author: CHADICK, Chief Justice.

text:
    HARRIS COUNTY, Texas, Appellant, v. James Warren COLLIN et al., Appellees.
    No. 7452.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 29, 1963.
    Rehearing Denied Feb. 26, 1963.
    Joe Resweber, Joseph T. Terracina, Houston, for appellant.
    Kucera, Lay & Lightfoot, Houston, for appellees.
   CHADICK, Chief Justice.

This is a trespass to try title suit. The judgment of the trial court is reversed and the case remanded for new trial.

By a properly acknowledged and recorded Warranty Deed dated April 18, 1947, Anna S. Stratford, a widow, conveyed to Harris County, Texas, a 4.08 acre tract of land in a subdivision called Highland Terrace, near the City of Highland, Harris County. Following the description this language was written into the deed, to-wit:

“It is understood by both parties hereto that the said Anna S. Stratford reserves and retains all mineral rights in the property herein conveyed and it is further understood and agreed that the property herein conveyed is to be used as a Park and/or for recreation purposes and in the event same is not used for said purposes for three consecutive years, then in that event the title to same shall automatically revert to and be vested in the Vendor, Anna S. Stratford, her heirs or assigns.”

Shortly 'after Mrs. Stratford transferred the tract’s title to Harris County the Highland Booster Club, a civic organization began a campaign to put it to use. A county employee using county equipment cleared the grounds, at least in part. The Booster Club purchased paving shell to the amount of $300.00 which the county spread on the road leading to the park. A ball diamond was laid out with bleachers for spectators. A community barbecue and park dedication ceremony was held at the park. Ball games were played at the park for some time. However, similar activity did not continue past the year 1951. In that year the Civic Club by formal resolution discontinued its support of the recreational program it was instrumental in starting at the park. The record also contains the testimony of a witness that he was upon the tract for recreational purposes once or twice a year from 1948 until the time of the trial, and that “lots of people”, including his son, used the tract for hunting “rabbits and so forth”. It was admitted in evidence that a county bulldozer and operator did some clearing of the tract some time in 1959, “about the time this lawsuit was filed”.

A witness living within one block of the tract in replying to a question as to what use had been made of the property after the original barbecue and ballgames, answered “none”. Another witness testified that the citizens went together and cleared up the underbrush on the tract some time prior to Labor Day in 1948, and identified certain pictures offered in evidence that depicted portions of the park area at the time of the suit. The parts of the tract these pictures show appear to be thickly covered with grass, weeds, and in places, new growth and mature trees. Another witness who had lived in the vicinity of the tract 13 years, the back door of his house being some 250 feet from the tract, testified that he was at the dedication and barbecue, and that after 1948 he could not remember seeing the grounds used for games or sports. Several of the witnesses testified without the objection that the tract was not used for a park or recreational purposes after 1950.

James Warren Collin, individually, and as Trustee of the Estate of Anna S. Stratford, Thomas J. Collin, Norma Ann Collin, and Pauline Collin, as Plaintiffs, sued Harris County, Texas, as defendant, for title and possession of the tract in a statutory trespass to try title action. No question involving pleadings is presented and descriptions thereof are omitted. The trial judge submitted three issues to the jury. The jury’s response to the first and second issue was that the land was not used as a park or for recreation for three or more consecutive years between November 23, 1948 and September 7, 1959. The verdict on the third issue was that the plaintiffs’ failure to assert a claim of title before September 7, 1959, did not constitute a waiver of such claim. Judgment on the jury findings awarded title and possession of the 4.08 acre tract to the plaintiffs and decreed their proportionate individual interest therein.

Harris County has perfected an appeal and has briefed twenty-eight points of error. No evidence and insufficient evidence to support the jury’s verdict upon each of the special issues are among the points briefed, in addition to points that the jury’s verdict on each of the special issues is against the overwhelming weight and preponderance of the evidence. The insufficient evidence points as to the first and second issues are sustained.

“Park” and “recreation” are both terms with such breadth of meaning in popular understanding that they might be applied to widely differing grounds and pursuits. Parks range from very small plots to immense land areas, and from formal gardens to tracts in their natural primitive state. The opinion of the Supreme Court of Pennsylvania in Laird v. City of Pittsburg, 205 Pa. 1, 54 A. 324, 61 L.R.A. 332; in the course of its discussion of what constitutes the legitimate scope of park purposes says:

“A public park, in the popularly accepted meaning of the present time, may be comprehensively defined as a public pleasure ground. * * * No doubt the idea of open air and space, with the land kept in grass and trees, as if approximately in the state of nature, still inheres in the general understanding of the word * * *

In this instance it would be reasonable to assume that when Mrs. Stratford made the dedication and it was accepted the parties intended the park to be one of a nature appropriate to the use and beneficial to the people of Harris County, and particularly those in and near the community where it was located. Mrs. Stratford’s deed did not require that the tract be improved or changed from its natural state. Nor did the deed particularize or limit the park or recreational purposes the land might be devoted to. Recreation ordinarily is understood to mean activities and pursuits that refresh and replenish, by giving the body or mind rest from routine surroundings and work.

All parties to this litigation agree that a dedication of the land was made and accepted, and tacitly agreed that holding a community gathering, attending and playing games, etc., at Stratford Park, as the tract came to be known, was a use of its grounds within the intent and purpose of the dedication. Under the circumstances shown it appears equally reasonable to say that the tract would be devoted to park and recreational purposes when it is set aside for, open and available to individuals and groups comprising the public that might disengage themselves from their work-a-day commitments and repair to the park, where, in the tranquillity of its natural verdure, they might commune with nature, camp out, cook out, or chase rabbits.

The conclusion is inescapable that at all times after dedication the tract of land was susceptible to use for park and recreational purposes; that it was originally but little altered and thereafter permitted to revert to its natural state is not inconsistent with public user. But for slight evidence to the contrary, yet to be discussed, public user would be presumed. See Compton v. Waco Bridge Co., 62 Tex. 715; Phillips v. Texas & Pac. Ry. Co., Tex.Com.App., 296 S.W. 877; Heard v. Connor, Tex.Civ.App., 84 S.W. 605, N.W.H.; Dedication, 19 T.J.2d, Sec. 31, p. 216; 26 C.J.S. Dedication § 45.

The public was the real transferee of the use of the Stratford Park tract, though the deed transferred legal title to the County to hold the land as Trustee for the public. Miller v. Dallas County, Tex.Civ.App., 71 S.W.2d 377, N.W.H.; Slack v. Magee Heirs et al., Tex.Civ.App., 252 S.W.2d 274, aff’d, 152 Tex. 427, 258 S.W. 797; 14 T.J. 689, Sec. 6; 26 C.J.S. Dedication § 9, p. 412. The evidence is without dispute, or nearly so, that the public as beneficial owner by and through its Trustee, Harris County, set this ground apart as a park, and has by so doing devoted Stratford Park to and used it for park and recreational purposes without interruption between the time of its dedication and trial of this lawsuit. The evidence offered by the appellees in its most favorable aspect was that the public did not physically go upon the park grounds and use them except for a year or two shortly after its dedication. There is no suggestion that it was diverted to inconsistent uses. At most, the supportive evidence suggests nonuser; and nonuser is a factor to be considered in determining abandonment of dedicated lands in cases where the dedication is not limited in time as is the case here. 26 C.J.S. Dedication § 63b, p. 555. See also City of Dallas v. Etheridge, 152 Tex. 9, 253 S.W.2d 640. By analogy the same rule applies here, as in this instance nonuse for three consecutive years is the condition that defeats title. The evidence of nonuse is next discussed.

Though witnesses testified without objection that the park had not been used for park or recreational purposes from 1950 or 1951 until the time of the trial, and one witness testified simply that no use had been made of the tract of land during that period, such testimony amounts to little more than a scintilla of evidence. No probative effect may be given the witnesses’ expressed opinions that the tract was not used for the mentioned purposes. The opinions are based on the witnesses’ determination of what constitutes a park or recreational purpose. Nor does this particular testimony appear to be merely a “shorthand” rendition of numerous observable events. Such evidence should have been excluded had an objection been made to its admission. See 2 Texas Law of Evidence (McCormick & Ray) Secs. 1391, 1393, and 1426, and cases cited in the notes thereto. The rule is that such inadmissible opinions or conclusions will not support a verdict. Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d .377; Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97; Dallas Railway & Terminal Company v. Bankston, Tex.Com.App., 51 S.W.2d 304; Webb v. Reynolds, Tex.Com.App., 207 S.W. 914; Henry v. Phillips, 105 Tex. 459, 151 S.W. 533; Brackenridge v. Claridge, 91 Tex. 527, 44 S.W. 819, 43 L.R.A. 593; 21 Texas Law Review, p. 782.

The single witness’s statement that no use had been made of the tract appears to have probative value as negative testimony and was admissible. See 1 Texas Law of Evidence (McCormick & Ray) Sec. 794. When all supportive evidence, including the inferences of abandonment to be drawn from the conceded slight use the public made of the park ground, the whole amounts to some evidence supporting the verdict on the first and second issue. However, such evidence is too weak and inconclusive to sufficiently support the jury’s findings. A clear showing of nonuser must be made. City of Dallas v. Etheridge, supra; Dedication, 19 Tex.Jur.2d Sec. 49, p. 235. Additionally, if the points were reached, when the undisputed evidence and the proof as a whole is weighed, the overwhelming weight and preponderance challenge would have to be sustained.

