author: McDONALD, Chief Justice.

text:
    Mrs. Nell Edith LONG, Individually and as Independent Executrix of the Estate of Jon R. Long, Appellant, v. Mrs. Gene M. HALL, a Feme Sole, Appellee.
    No. 4333.
    Court of Civil Appeals of Texas. Waco.
    April 1, 1965.

      Wade, Davis, Callaway & Marshall, Thorp A. Andrews, Ft. Worth, for appellant.
    Nowlin Randolph, Robert L. Cole, Jr., Houston, for appellee.
   McDONALD, Chief Justice.

This is an appeal from an order overruling a plea of privilege.

Plaintiff, Mrs. Hall, brought this suit in Harris County against defendant, Mrs. Long, individually and as independent executrix of the estate of Jon R. Long, deceased, for damages for the wrongful sequestration of a Plymouth automobile, and for damages for conversion of a Cadillac automobile.

Defendant filed her plea of privilege to be sued in Tarrant County, the county of her residence. Plaintiff filed her controverting plea asserting venue in Harris County under subdivisions 8 and 9, Article 1995 Vernon’s Ann.Tex.Civ.St. After hearing, the Trial Court overruled defendant’s plea of privilege.

Defendant appeals, contending the Trial Court erred in overruling her plea of privilege because:

1) Plaintiff failed to make out a prima facie case of conversion or wrongful sequestration.
2) Defendant’s proof of title to the 2 automobiles in the estate of Jon R. Long, deceased, was not rebutted by plaintiff.
3) Plaintiff failed as a matter of law to prove title or right of possession to either of the two automobiles.

Plaintiff’s suit alleged that defendant wrongfully converted a Cadillac automobile which belonged to plaintiff; and wrongfully sequestered a Plymouth automobile which belonged to plaintiff; both occurrences taking place in Harris County. The record reflects that defendant is a resident of Tarrant County, and the surviving wife and executrix of Jon R. Long, deceased; that title to both the 1962 Cadillac and 1962 Plymouth automobiles was in Jon R. Long, deceased, as well as the registration for each year; that Jon R. Long handed his wife the keys to the Cadillac when he was in the hospital prior to his death, and she discovered the title papers to both automobiles in his office in Ft. Worth; that defendant and a Mr. Haberle went to Houston and picked up the Cadillac from plaintiff without protest. Plaintiff thereafter filed a suit claiming ownership of both the Cadillac and Plymouth. Defendant filed a cross action for the Plymouth and caused it to be sequestered by the sheriff of Harris County. Thereafter, plaintiff took a non suit in her suit, and defendant subsequently took a non suit on her cross action. Plaintiff testified she had possession of both the Cadillac and Plymouth; that she used them to go to work and for normal uses; that she claimed ownership of the 2 cars; that when defendant came to get the Cadillac she said: “Well it is my car, but if you are going to take it, there is nothing I can do about it”; and further said “I feel like this is my car.”

To maintain venue in Harris County, plaintiff had the burden of proving that a conversion and wrongful sequestration had taken place in Harris County. All occurrences took place in Harris County, so plaintiff’s burden was actually to prove ownership or right to possession of the 2 automobiles. The certificate of title (and all registration certificates) showed ownership in Jon R. Long, deceased. The certificates of title created a presumption of ownership and right to possession in the estate of Jon R. Long. Manning v. Miller, Tex.Civ.App., 206 S.W.2d 165, n. r. e.; Pritchett v. Highway Ins. Underwriters, 158 Tex. 116, 309 S.W.2d 46; Hoskins v. Carpenter, Tex.Civ.App., 201 S.W.2d 606, (n. r. e.). Plaintiff’s unexplained possession and her testimony that she claimed the cars and felt like they were hers in no way rebuts the presumption of ownership and right to possession established in defendant. Plaintiff offered no evidence as to the nature or basis of her claim. In such state of the record, plaintiff failed to prove either a conversion or wrongful sequestration. The Trial Court should have sustained defendant’s plea of privilege. Defendant’s contentions are sustained. The cause is reversed and judgment rendered transferring the cause to Tarrant County.

Reversed and rendered.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    T. R. UNDERWOOD, Appellant, v. J. D. LIVINGS, Appellee.
    No. 4331.
    Court of Civil Appeals of Texas. Waco.
    April 15, 1965.
    Rehearing Denied April 29, 1965.

      C. C. Divine, Houston, for appellant.
    Bill Hilford, Houston, for appellee.
   WILSON, Justice.

Plaintiff’s petition in this case prayed for determination of defendant’s interest in the tract of land in controversy, for accounting and partition. Defendant alleged he claimed under a regular chain of title, asserted adverse possession and an alternative claim for improvements. Defendant pleaded the land had been claimed as community property of himself and his deceased wife, and was their homestead. He prayed for an accounting. Plaintiff is the son of decedent by a previous marriage.

The court found the land was the separate property of defendant’s deceased wife (plaintiff’s mother); that it was not a homestead; that upon the death of defendant’s wife intestate the title passed to her son, the plaintiff, subject to a lien in favor of the community estate “for improvements thereon” plus an additional sum as “community debt for such improvements.” Judgment was rendered for plaintiff for title and possession, the judgment reciting that plaintiff had tendered to defendant the sums representing plaintiff’s portion of the improvement costs adjudged.

We have experienced difficulty in comprehending appellant’s position from the briefs. He first complains of the determination the land was the separate property of defendant’s deceased wife. It was stipulated she acquired the property by gift from her father before marriage. It was thus her separate property. Art. 16, Sec. IS, Texas Constitution, Vernon’s Ann.St.; Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328, 334.

Although he presents no point so asserting, and we again have difficulty in understanding his position, we interpret defendant’s brief as contending the plaintiff failed to establish a right to partition because the property was defendant’s homestead. The court did not order partition. If the contention (not so asserted) is that the evidence is inadequate to support the finding, we hold it is legally sufficient.

The final point is that if the land was the separate property of defendant’s deceased spouse, the court erred in ordering reimbursement for improvements. Appellant’s brief does not explain the point, and we would be justified in refusing to consider it. Appellee says appellant does not complain of the measure the trial court used, but agreeing with the measure, “wants to be reimbursed for 100% of the cost of improvements instead of adjusting the equities.”

The basis of reimbursement of the surviving spouse for improvements made by the community on the separate property of the deceased spouse is the amount of enhancement in value of the property. Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620, 628. See Lindsay v. Clayman, 151 Tex. 593, 254 S.W.2d 777.

The state of the evidence adduced by appellant on improvements made it difficult for the trial court to determine what reimbursement, if any, the community was entitled to. As to a “down payment” on a house built on the property, it appears contribution of the wife’s separate real property represented $1200 thereof, and appellant testified the remaining cash payment “could have been” her separate property. There is evidence from which the court could have inferred that the total cost of improvements paid for by the community funds was as much as $600, and that there is an outstanding $385 community debt for improvements. Judgment was based on these figures. There is no evidence as to the amount by which community improvements enhanced the value of the property. There is evidence from which the court could properly conclude that rentals collected by appellant exceeded community payments on indebtedness. Affirmed.


author: CLAUDE WILLIAMS, Justice.

text:
    Cloyce BOX et al., Appellants, v. ASSOCIATES INVESTMENT COMPANY, Appellee.
    No. 16482.
    Court of Civil Appeals of Texas. Dallas.
    April 16, 1965.
    Rehearing Denied May 7, 1965.

