author: DUNAGAN, Chief Justice.

text:
    REYNOLDS & HUFF et al., Appellants, v. David D. WHITE, Jr., et al., Appellees.
    No. 42.
    Court of Civil Appeals of Texas. Tyler.
    May 7, 1964.

      Jack Flock, Ramey, Brelsford, Hull & Flock, Tyler, for appellants.
    Glynn W. McDonald, Combs & Mitchell, Houston, for appellees.
   DUNAGAN, Chief Justice.

This is a venue case. Appellants appeal from an order of the court below overruling their pleas of privilege to be sued in Smith County, Texas, the county of their residence. The appellees filed their controverting affidavit based solely upon Exception 9a of Article 1995, Vernon’s Ann. Tex.Rev.Civ.St.

By their Third Amended Original Petition, the appellees brought suit against appellants in the Third District Court of Anderson County, Texas, seeking to recover against appellants money damages for bodily injuries and property damage allegedly sustained by appellees when a motor vehicle being operated by appellee Margaret White was driven off the hard surfaced portion of a highway which was under construction in Anderson County, Texas. Appellees specifically alleged two acts of negligence against appellants, namely, (1) “In failing to give adequate warning of the soft and defective condition of the shoulder of the highway” and (2) “In failing to properly shore up the shoulder of the roadway.”

Appellants, Mary O. Huff, Independent Executrix of the Estate of W. A. Huff, deceased; and Reynolds & Huff, a partnership composed of Smith P. Reynolds and W. A. Huff (deceased), timely filed their pleas of privilege, seeking to transfer the cause to Smith County, Texas, the county of the residence of all appellants. The pleas of privilege filed by appellants were timely controverted by appellees and in each instance appellees set out and relied upon Exception 9a to Article 1995 as the basis for holding the case in Anderson County, the county where the suit was instituted. No other exception to the Venue Statute is relied upon by the appellees.

The only evidence offered by appellees upon the hearing of this matter consisted of some responses of appellants to request for admissions, the oral deposition of Henry T. Campbell (admittedly an employee and servant of appellants) and the oral testimony of appellees, Margaret White and husband, David D. White, Jr. At the conclusion of the evidence, appellants timely moved the court to enter an order sustaining the pleas of privilege and transferring the case to the District Court, Smith County, Texas, on the grounds that appel-lees had wholly failed to sustain their burden and that there was no competent evidence of probative force raising an issue of actionable negligence against appellants. The trial court overruled appellants’ pleas of privilege and appellants have perfected their appeal to this court.

It is undisputed that during August, 1960, and prior thereto, Reynolds & Huff, a partnership, as prime contractors, was engaged in the performance of a contract with the State of Texas whereunder 6.3 miles of U. S. Highway No. 79 between Palestine and Jacksonville, Texas, was being constructed. Such work consisted of .grading, structures, flexible base and two-course surface treatment. At the time of the accident here involved, work on this highway was eighty-five percent (85%) complete. Specifically, the paved, or hard-surfaced portion was complete except for the top coat. The shoulders of the roadway were complete except for grass seeding. Such work had been completed at least thirty (30) days prior to the accident. The highway was open to the traveling public. All warning signs required by the contract with the State were up in the area. No complaint has been made that appellants had not fully complied with the contract insofar as warning signs are concerned. There were erected the usual barricades on each end of the job with the following warning to the public: “Construction, drive carefully, observe warning.” There were signs along the section under construction advising the public that the speed limit was 40 miles per hour. The driving area of the hard surfaced portion was twenty-six (26) feet wide. Additionally, there were shoulders of about eight (8) feet on each side. These shoulders were topped with white rock, being a different color from the black-topped highway. The dirt (shoulders) was in good shape and pretty firm; however, it had rained earlier in the day. As to the condition of the highway at the place and time of the accident appel-lee Mrs. White testified as follows:

“Q Now, what was the condition of the highway on that afternoon, what generally was the condition of the highway ?
“A The condition, well, let’s see, we stopped in Jacksonville and it was raining a little there. It had been raining I think, along this road, but it wasn’t at the time and the sun was hot. As far as I can recall, the pavement, there wasn’t any puddles and the road was smooth.”

Appellees reside in Rockdale, Milam County, Texas. A few days prior to the accident Mr. and Mrs. White had gone to Monroe, Louisiana, to visit relatives. While in Monroe, appellee David White, Jr., purchased a panel truck and decided to drive it home, permitting his wife, Margaret White, to follow him in their Pontiac. Their infant son was riding with his mother. While thus proceeding on U. S. Highway No. 79, and as the vehicles approached Palestine, Texas, the accident occurred about middle ways on that portion of the highway under construction. It was about S o’clock p.m. and was still daylight. The weather was clear, although it had been raining earlier in the day. No other vehicles were involved in the accident and for some reason unknown to appellees, and not appearing in the evidence, Margaret White drove her vehicle off the hard surfaced portion of the highway and traveled some distance along the shoulder before her vehicle finally went into a ditch and struck a culvert. Indisputably both Margaret White and son received some injury. There were no witnesses to the accident other than Margaret White. Appellee Margaret White admits she does not know what happened or what caused her car to leave the hard surfaced portion of the roadway. There is no evidence that she intended to drive off the paved portion.

The venue facts which a plaintiff, desiring to sue a defendant outside the county of defendant’s residence, must allege, and prove by a preponderance of the evidence if a plea of privilege is asserted, are those which are stated in the particular Exception of Article 1995 relied upon by plaintiffs.

It is well settled that “with the venue challenged, under proper plea, by one sued without his county, * * * the burden not only to allege but to prove that the case is within one of the exceptions to the statute rests on the plaintiff.” Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (Com.App.).

When a plea of privilege is filed, a plaintiff seeking to retain venue in the county other than the county of a defendant’s residence, has the burden of establishing by a preponderance of the evidence the existence of the venue facts in compliance with the requirements of some subdivision of Article 1995, T.R.C.S. In the instant case, appellees sought to maintain venue in the county where suit was brought under the provisions of Section 9a of the statute. The venue facts which plaintiffs had the burden to establish in order to retain venue in Anderson County therefore were (1) that an act or omission of negligence occurred in the county where suit was filed; (2) that such act or omission was that of the defendants, in person, or that of their servant, agent or representative acting within the scope of his employment; and (3) that such negligence was a proximate cause of the injuries sustained. Hitchcock et al. v. Pearce, Tex.Civ.App., 348 S.W.2d 408; Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

It is undisputed that the defendants were the contractors doing the work on the section of road under construction. The remaining venue facts which appellees had the burden to establish were that the defendants were guilty of some act or omission of negligence and that such negligence proximately caused the accident and injuries complained of. Watkins et al. v. Goolsby et al., Tex.Civ.App., 337 S.W.2d 363; Producers Chemical Company v. Stamps, Tex.Civ.App., 346 S.W.2d 162; Yarbrough v. Teague, Tex.Civ.App., 341 S.W.2d 478; Magnolia Petroleum Company v. Heldt, Tex.Civ.App., 236 S.W.2d 255.

It is appellees’ contention that the failure of the appellants to post warning signs of the alleged dangerous soft condition of the shoulders constituted negligence and a proximate cause of the injuries sustained.

Appellee Margaret White testified that at the time and immediately prior to the accident she was driving along at a speed between 40 and 45 miles per hour and for simply no reason at all a wheel dropped off the pavement and onto the dirt and shoulder. She further testified as follows:

“A Well, I was driving along, just like I had been for simply no reason at all, a wheel dropped off of the pavement and that’s all I know.
“Q Now, you say a wheel dropped off of the pavement?
“A It lurched, it was just a tremendous noise and a jolt, the wheel just went off and—
“Q Off of the pavement and on to the dirt and shoulder ?
“A Yes.
“Q Now, what happened when that happened, Mrs. White, what happened to your car, what happened to you, if you know ?
“A I was unconscious when I came to, I mean, I had been unconscious when I came to and I don’t know.
“Q All right. .Now, did you realize, recognize that you were in an area of the road that was under construction at the time this accident occurred?
“A Yes.
“Q How did you know that, Mrs. White?
“A There was a warning sign at the beginning of the construction area.”

On cross-examination Mrs. White gave the following testimony:

“Q Mrs. White, you had gone over that highway on Friday before this occurred on Monday ?
“A Yes, sir.
“Q And now this hard surface portion, part of the highway, that was— you could tell you were on the hard surface portion, could you not ?
“A Yes, sir. .
“Q And you had ño difficulty driving on the road, did you?'
“A No.
“Q The road was about, do you know about how wide it was?
“A It was a wide road, sir.
“Q And you had been driving on this concrete part, I mean the hard surface portion about how far?
“A The construction area?
"Q Yes.
“A Two or three miles.
“Q Two or three miles. You had no difficulty driving on it.
“A No, sir.
“Q There was nothing in the roadway, like a rock or anything to block your view?
“A No, sir.
“Q You were meeting no traffic?
“A I don’t know that I was.
“Q And just for some reason, which you say you didn’t know why, your car went off of the side of the road and hit a culvert, did it not?
“A Yes, it did.
“Q When you gave your deposition here Mrs. White, with your attorney and myself and the court reporter, did you or not testify that you did not know how come you to drive off of the hard surface portion of the roadway?
“A No.
“Q You didn’t testify to that?
“A Sir, I don’t know why. Yes, I did testify to that.
“Q You did testify to that, and that’s true isn’t it?
“A Yes, it is, sir.
“Q The hard surface portion looked perfectly all right to you on that occasion, didn’t it, Mrs. White?
“A Yes, it did.
“Q There wasn’t anything wrong with the roadway that you know or can testify or tell the Court' right now, so far as the hard portion is concerned ?
“A The hard surface was smooth.
“Q You don’t know of anything that was wrong with the hard surface portion of the roadway, do you?
“A There was nothing wrong with' the hard surface of the road.
“Q You are not claiming that there was anything wrong with the hard surface portion of the roadway, are you?
“A The surface of the road, the hard surface was smooth. It wasn’t bumpy. It was smooth.
“Q I think you have testified that a wheel, that suddenly a wheel went off of the hard surface portion and you don’t know why it went off.
“A Yes, it dropped off.
“Q Did you give such testimony that you don’t know why?
“A That’s right. For no reason.”

