*1 relief under that could policy state of facts thereto The and endorsements proved complaint support be The of its claim. set out as an exhibit upon rec- de- not this was afford a warranted basis for an inference dismiss, justified in the ord to not may to treat was fendant continued have entering obligation summary judgment existing dis- after policy as an mortgage. fire The missal. learned of CCC February 7, The 1959. loss on occurred appeal upon Other issues raised $3,000. The insurance on totalled corn can trial best be determined after the opinion $1,250 such court’s shows that of this case its merits. paid for loss insurance to North was appealed order from reversed is mortgaged. corn on the not farm that was is direction this case remanded with 6,000 addition, more In than there was complaint to i’einstate the Government’s destroyed mortgaged bushels of corn try and to on merits. case explanation in the There is fire. no which record the circumstances $1,250 payment Defend- made. was payment such ant in its brief states that compro-
may of a have been the result entirely mise. But such statement support. speculative record and without probable defend- that the It seem would mortgage ant learned the Government payment made. $1,250 was before the Otherwise, CORPORATION, likely KIRBY LUMBER have would defendant Appellant, coverage paid $3,000 on North full the corn. vir, et Samantha Smart WHITE policy An endorsement attached Appellee. February and dated shows No. 18174. an crib insurance on elevator $5,000 said amount of is cancelledbecause Appeals Court of United States totally destroyed by building fire. was Fifth Circuit. apparently was the -crib in Feb. crib, stored. The the corn the corn was 31, 1961. Rehearing Denied March property all other described policy of insurance. same covered paid, loss the crib was fact If payment evi- would substantial support of waiver the claimed dence
forfeiture. April an endorsement was On calling policy insurance made to the $3,000 coverage an addi- additional policy premium. addition Such
tional premium of additional collection appear to be would inconsistent therefor policy was view with defendant’s of condition. for breach
terminated Enough been said demonstrate has present- issues are factual material could affect
ed, resolution The defendant this case. result of beyond doubt that demonstrated not
has entitled to would be no
the Government *2 Evans, III, Houston, Tex.,
Frank G. Cox, Joyce Fountain, Fox, Cox, & Gaines Pakenham, Houston, Tex., A. James Kirby Corp. appellant, Lumber Choate, Beaumont, Tex., E. Leonard Hillin, Liberty, ap- Tex., Robert W. pellee. TUTTLE, Judge, Chief Before WISDOM, Judg-
CAMERON Circuit es.
CAMERON, Judge. Circuit (hereinafter Smart White joined appellee), pro called forma her appellant McKinley White, disposed husband sued of his interest predecessor Kirby Corporation title, George for an undi- Lumber W. Powell. in four tracts vided one-fifth interest Appellant introduced in aggregating hundred one timbered land *3 County, land records of Newton Tex- Texas, County, ninety acres in Newton as, pursuant had to abstract of title it appel- by and for timber cut the value of filed copied under the Texas Statute being action, lant from land. The said infra, footnote a exe- series of deeds begun title, trespass try one in was cuted by and 1896 Dennis Smart was removed a state Texas and court of living and children, four by his grounds citizenship diversity of they partitioned the lands involved tried before the court below where it was conveyances action cross to each- jury. court and other; and conveying deeds to- the lands deeds, George Although W. Powell. these a denying motion for After forgeries, attacked as the court be- appellee verdict, directed made when evidently thought low there was not suffi- repeated rested and all the after cient evidence to submit their claimed in- in, the case was the trial court submitted validity jury, appel- to the as it refused issues, special four that, requested lee’s asking instruction appel- which the found in favor this be'done. The court admitted testi- judg- lee. Each filed a motion for mony to the effect that Powell was man a appellant ment on the and filed verdict good reputation integrity, for truth- judgment a motion notwith- also honesty, fulness and and there was no- standing the verdict and a motion contrary. new trial. The court denied all below conveyance A recorded was also intro- judgment up- motions and entered based duced in evidence which Powell con- jury’s special on the answers to the inter- veyed the here lands involved on March rogatories, appellee in which it awarded George 1902 to W. Carroll. The series of title an undivided interest one-tenth conveyances foregoing mentioned in the together land, damages in the in the paragraph were filed for record and re- $1,380.15 representing sum one-tenth corded at about the same date. As a by appel- of the value the timber cut part title, of its appellant chain of intro- lant and 1957. duced in evidence also three deeds which were a com- Smart and Harriet Dennis are argument claimed in her through whom both of title mon source forgeries: before us to be had chil- parties These two six claimed. (a) copy Certified of a deed dated Smart, in- son who died Enoch dren: February 28, given by and a child and while