author: SMITH, Justice.

text:
    WESTERN TELEPHONE CORPORATION OF TEXAS v. McCANN et al.
    No. 9261.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 21, 1934.
    Rehearing Denied March 21, 1934.
    Sylvanus M. Thomas, of Glen Falls, N. Y., W. B.- Moss, of Sinton, John. C. North, of Corpus Christi, and T. M. West and Nat L. Hardy, both of San Antonio, for plaintiff in error.
    M. A. Childers, of San Antonio, and J. C. Russell, of Sinton, for defendants in error.
   SMITH, Justice.

This action was brought against the telephone company by Jack McCann and his five minor children for damages occasioned to them by the death, by lightning, of Mrs. Mc-Cann, the wife and mother of the plaintiffs. In a jury trial the plaintiffs recovered an aggregate sum of $15,000. The telephone company has brought writ of error. The plaintiff in error and defendants in error will be herein designated as appellant and appellees, respectively.

The McCanns resided north of Taft, in San Patricio county, in a small rented frame-house situated about 50 feet north of and facing a paved highway, running approximately east and west. Appellant’s telephone lines were strung on wooden poles, 20 feet high and about 180 feet apart, along the north edge of the highway. One of these poles was situated in front of the McCann home, about 36 feet distant. The home of one Nelson was situated about 400 feet west of and on a line with the McCann place.

The telephone line in front of the McCann Rome consisted of two wires, one a through and the other a local wire. The local wire had formerly served telephone instruments in the McCann and Nelson homes. It came to a dead end in the living room of the Nelson home; the service having been discontinued and the instrument removed from both homes long prior to this accident, and before the McCanns moved into their place.

When in use, the instrument in the Mc-Cann pláce had been served by a “lead-in” wire, which may be designated here as a .“drop” wire, extending down from a connection with the local wire on the pole in front of the house. There is evidence that after the discontinuance of the service to the McCann home, the drop wire was disconnected at the pole from the local wire, and tied to the glass insulator carrying the local wire, in close proximity to the latter. It is undisputed, however, that at the time of the accident the drop wire was attached to, or at least was in contact with the local wire, at that insulator. It is conceded that at and long prior to the McCanns’ occupancy of the house, the terminus of the drop wire had been brought to a dead end upon a porcelain insulator spool spiked by an ordinary nail to the southwest corner of the McCann front porch, at the intersection of the corner post and the place or sill just below the eave of the porch. Appellant had knowledge of this situation.

The accident occurred during a heavy rain and' electrical storm. Some of the family were working with a stalled truck near the house. The evidence vaguely, but sufficiently shows that Mrs. McCann had stepped out of the west room onto the small front porch, presumably watching the activities at the truck. Her young daughter was holding open the screen of the front door, near her mother, who, presumably if not certainly, was near the porch post and the dead end of the drop wire attached thereto. At this juncture a terrific bolt of lightning struck the first telephone pole to the east of, and 180 feet from, the pole in front of the house, demolishing the pole and severing the through wire, one part of which was thrust upon the branches of a nearby pal-m, which thereafter died, apparently as a result of the contact. The local wire was not severed, or “burnt,” but sagged downward, intact. The first, second, and third line poles to the east of the one destroyed were split down to the ground on the south side of each. The sill, or 4x6 plate, of the Mc-Cann front porch, to which the dead end of the drop wire was attached at the intersection of sill and southwest corner supporting post, was split for a distance of three or four feet beginning at the insulator spool holding the dead end of the drop wire. (If Mrs. McCann was standing in the position indicated by the facts, her head was near and slightly below this dead end of the wire.) The facing and sill of the east side of the door to the front room, just behind Mrs. McCann, who was between it and the insulator spool, was “burst and torn loose” by the lightning, which also injured the screen of the door as it was held open by the daughter, who was knocked down and injured by the impact. A gas meter at the east end of the porch was injured. The lightning also penetrated the ground near the base of the demolished pole, unearthing a buried line of gas pipe which extended to and beyond the disturbed meter;

Now, as stated, at the moment of -the crash Mrs. McCann was standing or moving about on the west 'side of the porch near the dead end of the drop wire and between it and her daughter as the latter held the screen open. The testimony is vague concerning her precise position, or attitude, or movements. In the confusion following the shock, however, she was discovered prone on the ground, just off the west end of the porch, dead. -Lightning had contacted her head and breast, passing down the length of her body and through one of her feet. It made no impression upon the floor of the porch, or other objects in her immediate vicinity, except, as stated, upon the porch sill on one side of her and the screen and door on the other, upon her daughter, who was felled by the shock, and upon the gas meter at the far end -of the porch.

The jury found, in answer to special issues, that Mrs. McCann’s death did not result from the -act of God, or unavoidable accident, and was not contributed to by her bwn negligence ; that her death was caused by lightning conducted over appellant’s telephone line; that appellant negligently “left its telephone wire connected with plaintiffs’ residence or permitted it to be and remain connected therewith 'after the telephone had been removed, without having installed therewith a lightning arrester or having said line grounded or connected with the ground with a conductor of electricity,” which negligence proximately and directly caused her death.

Appellant put on much expert testimony, developing three theories upon which the accident could have happened, as follows:

“(1) A single discharge may have occurred and in its path to the ground may have divided into three paths, one leading to the telephone post that was demolished, another branch leading to the palm tree that was killed, and a third branch leading to the corner of the porch on which Mrs. McCann was standing.
“(2) Two discharges in rather rapid succession which the people in their excitement failed to notice; one striking the porch and killing Mrs. McCann and the other demolishing the telephone post.
“(3) The discharge could have hit the post and divided at the top of the post, one part following the post to the ground and demolishing it, the other part following the telephone wire to a second post, about 150 feet west of the post that was demolished, and from the second post following a wire leading to the corner of the porch on which Mrs. McCann was killed.”

The jury, by their findings, adopted the third theory, and appellant’s first proposition is, in effect, that appellees failed to support those findings by a preponderance of the evidence, and were therefore not entitled to recover ; that being the only theory pleaded by them. We have concluded that the evidence did support the jury’s findings and therefore overrule the first proposition, as well as the related second, third, and fourth propositions.

Appellant’s theory is, in short, that the accident was not, could not have been,-caused by current generated by the main bolt and conducted over appellant’s wires to Mrs. Mc-Cann, but that there were several distinct and independent bolts, or “side flashes” subsidiary to the main bolt, one striking the line pole, another the palm tree, and another Mrs. Mc-Cann, directly and without the intervention of appellant’s wire. Appellant advances numerous circumstances in support of this theory.

It is argued, first, that the drop wire could not have carried sufficient current to wreak the damage to the porch and death to .Mrs. McCann without “burning” the wire, which in fact survived the shock without apparent impairment. It is true that there was much expert testimony as to the capacity or lack of capacity of such wire to carry destructive current without injury to the wire, but the experts admitted, nevertheless, that the wire could carry enough current to kill a human being and yet show no signs of injury to its own structure. Ftom this evidence and admission, and all the circumstances of the case, we conclude that the jury were warranted in rejecting appellant’s contention upon this point.

It is further argued by appellant, in opposing appellees’ theory, that the local wire, along which the death current was conducted to the drop wire leading to the McCann porch, came to a dead end in the Nelson home, 400 feet beyond the McCanns, and yet wrought no damage to that home; that if the ■ current conducted by that wire had in fact wrought the alleged havoc at the McCann house, the same current would necessarily have damaged the Nelson house. This con--tention seems to be based upon the' assumption that the drop wire leading to the Mc-Cann porch was detached, at the line pole,from the local wire ending at the Nelsons. But, while there was evidence -of Such detachment, it was contradicted -and, being contradicted, must be rejected in support- of the implied finding that the drop wire was attached to the local wire. Besides, there was evidence warranting the inference that,the current could have “jumped” from the local to the drop wire. From this situation it is apparent that the jury found that the current,generated by the bolt of lightning and com-munieated to the local wire, was conducted through that wire to the connection ■ with the drop wire and was diverted or deflected to. and down the latter to its dead end at the porch and from there to the body of. Mrs. McCann, and other nearby objects, as it sought the ground. By this process the Nelson house escaped the fugitive current.

