author: DIXON, Chief Justice.

text:
    RED BIRD VILLAGE, Appellant, v. STATE of Texas ex rel. CITY OF DUNCANVILLE, Appellee.
    No. 16426.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 20, 1964.
    Rehearing Denied Jan. 8, 1965.

      David C. McCord, Dallas, for appellant.
    Saner, Jack, Sallinger & Nichols, Lawrence W. Jackson and Tim Kirk, Dallas, for appellee.
   DIXON, Chief Justice.

This is a quo warranto proceeding instituted by the State of Texas attacking the validity of the incorporation as a municipality of Red Bird Village in Dallas County, Texas.

After a trial before the court without the1 aid of a jury judgment was rendered declaring (1) the election purporting to incorporate Red Bird Village to be null and void, (2) the persons purporting to act as officials are not authorized to act for said village, (3) two annexation ordinances passed by the City of Duncanville, Relator in the proceedings, are legal and valid annexation ordinances; and (4) the territory in question constitutes a part of the' City of Duncanville for all purposes.

The events leading up to this litigation chronologically arranged are as follows:

April 28, 1958. City of Dallas passed first reading of ordinance annexing certain territory including that in controversy.

September 8, 1959. Dallas released part of area described in first reading of April 28, 1958, but not the territory in controversy.

May 16, 1960. Dallas released another part of territory under first reading, but not the territory in controversy.

October 24, 1961. In its pleading Respondent alleges that a valid Petition for Incorporation was filed with the County Judge of Dallas County and that said) petition was entered on the minutes of the Commissioners’ Court August 24, 1963. In its brief Respondent alleges that this petition was presented to the County Judge on October 24, 1961. A copy of the petition was introduced into evidence. It is dated August 24, 1963.

August 19, 1963. City of Dallas Ordinance No. 9925 recite's that area in controversy is still under first reading to the City of Dallas.

August 22, 1963. Effective date of Municipal Annexation Act, Art. 970a, Vernon’s Ann.Civ.St., passed by Legislature in 1963.

August 24, 1963.

(1) Respondent’s Petition for Incorporation filed. (See' above under date October 24, 1961.)

(2) County Judge ordered election to incorporate.

November 11, 1963. City of Dallas passes resolution purporting to release area in question from first reading.

November 20, 1963. Area in question released by operation of law (Municipal Annexation Act of 1963) from first reading jurisdiction of City of Dallas.

November 26, 1963.

(1) Agreement between Dallas and Relator Duncanville apportioning area in question to Duncanville.

(2) Ordinance of Relator passed accepting above apportionment.

(3) Resolution of City approving apportionment agreement.

(4) Relator City of Duncanville passes first reading of ordinance annexing part of territory in dispute.

December 21, 1963. Respondent Red Bird Village holds election to incorporate.

December 30, 1963. Relator Duncanville passes second and final reading of ordinance annexing part of area.

January 3, 1964. Relator Duncanville passes first reading of ordinance adopting remaining part of area.

January 9, 1964.

(1) Results of election canvassed by County Judge; Red Bird Village declared incorporated.

(2) Election of officers ordered.

February 3, 1964. Relator Duncanville passed second and final reading of ordinance annexing remaining part of territory.

OPINION

Respondent. Red Bird Village asserts that the trial court erred (1) in holding that the election to incorporate was null arid void — Respondent'having complied with all statutory requirements; (2) in holding that the officials of Respondent were not authorized to act — all statutory requirements having been complied with, and the results of the election certified by the County Judge, which certification is conclusive and not reversible in the absence of fraud and bad faith; and (3) in holding that Relator Duncanville’s annexation ordinances were valid.

We have concluded that the judgment of the trial court should be affirmed.

Prior to the enactment in 1963 of the Municipal Annexation Act the City of Dallas pursuant to the statutes then in effect had on April 28, 19S8 taken the first step toward annexing the territory here involved. This was prior to any action taken by Respondent towards incorporation and gave the City of Dallas priority in its annexation proceedings. Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134, 138; State ex rel. City of Fort Worth v. Town of Lakeside, Tex.Civ.App., 328 S.W.2d 245; State ex rel. City of Everman v. City of Fort Worth, Tex.Civ.App., 363 S.W.2d 500; 39 Tex.Jur.2d 419. The intention of Dallas to annex was reiterated on August 19, 1963.

Respondent in its brief relies on what it calls an “ordinance” of November 11, 1963 whereby the City of Dallas undertook to release the area from first reading. A copy of the instrument in question is in the record. It is not an ordinance. It is only a resolution. As such it is ineffective to release the area from the first reading of the ordinance of the' City of Dallas of April 28, 1958, for an ordinance may be repealed only by another ordinance, not by resolution or order, or motion. ' City of Panhandle v. Bickle, Tex.Civ.App., 31 S.W.2d 843, 846 and authorities there cited.

The annexation priority of the City of Dallas was still in existence on August 22, 1963 when the Municipal Annexation Act went into effect and its annexation proceedings were pending on March 15, 1963. These dates are important becaitse Sec. 7, Part D of the Municipal Annexation Act, Art. 970a, V.A.C.S., expressly provides as follows: “All annexation proceedings by cities which are pending on or instituted after March 15, 1963, * * * shall be brought to completion within ninety (90) days after the effective date of this Act or be null and void.”

The City of Dallas did not bring its earlier proceedings to completion within the ninety days as above provided, so the effectiveness of the said earlier first reading ordinances by the City of Dallas expired by operation of law on November 20, 1963.

Upon' the 'expiration of the effectiveness of said first "reading ordinances, the territory in- controversy became a "part of the ''extraterritorial jurisdiction” o'f the City of Dallas and Relator' Duncanville'. Sec. 3, Part A," Art. 970a, V.A-.C.S.

The .apportionment agreement of November 26, 1963 was in accordance with Sec. 3, Part B of Art. 970a. Therefore, Relator Duncanville was within its rights in pro--ceedipg.with its annexation proceedings of December 30, 1.963, January 3, 1964, .January 9,1964, and.culminating in the final pasr sage , of the annexation ordinance of February, 3, 1964. . ...

- :Qn the other .hand, Respondent Red Bird .Village was not within its rights in its efforts to incorporate. If,, as Respondent contends, its Petition to Incorporate was presented to the County Judge on October 24, 1961 (the record shows that the petition was dated August 24, 1963 and was filed the same day), it would not avail Respondent, for the City of Dallas had already started its annexation proceedings on April 28, 1958. This is true also in regard to Respondent’s petition filed November 22, 1963.

On August 24, 1963 when Respondent filed its Petition to Incorporate the Municipal Annexation Act, Art. 970a, had already gone into effect and along with it the “extraterritorial jurisdiction” provision of Sec. 3, Part A, of the Act,

When Respondent filed its Petition for Annexation on August 22, 1963 the prior rights 'of the City of Dallas had not expired. When those rights did expire on November 20, 1963, .the “extraterritorial jurisdiction” provision of the Act went into effect with respect to the area in. question.

Sec. 8, Part A, Art. 970a provides: “No city may be incorporated within the area of the extraterritorial jurisdiction of any city without the written consent of th.e governing body of such'city.

In support of its third point, that the certification of election by the County Judge is conclusive; Respondent cites State ex rel. City of Fort Worth v. Town of Lakeside, supra; State ex rel. Wilke v. Stein, Tex.Com.App., 36 S.W.2d 698; State ex rel. Stevens v. Black, Tex.Civ.App., 14 S.W.2d 72; First Nat’l Bank in Columbus v. City of North Pleasanton, Tex.Civ.App., 257 S.W. 609; and State v. Goodwin, 69 Tex. 55, 5 S.W. 678.

The above cited authorities are not applicable here. All of them either assume the existence of jurisdiction of the County-Judge, or that the' statutes have been substantially complied with. None of them holds that where the undisputed facts disclose that an attempted incorporation violates pertinent statutes the certification of the County Judge is conclusive.

Respondent’s three points on appeal are overruled.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    Raleigh A. SMITH, Jr., Appellant, v. SOUTHERN LAND DEVELOPMENT CO. et al., Appellees.

      No. 14463.
    Court of Civil Appeals of Texas. Houston.
    Dec. 3, 1964.
    Rehearing Denied Jan. 7, 1965.

      Joe H. Reynolds, Stanley B. Binion, Houston, Bracewell, Reynolds & Patterson, Houston, of counsel, for appellant.
    L. Keith Simmer, W. St. John Garwood, Jr., Houston, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, of counsel, for appellees.
   WERLEIN, Justice.

Appellant, Raleigh A. Smith, Jr., brought this suit against Southern Land Development Company and others for alleged breach of contracts. After appellant rested, the court discharged the jury at the request of the parties who agreed in open court to submit all matters of fact and law to the court for determination, and who thereupon advised the court that they had settled all matters in issue and had agreed upon the entry of judgment by the court embodying the terms of their settlement agreement. From the court’s judgment entered February 24, 1964, which incorporates therein the written settlement agreement dated June 26, 1963, appellant has appealed.

It will not be necessary to set out in full the rather complicated settlement agreement or the judgment which incorporates it, ■ since this appeal is based on only a few provisions contained therein. After reciting: that appellant was a stockholder in Southern Land Development Company, Southern Water Corporation and Southern Sanitary Corporation, owning 40% of the common capital stock of each of said companies, and that a dispute had arisen between the parties involving the internal management of said companies which had resulted in the filing of suits and counter-suits, and that the parties could no longer work together, the agreement provides in paragraph 1. thereof:

“1. That the Judge of the 125th District Court will select an appraiser, who is a member of the Houston Real Estate Board, and instruct the appraiser to proceed to appraise the land of Southern Land Development Company and report and certify his ap- ' praisal to the Court with copies to each party. That such appraiser shall be instructed to appraise all said property on the basis of what a buyer willing, but not required to buy would pay to a seller willing, but not required to sell, and that such appraisal is to be completed within thirty (30) days unless the time therefor is extended in the discretion of the Court.”

