author: MASSEY, Chief Justice.

text:
    Milton LEWIS et ux., Appellants, v. INVESTORS SAVINGS ASSOCIATION, Appellee.
    No. 16794.
    Court of Civil Appeals of Texas. Port Worth.
    Feb. 3, 1967.
    Rehearing Denied Peb. 24, 1967.

      W. B. Pope, Dallas, for appellants.
    Walter S. Fortney, Richard Owens, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

The suit, as same proceeded to trial before the court without a jury, resolved itself into one in simple trespass to try title. Such was the nature of the action of Investors Savings Association, as cross-plaintiff, against cross-defendants Milton Lewis and his wife. Abandoned by such time was the matter of indebtedness owing as between these parties and others who were former parties to the suit. Judgment in trespass to try title was for the Investors Savings Association. Milton Lewis and his wife appealed.

Judgment affirmed.

The property in question was contended to have constituted the homestead of Milton Lewis and his wife. When they obtained the first of the loans secured by the first of two Deeds of Trust, hereinafter mentioned, they signed an affidavit to the effect that the property was not their homestead. In our discussion we do not have occasion to find any applicable law decisive of the appeal which is affected by a consideration thereof. We treat the property as having always constituted these parties’ homestead.

It was this property which was the subject of sale under trust deeds. Actually there were two foreclosures and sales by trustees; the first sale was conducted under authority of the Deed of Trust which was the second trust deed executed (by Milton Lewis without joinder of his wife), and a few months thereafter a second sale was conducted under purported authority of the Deed of Trust which was the first trust deed (executed by both Milton Lewis and his wife).

In connection with the matter of validity of liens under Deeds of Trust upon "homesteads” in Texas, the law appears to have been established under antecedent decisions. Liens for taxes upon such property furnish validity to a Deed of Trust given in preservation of such a right, — as when the grantee in such security instrument has paid such as a part of the consideration therefor, — to the extent of the amount of taxes paid. W. C. Belcher Land Mortgage Co. v. Taylor, 212 S.W. 647 (Tex.Comm.App., 1919, opinion adopted); and other cases annotated in 28A Tex. Digest, “Mortgages”, "Right to foreclose”. However, when in such an instance the amount of the taxes so paid (and comprising the only “secured” amount of the trust deed) is less than the total thereafter paid upon the principal of the note and mortgage prior to the time of the foreclosure and sale under a trust deed given as security, such a trust deed is void and any sale conducted does not pass title to the "homestead”, the theory being that first application of said amounts paid on the obligation would be to that part of the principal used to pay the tax liens. Dallas Building & Loan Ass’n v. Henry, 98 S.W. 2d 1030 (Fort Worth Civ.App., 1936, writ dism.); Price v. McAnelly, 287 S.W. 77 (San Antonio Civ.App., 1926, writ dism.).

The case before us is one in which both a husband and wife gave a Deed of Trust to their “homestead” as security for a note and mortgage. There were liens accrued upon such property at the time of the execution of the .instrument, and implied as a part of the consideration therefor was the payment of taxes in extinguishment of the tax liens. In any event it was by direction or consent of Milton Lewis and wife that a part of the funds borrowed was applied in payment of the taxes. There was also a valid mechanic’s lien upon the property and a part of the consideration for the Deed of Trust was the extinguishment of said lien by payment. A distinction is to be made in the character of the two kinds of liens. Tax liens accrue involuntarily as applied to owners of “homestead” property, while mechanic’s liens accrue through voluntary action, i. e., become liens upon the property because of owners’ affirmative action. As applied to either character of encumbrance one, not a volunteer, who advances money to pay the same, under circumstances from which an understanding is to be implied that at least a part of the advancement made is to be secured by a first lien on the land encumbered, is sub-rogated to the rights of the prior encum-brancer under his security, unless superior or equal equities of others would be prejudiced thereby. Kone v. Harper, 297 S.W. 294 (Waco Civ.App., 1927) affirmed Ward Harrison Co. v. Kone, 1 S.W.2d 857 (Tex. Comm.App., 1928); Platte v. Securities Inv. Co., 55 S.W.2d 551 (Tex.Comm.App., 1932).

About nine months subsequent to the date of- the execution of the aforementioned original note and Deed of Trust (by both Milton Lewis and his wife) Lewis, without joinder and indeed without the knowledge of his wife, executed a new note and trust deed upon the same property for an additional consideration. Such property was and remained the “homestead”. Newly accrued as a lien upon the property during the aforementioned nine months period was a tax lien in the amount of $110.98. Such was the only new and valid lien against the property. Subsequent installment payments — upon the second note — exceeded said amount of $110.98, which had been paid at the time of and pursuant to fund distribution incident to consummation of the new loan.

In the second trust deed (executed only by Milton Lewis) was the recitation: “The note hereby secured is given in renewal and extension of the balance remaining unpaid on that one certain note, dated August 5, 1963, in the original principal sum of $2,-000.00, executed by Milton Lewis and wife, Ethel Bell Lewis, payable to the order of W. E. Lester, described in and secured by deed of trust of even date therewith to Hampden Spiller, Trustee, recorded in Volume 1729, page 275, of the Deed of Trust records of Tarrant County, Texas, and beneficiary herein having advanced the money necessary to pay off and satisfy the owner and holder of said note and lien at the special instance and request of the grantor herein, said beneficiary is hereby subrogated to all rights, liens, equities interests and remedies created or preserved in said note or lien, all of which are hereby continued in full force and effect in favor of said beneficiary, and the balance evidences a straight loan of money made by Beneficiary to Grantor at his special instance and request.”

As a newly created lien under the second trust deed the grantee therein rightfully succeeded to the amount of $110.98 under Vernon’s Ann.Tex.St. Art. 7345a, “Transfer of tax lien”, and to that extent it had validity. Or the same thing may be said to have resulted from Milton Lewis’ contract (the second Deed of Trust). Fest v. Williams, 89 S.W.2d 1072 (San Antonio Civ.App., 1935, no writ hist.). In view of the application properly made as applied to principal in subsequent installment payments on the note we might treat such as extinguished in view of the fact that they exceeded $110.98. Were the lien for these taxes the only lien existent the first foreclosure would have been void and the trustee’s sale invalid for that reason. Dallas Building & Loan Ass’n v. Henry, supra.

However, there continued owing a portion of that amount paid by the lender upon taxes pursuant to disbursements made at time of the execution of the first note and trust deed. Such having been transferred to and become a valid lien securing the grantee of said first Deed of Trust (pursuant to payment of the taxes according to consent and implied direction of both Milton Lewis and his wife) they supported not only the first of such instruments, but also the second Deed of Trust given in extension and renewal. That is, support was provided to the extent thereof remaining unpaid. In other words the existence of valid unpaid tax liens, merged into both notes and both trust deeds, was sufficient occasion to prevent either from being treated as void “in toto”. Being in part valid, neither instrument should be declared wholly void.

Though a husband may not validly renew and extend a mechanic’s or material-man’s lien created by the action of both husband and wife after the homestead rights are completely vested, he may validly renew and extend tax liens whether existent prior to the complete investiture of the homestead rights or thereafter accrued. Uvalde Rock Asphalt Co. v. Hightower, 140 Tex. 200, 166 S.W.2d 681, 143 A.L.R. 1366 (1942). It follows that in the renewal and extension (the second Deed of Trust) the lien for taxes was carried forward though the mechanic’s lien was not. This mechanic’s lien was not extinguished, however. It continued as secured by the first Deed of Trust.

The second trust deed was valid, at least in part, as of the time of foreclosure and sale by trustee. There having been no intent to extinguish the first note and Deed of Trust by the parties to the transaction whereby there was executed a second note and Deed of Trust, and there having been no consideration therefor in any event,— and there having been no limitation inhibition as to that mechanic’s lien which was good as applied to the first and original note and Deed of Trust, — the amount owing thereon, legitimately supported even after first application of payments made upon principal to the portion representing the tax and mechanic’s liens, continued the validity of said originally executed Deed of Trust. If the foreclosure and sale first held be treated as ineffective the second foreclosure and sale would be effective. As indicated, we are of the opinion that the first was effective. ■

However, Milton Lewis and his wife were not prejudiced in any event. Foreclosure and sale by the trustee under either instrument would be valid (though the mortgage holder might have been entitled to a few dollars more of the proceeds realized from a sale under the first Deed of Trust than from a sale under the second, in view of the fact that there was protection to the amount of the mechanic’s lien under the first and not under the second). There could have been an extinguishment of liabilities of the first Deed of Trust upon lawful consideration. But there was neither contract for its cancellation nor any consideration therefor. Rights under such trust deed persisted and it remained a contract upon which rights were enforceable despite the transaction pursuant to which the second Deed of Trust was executed.

As indicated there were two transactions of foreclosure and sale. The one first held was under authority of the second Deed of Trust. A few months thereafter the second was held under authority of the first. Obviously the second transaction was undertaken in an abundance of precaution in view of possibility of court decision that the first was invalid. Purchaser at both sales was Investors' Savings Association.