It is further and lastly argued by appellant that appellees’ theory is disproven by the fact of the claimed injury' to the palm tree, which stood four- or five feet from- the line pole upon which the bolt seemed' to concentrate. It was at this pole that the through wire was severed. One of the severed ends was thrust upon the branches of the palm tree, which afterwards drooped into an apparently fatal illness. There keems to be considerable question of whether this condition of the palm tree was occasioned by the lightning. Appellant asserts that the tree is a victim of lightning, and that the ini jury resulted, not from contact with the charged wire, but from a bolt distinct from the main bolt, or a distinct fork -thereof, thus proving, incidentally, asserts appellant, the theory that there- were several- distinct strokes, one of which struck Mrs. McCann; whose death is attributed by appellant to the bolt, rather than to a wire-conducted charge. It is stoutly asserted by appellant) that the injury to the tree could not have dome from the falling wire end, because the electric current communicated to the wire from the lightning could not have been -retained in the wire until it contacted -the tree; that “The duration of a current from a stroke of lightning is fixed by Professor Work (a highly regarded authority) at ‘only a few millionths of a second.’ It is referred, to by Professor Shimek as less than one thousandth of a second.” The point is a fine one, indeed. But it is easily conceivable, nevertheless, that a bolt of this power and intensity could thrust the severed wire to tie very nearby tree so quickly as to make the two events simultaneous. Certainly, common knowledge, the experience and observation of mankind through all the ages, forbid mere man to say that the bolt of lightning could not put that wire on that tree in time to communicate its deadly charge to the tree. The jury were fully warranted in rejecting this incidental contention of appellant.

It may be technically- true, as appellant and its experts contend, that the phenomena of lightning is “highly' complex,” rather than “freakish.” As a practical matter, the uncertainties inherent in a bolt of lightning may not be encompassed in either or both of those terms, or in any term of any known language. It is known, only, that it is all-powerful, all-embracing, inconsistent, inscrutable, searching, terrifying, beautiful, deadly. It is no respecter of persons; places, or occasions.

But certain of its qualities and tendencies have been evolved out of the experiences of the ages. It is known, for example, that an electric current generated by lightning and discharged against an object takes the shortest available path to the ground, albeit, the shortest available path may be the longest natural path, as stated in effect by one or more of appellant’s expert witnesses, whose probity and learning, it should be said here, have raised them to high -places in the educational and scientific structure of our country. And so it is known that lightning takes the path of least resistance electrically. More than that, and peculiarly pertinent here, is the familiar rule that a metallic wire is a favored channel for electric current and a favored target and outlet and deadly instrumentality of lightning.

Giving application to these rales here, it was well within the province of the jury, in view of the evidence, to attribute the deplorable event in this case to the drop wire which led from its contact with the line wire to- a dead end on appellees’ porch. The line wire was strung east, apparently to the exchange at Taft, and west to the Nelson home, 400 feet away. The next pole to the east, 180 feet away, was the one upon which the bolt of lightning vented its -concentrated force, destroying it as if it were made of glass. The bolt generated the currents which wrought the death and destruction evidenced all about. It sought numerous outlets. One tentacle blasted a hole in the ground at the base of the pole, searching out and exposing an underground metal gas main. One clung to- one end of the through wire to- kill the palm tree, while another coursed eastward along the other end of the severed wire blasting down the full length of the next line pole 175 feet to the east, and the next, and the next, where its remaining force appears to have been exhausted, or found refuge, in the earth, 500 feet from the point of its origin. The remaining tentacle seized- upon the local wire and followed it west to its intersection with the drop wire, which it seized in turn and followed downward to its dead end on the porch plate, blasting the latter, killing Mrs. McCann (the next nearest target), felling her daughter, partially shattering the adjacent door and screen. This theory is not only supported by the testimony and the patent physical facts and -circumstances, but by specific allegations in appellant’s special defense of the contributory negligence of Mrs. McCann.

Summarizing the foregoing conclusions, we hold, in brief, that appellant was. bound to know the potential dangers of its wires wherever placed, and to use ordinary care to safeguard persons and property from those dangers. It was bound to know that the drop wire attached to the McCann home was a potential carrier of electrical current genr erated by lightning, which might occur at any time, and that in such contingency it might result in the very injury complained of in this case. With this knowledge appellant was under the duty to use ordinary care to equip its exposed wire with such known devices as would prevent or minimize that danger to- any lawful occupants of the premises. It was undisputed that the only known safeguards against such dangers, other than actual removal of the wire, were to “ground” it, or equip it with a “lightning arrester.” Appellant concedes it made no effort to provide either safeguard. In this situation the jury were authorized to find, as they did, that leaving the wire there and failing to provide those safeguards constitute negligence, and that such negligence was the proximate cause of Mrs. McCann’s death. 26 R. C. L. p. 39, et seq., §§ 39, 40, 41; 37 Syc. p. 1639; Southern Tel. & Teleg. Co. v. Evans, 54 Tex. Civ. App. 63, 116 S. W. 418 Writ Ref.; Texas Tel. & Teleg. Co. v. Scott, 60 Tex. Civ. App. 39, 127 S. W. 587 Writ Ref.

In its first and second propositions appellant complains of the second special issue to the jury as follows: “Question No. 2: Do you find from the preponderance of the evidence that defendant left its telephone wire connected with plaintiff’s residence, or permitted it to be and remain connected therewith after the telephone had been removed, without having installed therewith a lightning arrester or having said line grounded or connected with the ground with a conducter of electricity? Answer this question ‘yes’ or ‘no.’ ”

The first objection to this issue is that it is duplicitous, in that it submits more than one separate issue of fact to the jury, to wit: (1) Did appellant “leave its line without being grounded or connected with the ground with a conductor of electricity?” (2) Did appellant fail to “have properly installed and in operation a lightning arrester?” (3) Did appellant leave “its telephone wire connected with plaintiff’s residence,” or (4) permit it to be and remain connected therewith?” We conclude that a sufficient answer to these objections is that the issues here pointed out by appellant were conclusively established by all the evidence thereon, including that of .appellant’s own witnesses. It was admitted that appellant left the wire connected with the McCann house ungrounded and without lightning arrester, and it is therefore immaterial whether those issues were submitted separately or collectively, or at all.

It is further objected that said special issue No. 2 “informs the jury that some duty or obligation rested upon defendant to watch over and care for said wires after the telephone had been removed from said residence.” This objection presents no error, for certainly the duty did rest upon appellant, as a matter of law, to use ordinary care to neutralize the dangers inherent in the wire it left on the premises. Appellant’s fifth and sixth propositions are overruled.

The jury awarded damages of $10,000 to the decedent’s widower, and $1,000 to each of the five minor children, consisting of three daughters, aged 19,16, and 6, respectively, and two sons, aged 14 and 12, respectively, in its assignments of error 19, .20, and 21, appellant complains of this verdict, asserting that as to the widower it was excessive, and as to the children it “shows to have been rendered without due consideration for the evidence, and without evidence to support such auswer and to have been based solely upon a desire to give each of said children a lump sum regardless of their ages for the amount of damages they may have sustained, if any, for the amount of compensation for the services that might have been expected by each of said children, in that their ages range from six to nineteen years.” We overrule the contention as to the father, it not appearing from the record that the award to him is so palpably excessive as to show the jury arrived at the amount through improper consideration. Nor do the objections made to the award to the children present reversible error. It is not asserted that the award is excessive as to any particular minor, and, it not being excessive as to either, appellant cannot complain that it is discriminative as to the others. The objections that that award was made “without due consideration for the evidence and without evidence to support” it, and the like, do not specify error with that particularity required in assignments.

The judgment is affirmed.


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    GALLEMORE et al. v. OWEN et al.
    No. 2488.
    Court of Civil Appeals of Texas. Beaumont.
    March 7, 1934.
    Rehearing Denied March 14, 1934.

      Foster, Williams & Nicholson, of Conroe, for appellants.
    Hill, Hill, Randolph & Hughes, of Houston, and M. E. Gates, of Huntsville, for appellees.
   WALKER, Chief Justice.