It is so well established as the law of this state that a defendant in a case has the right to be sued in the county of his domicile unless one of the exceptions of Article 1995, T.R.C.S., applies that it is unnecessary to cite any authorities. Since appellees seek to hold venue in Anderson County under Section 9a of Article 1995, they must show the application of the section relied upon. It is stated in Goodrich v. Superior Oil Company, 150 Tex. 159, 237 S.W.2d 969, as follows:

“The general rule of venue is, of course, that a defendant shall be sued in his own county, and however many and important are the exceptions contained in the statute, an equal doubt between the exception and the rule is to be resolved in favor of the rule. Stated differently, the application of the exception must clearly appear.”

See also Casares v. Pioneer Casualty Company, Tex.Civ.App., 366 S.W.2d 652; Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825.

It is well settled that with the venue challenged, under proper plea, by one sued without his county, the burden not only to allege, but to prove that the case is within one of the exceptions to the statute rests on plaintiff * * * and to defeat the plea of privilege, he must both plead and prove the facts relied on to bring the case within one of the exceptions. In short, a plaintiff seeking to maintain venue in another county must prove by a preponderance of the evidence the facts that bring his cause within one of the exceptions to Article 1995. Proof of the fact of the negligence (and that it was a proximate cause) is as essential as is proof of the place where it was committed. The negligence, together with proximate cause, is under the terms of this exception a part of the venue facts. Lynch et al. v. Millican et al., Tex.Civ.App., 304 S.W.2d 410.

The Texas courts have held repeatedly and consistently that the legal right of a defendant to be sued in the county of his residence is a valuable right of which he may not be deprived unless the case filed against him comes clearly within one of the exceptions found in the Venue Statute. Munn v. Mohler, Tex.Civ.App., 251 S.W.2d 801; Salmon v. Downing, Tex.Civ.App., 324 S.W.2d 328; Gehl Bros. Mfg. Company v. Price’s Producers, Inc., Tex.Civ.App., 319 S.W.2d 955; Big Three Welding Equipment Company v. Reeh et al., Tex.Civ.App., 301 S.W.2d 504; Lewis et al. v. Parish, Tex.Civ.App., 278 S.W.2d 507.

It is a fundamental rule of law, established by our Supreme Court, that venue may not be established by implication. Burtis v. Butler Bros., supra; Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610; Ferrier et al. v. Caprock Machinery Company, Tex.Civ.App., 350 S.W.2d 224.

Standing alone, appellee Margaret White’s testimony proves only that an accident happened. The occurrence of an accident, or a collision, is not of itself evidence of negligence. Davis v. Castile (Tex.Com.App.) 257 S.W. 870; Phillips v. Citizens’ National Bank (Tex.Com.App.) 15 S.W.2d 550; Rankin, et al. v. Nash-Texas Company et al., Tex.Com.App., 105 S.W.2d 195; Conner v. Chatman, et al., Tex.Civ.App., 272 S.W.2d 136.

Appellee Margaret White admitted that she did not know what caused her to drive off the roadway and into the culvert. Appellees failed to offer any evidence of any defective condition of the roadway. Appellees knew that the road was under construction. The hard surfaced portion of the roadway was adequate and indisputably was in good condition. Appellee Margaret White did not testify that there was any reason for her to drive her vehicle off the hard surfaced portion.

This is not a case where the automobile was driven off the roadway onto the shoulder intentionally and purposely, the driver thinking the shoulder to be in safe condition ; but to the contrary, Mrs. White drove her automobile off the hard surfaced portion of the roadway and onto the shoulder unintentionally, unknowingly, and accidentally across the shoulder of the highway into a culvert, causing the injuries complained of.

With reference to proximate cause, appellants say that the situation presented by the record before this court is exactly the same as was presented in the case of Hopper v. J. C. Penney Company, Tex.Civ.App., 371 S.W.2d 750, Err.Ref. n. r. e. In that case the plaintiff sued for damages for bodily injuries sustained when she fell from a stairway in defendant’s premises. Plaintiff was on the landing at the top of some stairs in defendant’s retail establishment preparing to descend or was in the act of descending the same. The type of hand rail provided was obsolete and was so located that the plaintiff had to reach forward and downward and around a post m order to grasp the same before stepping on the first step below the landing. Plaintiff admitted that she did not know what caused her to fall. The court held that the plaintiff had failed to introduce evidence sufficient to raise an issue of fact upon the matter of whether the defendant’s dereliction of duty, if any, amounted to a proximate cause of her injury. At Page 752 of the' Opinion, the court states as follows:

“In other words, we are left to speculate whether her hand failed to reach the handrail toward which she was reaching, or grasped the same only to have her hand slip; whether she missed the first step or stepped thereupon only to have her foot slip, her ankle turn, her heel or toe to catch in some obstruction, etc. Therefore plaintiff failed to show any causal connection with the negligence or dereliction in duty on the part of the defendant, if any. The evidence proves only the fact of her accident, not the cause. In such a case a plaintiff cannot be said to have made out a prima facie case.”

It is apparent that, if appellee Margaret White herself does not know what caused her vehicle to leave the roadway and there being no testimony from any other source as to why, the trial court was left to speculate and guess as to any causal connection with the negligence or dereliction in duty on the part of the defendants, if any.

We are of the opinion the necessary facts to hold venue in Anderson County were not shown.

We next consider the appellants’ complaint that the trial court erred in admitting into evidence the deposition testimony of witness, Henry T. Campbell, to the effect that there had been other accidents on this highway, over appellants’ objection that such' testimony was irrelevant and immaterial in the case and that appellees had not laid a proper predicate therefor.

Having already determined that the facts are not sufficient to hold venue in Anderson County, we do not consider it necessary to discuss this point, but in view of the probability of a trial of this case on its merits, we will do so.

By deposition, appellees offered the following testimony from witness Henry T. Campbell:

“Q Mr. Campbell, had there been any other accidents on this highway prior to this accident, where a car had gotten off of the highway onto the unpaved shoulder ?
“A Yes, I believe there had.
“Q One or more than one?
“A About two.
“Q About two. When were those, approximately ?
“A Well, I couldn’t say just what date it was.”

Appellants objected to this evidence on the grounds that evidence of other accidents on the highway would be irrelevant and immaterial unless appellees had first laid a proper predicate for its admissibility by showing that the accident happened near the time of the one under consideration and essentially at the same place and under substantially the same conditions. Such objections were overruled by the court.

It has long been a settled rule in Texas that evidence of similar accidents is inadmissible on the issue of whether a party has been negligent in doing or not doing a particular thing. An exception to this rule exists where a proper predicate has been laid showing that the unrelated accident occurred at the same place under substantially similar circumstances or by means of the same instrumentality. In Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017, the court holds as follows :

“[E]vidence of similar transactions or conduct on other occasions is not competent to prove the commission of a particular act charged ‘unless the acts are connected in some special way, indicating a relevancy beyond mere similarity in certain particulars.’ ”

In Team et al. v. Texas & P. Ry. Co., Tex.Civ.App., 199 S.W.2d 274, writ ref. n. r. e., the court held that proof relating to other accidents must not be too remote. In Acme Laundry Company v. Ford, Tex.Civ.App., 284 S.W.2d 74S, writ ref. n. r. e., it was held that evidence that persons bumped into a glass panel prior to accident had no material bearing on question of defendant’s negligence, in the absence of evidence disclosing circumstances under which they bumped into the window. In Missouri-Kansas-Texas Railroad Company of Texas v. McFerrin, Tex.Civ.App., 279 S.W.2d 410 (reversed on other grounds), the court held that testimony as to other accidents and near accidents is admissible if conditions existing at the time of such accidents or at the time of encountering such difficulties are reasonably similar to those existing at the time of the accident in suit. This rule finds support also in Texas & N. O. R. Co. v. Pool, Tex.Civ.App., 263 S.W.2d 582, no writ history; and Missouri, K. & T. Ry. Co. v. Johnson, 92 Tex. 380, 48 S.W. 568.

In Shelley v. City of Austin, 74 Tex. 608, 12 S.W. 753, the Supreme Court held that the trial court correctly refused to permit a plaintiff to prove that previous to the date of the injury to plaintiff a witness had fallen into the same hole where plaintiff was injured and that the city had notice of this fact and had not repaired the place. The court pointed out that the witness had fallen from the foot bridge, whereas the plaintiff had fallen from another portion of the bridge. The court held that such evidence would not tend to show that the wood bridge was unsafe for travel on horseback. In other words, the proper predicate had not been laid by showing that the accident happened at the same place. This rule of law is further supported by the case of J. C. Penney Company v. Norris, U.S. C.A., 5th Cir., 250 F.2d 385 (1957). That action was one by the plaintiff for bodily injuries when she slipped on a bottle cap while descending the stairway in defendant’s store. Plaintiffs offered evidence that another woman had fallen on those steps some seven months earlier. The court held that such evidence was not admissible, and in that connection the court stated as follows:

“Clearly the fact that another woman had fallen, without any evidence as to what had caused the fall, was irrelevant to the issue of the time this bottle cap remained on the step in this case, which is the only claimed basis of negligence resulting in the injury. For all that appears in this record the earlier fall may have been due entirely to the fault of the invitee, since no effort was made to show the true facts.”

