author: MASSEY, Chief Justice.

text:
    JOE R. STARKS CONSTRUCTION CO., Inc., Appellant, v. G. A. MALLICK, INC., Appellee.
    No. 16881.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 16, 1968.
    Rehearing Denied March 15, 1968.

      Max E. Clark, Fort Worth, Harris & Ball, and Chester G. Ball, Arlington, for appellant.
    Cook & Hobbs, and Paul C. Cook and Robert Hobbs, of Fort Worth, for appel-lee.
   OPINION

MASSEY, Chief Justice.

Plaintiff Joe R. Starks Construction Company, Incorporated, a sub-contractor, brought suit against defendant G. A. Mal-lick, Incorporated, a general contractor, for an amount allegedly due on both a written contract and an asserted subsequent and supplemental contract.

The defendant denied that any supplemental contract had been made. It filed a cross-action for an amount allegedly due by plaintiff to defendant for “back charges”, applicable to the written contract, for corrective work which the defendant claimed it had necessarily paid to other sub-contractors upon plaintiff’s breach of contract.

Trial was to the court without intervention of a jury. Judgment was for G. A. Mallick, Incorporated, defendant and cross-plaintiff. Plaintiff perfected an appeal.

By one point of error the appellant seeks reversal because of the late filing of the trial judge’s findings of fact and conclusions of law.

It has been held that the provision in Texas Rules of Civil Procedure 296, “Conclusions of Fact and Law”, and 297, “Time to File Conclusions”, requiring a trial judge to file his findings of fact and conclusions of law within prescribed times upon request therefor, and/or upon having his omission to do so called to his attention, is mandatory; that findings of fact and conclusions of law cannot thereafter be properly placed in the record and cannot be considered in determining the appeal; and that where issues of fact are raised the failure of the trial judge in such respect requires reversal on appeal, except in instances where there is a statement of facts and it is made to appear therefrom that the appellant has not been thereby injured. Valley Box & Crate Factory v. Acker, 31 S.W.2d 1090 (San Antonio Civ.App., 1930, error refused). It also has been held that the former Rule 62a (now substantially embodied in T.R.C.P. 434, “If Judgment Reversed”) was without application and that in every case where there is any conflict in the evidence on an issue material to the decision in the case, the failure of the trial judge to file his findings of fact and conclusions of law will be considered as such a denial of the rights of the appellant as probably prevented him from making a proper presentation of his case to the appellate court, unless the appellee discharge the burden of disproving such. Galveston, H. & S. A. Ry. Co. v. Stewart & Threadgill, 257 S.W. 526 (Tex.Comm.App., 1924).

However, in the opinion in Bostwick v. Bucklin, 144 Tex. 375, 190 S.W.2d 818 (1945) the Supreme Court held that upon the matter of probable error as result of the late filing of findings of fact and conclusions of law the provisions of T.R.C.P. 434, “If Judgment Reversed”, did have application. Hence, it is the burden of an appellant to demonstrate probable injury or that he was thereby prevented from making a proper presentation of his case on appeal. In Bostwick, the findings of fact and conclusions of law were filed two days late, embodied in the transcript delivered to counsel for appellant for filing, with the transcript timely filed in the appellate court. The court held, as a matter of law, that the appellant could not have suffered delay or other injury by reason of the delay in filing the findings and conclusions.

In the instant case the appellant made timely demand upon the trial judge for findings of fact and conclusions of law as provided by T.R.C.P. 296, “Conclusions of Fact and Law”, obtaining by endorsement thereon the judge’s signature as having been timely presented. The judge not having complied with the demand within thirty days, on the thirty-first day the attorney for appellant — by letter addressed to the judge dated that date — called attention to the fact that the findings of fact and conclusions of law had not yet been made. On the date as the letter, there appears a file mark of the clerk of the court showing that it was filed in the clerk’s office that same day. The letter does not have any notation thereon affirmatively demonstrating that the judge received it or that he thereby had his omission to act called to his attention. The record contains no explanation. The letter appears in the transcript in support of and as predicate for appellant’s asserted right to complain on appeal of the failure to timely file the findings of fact and conclusions of law. T.R.C.P. 297, “Time to File Conclusions”. The letter, as filed, shows that a copy thereof was purportedly mailed to the attorney for appellee. The file mark of the clerk bears the date of May 19, 1967.

Appellant’s transcript was filed in the Court of Civil Appeals on June 12, 1967. It contained no findings of fact and conclusions of law. On June 14, 1967, the trial judge made and filed with the clerk of the trial court an instrument denominated “Findings of Fact and Conclusions of Law.” On June IS, 1967, the attorneys for the appellant wrote the clerk and requested the preparation of a supplemental transcript which contained said findings of fact and conclusions of law. Thereafter, on July 11, 1967, the appellant filed his brief in this court. On July 28, 1967, the attorney for the appellee filed with the trial court its motion to direct the clerk to prepare, certify, and transmit to the appellate court a supplemental transcript which contained said findings, the letter from appellant’s attorney requesting the clerk to prepare the supplemental transcript, copy of the court’s order ruling on appellee’s motion, and other material. The trial court’s order, under provisions of T.R.C.P. 428, “Amendment: Record”, directed that the clerk do such. The order was dated July 28, 1967. Such supplemental transcript was filed in this court on August 1, 1967.

In connection with the foregoing it is evident that appellant was aware of the contents of the findings of fact and conclusions of law on June 15, 1967. The date was almost a month prior to the date appellant’s brief was filed. The court’s findings of fact and conclusions of law, in matters of material substance, set forth in the usual form of such an instrument those same material factual findings and legal conclusions which had theretofore been embodied in a letter sent by the trial judge to the attorneys on November 1, 1966. This letter was included in the original transcript filed in the appellate court. In such letter the judge had directed the preparation of a judgment for appellee in accordance with pronouncements therein set forth on factual and legal findings and conclusions. There was no material distinction between such findings and conclusions and those embodied in the later instrument denominated “Findings of Fact and Conclusions of Law.”

Under the circumstances, in view of our interpretation of the holding of Bostwick v. Bucklin, 144 Tex. 375, 190 S.W.2d 818 (1945), supra, we have concluded that although there are issues of fact raised by the evidence in the case, as set forth in the statement of facts, appellant has not shown that the twenty day delay in filing findings of fact and conclusions of law probably caused or resulted in his injury or prevented him from making a proper presentation of his case to the appellate court. T.R.C.P. 434.

The point of error is overruled.

By a grouping of points of error, appellant complains because the trial court overruled its motion for leave to reopen the case for additional evidence and its motion for new trial on the ground of newly discovered evidence pointing to fraud perpetrated by the appellee upon trial of the case.

Judgment was signed and entered on February 10, 1967. Theretofore the appellant brought the matters mentioned in the preceding paragraph to the attention of the court in its motion to reopen, filed November 21, 1966, supported by affidavits of witnesses whose testimony appellant desired to introduce. The same affidavits were embodied in appellant’s amended motion for new trial overruled by order entered April 14, 1967. The trial court considered the motion to reopen the case and admit additional testimony until January 23, 1967, when the judge wrote a letter notifying the attorneys for the parties that the motion was denied. In part the letter read as follows:

“The contention of the plaintiff with respect to the defendant’s back charges were clearly set forth in the defendant’s answer and cross action filed more than a year before trial. Approximately three months before the case came on to be heard the plaintiff filed written interrogatories asking for detailed information about the expenditures plaintiff alleged to have been necessary for completion of the subcontract, to which the defendant filed answers with xerox copies of invoices showing the amounts of his expenditures and to whom the same were made. If further information was needed, no effort was made to obtain the same by means of depositions either of the defendant’s officers or employees, or the personnel of the firms to which such payments were made. Upon trial, Mallick testified in detail concerning the back charges and his testimony was practically undisputed. No request was made for additional time to produce the testimony set forth in the affidavits. On account of the complicated questions of law involved, the court took the case under advisement and allowed counsel a rather extended period of time to file briefs. Due to vacations and the press of business, the court took an unusually long time to render a final decision, and it was not until the outcome of the case was known that the plaintiff made any effort to investigate the validity of the back charges.

“Finally, the proffered testimony is not of a decisive nature, but merely tends in a rather general fashion to dispute the allegations made by Mallick in the amounts he claims to have paid for completion of the work under the subcontract. There is no clear showing that the contractors hired to complete the work are in a position to make reliable allegations which would change the outcome of the case.”

The record supports everything stated in the aforementioned letter. The testimony of the appellee to which appellant’s proffered evidence would have application was placed in the record, on trial, on April 7, 1966. After having held the case under advisement several months the trial judge wrote the letter of November 1, 1966 (referred to in our discussion concerning the point of error predicated upon a late filing of findings of fact and conclusions of law) and stated that judgment for appellee should be prepared for signature. As to amount for which appellee’s judgment was directed to be prepared the outlined findings in the letter showed that the court took into consideration those expenditures which had been the subject of appellee’s testimony. It was not until the letter of November 1, 1966, reciting the court’s decision and reasons therefor, that appellant acted in “discovery” of the evidence it desired to present upon a reopened case.

Both litigants concede that reversal because of refusal to allow the case to be reopened depends upon whether the trial court should be held to have thereby abused its discretion. Such refusal, and the court’s subsequent refusal to grant a new trial on the same ground, will not be reversed where the motion does not show proper diligence to obtain the evidence before trial, where the evidence could be used only for the purpose of impeachment, or where the evidence is not such that it would probably change the result if proved on a reopening of the case or on retrial. 4 Tex. Jur.2d 366, “Appeal and Error — Civil”, § 826, “(Denial of New Trial) — Where new trial requested because of newly discovered evidence”; 4 McDonald, Texas Civil Practice, 1461, “New Trial”, § 18.16, “(Grounds for New Trial) — H. Newly Discovered Evidence”. We do not deem the decision and action taken thereupon by the trial court to have constituted any abuse of discretion. The points of error are overruled.