This suit was instituted as a bill of review in the. county court of Montgomery county, by Mable Ilona Owen and Willie Albin Owen, minors, by their guardian, George I. Spiller, against H. Gallemore and wife, Mary Gallemore, G.. W. Butler, W. N. Foster, R. W. Grimes, Thomas O. Payne, Mrs. Josie Wright Matthew, R. L. Crawford, and Midway Oil & Royalty Company, to- set aside and annul all orders in probate authorizing the former guardian of the minors, their mother, Mrs. M. P. Matt, to sell two tracts of land, each containing twenty-five acres, belonging to the estate of the minors, and •two deeds executed by Mrs. Matt purporting to act as such guardian. In county court Mrs. Josie Wright Matthew was dismissed by the minors from their bill of review and judgment was there entered in their favor granting them the relief prayed for. The case was regularly appealed by defendants to .the district court of Montgomery county, where judgment was again entered upon an instructed verdict in favor of the minors for the relief prayed for. Mrs. Josie Wright Matthew was not a party to the bill of review as the case was tried in district court. The appeal is before us upon assignments of error only by W. N. Foster, G. W. Butler, R. W. Grimes, and Thomas 0. Payne.

Appellants claim the land through the two deeds referred to above, executed by Mrs. Matt as guardian of the minors, Mable Ilona Owen and Willie Albin Owen; one dated the 22d day of October, 1928, the other the 4th' day of March, 1932. Since appellants have made no assignment against the instructed verdict as it related to the deed of 1932, we shall not review the record in support of the judgment canceling that deed.

Appellants asked the court to submit fourteen special issues in support of the deed of 1928 and assign error on the ruling refusing their submission.

Appellees construe their attack on this deed as a direct attack, but for the purposes of this opinion we adopt the construction of appellants that the attack was merely collateral. This deed was as follows:'

“Estate of Willie Albin Owen et al. to* H. Gallemore and wife, Mary,
“The State of Texas, County of Montgomery
“Know all men by these presents: That! Mrs. J. P. Matt, Guardian of the estate of Willie Albin Owen and Mabel Ilona Owen,, minors, of the County of Montgomery, Sfcata of Texas, for and in consideration of the-sum of Six Hundred Fifty & no/100 Dollars,, to us in hand paid by 'H. Gallemore and wife,. Mary Gallemore, to be paid in the following manner towit: One Hundred dollars to me-in hand paid,'the receipt of which is hereby-acknowledged, and five notes for $100.00 each,, payable on 'or before October 22, 1929, 1930, 1931, 1932, 1933, respectively, -and one note for $50.00 payable on or before October 22,. 1934. Said notes bearing interest at the rate-of 10% per annum, payable annually and providing for 10% as attorneys fees for collection payable to my order as Guardian-of said estate and executed by the said H._ Gallemore and wife, Mary Gallemore, to secure the payment of which a Vendor’s Lien is retained.on the premises hereinafter described, have granted, sold and conveyed, and by these presents do grant, sell and', convey, unto the said H. Gallemore and wife,. Mary Gallemore, of the County of Montgomery, State of Texas, all that certain tract. or parcel of land, being 25 acres more or less, situated in the County and State aforesaid, out of and a part of the John A. Davis survey 'and being a part of a ninety-one acre-tract of land, known as the Mary Anderson tract (here follows description of land).
“To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging, unto the said H. Gallemore and wife, Mary Gallemore, and their heirs and assigns forever, and I do hereby bind myself, my heirs, executors and administrators, to warrant and forever defend' all and', singular the said premises unto the said H.. Gallemore and wife, Mary Gallemore, their heirs and. assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.
“Witness my hand at Oonroe, Texas, this 22nd day of October, A. D. 1928.
“Mrs. J. P. Mott,' Guardian of the Estate of Willie Albin Owen, and Mabel Ilona Owen, Minors.
“The State of Texas, County of Montgomery, Before me, C. T. Darby, a Notary Public in and for Montgomery County, Texas, on this day personally appeared Mrs. J. P. Matt known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed the same as Guardian of the Estate of Willie Albin and Mabel Ilona Owen, minors for the •purposes and consideration therein expressed, and in the capacity therein set forth. Given under my hand and seal of office, this 28th day of October A. D. 1928 “[Seal] O.'T. Darby, Notary Public,
Montgomery County, Texas.”

Appellees introduced this deed not to show title in appellants, but merely as the basis of their attack. Then they showed by Mrs. Matt that she never made application to sell the land to the Gallemores, nor made a report of sale. The county clerk, as a witness for appellees, produced in court the probate records and upon examining them testified that neither in the probate minutes nor on) the probate docket was there any order of any kind or character relating to the sale of this land and that no application to sell, order of sale, report of sale, or order of confirmation was in his office — that there was absolutely nothing in his office affecting or relating to the sale of this land. The clerk was a deputy , clerk in the county clerk’s office in 1928 in charge of the probate records and he had no recollection of any such proceeding in his court. The county judge during 1928, the county clerk during 1928, and the) Gallemores, the grantees under Mrs. Matt, did not testify. In rebuttal appellants offered no testimony that the county court ever made an order of sale; or an order confirming the . sale. Judge Strode testified that he represented Mrs. Matt at the time; that he was consulted regarding this sale, and further-, as follows;

“Q. Did you ever act as her attorney? [Referring to the guardian, Mrs. Matt.) A. It occurs to me that I probably fixed up a guardian’s account a time or two.
“Q. Now, at whose request did you do that? A. Certainly at Mrs. Matt’s request.
Q. Now state whether or not she had any transactions with you in regard to the sale of some real property to Henry Gallemore. A. Yes, sir.
“Q. Now please state how that, arose. * * ⅜ a. AH right, they came up there and they asked me to make a deed from Mrs. Matt to Mrs. Gallemore; I told them that could not be done; that it would have to be a probate procedure, and explained to them in detail what would have to be-done.
“Q. Now, at that time, Mr. Strode, was there any one in possession of the premises that you knew of adversely to Mrs. Matt? A. Prior to that time there was, or about that time.
“Q. State whether or not you ejected that, party? A. About that time, or prior to that time, she came to me and asked me to file a suit to put somebody off the land out there. I don’t recall who it was; I think it was man named Berry, the papers will show.”

And he further testified;

“Q. Now, Mr. Strode, do you recall of your own knowledge, whether or not you filed an application to sell this land in the probate court? A. Mr. Nicholson, that is mighty hard to pick up details. Of course I filed that record; I don’t think I am ignorant or. vicious enough to do that without asking permission to sell it, I did do it, of course.
“Q. Have you searched all places where they might be known to you? A. I have looked everywhere on earth I knew to look.
“Q. Have you found them? A. I haven’t; I found nothing except the copy of the application which I delivered to you through' Mr. Gallemore.
“Q. Do you recall whether or not those orders were entered? A. Mr. Nicholson, I know that I followed the statute as a basis for making that deed.
“Q. Now, Mr. Strode, did Mrs. Matt know you were working in her behalf? A. Sha came to me and asked me to do that. She and Mrs. Gallemore came up there together. I had never met Mrs. Gallemore before but I did know Mrs. Matt prior to that time.”

If the testimony of Judge Strode be given the construction that he prepared the necessary orders, there is no suggestion in his testimony that he had the court grant the orders or enter them on the probate docket. There was testimony that some docket sheets had been lost out of the probate docket during the period from 1920 to 1930, but there was nothing to raise the issue that any docket sheets relating to the estate of these minors were lost, hut if that issue was raised there was no suggestion that any order relating to this sale was entered on such lost docket sheets. .

Under this showing the 1928 deed was absolutely void and not merely voidable on direct attack. This deed was not in compliance with article 4219, R. S. 1925, which is as follows:

“If real estate be sold, the conveyance shall be by deed, and shall refer to the decree of the court confirmiiig the sale and ordering the conveyance to be made, by giving the date and term of the court of such order. Such conveyance shall vest the right and title of the ward to such real estate in the purchaser, and shall be prima facie evidence that the law has been complied with in making such sale”

—and, therefore, it did not furnish presumptive proof of its validity. No presumption existed in favor of its validity. It followed that appellees had the right to show on collateral attack its absolute invalidity. The evidence conclusively established that fact.

