author: CLAYTON, Justice.

text:
    Craig GILLILAND, Jr., Appellant, v. PON LIP CHEW et al., Appellees.
    No. 5626.
    Court of Civil Appeals of Texas. El Paso.
    July 15, 1964
    Rehearings Denied Aug. 26, 1964.

      Gerald B. Shifrin, Samuel Wasaff, El Paso, for appellant
    John B. Luscombe, Jr., Wayne Windle, Jr., Wellington Chew, El Paso, Harris & Ball, Arlington, for appellees.
   CLAYTON, Justice.

Appellee Pon Lip Chew sued appellant Craig Gilliland, Jr., and Rio Grande Produce Company, of which Gilliland was an officer, for damages for personal injuries suffered by the former in connection with an alleged assault and battery committed by Gilliland upon Chew. Based upon jury answers to special issues, judgment was entered in favor of Chew. In so far as issues involved in the determination of this cause on appeal are concerned, Gilliland is the sole appellant.

Gilliland’s defense to the suit was, in part, that on the occasion in question he was acting to prevent and interrupt an intrusion upon the lawful possession of the property of his employer, Rio Grande Produce Company, and in defense of such property he used against Chew only such force as was necessary to effect such purpose.

In its charge to the jury the trial court gave the following “explanations, instructions, and definitions”, among others:

“The use of any unlawful violence upon the person of another, with intent to injure, whatever be the means or degree of violence used, is an assault and battery. When an injury is caused by violence to the person, then intent to injure is presumed and it rests with the person inflicting the injury to show the accident or innocent intention.
“Violence used to the person of another does not amount to an assault or battery when made by one to protect property under his care and to prevent any intrusion upon the lawful possession of such property, provided in so doing no more force is used than necessary under the attending circumstances.
* * * * * *
“The word malice as used in this Charge means knowingly and wilfully doing an act, without just cause, excuse or provocation, which the party knows to be unlawful, and with intent to injure another.”

Special Issue No. 1 was worded as follows:

“QUESTION NO. 1
“Do you find from a preponderance of the evidence that on or about the tenth day of May, 1961, the Defendant, Craig Gilliland, Jr., did commit an assault and battery upon the Plaintiff, Pon Lip Chew? Answer ‘yes’ or ‘no’.”

The jury answered “Yes”, and in answer to Special Issue No. 2 the jury found that Chew suffered injury to his person as a proximate result of such assault and battery.

In answer to Special Issue No. 7 the jury found that Gilliland was not actuated by malice in making the assault and battery upon Chew, which, under the trial court’s definition of malice, was in effect a finding that Gilliland had not acted knowingly and willfully, without just cause, excuse or provocation, knowing such act to be unlawful, and with intent to injure Chew.

Special Issue No. 12 inquired whether, at such time and place, Gilliland was acting in defense of the property of the Rio Grande Produce Company, to which the jury answered “Yes”. Special Issue No. 13 asked the jury whether Gilliland did not use more force than reasonably appeared to him to be necessary under the circumstances in defense of the property of the Rio Grande Produce Company, if the jury had found that he acted in such defense of such property, to which the jury answered “He did not use more force”.

Upon this verdict having been brought in by the jury, the trial court gave the following written, signed instruction to the jury, over Gilliland’s obj ections:

“Ladies and Gentlemen of the Jury:
The Court cannot receive your verdict on account of a conflict of findings. Your answer to question No. 1 conflicts with your answer to question No. 12 & 13. You will therefore return to the Jury room & deliberate further of your Verdict.”

Gilliland’s objections as filed with the court and overruled are as follows:

“To the Court:
Def. Gilliland objects to courts instruction as it tells the jury the effect of their answers to the issues involved and amounts to an improper comment upon the issues and evidence in this case. That there is no conflict and a verdict for the defendant and verdict should be received.”

After the jury had been given the above-quoted instruction by the court and had deliberated about an hour longer, Gilliland moved the court for a mistrial because the jury was in irreconcilable conflict and for the reasons stated in the objections to the court’s instructions to the jury on conflicts as being an improper comment. A short while later Chew moved the court for a mistrial “for the reason that the instruction to the jury concerning a conflict between question 1 and 12 and 13 amounts to a comment upon the evidence and advises the jury of the effect of its answer. Wherefore Plaintiff moves judgment”. The trial court overruled both motions. After a further period of deliberation the jury again returned its verdict into court. It was the same as in its original form except that the “Yes” answer to Special Issue No. 12 was stricken out and the word “No” substituted therefor, and in Special Issue No. 13. the words “He did not use more force” were stricken out since the answer to this issue was conditioned upon an affirmative answer to Special Issue No. 12.

The verdict, so revised, was accepted by the court over renewed objections of Gilli-land, whose objections and exceptions were duly preserved in the record. Gilliland’s motions for judgment on the verdict, judgment N.O.V. and for new trial were overruled and judgment entered for Chew against Gilliland.

Gilliland presents sixteen points of error, the first seven of which are grouped together under the heading “Errors occurring in submission of case”. The first point of error relates to the trial court’s ruling that there existed a conflict in the jury’s answer to Special Issue No. 1 and the original answers to Special Issues Nos. 12 and 13, the contention being that these answers do not constitute a conflict but amount to an exoneration of Gilliland.

If, to the trial court, there did appear to be some conflict in the jury’s findings on the stated issues, it was his duty to construe the answers as not irreconcilably conflicting if there was any reasonable basis or explanation upon which they might be reconciled. Edwards v. Houston Transit Company, 342 S.W.2d 787 (Civ.App., 1960; Ref., N.R.E.), citing cases and quoting from Pruitt v. General Ins. Corp., 265 S.W.2d 908 (Civ.App., 1954; Ref., N.R.E.). Also Bragg v. Hughes, 53 S.W.2d 151 (Civ.App., 1932; n. w. h.); Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97 (Com.App., 1939; adopt, op.), and many other authorities. The Supreme Court in Traywick v. Goodrich, 364 S.W.2d 190 (1963) approved the holding of these authorities and held:

“Where there is no irreconcilable conflict in the jury’s findings it is the ministerial duty of the Judge to enter a judgment on the verdict and the matter involves no judicial or discretionary powers.”

Was there here an irreconcilable conflict in the jury’s findings on the stated issues? We are of the opinion that there was not. It seems readily conceivable that while the jury, by its answer to Special Issue No. 1, found that there was an assault and battery, in its generally accepted meaning, committed by Gilliland upon Chew, it was not an actionable assault and battery because of the defensive elements found by the jury to have been existent by their answers to Special Issues 12 and 13. This construction seems to be borne out by these answers taken in conjunction with the jury’s answer to the “malice” factor in Special Issue No. 7 (the answer to which issue was conditioned upon an affirmative answer to Special Issue No. 1); i. e., that Gilliland had not acted knowingly and willfully, without just cause, excuse or provocation in committing the assault and battery upon Chew, but that Gilliland was acting in defense of property and in so doing did not use more force than reasonably appeared to him to be necessary under the circumstances. Construed in this manner, the jury’s answers are not conflicting but constitute, as Gilliland claims, an exoneration of Gilliland. We therefore feel that it was error for the court not to so construe (and thus reconcile) the answers of the jury, but instead, to send the matter back for further deliberation by the jury.

It is to be observed that the trial court, in its “explanations, instructions and definitions”, when defining assault and battery, has used substantially the wording of parts of two articles of the Vernon’s Ann. Texas Penal Code: Article 1138, entitled “Assault and Battery”, which begins with the words “The use of any unlawful violence upon the person of another” (emphasis supplied), followed by some of the wording of the defensive elements set out in Article 1142, entitled “Lawful violence” (emphasis supplied). It is believed that had the titles of these two articles been used in the court’s definitions, they would have served to more clearly distinguish for the jury the difference between the unlawful violence which constitutes an actionable assault and battery and the lawful violence which is not actionable when used in the protection of, or to prevent an intrusion upon, property. Submission of the definitions and special issues in this manner, however, would probably still have given rise to the complaint that Chew makes in the instant case; i. e., that the court should not have submitted Special Issues 12 and 13 for the reason that these issues had been previously submitted in Special Issue 1 and the definition by the court of assault and battery. But we believe the court felt, and properly so, that it was incumbent upon him to have specific findings upon the defensive issues raised by the pleadings and the evidence and as represented by Special Issues 12 and 13. If such be the case, then the trial court should have either directed its instruction on defensive issues to Special Issues 12 and 13, to which it applied, as was done by Redmon v. Caple, 159 S.W.2d 210 (Civ.App., 1942; Ref., Want Merit); or better still, it should have omitted altogether any definition of lawful violence as embodied in Article 1142 of the Penal Code and applied this law to the jury’s findings in response to Issues 12 and 13.

Under the present state of the record, with the defensive issues set out in the court’s original charge in the manner in which they were set out, when the case was sent back to the jury by the trial court the former had no alternative but to revise its answers so as to eliminate what had been termed by the court a “conflict”. This they did, and the court was then in effect confronted by two separate verdicts which could not possibly be reconciled, nor could judgment be rendered on either verdict for one party without doing a distinct injustice to the other. In such circumstances we feel that we are not bound to render this case as suggested under the facts of the Traywick case, but to remand the matter for another trial. This requires us to touch on other points of error raised by Gilliland.