For the purposes of this appeal it is immaterial whether the language from the dedication deed, quoted in the forepart of the opinion, constitutes a conditional limitation of title or creates a condition subsequent. See Lawyers Trust Company v. City of Houston, Tex., 359 S.W.2d 887. For ease of expression the term limitation and condition have both been-used without intending to decide issues in that inspect.

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


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    PANHANDLE & SANTA FE RAILWAY COMPANY, Appellant, v. N. R. LISCOMB et al., Appellees.
    No. 5562.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 30, 1963.
    Rehearing Denied March 6, 1963.

      Mays, Leonard, Moore & Dickson, Sweetwater, J. M. Preston, Pecos, for appellant.
    Finley & Scogin, Kermit, Royal Hart, Richard W. Davis, Upton, Upton, Baker & Griffis, San Angelo, Walker F. Means, Robert S. Kent, Pecos, for appellees.
   CLAYTON, Justice.

This is a “blocked crossing” case arising out of a collision between a truck-tractor pulling a tank semi-trailer being driven by William Lee Michum and a tank car in appellant’s train, in which collision Mich-um, was killed. Michum was an employee of N. R. Liscomb, who filed suit against appellant for damage to the truck and trailer, wherein Liscomb’s insurance carrier intervened. In a separate suit, Michum’s surviving wife and two minor children filed suit against appellant for damages growing out of Michum’s death, and in this suit Lis-comb’s Workmen’s Compensation carrier intervened. These suits were consolidated for trial.

The collision occurred just past midnight and in the early morning of December 22, 1959 at appellant’s spur track which crosses a farm to market road No. 652 at a slight angle near the town of Orla, in Reeves County, Texas. The farm to market road runs generally east and west, and the spur track approximately north and south. We consider the following facts pertinent to the decision we must reach in this case:

The deceased lived in the vicinity of Orla. His employer lived and had his place of business in Orla. The employer was engaged in road work and water hauling and in connection with the latter occupation used.the truck-tractor and tank trailer involved in the collision. In the late evening of December 21, 1959 the deceased left his employer’s place of business in the truck and trailer to deliver the last load of water for the evening. He proceeded east on Farm Road No. 652 and of necessity traversed the appellant’s spur track crossing which was a little over a half a mile to the east from his employer’s place of business. The deceased had been over this crossing many times, both in daytime and at night-time.

After delivering the load of water, deceased was returning to Orla, proceeding in a westerly direction from the east, along Road 652. At a distance of something over 430 feet east of the crossing there was an “early warning” sign advising of the railroad crossing, and just before the crossing to the east there was a standard “re-flectorized” crossing sign. For a little over nine-tenths of a mile to the east from the crossing, the road is perfectly straight and on a slight upgrade toward the crossing of about seven and % inches for each 100 feet horizontally. There were no buildings or other obstructions to the eye-sight on the east side of the crossing, the area being “good and clear”. At the time of this accident there were no street lights in the town of Orla to confuse the vision, and the closest mountain was 26 miles away. Although the night was described as “dark”, there were no adverse weather conditions. One of the witnesses described the night as a “cold still night” and stated “you could see quite a ways.” The highway was of black asphalt. As deceased approached this crossing, appellant’s employees were slowly (four miles or less per hour) backing a switch-engine with a string of eleven railroad cars across the road toward a loading rack which ran along the west side of the track. A conductor for the appellant was at the crossing to see that it was clear as the string of cars backed in a northerly direction across the road, after which he went to the loading rack to make a coupling between the cars in the train and some cars already at the loading rack. As the train slowly backed toward the loading rack the deceased ran his truck into the fourth car from the north end of the string of railroad cars, this car being a tank car which was completely across the highway at the time. There were seven cars and the engine south of the car that was struck. The engine had headlights on each end that contained two sealed beams, each burning. It had two “classification” lights on the front end; four lights for the engine numbers, one on each corner of the engine; the gauge lights in the cab, and two ground lights under the cab deck — all burning. As the train started backing over the highway the regular crossing whistle signal was given and the engine bell was set to ringing constantly. While the train was on the crossing, the lights of the oncoming truck could be seen, possibly “when it first came around the curve”, a little more than nine-tenths of a mile to the east.

Both the tank-trailer and the tank car involved in this collision were empty at the time. The tractor with its equipment weighed in the neighborhood of 11,000 pounds, and the tank-trailer it pulled weighed from 6,500 to 7,200 pounds, or a combined weight of 17,500 to 18,200 pounds. The tank car weighed 66,200 pounds. The tank car was black with the word “BEACON” painted on the sides in white letters. The letters in this word were horizontally two feet across and vertically three feet high, extending a distance along the body of the car of 23 feet. Th bottom of these letters was six feet 7 and laAo of an inch from the top of the rails. There were other, smaller, letters and numbers painted on the sides of the car. The eye-level of a person of normal height, as he sat on the seat of the truck-tractor, would be about five feet 6 or 7 inches above the ground. Investigation showed that a “Beacon” tank car could be seen at night in the light of standard vehicle headlights at distances of from 600 to 750 feet.

The motor of the truck-tractor had a “governor” on it set at 58 miles an hour. The lights and the brakes on the tractor were in good condition, but the brakes on the tank-trailer “weren’t too good”. A witness with a Bachelor of Science degree, who had made a study of kinetics, was called by the appellees and he estimated the speed of the tractor and tank-trailer at the time of the collision as approximately 39 miles per hour. A witness called by the appellant who held Bachelor of Science, Master of Science and Doctor of Philosophy degrees scientifically estimated the speed of the truck and tank-trailer at 61 miles per hour, or “right in the 60 mile an hour range”. The appellant called a Texas highway patrolman who investigated the accident, and he estimated such speed as between 55 and 60 miles an hour. The appellant called a deputy sheriff, formerly a Texas highway patrolman, who also .in-vcstigated the accident, and he estimated such speed as about 60 miles an hour. The cab of the truck-tractor was crushed in the collision and burned. After the deceased was removed from the cab his right shoe sole was still on the accelerator and his left shoe sole was on the floor-board of the cab between the seat and the clutch. There were no skid marks on the pavement.

It has been stated that the tank car which was struck by the truck had an empty weight of 66,200 pounds. It rested on “couplings” or “couplers” at each end of the tank over the “trucks” of the car which include the wheels at each end of the car. The tank is held on the trucks by center castings, twelve inches in diameter and about two inches deep, through which center pins of iron or steel are run on down through the couplings, which are eleven inches deep. The force of the impact by the truck-tractor and semi-trailer raised the tank completely off the trucks of the tank car — a height of 18 to 21 inches— and it came to rest on the highway west of the tracks a distance of approximately fifteen feet at the north end of the tank and four feet at the south end. The center pins were bent. One of the tank car trucks, weighing 7,240 pounds, was pushed off the tracks. The connecting pin on the tank semi-trailer was sheared off and the trailer went up and over the cab of the truck, crushing it and probably striking the tank car itself. The truck-tractor was demolished.

It was stipulated at the trial that there were no stationary mechanical devices of warning of appellant’s at the time and place of the collision.

Testimony was introduced by appellees for the purpose of showing that this crossing was more than ordinarily dangerous as a night-time crossing. There was one collision of an automobile with a box car at this crossing in 19SS at 11:30 one night. Investigation revealed that the automobile was travelling west at 70 miles per hour. No claim or lawsuit followed this collision.

There was a “near miss” between a tractor, pulling a semi-trailer, and a tank car on this crossing in June of 1959. This occurred at night between twelve and one o’clock, and the highway was “a little bit slick” after a little rain, but visibility was good. The vehicle was travelling west at a rate of 40 to 50 miles an hour, the driver saw the tank car from 115 or 120 feet away and stopped on slick pavement in time to avoid a collision. The driver of the vehicle had gone over this crossing probably a thousand times from March till September of 1959, and the related occurrence was the only time he had seen a train stopped on the crossing.

Another witness testified to a “near miss” at night-time on April 30, 1958 while he was driving a truck and tank-trailer containing 112 barrels of water in a westerly direction at about 30 to 35 miles per hour. The driver saw the engine of a train approaching the crossing about 60 feet away, applied his brakes and turned off the highway into solid sand and his vehicle hit a post. The truck stopped so close to the engine “that you couldn’t have got between it and the engine”. The driver testified that going from east to west on the highway at night, he had to turn off his lights to see if there was a beam from the headlight of an engine to disclose the presence of a train approaching the crossing. He stated that he had hauled close to 1,000,000 barrels of water over this crossing, but this was the only “near miss” to which he testified.

Another witness had been over this crossing hundreds of times and on two occasions, driving a pickup truck going west after midnight, he had had to put on his brakes and turn off the highway to avoid striking railroad cars loaded with black pipe on the crossing. He had experienced no difficulty going toward the east, but he stated that going wrest there was “just a big blank black spot” at the crossing.

Another witness testified to having “near misses” while driving both east and west on the highway late at night — that the crossing was just “a blind spot”. This witness had worked in and around the town of Orla since 1949. He testified to either three or four occasions when he had difficulty seeing cars on the crossing.

Of significance to us is the fact that in all but one of these prior instances at this crossing, under conditions sometimes less favorable to a cautious driver than those existing in the instant case, the vehicles on the highway were stopped by the drivers before a collision with a railroad car could occur.

Special Issue No. One as submitted to the jury was as follows :

“Do you find from a preponderance of the evidence that, at the time and on the occasion in question, the conditions surrounding the crossing in question were such as to render that crossing more than ordinarily dangerous as a nighttime crossing?
“Anwer ‘Yes’ or ‘No’.
“In connection with the foregoing Special Issue, you are instructed that by the term ‘more than ordinarily dangerous’ is meant that the crossing would not be more than ordinarily dangerous unless its condition was such that a reasonably prudent person could not, by the exercise of ordinary care, use same with safety.”

