author: DIXON, Chief Justice.

text:
    B. SONNTAG, Appellant, v. C. D. WYCHE, Appellee.
    No. 16020.
    Court of Civil Appeals of Texas. Dallas.
    July 6, 1962.
    Brans & Berryman and Henry Smith, Dallas, for appellant.
    John A. Erhard, Robert C. Cox and Alfred L. Ruebel, Dallas, for appellee.
   DIXON, Chief Justice.

Appellant, B. Sonntag, brought suit against appellee, C. D. Wyche for $5,477.88 on two promissory notes, one in the amount of $5,000 dated December 26, 1947, the other in the amount of $477.88 dated December 29, 1947.

Appellee by way of answer pled offset and settlement.

Trial was before a jury. After appellant had rested, appellee moved for judgment for appellant for $84.88, which sum appel-lee had tendered into the registry of the court. The court sustained appellee’s motion, holding that the material facts were undisputed. Thereupon the jury was discharged and judgment was rendered for appellant for said sum of $84.88.

PLEADINGS

Appellant in his original petition pled a simple suit on the two promissory notes.

In answer appellee Wyche alleged that prior to December 26, 1947 appellant and appellee had engaged in various joint enterprises involving among other things the purchase and sale of real estate. On May 27, 1946 they had purchased a gravel pit for a consideration of $7,190. The entire consideration was paid by appellant Sonn-tag, who took title to the property in his own name. However in a written declaration addressed to Wyche and signed by Sonntag on December 30, 1947 it was stated that the property was being held in trust by Sonntag, and that he and Wyche each owned a one-half undivided interest in the property free of debt.

Appellee Wyche further alleged in his answer that a bona fide controversy arose as to the respective interests and liabilities of the parties. To reconcile their differences and effect a settlement between them they then went to the office of their attorney where they reached a settlement agreement as follows:

Pursuant to said settlement agreement Wyche then executed the two promissory notes here involved.

Thereafter, according to Wyche’s pleadings, appellant Sonntag sold the gravel pit for a consideration of $10,785. Though it was Sonntag’s duty to credit Wyche on his notes for one-half of the proceeds of the sale, Sonntag failed to do so, but retained the entire proceeds for himself. Appellee claimed in his answer that a proper credit to him of one-half the proceeds of the sale of the gravel pit paid the two notes in full. In a supplemental answer appellee Wyche admitted that after crediting him with one-half of the proceeds of the sale of the gravel pit he still owed Sonntag the sum of $182.88. In his motion for judgment ap-pellee alleged and tendered into court the sum of $84.88 as the amount he owed appellant.

In supplemental petitions appellant Sonn-tag entered a general denial of appellee’s answers and specifically denied the accounting alleged by appellee. He further pled that though it was originally contemplated that they would own the gravel pit jointly appellee had failed and refused to pay his half of the purchase price, therefore their agreement to purchase on a 50-50 basis was terminated. As to the written declaration of trust signed by appellant, Sonntag, he alleged that said instrument was to be delivered to Wyche only if and when Wyche paid his one-half of the purchase price, which Wyche failed to do. Therefore, the consideration for the trust declaration failed. Possession of the instrument was gained by Wyche through subterfuge and artifice. It was not supposed to be transmitted to Wyche until he complied with his agreement to pay his half of the purchase price, and the conditions upon which the instrument was to have been conveyed to Wyche were never consummated.

FACTS

At the trial appellee Wyche testified only briefly after being called by appellant as an adverse witness. He admitted executing the two notes. This testimony was really unnecessary as Wyche had not filed any pleading denying under oath that he had executed the notes. Rule 93(h), Texas Rules of Civil Procedure.

Appellant Sonntag’s testimony supported his pleadings. He testified that Wyche had paid nothing on the notes. He further testified that the $5,000 note sued upon did not include Wyche’s half of the purchase price of the gravel pit. The note represented a loan of $5,000 cash advanced by Sonntag to Wyche. In this connection we quote from the testimony of Sonntag. On cross examination:

“Q * * * And you took those notes as evidence of Wyche’s indebtedness to you about that gravel operation, isn’t that right?
“A It had nothing to do with the gravel operation; it doesn’t mention anything about it.
“Q It had what?
“A. It wasn’t even mentioned.
“Q What did it have to do with ?
“A Money, I handed to him out of my hand, money; it had nothing do with the gravel pit.”

On redirect examination:

“Q And where did the purchase price money come from, that you used to purchase this gravel pit?
“A Out of my pocket.
“Q Now, did Mr. Wyche at that time contribute any money toward the purchase of this property?
“A No, sir.
* * * * * *
“Q Now, they have been talking a great deal, Mr. Sonntag, about a loan of $5,000 to Mr. Wyche. When was that loan made to him, if you recall?
“A. I think it was in December there, wasn’t it ?
“Q Well, I ask you to identify—
“A Wasn’t it?
“Q —Plaintiff’s Exhibit C, a while ago, which purported to be a check?
“A Well, that is it.
“Q And is this check — -
“A That is it.
“Q —represents the funds advanced which represents a $5,000 loan on their statement?
“A Yes.
“Q And was that check delivered to Mr. Wyche?
“A Let me look at it, I think so, right in front of the bank, we went in the bank and got the money.
“Q Well, will you examine Plaintiff’s Exhibit C, Mr. Sonntag, and tell us whether or not that is the check representing the $5,000 loan to Mr. Wyche, which they have set out in their statement, under the ‘Loan to Wyche, $5,000’?
“A Yes, sir.
“Q I will ask you this, Mr. Sonn-tag, was this check honored and paid by the bank, to your knowledge, and deducted from your account?
“A Yes, sir.”

With reference to the execution of the written declaration of trust acknowledging Wyche as half owner of the gravel pit, Sonntag testified that he did execute the instrument, but instructed Wyche’s attorney (not the attorney now representing Wyche) not to deliver the instrument to Wyche unless and until Wyche had paid his half of the purchase price. The record before us shows numerous instances where Sonn-tag so testified. We shall quote only a part of Sonntag’s testimony in this connection. On cross examination:

“Q Well, now, Mr. Sonntag, did you sell that seven acres of land?
“A Yes, sir.
******
“Q How much did you get for it?
“A Ten thousand and I don’t know.
“Q Well about ten?
“A Yes, about $10,000.
***** *
“Q All right, did you account to Mr. Wyche for any part of that $10,-000?
“A I had no reason to.
“Q Well, why didn’t you have a reason to?
“A He had never bought any part of it.
“Q He had what? What was that, now? Will you say that again?
“A Yes, I don’t mind repeating it.
“Q All right, what was it?
“A He had never bought any part of that acreage. Now, that piece of paper you showed me there a while ago—
“Q Yes.
“A —that wasn’t supposed to be in his hands, or in yours either.
“Q Uh-huh, whose hands was it supposed to be in ?
“A It was stole out of his lawyer’s office.
“Q Out of his lawyer’s office?
“A Yes, I guess it was his lawyer, it wasn’t mine.
* * * * * *
“Q But, you did sign the paper, Mr. Sonntag?
“A. Yes, I know it, I thought I left it in trust, and then he turns up with it.
“Q All right.
“A Now, when he is supposed to get that paper in his hands, he was supposed to leave half of $7,190 there, which he never did, so, he owned no part of that seven acres.
⅜ ⅝ ⅜ ⅜ ⅜ Jfc
“A That is the first time I have seen it since it disappeared.
* * * * ⅜ *
MR. ERHARD: I would like to know if he understands what he did. He said he signed it in trust. What does he mean by in trust?
THE COURT: You can ask him what he meant.
“Q (By Mr. Erhard) What do you mean by you signed this in trust ?
⅜ ⅝ * # ⅜ *
“A I am telling you that I never made that statement, I give it to Mr. Wyche, I left it in the custody of his attorney for him to get the $3,500, my half of the gravel pit handed to me, and now he comes up with it and I have got nothing. He has got the statement, I will admit that, you have got it in your hands.
“Q Yes.
“A But I have got nothing.
“Q And yet you gave him—
“A I didn’t give him anything.
5j? ⅜ ‡ ⅝ ⅜ ⅜
“Q * * * And then you said that, ■ this statement here, that he owned half interest in the gravel pit?
“A I never said nothing, I never said he owned any thing, he didn’t own it, he never owned any part.
“Q All right, but the statement said that in there, that you signed, didn’t it ?
“A Well, but I can’t take the thieves out of the picture, he had no right to it whatever.
******
“A You are just for Mr. Wyche, whatever Mr. Wyche says is allright. Mr. Wyche never bought any, he never bought any part of the gravel pit. The gravel pit had no part of this deal whatever in his notes. Just because somebody steals a piece of paper from me, from somebody under trust, and comes up, and then nobody don t owe me anything.
“Q I am not defending anybody taking a piece—
“A Well, they did take it, and that is how come you with it.
* * * * * *
“Q Mr. Sonntag, did Mr. Wyche ever pay to you, * * * the sum of $3,595 on this gravel pit purchase?
“A No, sir.
“Q Did you at any time ever authorize the delivery of this so-called trust letter to Mr. Wyche,
* * * * • * *
“A No, sir.”