The above discussion relates to all of the first seven points with the exception of the third and seventh. Point of Error No. Three complains of the action of the court in overruling both Gilliland’s and Chew’s motions for mistrial on the ground that the court’s instruction to the jury that the answers to Question 1 and to Questions 12 and 13 were conflicting did, in fact, advise the jury of the effect of its answers. This contention seems at variance with the Supreme Court’s decision in Denbow v. Standard Acc. Ins. Co., 143 Tex. 455, 186 S.W.2d 236, in which the following statement was given by the trial court to the jury: “Gentlemen, I am going to give you the Charge and Answer Sheet and ask you to see if you can reconcile Issues No. 5 and No. 12”. After the statement the jury changed its answer to one of the issues. The contention in the cited case seemed to be, not whether the statement of the court instructed the jury as to the effect of its answers, but that the statement was erroneous because it was orally given. The Court of Civil Appeals reversed and remanded the case because the oral statement was vio-lative of Rule 29S, Texas Rules of Civil Procedure, by not having been in writing. The Supreme Court held that the mere fact that the statement was oral was not a cause for reversal of the case unless the failure to give the instruction in writing was reasonably calculated to, and probably did, cause the rendition of an improper judgment under Rule 434, T.R.C.P. However, the reversal and remand of the case was approved because there was no conflict in the verdict to be reconciled, and the trial court’s action in the giving of the instruction was error which caused the rendition of an improper judgment and hence was reversible error for the reason stated. While the cited case does not directly require the overruling of Point of Error No. Three, it is persuasive, and we have been unable to find other authority on the matter. Also, the Denbow case contains a holding which supports the disposition we make of this case. Point No. Three is overruled.

In the seventh point, Gilliland cites error of the court in failing to submit an issue inquiring whether police officers at the scene inflicted the injuries complained of by Chew. Upon a new trial the court will determine whether the- pleadings and evidence warr rant such a submission. This point is overruled.

The eighth and ninth points of error deal with matters which in no way alter the disposition of this case, and are overruled.

The tenth and eleventh points of error relate to the trial court’s action in granting judgment to Chew based upon the revised verdict of the jury. These points, in all likelihood, will not arise upon a new trial and need no discussion. Also, points twelve through sixteen relate to the awarding of • damages in the judgment and will be resolved upon the basis of the testimony and verdict before the court in a new trial, and do not require discussion here.

It is the opinion of this court that upon the facts and circumstances above related, the judgment of the trial court must be reversed, and it is hereby reversed and remanded for a new trial.

FRASER, C. J., not participating.


source: Caselaw Access Project

author: CHADICK, Chief Justice.

license: Public Domain

text:
    Bruce S. CHRISTIAN, Jr., Appellant, v. Andrew C. WALKER, Jr., Appellee.
    No. 7589.
    Court of Civil Appeals of Texas. Texarkana.
    July 28, 1964.
    Rehearing Denied Aug. 18, 1964.

      J. Robert Liles, Conroe, for appellant.
    George W. Morris, Conroe, for appellee.
   CHADICK, Chief Justice.

This is a statutory trespass to try title action in which the defendant specially plead that ownership of an undivided interest in a 31/2 acre tract of land was conveyed to him by parol gift. The judgment of the trial court awarding the defendant an undivided one-half of the fee simple estate in the tract is reversed.

The proposition stressed by the appellant’s brief is the absence, and alternately, the insufficiency of evidence, to show the defendant was the recipient of an in praesenti gift. The proof will be analyzed to resolve this issue, considering only that part of the evidence that tends to support the trial judge’s implied finding that Andrew Walker, Sr., made a parol gift to Andrew Walker Jr. of the undivided interest the junior Walker claims.

The formal parties to the suit are brother-in-laws. The plaintiff, Bruce S. Christian, Jr., is married to Bobbie, the sister of Defendant, Andrew C. Walker, Jr. The record shows the 3J4 acre tract was acquired in 1951 as the community property of Andrew C. Walker, Sr., and his wife, Edith, the parents of Bobbie Christian and Andrew C. Walker, Jr. While the senior Walkers were living at Hillsboro, Texas, in September, 1955, and young Walker Jr., was employed there as a lineman by a utility company, the conversations material to the lawsuit had their inception at a family gathering in the home of the senior Walkers. Mrs. Mary Jo Walker, the wife of Andrew C. Walker, Jr., was present, but Bobbie, the sister, was away from her parents’ home, married and then living in Kansas. At the time of the trial, Mr. and Mrs. Andrew C. Walker Sr., were estranged and living apart, but not divorced. Andrew C. Walker, Jr., testified in his own behalf and offered his wife, Mary Jo, and his mother, Mrs. Edith Walker, as witnesses to one or more conversations concerning the alleged gift that he claimed his father made. The senior Walker, his wife, son and daughter-in-law, gave the only direct testimony of the content of the conversations.

The witnesses did not attempt to state the elder Walker’s oral expressions word for word, or in substance, but with exceptions to be found in the quoted testimony, the wife, son and daughter-in-law, gave their understanding of the meaning and effect of the elder Walker’s words, that is to say, they gave a ratiocinative opinion that a gift was made in the course of the conversations. Such opinions have no probative value. 2 Texas Law of Evidence, p. 228, Sec. 1398. The elder Walker denied making the gift, but his testimony does not repeat the content of any conversation he admitted took place. The extracts from the statement of fact that are quoted next are the direct testimony offered to show that the elder Walker made a parol gift:

“(A. C. Walker, Jr.)
“A. Well, I was to — I was entitled to one-half of the place if I would come down here and live, and my sister and brother-in-law was to live there, and my mother and daddy were going to move down when he got old enough to retire. We were all sitting around drinking coffee, and talking about one of these days we would move to Montgomery County, and I’m the only one that lived up to the agreement.
* * * * * *
“Q. As I understand you, it was this: That your father said, ‘If you will quit your job and go down there and keep it up, it will be yours’. Isn’t that what you testified?
“A. I moved down there with intention it was mine.
“Q. If you would quit and move down there, it would be yours?
“A. Well, I don’t know whether it was just exactly those words, but that’s pretty close.
“Q. That’s the substance of it, isn’t it?
“A. Yes, sir, but not just mine. It was for both of us.
“Q. You and your sister?
“A. Yes, sir.
“Q. And that is if you would quit your job and work on the property and keep it up, it would be yours ?
“A. Well, it was mine then, I thought.
“Q. Isn’t that what you just told me ?
“A. No, sir; that’s not the way. The way I understood it, it’s mine and my sisters. That’s what he said,' ‘One of these days your mother and I will' be down there and we’ll all be one big happy family.’ ”
“(Mrs. Edith Walker):
“Q. And what was said about that in the conversation?
“A. If he would quit and come down here and look after the place it was his and his sisters. * * *
“Q. Can you tell us what, if anything, Andy was to receive if he did give up his job and move his family on the land?
“A. He was to receive his own home.
“Q. Was he to have an interest in the, land?
“A. That’s right.
“Q. By that what do you mean?
“A. His daddy said for him to go right ahead to building on his house.. He said ‘it’s your home’, and 11 talked to Mr. Walker about it and I asked him if he didn’t think it was a good thing to deed the land to them.
“Q. What did he say?
“A. He didn’t reply.”
“(Mrs. Mary Jo Walker) :
“Q. Was anything said with reference to him giving up his job he was working for?
“A. Well, yes, Mr. Walker told Andy that if he gave up his job and moved down to the place he would give him a deed and he would like for Bobbie to have her half. He said he bought the place for the children, the two of them.”

The elements of a parol gift of land are enumerated in Franzetti v. Franzetti, (Ct.Civ.App.1939), 124 S.W.2d 195, writ refused; and the first element mentioned is that the gift must be made in praesenti. For a gift to be in praesenti the donor must, at the time he makes it, intend an immediate divesture of the rights of ownership out of himself and a consequent immediate vesting of such rights in the donee. Hubbard v. Cox, 76 Tex. 239, 13 S.W. 170; McFerrin v. Templeman, 102 Tex. 530, 120 S.W. 167; Crutcher v. Johnson County, Tex.Civ.App., 79 S.W.2d 932, and 27 T.J.2d, Sec. 8, p. 153. The evidence reproduced can not be construed as a clear manifestation that A. C. Walker, Sr., intended to vest the rights of ownership in an undivided one-half interest of the tract of land in suit at the time of the conversation, or conversations. However, words alone are not determinative, his acts may be considered in determining the question of his intent at that time. Fleck v. Baldwin, 141 Tex. 340, 172 S.W.2d 975; Clark v. Gurley, 48 Tex.Civ.App. 274, 106 S.W. 394, no writ.

Following the conversations the senior Walker furnished some material, labor, and otherwise assisted his son in building a residence that was then in progress on the tract of land. This and other actions shown by the record are subject to the construction that he affirmatively placed his son in possession of the land with the apparent status of a tenant in common. From the whole body of proof there may be gleaned some evidence of an intent on the part of the senior Walker to give his son an undivided one-half interest in the tract of land at the time of the conversations. The evidence of a parol gift, however, is not of such clarity and probative force as to be characterized as sufficient to support the trial court judgment. Therefore, the appellant’s point of error in this respect is sustained. Accordingly, the judgment of the trial court is reversed and the case remanded for new trial.


author: NORTHCUTT, Justice.

text:
    D. M. COGDELL, Jr., et al., Appellants, v. Ralph C. JOHNSTON et al., Appellees.
    No. 7403.
    Court of Civil Appeals of Texas. Amarillo.
    June 15, 1964.
    Rehearing Denied Sept. 8, 1964.

      LaFont, Tudor, Tunnell, Formby & Reep, Plainview, W. C. Hancock, Pittsburg, for appellants.
    Ben P. Ayres, Floydada, Evans, Pharr, Trout & Jones, Lubbock, for appellees.
   NORTHCUTT, Justice.

This case was filed by appellants, tax payers owning taxable property located in the Floydada Independent School District for themselves and all others similarly situated, against the appellees, the Board of Trustees of the Floydada Independent School District and its tax assessor and collector, seeking an injunction restraining the appellees from certifying and approving the tax roll of the Floydada Independent School District for the year 1963, and seeking a mandamus to require the appel-lees to comply with all of the constitutional and statutory provisions of the laws of Texas relating to assessment and collection of ad valorem taxes. It being the contention of appellants that the appellees were not placing on the tax rolls personal property and thereby making the burden on real estate excessive. A temporary restraining order was granted and by various orders continued in force and effect until the 19th day of November, 1963, at which time at the request of appellants and appellees the trial court entered an order appointing a master in chancery to conduct an inquiry to ascertain the existence, ownership and description of all items of personal property which, under the laws of the State of Texas, were subject to and not exempt from ad valorem taxation and had a taxable situs within the Floydada Independent School District on January 1, 1963, and which had not, prior to September 20, 1963, been rendered by the owner thereof for taxation by such district and which had not, prior to September 20, 1963, been placed on any list of unrendered personal property prepared by the tax assessor collector of such district for ad valorem taxation by such district in and for the year 1963 and presented to the Board of Equalization of such district.