when he was testate Powell,, Samantha Smart to G. W. living; a Harriet were still Dennis daughter, acknowledged which was on the Kathy (sometimes known as Howard, date same before C. H. No- ap- Cassie), the mother of Katherine tary County, Public Newton White, pellee al- Smart who Samantha having was certified as been filed for Harriet; and Dennis and died before so duly record March 1902 and re- Marge Smart, Smart, J. D. Ed Samuel corded. Smart, Smart, Kizzie all of whom (b) original copy Photostatic father, their Dennis Smart. died after April 23, deed dated Den- from through Appellee own Smart, claimed to in- Smart, nis Samantha M. J. Harriet, Dennis her heritance and Kizzie Smart Smart to Houston grandmother, grandfather Shankle, an undi- duly certified clerk Manifestly County vided one-fifth interest. Court of Newton permitted her County to recover court below to have been recorded Janu- grandmother ary 9, heir of her as one-tenth 1901 in the land records of judgment entered, county. acknowledgment interest for was said grandfather grantors found after it that the the four was taken
gfiQ forgeries County Harger, under Article Vernon’s Clerk. M. John Code.2 It referred n Smart feme sole. Appellee stat- herself filed an affidavit ing upon Copy “that she believes to be (c) of Samantha oath: of deed n Smart White forged writing pur- dated the instrument H. T. Twine acknowledged porting supra], (a) February be a [item deed Westbrook, February, day dated the 28th 1902 Sam- J. W. same County, Smart, grantor Powell, Notary antha of Newton W. Public G. grantee July record on months later filed for Some Texas and attorney duly her stat- recorded. filed affidavit similar *4 investigation that “based his instruments All of these written following said cause he believes that the stat- in under the "been received forged writing instruments to be dealing with ute of the of Texas State ipkg attorney’s affidavit n ancient includ- documents,1 the and also appellee’s ed the instrument in covered making competent, evi- Texas Statutes affidavit, supra, partition deeds and bearing dence of instruments recorded the deeds to Powell executed in 1895- acknowledgment by grantor or due writings and other which the court person notary, Articles other before a below did not submit in its 3723 and Vernon’s Texas Civil interrogatories concerning Statutes. proof.3 there was little no or conveyances If the last mentioned were valid, had, undisputed appellant touching only testimony it is that The oral through conveyances, genuineness given them and mesne of the deeds was controversy. by appellee record title to the lands in herself. She testified challenged sign But some the deeds were as that she “never did make no no deed wills, opposite 1. party, Art. Rule 16. “Ancient and other days such unless or some person him, shall, deeds and other instruments than more for within three thirty years old, cause, when offered in evi- before the trial of the file dence, by stating unblemished an affidavit alterations and that he believes such coming custody writing forged. from such as a affords instrument to presumption any gen- party reasonable in favor of Whenever among to a suit shall file papers uineness with other circumstances of of the cause an affi- stating any corroboration, will be in admitted evi- davit that instrument of writ- proof ing, lost, aforesaid, without dence of their recorded as execution.” has been procure original, or that he cannot certified ,3726. 2. “Art. Recorded instruments ad- copy any of the record of such proof. mitted without shall instrument be admitted in evidence “Every writing instrument of which is original in like manner as the could be. permitted required or law to be re- such After instrument shall have been corded in the office of the clerk actually provided recorded as herein county court, been, and which lias period years, of ten it shall be no ob- may be, actually hereafter period recorded jection same, to the admission aor of ten book used of such copy thereof, certified that recording said clerk for the the certificate of the officer who took instruments, proved whether or acknowl- acknowledgment, such is not edged not, in such manner or shall be ad- required by form or substance such as any mitted as evidence in suit in this State; laws of this the ment shall be and said instru- necessity proving State without the its given the same effect as if execution, provided, no claim adverse it were not so defective.” or inconsistent to the one evidenced any such instrument shall do not have been assert- find the record af- years; charging conveyances provided, ed that ten fidavit let- give “(b)” “(c)” supra, such instrument evi- tered and re- among pa- Interrogatories dence shall file the same to in ferred 3 and 4 in- pers proposes fra, forged. However, appears of the suit in which he this days waived, use it at least three have been before the to tried on had been attacked the case was suit, theory commencement of the trial of that all ancient deeds give filing op- notice of such to the of an affidavit of for- posite party, attorney record; gery. or his [288] 3T.2d —36% (1) testi- “Did establish she her examination cross On [sic].” deeds,” and, “I title fied, claimed interest con- no “I did make never troversy?” no sir, no land said, ‘No, haven’t sold I ” Then, on redirect land.’