In his testimony Sonntag also attacked the verity of the items in the settlement statement pertaining to gravel sales and the trailer sale.

OPINION

Appellant briefs only one point of error. He asserts that the court should not have withdrawn the case from the jury where there was evidence of a material fact whether there was proper delivery of the trust declaration and payment of the notes in accordance with the alleged settlement —a question upon which reasonable minds could have differed.

In passing on this question we, must view the evidence in the light most favorable to appellant. White v. White, 141 Tex. 328, 172 S.W.2d 295. If reasonable minds might differ as to the truth of controlling facts, a jury issue is presented. McDonald “Texas Civil Practice,” Vol. 3, page 1032. In this case the testimony of appellant as to the conditional delivery of the trust declaration was not denied by ap-pellee, though appellee was present in the. court room. Neither did appellee deny ap-, pellant’s testimony that the sum of $5,000 was actually advanced to appellee as a-loan independently of the purchase of the gravel pit, and that the $5,000 note sued on was given in connection with this cash loan. In the light of appellant’s testimony we believe it was error for the court to discharge the jury and render judgment for $84.88 for appellant. See Bynum v. Peoples State Bank of Turkey, Tex.Civ.App., 243 S.W.2d 190.

The judgment of the trial court is reversed and the case is remanded to the trial court for another trial.

YOUNG, J., not sitting.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    J. M. TATTON et ux., Appellants, v. ARANSAS COUNTY et al., Appellees.
    No. 13928.
    Court of Civil Appeals of Texas. San Antonio.
    June 6, 1962.
    Rehearing Denied July 5, 1962.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Houston for appellants.
    Small, Small & Craig, Austin, for appel-lees.
   BARROW, Justice.

This is an appeal by J. M. Tatton and wife, Virginia H. Tatton (plaintiffs below), from the judgment of the 36th District Court of Aransas County denying appellants relief from an assessment for ad valorem taxes on real estate for the year 1960. Appellants paid the full amount of tax under protest and filed this suit against Aransas County and its duly elected officials.

The jury found: the fair market value of the farm land on January 1, 1960, was $200.00 per acre; there were 805.77 acres of waste land of the fair market value of $35.00 per acre, and that the fair market value of the ranch and pasture land was $100.00 per acre. These valuations were substantially the same as those established by the Board of Equalization. The trial court overruled motion for judgment non obstante veredicto and rendered judgment denying plaintiffs relief.

Appellants have duly perfected this appeal upon four points: 1. There is no evidence of probative value to support the verdict of the jury. 2. The answers of the jury are contrary to the great weight and overwhelming preponderance of the evidence. 3. The trial court erred in refusing to submit their eighteen requested special issues. Appellants’ fourth point was not urged after this Court’s refusal to file a Supplemental Transcript.

In view of the first two points, a brief summary of the material evidence is necessary. Appellants are owners of 32,065 acres of land in Aransas County, which land is made up of these categories: pasture land, farm land, and waste land, due to tidal action overflowing same. The minerals were assessed separately and only the surface valuation is in controversy in this suit.

Appellants timely filed their 1960 rendition, which is summarized as follows:

Pasture land 28,772.04 acres
Farm land 2,488.18 acres
Waste land 805.77 acres
Total assessed valuation $353,945.00
Tax 7,364.06

The fair market value of the Ranch as rendered by appellants is $1,769,725.00, and the rendered valuation was based on the County’s ratio of assessed valuation to fair market' value for the year 1960 of 20%. This valuation was placed on the tax roll by the Assessor-Collector and submitted to the Board of Equalization. After a hearing, as provided by law, at which appellants appeared and presented evidence, the Board increased the valuation, and a tax of $14,-202.24 was assessed.

Appellants produced several witnesses to justify their valuation: (1) Lewis, a real estate broker and appraiser, (2) Norris, a real estate broker, and (3) Legge, a land appraiser; all of whom had been employed by appellants to appraise said property.

Lewis made an extensive survey, and made many soil tests on the ranch. He found no suitable farm land; determined that 4,510.85 acres was waste land, which he valued at $5.00 per acre, and valued the remaining 27,554 acres at $65.00 per acre for pasture land, making a total valuation of $1,813,564.00. Norris testified that none of the land was suitable for farming, and valued all the land at $45.00 per acre. Legge valued the surface estate at $1,955,000.00.

Appellants also produced the witnesses Cochran, Abney and Gillespie, who testified concerning the possible use of the ranch. Cochran testified that this land was not suitable for a subdivision, and the latter two, that the land could not be profitably farmed.

The County had previously employed Thomas Y. Pickett & Co., Inc., for over ten years, to assist the Board of Equalization in appraising oil and gas properties. In 1959, the County entered into a contract for Pickett to assist the Board in appraising the real estate, as well as oil and gas properties, to try and equalize all property at 20% of the market value. Such a contract is valid and not under attack here. Prit-chard & Abbott v. McKenna, Tex., 350 S. W.2d 333.

The County produced three witnesses in support of the valuation placed by the Board of Equalization: (1) County Judge Wendell, (2) Sheriff Shivers, formerly Tax Collector, and (3) Taylor, a real estate appraiser employed by Pickett & Company.

Judge Wendell testified that he was familiar with the ranch in question; that he was familiar with land values in Aransas County, and that the ranch valuation was in conformity with other comparable land. He placed a valuation of $115.00 an acre on the ranch land, $200.00 an acre on the farm land, and $35.00, on the waste land.

Sheriff Shivers testified that he was familiar with land values in the County, and that the values placed on the Tatton Ranch were in line and uniform with other farm and ranch land. Taylor testified that he had inspected the property and that in his opinion the farm land was worth $250.00 an acre; the pasture land $125.00 per acre, and the waste land $30.00 per acre. He also testified concerning the sales price of eighty pieces of property which were assessed at about twenty per cent of their respective sales price.

Appellants assert in their first point that the testimony is only a scintilla of evidence on the valuation question submitted to the jury, and that as a matter of law their valuation as rendered was correct. On viewing the evidence in the most favorable light in support of the findings of the jury, as we are required to do, we find there is evidence to support said findings and we therefore overrule this point. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

By their second point, appellants attack the quality and type of appraisal of County’s witnesses as compared to those of appellants. Appellants do not complain that these witnesses were not legally qualified to express valuation appraisals. County’s witnesses, being qualified, the jury determined their credibility and the weight to be given to their testimony, as well as that of the witnesses produced by appellants. We have examined all the evidence in the case and find that the verdict is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellants’ third point complains of the failure of the trial court to submit certain special issues. Attached to the brief are eighteen unnumbered issues. In the transcript there are twenty requested issues grouped together, but nine of said group are incomplete in that the owners of the respective tracts of land under inquiry are not identified. (Their names are supplied in the issues attached to appellants’ brief, and apparently they are owners of residential properties sold after January, 1960, which Cochran testified were assessed at less than 20% of their sales price.) These twenty issues covered several different matters and were separately acted on by the trial court. The point complaining of the failure to submit eighteen issues is multifarious and too general to direct our attention to the error complained of by appellants. Rule 418, Texas Rules of Civil Procedure; Texas Emp. Ins. Ass’n v. Logsdon, Tex.Civ.App., 278 S.W.2d 893; Hudspeth v. Hudspeth, Tex.Civ.App., 206 S.W.2d 863. Said point asserts that all of said issues relate to an illegal plan or scheme of taxation of the County, and by giving a liberal construction to the briefing rules, we have considered said point and find that the trial court did not err in refusing to submit said issues.

The rules concerning the burden of the taxpayer in this type of suit have been set forth by the Supreme Court. Appellants must show a deliberate and arbitrary plan or scheme to permit certain classes of property to escape their fair share of the tax burden, and that as a result of said plan appellants have suffered substantial injury. It is not sufficient to show, comparatively, that, in isolated instances, property of equal or greater value than that in suit was valued at less. State v. Federal Land Bank of Houston, 160 Tex. 282, 329 S.W.2d 847; Whelan v. State, 155 Tex. 14, 282 S.W.2d 378; State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569.