The provisions of the order giving the appellants and appellees the right to procure the attendance of witnesses before the master, and the general effect of the order was to have all taxable personal property placed on the tax roll for taxes. The master was to make his report to the court and the court had the authority to confirm, modify, reject, reverse or re-commit the report to the master after the report was filed. The order also provided the Board of Equalization of said district to remain in existence and functioning. The report of the master, together with any modifications made by the court, was to be delivered to the tax assessor and collector of Floydada Independent School District, who was to compile from said report a list of unrendered personal property, and deliver the same, together with any supplemental renditions of personal property made on or before the 20th day of September, 1963, to the Board of Equalization of such district for the consideration and action thereon of such Board in the manner provided by law. The Board of Equalization was not to complete and certify the 1963 tax roll of said district, until such board had incorporated in such tax roll the additional personal property shown by the list of unrendered personal property, and by such supplemental renditions considered in the light of the master’s findings with reference thereto, and until the Board had made appropriate adjustments in the tax valuation of real and personal property then on the tax roll occasioned by the inclusion of such additional personal property.

On December 6, 1963, the appellees made a motion to release the tax roll asking that they be permitted to provisionally complete and certify the 1963 tax roll of the district as such roll existed on September 19, 1963, and to proceed with collection of 1963 taxes on such roll with such provisions as to re-adjustment of such roll and refund of overpayment of taxes that might result from subsequent addition to such roll of personal property unrendered on September 19, 1963, as the court might deem necessary or advisable.

On December 23, 1963, the appellants answered the appellees’ motion to release the tax roll contending all matters were settled by the order entered on November 19, 1963, by a final judgment. The court set the case for trial on its merits for January 3, 1964. The appellants contended the order entered on November 19, 1963, disposed of the case. The court overruled appellants’ contention and entered an order releasing the tax roll. Said order was as follows:

“IT IS THEREFORE ORDERED BY THE COURT that such Motion be granted; that the Defendants be and they are hereby authorized to complete and certify the 1963 tax roll of Defendant District, as such roll existed on the 19th day of September, 1963, and to proceed with the collection of 1963 taxes upon such roll, subject, however, to subsequent inclusion in such tax roll of such items of personal property, un-rendered as of September 19, 1963, as the Court may hereafter direct to be placed upon such roll; that Defendants shall segregate from all 1963 taxes hereafter collected, as collected, a sum equal to 2% thereof, and place the same in a special fund to be known as the ‘1963 Tax Adjustment Fund,’ to be used only for repayment of any over-payments of 1963 taxes upon property upon the tax roll on September 19, 1963, resulting from subsequent addition, under order of this Court, to such tax roll of personal property unrendered on September 19, 1963; that whenever hereafter the Court may direct that personal property unrendered on September 19, 1963, be placed upon the 1963 tax roll of Defendant District, Defendants shall make such adjustments in the amount of 1963 taxes theretofore appearing on such roll, and shall make such refunds of overpayments of 1963 taxes, as shall result from addition of such unrendered personal property to such tax roll; that except as herein modified, this Court’s Order of November 19, 1963, shall remain in effect.
“Rendered, entered and signed, this 3rd day of January, 1963.
“To which Order of the Court the Plaintiffs in open Court duly excepted and gave notice of appeal to the Court of Civil Appeals for the Seventh Supreme Judicial District at Amarillo, Texas.”

Appellants present this appeal upon one assignment of error contending “the trial court erred in entering an order modifying the agreed judgment of November 19, 1963, after the same became final, on a motion filed by appellees in the same proceeding.” Rule 385, Vernon’s Ann.Texas Rules provides :

“Appeals from interlocutory orders (when allowed by law) may be taken by (a) Filing an appeal or supersedeas bond within twenty days after rendition of the order appealed from, in an amount and to be approved and conditioned as required by the rules governing appeals generally; and (b) Filing the record in the appellate court within twenty days after rendition of the order appealed from. Provided, that upon the filing of a motion in the appellate court within such twenty-day period, or within five days thereafter, showing good cause therefor, such court may grant a reasonable extension of time in which to file such record or any part thereof.”

The order appealed from was dated January 3, 1964. The appeal bond was filed in the trial court on January 21, 1964, but the record was not filed in this court until February 20, 1964. We are of the opinion, and so hold, the orders entered by the trial court in this case were interlocutory orders and that it is not necessary for us to determine if it is an appealable order.

It is stated in the case of Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956, as follows:

“There are two reasons why we must hold that the timely filing of the record in the Court of Civil Appeals in an appeal from an interlocutory order is jurisdictional and cannot be waived.
“In the first place, it will be noted that Rule 385 makes two requirements for the taking of an appeal from such an order,—towit, (a) filing a bond and (b) filing the record in the appellate court within the time therein specified. It is necessary that both of these steps be taken, and not merely one of them, in order to comply with the terms of the rule. It necessarily follows that where a statute or rule requires the taking of two steps in order to perfect an appeal, the taking of only one of them is insufficient. United Employers Cas. Co. v. Skinner et al., Tex.Civ.App., 141 S.W.2d 955, writ refused.”

It is further stated in that same case as follows:

“When the rules were adopted Rule 385 took the place of Article 4662 in so far as it prescribed the procedure to be followed in perfecting an appeal from an interlocutory order in an injunction case, and the requirement that the record be filed in the Court of Civil Appeals within twenty days became a part of Rule 385 in substantially the same language as previously embodied in the statute. Presumably this requirement must be given the same effect as was given to it when it was a part of the statute. It would follow from this that the timely filing of the record in the Court of Civil Appeals in an appeal from an interlocutory order in an injunction case is still jurisdictional and cannot be waived. If this be true with reference to appeals from some interlocutory orders — such as injunction casés — it must necessarily be true in appeals from all interlocutory orders because the rule covers appeals from all such orders.
“We hold that the filing of the record in the Court of Civil Appeals within the time fixed by Rule 385 is jurisdictional, and that compliance therewith was not waived by the failure to file a motion to dismiss or strike the record within thirty days after the filing thereof.” . .

See also the case of Tydlacka v. Tydlacka, Tex.Civ.App.1955, 277 S.W.2d 159, citing the case of Walker v. Cleere, where it is stated:

“It is well settled law in this State that the filing of the record within the time prescribed by Rule 386, or the filing of a motion for an enlargement of such time within the time allowed, is mandatory and jurisdictional, and where there is a failure to comply with these provisions, jurisdiction of the Court of Civil Appeals is defeated. Walker v. Cleere, 171 S.W.2d 151, certified question answered by the Supreme Court, 141 Tex. 550, 174 S.W.2d 956, 958. In that case Chief Justice Alexander, speaking for the Supreme Court, said:
“ ‘We hold that the filing of the record in the Court of Civil Appeals within the time fixed by Rule 385 is jurisdictional, and that compliance therewith was not waived by the failure to file a motion to dismiss or strike the record within thirty days after the filing thereof.’
“It is true that Rule 385, T.R.C.P., was there involved, but the same principle must necessarily apply to Rule 386, supra.”

It is the duty of the court to take notice of its want of jurisdiction to determine the merits of the appeal. It seems clear to us that .we do not have jurisdiction to determine the merits herein and that the appeal should be dismissed. It is accordingly so ordered.

CHAPMAN, J., not participating.


author: BELL, Chief Justice.

text:
    LOCKWOOD NATIONAL BANK, Appellant, v. T. W. JENNINGS et ux., Appellees.
    No. 14396.
    Court of Civil Appeals of Texas. Houston.
    July 9, 1964.
    Rehearing Denied Sept. 10, 1964.
    Robert J. Malinak, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant.
    Joe J. Newman, Houston, Sanders, Francis & Bear, Houston, of counsel, for appellees.
   BELL, Chief Justice.

Appellees recovered j'udgment against appellant for $900.00 with" interest thereon at the rate of 6% from November 7, 1962, after a jury verdict favorable to them except for the answers finding appellees were guilty of negligence which proximately caused their loss. The court disregarded these answers.

On February 21, 1962, Mrs. T. W. Jennings, being duly authorized, signed the name of her husband, T. W. Jennings, to a check drawn on appellant, the check being in the amount of $6.00. It was given to a person named Perry Jones, who was a stranger to appellees, who came by their home and sold them some roach spray. Mrs. Jennings told the payee to fill in the check and he did so in the presence of ap-pellees. After it was completed, except for the maker’s signature, Mrs. Jennings signed the name, T. W. Jennings. The jury found on sufficient evidence that the check at that time was' payable in the amount of $6.00. When appellees received their hank statement in March, 1962, they found the cancelled check but it had been raised in amount to $906.00. The bank paid $906.00 on presentation of the check. The day after receiving the cancelled check appel-lees notified the appellant and demanded the $900.00 that had been paid in excess of the $6.00 for which the check had been executed.

After the check was signed by Mrs. Jennings it was in this form:

“LOCKWOOD NATIONAL BANK
Houston, Texas Feb 21 1962
Pay To The Order of Perry Jones $ 6.00
Six Dollars no/100 -Dollars .
Mr. or Mrs. T. W. Jennings T. W. Jennings”

It will be noted a blank space was left between the dollar sign and the figure “6” sufficient in length to allow the insertion of the figure “90”. This was done, apparently by Jones, because the handwriting on the check, except for the signature “T. W. Jennings”, is the same. Also a blank space ahead of the words “Six Dollars” was left which was of sufficient length to write the words “Nine Hundred and”. These last words were filled in by Jones, presumably, ahead of the words “Six Dollars”. Unquestionably there was nothing about the check when it was presented to the bank to cause any suspicion.

