Hurley v. McMillan
268 S.W.2d 229
Tex. App.
1954
Check Treatment

*1 229 Fant, Tex.Civ.App., require here In Sullivan v. us to reverse and render 612, 616, ref., judgment writ find 160 of the S.W. District Court Hamil- “ proof County ton judgment the rule: ‘When and denying enter probate the same fact and at of the last tends to establish will and testament power Jasper is within that it Pool. time discloses party opposing interest and Accordingly, the judgment of the Dis- false, disprove it, the silence if trict County Court of Hamilton is reversed only party strengthens the opposing not and rendered and the order admitting the proof probative the affirmative force of last will Jasper and testament of Pool to pro with a certain but itself is clothed probate aside, is ‘set vacated and held ” bative force.’ naught, and it is the further order of this judgment that this be certified to the testimony in this rec tendered District Court County of Hamilton and to approximately pages of ord consists County Court of Hamilton County for Necessarily typewritten pages. legal size observance. every fact circum set and we cannot out perti in this record we think stance contestants, nent and favorable testimony all of the

we have examined care, light with great

tendered Supreme Long

rule stated our Court Traylor, supra, su Olds v. Long, cited, and pra, the other cases here found doing, jury since the HURLEY v. McMILLAN. was exercised undue influence No. 12658. view testator, our considered the issue tenders on the whole the record Appeals Court of Civil of Texas. up by appellees influence exerted of undue Galveston. Pool, that it is sufficient to Jasper 18, March thereon. finding sustain Rehearing May 20, Denied 1954. Lochausen, In Burt v. 151 Tex. Supreme 249 S.W.2d our Court recently made this statement of the rule, applicable: which is here In (A) or der action “to sustain the judgment granting

court in non obstante

veredicto, it must be determined that there having probative up

is no force evidence on which could have made the “ upon” relied

findings (B) ‘it province jury’s weigh all the evi

dence, to decide what credence should be any part whole or of each “The witness. were only proved, judges not facts inferences to be drawn

but of the there from, provided were such inferences ’” 5-6, Points

unreasonable.” page application our view that the rules foregoing factual situation *2 Moore, Wharton, Robertson,

Ingram & Jackson, Payne, Walker, Lancaster & Otis Case, Gary Dallas, appellant. and D. L. for Duckett, Campo, Hill, El L. J. J. John Kronzer, Jr., and W. Houston James ' Duckett, Campo, Hill, El (Duckett & Brown, Abraham, & Houston, Kronzer counsel), for CODY, Justice. appellee, between

