author: LANGDON, Chief Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Roy WOODALL, Appellee.
    No. 5524.
    Court of Civil Appeals of Texas. El Paso.
    April 4, 1962.
    Rehearing Denied April 25, 1962.

      Snodgrass, Smith & Rose, Frank W. Rose, Jr., San Angelo, for appellant.
    Warren Burnett, Odessa, for appellee.
   LANGDON, Chief Justice.

This was an action by Roy Woodall, ap-pellee, against The Travelers Insurance Company, appellant, to recover the maximum amount allowable for total and permanent disability under the Texas Workmen’s Compensation Law, with judgment being rendered therefor upon the jury’s verdict. A lump sum award was denied upon the jury’s failure to find hardship.

Appellant has predicated its appeal upon five points of error. In the first two points appellant contends that the trial court erred in submitting Special Issue No. 14 and in failing to grant appellant’s motion for new trial, first, because there was no evidence to support the submission of such issue, and secondly, because the evidence was insufficient to support the submission of such issue.

The appellee, Roy Woodall, was allegedly injured on the first day of his employment for Yale E. Key Oil Well Service Company. He admittedly had not worked in the same or similar employment for substantially the whole of the year preceding the claimed injury, and therefore attempted to establish his average weekly wage under subsection 2 of Section 1, Article 8309, Vernon’s Ann.Tex.Civ.St. Special Issue No. 14 of the court’s charge, and the jury’s answer thereto were as follows:

“QUESTION NO. 14: Do you find from a preponderance of the evidence, if any, that there was one or more, employees of the same class as Plaintiff working substantially the whole of the year immediately preceding the date of Plaintiff’s injury, if any, for the same or another employer, in the same or similar employment, in the same or a neighboring place?
“Answer: ‘Another employee has so worked’ or ‘Another employee had not so worked’.
“ANSWER: Another employee had so worked.”

Appellant objected to the submission of Special Issue No. 14, both on the ground that “there was no evidence” and on the ground that “there was insufficient evidence” to support the same. On motion for new trial, appellant urged the same objections against the court’s judgment based on the jury’s answer to such special issue.

It is noted, however, that the trial judge submitted the wage issue arising under subsection 2 in both affirmative and negative form. Special Issue No. 15 (not answered) made the same inquiry of the jury as Special Issue No. 14, but was submitted in negative form and was to be answered by the jury only in the event that it answered Special Issue No. 14 “another employee had not so worked.”

The cause of action alleged here arose prior to the amendment of Article 8309, Section 1, by the Texas Legislature, in 1959, and the case was tried and submitted to the jury under the statute as it existed prior to the amendment thereof.

It is appellant’s contention that sub-section 2 of the statute requires that the average weekly wage of an injured employee shall consist of the wage or salary of an employee of the same class earned in the same or similar employment, and that it is not sufficient to show that another employee was engaged in the same or similar work, but it must also be shown that such other employee was of the same class as the injured employee.

The proof offered by appellee on the wage issue consisted of the testimony of one Frank Sandell, who testified that he was Field Superintendent for J. P. (Bum) Gibbons, Inc., a company principally engaged in operating well service units. This work involves the pulling of pipe, tubing and rods; the same type of work that appel-lee’s employer, Yale E. Key Oil Well Service Company, was performing on a lease near Big Lake Texas, on September 21, 1958, when appellee allegedly suffered the injuries which gave rise to this litigation. Sandell testified that he had two employees, each of whom had worked on a well servicing unit in the area around and out of Big Lake for as many as 300 days during the 12-month period immediately preceding September 21, 1958, the date of the alleged accident. One of these employees was a unit operator, who earned in excess of $8,000.00 during this 12-month period; the other was a “swamper”, who earned more than $5,000.00 during such 12-month period.

The evidence in this case reflects that appellee was working as a “floor hand” on a well servicing unit at the time of the alleged accident. He was certainly not the operator of the unit; the work of a unit operator having been shown to be equivalent to that of a “driller” on a drilling rig, in that they each run the unit, or rig, and presumably the work of the “floor hands” is performed under the direction of the operator. We do not believe that a “unit operator” and a “floor hand” can be considered employees “of the same class” as required by the statute, even though it may be said that they were engaged in the same or similar employment. If we are correct in holding, as we do, that a “unit operator” and a “floor hand” are not employees “of the same class”, the testimony of the witness to the effect that another employee (who was not a “floor hand”) had worked as many as 300 days in the twelve months immediately preceding the date of appel-lee’s alleged injury would be of no value for the purpose of determining the wage rate of a “floor hand”, and if this had been the only testimony adduced on the trial, we would be required to sustain appellant’s point based on its contention that there was no evidence to support the jury’s answer to Special Issue No. 14.

A somewhat different problem is presented in a determination of the question-of whether a “swamper” and a “floor hand” are employees “of the same class” within the meaning of the statute. On the rig (the oil well service unit) both employees are “floor hands”, and the work of the “swamper”, while the rig is in operation, is like that of any of the other floor hands. Appellant does not contend that the., “swamper” is paid a higher hourly wage, rate than a “floor hand” or that his work on the rig is different from that of any other floor hand. Appellant simply contends that the swamper was apt to work more than a regular floor hand, because in this record it was shown that the swamper,, together with the unit operator, worked every time the well servicing unit went out on a job, and that the regular floor hands only worked on jobs requiring four-man crews. Appellant also contends that the swamper had to know how to drive a truck, and since he might be expected to work more days than the other floor hands, he would consequently earn more money. Therefore, a swamper was not of the same “class” of employees as appellee.

We would overrule this contention. The record in this case reflects that both the swamper and the appellee worked as floor hands on oil well servicing units. If a valid difference existed between the two employees, it is one of personality rather than of “class” and, in our opinion, it is the result of a situation where the particular -operator of an oil well servicing unit, having the authority to do so, habitually chooses one individual member of a single class of employees in preference to other employees of the same class whenever the work to be performed requires less than a crew of four. Where it is shown that there is no significant difference between several employees of the same class, the fact that one employee is sometimes favored over another does not remove the favored employee from the class of employees in which he normally belongs. The fact that a baseball player may prefer one bat over another, and therefore habitually uses the same bat, does not, of itself, remove the batter’s favorite bat from other bats of the same class to which it belongs.

We hold that there was evidence that appellee and the swamper were employees of the same class. The question, however, was close, and the issue was disputed. Under the circumstances, the trial court very wisely submitted the disputed issue in both the negative and affirmative form, and the jury answered the affirmative issue in favor of appellee. Having reviewed the entire record, we have concluded that the evidence is sufficient to support the jury finding on Special Issue No. 14, and we overrule appellant’s points numbers 1 and 2, attacking such finding and the judgment based thereon on the grounds of “no evidence” and “insufficient evidence.”

The evidence in this case shows that the duties of the swamper were quite similar to those of appellee. It has been held that the statute does not require proof that the labor in which the other employees engaged in the preceding year be identical with the work in which the injured employee was engaged at the time of his injury. “It is sufficient if the labor engaged in by them was of the same class.” Texas Employers’ Ins. Ass’n v. Butler, Tex.Civ.App., 287 S.W.2d 198 (error ref,, N.R.E.); Texas Employers’ Ins. Ass’n v. Robison, 241 S.W.2d 339 (no writ history).

Appellant’s third point of error is based on the contention that the trial court erred in submitting the following special instruction to the jury, because the same was in the nature of a general charge and a comment on the weight of the evidence:

“You are instructed that a person cannot be in law totally and partially disabled at the same time. If the plaintiff was totally and permanently disabled to labor, he could not be partially disabled to any extent for any period of time; stating it another way (meaning the same thing), if plaintiff was partially disabled to any extent for any period of time, he cannot be totally disabled for the same period of time.”

Appellant concedes that the above quoted instruction might properly have been given after a conflict had occurred in the jury answers to the special issues to which it pertained, but challenges the trial court’s right to give such special instruction before any conflict occurred.

The precise instruction has been given in at least two Texas cases after a conflict had occurred, and in each instance was held to be a correct and proper instruction. Traders & General Ins. Co. v. Nunley, Tex.Civ.App., 80 S.W.2d 383 (error ref.); Traders & General Ins. Co. v. Carlile, 138 Tex. 523, 161 S.W.2d 484 (Comm.App.).

In the Carlile case the Commission of Appeals, in an opinion adopted by the Supreme Court, discussed the applicable statutes (Articles 2189, 2198, 2185 and 2197, V.A.T.S.), which have since been adopted (either without change or with only minor textual changes) as Rules 277, 286, 272 and 285, Texas Rules of Civil Procedure. In passing on the questions there involved, the court held:

“We conclude that the giving of the charge in question is not the result of a prohibited procedure. * * * the charge is not subject to the criticism either that it is on the weight of the evidence, or that it is a general charge not permissible in this, a special issue case.”

Further, the court made it quite clear that it was immaterial whether such charge was given in its original instructions before any conflict had occurred, or after such conflict had arisen, saying, at page 487 of 161 S.W.2d of the opinion:

“Nor is it material that he give such instruction when neither the jury nor the parties had requested additional instructions. * * * The trial judge in giving the jury in writing the explanation in question did no more than is enjoined upon him in general by that provision of article 2189 (Rule 277, T.R.C.P.) with respect to submitting ‘explanations and definitions of legal terms.’ ”

Appellant’s third point is accordingly overruled.

Appellant’s final points (Points Fourth and Fifth) are based on the contention that appellee’s counsel, in final argument to the jury, committed harmful reversible error by commenting, over appellant’s objection, that a material witness for appellant, whose testimony was taken by written interrogatories, was not produced before the jury to face them on cross-examination; and in giving his (counsel’s) own unsworn testimony as to the ability of the appellant to produce witnesses, if there were any, to contradict the testimony of the appellee.