The jury found the act of appellees in leaving these blanks to be negligence and that such was the proximate cause of their loss. These are the answers the court disregarded. There were other findings that are not material.

The sole question is, who is liable for loss where a party draws a check in such form that it can be changed to read for a larger amount, in such manner as not to excite the suspicion of a reasonably prudent person, and it is, after it has been delivered to the person in whose favor it is drawn, so changed, under circumstances constituting forgery, and the same, upon presentation to the drawee, is paid, without knowledge on his part of such forgery, and without knowledge of such fact as would put a reasonably prudent person on inquiry as to such forgery?

The question is answered by our Supreme Court in the case of Glasscock v. First National Bank of San Angelo, 114 Tex. 207, 266 S.W. 393, 36 A.L.R. 320. In a fact situation not different in any material fact from the case before us, that court held the loss must fall on the drawee. The principle on which the conclusion is based is that the negligence of the drawer of a completed check cannot, be the proximate cause of the loss because one cannot foresee or anticipate the commission of a crime by another. See also First State Bank of Lyford v. Parker, Tex.Civ.App., 27 S.W.2d 279, error dism., and Article 5939, Sections 124 and 125, Vernon’s Ann.Tex.St.

The judgment of the trial court is affirmed.


author: LANGDON, Justice.

text:
    H. C. ALLISON, Appellant, v. GULF LIQUID FERTILIZER COMPANY, Appellee.
    No. 16556.
    Court of Civil Appeals of Texas. Fort Worth.
    July 17, 1964.
    Rehearing Denied Sept. 18, 1964.

      Anderson & Anderson, and Wm. R. Anderson, Jr., Cleburne, for appellant.
    John P. Dennison, Pecos, for appellee.
   LANGDON, Justice.

This is a suit on a sworn account. The appellee, plaintiff below, based his suit upon a sale of 29,440 pounds of anhydrous ammonia, a liquid fertilizer, to the defendant, .appeiiant herein, and sought interest and .attorney’s fees. The appellant answered by .a verified denial and a cross-action. The allegations contained in the cross-action were denied by appellee.

Trial was to a jury. Based upon the verdict of the jury the trial court granted judgment for appellee in the amount of $2,060.--•80, with interest, and attorney’s fees in the sum of $600.00.

At the outset it should be noted that the .appellant was not represented by counsel in the trial court.

Upon trial the sworn account with affidavit attached was offered and admitted in -evidence. Witnesses for appellee testified that the official books and records supported -the information contained in the affidavit. Numerous invoices and weight tickets were -identified, reflecting the amount of liquid fertilizer delivered to the appellant. Ap-pellee’s testimony contradicted the appellant’s contention that he had agreed to pur•chase 11,400 pounds of the fertilizer. It reflected and the jury found that he pur•chased and the appellee delivered 29,440 pounds of the fertilizer and that same had not been paid for. The pleadings and proof •support appellee’s contention and the jury’s finding that there was no agreement of any •nature whereby it was to direct, control and -supervise the application of the fertilizer which it had sold to the appellant. The •testimony reflected that the agreement con•cerning the sale of the fertilizer was one whereby the appellee would deliver fertilizer to the appellant, tank by tank, and set -the gauges on each as requested by appellant The purchases were a series of individual transactions.

The evidence and testimony show clearly the number of pounds purchased, the price per pound and the amount now due and unpaid. Without question the appellant ordered and received the anhydrous ammonia. Its use thereafter was clearly his own responsibility. Appellant offered no proof as to the amount of the liquid fertilizer which he claimed was lost by reason of a leaky regulator. Thus the jury had no basis upon which to make any allowance in his favor on account of the loss, if any, of the fertilizer.

The appellant by twelve points of error contends the court erred in submitting special issues Nos. 2 and 3 and in refusing to submit his requested special issues 2 through 9. His last three points complain of the judgment against him for $2,060.80 with interest and attorney’s fees and the court’s refusal to grant a new trial for jury misconduct We affirm.

Special issue No. 1 inquired as to whether appellant purchased any anhydrous ammonia from appellee during the pertinent period. Based upon an affirmative answer to No. 1, the second issue inquired as to the number of pounds purchased. The jury answered “yes” to the first and “29,440” pounds to the second. The third issue answered “no” by the jury inquired as to whether there was an agreement whereby appellee would supervise the application of the anhydrous ammonia. This disposed of appellant’s cross-action.

The record does not reflect that appellant made any objection to the charge of the court. Under Rule 274, Texas Rules of Civil Procedure, any complaint as to an issue shall be deemed waived unless specifically included in the objections. Thus, under the record in this case, all complaints as to the form of the issues and the instructions in connection therewith contained in the court’s charge have been waived.

The contention that, there was no' evidence to support the'submission of the special issues or idle jury’s answers thereto must be based upon and related to one or more of the following procedural steps in the trial court: (a) motion for instructed verdict; (b) objection to the submission of such issue to the jury; (c) motion .for judgment notwithstanding the verdict; (d) mo^ tion to disregard the jury’s answers. These are steps which must be taken before rendition of judgment. Appellant failed to comply with any of these procedural steps. 30 Tex.L.Rev. 803; 38 Tex.L.Rev. 361, 362, and cases cited therein. There is no basis in this record for the no evidence points.

The appellant’s complaints that the evidence was insufficient to support the submission of the issues and the jury’s answers thereto are related to and based upon assignments of error in his motion for new trial filed after the entry of judgment. 38 Tex.L.Rev. 361, infra; Rule 279, T.R.C.P. Our review of the record as a whole reflects that the evidence factually supports all of the jury’s findings and therefore such findings are not contrary to the great weight and preponderance of the evidence.

Specifically the appellant’s contention that it was error to enter judgment against him for $2,060.80 with interest and attorney’s fees because of no evidence or insufficient evidence are without merit. We have previously disposed of the no evidence point. Under the record as a whole, there was sufficient evidence to support the judgment of the court, including interest and attorney’s fees.

In connection with his assignments of error based upon the court’s refusal to submit seven of the issues requested by him he stated in connection with each, “that the trial court erred in refusing to submit defendant’s requested issue No. -, which defendant timely presented and filed with the Court .but which requested issue has not been filed with the papers in said cause.” The transcript, however, reflects a single instruifient designated as Defendant’s Requested Special‘Issues.” "It cbnfainéd ten special issues listed over the signature,of appellant

The trial court is required to submit the controlling issues made by the pleadings. and the evidence. It is given much discretion in framing and submitting such issues. The court is not required to submit issues that are merely evidentiary or unnecessary. It is not required to submit various phases or different shades of the material issues submitted. Dallas Railway & Terminal Co. v. Straughan, 254 S.W.2d 882 (Amarillo Civ.App., 1952, no writ hist.). Some of the issues were given by the court and others refused. None of the issues complained of were controlling, ultimate or material issues.

The trial court in this case submitted the controlling issues raised by the pleadings and the evidence. Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786 (1941). See also Vaughn v. Watkins, 344 S.W.2d 902, 904 (Eastland Civ.App., 1961, writ ref. n. r. e.) ; Rule 274, T.R.C.P. See also Davis v. Massey, 324 S.W.2d 242 (Waco Civ.App., 1959, no writ hist.).

In his motion for new trial the appellant attaches several affidavits in support of his point on jury misconduct. The record does not reflect that any of the jurors were brought into court for a hearing or that such a hearing was requested. The affidavits of jurors regarding alleged misconduct were neither evidence nor admissible as such on the hearing for a new trial on the ground of jury misconduct. City of Houston v. Fondren, 198 S.W.2d 480 (Galveston Civ.App., 1946, ref. n. r. e.). The witnesses must be timely presented in court. Texas Livestock Marketing Ass’n v. Rogers, 244 S.W.2d 859 (San Antonio Civ.App., 1951, ref. n. r. e.). The burden was on the appellant to show both that the alleged misconduct occurred and that he was probably injured thereby. He did neither. See City of Houston v. Fondren, supra, and cases cited therein.

“The remedy for setting aside a jury’s verdict for misconduct is to allege the facts constituting such misconduct in the motion for a new trial, and at the time the motion for a new trial is presented the hearing is had on the alleged misconduct of the jury. Appellant did not avail himself of such remedy.” Brannen v. City of Houston, 153 S.W.2d 676, 678 (Galveston Civ.App., 1941, ref.). See also 41 Tex.Jur.2d, p. 79, § 33, and Rule 327, T.R.C.P., and cases cited thereunder.

Based upon the authorities above cited and for the reasons stated, we are of the ■opinion that all of the points of error raised by the appellant should be and the same are .accordingly overruled and the judgment of "the trial court affirmed.

Affirmed.


author: SELLERS, Justice.

text:
    COOPER PETROLEUM COMPANY, Appellant, v. ANDERSON REFINING CORPORATION, Appellee.
    No. 74.
    Court of Civil Appeals of Texas. Tyler.
    July 23, 1964.
    Rehearing Denied Sept. 17, 1964.
    John A. Croom, Houston, for appellant.
    A. D. Henderson, Palestine, for appellee.
   SELLERS, Justice.

Anderson Refining Company, plaintiff, brought this suit against Blue Bonnett Petroleum Products, Inc., Boyd E. Carter, Verda L. Carter and Cooper Petroleum Company defendants. All of the defendants, with the exception of Cooper Petroleum Company, reside in Anderson County, Texas. The defendant, Cooper Petroleum Company, has its domicile in Harris County, Texas.