      Arthur Mitchell, Mitchell & Gilbert, Austin, for appellants.
    Robert R. Cole, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

This is the second appeal of this case. See Box v. Associates Investment Co., Tex.Civ.App., 352 S.W.2d 315.

Associates Investment Company brought this action against Cloyce Box and Boyce Box, alleging that they were partners doing business as Box Auto Sales. Plaintiff’s action was based on certain promissory notes which had been executed by various makers and payable to the order of Box Auto Sales. It was alleged that Box Auto Sales had transferred each of the notes to Associates Investment Company, for a valuable consideration, such transfer having been effectuated by written endorsement with “full recourse”. It was also alleged that, upon nonpayment of the various notes, the collateral for such notes had been sold and the proceeds of such sales applied to the same and judgment was sought for the remaining deficiencies. Cloyce and Boyce Box each filed a verified denial as to the existence of a partnership between them. In addition they pled, as affirmative defense, the statute of limitations as well as other special defenses. Following a nonjury trial judgment was rendered in favor of Associates Investment Company and against Cloyce Box and Boyce Box.

In their primary point on appeal appellants attack the action of the trial court in striking from the record their “First Supplemental Answer”. The original petition was filed on July 31, 1959. Appellants filed their original answer on September 4, 1959. Appellee did not thereafter amend its original petition. Approximately four and one-half years after the filing of the original answer, and on March 16, 1964, which was the date that the case was set for trial and was actually tried, appellants filed what they designated as “Defendants’ First Supplemental Answer” which included entirely new and additional defenses not previously urged by appellants, including a plea to the jurisdiction, a plea of usury, certain special denials concerning the performance of conditions precedent and a verified denial of the capacity in which appellants were sued. Appellee objected to the filing of such pleading on the grounds that it was not seasonably filed prior to seven days before trial date and also because said new pleading contained matters which came as a surprise. The court ordered the pleading stricken.

The pleading tendered on trial date by appellants was not truly a supplemental answer. Rule 69, T.R.C.P. It was really an amended answer. Rule 62, T.R.C.P. Rule 63, T.R.C.P. specifically provides that parties may amend their pleadings provided, that any amendment offered for filing within seven days of the date of trial, or thereafter, shall he filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such amendment will operate as a surprise to the opposite party. It has been firmly established that the action on the part of the trial court in granting or refusing the right to file amended pleadings within the seven-day period is a matter clearly within the discretion of the trial judge and his decision will not be disturbed on appeal unless the complaining party makes a clear showing of abuse of discretion. Davis v. National Acceptance Co., Tex.Civ.App., 233 S.W.2d 321; McKay v. Dunlap, Tex.Civ.App., 244 S.W.2d 278; Dyche v. Simmons, Tex.Civ.App., 264 S.W.2d 208; Domengeaux v. Kirkwood & Co., Tex.Civ.App., 297 S.W.2d 748; and First National Life Ins. Co. v. Herring, Tex.Civ.App., 318 S.W.2d 119. The burden is upon the complaining party to show that the court’s action in denying amended pleadings was arbitrary, or that it resulted in substantial and consequential injury. Weaver v. Bogle, Tex.Civ.App., 325 S.W.2d 457. We find no abuse of discretion reflected by this record nor do we find that appellants have met the burden of demonstrating injury or harm as a result of the striking of their belated pleading. No reason was assigned for the last minute filing. No effort was made by appellants to secure a postponement or continuance. Of course, the plea to the jurisdiction could have been filed and heard at any time. The substance of this plea was that the several matters alleged in ap-pellee’s original petition are separate and distinct causes of action, and that none of such causes of action, individually, involved an amount sufficient in value to come within the jurisdiction of the district court. While appellants did not urge this plea to the trial court, nor do they urge it in this court, had the same been urged it would have been overruled. It is well established that in an action involving a number of separate monetary claims the amount in controversy is ascertained by aggregating the separate claims asserted. McDonald, “Texas Civil Practice,” Vol. 1, p. 172, § 2.17; Texas City Tire Shop, Inc. v. Alexander, Tex.Civ.App., 333 S.W.2d 690, 693. Appellants’ Point 1 is overruled.

In a series of points appellants contend that appellee’s cause of action for the various deficiencies is barred by the two-year statute of limitations. Art. 5526, Sec. 4, Vernon’s Ann.Civ.St. Appellants argue that the cause of action here presented is not on a promissory note or written obligation, but on an implied contract of an endorser to make good to the holder any deficiency above the sale of collateral. Since the sale of the collateral securing each of the promissory notes was accomplished more than two years prior to the institution of this suit, appellants urge that the trial court erred in not sustaining their plea of limitation. They cite no authority directly in point and we are not impressed with the validity of their position. A review of the plaintiff’s petition together with the promissory notes, exhibits and other instruments introduced in support thereof, demonstrates that appellee’s suit was nothing more than a suit by an en-dorsee against endorsers who had, in writing, transferred said notes “with full recourse”. While the amounts sought by appellee against appellants were the balances existing after the sale of certain collateral security on the notes such fact does not change the nature of the basic cause of action from one on a written agreement to one on implied contract. We think the action was upon a written instrument and therefore governed by the four-year statute of limitations. Art. 5527, Sec. 1, V.A.C.S.; Guaranty Bond State Bank of Athens v. Fraternal Bank & Trust Co., Tex.Civ.App., 68 S.W.2d 305; Hester & Wise v. Chinn, Tex.Civ.App., 162 S.W.2d 450.

A charge that the trial court committed reversible error in arbitrarily restricting and limiting cross-examination by appellants of appellee’s witness Hommel, is made the basis of a series of points, grouped together for argument. We have carefully considered each of these points and find that they do not either singly or collectively reflect reversible error and should be overruled. In each of the matters complained of the inquiry sought is not shown to be material to any issue presented by the pleadings. In many instances the court permitted appellants to interrogate this witness, and other witnesses, on the same subject matter. In some instances the answers of the witness, not permitted by the trial court, are not presented to us by appropriate bill of exception. Finally, appellants have completely failed to demonstrate that the court’s action resulted in harm or prejudice to them. Rule 434, T.R.C.P.

We agree with appellant Cloyce Box that appellee wholly failed to establish by competent evidence that he was a partner with Boyce Box in the business known as Box Auto Sales. In the absence of the establishment of such partnership relationship there is no basis for the rendition of a judgment against Cloyce Box.

Since the case was tried to a court, without a jury, and there are no findings of fact or conclusions of law, the judgment necessarily implies all necessary fact findings in support thereof. We recognize that, in considering Cloyce Box’s points, we must determine whether there is any evidence to support the implied findings of the trial court that he was, indeed, a partner, and in doing so it is proper for us to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Lamb v. Ed Maher, Inc., Tex.Civ.App., 368 S.W.2d 255; Pittsburgh Plate Glass Co. v. Bragg, Tex.Civ.App., 383 S.W.2d 623. The issue of partnership was clearly raised by the pleadings of both parties. The denial of partnership placed the burden of proof upon appellee and it became necessary that it support the issue by competent evidence and not mere surmise or suspicion. J. Robert Neal, Inc. v. McElveen, Tex.Civ.App., 320 S.W.2d 36; Bolding v. Camp, Tex.Com.App., 6 S.W.2d 94; Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. A partnership, as contra-distinguished from other business relationships or ventures, is one in which the partners have entered into an express or implied contract for partnership that they had a mutual right of control over a common business; that they had an agreement to share profits; that they had an agreement to share the losses; or that they had a common business venture in mind. Art. 6132b, Sec. 7, et seq., V.A.C.S. (Uniform Partnership Act).