The agreement provides for the dismissal with prejudice of another suit filed in the District Court of Harris County, Texas, styled Raleigh A. Smith, Jr. v. Southern Land Development Company et al, Cause No. 617,879, and then provides in paragraph 3. thereof that in the meantime the present cause will remain pending on the docket of the court following the receipt of the appraisal, and that a judgment will be entered by agreement based upon such appraisal, awarding judgment against Southern Land Development Company in favor of appellant (upon delivery of his stock to Southern Land Development Company) for 40% of the net stockholders’ equity of the company, after allowing for all outstanding debts as reflected on the books of the company as of. the date of the decree, including as a part of such outstanding debts, the attorneys’ fees for all parties in the .cause and the appraisal fee of the appraiser appointed by the court. The agreement further provides that the judgment shall, be satisfied by said company’s re--demption of .Raleigh A. Smith, Jr.’s 40% stock interest -in such company, and at the -sole option of Southern Land Development -Company such 40% stock interest may be •.redeemed by the Company by transfer of--40% of the net shareholders’ equity of the "Company to said Raleigh A. Smith, Jr., either by payment of cash or transfer of land of- said Company, or by a combination of cash and land.

Paragraph 8. of the agreement, which, appellant contends, among other things, was not complied with, reads as follows:

“8. With respect to the Beavers-Conrad list of indebtednesses, it is agreed that within thirty (30) days of the date of this Agreement, such list will be brought up to date by Fred Conrad, who as a certified public accountant will certify to its accuracy and correctness; that when the said list has been brought up to date, the parties will adjust and settle the same by payment in cash within thirty (30) days after the same has been brought up to-date by Fred Conrad of a net amount to the Plaintiff on the one hand or the Defendants and Intervenors on the other hand, as reflected by the adjusted list. To accomplish this purpose of this paragraph, all of the parties hereto agree that such indebtedness owned by the Plaintiff or corporations controlled by him will be assigned .to Defendant or Intervenors, and that all indebtednesses owned by the Defendants or Intervenors will be assigned to the Plaintiff or corporations controlled by him. Such list is attached hereto and made a part hereof for all purposes.” .

.Appellant asserts .that the. court erred in. entering judgment based upon said settlement agreement for the reason that paragraph 1. thereof required that the appraisal be completed within thirty days of such date, whereas the appraisal is dated November 19, 1963. It is appellant’s contention that the obligations on the part of the parties to such agreement were dependent upon the work being done and the appraisal being completed within the thirty day period, and that upon expiration of such period appellant was under no further obligation to be bound by the provisions of such agreement, since the purpose and function of the thirty days was to arrive at an adjustment not only of the appraisal but all of the figures and calculations necessary for entry of judgment, and further that the Beavers-Conrad List of indebtednesses was to be brought to an adjustment within thirty days. Between the date when the appraisal was to be completed and November 19, 1963, part of the raw land was converted into a growing development. At a' hearing of appellant’s objections and exceptions • to the appraisal, the appraiser, who had been delayed in his - work because of trouble with his eyes, suggested that in order to adjust for appraisal changes after the expiration of thirty days from the date of the agreement it was necessary to reform or correct the appraisal by adding to the appraised value an additional sum, and this the trial court did by adding to the aggregate appraised value of the land the sum of $58,665.00. Notwithstanding this correction or reformation of the appraisal pursuant to appellant’s request, he contends that time was of the essence of the contract and that he had a right to rescind the contract since the appraisal was not completed within the thirty day period. He cites in support of his contention Hausler v. Harding-Gill Co., Tex.Com.App.1929, 15 S.W.2d 548, and other cases, in which time was held to be of the essence. These cases arc inapplicable to the factual situation in the case at bar.

It will be noted that paragraph 1. of the agreement in question provides that such appraisal is to be completed within thirty days “unless the time therefor is extended in the discretion of the Court.” There is nothing in the record showing that the court in his discretion expressly extended the time for completion of the appraisal, nor is there anything in the record to show that he did not do so. We must presume from the acceptance by the court of the appraisal dated November 19, 1963, and its use by the court in determining the amount to be awarded appellant in the judgment, that the court did in his discretion extend the time for the completion of the appraisal of the company’s property. Furthermore, we are of the opinion that the appellant waived the provision that the appraisal be completed within the thirty day period by not complaining of the delay before or at the time the appraisal was returned. In his objections and exceptions to the appraiser’s report, appellant not only did not complain of the delay but he alleged that the purpose of his objections was to determine whether or not under the evidence there -was a mistake or error therein, and if so “to ask the Court to reform the appraisal in accordance with such error or mistake that might be proven from the evidence.” Pursuant to his request, the court did reform the appraisal as hereinabove stated.

Paragraph 8. of the agreement, above set out, provides for certification of adjustments to be made with respect to the “Beavers-Conrad List” of indebtednesses within thirty days of the date of the agreement. Appellant asserts this was not done, and that the court’s judgment was based upon uncertified adjustments made on November 30, 1963. At the end of paragraph 8. it is stated: “Such list is attached hereto and made a part hereof for all purposes.” The list was not attached and it is not contained in the record. This Court is left in complete darkness as to the contents of such list. There is nothing in the record from which we can determine whether the adjustments in question were or were not made within the thirty day period other than the following unsworn statement made in appellant’s motion for new trial:

“The Court erred in entering Judgment upon the appraisal and upon the figures which are attached to the Judgment and styled the Computation of Redemption Equity for Cause No. 608,-629, for the reason that such data has been prepared from ‘the books and other data without audit’ when in fact the agreement between the parties in Paragraph VIII reflects that within thirty days of the date of the agreement that the list would be brought up to date by Fred Conrad, who as a certified public accountant would certify to its accuracy and correctness. The Computation of Redemption Equity was neither certified nor brought to date within thirty days of the agreement dated the 26th day of June, 1963.”

No hearing was had on appellant’s motion for new trial which was overruled by operation of law and no evidence was adduced with respect to the Beavers-Conrad List. The law is well settled that allegations in a motion for new trial cannot be considered unless otherwise established by facts. Safeway Stores of Texas v. Rutherford, Tex.Civ.App., 101 S.W.2d 1055, aff’d 130 Tex. 465, 111 S.W.2d 688; Associated Employers Lloyds v. Wynn, Tex.Civ.App., 230 S.W.2d 838; Boyd v. Robinson, Tex.Civ.App.1957, 304 S.W.2d 430; Houston Packing Company v. Benson, Tex.Civ.App.1938, 114 S.W.2d 429.

The judgment of the court recites:

“And it further appearing to the Court that the attached list marked ‘Exhibit A' and made a part of this Judgment states fully all of the debts and obligations of Defendant, Southern Land Development Company as of the date of this Decree, and that, taking into account the appraisal of the land of Southern Land Development Company, the other assets of Southern Land Development Company and deducting .therefrom the outstanding debts and obligations of said company, that the net stockholders equity of Southern Land Development Company on the agreed date of valuation is the sum of TWO HUNDRED SIXTY-EIGHT THOUSAND FIVE and 84/100 DOLLARS ($268,005.84); but it further -appearing that, due to the lapse of time following the agreed date of valuation until the return of the completed appraisal report, and the development of Section IV of Hidden Valley into -developed lots of higher valué during such interim, equity compels an increase in the net stockholders e'quity (a-s-'testified by said court appointed appraiser) of FIFTY-EIGHT THOUSAND, : SIX - HUNDRED SIXTY-FIVE and NO/100 DOLLARS ($58,665.00), and that the appraisal should be reformed by an increase in that amount; to wit to a net stockholder’s .equity of THREE HUNDRED TWENTY -SIX THOUSAND SIX’.HUNDRED SEVENTY and' 84/1.00 • DOLLARS ■ ($326,670.84); * * *»

It will be noted that the agreement in question provides that:

“ * ⅜ * a judgment will be entered 'by-agreement based upon such appraisal, awarding judgment against Southern-Land Development Company to the Plaintiff, Raleigh A. Smith, Jr. (upon delivery of his stock to Southern Land ' Development Company) for 40% of the net stockholders’ equity of the company, after allowing for all outstanding debts as reflected on the books of Southern Land Development Company as of the ■ date of the decree * * *” (emphasis added)

The court in the judgment found that the list marked “Exhibit A” made a part of the judgment “ * * * states fully all of the debts and obligations of Defendant, Southern Land Development Company, as of the date of this decree * * * ” Since the original Beavers-Conrad List was not attached to the agreement and there is nothing in the record to show whether adjustments were or were not made as provided in paragraph 8 of the agreement, we cannot say that Exhibit A, which the court found to be a statement of the debts and obligations of the company as of the date of the judgment, is in any manner different from what would have been shown by certified .adjustments to the Beavers-Conrad List. Exhibit A is entitled “Computation of Redemption Equity for Cause 608,629, I25th Judicial District, District Court, Harris County, Texas” and it shows on its face that it was prepared as of November 30, 1963 from the books of the company and other data without audit. What the other data was is not shown. It is conceivable that the Beavers-Conrad adjustments were made within the 30 day period and that Exhibit A is based thereupon and later changes that might have been made therein or thereto in order to 'bring the debts and obligations-down to the date of the -decree. In any .event, in -the absence of any bill of exceptions or statement of facts, except that confined to the hearing of the objections to the appraisal, we must give verity to the recitals in the court’s judgment, and find such judgment presumptively correct. Appellant has failed to show affirmatively that the trial court, in relying on the uncertified indebtedness, committed any error that was calculated to cause and probably did cause the rendition of an improper judgment. Boyd v. Robinson, Tex.Civ.App.1957, 304 S.W.2d 430; Mueller v. Banks, Tex.Civ.App., 317 S.W.2d 812, writ ref., n. r. e.; Ellis Drilling Corp. v. McGuire, Tex.Civ.App., 321 S.W.2d 911, writ ref., n. r. e.; Firemen’s Ins. Co. v. Alexander, Tex.Civ.App., 328 S.W.2d 350, 74 A.L.R.2d 750, writ ref., n. r. e.; 3 Tex.Jur.2d, § 392, pp. 646-647.