The jury answered this issue in the affirmative.

By its first, fourth and fifth points of error, appellant urges that there is no evidence to support the jury’s finding that the crossing in question was more than ordinarily dangerous as a night-time crossing, or that such finding was based on insufficient evidence, and that such finding was so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Appellant in its brief sets out that the legal standard of an extra-hazardous crossing, or one that is more than ordinarily dangerous as a night-time crossing, is a crossing which is so peculiarly dangerous that a person of ordinary care and prudence cannot cross in safety unless the railroad used extraordinary means to warn the motorist of the presence of the train. We are cited to the two companion cases of Texas & N. O. R. Co. v. Stratton decided by the San Antonio Court of Civil Appeals in 1934, both writ refused, and appearing in 74 S.W.2d 741 (Civ.App. No. 9383) and 74 S.W.2d 746 (Civ.App. No. 9377). The cause of action in these cases arose from a night-time collision between a passenger car and a railroad train of appellant in which collision the four young people riding in the car were killed. We are impressed by the similarity, in most essentials, of the facts in the Stratton cases and the case before us. The following is quoted from the nature of the case appearing in Civ.App. No. 9377:

“The accident occurred at the intersection of a paved state highway and one of appellant’s spur tracks, two miles out of Eagle Pass, when the motorcar ran head-on into the middle of a 380-foot train which was moving slowly across the highway at a probable rate of 3 or 4 miles per hour.
“The train was executing a switching movement. An engine with six cars was detached from a made-up train on the main tracks, a few hundred feet away, and was backed out on the spur track, past the crossing, to pick up two cars stationed a short distance beyond the crossing. The coupling was made, the air connected, and the engine was pulling the eight cars back towards the main track. The engine, moving forward, had pulled the string of cars half way across the highway, when the motorcar, moving over the highway at a rate of speed variously estimated at from 17 to 65 miles per hour, collided with the fourth car of the moving train.”

The following is added by the opinion in Civ.App. cause No. 9383:

“ * * * The evidence clearly shows that the highway was straight and almost level for a distance of eight or nine hundred feet in the direction from which the Ford automobile was approaching the crossing. There were no obstructions, except houses and mesquite trees set well back from the highway. The train was lawfully upon the highway, and was moving slowly in an easterly direction. The engine with its bright headlight had crossed the highway and had proceeded about 190 feet when the Ford automobile, in which Joseph R. Stratton and Carrie D. Stratton were riding, ran into the train and collided with the fourth car from the engine.”

The evidence was conflicting as to whether the night of the accident was clear or foggy.

The court in the last quoted case held:

“ * * * p¡. occurs t0 this court that whether the visibility was good or bad the trainmen had a right to presume that people using the highway would drive at a rate of speed which would permit them to bring their automobile to a full stop if within the reach of their lights it should be discovered that the highway was blocked by a slow moving train. * * * ”
“The evidence is insufficient to show that this crossing, even under the existing bad visibility, was an extrahazardous crossing, but even if it be regarded as such the evidence clearly shows that flagmen, lanterns, or other signals could not and would not have avoided this accident. If a moving box car or a burning automobile could not be seen, then certainly a flagman with a lighted hand lantern could not have been seen. Whether you accept the evidence that the visibility was good, or that it was bad, you reach the conclusion that appellant could not be liable. The use of signs, signals, and warnings is for the purpose of letting persons using the highway know of the presence of the crossing, and that a train is approaching the highway. Under the facts in this case, after the train had completely blocked the highwajr and was lawfully passing over the highway, it was within itself sufficient warning to persons using the highway to beware of the train.”

The following is added in the opinion in Civ.App. Cause No. 9377:

“The duty of the railroad company’s train operatives in this situation was to exercise due care in aproaching and crossing the highway to avoid colliding with persons passing thereon. On the other hand, persons using the highway were under the reciprocal duty of using due care in approaching and crossing the railroad tracks to avoid colliding with trains passing thereon. It is perfectly obvious that those in the automobile failed to use such care, and this failure, whether negligent or not does not matter, was the proximate cause of the accident, as a matter of law.”

Appellant also refers us to the case of Texas & N. O. R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113, decided by the Supreme Court in 1940, which specifically approved the opinions in the Stratton cases.

It is considered appropriate to quote excerpts from the Compton case:

“The material facts are few. About one o’clock at night Grover Carrington left Texas City in his automobile for Galveston. Charles Compton and others accompanied him on the trip. The night was dark and foggy and the visibility was poor. A few miles from Texas City the automobile ran into a slowly moving freight train and Compton’s death resulted from the collision. The highway ran over a flat prairie country, and in the vicinity of the intersection there were no trees, houses or other obstructions to the view. The highway and railroad track crossed at right angles. The train consisted of 87 cars, and the automobile struck the sixtieth car from the engine. The train was moving eight or ten miles per hour and the automobile much faster.
******
“ * * * Another ground relied upon was the failure of the railroad company to use extraordinary means to give warning, such as to equip its freight cars with lights and have same burning at night, to equip its crossing with signal bells or lights or to have a watchman stationed thereat. Negligence cannot be based upon such omissions, for the crossing was not extra-hazardous and therefore no duty was cast upon the railroad company to observe these extraordinary precautions. It would be difficult to conceive of a railroad crossing at which the hazards would be more obvious than at this one.”

The Supreme Court then cites similar conclusions reached in this and other jurisdictions. Appellant calls our attention to other Texas cases that have cited and followed the decisions in the Stratton cases, including Kypfer v. Texas & P. Ry. Co., 88 S.W.2d 528 (Tex.Civ.App.1935, writ dismissed) ; Texas & N. O. R. Co. v. Beard, 91 S.W.2d 1080 (Tex.Civ.App.1936, writ refused) ; Texas City Terminal Ry. Co. v. Allen, 181 S.W.2d 727 (Tex.Civ.App.1944, writ refused) ; Lundberg v. Missouri-Kansas-Texas R. Co. of Texas, 232 S.W.2d 879 (Tex.Civ.App.1950, writ refused, N.R.E.) ; Gulf, C. & S. F. R. Co. v. Pratt, 262 S.W.2d 775 (Tex.Civ.App.1953, writ refused, N. R.E.) ; Woods v. Panhandle & Santa Fe Railway Company, 315 S.W.2d 953 (Tex.Civ.App.1958, writ refused, N.R.E.) ; and Missouri-Kansas-Texas Railroad Company of Texas v. Beasley, 321 S.W.2d 938 (Tex.Civ.App.1959, writ refused, N.R.E.). Also cited is the 1953 decision of the Supreme Court in Karr v. Panhandle & Santa Fe Ry. Co., 153 Tex. 25, 262 S.W.2d 925.

Applying to the facts of the instant case the law as promulgated by the decisions above quoted from or referred to, we arrive at the following conclusions:

There is insufficient evidence to support the jury’s finding that at the time and on the occasion of the collision the conditions surrounding the crossing were such as to render the crossing more than ordinarily dangerous as a night-time crossing, and such jury’s finding is contrary to the great weight and preponderance of the evidence, and was wrong. Appellant’s first point of error is overruled, but its fourth and fifth points are sustained.

In answer to Special Issues Nos. Two, Three, Four, Five, Six, Seven and Eight the jury found that appellant, through its agents, servants or employees, knew or by the exercise of ordinary care, should have known, the conditions surrounding the crossing; that it failed to maintain adequate physical mechanical warning devices on the east side of the crossing; that this was negligence and a proximate cause of the collision, as was also its failure to maintain a flagman with signaling device on the east side of the crossing. In its second point of error the appellant maintains that there is no evidence to support the jury’s findings of negligence on the part of appellant in not having a mechanical warning device or flagman at the crossing and that such negligence was a proximate cause of the collision.

There being insufficient evidence to show the crossing to be extra hazardous as a night-time crossing, negligence of the appellant cannot be predicated upon the failure of the appellant to use extraordinary means to give warning to motorists using the crossing, such as mechanical warning devices or a flagman at the crossing, since “no duty was cast upon the railroad company to observe these extraordinary precautions”. Texas & N. O. R. Co. v. Compton, supra. Appellant’s second point of error is sustained.

Appellant’s third point of error is directed at the failure of the court to hold that the deceased was negligent, which was a proximate cause of the collision in driving the truck into the train after it had completely covered the crossing. The evidence showed that the engine of the train was equipped with normal lights, all burning; that the usual crossing whistle signal was given; that the engine’s bell was ringing constantly; that the appellant’s conductor was at the crossing to see that it was clear as the train backed across the highway; that an “early warning” sign and a standard “reflectorized” sign advised of the crossing, and that deceased was familiar with the crossing, having been over it many times, both in daytime and at night-time. The train was lawfully upon the crossing, appellant’s employees having exercised due caution in approaching and crossing the highway to avoid colliding with persons passing thereon. On the other hand, it is obvious from the fact of the collision itself and its attendant circumstances, as well as the evident force by which the truck-tractor struck and toppled over the tank and moved the trucks of the railroad tank car, that the deceased failed to1 use such care as would have been required of him to avoid colliding with the train as it lawfully occupied the crossing. (Stratton cases, supra). The appellant’s third point of error is sustained.

There are other points of error. Each of them has been carefully examined, as well as all of appellee’s counter-points, but we find nothing to alter our conclusion that this case must be reversed. Since all matters have been fully developed in the more than 460 pages of testimony and sixty exhibits, no useful purpose would be served in remanding this cause, and it is therefore hereby rendered in favor of the appellant.

