author: PHILLIPS, Justice.

text:
    Stella S. JACKSON et vir, Appellants, v. Elbert C. FEELER, Appellee.
    No. 11211.
    Court of Civil Appeals of Texas. Austin.
    June 10, 1964.
    Rehearing Denied June 24, 1964.
    Hardeman, Smith & Foy, Justin A. Kever, San Angelo, for appellants.
    Lewis, Blanks, Thigpin, Logan & Steib, Upton, Upton, Griffis, Shannon & Porter, San Angelo, for appellee.
   PHILLIPS, Justice.

This is a suit for damages arising out of an automobile collision at the intersection of 40th Street and Bowie in San Angelo.

Upon a favorable verdict, the Trial Court entered judgment for the plaintiff. We affirm the judgment of the Trial Court.

Bowie Street lies in a north south direction while 40th Street intersects it from east to west. Mrs. Jackson, the defendant below and the appellant in this Court, was driving east on 40th; the plaintiff below and appellee here, Mr. Feeler, was driving north on Bowie. The accident occurred when the appellant drove her car into Bowie and there was a collision between her pick up truck and appellee’s automobile.

There was a stop sign at the corner of 40th and Bowie and the evidence is uncon-tradicted that appellant did not see the stop sign; however, there is conflicting evidence as to whether she stopped at the sign.

Appellant testified that she stopped at the sign; however, she also testified as follows :

“Q. All right. And that was after you stopped here (Indicating on blackboard) ?
“A. Yes.
“Q. About where did you stop, Mrs. Jackson?
“A. I was over kind of to the left on 40th Street, because there was two little tiny boys back down, stand'ing on the street; one of them was on the' curb and the other one was away out, little bitty fellows.
“Q. Back right in here (indicating) ?
“A. Yes; and I was going real slow, and I just slowed down, slowed down and looked both ways and didn’t see anything, and turned to the right. Now, that is all that I can tell you, except when we hit and the next thing I knew I was facing north. * * *
"Q. It is your testimony you did come to a complete stop?
“A. I think I did; I changed gears, and—
“Q. Do you know now? Of course, that is important. Do you remember now whether you did come' to a stop, a complete stop; or is the correct answer that you are not sure?
“A. I had to come to a stop.
“Q. You had to come to a stop?
“A. I changed gears, but I still didn’t see the stop sign; hut you are supposed to stop and wait. And I just looked and didn’t see anything, and turned to the- right.
“Q. You just kind of came to a rolling stop and then changed gears and turned to the right; is that right ?
“A. I stopped enough to look to see if there wasn’t any cars coming and I didn’t see one, and I put it in low and I changed gears and turned to the right. Now, that’s all I can tell you, and the next thing I knew I was — * * *
“Q. I see. Mrs. Jackson, I am going to stop asking you questions in just a minute, maybe one or two more questions and we will be through. You say when you came there to the stop sign that you changed gears, do you remember whether you changed into low or into second gear, do you remember how you changed gears?
“A. I think I changed in second.
“Q. You feel you came to a complete stop because you changed gears at the time, is that correct?
“A. Yes.
“Q. All right.
“A. I was watching these little boys. I didn’t want to hit one of them because I had just been to see one.”

In addition to the above testimony, a witness Ricks who had been driving directly behind the plaintiff testified that appellant had failed to stop at the stop sign.

Further testimony admitted over appellants’ objection was as follows:

“Q. (to Mr. Ricks) Will you state to the jury what this person you do not know his name but he made the statement to Mrs. Jackson immediately after the collision occurred, what that statement was?
“A. He asked her if she didn’t see that stop sign; and he asked her, said, ‘Did you know that you run a stop sign ?’ And I heard Mrs. Jackson say, ‘Well, I was looking at some boys on a bicycle.’ ”

This last reported conversation allegedly took place at the scene of the accident some five minutes after it happened.

The defendants’ witness Edwards testified that the plaintiff had passed his auto about a block before reaching the intersection in question and that when the collision occurred, the plaintiff was still in the left hand lane. Two police officers testified that due to the position of the cars, the debris about the scene and the tortion marks on the pavement, that it was their opinion that the point of impact was well within the right hand lane.

As to speed there is testimony that ap-pellee was driving 20 miles an hour and other that he was driving thirty miles an hour. There is testimony that the appellant turned slowly into 40th Street and other that she was driving approximately 25 miles an hour as she turned into the street.

The jury found that appellant failed to keep a proper lookout, and that such was the proximate cause of the accident, that she failed to apply her brakes in sufficient time to prevent the collision, that such failure was not negligence. That appellant failed to stop her vehicle before entering the intersection, that such was negligence and the proximate cause of the accident. That she failed to yield the right of way to the appellee, that such was negligence and the proximate cause of the accident. That appellant failed to sound her horn, however that this was not negligence. The jury found that appellant had not driven her car at an excessive rate of speed.

As to appellee, the jury found that he failed to keep a proper lookout; however, that this was not the proximate cause of the collision. That appellee failed to apply his brakes in sufficient time to prevent the accident, however, that this was not negligence. That appellant’s vehicle entered the intersection before appellee. That appellee failed to yield the right of way but that this was not negligence. That appellee failed to sound his horn but this was not negligence. That appellee was not driving at an excessive rate of speed. That appellee was not in the left lane at the time of the collision. That he failed to turn his truck to the right but that this was not negligence. That the collision was not the result of an unavoidable accident.

Appellants’ first assignment of error is that the Trial Court erred in overruling defendant’s motion for judgment and overruling appellants’ motion non obstante vere-dicto, and overruling their motion for a new trial for the reason that the verdict is contrary to the great preponderance and weight of the evidence.

We overrule this point. The jury is the trier of the facts and there was ample evidence to sustain their findings. From the testimony outlined above and from the answers to the special issues submitted, it is apparent that the jury believed that appellant failed to stop at the stop sign and while watching the young children playing at her right near the intersection, drove her car into the intersection without keeping a proper lookout for the oncoming plaintiff. That while the plaintiff himself had failed to keep a proper lookout, he could not have prevented the accident.

Appellants’ second point of error is that of the court in permitting witness Ricks, over timely objection, to relate a purported statement by some third party. This is in regard to the testimony set out above where appellee’s witness Ricks was allowed to testify that he heard an unidentified party at the scene of the accident and some five minutes after it had happened ask Mrs. Jackson (appellant) “Did you know that you run a stop sign?”, to which Mrs. Jackson answered “Well, I was looking at some boys on a bicycle.”

The declarations objected to are hearsay; however, we hold that they are admissible as an exception to the rule and res gestae. In McCormick and Ray, Texas Law of Evidence, Vol. 1, Sec. 924, p. 707 we find the following:

“The confusion of the present exception with cases of so-called verbal acts, i. e., declarations which are themselves material as being operative facts has led some courts to lay down the requirement that Spontaneous Declarations are only admissible when uttered by one who participated in the exciting happening, and this has found expression in some Texas decisions. Such a doctrine of course would exclude bystanders’ utterances. The requirement, however, with the recognition of the true basis of the admission of these declarations, has largely been abandoned as it has little relation to the reasons underlying the admission of the evidence, for the excitement caused by a startling event is by no means limited, as a rule, to the actual participants. Our decisions now clearly recognize this, and correctly admit spontaneous declarations of non-participating onlookers.” (Citing cases.)

See Carrick v. Hedrick, Tex.Civ.App., 351 S.W.2d 659.

In the case at bar, the argument for the statements being considered as res gestae is stronger in that a pertinent part of the statements come from the appellant herself, an actor in the chain of events and in itself clearly a part of the res gestae. If the bystander, for purposes of argument, had not been present at the collision, but had asked her immediately thereafter whether she had stopped at the sign, her spontaneous answer would still be pertinent, and, we believe, admissible. We overrule appellants’ second point.

Appellants’ third point of error is that of the court in refusing to submit appellants’ issue as to whether appellee had his automobile under proper control with the related issues of negligence and proximate cause.

We overrule this point under the authority of Blaugrund v. Gish, Tex.Civ.App., 179 S.W.2d 257; Id., 142 Tex. 379; 179 S.W.2d 266, loc. cit. 269; Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143. The Trial Court gave the defendant an affirmative submission of each and every constituent element of the general special issue of failure to maintain proper control. These issues were plaintiff’s failure to keep a proper lookout, his failure to apply his brakes, his failure to yield right of way to defendant, his failure to sound his horn, question as to his excessive speed, his driving to his left side of the center of the roadway, his failure to turn his truck to the right. Here, all the constituent elements of control under the pleading and evidence were submitted.

The judgment of the Trial Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: FRASER, Chief Justice.

license: Public Domain

text:
    Walter D. RAGSDALE et ux., Appellants, v. Irma GRIFFIN et vir, Appellees.
    No. 5635.
    Court of Civil Appeals of Texas. El Paso.
    June 10, 1964.
    Rehearing Denied June 24, 1964.

      Jack L. Hart, Midland, Luther E. Jones, Jr., Corpus Christi, for appellants.
    Clark, Thomas, Denius & Winters, and James H. Keahey, Austin, for appellees.
   FRASER, Chief Justice.

This is a trespass to try title action brought by appellants involving a royalty interest and two mineral interests in certain lands in Winkler County, Texas. In compliance with Rule 783, Texas Rules of Civil Procedure, appellants pleaded that they are “the owners in fee simple and entitled to the possession” of these interests, and that “on the 1st day of August, 1962 the defendant unlawfully entered upon and dispossessed the plaintiffs of such premises and now withholds from plaintiffs the possession thereof.” Defendant, joined pro forma by her husband, answered “not guilty”. Trial was to the court without a jury, and the court entered judgment containing findings of fact and holding that appellants take nothing and that appellee Irma Griffin be vested with all the right, title and interest in and to the involved property.

Defendant was, in 1929, married to N. H. (or Newman) Hill. In 1933 they separated and were divorced. Defendant testified that they had an agreement before the divorce that she was to keep the car she was driving and whatever property the couple had in Texas, and that he was to keep the car he was driving and all property, including bank accounts, real estate, oil interests, etc., outside of the State of Texas. Defendant testified that this agreement was consummated or verified by letter, which she kept for many years and as to the contents of which she was permitted to testify. There was ho other documentary evidence executed at that time. Defendant was permitted to claim and collect the checks from the oil companies on these interests in Texas up until the death of her first husband, N. H. Hill, in 1948. His will left everything to his mother, but did not mention any of these interests or describe them, nor were they included in any inventory of his estate. His mother died in 1952, and this action was brought by descendants in 1962.