The argument complained of is preserved by bill of exception and is as follows:

“The next doctor we heard from didn’t appear, and of course, that is for you to take into consideration, whether that makes any difference. It was obvious to you from the testimony — ”

Appellant’s counsel immediately objected “to anything about the doctor testifying by deposition” on the ground that it was irrelevant; that counsel was commenting on Doctor Connery’s deposition and that it was improper for counsel to “make any reference as to why he (Connery) wasn’t here or anything else in the jury argument”. Appellant’s objection was overruled after appellee’s counsel had stated to the court, “I am not going to say why he wasn’t here. I am not going to argue that * * *. I am going to argue the result of his not being here.” Thereafter, appellee’s counsel argued as follows:

“I want to point out to you that when a man testifies by deposition, whether he be Doctor Connery or any other witness, that there are certain things that aren’t going to happen to them. One is: He is not going to be exposed to any contradiction by cross-examination.”

Upon objection, the trial court immediately sustained the objection and directed the jury not to consider that part of the argument.

Counsel apologized and stated:

“When I said ‘cross examination’, I made a mistake. I was talking about the kind of cross-examination where the witness is confronted — where the Plaintiff is confronted by the witness.
“Now, does that or does it not make some difference? The cold words on the written page may permit several interpretations in your mind, but, surely, cross examination as I think of it, might have made some difference in Doctor Connery’s testimony
“Also, it was apparent from everything that happened, Doctor Connery was here the last time. Some how or another, he was able to break away and appear at the last trial. He was not able to appear for this trial. I am not permitted to go into the reasons why he was not here. I am simply pointing out to you that he was not here, that he was not called upon to look at any x-rays and say anything about them, even though the x-rays are here. All we have are the cold questions and answers, and which questions and answers, I think, fairly interpreted, do indicate an injury, and I think you know that is the effect of his testimony.
“Now we heard from Doctor Dris-cill last. Doctor Driscill was able to be here and was able to be cross-examined, and I ask you, particularly, to take into account the effect of that cross-examination.
“Wasn’t his testimony, in chief, his direct testimony, just about as effective as the written questions and answers Doctor Connery put — put before you by Doctor Connery’s deposition? And, what happened to him when he got on cross-examination? Reluctantly, he admitted that all of the objective findings which were made by Doctor Tull were sure enough there. He admitted he wasn’t trying to tell the jury that this injury was not the cause of the objective findings, which he found in the x-rays.”

The only objection made by appellant to this entire line of argument was as follows:

“Your Honor, I object to that. The Doctor’s opinion was that this injury was not connected — the findings he found were not connected with any injury, as related by Mr. Woodall.”

In overruling the objection, the court said: “I think it is a matter of argument. I will let you proceed. It is for the jury to determine what was said.”

The foregoing quotations are all from the opening argument made by Mr. Taylor, one of appellee’s counsel. Closing argument was made by Mr. Burnett, another attorney for appellee, during which counsel for appellee made the following argument:

“They want to talk about the testimony of Doctor Connery off up there in Midland, Texas, who either could or would not come down here and face you on cross-examination, — as he did before.”

The trial court sustained an objection to this line of argument and instructed counsel as follows: “You could argue he did not come to testify; not that he would not face you on cross-examination, Mr. Burnett.”

Assuming (without so holding) that the argument complained of was improper, it is now well settled that before a judgment will be reversed because of arguments of counsel, the argument must not only be improper, but it must be such as to satisfy the reviewing court that it was reasonably calculated to cause, and probably did cause, rendition of an improper judgment in the case. Rule 434, Texas Rules of Civil Procedure; Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596; Texas General Indemnity Co. v. Bledsoe, Tex.Civ.App., 344 S.W.2d 527 (error ref., N.R.E.).

We have considered all the argument set forth in appellant’s bill of exception, together with the entire record on this appeal, and are of the opinion that the remarks and argument complained of here, taken either separately or collectively, were not of such prejudicial or inflammatory nature as to cause the jury to render an improper verdict.

We have also carefully considered appellant’s contention that appellee’s counsel, in closing argument, gave his own un-sworn testimony as to the ability of the appellant to produce witnesses, if there were any, to contradict the testimony of appellee. No useful purpose would be served in setting out that portion of the argument in this opinion. Appellant made no objection to such argument until it was assigned as error in appellant’s motion for new trial. If there was error in such argument, in the absence of any objection having been made to it at the time, we are of the opinion that such argument was not of the character that would warrant this court in ordering a reversal thereon, especially where no objection or other exception was taken at the time the alleged improper argument was made.

Appellant’s points, and each of them, are overruled, and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Q. W. McCORD, Appellant, v. SOUTHERN DISTRIBUTING COMPANY, Appellee.
    No. 10947.
    Court of Civil Appeals of Texas. Austin.
    April 4, 1962.
    Milburn, Bell, Knight & Barnes, Odessa, for appellant.
    Gay & Meyers, Clark, Thomas, Harris, Denius & Winters, John Coates, Austin, for appellee.
   HUGHES, Justice.

The principal question presented by this appeal, and the only one determined by us, is whether or not Alfred F. Schmidt, an employee of appellee Southern Distributing Company, was acting within the scope of his employment when he assaulted appellant, Q. W. McCord. It is our opinion, under the authority of Texas & Pacific Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236, that he was not so acting, and that the judgment of the Trial Court should be affirmed.

The suit was against the employee, Schmidt, and his employer, Southern Distributing Company. ' Trial was to a jury which found that Schmidt was acting within the scope of his employment when he assaulted appellee, and that the resultant damages were $7,000.00. On respective motions, judgment was rendered against Schmidt on the verdict and for appellee notwithstanding the verdict. .Schmidt did not appeal.

Southern Distributing Company tyas the dealer for Falstaff beer in Travis County.

Appellant operated a package store in Austin where he sold,liquor and beers.

Schmidt was employed by appellee as its “good will man,” sometimes called its “contact man.” His' duties were to go out in the trade and create good will. This was sought to he accomplished by visiting taverns, buying Falstaff beer for its patrons, and by calling on package stores. It was also Schmidt’s duty to> place advertising in taverns and stores.

Schmidt had been informed that the Falstaff sign in appellant’s package store had been removed and he undertook to have it restored.

On the day of the assault there was a meeting at Pioneer Drive Inn, in Austin, of people interested in the outcome of a pending wet-dry election. If the drys won, appellant’s package store would have been closed. He attended this meeting, as did Schmidt. When the meeting was over, Schmidt approached appellant and suggested that they go to the nearby Split Rail, another tavern, for another beer. They went, and while there Schmidt brought up, with McCord, the matter of the sign, Schmidt testifying: “and we ordered a beer and had it, and things were going along pretty good, and I just asked him, thought it would be a nice time to step in and maybe he was in good spirits, and I might catch him off balance, or something, and he would let me put my sign back in there which, I mean, you always try.”

Appellant refused to agree to replace the sign, and testified in this regard:

“A Mr. Schmidt told me that he wanted to put the signs back in the store and the displays in the window, and I told him I’d rather not. Then he got loud about it, and wanted to know why, and I told him why — that he had his favored ones, — to put them in his favored retailer’s place and it would be perfectly all right with me.
“Q Did anybody get mad at anybody over there at that time ?
“A I wasn’t mad. He didn’t seem to be mad about it. He talked a little loud about it.
“Q Did you finish that beer and have another beer with him?
“A Yes, sir.
“Q Following that, what did you do?
“A Well, every once in a while he would say something about it, — whether I was going to let him put this sign in or any displays, and I said ‘No.’ Well, he says, T am going to take it,’ and I said, ‘Well, if you do, you will have to take it.’ ”

By “favored ones,” appellant meant that appellee was selling beer to his competitors cheaper than to appellant. This accusation was denied by Schmidt, and the evidence is in dispute as to whether or not appellant called Schmidt a liar in this connection. The implication, however, that Schmidt was not telling the truth was plainly made by appellant.

After about an hour at the Split Rail, Schmidt asked appellant to take him in his car back to the Pioneer. The unsettled argument about the sign was renewed while in the car. We quote appellant:

“Q Did the discussion continue as you rode back to the Pioneer?
“A It didn’t start until we got almost to that last light within about a half block of Pioneer.
“Q And do you remember what was said then — how did it start up ?
“A He said, ‘Well, you are not going to let me have this display ?’
“Q Then what did you say?
“A I said, ‘No, absolutely.’
“Q And did you tell him again why you would not?
“A I told him again, as I have told you before — ‘No.’
“Q Did you say, ‘No; give that to-one of your favorites’?
“A Yes, I did.
“Q Did he reply to that?
“A Yes, sir.
“Q What did he say?
“A He told me that he was going to whip me.”

Appellant did not take the whipping threat seriously. When the car reached the Pioneer and stopped Schmidt got out of the car, went to appellant’s side of the car, opened the door, and assaulted him.

Neither Schmidt nor appellant was intoxicated.

Our decision is based solely on the ground that Schmidt in the performance of his duties as appellee’s employee was not authorized to use any degree of force in their performance. This, the use of force, we understand to be an essential requirement of liability of an employer for an assault by an employee, even though the employee at the time of the assault was engaged in furthering the business of his employer. Hagenloh, supra. In that case a special agent, Houghland, for the railroad, assaulted a baggageman, Hagenloh, for the road whom he suspected of theft. The assault occurred off the railroad property and when the baggageman was not on duty. We quote from the opinion the circumstances of the assault: “When he (Hagenloh) was walking up the street or road after leaving the cafe and had reached a point about forty feet north of the railroad tracks, he heard someone call him. He stopped, and Hough-land came to him and said: T want to talk to you about the baggage incident.’ Respondent said: T don’t think that this is the place to talk about it. I would like to have an investigation, which I have asked for, and probably will get.’ Then in the words of respondent’s testimony the following: ‘He said “I don’t need an investigation. I have made up my mind to find out right now, right here, right now.” He said “you are a thief and you belong in the penitentiary.” and I said — I don’t remember just the exact words, I said “well, how come?” And he said “Judge Schmidt told me.” And I said “that is a lie.” With that, as I was talking to him, had started around and trying to walk in the same direction I had originally started, turned away from him and when I said “that is a lie”, he hauled out and hit me with his right hand.’ ”

In holding that the railroad company was not liable for the assault by its special agent the Court stated:

“The nature of the employment may be such as necessarily to involve at times the use of force, as where the employee’s duty is to guard the employer’s property and to protect it from trespassers, so that the act of using force may be in furtherance of the employer’s business, making him liable even when greater force is used than is necessary. * * *
“In this case the evidence is that Houghland was a special agent of petitioner, whose duties were to protect petitioner’s property, investigate trespassers, claims for damages, and for missing baggage or other property and undertake to find missing property. In his acts in relation to respondent Houghland was not engaged in protecting the railway company’s property from trespass or otherwise. He was investigating for the purpose of finding property missing from baggage. His duties in that respect were not of such nature as to involve the use of force, and there is no evidence in the record tending to prove that he was authorized to use force in the performance of those duties. And so it seems that in this respect respondent failed to prove a fact essential to recovery by him against petitioner” (Italics ours.)