Appellants assert that overall the owners of oil and gas interests who had been complaining, paid less tax in 1960 than in prior years. However, there is no evidence other than that this was a result of the program to equalize all taxes at a valuation of 20% of market value. This would not raise evidence of illegal scheme, under the above authorities. The fact that several residential lots were undervalued, as testified to by appellants’ witness Cochran, would not raise an issue of illegal scheme. Bernhardt v. Port Arthur Independent School Dist., 159 Tex. 488, 324 S.W.2d 163. In any event, this did not result in any substantial injury to appellants. State v. Federal Land Bank of Houston, supra.

The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    The MANHATTAN FIRE AND MARINE INSURANCE COMPANY, Appellant, v. Sterling HOLLOWAY, Appellee.
    No. 10987.
    Court of Civil Appeals of Texas. Austin.
    July 11, 1962.
    Rehearing Denied Aug. 2, 1962.
    Gay & Meyers, Austin, for appellant.
    Black & Stayton, Austin, for appellee.
   HUGHES, Justice.

This appeal is from a summary judgment against The Manhattan Fire and Marine Insurance Company in favor of Sterling Holloway for $4500.00, plus interest, for a fire loss sustained by Mr. Holloway on April 14, 1961, and found by the Court to be within the coverage of an insurance policy issued to him by the Company.

The property destroyed by fire was built, but never occupied, as a servant’s house. It was located 103' from the main dwelling, and was 30' 8" by 13' 6". It was divided into two parts by a solid wall. An area 6' by 12' was in use as a store room at the time of the fire. The remaining area was living quarters which at the time of fire, and for twenty months previously, was occupied by a paying tenant.

The main dwelling was built on a 29 acre tract owned by appellee about 6 miles west of Austin. A gate separates this property from the public road. About 125 yards inside the gate are rock columns or portals which tend to separate the dwelling and its premises from the remainder of the 29-acre tract. The servant’s house is within this separated area. Such house is not physically connected with the main dwelling, except by utility lines, both houses being serviced through the same utility meters.

The fire which destroyed appellee’s property originated several miles away, and is referred to as a “brush fire”.

If appellee’s servant’s house was insured at the time of its loss by appellant, it must be so under the following provisions of the policy then in force:

“Dwelling Extension — At the option of the insured, insurance on a dwelling may be extended as excess insurance to the fences, drives, walks, yard fixtures, private garages, servants’ houses, and, if used solely in connection with the occupancy thereof, other out-buildings on the premises of the dwelling, to the extent of their respective actual values, but the aggregate of such extension shall not exceed 10% of the amount of insurance on such dwelling. In the application of this Dwelling Extension, boarding, rooming, fraternity, and sorority houses, and apartment buildings (containing not more than eight separate apartments) may be considered as dwellings.”

It is our opinion that the lost property was a servant’s house and was covered by the policy issued by appellant.

It is true, the building was not occupied by a servant at the time of its destruction. Does this, or should this, alter its character ?

The policy does not prohibit occupancy of the insured property by tenant. In fact, such occupancy is seemingly authorized, or at least contemplated by the condition suspending insurance coverage “While a described building whether intended for occupancy by owner or tenant is vacant beyond a period of thirty consecutive days.”

The policy here also provided for suspension of insurance coverage “* * * While the hazard is increased by any means with the knowledge and control of the insured * *

There is no pleading or evidence here that the occupancy of the servant’s house by a tenant instead of a servant at the time of its destruction increased either the risk assumed by appellant or the premiums covering such risk. It has been held that whether occupancy of property by a tenant increases the risk in a fire insurance policy is a question of fact. Dixie Fire Insurance Co. v. Henson, 285 S.W. 265, Tex.Com.App. If appellant desired to defeat recovery on this policy on the ground that its risk was more hazardous because the insured property was occupied by a tenant instead of a servant, it should have pleaded or offered proof of such defense in the summary judgment proceedings. Rule 94, Texas Rules of Civil Procedure.

Assuming that there is in the policy issued to and accepted by appellee a representation that the servant’s house covered by the policy was occupied by a servant and not by a tenant, we believe the following rule of law to be correct and applicable :

“TIME TO WHICH INSURED’S STATEMENT AS TO USE AND OCCUPANCY RELATES.
“As a general rule, the insured’s statements in this respect are not thereby made promissory or continuing warranties, but they only amount to representations or warranties that the prop-perty was used or occupied as stated at the time of such statement; that is, they are merely a warranty in praesenti. Thus the fact that the insured property is described in the policy as being used for a certain purpose does not constitute a warranty that there shall be no other use subsequent to effecting the insurance. In fact, in the absence of any express stipulation, no change which does not increase the risk will avoid the policy, although the contrary ordinarily would be the ruling if there was such a change as actually increased the risk.” 8 Couch on Ins.2d, pp. 339-40.

A strong authority supporting the principle of the above text is Southern Nat. Ins. Co. v. Cobb, 180 S.W. 155, writ ref., San Antonio. There the court stated:

“It has been laid down as the rule in many cases that a clause in the application or policy stating the purpose for which the building is to be used is not a continuing warranty, but matter of description only, or, at the fartherest, only a present warranty that the house is being so used. Cooley, Briefs Law Ins. p. 1624 et seq., and authorities cited. There are other authorities to the effect that the description of the •uses to which the insured building is being put is a warranty merely in praesenti, and is not a continuing warranty that the building shall be so used, and the mere falsity of the representation is not material unless the failure to occupy the building as represented occasions the loss. Joyce, Ins. Sec. 2101 et seq. A warranty that the building was being used as a sanitarium was not a warranty that it should be so used during the entire risk, or that the use or occupation should not be changed. There is no provision for forfeiture if the occupation was changed, * *

Since there was no provision in the policy voiding it for a change in the occupancy of the servant’-s house, and since its occupancy by a tenant did not enhance the hazard of fire nor was it, directly or indirectly responsible for the loss, and since the premium rate for the risk is not shown to be affected by tenant occupancy, we hold that such change in occupancy or use did not void the policy in suit.

Appellant takes the position that the actual use of the property at the time of its loss determines whether or not it was then a servant’s house. Conceding that no case is to be found as supporting this position, appellant cites, as persuasive: Ziebarth v. Fidelity and Guaranty Fire Corp. of Baltimore, Md., 256 Wis. 529, 41 N.W.2d 632, Jeram v. Nationwide Mutual Fire Ins. Co., 4 A.D.2d 922, 166 N.Y.S.2d 833, and Hockens v. Republic Fire Ins. Co., 167 Kan. 17, 204 P.2d 773.

We have read these cases. Ziebarth holds that a fire insurance policy which provided, “The Insured may apply up to ten per cent (10%) of the amount specified for Item 1 to cover on private structures appertaining to the above described premises and located thereon.” did not cover a garage used, at the time the policy was issued, to carry on the business of the insured, which was repairing automobiles for the public. We do not consider this case persuasive authority for the position taken by appellant because the garage was not a “private structure” when the policy was issued although, presumably, neither was it a “private structure” when the loss occurred. Not being a “private structure”, during the life of the policy, it was never covered by the policy.

Jeram held that a policy providing “The Insured may apply up to ten per cent (10%) of the amount specified for the principal Dwelling item to cover private structures appertaining to the described dwelling and located on the premises, but not structures used in whole or in part for mercantile, manufacturing or farming purposes nor any structure rented or leased to other than a lessee of the described dwelling. This exclusion does not apply to buildings used exclusively for private garage purposes.” was held not to cover a garage used “for the storage of frozen foods intended for public sale, in a frozen food locker * * It is not disclosed in the opinion when this use occurred. In our opinion, this case does not persuasively support appellant’s position.

In Hockens a farmer, whose family had diminished, converted, in 1941, the parlor in his house into a storage room for seed corn. In 1945 this corn was insured against loss by fire the policy describing it as “seed corn in barn and granary”. The Court held the converted parlor was a “granary” within the meaning of the policy. The use of the parlor as a granary was constant throughout the life of the policy. We are not persuaded by this case to appellant’s position. The subject of insurance here was corn, not the granary. Furthermore, the use of the “granary” did not change during the life of the policy.

We remain convinced that the authorities cited to sustain our ruling are not undermined by the cases appellant presents, and we adhere to our stated conclusion.

Having reached the conclusion that the destroyed property was a servant’s house within the meaning of the policy and covered by it at the time of loss, it is unnecessary that we determine whether such property was an outbuilding used solely in connection with the occupancy of the main dwelling and hence covered by the policy, or whether appellant is estopped to deny liability for this loss because of the representation of its agent to appellee, long before the fire, that the servant’s house was covered by the policy in suit.