This was action McMillan, appellant, Charles W. U. S. Hurley, personal recover injuries, well as for as' automobile, alleged have been caused appellant, Charles W. negligence parties Hurley, automobiles dark on December collided after rep- Campo, Appellant El Texas. has near resented, denied, occurred on the shoulder the collision highway. side of the highway upon the Appellee his cause of action based failure of to-dim his head- alleged peril. case lights, and discoved This question privi- here on the rather full statement of lege, facts appeal. See on that made approached material, far “As I Tex.Civ.App., here McMillan, 255 S.W.2d traveling however, jury, trial, curve noticed two vehicles present was to This my applied upon 37 highway east on the case and the court submitted the *3 the- brakes to of a sudden special slow down and all issues. spun- my left car front brake locked and special nineteen In the first answers to around in and.' highway the middle of appellant neg- of issues the convicted then headed for the wrong high- side of the requiring ligence violating the statutes way and the my front car section struck found headlights, and also dimming the front section of oncoming car and to dis- appellant the issues as against point I think impact was about found peril. covered The further on the shoulder wrong side of the appellant issues against on his defensive highway from the direction I 'was travel- 20-33, remaining issues The inclusive. ing.” The statement made no claim that appellee’s damages to lated to the automo- appellee was by blinded the headlights of hospital bile, appellee’s medical and and to above, automobile. As noted The personal injuries. expenses, to his appellee part based his action in on the al- verdict, judgment court, upon rendered leged negligent appellant failure of to dim appellee appellant in the sum against headlights, required by law. $24,000. connection, In proper appeal upon it is predicated his Appellant has appellee’s state paid insurance carrier five points, covering more than fifteen appellant the full extent ad- We do not deem it pages of his brief. claimed resulting rea up in the order visable to take son collision, $1,325. of said namely Appel presented by him. might fact, lant well be aware of the Appellant’s com- fourth and fifth we think judi are courts authorized to take plain (1) in sus- of the action of the court of, cial knowledge companies that insurance appellee’s pre- taining motion in limine to. do not acknowledge liability for claims or attorneys appellant, his and witnesses vent pay them without first making an investi referring to a written statement from gation of Appellant the facts. must have . collision, relating to the interest concluded in all reasonable probability, objection (2) sustaining appellee had made a statement to his in receipt in evidence of the placed surance carrier which liability on Garrison, Jr., writ- S. who took said James appellee for the accident. How ten statement. attorney possession came into of the knowl edge appellee the fact had made a collision, appellee was At the time of the written to his insurance carrier pol- public liability by a covered days accident, two after and of the Indem- icy to him the American issued .ask, up further facts which enabled him to Company. nity That Insurance on the trial of the privilege contest, Garrison, employed the aforesaid Mr. following questions appellee, independent belonged to an firm of claim appellee receive from the following an investigators adjusters, get swers, is not revealed in the record: written statement on the This accident. accident, days appel- did two after the while “Q. fact, days As a matter of. two hospital. lee was still in the you gave the accident a. written statement form, was on the Texas its terms we Yes, gave A. I about I it? statement. appellee must assume that was bound to just when it don’t know was. possession give all information in his According “Q. you the written state- his insurer. And in that statement said that your grabbed ment which Mr. Garrison obtained left front brake and that is appellee, appellee Well, was headed west on what caused A. accident? I reads, just the statement further know what was in that highway, and don’t statement. No, hand, ques fact, there can be A. sir. On is a isn’t “Q. That it? if the was not tion that written statement say I so. wouldn’t admissible, privileged, it for it was sir; No, say A. “Q. wouldn’t You so? ap- testimony given by consistent with the that and I saying don’t recall because I pellee upon the Texas General trial. See I have, would— I because don’t think would Scott, Tex.Sup., Indem. Co. know. wouldn’t resisting In addition to limine, aforesaid motion thereafter when that? deny having said “Q. you now Do contrary testified Yes, sir, I I said think A. do. don’t the facts as stated in said state statement too recall I don’t about all. *4 ment, court to the had the withdraw in got there man down much. This came response appellant’s request. ap to And just down, wrote it the statement and pellant sought have the state to what was much about don’t remember too testimony of Mr. ment, the Garrison in it.” admitted, refused, court and when the took exceptions. bill his of questions the and answers given We have plea privilege relating on the trial of The author of beginning page a note and its to the aforesaid written statement 22 part of 660 A.L.R.2d states in “Accord- because, contents, on that occasion report weight authority, to the of a statement claim that such written did not by other communication made an insured to flowing privileged communication was liability company, his concerning insurance relationship. attorney-client In- from the may an event which be made the of a basis any stead, appellee made denied that he had against by claim policy, him covered the is causing his left front brake statement about privileged communication, be- being We will return to this accident. the attorney client, tween policy if the appellee, by denying discuss whether quires him through to defend statement, by failing such to having made attorney, and the communication in- is privileged, was the statement claim tended for the information or assistance of that the right to claim thereby waived * attorney in defending him. privileged. was statement merits, be- Appellee’s even trial on the insurance carrier’s Before attor urged chosen, appellee ney was did not defend claim against fore the court order say, in limine to have the But we are not able to his motion as a way any law, bring in not to out matter of that the trial aforesaid writ- the existence authorized find the written fact of statement in question or that Mr. Garrison had was in fact intended for ten Appellee based his statement. formation or assistance such taken insurance ground company’s attorney. statement on the motion not contended any the attor- and flowed from Texas privileged, court has rendered a deci relationship existing between in line with ney-client sion what the author of the position Appellee’s insurer. note his aforesaid announces to be the weight him and relationship authority, at- flowed as to the rule gives that such which un relation based on fact torney-client der certain circumstances the character of by give attorney-client bound to appellee was contract communication as to how such acci- made statement his written insured to his insur happened, and that such statement was ance carrier. Supreme dent The necessarily given so that same could be of Texas has ap Court been restrict the company’s plication at- privilege, rule of submitted because company, prevent torneys. The it tends to the full disclosure of the course, right Hyman Grant, the attor- had to choose 102 50, truth. v. Tex. 112 1044; 1042, should defend neys Neill, suit Flack’s Adm’r S.W. v. against. claim on insured Tex. brought 26