One point of error complains of the admission into evidence those of appellee’s expenditures claimed to be chargeable against appellant under the cross-action, and of the. action and decision of the court and judgment based thereon. Analysis of appellant’s brief discloses that it is not complaining of the evidence which furnished the background for appellee’s expenditures, nor of the necessity therefor, but in respect to the reasonableness thereof in the sense denominated by the phrase “reasonable cost of necessary repairs”.

The testimony of which complaint is made was from the witness Mallick, who gave the only evidence in the record supporting the “amount” of the appellee’s judgment. Referring thereto, appellant says that such testimony: “was a conclusion of the witness (1) as to the work for which Starks was obligated, (2) as to whether or not Starks had failed to do certain work, and (3) as to which charges contained in invoices covering work other than what the witness concluded was required under the contract were proper charges to form the basis of Appellee’s counterclaim. In essence, Appellee’s witness stated the whole of Appellee’s lawsuit in arbitrary statements of conclusion constituting nothing more than personal opinion.”

We are not in accord with appellant’s contentions. In our view the state of the record presents a situation to which authorities cited are inapplicable. The court’s decision and judgment was based on the testmony as to corrective work was necessarily done and the reasonableness of the charges therefor, which charges he had paid, and not upon what appellant feels was conclusion testimony upon such. Coupled therewith was the court’s independent determination that such work was included in the written contract. If there was some of Mallick’s testimony which merely indicated his conclusion there was, additionally, factual evidence upon matters which could be properly received and considered by the court — sitting as the finder of fact in the case — upon which it could properly exercise the function of reaching factual findings and conclusions. Thereupon, the court’s action in deciding the case was proper when it considered such factual findings and conclusions and applied them to the provisions of the parties’ contract. We overrule the point of error.

By two points of error appellant complains that the court erred in finding that the parties’ contract (as interpreted by ap-pellee) was possible of performance by appellant as applied to the construction of “house pads”, and in refusing to receive parol evidence to resolve the fact that the contract in said respect was impossible to perform.

We overrule the points. From our observation of the testimony there was no refusal to admit evidence of impossibility of performance. Appellee objected to the tendered evidence on the ground that impossibility of performance had not been pleaded, but its objection was overruled. As applied to appellant’s evidence of impossibility of contractual performance the state of the evidence was such as entitled the court — as the fact finder — to reject it. As applied to impossibility of performance within the time provided therefor by contract the same thing would be true, plus the fact that any question thereon would be immaterial in any event as it could only have material application in respect to the appellee’s claim for delay penalty. Appel-lee’s claim for relief predicated upon delay was denied by the court.

By several points of error appellant complains because of the court’s action and decision relative to its assertion of a subsequent and supplemental oral contract coupled with its claim for compensation in addition to that provided by the written contract. Appellant alleged performance under the oral contract. In the points of error such performance is referred to as work on “house pads”, by which is meant preparation of sub-grade and the building up of foundation surfaces where buildings would be erected.

In this connection appellant says the court erred in holding that proffered evidence of the alleged oral contract was barred by the Parol Evidence Rule; that there was insufficient evidence to support the court’s finding that it was not entitled to recover compensation for its work in building up the house pads; and that the court’s finding that it was not entitled to compensation therefor was against the overwhelming weight and preponderance of the evidence.

Even if the court erred in ruling that the evidence was barred under the Parol Evidence Rule its decision in such respect was after tendered evidence had been received and was before the court while the case was held under advisement. In effect the court found — in addition to its finding that the evidence was barred under a rule of law — that if in error as applied thereto then it was a finding of fact by the court that no subsequent and supplemental oral contract was made; and further, that if one was in fact made there was no supporting consideration. No complaint is made of these findings and conclusions.

The points of error are overruled. We are in accord with the trial court that the evidence was improper of consideration under the Parol Evidence Rule, and even if we err in such conclusion the points should nevertheless be overruled because there was waiver of complaint relative to the aforementioned supplementary findings and conclusions of fact alternatively made.

Judgment is affirmed.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    HILL FARM, INC., Appellant, v. HILL COUNTY, Texas, Appellee.
    No. 4688.
    Court of Civil Appeals of Texas. Waco.
    Feb. 21, 1968.
    Rehearing Denied March 14, 1968.

      Beard & Kultgen, Pat Beard, Waco, for appellant.
    Betty Dohoney, Hillsboro, for appellee.
   OPINION

WILSON, Justice.

Summary judgment was rendered requiring appellant to remove a pipeline from the right-of-way of a public county road. The petition for mandatory injunction on behalf of Hill County alleged appellant, without legal right, dug a ditch in a described right-of-way within which it laid and maintained the line, refusing to remove it. Appellant answered that the line was laid “with the oral consent of the County Commissioner of the precinct”; that the County had waived the right to object to its location, and is estopped to assert it is not legally located. ■

In response to the County’s request for admissions, appellant admitted that it was maintaining the pipeline within the tract described, referred to as a part of the Old Patton Lake Road. It answered that it could neither admit nor deny that the described portion of the Old Patton Lake Road was a public county road because this would be a legal conclusion, and denied that its pipeline was within 8 to 10 feet of the center of the right-of-way.

On motion of the County asserting that the latter and other answers to its requests for admission were evasive, and that they failed to comply with the requirements of Rule 169, Texas Rules of Civil Procedure, the trial court ordered those matters to be deemed admitted. Affidavits showing prolonged public use of the tract and its continued maintenance and exclusive possession by Hill County accompanied appellee’s motion for summary judgment, as well as the affidavit of the County Surveyor with his plat showing that the pipeline was within the road right-of-way, and 9.5 feet from its center.

Appellant urges that the injunction is not justified because the County did not show the pipeline interfered with maintenance or use of the road. To support its argument it relies on decisions which announce the correlative rights of abutting owners of the fee. Appellant is not the fee owner, under the undisputed record and applicable presumptions concerning the abutters’ fee title extending to the center of the road; and as appellee’s counsel points out, these cases are not applicable to one who is not seized of the servient estate and who has encroached upon or appropriated to private use land dedicated and devoted to use of the public. When Hill County established its right as trustee for the public, the easement, and ownership of the fee in abutting owners other than appellant, an attempted assumption by the latter of the status or rights of freeholder or owner of the fee is unwarranted. Appellant’s pleaded claim of right was restricted to oral permission requested by it from a single commissioner, and the affidavit it filed confirmed the extent and derivation of its claimed right of occupancy.

It is insisted by appellant that although actual right-of-way obstructions are nuisances per se, and although it concedes such nuisances may be abated, there is no showing here of damage or interference with maintenance or public use, and hence no ground for abatement of its encroachment as a nuisance. This premise is untenable, and the abatement of nuisance cases relied on are inapposite simply because ap-pellee is not seeking to abate a nuisance. The County has not alleged existence of a nuisance, and whether appellant’s pipeline constitutes a nuisance is not of consequence. This is not an element of the County’s cause of action.

The County has asserted a common law purpresture by appellant. A purpresture is the appropriation to private use of that which belongs to the public; an invasion of the right in the soil while the same remains in the people; the making serviceable by one to himself of that which belongs to many; an encroachment upon rights belonging to the public. 35A Words and Phrases, perm, ed., Purpresture p. 330. Sir Edward Coke defined purpresture as an encroachment by one which “makes several to himself that which ought to be common to many”. Coke, Litt., 277b. See 4 Blackstone, Comm., 197. While a pur-presture may be a public nuisance, it is not necessarily so. It becomes a nuisance when the right of the public to immediate actual use is affected. 10 McQuillin, Municipal Corporations, 3d ed. rev., Sec. 30.73, p. 807. The County is not relegated to establishing a nuisance.

“Inconvenience of the public, or the sufficiency of the remainder of the street for public uses, is immaterial on the question of abating a purpresture in a street in proceedings by the public”. 25 Am.Jur., Highways, p. 628.

See Blount, Nomolexicon (1670) ; Cowell’s Interpreter (1672) ; 5 Jacobs, Law Dictionary, 2417 (Phila., 1811); I Reeves, Hist, of English Law 125 (1783) ; Black’s Law Dictionary, 4th ed. 1401; Ballentine’s Law Dictionary, 2d ed. 1048.

The distinction between the elements of nuisance and purpresture was recognized in Texas as early as 1888 when Justice Gaines wrote in State v. Goodnight, 70 Tex. 682, 11 S.W. 119: “‘A purpresture strictly is an encroachment upon a public right in lands or navigable streams that does not operate as an obstruction or injury to individual members of the public, but only to some right incident and peculiar to it in its aggregate capacity as such.’ ”

By Art. 2351, Vernon’s Ann.Civ. Stat., commissioners’ courts are required to exercise general control over roads in the county. In the discharge of such duty they are trustees of the public county roads for the whole public. Panhandle & S. F. Ry. Co. v. Hurst, Tex.Civ.App., 251 S.W. 538, 541; Franklin County v. Huff, 43 Tex.Civ.App. 355, 95 S.W. 41, 42; 25 Am.Jur., Highways, Sec. 133, p. 428, I Elliott, Roads and Streets, 2d ed., Sec. 532, p. 597. “The governmental corporation which represents the public must have the right to vindicate and protect the interests of the public for whom it is trustee”, and a county is authorized “to maintain a strictly possessory action to vindicate and protect the title of the public to its easement”. I Elliott, above, Secs. 532, 533, pp. 596, 597.