At no time did Milton Lewis or his wife ever make any tender. A sale made under a Deed of Trust for a sum larger than the amount with which the property is properly chargeable is not void, and a power of sale in such deed can be effectively exercised if any part of the debt is due, owing, and secured by a valid lien on the property ; and as applied to valid indebtedness owing, secured by valid lien, a remedy of the mortgagor is to offer to pay what is legally due before the sale of the mortgaged property, and, if tender is rejected to restrain the sale by injunction and seek an adjudication in adjustment of equities. We do not believe that there was any duty on the part of Investors Savings Association to invite such action by the Lewises.

It has been furthermore stated: “But if the mortgagor, with full notice, sits quietly by and without objection permits the mortgagee,, through the trustee, to sell the land under the terms of the mortgage, he cannot question the validity of such sale, or the title thus passed to the purchaser by the trustee’s deed. If such sale is regularly made in accordance with the provisions of the mortgage, and the whole estate is sold for more than the amount of the legal debt, then, in a proceeding brought by the purchaser to enforce his title thus obtained, we see no reason why the mortgagor could not, by way of cross-action, recover the excess obtained in the sale over the amount of the legal debt chargeable against the property sold. * * Price v. McAnelly, 287 S.W. 77, 81 (San Antonio Civ.App., 1926, writ dism.). It is to be' noticed that in the case from which we have quoted it was a Mrs. Price, mortgagee, who bought in the property, and the suit was by her in trespass to try title against the mortgagor, following sale of the property under a Deed of Trust.

As heretofore noted the nature of the case at the time it went to trial was a simple suit in trespass to try title to real estate, cross-plaintiff being Investors Savings Association and the cross-defendants being Milton Lewis and his wife. The matter of adjustment of equities was not involved in the litigation.

It is contended by Milton Lewis and his wife that the amount of the brokerage fees, commissions and other charges paid out of the proceeds of the loans obtained, individually and collectively, should have been treated as paid upon and for the retirement of those parts of their debt applicable to legitimate liens such as tax and mechanic’s liens. Their contention is that with such done all proper support for the trust deeds would have been thereby extinguished so that the deeds and sales conducted thereunder would have been wholly void. It was by consent or direction of Milton Lewis, or of Lewis and his wife, that said payments were made. To do this was their right. They possessed the right to contract that installment amounts first paid on indebtedness be applied upon that part of the principal debt not arisen or existent because of the amounts advanced in extinguishment of the tax and mechanic’s liens. It is only because they did not do so that equity “seizes upon” the matter and makes it proper for courts to make application of amounts thereafter paid upon the principal to the retirement of existent lien support — before any application to the remaining indebtedness.

Milton Lewis and wife grounded their defense upon a contention that both trustee’s sales were void, i. e., of no legal force or effect. Our holding is against such contention.

Judgment is affirmed.


source: Caselaw Access Project

author: DAVIS, Justice.

license: Public Domain

text:
    Kenneth FISHER, d/b/a the East Texas Auto Auction, Appellant, v. H. C. ELKINS et al., Appellees.
    No. 7789.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 13, 1966.
    Rehearing Denied Dec. 27, 1966.
    W. G. Walley, Jr., Beaumont, for appellant.
    Howard Carney, Jr., Carney & Mays, Atlanta, for appellees.
   DAVIS, Justice.

A venue case. Plaintiff-appellees, H. C. Elkins, E. T. Elkins and H. C. Partain, doing business as Elkins Used Cars, in Cass County, Texas, sued defendant-appellant, Kenneth Fisher, a resident of Jefferson County, Texas, and defendants East Texas Auto Auction, Inc., and W. C. Perry, for the possession of two 1964 Oldsmo'bile cars. Appellees alleged that Perry, a resident of McAllister, Oklahoma, came to their place of business in Atlanta, Texas, with the apparent intention of purchasing the cars. They alleged that he did through fraudulent misrepresentation acquire possession of the cars and carried them back to the State of Oklahoma. That appellees drew drafts on Perry for the cars with the certificates of titles attached. The drafts were returned marked “no attention”. They further alleged that Perry sold the cars to defendants Fisher and The East Texas Auto Auction; that Fisher and East Texas Auto Auction did not obtain legal or valid titles to the same; and, that they had knowledge, or should have known of the improper action by the defendant Perry in securing fraudulent titles in the State of Oklahoma.

Kenneth Fisher filed a plea of privilege. The plea was controverted. The venue hearing was before the court who overruled the plea of privilege. Fisher has perfected his appeal and brings forward two points of error.

By the first point, appellant says the trial court erred in overruling his plea of privilege for the reason that appellees wholly failed to allege any factual grounds rendering applicable any statutory exceptions to the basic statutory rule that no person who is an inhabitant of this State shall be sued out of the county of his domicile. Appellees allege that Perry was a resident of Oklahoma, that the cars had been fraudulently acquired, that the cars had been transferred to appellant; that appellant had knowledge, or should have had knowledge of the fraudulent acquisition of the cars by Perry. Appellees sued for possession of the cars, or their value. The allegations are sufficient to sustain venue in Cass County, Texas, and were proved before the court. Perry, being a resident of the State of Oklahoma, could be sued in Cass County, Texas. Art. 1995, Sec. 3, Vernon’s Ann.Rev.Civ.St. Since this is a suit for the possession of property, the appellant is a necessary party to the suit. Pioneer Building & Loan Association v. Gray (Tex.Com.App.1939), 132 Tex. 509, 125 S.W.2d 284. Since appellant is a necessary party to the suit, it seems that the pleadings are sufficient to support the judgment of the trial court. Therefore, appellant can be sued in Cass County, Texas, by virtue of Art. 1995, Sec. 3, and Sec. 29a, V.A.R.C.S. Clingingsmith v. Bond (1951), 150 Tex. 419, 241 S.W.2d 616. The point of error is overruled.

By his second point, appellant says the trial court erred in overruling his plea of privilege for the reason that appellees wholly failed to establish by competent evidence any fact, or facts, rendering applicable in the statutory exceptions to the basic statutory rule that no person who is an inhabitant of this State shall be sued outside of the county of his residence. A careful examination of the Statement of Facts, shows the appellees proved the purported sale of the cars to Perry; that Perry took said cars to Oklahoma; that he secured bogus certificates of title; that he transferred the cars to appellant; that appellant knew, or should have had knowledge of the fraudulent transfer of the cars from Perry to appellant; that appellant knew that appellees had the original certificates of title; that appellees knew that appellant had purchased the cars and either had possession of same, or had disposed of same; that appellant told ap-pellees that he would “work something out”, in regard to the cars; that Perry is a resident of the State of Oklahoma; that appellant told appellee that he “would see that nothing happened to the cars; and, that appellant would see that they got their money.” By way of admissions, appellant admitted that he had talked with Perry concerning the purchase of the cars; and appellant admitted purchasing said cars.

It seems that all the facts necessary to be proved in a venue case were proved in this case. Under the pleadings, and facts proved, the case is properly maintainable in Cass County, Texas. Art. 1995, V.A.R C.S., Secs. 7 and 9, and 29a. Although the following authorities are not exactly in point, they, in effect, hold that this decision is correct. McDonald v. Peebles (CCA 1954), 267 S.W.2d 476, n.w.h.; Stripling v. Hoing (CCA 1947), 203 S.W.2d 1016; Shook v. Hoefs (CCA 1957), 302 S.W.2d 446, n.w.h.; Tanner v. Jackson (CCA 1952), 246 S.W.2d 319, n.w.h.; Pacific Finance Corporation v. Crouch (CCA 1951), 243 S.W.2d 432, n.w.h. The point is overruled.

The judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Appellants, v. TEXAS NATIONAL BANK OF HOUSTON, Texas, Garnishee, Appellee.
    No. 6834.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 8, 1966.
    On Motion for Rehearing Nov. 16, 1966.
    Orgain, Bell & Tucker, McGinnis, Nathan & Sibley, Beaumont, for appellants.
    Wells, Duncan & Beard, McNicholas & Crawford, Beaumont, Andrews, Kurth, Campbell & Jones, Houston, for appellee.
   STEPHENSON, Justice.

This is an action arising out of a writ of garnishment. The real issue involved is the ownership of stock. The case was tried before the court upon an agreed statement of facts. Judgment was rendered that Robert L. Damrel, hereafter called “Dam-rel”, was the owner of the stock, and discharging the Texas National Bank, hereafter called “Bank” as garnishee. The parties will be referred to herein by the abbreviated names assigned to them.

