author: WERLEIN, Justice.

text:
    The MAYFLOWER TRUST COMPANY, Appellant, v. Lawrence A. NOWELL et al., Appellees.
    No. 1499.
    Court of Civil Appeals of Texas. Houston.
    March 16, 1967.
    Rehearing Denied April 13, 1967.
    Carter, Gallagher, Jones & Magee, Joe Hill Jones, Ben Warder, Jr., Dallas, for appellant.
    L. Keith Simmer, Alton F. Curry, Houston, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, of counsel, for appel-lees.
   WERLEIN, Justice.

This is an appeal from an order of the trial court overruling the plea of privilege of appellant, The Mayflower Trust Company. The suit was brought by Lawrence A. Nowell, Individually and as Next Friend of his minor children, as contingent or future beneficiaries under the Ames Nowell Trust, an irrevocable trust created by Ames Nowell in 1924, against Ames Nowell Individually and as Trustee of said trust, Henry V. Broady, and The Mayflower Trust Company, Individually and as Trustee of said trust, to recover trust assets, for damages for conversion of the same, for removal of the alleged trustees and for the appointment of appellee, Lawrence A. No-well and some suitable corporation as substitute trustees. The Mayflower Trust Company filed its plea of privilege stating that venue of this cause of action lies in Dallas County, Texas by virtue of the provisions of Article 7425b-24, subd. B and Article 1995, Subd. 30, Vernon’s Annotated Texas Civ.Statutes. Article 7425b-24, subd. B provides that where there are two or more trustees, venue shall lie in the county where the principal office of the trust is maintained. The plea of privilege admitted that the residence of appellant was in Harris County, Texas.

Appellees filed a controverting affidavit to said plea of privilege attaching thereto a copy of their first amended original petition which they adopted by reference and stated to be true and correct, denying that venue of this cause of action lies in Dallas County, and stating that the trial court had venue over the defendant, Henry V. Broa-dy, a resident of Harris County, Texas, who was a necessary and proper party to the suit; that the defendants in the suit committed fraud and conversion in Harris County, Texas, to the injury of plaintiffs, within the meaning of Article 1995, Sections 4, 7 and 9 thereof, V.A.T.S., and further specifically denying that the principal office of the Ames Nowell Trust is or was maintained at the commencement of this action in the City of Dallas, Texas, and stating that the principal office of said trust was and is in the City of Houston, Harris County, Texas.

At the request of appellant for findings of fact and conclusions of law, the trial court found that appellant was a resident of Harris County, Texas, and that the principal office of the Ames Nowell Trust was in Harris County. The court concluded that Article 7425b-24, subd. B, V.A.T.S., does not fix exclusive venue of appellee’s cause of action, and that the venue of the cause of action as against The Mayflower Trust Company, the party asserting its privilege, is properly laid in Harris County even if Article 7425b-24, subd. B, V.A.T.S., does apply to this action, since the principal office of the Ames Nowell Trust is in Harris County, Texas. Appellant asserts that the court erred in so finding and concluding because there was no evidence and insufficient evidence to support such finding and also because Article 7425b-24, subd. B, V.A. T.S., is mandatory.

The evidence is undisputed that appellant and one of the other defendants are residents of Harris County. Appellees alleged in their petition that if service could not be obtained on Ames Nowell in Dallas, he was amenable to service by serving the Secretary of the State of Texas, under Article 2031b, V.A.T.S., and that his last known address was “c/o John J. Dougherty, 29 Teresa Avenue, Yonkers, New York, 10704.” There is in evidence a letter which is dated July 27, 1966 from Ames Nowell to Fannin Bank in Houston, Texas, in which the. address of Ames Nowell is given as c/o Mr. John J. Dougherty, 29 Teresa Avenue, Yonkers, New York, 10704. Appellant although admitting that it was a resident of Harris County, Texas, contends that Harris County is not the principal place of business of the Ames Nowell Trust, and hence venue does not lie in Harris County.

The evidence shows that on or about May 2, 1966 the Ames Nowell Trust had approximately $2,500,000.00 in assets in the form of stocks and bonds, which were held by the Fannin Bank of Houston as corporate trustee of the Ames Nowell Trust. Mr. James Melton, Vice President and Trust Officer of the Fannin Bank, testified that for approximately four months the Fannin Bank was the corporate trustee of the Ames No-well Trust, having been appointed by Ames Nowell. The trust instrument states that Ames Nowell reserved the power to remove the original corporate trustee and at any time within his discretion appoint another corporate trustee. Mr. Melton testified that the tannin Bank was the corporate trustee of the trust from approximately the 18th day of January, 1966 until May 3, 1966. Mr. R. L. Collins testified that at such time he was President of The Mayflower Trust Company, and that the company had its office at 2625 Richmond Avenue in Houston, Texas, with its name on the door; that the office records of The Mayflower Trust Company were kept at said address; and that Ames Nowell rented the space for said office and arranged for stationery and letterheads showing such address. He also testified that the defendant, Henry V. Broady, lived in Houston, Harris County, Texas.

There is evidence that on or about May 2, 1966, Ames Nowell removed Fannin Bank as trustee, and caused all the assets of the trust to be delivered to The Mayflower Trust Company as corporate trustee of said trust; that all of the stocks and bonds, including bearer bonds, were taken by Collins, Ames Nowell and others to Washington where an effort was made to sell the assets; that the brokerage house in Washington, D. C., refused to sell the same, so they were brought back to Houston and placed in a safe deposit box with Fidelity Bank & Trust Company of Houston; that Collins placed the assets of the trust in a safe deposit box in Houston in Fidelity Bank & Trust Company; that between May 2 and May 24, 1966, the assets of the trust were located in several places; that the bulk of the assets of the trust were in said lock box up to the day that Collins’ services terminated with The Mayflower Trust Company, and that he then turned the assets over to one Eugene Kinney; that Mr. Collins refused to turn the assets over to Mr. Kinney as requested by the defendant, Henry V. Broady, until Mr. Nowell gave him express instructions to do so.

The evidence also shows that Mr. Nowell had approximately $1,400,000.00 in trust assets delivered to Dittmar & Company of San Antonio for sale, and that the proceeds from the sale were used to buy Treasury notes which were purchased on June 8, 1966, and which were due and payable in cash on June 22, 1966. The evidence shows further that these Treasury notes were delivered to Mr. Ames Nowell in New York upon his instructions; that there is approximately $200,000.00 in trust assets in Houston, Texas, and that the only assets and office of the trust in the State of Texas are in Houston.

The evidence also shows that Ames No-well at one time was a resident of Dallas. Mr. Collins testified that Ames Nowell was a resident of Dallas County, and as far as he knew his residence was still in Dallas. He knew of no office in Dallas and did not know whether Ames Nowell was in Dallas County or whether any of the assets of the trust were in Dallas County. There was no proof that any assets of the trust were in Dallas County or that any office or any officers of appellant or the trust were in Dallas County. The last known definite address of Ames Nowell was in New York.

The undisputed proof in the record is that The Mayflower Trust Company’s offices were at 2625 Richmond Avenue, Houston, Harris County, Texas, in the early part of 1966, and that Ames Nowell removed the Fannin Bank as corporate trustee and caused the assets of the trust to be delivered to The Mayflower Trust Company as corporate trustee. Thereafter on May 13, 1966, The Mayflower Trust Company, as trustee, and Ames Nowell, Individually and as Trustee of the trust, executed an indemnity and escrow agreement with Fannin Bank, wherein Ames Nowell directed that during the term of the agreement the Fan-nin Bank was to make any demand upon the trustees of the trust at 2625 Richmond Avenue, Houston, Texas. Approximately $150,000.00 of trust assets in the form of bearer bonds were deposited in escrow in Houston, Harris County, Texas, in connection with the indemnity agreement. The other assets in Houston include about $30,000.00 worth of bearer bonds put up to secure attorney’s fees and $21,000.00 put up to secure Mr. Collins’ contract with The Mayflower Trust Company. There is no evidence that any of the assets of the trust are located anywhere in Texas other than in Houston. The $1,400,000.00 of trust assets used to purchase the short term Treasury notes were delivered to Ames Nowell in New York at his instructions. There is no evidence that the principal affairs, or business, of the trust are transacted in Dallas.

In Bergfeld v. Campbell, 367 S.W.2d 364, Tex.Civ.App., Texarkana 1963, the trust instrument designated the principal office of the trust as Tyler, Texas. The court, however, found that the trust property was kept and maintained in a safe deposit box in Dallas and not in Tyler, and held that the principal office was in Dallas. So far as the evidence shows in the instant case, the trust assets in Texas are in Houston and nowhere else in Texas. There is no evidence showing that any of such assets are in Dallas. Furthermore, appellant failed to produce any evidence in its possession to rebut the testimony of appellees which established that the principal place of business of the trust in Texas was in Houston. In Dunn v. Johnson, 274 S.W.2d 108, Tex.Civ.App., Waco 1954, the court quoted from 17 Tex. Jur. 306, the following rule: “ ‘Usually the force of evidence, though slight, is greatly increased by the failure of the opposite party to rebut it, where it is obvious that the means are readily accessible to him. The failure of a party to take advantage of an opportunity to explain inculpatory circumstances is evidence against him, and his failure to produce evidence in his possession which might have rebutted a presumption against him strengthens such presumption. * * * > if

We have carefully read the statement of facts and have concluded that there is evidence of probative force which warranted the court's finding that the principal place of business of the trust was in Harris County. Furthermore, we have concluded that we cannot say that the findings by the court with respect thereto are not supported by sufficient evidence or that they are so against the great weight and preponderance of the evidence as to be manifestly unjust.