Appellee attempted to discharge its burden of proving a partnership by the testimony of its branch manager, Mr. W. M. Hommel, Jr. The substance of his testimony was that he had never dealt with Cloyce Box in any of the transactions involving Box Auto Sales, his entire business having been with Boyce Box. He said that he had been informed by Mr. Jack Liechty, the manager of appellee in Dallas, “that Mr. Cloyce Box was going to be a partner with Mr. Boyce Box." This testimony was properly stricken by the court as being hearsay. He testified that he had talked with Cloyce and Boyce Box either at Killeen, Texas or Waco, Texas, and that during these conversations they advised him that “they were going to be partners.”. On cross-examination he finally made the following admissions :

“Q. All right. Now, please, directing your attention to April of 1956. Will you tell this Court, please, sir, what evidence, what conversations, what statements were made to you by Mr. Box either Cloyce or Boyce, to indicate to you that Mr. Cloyce Box was going to be a partner?
“A. There wasn’t any direct statement made that they were going into partnership.
“Q. All right.”
* * * * * *
“Q. I just asked you, please, sir, if you can tell the Court now if any statement was made to you by Cloyce Box or Boyce Box at that first meeting in April, indicating that Mr. Cloyce Box was going to be a partner in Box Auto Sales and you told me no, didn’t you? Didn’t you just get through telling me that?
“A. Yes.
“Q. All right. You just assumed it, didn’t you ?
“A. Right.”
* * * * * *
“Q. Mr. Cloyce Box never dealt with you with anyone of these five transactions made the basis of this lawsuit, isn’t that correct?
“A. Correct.
“Q. And I believe you told us that the only reason you thought he was a partner is you just assumed it, is that correct ?
“THE COURT: He did say that. Let’s get onto something else.”

Mr. Hommel testified that he asked Mr. Cloyce Box to give him a financial statement, identified as Defendants’ Exhibit 2. He admitted, on cross-examination, that:

“Q. There is nothing on that, is there, Mr. Hommel, that Mr. Cloyce Box is a partner?
“A. No.”

All of the endorsements and assignments of the various notes to Associates Investment Company, were executed by Box Auto Sales by Boyce Box. Cloyce Box’s name does not appear on any of the negotiable paper.

Cloyce Box, in answer to an inquiry from appellee, wrote Mr. Hommel on December 20, 1957 in which he said, in part:

“As is well known to you, I was not connected with this venture save and except the fact that I did sign an agreement, the exact nature of which I am not familiar as I do not have a copy, but in essence I believe agreeing to guarantee any just and legal claim that your company might have in connection with this venture.
* * * * * *
“Inasmuch as Boyce is in the process of moving to Amarillo, Texas I have not had a chance to talk with him personally about this matter. However, I think in all fairness he must be given an opportunity to pay this obligation. Thereafter if he does not and such obligation a legal and binding one, the writer will make arrangements to pay it.”

Appellee made no effort to bring an action based upon a written guarantee as evidenced by this letter. From this summary of the testimony we are unable to say that there is any evidence of probative force that would establish the relation of partnership between Cloyce and Boyce Box as to the matters made the basis of this litigation. Hommel’s testimony is vague and uncertain as well as contradictory. He says nothing more than that Cloyce and Boyce Box “were to form a partnership.” There is no evidence whatever that they were partners at the time of the assignment of the notes to Associates Investment Company or at any other relevant time. There being no evidence of probative force to create a legal liability on Cloyce Box as partner with Boyce Box in Box Auto Sales, we hold that the judgment against him was improper.

The judgment of the trial court, insofar as it relates to Boyce Box, is affirmed. The judgment of the trial court as it relates to Cloyce Box, is reversed and here rendered that appellee take nothing against him. Costs are adjudged one-half against Boyce Box and one-half against Associates Investment Company.

Affirmed in part and reversed and rendered in part.


author: BATEMAN, Justice.

text:
    Walter R. HARVEY et ux., Appellants, v. STATE of Texas et al., Appellees.
    No. 16478.
    Court of Civil Appeals of Texas. Dallas.
    March 26, 1965.
    Rehearing Denied April 23, 1965.

      McKool & McKool, and Bill Jones, Dallas, for appellants.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, Don R. Stodghill and Jerome E. Dawkins, Asst. Dist. Attys., Dallas, for appellees.
   BATEMAN, Justice.

The State of Texas and County of Dallas condemned for highway purposes a portion of a tract of land owned by appellants Walter R. Harvey, et al. The jury found in response to special issues: (1) that the market value of the land taken was $18,440; (2) that the market value of the remainder of the land immediately before condemnation was $5,435, and (3) immediately after condemnation $3,675. The sole question presented for review is whether the trial court committed reversible error in admitting in evidence, and permitting the jury to take with them into the jury room, a certain chart known as State’s Exhibit 16 and marked S-16.

The record filed in this court consists only of the transcript and a partial statement of facts containing only the statements of counsel and the court in connection with the introduction of the exhibit complained of and other charts. The exhibit complained of is a large card on which is printed in red crayon:

S-16 ED WEISS

$18,440.00 Part Taken—

Imp. — $6000.00

Land — 12440,00

Per sq. ft. $1.10

Remainder:

Before— $5435.00

$760.00 After — 4675.00

Whole Property—

23,875.00 Before Taking

Appellants state in their brief that this exhibit was prepared by counsel for ap-pellees while their expert witness on values, Mr. Ed Weiss, was testifying and that the figures are those to which he testified as his opinion of the value of the land taken and the value of the remainder before and after condemnation. However, there is nothing in the record to this effect and, strictly speaking, in the absence of proper identification of the exhibit, it is not entitled to be considered by us. If we were to consider it we would nevertheless be compelled to hold that its admission in evidence and introduction into the jury room, in the light of the abbreviated record presented to us, did not constitute reversible error.

Although his only objection to the admission of the exhibit was that it was written by counsel for appellees and not by the witness Weiss, counsel for appellants now argues vigorously that to permit attorneys to make charts of their own witnesses’ testimony and put them in evidence, so that they make be taken into the jury room and considered by the jury in their deliberations, is highly prejudicial because it informs the jury of the effect of their answers to special issues and if the practice is sanctioned by the courts it will, in time, destroy the special issue system of submitting cases to juries. He cites a number of cases holding it to be error to permit similar objects to go into the jury room, but in only one of such cases had the object in question been admitted in evidence. That was the case of City of Denton v. Hunt, Tex.Civ.App., 235 S.W.2d 212, wr. ref. n. r. e., and in that case the appellate court made it quite plain that the exhibit had been admitted in evidence without objection and that the question of the admissibility of the chart was neither presented to nor passed upon by the court.

Nevertheless we have no difficulty in concluding that this chart was not admissible in evidence. It was not proof of any fact material to any issue being tried, being nothing more than the attorney’s memorandum of what a witness had testified. We can think of no purpose it would serve except to aid the jury to remember the testimony of a certain witness, and we agree with appellants’ counsel that the approval of such a practice would encourage the attorneys in every case to make similar charts of the testimony of all witnesses. This in our opinion would lead to much confusion, would unduly encumber records on appeal and would be contrary to the spirit, if not the letter, of Rule 281, Vernon’s Texas Rules of Civil Procedure.

