author: WERLEIN, Justice.

text:
    CITY OF HOUSTON, Appellant, v. Samuel H. MAGNESS, d/b/a Houston Poultry & Egg Company, Appellee.
    No. 14050.
    Court of Civil Appeals of Texas. Houston.
    Jan. 31, 1963.
    Rehearing Denied Feb. 21, 1963.
    R. H. Burks, City Atty., Homer T. Boul-din, Senior Asst. City Atty., Houston, for appellant.
    Neal & Powell, Geo. D. Neal, Houston, for appellee.
   WERLEIN, Justice.

Appellant, City of Houston, brought this suit on May 27, 1959, alleging that during the months of April, May, June, July, August and September, 1958, appellee became indebted to appellant for meat processing fees charged by the City of Houston, Texas, pursuant to Section 27-9, Code of Ordinances, City of Houston, Texas, in the amount of $2,962.83, and that “although demand has been made therefor, Defendant has failed and refuses to pay said balance of $2,962.83 in meat processing fees, and the same is due and unpaid; that such account duly certified, is attached hereto and made a part hereof.” Attached to such petition are certified copies of statements for processing fees for said months. Such account does not show what the processing fee was for, but merely the number of pounds processed at ½ of one cent per pound, and the amount due for each month’s processing.

On January 13, 1961, appellant filed its first amended original petition alleging:

“That during the months of April, May, June, July, August and September, 1958, Defendant became indebted to Plaintiff for poultry inspection fees charged by the City of Houston, Texas, pursuant to Section 31-2, Code of Ordinances (adopted March 12, 1958), City of Houston, Texas, in the amount of Two Thousand Nine Hundred Sixty-two and 8?ioo ($2,962.83) Dollars. 1
“That although demand has been made therefor, Defendant has failed and refuses to pay said balance of $2,-962.83 in poultry inspection fees, and the same is due and unpaid; that such account duly certified is attached hereto and made a part hereof.”

Attached to such amended petition is the same identical verified account, showing the amount of processing fees. The prayers in the original petition and the first amended original petition are identical. In such prayers appellant prays for judgment in the sum of $2,962.83, for interest and costs, and for reasonable attorney’s fees, and for general relief.

To this amended petition appellee answered by general denial and plea that the alleged cause of action, if any, was barred by the 2 year statute of limitation. The court sustained appellee’s plea and decreed that appellant take nothing. The sole question for determination in this case is whether the court erred in sustaining appellee’s contention that the debt was barred by the 2 year statute of limitation.

At the request of appellant the trial court, before whom the case was tried without a jury, made its findings of fact and conclusions of law. The court found in substance that on February 28, 1958, under and pursuant to the City of Houston Ordinance No. 3370, governing poultry processing, the City issued to appellee a written permit to operate a poultry processing plant in the City of Houston for the year 1958; that in the months of April, May, June, July, August and September, 1958, pursuant to said Ordinance No. 3370, being the same as Chapter 31, City of Houston Code of Ordinances, 1958 edition, plaintiff did inspect the following quantities of poultry, totalling 2,074,724 pounds under Section 3 of said Ordinances, being the same as Section 31-2 of said Code; that fees in the total amount of $2,962.83 became due for said months, and no part of said indebtedness had been paid; that appellee had never at any time operated or engaged in a meat or meat processing business of any kind; had never operated a meat or meat processing plant of any kind or type within the City of Houston; had never applied for nor had issued to him a permit under Section 27-9 of the City of. Houston Code of Ordinances or a processor permit as used in Section 27-11 thereof; that he had never received from the City of Houston any processing or inspection services concerning the killing, preparation and processing of meat, meat foods or meat products; that he had never operated nor engaged in a business or plant included or covered by Chapter 27, City of Houston Code of Ordinances; that Section 27-9, Code of Ordinances, provides for an inspection fee of 10 cents per 100 pounds of processed meat; that Chapter 27 of said Code pertains to “meat” and consists of 124 printed pages of the Code of Ordinances of said City, and meat consists of food products derived from cattle, sheep, swine and goats; that Section 31-2 of the Code of Ordinances, pleaded in appellant’s first amended original petition, provides that poultry processors shall pay an inspection fee of ⅝ of one cent per pound of poultry offered for inspection; and Chapter 31 of said Code, entitled “Poultry Production and Sale,” consists of 71 printed pages of said Code; that the cause of action for poultry inspection fees alleged by plaintiff in its first amended original petition is a separate and distinct transaction from the cause of action for meat processing fees alleged by appellant in its original petition with account attached.

The court concluded that the cause of action alleged by appellant in its first amended original petition with account attached was a new, distinct and different transaction and occurrence than that alleged in the original petition, and was barred by the 2 year statute of limitation.

The entire amount of the debt was due on October 16, 1958, more than two years prior to the filing of said amended petition. Dr. Green, the Director of the Meat & Poultry Inspection Division of the City of Houston, testified that a meat processing plant under Chapter 27 and a poultry processing plant under Chapter 31 of the Ordinances are two entirely separate and different operations; that in an effort to prove up a meat processing fee you would use an entirely different set of facts than you would in proving up a poultry processing fee; and that a poultry inspection fee has nothing whatever to do with a meat processing fee.

In determining whether appellant’s claim is barred by limitation, it is necessary, under Art. 5539b, Texas Revised Civil Statutes, to determine whether or not the claim set up in appellant’s amended petition is wholly based upon and grows out of a new, distinct or different transaction and occurrence. The original petition hereinabove set out is very meager. In it appellant merely seeks to recover for meat processing fees under Chapter 27 of the Code of Ordinances of the City of Houston. The amended petition is equally meager. In it appellant merely seeks to recover for poultry inspection fees under Chapter 31 of the Code of Ordinances. In both the original and amended petitions the parties are the same; the debt sued for is exactly the same amount; the dates or months during which the indebtedness was incurred are the same; the bills or statements attached to each petition are identical; the number of pounds processed as shown in such bills is the same. The bills attached to the petitions merely show “processing fees.” It is obvious that such phrase is merely an abbreviation of “inspection fees for processing,” since manifestly the City does not do the processing under either ordinance. It will be noted also that the bills are all addressed to Houston Poultry & Egg Company, and that the charge for the City’s operations is ½ of one cent per pound. This charge is for inspection of poultry processing under the Poultry Ordinance and is not the charge made for meat processing under the “Meat Ordinance.”

We think that in all of the foregoing particulars the causes of action set up in both petitions may be identified as the same except for the fact that in the original petition the meat ordinance and meat processing are alleged, whereas in the amended petition the poultry ordinance and poultry inspections are alleged. In Hallaway v. Thompson, 1950, 148 Tex. 471, 226 S.W.2d 816, our Supreme Court stated:

“The obvious purpose of Article 5539b was to limit the application of the statutes of limitations to amended pleadings. It was evidently intended to modify the previously existing rule for determining whether limitation should apply to an amended pleading, as first announced in Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S. W. 707. See the comment on a proposed similar statute in the Second Annual Report of the Texas Civil Judicial Council (1930) pp. 17-21, and comments on Article 5539b in 9 Tex.L. Rev. 539; 14 Tex.L.Rev. 400; 15 Tex. L.Rev. 137, 269; 18 Tex.L.Rev. 234. Article 5539b expressly provides that an amendment to a pleading shall not be subject to a plea of limitation where the amendment is not wholly based on or grows out of a new, distinct or different transaction or occurrence.”

In the Hallaway case the Supreme Court held, in reversing the District Court and the Court of Civil Appeals, that under Article 5539b, V.A.T.S., the rule could be fairly applied where the amendment named the same defendant but changed the capacity in which he was sued.

In the instant case the only amendment required to harmonize the allegata and probata was to plead by number Chapter 31 of the Code of the Ordinances of the City of Houston in lieu of Chapter 27 of such Code, and to allege that the inspections were of poultry processing instead of meat processing. There was actually only one transaction or occurrence and only one debt since the undisputed evidence shows that appellee at no time engaged in the meat processing business, has no permit to operate under Chapter 27 of the Code of Ordinances, and had never received any processing or inspection services in connection with the processing of meat.

There can be no question that appellee under such circumstances had knowledge that the charge was made for inspections of poultry processing. He was aware of the claim against him, and the debt he owed. Appellant’s first amended original petition, when read together with the bills that were attached thereto, reiterated most of the allegations of the original petition with the bills attached to it. Gray v. Laketon Wheat Growers, Tex.Civ.App., 240 S.W.2d 353; United States v. Johnson, 1961, 5 Cir., 288 F.2d 40.

In First State Bank & Trust Co. of Rio Grande City v. Ramirez, Tex.Com.App., 1939, 133 Tex. 178, 126 S.W.2d 16, 18, the court stated:

“In other words, it is our opinion that where the same debt is sued on in the original petition and subsequent amendments, the mere fact that there is some change in the facts or grounds of liability does not make a distinct or different transaction or occurrence except as to new parties brought in after limitation had run, even though there are several renewal notes, as in this case.”

The El Paso Court of Civil Appeals, in Nacim v. Ibarra, writ ref., n. r. e., 310 S. W.2d 388, in speaking of Article 5539b, held:

“This statute was passed in 1931, and it is very clear that it broadened, and was intended to broaden, the rule then in effect, and to prevent the running of limitations after the original suit was filed, as to all amended pleadings growing, in whole or in part, out of the same ‘transaction and occurrence.’ ”

In 54 C.J.S. Limitations of Actions § 280, p. 328, it is stated:

“It has been asserted that courts should be liberal in allowing amendments to save a case from the statute of limitations when the cause of action is not totally changed, and that especially should a liberal rule be applied in respect of amendments when a defendant has had notice from the beginning that plaintiff is setting up and trying to enforce a claim against him because of specified conduct, since the reasons for the statute of limitations do not exist in such case.”