Reversed and rendered.


author: MASSEY, Chief Justice.

text:
    P. E. GLENN et al., Appellants, v. CITY OF ARLINGTON, Texas, Appellee.
    No. 16396.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 18, 1963.
    Rehearing Denied March 1, 1963.

      Ernest May, Fort Worth, for appellants.
    Simon, Crowley, Wright, Ratliff & Miller, James E. Wright and Wayne A. Rohne, Fort Worth, for appellee.
   MASSEY, Chief Justice.

The question involved is whether, in view of Art. 6674d, “Federal aid”, and Art. 6674q-4, “Improvements under control of State Highway Department” (to be found under Vernon’s Ann.Tex.St. Title 116, “Roads, Bridges, and Ferries”, ch. 1, “State Highways”), the City of Arlington, Texas, had authority and jurisdiction to levy upon abutting property owners assessments for improvements it desired to have constructed incident to the improvement and general reconstruction of U. S. Highway #80. The improvement and general reconstruction was undertaken by the Texas State Highway Department with aid of funds supplied by the Federal Government under U.S.C.A., Title 23, “Highways”.

The particular improvement for installation or construction of which the city levied assessment against the property owners was for the curb and gutter alongside the paved and improved portion of U. S. Highway #80 immediately in front of their several properties, although on highway premises. There was no federal aid involved in this particular improvement. It could only be by way of coupling the cost thereof with the expenses of the State in the widening and reconstruction of U. S. Highway #80 that federal aid could be said to have paid a part of the cost. By suit the several property owners sought to have the assessment declared void. For this improvement the City of Arlington paid, or agreed to pay, although under an arrangement between the City and the State the contract under which the improvement was installed was one between the State and the contractor.

In view of V.A.T.S. Title 28, “Cities, Towns and Villages”, ch. 13, “Home Rule”, Art. 1175, “Enumerated powers”, sec. 16, it is not to be doubted that the City of Arlington, a Home Rule City, formerly possessed the right to construct or provide out of municipal funds for the construction-of such an improvement. If in its legislative discretion, unabused, the same constituted a local improvement which enhanced the value of the adjacent property it is admitted that it could formerly levy an assessment thereon for the payment of its cost under and according to provisions of V.A.T.S., Art. 1105b, “Street improvements and assessments. * * * ” It is not manifest in the instant case that the installation of the curb and gutter was not an improvement of local pertinence and benefit rather than one benefiting the public generally.

The 39th Legislature, in 1925, enacted Art. 6674d, wherein it provided that “All further improvement of said State Highway System with Federal aid shall be made under the exclusive and direct control of the State Highway Department and with appropriations made by the Legislature out of the State Highway Fund. * * * Surveys, plans, specifications and estimates for all further improvement of said system with Federal aid or with Federal and State aid shall be made and prepared by the State Highway Department. No further improvement of said system shall be made under the direct control of the commissioners’ court of any county unless and until the plans and specifications for said improvement have been approved by the State Highway Engineer.”

The 42nd Legislature, in 1932, enacted Art. 6674q-4, wherein it was provided that “All further improvement of said State Highway System shall be made under the exclusive and direct control of the State Highway Department and with appropriations made by the Legislature out of the State Highway Fund. Surveys, plans and specifications and estimates for all further construction and improvement of said system shall be made, prepared and paid for by the State Highway Department. No further improvement of said system shall be made with the aid of or with any moneys furnished by the counties except the acquisition of right-of-ways which may be furnished by the counties, their subdivisions or defined road districts. * ⅜ * In the development of the System of State Highways and the maintenance thereof, the State Highway Commission shall from funds available to the State Highway Department, provide: (a) For the efficient maintenance of all highways comprising the State System. (b) For the construction, in co-operation with the Federal Government to the extent of Federal Aid to the state, of highways of durable type of the greatest public necessity. (c) For the construction of highways, perfecting and extending a correlated system of State Highways, independently from state funds.”

It is only by reason of these types of statutes vesting authority in state highway departments that highways within the several states may be designated as part of the Federal-Aid primary system and improved with Federal aid. 23 U.S.C.A., “Highways”, ch. 1, “Federal-Aid Highways”, and ch. 3, “General Provisions”. U. S. Highway #80, in Texas, is a part of the Federal-Aid primary system as defined in sec. 103 sub. (b), “Federal-Aid systems”. This state, in the enactment of the statutes, was obviously taking precaution that it be fully qualified to benefit and participate in any federal assistance available should such be its desire.

It is to be observed that under “Enumerated powers” of Home Rule cities, V.A.T.S., Art. 1175, sec. 16, purported to confer jurisdiction and authority upon these cities to improve highways within their municipal limits. The words used therein are “exclusive dominion, control, and jurisdiction”. It specifically provides that when such a city “provides for” such an improvement, it may “charge the cost” thereof against the abutting property and its owner.

Seemingly, Art. 6674d and Art. 6674q-4 conflict with Art. 1175, in their provision that all improvements of the State Highway System, of which highways lying within the municipal boundaries of Home Rule cities would be an integral part, shall be made under the exclusive and direct control of the State Highway Department.

In enacting Art. 6674d (22 Laws of Texas, ch. 186, page 456 of Regular Session) the 39th Legislature stated in the emergency clause: “The fact that the present laws of this State do not meet the requirements of the Federal Aid Act for a participation in the funds available for carrying out said Act creates an emergency ⅜ ⅜ *.” In the preliminary language enacting Art. 6674q-4 (28 Laws of Texas, ch. 13, page 15 of Third Called Session) the 42nd Legislature stated generally that since the ownership and control of all State Highways were vested in the State, with construction and maintenance thereof the functions of the State, and since the counties and defined road districts had aided the State in the development, construction and maintenance of the highways, furnishing and contributing money for the purpose through issuance of bonds, etc. and otherwise lending their credit, all for the benefit of the State, — the State desired to reimburse and compensate the counties and defined road districts for the cost incurred by said agencies in thus aiding the State. The legislation was accordingly enacted.

We cannot find in either the Act by the 39th Legislature or in the Act by the 42nd Legislature, or in any amendment of said Acts, where the State was prohibited from accepting aid in any highway project or improvement other than as applied to counties and their subdivisions, and defined road districts of the State. Even these agencies were not prohibited from supplying rights-of-way on which the State might construct highways.'

Articles 6674d and 6674q-4 are concerned with highway improvement and construction. Another article, V.A.T.S. Art. 6673, “Control of highways” is somewhat similar in that it concerns maintenance of highways already constructed or improved. By Art. 6673 the State Highway Commission is authorized to take over and maintain the various state highways. It is furthermore obvious that the Legislature, in its enactment of said article, was concerned with the eligibility of the State for Federal aid. In Gabbert v. City of Brownwood, 1943 (Tex.Civ.App., Eastland), 176 S.W.2d 344, 349, error refused, Judge Funderburk stated, “The conclusion seems to us to be inescapable that the effect of Article 6673 was to confer upon the State Highway Department only the former jurisdiction of county commissioners’ courts, which, although in terms broad enough to include the former jurisdiction of cities and towns, did not do so, for the very same reason they were not included in the jurisdiction of county commissioners’ courts which said article transferred to the Highway Department.”

Based generally upon the reasoning and rules of statutory construction with which Judge Funderburk concerned himself in the case of Gabbert v. City of Brownwood we have arrived at a similar conclusion relative to Articles 6674d and 6674q-4. We hold that these articles did not operate to deprive the City of Arlington, a Home Rule city, of its jurisdiction to arrange and pay for the improvement of a portion of a state highway within its municipal boundaries and assess abutting property and owners for the cost thereof; that as applied to cities the power granted in the Home Rule amendment, and specifically in Art. 1175 and sec. 16 thereunder “ * * * to provide for the improvement of any public street, alleys, highways, * * * ” was not abrogated but merely limited in that the later articles operated to oblige the cities to seek to accomplish any such improvement through the State Highway Department, which, if authorized and permitted by the latter, would be furthermore subject to its control.

Additionally, in Art. 6673b, “Contracts with cities, etc., concerning State Highways” is to be found statutory authority for a city, whether a Home Rule city or not, to enter into contracts with the State Highway Commission relative to highway improvements within the municipal boundaries of the city. True, the same article states that the Commission’s entry into such a contractual relation shall be at its discretion, but that is not a question in the instant situation for the Commission did contract with the City of Arlington. Under such contract the city was authorized (if there be meaning thereunder), to construct the curb and gutter independently. Obviously it was in the exercise of sound judgment, in the interest of economy, that the city chose to and prevailed upon the State Highway Department to include the city’s portion of the work in an enlarged contract between the Department and the general contractor. Under such enlarged contract was satisfied the requirements of Arts. 6674d and 6674q-4 concerning the Departmental responsibility to exercise exclusive and direct control over highway improvements.

Title 23 U.S.C.A., particularly sec. 110, “Project agreements” and sec. 116, “Maintenance”, recognizes the authority or propriety of the state highway departments of the several states to have highway improvements (within contemplation of the Title) constructed at the expense of local subdivisions of the states.

The parties pose certain argument in view of V.A.T.S., Art. 6674c-l, “Contributions from counties or political subdivisions for roads therein”. We are of the opinion, and so hold, that this article neither expressly refers to cities nor should be deemed to include cities by any necessary implication.

There was no error on the part of the trial court in sustaining the municipal jurisdiction of the City of Arlington to make the special assessment for the cost of constructing the curb and gutter improvements in question. In view of our holding, the regularity of the procedure under and by way of which the assessments were levied under V.A.T.S., Art. 1105b, “Street improvements and assessments * * * ” is not a question on the appeal.