Absent legislative authorization, “the right of a citizen other than the owner of the fee in a suburban road is to use it for travel”, which “excludes a private citizen other than the owner of the servient estate from any use of the road except for travel. If he makes permanent use of it for any other purpose he is a wrongdoer. His rights are much more limited than those to whom the law has committed the care and control of the road.” I Elliott, Roads and Streets, 2d ed., Sec. 500, p. 563,

The county’s right and duty as trustee for the public in an easement for road purposes extends below the surface of the right-of-way, I Elliott, Roads and Streets, 2d ed., Secs. 492-494, pp. 557, 559; Dozier v. City of Austin, Tex.Civ.App., 253 S.W. 554, 556; and the public’s easement includes the right to lay water lines, 39 C.J.S. Highways § 139, p. 1078.

The general rule governing the power of the governmental corporation as trustee concerning purprestures (as distinguished from nuisances) is stated in 10 McQuillin, Municipal Corporations, 3d ed. rev., Sec. 30,73: “A purpresture is an unauthorized appropriation for private or individual purposes, among others, of a public right of way”; and “Of course, such obstructions may be removed; nor is the measure of inconvenience of the public a proper subject of inquiry,” since “streets are intended for the common and equal use of all citizens; and appropriation of them to private and individual uses, from which the public derives no benefit or accommodation, is a perversion of them from their lawful purposes, contrary to the trust imposed in the municipal authorities.”

Concerning purprestures of the present nature, it is said in 25 Am.Jur., Highways, Sec. 137, p. 435 that one who without a grant from the proper authorities constructs a pipeline in the highway is a trespasser, as is any person who is on the ground “for a purpose other than that of using it as a highway.”

Appellant says its pleaded defenses of estoppel and waiver preclude summary judgment. We agree with appellee that the acts of a single commissioner, unauthorized by the commissioners’ court, cannot create an estoppel against a county; and the purported oral authorization to lay and maintain the line by an individual commissioner is not effective. The court can act only as a body speaking through its minutes. Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451, 455; Parks v. Hill County, Tex.Civ.App., 387 S.W.2d 956, 958.

The public roads in a county belong to the state, and the rights and duties of counties concerning them constitute a legislative delegation of the sovereignty. Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915, 918. Where the county acts as a subdivision of the state in right of the sovereignty, the principles of estoppel and laches do not apply. Marsalis v. Garrison, Tex.Civ.App., 27 S.W. 929, 932; Scaling v. Williams, Tex.Civ.App., 284 S.W. 310, 314; 52 Tex.Jur.2d Sec. 64, p. 782. See City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218, 223, 73 A.L.R.2d 640 and cases cited; Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74, 77.

Waiver by delay in asserting the right of the public is not available as a defense here. “A municipality cannot authorize a permanent encroachment, i. e., cannot confer power on abutters or others to occupy permanently a part of the street for private use, unless such power has been expressly delegated by the legislature.” So, “a grant of a use of a public way inconsistent with the use by the public is void, irrespective of whether such use constitutes a nuisance.” Since, as appellee submits, “the interest the municipal corporation has in the streets and public ways is in trust for the public generally, ordinarily its right to maintain a suit to remove an obstruction or encroachment therein cannot be defeated by delay in resorting to legal remedies to remove it.” 10 McQuillin, Municipal Corporations, 3d ed. rev., Sec. 30.73, p. 817; 30.75, p. 824. See Acme Cement Plaster Co. v. American Cement Plaster Co., Tex.Civ.App., 167 S.W. 183, 186.

Krause v. City of El Paso, 101 Tex. 211, 106 S.W. 121, 14 L.R.A.,N.S., 582, relied on by appellant, militates against its position. The decision illustrates the requisite authorization by the entire public governing body which is necessary to create an agency for a public corporation, and make the conduct of an authorized agent, in the specific duty delegated, effective to constitute an estoppel.

The trial court determined that appellant’s reply to the County’s request (to admit the right-of-way in which it laid its line was a public road) was an evasion. Appellant refused to admit or deny on the ground that the request called for admission of a conclusion. Appellant challenges the order deeming the request admitted under Rules 169 and 170, Texas Rules of Civil Procedure. The trial court’s action was proper.

Whether a roadway is a public road is held to be not a conclusion of law: “Whether or not there is a public road is a question of fact.” Bakke v. Johnson, 102 Ore. 496, 202 P. 1091, 1092. See 25 Am.Jur., Highways, Sec. 49, p. 367. Where the response to a request under Rule 169 is evasive, the matter which is the subject of the request is properly treated as admitted. Taylor v. Owen, Tex.Civ.App., 290 S.W.2d 771, writ ref. n. r. e.; Drake v. Texas Dept. of Public Safety, Tex.Civ.App., 393 S.W. 2d 320, 324, writ ref. n. r. e.

Appellant apparently contended the institution and prosecution of this action was among the duties the County Attorney is required by law to perform. Although county attorneys have the duty by Art. 5, Sec. 21 of the Texas Constitution, Vernon’s Ann.St., to represent' the State, it is not one of their prescribed legal duties to represent the county in its general legal business or the conduct of ordinary civil actions; although the commissioners’ court is authorized to contract for private employment of the officer as its attorney to represent the county in such matters. See Attorney General’s Opinions: 1939, No. 864, 1941, No. 3656; 1942, No. 0-4301; 15 Tex.Jur. 2d, Counties, Sec. 92; Art. 334, Vernon’s Ann.Civ.Stat.

Finally, appellant says “an examination of the plat attached” to the affidavit of the County Surveyor “shows the pipeline does not lie wholly within 8 to 10 feet of the center of the right of way in question”, and consequently it should not be held responsible, under Rule 170 for expenses of appellee “in proving its own request was false.” If it be said the plat is subject to appellant’s interpretation, the request for admissions is not. Appellee did not request admission that the entire line was “wholly” located as inquired about, but merely that the line was located within the specified distance from the center of the right-of-way.

Under Art. 6704, Vernon’s Ann.Civ.Stat., the minimum width of a “public road” which the Commissioners’ Court is authorized to classify is that of the third class, 20 feet in width. Whether appellant’s pipeline was within 10 feet of the center of the roadway in question, consequently, was material. See Dowlen v. Klapper, Tex.Civ.App., 381 S.W. 2d 123, 125. After the county had incurred expenses in establishing the truth of this and other facts in connection with the motion for summary judgment, appellant filed an affidavit in response to the motion in which its manager stated that he buried appellant’s water line “seven feet from the center line of the road in question.” Having filed and adopted the statement in this affidavit, appellant may not now be heard to deny its truth, or claim that a fact issue exists concerning it. 45 Tex.Jur.2d, Pleading, Secs. 81-83. The court properly assessed the expense under Rule 170. Mims v. Houston Fire & Cas. Ins. Co., Tex.Civ. App., 362 S.W.2d 880.

Affirmed.


author: CHAPMAN, Justice.

text:
    Jimmy Lowell CANNEDY, a minor, by his Next Friend and mother, Lois Cannedy, and Lois Cannedy, Individually, Appellants, v. RELIANCE INSURANCE CO., Appellee.
    No. 7782.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 26, 1968.
    Rehearing Denied March 18, 1968.
    Merchant & Barfield and Charles W. Fairweather, Amarillo, for appellants.
    Culton, Morgan, Britain & White and James C. Sanders, Amarillo, for appellee.
   CHAPMAN, Justice.

This is an appeal from a judgment rendered by the court notwithstanding the verdict. The jury found Jimmy Cannedy, a Globe-News Publishing Company, Inc. newspaper carrier, received an accidental injury while in the course of his employment as such carrier. Alleged error of the court in rendering the judgment notwithstanding such jury finding is the sole basis of this appeal.

Suit was filed by Jimmy’s mother, as next friend, against Reliance Insurance Co., the alleged insurance carrier for the publishing company.

Jimmy was eleven years old at the time of the accident on July 15, 1966, and was assigned to route No. 5122. This area was bound on the north by N.E. 15th Street, on the south by Amarillo Boulevard, East, on the east by N. Johnson Street and on the west by N. Pierce Street. The accident in which he was injured occurred in the approximate center of the intersection of N.E. 15th and Orange Streets at about 2:00 P.M. He was traveling slightly east of south on Orange, a street running in a north-south direction outside the area included in his carrier' route, and in the general direction of his home.

When the evidence concerning scope of employment in this case is indulged in its most favorable light for Jimmy, as we are required to do in a judgment n. o. v., he was returning to his home at 900 N. Hayes from an errand to seek the collection of two delinquent accounts owed him by Globe-News subscribers. These customers lived at 1411 N. Lincoln Street and 1405 N. Buchanan Street.

It is without contradiction in the record that each Globe-News carrier delivers papers on a prescribed route, is billed in advance on the first of each month on the basis of the previous month’s average daily delivery and that his gross income is the difference between the amount paid for the papers by the carrier and the amount they collect from their customers. The collection responsibilities are strictly upon each carrier. He must pay the publishing company by the fifth of each month for the newspapers he expects to deliver during the ensuing month, and this without regard to whether such carrier has completed the collections for the previous month or any other previous period.

Jimmy’s injuries were such that his memories are blank from approximately the time he left 1405 N. Buchanan Street until he awakened in the hospital several days later. The evidence shows he had spent the forenoon and part of the afternoon at the Y.M.C.A. swimming and enjoying the other recreation facilities of the “Y”. He started home from downtown Amarillo about 1:30 P.M., with his younger brother riding on the horizontal bar of his bicycle. At the corner of N.E. 8th and Fillmore they saw an older brother walking, so Jimmy let his younger brother off the bicycle at 1:45 to walk on home with his older brother. This location was about nine blocks away from the first stop he intended to make in an effort to collect his delinquent accounts. The next intended stop was about thirteen blocks from the intersection of Orange Street with N.E. 15th, where he was struck by an automobile. He remembers leaving 1405 N. Buchanan and starting up N.E. 15th but does not remember collecting any money nor if he went to 1411 N. Lincoln.