After much deliberation, we have concluded that the amendment is not wholly based upon and does not grow out of a new, distinct or different .transaction and occurrence. Since the case has not been fully developed, the judgment of the trial court will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    AMERICAN COOPERAGE COMPANY, Inc., et al., Appellants, v. Jack CLEMONS, Appellee.
    No. 16399.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 25, 1963.
    Rehearing Denied Feb. 22, 1963.

      Rawlings, Sayers, Scurlock & Eidson and Lloyd Scurlock, Fort Worth, for appellants American Cooperage Co., Inc., and Curtis Foreman, Jr.
    S. G. Johndroe, Jr., City Atty., and Jerome H. Parker, Jr., Asst. City Atty., Fort Worth, for appellant City of Fort Worth.
    Spurlock, Schattman & Cave and Tom Cave, Fort Worth, for appellee.
   MASSEY, Chief Justice.

Plaintiff Jack Clemons, employed by the City of Fort Worth as a “lineman”, was injured while performing the duties of his employment as the result of collision against the cable supporting the pole on which he was working by a truck of the American Cooperage Company, Incorporated, being driven by its employee Curtis Foreman, Jr.

During plaintiff’s period of total disability the City of Fort Worth paid his salary and also paid all or part of his medical and hospital expenses. There was no contract entered into between the city and plaintiff in connection therewith whereby there was any provision that the amount of said payments should be credited against plaintiff’s rights, if any, to recover damages on account of his injuries. The total amount so paid was $3,313.24.

Plaintiff brought suit against American Cooperage Company and its driver. In turn they joined the City of Fort Worth as a co-defendant from which they sought contribution as to any damages which might be assessed against them.

Based upon a jury verdict, judgment was rendered against American Cooperage Company and its driver, and also against the City of Fort Worth. Although the jury found plaintiff’s damages as $12,450.00, the trial court credited the sum of $3,313.24 against him and entered judgment in his behalf and against the Cooperage Company and its driver in the sum of $9,136.76. Cooperage Company and its driver were granted judgment in contribution against City of Fort Worth. From this judgment American Cooperage, its driver Curtis Foreman, Jr., and the City of Fort Worth perfected appeals.

Judgment as against American Cooperage Company and Curtis Foreman, Jr., is reformed in that plaintiff is awarded the damages found by the verdict, and, as so reformed, is affirmed. Judgment against the City of Fort Worth is reversed and judgment rendered that no contribution is recoverable from it.

The Cooperage Company’s truck collided with the cable supporting the pole on which plaintiff was working at approximately 3:30 P.M. on November 28, 1958, in Fort Worth, Texas, at a point near the intersection of Northwest 21st Street and Jacksboro Highway. Jacksboro Highway, at the point of the accident, runs in generally a north-south direction. Northwest 21st Street begins at this highway and runs toward the east in a fairly steep “rise”, thence into a curve toward the north. The streets come together in what is known as a “T” intersection. The eastbound traffic lane of Northwest 21st Street is wide enough for two vehicles side-by-side. The westbound traffic lane is of like width. There is a dividing island of four or five feet between these traffic lanes. In this dividing island, at the eastern edge of Jacksboro Highway, is a pole which supports traffic signal-control lights. Approximately 5 feet of the pole is in the ground, and approximately 30 feet extends above ground. Near the top are lines which come from the east to supply power to operate the signal-controls, and a little below these lines a cable is connected which runs from the pole across Jacksboro Highway to another similar pole. On this cable the set of signal-control traffic lights is suspended over Jacksboro Highway.

Sometime shortly before the time of plaintiff’s injury there had been a previous accident at the intersection, pursuant to which the aforedescribed pole had been struck and caused to bend toward the north, more or less across the eastbound traffic lane of Northwest 21st Street. The “hot” wires which supplied power for the signal-control lights were damaged. We speak of the wires as “hot” since they continued to supply power to the signal-control lights and these lights continued to be operated up until the time of plaintiff’s injury. Upon receiving notice of the condition following the prior accident, the City of Fort Worth caused instructions to be issued in its Signal and Light Division for a crew of men to go to the scene and straighten the pole and repair the damaged wires. The crew consisted of plaintiff, as “lineman”, Daryl Lanier, as “crew foreman”, and James Mahana, as “helper”. No member of the crew had authority sufficient to constitute him a vice-principal for the City of Fort Worth, and it is established as a matter of law that each member, in his relationship to the others, was his “fellow servant”. The evidence indicated that each of the men was experienced and each considered the others competent and reliable.

Upon arriving at the scene it was readily apparent that the remedy required necessitated connecting a cable to the pole, with application of tension from some point to the north thereof to draw it back to an upright position, followed by renewed anchorage of the base of the pole and repair of the wires connected at its top. Accordingly, the crew stationed the winch-truck in which they had arrived at a point to the north of the pole, and some 25-30 feet to the north of the aforedescribed westbound traffic lanes. A cable from the winch on the truck was carried across these traffic lanes, and plaintiff mounted the pole and used a rope or line to draw the cable up to what he considered a proper point on the pole for the exertion of tension thereon to restore it to an upright position. Tension was applied through operation of the winch and the pole was pulled into position. There was evidence in the record to the effect that Lanier took precaution to warn and direct traffic at the time the cable was brought to the pole and drawn into position where it was fastened as preliminary action to exerting tension thereon. Plaintiff had observed these precautionary activities. Other evidence in the record disclosed that there were no warning signs or barricades carried to the scene on the truck, and that none were placed in position to warn approaching motorists. Plaintiff knew about the absence of signs or barricades.

After the pole was restored to the vertical position plaintiff reascended it. He took a position at or near its top where he proceeded to repair the “hot” wires previously mentioned. He did not observe and did not know whether any precautions were being taken in his behalf in relation to approaching traffic by Lanier and Mahana after he reascended the pole. As a matter of fact they were taking no precautions. They busied themselves carrying material to reset the pole. The evidence showed that all members of the crew thought that the cable had been fastened at a point high enough on the pole that vehicular traffic would not come in contact with it. In this they were mistaken. The regular maximum height of vehicular traffic permitted by law was 13 feet 6 inches and the height of the bed on the Cooperage Company truck was within this maximum. The cable was only about 11-12 feet above the street, at least on the most northerly of the two westbound traffic lanes, although it was 15-16 feet above ground level where it was connected to the pole. The other end of the cable, at the winch on the truck, was only 4-5 feet above ground level. This resulted in the reduced height of the winch over the most northerly of the westbound traffic lanes.

While the activities of the crew were as aforedescribed, defendant Foreman, driving the truck of the defendant Cooperage Company, approached from the east, on Northwest 21st Street and in the right-hand or north traffic lane. He stopped before entering Jacksboro Highway in obedience to a signal from the traffic light. Foreman had seen neither plaintiff working on the pole, the cable attached to the pole, nor the winch-truck to his right and off the pavement. He did see Lanier and Mahana engaged in some activity at the base of the pole. Upon change of the signal light to the green and “go” signal, he started up the truck to proceed in a westerly direction, preparatory to the negotiation of a left-hand turn. Almost immediately he heard Lanier call out a warning or command to stop. He stopped the truck within a very few feet. However, the front of the truck-bed, two or three feet below the top, came into collision with the cable. The jolt attendant thereto bent the pole suddenly and violently toward the south so that it struck against the side of the bed of the truck. The jolt broke plaintiff free of his anchorage on the pole so that he slid down it and fell into the bed of the truck. All this resulted in his personal injuries.

On the matter of injuries to workmen in streets and on highways, see generally: 5 A.L.R.2d p. 7S7, Annotation, “Liability for injury by vehicle to construction or maintenance worker in street or highway”, p. 796, sec. 17, “Last clear chance; wilful and wanton misconduct”, and Part IV, “Injuries to particular workers or under particular circumstances”, subd. g, “workers on ladders, scaffolds, or poles”, sec. 34, “Injury by motor vehicle or wagon; negligence of driver”.

Texas being one of the jurisdictions in which the doctrine of assumed risk is applicable only where there exists a master-servant relationship (Wood v. Kane Boiler Works, 1951, 150 Tex. 191, 238 S.W.2d 172), the instant case, in respect to the contentions of American Cooperage Company and the driver of its truck, is to be tested under the rules of the doctrine of volenti non fit injuria — voluntary exposure to risk.

We have reached the conclusion that the doctrine of volenti non fit injuria— voluntary exposure to risk — was not in this instance shown to have application as a matter of law to defeat plaintiff’s claim for damages on account of his injuries. Under the verdict, in view of the issues therein contained and the jury’s findings thereon, judgment was rendered in favor of plaintiff and against American Cooperage Company and its driver. By the verdict said defendants were convicted of negligence amounting to a proximate cause of plaintiff’s injuries under findings that the truck driver failed to keep a proper lookout and that such failure was a proximate cause of plaintiff’s injuries. The findings mean that the truck driver should have been so sufficiently observant that he should have seen that the cable holding the pole in position was present and at a height such that his truck would come in contact with it.

By its verdict the jury furthermore found that plaintiff knew or should have known of the risk of injury to himself attendant under the circumstances “in working upon the pole”, but that he did not voluntarily expose himself to the risk of injury “in working upon the pole”. It is undisputed in the evidence that at and immediately prior to the time of plaintiff’s injury neither of his co-employees was doing anything to warn motorists of the presence of the cable holding the pole on which plaintiff was working, but it is not conclusively established in the evidence, — and therefore an issue of fact thereon existed, — that plaintiff was aware of the fact that his co-employees were not warning or directing traffic.