Judgment is affirmed.


author: WILSON, Justice.

text:
    The STATE of Texas et al., Appellants, v. John KIMBAUER et ux., Appellees.
    No. 4079.
    Court of Civil Appeals of Texas. Waco.
    Feb. 7, 1963.
    Rehearing Denied Feb. 28, 1963.
    Haley, Koehne, Fulbright & Winniford, Waco, for appellants.
    David G. Copeland, Waco, for appellees.
   WILSON, Justice.

Condemnors ask us to reverse the judgment in a jury condemnation case because of the cross-examination of condemnors’ witness by condemnee. The witness had expressed an opinion on direct examination that the value of the property taken was $9,500. This cross-examination ensued :

“Q. Mr. Lewis, about a year ago your opinion was stated to be different from that; you stated it to be your opinion right here in this court house it was worth $10,500 in the presence of two other witnesses?
“A. I would not say that I said it was worth $10,500.
“Q. You would not say that?
“A. No, I wouldn’t say that I said it was worth that. My estimation as to what the place was worth and what might have been said there might have been different. There were two other guys on that appraisal with me.
“Q. Is it true that you made the statement at that time that the land was worth $10,500? I am not trying to embarrass you.
“A. I think I agreed with the other two that I would go along with them on that price, but that was not my appraisal value of the property.
“Q. I didn’t ask what your appraisal was. I asked what you said a year ago.”

The court overruled appellants’ objection that the interrogation was improper as “going into matters that are not admissible.” It is asserted condemnee was erroneously permitted to interrogate the witness as to the amount of the award of special commissioners.

The award of the commissioners, of course, is not admissible in evidence on the issue of damages. Dueitt v. Harris County, Tex.Civ.App., 249 S.W.2d 636, 638, writ ref.; City of Houston v. Huber, Tex.Civ.App., 311 S.W.2d 488, 493; City of Corpus Christi v. Magee, Tex.Civ.App., 285 S.W.2d 236, 238; Chandler v. Bexar County, Tex.Civ.App., 258 S.W.2d 439, 440, writ ref., n. r. e.; Hatchett v. State, Tex.Civ.App., 211 S.W.2d 771, 772; Nowlin v. Denton County, Tex.Civ.App., 200 S.W.2d 865; Southern Cotton Press & Mfg. Co. v. Galveston Wharf Co., Tex.Civ.App., 3 Willson Civ.Cas.Ct.App. § 256; Giersa v. Dennison etc. Co., Tex.Civ.App., 45 S.W. 925, 926. It is said it should not be brought to the attention of the jury in any form, directly or indirectly. 6 Nichols, Eminent Domain, Sec. 26.731, p. 266; 18 Am.Jur. Sec. 355, p. 1001; and see State ex rel. State Highway Commission v. Artz, Mo.App., 45 S.W.2d 81.

The limited problem we are required to determine is whether reversible error is reflected by examination of the entire record. The witness served as one of the special commissioners appointed under Art. 3264, Vernon’s Ann.Tex.Civ.St. Condemnors called him, and qualified him as a licensed real estate broker engaged in the real estate business since 1946, and as being acquainted with values in the area. He testified on direct examination that he inspected the property involved about a week before the date of taking “for the purpose of arriving at a conclusion” as to the value of the property, and did “arrive at an opinion as to the reasonable market value.” His judgment as to such value was $9,500 “as it existed when” he “looked at it”. The cross-examination followed on which reversal is sought.

Condemnors elicited from the witness on direct examination that he was “one of the commissioners appointed by the court to appraise the property, and that he made the inspection narrated “in carrying out these duties”.

The commissioners’ award was $10,500. The jury found $15,000 to be the value of the land and improvements taken. One owner’s witness testified the property taken had a market value of $15,700; another that its value was $21,000. A condemnor’s witness expressed the opinion the value was $11,000; another, $9,500. Counsel for ap-pellees did not refer to the report of commissioners or the award. Evidence before the jury did not disclose the number of commissioners making the award, nor that one was made. The voluntary and unresponsive statement of the witness was only that “there were two other guys on that appraisal with me”, and he agreed to “go along with them on that price, but that was not my appraisal of the property”. It might be plausibly insisted that since appellant had attempted to strengthen the credibility of the witness by proving that he had been “appointed by the court to appraise” the property, and had arrived at an opinion as to the value pursuant to these duties shortly before the date of taking, the cross-examination was invited and the questions asked were not improper as an inquiry concerning expression of a prior inconsistent opinion, since counsel’s questions did not expressly refer to the award. It is not necessary for us to pass on this question. Although we recognize the question is a close one, in our opinion the complaint does not require reversal, under the entire record in this case. Appellants’ point that the award is grossly excessive is overruled. Affirmed.


author: BARROW, Justice.

text:
    Alma LANGEHENNIG et al., Appellants, v. Henry HOHMANN et al., Appellees.
    No. 14041.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 6, 1963.
    Rehearing Denied March 6, 1963.

      Robert I. Wilson, Kerrville, Roscoe Runge, Mason, for appellants.
    Alfred Petsch, Dooley & Hoerster, Fredericksburg, for appellees.
   BARROW, Justice.

This is an appeal of three companion cases which were heard together, by agreement of the parties, on motions for summary judgment. The appellants were the plaintiffs in the trial court, and they appeal from a judgment granting defendants’ motions. Appellants are two daughters of the late Wm. V. and Janie Hohmann, and ap-pellees are two sons of the couple. Other surviving children were joined as involuntary defendants and filed disclaimers. The suits were filed on behalf of all the surviving children of Janie Hohmann, to recover property alleged to belong to her at the time of her death.

The question presented by this appeal is whether or not the pleadings, the exhibits attached to the motions for summary judgment, and the affidavits on file, show there is no genuine issue as to any material fact. Rule 166-A, Texas Rules of Civil Practice; McDonald, Texas Civil Practice, § 17.26. In determining this issue, the burden of proof remains upon ap-pellees, and all doubts as to the existence of a genuine issue of a material fact must be’ resolved against appellees, and appellants are entitled to the benefit of every reasonable inference which can properly be drawn in their favor. Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233. The affidavits to be considered must contain statements of fact which the af-fiant knows and is able to substantiate on a trial of the case on its merits. Box v. Bates, Tex., 346 S.W.2d 317. An affidavit opposing the summary judgment must meet the requirements of Rule 166-A (e), and a mere sworn denial of the facts contained in movant’s affidavit is insufficient. Quarles v. State Bar of Texas, Tex.Civ.App., 316 S.W.2d 797, no writ history; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, writ ref. Certainly, the desirable procedure for raising fact issues in opposition to the affidavits in support of a motion for summary judgment is by filing opposing affidavits rather than by a sworn reply in the nature of answer to the motion as done by appellants in this case. We have liberally construed the sworn reply filed by appellants in opposition to each motion and have considered all facts contained therein. We have disregarded all conclusions and general denials. After applying these rules, the following is the factual background which applies to all three cases.

Wm. V. Hohmann died in 1933 and his will was duly admitted to probate. The will provides in part as follows: “After the payment of my just debts, funeral expenses and expenses incident to my last illness, it is my will and I hereby give * * * to my beloved wife, Janie Hoh-mann. the remainder of all property by me owned or interested in at the time of my death, be the same real, personal or mixed, separate or community, * * * in fee simple, with full power and authority to manage, sell or dispose of the same as she may wish or see proper, sales or conveyances of real estate however to be made with the joinder of my executor hereinafter named and appointed.” His son, Henry Hohmann, one of the appellees, was appointed and qualified as independent executor under the will.

For several years before his death, Wm. V. Hohmann and wife, Janie, were living in Fredericksburg, and their ranch in neighboring country was being operated by ap-pellees, Henry and Rudolph Hohmann. At the time of Wm. V. Hohmann’s death, there were substantial debts owing by his estate. The uncontroverted affidavits of the executor establish that all of these debts were paid prior to November, 1942. In November, 1942, Janie Hohmann, by bill of sale, conveyed to Henry and Rudolph numerous head of cattle, which were substantially the same number as shown in the inventory filed in the estate. On April 1, 1943, Janie Hohmann, by warranty deed, conveyed to Rudolph Hohmann all the ranch land which she and her late husband owned. This warranty deed recited the portion of the will set out above and further recited that all just debts, funeral expenses, and expenses of Wm. V. Hoh-mann’s last illness had been paid, and then provided: “That I, the said Janie Hoh-mann, an adult feme sole, joined by the said Henry Hohmann, as such independent executor under authority of said will of Wm. V. Hohmann, deceased * ⅜ This was followed by recital of the consideration and description of all the land in controversy here. The general warranty clause was made only by Janie Hohmann, although the deed was signed by her and Henry Hohmann as independent executor. On April 2, 1943, Rudolph executed a warranty deed in which he conveyed approximately half of this ranch land to Henry Hohmann. These deeds were promptly recorded and the uncontroverted affidavits show that Henry and Rudolph, together with their respective familities, occupied their lands without complaint from Janie Hohmann or any other person, until her death in May of 1960. In 1958 Janie Hoh-mann executed to Henry and Rudolph releases of the liens given as security for part of the purchase price. Janie Hohmann died testate and her residuary clause was for the benefit of her surviving nine children, share and share alike.