The statutory provisions controlling the question of whether Jimmy was in the course of his employment at the time of his injuries are found in Section 1 and lb of Art. 8309, Vernon’s Ann.Tex.Civ.St. Included in “Words and phrases defined” under Art. 8309, Sec. 1 is the following definition :

“The term ‘injuries sustained in the course of employment,’
⅜ ⅜ ijc ⅜ ijc ijc
“(4) * * * shall include all other
injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.”

In 1957, the legislature enacted Sec. lb under Art. 8309. That enactment provides:

“Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

The Supreme Court of Texas announced its opinion in American General Insurance Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, (1957) before Sec. lb became effective on September 1, 1957. There the Court announced the general rule and several exceptions thereto concerning compensable injuries incurred in the use of public streets and highways while going to and returning from the place of employment, the general rule being that such injuries are not com-pensable because not incurred in the course •of employment as required in Art. 8309.

In Jecker v. Western Alliance Insurance Co., 369 S.W.2d 776 (Tex.1963) the Court said: “The general rule is, in reality, even broader than we had occasion to state in Coleman,” then stated the rule, and the fact that there are exceptions thereto. One exception mentioned is “ * * * when injury occurs while the workman is traveling on the public streets or highways pursuant to express or implied requirements of his employment contract.” At the time of the latter opinion the lb 1957 amendment to Art. 8309 was in effect but in Jecker the Court held such amendment did not abolish the exception just quoted. It stated that in Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350, 353 (Tex.) it had recognized the legislature intended by the enactment of Sec. lb “to circumscribe the pro- bative effect that might be given to the means of transportation or the purpose of the journey rather than to enlarge the definition [of ‘injury sustained in the course of employment’] found in Sec. 1.” Chief Justice Calvert speaking for the Court in Jecker then observed that it would be “ * * * wholly unjust to salesmen, servicemen, repairmen, deliverymen, and a host of others who may be required to use their own automobile in their work * * *.”

Appellant appears to rely strongly on Jecker wherein the Court stated one of the exceptions to the general rule “is when injury occurs while the workman is traveling on the public streets or highways pursuant to express or implied requirements of his employment contract.” Jimmy’s situation so far as being engaged in the furtherance of the affairs or business of his employer immediately before and at the time of his unfortunate injury could not be compared to those just mentioned in the Jecker opinion i. e., salesmen, servicemen, repairmen, deliverymen, etc., whose employment, as used in the context in which they were mentioned by the Court, requires them to travel at their own expense in their own conveyances on streets and highways, either constantly or intermittently, and in so doing are accidently injured while thus exposed to risks growing out of their employment. As used in the context in which those classes were mentioned in the Jecker opinion they clearly would be “traveling on the public streets or highways pursuant to express or implied requirements of their employment contract” while engaged in or about the furtherance of the affairs or business of their employers, whereas, Jimmy was returning from an attempt to collect two delinquent accounts which had nothing whatever to do with either express or implied requirements of his employment contract. He had already paid the Globe-News for the papers previously delivered to the two delinquent customers. As shown by his own testimony, it was for his benefit alone thát'hé'wás seeking the collections, and we believe no other deduction can be made from the testimony except that he was proceeding toward home at the time of his injury after attempting to make such collections.

“Q. Now, at that time you had already paid your bill for the month of July, hadn’t you?
A. Yes, sir.
Q. So you were really trying to get these accounts in for Jimmy Can-nedy instead of Globe-News, were you not ?
A. Yes, sir.”

The record also shows that the only requirement of time in the delivery of the afternoon papers is that such delivery must be completed by 5:30. Even indulging the necessary inferences against a judgment rendered n. o. v., it could not be said from the evidence that Jimmy at the time of the injury was on the way to pick up the papers for the afternoon delivery. There is not any evidence in the record that they would have been available by that time.

Another case relied on by appellant is Janak v. Texas Employers’ Insurance Association, 381 S.W.2d 176 (Tex.1964). There a drilling crew traveling in a carpool to work at their drill site had taken a longer route to Ecleto, the drill site, in order to pick up ice to keep their drinking water cooled during the working day. Each of the five members of the crew owned an automobile, which he drove every fifth day. On the day of the accident the claimant, Janak and the others were riding in Draplia’s car. The Court of Civil Appeals opinion turned on the holding that it was Draplia’s day to procure and transport ice and water, thus Janak was but a passenger in Draplia’s car and was traveling only in the furtherance of his personal business to his place of employment. The broad question thus presented was whether a passenger member of a business or industrial carpool is in the course of his employment while traveling with the automobile owner-operator member whose journey was to perform a service in furtherance of the employer’s business. The Supreme Court answered in the affirmative but the issues in that case have no relation involving Jimmy’s situation prior to and at the time of his injury.

Clearly Jimmy could not meet the test of Art. 8309, Sec. 1(4) above quoted because from his own testimony he was not at the time of the accident “engaged in or about the furtherance of the affairs * * * of his employer.”

Under the first sentence of lb he would not have been in the course of his employment unless (1) transportation was furnished as a part of his contract of employment, or (2) was paid for by the employer, or (3) unless the means of such transportation was under the control of the employer, or (4) unless he was directed in his employment to proceed from one place to another place. He owned his own bicycle. It was not paid for by the employer. There is not any evidence from which even an inference could be drawn to show the means of transportation was under the control of Globe-News at the time of the accident, or at any time. He was under no direction in his employment to proceed from one place to another even if he had been delivering papers at the time, except to cover his route by 5:30 in any manner he pleased. The Supreme Court noted in Janak that the Court had held in Jecker that the “direction ‘to proceed from one place to another place,’ of which Section lb speaks, can be an implied direction. But by the very language of the section the implied direction to the employee must be ‘in his employment,’ and the travel thus must be in furtherance of the business of the employer. We cannot imply a direction to proceed from one place to another when the travel is for reasons or purposes purely personal to the employee.” As heretofore stated, Jimmy admitted he had been on a mission to try to collect delinquent accounts for himself, in which Globe-News had no interest.

The second sentence of lb has been suggested by at least one member of the Supreme Court as constituting a two-pronged test. To meet that test Jimmy would have had to prove that the mission he was on at the time of the accident would have been made even had there been no personal or private affairs of his own to be furthered by the trip. By his own testimony he did not meet the test. He was on a mission for his own benefit. He also failed to prove that the trip he was on would not have been made had there been no affairs or business ■of the employer tó be furthered thereby. His own testimony was that the mission was for himself instead of for the Globe-News. Jimmy failed in his proof under all the tests laid down under Art. 8309, Sec. 1(4) .above quoted and under lb of the same .article. Agricultural Insurance Co. v. Dryden, supra; Texas Employers’ Insurance Association v. Brown, 415 S.W.2d 260 (Tex.Civ.App.-Amarillo, 1967, writ ref’d n. r. e.); Jones v. United States Fire Insurance Co., 420 S.W.2d 160 (Tex.Civ.App.-Amarillo, 1967, writ ref’d n. r. e.); Jecker v. Western Alliance Insurance Co., supra; Texas General Insurance Co. v. Bottom, supra; Janak v. Texas Employers’ Insurance Association, supra.

Accordingly, the judgment of the trial .court is affirmed.

      . Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952); Jara v. Thompson, 223 S.W.2d 941 (Tex.Civ.App. — San An-torno, 1949, writ ref’d); McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442 (1941).

      . Concurring opinion by Justice Pope in Agricultural Insurance Co. v. Dryden, 398 S.W.2d 745, 747 (Tex.1966).


text:
    Wayne WATSON, Appellant, v. Helen M. GODWIN, Appellee.
    No. 7777.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 19, 1968.
    Rehearing Denied March 25, 1968.

      Harris E. Lofthus, Amarillo, for appellant.

      Underwood, Wilson, Sutton, Heare & Berry and Harlow Sprouse, Amarillo, for appellee.
   CHAPMAN, Justice.

This is an appeal from a summary judgment rendered for Mrs. Helen Godwin, defendant below, against plaintiff-appellant, Wayne Watson.

Before considering any of the points it is necessary to give some of the history of the case. The parties will be referred to as in the court below.

Plaintiff first filed his suit against defendant in Cause No. 44,113-A in the 47th District Court of Potter County on March 14, 1966. A plea of privilege was filed asking for a change of venue to Randall County. No controverting affidavit having been filed, the case was transferred to Randall County on January 24, 1967, and became Cause No. 7821 in the District Court of that county. A non-suit was later taken in the case on February 22, 1967, the day it was set for hearing on a motion for summary judgment. The present case was filed on the same day in the District Court of Randall County as Cause No. 7871.

The thesis of plaintiff’s contention in his first point is that the only summary judgment components that may be considered in the case is his unsworn petition in Cause No. 7871 and defendant’s unsworn answer to such petition. Therefore, fact issues were raised. That contention is not briefed and the argument in the point to the effect that the only instruments proper for the court to consider were those two pleadings is contrary to what we believe the record shows. The only authority whatever cited under the point is Rule 166-A, V.A.T.R., commonly referred to as the summary judgment rule. The quote therefrom shows no legal authority for the contention made under the point, i. e., plaintiff’s petition and defendant’s answer thereto are the only summary judgment components proper for the court to consider.

Rule 418, V.A.T.R., provides the brief of appellant shall contain, inter alia, a discussion of the facts and the authorities relied upon as requisite to maintain the point at issue, Numerous courts have held that where points are not briefed by appellant they may be assumed as waived. Whitson Company v. Bluff Creek Oil Company, Tex.Civ.App., 278 S.W.2d 339, affirmed 156 Tex. 139, 293 S.W.2d 488; Weatherred v. Kiker, Tex.Civ.App., 357 S.W.2d 182 (N.R.E.); Butterfield Sales Company v. Armstrong, Tex.Civ.App., 278 S.W.2d 194 (N.R.E.); Grady v. Dallas Railway & Terminal Company, Tex.Civ. App., 278 S.W.2d 282 (N.R.E.); Stanford v. Brooks, Tex.Civ.App., 298 S.W.2d 268 (N.W.H.) ; Pride v. Pride, Tex.Civ.App., 318 S.W.2d 715 (N.W.H.); Hall v. Hall, Tex.Civ.App., 352 S.W.2d 765 (N.W.H.); Kirkman v. Alexander, Tex.Civ.App., 280 S.W.2d 365 (N.R.E.); Kitchens v. Kitchens, Tex.Civ.App., 372 S.W.2d 249 (writ dismissed).