Appellants have presented some 21 points of error. We will treat these, however, in groups for the sake of brevity and clarity.

We believe that the decision of the trial court should be affirmed for the following reasons. As to the royalty interest, appellees maintain—and we think successfully-—that appellants failed to prove any present right of possession to the royalty interest. It has been held that a royalty interest carries with it no possessory right in the property. Stephens County v. Mid-Kansas Oil & Gas Company, 113 Tex. 167, 254 S.W. 290, 29 A.L.R. 566; State of Texas v. Dayton Lumber Co., 106 Tex. 41, 155 S.W. 1178. We believe the above cases are controlling with respect to the royalty interest. Title to the royalty interest, there.fore, could not be destroyed by this sort of action, because it would be impossible to prove a right of possession, as none exists under the terms of a royalty interest. Appellees, who were defendants, pleaded “not guilty”, which put all the necessary elements in issue and, of course, appellants were unable to prove right of possession in their trespass to try title suit, and therefore their suit must fail for that reason, in so far as the royalty interest is concerned.

It does not seem to be contested that N. H. Hill was the common source or original owner of the property herein involved, as far as this lawsuit is concerned, as both sides appear to claim under and through him. We do not believe the record shows sufficient proof by appellants that N. H. Hill owned the property in question at the time of his death in 1948, as it was not mentioned in his will nor in any inventory of his estate. Nor do we believe that this matter can be properly presumed; nor can it be presumed, we think, that it was still in N. H. Hill’s estate at the time of the death of his mother some four years after his death, and that it passed from the estate of his mother to appellants.

The trial court found, also, that the will of N. H. Hill was not entitled to validity as a foreign will offered for probate in this state; this because the record shows that the will was made in Mississippi and its validity passed on by a Tennessee court, rather than a Mississippi court. We do not believe that such is entitled to full faith and credit; and it is further apparent from the record that the will did not meet Texas requirements.

It has long been the law that he who files a trespass to try title suit has the burden of proof, and such plaintiff must recover upon the strength of his own title— not on any weakness of the defendant’s title. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 and cases cited therein. We do not cite other authorities, as this matter is, by virtue of long-continued judicial enunciation, now considered elementary. Appellants’ proof, in our opinion, falls short of this requirement as evidenced by the fact that they rely upon what appears to be presumption, as set forth above, some presumptions depending upon prior presumptions as, for example, that the property was in Mr. Hill’s estate at his death and was, therefore, presumed to be in his mother’s estate at her death. Appellee rebuts this contention with her testimony that it was agreed by and between Mr. Hill and herself that this property should be and remain hers, and by her further testimony that there was a lost letter to that effect. We are here confronted with an attack on an alleged property settlement between a former husband and wife, which carried within its terms the right to own and profit from the interests herein concerned. It is clear from the record that appellee, without opposition from anyone, used and accepted the benefits of these mineral interests for 28 years after the alleged agreement between her and her first husband. The trial court apparently felt that her testimony as to the agreement between herself and her first husband was corroborated by the fact that each party did keep the car, as testified to by her, and that each party kept, used and enjoyed the property allocated to such party in the agreement outlined by appellee; and lastly, that no one, until the appellants here (who are descendants of appellee’s first husband’s mother) contested or contradicted appellee’s statement as to the terms of the agreement. The court, in its findings of fact, found that Newman H. Hill and defendant-appellee Irma Griffin made an agreed property settlement as set forth above, and that appel-lee is and has been, since 1933, the true and lawful owner of the property here in question. We think the trial court was justified in relying on the matters of corroboration set forth above, and that there were sufficient facts to justify these findings hereinabove mentioned. Although appellants attack appellee’s right of ownership and possession on the grounds of lack of consideration and the fact that it was an oral agreement, we believe that appellee presented satisfactory proof to the trial court of full performance in that she had performed all that was required of her under the agreement, thus entitling her to her part of the property allocated to her under said agreement. It is apparent that she never made any claim to any of Mr. Hill’s property, of any sort or nature whatsoever, located outside of Texas, for the more than 28 years after the agreement and until this suit was brought. She never tried to use or draw upon any of the bank accounts, or to take possession of any of the property of any sort whatsoever outside of the State of Texas. Therefore, we believe that the trial court was correct in holding that such an agreement existed and was fully carried out by both parties, with the result that the title and possession of the interests here involved became vested in appellee.

Therefore, in summation, we hold that the decision of the trial court should, in all things, be affirmed because there was sufficient corroboration and evidence to prove the existence of an agreement between ap-pellee and N. H. Hill involving the property here in question, and that such agreement was faithfully carried out and fully performed by both parties and that, as a result, appellee has become the rightful owner and possessor of these royalty and mineral interests. We also feel that appellants, as plaintiffs in this trespass to try title suit, were not able and did not fulfill the burden that the law places upon one who files such a suit. We do not believe that appellants were able to show or prove the strength of their own title; as, for example, the will of N. H. Hill was not a proper muniment of title recorded in Wink-ler County, Texas, nor is there any evidence other than presumption — and presumption on presumption — that this property remained in the estate of N. H. Hill and descended to appellants upon the death of Hill’s mother, to whom he had left his estate in his will. It is obvious that Hill lived in Tennessee and was not a resident of Mississippi, but was merely a patient there in a Veterans’ hospital when he died. We have no construction or validation of this will by the courts of the state wherein the will was made and executed. We therefore hold and believe that plaintiffs failed to show title in themselves; that appellee did show the right of possession and title in herself. This being true, the trial court was entirely correct in rendering a “take-nothing” judgment against the plaintiff-appellants. There being no other parties, this leaves appellee in the position of being the rightful owner and possessor of these mineral interests.

Appellants’ points of error are accordingly all overruled and the decision of the trial court is in all things affirmed.

PRESLAR, J., not sitting.


author: NORTHCUTT, Justice.

text:
    George D. HIPP, Appellant, v. James W. MOSS et al., Appellees.
    No. 7354.
    Court of Civil Appeals of Texas. Amarillo.
    May 25, 1964.
    Rehearing Denied June 29, 1964.
    Clayton, Martin & Harris, Amarillo, for appellant.
    Neal, Hazlewood & Wolfram, Amarillo, for appellees.
   NORTHCUTT, Justice.

James W. Moss, appellee, filed this suit in the trial court as plaintiff against A. D. Falls seeking the establishment and foreclosure of an artisan’s lien against a diesel tractor owned by Falls and to which repairs were made by appellee. George D. Hipp, appellant, intervened in the suit pleading a first, prior and superior chattel mortgage lien against such diesel tractor to secure the payment of monies due him by Falls and seeking foreclosure thereof. The case was tried to the court without a jury. The trial court entered judgment to the general effect that appellant had a first and superior chattel mortgage lien securing a portion of the monies due him by Falls but that appellee had a first and superior artisan’s lien as to the balance of monies owed by Falls to appellant. It is from that judgment of the trial court that appellant perfected this appeal.

Although the appellant presents this appeal upon twenty-six assignments of error, we are of the opinion the real and only issue to be determined is did the court err in giving the appellee a superior lien on the tractor in question as to a portion of the indebtedness owed to appellant by Mr. Falls as presented by appellant’s assignment of error No. 4, which we here sustain. Appellant had advanced to Falls $3,500 to apply as a down payment on the purchase price of his equipment including the tractor and signed a note with Falls payable to the American National Bank which was secured by a lien upon the tractor in question as shown upon the certificate of title to Falls. The note was payable in monthly installments. Sometimes Falls was not able to make the monthly payments and said payments were made by appellant. Finally, Falls told appellant that if he would pay the balance due on the note held by the American National Bank, he could hold the lien held by said bank as security for all that Falls owed appellant. On December 19, 1962, appellant paid to the American National Bank the balance due on said note and the note and mortgage were transferred to the appellant.

Appellee Moss had performed some labor upon the tractor and had furnished some materials used in his work on the tractor. On December 27, 1962, Moss filed suit against Falls for the amount due him for his labor and materials and had a writ of sequestration issued and served and asked for judgment for his debt with a foreclosure of his mechanic’s and repairman’s lien. Appellant replevied the truck. Appellant filed his plea of intervention as against Moss and Falls praying that he have judgment against Falls for his debt, damages, interest, attorney’s fees, and judgment against both Falls and Moss for foreclosure of his mortgage lien, an order of sale, cost of suit and judgment declaring that any right, title, or interest which Moss might have in said tractor be declared subordinate and inferior to the mortgage lien of appellant. Falls entered his appearance but did not answer or contest the suit of either party. The court rendered judgment in favor of appellant as against Falls for the full amount that Falls owed appellant and declared appellant had a superior lien to that held by Moss to the extent of the balance due on the note transferred to appellant by the American National Bank; that Moss held a prior lien to that of appellant as to the balance owed appellant by Falls.

The trial court in the findings of fact found appellant had actual knowledge of the existence of the artisan’s lien claimed by Moss as against the truck prior to the time suit was filed by Moss and that appellant had constructive notice and knowledge of the existence of the artisan’s lien claimed by Moss prior to the time the suit was instituted. The court further found neither prior to nor at the time appellant paid the American National Bank monies due it on the note executed by Falls and took an assignment of the note and chattel mortgage lien did Falls orally agree with appellant that such chattel mortgage covering the tractor involved would secure the payment of all the money owed by Falls to appellant.