The judgment appealed from is affirmed.

      . The policy covered the time period 6-22-’57 to 6-22-’62.


author: FANNING, Justice.

text:
    Clifford Russell SPANGLER et al., Appellants, v. Leland Mearl BREASHEARS et al., Appellees.
    No. 7408.
    Court of Civil Appeals of Texas. Texarkana.
    June 26, 1962.
    Rehearing Denied July 24, 1962.

      Law Offices of Gordon R. Wellborn, Henderson, for appellants.
    Waldrop, Shaw & Colley, William L. Ferguson, Henderson, for appellees.
   FANNING, Justice.

Appellants have appealed from a judgment declaring Sandra Kay Spangler, Clifford Darrell Spangler and Cherry Lynn Spangler, minors under 16 years of age, to be dependent and neglected children, which judgment awarded the custody of Sandra Kay Spangler and Clifford Darrell Spangler to appellees Breashears and wife and awarded the custody of Cherry Lynn Spangler to appellees Large and wife. Trial was to a jury upon special issues, with the jury finding in essence as follows: (1) the three named children were dependent children; (2) said children were neglected children; (3) that the Breashears were fit and proper persons to have the care and custody of Sandra Kay and Clifford Darrell Spangler; (4) that the Larges were fit and proper persons to have the care and custody of Cherry Lynn Span-gler; (4) that J. C. Spangler and Adell Spangler (the intervening natural grandparents of the minors) were not fit and proper persons to have the care and custody of the said minor children.

The above five issues were the only issues submitted to the jury. No other issues were requested by any party. The trial court in its judgment, stated in part as follows: “That the above named minor children and each of them have been found by the jury to be a dependent and neglected child; and it appearing to the court and the court finding that each of said minor children is a dependent and neglected child as defined by law, and that each of said children does not have proper parental care, particularly as to its physical and moral welfare, and each of said children should be adjudged to be dependent and neglected children; * * * ”

Appellants by their points 1, 2 and 3, contend that there is “no evidence” and “insufficient evidence” to support the jury’s answer to special issue No. 1, and that the judgment declaring said minor children to be dependent children is “against the great and overwhelming weight of the evidence”. By points 4, 5 and 6, appellants contend that there is “no evidence” and “insufficient evidence” to support the jury’s answer to special issue No. 2, and that the judgment declaring said minor children to be neglected children is “against the great and overwhelming weight of the evidence”. For a comprehensive discussion of the principles of law applicable to the determination of such character of points, see Chief Justice Calvert’s article, “ ‘No Evidence’ and ‘Insufficient Evidence Points of Error’ ”, 38 Tex.Law Rev., No. 4, p. 361.

The statement of facts in this case contains 361 pages and we have carefully examined same. Many witnesses testified for each side and controverted each other on many matters.

There was testimony of probative force in the .record to the effect that each of the said minor children were dependent and neglected children as defined by law and that each of said children did not have proper parental care from their natural parents as found by the trial court in its judgments.

The parents of the minor children were young parents, they had marital difficulties, there was evidence of probative force in the record that the children (while living with their parents and shortly before the parents delivered them to appellees) were dependent for food to a certain extent upon neighbors, that they were neglected, and ill-kept and lived under unfavorable conditions, as more fully shown by the record. Following the divorce action filed by the young mother, the parties separated and the mother went to Fort Worth where she secured employment and had numerous dates with men other than her husband. At the same time the young father was keeping company with a 13 year old girl. The minor children at said time were being cared for by one of the appellees herein, Mrs. Large. On or about April 24, 1961, the parents of said minor children delivered custody of the minor children to appellees herein and signed written consents to the adoption of said children by the appellees herein. Appellees have had the care and custody of such minor children since they received them. The father of said minors on May 31, 1961, by written instrument, withdrew his consent to the adoption of said minor children and the mother also later withdrew her consent to the adoption of the said children. The parents reconciled their marital difficulties and contested the dependent and neglected child proceeding involved herein. The State of Texas, through the County Attorney of Rusk County, Texas, took part in the proceedings at the request of the trial court and J. C. Spangler and Adell Spangler, grandparents of said minor children, filed an intervention in said cause seeking the custody of said children.

It appears that appellants’ main attack on the judgment and verdict of the jury is that because the minor children, who were found and adjudged to be dependent and neglected children under Art. 2330, Vernon’s Ann.Civ.St., lived in the homes of appellees approximately two months prior to the filing of the proceedings in the instant cause, and were receiving good care and treatment from appellees at the time of filing such petition, and under appellants’ contention such children could not therefore at the time of the filing of the petition be dependent and neglected children. We think appellants’ contention in this respect is without merit, as there is evidence of probative force to show that the children were abandoned by the parents on or about April 24, 1961, and that both before and after said date the minor children did not have proper parental care from appellants. In this connection see Hendrick v. Voss, Tex.Civ.App., 334 S.W.2d 308, and authorities cited therein, wherein it is stated in part as follows :

“We are unable to agree with appellant. As we have pointed out the facts as we have narrated them are taken for the most part from the testimony of appellant herself. She voluntarily surrendered possession of her child to others. Though she later had a right to withdraw her consent for its adoption, and did so, the question of the best interests of the child with regard to its care and custody .remained a question for the court to decide, though appellant is the mother of the child. Broome v. Edna Gladney Home, Tex.Civ.App., 295 S.W.2d 266; Herre v. Morris, Tex.Civ.App., 251 S.W.2d 260; Austin v. Collins, Tex.Civ.App., 200 S.W.2d 666; Davis v. Sears, Tex.Com.App., 35 S.W.2d 99; Legate v. Legate, 87 Tex. 248, 28 S.W. 281. This is especially true when, as in this case, others have had the child for some time, and its award to its mother would involve a change in custody. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787.
“Article 2330, Vernon’s Ann.Civ.St., defines a neglected and dependent child as ‘ * * * any child under sixteen years of age * * * who is destitute, homeless or abandoned; or who has not proper parental care or guardianship.' The undisputed testimony shows that appellant abandoned the child on August 1, 1957. During the following months the child did not have proper parental care front appellant.” (Emphasis added.)

We hold that there was evidence of probative force to support the jury’s answers to special issues Nos. 1 and 2 and that the evidence was sufficient to support same. Appellants’ points 1, 2, 4 and 5, are overruled.

After carefully considering the entire record in this cause in the light of the rules announced in the case of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, it is our view that the judgment of the trial court declaring said minor children to be dependent and neglected children, is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Appellants’ points 3 and 6 are overruled.

By point 8 appellants contend that the judgment of the trial court is void because there were no findings that the natural parents were not fit and proper persons to have the custody of their said minor children. In Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, it was stated in part as follows:

“The father’s point one in the Court of Civil Appeals attacks the trial court’s finding that it was to the child’s best interests for her to remain with her grandparents. The point is not well taken unless the law gives the father custody where there is no finding that he is not a fit person, because in this record there is evidence which does support the trial court.
* * * * * *
“The paramount right of a natural parent to a child comes from a legal presumption that to be raised by its natural parents is to the child’s best interest. This presumption is based upon the natural affection usually flowing from parentage. Clayton v. Kerbey, Tex.Civ.App., 1921, 226 S.W. 1117. Although this presumption should be considered by the trial judge in weighing the evidence, it cannot be controlling in the face of a final judgment to the contrary, and, whatever effect such a presumption may have in an original custody action, it cannot control a suit to change custody. In Taylor v. Taylor, supra, ([Tex.Civ.App.] 42 S.W.2d [455] 456), the court said:
“ ‘The presumption is that the best interest of the children will be sub-served by awarding them to the natural parent, but this is a .rebuttable presumption, and it is not necessary that the respondents prove that the natural parent is disqualified by immorality or misfortune.’
“In the case at bar, we hold that in determining the question of the best interests of the child the trial court did not abuse its discretion. * * * ”

In Rosson v. De Arman, Tex.Civ.App., 323 S.W.2d 75, wr. ref. n. r. e., a dependent and neglected child proceeding, it was stated in part as follows:

“Under the facts of this case, the trial court in awarding custody must consider the best interest and welfare of the child. In addition to Taylor v. Meek, supra, see the following cases cited in that opinion: (Citing numerous authorities.)
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“In 31 Tex.Jur., Sec. 15, p. 1292, it is said:
“‘Though there are cases which apparently hold to the contrary, according to the best authorities, the mere fact that a father is a stiitable custodian does not entitle him as a matter of right if the welfare of the child demands the award of custody to some other person” (Emphasis added.)