The appellees in this case offered no testimony showing that the condition of the highway at the place where Mrs. White drove her car off the paved portion thereof was in the same condition at any time when any other accident occurred at any other place on the highway. Neither was there any testimony showing as to when the other accidents occurred, the manner in which they occurred or that the conditions were similar in any regard.

We believe, under the record in this case, the testimony was inadmissible.

We reverse the judgment of the trial court and herein render judgment sustaining the pleas of privilege of the non-resident defendants, Reynolds & Huff and Mary O. Huff, and order venue changed as to said defendants to a district court of Smith County, Texas.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    TERRY COUNTY AIRPORT BOARD et al., Appellants, v. Lonnie D. CLARK d/b/a Clark Aerial Service, Appellee.
    No. 7335.
    Court of Civil Appeals of Texas. Amarillo.
    May 11, 1964.

      E. L. Hamilton, County Atty. (One Appeal Only), Brownfield, for appellants.
    Hackney & Crawford, Brownfield, for ap-pellee.
   NORTHCUTT, Justice.

For convenience, appellants’ statement of the nature and result of the case will he used. Appellee, Lonnie D. Clark d/b/a Clark Aerial Service, brought this suit in the District Court of Terry County, Texas, against appellant, the Terry County Airport Board, Terry County, Texas, said Board being composed of John J. Kendrick, A. Earl Jones, D. L. Pemberton, R. L. Burnett, and Jake Geron. Appellee’s petition was to enforce an alleged contract, either written or oral, by and between the appellee and the Terry County Airport Board or by and between appellee and the City of Brownfield, Texas, who assigned the rights of the county airport to the appellant and to have the court grant him a site on said airport in compliance with his alleged contract dated August 2, 1956. The appellee’s petition also prayed that he, the appellee, be granted the same privilege as was and had been extended to other operators of a like class and character as the appellee. Appellee also contended that the Commissioners Court of Terry County had also granted him a site on said airport.

The case was tried to a jury upon four special issues. In answer to said issues, the jury found that Terry County through its Commissioners Court by a resolution voted, passed and adopted leased to appellee airport space for his spraying operations; that appellee offered to accept said lease contract from Terry County and that appellee was ready, willing and able to accept and perform the duties and obligations under said lease contract. In answer to the fourth special issue the jury found the contract prepared by the Terry County Airport Board, and presented to the appellee, was not a reasonable and uniform contract for the same class of privilege or service and with due regard to the property and improvements used and expenses of operation to the municipality.

Upon the findings of the jury, appellee was granted judgment for a site on the Terry County Airport. The site granted by the judgment was the same space originally granted by the county and delivered to the appellee. From the judgment of the trial court the appellants perfected this appeal.

By appellants’ first and second points of error it is contended the trial court erred in overruling appellants’ plea in abatement since appellee had not exhausted the administrative remedies available to him prior to instituting this suit in the trial court. We are familiar with the rule that an aggrieved party must, before appealing to the courts, exhaust the remedy provided by law for determination of rights at hearing before administrative agency. We have not been cited to any authority, and neither have we found any, showing the appellee had any relief provided him by appealing to any administrative agency. This was a suit upon a contract and to require appellants to grant him the same rental rate given to others in like service. The County Commissioners had established a County Airport Board with jurisdictions over all operations of the airport. Said airport board recognized the lease contracts of other parties that were in the same kind of business as the appellee in which they were charged an annual rental of one dollar but said Board demanded $1,100 annual rental of appellee. Since we find no administrative relief provided for appellees, we must consider the Federal Aviation Program titled 49 U.S.C.A. § 1506 which provides nothing contained in that chapter should in any way abridge or alter the remedies existing at common law or by statute but the provisions of that chapter were in addition to such remedy. Therefore, said section applies to remedies arising under state law as well as Federal remedies. Porter v. Southeastern Aviation, Inc., D.C. Tenn., 191 F.Supp. 42; Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436. We are of the opinion, and so hold, that when the County Commissioners had refused to consider appellee’s application for a site on the Terry County Airport, for the reason that the matter was within the jurisdiction of the Terry County Airport Board, and not within the jurisdiction of the Commissioners Court of Terry County, and Terry County Airport Board had refused appellee the same lease rates as granted to other persons in like business; that such rates required of appellee were unreasonable and not uniform as required under Article 46d-4(a) and that appellee’s only remedy was in the courts. Appellants’ points one and two are overruled.

By appellants’ third point of error it is contended there is no evidence to support the answer of the jury to special issues numbers one, two and three wherein the jury found that the Commissioners Court in the summer of 1957 leased to appellee an airport space for his spraying operation; that appellee offered to accept the contract of lease from appellant; and that appellee was ready, willing and able to accept and perform such lease because the same was barred by the two and four year statute of limitations. Appellants’ point four is the same as point three except it contends there was insufficient evidence to sustain the findings of the jury and was barred by the two and four year statute of limitations.

The airport in question was owned by the City of Brownfield in 1956 and the City Council directed the city manager to execute a contract for the appellee to use the local airport. Soon thereafter the airport was conveyed to Terry County. In 1957 the appellee appeared before the commissioners of Terry County and requested a site on the airport at which time he was granted a location on the airport and Commissioner Tankersley was directed to grade off a landing strip for appellee. Tankersley did grade off the location as directed by the Commissioners Court and the appellee moved onto the strip so graded. Subsequent to the county taking over the airport the County Commissioners set up the Terry County Airport Board with full authority to handle and control the airport. Said Board assumed full operation of the airport on January 1, 1959. The appellee appeared before the airport board several times to get the board to honor his contract. In February 1961 the board refused his contract by tendering a new contract requiring appellee to pay an annual rental of $1,100, being $1,099 over the former contract. This action was taken as to appellee although the Board recognized the contract of other parties in the same kind of spraying business as the appellee in which the other parties were to pay one dollar per year for their location on said airport. Such action was not a reasonable and a uniform charge for the same class of privilege of service as required under Article 46d-4(a) of Vernon’s Ann.Texas Revised Civil Statutes. After the Board in February 1961 made this refusal to permit a site on the aii-port unless he agreed to pay $1,100 this suit was filed in December 1961. Appellee never knew that appellants did not permit him to continue use of the airport under his contract until the action in February 1961 which required him to pay $1,100 annual rental payment. February 1961 is the date appellee’s contract was repudiated and the statute of limitations did not begin to run until the date of repudiation. It is stated in Goodwin v. Southtex Land Sales, Tex.Civ.App., 243 S.W.2d 721 (N.R.E.) as follows :

“The Texas cases are in accord. In cases of breach of contract following delayed performance the rule is that the statute of limitations does not begin to run until it appears that the party in default has repudiated the contract and will not continue performance thereunder. Henrietta Nat. Bank v. Barrett, Tex.Civ.App., 25 S.W. 456; Stribling v. Moore, 33 Tex.Civ.App. 297, 76 S.W. 593; St. Louis Southwestern R. Co. of Texas v. Davy Burnt Clay Ballast Co., Tex.Civ.App., 288 S.W. 855; City and County of Dallas Levee Imp. Dist. v. Halsey, Tex.Civ.App., 202 S.W.2d 957.”

Appellants’ points three and four are overruled.

The fact that appellants recognized the contracts of other persons in like business as that of appellee where they were charged an annual rental of one dollar and requiring appellee to pay an annual rental of $1,100 is sufficient proof that same was unreasonable and not uniform. When the commissioners gave a site on the airport and directed Tankersley, one of the commissioners, to grade a certain space for appellee and Tankersley graded such site and appellee went onto such site an implied contract was presumed from the circumstances and conduct of the parties. It is stated in Turners, Inc. v. Klaus, 341 S.W.2d 182 (N.R.E.) as follows:

“A contract implied in fact arises when ‘the acts of the parties are such as to indicate * * * a mutual intention to contract, as where one accepts the tendered service of another under circumstances justifying the inference that such other expected to be paid for such services.’ Marr-Piper Co. v. Bullis, Tex.Com.App., 1 S.W.2d 572; Kuhl-mann’s Estate v. Poss, Tex.Civ.App., 220 S.W. 564; Southwestern Portland Cement Co. v. Latta & Happer, Tex.Civ.App., 193 S.W. 1115, 1125; 13 Tex.Jur.2d, Contracts, § 5.”

Appellants’ fifth and sixth points of error are overruled.

By appellants’ seventh point of error it is contended the court erred in submitting the special issues contained in the charge to the jury whereby the test was a preponderance of the evidence. The first three issues involved the question whether or not the appellee had a contract for a site upon the airport. The fourth issue was whether the contract submitted by the airport board was reasonable and uniform. The appellants never objected to the charge of the court as submitted. Rule 272 provides objections shall in every instance be presented to the court before the charge is read to the jury and all objections not so made and presented shall be considered as waived. Where the airport is exercising its delegated authority, its actions are prima facie valid and the burden was upon appellee to show the actions of appellants were unreasonable and not uniform. Miller v. Tarry, Tex.Civ.App., 191 S.W.2d 501 (N.R.E.). Appellants’ seventh point of error is overruled.

Judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    J. B. KELLEY, Appellant, v. W. R. GOODRUM et al., Appellees.
    No. 14308.
    Court of Civil Appeals of Texas. Houston.
    May 7, 1964.