The force of the oral testimony was that the probate court never entered an order of sale on the application of the guardian for the sale of this land nor an order confirming the sale, even if Judge Strode’s testimony can be given the construction that he filed in probate for the guardian an application to sell and report of sale. This construction of the testimony 'makes the 1928 deed absolutely void, a defense available to appellees if their bill of review be construed merely as a collateral attack. Of course, if the deed were merely voidable and not void, its validity could be questioned only by direct attack. Burton v. McGuire (Tex. Civ. App.) 3 S.W.(2d) 576.

Por a second reason this deed was absolutely void. The order of sale and order confirming the sale, if made, were not entered “on the records of the court,” neither on the probate docket nor in the probate minutes. Article 3302, R. S. 1925; Teague v. Swasey, 46 Tex. Civ. App. 151, 102 S. W. 458.

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

On Rehearing.

We did not discuss appellants’ deed of 1932, referred to in the original opinion, op the ground that they had no assignments of error against this deed. They now assert that our construction of their brief is erroneous, referring us to' their ninth and eleventh assignments of error. We have examined these assignments carefully and they make no reference whatever to the deed of 1932. If by their general terms these assignments relate to this deed and also to the deed referred to and discussed in the original opinion, which is now appellants’ construction of them, they are multifarious and present nothing for review as against either deed.

The motion for rehearing is in all things overruled.


author: O’QUINN, Justice.

text:
    PRESTON v. MARTIN.
    No. 2538.
    Court of Civil Appeals of Texas. Beaumont.
    March 24, 1934.
    Rehearing Denied March 28, 1934.
    Orgain, Carroll & Bell and Renfro & Keen, all of Beaumont, for appellant.
    J. K. Brackin, of Port Arthur, and W. R. Blain and D. E. O’Piel, both of Beaumont, for appellee.
   O’QUINN, Justice.

This is an appeal from a judgment of the Fifty-Eighth district court of Jefferson county, adjudging that certain funds there in question 'were subject to garnishment, and awarding judgment in favor of the garnisher, Mrs. Martin.

It appears that on August 23, 1932, ap-pellee, Mrs. W. A. Martin, recovered judgment in said district court of Jefferson county, Tex., against appellant, John Preston, in the sum of $1,794.81, which because of certain credits was reduced to the sum of $885.-79, and that on December 20, 1932, Mrs. Martin sued out a writ of garnishment against the Connecticut General Life Insurance Company (hereinafter referred to as insurance company), alleging that said garnishee was indebted to appellant John Preston.

The insurance company, on January 23, 1933, filed its motion to quash the writ of garnishment, and, subject to its motion to quash, filed its answer. The answer stated that John Preston was formerly an employee of the Gulf Refining Company at Port Arthur, Tex., and that said insurance company had issued to the Gulf Oil Corporation and its subsidiaries certain policies of insurance, under which the employees of the Gulf Oil Corporation and its subsidiary companies, of which the Gulf Refining Company was one, might secure insurance from said insurance company covering either the death of such employee, or his total and permanent disability; that the benefits under each of said policies were payable in a lump sum, and to John Preston himself in ease of total and permanent disability, or to his wife, Mary Preston, in case of his death; that thereafter John Preston, while said insurance certificates were in effect, brought suit, through his attorney, Tom C. Stephenson, seeking to collect on said certificates of insurance, alleging his total and permanent disability; that said suit was filed February 17, 1932, in.the Fifty-Eighth district court of Jefferson county, styled John Preston v. Connecticut General Life Insurance Company, and numbered on the docket 38444. That said attorney, Tom C. Stephenson, was claiming some interest under a power of* attorney or assignment of interest in the claim and an interest in such judgment as should be rendered for John Preston in the fund in question ; that another attorney, David E. O’Fiel, also appeared in the prosecution of the suit, and garnishee understood he was claiming some interest in the fund in litigation, through and under an assignment from Tom C. Stephenson. That said claim of Preston was disputed by the said Connecticut General Life Insurance Company, which made various defenses against said claim, includ-mg one that said claim was barred by limitation, if it ever accrued; that thereafter, by agreement between Tom C. Stephenson and David E. O’Fiel, attorneys for John Preston, and the attorneys for the insurance company, a judgment was entered in said suit on May 12, 1932, in favor of John Preston for the sum of $1,250.

Garnishee prayed that said attorneys, Tom O. Stephenson and David E. O’Fiel, be made parties to the garnishment suit, which was done, and thereafter the Security Realty & Development Company intervened claiming that it held by assignment from said Tom C. Stephenson and David E. O’Fiel their interest in said judgment, alleged to be one-half, or $625. Stephenson and O’Fiel disclaimed any interest in said judgment.

John Preston filed his original answer in which he alleged that his claim against the insurance company was not a liquidated demand such as could be garnished in the hands of the insurance company, because he had employed Tom C. Stephenson to bring suit against said insurance company for $4,500, the amount said company was due him, and that said attorney, Stephenson, had without authority, and without the knowledge or consent of him, Preston, agreed to and had entered a judgment for only $1,250. Later, Max-ch 27, 1933, by and through a different attorney, he filed another answer in which he joined with the insurance company’s motion to quash the writ of garnishment. 1-Ie also pleaded article 5068a, R. S. 1925, as added by Acts 1927, c. 234 (Vernon’s Ann. Civ. St. art. ■5068a), as exempting the funds derived through insurance policies issued to the Gulf Oil Corporation by the Connecticut General Life Insurance Company from garnishment, and that under the provisions of both of the policies in question he was covered and protected, and the funds so derived were exempt from garnishment.

He also in this answer plead that Tom C. Stephenson and David E. O’Fiel, alleged to have been his attorneys, together with the attorney for the insurance company, through some sort of agreement entered judgment on May 12, 1932, in his favor of $1,250, and that this was done without his knowledge or consent, and prayed that said judgment be set aside.

The court overruled the motion to quash the writ of garnishment, and found that the judgment of May 12, 1933, in favor of John Preston for $1,250 was a valid judgment, and-that Preston had assigned one-half of same to his attorneys, Stephenson and O’Fiel, and that.sáid attorneys liad assigned said half to the intervener, the Security Realty & Development Company, and that the insurance company, garnishee, was indebted to John Preston, as shown by the judgment, in the sum of $625, and 'that he, Preston, was indebted to Mrs. Martin, garnisher, appellee herein, in an amount in excess of that sum.

• Judgment was rendered in favor of the intervener, Security Realty & Development Company, against the Connecticut General Life Insurance Company for $625, and in favor of Mrs. Martin for $625, with interest from date, and decreed that the payment of said sums should be in full -satisfaction of any recovery from said insurance company by either Preston or the said Security Realty & Development Company, by virtue of said judgment of May 12, 1932. The judgment further awarded to Major Bell, as attorney for garnishee insurance company, the sum of $100 as attorney’s fee, same to be paid out of the sum awarded to the garnisher Mrs. Martin.

Only one assignment of error is presented, and that is that the court erred, to the prejudice of appellant, John Preston, in failing to sustain his plea that the fund in question was not subject to garnishment under article 5068a, R. S. 1925, as added by Acts 1927, e. 234 (Vernon’s Ann. Civ. St. art. 5068a).

Article 5068a reads: “No money or benefits of any kind to be paid or rendered on a weekly, monthly or other periodic or installment basis to the insured or any beneficiary under any policy of insurance issued by a life, health or accident insurance company, including mutual and fraternal insurance, or under any plan or .program of annuities and benefits in use by any employer, shall be liable to execution, attachment, garnishment or other process or be seized, taken or appropriated or applied by any legal or equitable process or operation of law to pay any debt or liability of the insured or of any beneficiary, either before or after said money or benefits is or are paid or rendered, except for premiums payable on such policy or a debt of the insured secured by a pledge thereof.”

There were two kinds of insurance policies issued by the insurance company protecting Preston. One payable to the beneficiary or beneficiaries named in the policy, upon the death of the insured, same payable $100 at the time of death, and the balance in twelve equal monthly payments. The other was payable in the event of the death of the insured to the beneficiary named in the policy, or, in the event of total and permanent disability occurring before the age of sixty, to the insured himself, in a lump sum.