Insofar as this appeal is concerned, the plaintiff’s petition sets out two distinct causes of action, the first as follows:

“Plaintiff alleges that during the first part of the year 1962, Plaintiff was engaged in the gasoline refining business and that Defendant, Blue Bonnett Petroleum Products, Inc., was engaged in the wholesale and retail gasoline business in Anderson County, Texas and that on numerous occasions during the time in question, Plaintiff at the special instance and request of Blue Bonnett Petroleum Products, Inc., sold and delivered to Blue Bonnett Petroleum Products, Inc., various quantities of gasoline on various dates totaling the sum of $7,668.24 and in consideration whereof, Defendant, Blue Bon-nett Petroleum Products, Inc., promised and became bound and liable to Plaintiff for said amount for which Defendant, Blue Bonnett Petroleum Products, Inc., failed to pay Plaintiff.
“That in August 1962, Defendant, Blue Bonnett Petroleum Products, Inc., executed and delivered to Plaintiff its promissory note in the amount of $7,-668.24, a copy of which is attached and marked ‘EXHIBIT A’ and incorporated herein as though fully copied herein and that said note was delivered to Plaintiff for the purpose of reducing the aforesaid account to writing and for the purpose of inducing Plaintiff to defer and delay legal action upon said account.
“Plaintiff alleges that Blue Bonnett Petroleum Products, Inc., has defaulted in its obligations under said note and that there remains due and owing to' Plaintiff by Blue Bonnett Petroleum Products, Inc., the sum of $6,433.77 as of August 1, 1963, and that Defendant, Blue Bonnett Petroleum Products, Inc., fails and refuses to pay the balance of said note to Plaintiff’s damage.”

The second cause of action is as follows:

“The Defendant, Blue Bonnett Petroleum Products, Inc., executed and delivered to Defendant Cooper Petroleum Company, two Deeds of Trust dated May 17, 1962, one of which was recorded in Vol. Ill, page 326 of the-Deed of Trust Records of Anderson-County, Texas, attempting to give-Cooper Petroleum Company a lien upon a service station located at Tennessee Avenue and Lacy Street and a service station located on West Oak. Street and a lot and building located at the intersection of State Highwas-#43 and Cottage Avenue, all of which is located in the City of Palestine, to-which instrument Plaintiff refers for legal description of said properties, and another Deed of Trust dated May 17, 1962, and recorded in Vol. 24, Page 131 of the Deed of Trust Records of Leon County, Texas, thereby attempting to give Cooper Petroleum Company a lien upon a service station located' in Buffalo, Texas, to which record reference is made for legal description of said property and that both Deeds of Trust recite that the same were given-to secure a note dated April IS, 1961, executed by Blue Bonnett Petroleum. Products, Inc., to Cooper Petroleum Company in the amount of $43,000.00..
“Plaintiff alleges that said Deeds of Trust were executed by Blue Bonnett Petroleum Products, Inc. at a time-when said corporation was insolvent and that said instruments attempted! to give Cooper Petroleum Company, a general creditor, preferential treatment in defraud of the other creditors of Blue Bonnett Petroleum Products, Inc. and that said Deeds of Trust were void as being in defraud of this Plaintiff’s rights as a creditor and that the subsequent foreclosure of said Deeds of Trust on June 5, 1963, whereby Cooper Petroleum Company was the purchaser of said properties at the foreclosure sale was also void.
“Defendant, Blue Bonnett Petroleum Products, Inc. at such time had and has now, no other property within this state subject to execution, of which any of is then or now existing debts can be satisfied in whole or in part unless the property so fraudulently mortgaged to Cooper Petroleum Company can be reached and applied to the payment of Plaintiff’s debt, the same must remain wholly unpaid.
“Plaintiff alleges that said Deeds of Trust attempted to give Cooper Petroleum Company a lien upon all of the assets of Blue Bonnett Petroleum Products, Inc. and was not a transaction in the normal course of said corpo-ation’s business and that Boyd E. Carter as President and Verda L. Carter as Secretary did not have the legal authority, expressed or implied to enter into such transaction on behalf of Blue Bonnett Petroleum Products, Inc. and that said Deeds of Trust are void as to this Plaintiff.”

The prayer is in keeping with the allegations.

The defendant, Cooper Petroleum Company, filed its plea of privilege to be sued in Harris County, the county of its residence. The plaintiff, Anderson Refining Company, filed a controverting plea to the plea of privilege in which it alleged venue in Anderson County under Section 4 of Article 1995, Texas Venue Statute. After a full hearing on the plea, the trial court overruled defendant Cooper Petroleum Company’s plea of privilege to be sued in Harris County, from which ruling this defendant has duly prosecuted this appeal.

The contention of appellant on this appeal is to the effect that the burden was upon appellee to both allege and prove a joint cause of action against the resident defendant, Blue Bonnett Petroleum Products, Inc., and Cooper Petroleum Company,. appellant, before venue could be sustained in Anderson County. We overrule this contention. It is undisputed that appellee proved a cause of action on the hearing against the resident defendant, Blue Bonnett Petroleum Products, Inc., on its debt, evidenced by a promissory note. The only other requirement under Section 4 of Article 1995 is that appellee, in his petition, must allege a joint cause of action against Blue Bonnett Petroleum Products, Inc., the resident defendant, and appellant, Cooper Petroleum Company. We are of the opinion that the petition is sufficient in this respect. In this situation, we are required to look to the petition of the appellee to determine whether a joint cause of action is raised but no proof of the joint cause of action is required. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, Supreme Court.

It will be observed that appellee’s petition seeks to cancel certain deeds of trust executed by Blue Bonnett Petroleum Products, Inc., to appellant. For this reason, all parties to the instrument sought to be canceled are necessary parties to the suit before the trial court could acquire jurisdiction to grant the relief.

The judgment of the trial court is affirmed.


author: GREEN, Chief Justice.

text:
    Mrs. Frances CHUMCHAL, Appellant, v. NATURAL GAS PIPELINE COMPANY OF AMERICA et al., Appellees.
    No. 74.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 20, 1964.
    W. V. Dunnam, Jr., of Dunnam, Dunnam & Dunnam, Waco, Wm. J. Kershner, R. Douglas Cauley, Houston, for appellant.
    Robt. M. Davant, Jr., and James T. Wright, of Dyche, Wheat, Thornton & Wright, Houston, W. A. Cline, Jr., Wharton, Wm. H. Deer, of Ross, Hardies & O’Keefe, Chicago, Ill., for appellee.
   GREEN, Chief Justice.

This is a suit for damages to land filed by-appellant, the landowner, against appellees National Gas Pipe Line Company of America and R. L. Pivonka, superintendent of the company’s plant in Wharton County at the time in question. Appellees filed a motion for summary judgment, to which were attached extracts from sworn depositions of Pivonka, Mrs. Frances Chumchal and George Krenek, appellant’s lessee when the alleged cause of action occurred. The motion was granted, and appellant appeals.

Before proceeding further into the facts, we shall dispose of appellant’s contention that appellees’ motion for summary judgment should not have been considered by the trial court because it was not sworn to. In addition to the portions of the sworn depositions made a part of the motion, the complete sworn depositions of appellant and Pivonka were before the trial court at the hearing, and are made a part of the record. The motion, supported by sworn testimony, need not be verified to meet the requirements of Rule 166-A, Texas Rules of Civil Procedure; Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274; Willoughby v. Jones, 151 Tex. 435, 251 S.W.2d 508.

Appellees first counterpoint, that the motion was sufficient, is sustained.

Between appellee company’s booster plant in Wharton County and the San Bernard River to the north lay three tracts of land. The first, adjoining the plant, was owned by one Polenik. Adjoining Polenik’s land was a tract which was the property of George Krenek. Next came the 100 acre tract of appellant. A drainage ditch or draw ran from the plant across these three tracts to the river, with the natural flow being from the plant. Appellee company had been discharging water and waste from a large septic tank into this ditch since 1953. In early April, 1955, Krenek complained to Pivonka that the drainage from the plant had caused the ditch to fill up and become blocked, and asked that the company clean out the ditch on his property. Two or three days thereafter, the company sent a crew with ditch digging machinery onto Krenek’s property and did as requested. When the work was completed on Krenek’s land, he asked that they proceed on to appellant’s land and clean out the draw on the property so that the water and waste material could run off his land through her property to the river. Krenek, appellant’s brother, had a five year pasture lease on appellant’s tract, which was due to expire December 30, 1955. Krenek told Pivonka that he was in charge of appellant’s land and was authorized to speak for her in this matter. Thereupon, without consulting appellant, and without her permission, Pivonka sent the crew and machinery onto appellant’s land and proceeded to clean the ditch and do excavation work there. In her petition, appellant sues for actual and exemplary damages allegedly suffered as a result of appellees’ alleged wilful trespass on her property.

Appellees, in their brief, present two propositions, either of which, if sustained, is sufficient to support the summary judgment. Their second counterpoint is that ap-pellees entry on appellant’s land in April, 1955, was not a trespass because the entry was at the request of the tenant in possession of the land. The third counterpoint is that appellant’s cause of action is barred by Article 5526, Vernon’s Ann.Tex.St., the two year statute of limitation.

We do not believe that appellees’ second counterpoint is well taken, and we overrule same. Krenek’s pasture lease on appellant’s land, about to expire December 30, 1955, did not authorize him to act for appellant in requesting appellees to bring the machinery on her property to make the changes there that were made. We find that an issue of fact is presented as to whether a trespass on appellant’s land was committed by appellees. However, since the appeal will be disposed of by our action on appellee’s third counterpoint, no further discussion of this matter is necessary.

Appellant’s original petition was filed May 1, 19S7. Pivonka, in his deposition, testified that Krenek’s request that he clean out the ditch on his property was made prior to April 8, 1955, and that this work was commenced on April 4th or 5th. He verified this by his weekly report of April 8, 1955, which contained a memorandum that this work was then in progress. He stated that the job on the two properties, Krenek’s and appellant’s, was a continuous operation and required between a week and ten days. He placed the date of the alleged trespass onto appellant’s land as not later than the middle of April, 1955, and according to his sworn testimony, the excavation work, which was the basis of appellant’s suit, was definitely finished prior to April 25, 1955.