      Talbert, Giessel, Cutherell & Barnett, Howell E. Stone, Houston, for appellant.
    Bill Allen, Houston, Sam Lee, Angleton, Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, Davis, Kee, Mason & Lae, Angleton, of counsel, for appellees.
   WERLEIN, Justice.

This suit was brought by appellees, W. R. Goodrum and Judith Goodrum, to recover damages for personal injuries sustained by them when the station wagon which W. R. Goodrum was driving in a southerly direction on Highway 288 at the outskirts of the City of Angleton in Brazoria County, Texas, was struck in the rear by an automobile driven by appellant, J. B. Kelley. Judgment was rendered for appellees against appellant based on the jury findings.

Appellant contends that the trial court erred in refusing to submit his requested Special Issues A and B inquiring whether appellee Goodrum failed to yield the right of way to appellant, and if so, whether such failure was a proximate cause of the collision; and also erred in refusing to submit appellant’s requested Special Issues C, D and E inquiring whether immediately before the collision in question appellee Good-rum turned his vehicle upon the roadway at a time when such movement could not be made in safety and, if so, whether such movement was a proximate cause of the collision in question.

It is undisputed that appellant did not see appellees’ station wagon pull onto the highway at any time or point, or change its direction, although he was in a position where he could have seen such movement had it been made immediately before the impact. He testified that when he first saw appel-lees’ station wagon it was headed in a southerly direction on Highway 288, going probably between 20 and 30 miles an hour, and that at such time he was about a car length behind it going about 40 miles an hour. He estimated he was going in excess of 30 miles per hour when he struck appel-lees’ station wagon in the rear.

The only purported evidentiary basis for appellant’s requested issues is his testimony that W. R. Goodrum said at the scene of the accident that they “had just turned around.” Appellant conceded, however, that he did not see any turning movement, and that no mention was made as to where appellees had turned around. No statement regarding a turning movement by the Goodrum station wagon was made by anyone to the investigating officer. Both appellees testified unequivocally that they had not turned around. It seems rather inconceivable that appellees’ station wagon had just turned around since at the time it was struck in the rear it was going between 20 and 30 miles per hour in a southerly direction straight along the paved highway. When asked to tell the jury where Goodrum said he turned around, appellant testified that he was unable to tell the jury that. He further testified: “I am not positive that he said he had just turned around at the drive-in, I think I may have concluded what he did.” The collision in question was approximately in front of a drive-in that was on the highway. When asked whether or not any statement was made by anybody out there at the scene of the accident that Mr. Goodrum had just turned around, appellant testified: “No, sir, wasn’t no statement.” When asked whether any statement was made by anybody to the effect that he (Goodrum) had just pulled onto the highway, immediately before getting hit, he testified: “No, sir.”

We are of the opinion that the statement made by appellant, to the effect that Good-rum said that they “had just turned around,” and that appellant had concluded from what Goodrum said that he had just turned around at the drive-in in front of which the accident occurred, is not only contrary to the evidence adduced at the trial, but constitutes at most a mere scintilla of evidence. It lacked sufficient probative force to warrant the submission of any issues based thereon. The unsupported conclusion of a witness is without probative force to support an issue or finding. Dallas Railway & Terminal Co. v. Gossett, 1956, 156 Tex. 252, 294 S.W.2d 377; Casualty Underwriters v. Rhone, 1939, 134 Tex. 50, 132 S.W.2d 97; McCormick and Ray, Texas Law of Evidence, 2d Ed., Vol. 1, Sec. 31.

Furthermore, the court properly refused to submit the requested issues because each of the two series of issues was materially incomplete. The issue of negligence or standard of ordinary care was not included in either of the requested series of issues. Appellant states that such' issues are founded upon Article 6701d, Sec. 68(a) of Vernon’s Annotated Texas Statutes. It has been held in several decisions in this State with respect to the statutory provisions pertaining to turning movements and right of way, that the issue of negligence or standard of ordinary care must be submitted. Texas & New Orleans Railroad Co. v. Day, 1958, 159 Tex. 101, 316 S.W.2d 402; Missouri-Kansas-Texas Railroad Co. v. Mc-Ferrin, 1956, 156 Tex. 69, 291 S.W.2d 931; Warren Petroleum Company v. Thomasson, 5th Cir. 1959, 268 F.2d 5; Williams v. Price, Tex.Civ.App., 308 S.W.2d 185, error ref., n. r. e.; Booker v. Baker, Tex.Civ.App., 306 S.W.2d 767, writ ref., n. r. e. See also Craker v. City Transportation Company of Dallas, Tex.Civ.App., 316 S.W.2d 447, error ref., n. r. e.

In the McFerrin case,, supra, the Supreme Court was confronted with the proper application of a motorist’s duty to stop at a railroad grade crossing in accordance with the provisions of Sec. 86, Art. 6701d. The Court held that it was necessary to include the standard of ordinary care with respect to an alleged statutory violation of such provision. The Day case, supra, reaffirmed that the factual determination of whether there is a violation of the statute must be made in the light of the standard of ordinary care. In Warren Petroleum Company v. Thomasson, supra, the United States Circuit Court, 5th Cir., held that the court’s charge should have included the standard of the “reasonably prudent driver under the circumstances,” with respect to an alleged violation of Section 74 of Article 6701d, which provides: “The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all vehicles approaching on said highway.” In Booker v. Baker, supra, the Court stated:

“In our opinion Article 6701d, sec. 68a and sec. 72, come within the class of statutes in which the common-law standard of the reasonably prudent man must be-used in determining as a matter of fact, not as a matter of law, whether the conduct of a motorist is negligent. The duties imposed by these-particular statutes are not. absolute, they are conditional. They do not dispense with the necessity of a finding of fact. as- to whether the conduct of a motorist was negligent under the circumstances.”

See also Williams v. Price, supra, in which the Court approved the submission by the trial court of issues including the standard of ordinary care. •

It is our view that appellant, by reason of his failure to’ include a negligence issue or the applicable standard of ordinary care as a part of the refused special issues, failed to comply with' Rule 279, Texas Rules of Civil Procedure, which requires that requested issues must be tendered in substantially correct wording.

-Appellant contends that there is no evidence in support of the jury’s findings that appellant was operating his automobile too closely behind appellees’ vehicle and that appellant was driving his automobile at an excessive rate of speed. Since the j’ury found that appellant failed to keep a proper lookout,'and failed to make a proper application of his’brakes, and that each such failure Was á proximate cause of the collision, and also' found that appellant’s failure to turn to the left was negligence and such negligence was a proximate cause of the collision, we find it unnecessary to discuss appellant’s complaints with respect to the- submission of issues on following too closely and speed. No complaint whatsoever has been made by appellant with respect to the other findings of primary negligence on his part. Hence the j'udgment is fully supported by unchallenged findings.' Under these circumstances it is immaterial whether or not appellant was following appellees’ vehicle too closely or driving at an excessive rate of -speed.

Judgment affirmed.


author: MURRAY, Chief Justice.

text:
    CORBAMEX, S.A. et al., Appellants, v. REPUBLIC CARLOADING AND DISTRIBUTING CO., Inc., Appellee.
    No. 14243.
    Court of Civil Appeals of Texas. San Antonio.
    April 15, 1964.
    Rehearing Denied May 20, 1964.

      Jacob G. Hornberger, Laredo, for appellant.
    Elmore H. Borchers, Laredo, for appel-lee.
   MURRAY, Chief Justice.

This action was instituted in the District Court of Webb County, Texas, by Corba-. mex, S. A., and Jose A. Montem’ayor E. Hijos, against Republic Carloading and Dis--tributing Co., Inc., for damages covering the loss of two cases of silk tie material. Three cases of such material were shipped in bond by the plaintiffs under a bill of lading contract covering the transportation from New York City to Laredo, Webb County, Texas. The three cases were delivered to Republic Carloading and Distributing Co., Inc., known as a freight forwarding company, on October 29, 1957, at its terminal, pier 20, North River, New York. One case arrived in Laredo on November 4, 1957, but the other two cases were never delivered and are presumed lost.

One of the terms and conditions of the bill of lading covering this shipment is as follows:

“As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, within nine months after delivery of the property (or, in case of export traffic, within nine months after delivery at port of export) or, in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed; and suit shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.”

It is clear that under this provision the duty was upon plaintiffs to file a written claim against the defendants within the time stated in the bill of lading before they could maintain this lawsuit. This they did not do and the trial court rendered judgment in favor of the defendant, and plaintiffs have prosecuted this appeal.

Appellants contend that two letters written by them to appellee, one dated February 20, 1958, and the other, August 7, 1958, constituted the filing of a claim within the time stated in the bill of lading. We do not agree. Omitting formal parts, these two letters read as follows:

“We are now informed by the ultimate consignee that only one of the three cases has been received. We kindly ask you to trace this shipment and let us have your report at your earliest.”
“Up to this date you have failed to give us any report on the matter and since consignee has not as yet received the other two cases, we hereby ask you to put a tracer on this shipment and to inform us of the outcome. We repeat that you received the shipment in question on October 29th, 1957, at your terminal, pier 20, North River.”

These letters do not constitute a “claim,” they go no further than to inform appellee that two of the cases of material had never been delivered, and ask them to put a tracer on the shipment and inform appellants of the outcome. There is no intimation that a “claim” is being made.

The facts were stipulated by the parties and, as stated in these stipulations, these three cases of tie material were delivered to and accepted by appellee in New York City on October 29, 1957, for transportation to Laredo, Texas, under a uniform bill of lading contract. The three cases were covered by and moved under the one and same hill of lading, and one of the cases arrived in Laredo seven days later, on November 4, 1957. The other cases never arrived. The appellants, on November 4, 1957, notified the consignee in Laredo of the arrival of the one case, and that it was ready for pickup by consignee. The one case is not involved in this suit; only the two lost cases are here involved. There is no dispute that under the provisions of the bill of lading it was the duty of appellants to file a written claim of loss with appellee within nine months after the cases were shipped, after allowing a reasonable time for delivery. 11 Tex.Jur.2d p. 230, § 461.