In his third and fourth points appellant ■contends that the appraisal in its entirety; constituted a gross mistake and is unjust. Appellant makes no contention that the appraisal in question was the result of fraud, misconduct or such gross mistake as to imply bad faith or failure to exercise an honest judgment on the part of the appraiser. Appellant in effect concedes that the appraisal was in the nature of an arbitration agreement, and that the law applicable to such agreements would apply to the appraisal in question.

In the agreement it is stipulated that “ * * * a judgment will be entered by agreement based upon such appraisal * In Haddad v. Bagwell, Tex.Civ.App.1958, 317 S.W.2d 781, writ ref., n. r. e., the controversy arose over a building contract, and the trial court asked the jury whether the arbitrators “took into consideration all damages that they thought occurred to the Haddad residence, regardless of whether -such damages were the result of * * * failure to comply with the plans and specifications * * The jury answered in the affirmative and the trial court set aside the' award. The Court of Civil Appeals reversed and rendered the case, holding:

-“The rule is stated by the Supreme Court, in Shultz & Bro. v. Lempert, 55 Tex. 273, as follows: ‘If no right of appeal is reserved and the agreement, proceedings and award, in substantial compliánce with the statute, then the award will, on motion be made the judgment of the court, unless, indeed, to be impeached on equitable ground, such as fraud, or gross mistake.’ ”

The court further said: “The award is certainly full and complete on its face, and the evidence above does not, in any way, reflect ‘gross mistake’ such as would imply bad faith or a failure to exercise an honest judgment.” See also Providence Washington Insurance Company v. Farmers Elevator Co., Inc., Tex.Civ.App.1940, 141 S.W.2d 1024.

In Johnson v. American Can Co., Tex.Civ.App., 361 S.W.2d 451, this Court held:

“It is well settled in Texas that the award of an arbitrator in a matter properly submitted to arbitration is final and conclusive, unless it is shown that the arbitrator was ‘guilty of fraud, misconduct, or such gross mistake as would imply bad faith or failure to exercise an honest judgment.’ Galveston, H. & S. A. Ry. Co. v. Henry & Dilley, 65 Tex. 685. Errors of fact or law are not grounds for setting aside an award. Johnson v. Korn, 117 S.W.2d 514, Tex.Civ.App., error ref.; Grand International Brotherhood of Locomotive Engineers v. Wilson, 341 S.W.2d 206, Tex.Civ.App., error ref., n. r. e.”

See also Smith v. Barnett, Tex.Civ.App.1963, 373 S.W.2d 762.

An attempt to set aside - an award is in the nature of a bill of review, the award .being analogous to a final judgment of a cour.t of last resort. In City of San Antonio v. McKenzie Const. Co., 1941, 136 Tex. 315, 150 S.W.2d 989, our Supreme Court said: “Generally speaking, an- awarfl of arbitrators upon matters submitted, to them is given the same effect as the judgment of a .court of last resort All reasonable presumptions are indulged .in favpr of the award, and none against it” See also Texas Steel Co. v. Texas & P. Ry. Co., Tex.Civ.App., 62 S.W.2d 670, writ ref.

Although it se.ems doubtful that evidence inquiring into the manner in which .an award was arrived at is admissible (Forshey v. Galveston, H. & H. Railroad Company, 16 Tex. 516), and especially so where no contention is made that any mistake made was such as to imply bad faith or a failure to exercise honest judgment on the part of the appraiser,.we shall, nevertheless, discuss briefly a few of the points that appellant relies upon to show a gross mistake in connection with the award. Appellant refers to a letter agreement which he' contends was not complied with. The letter agreement is not in the record and hence cannot be considered by this Court. From the statement of facts covering the hearing on appellant’s objections to the appraisal, it appears that the letter in question was one written by appellant’s counsel to appellee’s counsel, but there is nothing to show the contents of such letter or that the terms thereof were agreed upon.

It is our view that there is no merit in appellant’s contention that the appraiser failed to break down into segments or portions the residential property and appraise the same in light of the possibility that appellee would exercise its option to pay appellant in land. Appellee exercised its option to pay in cash, and hence the provisions in the agreement with respect to payment of appellant’s 40% equity in land were not called into operation and became immaterial.

Appellant further complains that the appraiser arrived at his valuation of the property on the basis of offers. The appraiser’s report and his testimony indicate that offers to sell were considered as showing the high valuation placed upon comparable property by the owners thereof. Any consideration given to such offers to sell was, therefore, • in the interest of appellant since it was to his interest to establish the highest possible valuation that could be placed upon the appraised property in order to increase the value of his equity in the company. Thus appellant has failed to show any harm by reason of the consideration by the appraiser of such offers to sell. Actually, the appraiser in arriving at market values did not rely mainly upon such offers but upon comparable sales about which he testified. In Johnson v. Korn, Tex.Civ.App., 117 S.W.2d 514, writ ref., it was held that an award could not be attacked on the ground that the arbitrators had considered a particular offer. The possibility of an erroneous award was a risk which the parties assumed.

We have considered the other ■ matters complained of by appellant, and have concluded that the appraisal substantially conforms to the agreement of the parties and the court’s orders, and that the Court’s judgment conforms to the agreement of the parties incorporated therein. There is nothing in the record showing that the appraisal was unjust after the reformation was made therein by the court, or that it resulted from fraud or misconduct or such gross mistake as to imply bad faith or failure to exercise honest judgment on the part of the appraiser, nor do we find any mistakes with respect to accounting or other matters contained in the appraisal, to be such as were calculated to cause and probably did cause the rendition of an improper judgment.

Judgment affirmed.


text:
    James R. O’CONNOR et al., Appellants, v. NATIONAL MOTOR CLUB OF TEXAS, INC., et al., Appellees.
    No. 14513.
    Court of Civil Appeals of Texas. Houston.
    Dec. 17, 1964.

      G. Ernest Caldwell and Seymour Lieberman, Houston, for appellants.
    G. H. Kelsoe, Jr., Dallas, and Bracewell, Reynolds & Patterson, William Key Wilde, Houston, for appellees.
   WERLEIN, Justice.

This is an appeal from a temporary injunction granted appellee, National Motor Club of Texas, Inc., enjoining appellants from soliciting the members of the National Motor Club of Texas, Inc. as of July 16, 1964, or before, to drop their membership therein and/or switch to the appellant, National Automobile Association, Inc., membership, or selling to said members of appellee a membership in said National Automobile Association, Inc.

Appellants contend that the trial court erred in overruling their special exception to appellee’s affidavit verifying its originally unverified petition since such affidavit was attached to a separate instrument. When appellants excepted to appellee’s unverified original petition, appellee, with leave of court, filed a trial amendment on the day the hearing on the temporary injunction commenced, attaching thereto a verification in proper form of such petition.

The court did not err in overruling appellants’ exception to the affidavit. Ap-pellee’s petition was verified at the time or just before the hearing began on the temporary injunction. The affidavit consisted of a verification of all the allegations in the petition. The fact that such affidavit was attached to the trial amendment which alleged the omission of verification of the original petition due to inadvertence, and was not written or inscribed on such petition, did not mitigate against its effectiveness as an affidavit. Furthermore, it has been held in spite of Rule 681, Texas Rules of Civil Procedure, that a verified petition is not essential to the granting of a permanent injunction after trial, nor to a temporary injunction granted after a full hearing on the evidence independent of the petition. Magnolia Petroleum Co. v. State, Tex.Civ.App., 218 S.W.2d 855, writ ref., n. r. e., and authorities cited. See also Zanes v. Mercantile Bank & Trust Co. of Texas, Tex.Civ.App., 49 S.W.2d 922, writ ref.; Hightower v. Price, Tex.Civ.App., 244 S.W. 652, no writ hist.; Lowe & Archer, Injunctions, § 336, p. 352, In the instant case, the temporary injunction was granted after a full hearing in which sworn testimony aggregating more than 300 pages was given by numerous witnesses.

Appellants assert it was error for the trial court to admit in evidence, over their objection of hearsay, appellee’s Exhibits Nos. 10 to 31, inclusive, consisting of a series of letters of complaint from a number of the members of National Automobile Association, Inc. Some of the exhibits consisted of the original letters of- complaint, which were procured from appellants’ files by subpoena, and some consisted of copies of letters admittedly received by National Automobile Association, Inc. The exhibits in question were offered in evidence-for the limited purpose of showing that complaints had been received by appellant Association, and that said appellant never admonished its sales representatives regarding the representations allegedly made by them while soliciting memberships in the field.

Before admitting the exhibits the court stated in replying to appellants’ objection :

“I didn’t hear him say it the way you did. I thought I heard him say he did not offer it for the truth of the matter stated, but merely to show that complaint was received, not whether the complaint is true.”

After making such statement, the court expressly stated that he would admit the exhibits for such limited purpose 6nly. It will be presumed that the court considered the exhibits for the limited purpose for which they were admitted.