There is no evidence in this record to substantiate that appellant had any notice, actual or constructive, prior to the filing of appellees’ suit. Neither is there any evidence to substantiate a holding that Falls never at any time orally agreed with appellant that such chattel mortgage covering the tractor involved would secure the payment of all the money then owed by Falls to appellant. In direct conflict with such holding, Falls testified: “When we agreed for him to pay it off, just like before, the tractor stood good for all I owed him.” He further testified in accordance with the agreement he had made with appellant the chattel mortgage on the truck was to secure the total amount that Falls owed appellant. He further testified that he owed appellant the amount sued for and did not contest it. The testimony of Falls was never contradicted by any witness, or attendant circumstances, and the same was clear, direct, and positive and free from contradictions, inconsistencies and circumstances tending to cast suspicion upon it. It should, therefore, be taken as true as a matter of law that such agreement was so made. Employers Liability Assur. Corp. v. Groinger & King, Tex.Civ.App., 299 S.W.2d 175 (N.R.E.) ; Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904; Springfield Fire & Marine Ins. Co. v. Wm. Cameron & Co., Tex.Civ.App., 96 S.W.2d 788 and cases there cited. There are neither pleadings nor evidence on the part of the appellee that he claimed a lien prior to that of the appellant. He had constructive notice of the indebtedness and lien held by the bank as shown by the certificate of title. Perkins v. Martel, Tex.Civ.App., 277 S.W.2d 741.

The parties to a chattel mortgage may agree it shall secure a later debt or one different from that described in the mortgage. Coleman Nat. Bank v. Cathey, Tex.Civ.App., 185 S.W. 661 (writ refused). Falls and the appellant had the right to enlarge the indebtedness secured by the mortgage by oral agreement at the time the mortgage was executed or by subsequent parol agreement in the absence of pleading and evidence showing the appellant knew of appellees’ artisan’s lien. Moore v. B. & M. Chevrolet Co., Tex.Civ.App., 72 S.W.2d 945; Sparkman v. First State Bank of Handley, 112 Tex. 33, 244 S.W. 127; G. M. Carleton Bros. & Co. v. Bowen, Tex.Civ.App., 193 S.W. 732.

We are of the opinion, and so hold, that since the testimony of Falls showed that he orally agreed that appellant Hipp was given a lien, as here contended, to secure payment of all that Falls owed him was undisputed and uncontroverted, and there being no other evidence as to such matter, it constitutes a question of law. Jones v. Hubbard, Tex.Civ.App., 302 S.W.2d 493; City of Waco v. Marstaller, Tex.Civ.App., 271 S.W.2d 722.

That portion of the judgment entered by the trial court granting appellee a prior lien to that of appellant as to a portion of appellant’s judgment against Falls is hereby reversed and judgment here rendered declaring all of appellant’s judgment against Falls to be a first and superior lien on the tractor to that of appellees’ judgment against Falls. The remaining portion of the trial court’s judgment is hereby affirmed.


text:
    PRODUCERS CHEMICAL COMPANY, Appellant, v. Billy Allen STAMPS and Lillian Burnett et al., Appellees.
    No. 7359.
    Court of Civil Appeals of Texas. Amarillo.
    June 1, 1964.
    Rehearing Denied June 29, 1964.

      See also, Tex.Civ.App., 346 S.W.2d 165.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, J. D. Crow, Canadian, for appellees.
   NORTHCUTT, Justice.

This an appeal from a judgment based upon a jury verdict in favor of Billy Allen Stamps and Lillian Burnett, et al, against Producers Chemical Company. Billy Allen Stamps recovered judgment for $56,918.50. A. H. Burnett had originally filed suit against Producers Chemical Company but died before the trial of his case. His death was not caused from any matters involved in this suit. Lillian Burnett, Louise Motley and husband Howard Motley, Marie Stone and husband Floyd Stone, and J. D. Crowe, Administrator of the Estate of A. H. Burnett, Deceased, were substituted parties for A. H. Burnett’s claim and recovered judgment for $19,895.20. It will be noticed that the jury found Stamps’ damages to be $61,521, but Tri-State Insurance Company had paid Stamps $4,602.50 under workman’s compensation and was entitled to reimbursement for that amount from the judgment. The same was true as to the claim of Burnett. The jury had found Burnett’s damages to be $25,195.20 and that Tri-State Insurance Company was due $5,300 of that amount. Since the Tri-State Insurance Company was granted judgment for the sums above mentioned and must rely upon the rights of Stamps and Burnett to recover, it will not be considered further in this appeal.

Originally, Stamps and Burnett had filed separate suits against Producers Chemical Company for damages for personal injuries suffered allegedly as a result of Producers Chemical Company’s negligence, but for convenience the two suits were consolidated for trial and also for this appeal. Producers will hereafter be referred to as appellant and the parties interested in the Burnett judgment and Stamps as appellees.

The case was submitted to a jury upon special issues. Under Special Issue No. 1 the jury found that Producers supplied a compressor which was defective in that it allowed lubricating oil to enter the outlet line; that the supplying of such compressor was negligence and a proximate cause of the explosion. The evidence was uncon-troverted that appellant’s compressor was a Model XOB air compressor made by Inger-soll-Rand and designed to compress air. There is testimony that appellant did not hold itself out as air drilling engineers, but there is evidence that appellant had used the air compressor for the purpose which it was designed to be used; that is, the compression of air. Mr. McDonald, appellant’s air compressor operator, testified that it was an air compressor, that he had unloaded holes with it before and had operated it off and ■on for nine years. The special issue did not inquire solely of McDonald, appellant’s operator. It inquired whether appellant was negligent in supplying a compressor which was defective in that it allowed lubricating ■oil to enter into the outlet lines. The jury found appellant supplied a compressor which was defective in that it allowed lubricating ■oils to enter the outlet line; that same was negligent and a proximate cause of the explosion; that appellant acting by and through its agent, servants and employees operated its compressor when the same was leaking lubricating oil through its pistons into the outlet line; that the same was negligence and a proximate cause of the explosion and appellant acting through its agents, servants and employees operated its compressor when the same had no device or ■devices for cooling the compressed air as it entered the outlet line; that the same was negligence and a proximate cause of the explosion. Judgment was granted upon the verdict in favor of the plaintiffs, ap-pellees here, for the amounts as found by the jury. From that judgment appellant perfected this appeal.

In appellant’s first group of points, appeal is based upon the theory that there was no evidence to sustain the jury finding that .appellant supplied a compressor that was defective in that it allowed lubricating oil to enter the outlet line; no evidence to ■sustain the jury finding that appellant was negligent in supplying such compressor; no evidence to sustain such finding of proximate cause and the evidence was insufficient to sustain the jury’s findings as to each of the questions.

E. S. McDonald, appellant’s field representative, was in charge of the compressor .and delivered it to the well-site at the instructions of appellant. The '-ompressor was attached by their discharge line to the well. There was a Manzell Oiler on the compressor to oil the valves. The compressor was around thirty years old. There was no pop-off valve on the compressor. A pop-off valve is for the purpose of preventing the pressure from going too high and is a safety device. There was no cooling attachment to cool the air that went from the outlet line that was going to the well. A cooling attachment was to prevent an excessive amount of temperature getting in the air that was going to the rig floor. Mr. McDonald gave all the above testimony and further testified that if you get air at an excessive heat where there is oil or hydrocarbon present, you would have an explosion and he knew that at the time of the explosion. McDonald knew the oil he was putting into the Manzell Oiler was leaking through the cylinder heads and going into the outlet line as there was no other place for the oil to go.

Mr. Watkins, president of appellant, had a college degree in geology and testified he knew what would happen when you compress air with respect to its temperature and knew the temperature increased. He further testified that if you compress air in a container where there was oil at some pressure there would be an explosion and if the temperature is raised high enough you are going to have an explosion. He knew that fact on the day of the accident and assumed that Mr. McDonald knew the same things as related by Mr. Watkins. There is other evidence favorable to the findings of the jury on these issues. ■ Appellant’s first four points deal with the no evidence and insufficient evidence to sustain the findings of the jury. If there is any evidence of probative force to support the findings of the jury, such findings are conclusive and binding on both the trial court and this court unless the evidence as a matter of law requires a conclusion contrary to the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 and cases there cited. We are of the opinion there was sufficient evidence to sustain the jury finding that the compressor was defective in that it allowed for lubricating oil to enter the outlet line; that that was negligence and was a proximate cause of the accident. Appellant’s first four points of error are overruled.

Appellant’s points five, six and seven complain of the submission of special issue 1-a since appellant might possibly be liable as a supplier of a defective chattel as a theory of recovery separate and distinct from the theory that appellant was negligent in the operation of the compressor. The appellees pleaded the compressor was defective in that it allowed lubricating oil to enter the outlet line. It is undisputed that the compressor leaked oil which was going into the outlet line as that was the only place the oil could go. The jury then only had to find, was that a defective compressor? If the compressor had been in such condition that no oil was leaking, and the explosion was caused by the hot air coming in contact with the oil, there would not have been an explosion. As to appellant’s contentions that said issues la, b, and c were wrong because there was omitted from said issue the inquiries constituting the necessary pre-requisites to liability as the supplier of a defective chattel, particularly that appellant knew that it was supplying a compressor for use under circumstances where its compressor would be fed by air rather than gas, we are unable to understand this contention because there is no question but that the compressor was to be fed air, and was known by appellant’s agents, and no showing that gas was ever to be used. See Producers Chemical Company v. McKay, 366 S.W.2d 220. Many other points discussed in that case are applicable herein. Appellant’s points of error five, six and seven are overruled.

Appellant’s points of error eight through fifteen concern the submission of special issues four and six contending there was no evidence and insufficient evidence to sustain such findings. In issue four the jury found that appellant, acting through its agent, servants and employees, operated its compressor when the same was leaking lubricating oil through its pistons into the outlet line; same was negligence and a proximate cause of the explosion. In issue six the jury found the appellant acting through its agents, servants and employees operated its compressor when the same had no device for cooling the compressed air as it entered the outlet line; same was negligence and a proximate cause of the explosion. It is appellant’s contention as to issues four and six that the evidence did not make a fact issue for the jury’s determination with respect to negligence on the part of appellant in any particular pleaded by ap-pellees; that the evidence did not make a fact issue for jury determination with respect to causation and that the evidence did not make a fact issue for determination with respect to foreseeableness.