It is not necessary for us to decide whether the objection made was sufficient to present the question of admissibility, for appellants have not carried the burden of demonstrating that the error was harmful or prejudicial to them or probably caused the rendition of an improper judgment. Rule 434, T.R.C.P. They argue that harm was shown by the fact that the jury findings as to value of the land taken and as to the value of the remainder before condemnation were in the exact amounts shown by the chart. To follow this reasoning we would have to assume that the jury were not capable of remembering the testimony of the witness, and then we would have to speculate that in attempting to do so the jury would have guessed at figures substantially higher than those given in his testimony and on the chart. We are unwilling to do either. In the absence of a complete statement of facts, we must assume there was in the omitted or excluded portion ample competent evidence to support the verdict. Rule 377, T.R.C.P.; Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683; Armstrong v. West Texas Rig Co., Tex.Civ.App., 339 S.W.2d 69, wr. ref. n. r. e.

For the reasons stated, we hold that no reversible error appears and that the judgment should be affirmed.

Affirmed.


author: DUNAGAN, Chief Justice.

text:
    ADMIRAL MOTOR HOTEL OF TEXAS, INC., Appellant, v. COMMUNITY INNS OF AMERICA, INC., Appellee.
    No. 115.
    Court of Civil Appeals of Texas. Tyler.
    April 15, 1965.
    Rehearing Denied May 6, 1965.

      David M. Kendall, Jr., Woodruff, Hill, Bader & Kendall, Dallas, for appellant.
    Edmund Benchoff, McAlister & Bench-off, Nacogdoches, for appellee.
   DUNAGAN, Chief Justice.

This is a venue case. The appeal is from an order of the District Court of Nacogdoches County overruling the plea of privilege of Admiral Motor Hotel of Texas, Inc., appellant, seeking to transfer the case to Tarrant County, Texas, the county of its residence. Appellee, Community Inns of America, Inc., controverted the plea relying upon Exception 23 of Article 199S, Vernon’s Ann.Tex.Rev.Civ. St. The venue hearing was had before the court without a jury. No findings of fact or conclusions of law were requested by either party.

Appellee instituted this suit against appellant seeking to recover upon two causes of action: first, the balance of an account for services rendered, and second, for damages for breach of contract. Appellee is engaged in the business of furnishing services for the organizing, franchising, advising and managing hotels, motor-hotels and motor-inns. In 1962 appellant became interested in the construction and operation of a motor-hotel in Arlington, Texas. It apparently sought the services of appellee and in May of 1963 requested services relating to the design and construction of appellant’s motor-hotel. It appears that the transaction whereby such services were to be rendered and the charges therefor were evidenced by a letter dated May 7, 1963, directed from appellant to Herbert O. Wilson, appellee’s president. Appellee alleged performance of the services; and that appellant had paid the sum of $1,500.00, leaving an unpaid balance of $3,500.00. Appellee alleged a demand for payment and a refusal by appellant. For convenience, this transaction will be referred to herein as the first contract.

Appellee’s petition alleged also the execution between the parties of a written contract dated October 4, 1962, under the terms of which appellant agreed to pay the appellee 5% of the gross income from appellant’s facilities in Arlington in consideration of the services to be rendered by it under the contract. The relevant portions of this contract provide that ap-pellee would provide a training system for and furnish a resident manager for appellant’s motor-hotel and that it would furnish to the appellant various professional services and programs for maintaining competent management of the facilities. The contract covered various items unnecessary to here relate but did provide for supervision of the operation of the motor-hotel by appellee subject to the approval of appellant. Provisions in the contract were made for audited reports and for the expenditure of funds derived by appellant from the operation of the motor-hotel. Either party to the contract could cancel the same upon giving ninety days written notice of such cancellation and by the payment of a $25,000.00 forfeit fee by the party seeking cancellation. It was further provided that should any dispute arise between the parties concerning the interpretation or performance of the agreement which could not be resolved, the dispute would be submitted to an Arbitration Board of three members, one member appointed by appellee, one member appointed by appellant and the two members thus appointed selecting the third member. A decision by a majority of the Arbitration Board, it was agreed, would be binding on the parties. For convenience and clarity, this transaction will be referred to herein as the second contract.

The only witness produced by appellee was Herbert O. Wilson, president of Community Inns of America, Inc., who testified, in substance, that appellee is a consulting management firm for hotels and motor-hotels and as a part of its business furnishes services to the owners of such establishments from the standpoint of installation, construction, designing and equipping new facilities. Subsequent to the opening of a hotel or- motor-hotel, appel-lee furnishes management services. Wilson testified that in addition to the written contract of October 4, 1962, appellee in 1963 performed other services for appellant. However, he did not explain why the obligation of appellant as shown by the letter dated May 7, 1963, was drawn in favor of Community Inns Supply Company, a separate and distinct corporation not a party to the lawsuit. He testified that after signing the contract of October 4, 1962, appellant approached him in Nacogdoches, Texas, requesting services in connection with the plans and designs of appellant for its motor-hotel then under construction in Arlington, Texas.

Wilson testified that he and his associates consulted with appellant’s architect, advising him on changes made during the construction of the motor-hotel, furnishing appellant with complete lists of equipment needed, and assisting it in obtaining bids on such equipment. Other related services in connection with the advice and consulting with appellant were furnished according to Wilson, who estimated that about 50% of such services were rendered in Nacogdoches County. The agreement for payment for such services was evidenced by the letter dated May 7, 1963, admittedly sent by Homer H. Newman, president of Admiral Motor Hotel of Texas, Inc., appellant, to the witness Wilson. Wilson admitted on cross-examination that appellee’s suit against appellant was based upon the letter dated May 7, 1963, and that there was due and owing thereon a balance of $3,500.00. It appears that ap-pellee has been paid $1,500.00 by appellant on the services rendered.

With reference to the second contract upon which appellee’s suit is based, Wilson testified that after the motor-hotel had been completed, pursuant to the contract, the appellee placed as manager in appellant’s new facilities H. R. Swarger. According to the witness, in January, 1964, he received a call from Swarger informing him that appellant’s president, Newman, had relieved him of his duties as manager and had ordered him oif the property. The witness contacted Mr. Newman with reference to the discharge of Swarger and was told that as far as the contract was concerned they “were through.” Witness Wilson admitted that under the terms of the contract, Newman had a right to discharge Swarger, but Wilson appeared to have expected Newman to contact him (Wilson) first. Wilson further testified that appellant never requested appellee to secure another manager to replace Swar-ger, but the witness admitted that he received a wire from appellant on January 12, 1964, in which Newman requested ap-pellee to get together with the Admiral Motor Hotel people and discuss the continued performance of the contract. The record does not reflect specifically what other transactions occurred between the parties with reference to adjusting the matter except that, according to this witness, the parties tried on several occasions to “get together” but had not worked the matter out before suit was filed. The evidence does not show whether either party attempted to settle the matter by arbitration as provided in the contract. Apparently, the only dispute or difficulty arising under the second contract related to the discharge of Swarger by appellant, although appellee’s witness admitted that appellant had the right to discharge him.

In order to defeat a defendant’s privilege of being sued in the county of his residence, when challenged, the burden is upon the plaintiff to allege and prove that the case is within one of the exceptions to Article 1995, Vernon’s Ann.Tex. Rev.Civ.St. of Texas. Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.2d 824 (1931); Johnson v. Dallas Cooperage & Woodenware Co., 120 Tex. 27, 34 S.W.2d 845 (1931); McMurtry v. Addington, 332 S.W.2d 407 (Tex.Civ.App.) 1960, no writ. The “venue facts” which the plaintiff must allege and prove in order to defeat the plea are those which are stated in the particular exception of Article 1995 applicable to the suit as alleged. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935). The burden is plaintiff’s to establish those venue facts by a preponderance of competent evidence. Hitchcock v. Pearce, 348 S.W.2d 408 (Tex.Civ.App.) 1961, no writ; Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63 (1941); Fagg v. Benners, 47 S.W.2d 872 (Tex.Civ.App.) 1932, no writ.