An examination of Article 7425b-24, V.A.T.S., indicates that it is limited to suits brought to construe the provisions of a trust instrument, to determine the law applicable thereto, the powers, responsibilities, duties and liability of the trustee, the existence or non-existence of facts affecting the administration of the trust, or to require an accounting by the trustee and to surcharge the trustee. We agree with the trial court, that such article does not by its terms cover a suit such as the instant action brought for conversion of trust assets, for torts of the trustee, and damages for fraudulent acts by the trustee and others against the beneficiaries of the trust. In Arterbury v. U. S. Nat. Bank of Galveston, 194 S.W.2d 803, Tex.Civ.App., Galveston 1946, n. w. h., the court held that venue may be maintained outside the county where the trust is located where there may be joint and several liability of the trustees and local defendants. See also O. P. Leonard Trust v. Hare, 305 S.W.2d 833, Tex.Civ.App., Texarkana 1957, error dism., in which Article 7425b-l et seq. was not applied in a tort action brought by a party not in privity with the trust. In Smith v. Plainview Hospital and Clinic Foundation, 393 S.W.2d 424, Tex.Civ.App., Amarillo 1965, error dism., the court said: “The action in the instant case was clearly not one to require accounting by the trustee and to surcharge the trustee, and in our opinion is not one requiring such action to be filed in the county of the residence of such trustee within the purview of Article 7425b-24, Subsection B.”

Since the instant suit was not brought to construe the trust or to require an accounting by the trustee as such, but rather for the purpose of removing the trustees and to recover damages for conversion of trust assets by the trustees and third parties, it is our view that venue was properly laid in Harris County, the admitted residence of two of the party-defendants. Furthermore, it is our opinion that in any event the evidence amply supports the court’s finding that the principal place of business of the trust was and is in Harris County, Texas.

Judgment affirmed.

COLEMAN, J., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    Bobby K. WALLACE, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 15003.
    Court of Civil Appeals of Texas. Houston.
    March 23, 1967.
    Rehearing Denied April 13, 1967.

      Zbranek & Friend, Kenneth H. Strahan, Liberty, for appellant.
    Donald R. Hallmark, J. M. Perry Archer, Houston, for appellee.
   WERLEIN, Justice.

This is an appeal from judgment of the trial court entered on a jury verdict in a workman’s compensation case brought by Bobby K. Wallace, appellant, against Liberty Mutual Insurance Company for back injuries allegedly sustained by appellant. The jury found appellant suffered no total incapacity but that he did sustain partial disability for a period of 52 weeks. Appellant’s points of error are based upon the court’s overruling his motion for new trial because of improper argument on the part of appellee’s counsel, and also because the answers of the jury to the special issues on disability and the duration thereof were so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

The evidence shows that appellant was employed by Raymond International, Inc., as a pile driver, and that he sustained an injury to his back on January 13, 1965, and was examined and treated by four doctors, although appellant called only Dr. Bellamy to testify, and appellee introduced no medical testimony.

We have read the entire statement of facts, as well as the voir dire examination, and the argument of counsel representing appellant and also the argument of counsel representing appellee. We entertain no doubt that counsel for appellee resorted to improper argument in several instances, which was unprovoked and uncalled for. The question is, however, whether under the circumstances and facts of the case the argument of appellee’s counsel was of the incurable type, or whether it could have been cured by a timely objection by appellant’s counsel and instructions of the trial court. Appellant’s counsel sat by, heard the argument of appellee’s counsel, and made no objection whatever to any of it. He, therefore, cannot now complain of error unless such argument was of the incurable type, that is, of such kind that no instruction of the court could have removed the poisonous effect thereof from the minds of the jury. We shall briefly discuss the arguments of which appellant complains and which he asserts were calculated to cause and probably did cause the rendition of an improper verdict in this case.

Appellant first complains that appellee’s counsel on one or more occasions in his argument referred to a juror or jurors by name. At one point in his argument ap-pellee’s counsel stated: “ * * * you have been here for a couple of days, sitting behind this rail, and I am sure you. all looked down here at the numbers on top of the rail. I noticed Mrs. Brown looking yesterday, probably wondering what they are for.” Counsel then explained that Judge Stovall had placed the numbers there to indicate distances in feet which could be referred to by witnesses in estimating distances. At another point counsel for ap-pellee stated: “If either of the attorneys were to ask that the jury be polled, his Honor would ask: ‘Mr. Held, and Mr. Tarver, Mr. Redman, Mrs. Brown and each of you, Is that your verdict?’ And, it must be your verdict based on twelve decisions on the eighteen issues using common sense.” Such argument made no appeal to the jury of any kind. No objection was made by appellant’s counsel.

It has been held that it is not reversible error to refer to the jurors by name so long as a personal appeal is not made. Texas Employers Insurance Association v. Kennedy, 303 S.W.2d 440, Tex. Civ.App. 1957, ref., n. r. e.; Traders & General Insurance Company v. Hill, 104 S.W.2d 603, Tex.Civ.App. 1937. In Walker v. Koger, 131 S.W.2d 1074, Tex.Civ.App. 1939, dism., judgm. correct, the court in effect held that the mentioning of a juror’s name in argument, in the absence of any other questionable impropriety, would be considered immaterial error. Even if such reference is error, it must be objected to as it is not the incurable type of improper argument. Gulf, C. & S. F. Ry. Co. v. Giun, 131 Tex. 548, 116 S.W.2d 693, 1938.

Counsel for appellant refers to another argument made by counsel for appellee, which he contends was of the incurable type. At one point in his testimony appellant testified that he had not asked appellee for anything. The alleged improper argument is as follows: “He did ask for something. He asked through his attorney— may I see the original of the Plaintiff’s Petition? He did ask you as you heard it read to you in the Plaintiff’s Original Petition. I want you to see it and notice that this is a mimeographed petition with some blanks in it to be filled in.

“Now, this lawyer from the country that was talking to you yesterday morning, I will assume, has so much of this business that he has to have it mimeographed and fill in the blanks. That is not someone that does not know where the Courthouse is, and the thing that upsets me the most is that clients in their minds — they don’t know they are saying themselves. They just tell a client to just fill in the blanks — ‘We will get you something.’ ”

Appellee’s counsel then continued to comment on the fact that certain blanks had been filled in in the petition and that certain allegations such as “and the ligaments, muscles and tissues thereof and to his body generally,” were typed on the mimeographed form, indicating that the same phrase was used in the petitions filed by appellant’s counsel in all compensation cases but with reference to the particular part of the body injured which had to be filled in or inserted in the blank space in the petition. This argument was, of course, improper. Counsel for appellant, however, sat by and made no objection whatever, although had he objected when the first mention was made of a mimeographed form, the trial judge undoubtedly would have instructed the jury not to consider such reference for any purpose. It is our view that such argument was of the curable type, and that it would not have been permitted by the court or indulged in by appellee’s counsel had an objection been made thereto.

At another point in his argument counsel for appellee argued: “You will recall that Mr. Wallace testified that he went to see Dr. R. L. Gordon, his family doctor, first. Why didn’t they bring Dr. Gordon down to testify? Then he was sent by Dr. Gordon to a specialist here in town, Dr. Fain, is what Mr. Wallace told me. Why didn’t they call Dr. Fain in? Dr. Fain would tell us that he suggested they call in Dr. Henry and he saw Dr. Henry on two occasions. Why didn’t they call in Dr. Henry? He has been to Dr. Bellamy. You heard Dr. Bellamy testify and you heard what kind of person he was. You heard how he reacted to cross-examination. If there was ever a partner to this lawsuit or a friend of the party to a lawsuit, I think you saw one yesterday.” This argument was, of course, improper, but again no objection whatever was made to it. Had there been an objection the court undoubtedly would have instructed the jury not to consider it. Furthermore, on cross-examination of Dr. Bellamy by appellee’s counsel it was shown that Dr. Bellamy expected to be paid only $150.00 to $200.00 for his services.

We cannot say that this argument was of the incurable type or that it was calculated to cause and probably did cause the rendition of an improper verdict and judgment, for several reasons. In the first place, the testimony of appellant with respect to the doctors was rather indefinite. He testified that he went to Dr. Gordon who treated him off and on three or four months. Unquestionably Dr. Gordon was appellant’s doctor selected by him. He also testified at one time that “they (appellee) later on asked me to see Dr. Fain in Houston”; and also at another time he testified that he went to Dr. Fain when Dr. Gordon referred him to Dr. Fain. He further testified that he didn’t know whether appellee requested it or whether he went to see Dr. Henry “on my own”. He then testified at another time that he went to see Dr. Henry at Dr. Fain’s suggestion. From such testimony it cannot be determined whether the doctors were primarily representing the ■ appellant or appellee; but, regardless of this, it is our view that any error in such connection was nullified by the argument of appellant’s attorney, who stated in his argument: “Furthermore, Mr. Hallmark knows what Dr. Fain said about him, and why didn’t we call Dr. Henry and Dr. Fain? Who was in touch with Dr. Henry and Dr. Fain? You remember yesterday afternoon and they—

“And they stated that Dr. Henry was in surgery and Dr. Fain was not available until this morning. [This was stated out of the presence of the jury] Who is being more fair about this lawsuit? Now, that is a good question. Why didn’t they call Dr. Fain and Dr. Henry? Well, that puts the shoe on the other foot. They were in touch with them. Why didn’t they call them? They didn’t call them because they would have told you the same thing about this man’s disability as Dr. Bellamy who he attacked.”

At another point in his argument appellee’s attorney stated: “I want them to convince you because I don’t think you are. I don’t think you could be under the evidence in this case. I don’t see how in the world you can be. When, believe me, I would not say that if I did not believe it. I would not ask you to believe me if I did not believe it to be true and sincere.” This argument was improper, but no objection was made to it. Certainly the trial court would have instructed the jury not to consider what appellee’s attorney believed one way or the other. He was not a witness and had no business stating what he believed or knew.