The parties stipulated as to reasonable time for delivery as follows: “Not more than ten days was a reasonable time in which to make delivery of the said shipment ■from New York City to Laredo, Texas, at the time in question by the Defendant. The above described actual shipment required seven days for delivery by railroad carriers and Defendant and the usual time is not over seven days.” Thus the time for giving written notice expired on August 8,1958. A formal notice of a claim was filed by appellants on October 15, 1958, which came too late.

Appellants’ two letters, dated February 20, 1958, and August 7, 1958, respectively, do not constitute the filing of a “claim” in writing with appellee. These letters are not “claims,” they only ask appellee to trace this shipment and let appellants have a report.

Appellants cite the case of Thompson v. Levy Bros. Dry Goods Co., Tex.Civ.App., 180 S.W.2d 212, writ of error dismissed, as supporting their contention that these letters do constitute the filing of a “claim” in writing with appellee. We feel that the wording of the letter written to the shipper in that case, and the shipper’s answer thereto distinguish it from the instant case, but if we be wrong in this, then we refuse to follow that case as we regard it as against the weight of authority. A full discussion of this question is found in United Mut. Fire Ins. Co. v. Railway Exp. Agency, 323 Mass. 354, 82 N.E.2d 215, wherein a large number of cases in conflict with Thompson v. Levy are cited.

The Thompson-Levy case arose in the Justice Court and the Supreme Court of this State did not have jurisdiction unless a conflict of decisions was pointed out. The Supreme Court dismissed the application for a writ of error and thus it was never approved by the Supreme Court.

We are of the opinion that the two letters written in the case at bar, taken separately or together, did not constitute the filing of a written “claim” for the two lost cases of silk tie material. Texas & N. O. R. Co. v. McNatt, Tex.Civ.App, 223 S.W.2d 651; Hazzard Co. v. Maine Central Ry. Co, 121 Me. 199, 116 A. 258, 259; United Mut. Fire Ins. Co. v. Railway Exp. Agency, supra. Definitions for the word “claim” are to be found in 7 Words and Phrases, beginning on page 445.

The judgment is affirmed.


author: TIREY, Justice.

text:
    D. N. GAMBLIN, Appellant, v. Cecil INGRAM et al., Appellees.
    No. 4225.
    Court of Civil Appeals of Texas. Waco.
    April 30, 1964.
    McCown & Cobb, Dumas, for appellant.
    Richards & Ferguson, Dalhart, for appel-lees.
   TIREY, Justice.

This is a negligence case. Plaintiff Gamblin and defendant Burkett are neighboring farmers in Moore County, Texas. In 1960 plaintiff planted a cotton crop and defendant Burkett planted a maize crop; in the summer the rains were heavy and prevented Burkett from killing the weeds in his maize crop with cultivators. He employed defendant Ingram to spray his maize with Herbicide 2, 4 — D for the purpose of killing weeds in the maize. Plaintiff alleged that defendants were negligent in the manner in which they sprayed the maize crop and that the herbicide used came in contact with plaintiff’s cotton crop and damaged his crop to the amount of $11,-343.08, and he prayed for appropriate relief. The jury, in its verdict, found substantially (1, 2, 3 and 4) that plaintiff’s cotton was damaged by the herbicide used by Ingram and Burkett in spraying the maize, but that the damage to the cotton was not caused solely by the herbicide sprayed by persons other than defendants, and that the cotton crop did receive damage from the Herbicide 2, 4-D sprayed by persons other than defendants; (6 and 7) that Ingram failed to confine the herbicide he was spraying outside the boundaries of the plaintiff’s cotton, but that such failure on the part of Ingram was not negligence; (9, 12 and 13) that Ingram did not allow the herbicide to drift onto plaintiff’s cotton, but that Ingram did allow the herbicide to blow onto the plaintiff's cotton, but such action was not negligence.

The court granted defendants’ motion for judgment on the verdict and decreed that plaintiff take nothing by his suit and taxed costs against him. Plaintiff seasonably perfected his appeal to the Amarillo Court, and the cause is here on transfer.

The judgment is assailed on what appellant designates as 11 points. Points 1 to 8 inclusive are substantially to the effect that the Court erred in overruling his motion for new trial because the verdict is contrary to the overwhelming weight of the evidence; that the jury’s answers to issues 7 and 13 are not supported by the evidence, because all the evidence shows, as a matter of law, that Ingram’s failure to confine the herbicide outside the boundaries of plaintiff’s cotton crop was negligence, and that the jury’s findings to issues 7 and 13 are against the overwhelming weight of the evidence, and that there is no evidence to support the answers of the jury to issues 7 and 13. We overrule each of the foregoing contentions for íeasons which we shall hereafter briefly state. First of all, plaintiff grounded his cause of action against the defendants on their negligence in spraying the maize and, in so doing, alleged various and sundry acts of negligence on the part of each defendant. Much testimony was tendered in behalf of all the parties, the statement of facts containing a total of 401 pages, which we have examined very carefully. Under the testimony tendered, it was a fact issue for the jury to say whether or not plaintiff’s damage was caused by the negligent conduct of the defendants and they were acquitted of all negligence in this behalf. Under the foregoing factual situation this cause is ruled by the pronouncements of our Supreme Court in Gulf, Colorado and Santa Fe Ry. Co. v. Oakes, 94 Tex. 155, 58 S.W. 999, and 52 L.R.A. 293, and Turner et al. v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221. As we understand these decisions, the plaintiff had the burden of showing that defendants were guilty of negligent conduct proximately causing his loss before he is entitled to recover. (The opinions of our Supreme Court in the foregoing cases are clear and comprehensive, and the rule there stated has not been changed.) Our Houston Court of Civil Appeals in Vrazel v. Bieri, 294 S.W.2d 148 (n. r. e.) applied the foregoing pronouncements in an action for damages as a result of herbicide sprayed on plaintiff’s crops from an airplane, wherein the factual situation is quite similar to the factual situation before us. Under the foregoing decisions the plaintiff here had the burden of obtaining fact findings of actionable negligence before he is entitled to judgment. Our view of all the evidence tendered is ample to sustain the jury’s answers to issties 7 and 13 in the Court’s main charge, and that such answers are not against the great weight and preponderance of the evidence so as to be manifestly unjust under the doctrine announced in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. See also “No Evidence and Insufficient Evidence”, 30 Tex.Law Rev., 803.

Points 9, 10 and 11 are to the effect that the Court erred in entering judgment for defendants because there is an irreconcilable conflict in the answer of the jury to issue 2 with the answers to issues 7 and 13. Appellant says that the conflict arises because, (1) in the jury’s answer to issue 2, it found that plaintiff’s crop was damaged by the use of the herbicide sprayed by Ingram at the instance of defendant Burkett, and (2) because the findings of the jury in issues 7 and 13 are to the effect that there was no negligence on the part of defendants in the spraying, and thus presents an irreconcilable conflict in the verdict. There is no merit in this contention, because the jury has found, under all the surrounding facts and circumstances, that Ingram and Burkett were not negligent in the spraying of Burkett’s maize; and since there is ample testimony to support the findings that there was no negligence in this respect, such view brings this cause within the rule announced in the Oakes, Turner and Vrazel cases, supra. That is to say that under the rule there announced there can be no recovery on plaintiff’s behalf without a finding of negligence. In Howard v. Howard, Tex.Civ.App., 102 S.W.2d 473, (writ ref.) we find this statement of the rule as to conflicts in verdicts:

“The test in such case is, whether taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant.”

This statement of the rule was approved by our Supreme Court in Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453. Our Supreme Court again approved the foregoing rule in Siratt v. Worth Construction Company, 154 Tex. 84, 273 S.W.2d 615. In Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, our Supreme Court made this statement of the rule:

“To require a judgment entered on a verdict containing conflicting answers to be set aside, the conflict between the answers must be such that one answer would establish a cause of action or defense, while the other would destroy it.”

In this case the jury found that defendants were not guilty of any negligent conduct submitted to it. So, under the decisions here cited, the plaintiff could in no event be entitled to a judgment on the verdict. See also Maynard v. Dallas Railway & Terminal Company, Tex.Civ.App., 291 S.W.2d 363 (n. w. h.).

We find nothing in the case of Leonard v. Abbott, Tex., 366 S.W.2d 925, that changes or limits in any way the rule announced by our Supreme Court in the Oakes and Turner cases, supra, and under the factual situation here the Leonard case has no application to the case at Bar. Perhaps we should say that the Herbicide Control Act, Art. 135b-4, Vernon’s Ann.Tex.Civ.St, expressly excludes Moore County and other counties from this Act and, therefore, has no application to the case before us. ■ We think further comment on this case, under the jury’s findings, would be of no avail. We have considered each of appellant’s points, and each is overruled. Because of the disposition made of this case, the appellees’ counter-points pass out of the case.

Accordingly, the judgment of the trial court is affirmed.


author: HIGHTOWER, Chief Justice.

text:
    Jim POWELL et ux., Appellants, v. Una Marie POWELL, Appellee.
    No. 6616.
    Court of Civil Appeals of Texas. Beaumont.
    April 23, 1964.

      Everett Lord, J. R. McDougald, Beaumont, for appellants.
    Jack R. King, Beaumont, for appellee.
   HIGHTOWER, Chief Justice.