233 Fall, Tex.Civ.App. note McClure 42 author of the aforementioned v. The 821; State, hold v. Tex.Cr.R. the federal courts Roberts 107 also admits weight 609; 295 contrary Rodriguez State, S.W. 130Tex. to what he is the declares However, Cr.R. authority. 94 S.W.2d 476. accounts decisions ground that the that fact The evidence coun- under federal courts have been made sel, response questions in '26(b), Civil Pro- Rule Federal Rules limine, hearing of the motion in cedure, Apparently, from the U.S.C.A. effect, it, we construe had that he brief, only quoted by appellee note as in his knowledge of written statement until England of Ohio courts and New York and represented appel- several after he months conformity the note have held with what plea lant in the contest. weight authority. The re- terms question con- be determined us in this quirements order to are how to nection is not reconcile the knowl- qualify are a communication as edge appellant’s attorney’s questions Cir., S., set forth Prichard v. U. indicated that he had when he tried the require- setting F.2d 326. Without privilege, with that he had *5 out, enough ments it is that the to state no information that a written statement question could written statement here in existed, even so late as several months after holdings, qual- not, under the federal court ap- privilege the trial of the contest. The attorney-client ify an communication. pellee knew what statement he being He right asked about. waived his to claim hardly It cannot be is denied that it privileged by the' as claiming statement not shocking than that it be in the less should questioned. his must We power an company, insurance after it sustain appellant’s points. fourth fifth and liability, to in has received a release of way pass the an inter some information to Appellant’s first and second party that it has a statement ested written points complain appellee’s insured, that which, true, counsel from its if would bar jury argument their informed the insured from a claim as to recovering such on legal special their upon effect of answers to the happening, based such as a new trial we it hap issues. In view a deem imply We do collision. not that this may improper state not that counsel pened in this instance. if a state But group special any they issues in manner we ment as are here is not concerned with they argue as communication, logical deem be a to how held to should, be group, as a answered. But company against every duty jury they inform the effect if power an dealing fair would have it in its as ar swer the issues counsel give party such information to a third well, they far gues, might legal no could have or moral right thereto. concerned, However, is throw the verdict into we find is not basket, jury is to inform pass question. waste interesting for us to legal their This, effect of answers. because on the occasion of plea privilege, appellee did not had, privilege, if claim his he that the We think third attorney- statement flowed from point point written sustained. be should com He counsel, relation. he had plains discussing client admitted that issue, he personal made a but denied which was the the 37th dam issue, that it contained the the ac jury admission that ages appellant informed -faulty public cident resulted from his left protected by liability front insurance. right party is the literally brake. It of a to claim jury Counsel' did not inform the privileged, protected him appellant that a statement is insurance. deny cannot that he made such a But he said he didn’t think cared opening without the door so that damages how the answered the issue. adversary bring can out the truth. See for common “We ask consideration on (cid:127) counsel, agent "so that have found point,” insured.” said .We anyone authorities which is you or hold otherwise. meets when Mr. McMillan company, say what manifest that an if it they they care didn’t else—and issue, liable, and I admits that its insured is without you answered They consent, does, its insured’s is Hurley knowledge either. acting Mr. don’t think interest, agent other in its and the own and not as the up one man get and talk about party that, if bar insured. The insurer cannot conceivable man.” It is not defendant, $24,000 right damages insured’s recover the real true to a suit is injuries collision, by pay judgment, he would received in the will have to settling party answered to the claim other very much care what the $1,325. clear collision for damages issue. We bélieve company is in that an insurance intimation carefully We have the remain- examined equiva legal is the defending suit fact urged by appellant; they relate jury of such fact. informing the lent of upon to such matters as were decided And, course, if informed that appeal privilege, or to mat- by an insurance in fact the suit is defended likely trial, ters not to arise another mistrial. company, the court must declare the claim pleadings or to that the evi- Tex.Com.App., Spence, Kuntz v. See justify dence were insufficient to the sub- 256; Co. Oil Continental Appellee fully of issues. mission an- Tex.Civ.App., refused), (writ Barnes brief, swered such in his expres 494. We believe that .S.W.2d purpose each of good overrule them. No opinion won’t that Mr. sion of the' be extending would served further issue is answered how the care opinion length by discussing of this each *6 com an insurance clear intimation that point individually. Such pany pay judgment. have to the will withdrawn the an intimation cannot be Having sustained following up with the statement it three, counsel five, four and we reverse must issue in jury should answer the that judgment, court’s and remand the cause e : with the evidenc accordance for a hew trial. Reversed and remanded. overrule' We n six seven, complaining that Appellee’s Rehearing. On Motion for prove permit appellant would company settled nothing vague There was- about Mr. appellant claimed resulted (cid:127)damages which arguing Hill’s when he was negligence of from to-him jury, damages issue that he did not Appellant cites collision. causing Hurley think cared how an- Mr. payment by holding.that authority composed swered issue. A arising of a-claim under intelligent only men could have under- knowledge without the policy, made stood, believe, we from that statement be taken as the insured .can consent by liability protected in- Mr. negli that he against the insured evidence and so personally surance could not be It was held in the collision. gently caused personal damages affected however the is- Dairies, Campbell v. Coal Inc. Foremost was answered. To tell a of or- sue 279, 283, Ga.App. 500, Co., 196 S.E. dinary intelligence that the defendant in a “where, an insurance under damages suit did not care how thé loss arising the insured insures believe, is, answered the legal issue growing for out of claims from equivalent of stating that such defendant policy, by the the com covered accident protected insurance. claim, although pany, settling the, expressed adhere our conclusion settlement We the contract releases as, opinion, liability, original all not act our- does tes- sured 'be- he -was knew that he timony disclosed plea of questioned on