none (2) “Is substantial there evi- response to examination, testified she appellee’s appel- deeds dence sign you a deed question, “Did ever predecessors in lant’s title and to signed “No, no anybody?” sir, I never forged, appel- others were deed.” appear did not lee the officers ap- touching on the whose certificates are attached acknowledgment pearance of the exe- such deeds?” fol- deeds cution consisted (3) “Is bound questions lowing and answers: two ancestors, deeds of her under whom claims, recognize “Q. you know Mr. she Did ever Howard, title to the Howard? lands in suit ?” Homer H.C. (4) appellant acquire “Did title “A. hear talk him. I five, lands in suit under the ten *5 “Q. you Mr. Did ever know twenty-five year and statutes of limi- Casey? Thomas ?” tation No, sir.” “A. argued points by appellant were jury submitted to four The Court the properly objections preserved by to testi- interrogatories jury’s which, the mony charge court, and to the of the or copied margin; answers, in and are requests its that the court below sub- charge gave it an extended oral jury interrogatories mit to the nineteen jury explaining statu- the various Texas covering special issues, all which spe- tory presumptions under which the rejected refused the court below. interrogatories were cial submitted. proper below, It was for the court in argues Appellant specifications seven discretion, exercise of its to submit which, brief, groups in its un- upon special error it to issues, the case questions: der four concluded it that if had estab- “Interrogatory “Interrogatory 1: No. No. 3: “(a) you preponderance you preponderance find from a “Do Do find from a that Dennis mar- the evidence Smart was the evidence that Samantha Smart (Defendant’s at Harriet Smart the times the executed the ried to White deed Ex- controversy were, 6) April 23, 1900, pur- in herein con- hibit No. lands dated porting convey veyed Him? 60 acres of the J. S. Tompkins Survey “Answer: Yes. to Houston Shankle? “Interrogatory 2:No. “Answer: No.” “ you preponderance “Interrogatory (a) No. 4: find from Do you “(a) preponderance that Do find Samantha Smart (Defendant’s the deed the evidence that executed Samantha White Smart 28, 32) February (Defendant’s dated executed Exhibit No. White the deed convey 55) purported February 6, 1959, No. all of the un- Exhibit dated which purporting convey in [sic] Samantha Smart divided interest H. T. controversy Twine acres of land lands in herein G. W. located in Tompkins Survey John S. in Powell? Newton County, Texas? No. “Answer: you preponder- “(b) “Answer: No.' find from a Do “(b) you preponderance Do that find from a Samantha ance appeared O. the evidence that before H. Smart White Smart Notary appeared Howard, Westbrook, in and J. W. A Public for White Notary County, April Texas, on Public in or' about and Newton Coun- Newton Texas, acknowledged ty, February 6, 1922, on or that she ex- about acknowledged question deed referred she to in ecuted the executed the interrogatory? question (a) (a) referred to in deed of this of this interrogatory? No. “Answer: No.” “Answer: fifty sufficient substantial the more than her case her con- lished standards, veyance really by proper record, Powell measured was proce made asserted claim to title to warrant submission. 49(a), claim, delayed long provided by F.R. whether her was Rule so dure is discussing really good Civ.P., Particularly Before faith. 28 U.S.C.A.5 according true proceeded special connection inter- whether court determining rogatory requested by appellant there was whether to law Code,7 Article submission 5519a of to warrant Vernon’s which sufficient evidence point jury, out refused the court below. issues we was of the in the submis it committed some errors find, too, be record require would, opinion, which our sion clearly fore us does not reveal that a reversal. applied court standards correct passing motions below the court We think judgment for directed notwithstanding verdict and testimony handling in its erred the verdict. The touching possession admitted was properly acted on bur the thesis that the including through years, of the lands of proof den is a matter of substance payment It them. evi of taxes on therefore, governed diversity is, in a case thought that, dently if found law, by the State Cities Com Service Oil or instruments the instrument pany Dunlap, 1939, U.S. divested was claimed S.Ct. 84 L.Ed. see forged, title had herself of title had been general subject by discussion of the Pro throughout, appel in her remained fessor Moore his work on Federal predecessors its in title were lant and *6 Practice, 0.314, pp. Vol. Par. et 3305 joint nothing or than ten more tenants seq. principle embraces various the appellee, in common so that ants applied by statutes the court be Texas occupancy to could not adverse their be raising presumptions and low counter the undivided and interest the respect presumptions with to instruments by Even if assume her. we this claimed appearing upon the land the records and true, up incumbent we think it was be to proof by parties offered the in connection 49(a) under the court below Rule therewith. “give jury explanation to the such and to concerning” Appellee