This is a habeas corpus proceeding involving custody of three minor boys who, at the time of trial, were of the ages of 12, 9 and 8 years, respectively.

Appellee and David Powell, the natural father and mother of the children, were married in the year 1946. They were divorced in 1956, at which time the custody of said children was awarded to David Powell. Proof of the cause or grounds of the divorce and the reasons why the father was awarded custody was not made in the trial. David Powell was killed in an automobile accident on the 24th day of March, 1962. Since his death, and at all times prior to the judgment of the trial court now before us, the children had resided with appellants herein. In April of 1962 appellee filed her petition for habeas corpus wherein it was alleged that said children were being illegally confined and restrained by appellants and preventing them from being in the custody of appellee who is the proper person to have their custody and control. Answer was made by appellants who requested they be appointed guardians of said children and that it would be to said children’s best interest that their care, custody and control be decreed to them. Thereafter, on the 23rd day of August, 1962, the custody of said children was temporarily awarded to appellants Jim Powell and wife, Sallie Powell.

Trial was had in September of 1962 and at the close of the testimony appellee filed a motion for instructed verdict, alleging among other things that appellants’ evidence failed to rebut the legal presumption that it is to the best interest of the children that the natural parents have their care, custody and control, and that there was no evidence to show that said children’s best interest would not be served by placing them with appellee. Such motion for instructed verdict was overruled, and the following special issue was submitted to the jury:

“Do you find, from a preponderance of the evidence, that it would be to the best interest of the minor children for their custody to be placed in Jim and Sallie Powell?
“In connection with the above Special Issue, you are instructed that the law presumes that a natural parent is entitled to the custody of their natural children but this may be overcome by a preponderance of the evidence.”

The jury was unable to reach a verdict and was discharged by the court and the case was taken under advisement by the court. The court thereafter granted appellee’s motion for judgment finding that appellee was a fit and proper person to have the care, custody and control of the children; that there was no evidence to warrant a submission of the issue that was submitted to the jury, and that appellee’s motion for instructed verdict should have been granted.

We think the court erred in concluding that there was no evidence to submit said issue. It would serve no useful purpose to set out herein the wealth of testimony of several disinterested witnesses conclusively establishing that appellants were fit and proper persons to have the care, custody and control of the children; that they loved them; had a nice, suitable home and were financially able to adequately care for them; that the children were quite fond of them and enjoyed living with them. In this connection, the record reflects that after the divorce of appellee and her husband, David Powell, in 1956 the children lived in the home of appellants for years, after which the said David Powell built his own home and placed the children therein under the care of a housekeeper where they remained until the death of David Powell as aforesaid.

The testimony showed that appellee had worked in a beer tavern for several years, as a waitress. That she was still working there at the time of the trial, and intended to continue until she got out of debt. She worked one week from 10:00 a. m. until 6:00 p. m., and the next week 5:00 p. m. until 12:00 at night, and she planned to continue working those same hours. The testimony also showed that appellee had been going with a man named W. R. Shannon and had been engaged to him for the past four years. Shannon had come to her home practically every time she had the children. Shannon used vile language around her once in a while, maybe once a month. Shannon had slapped appellee, but not very often, when they got into an argument, maybe once a month. They had vague plans of getting married, but will wait to see how things work out. One of the children, a 12 year old boy, testified he had known Shannon for 2 or 3 years. He had seen Shannon drink beer once, and had heard him curse his mother. His mother had a black eye and he was told Shannon gave it to her. All of this evidence would have supported a jury finding that it would be to the best interest of the minor children for their custody to be placed in appellants.

As a matter of fact, appellee does not take a serious position in its brief to the contrary. She there refers to the well established law to the effect that the natural parent of a child, as against outsiders, is entitled to the custody of the child unless it be shown that the parental right of the parent has been terminated by decree, is a dependent or neglected child or that the parent is unfit to have the custody. Clements v. Schaeffer, Tex.Civ.App., 360 S.W.2d 906; Martin v. Cameron Co. Child Welfare Unit, Tex.Civ.App., 326 S.W.2d 31; Prock v. Morgan, Tex.Civ.App., 291 S.W.2d 489; Sec. 117, Spears Marital Rights in Texas, p. 167. That is good law, but as stated by the Supreme Court in Mumma v. Aguirre, 364 S.W.2d 220, that rule of law sometimes collides with other rules of law. In this case, it has collided with the rule that the custody is to be determined by consideration of what is to the best interest of the minor children. In connection with this latter rule, appellee joined issue with appellants as to the best interest of the children. Both parties placed the problem of determining whose custody would be to the best interest of the children squarely before the court and jury.

Even though a trial court is of the opinion that the evidence before it is too meager to support a judgment in favor of one of the parties and that a verdict based thereon would have to be set aside and new trial granted, it must, nevertheless, if there is some evidence beyond a scintilla, submit the case to a jury.

Therefore, we hold fhat the trial court erred in granting appellee’s motion for judgment. Gulf, Colorado & Santa Fe Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933. .Since the amendment in 1961 of Art. 4639a of the Revised Civil Statutes, the parties were entitled to have the issue of custody submitted to the jury, and the judgment of the court would have to conform to its determination.

Reversed and remanded.


author: WILSON, Justice.

text:
    McLENNAN & HILL COUNTIES TEHUACANA CREEK WATER CONTROL & IMPROVEMENT DISTRICT NO. 1, Appellant, v. A. C. HURST et ux., Appellees.
    No. 4241.
    Court of Civil Appeals of Texas. Waco.
    May 7, 1964.

      John B. McNamara, Jr., Waco, for appellant.
    George Clark and Bill Hayner, Waco, for appellees.
   WILSON, Justice.

Defendant district appeals from a temporary injunction restraining it from going on plaintiffs’ land or constructing or maintaining thereon any structure in connection with a dam or emergency spillway.

The petition upon which the writ was granted alleged that an easement was executed by plaintiffs which authorized defendant district to use plaintiffs’ land “For and in connection with the construction, alteration, operation and inspection of the following described works of improvement to be located on the above described land; for the flowage of any waters in, over, upon or through such works of improvement; and for the permanent storage and temporary detention, either or both, of any waters that are impounded, stored or detained by such works of improvement; Floodwater retarding structure, consisting of a portion of an earthen dam and emergency spillway; portions of the sediment, sediment reserve and detention storage pools, including an area that will he inundated during emergency spillway flow”, and reciting “Project involves approximately 18.5 acres of the above described” 139.85 acres owned by plaintiffs. The easement contained other provisions not necessary to recite.

The petition alleged execution of this easement was induced by defendant’s representations that a deep-water lake would be situated on plaintiffs’ lands when the structures were completed thereon; that defendant was threatening to construct the dam and other structures so that no portion of the sediment pool, sediment reserve pool and detention storage pool would he on their lands (but only that from emergency spillway flow), thus depriving them of use of, and access to the lake.

The petition sought three separate remedies : (a) cancellation of the easement, apparently for failure of consideration, and because of the representations; (b) a determination that the improvements mentioned were all required by the terms of the easement to be located on plaintiffs’ land, with (c) an injunction restraining construction which would deprive them of the lake.

The court heard evidence and granted the temporary injunction, declaring in the order that the easement authorized defendant district to go on the land only to construct and maintain the structures so that the detention storage and other deep pools would be situated on their lands, and not otherwise; that unless restrained the district would construct a dam which would deprive plaintiffs of such pools and access to the storage water of the lake; that the use proposed to be made of plaintiffs’ land in constructing thereon only a portion of the improvements was not granted or authorized by the easement.

Both parties urge on us their construction of the easement, and their relative rights under its terms. The scope of our review is limited to determining whether there was a clear abuse of the trial court’s broad discretion in granting the temporary injunction. Janus Films v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589.

The purpose of the temporary injunction is to preserve the last actual, peaceful and non-contested status which preceded the controversy. The purpose of the hearing is to determine whether applicant has a probable right that will probably be endangered unless the writ issues. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519; City of Lubbock v. Stubbs, 160 Tex. 111, 327 S.W.2d 411, 415. Where the pleadings allege and the evidence “tends to sustain” a cause of action, there is no abuse of discretion. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552; Camp v. Shannon, above. Although we recognize the temporary injunction should be dissolved if it is based on an erroneous application of law to established facts, Dallas General Drivers, etc. v. Wamix, Inc. of Dallas, 156 Tex. 408, 295 S.W.2d 873, 879; Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722, interpretation of the easement is not the sole subject matter alleged and upon which evidence was adduced. There is no showing here, of a clear abuse of discretion.

The Rules do not require that the order granting the temporary injunction “should specifically find and set forth the reasons why the court believes it probable that the applicant will prevail on a final trial on one or more of the issues made by the pleadings”, the Supreme Court held in the Robertson Transports case. Neither is the trial court authorized, however, to finally adjudicate the rights of the parties, for “legal rights cannot be finally determined upon a hearing relating to the wisdom or expediency of issuing a status quo order.” Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 421. See Miers v. Brouse, 153 Tex. 511, 271 S.W.2d 419, 421; James v. E. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 961; Reese v. Wallace Enterprises, Inc., Tex.Civ.App., 376 S.W.2d 587. Neither the trial court nor this court may properly render a declaratory judgment construing or determining the substantive effect of the contract on an application for this interlocutory order. Houston Belt & T. Ry. Co. v. Texas & New Orleans R. Co., 155 Tex. 407, 289 S.W.2d 217, 218.