No issue was submitted to the jury inquiring whether plaintiff knew that neither of his co-employees was watching for, warning, or directing traffic, to the end that no vehicle would come in contact with the cable supporting the pole on which he was working. We do not believe that an answer to the question of fact in this regard could be presumed to have been made against plaintiff, and furthermore presumed to be included in the issue posing the question of whether he knew or should have known of the risk of injury to himself attendant under the circumstances “in working upon the pole”. Nowhere was any issue submitted inquiring whether plaintiff, with full knowledge and appreciation of the danger to himself because of certain conditions known to exist, to-wit: — that the cable was located across a street on which traffic was moving, at a height which he knew might be insufficient to clear the top of a passing truck with its load, and that those persons present and assisting him were taking no precautions in his behalf to avert and prevent such a vehicle from striking against the cable,— voluntarily chose to remain upon the pole supported by the cable in the completion of his work and in an exposure of himself to the risk of injury from vehicular contact with the cable.

In the instant case it was such risk that would be material in considering whether his claim could be defeated on a plea of volenti non fit injuria — voluntary exposure to risk, — and not the usual risk of a lineman working upon a pole known to be insecurely anchored beneath him, etc. If we make any assumption that the issue which was submitted did embrace the elements set forth in the preceding paragraph it becomes apparent that the issue would have been subject to an objection that it constituted a charge upon the weight of the evidence for it necessarily assumed that plaintiff knew that his co-employees were taking no precautions to prevent vehicular traffic colliding with the cable. This was an issue of fact, in view of the evidence, which was not resolved by the jury.

In view of what has been said it should be obvious that we do not consider the answer to the issue as submitted to be one controlling the entry of judgment. Even should we be of a contrary opinion its controlling effect was destroyed by the jury’s answer to the issue with which it was coupled. Coupled with the issue as submitted was an issue inquiring of the jury whether plaintiff voluntarily exposed himself to the risk of injury in working on the pole. In answer to this issue the jury returned its negative answer, i. e., it refused to find that plaintiff had voluntarily exposed himself to the risk of injury. Had a proper controlling issue been submitted and answered against plaintiff to the effect that he chose to remain on the pole with full knowledge and appreciation of the attendant facts hypothecated in our discussion above, it would be our opinion that the evidence in the record is such that the question of whether he “voluntarily” chose to do this would be resolved against him as a matter of law. The same thing could not be said in view of the form of submission. One reasonable explanation of the jury’s finding against voluntary exposure might lie in a belief on their part that plaintiff did not consent that his fellow servants ábandon all precautions in respect to traffic.

The negligence on the part of the truck driver for American Cooperage Company, in his failure to keep a proper lookout, was not shown to have fallen within the scope of the dangers to which plaintiff voluntarily exposed himself. Knowledge of the very hazard which does result, and appreciation of the danger thereof, is essential to the applicability of the volenti doctrine. A case decided subsequent to the decision in McKee, General Contractor v. Patterson, 1954, 153 Tex. 517, 271 S.W.2d 391, upon which the Cooperage Company strongly relies, involved somewhat the same question of the instant case in that the negligence of the defendant existed through the defendant’s failure to keep a proper lookout for the safety of plaintiff. Hobbs v. Grant, 1958, (Tex.Civ.App., Austin), 314 S.W.2d 351, writ ref., n. r. e. The court quoted the rule applicable to such a case from 65 C.J.S. (“Negligence”, Part VIII, “Assumed Risk, Incurred Risk, Etc.”, § 174 “Applicability of Doctrine”, at page 852), as follows: “ ‘The doctrine of assumed risk is inapplicable where the danger and peril of the situation were not the proximate cause of the injuries, as where defendant was guilty of willful and wanton misconduct, or where, apart from the assumed ■risk, defendant or a third person was negligent, and such negligence was the proximate cause of the injury suffered, unless plaintiff participated in such negligent acts or knew or had reason to believe that they were being committed or were about to be committed.’ ”

The same case cites that of Wood v. Kane Boiler Works, 1951, 150 Tex. 191, 238 S.W.2d 172, 174, where, in speaking of the doctrine of voluntary exposure to risk, the court said: “It means that the injured party consented to the act or omission which caused his injury and which, without such consent, would be a legal wrong.” There is no suggestion in the case before us that the plaintiff consented to the failure of the truck driver to keep a proper lookout.

Incident to our discussion is to be found our holding against additional contentions of American Cooperage Company and its driver. Such contentions are that plaintiff, in working upon the pole, was negligent in that he had knowledge of the risk of injury to him flowing therefrom, was negligent in so doing when nothing had been done to warn motorists of the obstruction created by the cable, and was negligent in obstructing the street by failing to attach the cable higher on the pole. As to each item of such negligence it is contended that the overwhelming weight and preponderance of the evidence shows that plaintiff was guilty thereof if it not be proper to hold that such was conclusively shown by the evidence. Said contentions are overruled. Each matter constituted a jury question. Either the charge to the jury failed to raise a proper question or the jury’s findings were against the defendants.

By other answers the jury found that plaintiff was negligent in not asking that signs or barricades be posted to warn approaching motorists, but that such failure was not a proximate cause of his fall. The jury then proceeded to find that plaintiff’s fellow servant Lanier was negligent in failing to post barricades and that such failure was a proximate cause of plaintiff’s fall. It is contended that plaintiff’s negligence in failing to ask for signs or barricades was a proximate cause of his injuries as a matter of law and that there is a conflict in the verdict in view of the jury’s findings that Lanier’s negligence in failing to place the barricades amounted to a proximate cause of plaintiff’s injuries while simultaneously finding that plaintiff’s negligence in failing to ask for the barricades was not a proximate cause of his injuries.

Upon the matter of conflict we overrule the contention made. Test of whether a complainant is entitled to obtain a reversal by reason of what is contended to be a conflict is whether taking the finding alone in the one instance a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant. Little Rock Furniture Mfg. Co. v. Dunn, 1949, 148 Tex. 197, 222 S.W.2d 985. Only in such instances would there be a conflict fatal to the judgment. The case before us is not such for American Cooperage Company and its driver could reap no benefit by the conflict they assert. Neither of the findings, standing alone, would entitle them to a verdict nor deprive plaintiff of the finding against them upon which judgment in his behalf was founded.

Plaintiff’s negligence in failing to ask for signs and barricades was neither the proximate cause of his fall and resultant injuries as a matter of law, nor did the evidence inhibit the jury’s finding that his negligence in this respect was not a proximate cause. In the ordinary case the matter of proximate cause is a question for the jury to determine from all the facts and circumstances before it. The rule is applicable in the present instance.

In the submission made of the case, as applied to the liability of the City of Fort Worth, the defense of assumed risk on the part of the city was no more sufficiently dealt with by the special issues submitted than was the defense of volenti non fit injuria discussed in connection with the points of error of American Cooperage Company and its driver. What we have held relative thereto applies to the contentions of the city. The City of Fort Worth cannot avoid liability under such theory.

The undisputed evidence and answers returned by the jury to issues submitted establish that the City of Fort Worth could not have been held directly liable to plaintiff because it has a complete defense. This defense would be that any negligence on its part which amounted to a proximate cause of plaintiff’s injuries lay in the acts or omissions on the part of plaintiff’s fellow servant. Lanier was the “foreman” on the crew of which plaintiff was the “lineman”. Mahana was the “helper”. We believe that evidence in the record conclusively established that neither of plaintiff’s co-employees could be deemed a vice-principal, and contrarily established that both were his fellow servants. It was the negligence of Lanier which the jury found to have amounted to a proximate cause of plaintiff’s injuries. Being possessed of a complete defense of any suit by plaintiff and not directly liable for the payment of damages to him on account of his injuries, the city could not be compelled indirectly, through the device of contribution, to pay the same damages. The attempt of American Cooperage Company and its driver to impose liability for contribution upon the City of Fort Worth must fail, and the judgment decreeing liability on the part of the city reversed.

In support of our conclusions expressed in the preceding paragraph see: Vernon’s Ann.Tex.Civ.St., Art. 2212, “Contribution between joint tort feasors”; 60 A.L.R.2d 1366, Annotation: “Contribution between negligent tortfeasors at common law”, at page 1386, sec. 9, “Personal defenses (unrelated to status) available to one joint tortfeasor as against injured person as affecting application of views”; Patterson v. Tomlinson, 1938 (Tex.Civ.App., Austin), 118 S.W.2d 645, error refused; City of Houston v. Selph, 1962, (Texas Civ.App., Houston), 356 S.W.2d 850; Ft. Worth & Denver Railway Company v. Threadgill, 1955 (C.C.A. 5th Cir.), 228 F.2d 307; Phillips-Jones Corp. v. Parmley, 1937, 302 U.S. 233, 58 S.Ct. 197, 82 L.Ed. 221.

By cross-assignment the plaintiff complains because the trial court credited the amount of $3,313.24 against the total of the $12,450.00 damages in his behalf found by the jury, and seeks reformation of the judgment entered so as to award him the amount found by the jury. In view of our holdings in connection with the asserted liability on the part of the city, culminating in the decision that it is entitled to a take nothing decree as applied to the suit of American Cooperage Company and its driver for contribution, we believe it proper to treat the case as having become one wherein the $3,313.24 heretofore paid by the City, to or for the benefit of the plaintiff, is to be treated as having been paid by a volunteer. The determination of whether the payor was a volunteer would be determinable as of the time of judgment. Phillips-Jones Corp. v. Parmley, supra.

Where money is paid to one under such voluntary circumstances, and the payee thereafter obtains judgment against a third person for and on account of personal injuries and expenses attendant thereto, he against whom judgment is so obtained is not entitled to any credit on the judgment against him by reason thereof even though the payments made to or for and in behalf of the plaintiff were occasioned by those same injuries and attendant expenses for which the judgment is obtained. R. E. Dumas Milner Chevrolet Company v. Morphis, 1960 (Tex.Civ.App., Fort Worth), 337 S.W.2d 185, writ ref., n. r. e.; Green v. Rudsenske, 1959 (Tex.Civ.App., San Antonio), 320 S.W.2d 228; Morgan v. Woodruff, 1948 (Tex.Civ.App., Galveston), 208 S.W.2d 628; Missouri Pacific Railway Company v. Jarrard, 1886, 65 Tex. 560. The plaintiff is entitled to have his judgment for $12,450.00.