We are of the opinion, and so hold, the pleadings and evidence show the appellees presented their case upon the theory that appellant furnished through its servants, agents and employees a defective compressor pumping oil to be used for appellant’s own business purposes and also the negligence of its employees in the manner in which they operated the compressor supplied for its own business purposes. From the evidence introduced, McDonald, the appellant’s employee, had full control of the manner in which the compressor was operated in performing the services necessary to accomplish the obligation for which the compressor was hired. We have given some of the evidence above as to the facts here involved but here tender additional evidence. Appellant’s agent McDonald already knew that the compressor was leaking oil; yet, he did not tell Sears or his employer of this fact; knew that it was an air compressor; knew that an air drilling operation was being employed and that appellant’s compressor had to be force fed by the small compressor; was requested to tie in between the small compressor and the rig floor agreeing with Mr. Sears that this method was satisfactory; on two separate occasions the compressor failed to build up any pressure. After failure twice McDonald then added a pint of oil to the Manzell Oiler knowing at that time an entire pint of oil had already gone through the cylinder head into the outlet line towards the rig floor; told no one of this hut started up a third time building up a steady pressure between 1,025-1,050 pounds in several minutes ; knew at the time that when air is compressed the temperature rises; that the type of oil going through the Manzell Oiler was a hydrocarbon type and that when air is compressed to an excessive heat with hydrocarbon present in an enclosure from which it cannot escape, an explosion occurs and knew all of this on the day of the accident. He further knew that the air compressor did not have a device for cooling the compressed air as it entered the outlet line; that such an apparatus was a safety device for lowering the temperature and thus eliminating the ingredient of an explosion. We overrule appellant’s points of error eight through fifteen.

Appellant’s points sixteen through twenty-one deal with the question of loaned employee principle. Appellant states, “The common thread which runs through these points is the loaned employee principle.” The main point here raised under appellant’s assignments of error sixteen through twenty-one seems to be the refusal by the court to admit in evidence appellant’s exhibits one, three and four and further because the court refused to give the appellant’s requested issue as to whether McDonald subjected himself and appellant’s compressor and employees to the control of Canadian River Drilling Company with respect both to the work to be done and the manner in which it was to be done. We are unable to find any evidence in this record to justify any holding that Canadian River Drilling Company had any right of control of the compressor or its workings. McDonald had the full control of the compressor and so testified. We think these points have been clearly determined in Producers Chemical Company v. McKay, 366 S.W.2d 220 (Sup. Ct.) where the court stated:

“Whether general employees of one employer have, in a given situation, become special or borrowed employees of another employer is often a difficult question, particularly when employees are furnished with machinery by their general employer to accomplish part of a project or contract undertaken by another. Solution of the question rests in right of control of the manner in which the employees perform the services necessary to accomplishment of their ultimate obligation. If the general employees of one employer are placed under control of another employer in the manner of performing their services, they become his special or borrowed employees. If the employees remain under control of their general employer in the manner of performing their services, they remain employees of the general employer and he is liable for the consequences of their negligence. Restatement of the Law of Agency, Vol. 1, § 227; 35 Am. Jur., Master and Servant, 970, § 541; 57 C.J.S. Master and Servant § 566, pp. 284-291. As the Supreme Court of the United States put it in The Standard Oil Co. v. Anderson, 212 U.S. 215, 221-222, 29 S.Ct. 252, 254, 53 L.Ed. 480:”

We think the record in this case clearly involves the principle decided in the McKay case. Appellant’s points sixteen through twenty-one are overruled.

Under appellant’s twenty-second point of error it is contended the court erred in not submitting appellant’s requested special issue number 11 as to sole proximate cause. The court submitted the issue of sole proximate cause in such manner as to cover any issue as requested and was not required under Rule 279 to submit other and various other phases or different shades of the same issue. Under this record, we arc unable to see where there is anything to justify the submission of an issue as to the acts of Sears (manager of Canadian River Drilling Company) or Well Completions, Inc. or the two in combination being the sole proximate cause. Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951. Appellant’s point of error twenty-two is overruled.

Appellant’s twenty-third point of error contends the court erred in refusing its requested issue seven whereby it sought submission of the sole proximate cause issue as pleaded by it. Requested issue seven asked if from a preponderance of the evidence appellant’s compressor was designed for use in air drilling. It seems to be the theory of appellant that the compressor was designed to use gas and not air. Douglas testified the compressor was a type XOB air compressor. The fact that it might have been different if gas had been used instead of air makes no difference under this record because the entire record shows that it was furnished for and knew it was using air and not gas. McDonald, the appellant’s agent, went with the compressor to do the work it was doing at the time of the explosion and knew it was using air. Appellant’s point of error twenty-three is overruled.

What we have heretofore stated we think disposes of appellant’s points of error twenty-four and twenty-five. Under point of error twenty-four the appellant is contending the court erred in not granting its requested issue asking if it was the negligence of either Canadian River Drilling Company, Well Completions, Inc. or the two in combination if the jury found in answer to issue four and six that the appellant had operated its compressor when the same was leaking oil through its pistons into the outlet lant operated the compressor when the same had no device for cooling the compressed air as it entered the outlet line. Issue four submitted by the court asked if appellant operated its compressor when the same was leaking through its pistons into the outlet line and under six if appellant operated a compressor when the same had no device for cooling the compressed air as it entered the outlet line. We are unable to see under this record where either Canadian River Drilling Company and Well Completions, Inc. or the two in combination had any right of control or operation of said compressor. We again refer to Producers Chemical Company v. McKay, 366 S.W.2d 220 at 226 where it is said:

“Mere directions given to McDonald as to where to hook up, when to start and when to shut down the compressor in coordinating the work of all men and machinery on the project toward the ultimate object of unloading the hole does not raise the issue that right of control of McDonald in the manner of performing his work had been transferred from Producers to Canadian River. The Standard Oil Co. v. Anderson, supra. We hold that the trial court did not err in refusing to submit the issue to the jury.”

As to appellant’s point of error twenty-six complaining of the appellees’ examination of the witness as to appellant using Chevrolet rings in the compressor, even if error, we believe it would be harmless error since it could only be considered as evidence helping to establish that oil was leaking from the compressor and going into the outlet line. It is undisputed that the compressor was leaking oil and that the only place that oil could go was into the outlet line. If the admitting of such evidence should be error, but we do not think it was, we cannot say such was reasonably calculated to cause or probably did cause rendition of an improper judgment and such ruling would not be grounds of reversal. Rule 434; Leyendeclcer v. Harlow, Tex.Civ. App., 189 S.W.2d 706 (Writ Refused WM). Appellant’s twenty-sixth point of error is overruled.

We have carefully considered appellant’s remaining points of error which generally complain of the admissibility of the evidence concerning Sear’s knowledge of the defective compressor; argument of appellees’ counsel; excessiveness of the verdict and the admissibility of reading the testimony of Jones as given on the venue hearing. We overrule all of appellant’s remaining points of error as we find no reversible error in any of them. We think the main points of this appeal have already been determined contrary to appellant’s contentions as is shown in Producers Chemical Company v. McKay, Tex.Civ.App., 348 S.W.2d 91 and 366 S.W.2d 220.

The judgment of the trial court is affirmed.


author: CHAPMAN, Justice.

text:
    CITY OF AMARILLO et al., Appellants, v. Sid CARTER, d/b/a Carter Trucking, Appellee.
    No. 7358.
    Court of Civil Appeals of Texas. Amarillo.
    May 18, 1964.

      Kenneth W. Gentry, Amarillo, for appellants.
    Neal, Hazlewood & Wolfram, Amarillo, for appellee.
   CHAPMAN, Justice.

This is an appeal from a take-nothing judgment for Sid Carter d/b/a Carter Trucking rendered by the trial court against four taxing units; City of Amarillo, Amarillo Independent School District, Amarillo College District, and Amarillo Hospital District in a suit tried to the court for collection of alleged delinquent ad valorem taxes on trucks and trailers used by Carter in hauling cattle.

During the years involved Carter lived in Randall County within the Canyon Independent School District and outside of all the appellant taxing districts. During the three years involved, 1958, 1959, and 1960, Randall County and Canyon Independent School District assessed the equipment for taxes and Carter paid the taxes due on the assessment. The hauling equipment was utilized over fifteen states and was kept moving in so far as he could keep it in use on hauls. No effort was made by the taxing authorities to show the equipment was located within the boundaries of their districts on January 1 of any of the various years.

Before 1958, Mr. Carter was engaged in the feedlot business at Western Stockyards in Amarillo, Potter County, Texas, and within the territory of the three taxing units. He owned no real estate in connection with the operation and the feedlot business was a completely separate business to his hauling. Also, before 1958 he operated a service station on the Stockyards property, which he leased from Western Stockyards Company. Before 1958 he sold his interest in that project.

While operating the service station, he owned a small building built on skids called the “Dog House” which was used as a shelter tor truck drivers employed by many track operators to get them out of the weather and out of the way of the service station attendants. Also, in connection with the service station operation it was necessary to provide considerable parking space for transient trucks, which area was located behind the service station on Western Stockyards property. Those trucks operated by individuals and companies in other counties and states were parked in the area just as were Carter’s trucks. The “Dog House” was sold when he disposed of his interest in the service station.

The basic constitutional authority in Texas for levying and collecting taxes such as here involved is contained in Article 8, Section 11 of the Constitution of Texas, Vernon’s Ann.St, providing in part as follows: “All property, whether owned by persons or corporations shall be assessed for taxation, and the taxes paid in the county where situated.”

The Constitutional provision with respect to taxation was implemented in August of 1876 by the first legislature which met after our Constitution was adopted by the people on February 15, 1876. In the first codification of 1879 Article 4676 provided: “All property, real and personal, except such as is required to be listed and assessed otherwise, shall be listed and assessed in the county where it is situated,” thus using language very similar in meaning to that used in the Constitution.

The next codification in 1895 carried in Article 5068 the exact language as that just quoted in Article 4676 of the 1879 codification. Then in the codification of 1911 those articles just named were carried over into Article 7510 and enlarged to provide for listing and assessment of personal property temporarily removed from the state or county.

In the codification of 1925, our present statute, Article 7153, the successor statute to 7510 of the 1911 codification carries the same language as Article 7510 of the 1911 codification.

Tile one point of error raised by the taxing units is that the trial court erred in rendering judgment for appellee because the evidence shows as a matter of law that the taxable situs of the trucks and trailers in question was within appellant’s taxing districts for the years 1958,1959, and 1960. To justify such contention appellants contend the common law rule of “mobilia sequuntur personam” has been abrogated, arguing that because the trucks and trailers were located at the Western Stockyards part of the time that constituted the situs for the purpose of taxation under Article 8, Section 11 of the Constitution above quoted.