Appellee here relies upon Exception 23 of Article 1995 to maintain its suit against appellant in Nacogdoches County. Under the Exception aforesaid, suits against private corporations may be brought in the county in which the cause of action or part thereof arose. No other portion of the Exception has been invoked by appellee. The “venue facts”, therefore, which appellee had the burden to establish are: (1) that appellant is a private corporation; (2) that appellee has, in fact, a cause of action against appellant; and (3) that said cause of action, or a part thereof, arose in Nacogdoches County. Appell Petroleum Corporation v. G. W. Townsend Lease Service, 375 S.W.2d 547, (Tex.Civ.App.) 1964, no writ; Drexler v. Architectural & Commercial Sales, 375 S.W.2d 550, (Tex.Civ.App.) 1964, no writ; Uvalde Const. Co. v. Shannon, 165 S.W.2d 512, (Tex.Civ.App.) 1942, no writ. It being undisputed that appellant is a private corporation, the remaining “venue facts” necessary for appellee to establish in this case were: (1) that it did in fact have a cause of action against the appellant, and (2) that such cause of action, or a part thereof, arose in Nacogdoches County. Unless there is, in fact, a “cause of action” there could be no “part thereof” arising anywhere. Southern Farm Bureau Casualty Insurance Company v. Alexander, 326 S.W.2d 644, (Tex.Civ.App.) 1959, no writ; Home Ins. Co., New York v. Barbee, 166 S.W.2d 370, (Tex.Civ.App.) 1942, no writ; Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63, (Tex.Com.App.) 1941. Before we reach the question as to where the “cause of action” or a “part thereof” arose, we must determine whether appel-lee, by a preponderance of the competent evidence established, that it did, in fact, have a cause of action against appellant. It is not sufficient under this Exception to show merely a prima facie case or merely to introduce enough evidence to raise an issue — the plaintiff must establish by a preponderance of the evidence that he has a “cause of action” as alleged. Educators Mut. Life Ins. Co. of America v. Skinner, 146 S.W.2d 276, (Tex.Civ.App.) 1940, no writ. The existence of the cause of action is a venue fact. Crawford v. Sanger, 160 S.W.2d 115, (Tex.Civ.App.) 1941, no writ. This does indeed require appellee to twice prove its case — once on the venue hearing— and again on the merits; hut, as stated in Compton v. Elliott, supra:

“ * * * It is better to put the parties to the inconvenience of two trials of the issue than to deprive the defendant of the valuable privilege of making his defense on the merits in the county of his residence, when the facts to bring the case within the exception do not actually exist. * * * ”

The right to be sued in one’s own bailiwick is a valuable right, jealously guarded by the courts. Speed v. Chas. Lyon Co., 69 S.W.2d 147, (Tex.Civ.App.) 1934, no writ; Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969 (1951); Gunstream v. Oil Well Remedial Service, 233 S.W.2d 897, (Tex.Civ.App.) 1950, no writ; Reynolds & Huff v. White, 378 S.W.2d 923, (Tex.Civ.App.) 1964, no writ. Unless the plaintiff clearly discharges his burden of proof, the defendant is entitled to a transfer of the action.

There is no difficulty here in concluding that appellee wholly failed to prove that appellant was indebted to it on the account evidenced by the letter of May 7, 1963. Proof that appellant is indebted to Community Inns Supply Company, a corporation, does not establish a cause of action in favor of appellee, Community Inns of America, Inc., admittedly, by Wilson’s testimony, a separate and distinct corporation. Appellee offered no proof to show, and it does not otherwise appear in the record, that it ever acquired the account or chose-in-action from Community Inns Supply Company. The record does not explain why the money due for the services was payable to the latter or why it was not made a party to the suit. Warren Mfg. Co. v. Hoover, 223 S.W.2d 524, (Tex.Civ.App.) 1949, er. dism. Appellee must sustain venue on the cause of action alleged, Gilmer v. Graham, 52 S.W.2d 263, (Tex.Com.App.) 1932; Stradley v. Southwestern Life Insurance Company, 341 S.W.2d 195, (Tex.Civ.App.) 1960, ref., n. r. e., unless there is alleged and shown waiver, ratification or estoppel. Snow v. Prince, 13 S.W.2d 342, (Tex.Com.App.) 1929. There is no evidence in the record of waiver, ratification or estoppel and the trial court was not justified in overruling appellant’s plea of privilege as to the first contract.

With reference to the second contract upon which suit was brought, the testimony of Wilson, with which appellee is bound, showed that the main difficulty arising between the parties was with reference to the discharge of Swarger. As is admitted by appellee, his discharge was authorized by the contract. This being clearly evident, such conduct on the part of appellant did not constitute a breach of the contract. However, appellee argues that there has been an “anticipatory” breach of appellant of the contract, entitling it to bring the suit; and that such “anticipatory” breach occurred in Nacogdoches County thus entitling appellee to maintain venue in the county of suit.

If appellee established by a preponderance of the evidence that it in fact had a “cause of action” for anticipatory breach of contract, there would be no difficulty in concluding that Nacogdoches County is the proper county for suit. A “cause of action” within the meaning of Exception 23 of Article 1995, Vernon’s Ann.Tex.Rev.Civ.St. of Texas, consists not only of the genesis of the right, but of a breach of that right. United States Pipe & Foundry Co. v. City of Waco, Tex.Civ.App., 100 S.W.2d 1099, affirmed 130 Tex. 126, 108 S.W.2d 432, 1937, cert. den., 302 U.S. 749, 58 S.Ct. 266, 82 L.Ed. 579; Transit Grain & Commission Co. v. Snapp, 148 S.W.2d 233, (Tex.Civ.App.) 1941, no writ; Brown Cracker & Candy Co. v. Jensen, 32 S.W.2d 227, (Tex.Civ.App.) 1930, no writ; Ohio Oil Co. v. Varner, 150 S.W.2d 185, (Tex.Civ.App.) 1941, no writ; Panther Oil & Grease Mfg. Co. v. Schumaker, 166 S.W.2d 205, (Tex.Civ.App.) 1942, no writ. It follows that if appellee established the existence of the “cause of action” as alleged against appellant, suit could properly be maintained in Nacogdoches County upon proof that the contract was either made or breached there. In Early-Foster Co. v. A. P. Moore’s Sons, 230 S.W. 787, (Tex.Civ.App.) 1921, no writ, it was held that a “cause of action” within the meaning of the Exception of the venue statute permitting suits against private corporations in any county in which the cause of action, or a part thereof, arose, consists of the contract and its breach. The court held that the requirement of the Exception that “part” of the cause of action must have arisen in the county of suit is satisfied upon proof that the contract was made there. See also: United Appliance Corporation v. Boyd, 108 S.W.2d 760, (Tex.Civ.App.) 1937, no writ; Ed Friedrich Sales Corporation v. Deitrick, 134 S.W.2d 760, (Tex.Civ.App.) 1939, no writ; Tyler Bank and Trust Co. v. Athens Commission Co., 301 S.W.2d 710, (Tex.Civ.App.) 1957, no writ; Wood Motor Co. v. Hawkins, 226 S.W.2d 487, (Tex.Civ.App.) 1949, no writ. It seems to be established in the record that the contract of October 4, 1962, was made in Nacogdoches County which fact alone would have entitled appellee to maintain venue there if appellee had established that it did have, in fact, a “cause of action” for a breach or an anticipatory breach of the contract.