The court did not err in admitting said letters for the limited purpose of showing that complaints were made. For such purpose they did not constitute hearsay. The cases cited by appellants are jury cases, not involving a temporary injunction, and the instruments offered in such cases were tendered for proof of the facts therein asserted. The hearsay rule applies to a statement made out of court when such evidence is offered for the purpose of proving the truth of such statements. If, therefore, an extra-judicial utterance is offered, not as an assertion to evidence the matter asserted, hut without reference to the truth of the matter asserted, the hearsay rule does not apply. Brown v. State, 74 Tex.Cr.R. 356, 169 S.W. 437, at 453; McCormick & Ray, Texas Law of Exidence, Vol. 1, § 781, p. 558, and authorities cited.

On cross-examination of appellee’s witness, E. C. Allen, who had been in its employ as a salesman for two years and who was then a district manager of the company, appellants elicited that such witness had made “converts” from another automobile association and that he had contacted a member of the appellant Association who had not previously been a member of the National Motor Club. Appellants then asked said witness: “Let us assume, Mr. Allen, that you made contact with a prospective member and upon beginning your sales talk the prospective member told you that he had been a member of Texas Automobile Association for five years.” Appel-lee objected to any assumption or any speculative or hypothetical question, stating that the question before the court was what the facts were with reference to the particular matter in issue, namely, the granting or denying of a temporary injunction. Appellants advised the court that they wanted to establish custom and general practices of the general automobile association business in order to determine whether or not conversion of memberships was an unfair trade practice.

The court sustained appellee’s objection to what appears to be an incomplete question. Appellants did not thereafter propound any questions with' respect to trade practices or customs of the trade and failed to show by a bill of exceptions what the witness would have testified to had any questions with respect to trade customs and practices been asked. They have, therefore, failed to show any harm if such there was. Furthermore, they did not plead trade customs or practices as a defense, as it was incumbent upon them to do if they wanted to rely thereon. 58 Tex. Jur.2d, Usages and Customs, § 19, p. 47; Hull-Tex Oil Ass’n v. Pipes, Tex.Civ.App., 240 S.W. 994.

Appellants finally complain that the court erred in granting a temporary injunction which imposes an unreasonable and unlawful restraint upon the conduct of their business.

In its petition appellee has asked for far more relief than granted by the court. The court in its decree enjoins the appellants, James R. O’Connor, W. A. Graham, Leon J. Hood, Jake M. Russell and National Automobile Association, Inc., and “its agents, servants and employees and independent representatives of each of said defendants, from soliciting the members of National Motor Club of Texas, Inc. as of July 16, 1964, or before, to drop their said membership and/or switch to the National Automobile Association, Inc., membership, or selling to said members of National Motor Club of Texas, Inc., a membership in the defendant National Automobile Association, Inc.” The trial court evidently concluded that this was the minimum protection required by appellee pending a trial of the case on its merits. The court in its judgment recites:

“ * * * the Court thereupon order-ed the matter to proceed, and having heard the witnesses and argument of counsel is of the opinion that the plaintiff National Motor Club of Texas, Inc., is entitled to the temporary injunction as herein granted, the same being within its allegations and prayer, for the reasons that the defendants, and each of them, and/or their agents, servants, and employees are seeking to improperly take the business of National Motor Club of Texas, Inc.,, by calling upon its members by virtue of information which was gotten by said defendants, James R. O’Connor, W. A. Graham and Leon J. Hood, and/or each of them through prior association with National Motor Club of Texas, Inc.; * * *”

Appellee brought this suit against all of the appellants alleging a fraudulent conspiracy between some of them, in which the others joined in furtherance of their scheme to destroy, disrupt and put out of business appellee Corporation. It further alleged unfair competition, and the breach of written agreements, and the use by certain of the appellants of membership lists, mailing lists and other data obtained by one of the appellants while in the employ of appellee. Its petition with exhibits attached, consists of some 33 pages. To such petition appellants have filed a plea in abatement, an answer denying appellee’s allegations of conspiracy and specific wrongful acts by certain of the appellants. They have also counterclaimed. against appellee alleging unlawful conduct and unfair competition, slanderous and defamatory misrepresentations and damages, actual and exemplary, in the sum of $350,000.00.

It is thus seen that the case involves serious and complicated controversies both of fact and of law which should be determined upon a final hearing of the case on its merits. Such matters may not be determined on a hearing of an application for temporary injunction brought to preserve the status quo during pendency of the principal cause of action. Transport Co. of Texas v. Robertson Transports, Inc., 1953, 152 Tex. 551, 261 S.W.2d 549; James v. E. Weinstein & Sons, 1929, Tex.Com.App., 12 S.W.2d 959; Anderson v. Tall Timbers Corporation, 1961, 162 Tex. 450, 347 S.W.2d 592.

The injunctive.. relief granted herein does not undertake to determine these various complicated issues of fact and law. It merely undertakes to maintain the status quo during the pendency of the cause of action until there can be a trial on the merits. The purpose of a temporary injunction is to maintain the status quo in regard to the matter in controversy and. not to determine the respective rights of- .the parties under the cause of action asserted or defenses and .counter-claims urged. James v. E. Weinstein & Sons, supra. As stated in that case, the - legitimate purpose of the temporary, injunction is merely to preserve the existing condition -until the final hearing can be had on the merits. The status quo to be preserved by;a temporary -injunction is the last actual, peaceable, noncontest-ed status which preceded the pending controversy. Transport Co. of Texas v. Robertson Transports, supra.

To warrant the granting of a temporary injunction the applicant is not required to establish that he will ultimately prevail in the litigation. He is merely required to show probable right and probable injury. The probable existence of a right and of danger -thereto if a temporary injunction is not granted is determinative of the need for such writ. Transport Co. of Texas v. Robertson Transports, Inc., supra; City of Baytown v. General Tel. Co. of Southwest, Tex.Civ.App., 256 S.W.2d 187, writ ref., n. r. e.; 31 Tex.Jur.2d, p. 265, Injunctions, § 1,50.

The law is well settled that the granting or refusing of a temporary injunction is a matter that rests within the sound discretion of the trial court. Accordingly, the scope of appellate review is limited to the narrow question of whether the action of the trial judge in granting the injunction constitutes a clear abuse of discretion. Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460; Railroad Commission v. Shell Oil Company, Inc., 146 Tex. 286, 206 S.W.2d 235; Janus Films, Inc. v. City of Fort Worth, 1962, 163 Tex. 616, 358 S.W.2d 589.

Appellants have failed to show a clear abuse of discretion by the trial court.

Judgment affirmed.


author: BARROW, Justice.

text:
    Murphy ROGERS et al., Appellants, v. Wm. CARTER, Independent Executor of the Estate of Jim Rogers, Deceased, et al., Appellees.
    No. 14293.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 9. 1964.
    Rehearing Denied Jan. 6, 1965.

      Kerr, Gayer, Ray & Lyons, San Angelo, for appellants.
    Moursund & Ferguson, Johnson City, for appellees.
   BARROW, Justice.

This case involves the construction of the last will and testament of Jim Rogers, who died on December 14, 1959, at the age of 93 years, leaving six children born during his first marriage, and Mrs. Belle Rogers, his second wife, who were legatees and devisees under his will. It is not asserted that his will is ambiguous, but a controversy arose in that, subsequent to the execution of his will, testator disposed of his interest in four of six sections of land specifically devised to his children and acquired full ownership of the other two sections in which his children were devised specifically designated interests. The trial court withdrew the case from the jury and construed the will as devising the testator’s children specific interests in the six sections of land, and that this specific bequest was adeemed in part by testator’s disposition of his interest in four of these sections prior to his death.

' Jim Rogers’ first wife, Ida, died intestate in 1913, leaving as her sole heirs Jim and their six children, who are appellants in this appeal, and hereinafter referred to as “his children.” Jim and Belle Rogers were married in 1920 and lived together until the death of Jim. They had no children, although Belle had a daughter by a prior marriage. Subsequent to the death of Jim, but prior to the filing of this suit, Belle died testate, leaving her daughter and son-in-law, Louise and Norton Matthews, as her independent executors and sole heirs.

The will of Jim Rogers was executed on November 26,1949. At that time, Jim owned an undivided one-half interest in Surveys 10 and 12, and 440 acres of Survey 14 of T.W. N. G. Ry. Co. Surveys in Schleicher County, Texas. The'tither one-half interest was owned by his son, Melvin Rogers. Jim also owned an undivided one-third interest in Surveys 9, 11 and 13 with two of his sons, Melvin and Merlin. All the even numbered surveys were purchased prior to the death of Jim’s first wife, although the State School Fund was not paid in full until 194Q. In 1941, Melvin acquired the undivided interests of his five brothers and sisters which they had inherited from their mother. In 1942, Jim and Belle Rogers conveyed their undivided one-half in 200 acres of Survey 14 to Melvin, and received a vendor’s lien note in the amount of $5,500. In 1944, Melvin and his wife conveyed all interest in this 200 acres to Jim in cancellation of the vendor’s lien note. However, in subsequent instruments, Jim treated this 200 acres the same as the other 440 acres of Survey 14. The odd numbered surveys were acquired in 1926 by Jim -and his sons Melvin and Merlin jointly, while they were operating as partners in the livestock business. -;-

Jim also owned a community interest with his wife, Belle, in a ranch in Menard County,, which he deeded to Belle, subject to his life estate, at the .time he executed .his will.

After exchanges of property in 1950 and 1957, Jim did not own any interest .in Surveys 9, 10, 12 and 14, but did own Surveys 11 and 13 in fee. His children ass.ert .that the after-acquired interests should pass to them under paragraph II of the will. .Under the construction of the will by the trial court, the children were devised the undivided one-third interest in Surveys 11 and 13, and the remaining two-thirds interest in those surveys, which were acquired by Jim after his will was executed, passed to his surviving wife under the residuary clause of the will. All debts against Surveys 11 and 13 were or•dered paid out of the residuary estate. In our opinion, this construction is correct.