Merrill Lynch, Pierce, Fenner & Smith, Inc., hereafter called “Merrill Lynch” filed an application for a writ of garnishment against the Bank upon a judgment it had obtained against Robert T. Lee, hereafter called “Lee”. Such judgment was dated August 9, 1962. The application for the writ of garnishment was filed August 28, 1962. October 16, 1962 the Bank filed an answer, alleging that it had a checking account in the name of “Robert L. Damrel and R. T. Lee — B & B Account” containing a balance of $1.85. It also answered that it held certain shares of stock under pledge, some in the name of Robert T. Lee, Robert L. Damrel and William & Edgar, some in the name of Robert T. Lee and Robert L. Damrel, some in the name of Robert L. Damrel, and some in the name of Robert T. Lee. The Bank also answered that all of such stock was pledged to secure all' indebtedness owed to the Bank by Robert T. Lee and Robert L. Damrel, either jointly or individually. The Bank further answered that it had in its possession a copy of an assignment dated January 8, 1962 from Lee to Damrel, conveying all interest owned by Lee in such stock to Damrel. Damrel intervened in this suit and claimed title to the stock involved under such assignment. A copy of this assignment is set out as follows:

“January 8, 1962
TO WHOM IT MAY CONCERN:
This is to advise that I, Robert T. Lee, for the sum of Ten Dollars ($10.00) and other good and valuable considerations, do hereby sell, grant and convey to Robert L. Damrel, all of my interest in stocks held in our joint account, known as ‘Tenants in common’ and also all of my personal stocks presently held as collateral by the Texas National Bank, Houston, Texas, that are on a joint note with Robert L. Damrel.
Signed this 8th day of January, 1962.
/s/ Robert T. Lee Robert T. Lee”

It was agreed in the statement of facts that all of the stock certificates were de-' livered to the Bank at the time they were pledged, together with signed stock powers, and have been in the Bank’s possession at all times relevant to this cause of action.

It is the contention of Merrill Lynch first that the purported assignment of January 8, 1962 from Lee to Damrel did not effectively transfer the title to the stock because there was no delivery of the certificates. Art. 1302-6.02, Vernon’s Ann. Civ.St., is cited as authority for this position. This statute prevailed before the Uniform Commercial Code became effective June 30, 1966. Such Article read as follows:

"How Title Transferred
A. Title to a certificate and to the shares represented thereby can be transferred only:
(1) by delivery of a certificate endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby; or
(2) by delivery of the certificate and a separate document containing a written assignment of the certificate or the power of attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney may be either in blank or to a specified person.”

It is argued that title to stock can pass only by delivery of the certificates themselves, either endorsed by the owner or by a separate assignment by the owner. It is further contended that the purported assignment of January 8, 1962 from Lee to Damrel constituted a mere promise to transfer the title to the stock under Art. 1302-6.11, V.A.C.S. which read as follows:

"Attempted Transfer Without Delivery as Promise to Transfer
A. An attempted transfer of title to a certificate or to the shares represented thereby without delivery of a certificate shall have the effect of a promise to transfer and the obligation, if any, ■ imposed by such promise shall be determined by the law governing the formation and performance of contracts.”

We do not find it necessary to pass upon this second contention. We hold that the circumstances of this case constitute “delivery” of the certificates of stock within the meaning of the statute. We do not believe that manual handing of these certificates by Lee to Damrel was necessary in order to pass the title to the stock certificates. At the time the stock certificates were pledged by Lee to secure the indebtedness due the Bank such certificates were accompanied by stock powers. The written assignment from Lee to Damrel completed the transfer of the title to the stock certificates. There is nothing in the statute that requires the delivery of the stock certificate by the owner of the stock directly to the transferee. We interpret the case of Hart v. Ehlers, Tex.Civ.App., 319 S.W.2d 418, to mean that the placing of certificates of stock in escrow, properly signed, constitutes “delivery” under the statute.

The question as to whether such transfer of the stock certificates was to defraud Merrill Lynch has not been adjudicated in the action and still is a subject which may or may not be litigated.

The trial court properly ordered that the Bank should recover its attorney’s fees from Merrill Lynch, under Rule 677, Texas Rules of Civil Procedure. The amount of the funds found being $1.85 was inadequate to pay such attorney’s fees.

We find no legal basis for that portion of the judgment of the trial court awarding Damrel 6% interest on value of the stock from the date of such judgment until paid against Merrill Lynch. The judgment is reformed to delete such portion of the judgment.

We find the remaining points of error to be without merit and they are overruled.

While this case was pending in this court, an agreed motion was granted substituting Citizens National Bank of Beaumont for Texas National Bank of Houston as a party to this suit.

Reformed and affirmed.

ON MOTION FOR REHEARING

Merrill Lynch has pointed out to this court, with greater emphasis, that there is nothing in the agreed statement of facts to show the date that the assignment from Lee to Damrel was delivered to the Bank. It is argued that the answer of the Bank in this garnishment proceeding shows only that such assignment was in the Bank’s possession at the time the answer was filed, and that no mention is made as to the date it was received, or that it was received before the Bank was served with the writ of garnishment. An examination of the record confirms this contention, for which reason this cause must be reversed. In the interest of justice, this cause is remanded to the trial court for another trial of all issues raised, during the course of which trial the date of delivery to the Bank of such assignment shall be ascertained.

Reversed and remanded.


author: PHILLIPS, Chief Justice.

text:
    E. E. NAUMANN, Appellant, v. URBAN RENEWAL AGENCY OF the CITY OF AUSTIN, Appellee.
    No. 11465.
    Court of Civil Appeals of Texas. Austin.
    Feb. 8, 1967.
    Rehearing Denied March 1, 1967.

      Hardy Hollers, Austin, for appellant.
    Johnson, Jones & Sheppard, Paul D. Jones, Pearce Johnson, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellee Urban Renewal Agency of the City of Austin filed its Original Petition of Eminent Domain in the County Court of Travis County, Texas, on June 22, 1965, to acquire the fee simple title to certain property belonging to appellant for the purpose of clearing said property for redevelopment and re-use by the Urban Renewal Agency of the City of Austin, in connection with the Urban Renewal Project, designated Kealing Project.

Special commissioners were appointed by the County Judge as required by statute to assess the damages and the award of said commission was filed on August 31, 1965. On the same date, appellee filed a motion to deposit the amount of the award of the special commissioners and to obtain possession of the property. On September 13, 1965, appellant filed his objections to the decision of the commissioners on the ground that the award was wholly insufficient and did not represent the amount of true and proper damages suffered by appellant by reason of taking of said land by said condemnation proceedings. Said case was submitted to trial by jury on March 7, 1966, and on April 5, 1966, judgment was entered by the trial judge and an award made to appellant based upon the findings of the jury. It is from this judgment that appellant has perfected his appeal to this Court.

We affirm.

Appellant is before this Court with six points of error, briefed together, which are the error of the trial court in charging the jury to determine the market value of appellant’s land, including improvements, on or about August 31, 1965 because in fixing the value of same as of this date constituted a taking of appellant’s property in violation of Tex.Const. art. 1, Sec. 17, Vernon’s Ann. St., providing, “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made;” the error of the court in overruling appellant’s motion in limine to suppress any evidence of the market value of appellant’s property as of the date of taking as provided by Vernon’s Ann.Tex.Rev.Civ.Stat. art. 3265, Subd. 2, for the reason that to fix the market value of appellant’s property as of the date of taking would constitute a taking of appellant’s property in violation of Tex.Const. art. 1, Sec. 17; the error of the court in overruling appellant’s objections and exceptions to the main charge of the court in failing to instruct the jury to determine the market value of appellant’s property immediately prior to May 13, 1963, the date the City of Austin adopted by resolution said plan for urban renewal of the Kealing project; the error of the court in sustaining appellee’s motion to suppress which deprived appellant from adducing in evidence loss of rentals, reduction in loss of income, and loss of tenants for the reason that this type of evidence is material to establishing the market value of such property without the diminution of such value on account of the taking by the Urban Renewal Agency; the error of the court in instructing the jury to determine the market value of appellant’s property as of August 31, 1965, the date of taking, resulted in an unreasonable and unjust award, and in effect, constituted a taking of appellant’s property without adequate compensation in violation of the above-mentioned article and section of the Texas Constitution; that Vernon’s Ann. Tex.Rev.Civ.Stat. art. 3265, Subd. 2, is in conflict with Tex.Const. art. 1, Sec. 17, if it is to be construed that the market value of appellant’s property shall be determined as of August 31, 1965, the date directed in special issue Number one of the court’s main charge to the jury.

We overrule these points.

In the first place, the date submitted by the court to the jury, August 31, 1965 as being the date determinative of the market value of appellant’s land was correct under Vernon’s Ann.Tex.Rev.Civ.Stat. art. 3265, Subd. 2 and such provision is not in conflict with Tex.Const. art. 1, Sec. 17. Uehlinger v. State, 387 S.W.2d 427, (Tex. Civ.App.Corpus Christi—1965, writ ref’d, n. r. e.). In the second place, there is no evidence in the record, either offered or presented, as to the value of the property in question at any date other than the date of taking.

We also hold that the trial court correctly sustained appellee’s motion in limine to suppress any evidence or allusion by appellant relating to any loss of income by reason of loss in rentals or reduction in rental income as a result of the impending condemnation of appellant’s property by appellee. See this Court’s opinion in State v. Vaughan, 319 S.W.2d 349, (Tex.Civ. App.—1948, no writ).

The judgment of the trial court is affirmed.