It is well settled in Texas that there may be an “anticipatory” breach of a contract so as to entitle a party to recover damages therefor. Hardeman-King Lumber Co. v. Hampton Bros., 104 Tex. 585, 142 S.W. 867, (1912); Englehart v. Volunteer State Life Ins. Co., 195 S.W.2d 798, (Tex.Civ.App.) 1946, ref., n. r. e. The principle, it is held, applies only where there is a repudiation of the contract before time for performance has arrived. Sinclair Refining Co. v. Costin, 116 S.W.2d 894, (Tex.Civ.App.) 1938, no writ. However, in order to constitute an anticipatory breach, a party must absolutely and positively refuse to perform the same. Such refusal must be unconditional and the renunciation of the contract complete. As stated in Lumbermens Mutual Casualty Company v. Klotz, 251 F.2d 499, (Ct. of Appeals, 5th Circuit) 1958, in discussing the Texas Law of anticipatory breach:

“ * * * To precipitate anticipatory breach, there must be a complete renunciation of the contract, a categorical claim that it never has been, or no longer is, valid and binding whatsoever.”

To the same effect, Ulen Securities Co. v. City of El Paso, 59 S.W.2d 198, (Tex.Civ.App.) 1933, err. ref.; Main v. Hopkins, 229 S.W.2d 820, (Tex.Civ.App.) 1950, no writ.

Applying these well settled principles, we hold that the evidence is insufficient to establish an anticipatory breach by appellant of the written contract of October 4, 1962. The testimony of Wilson does not show an unconditional and complete repudiation of the contract by appellant. Under Wilson’s admissions appellant, by telegram, had in effect proposed that the parties meet and discuss the continued performance of the contract. The record does not show why such efforts were unsuccessful. Further, although under the express provisions of the contract the parties agreed to arbitrate any disputes arising thereunder, appellee made no attempt to establish that appellant refused to arbitrate the matter or that it was by appellant’s conduct prevented from seeking arbitration. The law favors the settlement of disputes by arbitration and although contracting parties cannot oust courts of jurisdiction over the matter, where the parties have agreed, or are required by law to resort to a designated tribunal for adjustment of controversies, they must exhaust such remedy before seeking redress in the courts. Glass v. Hoblitzelle, 83 S.W.2d 796, (Tex.Civ.App.) 1935, er. dism.; Ferguson v. Ferguson, 110 S.W.2d 1016, (Tex.Civ.App.) 1937, no writ; Art. 238, Vernon’s Ann. Tex.Rev.Civ.St. It is our view that in order for appellee to establish an uncondi-tiona! repudiation of the contract so as to constitute an anticipatory breach, it was necessary to show appellant’s refusal to arbitrate the dispute. The evidence was insufficient to establish that appellee has, in fact, a “cause of action” for anticipatory breach of the contract of October 4, 1962, and the trial court erred in overruling the plea of privilege.

The judgment of the trial court is reversed and it is ordered that the cause be transferred to a district court of Tarrant County, Texas.

      . “May 7, 1963
      Mr. Herbert Wilson
      President
      Community Inns of America
      Nacogdoches, Texas
      Dear Mr. Wilson:
      The intent of this letter to confirm the conversation of our last visit to your office at which time it was agreed the following:
      Community Inn Supply Company shall receive an amount of $5,000.00 from the project at Arlington, known under the corporate title as Admiral Motor Hotel of Texas.
      Signed this J7_ day of May, 1963.
      ADMIRAL MOTOR HOTEL OE TEXAS
      /S/ Homer H. Newman
      Homer H. Newman,
      President”
      STATE

      . “23. Corporations and associations.— Suits against a private corporation, association, or joint stock company may be brought in the county * * * in which the cause of action or part thereof arose;


author: SHARPE, Justice.

text:
    MARYLAND CASUALTY COMPANY, Appellant, v. The GOLDEN JERSEY CREAMERY, Appellee.
    No. 89.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 22, 1965.
    Rehearing Denied May 13, 1965.

      John C. Wilson, of House, Mercer, House & Brock, San Antonio, for appellant.
    E. G. Henrichson, of Henrichson & Bates, Edinburg, for appellee.
   SHARPE, Justice.

This appeal is from a judgment rendered against Maryland Casualty Company, appellant, defendant below, in favor of Golden Jersey Creamery, appellee, plaintiff below, for the amount of $8,278.00, which ap-pellee sued for under a comprehensive general liability policy on account of a settlement in such amount made by it with Walter F. Long for damages to a tank-trailer used for hauling milk after appellant refused to recognize coverage in connection with such claim.

Appellant denied liability under exclusion (h) of its policy, reading in part as follows:

“(h) under coverage B, to injury to or to destruction of (1) property owned or occupied by or rented to the insured, or (2) except with respect to liability under side-track agreements covered by this policy, property used by the insured, or (3) except with respect to liability under such side-track agreements or the use of elevators or escalators at premises owned by, rented to or controlled by the named insured, property in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control * * * ”

Coverage B of the policy is as follows:

“Property Damage Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.”

Two special issues were submitted to the jury. In answer to Special Issue 2 the jury found that the collapse of the tank in question was not the result of an unavoidable accident. Special Issue 1 and the jury answer thereto were as follows:

“Do you find, from a preponderance of the evidence, that the tank truck belonging to Walter F. Long, Jr., was not under the care, custody or control of The Golden Jersey Creamery, its partners, agents, or employees, at the time of the collapse thereof on April 13, 1960?
“You will answer this issue: ‘It was not’ or ‘it was.’
“We, the Jury answer: It was not.”

Appellant urges twenty-one points of error. The first fifteen points assert that, for various reasons, the trial court erred in overruling appellant’s motion for instructed verdict at the close of the evidence in the case. Points sixteen, seventeen and eighteen assert error in the overruling of appellant’s objections to Special Issue No. 1 of the court’s charge. Points nineteen, twenty and twenty-one assert error in rendering judgment on the basis of Special Issue No. 1. Appellant’s points raise questions of no evidence, insufficient evidence, that the jury answer is against the overwhelming preponderance of the evidence, and concerning the sufficiency of the finding on Special Issue No. 1 to support a judgment in favor of appellee.

We find no merit in such points of error and affirm the judgment.

Appellee operates a creamery in Edin-burg, Texas. It maintained a raised concrete ramp on the outside of its building which was on an incline to facilitate the unloading of milk from tank trucks. Walter F. Long, Jr., who owned the tank-trailer in question, was a contract hauler for a Milk Producers Association and he would pick up milk at different dairies and deliver it to appellee’s dock at its creamery. The usual method of unloading the milk was for the driver of the truck to stop on said ramp and hand a hose and electric cord for operation of a pump on the tank to an employee of the creamery. It was necessary for a vent to be opened on the tank so that air could replace the milk when unloading and the driver of the truck usually manipulated the same. The damage to Mr. Long’s tank-trailer involved in his claim which appellee paid to him under a settlement agreement was caused by the negligence of one of appellee’s employees in unloading milk from said tank without properly venting it, causing it to collapse.