That the citation of authorities constitutes one of the components of a brief has long been recognized by our courts, even before the promulgation of the above stated rule. McClanahan v. Cook, 401 S.W. 2d 352 (Tex.Civ.App. Amarillo, 1966, no writ).

Even before the adoption of our present Rules of Civil Procedure, when propositions were required instead of points, the Supreme Court of Texas in Shanks v. Carroll, 50 Tex. 17, 20 said:

“The brief contemplated and required by the rules should, in short, embrace nothing but the propositions — set forth clearly, distinctly, and separately — relied upon for the reversal of the judgment, the matters in the record pertinent to the proper determination of each proposition, and a citation simply of the authorities relied upon to maintain the validity or correctness of the propositions thus asserted." See also Haley v. Davidson, 48 Tex. 615, 618.

Plaintiff having nowhere cited any authorities nor discussed any facts in the point to the effect that the only instruments proper for the court to consider were the two stated pleadings, we may assume the point is waived. However, his contention will be discussed in other points.

In his second point plaintiff asserts: “The court erred in granting summary judgment because the instruments presented in support of the motion and on which the motion was based were not the pleadings on file in this suit.” In his third point plaintiff contends there is reversible error in the court’s judgment because the deposition presented as an exhibit by defendant in support of her motion for summary judgment was a deposition taken in a prior suit. We shall consider the points together.

As may readily be seen from the second point urged, the contention for reversal there is not that “ * * * The instruments presented in support of the motion and on which the motion was based” fail to show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is not entitled to a judgment as a matter of law, in the purview of Rule 166-A, V.A. T.R. To the contrary, the basis for reversal in the point is that “the instruments presented in support of the motion and on which the motion was based were not the pleadings on file in this suit.”

Under the record here the pleadings would have been material if they were the only summary j udgment components. They are actually immaterial because the only “evidence” as distinguished from pleading to show an alleged cause of action was plaintiff’s testimony in his deposition to the effect that the $100,000.00 he was seeking from defendant was based on a consideration of marriage. Therefore, we must consider if the deposition was properly before the trial court for consideration when the summary judgment appealed from was granted.

By requests for admissions made by defendant on March 10, 1967, and answered on March 17, 1967, plaintiff judicially admitted he had given his sworn testimony in answers propounded to him on December 7, 1966, while the cause was No. 44,113-A pending in the 47th District Court of Potter County; that such sworn testimony was transcribed and reduced to writing by Wm. K. Davis, the court reporter and notary public of Potter County who administered the customary oath and before whom plaintiff’s sworn testimony was given; that after being reduced to writing the original of the deposition was filed in Cause No. 7821 in Randall County; and that when he gave his deposition he was sworn to tell the truth, the whole truth and nothing hut the truth and did tell the truth, the whole truth and nothing hut the truth in answer to the interrogatories propounded in the deposition.

By request for admission No. 4 in defendant’s request for admissions plaintiff was asked if a true and correct copy of the deposition had been filed with the court’s papers in Cause No. 7871 in the District Court of Randall County in connection with a motion for summary judgment then pending in that cause. To such question he answered he could not truthfully admit nor deny because he had not inspected the clerk’s file in the case.

A motion was made by defendant under Rule 169, V.A.T.R. to have the court deem the request as admitted. Such motion was granted by the court, and we think properly so. “ * * * a party may not evade the rule by merely saying that he does not have sufficient information to either admit nor deny the matters requested when he, by resorting to means available to him, can secure the facts inquired about. This provision of Rule 169 is not a frivolous one, nor one that should be treated lightly and thereby overcome the salutory purpose of the rule.” McPeak v. Tex. Dept. of Public Safety, 346 S.W.2d 138 (Tex.Civ.App.-Dallas, 1961, no writ). Plaintiff was in position to ascertain the answer to the fourth interrogatory in the requests for admissions by the simple expedient of inspecting the records on file or by making such inquiry as would have revealed the fact that a true and correct copy of the subject deposition had been filed with the court’s papers in the cause in connection with a motion for summary judgment.

We believe the court properly granted the motion to have it deem the request as admitted. McPeak v. Tex. Dept. of Public Safety, supra; Montgomery v. Gibbens, 245 S.W.2d 311, 315 (Tex.Civ.App.-Eastland, 1951, no writ). Such request being incorporated by reference in the request for admissions, it was properly before the trial court on the summary judgment hearing. Additionally, the deposition was identified by an affidavit attached to defendant’s motion for summary judgment and in such form as that the identifying statements made it admissible in evidence in conformity with Rule 166-A.

All formalities were waived by agreement before the deposition was taken, and under oath plaintiff so admitted, and recognized he was testifying under oath. The deposition was, therefore, properly before the court as a party admission. McLean v. Hargrove, 139 Tex. 236, 162 S.W. 2d 954; Branch v. Jean, 320 S.W.2d 427 (Tex.Civ.App.-Eastland, 1959, writ ref’d n. r. e.). Furthermore, under the circumstances of this record the deposition could be considered by the trial court in the summary judgment hearing as an affidavit within the purview of Rule 166-A. Green v. American General Ins. Co., 354 S.W.2d 616 (Tex.Civ.App.-Fort Worth, 1962, writ ref’d n. r. e.).

The original pleadings from the former suit were also identified by an affidavit filed with the motion for summary judgment, attached thereto, served therewith, incorporated by reference into such affidavit, and were sworn to be true copies thereof by the attorney qualified to testify. But as heretofore stated, we consider them immaterial here.

Appellant’s position is that the components described were not proper to be considered in the summary judgment hearing; that as heretofore stated, the unsworn petition in the present suit and defendant’s unsworn answer thereto were the only summary judgment components which the court could consider; therefore, plaintiff’s pleadings raise a fact issue as an agreement performed by plaintiff and breached by defendant. We do not agree.

Appellant’s only summary judgment component, his unsworn trial pleading signed by his attorney, alleged an obligation on the part of defendant to invest $100,-000.00 in a business for plaintiff of his own choosing which “ * * * would be repaid without interest at whatever rate the profits would allow after paying plaintiff an adequate living.” Thus, the only summary judgment component which constituted “evidence” (the deposition) in the case, as distinguished from pleading, shows a promise in consideration of marriage. In Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, defendants there contended that summary judgment for plaintiff was improper because they had alleged a cause of action. The Supreme Court of Texas said :

“Defendants argued in the court of Civil Appeals that summary judgment for plaintiff was improper because they had alleged conditional delivery. There is no merit in this contention. When facts entitling the moving party to prevail have been established by affidavits, deposition testimony or admissions, the motion for summary judgment will not be denied merely because the opposite party has alleged matters which, if proved, would require that a different judgment be rendered. See Gulf, Colorado & Santa Fe Railway Co. v. McBride, [159 Tex. 442,] 322 S.W.2d 492.”

From what we have said it may be seen that the trial court had before it a motion for summary judgment with supporting affidavits, judicial admissions and party admissions showing in the deposition constituting a part thereof that the promise upon which plaintiff was suing was based upon a consideration of marriage. The record is without dispute that the promises were oral, hence they were illegal under Sec. 3 of the Statute of Frauds, Art. 3995, V.T.C.S. As applicable here it provides that no action shall be brought in any court to charge any person upon any agreement made upon consideration of marriage unless the promise or agreement upon which such action is based shall be in writing. The article was pleaded in defendant’s trial pleading upon which the summary judgment was based. The defense was established by plaintiff’s own admissions under oath in his deposition. They show:

“Q. Well, you say, then, that in 1961, she made the promise that if you would marry her, she would set you up in business?
A. Well, she had made — she had discussed this earlier; this is not just a sudden thing.
Q. Well, when was the first time you would say she made a promise to do that?
A. I would say, possibly, in — I would say, possibly, in ’59, when we went to Honolulu for a month, I would say, possibly, that is when it first came up.
Q. And did you consider that she had promised to do that then?
A. Yes, I sure did.
Q. That it was fully discussed and she made the promise to you that if you married her, she would set you up in business or—
A. That’s right.
Q. —give you some money?
A. That’s right.”
* * * * * *
“Q. But, so far as any promises are concerned, that was just if you would marry her, she would set you up?
A. That was all the agreement, that certainly was all the agreement.
Q. And her consideration, what she would have gotten out of it for setting you up in business was marriage, and that is it?
A. That’s it.”
******
“Q. As a condition of this promise, was there — was it understood between both of you that before there was any hundred grand put up, you would get married; that was a condition to the promise?
A. That was what she wanted.
Q. That was the other promise from you, or am I right?
A. Well, excuse me, I am tired and I am not following you.
Q. Well, was there ever any suggestion or agreement between you that she would put up this money if you didn’t get married?
A. No, she wanted me to marry her, then she would give me the money.
Q. All right. So, you understood there would have to be a marriage before—
A. Yes, again, that is what I went along with, * *

Therefore, plaintiff’s first three points are overruled.

Plaintiff’s last point, in substance, is that the court abused its discretion in failing to continue the hearing on the motion for summary judgment in order to allow him to take defendant’s deposition, though the language used in his motion is a request to vacate the hearing and he does not ask for it to be reset to a day certain.