There was a dissenting opinion in Hagen-loh by Associate Justice Smith, joined by Associate Justice Sharp and Associate Justice, now Chief Justice Calvert, in which it was stated:

“We understand the majority opinion to say, in effect, that an employer can never be liable for an assault and battery committed by his employee unless the employee acts pursuant to an authority, general or limited, which permits the use of physical force to some degree. Consequently, Houghland could not, in the majority’s view, have been acting within his general investigative authority because the majority found ‘no evidence’ that he was authorized to use physical force against persons in obtaining information for the company.”

We agree with this appraisal of the majority opinion by the dissenting Justices.

There is no evidence in this case that Schmidt was authorized to use force in the performance of his duties as “good will man” for appellee. His title refutes the idea.

Appellant relies, principally, upon the cases of Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880 and H. T. Cab Company v. Ginns, 280 S.W.2d 360, Galveston Texas Civil Appeals, writ ref., N.R.E.

The Houston Transit case was prior to Hagenloh and was discussed by the Court in that case. As stated by Justice Smith in the dissent in Hagenloh, “The most impressive negation of the idea that there must be some authority to use force before an assault and battery can be within the scope of authority is Houston Transit Co. v. Felder (cited above). There is no indication whatever in that case that the bus driver was authorized to use any amount of force in obtaining information about the collision.” The bus driver there hit the driver of a car which had collided with the bus when such driver failed to give the bus driver desired information.

If the persuasive dissent in Hagenloh could not dissuade the maj ority from declaring its “rule of force,” it would be presumptuous for us to attempt it. We follow Hag-enloh and its “rule of force.”

The H. T. Cab case is subsequent to both of the Supreme Court cases above mentioned, but does not cite either of them. It was a case of a cab driver shooting his passenger to collect a fare. The employer of the cab driver was held liable. We do not know upon what ground the Supreme Court approved the judgment in that case. Maybe the cab driver had the right to use force in collecting his fares.

The judgment is affirmed.

Affirmed.


author: COLEMAN, Justice.

text:
    The FAMILY INVESTMENT CO. OF HOUSTON, Inc., Appellant, v. J. A. PALEY et ux., Appellees.
    No. 13926.
    Court of Civil Appeals of Texas. Houston.
    March 29, 1962.
    Rehearing Denied April 19, 1962.

      James T. Pinto, Houston, for appellant.
    W. H. Betts, Hempstead, for appellees.
   COLEMAN, Justice.

This is an appeal from the judgment rendered by the County Court of Waller County dismissing an attempted appeal from a judgment in a forcible detainer action rendered by a Justice of the Peace Court, but entering judgment for appellee for her damage caused by the appeal.

The trial court dismissed the attempted appeal on two grounds: (1) that no proper appeal bond had been filed, and (2) that the description of the property contained in the complaint filed in the Justice of the Peace Court was insufficient to satisfy the requirements of the statute. The judgment of the trial court specifically recites that it lacked jurisdiction to render any judgment other than for damages.

It is well settled that this Court has no jurisdiction to consider appeals from judgments rendered by county courts in forcible entry and detainer actions, except where the judgment awards damages in excess of $100.00, and then only that portion of the appeal which concerns the damages awarded will be entertained. Gillam v. Baker, Tex.Civ.App., 195 S.W.2d 826; Hunt v. Weems, Tex.Civ.App., 208 S.W.2d 423.

If the county court failed to acquire jurisdiction of the appeal from the Justice of the Peace Court, that court lacked jurisdiction to enter a judgment for damages. It has been held that Rule 752, Texas Rules of Civil Procedure, granting the right to plead and prove in county court the damages suffered pending an appeal from the judgment of a justice of the peace in forcible entry and detainer cases, “contemplates a valid appeal from the forcible de-tainer judgment so as to stay its execution or enforcement pending the appeal. By failing to give the statutory notice of appeal in open court Simmons did not perfect his appeal and did not confer any jurisdiction on the County Court to determine any incidental question of damages for ‘withholding * * * possession of the premises during the pendency of the appeal/ as provided by Rule 752.” Simmons v. Brannum, Tex.Civ.App., 182 S.W.2d 1020. We agree with this decision, and it determines the outcome of this appeal if in fact the trial court lacked jurisdiction as it has held. If the trial court lacks jurisdiction of a case, the Court of Civil Appeals acquires none on appeal, except to declare the invalidity of the proceedings in the trial court and to set them aside. Williams v. Steele, 101 Tex. 382, 108 S.W. 155; Chrisman v. Graham, 51 Tex. 454; Wilder v. Texas Cent. R. Co., Tex.Civ.App., 131 S.W. 607. This Court has the power to ascertain the status of its jurisdiction of a case on its own motion. St. Louis Southwestern Ry. Co. of Tex. v. Elliston, Tex.Civ.App., 128 S.W. 675; Johnson v. Henderson, Tex.Civ.App., 132 S.W.2d 458; Latshaw v. Barnes, Tex.Civ.App., 170 S.W.2d 531. It is necessary that we determine whether or not the ruling of the trial court on the question of jurisdiction was correct.

Appellant filed an appeal bond in the justice court. It was defective in that it was not signed by sureties. Appellant requested permission to amend the bond by securing proper sureties. The court erred in refusing this permission. Rules 2, 14a, 430 and 437, Texas Rules of Civil Procedure; Grogan Manufacturing Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141; Hervey v. Forse, Tex.Civ.App., 253 S.W.2d 701. The defective bond was sufficient to confer jurisdiction over the appeal on the county court. United Ass’n of Journeymen and Apprentices, etc. v. Borden, Tex., 328 S.W. 2d 739; Speckels v. Kneip, Tex.Civ.App., 170 S.W.2d 255, error ref.; Couch v. City of Richardson, Tex.Civ.App., 313 S.W.2d 949, ref., n. r. e., certiorari denied 359 U.S. 990, 79 S.Ct. 1120, 3 L.Ed.2d 979.

The trial court further held that it lacked jurisdiction because the description contained in the complaint filed in the justice court was insufficient. An insufficient description in the complaint in forcible entry and detainer is not such a defect as to deprive the court of jurisdiction. Granberry v. Storey, 61 Tex.Civ.App., 9, 127 S.W. 1122. The complaint can be amended in the Justice of the Peace Court. Evetts v. Johns, Tex.Civ.App., 76 S.W. 778. On appeal to the county court the trial is de novo. Rule 751, Texas Rules of Civil Procedure. The procedural aspects of the trial of a forcible entry and detainer case are governed by the rules of civil procedure promulgated by the Supreme Court of Texas. Rule 2, Texas Rules of Civil Procedure. These rules of civil procedure must be liberally construed to the end that a just, fair and equitable adjudication of the rights of litigants is attained. Rule 1, Texas Rules of Civil Procedure. Amendments to pleadings should be freely allowed in the absence of a showing that such amendment would prejudice the opposing party in maintaining his defense on the merits. Rule 66, Texas Rules of Civil Procedure; Martin v. Shell Oil Co., Tex.Civ.App., 262 S.W.2d 564. It has been held an abuse of discretion for a court to refuse permission to file a trial amendment where the matters sought to be pleaded and proved are essential to administration of justice, even though permitting such an amendment would require' the court to grant a continuance to the opposing party. Shaw v. Tyler Bank & Trust Co., Tex.Civ.App., 285 S.W.2d 782, ref., n. r. e.

The county court had jurisdiction to determine the merits of this controversy, therefore we have jurisdiction to determine the points of error presented on this appeal.

While the action of the county court in determining the right to possession of real estate in an action of forcible detainer is final and may not be revised on appeal, in this case the right to possession has not been determined. To properly determine the issues before this Court for review, it was necessary to examine the issues forming the basis of the judgment of the trial court. Under the peculiar circumstances of this case, the entire controversy is properly before u’s for decision. The trial court erred in dismissing the case.

Appellant has presented the point that the trial court erred in awarding damages exceeding the jurisdiction of the county court on appeal. The point is without merit. The cause of action for damages for witholding possession and for costs of appeal, including attorney’s fees, is cognizable only in the county court and the jurisdictional limits of the Justice of the Peace Court with reference to the amount in controversy would not operate to restrict the jurisdiction of the county court. Haginas v. Malbis Memorial Foundation, Tex.Civ.App., 349 S.W.2d 957, aff’d Tex., 354 S.W. 2d 368.

The judgment of the trial court is reversed and remanded for trial on the merits.


author: FANNING, Justice.

text:
    JIM WALTER CORPORATION et al., Appellants, v. M. D. BASS et ux., Appellees.
    No. 7395.
    Court of Civil Appeals of Texas. Texarkana.
    March 20, 1962.
    Rehearing Denied April 17, 1962.

      Alex Beall, Clapp & Beall, Tyler, for appellants.
    Crawford Parker, Jr., LeRoy LaSalle, Carthage, for appellees.
   FANNING, Justice.