After carefully considering the entire argument of both attorneys and also the statement of facts in the case, we have concluded that we cannot say that the argument of appellee’s counsel was of the incurable type, especially in view of the argument made by appellant’s attorney. In Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 1953, the court commented on the fact that where each party commented in the presence of the jury on the failure of the other to use a particular witness, equally available to both, the only reasonable inference to be drawn therefrom was that the witness would not testify favorably for either party, else he would have been called by one or the other. In the instant case there was no evidence that the medical witnesses were available at the time to appellee, other than the statement made by appellee’s counsel out of the presence of the jury. Other than such statement, there was no evidence that such witnesses were under the control of appellee. Although such doctors were paid by appellee, there is no evidence that they were in appellee’s employ. It is our view that in the absence of any objection to the argument of appellee’s counsel, any error with respect to such argument was waived by appellant. Wade v. Texas Employers’ Insurance Association, 1951, 150 Tex. 557, 224 S.W.2d 197. Nor can we say that such argument was reasonably calculated to cause and probably did cause the rendition of an improper verdict, especially in view of appellant’s argument. Turner v. Gossett, 267 S.W.2d 877, Tex.Civ.App. 1954; Western Fire & Indemnity Co. v. Bradshaw, 356 S.W.2d 832, Tex.Civ.App. 1962, ref., n. r. e.

The law is well settled that in order to entitle one to a new trial because of improper argument of counsel, it must be shown that an objection was made and overruled when the argument was made, and that a new trial will not be awarded in the absence of timely objections where any harm or prejudice resulting from the argument can be eliminated or cured by instruction from the court or by a retraction. Texas Employers’ Insurance Association v. Jones, 361 S.W.2d 725, writ ref., n. r. e.; Aultman v. Dallas Ry. & Terminal Co., supra; City of Ft. Worth v. Estes, 279 S.W.2d 687, Tex.Civ.App. 1955, ref., n. f. e.; Wade v. Texas Employers’ Insurance Association, supra. In the instant case the cumulative effect of the curable arguments is not such as to require a reversal. In light of the whole record, we cannot say that the cumulative effect was calculated to cause and probably did cause an improper verdict. King v. Federal Underwriters Exchange, 144 Tex. 531, 191 S.W.2d 855, 1946; Texas General Indemnity Co. v. Bledsoe, 344 S.W.2d 527, ref., n. r. e.; Travelers Insurance Co. v. Broadnax, 365 S.W.2d 683, Tex.Civ.App. 1963, n. w. h.

The jury heard all the evidence, which consisted of the testimony of appellant and his wife, both interested parties, and the testimony of Dr. Bellamy which was based largely upon what appellant told him. In a report made by Dr. Bellamy to appellee nearly a year after the accident, the diagnosis was “Lumbo-sacral strain, possible disc disease.” Dr. Bellamy also said in such report that “Patient has not been back for treatment so I assume he has either recovered or is going to another physician.” There is other testimony of Dr. Bellamy and appellant from which the jury could have found some total disability or partial disability for a longer period had they accepted such testimony at face value. Appellant testified that he could not engage in the kind of employment that he was engaged in before the injury, because such employment involved lifting heavy objects, twisting, bending and climbing, which he could not do without pain. It was shown, however, that he had engaged from time to time in several kinds of light employment after his injury, and had also done some work on automobiles and trucks and in an oil field.

It would serve no useful purpose to summarize all of the testimony of the witnesses. Suffice it to say that after carefully considering all the evidence, we have concluded that we cannot say that the findings of the jury with respect to appellant’s incapacity are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Nor can we say that the improper argument of counsel under all the facts and circumstances of the case was calculated to cause and probably did cause the rendition of an improper verdict. Rule 434, Texas Rules of Civil Procedure.

Judgment affirmed.

COLEMAN, J., not sitting.


author: DAVIS, Justice.

text:
    Arline B. WEST, Individually, etc., Appellant, v. Cleo C. GRACEY, Appellee.
    No. 7814.
    Court of Civil Appeals of Texas. Texarkana.
    March 21, 1967.

      W. J. Knight, Knight, Prappas, Rowland & Caldwell, Houston, for appellant.
    Stanley B. Binion, Reynolds, White, Allen & Cook, Houston, for appellee.
   DAVIS, Justice.

A summary judgment case.

HISTORY

M. A. Bouknight, individually and d/b/a State Securities Company, on January 25, 1960, sued Cleo C. Gracey on a series of notes totalling $8,628.79. Citation was served and Gracey filed an affirmative answer alleging an offset of $10,000.00, and, in the alternative, an offset of $3,-333.33, a plea of want of consideration, and a plea of limitation.

On July 4, 1960, M. A. Bouknight died. On August 16, 1960, Mr. Bouknight’s Will was admitted to probate in Harris County, and his wife, Arline B. Bouknight, the sole legatee and devisee under his Will, was appointed independent executrix of his estate. Gracey was aware of Bouknight’s death, and the appointment of Mrs. Bou-knight as independent executrix. The trial court was not.

It was the duty of Mrs. Bouknight to file a suggestion of death and request that she be made a party plaintiff during the first term of court following the death of Mr. Bouknight. Rule 151 Texas Rules of Civil Procedure. Apparently, Mrs. Bou-knight was not acquainted with the law that required her to do so. According to the record, she was not substituted as a party plaintiff in the suit, nor did she make any appearance therein, either in person, or by an attorney. Gracey did not at any time file a suggestion of the death of Mr. Bouknight, or make an application to the clerk of the court to issue a scire facias.

Mrs. Bouknight made known to the attorney whom her former husband had employed to file the suit, that she was desirous of having the same brought to trial and judgment. The attorney assured her that he was prosecuting the suit and that it would be brought to trial in due course. No proceedings were had in the suit from the time Gracey’s answer was filed until the clerk of the court prepared a dismissal docket that included the above mentioned suit. The notice was posted in the district clerk’s office, in the judicial district courtroom where the case was pending, in the jury assembly room, and a copy was delivered to the “Daily Court Review”. No date is shown when either of the above transactions took place. There is no showing what use was made of. the notice by the Daily Court Review.

According to the record, post card notices were prepared by the clerk and mailed to all the attorneys of record in each case on the list of cases prepared by the clerk. There is no date shown of the mailing of the post card notices and no proof that they were received by the parties. The notices stated only that the cause would be dismissed for want of prosecution on June 24, 1963. The notice did not advise the addressees, or either of them, that they would have an opportunity to file a motion with the court stating good reasons why the same •should remain on the docket. There is no •proof in the record that Mrs. Bouknight, or the attorney employed by her husband to prosecute the suit, had received such notices or had any knowledge of the contents thereof.

There is attached to the notice an order of the trial judge, signed on July 5, 1963, reciting that: “On this the 24th day of June, 1963, the above styled and numbered non-jury cases are hereby dismissed for want of prosecution. Costs herein are taxed against plaintiff for which let execution issue.”

There is no proof in the record that the post card notice for dismissal that was issued by the clerk was mailed to Mrs. Bouk-night. (There is no proof in the record that the clerk knew that Mr. Bouknight was deceased), nor is there any evidence in the record to show that a notice was mailed to Mrs. Bouknight. There is no proof in the record that Mrs. Bouknight ever received such notice. The notices that were allegedly mailed by the clerk simply made the pronouncement that the court had determined to dismiss the suit for want of prosecution.

Finally, Mrs. Bouknight, who, apparently, could not get any satisfaction out of the attorney employed by her husband, made an individual investigation in the District Clerk’s office. She learned from the investigation, made on April 22, 1965, that the case had been dismissed for the want of prosecution.

After the judgment of dismissal for the want of prosecution was entered in which the costs were taxed against Mrs. Bou-knight, there is no showing that she, or the attorney employed by her husband, was ever called upon to pay the costs.

On May 19, 1965, Mrs. Bouknight filed her sworn Bill of Review. She alleged: (1) that she had a meritorious cause of action and could have proved the same, (2) that by the dismissal of the suit she was wrongfully prevented from proving her cause of action by fraud, accident or wrongful act of Gracey, and (3) such acts were unmixed with any fault or negligence of her own. According to the record, the case HAD NOT been set down for trial at any time.

On May 5, 1966, Gracey filed a motion for summary judgment. On May 14, 1966, Mrs. Bouknight filed her first supplemental petition and her reply to Gracey’s motion for summary judgment. On July 5, 1966, the trial court granted the motion for summary judgment and Mrs. Bouknight has perfected her appeal therefrom. She brings forward ten points of error.

Mrs. Bouknight has married George B. West and now goes by the name of Arline B. West, and will be hereinafter referred to as appellant. Gracey will be hereinafter referred to as appellee.

OPINION

By her ten points, appellant says the trial court erred in granting the motion for summary judgment because: (1) there were genuine issues of material fact; (2) the order of dismissal was granted without any notice to appellant or her attorney; (3) the original suit had not been set for trial as required by Rule 330(b), T.R.C.P.; (4) the trial court was without jurisdiction to dismiss the cause for want of prosecution because of the former death of Mr. Bou-knight; (5) the judgment of dismissal was void or voidable for want of parties; (6) appellant was not guilty of negligence; (7) there were genuine issues of material fact as to appellant’s negligence; (8) the trial court had no power or authority, as a matter of law, to dismiss the suit for want of prosecution because of Rule ISO T.R. C.P.; (9) the appellee was guilty of fraud, accident or wrongful act in failing to file a suggestion of death and request the issuance of a writ of scire facias as required by Rule 151, T.R.C.P.; (10) and, that all of such acts prevented appellant from prosecuting her suit.

The original suit was a contested suit from the day that the appellee filed his affirmative defensive answer. It was the duty of the court to set the case for trial as required by Rule 330(b), T.R.C.P., formerly Art. 2092, Sec. 18, R.C.S. This the trial court did not do. The order the trial judge entered without following the rule was void. Freeman v. Freeman (1959), 160 Tex. 148, 327 S.W.2d 428. The dismissal of this suit for the want of prosecution in effect permitted the appellee to take a default judgment which took away from appellant all the rights she had in her suit. As said by Chief Justice Calvert in Freeman v. Freeman, “[t]he cases supporting that proposition [of law] are legion;” citing many cases. The trial court was without jurisdictional power to enter the judgment of dismissal for want of prosecution in the contested case, without complying with the law. Burton-Lingo Co. v. Lay (Tex.Civ. App.1940), 142 S.W.2d 448, n. w. h. The only way the trial court could have dismissed the case for want of prosecution would have been after the issuance and service of a writ of scire facias and the heirs, or administrators, or executors had failed to appear and prosecute the suit.