The order is reformed so as to delete therefrom the declarations construing the easement, and the portion thereof declaring the legal effect of and the rights of the parties under the easement. Appellant’s points not discussed are overruled. As modified, the order is affirmed.


author: FRASER, Chief Justice.

text:
    D. J. BREWER, Appellant, v. The BIG LAKE STATE BANK, Appellee.
    No. 5655.
    Court of Civil Appeals of Texas. El Paso.
    April 29, 1964.
    Rehearing Denied May 27, 1964.

      Hardeman, Smith & Foy, Justin A. Kever, San Angelo, for appellant.
    Gordon F. Thrall, Big Lake, for appellee.
   FRASER, Chief Justice.

Plaintiff, The Big Lake State Bank, sued defendants D. J. Brewer and J. E. Freeman in the 83rd Judicial District Court of Reagan County, Texas alleging that defendants composed a partnership doing business as B & F Construction Company; that defendant J. E. Freeman signed a promissory note in the name of the B & F Construction Company payable in Big Lake, Reagan County, Texas to the plaintiff ; and that upon default in the making of payments on said note by J. E. Freeman, both J. E. Freeman and D. J. Brewer, as partners, became liable to The Big Lake State Bank on the balance owing on such note. Only the defendant D. J. Brewer filed a plea of privilege, contending that venue of the suit lies in the county of his residence, Tom Green County, Texas. From the trial court’s order overruling the plea of privilege, defendant D. J. Brewer appeals.

Appellant maintains that the appellee (plaintiff) did not discharge the burden placed on him by the provisions of Section S, Article 1995, Vernon’s Ann.Civ.St., and that his sworn denial is not satisfactorily met by the necessary allegations to bring suit against Mr. Brewer in Reagan County. It is not denied that Mr. Brewer lives in Tom Green County, and that he did not actually sign the note. Appellee maintains that four elements need to be proven — to-wit, the existence of the alleged partnership; that the named individuals were the identical parties composing the partnership ; that the contract in question was executed by a partner as a partnership obligation; and lastly, that the written contract or note was signed by a person who had authority to do so for the partnership. Reviewing the evidence, it appears that defendants D. J. Brewer and J. E. Freeman came to ap-pellee bank. Mr. Brewer had been known to the President of said bank, Mr. Rees, for some thirty years. The cashier, Harry Logan, had known him for some seven or eight years. Mr. Freeman, the other defendant, was not known by Mr. Rees and was known to Mr. Logan, the cashier, only as a high school acquaintance. At the hearing on the plea of privilege, only Mr. Rees and Mr. Logan testified, and their testimony was to the effect that Mr. Brewer introduced Mr. Freeman to Mr. Rees and to Mr. Logan as his partner, and explained to them that they had some construction work in Reagan County. The two witnesses for the bank also testified that Mr. Brewer asked them to give Freeman, his partner, any help he needed or might want, and that the partnership might need some credit. Also, that Freeman would open an account and sign checks and handle the partnership business in Big Lake in any way that he wanted. Further, that he (Mr. Brewer) gave Freeman the authority to borrow money. On June 10, 1957 Freeman opened an account in said bank, as follows: “B & F Construction Company by J. E. Freeman”, and that on the signature card Freeman’s was the only name to appear, although Brewer was present when the account was opened. The bank officials testified repeatedly that Brewer stated and admitted that he and Freeman were partners. They further testified that a line of credit in the amount of $10,000.00 was, at Brewer’s request, set up for the partnership because of Mr. Brewer’s statement that the B & F Construction Company might need some help in a financial way. A note for $5,000.00 was executed “B & F Construction Company by J. E. Freeman”, and the witnesses testified that Brewer knew of this note. Several months later this note was absorbed in another note in the amount of $11,000.00, also executed by Freeman as “B & F Construction Company by J. E. Freeman”. Brewer’s personal signature does not appear on either note, and witnesses testified, as stated above, that Brewer had said that Freeman would handle matters of this nature. Witnesses also testified that Brewer knew of the $11,000.00 note about a week after it was made. This note was partially paid off, and this suit is for the balance on the $11,000.00 note.

The bank president, Mr. Rees, testified further that he had confidence in Mr. Brewer’s credit, and that that was the reason the credit was extended, because he did not know Mr. Freeman. Mr. Rees testified as follows:

“Q What were the circumstances of your seeing Mr. Brewer at that time?
“A He brought Mr. Freeman in and introduced him around and said that he was his partner and they had a contract on the courthouse * * *_»

Mr. Rees again states in his testimony:

“Mr. Brewer brought Mr. Freeman in and-introduced him as his partner.”

In another place in his testimony, during a discussion of the financing that the B & F Company might need, Mr. Rees stated as follows:

“No, sir. He stated (quoting Mr. Brewer) that Mr. Freeman was handling this.”

Mr. Logan, the cashier, also testified— among other things — as follows:

“That was when Mr. Brewer brought Mr. Freeman out and introduced him as his partner and said to let him have anything he needed, that he was his partner.
“Q Did Mr. Brewer tell that to you, also?
“A Yes, sir.”

Mr. Logan further testified that the $11,-000.00 loan was made because of the representations by Mr. Brewer that Freeman was his partner and to let him have anything he wanted.

There is no evidence that this money was used for anything but the B & F Construction projects. We think the following quotation, enunciated by the Supreme Court, in Crozier v. Kirker, 4 Tex. 252, is the pertinent law governing this situation:

“On the contrary, in all contracts concerning negotiable paper, the act of one partner binds all * * * if it appears on the face of the paper to be on partnership account, and to be intended to have a joint operation; and the holder may, at his election, enforce payment either jointly against the firm or separately against the party whose signature is attached * * *. Where two or more unite in partnership for carrying on a particular trade or other purpose, they become in point of law, so identified with each other that the acts and admissions of any one with reference to the common object are the acts and declarations of all and are binding upon all. The very constitution of this relationship furnishes a presumption that each individual partner is an authorized agent for the rest * * *. And the acts and representations of parties may be conclusive evidence of their partnership in favor of strangers who are not cognizant of their private arrangements, but who must be guided by external indications, although as between themselves they are not partners * * *. Hence, if a person has represented himself to be a partner, and has been trusted as such, he is bound by that representation, and it is no defense for him to show that he was not in fact a partner * * *. Every partner has an implied authority to bind his copartners by the making of notes and the drawing and accepting of bills for commercial purposes consistent with the object of the partnership * * * ” (Emphasis ours).

We feel that the courts have long held that a partner may bind the partnership, and that such is especially true here, where defendant Brewer took Freeman, a stranger, into the bank, introduced him as a partner, and asked the bank to extend credit to the partnership and stated that Freeman would handle the matter. On the basis of these facts, we believe the trial court was correct in refusing to grant the plea of privilege, and that this record is adequate to support the appellee’s contention that Mr. Brewer was a partner and possessed full knowledge of all these transactions, none of which, it is claimed, were made improperly. We repeat — the only evidence we have from appellant is the sworn affidavit of Mr. Brewer denying the existence of the partnership.

For these reasons appellant’s point of error is overruled, and the action of the trial court is affirmed.


author: HUGHES, Justice.

text:
    RADIO KOKE, INC., Appellant, v. Arthur TIEMANN, dba Rhoades Transfer & Storage Co., Appellee.
    No. 11183.
    Court of Civil Appeals of Texas. Austin.
    May 6, 1964.
    Rehearing Denied May 27, 1964.

      Kemp & Prud’homme, John S. Neilson, Jr., Austin, for appellant.
    Will Cowan, Austin, L. Hamilton Lowe, Austin, for appellee.
   HUGHES, Justice.

Arthur Tiemann, dba Rhoades Transfer & Storage Co., sued Radio KOKE, Inc., appellant, to recover the cost of moving the household effects of Joe Watson from San Angelo to Austin at the special instance and request of appellant and for the cost of moving the household effects of David Lee White from Austin to Garland at the special instance and request of appellant, and for reasonable attorney’s fees. Trial to a jury resulted in judgment for appellee in the sum •of $1,128.82, which amount included $350.00 for attorney’s fees.

Appellant concedes that it authorized Mr. Watson and Mr. White to contract for the hauling done by appellee and that the ■charges therefor are reasonable. The point •of difference is that appellant contends that it did not agree to pay appellee in cash but that it only agreed to pay in advertising •over its radio stations. This type of agreement is called a “tradeout.” The evidence ■on this issue was conflicting and the jury resolved the conflict in favor of appellee.

Appellant objects to the form of special issue No. 1 inquiring whether or not •appellee performed the services and labor ■shown by its itemized bills for moving Mr. Watson and Mr. White, saying the issue was multifarious.

In our opinion there was no need to submit this issue to the jury since the evidence was undisputed that appellee moved the effects of Mr. Watson and Mr. White and appellant admitted that the charges therefor were reasonable.

Appellant’s second and third points are that the Trial Court erred in refusing to submit to the jury its following requested special issues:

“Do you find from a preponderance of the evidence that Joe Watson had authority from the management of Radio KOKE, Inc., to bind Radio KOKE, Inc., to pay cash for his family to move from San Angelo, Texas, to Austin, Texas? * * *
“Do you find from a preponderance of the evidence that Davey Lee White had authority from the management of Radio KOKE, Inc., to bind Radio KOKE, Inc., to pay cash for him and his family to move from Austin, Texas, to Garland, Dallas County, Texas?”