Appellants filed these three suits in September, 1960. Cause No. 3349 is a statutory trespass to try title suit against Henry Hohmann, individually and as independent executor of the estate of his father. This suit alleges that on April 1, 1943, appellants were wrongfully dispossessed of the described land by Henry Hohmann and his wife. The land involved in this suit is the land conveyed to Henry by Rudolph on April 2, 1943. Appellants allege that the deed of April 1, 1943, to Rudolph was a subterfuge and part of a conspiracy between Henry and Rudolph to obtain said lands, in violation of the law which prohibits an executor from purchasing assets of the estate. Appellants further allege that this conspiracy resulted in the land being held in trust for the benefit of all heirs of Janie Hohmann.

Cause No. 3350 was in the same trespass to try title form, but was against Rudolph to recover the land retained by him from the conveyance of April 1, 1943. Cause No. 3372 was against Henry and Rudolph jointly and was to recover the proceeds and increase from all livestock bequeathed to Janie Hohmann by her husband. Appel-lees pleaded the above deeds and bill of sale, and also pleaded the five and ten-year statutes of limitation in the suit filed for the cattle.

The crux of this appeal lies in the nature of the allegations of appellants. All three cases are based on appellants’ charge that the sales were void in that Henry Hohmann, as the executor of the Wm. V. Hohmann estate, could not purchase this land or the cattle in violation of Sec. 352, V.A.T.S. Probate Code. For the purpose of this appeal, we treat as true the allegation of appellants that the deed to Rudolph was a subterfuge, and will consider the deed as being direct to Henry Hohmann. It is significant that there are no allegations of fraud, duress or overreaching of Janie Hohmann, and there is no contention that she was a party to the alleged conspiracy between Henry and Rudolph. Sec. 352 of the Probate Code provides in part as follows: “The personal representative of an estate shall not become the purchaser, directly or indirectly, of any property of the estate sold by him, * * ⅜.” It further provides that in such event any person interested in the estate could make complaint and upon proof, the court administering the estate would set aside the sale.

The will of Wm. V. Hohmann conveyed a fee simple estate to his wife, Janie Hohmann. Art. 1291, Vernon’s Ann.Civ.Stats.; Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402; Seay v. Cockrell, 102 Tex. 280, 115 S.W. 1160; Prichett v. Badgett, Tex.Civ.App., 257 S.W.2d 776, writ ref. Furthermore, the will gave her full power of sale of all of said property, with the provision that the executor should join in the sales of real estate. Since all the debts of the estate were paid before the conveyances in question, the property belonged to Janie Hohmann at that time. The deed clearly reflects that the conveyance is from Janie Plohmann, and that Henry Hohmann joined merely pro forma. Since the land belonged to Janie Hohmann at the time of the conveyance, Henry Hohmann as executor was not barred under the above statute from purchasing same. In Ramos v. Rodriguez, Tex.Civ.App., 304 S.W.2d 274, writ refused, this Court held that § 352 Probate Code did not prohibit an administrator from purchasing an undivided interest of one or more co-owners of the estate he was administering. There is less reason to hold here that the individual owner could not sell to the executor, in the absence of an allegation of fraud practiced on the owner. Therefore, the trial court did not err in granting summary judgment for Henry Hohmann in Cause No. 3349. We do not see any application of this statute insofar as the conveyance to Rudolph is concerned, in that he was not a personal representative of Wm. V. Hohmann’s estate, and the trial court did not err in granting a summary judgment for him in Cause No. 3350.

Furthermore, the affidavits of Henry Hohmann and Rudolph Hohmann set forth facts to support their defense of these two suits under the five and ten-year statutes of limitation. They paid the taxes, fenced, improved and cultivated the land, leased out the hunting rights, and did other acts to show continuous and exclusive use of the land from April, 1943, until the filing of these suits in 1960. Appellants did not controvert these facts, but urge that the statute of limitations did not begin to run until the death of Janie Hohmann. There are no allegations to support a fiduciary relationship with her, and therefore these suits are barred by both statutes. Edwards v. Williams, Tex.Civ.App., 291 S.W.2d 783, no writ history; Dilbeck v. Blackwell, Tex.Civ.App., 126 S.W.2d 760, writ refused; Ryman v. Petruka, Tex.Civ. App., 166 S.W. 711, no writ history.

In their affidavits filed with their motion for summary judgment in Cause No. 3372, appellees set forth that the bill of sale given them by Janie Hohmann included all cattle owned by her. In their sworn reply to this motion and affidavits of appellees, appellants denied that all cattle were included in the bill of sale, although they did not attempt to enlarge upon this general denial. Even if we assume that appellants thereby joined issue as to whether Janie Hohmann owned other cattle, the summary judgment was still properly granted under the two and four-year statutes of limitation. There is no showing that Janie Hohmann, or any other person, ever claimed any of the cattle after her sale to appellees in November, 1942.

The judgment of the trial court is affirmed in all three cases.


author: LANGDON, Justice.

text:
    A. D. THOMPSON, Appellant, v. E. L. PECHACEK, Appellee.
    No. 16404.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 15, 1963.
    Bagby & Atkins, and Bill Atkins, Arlington, for appellant.
    Nelson, Montgomery & Robertson, and Charles B. Russell, Jr., Wichita Falls, for appellee.
   LANGDON, Justice.

This is a suit for damages on a written contract dated July 10, 1956, by which A. D. Thompson, appellant, leased his land and cattle to E. L. Pechacek, appellee. In his petition the plaintiff alleges that during periods in 1958 and 1959, cows and calves were lost, stolen or strayed and that appellee is liable to him for 70% of their value. That because he failed to keep fences in good repair the registered and nonregister-ed cattle were allowed to breed thereby reducing the value of registered stock; that cows and bulls were separated for more than three months resulting in the loss of production of 20 calves; that, appellee failed to cultivate certain lands which he was required under the contract to plant resulting in loss of rentals to appellant.

That because appellee failed to keep fences, corrals, houses, barns and other property in a good state of repair the appellant incurred necessary and reasonable expense to restore said property. That he was not reimbursed for $75.46 advanced by him for feed which was not used and that appel-lee sold water from tanks and retained the money. That the appellant through error overpaid appellee by $1,408.75 on cattle sold to date. Appellant prayed for the total of the damages alleged amounting to $9,440.89. In his answer to appellant’s petition the ap-pellee, E. L. Pechacek, subject to various exceptions, plead the 2 year statute of limitation. He alleged that the contract was terminated by agreement in the fall of 1956 after which John Pechacek, son of the ap-pellee, had assumed all obligations under the contract. That thereafter in 1959 the plaintiff and John Pechacek reached a complete and final settlement of all the items of damages alleged in plaintiff’s petition for the sum of $790.46. That a check in this amount was tendered by John Pechacek and accepted by the plaintiff in complete settlement. That it was agreed at the time that if any of the cows alleged to be lost were later found the plaintiff would pay John Pechacek for such cows.

John Pechacek is not named as a party to the suit and no relief is sought against him.

The case was tried before a jury and it found in answer to various special issues that 5 cows of the value of $150.00 each were missing at the final roundup in April, 1960, and that 4 calves of the value of $50.00 each were missing at the same time.

That E. L. Pechacek failed to repair and maintain fences and the ranch house and that the value of labor necessary to repair the fences was $200.00 and to repair the ranch house was “none”.

The jury found that E. L. Pechacek had not advised plaintiff that he desired to terminate the contract in 1956 so that John Pechacek could take over the contract and E. L. Pechacek would no longer be responsible.

In the final issue the jury found that “ * * * on or about October 4, 1959, when John Pechacek delivered the check for $790.46 to A. D. Thompson it was agreed between them that it would be in full satisfaction of all claims and controversies between them.”

Based upon the jury findings the trial court rendered judgment on March 21, 1962, that plaintiff, the appellant herein, take nothing by his suit against defendant, the appellee.

The appeal is based primarily on the proposition that the trial court erred in holding in effect that the agreement to settle for and the payment of the $790.46 constituted an accord and satisfaction and entering judgment for the appellee rather than to hold to the contrary and enter judgment for the appellant.

We think and the jury so found that the evidence on this trial was more than adequate to show that a full agreement as to the settlement of the various items claimed by the plaintiff under the terms of the contract in question and involved in this suit was arrived at and agreed upon by the appellant and John Pechacek and that there was an accord and satisfaction when John Pechacek made out his check in the agreed amount of $790.46 and handed it to the appellant.

In his brief the appellant cites two cases, Burgamy v. Davis, Tex.Civ.App., 313 S.W.2d 365 and Firestone Tire & Rubber Co. v. White, Tex.Civ.App., 274 S.W.2d 452. These cases, neither of which has any writ history, recognize the well settled rule in Texas that when a claim is unliqui-dated or disputed and the debtor tenders his check to the creditor marked “in full payment” or “payment of account in full”, the creditor is given the option either to accept the check as full payment or to return the check. The theory is that by cashing such a.check the creditor impliedly agrees to the conditions under which the check was tendered and there is a valid accord and satisfaction.

In this case, however, the parties had mutually agreed upon a settlement of all claims for the sum of $790.46. Thereafter the check in this amount was made out by John Pechacek and handed to the appellant who accepted it. Under these circumstances the appellant had no option. This settlement, mutually assented to by both parties in advance of the tender of the check, was fully executed and not executory. Nothing remained to be done by either of the parties to this agreement. There was an accord and satisfaction. The appellant’s claims arising out of the original contract upon which this suit was based were extinguished.

In an opinion by Judge Smedley adopted by the Supreme Court the Commission of Appeals in Alexander et al. v. Handley, 136 Tex. 110, 146 S.W.2d 740, 743, reviewed various authorities in setting forth the law in Texas concerning accord and satisfaction. The following is quoted from that opinion : “It is sufficient here to cite well-considered decisions in which executory accords have been enforced in favor of debtors who, in accordance with the terms of such agreements, tendered performance which the creditors refused to accept. (Omitting cited authorities.)