Rule 330, V.A.T.R. prescribes the rules of practice and procedure in all civil actions in district courts in counties such as that applicable to the 47th District Court in Randall County. Section (c) provides cases may be postponed or continued on certain conditions and Section (d) provides a case “ * * * may be postponed * * * or continued * * * on the same grounds as an application for continuance would be granted in other district courts. * * * ” So, regardless of the language employed in the point, we believe it must be said that the motion sought a continuance.

Rule 166-A (f) provides the court “may order a continuance to permit affidavits to be obtained or depositions to be taken * * *»

For several reasons we believe the point is without merit in the record before us. Rule 324, V.A.T.R. provides generally that a motion for new trial is unnecessary in a judge-tried case but that it shall be “ * * * a necessary prerequisite to consideration of the complaints mentioned in Rule 325.” That rule provides, inter alia, that in motions for continuance the ruling of the court shall be considered acquiesced in unless complained of in a motion for new trial. No motion for new trial was filed. It has been held by our Supreme Court in an instructed verdict case (a judge-tried case permitting appeal without a motion for new trial) that such case required a motion for new trial in order to complain of the action of the trial court in overruling its motion for continuance. City of Corpus Christi v. Gregg, 155 Tex. 537, 289 S.W.2d 746. Therefore, we believe the error, if any, was not preserved.

Additionally, the motion was not verified nor supported by affidavit as required under Rules 251 and 252, V.A.T.R.

“Rules relating to continuances merely prescribe certain requisites of the application. Accordingly, if an application for continuance does not conform to the provisions of a statute or rule regulating same the granting of relief is within the sound discretion of the court. 13 Tex. Jur.2d, § 124, p. 54, and cases therein cited. If it is demonstrated that the rule has not been complied with it will be presumed, in the absence of a showing to the contrary, that the court has not abused its discretion. 13 Tex.Jur.2d § 125, p. 57; Gulf C. & S. F. Ry. Co. v. Brooks, 63 Tex.Civ.App. 231, 132 S.W. 95, err. ref.; Jinks v. Jinks, Tex. Civ.App., 205 S.W.2d 816; Motor Finance Co. v. Allen, Tex.Civ.App., 252 S.W.2d 1022”. Bray v. Miller, 397 S.W.2d 103. (Tex.Civ.App., Dallas, 1965, no writ) See also Smith v. Crockett Production Credit Assoc., 372 S.W.2d 956 (Tex.Civ.App.-Houston, 1963, writ ref’d n. r. e.).

The record also fails to show the testimony sought by defendant’s deposition is material and the materiality thereof. We believe that failure is also fatal to plaintiff’s fourth point. Rule 252, V.A. T.R.; Wilson Finance Co. v. State, 342 S.W.2d 117 (Tex.Civ.App.-Austin, 1961, writ ref’d n. r. e.).

For all the reasons stated we hold the court did not abuse its discretion in refusing to continue or vacate the hearing on the summary judgment.

This court very carefully scrutinizes all judgments summarily rendered. We have this case. We believe it should be laid to rest. His only summary judgment component is his unsworn trial petition signed by his attorney. As opposed thereto ap-pellee has in “evidence” supporting her motion for summary judgment this sworn testimony above quoted from his deposition stating unequivocally that the consideration furnishing the basis for his claim for $100,000.00 from defendant was his promise of marriage to her. As heretofore shown, it was not in writing and is therefore unenforceable under the Statute of Frauds. Such testimony as is shown in the record by plaintiff in his deposition is so permiated with carnality of the lowest order that the case emits an aroma repulsive to all the higher senses. Nevertheless, it is sworn to as the truth and shows no cause of action when opposed by only an unsworn pleading. Kuper v. Schmidt, supra.

For all the reasons above stated and the authorities cited, the judgment of the trial court is affirmed.

      . All emphasis shown herein are ours.


author: SELLERS, Justice.

text:
    Emma R. MONKS, Appellant, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Appellee.
    No. 328.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 29, 1968.
    Rehearing Denied March 21, 1968.

      Tyner & Bain, Jerry Bain, Tyler, for appellant.
    Ramey, Brelsford, Flock, Devereux & Hutchins, William V. Jeffus and Michael A. Hatchell, Tyler, for appellee.
   SELLERS, Justice.

This is a workmen’s compensation case brought by appellant, Emma R. Monks, against appellee to recover death benefits under the statutes for the death of James M. Monks. The following statement of the case is taken from appellant’s brief:

"At about noon on October 7, 1965, Decedent, James M. Monks, was engaged in the task of criss-crossing tires on an automobile inside the shop at Harvey Pontiac Company. He was working on the left rear tire of an automobile when he stood up and made an exclamation spontaneously and voluntarily to the effect that he did not feel good or that he hurt very badly. Such exclamation was overheard and testified about by a fellow employee working nearby. Mr. Monks left the shop for approximately 5 minutes, returned and again made an exclamation with regard to his physical condition; the shop foreman was called and Mr. Monks was taken home. He saw Dr. Sterling E. Moore, M. D., that same day. A heart attack was diagnosed and the patient was admitted to Mother Frances Hospital on October 7, 1965, where he remained until November 17, 1965. Thereafter, he was treated by Dr. Moore until the date of his death on April 12, 1966; an autopsy was performed and the cause of death determined to be hemorrhage of the brain. Dr. Moore testified such hemorrhage was caused by blood-thinning medications prescribed to try to prevent further blood clots to the coronary vessels. Defendant introduced a certified copy of the death certificate and rested.
“Plaintiff gave notice of appeal and brings this case before this Honorable Court for review.”

The appellant in her brief asserts that the appellee in its motion for instructed verdict, which was granted, set out two grounds upon which appellant had failed to make a case to go to the jury. The first ground is as follows:

“(a) ‘There is absolutely no evidence of any probative force that Decedent, James Monks, sustained an accidental injury within the scope and course of his employment with Harvey Pontiac Company; * * *

We are of the opinion that this point must be sustained by this Court. There can be no doubt that a heart attack brought on an employee in the course of his employment from strain or overexertion is an accidental injury to the physical structure of the body and is covered by the Workmen’s Compensation statute. 62 T.J. 2d, Section 105, page 678. We are thoroughly in accord with the rule in passing upon the evidence where the court instructs a verdict against the appellant that all of the evidence must be viewed in a light most favorable to the appellant. City of Houston et al. v. Chapman, 132 Tex. 443, 123 S.W.2d 652.

From this record, there can be no doubt that deceased suffered a heart attack while in the course of his employment for his employer from which he died. The attack struck him on October 7, 1965, and he died on April 12, 1966.

The witness Robinson testified that he was working about 15 feet from the deceased :

“Q Where was Mr. Monk in relation to you?
“A He would be on the other side — he would be right in view to my right a little bit.
“Q How far away did you say he was?
“A Fifteen or twenty feet; about a car length and a half or so.
“Q At about noon on that day, can you tell me what Mr. Monks was doing?
“A He was criss-crossing some tires.
“Q All right. Working there at Harvey Pontiac ?
“A Yes.
“Q Here in Smith County, Texas?
“A Yes.
“Q And you were working right next to him or close to him ?
“A That’s right.
“Q You were tuning up a car and he was criss-crossing some tires ?
“A That is correct.
“Q All right. Can you tell me what he was doing in particular, what his particular duties were or what doing at the particular time?
“A He was going to criss-cross the tires and balance them out. I know that, and he was, of course, front end mechanic and everything.
“Q All right. Had he jacked the car up?
“A Yes, he had.
“Q Had he taken all the lugs off or do you know?
“A Well, yes, all of the wheels were loose.
“Q How did you know that?
“A Well, I could tell by the sound of the air wrench he was using and he was not too far from me and I could watch him as he was working around the tires.
“Q As you were leaning over your car for the tune up work, he was in your view; is that right?
“A Right.
“Q And you were sort of looking that way?
“A That is true.
“Q Now, then, what first called your attention to Mr. Monks?
“A Well, I don’t think any one thing in particular. He stood up as I was—
“Q Where was he when he stood up ?
“A He was at the left rear of the car that he was crossing tires on. He stood up and said T don’t feel good’.
“ * * *
“Q Mr. Robinson, at the time he stood up, did you ask him any questions?
“A No, I did not.
“Q Did he volunteer a statement?
“A Yes, he said that—
“Q What did he say?
“A He said T hurt pretty bad’, or T hurt real bad’ and I don’t remember the exact words or anything or T don’t feel too good’ and I don’t know whether it come in that order. He might have said T don’t feel too good’ or ‘hurt pretty bad’ or something like that.
“Q What happened next ?
“A He said T am going out and lay down in the car and you tell them where I am in case they miss me or in case they need me’.
“Q Did he leave the building?
“A Yes, sir, he did.
“Q When, if ever, did he come back?
“A In about five or six minutes. Just a real short period.
“Q What happened then?
“A He come back and says ‘Well, I believe I am going to make it now’ and then he turned around and said — he opened the car door on the car that was not being worked on and was just settin’ there. He said ‘No, I am going to lay down in this seat’ and says ‘You know where I can get glycerine pills’ and I said ‘I don’t know unless at a drug store’ and he said “Well, it doesn’t matter. I don’t have a prescription’. Then he says 'Well, maybe you better go get A1 to take me home’; so I left him there and went to the service desk and got A1 Richardson and he carried him home.
“Q You didn’t go home with him?
“A No, sir.
“Q You went ahead and continued the work you were doing?
“A That is correct.
“Q Who finished Mr. Monks’ job?
“A I did.
“Q At the time you began work on his job, did or had anybody else touched the car?
“A To my knowledge, no.
“Q When you went back to that car and went back to the left rear wheel, tell the jury what you found.
“A Well, all of the lug nuts were off and the wheels were loose; the left rear wheel, which was the one he was working on whenever I first noticed him, and when he first told me about that, the top of it was still up under the fender of the car and the wheel part was just sorta laying on the hub under the brake of the car at an angle.
“Q And you took the wheel out and finished the job?
“A Yes, sir, that is correct.
“Q Now, then, Mr. Robinson, when he stood up and made the explanation to you about the pain and the fact he hurt, did you stay where you were and did he stay where he was or did either of you change positions ?
“A Er— I think we walked up fairly close or I did. I walked over closer. I don’t believe that he moved over a foot or two in either direction. He might possibly have but not far. * * * ”

The following testimony of Dr. Moore was admitted over the objection of Appel-lee:

“Q Now, did he relate to you how he claimed to have sustained this heart attack? What he was doing at the time or anything of that nature ?
“A Of the one in 1960 or the last one?
“Q The last one.
“A When he had the pain back in October of 1965, he said he was doing some heavy work as a mechanic but the exact duties I am not certain of. * * * ”

It will be noticed that the witness Robinson did not describe the work that the deceased was doing at the time he became ill. He was not asked if the work was strenuous or required the lifting of heavy tires. The evidence does not divulge the kind of car that Mr. Monks was working on. We note that he took the lugs off the wheels with a machine. This apparently was all that had been done at the time Mr. Monks was stricken. Whether there was any strain or overexertion at the time of the attack, no one has said, notwithstanding that another mechanic was working within 15 feet of Mr. Monks.