The Trial Court did submit the following issue:

“Do you find from a preponderance of the evidence that in the agreement between Rhoades Transfer and Radio KOKE, Inc., that Radio KOKE, Inc. agreed only to give an equal amount of radio advertising to Rhoades Transfer as the cost of the moves?
“Answer ‘Yes’ or ‘No.’ ”

It is obvious that these issues, those requested and the one given, cover the same ground. The Trial Court combined the issues requested by appellant into a single issue. No objection to this issue or its submission was made by appellant. The testimony of the parties relative to the authority of Mr. Watson and Mr. White to contract with appellee on a cash or “trade out” basis is subject only to a “yes” or “no” answer as to both moves. Neither party testified that the authority of the agents, Mr. Watson and Mr. White, to contract for appellant differed in any respect. Under these circumstances we hold that the Trial Court did not err as appellant contends, or that if he did err it is harmless error under Rule 434, Texas Rules Civil Procedure.

Appellant’s last two points are to the effect that the Trial Court erred in allowing the recovery of attorney’s fees in this case. We are of the opinion that these points should he sustained.

Art. 2226, Vernon’s Ann.Tex.St., provides, in part, that, “Any person having a valid claim against a person or corporation for personal services rendered, labor done * * * or suits founded upon a sworn account or accounts * * * ” may, under certain conditions, recover reasonable attorney’s fees.

We set out the “accounts” upon which this suit was based:

Moving H. H. Goods of Mr. Joe Watson from San Angelo, Tex.
to Austin, Tex. 335 35
1 Extra Stop 7 50
Packing 107 25
Insurance 28 00 478 10
Moving H. H. Goods of Mr. David Lee from Austin, Texas to Garland, Texas 181 72
Packing 119 00 300 72”

Appellee does not contend that this suit is a suit upon a “sworn account” within the meaning of Art. 2226. Clearly it is not. Van Zandt v. Fort Worth Press, Tex.Sup., 359 S.W.2d 893.

Appellee’s claim for attorney’s fees is based upon the contention that it rendered “personal services” for appellant when it moved household effects from one town to another.

It is a matter of common knowledge that transfer companies use large trucks and other equipment in transporting household goods. It is also common knowledge that labor is performed in hoisting ice boxes and pianos on trucks and that other labor and personal services are rendered in moving family household effects. On the other hand, large and expensive equipment is utilized in moving such effects and other items such as insurance and overhead expenses go into the charge made for such hauling.

If, as was not done here, the wages paid employes for their work actually done in moving these goods were separately itemized a claim for attorney’s fees based on such wages could probably be made under the statute. Where no itemization is made and machinery and equipment are used it is our opinion that the validity of the claim for attorney’s fees is to be determined by comparing the charge made with the amount of labor done or personal services rendered and the machinery and equipment used. If the contribution of machinery and equipment employed to achieve the object of the contract is in great disproportion to the amount of labor or personal services involved then attorney’s fees should not be allowed for a single charge. As an example, if a train crew of three or four men operate, a 100 car freight train it would be ridiculous to say that these men rendered personal services or labor to the extent and value of the charges made for hauling thousands of tons of freight. On the other extreme, if a laborer is employed to dig a ditch and he uses his own pick and shovel, it would be ridiculous to say that he did not.labor within the meaning of Art. 2226.

It is our opinion that appellee did not discharge the burden cast upon it to show that the charges made were primarily and predominantly for labor done or personal services rendered.

The judgment of the Trial Court is reformed by deleting the recovery of $350.00 for attorney’s fees and as reformed the judgment of the Trial Court is affirmed. Costs of appeal are assessed against appel-lee.

Reformed and as reformed, affirmed.


author: PRESLAR, Justice.

text:
    Jewel CURTIS, Appellant, v. Farida CURTIS et al., Appellees.
    No. 5625.
    Court of Civil Appeals of Texas. El Paso.
    April 29, 1964.
    Rehearing Denied May 20, 1964.
    Wm. C. Parker, Bruce Graham, Green-ville, Lynch & Chappell, Midland, for appellant.
    H. S. Harris, Jr., Midland, for appel-lees.
   PRESLAR, Justice.

Suit by the widow of an insured against the sister of the insured for the proceeds of a $55,000.00 life policy, the widow, Farida Curtis, contending that she is the sole beneficiary, and the sister, Jewel Curtis, claiming to be a co-beneficiary entitled to one-half, $27,500.00. The insurer, The Prudential Insurance Company of America, paid the proceeds into court and was discharged as a party defendant. The district court, sitting without a jury, rendered judgment for the widow. We are of the opinion that such judgment is correct.

The insured, J. B. Curtis, Jr., was a dealer for the Chrysler Motors Corporation, and as such was entitled to participate in their insurance program, coverage for which was provided by Prudential. By the terms of the plan the insured became eligible for increased amounts of life insurance during the period of time with which we are concerned. J. B. Curtis, Jr. first became eligible for $30,000.00 coverage, $20,000.00 of which was issued by policy denominated “Group Insurance Policy Providing On A Contributory Basis Term Life Insurance”. The widow, Farida, and the sister, Jewel, were named co-beneficiaries on this policy, and have been paid in equal shares. The insured was eligible for a total of $30,000.00 of coverage, but since Texas law does not permit group life policies in excess of $20,000.00, a second policy of individual term insurance for the additional $10,000.00 was issued. He was required to make separate application for this second policy, and in such policy again named Farida and Jewel as co-beneficiaries. He then became eligible for a total of $75,000.00 of insurance and was again required to make application for individual term coverage in the amount of the excess over the $20,000.00 group policy. When the insured made application for this $55,000.00 of coverage, he named only Farida as beneficiary. It is appellant’s position that in as much as this $55,000.00 policy (No. 9719-B) included the $10,000.00 policy (No. 9719-A) in which she (Jewel) was a co-beneficiary, she remained a co-beneficiary on such $55,000.00 policy unless the insured changed his beneficiary. She seeks to maintain this position by a showing that the records of the insurer show her to be a co-beneficiary, with no change of beneficiary ever made, and her assignments of error, One, Two and Three are, in essence, that the trial court erred in its findings to the contrary. Both parties agree that the controlling single fact is who is the named beneficiary on the records of the insurer.

As to this question it is undisputed that the application for policy No. 9719-B by J. B. Curtis, Jr., listed only his wife, Farida, as his sole beneficiary. The policy provides that such application shall be a part of the policy. In fact it is the only place in the policy where the beneficiary is named. This should settle the question, but for a hand-written notation on the application which was placed there by one J. R. Hall, or someone in the home office of Prudential. The notation was “see letter dated 7/20/60”, and such notation was listed under the name of Farida Curtis in the space provided for the naming of beneficiaries. At some time after the application of J. B. Curtis, Jr. reached the home office of Prudential, J. R. Hall, a supervisor in such office, wrote to Curtis a letter dated July 20, 1960, as follows:

“Dear Mr. Curtis:
“On the application for the individual term insurance which you sent to us recently you indicate your beneficiary should be Farida Curtis, wife, if living. Our insurance records show your present beneficiary is Farida Curtis, wife, and Jewel Curtis, sister, in equal shares. If you wish to change your beneficiary, please complete the enclosed change of beneficiary card. If you do not wish to change your beneficiary designation, please let us know so that we may mark our records accordingly.”

Curtis wrote across the bottom of this letter: “Let it remain the same”, and signed his name. This letter and its reply are susceptible of different constructions, and appellant construes it to mean that the records of the insurer show Farida and Jewel to be co-beneficiaries, and the reply of Curtis to mean that he wanted it left that way. She urges that such construction would require Curtis to execute a change of beneficiary on a form acceptable to the Prudential company for her to cease to be a beneficiary.

It is our view that the letter and its reply have no bearing on the proper decision as to who is the beneficiary under this policy, No. 9719-B. When the application was made with Farida as the only named beneficiary, by the terms of the policy she became the sole beneficiary. Unless and until the insured changed his designation, she remained the beneficiary, and it is not contended that he met the requirements of Prudential as to changing his beneficiary. This policy must be construed by its own terms, and we fail to see how the fact that appellant had been named as a beneficiary on other policies of the insured could affect it. Prudential supervisor, J. R. Hall, testified that “Policy No. 9719-B replaced Policy 9719-A”, and by instrument entitled “Statement of Individual Policy Coverage”, dated July 18, 1960, issued to J. B. Curtis, Jr., by Prudential to evidence the $55,000.00 coverage under policy No. 9719-B, this replacement is further borne out. This instrument provides :

“This Statement of Individual Policy Coverage describes the only individual policy of insurance in force on your life under the Plan on the date hereof, and any statements previously furnished by the Chrysler Motors Corporation with respect to an individual policy should be disregarded.”

Thus, we fail to see any connection between the policies from the records of the insurer, and remain convinced that the beneficiary under Policy No. 9719-B is determined by the provisions of such policy. Article 3.44, subd. 3, Insurance Code of Texas, Vernon’s Ann.Civ.St. provides that the policy, or policy and application, shall constitute the entire contract between the parties; and the policy in question provides that it, together with attached papers and endorsements, constituted the entire contract between the parties. The application of the insured was attached. No change of beneficiary was attached. The letter of J. R. Hall was not attached. From the foregoing, it follows that it is our opinion that the evidence sustains the trial court’s findings, and appellant’s points One, Two and Three are accordingly overruled.

By her point number Four, appellant urges as error the action of the trial court in not admitting into evidence a question propounded to J. R. Hall as to whom “the records” of Prudential showed to be the beneficiary under the policy of insurance referred to in the letter above set out, from Hall to Curtis. The witness was testifying by written interrogatories and had stated that all records pertaining to the matter had been attached to his deposition. Thus, his answer was properly excluded as being an invasion of the province of the court, in that the witness was asked to conclude from such records the very question before the court. Also, if we be correct in our holding that Policy No. 9719-B constitutes the entire contract between the parties, then the witness would be precluded from altering it by parol testimony. The same is true of the other excluded evidence set forth in such point of error.

All assigned points of error having been overruled, the judgment of the trial court is affirmed.