The term “ademption" as involved herein is used to describe the act by which a specific legacy becomes inoperative because of the disappearance of its subject matter from the testator’s estate in his lifetime. The general rule is that a specific legacy is adeemed if the thing given is disposed of by the testator during his lifetime. 96 C.J.S. Wills §§ 1172, 1177 ; 57 Am.Jur., Wills, § 1582; Page on Wills, Chapter 54.5.

This rule is recognized in Texas. In Burch v. McMillin, Tex.Civ.App., 15 S.W.2d 86, no writ hist., Chief Justice Hickman, speaking for the Eastland Court, said: “An ademption would have resulted had the testator sold all of the land covered by this item, for it is well settled that the alienation by the testator of the subject of a specific legacy adeems the legacy. But it is also well settled that the doctrine of ademption by alienation operates pro tanto only, so that, where but part of the legacy has 'been alienated, the remainder passes to 'the legatees.” See also, Willie v. Waggoner, Tex.Civ.App., 181 S.W.2d 319, writ ref.; Gallagher v. O’Brien, Tex.Civ.App., 158 S.W.2d 345, no writ hist.

Appellant children recognize this rule, but assert that it has no application here as the conveyances by testator were only a voluntary partition whereby testatqr’.s undivided interest in the land was exchanged f.or equivalent specific parcels of the .same land in severalty. In this event the specific legacy would not have lapsed and therefore not be adeemed. Brady v. Paine, 391 Ill. 596, 63 N.E.2d 721, 162 A.L.R. 138.

In Brady v. Paine, supra, the will of Brady gave his daughter his undivided one-half interest in a described 80 acres. After the will was executed, testator and the owners of the other one-half interest exchanged quitclaim deeds, whereby Brady then owned in fee the south 40 acres and the other owners, the north 40 acres in fee. The court recognized the doctrine of ademption, but held that it was inapplicable to a voluntary partition between cotenants since neither acquired any lands which he did not already own. It was said of such a voluntary partition: “Thereafter he holds title, not under the deed of his cotenant, but under his original title. Applying that rule to this casé, the result is that by the voluntary partition the testator acquired nothing. Before the quitclaim deeds were made he owned an undivided one-half interest in the eighty-acre tract. After the partition he owned precisely the same quantity and estate. The only effect of the partition was to transfer his ownership from the undivided interest in the entire tract to ownership in severalty of the south half of the tract. He still owned the one-half interest in the eighty-acre tract which he already owned and which, by his will, he had devised to his daughter, Clare Lucille Paine.”

It is seen that to avoid an ademption the voluntary partition must be such that the testator still owned the same quantity and estate. 162 A.L.R. 146; Weber v. Dickerson, Ky. Court of Appeals, 248 Ky. 522, 59 S.W.2d 14; Duffel v. Burton, 4 Del. 290. This cannot be said of the conveyances to and from Jim Rogers after the execution of his will. Weishuhn v. Matejowsky, Tex.Civ.App., 170 S.W.2d 567, wr. ref. w. o. m.

In 1926 Jim Rogers and his two sons purchased the odd numbered surveys, and jointly executed notes for $4)000, $4,000 and $6,000 as part of the purchase price, and secured same by a deed of trust on this land. One $4,000 note was paid and released in 1929, but the other two notes were extended from time to time until 1940, when the three joint owners obtained a loan from the Federal Land Bank in the amount of $10,500 in extension of these two unpaid notes. Jim Rogers made semi-annual payments upon this debt, but it was not discharged prior to his death. In 1942, Jim and Melvin Rogers borrowed $12,400 from the Federal Land Bank and gave a deed of trust on Surveys 10 and 12, and 440 acres of Survey 14, to secure this indebtedness.

On January 14, 1950, Jim and Melvin, joined by their respective wives, exchanged deeds. Jim and his wife conveyed their undivided one-half interest in Surveys 10, 12 and 14 to Melvin in consideration of Melvin and his wife conveying their one-third interest in Surveys 9, 11 and 13 to Jim,' and the further consideration of Melvin-assuming one-half of the indebtedness then-owed the Federal Land Bank on Surveys: 10, 12 and 14. (The 200 acres which belonged to Jim in fee were inadvertently omitted from the deed, but were conveyed by correction deeds executed by Jim and Belle Rogers in 1952 and 1953.) On the same date, Melvin and his wife conveyed' to Jim their one-third interest in Surveys 9, 11 and 13, in consideration of the above conveyance by Jim and his wife, and the further assumption by Jim of one-third of the indebtedness owing the Federal Land' Bank on these surveys. •

On April 15, 1957, Jim Rogers, joined by his wife, conveyed to Merlin Rogers all of their undivided interest in Survey 9 in consideration of the conveyance by Merlin and his wife to Jim of their undivided one-third interest in Surveys 11 and 13, and the agreement of Jim to assume one-third of the indebtedness owed Federal Land Bank on this land. On the same date Merlin ánd his wife executed their deed on this undivided one-third interest to Jim.

We do not believe that the above transactions, extending over a seven-year period, can be construed as a voluntary partition among cotenants. It is readily seen that Jim Rogers owned less land after these conveyances than at the time his will was executed. In addition, there were other considerations moving between the parties, in that each assumed new obligations. Merlin Rogers had no part in the exchanges in 1950 between the two cotenants of the even numbered surveys, and Melvin had no part in the exchanges of 1957 between Merlin and Jim Rogers of interests in the odd-numbered surveys.

Appellants assert in the alternative that the devise to them was a demonstrative rather than a specific devise and therefore was not adeemed. It is clear that the doctrine of ademption applies only to specific legacies. 96 C.J.S. Wills, § 1173. It is our opinion, however, that the devise to tcs~ tator’s children must be construed ,as a specific devise.

The cardinal rule of construction of an unambiguous will is that the intention of the testator must be ascertained, if possible, at the time he executed the will, and the intention of the testator must be ascertained from the four corners of the will, giving meaning to all'parts, if possible. Murphy v. Honeycutt, Tex.Civ.App., 199 S.W.2d 298, writ ref.; 44 Tex.Jur., Wills, §§ 134, 135. To ascertain if a devise is specific or demonstrative, we go to the terms and conditions of the will to ascertain the intention of the testator. Lake v. Copeland, 82 Tex. 464, 17 S.W. 786.

Testator’s will bequeaths to his children definite interests in six designated surveys of land) and bequeaths all the remainder of his estate, both real and personal, to his widow. In Currie v. Scott, 144 Tex. 1, 187 S.W.2d 551 (1945), similar devises of undivided interests in particularly described land were found to be specific devises. It was said: “The testatrix undertook and intended by her will to invest the four petitioners with the ownership of definite and distinct undivided interests in the one-half interest owned by her in the oil, gas and other minerals in five sections and fractional sections of land in Glasscock County. These devises are gifts of parts of testatrix’ real property specifically and definitely described. (Citing authorities.) A gift of a certain undivided interest in a definitely described tract or tracts of land is a specific devise.” See also, Gallagher v. O’Brien, supra; Houston Land & Trust Co. v. Campbell, Tex.Civ.App., 105 S.W.2d 430, writ ref.

Appellants urge that this bequest is enlarged to a demonstrative devise by the provision of the will that any devisee who contested the will would “forfeit all right to any benefit and all right and title to any and all property herein devised or bequeathed to him or her, and such right, title and interest to such property, so forfeited, is hereby-bequeathed and shall-vest in- such of my devisees and legatees herein as do not question, contest or give aid in such contest of this my will or of any part thereof, in the same proportion as to value as they otherwise take as to value of my estate under this will.” This provision does not enlarge the specific bequest to a demonstrative bequest in that Mrs. Belle Rogers would share under the residuary clause in the value of the forfeited portion as well as appellant children.

Appellants would construe paragraph II of the will as bequeathing to them (⅛11 of testator’s interest” in these surveys of land in Schleicher County. The will does not so provide and it is significant that testator did not change the will when he inspected it in his attorney’s office in July, 1959, which was after all exchanges had been made.

The trial court properly excluded evidence, offered by appellants from the attorney who prepared the will, that several times after execution of the will testator expressed the wish or desire for his children to have the Scheicher County property. It is settled that extrinsic .or parol evidence is not admissible for the purpose of adding to, altering, contradicting, detracting from, or varying a will. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960); Martin v. Brosig, Tex.Civ.App., 113 S.W.2d 279, writ ref.; McCormick & Ray, Texas Law of Evidence, Vol. 2, pp. 543-544, § 1687. This rule prohibits introduction of this evidence to show that testator did not intend an ademption by his alienation of part of the specific property devised.

The trial court properly construed the testator’s will as devising definite and designated interests in six described surveys of land to appellant children. These specific bequests were adeemed in part when testator disposed of his interest in four of these surveys after execution of his will.

The judgment is affirmed.

        . “I.
      “I direct that all my 'just debts shaill be paid.
      “n.
      “I give and bequeath to my children, Murphy Rogers, Myrtle Ruckenbach, Mae O’Neill,'Hilda Findlay, Merlin Rogers and Melvin Rogers, in fee simple, share and share alike all of my undivided one-half interest in Survey No. 14, Abst. No. 1325; Sur. No. 12, Abst. No. 1327; Sur. No. 10, Abst. No. 1326; all T.W.N.G. Ry. Go. Surveys, located in Schleicher County, Texas; and my undivided one-third interest in Sur. No. 13, Abst. No. 645; Sur. No. 11 Abst. No. 644, and Sur. No. 9, Abst. 643, all T.W.N.G. Ry. Co. Surveys, located in Schleicher County, Texas.
      “III.
      “I give and bequeath to my wife, Belle Rogers, in fee simple, all the rest and residue of my property, real, personal and mixed, of which I may die, seized and possessed.”


author: COLEMAN, Justice.

text:
    ANCHOR CASUALTY COMPANY, Appellant, v. J. E. BOWERS, Appellee.
    No. 14404.
    Court of Civil Appeals of Texas. Houston.
    Oct. 29, 1964.
    On Rehearing Dec. 10, 1964.
    Second Rehearing Denied Jan. 7, 1965.