Judgment of plaintiff Jack Clemons against American Cooperage Company, Inc., and Curtis Foreman, Jr., is reformed by an increase of the amount awarded as damages from the sum of $9,136.76 to the sum of $12,450.00, and as so reformed is affirmed. Judgment for contribution in favor of American Cooperage Company, Inc., and Curtis Foreman, Jr., against the City of Fort Worth is reversed and rendered.


author: BARROW, Justice. MURRAY, Chief Justice

text:
    A. T. BAUCUM, Appellant, v. GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, Appellee.
    No. 14004.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 9, 1963.
    Rehearing Denied Feb. 6, 1963.

      .. ■ Carter, Stiernberg, Skaggs & Koppel, Harlingen, for appellant.
    Strickland, Wilkins, Hall & Mills, Mission, for appellee.
   BARROW, Justice.

The sole question presented by this appeal is whether or not appellee, Great American Insurance Company of New York, made a valid tender under the terms of its automobile liability insurance policy .so as to successfully halt the running of interest on the full amount of the judgment rendered against its insured. Motions for summary judgment were filed by both parties and this appeal is from the trial court’s action in granting the motion of appellee. Appellant agrees that the facts are uncon-troverted but urges that a valid tender was not made.

On April 1, 1960, appellant obtained a judgment for $81,636.00 against Jesus Ramirez Hernandez and Jacinto Hernandez. Great American had a liability policy covering the Hernandez brothers to the extent of $25,000.00, which provided in part as follows: “ * * * the company shall: * * * (2) pay all expenses incurred by the company, all costs taxed against the insured in any such suit and all interest accruing after entry of judgment until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the company’s liability thereon.” On May 18, 1960, the Supreme Court, in a case of first impression in this State, determined that this agreement “obligates the insurer to pay interest on the entire judgment until its part of the same has been paid, tendered or deposited in court.” Plasky v. Gulf Insurance Co., 160 Tex. 612, 335 S.W.2d 581. The Supreme Court expressly provided that the insurer could pay its limits and avoid liability for additional interest without prejudice to an appeal by the insured.

On June 13, 1960, before Hernandez had determined to appeal, Great American attempted to discharge its policy limits on the judgment and avoid liability for additional interest. Admittedly, it did not “pay” or “deposit in court” the amount owed by it. On this date appellee’s attorneys directed a letter to the District Clerk of Cameron County at Brownsville, Texas, and enclosed an instrument which they called a “draft” in the amount of $26,008.17, together with a copy of a partial-release. Copies of this letter were sent to appellant who lived in McAllen, and his attorneys who officed in Harlingen, Texas. The sum of $1,008.17 was the correct amount of interest on the entire judgment from April 1, 1960, through June 15, 1960. The original of the partial release was sent to appellant’s attorneys, and the clerk was instructed to deliver the “draft” to appellant in exchange for the executed partial release. No objection was made by appellant to any part of this procedure. An appeal was unsuccessfully prosecuted on behalf of Hernandez, and when the judgment became final, appellant filed this suit for the policy limits plus interest on the entire judgment from date of judgment. Hernandez v. Baucum, Tex.Civ.App., 338 S.W.2d 481.

It is important to determine the legal character of the instrument furnished the district clerk. It was labelled a “draft”; however, both parties assert that it does not have the legal characteristics of a draft and we agree. This instrument provides that it is payable through the First National Bank in Dallas to the order of A. T. Baucum and his named attorneys. The maker of the instrument is appellee, and it contains other identifying information for the benefit of appellee’s records. The only reference to the rights of the parties is that it is stated to be in partial payment of the identified judgment. There was no reservation in said instrument whereby appellee was required to approve payment of same. In our opinion, this instrument meets all the requirements of a “check.” Art. 5947, Sec. 185, Vernon’s Tex.Civ.Stats.; 7 Am. Jur., Bills & Notes, § 7. It is undisputed that at all times appellee had sufficient funds on deposit at this bank to discharge this check when presented.

The rule is settled that a tender of payment by check is not a valid tender when objections are made to this medium of payment. Muldrow v. Texas Frozen Foods, Inc., 157 Tex. 39, 299 S.W.2d 275; Littlejohn v. Johnson, Tex.Civ.App., 332 S.W.2d 439, no writ history. It is further settled that when a tender is refused for other reasons, one may not later complain of the medium of tender. Gulf Pipe Line Co. v. Nearen, 135 Tex. 50, 138 S.W.2d 1065; Cockrum v. Underwood, Tex.Civ.App., 301 S.W.2d 953, no writ history; Cornelius v. Cook, Tex.Civ.App., 213 S.W.2d 767, no writ history. Appellant did not make any objection, and we believe that the correct rule would be to treat this silence as a waiver of objection to the medium of tender. This rule is particularly applicable here in view of the uncontroverted affidavits of the established custom of insurance companies and attorneys in this locality, of discharging judgments in this manner. Littlejohn v. Johnson, supra; 26 Ruling Case Law, §§ 17 and 18, 86 C.J.S. Tender §§ 23, 36.

The partial release furnished must be examined to determine if appellant was required to compromise or surrender a legal right. A tender accompanied with conditions which the debtor has no right to impose is without effect. Collingsworth v. King, 155 Tex. 93, 283 S.W.2d 30; Wiley v. Scott, Tex.Civ.App., 229 S.W.2d 650, no writ history. However, it is proper to require execution of a receipt or release preserving the respective rights of the parties. Engelbach v. Simpson, 12 Tex.Civ.App. 188, 33 S.W. 596, no writ history. In Plasky v. Gulf Ins. Co., supra, the Supreme Court indicated the unusual problem presented by unqualified tender or payment of part of a judgment without prejudicing the right of appeal on behalf of the insured. It is to the interest of all parties in such a situation to clearly set forth their respective rights. The partial release furnished appellant would serve this purpose. It released the judgment only to the extent of $25,000.00, and interest on the entire judgment to June 15, 1960; it reserved the right of appellant to collect the excess from Hernandez; it preserved the right of appeal on behalf of Hernandez; and appellant was entitled to keep this amount of $26,018.17, regardless of the outcome of an appeal by Hernandez. Appellee represented in said release that its policy limits were $25,000. Appellant had the right to satisfy himself on this material representation, if he desired; however, he made no objection and now does not dispute this policy limit. We hold that the tender was not invalidated by the requirement of execution of the partial release.

We overrule appellant’s objection now made to the delivery of the instrument to the district clerk. By this action appel-lee relinquished all control over the check and placed it at the easy disposition of appellant. Johnson Mfg. Co. v. Edwards, Tex.Civ.App., 344 S.W.2d 506, ref. n. r. e.; Richey v. Stanley, Tex.Civ.App., 38 S.W.2d 1104, no writ history. Appellant and his attorneys were immediately notified of the ready availability of the check. Appellant made no complaint that the tender was not made at the proper place and therefore waived his objection. 86 C.J.S. Tender § 20.

At the time of this tender, appellee could not pay the court costs, as the insured had not decided upon an appeal and therefore the costs had not been determined or adjudicated. The partial release recited this fact and provided that the partial release was conditioned upon appellee’s promptly paying same upon final adjudication, and expressly provided that it did not discharge appellee’s obligation to pay the court costs. The tender was not defeated by the failure, under these circumstances, to pay the court costs before the judgment became final.

The judgment is affirmed.

MURRAY, Chief Justice

(dissenting).

I do not concur in the opinion of the majority and here state the reasons for my dissent.

In the case of Plasky v. Gulf Insurance Co., 160 Tex. 612, 335 S.W.2d 581, the Supreme Court, speaking through Justice Walker, held that the insurance company, in exactly the same position as is the appel-lee here, was liable for interest upon the entire amount of the judgment unless it pays, tenders or deposits in court the amount of its liability on the judgment.

The majority here correctly stated that nothing was paid to appellant or into court, so the only question is, Did appellee make a valid tender to appellant or his attorneys of all sums due by it as liability insurance carrier of the Hernandez brothers?

The word “tender” is usually held to mean that the thing offered must be actually produced and placed in such position that control over it is relinquished by tenderer so that tenderee may reach out and lay hold of it, and it must also be made at the place agreed upon. Kerr v. United States, 71 App.D.C. 222, 108 F.2d 585. In Richey v. Stanley, Tex.Civ.App., 38 S.W.2d 1104, no writ history, is found the following quotation from 38 Cyc. 143:

“In order to make a valid tender of either money or chattels, the thing to be tendered must be actually produced and offered to the party entitled thereto, a mere offer to pay being insufficient; and the tenderer must place the money or property in such a position that his control over it is relinquished for a sufficient time to enable the tenderee, if he so desires, to' reduce it to possession by merely reaching out and laying hold of the money or thing; and a person is not bound to say whether or not he will accept the money or thing until it is produced.”

