he was appointed attorney ad litem, as shown by our statement. The district court sustained Mrs. Turner’s special exception to this plea, and the county excepted. This rulT ing was not error. The plea was clearly a collateral attack on the final judgments of the criminal district court of Willacy county, Tex. That court appointed A. P. Lee attorney ad litem in due form, and the several final judgments finally and completely adjudged him the fees in suit here. These matters not only appear on the face of the pleading, but are conclusively shown by the facts.

We recommend that the judgment of the Court of Civil Appeals be reversed, and that the judgment of the district court be affirmed.

CURETON, Chief Justice.

Judgment of the Court of Civil Appeals is reversed, and judgment of the district court is affirmed.