      . “When the whole of a tract or parcel of a person’s real estate is condemned, the damages to which he shall be entitled shall be the market value of the property in the market where it is located at the time of the hearing.”


author: DENTON, Chief Justice.

text:
    Ralph HUTCHINSON, Appellant, v. MILLERS FLYING SERVICE, INC., Appellee.
    No. 7675.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 30, 1967.
    Rehearing Denied Feb. 27, 1967.
    Lemon, Close & Atkinson, Perryton, R. D. Lemon, Perryton, of counsel, for appellant.
    LaFont, Tudor, Tunnell, Formby & Reep, Plainview, Bill LaFont, Plainview, of counsel, for appellee.
   DENTON, Chief Justice.

This is an appeal from an order overruling appellant’s plea of privilege to be sued in Lipscomb County, the county of his residence. Appellee, Millers Flying Service, brought suit in the County Court of Hale County against Ralph Hutchinson to recover on a sworn account and in the alternative on a cause of action of fraud based on the misrepresentation of appellant that he would pay for the airplane radio when it was installed. Plaintiff’s controverting affidavit asserted venue in Hale County under Subdivision 7 of Article 1995, Vernon’s Ann.Civ.St., the exception relating to fraud. Appellee’s controverting affidavit asserts only tthe alternative cause of action of fraud.

Marlin Miller, one of the owners of the appellee company, was the only witness. In the latter part of 1965 or early January of 1966 Miller and Hutchinson traded airplanes. Shortly thereafter, Hutchinson called Miller in Plainview from Amarillo and informed him of some difficulty he was having with the radio in the airplane he acquired from appellee. Miller then agreed to sell him a new radio at a reduced price as they felt obligated to “stay behind that radio”. Miller then sent a new radio by bus to Amarillo where a Mr. Carpenter, a radio man, installed it in Hutchinson’s plane. Miller testified: “I told him we would (sell the radio to him) except that he would have to pay for it before he left with it and that I would ship it up on the bus and Mr. Carpenter would get the money from him for this new radio; and I even went so far as to talk with Mr. Carpenter after I talked with Mr. Hutchinson, to tell him that was a condition, that he would have to have the money in his hand before we let him leave with the new radio.” This occurred on January 27, 1966. When Carpenter installed the new radio on that date Hutchinson left a check with Carpenter in the amount of $350.00, the agreed purchase price, payable to Miller. Hutchinson then flew to Dallas and returned to Amarillo some two days later. He again telephoned Miller and informed him the new radio was not working properly and asked if another radio could be provided for a trip he was to make to California. Miller sent a second new radio to Carpenter in Amarillo in exchange for the first new one, which he then installed in Hutchinson’s plane. On February 1, some two days after the second radio was installed, an employee of Millers was in Amarillo and took the check given to Carpenter on January 27. Appellee then deposited the check for collection through the usual banking channels. When it reached the bank in Perryton, the bank upon which it was drawn, it was not paid because Hutchinson had directed that bank to stop payment on the check. The check was returned to Miller on February 11. Miller testified he had no other conversations with Hutchinson after the second radio was installed. Efforts by Miller to contact Hutchinson to collect the money on the check failed and they finally wired him to either return the radio or “send us a cashier’s check”. Hutchinson replied by telegram that Miller could contact his attorney.

It is settled that in order to maintain venue under Subdivision 7, the burden is on the plaintiff to allege and prove a false representation made by the defendant ; the reliance thereon by the plaintiff; action and reliance on such misrepresentation; and damages resulting to the plaintiff. Madison v. Harper (Tex.Civ. App.) 395 S.W.2d 842; Trinity Universal Insurance Co. v. Soliz (Tex.Civ.App.) 241 S.W.2d 625.

The misrepresentation alleged was that Hutchinson represented “that such check would be paid” by the drawee bank. In order to prove actionable fraud the evidence must support the trial court’s implied finding that Hutchinson had no intention of paying the check at the time he secured the radio. McDonald v. Peebles (Tex.Civ.App.) 267 S.W.2d 476; Waller Peanut Co. v. Lee County Peanut Co. (Tex.Civ.App.) 209 S.W.2d 405. There is no evidence in this record to support this implied finding. In fact, the circumstantial evidence and reasonable inferences from Miller’s own testimony tends to support the contrary conclusion. Hutchinson gave the check in controversy at the time the first new radio was installed. He used it two or three days at which time another new radio was installed. Complaints were made that neither radio worked properly. There is no evidence when or why Hutchinson issued his stop payment order. We conclude there is no evidence that actionable fraud was committed.

The judgment of the trial court overruling appellant Hutchinson’s plea of privilege is hereby reversed and judgment entered directing the clerk to transfer the cause to the County Court of Lipscomb County, Texas.


author: WILSON, Justice.

text:
    Helen SPENCER et al., Appellants, v. H. J. WEAVER et al., Appellees.
    No. 4568.
    Court of Civil Appeals of Texas. Waco.
    Feb. 9, 1967.
    Kelley, Looney, McLean & Littleton, Ralph L. Alexander, Edinburg, Phillip Cyphers, Pasadena, Barnes & Elick, Charles Elick, McAllen, for appellants.
    William H. Scott, Jr., Phelps, Kilgarlin & Snell, Jim S. Phelps, Houston, for ap-pellees.
   OPINION

WILSON, Justice.

Venue aspects of this non-jury plea of privilege appeal were once decided by us. Acme Finance Company v. Weaver, Tex. Civ.App., 401 S.W.2d 259, writ dism. We will not repeat the facts there summarized. The pleadings leading to that first appeal alleged Acme Finance Company was a corporation, and the allegation was not denied.

After that appeal was disposed of Helen Spencer and M. L. Wagner filed a suit in another county in which they asserted Acme was a partnership and they were the partners. Plaintiff Weaver then filed an amended petition in the original suit in which Acme was alleged to be a partnership, and Spencer and Wagner were made defendants as the partners. This appeal results from the overruling of their pleas of privilege. Again there are no pleadings of denial of existence of the partnership as provided by Rule 93(f), Texas Rules of Civil Procedure.

Plaintiffs’ cause of action is alleged to be based on conspiracy. Acme is averred to be a co-conspirator, and there is evidence of probative force from which it could be properly found that Acme and the constituent partners were such, and engaged in the conspiracy alleged.

Absent a verified denial of the alleged partnership, the averments are taken to be true as against the pleas of privilege. Rule 86, Texas Rules of Civil Procedure; Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758, 763. The record reflects appellants are necessary parties, and venue is maintainable under Subd. 29a, Art. 1995, Vernon’s Ann.Civ.Stats.

Affirmed.


author: BARROW, Justice.

text:
    Faustino C. ROSAS et al., Appellants, v. Dorothy SHAFER et al., Appellees.
    No. 14544.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 28, 1960.
    Rehearing Denied Feb. 1, 1967.
    Jack M. Glover, Galveston, for appellants.
    Groce, Hebdon, Fahey & Smith, Edward P. Fahey, San Antonio, for appellees.
   BARROW, Justice.

Appellants, Faustino C. Rosas, his wife, Francisca Rosas, and their two minor children, Evangalene Rosas and Andrew Gilbert Rosas, by next friends, brought this suit against Dorothy Shafer and Kathleen Franklin, Administratrices of the Estates of Martin Luther Bunn and Fannie Elizabeth Bunn, to recover for damages sustained in an automobile collision. A take-nothing judgment was rendered on the jury verdict.

On August 23, 1964, at about 7:00 p. m., an automobile owned by Faustino Rosas, which was operated by Gilbert and occupied by Evangalene, was involved in a collision on State Highway 16, just inside the City limits of Kerrville, Téxas, with an automobile operated by Martin Luther Bunn and occupied by his wife, Fannie Elizabeth Bunn. As a result of this collision, Martin and Fannie Bunn sustained fatal injuries, and Gilbert and his sister, Evangalene, sustained personal injuries.

The jury verdict exonerated Martin Bunn from negligence and established that the negligence of Gilbert in two respects was the proximate cause of the collision. The jury also found that the two Rosas children were on a joint venture. The take-nothing judgment is therefore supported on two premises: 1. Appellants have failed to meet their burden of proof to secure findings that Martin Bunn committed one or more acts of negligence proximately causing the collision. 2. Ap-pellees secured findings that the negligence of, Gilbert proximately caused the collision and this negligence is imputed to Evanga-lene and those seeking recovery through her by reason of the finding of joint venture.

Appellants seek a reversal and remand of the case upon four points of error:

“FIRST POINT. The court erred in overruling plaintiffs objection to Special Issue No. 20 in that as a matter of law Andrew Gilbert Rosas and his sister, Evangalene Rosas, could not have been legally on a joint venture or enterprise. Further, the finding of the jury to said Special Issue No. 20 is not supported by the evidence, because of the undisputed facts and testimony.
“SECOND POINT. The finding of the jury in response to Special Issues Nos. 1, 2 and 3, are not supported by the evidence, because there is no evidence that defendant kept a proper lookout.
“THIRD POINT. The findng of the jury in response to Special Issues Nos. 4, 5, 6 are not supported by the evidence, because there is no evidence that defendant gave warning before making the left turn in front of plaintiff’s automobile.
“FOURTH POINT. The court erred in admitting the testimony of witness, Adley French, over objection by plaintiff.”