See also, 41 Words and Phrases “Tender”. Tender is actual proffer of money as distinguished from a mere proposal or a proposition to proffer it. Caplan v. Shaw, 126 W.Va. 676, 30 S.E.2d 132. A tender imports not only readiness and ability to perform, but actual production of the thing to be delivered. Mark v. Rizzo, 6 Misc.2d 2, 162 N.Y.S.2d 633. A “tender” in the form of checks does not constitute legal “tender.” Sadler v. May Bros., La.App., 185 So. 81. To constitute valid and legal “tender” of money, the tenderer must relinquish possession thereof for sufficient time and under such circumstances as to enable the person to whom it is tendered to acquire possession thereof without special effort on his part. Universal Credit Co. v. Cole, Tex.Civ.App., 146 S.W.2d 222. A “tender” is an offer to pay a debt or discharge a duty, and in case of a debt, the offer to pay involves, generally, actual production of the money and the placing of it in- the power of the person entitled to receive it. Mayron’s Bake Shop, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 176 A.2d 574. At common law, with respect to the payment of money or portable articles, where the time but no place of payment is specified, and no place of payment is fixed by law, the rule is that the tenderer must seek the tenderee and make a tender to him wherever he can be found, and a tender anywhere to the person of the tenderee is good. 86 C.J.S. Tender § 18, p. 567.

With these rules in mind, there can be no doubt that the procedure indulged in by appellee herein on or about June 13, 1960, did not constitute a valid tender in any sense of the word.

The majority opinion holds that appellant and his attorneys, by their silence, waived their right to thereafter complain that there was not a valid tender. In support of this holding the opinion cites Muldrow v. Texas Frozen Foods, Inc., 157 Tex. 39, 299 S.W.2d 275, and Littlejohn v. Johnson, Tex.Civ.App., 332 S.W.2d 439. These cases do not support the holding of the majority. The Muldrow case goes no further than to hold that a tax collector has no authority to accept a personal check in payment of taxes, and that a taxpayer always pays taxes by check at his own risk. It does hold that where a tax collector accepts a check in payment of taxes and the check is promptly paid the payment relates back to the date the check was received by the tax collector, and no penalties are due the State for not timely paying the taxes. Here no check was accepted by appellant, so the effect of acceptance of a personal check is not involved.

The Littlejohn case goes no further than to hold that where a check is refused for reasons other than medium of tender, the tenderee cannot later complain of the medium of the tender. This rule is well recognized, and the majority cite a number of • cases so holding, but here there was no check accepted and there was no refusal by the tenderee for any reason 'whatsoever. .It is only contended that when appellant received the letter written to him by appel-lee’s attorneys he did not answer but merely remained silent. I know of no decision in Texas holding that mere silence by a tenderee will thereafter preclude him from pointing out the many ways in which the offer was not a proper “tender,” and in my opinion such a holding would be a poor rule of law. Especially do I think this is so where the alleged tender is nothing more than a letter written by the tenderer to the tenderee.

Appellant contends that the so-called draft sent to Mrs. Lula George at Brownsville, Texas was neither a draft nor a check, but a mere inter-oifice memorandum. I agree with this contention. The memorandum was not an unequivocal order to any bank to pay to anyone any sum of money. The memorandum stated it was payable through the First National Bank in Dallas, but not by such Bank. The reading of the memorandum will bear out the fact that it really is meaningless, and would probably be understood only by the officers of appel-lee.

Appellee undertook to show that there exists a general custom among insurance companies to settle suits and pay off judgments by memorandums of this nature. Ordinarily, the burden of proof would be upon the party relying upon such a custom to establish it by a preponderance of the evidence, or, in other words, a question of fact not to be decided in a summary judgment proceeding. However, if this general custom was properly established by affidavit it could not control on the question of tender, in the light of all the peculiar facts in this case. Appellee, Great American Insurance Co. was not a party to the $81,-636.00 judgment. It was unknown and unheard of in the case by appellant and his attorneys. They were not even shown a copy of the liability insurance policy involved. They were not shown a copy of the memorandum sent to Mrs. George. Apparently, the only way appellant could see it, was to travel 56 miles to Brownsville. Even if he made this trip, Mrs. George, as the agent of appellee, had no instructions to show it to him. Her only instruction was to deliver it to him after he had executed and delivered to her the receipt which appellee was demanding. Furthermore, ap-pellee was demanding a release it was not entitled to as a prerequisite to the delivery of the memorandum.

I agree with the statement contained in appellant’s brief, reading as follows:

“The release which was demanded by the insurance company as a condition precedent to receiving the instrument which appellee calls a draft, contained various recitations which were either entirely outside the knowledge of appellant, or were untrue. Among these recitations are the following:
“(1) That the Great American Insurance Company was obligated to pay $25,000 under its policy of insurance, (neither the appellant nor his counsel had any knowledge relating to such policy and had never seen the same);
“(2) That the Great American Insurance Company had deposited $26,-088.17 with the Clerk of the Court ‘by draft,’ (no sum of money had been deposited with the District Clerk, and the instrument in question, as previously shown, was not a draft) ;
“(3) Baucum, by signing such release, would adknowledge receipt ‘of the sum of $26,008.17 to me cash in hand paid by the Great American Insurance Company of New York, the receipt whereof is hereby acknowledged/ (when in fact the appellant would have had to execute and deliver the release without having received anything in cash, and upon having executed the release, would have received only the instrument which appellee calls a draft).”

It is not shown even by affidavit, that under all the facts in this case there existed a general custom requiring appellant to execute this release before he could receive the memorandum which, in my opinion, was not a check, a draft, or any negotiable instrument known to the law.

I would reverse the judgment and remand the cause.


author: DAVIS, Justice.

text:
    PALACIOS TOWNSITE COMPANY, Appellant, v. Pete GRAFF et ux., Appellees.
    No. 7463.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 22, 1963.
    Rehearing Denied Feb. 19, 1963.

      Harris, Salyer & Taylor, A1 Taylor, Bay City, for appellant.
    Joe Entzminger, Bay City, for appellees.
   DAVIS, Justice.

This is a suit for title and possession of 57.524 acres of land. It was stipulated that a patent on the land had been issued by the State of Texas, had been recorded in Matagorda County, and record title thereto was in Palacios Townsite Company.

Trial was before a jury. Only one special issue was submitted as to whether or not the appellees, by themselves, or through a tenant or tenants, had and held peaceable and adverse possession of the tract of land in controversy, cultivating, using and enjoying the same for a period of ten consecutive years prior to April 12, 1961. The jury answered in favor of the appellees. Judgment was entered accordingly, and the appellant has perfected its appeal and brings forward five points of error.

By its first, second and third points of error appellant takes the position that: the court erred in failing to grant their motion for instructed verdict because the testimony of Pete Graff clearly demonstrated that his possession was in subordination to true ownership; the court erred in submitting to the jury Special Issue No. 1 because testimony of Pete Graff clearly demonstrated that his possession was not adverse to the claim of the true owners; and, the court erred in overruling appellants’ motion for judgment notwithstanding the verdict because of the foregoing alleged testimony. According to the evidence, the appellees had the land in question surveyed and completed a fence around the same about May of 1940. Since that time they have claimed the land against the appellant and against the world. .Such is the testimony of both Mr. and Mrs. Graff. Their testimony is corroborated by several disinterested witnesses. There was no limitation upon the testimony except by cross examination. These points are based upon the following testimony elicited from Mr. Graff by the appellant:

“Q. If they had come out, Mr. Graff, and told you it was their land, would you have gotten off?
“A. I don’t know about that, whether I would or not.”

Appellant based its claim upon the holding of the Commission of Appeals in Thompson v. Moor, Tex.Civ.App., 14 S.W.2d 803. The tract of land involved in that case was not entirely surrounded by lands owned, claimed or fenced by Moor. Moor testified as follows: “I have been claiming it ever since I have been down there against everybody, until such time as they might show me they had rights or something there.” It seems that was on direct examination, without any strings attached. The Commission of Appeals later discussed the case of Thompson v. Moor in Stewart v. Luhning et ux., 134 Tex. 23, 131 S.W.2d 824; opinion approved by the Supreme Court. In the Stewart case the court said:

“Judge Nichols accepts as true the testimony of Moor in its entirety, but concludes that as qualified and' summarized by the excerpt therefrom quoted above, and considered in the light of its source, it disclosed ‘possession in subordination to true ownership.’ ”

The evidence is sufficient to support the jury’s finding. Stewart et al. v. Luhning et ux., supra; Crandell v. Garza, Tex.Civ.App., 265 S.W.2d 846, W.R., N.R.E.; Nagel v. Kiibler, Tex.Civ.App., 212 S.W.2d 1009, W.R., N.R.E. The points are overruled.

The 4th and 5th points of error are without any merit and are overruled.

The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Virgilio H. GUERRA et al., Appellants, v. Mario E. RAMIREZ et al., Appellees.
    No. 14116.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 30, 1963.
    Rehearing Denied Feb. 14, 1963.

      Hill, King & McKeithan, Mission, Arnulfo Guerra, Roma, for appellants.

      Glenn E. Ramey, Rio Grande City, Stafford, Atlas, Spilman & Gurwitz, Morris Atlas, Gary Gurwitz, McAllen, for appellees.
   PER CURIAM.

This is the second appeal of an election •contest growing out of a school trustee election held by Roma Independent School District of Starr County on April 1, 1961. Mario E. Ramirez, Cesar Salinas, Mrs. Maxine C. Guerra and R. T. Gonzalez, known as the new-party candidates, properly brought this suit to contest the certification by the election officials of the election of the four contestees, Virgilio H. Guerra, Lucio Gonzalez, Alonzo Alvarez and Eras-mo Z. Perez, known as the old-party candidates. The first trial resulted in a judgment for all four contestants, but the judgment was reversed and the cause remanded by this Court. Guerra v. Ramirez, Tex. Civ.App., 351 S.W.2d 272. All contestants again prevailed upon the second trial.