As before stated, appellant contends that the money payable under said policies was-not subject to garnishment. This contention is not sound. It will be observed that the’ law invoked exempts from seizure process insurance money that is to be paid in period-' ic installments. It has no application to the funds here in controversy. The insurance-in the first-mentioned policy was payable to the beneficiaries of the insured in monthly payments after the death of the insured, lie not being dead, they are not here under consideration. The money sought to be garnished is money paid under the second policy mentioned. That policy provided that the insurance was payable to the insured upon certain disability conditions. But it was not to be paid in periodic payments, but in a lump sum, so that it does not come within the provisions of the article invoked. Union Savings Building & Loan Ass’n v. Smith (Tex. Civ. App.) 62 S.W.(2d) 175 (writ refused).

The judgment is affirmed.


author: LOONEY, Justice.

text:
    HILL v. LESTER et al.
    No. 11739.
    Court of Civil Appeals of Texas. Dallas.
    March 10, 1934.

      Lyle Saxon, of Dallas, for appellant.
    R. G. Storey and E. Taylor Armstrong, both of Dallas, for appellees.
   LOONEY, Justice.

This action is in the nature of a bill of review by appellees to set aside a judgment ■against them in favor of appellant for $2,000 and interest, and to retry the original case on its merits. Injunction was sought and obtained, restraining Hill and the sheriff of Rusk county from selling certain lands levied upon as the property of appellees under an -execution issued on the judgment, also forbidding the issuance of other process on the judgment until further orders of court. Appellant’s answer included exceptions, general and special denials, praying that the temporary writ toe dissolved, and that appel-lees take nothing toy the suit. After overruling exceptions, the motion to dissolve, and hearing evidence as to the merits, the court rendered the following judgment:

“It is therefore ordered, adjudged and decreed toy the Court that the judgment in cause No. 89198-D, styled J. L. Hill v. W. V. Lester, Nimrod Oil Company and Trico Oil Company, pending in this Court,-be and the same is hereby in all things set aside, cancelled and held for naught and a new trial granted.
“It is further ordered, adjudged and decreed by the Court that the temporary injunction and restraining order heretofore issued against J. L. Hill and Geo. B. Hays, Sheriff of Rusk County, defendants herein, be and the same is hereby in all things continued in effect until otherwise ordered by this Court, and defendants and each of them are enjoined and restrained from issuing any execution and/or order of sale upon said judgment herein set aside until the retrial of cause No. 89198-D.”

Appellant excepted, in open court gave notice, and in due form attempted the perfection of appeal.

We are confronted at the threshold with a forbidding jurisdictional question. It is now definitely settled that a review case cannot toe properly tried piecemeal, that is, one trial to determine whether the original judgment shall toe set aside, the other to determine the merits of the controversy, tout that every issue arising on each branch of the suit must be disposed of on one trial; and the relief sought either granted or denied. See Humphrey v. Harrell (Tex. Com. App.) 29 S.W.(2d) 963; Wear v. McCallum, 119 Tex. 478, 33 S.W.(2d) 723; Winters Mut. Aid Ass’n v. Reddin (Tex. Com. App.) 49 S.W.(2d) 1095; Hermann Hospital Estate v. Nachant (Tex. Com. App.) 55 S.W.(2d) 505.

The order of the court was interlocutory and'not final, in that it resulted from the trial of a part only of the review suit, hence was not appealable (McVey v. McVey [Tex. Civ. App.] 230 S. W. 781); it follows, therefore, that the original judgment and status of the review suit remain undisturbed. See Wear v. McCallum and Hermann Hospital Estate v. Nachant, supra.

In a cross-assignment, appellees insist that, since they sought general relief, •that is, to set aside the original judgment and retry the controversy on its merits, and since evidence was heard on these issues, the court erred in not also adjudging that appellant take nothing in the original suit, and that we should render such judgment'as the court toe-low should have rendered.

The cross-assignment cannot be considered, for several reasons. The privilege granted an appellee to file cross-assignments of error under rule 101 for district and county courts necessarily comprehends the pendency of an appeal over which the appellate court has jurisdiction ; again, the assignment is not based upon an exception to the action of the trial court refusing to dispose of the case on its merits, therefore is wholly without foundation. See 3 Tex. Jur. p. 874, § 609; Godshalk v. Martin [Tex. Civ. App.] 200 S.W. 535, 537; Garity v. Halbert [Tex. Civ. App.] 235 S. W. 231, 235. TRat the basis of the cross-assignment is a second thought is revealed by an excerpt from appellees’ brief; they say: “It was the theory of both parties in this case, as reflected by the pleadings and judgment, that only the original judgment be set aside and an injunction granted against the issuance of execution, but since appellant has sought under his eleventh proposition to raise the question of the invalidity of the judgment rendered by the trial court, the appellees are urging, under their cross-assignment and counter propositions, that the judgment of the trial court be reformed by this court, in order to dispose of all of the issues raised by appellees in their first amended original petition.”

The appeal is dismissed, but without intending to disturb the status quo of the review suit, and without prejudice to the right of appellees to proceed in the manner here indicated to the final trial and disposition of the entire controversy.

It appearing that both parties labored under the idea that the case could be tried piecemeal and that neither is responsible more than the other for the failure of the court below to render a final judgment, the cost of appeal will be equally divided between the parties and taxed accordingly, for which execution may issue, and it is so ordered.

Appeal dismissed.


author: SELLERS, Justice.

text:
    BELL et al. v. PIRTLE.
    No. 4592.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 8, 1934.
    F. A. Dale and 8am E. Nedlson, both of Bonham, for appellants.
    Cunningham & Lipscomb, of Bonham, for appellee.
   SELLERS, Justice.

This suit was brought by J. A. Pirtle against Mrs. Hattie Bell, who is the surviving wife of E. H. (Earl) Bell, and also against their children whose names it will not be necessary here to give. The action is upon two vendor’s lien notes which were executed by E. H. Bell in his lifetime as a part of the purchase price of a 61-aere tract of land in Fannin county. The land was Community property of E. I-I. Bell and his wife, and was used as their homestead at the time of his death. The appellee further alleged:

“That since the execution and delivery of said notes and while E. H. Bell was occupying said land and premises as a homestead, he, E. H. Bell, died about the year 1927, leaving Hattie Bell as his surviving widow and the other defendants named herein as his only children. That there was no administration upon his estate and no necessity for administration as the land and premises here-inbefore described were a part of his homestead and not subject to the Probate Court of Fannin County.
“That after the death of said E. H. Bell, his widow, Hattie Bell, being unable to pay said indebtedness, as community survivor for herself and the other defendants herein, made, executed and delivered to plaintiff ■herein the said extension agreement in writing, making and extending the payment of said notes and the lien securing the same, making the maturity date of said notes No: vember 26, 1930, and November 26, 1981, respectively.”

The appellants denied generally the appel-lee’s cause of action, and pleaded the four years’ statute of limitation in 'bar of said action, and specifically denied that Mrs. Hattie Bell executed and delivered to appellee a valid extension'agreement extending the payment of said notes and the lien securing the same.

The trial was before the court without aid of a jury, and, after hearing the evidence, the court rendered judgment for the appellee for his debt with foreclosure of vendor’s lien on the land involved, but did not render any personal judgment against appellants. At the request of appellants’ attorney the court prepared and filed findings of fact and conclusions of law, to which no exceptions were reserved, and such findings are as follows:

“The Court finds that on November 28th, 1923, J. A. Pirtle conveyed the real estate involved in this controversy to Earl E. H. Bell, and as a part of the purchase price for said land, the said Earl (E. H.) Bell executed three promissory notes, constituting a vendor’s lien on said land, each of said notes being for the sum of $560.00 and maturing as follows: Note No. 1 maturing on or before November 26.th, 1924; note No. 2 maturing on or before November 26th, 1925, and note No. 3 maturing on or before November 26th, 1926, each of said notes being dated November 26th, 1923, and bearing interest at the rate of eight per cent, per annum.
“The Court further finds that at the time of the purchase of the land involved herein, and at the time of the execution of the notes described in the preceding paragraph, said Earl (E. H.) Bell, was a married man, the name of whose wife was Martha Bell, and who was also known as Hattie Bell, and the minor children whose names follow: Earl Bell, who was an adult at the time of the trial, Hulen Bell, Wyatt Bell, Harold Bell and Zelma Bell. There, were also some adult children at the time of the purchase of the land involved’herein and the execution of said notes.
“The Court further finds that the said Earl Bell (E. H.), died July 16th, 1927, and that there was no administration on his estate, and neither did his survivor qualify as community administrator.
“Prior to his death the said Earl (E. H.) Bell, had paid off Note No. 1 of the series of notes described in paragraph No. 1 hereof, and there was due and owing to the said J. A. Pirtle notes Nos. 2 and 3 of the series of notes above described.
“The Court further finds that on July 16th, 1930, the surviving widow, said Mrs. Hattie Bell, executed the extension agreement shown in the statement of facts as Exhibit -, extending the time of the payment of the last two notes of the series of notes described in paragraph 1 hereof, and during the minority of five of her children.
“Conclusions of Law.
“The Court concludes as a matter of law that the surviving widow of Earl (E. H.) Bell was authorized in law to execute an extension of the indebtedness described in paragraph 1 of the Findings of Facts, and that a valid extension of said indebtedness was accomplished by the extension agreement dated July 16th, 1930, and binding upon the estate of 'herself and deceased husband.”