the evidence of instruction stakes her main reliance upon possession supra, would have enabled the which Article footnote 2 claiming terms, jury to consider this deter under evidence its her affida charging mining ever, attorney whether fact vit and that of her may “(a) Special l)y 5. Verdicts. court 7. “Art. lim- The 5519a. Title to land require jury special to return itation special involving form of a “In verdict the written all suits tbe title land upon by finding State, issue of fact. In that not the if each claimed it be shown may jury holding apparent the submit the the event those record questions susceptible categori- of may title thereto have not exercised dominion written paid answer land or or other brief submit over such have not cal taxes special thereon, years during the forms several one more written findings twenty-five might properly period pre- which be made next ** filing pleadings evidence; ceding during and of such suit and give jury parties period opposing shall to the such ex- such The court and they concerning planation instruction those whose estate own are shown may openly as neces- to have exercised thus submitted dominion over matter jury paid sary its find- and asserted claim to same and to enable the make have * * * annually upon ings issue. taxes thereon each becom- ing delinquent many twenty- as as years during Casualty Bluitt, Cir., period, Angeline five such such Co. facts prima proof 764; facie Jackson et al. v. shall constitute F.2d passed per- King, Cir., 223 F.2d the title thereto had exercising Casualty over, Employers sons dominion Mutual Co. v. John so claim- paying Cir., 1953, son, thereon.” taxes F.2d 153. forgery placed upon appellant jury to consider the execution of burden prove proven. par- attacked the instrument ty that the instruments as forgeries. impeaching were not The decisions deed must sustain by pleading le- his If this statute are lawful evidence. Texas Courts under gion.8 Jurispru- proof quote he introduces no whatever from Texas seq., (the being evidence), Deeds, dence, 14-B, pp. 535 et affidavit not Yol. opposing party proves giving estab- a distillation of the rules as making respect to of the deed in accordance lished decisions with Texas prescribed with some of the modes the statute: “ law, genuineness the common not does The burden jury of the deed is established. The party the other. shift from one proof in the absence of all offering the It remains on the contrary could not find otherwise.” weight though deed, apparently The court may below construed to side shift side merely placing upon appel- according statute the trial nature going lant the burden strength sup- forward with proof offered which entitled the in- port to be written or denial the main fact struments involved to established, viz., be received in evi- the execution dence, with the the decision idea deed. thereupon should be based the facts evi- where “It seems that cases presumption evidence unaided respective by the dence is introduced respect to the facts. This illus- tending parties, prove and to dis- trated the court’s actions in connec- fact, prove the occasion the issues tion with the series of deeds upon whom not arise to declare will partitioned Smarts these lands in ques- proof rests. The the burden of conveyed 1895-1896 them to Powell. merely pre- one tion then becomes Appellee filed a praying motion that these ponderance is for conveyances, among others, be stricken. under all the the decision requested special She also a number of introduced, whether direct charges calling upon to deter- *7 or circumstantial. forgeries. mine whether said deeds were particular of a “Under facts court overruled the motion and re- may error, however, requested charges. not be case fused all of the proof finding that, where there is sufficient amounted to the as to that deed, permit deeds, of the introduction series of appellee properly the instrument court to allow not offered sufficient evi- jury prima go to the facie a dence to make out a jury case for deci- genuine ; The courts that, instrument. sion and to a decision as a matter speak law, writings forged. of the burden of sometimes had not been ‘shifting’ proof assail- We think this attitude and action of the genuineness ing instru- proper. trial court were meant, however, is is ment. What We are left in doubt whether going burden of ahead applied court the rule established passes the evidence from one with proof courts that Texas that a deed party to the other. forged requires is plain more than the deed, copy testimony a certified alleged “When a uncontradicted thereof, admitted, properly sign is in the maker he did deed, not subsequently signature of evidence signature. re- that the absence is not his tending question to show that the ceived deed the deed If edged has been acknowl genuine, may a is not court instruct before an officer whose certificate briefs, parties good percentage have filed us five 8. The with a of which deal with approximately them cites [md one of this statute. Courts, eighty cases decided Texas
573
only may
Gunning Cooley,
thereto,
the valid-
automaton.
281
not
v.
is affixed
90,
231,
the certifi-
U.S.
50
L.Ed.
proved
S.Ct.