It is seen that only the fourth assignment of error applies to both premises in support of the take-nothing judgment. Under this point appellants complain that the witness French was permitted to testify over their objection “that the said Martin Luther Bunn was a religious man and a good man and an old-time boyhood friend, and he missed him very much.”

Appellants do not direct our attention to any specific part of the statement of facts wherein these answers were given, as required by Rule 418, Texas Rules of Civil Procedure. However, we have carefully examined the entire testimony of the witness French and there is no answer setting forth any of the testimony complained of by appellants except the fact, admitted without objection, that French had known Mr. and Mrs. Bunn since 1920. The only evidence before the jury of the nature complained of by appellants came in a statement from appellants’ counsel wherein he said: “Plaintiff will concede that Mr. and Mrs. Bunn were very, very fine, old folks.” They cannot complain of this statement made by their counsel. Reversible error is not shown by this assignment of error.

Appellants make no complaint of the findings by the jury that the negligence of Gilbert Rosas proximately caused the collision, but do assert, under their first assignment of error, that the court erred in submitting the issue on joint enterprise, in that, as a matter of law, Gilbert and Evangalene were not on a joint enterprise. Under this point, appellants argue: “We submit, as a matter of law, under the Texas ‘right to control’ test, that Evangalene Rosas could not have been on a joint enterprise with her brother, Andrew Gilbert Rosas.” Appellants thereby assert a “no evidence point of error. McDonald v. New York Central Mutual Fire Ins. Co., 380 S.W.2d 545 (Tex. 1964); Houston Maritime Ass’n. v. South Atlantic & Gulf Coast Dist., Tex.Civ.App., 367 S.W.2d 705, no writ; Schafer v. Stevens, Tex.Civ.App., 352 S.W.2d 471, no writ; Mayflower Investment Co. v. Stephens, Tex.Civ.App., 345 S.W.2d 786, writ ref’d n. r. e.; Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361.

An examination of the record before us does not demonstrate that this “no evidence” point has been properly preserved by appellants. A “no evidence” point must be related to one or more of the following procedural steps in the trial court: (a) motion for instructed verdict; (b) objection to the submission to the jury of a vital fact issue; (c) motion for judgment notwithstanding the jury’s verdict; (d) motion to disregard the jury’s answer to a vital fact issue. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, supra.

Although appellants’ point refers to their objection to the submission of this issue, no objection to the court’s charge has been brought forward in the record. The transcript does not contain a motion for instructed verdict, any objections to the court’s charge, a motion for judgment non obstante veredicto, or a motion to disregard the jury’s answer to any issues. The statement of facts reflects that appellants’ counsel started to dictate a motion for instructed verdict to the court in the presence of the jury at the close of all the evidence. Appellees’ counsel objected, and the jury was withdrawn. The record then reflects: “The jury left the Courtroom and the Court took up the motion.” There is nothing in the record to indicate what, if anything, was presented, or the action of the court. Under this record it cannot be said that appellants’ “no evidence” complaints are supported by a motion for instructed verdict duly presented to the trial court.

Since there is no proper predicate to preserve an assignment of error complaining that, as a matter of law, Gilbert and Evangalene Rosas could not have been on a joint enterprise, appellants cannot now assert same. City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 81 A.L.R. 2d 1180 (1960); Garwood, The Question of Insufficient Evidence on Appeal, 30 Texas L.Rev. 803, 809. The take-nothing judgment is fully supported by the finding of joint enterprise since the negligence of Gilbert is thereby imputed to Evangalene and those claiming through her. El Paso Electric Co. v. Leeper, 60 S.W.2d 187 (Tex. Comm’n App.). It is therefore unnecessary to discuss the failure of the jury to find negligence against Martin Bunn proximately causing the collision.

The judgment of the trial court is affirmed.

      . The controlling jury findings:
      1. Martin Bunn did not fail to keep a proper lookout.
      2. & 3. Issues on negligence and proximate cause conditionally submitted. and unanswered.
      4. Martin Bunn did not turn to the left in front of plaintiff’s automobile without any warning.
      5. & 6. Issues on negligence and proximate cause conditionally submitted and unanswered.
      12.Gilbert Rosas was operating the 1956 Chevrolet at a negligent rate of speed .on the occasion in question.
      13. Such act was a proximate cause of the collision in question.
      14. Gilbert Bosas failed to apply the brakes at a time when an ordinarily prudent person under the same or similar circumstances would have applied them.
      15. Such act was a proximate cause of the collision.
      20. Gilbert Rosas and Evangalene Rosas were on a joint enterprise at the time and immediately prior to the collision in question.


author: CHADICK, Chief Justice.

text:
    George W. COTTON et ux. d/b/a Cotton Insurance Agency, Appellant, v. E. Price LITTLEJOHN, Appellee.
    No. 7761.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 29, 1966.
    Rehearing Denied Dec. 20, 1966.
    James R. Paxton, Palestine, James R. Cornelius, Jr., Lufkin, for appellants.
    C. L. Ray, Jr., Ray & Kirkpatrick, Marshall, for appellee.
   CHADICK, Chief Justice.

This is a venue case. The judgment of the trial court overruling a plea of privilege is reversed and the proceeding remanded for fuller development.

E. Price Littlejohn, plaintiff, sued George W. Cotton and wife, Joann S. Cotton, defendants, in the district court of Harrison County. The suit alleges actionable fraud as a basis of recovery. The Cottons, residents of Anderson County, filed a plea of privilege for the purpose of removing the lawsuit to the county of their residence for trial on the merits.

Littlejohn controverted the Cottons’ plea of privilege and contested removal on the grounds that Vernon’s Ann.Tex. Rev.Civ.Stat. art. 1995 § 7 (1964) authorized trial of the suit in Harrison County as an exception to the general rule of venue. To bring the suit within the terms of the exception mentioned it was necessary for Littlejohn to establish three venue facts by a preponderance of the evidence. These venue facts are: (1) that the fraud did in fact occur; (2) that the fraud was committed by the defendants or by one for whose acts they were legally responsible; and (3) that such fraud occurred in Harrison County. 1 McDonald’s Civ. Practice § 4.13., and authorities there cited.

This appeal is concerned only with the first of the venue facts listed above, and laudably appellee’s brief further curtails the issue to whether or not there is evidence that George W. Cotton falsely represented that he was the United States Manager for the First London Assurance Company. The Littlejohn brief isolates the issue by setting out the testimony relied upon to prove the falsity of the representation. The testimony thus pointed to is as follows:

“Q. * * * what did he say to you that induced you to put your business with him that you later have become to believe was a false statement on his part?
A. Well, he said first of all, that he was the authority in the United States.
Q. Do you now believe that he was not?
A. I know that he wasn’t now.”

The quoted questions calls for the witness’s belief, that is, the witness’s opinion; and the witness’s reply, particularly to the second question, appears to be responsive to the question propounded. On its face the witness’s answer is clearly the expression of an opinion, and that it was so intended is demonstrated and confirmed by a subsequent question and answer in the course of cross-examination of the same witness, Littlejohn, as follows:

“Q. You think he didn’t possess it, but you don’t know whether he possessed it or not, do you? [referring to Cotton’s authorization to represent First London Assurance Company in the United States.]
A. I’ll be truthful with you, I don’t even know whether there is a First London or not after my dealings with him.”

Neither the testimony relied upon by appellee Littlejohn nor other testimony to be found in the short statement of facts supports the trial court’s implied finding that George W. Cotton falsely represented to Littlejohn that Cotton’s insurance firm was agent in the United States for First London Assurance Company. Opinion evidence was inadmissible upon this question. Lipscomb v. Houston & T. C. Ry. Co., 95 Tex. 5, 64 S.W. 923, 55 L.R.A. 869 (1901); Edinburgh American Land Mortg. Co. v. Briggs, 41 S.W. 1036 (Tex.Civ. App. Austin 1897, writ ref.); 2 Tex.Jur.2d Agency § 258 (1959); 3 Am.Jur. Agency § 356 (1962). Such evidence has no probative value. 1 McCormick and Ray, Texas Law of Evidence § 31.

The case was not fully developed in the trial court. Under such circumstances it is the duty of this court to reverse and remand. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948). Accordingly, the case is reversed and remanded to the trial court.


text:
    BEAUMONT MOTOR COMPANY, INC., GENERAL MOTORS CORP. CHEVROLET DIVISION v. Edward D. FRENZELL.
    No. 6860.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 8, 1966.
    Orgain, Bell & Tucker, Beaumont, for appellants.
    Baldwin, Goodwin & Matheny, Beaumont, for appellee.
   STEPHENSON, Justice.

This is an appeal from an order of the trial court overruling the plea of privilege filed by General Motors Corporation, Chevrolet Motor Division, hereinafter called General Motors Corporation. The parties will be referred to here as they were in the trial court.

Plaintiff brought this action in Orange County against two defendants. Defendant Beaumont Motor Company filed its plea of privilege to be sued in Jefferson County which was sustained and the entire case was transferred to Jefferson County. Defendant General Motors Corporation filed its plea of privilege to be sued in Dallas County, which was overruled.