      Chilton Bryan and Julietta Jarvis, Houston, Bryan & Patton, Houston, of counsel, for appellant.
    Howard M. Wayland, Houston, for ap-pellee.
   COLEMAN, Justice.

This is a suit on three fire insurance policies to recover for damages caused by fire to a dwelling and household furnishings. The case was tried to a jury and judgment was entered for the insured.

The three insurance policies made the basis of this suit were all issued by appellant. Each of these policies required that a sworn proof of loss be filed with the company within 91 days of the date of the loss. The fire occurred December 13, 1960. On February 8, 1961 appellee filed with the company a proof of loss on the house, and another on the furniture, which referred by number to only one of the policies. An affidayit was attached to the proof forms, but the space for the signature of the notary public was blank. On the 24th day of April, 1963, substantially similar proofs of loss, properly sworn to, were filed with the company. Appellant did not, within the 91 day period, call appellee’s attention to his failure to have the proofs of loss properly notarized. Appellee did not plead waiver or estoppel.

The jury found that the dwelling was a total loss and this finding is properly supported by the evidence. No proof of loss is required as a condition to recover for a total" loss of real property. Crutchfield v. St. Paul Fire and Marine Ins. Co., Tex.Civ.App.1957, 306 S.W.2d 948; Whitehead v. National Casualty Company, Tex.Civ.App.1954, 273 S.W.2d 678, error ref.; United States Fire Ins. Co. v. Adams, Tex.Civ.App.1938,115 S.W.2d 788.

Where a proof of loss was filed for one policy, it is not necessary that additional proofs of loss be filed on other policies with the same company. Francis v. International Travelers’ Ass’n, Tex.Civ.App., 260 S.W. 938. In any event, this point does not present reversible error since ap-pellee’s coverage under the policy referred to by number exceeds the value of the personalty destroyed as found by the jury.

Appellant contends that the trial court erred in failing to direct a verdict in its favor since the evidence shows without dispute that the proof of loss filed by ap-pellee within the time limited by the policy was not sworn as required by the terms of the policy.

Numerous cases can be cited for the proposition that where an insurance policy makes the furnishing of a proof of loss a condition precedent to the enforcement of the policy, and the proof of loss has not been furnished or waived, the insured cannot recover on the policy. Farmer’s Mutual Protective Ass’n of Texas v. Thompson, Tex.Civ.App., 365 S.W.2d 226, ref., n. r. e.

■ It has frequently been held, however, that substantial compliance with policy provisions requiring proof of loss is all the company may require, and that an unverified proof of loss, containing the required information, may be substantial compliance with the policy provisions. Home Ins. Co. v. Scott, Tex.Civ.App., 152 S.W.2d 413, writ dism.; Service Mutual Ins. Co. of Texas v. Territo, Tex.Civ.App., 147 S.W.2d 846; Century Ins. Co. Ltd. v. Hogan, Tex.Civ.App., 135 S.W.2d 224; Universal Automobile Ins. Co. v. Morris Finance Corporation, Tex.Civ.App., 16 S.W.2d 360, writ dism.

In London & Lancashire Fire Ins. Co. v. Schwulst, Tex.Civ.App.1898, 46 S.W. 89, the court said: “ * * * The rule is that, when defective proofs of loss are furnished the compány, it must, Within a reasonable time, object to the proofs,' and point out the defects, so that the assured may, if he so desires, amend the same, and cure the defects.”

Rule 93, T.R.C.P., provides (in part): “A pleading setting up any of the following matters, unless .the truth of such matters appear of record, shall be verified by affidavit.

“(m) That notice and proof of loss or claim "for damage has not been given as' alleged. Unless such plea is filed such notice arid proof shall' be ’ pret sumfed and no evidence to the ‘contrary ■ shall be admitted. A denidl of' such notice or such proof shall he niadc-specifically and with particularity.”.. (emphasis added)

The emphasized, portion of the Rule requires that the specific defect to be relied oh must be clearly arid distinctly set out in the denial. Here appellant’s plea stated: “Defendant pleads' that the Plaintiff. failed to file an acceptable sworn Proof of Loss, containing therein all of the information’ required by the above quoted, terms and conditions, within ninety-one days from the occurrence of the -loss' alleged': * • *'■ * ” Instead of clearly and •'distinctly pointing out the defects in the proof' of loss filed, this'plea is global in its'wording. It-does' not" comply with the Rule-and amount's to no plea. The presumptiori-that a proper proof of loss had been filed arose' and no evidence to the contrary could properly have been admitted. Home Ins. Co., New York v. Barbee, Tex.Civ.App., 166 S.W.2d 370.

The trial court did riot err in refusing to instruct the jury to' return a verdict for appellant. •

The policies insuring appellee’s personal property only insured the property while located in the particular premises described in the policies. . The house that burned was not the one originally described in the .policies, but appellee testified that the company had issued to him proper removal permits which were destroyed in the fire. Appellant produced testimony that when such permits were issued they were in the form of endorsements to the policy and were supposed to be attached to the policy; arid that a copy of the' endorsement ordinarily was kept by the agent issuing it and another sent to the company for its file. Mrs. 'Solomon, who was appellant’s agent at the 'time of the fire, but not at the time-Of the trial, testified that she' knew that appellee had moved to the premises destroyed by fire,-but that she could not testify that a removal permit was issued because-she did not have access to the records.. An -agent of the company testified at the trial, but neither party asked him whether an • endorsement was in his _ files. There was -no direct testimony • that proper endorsements were not issued. The fire was. reported to the company by Mrs. Solomon as having destroyed the house occupied by appellee prior to his removal to the house actually destroyed. She testified that she took the address from" a file in her office.. Since appellee' testified that endorsements' were' issued each time he moved his residence, none of the evi'deftee-is "necessarily inconsistent with his testimony that Such a permit was issued at- the time he moved into the house which- burned. His1 testimony was positive and concerned a matter which appellant could have contradicted had it been untrue. The trial court was not required -to .submit an -issue .on -the matter to the jury. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904.

Appellant specifically pleaded no liability because the fire was an incendiary" fire' brought about by appellee for the purpose of defrauding the insurance company. At the proper time appellant requested the" submission- of certain issues, to secure find--ings on whether appellee burned the property; instigated' the - burning; procured' some other person or persons to burn the' property; or consented to the burning. 1

An arson investigator testified' to cir-" cumstances which, in his opinion -'demonstrated that an inflammable liquid was a factor in the fire. A container having the odor of kerosene was found outside the house. He testified that deep charring indicated a hydrocarbon fire. ' There wére, in his opinion, several different points of origin, where such deep charring was' found.' He testified that the fire was a “set fire”.'

Appellee had moved nine pick-up 'loads of furniture from the burned house at 13622' Almeda School Road to his house at' Pasadena and was living there at the time of' the fire. A normal driving time between the houses was twenty-five minutes, but he had driven it in sixteen minutes. Appellee’s wife testified that appellee was at home' from about ten o’clock until he was notified' that. the house was burning about 12:30 o’clock. The claim filed by appellee for lost personal property listed two bedroom suites, a dining room suite, a living room .suite, a desk and chair, a rocking chair, a cedar chest, two chests, a coffee table, two end tables, and a kitchen range. The value claimed for this property was much greater than that found by the jury. Appellee testified that he had bought no other furniture for his new home. An insurance adjuster testified that he examined the site the day after the fire and the only evidence he found of furniture was the remains of the kitchen range, a table top, a file box and some rollers. He testified that from his experience in investigating thousands of fires, it was his opinion that he should have found springs and fragments of the wood furniture. He further testified that there was no evidence that any of the furniture had been carried from the burning house into the yard. A neighbor reported the fire and testified that when he got to the house the flames were from the floor to the ceiling, engulfing the entire door he could see through.. He was not asked about the furniture.

There was no one living in the house at the time. Appellee and his son had keys to the doors. There had been no previous trouble with marauding, or with the utilities. Appellee testified that he had no enemies and suspected no one of setting the fire, and that he had left nothing that would start an accidental fire. There was no indication of forced entry.

After the fire was extinguished an investigation revealed that the building was burned inside on all of the walls, the roof was badly burned and had partially collapsed; there was a large hole in the living room floor, and a hole in the floor of the back room and of the kitchen. About fifty percent of the studs and exterior walls were so badly burned as to be unusable. Only twenty-five percent of the material in the original house was in such condition after the fire as to be usable.

Fraudulent losses are excepted from coverage of fire insurance contracts on grounds of public policy and the intentional burning of insured property to collect insurance proceeds is a defense to a suit on a fire insurance policy. Jones v. Fidelity & Guaranty Insurance Corp., Tex.Civ.App.1952, 250 S.W.2d 281, writ ref.

Whether an issue is raised by the evidence must be judged by the same tests employed in determining whether an instructed verdict shall be given. McDonald, Texas Civil Practice, Vol. 3, § 12.08. When reasonable men may differ as to the truth of controlling facts, a jury issue is present. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365.