It thus became necessary, in view of Pivonka’s sworn evidence, for appellant to show by opposing evidentiary matter that an issue of fact existed on the question of limitation. Gulf, C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492; Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948; Edgar v. Southwestern Oil & Refining Co., 377 S.W.2d 225, writ ref. n. r. e.; City of San Antonio v. Castillo, Tex.Civ.App., 293 S.W.2d 691, writ ref. n. r. e.; McDonald, Tex.Civ.Prac., Vol. 4, Cumulative Supplement, p. 46, et seq.

For this purpose appellant relies on her affidavit filed in answer to the motion. In this affidavit, appellant stated that on or about May 10, 1955, she received a letter from a Mrs. Kruppa, a tenant who lived on this property, stating that a ditch was being dug on her property and suggesting that she come to investigate. She stated that about three or four days later she and two members of her family went from Houston to the property, and “did in fact inspect the digging operations which were continuing at that time.”

However, in her deposition, in testifying about this visit, appellant swore as follows:

“Q. All right. Do you remember the month, day, and year of this Saturday trip ?
“THE INTERPRETER: You want in in reference to when that trip—
“Mr. WRIGHT: No. If she recalls the month, day and year.
“A. (By the witness) I don’t remember, but my daughter does remember.
“Q. Do you still have the letter—
"A. I have a weak mind—
“THE INTERPRETER: Not a weak mind, bad memory.
“Q. Do you still have the letter that you referred to?
“A. My daughter has some letter. My daughter has some kind of a letter.
“Q. On this Saturday, when you came to your property, what had been done to this ditch?
“A. Well, they had those machines there, and they had plowed it out, and something that they removed dirt with.
“Q. Did you see the machines on the property ?
“A. No, I wasn’t there.
“THE INTERPRETER: She said, 'Others have said that they were there’.
“Q. Who were the others?
“A. Mrs. Kruppa said. What is the other person? Mrs. Kruppa wrote to me in Houston to come and see, some men had excavated or plowed out a deep ditch. They excavated some of those roses, or kind of rose hedge, or something of that order, and scattered it over the pasture. As they went along, they puched it out, and they cut it up, and now it is over all of the pasture.
•“Q. Is that something you have seen, or is that something someone told you?
“A. That is Mrs. Kruppa told me that. She was on my place—she was a renter on my place.
“Q. Did Mrs. Kruppa live on your place at that time ?
■“A. Yes. Five years on rent. She knows everything.”

Rule 166-A provides that the supporting and opposing affidavits shall be made on personal knowledge, and shall set forth facts which would be admissible in evidence, and show affirmatively that affiant is competent to testify to the matters testified therein. Appellant’s deposition shows affirmatively that any statement of hers in Tier affidavit or in her pleadings concerning the date or dates of appellees’ alleged trespass on her property is based on hearsay, and cannot be useful to her in raising a fact issue to answer Pivonka’s evidence. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317; Heien v. Crabtree, Tex.Civ.App., 364 S.W.2d 271, aff’d Supreme Court, 369 S.W.2d 28; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, writ ref. The sworn evidence of Pivonka that the excavations on appellant’s land had been completed more than two years prior to the filing of appellant’s suit stands uncontradicted by any competent evidence.

Appellant, in her pleadings and brief, asserts that the entry onto and presence on her property by appellees were in all respects unlawful. Where the act complained of is unlawful as to the party suffering injury, limitation runs from the time the act was committed. Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36; Blondeau v. Sommer, Tex.Civ.App., 139 S.W.2d 223, writ ref.; Stillwell v. City of Fort Worth, 140 Tex. 560, 169 S.W.2d 486; Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336; 37 Tex.Jur.2d, Limitation of Actions, Sec. 67, p. 192 et seq.

The original trespass on appellant’s land occurred more than two years prior to the date the suit was filed. Appellees established by sworn proof that the excavation work on appellant’s land complained of by her was completed more than two years before suit was brought, and appellant failed to raise an issue of fact as to this by any competent summary judgment “evidence”. Under the provisions of Art. 5526, V.A. T.S., appellant’s cause of action was barred when her suit was filed.

Appellee’s third counterpoint is sustained.

Judgment affirmed.


author: DAVIS, Justice.

text:
    William L. BOWEN et al., Appellants, v. Doyle O. BRAWLEY, Appellee.
    No. 7571.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 4, 1964.
    Rehearing Denied Aug. 25, 1964.

      Raymond R. Johnson, Joe N. Chapman, Sulphur Springs, for appellants.
    John Lancaster, III, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, Jack G. Neal, Ramey, Ramey & Neal, Sulphur Springs, for appellee.
   DAVIS, Justice.

Plaintiff-appellants, William L. Bowen, hereafter referred to as Bowen, and Roy L. Bailey, hereinafter referred to as Bailey, sued defendant-appellee, Doyle O. Brawley, for damages as the result of a collision that occurred on Super Highway No. 30 in Hopkins County, Texas, on July 18, 1962. According to the evidence, appellee drove his car into the rear of a car that was owned by Bowen. Bailey was a passenger in Bowen’s car. Bailey’s small son was in the rear seat of Bowen’s car, but he was not injured. The case was tried to a jury. Judgment was entered that appellants take nothing. Appellants perfected their appeal and bring forward six points of error.

By their first four points, appellants say the trial court erred in overruling their motion for new trial because they definitely showed jury misconduct. These points must be sustained. Therefore, it is necessary to show the facts proved and the actions of at least one of the jurors.

According to the evidence, appellants had left their home near Cumby, Texas, early in the morning to go pick up a dog and then go fishing. Bowen turned his car in a westerly direction on Super Highway 30, which has two lanes of traffic going west, with a division in the center of the highway separating two lanes of traffic going east. Bowen was well acquainted with the highway. After he had turned his car onto the highway and traveled a short distance, he turned on his left signal light, indicating he was going into the left lane of traffic. Shortly after he moved into the left lane of traffic the appellee hit him in the rear. Bailey was seated in the front seat, and as a result of the collision he was knocked down onto the floorboard of the car and onto a water jug. The top of the jug was knocked off, and water was spilled on Bailey. He finally regained his position, and the car was brought to a stop. After the collision, appellants got out of Bowen’s car and went back to appellee’s car where they met appellee’s wife and his three small children. They also met another man who was in the air corps by the name of Brown. Appellee did not want them to call the Highway Patrol, but the appellants insisted and did so. After a wait of about two hours, the Highway Patrol came and made an investigation. Then appellants and the appellee went on their way.

A few days thereafter, Bowen went to see Dr. Byrd Longino. The doctor testified that he examined Bowen, and that he had a whiplash injury. He placed Bowen in the hospital, where he stayed for only two days. He had to leave the hospital because of the condition of his wife. While in the hospital Bowen was put in traction. When he left the hospital, the doctor sent the traction with him, and told him to use it at home. There was much evidence of the fact that Bowen suffered much pain, and would probably do so in the future. Dr. Longino said that he could not tell how long in the future he would suffer any pain, and he was not permitted to estimate the time. There was offered in evidence doctor and hospital bills that had been charged to Bowen, and proved by Dr. Longino in the total amount of $125.70.

Bailey saw a Chiropractor by the name of John E. Weddle. Dr. Weddle testified that he examined Bailey and found that he, too, was suffering a whiplash injury.' He testified as to the pain he suffered, and would continue to suffer until he received certain treatments. Bailey also testified about the injury and the pains. Dr. Weddle testified that there was a total of $47.00 charged to Bailey, and that Bailey would need at least 100 more adjustments at $4.00 each. This proved $447.00 medical expense, past and future, for Bailey.

There were several pictures offered in evidence that proved the damages to Bowen’s car. There was testimony that one of the seats was broken loose. According to the pictures offered in evidence, the back end of Bowen’s car was bent in pretty badly, and a part of the rear bumper was broken off. There was testimony that one of the tail lights was smashed out. An automobile dealer testified as to the value of Bowen’s car immediately before the accident as being between $500.00-$600.00. He testified the value of the car immediately after the accident as not being more than $50.00. To give the appellee the benefit of the doubt, the testimony showed the value of the car had been decreased at least $450.00.

Appellee was a member of the air corps. He had been stationed in Massachusetts, but had been transferred to Abilene, Texas. He left the Air Base in Massachusetts on July 16, 1962. He was accompanied by his wife and their three small children, and another member of the Air Corps by the name of Brown. They drove continuously from Massachusetts to the point of the accident, with very few stops. The appellee was driving the car at the time of the collision.

After all the evidence had been submitted, the court had submitted its charge, and jury arguments were made by the attorneys, the jury went to the jury room and selected a foreman. As soon as the foreman was selected, one of the jurors by the name of Hollingsworth told the jury he would like to make a speech. He told the jury that Bowen and Bailey were “fakes”, and were trying to get some money without any injuries. He further told them that he was a mechanic, and was very familiar with the damages that were done to the car. He told the jury that the damages were caused by a prior wreck, and the damages could be repaired for $10.00. After much discussion, an agreement was made by the jury to answer the Special Issues so that Bowen and Bailey would not recover anything. Then, the jury answered the Special Issues. All this was done before the court’s charge was read, and before the jury ever answered either of the Special Issues.