Plaintiff alleged in his controverting affidavit that venue should be sustained in Orange County as to defendant General Motors Corporation under Sections 9a, 23 and 27 of Art. 1995, Vernon’s Ann.Civ.St., and as to defendant Beaumont Motor Company under Sections 9a, 23 and 29a of Art. 1995, V.A.C.S.

Plaintiff sued both defendants for damages alleging that he purchased a Chevrolet automobile from Beaumont Motor Company new September 29, 1964, which was destroyed by fire while he was driving in Orange County, July 1, 1965. Plaintiff alleged this automobile was manufactured by General Motors Corporation. This suit was based upon both negligence and breach of warranty.

The plaintiff in this cause has made no complaint as to the order of the trial court transferring this entire case to Jefferson County. The record shows no notice of appeal nor objection by plaintiff to the order entered. We are not faced with a situation in which plaintiff filed a suit in a county against two defendants and alleged and proved venue as to one defendant and that the other defendant was a necessary party under § 29a, Art. 1995, V.A.C.S.

We hold that the failure of plaintiff to maintain venue in Orange County as to either defendant gave the trial court no legal authority to transfer the entire case to Jefferson County. Plaintiff neither plead nor proved that he had a joint action against both defendants nor that General Motors Corporation was a necessary party in the action against Beaumont Motor Company. The cause of action as to General Motors Corporation should have been severed from the cause of action against Beaumont Motor Company and transferred to Dallas County.

That portion of the order transferring the cause of action against General Motors Corporation to Jefferson County is reversed and judgment is rendered transferring it to Dallas County.

Reversed in part and Rendered.


author: PARKER, Justice.

text:
    T. J. HOGAN, Appellant, v. G., C. & S. F. RAILWAY COMPANY, Appellee.
    No. 6865.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 17, 1966.
    Barnes & Barnes, Beaumont, for appellant.
    Chilton O’Brien, Beaumont, for appellee.
   PARKER, Justice.

This is a common law damage filed by T. J. Hogan against G., C. & S. F. Railway Company. The case was tried to a jury in the District Court of Sabine County, Texas, and judgment entered upon the jury findings that plaintiff recover nothing of and from the defendant. The suit was heard on December 15, 1965, and judgment rendered and entered on February 24, 1966.

Plaintiff below, Theo Hogan, filed, his notice of appeal from the judgment entered on February 24, 1966, “said appeal to be perfected in the Court of Civil Appeals for the Ninth Supreme Judicial District of Texas, at Beaumont.” Said notice of appeal was dated February 25, 1966. Bond for costs was filed and approved on March 18, 1966. The plaintiff below has attempted to perfect his appeal to this Court of Civil Appeals for the Ninth Supreme Judicial District at Beaumont, by filing transcript on May 25, 1966. Art. 198, Vernon’s Ann.Civ.St, as amended by the 58th Legislature, effective 90 days after May 24, 1963, placed Sabine County in the Twelfth Supreme Judicial District of Texas. Sabine County is not within the Ninth Supreme Judicial District of Texas. Rule 352, Texas Rules of Civil Procedure, defines “appellate court” as that having jurisdiction of the cause appealed. Art. 1819, V.A.C.S., enacted under Art. 5, § 6 of the Constitution of the State of Texas, Vernon’s Ann.St., states: “The appellate jurisdiction of the Courts of Civil Appeals shall extend to all civil cases within the limits of their respective districts of which the District Courts * * * assume jurisdiction * * Art. 5, § 6 of said Constitution provides that the Courts of Civil Appeals “shall have appellate jurisdiction co-extensive with the limits of their respective districts.” This cause was not transferred to this court from the Court of Civil Appeals for the Twelfth Supreme Judicial District of Texas by order of the Supreme Court of Texas under authority of Art. 1738, V.A.C.S. Judgments of this character of the District Courts of Sabine County are appealable only to the Court of Civil Appeals for the Twelfth Supreme Judicial District at Tyler. The appellate jurisdiction of this court cannot be created by consent, stipulation of the parties or waiver, either by the court or a party litigant. Gibbs v. Melton, 354 S.W. 2d 426 (Tex.Civ.App.1962, n. w. h.); Cantrell v. City of Dallas, 350 S.W.2d 358 (Tex. Civ.App.1961, n. w. h.); Consolidated Casualty Ins. Co. v. Wade, 373 S.W.2d 841 (Tex. Civ.App.1963, err.' dism’d); Ellison v. Panhandle & Santa Fe Railway Co., 306 S.W.2d 909 (Tex.Civ.App.1957, n. w. h.); Herd v. Home National Bank of Cleburne, 283 S.W. 1112 (Tex.Civ.App.1926, wr. of err. dism’d); Smith v. Crouch, 323 S.W.2d 73 (Tex.Civ.App.1959, err. dism’d).

During submission and argument of this cause, this court became aware of the fact that this suit was tried in the District Court of Sabine County, and, therefore, this court lacked jurisdiction. On November 15, 1966 • appellee filed its motion to dismiss, to which appellant replied on November 16, 1966.

This cause is dismissed for want of jurisdiction.


author: CROSS, Judge.

text:
    Marguerite BARKLEY, Plaintiff-Appellant, v. C. R. MITCHELL d/fa/a Mitchell & Dunn Construction Company, Defendants-Respondents.
    No. 24340.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1967.

      John C. Risjord, Gordon, Adams, Niewald & Risjord, Kansas City, for appellant.
    John J. Alder, Alder & Morrison, Richard D. Rixner, Kansas City, for respondents.
   CROSS, Judge.

Plaintiff Marguerite Barkley, a Kansas City restaurant owner, brought this action against defendant C. R. Mitchell and others to recover $4,834.25 for damages sustained when her restaurant building was extensively damaged by fire while defendant and his partner George Lee Dunn, doing business as Mitchell & Dunn Construction Company, were working on the premises, pursuant to a contract to do all construction work incident to general renovation of the restaurant. Plaintiff originally entered into contract with Smith-St. John Equipment Company to restore the premises. In turn, Smith-St. John made a contract with Mitchell & Dunn, who specialized in custom interiors, fixtures and formica work, as the “general contractor” to do the construction work. That contract obligated Mitchell & Dunn in part as follows: “We propose to furnish and install all materials and labor as herein described: * * * 10) A cloud like drop will be placed over new counter: lights to be wired by our electrician, this cloud like drop as per print. 11) The electrical work shall include moving existing switches by entry; installing a new light in entry, fixtures by us; installing lights over counter, fixtures by others, and installing a usable plug by or for cash register. * * * All work to be performed by skilled craftsmen; Workmen’s Compensation and public liability to be in effect; our insurance is carried by T. H. Mastin’’. Mitchell and Dunn employed Thompson Electric Company to do the above noted electrical work. While employees of Thompson were so engaged, sparks from electric wires started the fire which damaged plaintiff’s property. The case was tried in April, 1965, before a jury and submitted only as against defendant Mitchell. The transcript does not disclose the procedures by which Smith-St. John and Dunn were dismissed from the case as defendants. The jury returned a verdict in favor of defendant Mitchell and plaintiff has appealed from the judgment.

Plaintiff’s petition preliminarily alleges the facts heretofore set out and contains additional allegations to the effect that defendant (s) negligently caused damage by fire to plaintiff’s building and contents by reason of acts allegedly negligent in: failing to turn off the electric current in the wiring before undertaking to rearrange or replace the same; failing to prevent electrical arcing between the electric wires and adjacent objects; failing to recognize the risk and danger of fire after having notice thereof; failing to promptly discover the fire; failing to promptly extinguish the fire and promptly warn others on the premises of the fire so that they could do so; and, failing to properly supervise the manner in which the electrical work was done.

The transcript before us is only partial. It contains no testimony of any witness for plaintiff except for a brief cross-examination of a Mr. Schuske, who apparently testified as to the customs of .the electrical trade in work practices. The circumstances of the fire appear only from defendant Mitchell’s testimony and are in. substance as follows; On the day before the fire Dunn employed Thompson and directed him to see Mitchell for instructions. Thompson accordingly reported to Mitchell who explained to him “what we needed done and showed him the location of the plugs, switches, and so forth, and we agreed on a price”. Thompson was not the electrician regularly used by Mitchell and Dunn because the latter was otherwise engaged. Mitchell stated he knew very little about Thompson as an electrical contractor. On the day of the fire two of Thompson’s workmen reported to do the work. Mitchell instructed them generally what was to be done and they started to work and began to dismantle wires in the ceiling, without turning off the electrical current to de-energize the wires. Mitchell said nothing to the electricians about turning off the current and knew of no reason why it wasn’t turned off. He stated “I had no occasion to ask them to turn the juice off, so they just went ahead and worked it”. There were overhead lights in the ceiling and Mitchell was working with those lights on — “everybody had to see to work.” Mitchell had long extension cords which could have been “hooked up” to provide current if the wires the electricians were “working” had been de-energized. The electricians could have “turned off the line”. “All they had to do was locate the circuit, pull the plug or the breaker”. That would not have bothered their work or Mitchell’s work but would have made the wires “cold”. It was Mitchell’s position that as general contractor and in accordance with trade customs, he and Dunn were in charge of seeing that the j ob got done but that they were not concerned with how the electrical work was done or whether temporary wiring was provided so that the electricians did not have to “jerk hot wires”.