“The Constitution is not to be given a technical construction, but must be construed in an equitable manner, so as to carry out the great principles of the government.” Great Southern Life Ins. Co. v. City of Austin, 112 Tex. 1, 243 S.W. 778; Nolan v. San Antonio Ranch Co., 81 Tex. 315, 317, 16 S.W. 1064.

The first case just cited also holds that state constitutions shall be construed in the light of the common law.

Article 8, Section 11 of our Constitution states the taxes shall be paid where the property is situated. “Since it had reference to the taxing power, it evidently meant property where sihtated for the purposes of taxation under the general principles of law as .then understood,” the common law. Under such law “mobilia sequuntur per-sonam” was a well-established maxim and such personal property was taxable at the domicile of the owner regardless of its location. Great Southern Life Ins. Co. v. City of Austin, supra.

The City of Fort Worth attempted to collect taxes on part of the rolling stock of Southland Greyhound Lines, a corporation domiciled in San Antonio but with division headquarters in Fort Worth with machine shops and division officers permanently located there and a certain number of buses there permanently in order to take care of regular schedules in and out of the city. Our Supreme Court affirmed the Court of Civil Appeals holding to the effect that the bus company was not liable for taxes assessed against rolling stock in Tarrant County, it having paid all of its taxes due in San Antonio, Bexar County. City of Fort Worth v. Southland Greyhound Lines, 123 Tex. 13, 67 S.W.2d 361 (Com.App. opinion adopted).

The City of Fort Worth in the case just cited showed a stronger case for the right to tax than the taxing units here, in our opinion. Mr. Carter maintained no shops or garages here for maintenance of his equipment and had the equipment parked at the Stockyards only while waiting for cattle to load following the sales at the Stockyards just as other cattle haulers all over the country. Since Western Stockyards was the “biggest one point in the world for distribution of stacker and feeder cattle” and Mr. Carter owned many hauling units it was natural that some of his equipment was always there waiting to be loaded with cattle from the Stockyards. His contracts for hauling were made almost exclusively by telephone at his home at nights and his office at the Stockyards was kept in connection with his cattle feeding project and interests other than hauling cattle. The record on Truck No. 17 for one month was introduced as representative of his hauling. It showed 17,577 miles for October 1958 with 4,036 miles in Texas; 4,428 miles in Oklahoma; 7,629 miles in Colorado; 9,094 miles in New Mexico; and 2,038 miles in Kansas, and the out of state earnings were much more than in Texas.

The second clause of our present Article 7153 provides “ * * * all personal property, subject to taxation and temporarily removed from the State or county, shall be listed and assessed in the county of the residence of the owner thereof, or in the county where the principal office of such owner is situated.”

Clearly the property sought to be taxed here is movable property temporarily out of the county and state such as contemplated in the second clause of Article 7510, Revised Statutes, 1911 and its successor article, 7153.

Since our Supreme Court in the Great Southern Life Insurance Co. case above cited held the constitutional provision is to be construed according to common law principles, leaving the field open for reasonable legislative action, let us now consider the second clause of Article 7153.

We believe it fair to say that the weight of authority indicates that transient movable property under the common law has a tax situs at the domicile of the owner. As stated in the Great Southern Life case: ■“This is still the basic principle upon which the taxation of personal property rests.” See also City of Forth Worth v. Southland Greyhound Lines, supra; Commonwealth v. Union Refrigerator Transit Co., 118 Kentucky 131, 80 S.W. 490, 81 S.W. 268; Chemical Express Company v. City of Roscoe, Tex.Civ.App., 310 S.W.2d 694 (writ refused).

It is true these cases just cited involved corporations and our case involves an individual. There seems to be no Texas cases distinguishing the phrases in the second clause of Article 7153 “in the county of the residence of the owner thereof” and “county where the principal office of such owner is situated.” Appellee has projected three theories of construction of the phrases. Since the legislative intent is to incorporate the common law rules, we believe the reference to the county of residence and the county of the principal office applies to the common law rule that an individual is domiciled at his residence and a corporation at the place of its principal office as suggested in his second projection. In any event, there is plenty of probative evidence in this case by which the trial court, the fact-finding body, could have impliedly found that Mr. Carter’s principal office for his cattle hauling was at his residence where practically all his contracts for such hauling were made.

There was no request here for findings of fact or conclusions of law. In the absence of such request the trial court’s judgment implied all necessary fact findings in support of the judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643.

Even if it be said that the court’s judgment involved mixed findings of facts and law, the judgment being supported by sufficient facts is binding on this court. Taliaferro v. Cundiff, 33 Tex. 415; Lamm & Co. v. Brannon, Tex.Civ.App., 244 S.W. 256.

Accordingly, the judgment of the trial court is in all things affirmed.

      . Movables follow the person.

      . Great Southern Life Ins. Co. v. City of Austin, supra.


text:
    PRODUCERS CHEMICAL COMPANY, Appellant, v. WELL COMPLETIONS, INC., Appellee.
    No. 7336.
    Court of Civil Appeals of Texas. Amarillo.
    May 18, 1964.
    Rehearing Denied June 22, 1964.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellee.
   NORTHCUTT, Justice.

Originally, Billy Allen Stamps and A. H. Burnett brought separate suits against Producers Chemical Company for personal injuries caused from an explosion. The two suits were later consolidated for trial. Producers Chemical Company impleaded Well Completions, Inc. seeking contribution and/or indemnity. Well Completions, Inc. sought a severance from the Stamps and Burnett case. The severance was allowed by the court and was filed in Cause No. 1201 and styled Producers Chemical Company vs. Well Completions, Inc. Well Completions, Inc. made a motion for an instructed verdict in its favor. The motion was granted and the jury returned a verdict as directed and judgment was entered by the court that Producers Chemical Company be denied recovery and take nothing by reason of its complaint against Well Completions, Inc. From that judgment Producers Chemical Company perfected this appeal.

This appeal is presented upon three points of error. All three of the points involve the question of whether there was a fact issue for determination with respect to whether the appellee was a joint tortfeasor from whom appellant was entitled to contribution under the provisions of Article 2212, R.C.S. and whether the trial court erred in directing a verdict in favor of appellee.

If there were sufficient facts showing joint tortfeasors the appellant was entitled to have the appellee retained in the original suit and would be deprived of a valuable right by the court granting a severance and then instructing the verdict for the appellee. Goldstein Hat Mfg. Co. v. Cowen, Tex.Civ.App., 136 S.W.2d 867 (error dismissed").

Canadian River Drilling Company first commenced drilling operations at a well site some eight to ten days prior to the explosion in question and drilled with mud for three or four days before it was decided to continue drilling with air in lieu of mud. Mud or air would be forced under pressure into the well hole to circulate through the hole and remove any cuttings or fluid that accumulated in the hole. At the time in question they had made about seventeen hundred feet of hole with mud and surface pipe had been set. Up to this point neither Well Completions, Inc. nor Producers Chemical Company had arrived on the job. At some time prior to the explosion in question, Well Completions, Inc. moved onto the location with what has been described in the statement of facts as a small air compressor for use by Canadian River Drilling Company in their drilling operations. Canadian River Drilling Company was the one drilling the well for whom Stamps and Burnett were working. It was at this point that Canadian River Drilling Company switched from mud drilling operations to an air drilling operation. A man by the name of Lloyd Jones, an employee of Well Completions, Inc., was in charge of and operated the compressor furnished by Well Completions, Inc. Ap-pellee came on the job pursuant to a written contract with Canadian River Drilling Company which read in part as follows: “We, Well Completions, Incorporated, in rendering services requested by the customer, do so as an Independent Contractor, recognizing that at all times the customer has complete custody and control of the well, the conditions created in the well, the drilling equipment and the well premises.” Appel-lee had no responsibility on the job other than the operation of its compressor under the direction and guidance of the employees of Canadian River Drilling Company but in fact never undertook to do anything in connection with the drilling operations other than operate their own compressor and to furnish air from such compressor when requested by the employees of Canadian River Drilling Company.

After making some fifteen hundred to seventeen hundred feet while using air, the employees of Canadian River Drilling Company started out of the hole and got stuck. After getting unstuck it was necessary to clear the hole of water and other fluid and it developed that the appellee’s compressor could not develope sufficient pressure to clear it.

H. F. Sears acting on behalf of Canadian River Drilling Company realized that more pressure would be needed in order to clear the fluid from the hole. He knew that Producers Chemical Company had a compressor in the vicinity of Pampa or Borg-er, Texas, having used it himself on prior occasions both with and without an operator being furnished by Producers Chemical Company. He, therefore, contacted a Mr. Moore, station manager for Producers Chemical Company’s station, and arranged to have the Producers Chemical Company compressor brought to the location. Mr. Moore in turn notified a Mr. McDonald, an employee of Producers Chemical Company, and he along with two 'other employees of Producers Chemical Company brought the compressor to the well site on March 13, 1959. Neither Mr. Jones nor anyone associated with the appellee participated in any way in arranging for the presence of the Producers Chemical Company’s compressor. .

Mr. Jones testified that he was not familiar with the compressor brought on the location by Producers Chemical Company; was not familiar with the Manzell oiler which was the lubricating device used by appellant; did not consider it his obligation to inspect the type of equipment that Mr. Sears had sent for and did not in so far as he knew have any authority to tell the man that was operating the compressor what to do with it, how to hook it up or anything else and did not feel any obligation to determine whether or not the equipment could be safely used m air drilling as he did not know anything about it.

On arriving at the well site, Producers Chemical Company’s employees, with possible assistance from Mr. Sears, disconnected appellee’s line from the well rig and connected the Producers Chemical Company compressor to a line which ran from the Producers Chemical Company compressor to the well rig. They then connected a line running from Well Completions, Inc.’s compressor to the Producers Chemical Company compressor. This operation took place after a joint conference between Sears and McDonald in which Mr. Sears explained the problem to Mr. McDonald and what was needed to be accomplished. No representative of Well Completions, Inc. was present at this conference. Thereafter the air operation was conducted under the joint supervision of Mr. Sears and Mr. McDonald with Mr. Sears taking the lead in making necessary decisions. No employee of Well Completions, Inc. assisted in the hooking up of the lines or any way supervised, controlled or participated in the operation.