hearing about days two Garrison gave Mr. claim accident, by failing claim any right lost privileged. rehearing is for

Appellee’s motion

fused.

Scarborough, Yates,. Scarborough & Black, Abilene,. appellants. for. et al.

McDANIEL (McMahon, Springer, Walter, Smart & Abilene, for CO. FAIRBANKS SCALES GRISSOM,

No. Chief Justice. Abilene Livestock Appeals Auction Commission Court of Civil Texas. sued Fairbanks Company Scales dam- Eastland. ages. Before plaintiff trial cor- May 7, 1954. poration was dissolved and all of its assets acquired by were- Bob H. McDaniel Cráymer Reynolds, who were substituted *7 plaintiffs. alleged . Plaintiffs said auc- company purchased tion from defendant a set of purpose for the scales of weighing auction; livestock at said that defendant represented they built accurate scales that would record the accurate weight and computations; make the correct scales were installed under the direction of and were defendant delivered to said Com- Abilene; Company mission scales furnished defendant were de- register fective failed to weigh correctly and said failure occurred Tay- County; represented lor that defendant were fit for the use for scales which'they would, warranted; they were sold and accurately they do the work for which were they bought did not accurately n compute prices weigh thereof;. nor during April, the months May and. - June, the scales did not function cor- rectly -it and was for the Commis- sion-Company to' refund to its customers-