The jury answered the Special Issues that appellee sounded his horn; that he kept a proper lookout; that he was not driving at a greater rate of speed than a person of ordinary prudence would do under same or similar circumstances; and, that he did not fail to timely apply his brakes. The jury further found that Bowen did not keep a proper lookout; that such was a proximatae cause of the collision; that he attempted to change lanes of traffic; that such was negligence and a cause of the collision; that he failed to give any notice or signal of his intention to change lanes of traffic; and, that such negligence was a proximate cause of the collision. The jury farther found that the appellee was forced to act in an emergency, and that he did everything that was reasonable under the circumstances. The jury also found that it was not an unavoidable accident. The jury found that the amount of damages suffered by Bowen for necessary medical and hospital expenses, and for physical pain and mental anguish as being none. The jury found the amount of the damages suffered by Bailey for medical and hospital expenses and for physical pain and mental anguish as being none. The jury found the damages to Bowen’s car to be only $100.00. There was conflicting evidence about the appellee blowing his horn, and if it were not for the other errors this court would be bound thereby. The juror, Hollingsworth, put new evidence into the case when he told the jury that the boys were “fakes”, that the damages had already been done by a prior collision, and that he was a garage man and could fix the damages for $10.00. Then, there was a prior agreement that they would answer the special issues so that appellant would not recover anything. This definitely showed damages. In the case of Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483, the court said, in part:

“It is well settled that cases must be tried in the court room and that a juror is not permitted to become a witness during the jury’s deliberations and that it is misconduct for original evidence of material facts to be received by the jury during its deliberations.” (citing cases).

The court goes on to say that litigant’s rights are not permitted to be thus jeopardized by the insertion of new evidence in the jury room. Wallace v. Partin (Ct.Civ.App.) 345 S.W.2d 943, N.W.H.; Garcia v. Phoenix Assurance Company of New York. (Ct.Civ.App.), 376 S.W.2d 77, W.R., N.R.E.; Mrs. J. A. Gregory et al. v. St. Louis Southwestern Railway Co. (Ct.Civ.App.) 377 S.W.2d 847; Rule 327, Vernon’s Ann.Texas Rules of Civil Procedure. The answer of the jury to the special issues definitely showed damages to the appellants because they answered none to the damages to both of the appellants, and only answered $100.00 damages to Bowen’s car. The points are-sustained.

By their 5th and 6th points appellants say the trial court erred in failing to. submit to the jury certain requested special issues. The issues inquired about the appel-lee driving his car while his mental faculties were in a state of fatigue, if so, was such negligence and a proximate cause of the collision; and, could the appellee have changed the course of the car he was driving in a way to have avoided the collision, if so, was such failure negligence and a proximate cause of the collision. Under the pleadings and the evidence, the special issues requested were raised and should have been submitted. Rules 277 and 279, T.R.C.P.; 41-B Tex.Jur. 617, Sec. 470; Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651; Klinke v. Harbison (Tex.Civ.App.) 248 S.W.2d 545, aff’md 152 Tex. 142, 254 S.W.2d 769; Cheramie v. Scott, Tex.Civ.App., 324 S.W.2d 87, W.R., N.R.E.; Lubbering v. Ellison (Tex.Civ.App.) 342 S.W.2d 796, N.W.H.; Mayflower-Investment Company v. Stephens, Tex.Civ.App. 345 S.W.2d 786, W.R., N.R.E.; Schafer v. Stevens (Tex.Civ.App.) 352 S.W.2d 471, er. dism.; 18 Texas Bar Journal 155. The points are sustained.

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


text:
    CITY OF HOUSTON, Appellant, v. LAKEWOOD ESTATES, INC., Appellee.
    No. 14296.
    Court of Civil Appeals of Texas. Houston.
    July 9, 1964.
    Rehearing Denied Sept. 10, 1964.

      John Wildenthal, Jr., City Atty., John Gano, Senior Asst. City Atty., Houston, for appellant.
    Billy B. Goldberg, Houston, for appellee.
   BELL, Chief Justice.

Appellee filed suit to recover from appellant the value of water and sewer lines it alleged had been taken by appellant. The trial court, on trial before the court without a jury, rendered judgment for appellee for $29,293.60 together with interest at the rate of 6% from July 1, 1961.

The facts are largely undisputed. Appellee, a private corporation, was chartered June of 1950 under Subdivision 47 of Article 1302, R.C.S.1925. Its purpose was to erect or repair any building and to accumulate and lend money for such purposes and to purchase, sell and subdivide property in Houston and within a distance of not exceeding two miles beyond the city limits of Houston. In 1948 Louis Saks, the principal stockholder in the corporation, owned a tract of land amounting to some 65 acres that he subdivided into what he called Lakewood Estates. It was subdivided into lots and blocks upon which homes might be built. The plat was approved by the City Planning Commission of the City of Houston and the Commissioners Court of Harris County. The streets, alleys and easements shown on the plat were dedicated to the public. The land constituting the subdivision was conveyed by Mr. Saks to the corporation after its formation on June 13, 1950.

Mr. Saks testified that though a few lots were sold before the addition had been approved for loans by the F. H. A. he soon found out the sale of lots in the addition would not move unless it was approved for loans by the F. H. A. In order for the addition to be approved by F. H. A. it was necessary, among other things, to have water and sewer service available. In November of 1950, appellee entered into a contract with a utility company known as Pinewood Utilities that was serving an addition to the north of, though not adjoining, Lakewood Estates. Langley Road Place was an addition between them. Under the terms of the contract appellee was to lay and pay for the water and sewer lines in Lakewood Estates and the mains that had to pass through Langley Road Place. The line through Langley Road Place was necessary in order to connect with the Pinewood Utilities lines. Pursuant to said agreement appellee laid its water lines in the dedicated streets and the sewer lines in the dedicated easements. It should be noted that the part of Lakewood Estates north of Hall’s Bayou lay outside of the City limits of Houston until annexation in 1956. The lines installed by appellee were in the area beyond the City limits.

We need not notice all the provisions of the contract. It contained an agreement by Pinewood Utilities to furnish water and sewer service at prescribed rates to owners of houses in Lakewood Estates. For each house connected a tap charge of $50.00 for the water connection and meter was made and a $100.00 charge was made for the sewer connection. This charge was paid to the utilities company for its use. While the testimony shows the amount of the charge was paid by checks of appellee, the charge was actually collected from the property owner by appellee. Persons in Langley Road Place were entitled to connect with the line running through that addition upon the payment of a charge to be determined by appellee but not to exceed the amount charged owners in Lakewood Estates. Payment was made to the utilities company, and it paid the amount collected over to appellee. The users of the service, be they owners in Lakewood Estates or Langley Road Place, would make application to the utilities company on forms provided by them. The contract also provided that after one year the water and sewer lines in Lakewood Estates and Langley Road Place would be serviced and maintained by the utilities company at its own cost and expense. The contract recites the contractor laying the lines had the obligation to maintain for the first year.

It was provided that the water and sewer lines constructed should become and remain the property of the party to the contract who paid for the particular facility. It further provided: “The rights and benefits accruing and the obligations incurred hereunder shall extend to the successors and/or assigns of the parties to this contract.”

The testimony in the record comes from Mr. Yancey of Pinewood Utilities, Mr. Saks, the president and principal stockholder of appellee, who testified by deposition, and Mr. Goldberg, secretary-treasurer of appellee, who is also its attorney. Mr. Yan-cey testified largely about the contract and the operation of the Pinewood Utilities. He testified the $150.00 connection charges were paid to his company by checks from appellee.’ This $150.00 was to help defray the cost of a water production plant and the sewerage treatment plant. Also he testified at the time of the contract the parties discussed the possibility of annexation of the territory by the City of Houston. In what context such discussion was had is not stated but the evidence shows affirmatively that the lines were constructed in conformity to the City of Houston’s requirements.

Mr. Goldberg testified that the lots in the addition sold at an average price of $800.00 in addition to the $150.00 collected for the utility connection. He testified the operation of the subdivision had not been at a profit. “The water and sewer lines installed * * * have been taxed for all years subsequent to their installation by the State of Texas and the County of Harris.” There was introduced, as an example of the assessment for taxes by the State and County, a tax statement for 1961. The testimony does not show rendition in this fashion by the appellee or its representative. Mr. Goldberg does not testify, and we find no testimony elsewhere, that the taxes thus assessed were paid. We do note, however, that when appellant objected to the introduction of the statement, Mr. Goldberg, the attorney, who was then also a witness, stated it was not contended the City was bound by it, “but the contention is the intention of the retention of these lines. That is material and we think the payment of taxes through the years is evidence of intent on the part of plaintiffs as to ownership.” The statement does not reflect whether the taxes were paid or not. He further testified the cost of the lines and their installation was not carried on the books as an expense item but was capitalized and depreciated. There were about 12 lots in the addition north of the Bayou remaining unsold and in the whole addition there were 20 or 25 remaining unsold.

Mr. Saks testified, when he went to the F. H. A. to discuss approval of the addition for loans he was told the addition must have water and sewerage. All indebtedness owed by appellee has been paid off. Here it is noted Mr. Goldberg testified that at some time Mr. Saks put additional money in the corporation. How much this was is not shown. The price the lots were to sell for was supposed to take into consideration the cost of the land and the expense of operating the corporation and borrowing money. The cost of the water and sewer lines was one of the expenses the corporation had had. When they undertook to sell the lots they obligated themselves to the customer to furnish them lots that were served by water and sewer. If he had not the purchaser would not have gone through with the deal. Lakewood Estates has done no maintenance work on the lines. He had an idea the City would some day annex the addition. The engineer (apparently the private engineer in charge of installing the lines) checked at the City Hall and had the plans and specifications approved. The lines were installed for the purpose of providing water and sewer service to the members of the public who bought lots. Everybody out there is using them. The City is now doing just what Pinewood Utilities did, that is, supplying water and sewer service through the lines, the service being contracted for by the individual consumer who pays for the service to the appellant.