Plaintiffs M. D. Bass and wife sued Jim Walter Corporation for damages as result of construction defects in a shell house and for further damages to sheet rock, paneling, and other items placed in the shell house by plaintiffs (as well as for further damages to other portions of the shell house constructed originally) which further damages wer occasioned not only by the original defects but also by the further efforts of the said defendant to correct said defects by “jacking up” the house. The shell house was badly built, badly out of line, or out of “plumb”, had serious roof defects, and the original bad construction, together with the “jacking up” of the house in an unsuccessful attempt to cure the defects, resulted in damages to plaintiffs, all as shown by the pleadings, evidence, findings and judgment of the trial court. The case was tried before the court without a jury. The trial court rendered a monetary judgment in favor of plaintiffs against defendant Jim Walter Corporation with certain stated interest thereon.

Plaintiffs also sued Mid-State Homes, Inc., the assignee of a mechanic’s and mate-rialmen’s lien and note and deed of trust securing same, originally given by plaintiffs to Jim Walter Corporation for the construction of the shell house.

The evidence established that the property on which the shell house was to be built was the separate property of Mrs. Bass and the homestead of Mr. and Mrs. Bass. The evidence was also virtually conclusive that Mrs. Bass did not appear before any Notary Public or other authorized officer for the purpose of acknowledging the lien contract or deed of trust and no acknowledgment of either of said instruments was taken from her by any notary or other authorized officer. (Also Mr. Bass neither appeared nor acknowledged such instruments before any notary or other authorized officer.) The trial court in his judgment cancelled the liens purportedly created by such instruments.

Defendants-cross plaintiffs pleaded that in the event the court should find the mechanic’s and materialmen’s lien to be invalid and void against plaintiffs’ homestead, that the court should allow defendants $4,-000.00 for the reasonable value of improvements placed on said property which allegedly enhanced the value of the homestead .property.

The agreed price for the house was $1,000.00 down with a note for $2,295.00 plus interest and taxes. The plaintiffs paid $1,000.00 to the Walter Corporation at the beginning and signed a mechanic’s and materialmen’s lien note for $3,873.60, in favor of the Walter Corporation, (along with the lien contract and deed of trust) which note and liens were assigned to Mid-State Homes, Inc., and plaintiffs soon thereafter paid $53.00 to Mid-State Homes, Inc., on the note. The trial court in his findings of fact, among other things, found that the reasonable market value of the shell house as built was $1,500.00, and deducted the sum of $1,053.00 paid by plaintiffs thereon, and rendered a judgment for the difference, $447.00, in favor of Mid-State Homes, Inc., with certain stated interest, against the plaintiffs, and also decreed cancellation of the mechanic’s and materialmen’s lien note. Costs were adjudicated in the manner stated in the judgment. Jim Walter Corporation and Mid-State Homes, Inc., have appealed.

Appellants present three points on appeal. By their first and second points appellants contend that the trial court erred in allowing the plaintiffs to file certain referred to trial amendments after the close of the evidence but before the rendition of the judgment. The record reveals that the trial amendments in question concerned matters which had already been ■ fully developed by the evidence before the court and which evidence had been heard without objection. Appellants also did not request the trial court for a postponement or continuance to present any other evidence. Appellants’ first and second points do not show error and are overruled. See Rules 66 and 67, Texas Rules of Civil Procedure.

By their third point appellants complain of the finding of the trial court that there was a failure of consideration for the note in question and that same should be can-celled.

The trial court in its findings of fact, among other things, found to the effect that the shell house in question was improperly and defectively constructed and not in a good and workmanlike manner. This finding is amply supported by competent evidence of probative force. In fact, the evidence is virtually conclusive that the house was badly built, out of “plumb”, the roof was defective, and there were numerous other defects, and that the further efforts of the Walter Corporation to correct the original defects by “jacking up” the' house caused further damages to the house and the additional interior work done and material placed in the shell house by plaintiffs, damaging the sheet-rock, paneling, plumbing and other things added to the shell house by the plaintiffs.

The trial court’s findings that the shell house was built on the homestead of plaintiffs which was separate property of Mrs. Bass, and that the wife, Mrs Bass, did not appear before a notary or other authorized officer for the purpose of acknowledging the lien contract or deed of trust, and that she never acknowledged said instruments, and that Mid-State Homes, Inc., was not a bona fide purchaser for value without notice, are amply supported by the evidence. Under such circumstances, the mechanic’s and materialmen’s lien contract and deed of trust were unenforceable against the homestead of appellees. Humble Oil & Refining Company et al. v. Downey, 143 Tex. 171, 183 S.W.2d 426; Spoor v. Gulf Bitulithic Co., Tex.Civ.App., 172 S.W.2d 377, error refused.

Since the improvements in question were not constructed in accordance with the contract and in a good and workmanlike manner, the note in question failed in part for lack of consideration and the trial court did not err in cancelling the note since it granted a judgment against plaintiffs for the reasonable value of the improvements less the amount paid on same by plaintiffs. We think it is clear that appellant Mid-State Homes, Inc., the assignee and holder of the note in question, (who was not a bona fide purchaser for value without notice) could not under the circumstances of this case recover of plaintiffs the full face value of the note in question which clearly failed in large part for lack of consideration. In this connection, see Adams Nat. Bank v. Stone, Tex.Civ.App., 284 S.W. 989. Under the record in this case, all that Mid-State Homes, Inc. was entitled to recover against plaintiffs was the sum of $447.00 (with certain stated interest) as found by the trial court; and, of course, Mid-State Homes, Inc. could not recover both for improvements and for the note also. Under the record in this case the trial court properly cancelled the note in question.

. Finding that none of appellants’ points present reversible error under this record, the judgment of the trial court is affirmed.

Affirmed.


author: DAVIS, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Jimmie A. FLETCHER, Appellee.
    No. 7354.
    Court of Civil Appeals of Texas. Texarkana.
    March 27, 1962.
    Rehearing Denied April 24, 1962.
    Atchley, Russell & Hutchinson, Tex-arkana, for appellant.
    Jones, Brian & Jones, Marshall, for ap-pellee.
   DAVIS, Justice.

This is a suit to set aside a compromise settlement agreement by and between the appellee, Jimmie A. Fletcher, and the appellant, Texas Employers’ Insurance Association, for workmen’s compensation as the result of an injury that was received by the appellee on October 17, 1958. The settlement agreement was entered into on December 1, 1959, and was approved by the Industrial Accident Board on December 8, 1959. The appellee agreed to settle his claim for $1005.00, plus 58 weeks of compensation that had been paid to him at $35.00 per week, and medical expenses. The appellant issued to the appellee a check for $1005.00. The check was marked “Void if not presented within 15 days from the date of issue”. The appellee did not cash this check and tendered it with his pleadings, for cancellation.

As a basis for his action, appellee alleged that the workmen’s compensation compromise settlement agreement was procured because of the false representation of the appellant’s claim agent to the effect that the appellee had suffered only a 20% disability of his right leg as a result of the fracture thereof. The case was tried before a jury. The jury answered all the special issues in favor of the appellee. Judgment was entered setting aside the compromise settlement agreement. The appellant has perfected its appeal.

By its Point 1 (i) appellant complains that the trial court was in error in overruling appellant’s objections and exceptions to special issues Nos. 1 and 2 of the court’s charge; and, in overruling appellant’s motion for judgment notwithstanding the verdict. The appellant’s objection and exception to the court’s charge are not found in the.record. They are set out in the appellant’s amended motion for new trial, and we will consider the point. The transcript could be amended and the objection and exception brought forward.

By its Point 1 (ii) appellant complains of the action of the trial court to the effect that there is no finding of fact that the ap-pellee suffered any injury as a result of the representations forming the basis of his action to set aside the agreement.

It seems that the appellant takes the position that the representations of its claim agent'were expressions of an opinion and not actionable. If such were true, the appellant would have been entitled to an instructed verdict. This case has already been before this court on the question of venue. Texas Employers’ Insurance Association v. Fletcher, Tex.Civ.App., 339 S.W.2d 542, n. w. h. The evidence on the venue trial, as well as on the present trial, is identical, insofar as the points are concerned.

The evidence shows that the appellee signed the settlement agreement as a result of the statements made to him by the claim agent of the appellant. We suggest the reading of the venue case cited in 339 S.W.2d 542. In view of our holding in that case, the appellant’s points 1 (i) and 1 (ii) are overruled.

By his Point 2, appellant takes issue with the judgment of the trial court to the admission of certain testimony of Dr. James E. Ball. There was testimony dealing with appellee’s disability. No one contended that he had gotten worse after the settlement agreement had been signed. It was agreed that his bony injury was fully healed at the time of the settlement. The question, therefore, was to residual disability. Dr. George M. Hoover, the orthopedic surgeon who treated the appellee, testified in the case that he only had 20% disability to the right leg. Dr. H. O. Phillips, witness for the appellant, expressed only the opinion that at one time he thought that the appellee was ready to go to work, which the appellee refused to do. There is no estimate of disability from Dr. Phillips’ testimony.

Dr. Ball testified that appellee had at least a 50% permanent partial disability. From a close look at his testimony, it is susceptible to a construction that the appellee could never get and keep a job requiring use of his body in manual labor. From his testimony, we think the construction of total and permanent disability exists. Traders and General Insurance Company v. Porter, Tex.Civ.App., 124 S.W.2d 900, err. ref. The testimony of appellee, his wife, and a grandson, would justify a finding of total permanent disability. A jury can find total and permanent disability from the testimony of the parties, not doctors. The jury found from all the evidence that the estimate of 20% disability to his leg was false. The point of error seems to be without merit. The examination by Dr. Ball was made prior to the time the suit was filed. The evidence was competent because it was testimony of a physician as to the complaints of the party during the course of an examination for the purpose of prescribing treatment. Texas General Indemnity Company v. McNeill, 261 S.W.2d 378, n. w. h.; Texas Employers’ Insurance Association v. Hale, Tex.Civ.App., 242 S.W.2d 796, n. w. h.; Texas Employers’ Insurance Association v. Wells, Tex.Civ.App., 207 S.W.2d 693, err. ref., n. r. e.; III Wigmore on Evidence, 3d Ed., Sec. 688; McCormick & Ray, 2d Ed., Vol. 1, Sec. 835; 51 A.L.R. 2d 1051, Anno.; 67 A.L.R. 10, Supplemented 80 A.L.R. 1527 and 130 A.L.R. 977; Coca-Cola Bottling Co. v. Krueger, Tex.Civ.App., 239 S.W.2d 669, n. w. h.