Appellant’s employee would signal appellee’s employee when he was ready and how much air appellant’s compressor could take and appellee’s employee furnished the amount of air requested by appellant’s employee. Appellee not having any connection whatever with the entire transaction and not connected with the well rig in any way and only furnishing the amount of air to appellant when as requested by appellant, we believe, and so hold, the trial court was authorized in granting a severance and instructing a verdict for the appellee. It is stated in Pure Oil Company v. Fowler, Tex.Civ.App., 302 S.W.2d 461 (N.R.E.) as follows:

“Appellant’s fourth point complains because the trial court severed appellee’s cause of action against appellant and First National Bank in Dallas from the remainder of the case. We see no harm resulting to appellant from the severance. The various cross-actions and third-party actions may involve extended litigation which might well delay, though it would not defeat appellee’s right to recover. Under Rules 41, 97(h) and 174, T.C.P., trial courts are vested with large discretion in the matter of severance and separate trials of causes of action. McGee v. McGee, Tex.Civ.App., 237 S.W.2d 778. The severance here certainly was not an abuse of discretion. Appellant’s fourth point is overruled.”

Finding no reversible error, the judgment of the trial court is affirmed.


author: SELLERS, Justice.

text:
    Henry BREITKREUTZ, Appellant, v. CENTURY WESTERN, INC., Appellee.
    No. 47.
    Court of Civil Appeals of Texas. Tyler.
    May 28, 1964.
    Rehearing Denied June 25, 1964.

      Jim S. Phelps, Houston, for appellant.
    Theodore Goller, Eikel, Feltner & Goller, Houston, for appellee.
   SELLERS, Justice.

The transcript in this cause was filed in the Court of Civil Appeals on November IS, 1963. The statement of facts was filed in this Court of Civil Appeals on the 3rd day of April, 1964, after receiving two extensions of time in which to file statement of facts, the last of which was contested by the appellee.

This case was set by this Court for submission and oral argument on May 18, 1964, at Houston, Texas. Notice of this setting was duly given by the Clerk of this Court to appellant on March S, 1964. On May 4, 1964, appellant filed his application for an extension of time for filing of his brief and for the postponement of submission and oral argument to some future date. The only ground for good cause set out in this motion was the fact that the attorney for appellant was busy in a political campaign and did not have time to brief the case. To this motion appellee duly filed its contest to the extension of time to file brief by appellant, for the reason that no good cause was shown.

These motions were duly argued on the date this cause was set for submission. The appellant, in his oral argument, contended that he was mislead by the attorneys for ap-pellee in that his secretary had asked the attorneys for appellee to agree to the motion to postponement of the time for filing the brief and submission of the cause to some future date but that no agreement was reached. The matter stands before this Court on the sole ground that appellant’s attorney was engaged in a political campaign during the month of April and could not brief the case. This ground for good cause to file brief has been denied by other Courts of Civil Appeal and we feel bound to follow their holding. Assembly of God Church of Tahoka v. Bradley, Tex.Civ.App., 196 S.W.2d 696; Ransom v. Phillips Petroleum Co. et al., Tex.Civ.App., 144 S.W.2d 921.

The right to have the case submitted in due order is a value right to appellee and will not be denied where no good cause for filing brief and submission is shown. Ransom v. Phillips Petroleum Co. et al., supra. The application of appellant for extension of time to file his brief and postponement of submission of the cause is denied and the motion of appellee to dismiss this cause is granted, and the cause is dismissed.


author: WERLEIN, Justice.

text:
    Ben HAROLD, Appellant, v. HOUSTON YACHT CLUB, Appellee.
    No. 14379.
    Court of Civil Appeals of Texas. Houston.
    June 11, 1964.

      Collins & Moore, Houston, Gene E. Putnam, Houston, of counsel, for appellant.
    Price, Veltmann, Skelton & Neblett, Houston, William V. Conover, II, Houston, •of counsel, for appellee.
   WERLEIN, Justice.

This suit was brought by appellant to recover damages from Houston Yacht Club, appellee, allegedly growing out of certain actions taken by appellee which destroyed the value of appellant’s senior membership in the Club and his right to have his membership certificate transferred upon and after his resignation from the Club. All of appellee’s special exceptions to appellant’s petition and also its objections and exceptions to the. written interrogatories served upon it, were sustained by the trial court, and the suit was dismissed with prejudice without giving appellant the right to amend his petition.

Appellant alleged in substance that in 1947 he purchased a senior membership in the Houston Yacht Club for $375.00; that at such time the by-laws of the Club provided for only senior memberships and also provided methods whereby the owner of a senior membership could transfer the same if he resigned in writing; that on October 19, 1959, appellant pursuant to Article I, Sec. 2(c) of the by-laws then in force presented to appellee his written resignation and pursuant to Article I, Sections 2(c) and 2(d) of the by-laws then in force, requested that his membership be transferred; that subsequent thereto ap-pellee, without notice or knowledge of appellant, created new and inferior classes of memberships without its by-laws authorizing it to do so, and such action resulted in substantially reducing the value of appellant’s membership; that in further derogation of appellant’s rights, appellee in 1961 declared a moratorium on all senior memberships, thereby suspending any and a1 actions with respect to the sale and transfer thereof, and that such moratorium continued to exist to the time of trial; that appellee’s action in ordering such moratorium was not authorized by its existing by-laws and was designed to prevent the sale and transfer of appellant’s senior membership, and that as a consequent and direct result of appellee’s actions, appellant’s membership has lost its value, to his damage in the sum of $375.00.

Appellee filed its original answer containing only a general denial, and later filed what it denominated its first supplemental answer in which it leveled ten special exceptions to appellant’s petition. We shall not lengthen this opinion by setting out such exceptions. An examination thereof shows that they are all merely speaking demurrers. In other words, they do not specifically point out _ intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations of appellant’s petition as required by Rule 91, Texas Rules of Civil Procedure, but recite facts which would require proof. For example, Special Exception No. 2 reads as follows:

“Defendant excepts to Plaintiff’s Original Petition because the same is insufficient in law in that it alleges that Plaintiff tendered his resignation under ‘Article I, Section 2(c) of the bylaws then in force and effect’ for the reason that the procedure for resignations under the bylaws then in force and effect was contained in Article V, Section 1. Of which special exception Defendant prays judgment of this Court.”

The foregoing example illustrates also the nature of appellee’s other exceptions. The law is well settled in this State that a speaking demurrer, i. e., one which contains or relies on allegations of fact other than those in the pleading objected to, is bad. Pyle v. Park, Tex.Civ.App., 196 S.W. 243; Cudahy Packing Co. v. Missouri, K. & T. Ry. Co. of Texas, Tex.Civ.App., 206 S.W. 854, error ref.; Skinner v. Vaughan, Tex.Civ.App., 150 S.W.2d 260; Grogan v. Grogan, 315 S.W.2d 34, ref., n. r. e.; Root v. Republic National Bank of Dallas, Tex.Civ.App., 337 S.W.2d 709. In McDonald’s Texas Civil Practice, Vol. 2, Sec. 7.22, p. 645, it is stated:

“Such speaking demurrers were not permitted under the former practice, and are not allowed under the rules. Hence allegations of such new factual matter should be ignored in passing on the legal sufficiency of plaintiff’s pleading. If the defendant must rely upon such extrinsic facts, he must raise the point by a plea in abatement or in bar, and may not do so by special exceptions. By virtue of a recent amendment to the rules, he may also raise such defensive matters by a motion for summary judgment, even before answer, when he believes they will determine the action.”

Even if proper special exceptions, had been directed to the allegations in appellant’s petition, and had been sustained by the court, the case should not have been dismissed by the court without first giving appellant an opportunity to amend his petition. Assuming, but without determining,, that appellant has not pleaded a good cause of action, it would be impossible for any court, without proof or evidence, to say that appellant could not possibly amend his petition so that it would state a good cause of action. The law is well established in Texas that the right to amend is mandatory and that before a pleading can be dismissed for want of form or other defectiveness, the party affected must have an opportunity to amend. If he declines to. amend, the pleading if insufficient may then be dismissed. Becraft v. Wright, Tex.Civ.App., 113 S.W.2d 270; Hawley v. Warlick, Tex.Civ.App., 267 S.W. 332; Silas v. Butler, 285 S.W.2d 266, error ref.; Barnett v. City of Mineral Wells, 163 Tex.Cr.R. 538, 295 S.W.2d 924, ref, n. r. e.; Dick v. Allen, 303 S.W.2d 390; Clark v. City of Dallas, Tex.Civ.App, 228 S.W.2d 946; City of Alice v. Bowers-Wright Funeral Home, Inc, Tex.Civ.App, 362 S.W.2d 888; International Longshoremen Ass’n. Independent v. Galveston Mar. Ass’n, Tex.Civ.App, 358 S.W.2d 607; 20 Tex.Jur.2d, pp. 210-211, Sec. 29.

We are also of the view that the trial court erred in sustaining appellee’s objections to appellant’s written interrogatories and in holding that the same were served to cause appellee annoyance, expense, embarrassment and oppression. This action of the court probably resulted from the court’s conclusion that appellant’s pleading could not be amended and that his suit should be dismissed.

Reversed and remanded.'


text:
    Wayne KELSO, Appellant, v. Frank S. HANSON et al., Appellees.
    No. 7360.
    Court of Civil Appeals of Texas. Amarillo.
    June 1, 1964.
    Rehearing Denied June 29, 1964.
    Neal, Hazlewood & Wolfram, Amarillo, for appellant.
    Gibson, Ochsner, Harlan, Kinney & Morris; Harris E. Lofthus, Amarillo, for ap-pellees.
   NORTHCUTT, Justice.

Wayne Kelso brought this suit in Cause No. 5767 against Frank S. Hanson and Stanley T. Blackburn, the sureties on a replevy bond which was dismissed on appellant’s refusal to amend after a special exception for failure to allege a cause of action was sustained.