Immediately prior to the fire the electricians were working on connections in a “ceiling juice box” near the front of the building. - They were standing on ladders and Mitchell was within two or three feet of them. As their work proceeded, sparks began to fly from the box and so continued periodically for three or four minutes before igniting the flammable ceiling. During that time, Mitchell said, he “was probably watching the electricians to see what they were up to”. He never did direct them to turn off the “juice” because “It is not my job to warn them * * * it is not my province”. Of the fire’s origin Mitchell stated, “Well, it sparked, and then it caught fire and then it was gone. * * * I think one of them (sparks) popped out of the box and dropped down on my head and I looked up and, boom, there went the fire”. Three or four minutes later Mitchell called the fire department. When work was resumed after the fire Mitchell employed a different electrician.

Plaintiff’s theory of the case was submitted against defendant Mitchell by Instruction No. 2 which directed the jury to return a verdict for plaintiff if they believed (1) that defendant agreed to remodel the premises of plaintiff, (2) that defendant as general contractor had the duty of supervising the electrical work, (3) that defendant permitted the electrician to do the electrical work with the electricity turned on, and (4) that defendant knew or by using ordinary care “would have known that by doing the electrical work with the electricity on there was a reasonable likelihood of fire”, (5) that such failure was negligence, and (6) that as a direct result of such negligence plaintiff sustained damage. The instruction is not identified as derived from any MAI form.

On behalf of defendant Mitchell the court gave Instruction No. 3 in approved MAI form which conversed plaintiff’s submission by directing a verdict for the defendant “if you do not believe that defendant C. R. Mitchell was negligent”. Also at defendant’s request the court gave Instruction No. 4 which reads as follows:

“Your verdict must be for defendant if you believe;
“First, the fire was caused by an employee of Thompson Electric Company; and
“Second, such employee was not an employee of Mitchell & Dunn Construction Company; and
“Third, Thompson Electric Company was a subcontractor to Mitchell & Dunn Construction Company, and that Mitchell & Dunn was thereby not negligent.
“MAI 13.06, as modified in notes”.

Plaintiff complains of error in Instruction No. 4 principally on the ground that it is in effect a “sole cause” instruction, within the prohibition of MAI 1.03 which prescribes that “No instruction shall be given on behalf of the defendant which hypothesizes that the conduct of one other than defendant was the sole cause of the occurrence”. In the Committee’s Comment following MAI 1.03 three reasons are stated for the foregoing restriction, to-wit: “1. Such instructions require the recitation of detailed evidentiary facts and this practice is no longer permitted. 2. The negligence of one other than defendant is of no consequence and reference thereto is confusing and misleading. 3. The prescribed converse forms adequately present the same defense”. If we interpreted the instruction as one submitting the defense of “sole cause”, we would necessarily agree with plaintiff that its submission was erroneous because of the prohibition imposed by MAI 1.03.

Defendant submits that plaintiff misconceives “the purpose and composition of Instruction No. 4 in calling the instruction ‘sole cause’ ” inasmuch as the major issue contested at the trial was whether Thompson was an independent contractor whose “duties and obligations were independent of defendant Mitchell”, or whether he was Mitchell’s employee, servant and agent under the latter’s supervision, direction and control. It is apparent from the record that the above defined issue was of primary significance. In his answer defendant Mitchell pleaded as a defense that “Thompson Electric Company (was not) the agent, servant or employee of defendant C. R. Mitchell, or of the partnership of Mitchell & Dunn Construction Company” and that “all allegations of such alleged agency are expressly and specifically denied”. In support of this pleaded defense Mitchell offered considerable testimony to the effect that it was the trade custom of contractors to subcontract electrical work; that the general contractor does not tell the electricians anything about how to perform their work and that it is not the custom or practice to tell the electricians when the electricity is to be shut off. Having pleaded and offered evidence tending to support his theory that Thompson Electric Company was an independent contractor and that the latter’s negligence was not imputable to him as the general contractor, defendant Mitchell was entitled to submit that issue by an appropriate instruction. It is obvious that Instruction No. 4 was offered by defendant and given in his behalf for that specific purpose.

We now examine. Instruction No. 4 to determine whether it is a proper submission of the defense that Thompson Electric Company was an independent contractor. The instruction purports to be founded upon MAI 13.06 entitled “DEFINITION-AGENCY — SERVANT OR INDEPENDENT CONTRACTOR” which reads as follows :

“Acts were within the ‘scope and course of agency’ as that term is used in this (these) instruction(s) if:
1. they were performed by (name of alleged servant) to serve the (business) (interests) of (name of alleged master) according to an express or implied agreement with (name of alleged master), and
2. (name of alleged master) either controlled or had the right to control the physical conduct of (name of alleged servant).” (Our emphasis).-

The Committee’s Notes on Use of MAI 13.06 inform us that “this definition is to be used only when defendant is charged with respondeat superior liability and there is evidence that the alleged tort-feasor was not his servant”. Thus MAI has provided definitions and legal guides for use in submitting the issue whether the tort feasor was a servant (agent) or an independent contractor. Their use is mandatory in submission of the issue. Civil Rule 70.01(b), V.A.M.R. Peak v. W. T. Grant Co., Mo.Sup., 409 S.W. 2d 58.

Although defendant labels Instruction No. 4 as patterned from MAI 13.06 it bears little resemblance to the claimed source. A comparison of the two writings reveals that defendant has not seen fit to use the general terminology of the pattern or to follow its legal standards in drafting the instruction. First we note the instruction’s failure to hypothesize ultimate facts to justify the finding that the person who “caused” the fire was then acting in the scope and course of agency on behalf of Thompson Electric Company and that he was not so acting on behalf of defendant Mitchell. Merely hypothesizing that such person was an “employee” of Thompson and not an “employee” of Mitchell does not satisfy the requirements of MAI 13.06. Moreover, it is error to permit the jury to make those findings without some legal definition of “employee” or hypothesization of facts on which to base them. By so doing, the jury is left to formulate its own legal concept of when a person is an “employee” and what is necessary to constitute “employment”, “scope of employment” or “scope of agency”. It is the court’s function and duty to define those terms. Inasmuch as the instruction fails to declare the law in these respects we necessarily rule that it is erroneous. Peak v. W. T. Grant Company, supra.

Instruction No. 4 is further erroneous in that it directs a verdict for defendant on the basis of a jury finding (among others) that Thompson “was a subcontractor to Mitchell”. This direction misapplies the law. Even conceding that Thompson might have been a subcontractor in the sense that he was engaged by Mitchell to do the electrical work Mitchell was obligated to do by the general contract, such relationship was not necessarily that of an independent contractor. The word “subcontractor” is a term of inexact meaning and broad application and is defined as “One who has entered into a contract, express or implied, for the performance of an act with the person who has already contracted for its performance”. Bouvier’s Law Dictionary, Century Edition. Subcontractors have been held to be both independent contractors and employees, depending upon the terms and nature of the agreement and the manner of its performance. And in determining whether a subcontractor is an independent contractor, insofar as his relation to the principal contractor is concerned, the same rules apply that are used to determine whether any other person who renders service to an original contractor is a servant or an independent contractor. 57 C.J.S. Master and Servant § 582, p. 353, and cases there cited under Note 66. Cases in which subcontractors have been held not to be independent contractors include Pribbenow v. Meeker, 139 Kan. 325, 31 P.2d 15, 16; Levy v. Long, 272 Ky. 49, 113 S.W.2d 849, 850; Waugh & Co. v. Rollison, 169 Va. 268, 192 S.E. 694. Instruction No. 4 is patently erroneous because it permits the jury to return a verdict for defendant even if Thompson, as a subcontractor, was in fact a servant and agent engaged in the scope of employment by Mitchell. This is a positive misdirection of law of highly prejudicial effect.

The instruction must also be condemned for still another vice of omission. The submission is fundamentally erroneous because it gives the jury no guidance whatsoever on the issue involved, but leaves them to speculate as to what tests are to be applied and what ultimate facts must be found, with reference to the reciprocal duties and obligations of Thompson and Mitchell, in order to return a verdict for defendant on the basis that Thompson was an independent contractor. The instruction thus failed to declare the law of the case on that question by defining the facts that were for the jury’s determination under the pleadings and the evidence. See Hawkeye-Security Ins. Co. v. Thomas Grain Fumigant Co., Mo.App., 407 S.W.2d 622. In Gardner v. Simmons, 370 S.W.2d 359, the Supreme Court said, “It is well established, Benham v. McCoy, supra (Mo., 213 S.W.2d 914) that the ultimate test in determining whether one is a servant or an independent contractor is the employer’s right to control the details of the employee’s work and so, of course, the question is not whether an employer did exercise control over the details of an employee’s work but whether the employer had the right to do so. Frank v. Sinclair Refining Co., 363 Mo. 1054, 256 S.W.2d 793, 797(5)”. The MAI Committee has recognized the foregoing rule as controlling on the question of whether one is a servant or an independent contractor and has incorporated it in MAI 13.06 as the ultimate test of the question. See the Committee’s Notes on Use immediately following MAI 13.06 and cases therein cited and quoted from. Paragraph two of MAI 13.06 provides a form in simple language, readily adaptable for submitting the facts on which to base a finding that Thompson was an independent contractor, and to support a verdict for defendant rendered on that basis. The requirements of MAI 13.06 and Civil Rule 70.01(b) would have been satisfied if Instruction No. 4 had hypothesized that Mitchell and Dunn neither controlled nor had the right to control the physical conduct of Thompson Electric Company. Without that hypothesis the instruction is prejudi-cally erroneous.