The exclusion of such evidence would have been error. Port Terminal Railroad Ass’n v. Ross, 155 Tex. 447, 289 S.W.2d 220; American General Insurance Company v. Barrett, Tex.Civ.App., 300 S.W.2d 358, err. ref., n. r. e.; Verhalen v. Nash, Tex.Civ.App., 330 S.W.2d 676, err. ref., n. r. e.; English v. Hegi, Tex.Civ.App., 337 S.W.2d 860-862, n. w. h. The point is overruled.

There being no error in the record, the judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    Earl CORPIER, Appellant, v. C. T. LAWSON, Appellee.
    No. 4016.
    Court of Civil Appeals of Texas. Waco.
    March 29, 1962.

    Rehearing Denied April 19, 1962.
    Doyle J. Borchers, Clifton, C. O. McMillan, Stephenville, for appellant.
    Cureton & Cureton, Jack Railsback Meridian, for appellee.
   WILSON, Justice.

The sole question in this case is whether lessee, by continuing possession of leased premises and paying rental, is to be held to have exercised an option to renew a written lease as the trial court concluded; or thereby became a tenant from month to month.

Appellant and his lessor executed a printed form contract dated March 7, 1957, by which appellant became lessee of a business building for the term of one year beginning April 1, 1957 and ending March 31, 1958 at a fixed annual rental payable “$75.00 per month in advance.” Appellant continued to occupy the building and made payment of monthly rentals during the remainder of 1958. Thereafter he made payments of $75.00 per month until September, 1960, when he vacated the premises. In June, 1960 he notified lessor by letter that September, 1960 would be his last month of occupancy. Lessor’s assignee recovered judgment on motion for instructed verdict for the balaiice of rentals which would have been due for an unexpired one-year term ending March 31, 1961.

The lease contained a printed provision: “It is agreed and understood that any holding over by the lessee of the hereby leased premises after the expiration of this lease shall operate and be construed as a tenancy from month to month at a rental of $-.” The numeral “75” was typed in the terminal blank.

By typewriting there was inserted in the form the provision: “Lessee is hereby given an option to renew this lease annually for a period of ten years from this date. Lessee agrees to pay said lessor one year’s rent in advance in case said lessee quits or goes out of business for any cause.”

Appellee relies on .the general rule that lessee’s continued occupancy and “monthly payment of rent in accordance with the terms of the contract after the expiration of the primary term” constituted an election to exercise his option and was sufficient notice to the lessor, since the contract required no formal notice. Willeke v. Bailey, 144 Tex. 157, 189 S.W.2d 477, 481. It has been held that the effects of the distinction between the terms “extension” and “renewal” are not recognized in Texas so as to require formal execution of a new lease to effect renewal. Haddad v. Tyler Production Credit Ass’n., Tex.Civ.App., 212 S.W.2d 1006, 1008, writ ref.

The implication or presumption arising from the “strict holdover doctrine” relied on, however, is qualified. It arises only “in the absence of an express or implied agreement to the contrary”. Willeke v. Bailey, above; Jones v. Winter, Tex.Civ.App., 215 S.W.2d 654, 656, writ ref. n. r. e.; Hunger v. Toubin Bros. Inc., Tex.Civ.App., 164 S.W.2d 765, 66 writ dism.; Nortex Foods v. Burnett, Tex.Civ.App., 278 S.W.2d 485, 487; Hill and Redman, Landlord and Tenant (10th ed.) Sec. 15, p. 28; 32 Am.Jur. Sec. 940, p. 793; 51 C.J.S. Landlord and Tenant § 73, p. 622.

“Necessarily, rules as to holdover tenancies have no application where there is a contrary mutual understanding as to the tenant’s continued occupancy of the premises. Such an agreement takes the place of the presumption as to holding over that the law otherwise raises.” Consequently, “the parties to a lease may therein expressly provide for a holding over, and what the nature of the tenancy shall be after the expiration of the term, and such an agreement will govern, and a periodic tenancy will not arise.” 32 Am.Jur. Sec. 936, p. 790. See also I Tiffany, Real Property (3rd Ed.) Sec. 177; III Thompson, Real Property (1959) Sec. 1119; Bennett, Landlord and Tenant, Sec. 103; I Amer. Law Real Prop., Secs. 3.26-3.33.

Judgment is reversed and here rendered for appellant.


author: RICHARDS, Justice.

text:
    John B. MILLER, Jr., Appellant, v. O. D. WAGONER et ux., Appellees.
    No. 10944.
    Court of Civil Appeals of Texas. Austin.
    March 28, 1962.
    McKay & Avery, Charlie D. Dye, Austin, for appellant.
    Frank D. Kerbow, Austin, for appellees.
   RICHARDS, Justice.

O. D. Wagoner and wife, appellees, brought suit against John B. Miller, Jr., appellant, to recover damages for personal injuries sustained by Mrs. Wagoner and damage to the Wagoner automobile resulting from a rear-end collision between appellant’s and appellees’ automobiles which occurred in Austin, Texas, on December 28, 1958. Appellee Wagoner travelling south on a service road stopped his car at an intersection for a stop sign before entering West First Street, remaining at the stop sign to permit a car to pass which was travelling west on West First Street. While he was waiting for the car to pass appellant, .travelling south on the service road in the rear of Wagoner’s car, struck his .car in the rear, knocking it several feet .forward, and as a result of the collision Mrs. Wagoner, who was sitting in the front seat of the car, claimed a whiplash neck injury.

The case was tried to a jury which ren- ' dered a verdict for appellee O. D. Wagoner for $72.64 for damages to the automobile and $8,000.00 for damages for injuries suf'fered-by Mrs. Margarette Wagoner. Judgment having been rendered in accordance with the verdict of the jury and after his motion for new trial had been overruled, appellant perfected this appeal.

In answer to the special issues submitted the jury found (1) that just prior to the collision appellant failed to keep a proper lookout, (2) which failure was a proximate cause of the collision; (3) that appellant failed to bring his car to a standstill, (4) which failure was negligence, and (5) which negligence was a proximate cause of the collision and any resulting injuries to Mrs. Wagoner. The jury also found (6) that appellant was driving his car too close to the Wagoner car at the time and on the occasion in question, (7) which was negligence, and (8) a proximate cause of the collision and any resulting injuries to Mrs. Wagoner, and (9) that appellant failed to keep a proper lookout. In addition the jury found (11) that appellee Wagoner after bringing his automobile to a stop at the intersection did not start moving his vehicle in a forward direction and (19) that the collision was not an unavoidable accident. Appellant did not object to any of ;the; issues.

(Appellant predicates this appeal upon six points of error, Points 1 and 2 being that the jury’s answer to special issues 9 and 10 are without any support in the evidence and against the uncontradicted testimony or at least were so contrary to the overwhelming weight of the evidence as to have been entirely wrong.

The jury found in answer to special issue No. 9 that just prior to the collision O. D. Wagoner did not fail to keep a proper lookout and having so found were not required to answer special issue No. 10 as to whether such failure to keep a proper, lookout was a proximate cause of ■the collision.

The rule of law governing proper lookout in rear-end collision cases is stated in Renshaw v. Countess, Tex.Civ.App., 289 S.W.2d 621, 624, no writ history, as follows:

“We think it is the law that a motorist following another vehicle must drive at a reasonable speed, keep back a reasonable distance, and keep his vehicle under reasonable control so as to provide for the contingency of a car in front suddenly stopping; that he must maintain a proper lookout for the car in front, so that he can stop without a collision or can turn out and pass the vehicle in front without getting in the way of traffic approaching from the opposite direction. A question of fact as to the existence of negligence is usually presented when one motor vehicle overtakes and strikes one in front of it, going in the same direction. The collision itself is some evidence of negligence on the part of the driver who strikes a preceding car from the rear. * * *
“We think that a prudent driver may stop at a street intersection and wait for the intersection to clear without anticipating that his vehicle will be struck by one approaching from the rear.”

In accord, Grossman v. Tiner, Tex.Civ.App., 347 S.W.2d 627, error ref., N.R.E.; Neill v. Baltazar, Tex.Civ.App., 345 S.W.2d 454, error ref., N.R.E.; Hoey v. Solt, Tex.Civ.App., 236 S.W.2d 244, no writ history.

In passing upon the question of whether there is evidence to support the findings of the jury upon appeal, this Court may only consider that evidence which viewed in its most favorable light supports the jury’s findings and must disregard all evidence which would lead to a contrary result. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359, 363. Both negligence and proximate cause may be inferred from the circumstances and it is not necessary to prove these elements by direct and positive evidence. Houston, E. & W. T. Ry. Co. v. Boone, 105 Tex. 188, 146 S.W. 533; Renshaw v. Countess, supra.

Wagoner testified that he stopped his car for a stop sign before entering West First Street and that he remained at the stop sign to permit a car to pass which was travelling west on West First Street; that prior to coming to a stop he had seen some reflections in his rear view mirror presumably coming from another car which was following; that he did not see the car but only the reflection of the lights; that he did not observe the car as it came up behind him because he assumed that since there was a stop sign, the car in the rear would also stop and he was watching the traffic ahead of him; that while his car was in gear its rear bumper was hit violently by the car driven by appellant and his car was knocked forward about 6 or 8 feet, at which time he applied his brakes and stopped the car. After the collision he got out of his car as did appellant, who came up to him and said: “I am sorry, fellow, it was my fault, I was looking the other way.”

Appellant, called as an adverse witness, was asked if he recalled having any conversation with Wagoner immediately after the collision and he' stated that he did have some conversation with Mr. Wagoner' and that they looked at the bumpers. When asked if he told Mr. Wagoner that he had not seen him before he hit him, he answered that he did not recall that he made that statement nor did he recall telling him that he was sorry that he did not see him because he was looking the other way, but when asked if he denied that he made that statement, appellant stated that he just did not recall it.