The appellant relies heavily on the testimony of Dr. Moore taken from Mr. Monks sometime after the attack in which counsel, over the objection of appellee, secured this information:

“Q Now, did he relate to you how he claimed to have sustained this heart attack? What he was doing at the time or anything of that nature?
“A Of the one in 1960 or the last one?
“Q The last one.
“A When he had the pain back in October of 1965, he said he was doing some heavy work as a mechanic but the exact duties I am not certain of. * * ”

This statement was not admissible to prove the fact of injury or how it occurred. Texas Employers’ Ins. Ass’n. v. Morgan et al., Tex.Civ.App., 187 S.W.2d 603. The rule is stated as follows in that case:

“ * * * A history of the case given by an injured person to a physician for the purpose of enabling such physician to properly diagnose his case is ordinarily admissible. However, there are certain exceptions to this rule, one exception being when such statements relate to the disputed issue of how the injury occurred. * * * ”

Not a single hypothetical question was asked of the doctor, and we are at a loss to know whether the doctor did say that the strain or overexertion brought about by the criss-crossing of the tires on a car would be calculated to produce the heart attack that he found Mr. Monks suffering from on October 7, 1965.

Finding no probative evidence that the work being performed by the deceased at the time of the heart attack was strenuous or required overexertion, the judgment of the trial court is affirmed.

Affirmed.


author: SAM D. JOHNSON, Justice.

text:
    Mrs. Ruth B. MINCHEN, Appellant, v. W. F. VAN TREASE, Appellee.
    No. 56.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Feb. 14, 1968.
    Rehearing Denied March 13, 1968.

      Gerald S. Gordon, Strickland, Gordon & Sheinfeld, Houston, for appellant.
    Joseph D. Jamail, John Gano, William J. Stradley, Houston, for appellee.
   SAM D. JOHNSON, Justice.

This suit was brought by W. F. Van Trease, the appellee, against the Leo Corporation, and also against Mrs. Ruth B. Minchen, the appellant. The action against Mrs. Minchen sought to attach personal liability to her, claiming the Leo Corporation to be her “alter ego.” The action was based on two promissory notes of the corporation, was for damages for breach of contract, and also for the value of certain improvements allegedly made on the corporation’s property by the appellee.

After the evidence had been presented the jury was discharged upon joint motion of both parties and judgment for the plaintiff was entered by the trial court on one of the corporate notes in question. Findings of fact and conclusions of law were requested and made by the trial court, to which no objection or exception was made. We therefore look to the pertinent facts contained in the record indulging every legitimate conclusion favorable to the appellee. Nathan v. Hudson, Tex.Civ.App., 376 S.W.2d 856, writ ref., n.r.e.; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194. The salient facts are set forth.

The appellant, Mrs. Minchen, owned a ten-acre tract of land having an approximate value of $50,000.00 that she wished to sell. She met one J. M. Callahan, a builder and developer, the outcome of which meeting was that she platted and dedicated the ten acres with the intention of selling it to a corporation to be created by Callahan. The idea of a conveyance to a corporation was initiated by Minchen’s accountants, in order that she might obtain a capital gain tax advantage. Dallas attorneys were contacted by Callahan and they, for Callahan, incorporated the Leo Corporation. The ten acres were sold by Minchen to the corporation for $50,000.00, she retained a vendor’s lien note in such amount secured by a deed of trust. In addition, Minchen loaned Callahan $1,000.00 which he placed in the corporation and for which stock was issued to Callahan. This loan to Callahan was secured by an assignment of the stock of the Leo Corporation to Minchen. Callahan was named president and Minchen was named secretary of the corporation. Both were directors. As president of the Leo Corporation, Callahan initiated its work in developing its only property, the ten acres, for the building of residential homes. The appellant subordinated her vendor’s lien on the property and the corporation executed a note and deed of trust for street and utility improvements.

Van Trease, the appellee, was originally introduced to Callahan by Minchen and subsequently was employed by Callahan to superintend construction for the Leo Corporation. His duties were varied but some included personally assisting Callahan. Van Trease looked to Callahan as president of the corporation for which he worked and understood that he worked for the Leo Corporation.

Money, amounting to some nine or ten thousand dollars, was put into the corporation by Minchen. In addition, she advanced additional sums of money to Callahan, some of which were used for corporate purposes. The corporation borrowed other money for house construction from a local bank, which required Minchen to endorse the corporation’s note and to subordinate her vendor’s lien. It was under these circumstances that the Leo Corporation began operations with Callahan as president, the appellee, Van Trease, an employee superintending construction of the houses, and the appellant, Minchen, the secretary and a director of the corporation.

After a period of months of work the corporation ceased to operate and Callahan abandoned the project. None of the seven houses that had been started had been completed. The cessation of operations came because the only persons that had theretofore placed money in the corporation, the appellant Minchen and Callahan, stopped so doing.

After the corporation ceased to operate Minchen foreclosed her pledge on the stock of the corporation securing her $1,000.00 note from Callahan and took possession of the corporate stock and records. The $50,-000.00 vendor’s lien note being in default, Minchen also foreclosed under the deed of trust securing the note and purchased the properties, including the remaining lots in the subdivision and uncompleted houses.

During the period of the corporation’s existence and activity it gave to the employee, Van Trease, by its president Callahan, the promissory note that was the basis of the trial court’s judgment. The trial court concluded that the Leo Corporation was the alter ego of Mrs. Minchen and attached personal liability to her on this obligation. During this same period Van Trease, the appellee, contracted to purchase a number of lots from the corporation and in addition, was given a second corporate note. The trial court found insufficient consideration to support either the contract to purchase or the second note and denied the relief sought by the appellee, Van Trease, on them. In both of these instances, Van Trease’s dealings continued to be through the Leo Corporation’s president, Callahan, and with the Leo Corporation.

The trial court’s findings of fact determined that the Leo Corporation was so influenced, dominated and controlled by the defendant, Mrs. Minchen, and that there was such a unity of interest and ownership of such corporation by Mrs. Minchen that its individuality, or separateness, did not exist, and that it was merely an instrument exercising her will, performing her business, and acting as her alter ego. In its conclusions of law the trial court determined that the “legal fiction of separate entities of the defendants, Leo Corporation and Mrs. Ruth B. Minchen, should be disregarded, all and singular, to prevent fraud, to prevent violation of public policy against the organization and use of the corporation as a mere tool of Mrs. Ruth B. Minchen, to prevent the use of the corporate fiction in order to avoid existing legal obligations between the defendants and the plaintiff and to protect the legal rights of the plaintiffs.”

While Texas courts may be somewhat more lenient than those of other jurisdictions in disregarding the corporate entity, the reasons for so doing have been well enumerated. These are when the corporation is used to perpetrate a fraud, to evade an existing legal obligation, to achieve or perpetrate a monopoly, to protect a crime, to justify a wrong, to circumvent a statute, and when one corporation exists as a mere tool or business conduit of another corporation. Houston-American Life Ins. Co. v. Tate, Tex.Civ.App., 358 S.W.2d 645, no writ hist. Unless there are compelling reasons for disregard of the corporate entity, it will be upheld. Pace Corp. v. Jackson, 155 Tex. 179, 284 S.W.2d 340. The mere fact that one person owns the stock is not in itself a sufficient basis for disregard. Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216.

Here the appellant, Minchen, was neither an incorporator nor a stockholder of the corporation. The corporation was incorporated during the period of negotiation by Callahan with Minchen for the purchase of the property. No original scheme or contemplation on the part of Minchen appears in the creation of the corporation, indeed, she did not participate in it and had no more then knowledge that it was being accomplished. There was no initial purpose on the part of the appellant, Minchen, in incorporation that could justify setting aside the corporate structure.

After it was created by incorporation, the Leo Corporation was effectively operated by Callahan, its president, Callahan not only employed the appellee, Van Trease, to work for the corporation, but also was recognized as president of the Leo Corporation by Van Trease. It was during this period of corporate activity that the note of the corporation was given to the employee, Van Trease. The record contains no evidence of any prior obligation of the appellee, Minchen, to Van Trease, and, other than knowledge of this note, no design, scheme or plan on her part occasioning its issuance.

In view of his rather extensive dealings with its president Callahan and the Leo Corporation itself, it is clear that the ap-pellee, Van Trease, fully knew and understood that he was dealing with a corporation, certainly not the appellant Minchen. He negotiated with the corporation through its president, Callahan, he received conveyances from the corporation signed by Callahan as president, and he was paid by the corporation. At all material times the ap-pellee knew the appellant Minchen and had some knowledge of her relationship to the Leo Corporation. Appellee, Van Trease, chose to deal with the corporate entity and, having done so, is precluded to claim that the corporation is the alter ego of the individual. Blond Lighting Fixture Supply Co. v. Funk, Tex.Civ.App., 392 S.W.2d 586 (no writ) ; Moore & Moore Drilling Co. v. White, Tex.Civ.App., 345 S.W.2d 550 (ref., n.r.e.); Pace Corp. v. Jackson, supra.