It is presumed that the trial court in support of its judgment impliedly found that it would be to the best interests and welfare of the said minor children to have their custody awarded to appellees in the manner stated in the judgment. In the case at bar, we hold that in determining the question of the best interests and welfare of the minor children that the trial court did not abuse its discretion. Appellants’ 8th point is overruled.

We also hold that the trial court did not err in refusing to give the special instruction requested by appellants because under the authorities heretofore cited such requested instruction was not a substantially correct statement of the law. Appellants’ 7th point is overruled.

The judgment of the trial court is affirmed.


author: POPE, Justice.

text:
    Arnold H. BRUNER, Appellant, v. GULF OIL CORPORATION et al., Appellees.
    No. 13979.
    Court of Civil Appeals of Texas. San Antonio.
    July 5, 1962.
    Rehearing Denied Aug. 1, 1962.
    Lyne, Blanchette, Smith & Shelton, Dallas, for appellant.
    Kleberg, Mobley, Lockett & Weil, J. Pat McGloin, Corpus Christi, Sam Pickard, W. B. Edwards, Robert L. Dabney, Fred A. Lange, Houston, for appellees.
   POPE, Justice.

The question presented is whether an oil and gas lease, under the terms of its haben-dum clause, lapsed as to oil, upon the cessation of oil production although gas is produced on lands outside the boundaries of the original lease, but within an area later unitized for gas production only. The trial court held that the lease did not lapse. We affirm the judgment.

Emil Boehm and wife executed an oil and gas lease on June 1, 1935, covering the lands here in suit. We shall call that “Lease I”. Defendants, Gulf Oil Corporation, Lion Oil, Inc., and Monsanto Chemical Company, claim under that lease. Their rights are dependent upon the continuation of that lease, which was for a term of one year “and as long thereafter as oil, gas or other mineral is produced from said land. The lease did not contain any provision with regard to pooling or unitization. Oil was discovered and there was production from the lands until June 16, 1951, when it stopped. This is the event .which plaintiff, Arnold Bruner, relies upon as the cessation of the lease and the termination of all rights under it.

Emil Boehm’s heirs, together with all other parties who owned .the royalty, mineral and leasehold estate on September 15, 1949, entered into a gas pooling agreement. That agreement included the lands covered by Lease I and additional lands. The pooling agreement provided:

“Drilling or reworking operations on, or production of gas from, any portion of the land in the Unit Area shall have the effect of continuing the oil and gas leases described herein, situated in the Unit Area in force and effect whether or not such operations be on, or production be from, the lands described in the separate leases. * * * ”

Gas was produced from the unit, but not on lands included in the Boehm Lease I. This production began before the oil production on lands included in Lease I ceased. The gas production has continued. The trial court held that this gas production maintained Lease I in force for all purposes.

Emil Boehm’s heirs executed what we shall call Lease II, on March 2, 1955, to the oil only, on lands originally covered by Lease I. Arnold Bruner claims under Lease II. He drilled and obtained a producing oil well. He argues that the trial court’s judgment is in error because the pooling agreement applies only to gas, that the pooling agreement severed the gas estate from the oil estate, and that the unit production of gas maintained Lease I in force as to gas only and not as to oil.

The pooling agreement is clear. By it the parties agreed that production from anj portion of the unit area would have the ef-feet of continuing the oil and gas leases described herein” in force and effect. In our opinion, this case is controlled by Southland Royalty Co. v. Humble Oil & Refining Co., 151 Tex. 324, 249 S.W.2d 914. While the pooling was by operation of law instead of by contract, Whitaker v. Texaco, Inc., 10 Cir., 283 F.2d 169, reaches a similar result. Accord, Scott v. Pure Oil Co., 5 Cir., 194 F.2d 393; Hoffman, Voluntary Pooling and Unitization, pp. 118-121.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    J. B. COFFIELD, Appellant, v. INTERNATIONAL HARVESTER COMPANY, Appellee.
    No. 4006.
    Court of Civil Appeals of Texas. Waco.
    June 28, 1962.

      Donald & Donald, Joe H. Cleveland, Bowie, for appellant.
    Bowyer & Thomas, Richard C. Bexten, Dallas, for appellee.
   McDONALD, Chief Justice.

This case involves the superiority of asserted liens on a used 1959 Ford truck.

International Harvester Company sold the truck to A. F. Brodie, for a down payment, and a note for $2053., which was secured by a chattel mortgage on the truck. International prepared application for a new title certificate, showing title in Brodie, with a lien in favor of International, for the $2053. International gave the application to Brodie to take to the Tax Collector’s office (for transmittal to the State Highway Department) instead of attending to the matter themselves. Brodie in some manner (not material here), secured the issuance of a title certificate, showing title in himself, but which did not show International’s lien.

Thereafter, Brodie borrowed $900. from J. B. Coffield; executed notes therefor; and then signed his name on the reverse of the title certificate on the line marked “Seller,” and delivered the certificate to Coffield. Brodie did not date the instrument, did not sign before a Notary, and the space provided for the name of the purchaser was left blank. Coffield kept the “Certificate of Title,” and says that it was delivered to him to be held as security for the $900. notes.

Brodie did not pay International its note, and did not pay Coffield his notes. International sued Brodie on its note, and sought foreclosure of its chattel mortgage lien on the truck. Coffield intervened, seeking judgment on his notes, and asserting a lien, superior to International’s, on . the truck.

Trial was before the court without a jury, which, after hearing, entered judgment against Brodie, for International on its note, and for foreclosure of its chattel mortgage lien on the truck; and against Brodie, for Coffield on his notes. The Trial Court affirmatively held that International’s chattel mortgage lien was superior to any claim of Coffield.

Coffield appeals, contending the Trial Court erred in holding International’s chattel mortgage lien “superior to the Original Certificate of Title held by Coffield as security for his notes.”

Since International had the responsibility, under Article 1436-1, Vernon’s Texas Penal Code, to secure the issuance of a title certificate showing its lien, and did not do so, it had no lien under the Certificate of Title Act. Bank of Atlanta v. Fretz, 148 Tex. 551, 226 S.W.2d 843; Credit Ind. Corp. v. Pacific Finance, Tex.Civ.App., W/E Refused, 329 S.W.2d 945. Nevertheless as between International and Brodie, its chattel mortgage lien is valid and enforceable; and Brodie retained possession of the truck.

Brodie’s action in signing his name in blank on the reverse side of the Title Certificate, and delivering same to Coffield will not pass title to the truck to Coffield. Sec. 33, Art. 1436-1, Tex.Penal Code; Hoskins v. Carpenter, Tex.Civ.App., (n. r. e.), 201 S.W.2d 606. And such action will not establish a lien on the truck in favor of Coffield. Coffield has no lien on the truck. He already has judgment against Brodie for his claim. The Trial Court did not err in foreclosing International’s chattel mortgage lien on the truck. Affirmed.


author: WALTER, Justice.

text:
    H. R. FRAZIER et al., Appellants, v. T. W. WILLIAMS et al., Appellees.
    No. 3743.
    Court of Civil Appeals of Texas. Eastland.
    June 15, 1962.
    Lester O. Berg, Abilene, Harry E. Loft-hus, Amarillo, for appellants.
    Royce B. Adkins, Dist. Atty., Haskell, W. R. Ely, Abilene, for appellees.
   WALTER, Justice.

H. R. Frazier and Lon A. Fuller filed suit against T. W. Williams, Arlos Weaver, Olen Dotson, Hallie Chapman, W. R. Johnson, Frank C. Scott, Noel Reynolds, Hunter Woodruff, Joseph L. Brown, Consolidated Tungsten Mines, Inc., and Yucca Tungsten Company for conversion of certain mining properties located in Arizona. Williams, Weaver, Dotson, Chapman, Johnson and Scott filed pleas of privilege to be sued in Haskell County, the county of their residence. The plaintiffs controverted said pleas and alleged that the District Court of Taylor County had venue under Subdivision 4 of Article 1995 of the Vernon’s Ann. Revised Civil Statutes of Texas. The court sustained the defendants’ pleas of privilege.

The plaintiffs have appealed. They contend that the court erred in sustaining the defendants’ pleas of privilege because the plaintiffs proved conclusively that their cause of action was maintainable in Taylor County under said Subdivision 4.

The applicable provision of Subdivision 4 of Article 1995 provides “If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.” In order to maintain venue under Subdivision

4, the plaintiffs had the burden of proving (1) that one of the defendants resided in Taylor County and (2) that he had a cause of action against the resident defendant. He also had the burden of alleging facts showing that the non-resident defendants were properly joined in the suit. Ladner v. Reliance Corporation, 156 Tex. 158, 293 5.W.2d 758; Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

“The general rule of venue is, of course, that a defendant shall be sued in his own county, and however many and important are the exceptions contained in the statute, an equal doubt between the exception and the rule is to be resolved in favor of the rule. Stated differently, the application of the exception must clearly appear.” Goodrich v. Superior Oil Company, 150 Tex. 159, 237 S.W.2d 969.