In Cause No. 5273 Flock filed suit against appellant for damages for alleged unlawful taking of the machine from Flock’s possession on approximately May 19, 1961. A writ of sequestration issued on that date. An instrument alleged to be a replevy bond was executed on June 1, 1961, and approved on June 2, 1961, by L. S. Johnson, by J. L. Pounds, Deputy. The instrument states: “Whereas, by virtue of a writ of sequestration, dated the 19th day of May, 1961, issued out of the 47th District Court, Randall County, State of Texas, in favor of Delbert D. Flock, plaintiff, against Wayne Kelso, defendant, in a certain suit there impending, wherein the said Delbert D. Flock is plaintiff, and Wayne Kelso is defendant, numbered 5273, L. S. Johnson, Sheriff of Randall County, has seized and taken from the possession of the said Wayne Kelso the following described property to wit:” The property herein described being the engine in question.

At the time the bond was executed, appellant’s cross-action had not been filed. It was not filed until October 6, 1961, bein^ four months after the sequestration and replevy were completed.

The cross-action alleged that appellant was a mechanic within the meaning of Article 16, Section 37 of the Constitution of the State of Texas, Vernon’s Ann.St.; that work and repairs were done on the dirt grinding machine; that on completion of the work he was entitled to retain possession of the machine because of his lien; that Flock wrongfully and without the knowledge and consent of Kelso removed the machine; that he located and repossessed himself of the machine against which he still asserted his mechanic’s and mate-rialman’s lien and sought foreclosure thereof. In that trial the jury found that the machine in question was removed from the premises of Kelso with Kelso’s knowledge and consent. The judgment entered in that cause foreclosed only appellant’s constitutional lien.

Under the finding of the jury in Cause No. 5273 Flock had received the machine in question from Kelso with Kelso’s knowledge and consent. Kelso pleaded (after Flock under the findings of the jury had possession of the machine with Kelso’s knowledge and consent) he located and repossessed the machine himself. It was after Kelso had located and repossessed the machine himself that Flock filed suit against Kelso for wrongfully repossessing the machine and sequestered the machine. Hanson and Blackburn signed the sequestration bond and appellant seeks judgment against them in this suit as sureties upon said bond. Hanson and Blackburn answered appellant’s petition and presented and urged the following exception:

“Now comes the Defendant and excepts to Plaintiff’s Original Petition because the same does not allege a cause of action against this Defendant, and in support thereof would show to the Court that the judgment in Cause No. 5273, Delbert D. Flock vs. Wayne Kelso, by its implied finding, found in favor of Delbert D. Flock as to the right of possession to the machine in that it foreclosed a constitutional lien against such machine; such lien being a nonpossessory lien and enforceable only by judgment of the Court. Said) judgment further shows that the jury, in answer to Special Issue No. 20, found that Wayne Kelso surrendered' his possessory lien. The judgment entered was on a cross action of the Defendant for a debt for which reason Defendant prays judgment of the Court.”

The court sustained the exception and; appellant refused to amend and the case was dismissed. From that judgment appellant perfected this appeal.

Flock owned the machine in-question. Kelso had the machine in his possession and did furnish materials and labor on the machine. He had the right to retain possession until his bills were paid.. Flock received back the machine with Kelso’s knowledge and consent after Kelso had' furnished the materials and performed the labor on the machine. Kelso’s pleadings-show he took the machine back from. Flock without Flock’s knowledge or consent. Flock, seeking to regain the possession he had with the knowledge and consent of Kelso, sequestered the machine.

There is no question here involved' as to the title of the machine, since Flock was the owner. According to the finding of the jury in Cause 5273 in which case the sequestration was had, possession had' been given to Flock by Kelso. When Kelsoretook possession of the machine without Flock’s knowledge or consent, as he pleaded,, and to regain the right of possession that had been given him by Kelso to the property,, the property was sequestered by Flock and there would be no damages due under such sequestration since Flock was only regaining that which he had a right to have. It is-stated in Darr Equipment Co. v. Holland Page, Inc., Tex.Civ.App., 355 S.W.2d 595 (writ dismissed) as follows:

“It has been authoritatively held that where an owner has been awarded title and possession of property as against defendants to the suit, such judgment is conclusive and res adjudicata to the right of such defendants to recover damages from the owner for taking possession under sequestration proceedings. Howe v. Central State Bank of Coleman, 13 S.W.2d 437, Austin Civil Appeals, writ ref. (1929), Hunt v. Bagwell, 111 S.W.2d 312, Eastland Civil Appeals, writ ref. (1937).”

See also Petersime Incubator Co. v. Bunn, Tex.Civ.App., 239 S.W.2d 416 (writ dismissed) and the cases there cited.

Since Flock was the owner of the machine and had the right of possession as had been determined by the jury in the original case, Cause No. 5273, there was no wrongful sequestration proven and the court was correct in dismissing the case. Brown v. Singer Sewing Machine Company, Tex.Civ.App., 352 S.W.2d 306.

Judgment of the trial court is affirmed.


text:
    Robert JENKINS et ux., Appellants, v Clyde KIMBRO et ux. et al., Appellees.
    No. 11213.
    Court of Civil Appeals of Texas. Austin.
    June 10, 1964.
    Rehearing Denied June 24, 1964.

      Ted Musick, Houston, for appellants.
    McClain & Stump, Georgetown, for ap-pellees.
   PHILLIPS, Justice.

Jenkins sued Mr. and Mrs. Kimbro for damages arising when he purchased a registered Appaloosa stallion from Kimbro on August 27, 1960, on the “oral warranty that this young stallion’s dam was a bay quarter horse, and the sire was a permanent registered foundation Appaloosa horse.”

On October 30, 1960, Jenkins received a letter from the Appaloosa Horse Club, Inc., stating that the stallion’s dam had not been a registered quarter mare, but had in fact been a pinto mare; that because of this, the stallion’s registration would be cancelled unless he was gilded. Hence, the suit for the alleged damages.

The suit was filed on August 26, 1963.

The Trial Court granted the Kimbros’ motion for summary judgment in that the suit was barred by the two year statute of limitations. Art. SS26, Vernon’s Ann.Civ. St.

We affirm the judgment of the Trial Court.

Jenkins plead that he was entitled to the damages alleged because the Kimbros “were guilty of fraud in the inception * * * due to the fraud and, misrepresentations on the part of the defendants * * * in their defrauding these plaintiffs.”

A cause of action based on damages because of fraud is governed by the two year statute of limitations. Blum v. Elkins, Tex.Civ.App., 369 S.W.2d 810; Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438, 128 A.L.R. 757; Gordon v. Rhodes & Daniel, 102 Tex. 300, 116 S.W. 40.

In the case of fraud, the statute will start to run when the fraud is discovered or might have been discovered by the exercise of reasonable diligence. Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 137 A.L.R. 263.

A defense of limitations apparent from the pleadings will support a summary judgment. Lacy v. Carson Manor Hotel, Tex.Civ.App., 297 S.W.2d 367, writ ref., n. r. e.

We hold as a matter of law that any fraud that might have been perpetrated against Jenkins was brought to light when he received the letter from the Appaloosa Horse Club, Inc., giving the facts stated above. That he had two years from the date he received the letter in which to bring suit. That he failed to file his suit within this time.

Jenkins maintains that the four year statute of limitations is applicable here (Art. 5527, Sec. 1, V.C.S.) “for debt founded upon a contract in writing.” Jenkins plead that he purchased the stallion “by written contract.” While he refers to a bill of sale in his petition, neither this bill of sale nor any other contract is further described nor are any copies of such appended to any of his pleadings. An alleged contract that he specifically pleads and attaches to his petition as Exhibit “D” is a personal check for $2400 drawn on a bank in Houston in favor of the Kimbros. This check is not a contract in writing within the contemplation of Article 5527 but is merely a bill of exchange drawn on a bank, payable on demand, Negotiable Instruments Act, Art. 5947, Sec. 185, V.C.S. In any event, it is well settled that the two year statute is applicable to a suit for damages arising from a written contract induced by fraud, Lacy v. Carson Manor Hotel, cited above.

The Trial Court’s judgment is affirmed.

Affirmed.


author: DENTON, Chief Justice.

text:
    L. M. SIMMONS, d/b/a L. M. Simmons & Sons, Appellant, v. CAPITAL DIESEL & INDUSTRIAL MACHINE WORKS, INC., Appellee.
    No. 7363.
    Court of Civil Appeals of Texas. Amarillo.
    May 18, 1964.
    Rehearing Denied June 22, 1964.
    James P. Brewster, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, for appellee.
   DENTON, Chief Justice.

Capital Diesel & Industrial Machine Works, Inc. brought this suit against L. M„ Simmons d/b/a L. M. Simmons & Sons on a verified account to recover for labor and parts in the repair and overhaul of defendant’s diesel truck. The case was submitted to a jury on special issues, and based on the jury verdict, the trial court entered judgment in favor of plaintiff below for the sum of $2,608.15. Appellant has timely perfected this appeal.

The plaintiff was in the business of repairing industrial trucks and stationary engines in the City of Austin. The extensive repair work performed by appellee on appellant’s large diesel truck required some ten days. During this period plaintiff’s officials and Mr. Simmons conversed by long distance telephone several times concerning repairs to be performed. When the work was completed, Simmons’ truck driver signed the invoices and drew a draft on Simmons in the amount of $2,519.16. Some additional minor repairs were added to the total bill in the sum of $88.99. In due course Simmons stopped payment of the draft. When O. B. McKown, president of appellee corporation, was informed of the ■draft being dishonored he called Mr. Simmons. McKown testified Simmons had no complaint about the work that was done, hut stated “ ‘I just don’t think it is worth that much,’ or something to that effect.” Shortly thereafter Jack Stoker, appellee’s employee, was sent to Lubbock to discuss the matter with Simmons, at which time Simmons gave Stoker a check in the amount of $1,908.77. When this check was delivered to McKown, he immediately returned it to Simmons by certified mail. The transmittal letter dated April 4, 1962 rejected the check and further made demand that the account be paid in full. This letter which made reference to the check being returned therein, was admitted into evidence over the timely objection of appellant that it was evidence of an offer of compromise. Appellant further moved for a mistrial. The check itself was not offered into evidence.

Appellant Simmons’ two points of error present the question of the admissibility of all the evidence relative to the check tendered by Simmons. Appellant contends such evidence is inadmissible on the ground it was an offer of compromise. In reply, appellee takes the position the tender of the check by Simmons was not evidence of an offer of compromise but evidence of an admission of liability. Appellee further contends whether or not the tender was an offer of compromise becomes immaterial in view of Simmons own testimony subsequently given in which he described the settlement negotiations with Stoker.