In the absence of any other authority, Atomic Fuel Extraction Corp. v. Slick’s Estate, Tex.Civ.App., 386 S.W.2d 180, writ ref., n.r.e., (per curiam Tex., 403 S.W.2d 784), would be determinative of the present case, as its facts substantially exceed those here. There two corporations were designed and organized for a specific purpose by a single shareholder, Slick, who owned the assets for which the corporations contracted. Slick conducted extensive negotiations for the corporations, there was a serious under-capitalization, and each corporation wholly depended on Slick for operating funds. Slick referred to the corporations as “our company” and a business venture “I have.” The opinion that, “* * * The court properly instructed a verdict for defendant Slick. Atomic was never confused about the parties with whom it contracted. When it made its contracts with Transworld and Nuclear, it then knew about Slick, his position with respect to the two corporations, and that he was not a promisor. * * * It knew Slick was an officer of and wholly owned both corporations, and that they depended upon him for their operating expenses. * * * No questions were raised and nobody asked Slick to bind himself personally. Atomic, with full knowledge, chose to deal with and continued to deal with the corporations to the exclusion of Slick. It was fully aware of the risk. * * * ” Quoting with approval from Hanson v. Bradley, 298 Mass. 371, 10 N.E.2d 259, the court concludes, “He knew the essential facts and accepted the situation.”

In the case at bar, the appellee undoubtedly knew the essential facts and likewise accepted the situation. For this reason and the others stated, the judgment of the trial court must be reversed and rendered for the appellant.


author: NORTHCUTT, Justice.

text:
    LUFKIN NURSING HOME, INC., Appellant, v. COLONIAL INVESTMENT CORPORATION, Appellee.
    No. 7783.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 19, 1968.
    Rehearing Denied March 25, 1968.
    B. L. Collins, Lufkin, for appellant.
    J. R. Blumrosen, Lubbock, for appellee.
   NORTHCUTT, Justice.

Colonial Investment Corporation as plaintiff, hereinafter referred to as appellee, brought this suit in the District Court of Lubbock County, Texas, against the Estate of Jack L. Goodman, deceased; Lufkin Nursing Home, Inc. and National Western Life Insurance Company, as defendants, seeking to recover of the Goodman estate rentals alleged to be due and owing to it by the Goodman estate, as well as the value of certain items of furniture and equipment under the terms of a purported lease contract between it and Goodman. Appellee in this same suit seeks to recover of and from Lufkin Nursing Home, hereafter referred to as appellant, the same relief sought against the Goodman estate. It is the contention of appellee that it leased by written agreement certain furniture and fixtures located in Lufkin Nursing Home to Goodman and Goodman was to pay a certain amount monthly during the term of the lease. The lease contract as pleaded by ap-pellee provided that all rental payments were payable in Lubbock County, Texas. In other words, appellee seeks to recover of appellant the amount of the unpaid sum due under the lease agreement with Goodman, alleging that appellant assumed all the obligations of Goodman under the terms and provisions of said lease contract between Goodman and appellee because its officers, agents or employees knew or by use of reasonable diligence should have known of the lease agreement. Appellee further pleaded in the alternative that appellant was either obligated to pay said lease contract or return said equipment under the terms and conditions of said written lease contract.

Appellant duly, and in proper form, filed its plea of privilege seeking to have the case transferred to the city of Lufkin, Angelina County, Texas, the place of business, residence and domicile of appellant. Appellant also pleaded in its plea of privilege that it never at any time assumed the obligation of Goodman as pleaded by ap-pellee, but that appellant had reason to believe and did believe that such lease contract sued on by appellee was not at any time executed by Goodman.

Appellee filed its controverting plea contending the plea of privilege should be overruled since the cause of action comes within exception of the general venue statute being Sub-section 4 of Art. 1995, Vernon’s Ann.Rev.Civ.St.; since the defendant, Goodman estate, is a resident of Lubbock County; that Goodman had possession of the personal property strictly under the terms of the lease; that Goodman by some manner turned possession to Luf-kin Nursing Home, and that they both have failed and refused to pay the balance due under the lease contract or to return possession of the furniture; that appellee’s cause of action is a suit to recover damages and in alternative is for conversion of the various pieces of personal property by the defendant. The trial court overruled the plea of privilege and from that order Lufkin Nursing Home, Inc. perfected this appeal.

The general rule of venue is that a defendant must be sued in the county of his domicile. In order to defeat defendant’s plea of privilege to be sued in the domiciliary county, the burden is on the plaintiff to allege and prove by preponderance of the evidence that the case comes within one of the exceptions of Art. 1995, V.T.C.S. Exception 4 is here involved. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (Tex. Com.App., 1935, holding approved); Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.2d 824 (Tex.Com.App., 1931, holding approved); Johnson v. Dallas Cooperage & Woodenware Co., 120 Tex. 27, 34 S.W.2d 845 (Tex.Com.App., 1931, holding approved) ; Victoris Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63 (Tex.Com.App., 1941, holding approved) ; Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., 389 S.W.2d 694 (Tex.Civ.App., Tyler, 1965, n. w. h.); Hitchcock v. Pearce, 348 S.W.2d 408 (Tex.Civ.App., Waco, 1961, n. w. h.); Summers v. Skillern & Sons, Inc., 381 S.W.2d 352, 356 (Tex.Civ.App., Waco, 1964, writ dism.).

It is stated in Lamb County Electric Cooperative v. Cockrell et al., 414 S.W.2d 228 (n. r. e.) as follows:

“Exceptions to the venue statute must be strictly construed and clearly established before a party can be deprived of his right to be sued in the county of his domicile. Watkins v. McCluskey, 284 S.W.2d 381 (Tex.Civ.App.-Eastland, 1955, no writ); Brown v. Clary, 315 S.W.2d 385 (Tex.Civ.App.-Austin, 1958, no writ); Old Lincoln County Mut. Fire Ins. Co. v. Hall, 214 S.W.2d 203 (Tex.Civ.App.-Dallas, 1948, no writ); McClanahan v. Cook, 401 S.W.2d 352 (Tex.Civ.App .-Amarillo, 1966, no writ). It is stated in Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (Tex.Comm’n App., 1935, opinion adopted) as follows:
“ ‘It is well settled that “with the venue challenged, under proper plea, by one sued without his county, * * * the burden not only to allege but to prove that the case is within one of the exceptions to the statute rests on the plaintiff.” Coalson v. Holmes, 111 Tex. 502, 510, 240 S.W. 896, 898; Hilliard Bros. v. Wilson, 76 Tex. 180, 13 S.W. 25; World Company v. Dow, 116 Tex. 146, 287 S.W. 241; Benson v. Jones, 117 Tex. 68, 296 S.W. 865; Greenville Gas & Fuel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S.W. 550: Duffy v. Cole Petroleum Co., 117 Tex. 387, 5 S.W.2d 495; Johnson v. Dallas Cooperage & Woodenware Co., 120 Tex. 27, 34 S.W.2d 845; Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.2d 824.’ ”

The property here involved was located in Angelina County. The lease contract was never filed in Angelina County, and there is no proof that appellant had any notice or knowledge of the lease here involved, and neither is there any evidence that the appellant in any manner assumed the obligation to pay the rental payments provided for in the lease agreement. Although appellant in his plea of privilege questioned the fact that Goodman never signed the lease contract the appellee only attached a copy of the lease agreement to its petition but did not make any affirmative proof as it was obligated to do that Goodman executed the lease contract. It is stated in Lanford et al. v. Lovett et al., Tex.Civ.App., 97 S.W.2d 982 (n. w. h.) as follows:

“The rule has been established in this state that in order to sustain venue in a suit upon a promissory note in the county of the forum, upon the ground that the defendant had bound himself in writing to pay the obligation in that county, the burden is upon the plaintiff to not only put in evidence the note sued on, but he must go further and make affirmative proof of the due execution of the obligation. In the absence of such proof, the defendant is entitled to claim his privilege. Berry v. Pierce Petroleum Co., 120 Tex. 452, 39 S.W.2d 824; City of Dilley v. Blank, Tex.Civ.App., 95 S.W.2d 732. In this case appellees, upon whom that burden rested, failed to prove execution of the note sued on and put in evidence, and therefore the court erred in overruling appellants’ plea of privilege.”

There is nothing in this record to anyway bring or connect appellant with this suit unless it should be considered that appellant was guilty of conversion of the property involved. If appellant should be considered guilty of converting the property to its own use, it was in Angelina County and not in Lubbock County. It is stated in Hooper et al. v. Halsell, Tex.Civ.App., 143 S.W.2d 228 (n. w. h.) as follows:

“We think the rule is settled in this jurisdiction that the controverting affidavit must be tested by its own language, unaided by the petition, where it fails to make the petition a part of the affidavit. Henderson Grain Company et al. v. Russ et al., 122 Tex. 620, 64 S.W. 2d 347. We also think it is equally well settled, when the defendant asserts his privilege, that to maintain venue under the ‘crime, offense or trespass’ exception of the statute it is necessary for the plaintiff to both plead and prove that the crime, offense or trespass ‘was committed and that it was committed in the county where the suit is pending’. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 93. The failure of the appellee to allege in his controverting affidavit that the conversion occurred in Lamb County is therefore fatal to his right to retain the venue of this suit in such county.”

Judgment of the trial court is reversed and judgment here rendered that the plea of privilege of Lufkin Nursing Home, Inc. be sustained and the case as to Lufkin Nursing Home be transferred to a district court in Angelina County, Texas.