Finally, Instruction No. 4 is prej-udicially erroneous because in directing a verdict for defendant if the jury believed the fire was caused by a “subcontractor” it is inconsistent with and contradictory of Instruction No. 2 which directed a verdict for plaintiff on findings that defendant as general contractor “had the responsibility of supervising the electric work” and negligently “permitted and allowed the electrician to do the electrical work with the electricity on”. Even if the jury believed the immediate physical cause of the fire was some act done by an employee of the “subcontractor”, defendant was not entitled to a verdict under Instruction No. 4, as we have previously demonstrated. Furthermore, whether the fire was “caused” by an employee of the “subcontractor” was immaterial under plaintiff’s theory of recovery submitted by Instruction No. 2 which predicated defendant’s liability on defendant’s own direct and primary acts of negligence as distinguished from the separate negligent acts of an alleged employee giving rise to application of the respondeat superior rule. Inasmuch as the two theories are in direct conflict, and defendant’s theory is erroneous, we necessarily conclude that the effect of Instruction No. 4 was to mislead and confuse the jury. For cases holding that it is error to give conflicting and contradictory instructions on a material issue, see 27 Mo. Dig. Trial,

Plaintiff also contends the court erred by receiving in evidence testimony of defendant Mitchell and his partner Dunn offered in an attempt to establish that there was a custom in the construction trade to the general effect that the general contractors hired independent contractor electricians to do the electrical work; that the general contractors exercised no supervisory control over the electricians or the details of their work; and, in particular, that whether the electric current is turned off is for the electrician to decide — not the general contractor. The specific complaint is that both Mitchell and Dunn gave testimony as to their custom and manner and methods of doing their own construction work, as distinguished from the custom generally observed by the construction trade. Inasmuch as the several errors in Instruction No. 4 require reversal of the judgment, discussion of this additional question is not essential, except as a guide to the court and counsel upon a retrial.

In determining whether a supervisory responsibility rested upon defendant as a general contractor when the electrical work was being performed by the subcontractor electrician, and whether defendant was negligent in failing to super-' vise the details of that work in the respects charged, and permitting it to be done with electricity turned on, it is proper to consider the common custom or usage of the construction trades in that respect. 65 C.J.S. Negligence § 16, p. 594; Stein v. Buckingham Realty Co., Mo.App., 60 S.W.2d 712; 22 Mo.Dig., Negligence, And it is recognized that the general practice in a trade or industry is a test of negligence subject to the exception that “no usage can make a practice, which is inherently unreasonably dangerous, reasonably safe”. Carlisle v. Tilghmon, Mo.Sup., 174 S.W.2d 798. Also see Gatzke v. Terminal R. R. Assn. of St. Louis, Mo.Sup., 321 S.W.2d 462 and Thompson v. Kroeger, Mo.Sup., 380 S.W.2d 339.

Defendant adduced considerable evidence consisting of his own testimony and that of his former partner Dunn tending to establish the existence of a uniform trade custom in the area of Kansas City, observed generally by those engaged in the construction trades, to the effect that general contractors let the electrical work by subcontract to electricians, that the electricians performed their work without supervision by the general contractors, and that the electricians — not the general contractors — made the decisions whether the current should be turned off while proceeding with their work. Evidence of the nature above noted is not objectionable and is admissible under the rule stated by the Supreme Court in Wright v. Chicago, Burlington & Quincy R. R. Co., 392 S.W.2d 401, as follows: “The evidence of custom and practice here is within the standards of admissibility in a leading case on the subject, Davis v. Gatewood, Mo., 299 S.W. 2d 504. The witnesses possessed knowledge of the existence of the custom; it was not confined to the practice of certain individuals only; the testimony related to definite uniform and known practices under certain definite and uniform circumstances; and the existence of the custom or usage here is a matter of fact susceptible to proof as any other fact”.

However, certain portions of defendant’s evidence offered to establish the existence of the alleged custom above referred to are improper and objectionable in that they relate to the practices of defendant and his witness Dunn in the conduct of their own business, as individuals, and not to the practices followed generally by those engaged in like trades. Illustratively, we quote excerpts from the record:

“Question: Let me ask you whether or not it is your custom in doing work as a general contractor to hire independent contractor electricians?
Mr. Risjord: Object to what his custom is as irrelevant and immaterial.
The Court: Overruled.
******
“Question: Now, do you as the contractor tell him details of what to do?
Answer: Such as how to do it ?
Question: Yes.
Answer: No, sir.
Mr. Risjord: Again, if the Court please, I will object to evidence as far as what he generally does in his business. I don’t think that has anything to do with this law suit. If it is confined to this law suit—
The Court: Overruled.
Mr. Risjord: It is irrelevant and immaterial”.
* * * Jfc * *
“Question: Do you as a contractor, on the job, tell him details of what to do, on the general outline of the work?
Answer: You do not tell the workman how to go about his business, he is not an employee of yours. He would bow his back and you’d never get the job done. His boss tells him what to do.
The Court: No, that wasn’t the question. Now let’s get along with this law suit.
Question: All right, let me ask you, when an electrical contractor comes on the job to do a certain piece of work, electrically, who is the one who states whether the current should be turned off or not—
Mr. Risjord: Object to that for the reason it is not — He hasn’t limited the question to custom and trade usage or shown that this man has knowledge of what that usage is. He is simply asking him for his jobs, which is irrelevant and immaterial.
The Court: Overruled.
Question: Can you answer the question, sir.
Answer: Do we — as a contractor, do I tell a man when to turn the juice off?
Question: Yes.
Answer: No, sir, the electrician tells me when it is going to be off”.

Testimony such as the above quoted is improper and objectionable and upon retrial of the case should be excluded. “Defendant’s own custom, as distinguished from general custom, is not a proper matter for consideration in determining whether his conduct or methods were negligent, since a lack of due care is not to be excused because the person charged therewith has become accustomed to carelessness in the performance of his duties”. 65 C.J.S. Negligence § 16, p. 601. Also see Davis v. Gatewood, Mo.Sup., 299 S.W.2d 504; Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96.

In a third point plaintiff complains that defendant’s counsel in argument to the jury improperly commented upon plaintiff’s failure to produce the electrician Thompson as a witness. We do not deem it necessary to consider the question thus raised, inasmuch as it will not likely recur upon a retrial.

Bearing in mind that generally this court’s decision on all points presented and decided becomes the law of the case on those issues in subsequent proceedings in the cause, we emphasize that no question has been raised, and no decision has been made by this court, as to whether plaintiff’s verdict directing instruction (No. 2) was a proper submission of her case. We can offer no clear guide to the trial court in determining that question at a subsequent trial because (1) plaintiff’s evidence at the first trial is not before us and (2) conceivably her evidence at another trial might differ in material respects from her evidence at the first trial. We do suggest that certain principles recognized in the law of negligence that have not been brought to our attention in this appeal may have some bearing on the submission of plaintiff’s case on the theory that defendant had a non-delegable duty to supervise the electrical work and to take reasonable precautions against dangers inherent therein — all depending upon the facts that may be developed at the next trial.

One of the well recognized exceptions to the general rule that the employer of an independent contractor is immune from liability for the tortious act of the independent contractor or his servants is the rule stated in 2 Restatement, Torts, Secs. 413, 416 and quoted with approval by the Supreme Court in Stubblefield v. Federal Reserve Bank of St. Louis, 356 Mo. 1018, 204 S.W.2d 718, as follows: “One who employs an independent contractor to do work, which the employer should recognize as necessarily requiring the creation during its progress of a condition involving a peculiar risk of bodily harm to others unless special precautions are taken, is subject to liability for bodily harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions”. Also see Southwestern Bell Telephone Co. v. Rawlings Mfg. Co., Mo.App., 359 S.W.2d 393. And, if the circumstances developed at another trial of the instant case fall within this rule, a primary, non-delegable duty would be imposed upon defendant as employer of the electrical contractor and he “may not escape that duty or responsibility upon the plea of independent contractor. Annotations 23 A.L.R. 984; 115 A.L.R., 1. c. 977”. Stubblefield v. Federal Reserve Bank of St. Louis, supra.

The judgment is reversed and the cause is remanded for a new trial.

All concur.

      . See Norris v. Bristow, 361 Mo. 691, 236 S.W.23 316, 26 A.L.R.2d 366; 3 Mo.Dig., Appeal and Error, <&wkey;1097(l).