In the condemnation case of Northeast Texas Municipal Water District v. Mims (Tex.Civ.App.1965), 389 S.W.2d 347, n.w.h., W. B. Mims, the defendant, had died during the pendency of the suit. Ap-pellee, the plaintiff, did not know of the death until the day the case was set for trial. A suggestion of death was filed by one of the attorneys. Since the case had been pending for quite some time, and had been specially set for trial, the attorneys for the plaintiffs insisted that they go ahead and try the lawsuit because there were quite a few of the heirs present. There had been no answer filed by any of the heirs, administrators, or executors. As a matter of fact, there was not a legal representative that had been served as a defendant. This case, too, was a contested case. The jury found quite favorably towards the deceased Mr. Mims and the plaintiff appealed. This court reversed the judgment of the trial court and remanded the case with instructions that the plea in abatement be sustained and that the appellant be permitted to make new parties. This is required by Rule 152 T.R.C.P., formerly Art. 2080, R.C.S.

Appellee bases much emphasis on the holding of the Supreme Court of Texas in Alexander v. Hagedorn (1950), 148 Tex. 565, 226 S.W.2d 996. Although appellee seemed to rely most heavily upon the negligence of the appellant, or the attorney that had been hired by the appellant’s former husband. Judge Brewster made the statement in the original opinion that: “Although negligence is a question of fact for the trial court, * * That, and that alone, would prevent a summary judgment in this case. In further discussing the matter, he made the statement that a party might be “betrayed by his attorney.” At least the attorney that had been hired to file the original suit was not on the job as he should have been. This does not prove that the appellant was guilty of any negligence at all. According to the pleadings in the original suit, and in appellant’s Bill of Review, appellee has borrowed in excess of $8,090.00. This money he is attempting to keep because of a mistake of a trial judge in not following the law and dismissing the original suit for want of prosecution. As said by Judge Smedley in his dissenting opinion in Alexander v. Hagedorn, supra,

“ * * * But this proceeding is a suit in equity. It is permitted to prevent manifest injustice. As observed by the Court of Civil Appeals, the question whether or not respondent was negligent was one of fact for the trial court.” Emp. added. Citing authorities.

Appellee places much emphasis on the period of time that has elapsed since the suit was filed and the case was dismissed for the want of prosecution. Of course, this all presents a question of fact of whether or not the appellant was guilty of negligence. In the case of Employers Reinsurance Corporation v. Holt (Tex.Sup.1966), 410 S.W.2d 633, the court said that a man who had injured his finger on March 8, 1955, and did not ask the Industrial Accident Board to rule upon the case until November 6, 1963, was still entitled to prosecute his suit in court. In that case, there was no death of anybody. The Board took the position that they did not have jurisdiction of the case because more than 401 weeks had passed since the date of the injury. The Supreme Court held otherwise.

In the case of Alexander v. Hage-dorn, supra, the Supreme Court speaks of extrinsic and intrinsic fraud. The law as announced in the Alexander v. Hagedorn case, is not applicable in the case at bar. This case seems to be governed by the law. Rule 150, T.R.C.P. “Death of a Party” was formerly Art. 2078, R.S.C. Rule 151 T.R.C.P. “Death of a Plaintiff” was formerly Arts. 2078 and 2079, R.C.S. Rule 330(b) T.R.C.P. was formerly Art. 2092, Sec. 18, R.C.S. These rules have the same force and effect as did the former statutes.

There has been another slight change in the law since the opinion was written in Alexander v. Hagedorn, supra, by the amendment of Rule 101, T.R.C.P., formerly Art. 2022, R.C.S., amended October 10, 1951, effective March 1, 1952 by making a citation issued to a defendant to read, in part, as follows:

“The citation shall be styled ‘The State of Texas’ and shall be directed to the defendant and shall command him to appear by filing a written answer to the plaintiff’s petition at or before 10 o’clock a. m. of the Monday next after the expiration of 20 days after the date of service thereof, stating the place of holding the court. * * * ” Emp. added.

If such had been the law at the time that Hagedorn was served with the citation, that case probably would not be in the books.

Since the appellee actually knew of the death of Mr. Bouknight prior to the time of the order of dismissal for want of prosecution, it became his duty to apprise the court of this fact. His attorney was an officer of the court. When they did not advise the court of the death of Mr. Bou-knight, they were guilty of fraud, accident and a wrongful act which prevented the appellant from prosecuting her suit. J. W. Crowdus Drug Company v. Turner (Tex. Civ.App.1925), 270 S.W. 1041, n. w. h.

A summary judgment cannot be granted that is contrary to the law. Neither can a summary judgment be granted when there are issues of material fact. Standard Life and Accident Insurance Company v. Tubbs (CCA 1965), 389 S.W.2d 338, n. w. h. The points of error are sustained.

The judgment of the trial court is reversed and the case is remanded with instructions to reinstate the same for a trial upon the merit.


text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Nell HEIM et vir, Appellees.
    No. 7765.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 21, 1967.
    Rehearing Denied March 21, 1967.
    Howard Waldrop, Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellant.
    Scott Baldwin, Jim Ammerman, Jones, Jones & Baldwin, Marshall, for appellee.
   DAVIS, Justice.

A compensation case. Plaintiff-appellee, Nell Heim, sued defendant-appellant because of an accidental injury she sustained on January 8, 1965, while she was employed by the Blue Buckle Overall Company, Inc., of Marshall, Harrison County, Texas. She alleged that the injury occurred while she was pulling real hard on a heavy piece of material and hurt her left hand, arm, entire body and nervous system. Appellant took the position that the injury occurred only to her left arm below her elbow and, in the alternative, to the loss of the use of her left arm.

Trial was to a jury which found that Mrs. Heim was injured on January 8, 1965; it consisted of injury to her left shoulder and neck; the injury resulted in total disability; the injury was a producing cause of the total disability; the beginning date of the total disability was January 8, 1965; and, such total disability is permanent. The jury further found that there was no partial disability; the injury to her left wrist extended to and affected her left shoulder and neck; the injury caused her to have to be hospitalized in January, 1966; and, the medical services rendered to her by Dr. George W. Tate were necessary. The jury further found that injuries were not limited to her left arm. Appellant has perfected its appeal and brings forward 42 points of error.

By its first 22 points, appellant complains of errors on the part of the trial court in submitting certain special issues to the jury on the ground that there is no evidence, insufficient evidence, and the evidence is insufficient to support the jury’s answers to the special issues. These points are grouped for argument in appellant’s brief. We have carefully examined the statement of facts, and find the evidence ’fully sufficient to uphold the jury’s verdict. We must review the statement of facts in the light most favorable to the verdict. Fisher Construction Company, et al. v. Riggs, et al., (1959) 160 Tex. 23, 325 S.W.2d 126. The evidence shows that Mrs. Heim was a well nourished young lady about 23 years of age, married, and the mother of one little girl. She had been working for some time and had never before received any injury. On January 8, 1965, she was a surger on a sewing machine. She was using a heavy machine to stitch blue jeans and overalls. On the day of the injury she was working with extra rough material (extra heavy material) and required her to do quite a bit of pulling to make them match in the crotch. She was required to pull back on the material extremely hard with her left hand and in doing so, there was a sharp pop in her left wrist, and pain in her arm, shoulder, and her neck. She reported the injury immediately. In the course of her treatment, she was sent to about 7 doctors; two in Shreveport, Louisiana; one in Scott-White Hospital in Temple, Texas; and two or three in Longview, Texas. Only two doctors testified in the trial of the case. One was Dr. George W. Tate of Longview, Texas. The appellant paid for her first treatments by Dr. Tate, who testified very positively that she had always complained of pain in her left wrist, arm, shoulder and neck. At first, Dr. Tate did not think there was anything wrong with her shoulder and neck, and the injury was only to her left wrist. Soon after the injury, there was a swelling appeared on her left wrist which had to be removed by surgery. It was diagnosed as a ganglion. Dr. Tate testified that she had a nerve injury that resulted in an injury to her neck and left shoulder. He testified that she had alter nerve function which apparently caused muscle spasm in her neck and left shoulder that causes cramps at the base of the head, in the neck and her left shoulder. He further testified that the curvature of her neck was more straight then was normally found. He testified that Mrs. Heim was totally and permanently disabled from receiving and holding a job of regular employment.

Dr. T. M. Oxford of Shreveport, Louisiana, the orthopedic surgeon who did the surgery on Mrs. Heim’s left wrist to remove the ganglion, testified for the appellant. He testified that he had seen Mrs. Heim on July 27, 1965, and on that day he did the surgery. He did not see Mrs. Heim but on two subsequent occasions. He did not place any disability at all on Mrs. Heim’s left wrist, or the loss of the use of her left arm. Dr. Oxford did not make a physical examination of Mrs. Heim to see whether or not there was any injury to her nervous system as the result of the injury.

There were other doctors who saw her there in Marshall that are excellent doctors, and they were not called to testify.

Dr. Tate used certain items to define her pain injuries such as a cable or rope. His testimony seems very reasonable and was apparently believed by the jury. He demonstrated in great detail the nerve could be impeded if not prevented by scar tissue. Dr. Tate testified very positively that this injury to a nerve accounted for the pain and disability that she had in the area of her shoulder and neck; and, that her condition was worse than when he first saw her, because she had more atrophy, more weakness, and more muscle spasm. If the injury was only to Mrs. Heim’s left arm, she alleged and proved that the injury extended to and affected other portions of her body. There is substantial evidence, and the evidence is fully sufficient, to support the verdict. In re King’s Estate (1951) 150 Tex. 662, 244 S.W.2d 660. The points of error are overruled.

By its points 23-26, appellant says the trial court erred in refusing to grant it a mistrial based upon the argument of one of Mrs. Heim’s attorneys, wherein he referred to the appellant as being like, an octopus; where he, in answer to an objection, said that their tactics of the trial were like an octopus; the comment of the trial court in response to its motion for mistrial is as follows: “You of the jury have observed the argument of all of the attorneys during the trial of this case. I overrule the motion for mistrial”; and, the accumulative effect of the acts of misconduct in connection with the comments of the court vested such prejudice upon the appellant as to compel a mistrial.