In cases tried before the court without a jury, in the absence of a point that the judgment is contrary to the overwhelming weight and preponderance of the evidence, the rule is well settled that the judgment must be affirmed if there is any evidence of probative value to support it and that only evidence which tends to support the judgment may be considered. See Wilson v. Teague Independent School District, Tex.Civ.App., 251 S.W.2d 263, (Writ Ref.).

The plaintiffs charged that the defendants mined and removed tungsten ore from their claim of the reasonable market value of $628,615.00 and converted it to their own use. They pleaded that the defendants removed other minerals from their claim, the kind, amount and value of which is unknown to them and that they were forced to defend law suits and defend their title to their claim and were forced to expend the sum of $7,000.00, for which they sued the defendants. They also sued for $500,000.00' exemplary damages. The plaintiffs asserted that the corporations were fronts for the: individual defendants.

“In order to establish an allegation-of conversion it must be shown that the person charged unlawfully and wrongfully exercised dominion and control over property of another to the exclusion of the exercise of the right of possession by the-owner or some other person entitled to its-possession.” American Cotton Co-op Ass’n v. Plainview Compress & Warehouse Co., Tex.Civ.App., 114 S.W.2d 689, at page 692, (Writ Dis.).

Plaintiff Frazier testified that he was not-personally acquainted with the Haskell1 County defendants but had met Mr. Williams and Mr. Weaver; that he was complaining about Consolidated Tungsten and' Yucca Tungsten. On cross examination of the plaintiff Frazier and referring to the-ore from the plaintiffs’ claim, he was asked “And Brown didn’t sell anything off of it did he ?” and he answered, “I couldn’t say that he didn’t. Actually I am not concerned’ whether he did or didn’t. The fact that the-ore is gone; there isn’t any more.”

A careful study of the facts and' circumstances in evidence leads us to the-conclusion that they raise fact issues which the learned trial court has found in favor of the appellees. The appellants’ point is-overruled. The judgment is affirmed.


author: TIREY, Justice. WILSON, Justice.

text:
    Janice Hayes ROBINSON, Appellant, v. Hal S. ROBINSON, Appellee. Appeal from Juvenile Court Dallas County.
    No. 4007.
    Court of Civil Appeals of Texas. Waco.
    May 31, 1962.
    Henry Klepak, Thomas F. Nash, Dallas, for appellant.
    Paul K. Hyde, Dallas, for appellee.
   TIREY, Justice.

This cause involves the custody of a three year old boy and was tried without the aid of a jury. The Court, in its judgment, found substantially that the allegations contained in Plaintiff’s Petition to change the custody of the minor from the defendant to the plaintiff were true, and that such relief should be granted. In the judgment there is this recital :

“The court further finds that Mr. Hal S. Robinson, Sr. is a single man and having read the Juvenile Department of Dallas County, Texas reports, is of the opinion that the paternal Uncle and Aunt, Mr. and Mrs. Jed Robinson of Richmond, Utah should have the the care, custody and control of the said child, and it is for the best interest of the said child.” (The above report is not in the record.)

And the court awarded the care, custody and control of the minor to Mr. and Mrs. Robinson until the child reaches the age of 18 years, or until further orders of this court. The court overruled the motion for new trial and the cause is here for review.

The 4th point is substantially to the effect that the court erred in proceeding to trial of this cause without giving the appellant sufficient time to make her appearance before the court.

A statement is necessary. Upon request, the court filed Findings of Fact and Conclusions of Law. In the first paragraph of the Findings of Fact, we find pertinent to this discussion the following recital:

“ * * * a Jury trial having been waived, and PAUL K. HYDE appearing for the Plaintiff, together with the Plaintiff, and JANICE HAYES ROBINSON appearing not but attorney of Record, GEORGE E. FLANNIGAN having withdrawn with permission of the Court, the Court having been assured by Mr. Flannigan that the Defendant had been notified of the trial setting and Mr. Flannigan appearing in Court as amicus curiae on the day of the setting and telling the Court that the Defendant was available for trial and was waiting for call from him to know whether or not she should be in Court; whereupon, the Court told the amicus curiae that he should notify the Defendant immediately that the cause would be heard that morning, at which time the amicus curiae informed the Court that he would thusly notify the Defendant. After a lapse of approximately one hour to two hours, the cause was called and the Defendant appeared not and the Court proceeded to hear the evidence and examine the pleadings and, after hearing the allegations and proofs of the party, the witnesses for Plaintiff, the arguments of counsel, and being fully advised in the premises, the Court makes the following findings of fact and conclusions of law constituting the decision of the Court in said action.”

In view of the disposition that we feel must be made of this cause, we see no necessity to state the specific Findings of Fact found by the Court, except to say they are sufficient to sustain the judgment of the Court entered.

Two witnesses were tendered by the plaintiff. Plaintiff himself took the stand and, according to his testimony, when the divorce suit was disposed of in August 1960, he made no contest to the award of the custody of the child to the mother. His testimony with reference to the conduct of his wife after the granting of the divorce charges his former wife with conduct unbecoming to a mother; but owing to the view that we take of the disposition that should be made of the case, we see no necessity to make further detailed statement as to this testimony.

The plaintiff tendered one other witness, Lillie Frances Thomas, who was the maid used by defendant after the divorce was granted, and her testimony corroborated the testimony of the husband.

Under the foregoing factual situation, did the trial court err in changing the care, custody and control of this three year old child from the mother without giving the mother an opportunity to be heard under this state of the record ? It is our view that he did. In this instance, as always, the prime consideration of the trial court is and was the best welfare of the child. Ex parte Willig, a Minor, Tex.Civ.App., 314 S. W.2d 395, n. r. e. The Court could not discharge his duty in this behalf to the child without giving the mother an opportunity to be heard with reference to the serious charges that had been made against her character and conduct.

Our Supreme Court in State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901, made this statement of the rule for our guide:

“God, in his wisdom, has placed upon the father and mother the obligation to nurture, educate, protect, and guide their offspring, and has qualified them to discharge those important duties by writing in their hearts sentiments of affection, and establishing between them and their children ties which cannot exist between the children and any other persons. Especially is this the case with the mother. Parents cannot de-vest themselves of the obligation imposed upon them by their Creator, but, when they become disqualified for a proper discharge of such duties, civil government has the right, in the interest of the child, to provide for its proper nurture and education.”

This court, in Oldfield v. Campbell, Tex.Civ.App., 191 S.W.2d 897, made the following statement which we think is pertinent here:

“The recently declared public policy of this state in dealing with dependent and neglected children is to secure for each ‘such care, guidance and control, preferably in his own home, as will serve the child’s welfare and the best interest of the state; and when such child is removed from his own family, to secure for him custody, care and discipline as nearly as possible equivalent to that which should have been given him by his parents.’ Art. 2338-1, Sec. 1 of Vernon’s Tex.Ann.Civ.Stats.”

Returning to the recital in paragraph 1 of the Findings of Fact, it is noted that the court was fully advised about Mr. Flan-nigan having been previously employed by defendant and that Mr. Flannigan had been allowed to withdraw from such representation by permission of the court, and the court found that Mr. Flannigan appeared before him on the date of the trial as amicus curiae.

Going back to the record, the divorce judgment was granted in August 1960, and the plaintiff filed his motion to change custody June 2, 1961. Flannigan filed his original answer for Mrs. Robinson June 30, 1961. He filed his motion to withdraw as attorney of record on August 11, 1961 and the Court on August 15, 1961 granted such permission. The judgment recites that the case came on for trial on the 5th day of September 1961. We find no pleading in the transcript by Flannigan, stating that he came to the court in the capacity as an amicus curiae when he appeared before the court on the 5th day of September 1961. However, since the Court found that Flannigan did, we must assume that Flan-nigan did so state to the Court that he was there in the capacity of amicus curiae.

On Motion for New Trial, Flannigan testified to the effect that Mrs. Robinson had been to his office some 2 or 3 days before the trial, and that he had accepted from her the sum of $150.00 in part payment of his fee, and that he had promised Mrs. Robinson that he would attend to the setting of the case and fully advise her about the setting, and that she should not come to court until he phoned her and advised her to do so. There is nothing in the record to indicate that Flannigan advised the Court that he had accepted the sum of $150.00 from Mrs. Robinson, but as we understand the Court’s recital, heretofore set out, the Court was advised by Flannigan that Mrs. Robinson was in the city and that she was available and awaiting word from him as to when to come to court.