The preliminary background is set forth in our first opinion, and it is seen that this contest involves the action of the election judge in rejecting over 200 absentee ballots. The parties stipulated as to the beginning total for each candidate, which was the total as certified by the election officials. They further stipulated that the trial court could open the ballot boxes and count all ballots which were not contested, except twenty-three ballots which did not contain signed stubs, and sixteen ballots which were rejected as “mutilated” ballots. As to these latter ballots, the trial court would examine them to determine if the voter’s intent could be ascertained. As to the other rejected ballots, the burden of proof was upon the contestants to show by clear and satisfactory proof that the voter whose ballot was allegedly improperly rejected was a legally qualified voter in every respect. Guerra v. Ramirez, supra. The contestants undertook to meet this burden by producing approximately 85 witnesses who testified concerning 118 persons whose ballots were allegedly improperly rejected.

The beginning count of the trial court after the stipulations, count of unchallenged ballots and rejection of ballots with stubs improperly signed, was'as follows:

Contestees
Virgilio H. Guerra 908 votes
Lucio Gonzalez 891 “
Erasmo Z. Perez 869
Alonzo Alvarez 864
Contestants
Mario E. Ramirez 849 votes
Cesar Salinas 849 “
Mrs. Maxine C. Guerra 832
R. T. Gonzalez 826 “

The trial court, after hearing the evidence, counted all of the “mutilated” ballots, restored three ballots improperly taken from each of contestees, and then counted as valid 107 of the rejected absentee ballots. The trial court arrived at a final result as follows:

Contestees
Virgilio H. Guerra 914 votes
Lucio Gonzalez 896 “
Erasmo Z. Perez 874
Alonzo Alvarez 869 “
Contestants
Cesar Salinas 970 votes
Mario E. Ramirez 968 “
Mrs. Maxine C. Guerra 952
R. T. Gonzalez 946 “

The candidates did not run for places and therefore the four candidates who received the highest number of votes would win.

Contestees have duly perfected their appeal from the judgment declaring all four contestants elected in accordance with the above totals. They first urge that the trial court erred in excluding evidence in support of their allegations that the entire absentee voting procedure was so irregular and fraudulent that all ballots should be thrown out. They assert that contestants, through members of their political faction who held public office, secured absentee votes through threats, intimidation and other unlawful means. The trial court refused to hear this evidence, apparently under the impression that the stipulations under which the case was tried took these issues out of the case. We must overrule this point because contestees have not properly perfected a bill of exception by showing the testimony sought to be admitted. In order to show reversible error, the bill of exception must show the testimony the con-testees would have offered. Rules 434 and 372, T.R.C.P.; Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155; Wheat v. Citizens National Bank, Tex.Civ.App., 310 S.W.2d 735, writ ref., n. r. e.

Contestees also assert that all absentee ballots should be discarded because the county clerk received ballots after the time permitted by law. Subd. 7 of Art. 5.05, Texas Election Code, controls this election and provides that the county clerk will not receive absentee ballots after 8 a. m. of the second day prior to such election. On the first trial, the county clerk testified that he received ballots up until 1 p. m. on election day, and delivered them to the presiding election judge as valid ballots. This testimony, even though attempted to be explained at the second trial, casts a cloud on all of the absentee votes and placed the burden on contestants to show that such ballots were received in the office of the county clerk on or before 8 a. m. on the second day before the election. Guerra v. Ramirez, supra. This burden was met by the trial court’s examination of the postmark on the carrier envelope of each ballot and rejection of those which were not postmarked in time to arrive as required by law for valid ballots. Those which were not timely postmarked were not counted by the trial court and are not included in the 107 ballots in question.

Contestants did not introduce any evidence that any of the voters of the 107 ballots rejected by the election judge had paid a poll tax. There was evidence that 23 of those persons were over-age, or just twenty-one years of age, and that they were exempt from payment of poll tax. Con-testees assert that as to the remaining 84 persons, the contestants failed in their burden of showing that the rejected ballots were cast by legally qualified voters in every respect. Contestants introduced in evidence a properly authenticated poll list prepared by the county tax collector under Art. 5.22 of the Texas Election Code, whereby the tax collector is required to prepare and furnish to the election board a certified list of the citizens in each precinct who have paid their poll tax. This was prima facie evidence that the persons named therein had paid their poll tax and, in the complete absence of evidence to the contrary, established this qualification of the persons named thereon. McCrary on Elections, § 466; Vol. 29 C.J.S. Elections §§ 47 and 276. See also, Major v. Loy, Tex.Civ.App., 155 S.W.2d 617, no writ history.

Contestants concede that the ballots of Trinidad S. Montes and Eduardo Garcia, Jr., were erroneously counted by the trial court, as neither of their names is on the poll list and the evidence does not show that they are exempt from payment of poll tax. They each cast a vote for each of contestants, and therefore we deduct two votes from each contestant’s total.

Contestants produced a number of witnesses whose ballots had been rejected and who testified to. their personal qualifications to vote. The qualifications of the remainder of the rejected voters were sought to be established by relatives and acquaintances of the voters. This type of evidence is proper if the witness is qualified to give the necessary information. Solis v. Martinez, supra. The voters who testified to their personal qualifications also were able to testify that they had voted absentee in this election, either at the courthouse or by mail. Contestees assert that as to 54 persons there is no evidence that the person about whom the testimony as to qualifications was given was the same person who voted. Contestants contend that this evidence is supplied by the evidence that a ballot was cast by a person of the same or similar name. Some of these ballots were cast at the office of the county clerk and the remainder by mail. In either event there is no testimony to show that the rejected ballot was cast by the same person whose qualifications were described. In Solis v. Martinez, Tex.Civ.App., 264 S.W.2d 956, writ dismissed, this Court passed on a related question. There the election officers had permitted the challenged voter to cast a ballot and contestants introduced evidence to show that persons of the same or similar names lived outside the district. We there held that the burden of proof in an election contest rests upon the contestant. To destroy a vote which the election official permitted, it was there held that the non-resident with the same or similar name must be identified as the one who voted. The fact that the names were similar to that on the ballot did not overcome the presumption that the election officials did their duty. This rule has particular application here, where the poll lists of the Roma School District show a great similarity of names. See also, McCrary on Elections, par. 469; De la Garza v. Gonzalez, Tex.Civ.App., 186 S.W.2d 845, writ ref., want of merit; Reid v. King, Tex.Civ.App., 227 S.W. 960, no writ history. The fact that a number of witnesses are thereby necessary does not relieve the contestant of the heavy burden he must carry to overthrow the presumption that the election officials discharged their duty properly in rej ecting the ballots. State ex rel. Lukovich v. Johnston, 150 Tex. 174, 238 S.W.2d 957.

We, therefore, sustain contestees’ point that as to these 54 persons contestants failed to discharge their burden of showing the ballots cast by legally qualified voters. One of these persons was Eduardo Garcia, Jr., whose vote we have previously rejected. Fifty-two ballots were cast which gave one vote for each contestant; and one ballot was cast with a vote for Virgilio H. Guerra, contestee, and for each of the contestants except Mario E. Ramirez, and these votes must he deducted.

Contestees object to other ballots being counted for the reason that the trial court improperly admitted baptismal certificates to show place of birth. These ballots were of the voters Maria del Refugio Garza and Saturina O. Rosa. They both appeared in person and gave evidence to show their birth in Texas. This evidence was not rebutted in any way by contestees. The baptismal certificates were merely cumulative and it is unnecessary for us to determine whether proof of their authenticity was properly made. Art. 4477, Rule 51a, § B, Vernon’s Ann.Civ.Stats., provides for issuance of delayed birth certificates, and Rule 54a, of the same statute provides that same shall be prima facie evidence in all courts. We overrule con-testees’ points concerning the use of baptismal certificates and delayed birth certificates.

Contestees complain that there are discrepancies in thirty-nine names as shown in contestants’ pleading, the names as shown on an exhibit made by a supervisor of contestants at the time challenges were made before election officials, and the names as they appeared on the poll list. Clearly, any discrepancy as shown by the contestants’ exhibit would he immaterial. We have also eliminated persons whose ballots ~we have heretofore rejected. This leaves sixteen challenged voters. Insofar as voters Cruz Alvarez, Anna G. Flores, Guadalupe V. Garza, Maria del Refugio G. Gar.za, Nasario Lopez, Anselmo Martinez, Leonardo Hernandez, and Ramona M. Vera are concerned, all discrepancies involve the use of an initial or a one-letter spelling variance between the contestants’ pleading .and the ballot. There was no objection to receipt of the evidence on ground of lack ■of proper pleading or surprise. Each of these voters appeared as witnesses to prove his qualifications to vote and there is no variance in identity between the witness, his ballot and the poll list. No reversible error is presented in counting these eight ballots.

There is a discrepancy in the middle initial, as shown on the poll list and as shown on the ballot, of Estanislada R. Escobar, Guadalupe G. Escobar, Paula G. Garza, Azucena G. Orta and Lydia A. Mata. All four of these persons were shown by the evidence to be exempt from payment of poll tax and there was no connection shown with the name on the poll list. On the other hand, they were identified by their personal testimony with the name shown on the ballot. Angelica S. Lopez testified in person concerning her qualifications and that she voted absentee. The trial court found a ballot in that name in the ballot box. The poll list did not carry her middle initial, but the voter was sufficiently identified. No reversible error is presented in counting these six ballots.

Beatriz G. Cantu testified in person concerning her qualifications, and that she voted absentee. She was over age and therefore not on the poll list. There was a ballot cast in the name of Beatriz J. Cantu. The same situation exists with Belia L. Gonzalez. She proved her qualifications and that she voted absentee. A ballot was cast in the name of Belia T. Gonzalez. The trial court counted both of these votes. In our opinion, the difference between a middle initial should not oust the votes. There was no other Beatriz Cantu and no other Belia Gonzalez who voted during the election. We have checked the lists of absentee voters, as well as the lists of those who voted in person. Moreover, neither the name Beatriz nor Belia is a common name as appears from an examination of the numerous pages of voter lists. A written “J” can easily be confused with a written “G”. A written “L” can also easily be confused with a written “T”. No question was raised in the trial court as to the identity of the two voters. Both votes were properly counted. 40 Tex.Jur.2d, Names, §8.