In McDonald, supra, § 11.28, pp. 1032-1034, the authors say:

“The basic rule is that, upon motion for instructed verdict, the trial court, without passing upon the credibility of witnesses, accepts as true all evidence which, when liberally construed in favor of the adverse party, tends to support such adverse party’s contention (as to the truth of the fact propositions on which he relies or the falsity of those urged by the movant); indulges every reasonable inference which can properly be drawn in favor of such opponent’s position from the evidence; and discards all contradictory evidence favorable to the movant. If, so viewed, the evidence amounts to more than a scintilla, i. e., more than a mere suspicion or speculation that the fact propositions asserted by the opponent might be true or that those urged by the movant might be false, as the case may be, an issue is at least raised. A fact issue is not raised when the adverse party has the burden of proof and his evidence, though accorded this liberal treatment, is equally consistent with the truth' or falsity of the fact proposition he asserts. * ⅜ * Given a situation where reasonable minds may differ as to the truth, it is immaterial that the evidence may preponderate in favor of one party to such an extent that a verdict adverse to him would have to be set aside as against the weight of the evidence; it is the duty of the jury initially to determine the preponderance of the evidence, subject to the power of the court to grant a new trial — a materially less drastic remedy than an instructed verdict — should the jurors make a finding against the evidence.”

Where circumstantial evidence is relied upon the testimony must establish circumstances to support the inferences 'drawn and these circumstances must be such as to make the truth of the fact proposition inferred more likely than not. The evidence must support the conclusion that the inference of the existence of particular facts is more reasonable than the inference of the nonexistence of those facts. The same evidence may properly be the source of inferences as to the truth of several basic fact propositions. McDonald, Texas Civil Practice, § 11.28, pp. 1035-1036.

There was sufficient circumstantial evidence to require the submission of the issue on whether appellee intentionally burned the insured property. There was no evidence that he procured some other person to burn the house, or instigated or consented to its being burned by third parties.

Appellant also offered to prove that appel-lee was in debt and was to pay monthly payments approximating one-half of his monthly income, and that he was not current in his payments. This testimony was excluded by the trial court and this was error. The evidence excluded tended to prove motive. Dwyer v. Continental Insurance Co., 63 Tex. 354; Joy v. Liverpool, London & Globe Insurance Co., 1903, 32 Tex.Civ.App. 433, 74 S.W. 822, writ ref.; Williams v. Banker’s Fire & Marine Insurance Co., Tex.Civ.App.1955, 277 S.W.2d 742.

After the arson investigator had testified that in his opinion the fire was incendiary, he was asked whether any criminal charges were filed. The witness was permitted to answer that none had been filed, over appellant’s' objection that the question was irrelevant, immaterial, prejudicial and inflammatory. The court erred in admitting this testimony. American Insurance Company of Newark, N. J. v. Gregory, Tex.Civ.App.1934, 77 S.W.2d 716; Liverpool & London & Globe Insurance Co. v. Joy, 1901, 26 Tex.Civ.App. 613, 62 S.W. 546.

The other points of error will not likely arise on a new trial and do not present such error as probably caused the rendition_of an improper judgment.

This case is reversed and the cause is remanded for a new trial.

On Motions for Rehearing

In our original opinion this case was reversed and remanded for another trial because of the failure to submit appellant’s defensive issue on arson to the jury. We stated that there was circumstantial evidence requiring the submission of appellant’s requested issue on whether appellee intentionally burned the insured property. In this motion for rehearing appellee has pointed out the issue requested by appellant merely asked whether appellee set fire to and burned the property, the element of intent being entirely omitted. Appellee asserts that such request is insufficient as a basis for reversal because of Rule 279 of the Texas Rules of Civil Procedure, providing, in part :

“Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment ⅝ * * }>

In call of Houston, Inc. v. Mulvey, 343 S.W.2d 522, this Court discussed the term “substantially correct” as follows:

“Such requirement does not mean that it must be absolutely correct, nor does it mean that one that is merely sufficient to call the matter to the attention of the trial court will suffice, but rather it means one That in substance and in the main is correct and that is not affirmatively incorrect.”

A correctly worded issue to establish the issue of arson must contain the element of intent. In State Farm Fire and Casualty Company v. Ulteig, Tex.Civ.App., 367 S.W.2d 898, err. ref., n. r. e., the court approved the following issue: “Do you find from a preponderance of the evidence that * * * caused the destruction of the house at 1630 Woodcrest by intentionally and willfully setting fire to it on February 5, 1960?”

The tendered issue, as worded, would not have negatived accident or other fortuitous circumstance. A favorable answer to the issue would not have established the defense appellant had pled.

The other errors pointed out in our original opinion concerned matters of evidence relating to the defense of arson. Since no issue on that defense was required to be, or was, submitted to the jury, these errors were harmless.

Appellee’s motion for rehearing is granted. Former judgment vacated, set aside and annulled and the judgment of the trial court is affirmed. Appellant’s motion for rehearing is overruled.


author: BATEMAN, Justice.

text:
    A. E. WILEMON et al., Appellants, v. STATE of Texas et al., Appellees.
    No. 16424.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 4, 1964.
    Rehearing Denied Jan. 8, 1965.

      Bonney & Wade, Dallas, for appellants.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, Ted Z. Robertson, Don R. Stodghill and Jerome E. Dawkins, Asst. Dist. Attys., Dallas, for appellees.
   BATEMAN, Justice.

Our former opinion is withdrawn and the following substituted therefor.

This condemnation case involves the taking of 32,892 square feet of land; approximately half of a tract belonging to the appellants A. E. Wilemon, Bobby Wilemon and F. O. Wilemon, for highway purposes. The special commissioners assessed the damages to the landowners at $7,000 and they, being dissatisfied, duly objected and demanded jury trial. However, long before the trial they withdrew the amount awarded to them, pursuant to the provisions of Article 3268, Vernon’s Ann.Tex. Civ.St. The jury having found the value of the land taken to be $1,215, with no decrease in the value of appellants’ remaining land, the court rendered judgment for the condemnors, State of Texas and County of Dallas, for the land condemned and for $5,785, the excess of the commissioners’ award over the verdict. We have concluded that this judgment must be reversed and the cause remanded.

By their first point of error on appeal appellants complain of error in overruling their plea in abatement, which asserted lack of jurisdiction. This was on the ground that the description of the land taken is fatally defective in that the field notes1 used in the proceedings, beginning with the original petition and ending with the judgment, do not actually close. Appellants rely on Parker v. Ft. Worth & D. C. Ry. Co., 84 Tex. 333, 19 S.W. 518, and Wooten v. State, 142 Tex. 238, 177 S.W.2d 56. Those cases hold that if the defect in the description is of such a nature as to prevent an identification of the same on the ground, the court is without jurisdiction to condemn land.

However, it is well settled that when the description is sufficiently certain to enable one to identify and locate the land by going on the ground, a false and contradictory element of description is harmless, Roberts v. County of Robertson, Tex.Civ.App., 48 S.W.2d 737, wr. ref., and a dee scription which will enable; one to. identify the property, when,-aided by inquiry based upon information given by the instrument, is sufficient. Coppard v. Glasscock, Tex.Com.App., 46 S.W.2d 298, 300. Mathematical certainty is not required, only reasonable certainty. 14 — B Tex.Jur., Deeds, p. 643, § 184.

Appellees established by undisputed testimony that, although the field notes do not actually close, they were sufficient to enable one to identify the property on the ground. In the light of the foregoing rules we hold that the court did have jurisdiction, and that appellants’ plea in abatement was properly overruled. The first point of error is overruled.

The second point of error complains that the trial court refused to permit appellants’ expert witness O. R. “Chick" McElya (who testified at the hearing of the plea in abatement) also to testify before the jury that the land taken was not identifiable from the field notes in the petition, making it impossible to compute the area of the land contained therein. Having held above that there was no error in overruling the plea in abatement involving the same testimony, we now hold that the proffered testimony was immaterial and that there was no error in excluding it. Accordingly, the second point is overruled.

Appellees having been permitted to establish by cross-examination of appellant F. O. Wilemon that he had paid only $5,000 for the entire tract of land in 1957, whereas he had testified that in his opinion it was worth several times that amount at the time of taking in 1961, appellants’ counsel on redirect examination, in an effort to offset this damaging testimony, asked him whether he paid the $5,000 after taking into consideration a defect in the title to the land. Objection to this was sustained. However, immediately thereafter the witness was permitted without objection to testify that in addition to paying the $5,000 for the property he also had to pay for a title policy and to pay his attorneys to clear the title. He was then asked whether he had had to “undergo all of the expense and the trouble to actually clear the title,” and upon an affirmative answer being given appellees moved to strike the same “unless he brings some sort of itemized list to show these expenses were reasonable in the market and so forth,” and because there was no predicate. This motion was sustained.

Appellants in their third point of error complain of both rulings. Although the point is multifarious, we shall nevertheless consider it. That part of the point attacking the first ruling is overruled because there is no bill of exception showing what the answer of the witness would have been had the objection not been sustained; we cannot determine the admissibility of evidence without knowing what that evidence would have been. Gulf, C. & S. F. Ry. Co. v. Locker, 78 Tex. 279, 14 S.W. 611; Bradford v. Magnolia Pipe Line Co., Tex.Civ.App., 262 S.W.2d 242, 245, no wr. hist. The entire point is overruled because the rulings complained of cannot be said to have probably caused the rendition of an improper judgment. Rule 434, T.R.C.P, It was established by other testimony that there was some sort of flaw in the title, that appellants employed attorneys to clear the title, and that they also paid a $250 real estate commission and bought a title policy. We think appellants thus probably got before the jury the substance of what they hoped to prove by the excluded evidence. The third point is overruled.

The fourth point complains of the admission in evidence of an aerial photograph of the subject property and the surrounding neighborhood over appellants’ objection that the photograph was made a year and a half after the date of taking and after a big rain. The subject property is designated on the photograph and appears to be on or near the edge of a large area apparently inundated with water. We think this objection went to the weight rather than the admissibility of the evidence. Bilbrey v. Gentle, Tex.Civ.App., 107 S.W.2d 597, wr. dism. Moreover, another aerial photograph, made at the same time and showing the same property and the same flooded neighborhood, although from a different angle, was admitted over the same objection, and no complaint is made thereof in this court. Numerous other photographs showing flood water covering the property and surrounding areas were admitted in evidence without objection. The error, if any, was harmless, Rule 434, T.R.C.P., and the fourth point is overruled.