On the trial of the case three witnesses testified. They were Walter F Long, Jr., owner of said tank-trailer, Wesley Long, brother of Walter, who was the driver of the said tank-truck on the occasion when it was damaged, and Alfredo Salinas, the employee of appellee, whose negligence caused the said damage. The testimony of Wesley Long was, in substance, that on the occasion in question he had driven the tank-truck on to the unloading ramp at appel-lee’s creamery, had left it there, with the keys in the ignition, and had gone to Fal-furrias, Texas, at about 6:30 p. m., on Sunday evening, returning the following morning at about 7:30 a. m.; that the damage to the tank was then discovered by him. Alfredo Salinas testified that when he came to work at appellee’s creamery about 4:00 a. m., he noticed Long’s tank-truck on the ramp; that he needed the milk from it and he put the hose from the tank into a vat and plugged in the electric line to the pump in the usual way; that he thought he had adjusted the vent on the tank properly, but the wind must have blown it Qshut; that shortly thereafter the tank collapsed. The tank-truck was not moved from the place where Wesley Long had stationed it by Salinas or anyone else. The testimony of Walter F. Long, Jr., among other things, was to the effect that he was not employed by appellee and had no contract with it and was not paid by it; that he had never authorized anyone at the creamery to unload his truck; that he had examined the damaged tank at about 7:30 a. m. on Monday morning and the top lid (used as a vent) was bolted down solid and, in his opinion, could not have been placed in such position after the tank caved in. The jury could have believed that Salinas had not opened the vent at all when he attempted to unload the milk.

The case of Maryland Casualty Company v. Hopper, 237 S.W.2d 411 (Tex.Civ.App. 1950, n.w.h.) is closely in point. In that case the insured was engaged in the work of connecting certain lines to a storage tank. His employee failed to close a valve which allowed a seepage of gas into the tank and when the line was heated with an acetylene torch the tank exploded. At page 416 of the opinion, the Court said:

“It (Tank #2) was not in the care, custody or control of appellee, but was merely necessary or incidental to his work of laying and connecting the tanks with the well and with the gathering pipe line. The tanks had been installed by the Mapp Tank Company and were supported by a foundation and an embankment. We understand they were so firmly attached to the realty as to become a part of it. Certainly it could not have been contemplated by the owners of the leasehold estate that such real estate should be placed in the care, custody or control of appellee during his operations. He was merely permitted to use the tanks as well as the surface of the leased property for the purpose of accomplishing the work he was employed to do.”

The words “care, custody and control” have been held to mean “in charge of” or “in charge” by the decisions. See Great American Indemnity Co. of New York v. Saltzman, 213 F.2d 743 (8th Cir. 1954), in which, at page 748, the Court said:

“While the word ‘charge’ has a very broad and varied meaning (McLoughlin v. Shaw, 95 Conn. 102, 107, 111 A. 62), a person or thing is not ‘in charge of’ an insured within the meaning of the policy unless he has the right to exercise dominion or control over it.” (Emphasis supplied by the Court).

In the Saltzman case the insured parked his airplane on an airstrip and noticed another plane nearby. He got into the other plane, experimented with the controls, accidentally started the motor, which caused the said plane to crash into a hangar, resulting in extensive damage to it. The insurance company defended on the ground that the plane was under the care, custody and control of the insured. The court held that the insured was a trespasser and did not have the care, custody or control of the plane; that custody and control meant to place in charge of and it was not so contemplated or intended in that case. The negligent acts of the insured were not excluded under such circumstances and the insurance company was held liable on its policy.

In the case of Meiser v. Aetna Casualty and Surety Company, 8 Wis.2d 233, 98 N.W.2d 919 (1959), a sub-contractor’s employee, while plastering the walls and ceiling of a house, splashed plaster on its windows, which was later scraped off, but left the windows damaged. Suit by said sub-contractor against his liability insurance company was defended on the ground that he had the windows under his care, custody and control. At page 921 of the opinion the Court said:

“Where the property damaged is merely incidental to the property upon which the work is being performed by the insured, the exclusion is not applicable. * * * However, where the property damaged is under the supervision of the insured and is a necessary element of the work involved, the property is in the ‘care, custody, or control’ of the insured.”

The court held that the windows were not under the supervision and control of the insured and that he could recover under his policy.

As in Maryland Casualty Co. v. Hopper, supra, other cases place emphasis on the fact that the property in question was merely incidental to the work being done. More than this is required in order that an insured may be found to have the care, custody and control of property. See McLouth Steel Corporation v. Mesta Machine Co., 214 F.2d 608 (3rd Cir.1954); Cohen v. Keystone Mutual Casualty Co., 151 Pa.Super. 211, 30 A.2d 203 (1943); A. T. Morris & Company, Inc. v. Lumber Mutual Casualty Ins. Co., 163 Misc. 715, 298 N.Y.S. 227 (1937).

Appellant relies principally upon the case of Madden v. Vitamilk Dairy, Inc., 59 Wash.2d 237, 367 P.2d 127 (1961), which is distinguishable from the instant case. In Madden, it appeared that the driver would surrender to the dairy or creamery employees the possession, care and control of the milk tank-truck until it had been unloaded, washed, cleaned and returned to him. Such is not the case here. In this case, the fact that an employee of appellee would receive from the driver of the milk tank-truck a hose connected to the tank and an electric cord for supplying power to the pump on it, would not conclusively place the tank-truck in the care, custody and control of appellee. These steps were merely incidental to the receipt of milk by appellee, which was a necessary function in the operation of its business on the premises. Neither would the conduct of Salinas on the occasion of the damage to the tank-trailer here involved establish as a matter of law that it was in the care, custody and control ofoappellee. The trial court correctly submitted the controlling issue to the jury in this case and it was found favorably to appellee. The evidence is sufficient to support such finding and it is not against the overwhelming weight and preponderance of the evidence so as to be manifestly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The foregoing discussion disposes of appellant’s points one through fifteen and nineteen through twenty-one, and the same are overruled.

Appellants’ points sixteen, seventeen and eighteen, which assert error in overruling its objections to the court’s charge, do not find support in the record because of the failure to comply with Rule 272, Texas Rules of Civil Procedure. At the close of the evidence counsel for appellant dictated certain objections to the charge of the court which are shown only in the Statement of Facts. The record does not show that such objections were transcribed and presented to the court so that he could endorse his ruling and official signature thereon, nor that same were filed with the clerk in time to be included in the transcript, as is required by such rule. Under such conditions appellant’s objections are not properly preserved for review. Grabes v. Reinhard Bohle Machine Tools, Inc., 381 S.W.2d 395 (Tex.Civ.App., 1964, wr. ref., n. r. e.). However, it appears that with one exception the substance of the contentions involved in the objections made by appellant to the court’s charge are included within other of appellant’s points and have been considered by us. Such exception is the contention that the burden of proof was improperly placed on the single special issue submitted to the jury, herein-before set out. The said contention is not well taken and has not been urged by appellant on this appeal. For such reasons, appellant’s points sixteen and seventeen are overruled.