To set the record straight, the following is what happened:

“ * * * Now on that, let me just say this parenthetically, they try to come in here, and they are like an octopus, when they get in trouble they squirt—
MR. WALDROP: If the court please, I am going to object to that as being highly prejudicial, to refer to my client as an octopus, and at this time I would like to
move for a mistrial based upon Mr. Baldwin’s reference to Travelers Insurance Company as an octopus.
MR. BALDWIN; Well, I didn’t refer to the Insurance Company as an octopus, your Honor, I said their tactics of the trial—
MR. WALDROP: If the court please, I again move for a mistrial, and I think Mr. Baldwin is deliberately compounding his error by his reference to me, he is talking now about my acting as an octopus. It is highly prejudicial.
THE COURT: You of the jury have observed the conduct of all the Attorneys during the trial of the case. I overrule the motion for a mistrial.”

As we view the evidence as a whole that was presented in the trial of this case, we cannot conceive of how the argument could have persuaded any juror of ordinary intelligence to agree to the verdict that would be contrary to the one that was agreed upon. It does not seem that the objectionable argument does require a reversal. McCorstin v. Mayfield (CCA 1955) 274 S.W.2d 874, error dismissed; Pacific Employers Insurance Company v. Guillory (CCA 1958) 310 S.W.2d 584. In 4 Tex. Jur.2d 588, Sec. 946, it is said, in part, as follows :

“ * * * To justify a reversal a substantial probability must be shown that the jury’s findings or verdict were, by the improper argument or conduct of the counsel, affected adversely to the losing party.
“ * * * The burden is on the complaining party to show that the improper argument was reasonably calculated ' to cause and probably did cause rendition of an improper judgment.
“ * * * There is no presumption of prejudicial error where the impropriety in the argument is immaterial, or the argument is based on immaterial matters.”'

It presents quite a burden upon the Court of Civil Appeals to assume that certain arguments made in the trial of a case actually caused the rendition of an improper judgment. It is first the duty of the trial judge to make that decision. When the trial judge exercises his “rather fine discretion”, Benson v. Missouri, K. & T. Ry. Co. (CCA 1946), 200 S.W.2d 233, W.R., N.R.E., the argument would not result in the entry of an improper judgment and they raise that point on appeal, it presents to the Court of Civil Appeals a most difficult task. Dyer v. Hardin (CCA 1959) 323 S.W.2d 119, W. R., N.R.E. Rule 434, V.T.R.C.P., the second paragraph, reads as follows:

“Provided, first, that no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellant court; and if it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error.” Emphasis added.

Many cases have been decided both ways. It seems that the Supreme Court of Texas is getting away from so many reversals because of oral argument. In the case of Whitener v. Traders and General Ins. Co. (1956) 155 Tex. 461, 289 S.W.2d 233, in writing on the question of jury argument, the court said:

“That portion of the argument which the Court of Civil Appeals considered the most harmful arose from counsel’s efforts to belittle medical testimony offered by respondent in connection with a prior back ailment of petitioner. The statement is as follows:
“ ‘One of the doctors got on the stand and said it was evolutional melancolía. “What is that, doctor?” “Oh, that is the middle age, that is the change of life. Like a woman, the middle age change of life”. Another doctor, “What is his trouble, Dr. Wilcox?” “Old age, it is old age.” I was expecting that maybe Dr. Wolfe would come in here and say in this case of Mr. Whitener’s maybe he ought to have his unnecessary female organs removed, and let us hear it. Talk about inconsistencies.’ ”
“Respondent contends that the effect of this argument was to comment upon the fact that Dr. Wolfe was not called as a witness and would have testified differently from other witnesses for respondent. We do not so interpret the argument. Dr. Wolfe was a physician of petitioner’s own choice. It seems that if any inference was to be drawn it was rather that petitioner’s own doctor would have agreed that petitioner’s condition was due solely to old age rather than to an injury. At worse the remarks were inappropriate and a misplaced attempt at humor.” Emphasis added.

In the case of The Travelers Insurance Company v. Broadnax (CCA 1963) 365 S. W.2d 683, n. w. h., there is quite a discussion on adverse prejudicial jury argument. See, also, the case of Traders & General Insurance Company v. Smith (CCA 1958) 311 S.W.2d 91, W.R., N.R.E.; Aultman, et al. v. Dallas Railway and Terminal Company (1953) 152 Tex. 509, 260 S.W.2d 596.

Appellant relies most heavily upon the case of Southwestern Greyhound Lines, Inc. v. Dickson (CCA 1949) 219 S.W.2d 592, N.W.H. The court relied upon the case of Smerke v. Office Equipment Company (1941) 138 Tex. 236, 158 S.W.2d 302. The Smerke opinion was written prior to the adoption and effect of Rule 434, Vernon’s Rules of Texas Civil Procedure. In the case of Condra Funeral Home v. Rollin (1958) 158 Tex. 478, 314 S.W.2d 277, the Supreme Court, in effect, overruled the decision in the Dickson case, supra. The points are overruled.

We have carefully examined and considered each of appellant’s points of error 27 through 42, and find that each of them do not contain any merit. They are overruled.

Judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    R. L. DEWS et ux., Appellants, v. B. C. FLOYD et al., Appellees.
    No. 272.
    Court of Civil Appeals of Texas. Tyler.
    March 30, 1967.

      Charles E. Coleman, Tyler, for appellants.
    Lawrence & Lawrence, Wm. M. Williams, Jr., Tyler, for appellees.
   DUNAGAN, Chief Justice.

This suit was instituted, by appellees, as the plaintiffs in the court below, on September 13, 1965, against appellants.

Following the filing of defendants’-appellants’ original answer, plaintiffs-appellees filed their first amended original petition on December 6, 1965. On February 18, 1966, appellants filed their first amended answer and it was on these pleadings that the case went to trial before the court without the aid of a jury on June 17,1966. The suit was brought to recover indebtedness due under a contract of sale prior to its rescission, for balance due on a promissory note, and for attorney’s fees.

On March 3, 1964, appellants and appel-lees entered into a valid contract in good faith by which appellees were to sell a house and lot in the City of Tyler to appellants. Appellants were to pay a certain sum each month and keep up the taxes and insurance. Upon completion of performance by appellants, appellees were to convey title to them. There were certain expenses in connection with the making of the contract, which expenses appellants were unable to pay and which were represented by a promissory note given by appellants to appellees in the amount of $236.00.

On March 1, 1965, appellees considered appellants to be in default and brought a forcible detainer proceeding in the justice court, Precinct No. 1, Place No. 2, Smith County, Texas, in which they sought judgment for restitution of the premises described in the purchase contract costs, and for such other relief as they “may be entitled to, either in law or in equity.” The justice court granted appellees possession of the premises and also a judgment for the snm of $443.64 as rent and costs; however, the judgment was found void by the trial court in this case insofar as it allowed the money judgment, since the money judgment exceeded the jurisdictional amount in the justice court.

Because the money judgment awarded by the justice court exceeded the jurisdictional amount of such court, suit was brought in the 7th Judicial District Court of Smith County for the indebtedness accruing to appellees under the contract of sale prior to the rescission thereof, which included the unpaid balance due and owing on the principal, taxes, insurance, the balance due on the $236.00 promissory note and for attorney’s fees.

The pertinent portions of the contract, which forms the basis of this lawsuit, read:

“The purchase price is Nine Thousand Five Hundred and No/100 ($9,500.00) Dollars. Purchaser agrees to pay the purchase price as follows: $250.00 cash as down payment, * * * and the payment thereafter of equal monthly installments in the amount of Eighty-Five and no/100 ($85.00) Dollars each, the first installment to become due and payable on or before April 1, 1964, and a like installment to become due and payable on or before the 1st day of each succeeding month thereafter until the entire indebtedness is paid, * * *.
“ * * * and Purchaser herein agrees to pay all taxes due on the above described premises during the time this contract is in force * * *.
« * * *
“If Purchaser fails to comply with any of the conditions and obligations agreed to and assumed herein, the Seller may at his option declare the entire balance of the purchase price due and collectible or may rescind this contract; and in the event of rescission, all payments already made by the Purchaser herein shall be taken and retained by the Seller not as a penalty but as and for liquidated damages for the breach of this contract; and Purchaser herein is to make payment on or before each installment due date, and in the event Purchaser is as much as thirty (30) days delinquent, on any installment due date, Seller herein may exercise his option herein given to rescind the contract, and the failure of the Seller to exercise such option at the time of any default shall not operate to bar or abridge his right to exercise such option upon any subsequent default of the Purchaser. A letter addressed in the ordinary mails to the Purchaser at his last known post office address shall be sufficient notice of the exercise of such option by the Seller and within ten (10) days from the mailing of said notice, Purchaser agrees to deliver possession to the Seller.
“In the event it becomes necessary for the Seller herein to employ an attorney or attorneys to file suit against Purchaser herein, for collection of the balance due under this contract or for possession of said premises, then and in that event, Purchaser herein agrees to pay any reasonable attorney’s fees that Seller may have been forced to expend in connection with this contract.
“In the event Seller elects to declare this contract null and void and of no further force and effect through failure of the Purchaser to carry out the terms of this contract and make the payments of principal and interest when due, the Seller shall be entitled and shall receive full surrender and possession of said premises and improvements thereon, and the Purchaser agrees that the Seller may begin dispossession proceedings in any court for such possession as against a monthly tenant if and when the monthly payments as stipulated herein are not paid on or before the 1st day of each month when due. Then and in that event, this agreement at the option of Seller or his legal representatives or assigns shall become and be void and of no effect except as to this clause and the Seller shall be entitled to immediate surrender and possession of said premises.”

Several months after the contract was executed, appellants fell in arrears and never thereafter got back on a current basis. They not only fell in arrears on the monthly installment payments, but failed to pay the taxes and insurance. Therefore, it became necessary for appellees to assume payment of these obligations as provided by the terms of the contract.