In response to appellee’s counsel on cross-examination, Flannigan testified in part:

“Q. And also at that time you assured the Court as you left the courtroom, which was about 9:30, that you would immediately tell Mrs. Robinson to be present in the courtroom at once, did you not?
“A. I probably did, and that is exactly what I tried to do.”

Our view of this factual situation is that regardless of whether Flannigan was in court on September 5th as amicus curiae or as attorney for defendant, is immaterial under the recital by the Court and the knowledge that the Court had that Mrs. Robinson was in the City of Dallas and that she was available and was awaiting instructions from Flannigan as to when to come to court.

The foregoing statement is based upon the rule in Texas that the primary duty of the court in child custody cases is to do what is for the best interest of the minor child, and the Court could not discharge this duty fully to the child by hearing only one side of this controversy. The child was entitled to have the Court see and hear the mother if she was available and in this instance she was, and ready to come to court immediately when instructed to do so. Under this undisputed factual situation it was the duty of the Court to recess the proceedings and give Mrs. Robinson an opportunity to be heard. It is our view that the Court’s failure to recess this cause or reset it, as hereinabove indicated, was error, and that such error requires that this cause be reversed and remanded in order that the cause may be fully developed. It follows that we are of the view that the Court should have granted appellant’s motion for new trial, and set his former judgment aside. In view of the fact that we think this cause should be remanded, all other points pass out of the case. Reversed and remanded.

WILSON, Justice.

I concur in disposition only — not on the basis the court did not give the mother an opportunity to be heard. The court did give her such an opportunity. I think it might properly be held the motion for new trial should have been granted, under the record, to give her a further opportunity to be heard.


text:
    Morris H. WITT, Appellant, v. Alan Ernst SOEFJE, Appellee.
    No. 3716.
    Court of Civil Appeals of Texas. Eastland.
    June 1, 1962.
    Rehearing Denied June 29, 1962.
    Roger W. Wooldridge, W. T. Acklen, San Antonio, for appellant.
    Hobart Huson, Jr., San Antonio, for appellee.
   WALTER, Justice.

Morris H. Witt filed suit against Alan Ernst Soefje for damages to his automobile and for personal injuries. Based on the verdict, judgment was rendered that plaintiff take nothing.

The collision occurred at the intersection of West Avenue and Gardina Streets in the City of San Antonio on Sunday night at about 10:00 o’clock. The appellant Witt was driving a Volks Wagon and was traveling north on West Avenue. The appellee, Soefje, was driving a Renault and was traveling south on West Avenue. Witt was attempting to make a left turn at the intersection of West Avenue and Gardina Street. As Witt was in the act of negotiating his left turn, the front of Soefje’s car struck the right rear section of Witt’s car.

The jury found that the defendant Soefje failed to keep a proper lookout and that his failure to keep a proper lookout was a proximate cause of the collision; that the plaintiff Witt failed to keep a proper lookout and that such failure to keep a proper lookout was a proximate cause of the collision; that the plaintiff Witt did not fail to yield the right of way and that defendant Soefje’s headlights were on immediately prior to the collision.

Plaintiff has appealed contending there ■was no evidence and insufficient evidence to support the jury’s findings that plaintiff’s failure to keep a proper lookout was negligence and a proximate cause of the collision. He also contends the court erred in failing to grant his motion for judgment notwithstanding the verdict and in failing to disregard the jury’s finding that plaintiff failed to keep a proper lookout.

We have considered all the evidence and have concluded that the verdict of the jury is not contrary to the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, (Sup.Ct.).

The weather was clear and there is nothing in the record to indicate that visibility was impaired by any abnormal condition prior to the collision. Appellant’s photographs 11 and 13 show some street lights near the scene of the collision. The record indicates that appellant attempted to excuse his failure to keep a proper lookout by showing that Soefje was driving without headlights. Appellant did not see appellee’s car until it was about four feet away from him. Appellant testified “well, it just came right out of the darkness without no lights.” The jury found against him on this issue. We have concluded that the record contains evidence of probative force to support the findings of the jury.

We have carefully considered all of appellant’s points and are forced to the conclusion that they are without merit. They are overruled.

The judgment is affirmed.

On Motion for Rehearing.

In his motion for rehearing, the appellant asserts that we failed to pass on his first and second points of error and then asserts that we erred in overruling them. Special issue number 13 inquired if appellant Witt failed to keep a proper lookout and special issue number 14 inquired if such failure to keep a proper lookout, if any, was a proximate cause of the collision. The jury answered that appellant Witt failed to keep a proper lookout and that such failure was a proximate cause of the collision. In the recent case of Genell, Inc. v. Rory Flynn et al., 358 S.W.2d 543, our Supreme Court on June 20, 1962, on the question of proximate cause said: “Keeping in mind that the test as to whether a given act may be deemed the proximate cause of an injury, is simply whether in the light of all the attending circumstances the injury was such as ought reasonably to have been anticipated as a consequence of the act * * The testimony quoted in our original opinion and other evidence in the record constitutes evidence of probative force to support the finding of the jury that the failure of appellant Witt to keep a proper lookout was a proximate cause of the collision.

We have considered all the evidence and have concluded that the jury’s finding that the appellant Witt’s failure to keep a proper lookout was a proximate cause of the collision is not contrary to the great weight and preponderance of the evidence.

Appellant’s motion for rehearing is overruled.


text:
    UNITED FINANCE & THRIFT COMPANY OF DALLAS, Inc., et al., Appellants, v. James E. FARR, Appellee.
    No. 16019.
    Court of Civil Appeals of Texas. Dallas.
    June 29, 1962.

      Irion, Cain, Cocke & Magee, and Burt Berry, Dallas, for appellants.
    Fritz & Vinson, Dallas, for appellee.
   DIXON, Chief Justice.

Appellee James E. Farr obtained judgment for double damages in the amount of $497.80 for usurious interest charged by United Finance & Thrift Company and State Loan & Finance Corporation. The former company is wholly owned by the latter company. The usurious interest was charged in three uninterrupted loan transactions. Each of the last two transactions was a renewal of its predecessor. The first named of the companies received the usurious interest and has appealed. There is no question raised as the liability of the parent company. Prior to the filing of this suit appellee had paid the last note in full in cash, including principal and interest.

Appellant admits that of the $477.80 awarded in the judgment appellee is entitled to the sum of $350.00. Thus the amount involved in this appeal is narrowed down to the sum of $147.70.

Appellant pled the two year statute of limitations as to the sum in controversy. In reply appellee pled that he exercised his option to have the payments in question applied to the principal not the interest. Therefore none of the interest payments were made outside the two year period.

In its one point on appeal appellant asserts that the trial court erred in permitting appellee to recover double the amount of usurious interest paid more than two years prior to the filing of the lawsuit.

There is no merit to appellant’s point. Appellee had a right to have his payments applied first as credits on the principal. He is entitled to this right though he may not at the time of payment have directed how his payments should be applied, for the law will, as between a legal and an illegal debt, apply payments in the absence of direction, on the legal debt. Southern Industrial Corp. v. Harris, Tex.Civ.App., 22 S.W.2d 494, 495; Temple Trust Co. v. Stobaugh, Tex.Civ.App., 59 S.W.2d 916; Adleson v. B. F. Dittmar Co., 124 Tex. 564, 80 S.W.2d 939; Robertson v. Connecticut General Life Ins. Co., Tex.Civ.App., 140 S.W.2d 936, 42 Tex.Jur. 951, 958-959; Ware v. Paxton, Tex.Civ.App., 266 S.W.2d 218.

Under the above authorities payments made outside the two year period of limitations will be applied to the principal debt. All interest payments then fall within the two year period.

The judgment of the trial court is affirmed.

YOUNG, J., not sitting.


author: MURRAY, Chief Justice.

text:
    TEXAS & NEW ORLEANS RAILROAD COMPANY, Appellant, v. Viviano LOPEZ, Appellee.
    No. 13981.
    Court of Civil Appeals of Texas. San Antonio.
    July 11, 1962.
    Moursund, Ball & Bergstrom, San Antonio, for appellant.
    House, Mercer, House & Brock, San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by Viviano Lopez against Texas & New Orleans Railroad Company seeking to recover for damages to his automobile sustained in a crossing collision with defendant’s train. The trial was to a jury upon special issues, and resulted in judgment for Lopez in the sum of $999.99, together with interest at 6% per annum. Texas & New Orleans Railroad Company has appealed.