The following is the extension agreement executed by Mrs. Hattie Bell:

“State of Texas, County of Fannin.
“Whereas E. H. Bell did on the 26th day of November, 1923, make, execute and deliver two promissory notes as follows: One for the sum of $550, due and payable on the 26th day of November, 1925; one for the sum of $550 due and payable on the 26th day of November, 1926, which said notes are secured by a vendor’s lien retained in the deed executed by J. A. Pirtle and wife to said E. II. Bell, conveying the lands which are fully described in said deed, which is of record in Book —- page -, of the records of Deeds of Fannin 'County, Texas, and reference is hereby expressly made to said instrument so recorded and the same is expressly made a part hereof.
“Whereas E. H. Bell, deceased, by his wife, Hattie Bell, now owner, is not now able to pay off and discharge said notes which are still owing and unpaid, and has applied to J. A. Pirtle, legal owner and holder of said notes, for an extension of the maturity of the time of payment of said notes.
“Now, Therefore with agreement Wit-nesseth: That E. H. Bell, deceased, by his wife, Hattie Bell, the maker and obligator of said notes and the said J. A. Pirtle, the legal owner and holder of said notes, have mutually agreed and contracted and do by these presents mutually agree- and contract that the maturity time of payment of said notes shall be extended from the date of the original maturity as set out seriatim as follows : One note for the sum of $550 made due and payable on the 26th of November, 1930; one note for the sum of $550 due and payable on the 26th day of November, 1931, at which latter date the said notes respectively shall mature and become due and payable and not before.
“And it is further expressly agreed and stipulated that said indebtedness is just and said maker agreés to pay same at the extended date. And it is further agreed and stipulated that all rights and remedies, privileges, benefits originally conferred upon, retained or acquired by the holder of said notes, shall be and remain unimpaired and without change, .alteration or diminution except only as to its extension of the maturity ■of said date.
“Witness our hands this 16th day of July, 1030.
“[Signed] Mrs. Hattie Bell.”
“State of Texas, County of Fannin
“Before me, Jess A. Smith, a Notary Public in and for Fannin County, Texas, on this day personally appeared Mrs. Hattie Bell, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed the same for' the purposes and consideration therein -expressed.
“Given under my hand and seal of office •the 16th day of July, 1930.
“Jess A. Smith,
“Notary Public, Fannin County, Texas.”

As we understand appellants’ assignments of error and the propositions thereunder, they raise but one question, and that is that the extension agreement executed by Mrs. Hattie Bell was void and of no effect to extend the date of payment of the notes •sued upon for the reason that the instrument itself did not purport to be the act of Mrs. Hattie Bell as community survivor, and ■therefore the court should have sustained appellants’ plea of limitation to appellee’s cause of action. The Commission of Appeals to the Supreme Court of this state, in the case of W. C. Belcher Land Mortgage Co. v. Taylor et al., 212 S. W. 647, 649, held: “At the date of the execution of the note and -deed in’trust, the property in its entirety was .subject to the vendor’s lien. Mrs. Taylor, as 'tenant in common with her children, in order to protect her interest, as well as that of her children, and save the property from threatened foreclosure, had the right to extend the •time of payment of the debt, and to this end was authorized to execute a deed in trust binding her interest, though homestead, and •also the interest of her children.”

In fact, we understand the law now to be that the surviving wife has the same rights with reference to the management, control, and disposition of the community property as the surviving husband has always had, subject to a loss of certain of those rights by a remarriage. Article 3678, R. C. S. And we do not understand appellants to contend the law to be otherwise.

From the court’s finding of facts and the extension agreement, it is clear that Mrs. Bell intended as effectively as she could to extend the time of payment of the two notes sued upon; that she was extending the time of payment of the two notes, because the notes were an obligation and liability upon her as well as her deceased husband. Neither can there now be, as above stated, any doubt as to her lawful authority to extend the time of payment of the notes. The only requirements as to the form of such an agreement is that it shall be in writing and acknowledged as in conveyances by deed. This instrument meets those requirements. The contention that the extension agreement is void in that it fails to recite that Mrs. Hattie Bell executed the same as community survivor, is, in our opinion, without merit. The law makes no requirement in such terms in order for the instrument to be binding upon both the survivor and the heirs. The point was first decided by Chief Justice. Hemphill in the case of Jones’ Adm’r v. Jones, 15 Tex. 143, and repeated again by the same noted jurist in Primm v. Barton, 18 Tex. 206. The court in the Jones Case, in passing upon the surviving husband’s right to act in his own name or in his name as survivor, held: “Nor can it be said that the creditor has lost his right to satisfaction out of the ganancial property, for the reason that no administration has been taken out on the estate of the deceased wife, nor have her heirs been sued •or their liabilities fixed, and that they are now protected by the Statute of Limitations. The ganancial estate remained in the hands of the surviving husband. As survivor he •had competent authority to discharge the debts of the partnership; -and whether the discharge of debts, or any act which he might lawfully do as survivor, be done in his own name simply, or in his name as survivor, is immaterial. The law, for the preservation of rights, would look to the substance and not the form. In fact no such form has been adopted in practice, nor is it essential that it should.”

This same -authority was followed by the Court of Civil Appeals of San Antonio in the case of Jones et al. v. Harris et al., 139 S. W. 69, wherein that court held that a deed executed by the survivor to' pay debts of a community although the deed as executed made no mention of the grantor as being the community survivor was effective to pass the entire title to the land and the authorities on the point are carefully reviewed in the opinion by Ohief Justice Ely.

Finding that no error has been committed by the trial court, its judgment will in all things be affirmed.


author: LEVY, Justice

text:
    ELDER v. KING et al.
    No. 4407.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 10, 1933.
    Rehearing Denied Jan. 25, 1934.

      Clyde Yinson, of San Angelo, and Chauncey & Chauncey, of Longview, for appellant.
    J. M. Davenport, of Tyler, Geo. E. Holland and John O. Gray, both of Henderson, Me-Entire, James & Clower, of Tyler, Slay & Simon, of Fort Worth, Lacy & Molhusen, of •Longview, Richey & Sheehy, of Waco, Sam ■MeCorkle, of Fairfield, Chas. R. Crum, of Dallas, and Wynne & Wynne, of Longview, for appellees.
   LEVY, Justice

(after stating the ease as above).