By their fifth, sixth, seventh, ninth and tenth points of error appellants complain of the exclusion by the court of certain testimony proffered by appellants. We are unable to determine the admissibility thereof because appellants have not brought forward by proper bills of exceptions what these witnesses would have testified to had they been permitted to do so. Any error in excluding the testimony has been waived and nothing is presented to this court for review. 41-B, Tex.Jur., Trial — Civil Cases, p. 196, § 167; Gulf, C. & S. F. Ry. Co. v. Locker, supra; Bradford v. Magnolia Pipe Line Co., supra. These points are overruled.

By their eighth point of error the appellants complain that the trial court erroneously refused to allow their expert witness Russell E. Shutt to show to the jury the location of the comparable sales used by him on a map that had been introduced in evidence by appellees. The record shows that the witness was asked to locate the property on the map in a redirect examination by appellants’ counsel. Appel-lees objected on the ground that it was not rebuttal of anything brought out on cross-examination, which obj ection was sustained. Appellants argue that the cross-examination of this witness had placed him in a bad light and that they were entitled on redirect examination to try to remove the unfavorable impression. Whether it would have had that effect to permit the witness to point to a couple of places on a map we are of course unable to say; all we can say is that appellants have not discharged the burden resting upon them in this court to demonstrate that the trial court abused its discretion or that the error, if any, was such as probably caused the rendition of an improper judgment. McCormick & Ray, Texas Law of Evidence, Vol. 1, p. 477, § 622; Texas Employers Ins. Ass’n v. Hitt, Tex.Civ.App., 125 S.W.2d 323, 328; Rule 434, T.R.C.P. We overrule the.eighth point.

In their eleventh and twelfth points of error appellants assert that the finding by the jury of the value of the land taken at $1,215 is against the greater weight of the evidence, for which reason it was error to grant appellees’ motion for judgment and to overrule appellants’ motion for judgment non obstante veredicto. We have carefully read the entire statement of facts and, finding these points to be wholly without merit, overrule the same. It would add nothing to the jurisprudence of the State for us to detail or even summarize the evidence on both sides on this subject. We cannot say that the expert testimony of appellants’ witnesses, or any other fact in the record, was of greater weight than that of appellees’ expert witness Joseph R. Smith. It is obvious from the verdict that the jury believed Mr. Smith’s testimony, and this they had a right to do.

Moreover, to maintain a point that there was error in overruling a motion for judgment n. o. v. the appellant must establish that there was no evidence of probative force supporting the findings upon which the judgment is based. When an effort is made to do so we must view the evidence in a light most favorable to the party against whom such motion was sought. Gulf, C. & S. F. Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Luvual v. Henke & Pillot, Division of Kroger Co., Tex.Civ.App., 366 S.W.2d 831, 836, wr. ref. n. r. e. We hold that Smith’s testimony constituted evidence supporting the verdict, and overrule the eleventh and twelfth points.

In their thirteenth point of error the appellants assert prejudicial error in a remark made by the trial court in the course of the jury argument being made by appellants’ counsel. This point is sustained. The appellees’ witness Joseph R. Smith had testified on cross-examination that in evaluating the subject property he had not taken into consideration the fact that it was being rented for $75 a month at the time of taking, explaining in considerable detail why he did not do so. In the course of his argument to the jury appellants’ counsel stated: “Another thing that Mr. Smith would never agree to and never admit was that his method — one of his recognized methods of appraisal using the rental from a property to determine its value would have anything to do with the value of this property — At this point .counsel for appellees interrupted to say: “That is not-correct, Your Honor, and we object to any statement of this nature which is outside the record. Mr. Smith did not so testify. He testified that the income approach was a proper method to use to appraise property if you had a tenant like Kress or somebody like that.” Whereupon the court made this statement: “Well, I thought Mr. Smith explained his position with regard to this rental matter, and I will sustain counsel’s objections.” Counsel for appellants then said: “Note our exception.”

Appellees reply to the argument that this was a comment on the weight of the evidence by saying that the court’s remark was in keeping with, rather than an improper comment on, the weight of the evidence; and, in the alternative, no objection or motion for mistrial having been made, the point was waived; and that in any event the error, if any, was harmless.

We agree with appellants that the judge’s remark was an improper comment. Counsel for appellants had tried sincerely, as he had a right to do, to minimize the effect of Smith’s testimony by emphasizing the fact that the land was producing a monthly rental of $75 and that it was improper to ignore this fact in arriving at the market value. He was continuing in this effort in his argument to the jury, as he also had a right to do. The trial court’s remark was reasonably calculated, in our opinion, to convey to the jury the definite impression that the judge felt that Smith’s explanation of his refusal to take the rental into account was reasonable and satisfactory and that in weighing Smith’s testimony on values the jury should not be influenced by the fact that a substantial amount of rent was being received monthly for the use of the land. This was clearly a comment on the weight of the evidence.

Moreover, there can be no doubt that the court’s unfortunate remark was harmful to appellants. They were contending that the land had a much higher value even than the $7,000 which the commissioners had awarded them. Appellees presented only one witness on values, Joseph R. Smith, who testified that in his opinion the land taken had a value of only $1,215. The strongest attack appellants could make on this devastating testimony was to try by vigorous cross-examination to make the witness admit that his valuation was too low in view of the monthly rent produced by the land. The witness did explain in detail why he was unwilling to take the rentals into account. Although his explanation of the matter may have been satisfactory to the trial court, still it was the right of appellants to have the matter considered by the jury independently of the opinion of the trial court on the matter. Significantly, the verdict coincided exactly with Smith’s evaluation. Therefore, we have no difficulty in reaching the conclusion that the remark was harmful and reversible error unless appellants waived their right to complain of it by not objecting or excepting to it and not moving for a mistrial.

Appellees earnestly urge such waiver, citing Loumparoff v. Housing Authority of City of Dallas, Tex.Civ.App., 261 S.W.2d 224, 228, no wr. hist.; City of Austin v. Cook, Tex.Civ.App., 343 S.W.2d 545, 547, wr. ref. n. r. e.; Wells v. Ford, Tex.Civ.App., 118 S.W.2d 420, 432, wr. dism.; and Sabine & E. T. Ry. Co. v. Broussard, 75 Tex. 597, 12 S.W. 1126. We have concluded that the error was not waived.

The general rule is thus stated in 3 Tex.Jur.2d, Appeal and Error — Civil, p. 426, § 151:

“Generally, an objection to improper conduct or comment of the court on the trial of the case must be made below at the time the improper conduct or comment occurs, in order to save it for appellate review, unless the conduct or comment is of such prejudicial and harmful character that an instruction will not safeguard against its evil.” (Italics ours.)

It is our view that this situation falls within the exception to the general rule, contained in the last clause of the above text The purpose of an objection to an' improper comment by the court is to give the court an opportunity to cure the error by appropriate instructions to the jury, but if the comment is of such a nature that its harmful effect cannot be removed by instruction the reason for requiring an objection or exception vanishes. Connecticut Gen. Life Ins. Co. v. Moore, Tex.Civ.App., 75 S.W.2d 329, wr. dism.; Southland Greyhound Lines v. Matthews, Tex.Civ.App., 74 S.W.2d 713, wr. dism.

This rule has often been held to apply to prejudicial and inflammatory arguments of counsel. Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054; Southern Pacific Co. v. Hubbard, 156 Tex. 525, 297 S.W.2d 120. We see no reason why it should not apply with at least equal force to prejudicial comments by the trial judge.

In our opinion, if the impropriety of the judge’s remark had been specifically called to his attention there would have been no way for him to have removed the prejudicial impact thereof. He had in effect said in the presence of the jury that he regarded appellants’ attack on Smith’s testimony to be lacking in substance or merit, and anything else he may have said, in an effort to cure the error, in our opinion would only “have served to accentuate and magnify the prejudicial effects” of the remark. Sutton Motor Co. v. Crysel, Tex.Civ.App., 289 S.W.2d 631, no wr. hist.; Springman v. Heidbrink, Tex.Civ.App., 242 S.W. 298, no wr. hist. We do not regard our decision on this point to be in conflict with the authorities relied upon by appellees, hereinabove mentioned, because in those cases either an objection was made to the improper remark of the court or the remark was of such nature that the error could properly be removed by additional instruction.

Appellants’ fourteenth and last point of error complains of the overruling of their motion for continuance because of the absence of a witness, A. A. Slaughter, an expert witness on values. Rule 252, T.R.C.P. in setting forth the requirements of an application for continuance for the want of testimony, provides that the application shall recite inter alia, “and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known.” (Italics ours.) In their application the appellants recited the conclusion that they had used due diligence to procure the testimony of the witness, but nowhere in the application is it stated what diligence was used. Rule 251, T.R.C.P. provides that a continuance shall not be granted “except for sufficient cause.” As stated in Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856, 858: “Of course the absence of a material witness is ‘sufficient cause’, but only if proper diligence has been used to procure the testimony of the witness.” See also Missouri, K. & T. Ry. Co. of Texas v. Hogan, 88 Tex. 679, 32 S.W. 1035, 1037, and Barnhart v. Kansas City, M. & O. Ry. Co. of Texas, 107 Tex. 638, 184 S.W. 176, 179. The application for continuance did not - comply with the rule and no reversible error is shown in overruling it. The fourteenth point is overruled.

Because of the error complained of in the thirteenth point of error, we reverse the judgment of the court below and remand it for another trial.

Reversed and remanded.