“It is our opinion that the correct rule applicable to the contract and the facts of the instant case is that thus stated by Mr. Williston: ‘If, however, it is the performance of the accord which is to be the satisfaction of the claim, the creditor may, on default in performance of the accord by the debtor, sue either on the accord or on the original cause of action.’ Accord and Satisfaction, Williston, 17 Harvard Law Review, pp. 459, 465; Williston on Contracts, 1920 Ed., Vol. 3, p. 3170, Sec. 1848. The substance of this rule is incorporated in Section 417 of the Restatement of the Law of Contract, which section is as follows :

“ ‘Except as stated in Secs. 142, 143 with reference to contracts for the benefit of third persons and as stated in Sec. 418, the following rules are applicable to a contract to accept in the future a stated performance in satisfaction of an existing contractual duty, or a duty to make compensation:

“ ‘(a) Such a contract does not discharge the duty, but suspends the right to enforce it as long as there has been neither a breach of the contract nor a justification for the creditor in changing his position because of its prospective non-performance.

“ ‘(b) If such a contract is performed, the previously existing duty is discharged.

“ ‘(c) If the debtor breaks such a contract the creditor has alternative rights. He can enforce either the original duty or the subsequent contract.

“‘(d) If the creditor breaks such a contract, the debtor’s original duty is not discharged. The debtor acquires a right of action for damages for the breach, and if specific enforcement of that contract is practicable, he acquires an alternative right to the specific enforcement thereof. If the contract is enforced specifically, his original duty is discharged.’

“The rules set out in the above-quoted section of the Restatement of the Law of Contracts make the obligations of a valid contract of accord binding both upon the debtor and upon the creditor.”

The Supreme Court of Texas in Pacific Employers Ins. Co. v. Brannon in 150 Tex. 441, 242 S.W.2d 185, speaking through Justice Garwood, again specifically approved the holding in Alexander v. Handley, supra, in the following language: “Perhaps another thesis of the Court of Civil Appeals is this: that, as a matter of general law, accords or executory contracts of compromise are without legal effect, until acceptance by the claimant of the agreed sum or other thing promised by the debtor or defendant, so that up until such acceptance, the claimant may withdraw at his pleasure; that, such being the law, the aforementioned practice of the Board to the contrary is itself ineffective as purporting finally to approve something, which is (in the language below) ‘no settlement’. But the first premise if not clearly erroneous prior to Alexander v. Handley, 136 Tex. 110, 146 S.W.2d 740 [supra], has been so since 1941 when that important clarification of our law on the subject matter was written. While the decision recognizes the classic theory that a mere accord does not necessarily supersede the original claim, it may yet be said to stand for the general proposition that, in effect, the accord unbreached by the debtor is a defense against suit on the claim.”

In 1 Am.Jur.2d, sec. 52 at page 348 it is stated: “If the accord constitutes a binding contract and it is fully performed, the performance satisfies the original claim and operates as a final bar to the demand or subject matter of the agreement for accord and satisfaction. So also, where the accord or new agreement itself is accepted in satisfaction, no action can be maintained on the old obligation. As a consequence, a valid accord and satisfaction renders unnecessary a consideration of the defense of the statute of frauds or of any defense on the merits to the items which were originally in dispute.” To the same effect see 1 C.J.S. Accord and Satisfaction § 36, p. 540.

The following rule is contained in the Restatement of the Law of Contracts, sec. 418, p. 789: “A subsequent contract may itself be accepted as immediate satisfaction and discharge of a pre-existing contractual duty, or duty to make compensation; and if so accepted the pre-existing duty is discharged and is not revived by the debtor’s breach of the subsequent contract.”

It is a question of interpretation whether a subsequent agreement between creditor and debtor means that this agreement itself shall immediately discharge the earlier duty, and be substituted for it, or whether it is only performance of that agreement that shall have that effect.

The rule of this section was announced by the Court in Gulf, C. & S. F. Ry. Co. v. Harriett, 80 Tex. 73, 15 S.W. 556 (1891). Quoting from Chitty on Contracts, the court said: “ ‘Upon the whole, the true distinction would seem to be between the cases in which the plaintiff has agreed to accept the promise of the defendant in satisfaction, and those in which he has agreed to accept the performance of such promise in satisfaction; the rule being that, in the latter case, there shall be no satisfaction without performance, while in the former, if the promise be not performed, the plaintiff’s only remedy is by action for the breach thereof, and he has no right to recur to the original demand.’ ” (Note this statement of the law appears to have been modified to some extent by the Supreme Court in Alexander et al. v. Handley, supra.)

In Ferguson-McKinney Dry Goods Co. v. Garrett, the Commission of Appeals of Texas, Tex.Com.App., 252 S.W. 738, 744, in an opinion adopted by the Supreme Court, approved the following statement of law set forth in the opinion of the Court of Civil Appeals which it had under review: “ ‘When parties agree that the promise shall be in satisfaction of the prior debt or duty, and it is accepted in satisfaction, then it operates as such, and bars the action on the old debt or duty. As to whether it has been accepted as such must be ascertained from the intention of the parties, and in case of dispute must be determined by the jury.’ ”

The appellant in this case contends that there was no accord and satisfaction because the check given him by John Pecha-cek had some conditions written on the back of it, the pertinent part reading, “If any of these cows appear I agree to pay John Pechacek for them.” That this condition was not in line with their agreement.

The appellee’s pleading alleges this condition as part of the agreed settlement and it is supported by the evidence considered by the jury. On cross-examination the appellant in response to questions concerning the endorsement stated in effect that he was not satisfied with the settlement and that he returned the check because he wanted to get more money. He further testified that if any of the cows appeared he would not have permitted John Pechacek to pay for them (cattle he did not lose). There was additional testimony that appellant was present and saw John Pechacek write out the check with the endorsement on it just before it was handed to him.

The appellant further argues, and the record so reflects, that after accepting the check on October 4, 1959, he returned it to John Pechacek in a letter dated October 6, 1959 and “there are no authorities holding that the returning of a check without consideration will amount to an accord and satisfaction.”

The following rule is announced in 1 C.J.S. Accord and Satisfaction § 37, pp. 542, 543: “Where the accord contemplates that payment, rather than the agreement for payment, of .a specified amount shall be satisfaction, the agreed amount must be paid and accepted in accordance with the agreement. Conversely, there is satisfaction where the agreed amount is paid and accepted in full settlement. * * *

“There is no satisfaction where execution of the accord is prevented by stopping payment on a check. However, where a check for the full amount agreed on is accepted in payment, the debt is discharged regardless of whether or not the check is presented for payment.”

In this connection see Rose v. Lilly, 170 S.W. 483 (Ark.), holding that after a check has been accepted as satisfaction a subsequent refusal to treat it as such and a failure to cash it will not revive the cancelled indebtedness.

In Columbus Mut. Life Ins. Co. v. National Life Ins. Co. of the United States, 100 Ohio St. 208, 125 N.E. 664, the court stated: “This defense tendered a valid plea of accord and satisfaction. The supplemental answer not only sets forth the contract of settlement, but alleges that the terms and conditions of said contract were carried out and the settlement completed with the payment by check for $200 which the plaintiff received and accepted in full compliance. If this allegation be true, the plaintiff below, after its acceptance of such check, and the payment by defendant of the costs of the action, as alleged, had no right to refuse to cash said check and to return same to the defendant. By its receipt and acceptance of the check of $200 without complaint the plaintiff thereby waived any cash consideration which it might have claimed, and acquiesced and accepted the check itself as full payment for damages it may have had against the defendant.”

See also Interstate Life & Accident Co. v. Wilson, 52 Ga.App. 171, 183 S.E. 672, to the same effect.

Finally it appears in the light of the authorities that all of appellant’s claims under the contract in question were extinguished when the check in the sum of $790.46 was handed to him following the agreement to settle. That if he has any action it must be against John Pechacek on the check and not against the appellee, E. L. Pechacek.

Under the law in Texas a liquidated claim as well as an unliquidated or disputed claim, such as the one involved in this case, may be discharged by an accord and satisfaction upon acceptance by the creditor of a lesser amount from a third person. The following rule is contained in the Restatement of the Law of Contracts, sec. 421, page 793, “A payment or other performance by a third person, accepted by a creditor as full or partial satisfaction of his claim, discharges the debtor’s duty in accordance with the terms on which the third person offered it. * * *

“Whether such a transaction as is within the rule stated in the Section is regarded as a contract between the creditor and the third person for the benefit of the debtor, or whether the third person is regarded as acting on behalf of the debtor as an agent whose act may subsequently be ratified, the result is the same.”

See also 1 Tex.Jur.2d, sec. 26, page 225.

Where there is a bona fide dispute between parties either as to the amount of ■a claim or as to ultimate liability thereon, and this dispute is settled by an agreement which has been executed, the matter is and should be at an end.

For the reasons and on the basis of the authorities above cited all of the points raised by the appellant are overruled and the judgment of the trial court is affirmed.


author: DIXON, Chief Justice.

text:
    LAWYERS SURETY CORPORATION, Appellant, v. SAN ANGELO TANK CAR LINE, LTD., Appellee.
    No. 16107.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 21, 1963.
    Strasburger, Price, Kelton, Miller & Martin, Hobert Price, Dallas, for appellant.
    Turner, Rodgers, Winn, Scurlock & Terry and Jerry N. Jordan, Dallas, for ap-pellee.
   DIXON, Chief Justice.