Appellant testifying in his own behalf, when asked if he and Mr. Wagoner had exchanged any words, answered as follows :

“A There might have been a few words said. However, it was two years ago; I don’t recall what conversation might have taken place.
“Q I will as you if you recall making a statement to Mr. Wagoner, in substance: T am sorry. I wasn’t looking. I didn’t see. It was all my fault.’ Do you recall making any such statement as that?
“A No, sir, I don’t recall making any statement of that sort.
“Q Is it your testimony that you didn’t make such a statement?
“A It would be my testimony that it would be very foolish for me to make a statement to that effect; so I would say I did not make the statement.”

From the record as a whole, there is ample and sufficient evidence to support the jury’s finding that O. D. Wagoner did not fail to keep a proper lookout prior to the collision and that such finding is not against the overwhelming weight and preponderance of the evidence as to have been entirely wrong. We therefore overrule appellant’s points of error 1 and 2.

For his third point of error appellant urges that the jury’s answer to special issue No. 11 is without any support in the evidence and against the uncontradicted testimony of at least is so contrary to the overwhelming weight of the evidence as to be entirely wrong.

Special Issue No. 11 is as follows:

“Do you find from a preponderance of the evidence that the plaintiff O. D. Wagoner, after bringing his 1958 Plymouth automobile to a stop on the occasion and at the intersection in question, started moving his automobile in a forward direction again ?”

to which the jury answered “No,” and as a result were not required to answer the following special issues:

“Special Issue No. 12: Do you find from a preponderance of the evidence that on the occasion and at the intersection in question, the plaintiff, O. D. Wagoner, after having brought his automobile to a stop, and after having started it moving in a forward direction again, if you have so found, he suddenly stopped his automobile?
“Special Issue No. 13: Do you find from a preponderance of the evidence that the action of the plaintiff, O. D. Wagoner, in suddenly stopping his automobile, as inquired about in the foregoing special issue, if you have so found, was negligence, as that term is herein defined?
“Special Issue No. 14: Do you find from a preponderance of the evidence that such negligence, if any you have found, was a proximate cause of the collision in question?”

On direct examination Mr. Wagoner testified that when he came to the stop sign he stopped his car completely with his foot on the brake and that he put the car in low gear to proceed, but had not proceeded when he was hit by appellant’s car. On cross-examination he stated that he put his car in low gear in readiness to go forward and saw a car coming from his left and applied his brakes again waiting for the car to proceed past. Also during cross-examination reference was made to Wagoner’s testimony in his deposition given prior to the trial in which he stated that after he stopped, he waited momentarily for an oncoming car that was going west and released his brakes and as he moved forward a little he was struck from the rear. The witness was then asked as to which of the preceding statements was correct to which he answered that he came to a complete stop, looked in both directions, made preparations to go forward by putting his car in low gear and released his brake; that he might have moved a foot or two but that he was making preparations to go. .

Appellant testified that when Wagoner approached West First Street he came to a complete stop; that appellant was directly behind and stopped within three or four feet of his vehicle but when Wagoner’s car started up, appellant started to take his place when all of a sudden Wagoner just stopped very suddenly and appellant could not stop in time to keep from hitting him.

Appellant contends that in the light of Wagoner’s testimony the only answer to special issue No. 11 is that after Wagoner brought his automobile to a stop he started moving it in a forward direction again. While Wagoner testified that he “might have moved a foot or two” after he released his brakes, such statement does not, in our opinion, warrant the conclusion that he “started moving” his automobile forward since the meaning of the words “to start” an automobile while the engine is running' necessarily implies the movement of the automobile by positive action such as foot pressure upon the accelerator and not a movement caused by gravity.

Manning v. Block, Tex.Civ.App., 322 S.W.2d 651, 656, error ref., N.R.E., was a. rear-end collision case in which Manning’s-automobile was struck from the rear by a car driven by Block. Manning testified that he kept his foot on the brake until he was preparing to move forward; that he then, took his foot off of the brake and moved his clutch preparatory to going forward, and while doing this the Block car was. propelled into the rear of his car. In holding that Manning was not negligent in having momentarily released his brake pedal preparatory to moving his car forward, the Court held:

“To do so would require a person to have the same ability to see, observe and react as readily to the circumstances of the road behind him as he is required to do ahead. This is physically impossible to do, and the law has rightly placed the burden on the car operator approaching from the rear, in the event of a collision, to explain his action. Renshaw v. Countess, supra.

Here the jury found that Wagoner after bringing his automobile to a stop at the intersection did not “start moving” his car in a forward direction and that appellant was driving his car too close to the Wagoner car at the time of the collision. In our opinion there is ample and sufficient evidence to support these findings. Appellant’s point of error No. 3 is overruled.

Appellant’s fourth point of error is directed to the action of the Trial Court in permitting appellees to file their first amended petition after the jury had been selected and the trial begun, in which it was alleged for the first time as a ground for recovery that Mrs. Wagoner had sustained “permanent disability resulting in her inability to do work that she did before the accident including the loss of earnings from her sewing for the public. * * * ”

In his first supplemental answer to appel-lees’ first amended petition appellant excepted to the above pleading on the grounds of surprise and that the pleading did not come within the leave granted by the Court to meet appellant’s special exceptions timely filed, which exception was overruled by the Trial Court. It appears from the record that there was no pre-trial hearing but that the special exceptions raised by appellant to appellees’ original petition were heard by the Court on March 27, 1961, the same day that the jury was impaneled and the trial of the case commenced. After certain of these exceptions had been sustained, ap-pellees with leave of Court filed their first amended original petition containing the additional allegations of damage whereupon appellant filed his first supplemental answer to appellees’ first amended petition raising the special exception in question. After the Trial Court had ruled upon the special exceptions, the trial to the jury began.

After his special exception to the inclusion of the additional ground of recovery alleged by Mrs. Wagoner upon the ground of surprise had been overruled, appellant’s counsel did not ask the Court for a postponement or continuance of the trial upon the ground of surprise, -thereby waiving any right to complain of the Trial Court’s action in granting leave to appel-lees to file their first amended petition under the requirements of Rule 63, Texas Rules of Civil Procedure.

However, it is uncontradicted in the record that appellant could not have been “surprised” by Mrs. Wagoner alleging as an additional ground of recovery loss of earnings caused by her inability to do sewing for the public as a result of her injuries.

On cross-examination, Mrs. Wagoner testified as follows:

“Q Now, you testified today to a simple amount of sewing, Mrs. Wagoner, but as I recall when I took your deposition in January of this year, that your testimony was that you had done some part-time sewing here and there, and probably worked a few hours at two or three different places; but are you now saying that you have done sewing during these years that you talked about on a professional basis, and that you were actually engaged in the business of a seamstress? .
“A You mean prior to the accident?
“Q Yes, ma’am.
“A Yes, sir; I was a seamstress off and on for years before that.
"Q Well, I believe you stated that you didn’t know what you were being1 paid. Did you keep any kind of records for income tax purposes?
“A Oh, I probably have all my books at home; I don’t know.
“Q Well, aren’t you seeking damages in this lawsuit for loss of earnings from your business as a seamstress ?
“A I think it would be just.
“Q Well, my question to you is, aren’t you seeking damages for loss of earnings ?
“A Yes.
******
“Q Well, I want to ask you once again about your statement at the time of the deposition where I asked you about dressmaking, and I asked: ‘Since you have been married have you ■worked anywhere else?’ and your answer was, ‘Part time.’
“And I asked you next, ‘Well, what part-time work did you have ?’ and you stated, ‘Alterations.’
“And I asked you, ,‘Who did you work for?’ and you said, ‘Well, I worked a few hours at Acme Cleaners. I worked for Austin Army-Navy Store a short time;’ and then you worked for Guthrie Brothers on a part-time basis?
“A Yes.
* * * * * *
“Q My question to you is that in this period of years that I was inquiring about, from the time you had been in Austin, when you named those three people that you had worked for, one you said, ‘I worked a few hours for Acme Cleaners; I worked for Austin Army-Navy Store a short time, and worked a similar period' of time for Guthrie Cleaners’ — now,” you "are not testifying hei*e, aré you,, that by reason of those brief periods of time, that you have lost a major source of income, because you are not now able to work those short hours somewhere or those brief periods of time for some other employer ?
“A. It is because I am not able to work as a full-time dressmaker as I did before the accident. That was just fill-in jobs.”

It is clear from the testimony elicited from Mrs. Wagoner on cross-examination that appellant had been aware since January 1961, that prior to the collision Mrs. Wagoner had been engaged in the occupation of a seamstress for the public for which she received monetary compensation and was thereby placed upon notice that she might rely upon the loss of such earnings as a basis for the recovery of damages. Since appellant could not have been surprised and also failed to ask the Trial Court for a postponement or continuance of the trial upon such ground, appellant’s fourth point of error is overruled.

Appellant’s fifth point of error is as follows :

“The error of the Court in refusing to grant a new trial to defendant and in entering judgment against appellant, on the Jury’s finding of $8,072.64 damages, such finding and amount of damages being grossly excessive, not sustained by the preponderance of the evidence, said finding of the Jury resulting from bias, passion and prejudice and so against the great weight and preponderance of the evidence as to be manifestly unjust.”