After having defaulted, appellants continued to reside on the premises and forced appellees to bring the forcible detainer proceeding to recover possession as herein-above stated.

The court in the instant case entered judgment for appellees in the sum of $573.-10, together with interest thereon at the rate of eight percent (8%) per annum from date of judgment and all costs of suit. The judgment did not award appellees a recovery for any sum of money due and owing them that accrued after rescission, except the $100.00 for attorney’s fees which the court found to be a reasonable sum for the services rendered. From this judgment, appellants have appealed.

Also, the trial court filed findings of fact and conclusions of law in which it found that:

(a) Sometime during the fall of the year of 1964, the appellants fell in arrears in their installments set out in the contract and were never thereafter on a current basis.
(b) The appellants were notified on or about April 28, 1965, that the contract was in default and proper and timely demand was made of them for possession of the premises.
(c) The premises were released by the appellants only after the filing of a forcible entry and detainer suit and judgment was entered therein.
(d) The appellants were obligated to pay under said contract and there accrued and was due to be paid to the appellees before the rescission the sum of $78.00 as unpaid installment payments.
(e) Under the contract, the appellants promised to pay the county, state, Tyler Independent School District and Tyler Junior College taxes for the year 1964.
(f) The composite of the taxes for the said state, county, school district and Junior College for the year of 1964 was $154.64.
(g) The appellants have never paid this sum or any part thereof, but the appel-lees did pay such taxes for appellants.
(h) The sum of $154.64 in taxes paid by the appellees was added to the sum due by the appellants to the appellees under the said contract.
(i) The appellants had the undisturbed use and occupancy of the premises described in the contract for the period of time from the date of the contract until the same was released on or about the 28th day of May, 1965.
(j) The value of such use and occupancy of the premises during the period from March 3, 1964, through and until the time of the said release of the premises by the appellants, after allowing all proper offsets and credits so due, is the sum of $78.00.
(k) The appellants were unjustly enriched in the amount of $154.64 by the use of the premises without paying for the taxes indicated.
(l) The appellees employed the firm of Lawrence & Lawrence, attorneys at law, to represent them and prosecute their rights under the contract herein involved. Such law firm did treat and negotiate with the appellants, file a forcible entry and detainer action, attend hearings thereunder and file this litigation and carried it through trial and judgment. The sum of $100.00 is a reasonable attorney’s fee for such services of said law firm.
(m) The appellants executed and delivered a promissory note dated March 3, 1964, in the original principal amount of $236.00.
(n) This note became in default in July, 1964.
(o) After allowing all proper credits, the sum of money due under this promissory note as of the date of the judgment in this cause was the sum of $240.64.
(p) Appellees, by the letter dated April 27, 1965, and received by appellants on April 28, 1965, giving notice to appellants that the contract was in default and demanding possession of the premises, was notice of their intention to rescind the contract in question.
(q) The appellees did file a forcible entry and detainer suit against the appellants and a judgment was entered in justice court, Precinct No. 1, Place No. 2, Smith County, Texas, for the recovery of possession of the premises in question and for the sum of $443.64 as rent, together with all costs of suit.
(r) No evidence was offered by the appellants at the hearing and trial in contravention of any of the facts and proof of the appellees.

The appellants contend “It was reversible error for the Court to render judgment in favor of Appellees, because such judgment is not supported by, and is contrary to, the findings of the Court, * * * ”

The basis of appellants’ contention, it seems, is that the appellees elected to rescind the contract and obtained possession of the premises, having so elected, all of appellants’ obligations under the contract were terminated. In support of this contention, the appellants argue that appellees, having elected to rescind the contract and bringing the action in justice court, are estopped to maintain the present action. Appellants further argue that once an election had been made to rescind the contract and judgment for the sum of $443.64 had been secured in justice court, representing the same relief asked for in this court, no further action could be maintained under the contract in question. Appellants’ contention is overruled.

The only relief sought under the contract by appellees in their pleading in the justice court was for “judgment for restitution of said premises and for costs, and for such other relief as [t]he[y] may be entitled to, either in law or in equity.” This suit was brought by the appellees for the purpose of recovering possession of the property described in the purchase contract.

The judgment entered in the justice court allowed the following recovery:

“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Plaintiffs, B. C. FLOYD and LEROY FLOYD, have restitution for which let writ issue, of the premises described in their complaint, * * *.
“and further that they do have and recover of and from Defendants, R. L. DEWS and wife, MEARLEAN DEWS, the sum of $443.64, as rent and all costs of suit, for which let execution issue.”

That part of the judgment entered in the justice court awarding to appellees the sum of $443.64 exceeds the jurisdictional amount of the court. Therefore, it is obvious that in this respect the judgment on its face is void.

Furthermore, the only relief sought by the appellees in the justice court, other than for restitution of the premises and costs, was for what they were “entitled to, either in law or in equity.” Therefore, not being entitled to recover judgment for the sum of money as was awarded by the justice court, “either in law or in equity,” appellees’ prayer for relief did not include a recovery for any portion of the money judgment awarded them in the justice court case. Under this state of the record, it is apparent that the appellees for the first time sought to recover for monies due them under the contract and on the promissory note in the suit filed in the 7th District Court and now before us.

A void judgment has been termed mere waste paper, an absolute nullity; and all acts performed under it are also nullities. Again, it has been said to be in law no judgment at all, having no force or effect, conferring no rights, and binding nobody. It is-good nowhere and bad everywhere, and neither lapse of time nor judicial action can impart validity. Commander v. Bryan, 123-S.W.2d 1008, (Tex.Civ.App., Fort Worth,, 1938, n. w. h.); 34 Tex.Jur., Sec. 262, page-177; Maury v. Turner, 244 S.W. 809, (Tex. Com.App., 1922).

Also, a void judgment has been defined as-“one which has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at anytime and at any place directly or collaterally.”' Black’s Law Dictionary; Reynolds v. Volunteer State Life Ins. Co., 80 S.W.2d 1087,. (Tex.Civ.App., Eastland, 1935, writ ref.); Gentry v. Texas Department of Public Safety, 379 S.W.2d 114, 119, (Tex.Civ.App., Houston, 1964, writ ref., n. r. e., 386 S.W.2d 758).

In Commander v. Bryan, supra, the court said:

“Nor will a void judgment be given effect of res adjudicata in a subsequent suit involving the same subject matter.
‘A judgment void upon its face and requiring only an inspection of the record to demonstrate its invalidity, is a mere nullity, in legal effect no judgment at all, conferring no right and affording no justification. Nothing can be acquired or lost by it; it neither bestows nor extinguishes any right, and may be successfully assailed whenever it is offered as the foundation for the assertion of any claim or title. * * * ’ ” (Emphasis added).

Where a court rendering judgment does not have jurisdiction, the judgment is void and cannot operate as res adjudicata; it neither binds, bars, nor estops anyone. 34 Tex.Jur.2d, Sec. 467, page 514.

It has also been held that “It is not necessary to take any steps to have a void judgment reversed, vacated or set aside. It may he impeached in any action direct or collateral.” Holder v. Scott, 396 S.W.2d 906, (Tex.Civ.App., Texarkana, 1965, writ ref., n. r. e.).

When the judgment is not merely erroneous, but an absolute nullity, it can have no binding force or effect, either in the tribunal in which it is rendered, or in any other in which it may be brought in question. Milan County v. Robertson, 47 Tex. 222; Barton v. Montex Corporation, 295 S.W. 950, (Tex.Civ.App., Austin, 1927, n. w. h.).

Furthermore, if it appears that, on account of the limited jurisdiction of the justice court in which the forcible entry and detainer proceedings are pending, all matters between the parties cannot be adjudicated, either party may maintain an action in a court of competent jurisdiction for proper relief. Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307, 309, (Tex.Sup., 1935).

Article 3994, Vernon’s Ann.Texas Civil Statutes, reads: “The proceedings under a forcible entry, or forcible detainer, shall not bar an action for trespass, damages, waste, rent or mesne profits.”

It has been the uniform holding under this Article that a forcible entry and de-tainer proceeding is not exclusive, but is cumulative óf any other remedy that a party may have in the courts of this state. Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 103 A.L.R. 977 (1936); Holcombe v. Lorino, supra; Bull v. Bearden, 159 S.W. 1177, (Tex.Civ.App., Fort Worth, 1913, n. w. h.) ; 103 A.L.R. 977; See 25 Tex.Jur.2d, Sec. 6, page 470.

Jurisdiction to recover possession of property by those who are entitled to the possession thereof is vested by Article 3973, Vernon’s Annotated Texas Statutes, 1925. The proceeding is by a forcible entry and detainer or a forcible detainer suit as the case may be. The primary object of such a suit is a recovery of possession. The primary issue is a right to possession. There may be joined in said suit a cause of action to recover delinquent rents payable under the contract if the amount is within the jurisdiction of the justice court. Rule 738, Texas Rules of Civil Procedure. However, this is rent as such and not damages for wrongful withholding of the premises or other benefits accruing to the appellees under the contract. This is all the relief that may be given in the justice court. Haginas v. Malbis Memorial Foundation, 349 S.W.2d 957, (Tex.Civ.App., Houston, 1961), and Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368, (1962, affirming the Court of Civil Appeals).

It seems that Rule 738 which permits suits for rents in connection with one for forcible entry and/or forcible detainer applies to suits of landlords against their tenants, where the rents claimed are in such amount as the justice court would have jurisdiction of. Hengy v. Hengy, 151 S.W. 1127, 1132, (Tex.Civ.App., San Antonio, 1912, n. w. h.). This not being a suit between landlord and tenant, therefore we do not construe any part of the relief sought by appellees in the justice court to be an action for rent.

Moreover, the sum of $443.64 recovered in the justice court was for rent only. Thus, it appears that this judgment does not cover any of the items sued for in the District Court. Therefore, even though appellees had sought and recovered judgment in the justice court for monies due them under the contract (which this record does not so show) representing the same relief in whole or in part sought in the instant case, the judgment allowing such recovery being void, consequently, they recovered nothing that was awarded them by the judgment now before us for review. So, appellees’ rights to recover judgment for any monies accruing to them under the contract of purchase were not adjudicated in the justice court case.