In view of the evidence in the record and upon due determination of weight and sufficiency, this court does not feel justified in exercising its power to approve and adopt as a fact the answer of the jury to question No. 1. The evidence in that respect is slight and conflicting and there is room to hesitate or doubt as to the existence of such ultimate fact. In our mind the answer must be considered as being against the weight of the evidence and upon that ground alone it is here disapproved and not adopted but is set aside. The deed of conveyance of the 13½ acres by J. A. King to plaintiff was absolute and unconditional upon its face and was duly -recorded in the deed records of the county. It was of record and constituted full legal notice when the subsequent instruments were executed by J. A. King to the defendants. The presumption, created by the language of the deed, is that the instrument is what it purports to be, an absolute conveyance, and will operate as such, unless the evidence proves it to be something different from what it purports to be and changes its apparent character into a mortgage. The doctrine is applied that, a deed absolute in form, given to secure the payment of a debt, will be considered a mortgage, although the defeasance r'ests wholly in parol. 41 O. J. § 94, p. 32S; Gibbs v. Penny, 43 Tex. 560; Loving v. Mil-liken, 59 Tex. 423; Clark v. Haney, 62 Tex. 511, 50 Am. Rep. 536, and other cases. It is well settled that such question is open to litigation, and the courts may so declare when the testimony impels to the conclusion that a deed on its face conveying the absolute title was, between the parties, but a mortgage to secure a loan. Equitable principles are applicable to such actions. In an action of the character, as here, of an action of trespass to try title by the plaintiff, it is incumbent upon the defendant whose claim or defense is that the deed is a mortgage to specifically plead such equities; otherwise no equities could be tried and he would be bound by the legal effect of the deed according to its terms. Groesbeeck v. Crow, 85 Tex. 200, 20 S. W. 49; Parks v. Worthington, 39 Tex. Civ. App. 421, 87 S. W. 720. It will be assumed in this case that the defendants in this case have specially pleaded the equities claimed. And the burden of proof manifestly lies upon the defendants claiming that the real character of the transaction is different from that which is imported by the language of the deed in question. The question is whether the defense Has sustained the burden of proof. According to the evidence of the grantor, J. A. King, the circumstances leading up to the signing of the instrument were: That J. A. King and his wife, Katy King, had separated and a suit for divorce was pending. That the wife, Katy King, “didn’t want the land” (referring to the land in the deed), but wanted “money” in the division of the property upon divorce. That J. A. King approached Mr. Trip Elder about the situation “in order to get the money to pay her interest out.” That at the time J. A. King owed Mr. Trip Elder about $509 for advances. The property was presumptively community property as it was not shown to have been acquired prior to the marriage to Katy King. That J. A. King and Katy King both signed the deed on February 16, 1927, and acknowledged it on the same day, and that the divorce decree was granted about “a couple of months, something like that” after the date of the deed. The grantor, J. A. King, and the grantee, Trip Elder, both state that all the above preliminary talk and agreement was that the transaction would be a sale and that the instrument was executed with that intent. Both the plaintiff, Elder, and the grantor, J. A. King, affirmatively testified on the trial that the deed was intended as an absolute one. J. A. King testified that he got $450 in money and the release of his debt of $450, aggregating “about nine hundi’ed dollars” that he got “for those two tracts.” J. A. King further testified that at the time of the execution of the deed he also had the “purpose in wanting to sell ■ the land” of “going to Oklahoma.” He testified after the date of the deed and the divorce he did go to Oklahoma and after staying there a short time changed his mind and “went down in Arkansas” and there stayed “I guess about five months in all.” He then came back “to Kilgore” and rented the land from Mr. Trip Elder. Considering the surrounding circumstances as appears there is none of the convincing elements to fairly show that the warranty deed was, in fact, only a mortgage. The mere fact of itself and by itself that J. A. King was owing a debt to Trip Elder at the time of the deed would not be sufficient to raise a presumption either for or against the theory that the transaction was a mortgage. Whatever presumption of this kind there may be is repelled by the evidence of J. A. King showing in effect the debt was canceled at the time of the conveyance. It is not shown that the value of the property at the time the deed was given was more than the amount testified to as being paid for the property — a material consideration when passing upon the question of whether a deed was in fact a mortgage. The affirmative factual elements of the purpose of executing the instrument of transfer, to enable the wife in a divorce proceeding “to get the money to pay her interest out,” and the intention of the husband to go elsewhere in another state, are more consistent than conflicting with an absolute sale of the property to effectuate a division of the property between husband and wife. They both signed the deed. The entire circumstances tending in contradiction of absolute conveyance consists in certain purported contradictory statements and the rendition for taxes of the 13½ acres of land by J. A. King, which latter act is explained apparently consistent with the deed. The character of the transaction was fixed in the beginning and the subsequent declarations of a party cannot change its character. These are nothing more than admissions which are admissible in evidence for what they are worth. Stripped of the contrary statements in evidence by J. A. King the evidence is slight as to the deed’s being intended as a mortgage. To take the contrary statements of J. A. King as outweighing the other affirmative evidence would be to place great reliance on indefinite and inclusive evidence. It is the especial rule that the evidence relied upon for the purpose of affixing the character of a- mortgage to an absolute deed must satisfy the high standard of probative force indicated by the expression “clear, satisfactory and convincing.” Brewster v. Davis, 56 Tex. 478; Gazley v. Herring (Tex. Sup.) 17 S. W. 17; Muckelroy v. House, 21 Tex. Civ. App. 673, 52 S. W. 1038; Erazer v. Seureau, 60 Tex. Giv. App. 416, 128 S. W. 649. Other states, in annotation of rule, L. R. A. 1916B, page 192: There is authority for the rule, of necessity of sustaining the allegations of a mortgage by other testimony besides that merely of the grantor, in case that which was given conflicts in every important particular with that which was given by the other. Under such circumstances the testimony of one party is regarded as simply counterbalancing that of the other. L. R. A. 1916B, page 253.

In passing it is observed that the defendants have recovered judgment for the property as against the plaintiff. If the deed is a mortgage only, as the defendants must establish by proof, they cannot recover the land without tendering the amount of the debt and interest. Hicks v. Hicks (Tex. Civ. App.) 26 S. W. 227. And if the conveyance be only a mortgage, then the extent of the interest of the defendants, as against the .plaintiff, can reach only to the interest of J. A. King. The divorced wife, Katy King, did not sign the leases or the royalty deeds in’ evidence, and there is no proof that she has ever conveyed her one-half community interest in the land, except in the deed to plaintiff.

The judgment is reversed and the cause remanded.


author: JOHNSON, Chief Justice.

text:
    REPUBLIC INS. CO. v. HALE et al.
    No. 4488.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 8, 1934.
    Rehearing Denied Feb. 22, 1934.

      J. Louis Shook and Smithdeal, Shook, Spence & Bowyer, all of Dallas, for plaintiff in error.
    E. E. McKee, of Dallas, and Neyland & Ney-land and L. L. Bowman, all of Greenville, for defendants in error.
   JOHNSON, Chief Justice.

The plaintiff, N. L. Hale, brought the suit upon a policy of fire insurance issued by the insurance company for the full sum of $1,-000, for the total loss by fire of his one-story frame building. The United Savings Bank of Detroit, Mich., intervened, claiming a lien on the property to secure the payment of indebtedness owing by plaintiff, and that the loss on the building was made payable to it under the mortgage clause provided for in the policy of insurance. The insurance company, besides plea in abatement, filed a general denial and failure' of plaintiff to submit to ap-praisement. The case was tried before a jury and answers made to the following special issues:

“1. Was the building in issue in this case a total loss after the fire? Answer: Yes.
“2. Would a reasonably prudent owner uninsured, desiring such a structure as the one in question was, immediately before the fire, in proceeding within a reasonable time after the fire to restore the building to its said condition immediately before the fire, have torn down those portions of the building left standing? Answer: Yes.”

The court instructed the jury as to the test by which it must be determined whether there had been a total loss. That burden óf proof was upon the plaintiff to show that the building was a total loss.

The judgment was in keeping with the verdict in favor of the plaintiff for $1,000, with interest. The intervener was adjudged to have payable direct to it out of the $1,000 the amount of the debt and interest owing to it by plaintiff. The insurance company has appealed from the judgment.

The defendant insurance company issued to plaintiff a policy of fire insurance, of date October 12,1930, covering a one-story, shingle roof frame building in Commerce, insuring for a period of three years against loss or damage by fire to an amount not exceeding $1,000. The policy contained the provision that, in case of a total loss by fire of real property insured, then the policy shall be a liquidated demand for the full amount covering- the real property; otherwise the company would be liable only for the actual cash value of the property at the time of the loss. A fire in the building occurred January 22, 1932. The injury caused to the building by the fire was described by witnesses. According to the evidence by the expert contractors given in behalf of the plaintiff, any substantial part of the building remaining could not be used as a basis for reconstructing the building to the condition in which it was before the fire. According to their testimony, the portion of the walls remaining were warped, drawn, and bulged out by the heat of the fire, and a portion was badly charred, and it would be unsafe to put the building back with such walls as they now stand, and that they would have to be taken completely down before starting rebuilding; that the joists burned out; that the floors were damaged, and would have to be taken up. The witnesses in behalf of the defendant company testified that there was a substantial portion of the building remaining that could be used for purposes of reconstruction, although some of these witnesses did not make examination of the portions remaining to see if they were buckled and warped, and because thereof unfit for use.