The “mutilated” ballots were examined by the trial court, who determined that the intention of the voter was clearly indicated on all sixteen of these challenged ballots. In view of the testimony of the election judge that the only reason he rejected these ballots was that he considered them “mutilated ballots,” it was not necessary for contestants to show the qualifications of these voters. Guerra v. Ramirez, supra. We have examined these ballots which are in evidence and overrule con-testees’ objection.

Contestees complain that a number of voters were not shown fully qualified in that there was only hearsay evidence that they were not dependent on the county for support at the time of the election. Properly authenticated records of county expenditures for the time in question were introduced in evidence, and none of the 107 persons involved were shown to have received any support from the county.

Appellants also objected to evidence that another group of voters had never been convicted of a felony, because it was hearsay evidence. The point is immaterial, for we have already sustained appellants’ objection to each of these voters except one, Guadalupe G. Escobar, whose vote was counted. Her husband testified that she had not been convicted. In our opinion, for election contest purposes, a husband is qualified to give this testimony.

By cross-points, contestants complain of the trial court’s action in rejecting absentee ballots of Alonzo Vidal, Juan M. Garcia and Antonio Cruz. Vidal’s ballot was rejected because the trial court found the evidence insufficient under contestants’ evidence to show that the ballot was timely received by the county clerk, as required by Art. 5.05, § 7, V.A.T.S. Election Code. We overrule this cross-point. Garcia’s ballot was rejected because the trial .court did not find that the contestants had met their burden of showing by clear and satisfactory proof that Garcia was an American citizen. We cannot say that, as a matter of law, this finding was erroneous and therefore overrule this point.

The ballot of Antonio Curz was rejected by the trial court and from the statements of the attorneys it appears that it was because the ballot was in the carrier envelope rather than in the ballot envelope. No findings were made by the trial court and we therefore must look to the record to see if the evidence shows as a matter of law his eligibility to vote. The record shows that Castulo Antonio De La Cruz, also known as Antonio Curz, was 80 years of age and was issued an identification card by the United States Department of Justice, Immigration and Naturalization Service for use of a. resident citizen, which reflects that he became a citizen of the United States in 1958. There is no showing that he met the residence qualifications necessary to vote in this election, in that the only evidence of residence is that at time of giving testimony he lived in the district. We overrule this cross-point.

The corrected totals of the candidates are: Contestants: Mario E. Ramirez 914, Cesar Salinas 915, Mrs. Maxine C. Guerra 897, R. T. Gonzalez 891; Contestees: Vir-gilio H. Guerra 913, Lucio Gonzalez 896, Erasmo Z. Perez 874, Alonzo Alvarez 869. The judgment of the trial court is reformed so as to declare the following trustees elected : Cesar Salinas, Mario E. Ramirez, Vir-gilio H. Guerra and Mrs. Maxine C. Guerra. In all other respects the judgment is affirmed. The costs are taxed one-half to Contestees and one-half to Contestants. A motion for rehearing must be filed within ten days.


author: COLEMAN, Justice.

text:
    Billy D. SNOW, Appellant, v. Robert W. MILNER, Jr., et al., Appellees.
    No. 14049.
    Court of Civil Appeals of Texas. Houston.
    Dec. 13, 1962.
    On Rehearing Jan. 17, 1963.
    Rehearing Denied Feb. 14, 1963.

      Leonard Kahn, Baker, Branch & Campbell, and Robert O. Campbell, Houston, for appellant.
    William H. White, Grant Cook, and Bracewell, Reynolds & Patterson, Houston, of counsel, for appellee Robert W. Milner, Jr-
    Sam S. Minter, Houston, for appellee Foy D. Melton.
   COLEMAN, Justice.

Appellees, Robert W. Milner, Jr., and Foy Melton, defendants in the trial court, attacked the petition of Billy D. Snow, appellant and plaintiff in the trial court, by exceptions and, prior to securing a final ruling thereon, presented to the court a motion for summary judgment in which they contended that the petition failed to state a cause of action. This position was sustained by the trial court and this appeal resulted.

It is the generally accepted rule that pleadings may be so faulty upon their face as to justify the rendition of a summary judgment. Brownson v. New, 259 S.W.2d 277, Tex.Civ.App., writ dism.; Barnard v. Kuldell, 349 S.W.2d 313, Tex.Civ.App. However, in several cases the courts have stated that a trial court should act on special exceptions and afford an opportunity to amend before considering a motion for summary judgment. Wilson v. Mitchell, 299 S.W.2d 406, Tex.Civ.App. The pleadings will be liberally construed in favor of the party against whom summary judgment is sought. Ross v. Burleson, 274 S.W.2d 105, Tex.Civ.App.

Appellant contends that the allegations contained in his petition state a cause of action based on Section 1985, Title 42 U.S. C.A., which grants a cause of action to one injured in person or property as a result of a conspiracy to deter him, by force, intimidation, or threat, from testifying to any matter pending in any court of the United States, freely, fully and truthfully.

Appellees contend that the statute cited above, granting a cause of action not otherwise found in the common law, is unenforceable unless the legislative authority also provides a forum having jurisdiction to entertain suits to enforce the cause of action granted. By the provisions of 28 U.S.C.A. .§ 1343, the District Courts of the United States were specifically granted original jurisdiction of civil actions authorized by Section 1985 of Title 42 U.S.C.A., but there is no provision in this section making the jurisdiction exclusive. Appellees conclude that a District Court of the State of Texas would have no jurisdiction to entertain a suit brought to establish and enforce a cause of action created by a Federal statute over which the Federal District Court is expressly granted jurisdiction by statute. We cannot agree.

The Supreme Court of Wisconsin, in Smithers v. Brunkhorst, 178 Wis. 530, 190 N.W. 349, a suit for damages arising under a federal law creating a cause of action for damages in a wife against one who furnished intoxicating liquor to her husband, held:

“It is next claimed that the court was without jurisdiction to try this case. This claim rests upon the proposition that the right of action here sought to be enforced was created by federal law and that only federal courts have authority to enforce the same. It is well settled that, where an act of Congress in general terms confers a right and does not limit the courts in which such right shall he enforced, state courts have jurisdiction. This question was recently and fully treated in Chicago, M. & St. Paul Ry. Co. v. McGinley, 175 Wis. 565, 185 N.W. 218, and a reference to that case and the authorities there cited is a sufficient response to this contention.”

The Supreme Court of the United States in Second Employers’ Liability Cases, (Mondou v. New York, New Haven & Hartford R. R. Co.) 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, in reversing a decision of the Supreme Court of Connecticut, holding that the trial court could decline jurisdiction of a cause arising under the laws of the United States, quoted from Claflin v. Houseman, 93 U.S. 130, 136, 137, 23 L.Ed. 833:

‘The laws of the United States are laws in the several states, and just as much binding on the citizens and courts thereof as the state laws are. The United States is not a foreign sovereignty as regards the several states, but is a concurrent, and, within its jurisdiction, paramount, sovereignty. * * * If an act of Congress gives a penalty [meaning civil and remedial] to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a state court. The fact that a state court derives its existence and functions from the state laws is no reason why it should not afford relief; because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the state as it is to recognize the state laws. The two together form one system of jurisprudence, which constitutes the law of the land for the state; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent. ⅜ * * >»

In United States v. Bank of New York & Trust Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331, the court held:

“The government insists that the United States is entitled to have its claim determined in its own courts. But the grant of jurisdiction to the District Court in suits brought by the United States does not purport to confer exclusive jurisdiction. It is a general rule that the grant of jurisdiction to one court does not, of itself, imply that the jurisdiction is to be exclusive. See Gittings v. Crawford, Taney, 1, Fed. Cas.No. 5,465; Ames v. Kansas, 111 U.S. 449, 464, 4 S.Ct. 437, 28 L.Ed. 482; Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511, 517, 518, 18 S.Ct. 685, 42 L.Ed. 1126; Merryweather v. United States (C.C.A. [9 Cir.]), 12 F.2d 407, 409, 410. Upon the state courts, equally with the courts of the Union, rests the obligation to guard and enforce every right secured by the Constitution and laws of the United States whenever those rights are involved in any suit or proceedings before them. Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 28 L.Ed. 542.”

In Caruthers v. Hines, 290 S.W. 155, the Commission of Appeals of Texas said: “A state court has concurrent jurisdiction with the District Courts of the United States to pass on federal questions, since the Constitution, laws, and treaties of the United States are as much a part of the laws of each state as its own local laws and Constitution * * *.”

Here appellant alleged a conspiracy between appellees to induce appellant to give false testimony at a trial in a federal district court. He pled that pursuant to the conspiracy one of his superior officers on the Police Force offered him a bribe. There is no specific allegation that a conspiracy-existed to deter him from testifying truthfully by force, intimidation or threat.

Title 42 U.S.C.A. § 1985, further provides that if, in furtherance of the object of the conspiracy, one or more of the persons engaged therein do or cause to be done any act, whereby another is injured in Tiis person or property, the injured party may have an action for the recovery of his «damages.

It is alleged that the proffered bribe is an act causing the injury for which a recovery •of damages is sought.

Plaintiff has alleged that at the trial he testified truthfully to the facts and that during the course of the trial he was compelled to reveal the offer of a bribe. This testimony was denied by the superior officer alleged to have offered the bribe, resulting in a Police Department rift and personal notoriety to plaintiff. As a result, it is alleged, he was considered unacceptable to the officials of the Houston Police Department, was shunned by his fellow officers, his life was threatened and he was required to resign from police work. It was further alleged that as a result of the acts of appel-lees he suffered headaches and nervousness ; his business of operating a filling station failed; and his earning capacity, and business and professional reputation was impaired, causing- damage in the sum of $100,000.00.