Special Issue No. 20 submitted to the jury on the question of damages claimed by Mrs. Wagoner as a result of the collision is.as follows:

“What sum of money if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate the plain- ■ tiffs for such damages, if any, as were directly and proximately caused by the injuries, if any, which were sustained by Mrs. Margarette Wagoner as a direct and proximate result of the collision in question, taking into account such of the following elements which you find are established by a preponderance of the evidence, and none other:
“(a) Such physical pain, if any, as you may find from a preponderance of the evidence Mrs. Margarette Wagoner has sustained from the date of the collision in question to the date of this trial, directly and proximately resulting from the injuries, if any, suffered by her as the direct result of the collision in question.
“(b) Such physical pain, if any, as you may find from a preponderance of the evidence, she will in reasonable probability sustain in the future beyond this date as a direct and proximate result of the collision in question.
“(c) The reasonable cash value of the loss of earnings of Mrs. Margarette Wagoner, if any, as you may find from a preponderance of the evidence has been sustained since the date of the collision in question to the date of this trial as a direct and proximate result of the injuries, if any, suffered by her as a direct result of the collision in question.
“(d) The reasonable present cash value of the loss of capacity to work and earn money, if any, that Mrs. Mar-garette Wagoner will in reasonable probability sustain in the future beyond the date of this trial, as a direct and proximate result of the injuries, if any, sustained by her as a direct result of the collision in question.
“You are further instructed that in connection with answering this issue, you must exclude from your estimate any compensation for impairment, if any, and physical pain, if any, of Mrs. Margarette Wagoner, which may have been or will be due solely or partly to ailments, congenigal defects, or physical conditions, if any, which she may have had before the collision in question.”

The jury awarded Mrs. Wagoner $8,000.00.

The Court also submitted Special Issue No. 18 as follows:

“Do you find from a preponderance of the evidence that the plaintiff, Mrs. Magarette Wagoner’s pain, if any, and disabilities, if any, were not solely caused by her previously existing congenital defects together with her preexisting fracture of the coccyx?
“Answer ‘They were not solely caused,’ or, ‘They were solely caused.’
“Answer: They were not solely caused.
“By the term ‘sole cause,’ as used in Special Issue No. 18, is meant the only cause. There can be but one sole cause of an event.”

In his Motion for New Trial appellant asserted that the finding of the jury awarding Mrs. Wagoner approximately $8,000.00 in damages was excessive being probably calculated, in a large part, on the basis of loss of earnings from her sewing for the public and that the finding of the jury resulted from bias, passion and prejudice, praying that such finding be set aside and in the alternative that the Trial Court order a re-mittitur in such amount as was proper, which motion was overruled. Appellant did not object to the submission of either special issues No. 18 or No. 20.

Under special issue No. 20 the jury was entitled to consider any physical pain and suffering sustained by Mrs. Wagoner from the injuries received by her as a result of the collision and which in reasonable probability she would suffer in the future, together with the reasonable cash value of the loss of earnings sustained by Mrs. Wagoner from the date of the collision and the reasonable cash value of the loss of capacity to work and earn money that she might sustain in the future as a result of the injuries sustained from the collision in question, excluding any compensation for impairment or physical pain which may have been or would be due solely or partly to ailments, congenital defects, or physical conditions which she may have had before the collision. The award of $8,000.00 damages therefore cannot be attributed, as appellant contends, solely to the loss of earnings which Mrs. Wagoner had suffered or would in all probability suffer as a result of the collision, but instead could have been based to some degree, if not wholly, upon the physical pain sustained by Mrs. Wagoner as a result of the injuries caused by the collision and for future physical pain which she might in reasonable probability sustain in the future.

The testimony of Mrs. Wagoner, together with the testimony of her physicians Dr. J. L. Love and Dr. E. V. Chauvin, amply support the finding of the jury that the injuries suffered by Mrs. Wagoner were caused solely as a result of the collision and that the physical pain and suffering sustained by her were not caused by her previously existing congenital defects, together with her previous fracture of the coccyx. Nor is there any evidence that the award by the jury of $8,000.00 to Mrs. Wagoner as damages for her injuries which resulted from the collision were in any way based upon bias, passion and prejudice on the part of the jury.

In our opinion, the sum of $8,000.00 is not so grossly excessive as to require a re-mittitur. The Trial Court having heard the testimony and considered the finding of the jury on appellant’s Motion for New Trial which sought a remittitur evidently did not believe that the award of damages was excessive since he did not grant a remittitur, although, in his discretion, he was empowered to do so.

We have considered the case of McCol-lum v. McKellar, Tex.Civ.App., 337 S.W.2d 693, error ref., N.R.E. involving a whiplash injury resulting from a rear-end collision upon the question of excessive damages. The jury awarded McKellar damages of $74,000.00, which amount was reduced by the Court of Civil Appeals to permit a recovery of $54,000.00, which sum the Court did not consider excessive.

After a careful examination of the entire record, it is our opinion that the evidence is ample to support the jury’s award to Mrs. Wagoner and that such amount is not excessive, is not manifestly unjust, and is not against the great weight and preponderance of the evidence. Appellant’s fifth point of error is overruled.

The judgment of the Trial Court is affirmed.

Affirmed.


text:
    Clarence W. BURR, Appellant, v. Roy GREENLAND et ux., Appellees.
    No. 5504.
    Court of Civil Appeals of Texas. El Paso.
    March 14, 1962.
    Rehearing Denied April 25, 1962.

      Hill & King, James D. McKeithan, Mission, for appellant.
    Strickland, Wilkins, Hall & Mills, E. G. Hall, Mission, for appellees.
   LANGDON, Chief Justice.

Appellees, Roy Greenland and wife, Betty Jo Greenland, brought suit in the District Court of Hidalgo County against Clarence W. Burr, based on an alleged oral partnership agreement. In the suit ap-pellees sought to establish not only the existence of a “partnership”, but also to enforce an alleged parol agreement to terminate the partnership based upon an offer, allegedly made by Burr, to withdraw from the partnership if he (Burr) could get back what he had invested in the partnership. In the alternative, appellees prayed that an accounting be had between the parties; that the property and machinery belonging to the partnership be sold; that the indebtedness against such property, as well as the amount invested by each partner, be paid out of the proceeds of such sale; and that the remaining proceeds be divided between the parties, fifty per cent thereof to Clarence W. Burr and fifty per cent to appellees, Roy Greenland and wife, Betty Jo Greenland.

The case was tried to a jury, and upon answers favorable to appellees, the trial court entered judgment that a partnership existed; decreeing such partnership to have been dissolved by mutual agreement as of August 1959; specifically ordered the defendant, Clarence W. Burr, to carry out the terms of the alleged parol agreement to -Withdraw from the partnership, and to accept the sum of $40,575.00 (found by the jury to be the amount in dollars and cents, in cash and in the fair cash market value of property, invested by Burr in the partnership up to and including August of 1959, in full and final payment and satisfaction of his interest in the partnership and its assets; and further specifically decreed that upon payment of such sum by the Greenlands into the registry of the court, together with proof of satisfaction of all indebtedness owing by the partnership or by Clarence W. Burr on account of partnership assets (within thirty days after such judgment shall become final), the said Burr shall be held to have no further right, title or interest in or to any of the assets of the partnership; and finally decreed that upon compliance by plaintiffs (the Greenlands) with the provisions of such judgment, title to all the assets of the partnership shall thereafter be owned and held by -plaintiffs, Roy Greenland and Betty Jo Greenland, as their sole property, free and clear of all rights and interest to which the defendant Burr may previously have been entitled by virtue of the previous partnership with plaintiffs. Appellees were also awarded all sums of money realized from the sale of produce from the lands in controversy, and deposited in the registry of the court pursuant to an interlocutory order made by the court in connection with the application of the defendant Burr for an ancillary receivership.

The property which is the subject of this controversy consisted of 171 acres of land, title to which stood in appellant Burr’s name; a bank account in Burr’s name; some farm equipment owned or furnished by Burr, and other equipment bought out of the Burr bank account. The land was valuable citrus land, and is the principal subject of this controversy.

Appellees first filed a suit in trespass to try title, in which they merely asserted title to an undivided one-half interest in the land. Thereafter, however, they abandoned their original pleadings and alleged a pre-existing oral partnership and a subsequent oral agreement, wherein it is contended that appellant agreed to take back what (the money and property) he had invested and retire from the partnership.

Appellant has based his appeal upon fourteen points of error. Points 1, 2, 3 and 4 are based upon contentions that the trial court erred in decreeing specific performance of the alleged oral agreement of appellant to withdraw from the partnership, because: (1), appellees judicially admitted that the agreement was not the agreement alleged in appellees’ pleadings, but was an agreement to convey the interest of appellant in the realty and personalty to the unnamed brothers of appellee Betty Jo Greenland, who were not parties to this suit; (2), the evidence was insufficient to support a jury finding that Burr had agreed to “withdraw from the partnership” and was- insufficient to constitute a contract; (3), the agreement described in the jury finding’ to the effect that Burr agreed to accept “what he had invested” in the venture is too vague to define the consideration to be paid, since such investment is agreed to have included real estate, choses in action and chattels of appellant; and (4), because the agreement sought to be proved and found by the jury was an agreement to accept “what he had invested”, which included properties belonging to him which will not be returned to him by the terms of the judgment, and that the trial court erred in ordering appellant to accept a sum of money in lieu thereof, and in vesting title to the lands and chattels in appel-lees conditioned upon payment of such sum of money.

The foregoing points each constitute an attack upon the propriety of the trial court’s judgment decreeing specific performance of the alleged oral contract, and are so closely related that they may be considered and discussed together.

For- the purpose of discussing these points, we will assume (without so holding) that the alleged oral contract is not rendered unenforceable by operation of the statute of frauds. The general rule is that a contract must be definite and certain in its terms before its performance will be specifically enforced. The remedy of specific performance is an equitable remedy, and greater certainty respecting the terms and conditions of the contract sought to be enforced is required in equity than at law. Numerous reasons for the rule have been given. One is that, in an action at law (damages for breach), it may be shown that the defendant has not performed the contract — a conclusion that may be arrived at without an exact consideration of the terms of the contract; while in equity it must be shown, not only that the contract has not been performed, but also the nature of the contract which is to be performed. One is a negative,- and the other an affirmative, proposition. The affirmative character of. an 'action for specific performance is such as to require the exact terms of the contract to be ascertained before an affirmative decree purporting to specifically enforce such contract can even be worded. Courts of equity ought not to act on conjecture or impose a term or condition which may be contrary to the intention of the parties, and thereby make and enforce a new contract.