The rule is well established that offers of compromise are not admissible as evidence for the purposes of showing an admission of liability on the part of the debtor. However, under the circumstances, we must determine whether the admission of such evidence constitutes reversible error. As the case developed, appellant made no contention the repairs were not done in a good and workmanlike manner although some of Simmons’ testimony seems to imply that some repairs were made that were not necessary. The crux of appellant’s defense was that he was overcharged for the work performed and the parts used. Thus, the real controversy was not whether appellant was liable, but the extent of such liability. We think it is clear the reference to the check in the amount of $1,908.77 in ap-pellee’s letter of April 4 was evidence of an offer of compromise, but under the circumstances its admission does not constitute reversible error.

No other reference was made to the tendered check until Simmons testified to the transaction under questioning by his own attorney. He testified he tendered the check to Stoker in settlement of the claim and went into detail as to how the amount was calculated. Simmons testified, “I told him [Stoker] if he’d take off the 69 hours— we figured that off at five, six bits an hour, whatever it figured, and take off the two hundred ninety dollars, rather than to have trouble with it, if it would satisfy him, I would give him a check for it, and that’s the deal we worked out.” After this and other similar testimony was voluntarily given by Simmons, his attorney again renewed their motions that all evidence, including this testimony of Simmons, relative to the check and offer of compromise be withdrawn from the jury and that a mistrial be declared. We are of the opinion, and so hold, appellant waived his objections to the evidence of compromise. Any error in the admission of the letter and its reference to Simmons’ check was waived or cured by the subsequent testimony of Simmons in which he fully explained the transaction. Howell v. Bowden (Tex.Civ.App.), 368 S.W.2d 842, (Refused, NRE); City of Houston v. Howe & Wise (Tex.Civ.App.), 323 S.W.2d 134, (Refused, NRE); Minchen v. First Nat’l Bank of Alpine (Tex.Civ.App.), 263 S.W.2d 601, (Refused, NRE); West v. Cashin (Tex.Civ.App.), 83 S.W.2d 1001, (Dismissed); 1 McCormick & Ray, Texas Law of Evidence, Section 27.

The judgment of the trial court is affirmed.

Affirmed.


text:
    FURR’S SUPER MARKET, INC., Appellant, v. Ila Mae JERNIGAN et vir, Appellees.
    No. 7366.
    Court of Civil Appeals of Texas. Amarillo.
    June 8, 1964.
    Crenshaw, Dupree & Milam, Lubbock, for appellant.
    W. D. Hollars, Plainview, for appellees.
   DENTON, Chief Justice.

This is a venue case under Sections 9a and 23, Article 1995, Vernon’s Ann.Tex. Civ.St. Ila Mae Jernigan, joined pro forma by her husband, filed suit for alleged personal injuries sustained when she slipped and fell in a grocery store owned and operated by appellant in Plainview, Texas. From an order overruling its plea of privilege to be sued in Lubbock County, appellant perfected this appeal.

When a defendant has filed a plea of privilege in proper form it is incumbent that the plaintiff, if he desires to controvert the plea, both plead specifically and prove the facts relied upon to bring the case within one of the exceptions. A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619. It is settled, and both parties concede, that the burden rests on the plaintiff to prove a cause of action against the defendant to maintain venue in Hale County, where the suit was filed, under both Subdivisions 9a and 23 of Article 1995, VATS. Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63; Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605; Lynch v. Millican, (Tex.Civ.App.), 304 S.W.2d 410; Watkins v. Goolsby, (Tex.Civ.App.), 337 S.W.2d 363.

Mrs. Jernigan, the only witness who testified, testified she went to appellant’s grocery store in late afternoon of November 21, 1962, to purchase groceries. She obtained a cart or carriage and proceeded up and down the aisles of the store selecting various grocery items. After completing her shopping, she was proceeding to the checking counter when she slipped and fell. She described the incident, “Well, all of a sudden I stepped on something — or something was — stepped on something and my foot — feet went out from under me and I fell and I hit the buggy.” She did not specifically identify the object which might have caused her to slip and fall, but on direct and cross-examination she merely referred to the object as “something” and testified she did not see anything on the floor before she fell.

It is well settled that in order to hold a store operator liable for injuries sustained by a business invitee by reason of a dangerous condition on the premises, the dangerous condition must have been created by the store operator, or must either have been known to him or have existed for such a length of time that in the exercise of ordinary care he would have discovered it. Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Furr’s Inc. v. Martin, (Tex.Civ.App.), 296 S.W.2d 607; F. W. Woolworth v. Goldston, (Tex.Civ.App.), 155 S.W.2d 830, (Error Refused, WM); Safeway Stores, Inc. v. Miller, (Tex.Civ.App.), 110 S.W.2d 927; Moss v. Safeway Stores, Inc., 185 F.2d 966, (5th Circuit).

There is simply no evidence that the agents or employees of appellant caused the object or “something” to be on the floor, or that appellant knew of the presence of such object at the place where Mrs. Jernigan fell. There is a complete lack of evidence that it was there for such a length of time that it was the duty of appellant, in the exercise of ordinary care, to know of its presence and remove it. We can only conclude appellees failed to establish negligence on the part of appellant. The failure of appellees to prove an essential venue fact requires a reversal of the judgment of the trial court.

The order of the trial court is reversed. Appellant’s plea of privilege is sustained and the cause transferred to the District Court of Lubbock County.

Reversed and rendered.


text:
    M. Jay McSWEEN, Jr., Appellant, v. Miller DANIEL, Appellee.
    No. 7367.
    Court of Civil Appeals of Texas. Amarillo.
    June 8, 1964.

      Evans, Pharr, Trout & Jones, Lubbock, for appellant.
    Brown & Shuman, Lubbock, for appellee.
   NORTHCUTT, Justice.

With respect to the matters involved in this appeal as to McSween’s claim we will use appellant’s statement of the nature of the case. McSween brought suit against Miller Daniel, Big State Investment, Inc., Vernon McKaskle, W. K. McCall and Eddie Hunter for damages for actionable fraud under Article 4004 of the Texas Revised Civil Statutes in regard to transactions in stock in a corporation. McSween contended in consideration for plaintiff’s selling his 1959 Cadillac to Miller Daniel Auto Corral on or about June 20, 1961, Eddie Hunter and Vernon McKaskle agreed to pay $1,500 in cash plus two hundred shares of stock at $10 a share in Big State Investment, Inc.; to sell a hundred shares for plaintiff within ninety days for a thousand dollars; to pay plaintiff whatever the 1959 Cadillac brought over $3,500 less what it cost to prepare it for sale and to sell plaintiff a new Cadillac at cost. Plaintiff contended he was to get a new Cadillac each year on turning in his old Cadillac at little or no additional cost from the earnings of the remaining hundred shares of stock. Appellant further contended McKaskle was at that time manager of Miller Daniel Auto Corral, a proprietorship owned by Miller Daniel, and McKaskle was president of Big State Investment, Inc. Appellant further contended he got the $1,500 cash, the two hundred shares of stock and the new Cadillac which was sold to him at or about cost.

The case was submitted to the jury upon special issues. By special issues one and two the jury found that Hunter promised McSween that he would sell one hundred shares of stock in Big State Investment, Inc. for McSween within ninety days from June 20, 1961, and that such promise was a material inducement to McSween to purchase such stock. In answer to special issue three the jury found that McSween would not have purchased said stock if said promise had not been made. By issue four the jury found Miller Daniel did not derive any benefit from such promise of Hunter. In answer to issues six, seven and eight the jury found Hunter promised McSween that by purchasing stock in Big State Investment Inc. McSween could get a new Cadillac each year at little or no additional cost and that such promise was a material inducement to McSween to purchase the stock and McSween would not have purchased said stock if said promise had not been made. The jury held by issue nine that Miller Daniel did not derive any benefit from such promise of Hunter.

Judgment by default was granted for McSween against Big State Investment, Inc., Eddie Hunter and Vernon McKaslde, individually and severally, but granted judgment that McSween recover nothing as against Miller Daniel and W. K. McCall. From that judgment McSween perfected this appeal as to Miller Daniel only and will hereafter be referred to as appellant. Miller Daniel will be referred to as appel-lee.

Appellant presents this appeal upon two assignments of error contending the verdict of the jury in answer to issues four and nine was contrary to the undisputed evidence and that the court erred in submitting issues four and nine to the jury in that the undisputed evidence was that Miller Daniel derived the benefit. Appellant did not in any manner object to the submission by the court of special issues four and nine. If there are facts justifying the submission of issues four and nine, the appellant waived his right to here complain because no objections were taken as to the submission of said issues. Rules 272 and 274. We are familiar with the rule that the court is required to submit only controverted issues. Coca-Cola Bottling Co. v. Krueger, Tex.Civ.App.1951, 239 S.W.2d 669; Great Southern Life Insurance Co. v. Benson, Tex.Civ.App.1959, 326 S.W.2d 5 (N.R.E.).

The issues submitted as to the representations as to the sale of the hundred shares of stock is based upon statements made by Hunter. Hunter was not shown to be an agent of appellee. The appellee testified he owned no interest whatever in Big State Investment, Inc. and knew nothing about any of the promises made to McSween and all that he had to do with McSween was to buy his Cadillac for $1,500 and sold Mc-Sween a new Cadillac for practically cost. Appellee admitted he made a profit on the Cadillac he bought for $1,500. Appellee paid appellant the $1,500 and appellant was in need of some cash and appellee also financed for appellant the entire purchase price of the new Cadillac purchased by appellant. There was no evidence to bring appellee under the terms of Article 4004 of Texas Civil Statutes. Loma Vista Development Co. v. Johnson, 142 Tex. 686, 180 S.W.2d 922.

We are of the opinion there was evidence denying appellee received any benefit from the promise or representations made by Hunter to justify the submission of issues four and nine and that the appellant waived any objections he might have had for not objecting to the submission of said issues. Womacks v. Horne, Tex.Civ.App.1957, 300 S.W.2d 765; Wilson v. King, Tex.Civ.App. 1958, 311 S.W.2d 957 (writ refused).

Judgment of the trial court is affirmed.