Moreover, rescission is an equitable remedy. Complete and full justice is a fundamental doctrine of equity jurisprudence, and if damages, as well as rescission, are essential to accomplish full justice, they will both be allowed. Holland v. Western Bank & Trust Co., 56 Tex.Civ.App. 324, 118 S.W. 218, (1909, n. w. h.).

Appellants do not attack the contract in any way or deny that they owe the note. Appellants stipulated in the trial court that the attorney’s fees sued for and allowed by the court were reasonable. As a matter of fact, they do not deny the justness of any part of appellees’ claim of indebtedness sued for in this case and found by the trial court to be due and owing to appellees.

The trial court’s findings of fact and conclusions of law, which we find to be amply supported by the evidence, adequately supports the judgment here under review. Stinson v. Sneed, 163 S.W. 989, (Tex.Civ. App., Amarillo, 1914, n. w. h.); Bailey v. Mann, 248 S.W. 469, (Tex.Civ.App., El Paso, 1923, n. w. h.); Gray v. Merritt, 276 S.W. 187, (Tex.Com.App., 1925); Groce v. P. B. Yates Mach. Co., 288 S.W. 161, (Tex.Com.App., 1926).

Judgment affirmed.


author: NORTHCUTT, Justice.

text:
    TRIO TRANSPORT, INC., Appellant, v. A. J. HENDERSON, Appellee.
    No. 7689.
    Court of Civil Appeals of Texas. Amarillo.
    March 6, 1967.
    Rehearing Denied April 3, 1967.

      Albert Smith, Lubbock, for appellant.
    Richard C. Milstead, Big Spring, and Calvin W. Wesch, Kermit, for appellee.
   NORTHCUTT, Justice.

This is a personal injury suit brought by A. J. Henderson, as plaintiff, against Trio Transport, Inc., as defendant, to recover damages based upon the theory he was damaged by the negligence of the defendant. On September 10, 1962, the plaintiff was employed by St. John Drilling Company as a driller on an oil and drilling rig. On such date the drilling company had completed the drilling of the well and desired to move the drilling rig to another location. St. John Drilling Company employed Henderson and his crew to let down the derrick and get it ready to be loaded and Trio Transport, Inc. was hired to do the actual loading and hauling of the derrick to the new location. While the derrick was being loaded it fell and injured plaintiff.

The case was submitted to a jury upon special issues. In answer to the issues the jury found that the winch and truck in question were under the exclusive control and management of the defendant; that the falling of the derrick in question was due to the negligence of the defendant; that such negligence was a proximate cause of the falling of the derrick; that the defendant did not fail to have the derrick properly supported; that Melvin Terry (defendant’s employee in charge of truck and winch) did not fail to properly engage the winch clutch in gear; that Melvin Terry failed to determine if the winch clutch was properly engaged after he threw the toggle switch; that such failure was negligence and that such negligence was a proximate cause of the falling of the derrick; that Melvin Terry did not fail to properly adjust the automatic brakes on the winch so as' to prevent the bottom section of the derrick from falling; that Mr. Eaton (employee of defendant) was in charge of loading the derrick on the occasion in question; that Eaton told Henderson not to get under the derrick on the occasion in question; the jury was then asked if they found that Henderson went under the derrick after being told by Mr. Eaton not to go under it and the jury answered, “No”; that same was not negligence nor a proximate cause of his injuries; that there was a danger that the derrick section might fall when Henderson went under the derrick to clear the lines; that Henderson did not know or appreciate the danger that the derrick section might fall; that Henderson voluntarily exposed himself to the risk when he went under the derrick to clear the lines; and that the falling of the derrick was not an unavoidable accident. The remaining issues concern amount of damages. Upon the verdict of the jury the trial court rendered judgment for the plaintiff. From that judgment the defendant perfected this appeal. The parties will hereafter be referred to as they were in the trial court.

The derrick was divided into three sections and designated as “top section,” “middle section” and “bottom section.” The top and middle sections had been loaded, ready to be hauled. The bottom section, weighing several thousand pounds, was to be raised high enough so that the said second section could be backed under the bottom section. The bottom section had been raised to a sufficient height for the second section to back under it and while in that position, the plaintiff ran under the bottom section to untangle some lines and the section fell, injuring the plaintiff.

The plaintiff first pleaded ten separate acts of negligence which he contended defendant was guilty of as being a proximate cause of plaintiff’s damages, then pleaded in the alternative that the plaintiff was entitled to rely on the doctrine of res ipsa loquitur. Plaintiff alleged the defendant was negligent in failing to keep a proper lookout for the safety of the plaintiff; in failing to have the derrick it was moving properly supported; in having a defective clutch on its truck; in failing to properly engage the winch clutch in gear; in failing to check to see and determine if such winch clutch was properly engaged before using said winch to lift the bottom section of the derrick; in throwing the switch or lever on the winch clutch while the derrick was suspended in the air thus disengaging said winch clutch while the plaintiff was under the derrick; in disengaging the gear on the winch while said derrick was suspended in the air; in operating the truck with a defective winch clutch when it knew or by the exercise of ordinary care should have known of its defective condition; in failing to properly set the brakes on the winch so as to prevent the bottom section of the derrick from falling rapidly to the ground; and in operating said winch with defective brakes.

The plaintiff testified it was his job to get the derrick ready to be loaded but that defendant did the actual loading and hauling off and that he, the plaintiff, had nothing to do with the loading and hauling off. Plaintiff further testified that it was his job to tie off the lines inside of the derrick after it was loaded and you could not tie the lines up before the bottom section was loaded on the middle section. It was Trio Transport, Inc.’s job to load and transport the derrick. Terry and Eaton were the employees of defendant. Eaton was in charge of the loading of the derrick. After the bottom section was raised into the air the long line fouled and the plaintiff, an employee of the owner of the derrick, immediately ran under the bottom section to keep the lines from being cut or snagged, but the line would not have kept the derrick from being loaded. It was while the plaintiff was under this section of the derrick that it fell and injured the plaintiff.

The only evidence in this record as to what caused the derrick to fall is that the dogs on the clutch on the winch kicked out. Eaton was asked by the plaintiff’s attorney, “Tell me what you think happened.” Eaton’s reply was that he knew what happened but he didn’t know what caused it. Then he testified the dogs kicked out. There was other evidence to the effect showing that the clutch had dogged out. Under the finding of the jury there were only two theories upon which a judgment could be based in favor of the plaintiff. The first three findings were based upon the rule of res ipsa loqui-tur. In answer to the first issue the jury found that the winch and truck were under the exclusive control and management of the defendant. That is not a disputed issue, as defendant’s own evidence admitted that to be correct. In answer to Issue 2 the jury found the falling of the derrick was due to the negligence of the defendant, its agents or employees and, third, that such negligence was a proximate cause of the falling of the derrick.

After the plaintiff had rested the defendant filed a motion for an instructed verdict based upon the fact that res ipsa loquitur had gone out of the case and that there was no evidence of sufficient probative force to justify the submission of any issue relating to specific acts of negligence. A like motion was presented when both parties announced that they had closed. Both motions were overruled.

By defendant’s fifth point of error it is contended that the court erred in refusing to disregard the jury’s findings in Special Issues Nos. 2, 3, 10, 11 and 12 and to enter a judgment for the defendant because there was no evidence that the defendant was negligent or that his negligence was a proximate cause of plaintiff’s injuries.

The only other issues other than under the rule of res ipsa loquitur that were found in favor of the plaintiff were Issues 10, 11 and 12. In answer to these issues the jury found that Terry failed to determine if the winch clutch was properly engaged after he threw the toggle switch, if he did; that such was negligence and was a proximate cause of the falling of the derrick. The jury found further that it was not an unavoidable accident.

We must first consider whether the rule of res ipsa loquitur is applicable to the facts herein. There are many cases discussing that rule but few are of value here as each case must be determined on its own peculiar facts. The doctrine of res ipsa loquitur, meaning the thing speaks for itself, is a qualification of the general rule that negligence is not to be presumed but must be affirmatively proved. It is stated in the case of Longoria v. Violet Gin Company, Z309 S.W.2d 484, (Tex.Civ.App.—San Antonio, 1958, writ ref’d n. r. e.) as follows:

“The evidence was insufficient to invoke the doctrine of res ipsa loquitur, in that it fails to show that the injury could only have occurred by the negligence of Jerome Jalufka or one of his agent, employees or servants. McClish v. R. C. Young Feed & Seed Co., Tex.Civ.App., 225 S.W.2d 910; Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791; Comet Motor Freight Lines v. Holmes, Tex.Civ.App., 175 S.W.2d 464; Montgomery Ward & Co. v. Sewell, 5 Cir., 205 F.2d 463, 38 Am.Jur. 996; Alley v. Texas Electric Service Co., Tex.Civ.App., 134 S.W.2d 762; Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659.”

The evidence in this case clearly shows what happened. The dogs kicked out causing the derrick to fall. Immediately after the accident here in question the same truck and winch were used to load the derrick in the same manner as before and no trouble was encountered. After the accident the winch was inspected by two or three disinterested parties and the truck and winch had been in continuous use from some time thereafter. Nothing had even been found wrong with it. Terry, the only one in charge of the truck and winch, had raised the derrick to about ten feet in the air and had stopped it and applied the instruments to hold the derrick and had turned around and was not touching any of the instruments when the derrick fell. The undisputed evidence here is that the dogs kicked out and that was the cause of the derrick falling and no inference of any other cause of the injury was presumable.