74
ity
deed
notwithstanding
determine,
acknowledgment,
720. He
‘not
must
cate of
genuineness
literally
proof
of the
whether there
no evi-
is
of the
failure of
dence,
any upon
signature
grantor,
v. Ol-
but
Stout
whether there is
jury
proceed
iveira, Tex.Civ.App.1941,
properly
can
153 S.W.2d
Tex.Civ.App.
party produc-
find
590;
Raphael,
a verdict for the
McAllen v.
requirement
Co.
it.’
Houston Oil
‘The
96 S.W.
probative
Cir., 1914,
Goodrich,
capable
sup-
is for
F.
facts
Texas v.
porting,
proof
reason,
136, 139,
the conclusion
but the standard
* * * 9
submitting
expressed in the verdict.’
the court must find before
genuineness
jury is
the issue of
We are not unmindful of the fact that
unmis-
clear and
“the
must be
agree-
the rule in this circuit
not
Oliveira, supra, takable.” Stout v.
elsewhere,
ment
followed
Dick
page
S.W.2d at
Co., 1959,
York
New
Life Ins.
U.S.
437, 445,
79 S.Ct.
L.Ed.2d 935.
in this
It is further established
rule,
We adhere to our
confident that it
quality
quantity
circuit
proof necessary
that the
is the correct one.10
to make out a case
submission
to a
in a federal
While the
Amend
are determined
the Seventh
the record before
on the
issues
vital
us
ment to the
of the United
Constitution
we have discussed is weak indeed under
States,
Pro
the Federal Rules
Civil
recognized
principles long
in this
cedure
the decisions of the Courts
Court,11
judgment
we do not render
here
States, Revlon,
the United
v. Bu
Inc.
Instead,
favor.
did
as we
chanan, 1959,
795, 800,
271 F.2d
and cas
Theriot,
judgment
we order the
re
es therein cited.
cited there the
entry
versed. and the case remanded for
leading case of Reuter et al. v. Eastern
judgment unless,
of such a
within time
Lines,
Cir.,
Inc.,
Air
F.2d
and under
conditions
be fixed
general
445-446, which stated the
judge, appellee
district
a satis
makes
rule thus:
factory showing that,
trial,
on another
determining
“In
whether there is
probative
evidence of sufficient
force to
sufficient evidence to take the case to
justify
submission of the case to the
jury,
judge performs
a federal
offered;
judg
will be
in which event the
judicial function and is not a mere
ment shall be for a
trial.
new
following
*8
9. And see also
agreement.
Moore,
cases
this lack of
Professor
Pogue
circuit:
v.
paragraph,
Great Atlantic
in his first
states what seems
Co.,
575;
1957,
& Pacific Tea
subject:
F.2d
to be his conclusion on the
“In
Pass
al. v.
et
Firestone
&
Tire
Rubber
Herron v. Southern Pacific Co. [283 U.S.
1957,
914; Royal
Co.,
91,
383,
857],
F.2d
Indem
51 S.Ct.
L.Ed.
diversi-
nity
1958,
Curtis,
329;
ty case,
Co. v.
256 F.2d
the court
ruled that a federal
verdict,
and E. I. duPont de Nemours &
proper
Co. v.
court could direct a
when
Kissinger, 1958,
411;
259 F.2d
principles,
although
Theriot
common
law
Mercer, 1959,
754;
v.
262 F.2d
Conti
under state law the issue had to be sub-
Casualty
Holmes,
1959,
jury.
nental
Although
Co. v.
mitted to the
this case
269,
prior
266 F.2d
certiorari
denied
Su
was decided
to Erie [Erie R. Co. v.
preme
26,
Tompkins,
64,
Court of
United States Oct.
304 U.S.
58 S.Ct.
1188],
361 U.S.
80 S.Ct.
4 L.Ed.
L.Ed.
it has been followed since
Bridge
2d
carefully
Nashville
courts
Co. v.
Erie
that have
con-
Ritch, 1960,
tions. Party-
On Motions To Substitute Rehearing. Appellee And For
PER CURIAM. considering sub- Upon motion together no- party appellee, stitute appear- opposing party, tice to the made, be should that the substitution against substitution and no said cause McKinley being shown, it is ordered surviving White, sole husband as the surviving Sa- law of heir at hereby White, and he mantha Smart place appellee in the is substituted as White, de- and stead of Smart proceed
ceased, and this cause now in the name of said substituted
McKinley White. considering petition
Upon appellee’s rehearing, and decreed it is ordered hereby petition be and same that said
is denied.
George FISCHER, Petitioner, INTERNAL REV-
COMMISSIONER OF ENUE, Respondent.
No. 13312. Appeals
United States Court Third Circuit.
Argued Dec. *9 April
Decided