In the case at hand, appellees alleged, in substance, that appellant agreed with the Greenlands to withdraw from the partnership if he could get his money back. The jury found that appellant agreed with Roy Greenland to accept “what” he (Burr) had invested and withdraw from the partnership. “What” Burr had invested consisted of money, chattels, real estate and choses in action. The judgment requires appellant to accept a specified sum of money. The sum of money ($40,575.00) specified in the judgment was arrived at on the basis of what the jury found appellant had invested in cash, and in terms of the fair cash market value of the other property. Appellant contends (and there is evidence to support such contention) that his investment was in excess of $71,671.80. Appellees contend that they accepted appellant’s offer and agreed to pay Burr what he had invested. In addition to cash, real property and chattels invested by Burr, he also invested a promissory note having a face value of $3,804.70, which was traded in as part of the cash consideration for one of the tracts of land involved in this controversy. The evidence shows that appellant had previously purchased this note for fifty per cent of its face value. It was accepted at its full value in connection with the purchase of the land. Further, there is no showing that appellant agreed to accept in terms of “fair cash market value” what he had invested in chattels and real property in the venture, and there is no way of knowing whether the jury, in arriving at the figure of $40,575.00, considered the value of the note -mentioned above on the basis of its face value-or on the basis of- wha-t-appellant hiitísélf -had- paid-for it. There is, we believe, considerable difference between “actual value”, which usually need not be defined, and the terms “Market value”, “reasonable market value”, “fair market value”, and “fair cash market value”, all of which terms are required to be defined. These matters alone point up the uncertainty inherent in the contract alleged and sought to be specifically enforced.

We next look to the evidence offered by appellees to prove the contract or agreement allegedly made by appellant. The record reflects that appellee Roy Greenland testified several times during the course of the trial concerning appellant’s alleged agreement to take his money back and withdraw from the business. He related that in August of 1959, appellant came to the Valley; that he expressed dissatisfaction with the farming operation and with appellee Roy Greenland, and asked Greenland to go for a ride, during which they drove through the fields and looked over the place. The witness quoted appellant as having said:

“Roy, I come down to do something, I want out. It might come a freeze, or anything can happen, and I want out from under these loans and mortgages. I come down to do something about it and I want out.”

Later the same day, when they got back to the house, appellee testified that appellant asked him if Jo’s (Mrs. Greenland’s) brothers, who were visiting the Green-lands at the time, would be interested in taking him out and leaving Greenland in. Greenland told appellant, “I think so, yes. I will ask them.” With respect to the terms of the agreement, the witness testified that appellant said, “Just get me my money back. I would just like to get out of it. Just what I got in it.” Greenland testified that Burr had never told him what he had invested, and that he himself had no method of ascertaining that fact. He stated that his wife (Mrs. Greenland) kept the books, and he was asked whether the books that his wife kept would show the total of his (Burr’s) investment out there, to which he replied:

“In cash and in terms of what equipment and what property he has in it. But I have never been able to get a figure from him on what he valued the property at, what he put it in at either, or the property or the equipment he sent down here.”

The foregoing testimony was elicited from the witness Roy Greenland on direct examination early in the trial. Later, on cross-examination, after appellees had rested their case, appellee Roy Greenland was recalled by appellant, at which time he was again questioned concerning the agreement, as follows:

“Q It is your understanding that he (Burr) was going to sell to your brothers-in-law ?
“A Yes, sir, my wife’s brothers.
“Q And that was the deal you had, that he would sell to your brother-in-laws?
“A Yes, his interest.
“Q And that was the deal you understood you had with Mr. Burr at that time, that he was going to sell his interest to the brothers?
“A Yes, he said just get him his money back.”

The record no-where discloses the identity of the “brothers-in-law” other than that they are brothers of appellee Betty Jo> Greenland. They are not identified by name and are not parties to the suit. Uncertainty also exists with respect to the matter of the consideration to be paid. Roy Greenland testified that he did not know how much (money or property) Burr had invested in the venture, and that Burr had never told him. The books maintained by Mrs. Greenland could not be relied upon to-establish, with any degree of certainty, the amount invested by Burr, for the reason* that the books themselves did not show the “value” of the real and personal property-put into the venture, or the value of the equipment that he sent down to be used on the property.

As a general rule, specific performance will be granted only in cases where there is mutuality of remedy, which means that the right to performance must be mutual. Thus, equity will not compel one party to specifically perform where it cannot compel performance by the other. Ansley Realty Co. v. Pope et al., 105 Tex. 440, 151 S.W. 525; Winston v. Brown, 247 F. 948, 160 C.C.A. 138; 38 Tex.Jur. 460 et seq.

Assuming there was a valid contract, who was to become bound thereby? Ap-pellees did not testify that they themselves had agreed to purchase the interest of Burr in the alleged partnership. The brothers-in-law may or may not have agreed with Greenland that they would purchase such interest; or, alternatively, that they would make the necessary financial arrangements to enable the Greenlands to purchase. The judgment itself decrees specific performance against appellant, but appellees themselves are not bound by the judgment to do anything. They may, if they desire, exercise their right to purchase when and if the judgment in the court below becomes final, within thirty days thereafter, by paying a specified sum into the registry of the court and furnishing proof of the satisfaction of all indebtedness owed by the partnership, or by Mr. Burr on account of partnership assets.

We have concluded that the contract as alleged and proved is too uncertain to warrant specific performance. At most, it is a unilateral agreement not supported by independent consideration. It has not been performed, in whole or in part; and, so far as we can ascertain, imposes no personal obligation upon appellees, but leaves performance thereunder entirely optional with them.

Appellant’s points complaining of the error of the trial court in decreeing specific performance of the alleged contract are therefore sustained.

Our holding that the trial court erred in decreeing specific performance of the alleged parol contract discussed above requires a reversal and remand of this case on that issue. It remains for us to determine whether the entire case should be reversed and remanded. In answer to special issues the jury found, and the trial court decreed, that there was a pre-existing partnership.

Appellees plead that a partnership was created with appellant by virtue of an alleged oral agreement, and also plead certain specific terms and conditions that had been agreed upon. These allegations relating to the existence of a partnership were placed in issue by appellant’s denial, under oath, of such partnership.

The jury findings and the trial court’s judgment on the question of partnership are attacked by appellant on various grounds. It is our opinion that the evidence was insufficient to support the jury findings made in answer to Special Issue No. 7, inquiring about the terms of the alleged partnership, and we would sustain appellant’s Point No. 8, which attacks such finding on that ground. The jury first found that a partnership was created by an oral agreement; next, it found certain terms and conditions of such partnership. We believe that the evidence was insufficient to support the jury finding that a partnership was created; however, the findings were not attacked upon that ground, but solely upon the basis that there was no partnership as a matter of law because the parties did not jointly and severally assume the liabilities of the venture. We reject this contention. Appellant also complains of the definition of the term “partnership” as given by the court, for the reason that the court failed to include in its definition the requirement that the parties be jointly and severally liable for debts of the enterprise.

A “partnership” has been defined as a contract of two or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profits and bear the loss in certain proportions. Texas Elec. Service Co. v. Kinkead, Tex.Civ.App., 84 S.W.2d 567; Continental Fire & Casualty Ins. Corp. v. Drummond, Tex.Civ.App., 220 S.W.2d 922; Eastep v. Travelers Ins. Co., Tex.Civ.App., 235 S.W. 2d 732.

In a case more closely approximating the facts of the case now before us, the San Antonio Court of Civil Appeals, in an opinion by Justice Norvell, also approved the definition set out above. Myers v. Minnick, Tex.Civ.App., 187 S.W.2d 941.

In the absence of any contention that the parties are not to share in the losses of a partnership, their obligation to share in such losses will be assumed, where other elements of a partnership are present and an agreement to share in the profits is shown. However, in the instant case there was evidence which reflected that appellant alone was to bear the losses of the alleged partnership, and that he alone was liable for the obligations of such partnership. Appellant objected to the court’s definition as given, and submitted a substantially correct definition which, under the facts of this case, we believe the court erred in refusing.

The basic contention of the appellees is that the parties agreed to enter into a partnership whereby they would purchase citrus land in the Rio Grande Valley of Texas and develop it, and after development would sell such property. Appellees alleged that the proceeds from such sale were to be applied first to the payment of any outstanding indebtedness of such partnership; second, to the repayment to the respective parties of any sums invested in the partnership; and finally, the remaining proceeds were to be divided between the parties.

In the event we are found to be in error in holding that the trial court erred in its definition of the term “partnership”, as that term was used in the court’s charge, or in holding that the evidence was insufficient to support the jury findings made in answer to Special Issue No. 7, relating to the terms and conditions of the alleged partnership, it is nevertheless our opinion that justice requires a reversal of the entire case, since the issues to be tried are so closely related that the jury, or other trier of facts should, in all fairness, have the entire case before it in reaching a decision to be made on the issues involved. Bayoud v. Nassour, Tex.Civ.App., 319 S.W.2d 794; Rule 434, Texas Rules of Civil Procedure.

Summing up, the testimony of the ap-pellees concerning the alleged partnership agreement was conflicting and there was a variance between such testimony and their pleadings. From the testimony of the parties themselves, it is uncertain whether the parties agreed to an immediate partnership on a 50-50 basis, before the land was purchased, as plead; or whether such partnership was to commence some time in the future in the event they purchased land, and/or after repayment of all debts and advances. Title to all of the assets of the venture was taken in the name of appellant Burr, and only his money and property were used to acquire such assets. While it is true that appellees, during the two and a half years the purported partnership is alleged to have continued, may have (because of personal income tax problems) preferred that title to all assets be kept in the name of appellant, there is no showing that this was done at the request of the ap-pellees. Further, it is undisputed that no partnership returns were filed by the parties during this period, and appellees filed no income tax returns reflecting 'either a profit or a loss by reason of such operations during such period. All such matters are undisputed, and conflict with the jury finding that the parties were partners. While the evidence may have been sufficient to-establish some form of a profit-sharing agreement, we do not deem it sufficient to establish a parol agreement to create an immediate existing partnership upon the terms found by the jury.

The judgment of the trial court is accordingly reversed, and this cause remanded.