It is stated in Whitehead v. Montgomery, 228 S.W.2d 196 (Tex.Civ.App.—Waco, 1950, writ ref’d n. r. e.) as follows:

“ ‘The undisputed evidence shows that in hoisting the stringer, the ring to which the chains attached to the grappling hooks used by appellee were fastened slipped off of the large hook on the end of the pulley chain and this caused the timber to fall. The immediate cause of the accident being thus shown, there was no room for the application of the res ipsa loquitur rule; the only issues for the jury (aside from that of contributory negligence) being whether appellant was negligent in using this method of fastening the grappling hook chains to the pulley chain, and whether such negligence was the proximate cause of the injury.
* * * * * *
“ ‘Presumptions or inferences cannot be indulged against proven facts; both give way when facts appear. When the evidence disclosed that the ring to which the grappling hook chains were attached slipped off the large hook at the end of the pully chain upon which it was placed, and this caused the timber to fall, no inference of any other cause of the injury was presumable and the rule of res ipsa loquitur could have no application.’
“This holding by our Texas courts is substantially the same rule as found in 38 Amer.Jur. sec. 303, p. 999.
“Our view is that the foregoing quotation is pertinent- and applicable to the case at bar and that the trial court’s judgment cannot be sustained on the theory of res ipsa loquitur. Here the evidence is without dispute that all the facts and circumstances relating to the falling of the truck while it was being moved are in evidence. It is without dispute that one of the chains that was being used to hold the truck up and in place so that it could be moved snapped and that this caused the truck to fall to the pavement. There is no contention that the truck was damaged while being moved by defendant other than the damage it received when the chain snapped. Such being the undisputed facts no inference of any other cause for the injury was presumable and the rule of res ipsa loquitur could have no application here.”

See also Robertson v. Southwestern Bell Telephone Co., 403 S.W.2d 459 (Tex.Civ. App.—Tyler, 1966, no writ) as follows:

“The law is well settled in Texas that where the evidence shows that an accident may have happened as the result of one or two or more causes, and it is not more reasonably probable that it was due to the negligence of the defendant than to any other cause, the doctrine of ‘res ipsa loquitur’ does not apply. Benkendorfer v. Garrett, 143 S.W.2d 1020, (Tex.Civ.App.) 1940, err. dism., judg. corr.
“In the case of Davis v. Castile, 257 S. W. 870, (Tex.Com.App.) 1924, it is stated as follows:
‘Again, where the evidence shows that the accident may have happened as the result of two or more causes, and it is not more reasonably probable that it was due to the negligence of the defendant than to any other cause, the rule of res ipsa loqui-tur does not apply. * * * ’
“To the same effect see Montgomery-Ward & Co., Inc. v. Sewell, 205 F.2d 463, (5th Cir., 1953) (a Texas case); Worth Steel Corporation v. Gartman, 361 S.W.2d 426, (Tex.Civ.App.) 1962, writ ref., n. r. e.”

We are of the opinion, and so hold, that the rule of res ipsa loquitur does not apply in this case and that Special Issues 2 and 3 and the answers thereto will not support a judgment for the plaintiff.

Special Issue 10 was as follows: “Do you find from a preponderance of the evidence that Melvin Terry failed to determine if the winch clutch in question was properly engaged after he threw the toggle switch, if he did?” Then by Special Issues 11 and 12 if such failure was negligence and proximate cause. The jury answered all three of those issues, “Yes.” The toggle switch is a little switch placed outside of the truck cab where you can reach it and all you have to do is to reach outside and flip (what they called a little button). When you throw that switch that causes the air to force the free-wheeling dogs to go into the grooves on the winch itself. The dogs on the clutch had not been worn and when he flipped the toggle switch if it had not put the winch in gear it never would have picked up the derrick. Terry further testified that if the clutch was in gear the winch would work but if it was out of gear it wouldn’t work. The winch did work and the derrick lifted for loading but the clutch dogged out and the derrick fell. The jury found that Terry did not fail to properly engage the winch truck in gear. The defendant objected to the submission of Special Issue 10 because it assumed that the clutch was not properly engaged. Mr. Stanley was placed on the stand by plaintiff as an expert on the handling of trucks and winches as here involved and testified in part as follows:

“Q. Mr. Stanley, you said that the dogs don’t always go in gear, I believe that is what you said?
“A. Yes, sir.
“Q. When you are using the winch line you always have a little slack to take up?
“A. Yes, sir, usually.
“Q. When you are talking about this truck driver should look once in a while?
“A. Well, he should.
“Q. That is what I am getting at.
“A. Yes, sir.
“Q. But if the dogs don’t engage it won’t even pick up your slack, will it?
“A. That’s right.
“Q. I can stand out there and pull it if the dogs are not engaged and the winch running, can’t I?
“A. Yes, sir.
“Q. So, it won’t even pick up the slack, would it?
“A. No, sir.
“Q. Now, in your experience as a truck driver, whenever it picks up the slack and starts moving a load there is no necessity in looking, because they are engaged, aren’t they?
“A. You assume they are—
“Q. You would sure assume it, wouldn’t you?
“A. Yes, sir.
“Q. There wouldn’t be any point in getting out and kicking them, would there ?
“A. No.
“Q. If it ever moves the slack you have got to assume they are in gear?
“A. Yes, sir.
“Q. And you will know by that slack, by the feel of your winch, and your motor, because you are not looking at your winch, are you, you are looking at your man out there?
“A. Yes, sir.
“Q. You know by the strain that your truck is taking whether they are in gear or not, don’t you ?
“A. Yes, sir.
“Q. And you don’t look, and you don’t do anything?
“A. No, sir.”

There is no testimony in this record showing any negligence on the part of Mr. Terry. The machinery had worked and before the accident there was nothing to even suggest why Mr. Terry should even question the winch clutch was not properly-engaged. The plaintiff testified, “Something that happens sometimes that you just can’t explain, or foresee, or do anything about it, and, yet, it does happen”; he just didn’t know anything that defendant could have done. Others knew what happened but did not know why. We are of the opinion that the undisputed record shows that there was some failure of the machinery through no fault or negligence of anyone. Negligence or a failure to perform a duty required by law is never presumed as a fact but must be proved by evidence and the burden of proving it is on the parties seeking a recovery of damages by reason of such negligence or failure of duty. Carroll v. Roger Lacy, Inc., 402 S.W.2d 307 (Tex.Civ.App.—Tyler, 1966, writ ref’d n. r. e.) and the cases there cited. There is no evidence in this record to sustain a holding that defendant was negligent. We sustain defendant’s fifth point of error.

It is plaintiff’s contention that he was an invitee and that the defendant owed him the duty of reasonable care. There is no question about plaintiff not having the right to be on the oil well premises but the plaintiff testified that it was defendant’s duty to load and haul off the derrick and that he had nothing to do with the loading and hauling off. If plaintiff was a business invitee as he contends, it was only to the extent of preparing the derrick to be moved and had no right to interfere with the loading since he had nothing to do with such loading. A person may be an invitee as to a certain place but not to another. The defendant did not authorize the plaintiff to go under the derrick while defendant was loading it. On the contrary he directed him not to go under it. The holding of the jury was that they did not find that plaintiff went under the derrick after being told by Mr. Eaton not to go under it but Terry and Eaton testified that Eaton had told the plaintiff not to go under the derrick before the plaintiff went under it. Eaton further told the plaintiff not to go under the derrick just before it fell but that was the second time he had told him not to go under it. Plaintiff did not deny the evidence of Terry and Eaton. Mr. Eaton testified he told plaintiff not to go under the derrick because he was afraid of the chain and that immediately after the accident, the plaintiff stated, “That damn chain did break.” Plaintiff did not deny that evidence.

Since plaintiff had nothing to do with the loading and hauling off of the derrick and no one in authority authorized him to go under it and he immediately ran under the derrick, he was not rightfully upon that part of the premises where the derrick fell and would not be an invitee. There is nothing in this record to indicate Eaton had any reason to know or believe plaintiff would run under the derrick. It is stated in Burton Construction & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598 (1954) at 602 as follows:

“Another determining factor in favor of petitioner’s contention that respondent under the evidence does not occupy the favorable status of an invitee and that it did not owe him the duty of ordinary care is the fact that respondent’s injuries were sustained at a place on the premises which was not included within any invitation either express or implied. A person may be an invitee as to certain parts of the premises but not as to others. The rule is stated in 30 Tex.Jur. 863, Negligence, Sec. 180; ‘The owner or occupant may be held liable only where it appears that the victim sustained the injury while using a part of the premises which was designed for his accommodation or use. * * * A recovery is not sustainable where the evidence leads to the conclusion that “it could not have been reasonably anticipated” that he would attempt to go to the place in which the injury occurred.’ The place where the explosion occurred was not covered by the implied invitation as claimed by respondent. Granting that he had the right either as an invitee or licensee to cross the railroad tracks and pick up his work clothes and tools and that he so acted for that purpose, the fact that he went beyond the carpenter shop, a distance of 123 feet, precludes recovery either as an invitee or licensee. 65 C.J.S. Negligence § 48a, pp. 535-538; Id., § 43 (4), p. 514; 38 Am.Jur. 761, Negligence, Sec. 100; Galveston Oil Co. v. Morton, 70 Tex. 400, 7 S.W. 756. No one in authority invited respondent to the premises where the explosion occurred; hence, he is not entitled to recover on the theory that he was an implied invitee. Cowart v. Meeks, supra [131 Tex. 36, 111 S.W. 2d 1105].”

See also Swift & Co. v. McElroy, 126 S.W.2d 1040 (Tex.Civ.App.-Fort Worth, 1939, no writ).

From what we have heretofore stated, we do not believe it is necessary to discuss the volenti doctrine as urged by the defendant; but since the jury held there was a danger that the derrick section might fall but that plaintiff did not know and appreciate the danger that the section might fall and that the plaintiff voluntarily exposed himself to the risk when he went under the derrick, we think the jury was in error in holding the plaintiff did not appreciate the danger that the section might fall. The evidence of Eaton that he informed the plaintiff that he was afraid of the chain breaking and was not denied and the un-denied testimony that as quick as plaintiff was injured that he stated, “That damn chain did break,” that this would show the plaintiff must have realized there was such danger after a warning as here given. The fact that the derrick had never fallen before would be no evidence that it might never fall, and we believe the undisputed record shows that the plaintiff was charged with knowledge and appreciated the danger. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963). See also Robert E. McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954).

Since the case has been fully developed, we deem it unnecessary to reverse and remand. Judgment of the trial court is reversed and rendered.