Appellant has alleged that he was offered a bribe by a superior officer on the Police Force. He has also alleged Title 42 U.S. C.A. § 1985, in haec verba. Construing the petition liberally in favor of the pleader, particularly in view of the fact that the special exceptions were not acted on by the trial court, we are of the opinion that the petition might be construed to allege that a conspiracy existed to deter appellant from testifying truthfully; that an attempt was made to intimidate appellant by having a bribe offered him by a superior officer; and that as a result of such act appellant suffered injury.

Appellant contends that he has also alleged a cause-, of action based on slander. While appellant alleged that one of appel-lees denied that appellant testified truthfully and that such statement was made before a non-judicial body, we think the pleading in that respect so faulty as to justify the rendition of a summary judgment.

While we recognize the rule of law quoted in Cooper v. Steen, 318 S.W.2d 750, Tex. Civ.App., to the effect that an intentional invasion of a legally protected right causing injury is actionable, we find no cause of action raised by the pleading other than the matters previously discussed. While a plaintiff may plead evidentiary allegations and conclusions of law, the statement of his cause of action must be sufficient to give fair notice of the claim involved. Rules 45 and 47, Texas Rules of Civil Procedure. Where the pleadings are of such a general nature that fair notice of the claim involved is not afforded, a summary judgment may properly be granted

The judgment of the Trial Court is reversed and remanded.

On Motions for Rehearing.

In their motions for rehearing appellees have raised the point that appellant’s original petition fails to plead either by way of fact or conclusion certain necessary elements of a cause of action under Title 42, U.S.C.A. § 1985.

Section 1985 has been construed by the appellate courts of the United States to require, as elements of a cause of action under such statute, allegations of a conspiracy for the purpose of hindering or obstructing the due course of justice in a state with the purposeful intent to deny to a citizen the equal protection of the law, and of overt acts done under color of state law or authority and resulting in injury to the plaintiff in his person or property. Hoffman v. Halden, 268 F.2d 280 (9th Cir., 1959), and cases there cited.

In his original petition plaintiff has not alleged facts from which the conclusion could be drawn that a conspiracy was formed with the intention to deny him equal protection of the law or that any acts committed pursuant to the alleged conspiracy were done under color of state law. Since under the Hoffman case such allegations are necessary, plaintiff has failed to allege a cause of action based on the statute.

Appellees’ motions for rehearing are granted and the judgment of the trial court is' affirmed.

Motions for rehearing granted; former judgment vacated, set aside and annulled; judgment rendered and opinion on rehearing filed January 17,1963.


author: MURRAY, Chief Justice.

text:
    Vernon H. WEATHERFORD, Appellant, v. H. L. LEE, Appellee.
    No. 14052.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 9, 1963.
    Rehearing Denied Feb. 6, 1963.

      Werner A. Gohmert, Alice, for appellant.
    Lloyd, Lloyd & Dean, Alice, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by Vernon H. Weatherford, appellant herein, against H. L. Lee, appellee, in the District Court of Jim Wells County, seeking to establish the joint ownership between the parties of a lease-hold estate and the property thereon situated, for an accounting and adjustment of the equities, and for partition of the property, or, in the alternative, for judgment declaring appellant to be the sole owner of a house situated on such leasehold estate and entitled to possession thereof.

Appellee’s motion for an instructed verdict was granted and judgment rendered that Vernon H. Weatherford take nothing by his suit against H. L. Lee, and that he recover his costs herein; from which judgment Vernon H. Weatherford has prosecuted this appeal.

Inasmuch as this is an instructed verdict case, appellant is entitled to have the evidence viewed in a light most favorable to him. We, therefore set forth appellant’s “SUMMARY OF STATEMENT OF FACTS”:

“Appellant and his family and Ap-pellee and his family have been neighbors for about seven years. Each family has children. They were all very good friends and good neighbors, and visited back and forth. Appellee and his wife had discussed getting a campsite at Mathis. Appellee’s wife always wanted one and still wants one. Appellee testified that on other occasions he and his wife had looked for a lot, but didn’t find a suitable one.
“In early 1959, Appellant, his wife, and wife of Appellee went to Lake Mathis to look at some lots. They were interested in having a house at the lake and a place to go on weekends. They were looking for a campsite to use together. Appellant and Appellee’s wife agreed she would ‘furnish’ the lot and Appellant was going to furnish electrical materials, build tables, put up lights, build rest rooms. And if he would help her fix up the place, he would use it right along with her. After looking at various available lots, Appellee’s wife found one she liked and leased it. The lease was for one year with an option to renew it for a period of ten years. She had the lot put in her name, and paid for it with community funds out of a joint bank account she and her husband had.
“After returning home, Appellant, his wife, and Appellee’s wife saw Ap-pellee and told him about their agreement and acquiring the lot. The parties and their wives agreed to be partners in the place at the lake. Appel-lee’s wife told Appellee that Appellant was going to do the work up there to pay for his part of the lease.
“The two families were going to use this lot together, equally. Appel-lee’s wife told Appellee of all the discussion (about the lease) and he voiced no objection; and later participated in the program. This agreement was made after the lease had been obtained. Appellee’s wife admitted the agreement was that Appellant could have a ‘living interest’ and he could stay up there. Appellee acknowledged that the agreement was that Appellant was to furnish the labor and Appellee was to furnish the materials, that Appellant furnished materials and labor, and that Appellant was to use the place. Appellant’s wife, while testifying about her giving Appellee fifty dollars on the house, said, ‘And I didn’t ask him for a receipt right then because naturally you are just not going to ask your neighbors or your close friends for a receipt for anything. Neither did I give him a receipt for the lease, because well, I thought my word was good enough, and he didn’t ask me for any.’
“Both families acquired house trailers and moved them on the lot at the lake, and used them from March to December. Appellee’s wife bought a house trailer and Appellant helped fix it up and helped situate it on the lake lot. Appellant and his family did not stay in that trailer — it would not accommodate two families. Appellee knew a fellow in Corpus who had a trailer for sale for $150.00, so Appellant gave Appellee a check for it, and Appellee’s son helped Appellant move it to the lake lot and set it up. Appellant and two men hired by Appellee spent two days clearing the lot. Appellant built outdoor toilets, furnished some of the materials and moved it on the lot. Appellant and Appellee built tables on the lot. Appellant installed electrical conduits, poles and outlets to the house trailers. Appellant bought a boat, and Appellant and Appellee each paid one-half of the cost of a boat slip. The boat was used jointly. The subject of buying a house came up and Appellant had discovered a house for sale by Magnolia Pipe Line Company. All of them went to look at it. Appellant later bid' on the house and bought it for fifty dollars. Witness Furlow stated the policy of Magnolia Pipe Line Company was to sell surplus property to-employees at a reduced rate. Witness Bennett, a real estate salesman, made-an examination of the house and valued it in excess of $1,000.00, apart from the land. Appellee paid for moving the house to the lake lot and Appellee’s-wife gave Appellant fifty dollars for materials to build cabinets and told him to sign Appellee’s name on tickets for other materials. Both Appellant and Appellee furnished labor and materials to set the house up on the lot, wire it for electricity, build a cesspool, lay drain lines, install plumbing,, paint the house, build a garage, build a fence and get, set out trees, grass,, and other things. Appellee paid the rent for the first and second year. Appellant offered to pay his share of the second year’s rent, but Appellee declined, saying Appellant had done too much work. Appellant bought and paid for materials which were used in the completion of the premises and house at the lake. Appellant paid his rent and half of the utility bills for the third year. At the time they were moving their furniture in the house, they flipped a coin to determine which family would occupy which bedroom. In June, 1961, one year and six months after the house was bought, Appellee asked that the bill of sale on the house be transferred to their names and Appellant had a bill of sale for one-half interest made out and offered it to them; and they refused it. Appellee thereafter excluded Appellant from the premises, changed the locks on the gates, and moved Appellant’s personal property from the house.”

An all-important fact is that the lease was taken in the name of appellee’s wife and the first year’s rent paid in full by her, before any agreement or joint venture was entered into between appellant and appellee. The lease was for more than one year and is governed by the rule to the effect that a conveyance of an interest in land which is to continue for more than one year, to be enforceable, must be in writing. The lease was for one year, with an option in favor of appellee to renew it for ten years, and was within the statute of frauds. Art. 1288 and Art. 3995, Vernon’s Tex.Civ.Stats.; Hill v. Hunter, Tex.Civ.App., 157 S.W. 247; Bacon v. Nelson, Tex.Civ.App., 81 S.W.2d 287.

A joint venture is governed by the same rules as a partnership. The leasehold estate, being in the name of appellee or his wife at the time the joint venture was entered into, did not become a partnership asset because there was no written conveyance making it such. Pappas v. Gounaris, 158 Tex. 355, 311 S.W.2d 644; 49 Am.Jur. 543; 45 A.L.R.2d 1009-1026.

Admittedly, appellant did not have a written conveyance to him of any part of the leasehold. The rule is well stated in Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216, as to when an oral conveyance of an interest in real estate to continue for more than one year, is valid and enforceable. The requirements are: (1) payment of the consideration, whether it be in money or services; (2) possession by vendee; and (3) the making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor. Each of these three elements is indispensable and they must all exist at the same time. The possession required by the above rule of law is possession that is exclusive and adverse to the owner of the title to the land. This appellant did not have. Thornton v. Central Loan Co., Tex.Civ.App., 164 S.W. 2d 248.

Appellant contends that the lease provided that any improvements made upon the lot are to be removed at the termination of the lease and, therefore, the improvements remained personal property and did not become a part of the real estate. Appellant was not a party to the lease and he could not claim any benefits under its provisions. The right to remove improvements was personal to appellee.

The judgment is affirmed.