In addition to the testimony of witnesses, appellant introduced the various admissions made by appellee in response to request for admissions. The clear effect of the admissions is to establish that Mr. Saks, appellee’s predecessor, purchased raw land for the purpose and with the intent of platting, dedicating, developing and improving the land to such an extent that the subdivision would become eligible for F. H. A. insured home financing on houses that would be built on lots in the subdivision. Lots were sold with reference to the approved plat. All water and sewer lines were built to comply with requirements of the City of Houston. Since June, 1961 the City of Houston has furnished service to the customers in Lakewood Estates under individual contracts with the customers. In March, 1951, after correction of a drainage problem the subdivision became eligible for F. H. A. insured home loans. The water and sewer mains were laid in 1950 after the contract wtih Pinewood Utilities. Appel-lee was engaged in selling lots in the subdivision. Most of the lots sold have houses on them and are owned and occupied as residences by members of the public. After laying of the lines appellee represented to the buyers that water and sewer services; were available.

The trial court found appellee executed', no written instrument dedicating to the public the utility lines and appurtenances. It also found that appellee by its actions, showed a clear intention of retaining ownership of the utility lines and appurtenances. There were other findings not here-necessary to notice.

The basic position of appellee is there-was never any dedication of the lines to the public and that appellant had appropriated' the lines for public use and is obligated to-pay therefor.

The substance of appellant’s contentions is that by its action appellee dedicated the lines to the public and its assertion of any rights in the lines is repugnant to the grant;, that the asserted reservation of rights in the water and sewer lines that were intended to become a part of the City system eventually is contrary to public policy as it interferes with the appellant’s exercise of its police power; appellee has no corporate power to own the lines because beyond its charter powers; that by its action appellee is estopped to claim any interest in the lines; and, that appellant has not appropriated the lines without consent because it is doing just what Pinewood Utilities, its successors and assigns, were authorized to do under appellee’s contract of November 17, 1950.

The trial court’s judgment is undoubtedly based on its finding that appellee, as shown by the evidence, showed an intention to retain ownership of the lines and did not dedicate them to the public.

This finding is attacked by appellant as being without support in the evidence.

We are of the view that under all of the evidence, viewing it in the light most favorable to appellee, there is no more than a scintilla of evidence to support the trial court’s conclusion that appellee intended to retain title to the lines. Where there is no more than a scintilla of evidence there is no evidence of probative force. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

The evidence here establishes implied dedication. To be an implied dedication it must be shown that the owner intended to dedicate it to public use. This intent may be shown by unequivocal acts and declarations by the owner. It is the intent as reflected by declarations or acts and not a secret intent. Seaway Company, Inc. v. Attorney General of Texas, 375 S.W.2d 923 (C.C.A.), and authorities there cited, application for writ pending.

Appellee relies upon four alleged evidentiary facts to support an intention to retain title to the lines. First, it recites the provision in its contract with Pinewood Utilities providing that each party to the contract retains title to the lines that are laid and paid for by the respective parties. This was purely a reservation of title as between the parties to the contract so that neither would profit from ownership of a line paid for by the other party. If later differences arose between the parties, ap-pellee would then be in a position to make other arrangements for services to those who lived in Lakewood Estates. Secondly, appellee says it paid the connection fee for the lot owners. This assertion is not supported by the record. While the fee was paid by checks of appellee, the record shows the fee was collected by it from the lot owners. This is reflected by Mr. Goldberg’s testimony that the average price at which lots were sold was $800.00 plus the $150.00 utility charge. Thirdly, appellee asserts the payment to the State and County of ad valorem taxes on the lines. This assertion is not supported by the record. The record shows a tax statement issued by these taxing authorities. There is no evidence that the taxes were paid. Neither is there evidence that the statement was issued pursuant to any rendition made by appellee. The testimony merely shows an act of third parties and not one by appellee or its representatives. Appellee’s secretary-treasurer was a witness whose testimony reflected close acquaintance with appellee’s operations and he did not testify that the taxes as thus assessed were paid, nor did he testify to any rendition by appellee. He must have had this information available. Fourthly, appellee contends that the cost of the lines was set up on its books as a capital investment and depreciated for income tax purposes and this shows an intent to retain title as the Federal tax agents will not allow this unless title has been retained.

We do not know what the ruling of the tax authorities has been. Appellee’s reasoning is that where title is retained you must capitalize the investment; therefore, the fact that the cost is capitalized is evidence of the intention to retain title. This seems an effort to lift one by his own bootstraps. Appellee in this connection cites the case of Colony, Inc. v. Commissioner of Internal Revenue, 26 Tax Court 30. That case merely held that where title is reserved the cost of a utility system in a subdivision must be capitalized. Under the facts of that case there had clearly been a retention of title and the developer was in fact operating a private utility and charging for the service.

As we above stated, the alleged evi-dentiary facts relied on by appellee amount to no more than a scintilla of evidence.

When all the evidence is considered, it affirmatively establishes an implied dedication. The subdivision was developed with the intent to sell lots on which homes could be built that would be eligible for F. H. A. financing. In order to be eligible water and sewer service was required. The plat of the subdivision was made and the streets, and utility easements were dedicated to the public. The utility lines were not at this time installed. They were subsequently installed and purchasers of lots were told this service was available and Mr. Saks, the president, testified appellee was obligated to furnish purchasers this service. Then without any overt act reserving title to the lines, except as between appellee and Pinewood Utilities, appellee had the lines installed in the publicly dedicated easements, the water lines in the street and the sewer lines in the utility easements. This latter fact would not standing alone be sufficient to establish dedication, but considered with the facts that appellee was installing the lines so as to make these services available to members of the public who should buy lots and build houses, as distinguished from merely servicing rent houses belonging to him, is'evi-dentiary of intent to dedicate. Too, appellee did not intend to operate a utility system as in the above case and these services would be necessary long after appellee might sell all of the lots. Recognizing the necessity for these services in order to get F. H. A. financing, appellee made the contract with Pinewood Utilities to make the services available to the members of the public who built homes in Lakewood Estates. We have noted the reservation of title as between the parties to that contract, but that contract also provided that “the rights and benefits accruing and the obligations incurred * * * shall extend to the successors and/or assigns of the parties to this contract.” Appellee contemplated a successor to Pinewood Utilities and the obligation of such successor to service through these lines the general members of the public. This evidences an intent to dedicate the lines to the use of the members of the public living in Lakewood Estates.

The evidence further shows that appellee in determining the sales price of the lots considered all cost and expense including the cost of installing these lines, so that it, so far as the record shows, intended to be reimbursed for the lines. The fact that it may have figured too low a price and has not profited makes no difference. The fact it intended to obtain reimbursement from sale of lots to members of the public for whom the service was made available and not through operation of the system is evidence of dedication.

We are of the view that the case must be reversed because there is no evidence supporting the court’s finding of market value. Where property is taken for public use the measure of damages is the market value of the property taken. The evidence here merely gave the reproduction cost less depreciation. While the court concluded the market value was $29,293.60, there is no evidence to show market value. The evidence does not show that generally such property is sold and purchased in the market on the basis of reproduction cost less depreciation. Nor is there evidence showing such property does not have a market value. The evidence merely shows appellant on some occasions on a basis of individual contract has paid for utility plants on this basis. This does not establish market value. United States v. Buhler et al., 305 F.2d 319 (5th Cir.). It may be on retrial appellee can establish this to be market value, or, it may be that it can establish there is no market value generally for this type of property and therefore there is some other measure of damages.

Though we have held that the only evidence of probative force shows an implied dedication, we feel from what we do see in the record there is a distinct possibility that on another trial there may be development of facts which will raise a fact issue as to retention of title. For instance, it may be shown that in fact appellee paid taxes on the lines separate and apart from taxes on the land and that it rendered the lines themselves for taxes. Too, it may be shown that the discussion about the likelihood of the addition being taken into the City related to the thought that the City would then buy the lines and this would shed light on the meaning of the reservation of title made in the contract with Pinewood Utilities. If such is shown, we think there would be evidence of probative force from which the trier of facts could reasonably conclude there was no dedication. Therefore, we are of the view that the case was not fully developed and should be reversed and remanded instead of reversed and rendered.

In the light of another trial and considering some of appellant’s other contentions, we feel we should make some observations on the City’s authorities.

The facts here show appellee still owns some of the lots in the addition and, therefore, its implied power is not exhausted, as was the case of Moser v. Greenland Hills Realty Company, 300 S.W. 177 (C.C.A.), writ ref. However, even if it is beyond the charter power of a corporation to operate a utility system or to own lines used for such purpose, this does not mean the property can be appropriated for public use without compensation. This is only grounds for forfeiture of the charter or for the requirement that the property be disposed of. Houston Natural Gas Corporation v. Nueces County Water Improvement Dist. No. 1, 157 S.W.2d 170 (C.C.A.), no writ history.

The Moser case, supra, and the case of City of Beaumont v. Calder Place Corporation, 143 Tex. 244, 183 S.W.2d 713, were cases where from a fact standpoint the reservation of title to a sewer system that was voluntarily integrated, from the time of its initial construction, with the City system was contrary to public policy insofar as it prevented persons within the City but from outside the subdivision from using the facility, because it interfered with the City exercise of its police power. Despite some broader expressions in the Moser case, we think this is the construction of the holding given by the Supreme Court in the City of Beaumont case. Here we have no effort to deny persons outside the subdivision from utilizing the sewer lines.

In the cases of Hightower v. City of Tyler, 134 S.W.2d 404 (C.C.A.), writ ref., and City of Snyder v. Bass, 360 S.W.2d 426 (C.C.A.), ref., n. r. e., the City, at the request of the owners, at a time when the addition was outside of the city limits, began furnishing services through lines installed by the subdividers. After annexation the City continued to do exactly the same thing. There was therefore consent by the sub-divider. We have no such situation. The City, prior to the purchase of the Pinewood Utilities system, had no connection with the lines in Lakewood Estates. The City says on appeal, however, that it is just doing what Pinewood Utilities was doing by permission of appellee and the successors of Pinewood Utilities, under the contract, had a right to do. The City made no such contention in its pleading below. In its pleading and under the evidence the City did not assert consent by appellee. To the contrary, it by its pleading denied any ownership or right of control in appellee. It was asserting appellee had reserved no interest in the lines and as a matter of public policy could not do so.

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