Lawyers Surety Corporation has filed its application for a writ of error pursuant to Art. 2249a, Vernon’s Ann.Civ.St., and Rules 359-363, Texas Rules Civil Procedure.

We have concluded that the application should be granted, the judgment against Plaintiff in Error should be set aside and the cause as to Plaintiff in Error should be reversed and remanded.

The record discloses that on December 29, 1959 Defendant in Error sued Casco Chemical Corporation in Tom Green County on verified account in the amount of $8,867.89, alleged to be due as rentals on tank cars. On the same date an affidavit and a bond were filed for a writ of attachment.

On February 10, 1961 the plea of privilege of Casco Chemical Corporation was sustained and the cause transferred to Dallas County for trial.

On November 1, 1961 judgment was rendered against Casco Chemical Corporation for the sum of $8,867.89 principal and against Lawyers Surety Company for the same amount.

The judgment recites that a writ of attachment had issued on December 29, 1959, that the Sheriff of Webb County, Texas, had levied upon 60,000 pounds of soya bean oil of the value of $11,000.00, which property had been replevied by Casco Chemical Corporation by executing a replevy bond in the amount of $11,000 with Plaintiff in Error, Lawyers Surety Company as surety. The judgment was rendered against Plaintiff in Error as surety on the replevy bond.

Plaintiff in Error, in connection with its application for writ of error, requested the District Clerk of Dallas County to include in the Transcript “everything on file in your office in this case.” It is not contended that the District Clerk failed to include all the documents on file.

However the Transcript does not contain a copy of any writ of attachment, or any copy of a Sheriff’s return thereon, or any copy of a replevy bond. There is nothing in -the Transcript except the recitations in the judgment to show that Lawyers Surety Corporation had anything to do with the case. And there is nothing in the Statement of Facts to so show.

In an effort to supply these omissions in the record Defendant has attached as exhibits to his brief uncertified copies of several documents, among them being copies of a writ of attachment, a copy of a Sheriff’s return showing levy of attachment on prop-erties valued at $5400.00, and a form of a .replevy bond in the amount of $11,000 made out in the name of Lawyers Surety Corporation as surety but not signed. There is no showing that a replevy bond was ever filed as required by Rule 606, T.R.C.P.

We cannot accept these ex parte exhibits attached to the brief of Defendant in Error in lieu of an official transcript of the documents on file with the District Clerk as required by Rule 376, T.R.C.P.; Texas & New Orleans R. R. Co. v. Hayes, 156 Tex. 148, 293 S.W.2d 484 ; 3 Tex.Jur.2d 647, 649.

Defendant relies on Olivares v. Garcia, 127 Tex. 112, 91 S.W.2d 1059 wherein it is held that it is not necessary to plead or prove the attachment proceedings, because the court takes judicial notice of attachment proceedings as part of the record in the case. Such holding can have no application here, for the alleged proceedings are not part of the record.

Even if we were to accept the ex parte copies offered by Defendant in Error in his brief we could not affirm the judgment against Plaintiff in Error, The copy of the Sheriff’s return shows that the Sheriff placed a valuation of $5400.00 on the property attached. The judgment recites the value of the property to be $11,000.00. Judgment was rendered against Plaintiff in Error for the full amount of the debt, $8,867.89. There is nothing in the record to support the Court’s valuation of $11,000.00. The judgment against the surety, on a re-plevy bond should be for the value of the property up to the amount of the judgment against the principal. Art. 302, V.A.C.S. See also Lowe & Archer, Texas Practice, Sec. 12, page 24 and authorities there cited.

The judgment of the trial court is reversed and the cause as to Lawyers Surety Corporation remanded for further proceedings.


text:
    L. E. LONG, Appellant, v. Madge A. LONG, Appellee.
    No. 16388.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 15, 1963.
    Homer L. Cox, Houston, for appellant.
    Mauzy & Mauzy and D. Bart Mauzy, Houston, for appellee.
   LANGDON, Justice.

L. E. Long, the appellant, brought this suit, a divorce action, against his wife Madge A. Long, appellee, in the usual statutory form. Trial was to the court without a jury. It resulted in a judgment in favor of the defendant denying the divorce, awarding attorneys’ fees to the defendant and assessing costs against the plaintiff. In response to the appellant’s request the trial court filed findings of fact and conclusions of law which included the following finding: “2. Although plaintiff and defendant each testified as witnesses in the case, neither testified that the plaintiff, L. E. Long was an actual bona fide inhabitant of the State of Texas for a period in excess of 12 months and resided in Harris County more than 6 months next preceding the filing of the petition for divorce herein.”

The appellant contends that the court in a divorce action may neither grant nor deny a divorce unless the plaintiff both pleads and proves that he has been an actual bona fide inhabitant of the State of Texas for a period of 12 months and a resident of the county where the suit was filed for 6 months next preceding the filing of the petition for divorce. That judgment of dismissal is the only proper judgment in such a case.

It is undisputed that the plaintiff in this case, who is the appellant on this appeal, properly plead the facts relating to residence as required by Art. 4631, Vernon’s Ann.Tex.St. His second amended petition filed January 22, 1962, containing such allegations was signed by him and by two attorneys representing him. Further the appellant signed the petition a second time under the usual recitations of a sworn pleading. He also alleged that his wife was a resident citizen of Harris County.

The sole question to be determined by this court is whether a party who by appropriate pleading invokes the jurisdiction of a court and is accorded a full and complete trial on the merits, but who fails to offer proof in support of his pleading as to jurisdiction of the court may because of such failure on his part set aside the judgment of the trial court which was adverse to him on an appeal.

We have concluded that he may not.

The opinion in the case of Panos v. Foley Bros. Dry Goods Co., Tex.Civ.App., 198 S.W.2d 494, contains a statement of the law which very adequately disposes of the question involved in this case: “It is true that appellant urges that the court was without jurisdiction to enter said judgment. But it cannot be questioned that the court had at least potential jurisdiction to enter such a judgment. ‘To permit one to invoke the exercise of a jurisdiction within the general powers of a court and then to reverse its orders upon the ground that it had no jurisdiction would be to allow one to trifle with the courts. The principle is one of estoppel in the interest of a sound administration of the laws whereby the regularity or even validity of an act procured by one himself ■cannot be raised- — not that the act is valid, for it may not be, and estoppel does not make valid the thing complained of, but merely closes the mouth of the complainant.’ Spence v. State National Bank, Tex.Com.App., 5 S.W.2d 754, 756. Without in anyway implying that the county court did not have the actual jurisdiction to approve and enter the agreed judgment, it is clear that the courts will not permit appellant to trifle with them by contending the county court did not have the jurisdiction to enter the judgment which he and his counsel joined appellee Settegast Realty in asking said court to enter.”

In the Commission of Appeals case affirming the judgment of the District Court and the Court of Civil Appeals, 294 S.W. 618, in the case of Spence et ux. v. State National Bank of El Paso et al., supra, it was stated: “But this irregularity, even though it be jurisdictional, will not avail plaintiffs in error. The plaintiffs in error having invoked the jurisdiction of the court to appoint a receiver of their property (the court having jurisdiction over the subject-matter), they will not thereafter be permitted to question the validity of such appointment for the want of jurisdiction.”

In the case of Harris v. Harris, Tex.Civ.App., 190 S.W.2d 489, the appellant-husband was appealing from a judgment of the trial court contending that the court did not have jurisdiction to try the case for the reason that the jurisdiction allegations were insufficient. The court in overruling the contentions of appellant stated: “Not only did appellant fail to obj ect, or except, in the trial court to this averment, but, as indicated by his cross-action, he so answered the allegations of appellee’s petition, thereby invoking the jurisdiction of the court on the merits, and seeking affirmative relief for himself; but he further, in fact, expressly admitted the truth of the quoted paragraph I of the wife’s trial petition, denying only her additional averments concerning the other subject matter of the suit.

“In this state of the record, it is plain, not only that appellant is in no position in this court to raise such question as to the court’s jurisdiction, but, if he were, it could not be sustained, since the quoted residential averment has been held anyway to be tantamount to alleging that she had resided in Galveston County for more than six months prior to the filing of her petition. Rule 90, Texas Rules of Civil Procedure; Prendergast v. Prendergast, Tex.Civ.App., 122 S.W.2d 710; Therwhanger v. Therwhanger, Tex.Civ.App., 175 S.W.2d 704.”

The following statement of the law is contained in 4 Tex.Jur.2d, sec. 766, pp. 275, 276, 277, “An appellant may not secure a reversal for error that he committed or invited. * * * The doctrine of invited error also precludes one who invokes the jurisdiction of a court from questioning the jurisdiction on review.”

In holding that the best proof of the residence requirements in divorce actions is the plaintiff’s petition, the court in Hill v. Hill, Tex.Civ.App., 205 S.W.2d 82, stated: “While Article 4631 is not a jurisdictional statute, it prescribes the qualification of the plaintiff to maintain a suit for divorce and requires that suit must be filed in the county where the plaintiff has resided for six months next preceding the filing of such suit. The residence of the defendant has nothing to do with the venue of divorce suits, and the only venue fact to be determined in the suit for divorce is the nature of the suit or cause of action. The best proof of such fact, being the plaintiff’s petition which need not be formally introduced in evidence since the trial court takes judicial knowledge thereof.”

It is significant to note that the record in this case does not contain one single word or statement which in any way questions the residence of the parties. The fact of residence is not denied even now.

Under the facts of this case the contentions urged by the appellant in questioning the jurisdiction of the court which was invoked by him are overruled. The judgment of the trial court is affirmed.