Appellant’s first point is that there was no evidence to show the fair market value of appellee’s automobile just prior to and just after the collision. We overrule this point. Appellee testified on direct examination as follows:

“Q Mr. Lopez, do you know the fair, reasonable market value of your automobile in San Antonio, Bexar County, Texas, on the day of the collision, before the collision?
“A Yes, sir. * * * (Objection by opposing counsel.)
“Q What was the value of your automobile in San Antonio, Bexar County, Texas, prior to this collision?
“A $1500.00.
“Q Do you know the value of your automobile in Bexar County, Texas, immediately after the collision and before it was repaired?
“A Yes, sir.
“Q. How much was that?
“A $500.00.
“Q Did you sell it for junk?
“A Yes, sir.
“Q How much did you get?
“A $275.00.”

This constitutes some evidence of the fair market value of the automobile before and after the collision, even though appellee contradicted himself on cross-examination.

Appellant’s fourth point is to the effect that the jury in determining the fair market value of appellee’s automobile considered prices quoted in a current daily newspaper. The record shows that the foreman of the jury, Kenneth R. Davis, testified that he read quotations of automobile prices in a daily newspaper, and when the jurors had different opinions as to the market value of appellee’s car he called these prices to their attention. Ap-pellee’s automobile was a 1957 Chevrolet, and in the newspaper he found a 1958 Chevrolet quoted at $1500.00. He told the jury that the newspaper was not in evidence, but he thought they might use it as a guide. He heard someone say the paper might be wrong. This took place while the jury were deliberating and before they had determined the value of appel-lee’s wrecked automobile. The collision occurred in April, 1960, and the trial took place some eighteen months later, on October 13, 1961. In view of the fact that the only evidence in the record as to the value of appellee’s automobile just before the collision was given by appellee himself, and such evidence was repudiated by him on cross-examination, we regard the statements of the foreman to the other members of the jury, as to his reading a ■current issue of the newspaper and finding a quoted price of a 1958 Chevrolet, as very improper, and that by hearing these statements the jury received evidence not in the record, which was very harmful to .appellant.

While the foreman, Kenneth R. Davis, testified that this was his first jury duty and he did not realize that it was improper for him to tell the jury what he had learned from reading the paper, his conduct and that of the jury was very improper. It reasonably appears to us from the evidence, both on the hearing of the motion and on the trial of the case, and from the record .as a whole, that injury probably resulted to .appellant. Rule 327, Texas Rules of Civil Procedure; Texas Employers’ Ins. Ass’n v. Price, Tex.Civ.App., 336 S.W.2d 304; Weathers v. Renshaw Bros. Well Servicing Co., Tex.Civ.App., 307 S.W.2d 640; Gulf States Equipment Co. v. Toombs, Tex.Civ.App., 288 S.W.2d 203; Western Cottonoil Co. v. Arnold, Tex.Civ.App., 279 S.W.2d 374.

There are other points presented by appellant, but in view of the fact that from what we have already said, this cause must be reversed and remanded, we do not find it necessary to pass upon such points.

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


author: McNEILL, Justice.

text:
    Theodore Frank HERMANN, Appellant, v. Hilda Ruby Lehman HERMANN, Appellee.
    No. 6544.
    Court of Civil Appeals of Texas. Beaumont.
    May 17, 1962.
    Rehearing Denied June 20, 1962.

      Charles C. Smith, Jr., Cameron, Walter M. Hilliard, Caldwell, for appellant.
    M. F. Kieke, Giddings, for appellee.
   McNEILL, Justice.

Appellee brought suit against appellant for divorce on the grounds of harsh and cruel treatment, and prayed for custody of their two minor children. She also alleged that the 106 acre farm constituting the homestead was acquired by her before marriage to appellant and was her separate property. She prayed that she recover title thereto and for division of the community property.

Appellant filed his answer to this suit and by cross action asked for divorce from ap-pellee, and alleged that the homestead was community property. He prayed for division of it and other community property of the parties and asked for custody of the children.

Trial was to the court without a jury, and at the conclusion thereof, judgment was rendered in behalf of appellee for divorce, care and custody of the minor children were awarded appellee and the farm constituting the homestead was set aside to appellee for life for the use and benefit of her and her two children. The judgment further provided at her death a one-half interest in the farm would vest in appellant or his successors and assigns and the other one-half in appellee’s successors and assigns. The decree required that appellee keep all current taxes on the farm paid and the improvements in reasonable repair. It also provided that appellant pay $25.00 per month for the support of each child until the children shall arrive at the age of 18 years or until further ordered by the court.

The appeal to this court presents three points. By the first appellant contends that the evidence upon which the divorce was granted was not that “full and satisfactory evidence” required by Art. 4632, Vernon’s Ann.Tex.St. The evidence under this point has been reviewed and we are convinced the trial court was amply justified in granting appellee a divorce. Appellant asserts that the evidence does not show any specific instances of excesses or cruel treatment by appellant toward appel-lee. The record reflects otherwise. The parties were married January 19, 1947. Ap-pellee received a college education at San Marcos Teachers College and taught school about 8 years. She had saved a fair sum of money from her salary as teacher and before her marriage bought the tracts of land constituting the parties’ homestead. Appellant is a farmer. After marriage ap-pellee worked and did many chores on the farm that would become a man. She related on one occasion she and her husband were working in the corn field tying corn tops. Her hands became sore and she was not doing a very good job. He criticized her, slapped her, hit her on the nose and made her nose bleed; slapped her on the head and back so hard that she had blue spots. “He slapped me all blue, and my arm, and my nose was really bleeding, and I was black in front of my eyes * * * At another time she related that appellant asked her if she wanted to go visit her parents who lived not many miles away in the same county. She stated she had not seen her parents for a year, “and I thought maybe now I will go visit my parents again. I said sure I did, and he was standing behind me. He just slapped me and slapped me, right and left, just slapped me, just because I said I wanted to visit my parents.” She stated that in the earlier years of their marriage he would not slap her so hard and this occurred seldom but as time went on he would slap her much harder and more frequently. Appellee further testified that when she was pregnant with her son he slapped and abused her and when she was due to have the child he said, “You can have your baby out there in the barn” but she insisted on going to the hospital and she was taken there.

Appellee’s witnesses testified that appellant was “cranky and hard to get along with”; that he had much trouble with others. These witnesses corroborated much of appellee’s testimony.

They testified appellant stated to others on several occasions that the children of the marriage were not his children and accused appellee of infidelity and wrongdoing, and had their home under surveillance at times. On the occasion of their final separation appellant, accompanied by his wife, drove his truck from their home over into the community of Ledbetter near where her parents lived. About this occasion she testified :

“ * * * he stopped and told me he didn’t want me any more and he put me out, pushed me out of the truck and closed the door. Well, I wanted to get back in, and he locked it, so I climbed on the back, and he wanted to drive off, and so he came back and pulled me off from the truck bed. Well, I held tight on the truck bed, but he finally pulled me off. Naturally, he could. So while I told him I wanted to go back at that time, because I didn’t have — that is the only home I had, (meaning their homestead) * * * I didn’t have no home in Ledbetter. I told him I didn’t have a home anywhere else * * * He took my purse and threw it real hard away. Naturally, I wanted to take my purse along, so I ran to pick up my purse, and he ran to the truck, and I ran right fast and kept hold of the truck, but the truck was gone before I could get on the truck again, and so he left me. He never came back. He never informed me nothing, I never heard of him any more, he just left me on the highway close to Ledbetter.”

The trial court was justified in decreeing her a divorce. Lindsey v. Lindsey, Tex.Civ.App., 228 S.W.2d 878; Mitcham v. Mitcham, Tex.Civ.App., 202 S.W.2d 947.

Appellant’s second point asserts there were no pleadings authorizing the court to set aside the homestead to appellee for life; and the third point asserts that the trial court abused its discretion in doing so. Appellee alleged that the premises were her separate estate and therefore the title thereto should be set aside to her. Appellant alleged that the premises constituted community property of the parties and should be “equally, fairly and equitably divided between the parties.” The facts show that after their marriage appellant requested her to put part of the land in his name. This was done by conveying the property to a third party and the third party conveying it back to appellant and appellee. By use of community funds an old house was rebuilt on the premises and some other expenditures thereon made. Since appellant asserts this property was community property and appellee makes no complaint of the judgment that it is, we accept it as such. The pleadings of the parties were sufficient to support the action of the trial court in setting aside the premises to appellee for her lifetime. Bagby v. Bagby, Tex.Civ.App., 186 S.W.2d 702; Puckett v. Puckett, Tex.Civ.App., 205 S.W.2d 124; Lindsey v. Lindsey, supra. The facts do not show the trial court abused its discretion.

The judgment is affirmed.