The assignments of error present the principal points in view, in effect, that: (1) The portions of the building remaining could have been utilized in reconstructing the building; and (2) in not sustaining the plea in abatement ; and (3) insufficiency of the discussion of the case by the plaintiff’s attorney in his opening argument to the jury; and (4) misconduct of the jury.

There is amide evidence to support the answers of the jury-. The court cannot, as a matter of pure law, say in the evidence that the building was not a total loss. The instruction given in form was in compliance with the test stated in Royal Ins. Co. v. McIntyre, 90 Tex. 170, 37 S. W. 1068, 35 L. R. A. 672, 59 Am. St. Rep. 797. The burden of proof was placed by the court' upon the plaintiff to establish a total loss of the building.

A total loss being established, as found by the verdict of the jury, then the stipulation in the policy for arbitration would not prevail and be effective. National Eire Ins. Co. v. House (Tex. Civ. App.) 197 S. W. 476; Security Ins. Co. v. Vines (Tex. Civ. App.) 48 S.W.(2d) 1017; Export Ins. Co. v. Axe (Tex. Com. App.) 58 S.W.(2d) 39. Article 4929, R. S., makes a total loss by fire of a house a liquidated demand.

The court limited the argument of attorneys to forty-five minutes on each side. In the opening argument to the jury, the plaintiff’s attorney used “only seven minutes," and “did not discuss the two issues submitted to the jury.” He did “discuss the ease in a general way.” The objection is that, failing to discuss the issues in the opening argument, the concluding argument should have been limited “to a reply only to counsel for the defendant.” It is not thought error may be predicated thereon. The counsel for the company addressed the jury at length upon the case, and was not deprived of any right in that respect.

Upon a consideration of the record, it is not thought such misconduct of the jury is shown as would authorize this court to set aside the conclusion in that particular of the trial court. Houston & T. C. R. Co. v. Gray, 105 Tex. 42, 143 S. W. 606.

The judgment is affirmed.


text:
    PETERSON v. MARTIN et al.
    No. 4440.
    Court of Civil Appeals of Texas. Texarkana.
    March 15, 1934.
    Rehearing Denied March 22, 1934.
    Cunningham & Lipscomb, of Bonham, for appellant.
    S. F. Leslie and 8am E.. Neilson, both of Bonham, for appellees.
   SELLERS, Justice.

The suit was by Myrtle Peterson, individually and as administratrix of the estate of A. C. Peterson, deceased, and as next friend of Mary Ann Peterson, against John Martin, who was also known as John L. Peterson, and Mary Dunham and her husband, R. F. Dunham, to recover certain land and personal prpperty. Mary Dunham and her husband filed a disclaimer of any interest in the land and personal property. John Martin, or John L. Peterson as he was called, disclaimed any interest in the land except 80 acres of the J. M. Sharp survey, John Martin, or Peterson, claimed title to the 80 acres of land by virtue of a verbal gift to him about November 11, 1914, by A. C. Peterson and his wife, Emma Peterson, alleging possession and permanent and valuable improvements. He also pleaded adverse possession of the 80 acres under the statute of ten years’ limitation. By way of cross-action, the defendant John Martin, or Peterson, sued for possession of certain articles of personal property in possession of the plaintiff.

It appears that A. 0. Peterson, was twice married, once to Emma Peterson, wlio died April 3, 1920, leaving a will devising all of lier interest in property to her husband, A. 0. Peterson. The Will was duly probated. Emma Peterson and A. C. Peterson had no children, but they took the defendant John Martin, whose mother and father were dead, when a very small child, and reared him. They also reared Mary Dunham. After the death of his first wife, A. O. Peterson married Myrtle Peterson, and they had one child, Mary Ann Peterson. A. C. Peterson died June 7, 1931, survived by his wife, Myrtle Peterson, and child, Mary Ann Peterson. John Martin, or John L. Peterson as he was called by name, married Gertrude Cox about December 5, 1914, and they thereafter lived on the 80 acres of land in controversy. There is proof that A. 0. Peterson and Emma Peterson gave the 80 acres of land to John Martin, or Peterson, before the marriage to Gertrude Cox. The case was submitted to the jury, and they made answers, viz.:

“Q. 1: Do you find from a preponderance of the evidence that A. G. Peterson and Emma Peterson by verbal gift gave to John L. Peterson the eighty acres of the J. M. Sharp Survey?” Answer: “Yes, they did.”
“Q. 2: Do you find from a preponderance of the evidence that John L. Peterson took and held possession of said land from and after the date of said gift?” Answer: “Yes.”
“Q. 3: Do you find from a preponderance of the evidence that defendant John L. Peterson has made valuable improvements on said eighty acres since said gift?” Answer: “Yes.”
“Q. 4: Do you find from a preponderance of the evidence that John L. Peterson held peaceable and adverse possession of the eighty acres in controversy, cultivating, using or enjoying the same for a period of ten years prior to the 14th day of September, 1931?” (The date said suit was filed). Answer: “Yes.”

The remainder of the jury questions relate^ to articles of personal property; the jury finding that John L. Peterson did not have in his possession any of the property set out in the plaintiff’s petition and finding that the plaintiff Myrtle Peterson did have in her possession articles of personal property belonging to John L. Peterson, naming the articles. The answers of the jury to the questions submitted are hereby adopted as the facts of the case.

The court rendered judgment for the plaintiff for all the land sued for except the 80 acres in the J. M. Sharp survey claimed by John R. Peterson; and, in keeping with the verdict of the jury, rendered judgment in favor of John D. Martin, known as and called John L. Peterson, for the SO acres of land and personal property.

The findings of the jury on issues Nos. 1 and 4 are questioned as to sufficiency of the ■evidence to support them. There is evidence going to show a gift and possession thereunder. In the possession and improvements made on the property under the claim, of gift, there is in such evidence the factual element of adverse possession and claim against A. O. Peterson.

The complaint of the evidence given by Mrs. John L. Peterson as to statements made to her by A. 0. Peterson may not be deemed sufficient reversible error, since the trial court, as the record shows, withdrew his original ruling admitting it and struck the same out of the record and instructed the jury not to consider same.

We have considered the objections made to the testimony of the witnesses Cox, Mabry, Benton, and Tarpley, and do not think that their testimony should be deemed inadmissible. It is claimed that the testimony was incompetent as statements made by Mrs. Emma Peterson, now deceased. The witnesses testifying were not parties to the suit nor did they have interest in any wise in the land or the gift made. The land was the community property of A. C. Peterson and his wife, Emma Peterson. It was alleged that Mrs. Emma Peterson was a party to the gift of the land, she joining in the gift with her husband. The statements or admissions of Mrs. Emma Peterson .to the effect that she had consented and joined in the gift of the land to John Martin, or Peterson, is not without probative force. Such evidence would operate to make valid the gift and remove all doubt of unfairness to the wife. It affirmatively established that the husband was not acting alone, giving to a stranger and not an heir the interest of the wife in community property.

An attorney was offered as a witness as to certain statements of A. 0. Peterson. The relationship of attorney and client was shown between him and A. O. Peterson, deceased, in respect to the statements sought to be offered in evidence, and then the attorney stated to the court that “I would rather not testify” as to the statements asked about. The court did not require the attorney to testify. It was not error. 5 Jones’ Commentaries on Evidence, § 2155, pp. 4084 and 4092. In Ex parte Lipscomb, 111 Tex. 409, 239 S. W. 1101, 1103, it is said, “Where the attorney objects to testifying upon the ground of privilege, it is to be regarded as the objection of the client.”

■We have considered all the assignments of error, and are of the opinion that they should be overruled.

The judgment is affirmed.