Under point eighteen appellant argues that the trial court erred in not sustaining its objections to Special Issue No. 1 of the court’s charge because an affirmative finding on such issue alone could not. support a judgment in appellee’s favor. Although this point is not in part properly preserved for review because, as heretofore stated, appellant’s objections to the court’s charge and the action of the trial court thereon are not properly shown by the record, there are additional reasons why the said point is not well taken. An objection that an issue included in the charge should not be submitted because it would not, alone or together with the submitted issues, support a judgment, is an inappropriate objection. The real complaint is of the failure to submit the additional issue which, together with the submitted issue, would support a judgment. Anderson v. Broome, 233 S.W.2d 901 (Tex.Civ.App.1950, n.w.h); Dean v. Safety Casualty Co., 190 S.W.2d 750 (Tex.Civ.App.1945, error ref’d want of merit). Hodges on Special Issue Submission in Texas, Section 71, page 176. Although the verdict of the jury alone would not support the judgment rendered herein, the record shows that it is based in part upon a written stipulation entered into between the parties which supplies the remaining elements necessary to support ap-pellee’s recovery. Said stipulation, in substance, provides that the policy upon which this suit is brought was in full force and effect on April 13, 1960, when the collapse of the milk tank took place; that such collapse happened on the premises of appellee and was caused by the creation of a vacuum inside the tank created by a pump utilized for the purpose of unloading milk from it; that $8,278.00 shall be considered the damages suffered by appellee as a result of such collapse; that no mention should be made of such stipulation within the hearing of the jury, and that no issues should be submitted to the jury concerning the subject matter of such stipulation. The judgment affirmatively shows that it is based upon such stipulation as well as on the verdict; together, they furnish ample support for its rendition. Appellant’s point eighteen is overruled.

The judgment of the trial court is affirmed.


text:
    Grady FAULK, Jr., Temporary Administrator of the Estate of John Robert Sandlin, Deceased, Appellant, v. CITY OF TYLER, Appellee.
    No. 119.
    Court of Civil Appeals of Texas. Tyler.
    April 1, 1965.
    Rehearing Denied May 6, 1965.
    William L. Richards, Andress, Woodgate, Richards & Condos, Dallas, for appellant.
    Troy Smith, Smith & Smith, Henry L. McGee, Jr., Tyler, for appellee.
   DUNAGAN, Chief Justice.

This suit arose out of an automobile collision in which a police interceptor automobile belonging to the City of Tyler and being driven by one of its police officers in the performance of his duty as a policeman, collided with an automobile driven by John Robert Sandlin. As a result, for all practical purposes the police car was a total loss. The City of Tyler sued Sandlin’s estate for damages, alleging negligence on the part of Mr. Sandlin. Sandlin’s administrator pleaded contributory negligence as a defense.

On trial to a jury, it found that Mr. Sandlin was guilty of negligence which was a proximate cause of the collision. The jury also found that the police officer was guilty of negligence which was also a proximate cause.

The trial court refused to recognize contributory negligence as a defense against the City and entered judgment for it for the amount found by the jury to be the damages suffered by reason of the damage to its automobile.

The appellant alleges in his first point that “when the City of Tyler as plaintiff sued for property damage to an automobile driven by its police officer, it was on the same footing as any other litigant and the contributory negligence of such officer causing the damage as found by the jury is available as a defense, and judgment for the City is wrong.”

The undisputed facts show:

(1) The City of Tyler is a municipal corporation operating under a Charter adopted pursuant to the Home Rule Amendment to the Constitution of the State of Texas.

(2) J. A. Barron, a police officer of the City of Tyler, at all times involved in this collision, was driving the City of Tyler’s police interceptor automobile in the performance of his duty as a police officer.

(3) The jury found that John Robert Sandlin, who was driving the automobile which collided with the City’s police car, was guilty of negligence which was a proximate cause of the injuries and damages caused by the collision to the City’s automobile.

(4) The jury likewise found J. A. Barron, the police officer, guilty of negligence which was a proximate cause of the collision and the resulting damages.

The administrator of the Sandlin estate, defendant in the court below and appellant in this court, contends that the contributory negligence of policeman Barron should be imputed to the City so that it cannot recover damages for its loss.

Appellant makes the following statement in his brief: “The only question here involved is whether, when a Home Rule City voluntarily goes into Court to seek recovery against a citizen, that citizen is deprived of the ordinary defenses to which he would be entitled against any other plaintiff. We do not have involved a question of the liability of the Home Rule City as defendant for the negligence of its employee, involving established principles of non-liability as a matter of public policy.

“It is our position that when a Home Rule City voluntarily casts off the robes of sovereignty, and stands before the bar in the same attitude as an individual litigant, its rights are determined and fixed by the same principles of law and equity as would have been rendered in a case between private individuals.”

It is elementary in Texas that municipalities are political sub-divisions of the state, and that their incorporation embraces nothing more than the creation of a governmental agency which becomes invested with such powers as the law confers. City of Goose Creek v. Hunnicutt, 120 Tex. 471, 39 S.W.2d 617, 1931; Corporation of San Felipe De Austin v. State, 111 Tex. 108, 229 S.W. 845, 1921; 39 Tex.Jur.2d 366, Municipal Corporations, Section 4.

As such sub-divisions of the State, exercising locally a portion of the powers of a State, such municipalities have no greater rights, immunities, or exemptions than does the State of Texas from which exclusively it derives its rights and powers.

Appellee’s contention is that contributory negligence, as a defense, is not available to appellant for the reason that at the time of the collision out of which the suit arises, the City was exercising a governmental function. The City urges that because the transaction involved the exercise by it of a governmental function it is shielded by its “governmental immunity” even to the extent of abolishing appellant’s defense of contributory negligence. It cannot be denied that the City was exercising one of its governmental functions on the occasion of the collision. It seems also to be conceded by all parties that the City, while exercising such a function, is protected by an “immunity” from liability for damages inflicted by the negligence of its employees and representatives. City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 81 A.L.R.2d 1180, 1960; Tompkins v. Williams, 62 S.W.2d 70 (Tex.Com.App.) 1933; City of Fort Worth v. George, 108 S.W.2d 929 (Tex.Civ.App.) writ ref.; Gotcher v. State, 106 S.W.2d 1104 (Tex. Civ.App.) 1937, n. w. h.; Brooks v. State, 68 S.W.2d 534 (Tex.Civ.App.) 1934, writ ref.; Prosser on Torts, 2d Ed., 1955, p. 774; State v. Brannan, 111 S.W.2d 347 (Tex.Civ.App.) 1937, writ ref.; 40 Tex.Jur.2d 302, Sec. 618 and page 311, Sec. 624. In short, under such circumstances the principle of respondeat superior does not apply to fix liability against the municipality. Gotcher v. State, supra; Dickerson v. State, Tex.Civ.App., 169 S.W.2d 1005, reversed by Supreme Court on other grounds, 141 Tex. 475, 174 S.W.2d 244. But an immunity from liability is not here involved. The City is not being sued and there is no attempt being made to fix liability against appellee. An immunity from liability enjoyed by the municipality cannot be extended to abolish defenses of a litigant who has been sued by it. Appellee voluntarily commenced this suit seeking damages against appellant. The application of the “immunity” doctrine here is unnecessary because there is no liability sought against the City and the latter therefore needs no “immunity” from liability. We do not believe ap-pellee is entitled to avoid the bar of contributory negligence when it has become a voluntary suitor seeking damages against another. The protection afforded municipalities through an immunity from liability while exercising governmental functions does not extend to shielding them from the defense of contributory negligence when urged by the adversary. When the City has voluntarily become the litigant seeking damages, it should not be immune from the defense urged here by appellant. No person, including a municipality, should be permitted to profit by its own dereliction of duty. To deny appellant’s defense of contributory negligence in this case would be affording to the City a shield unjustified and unnecessary to amply protect it in its immunity from liability when sued.

So far as we have been able to determine, there is no reported case in Texas directly involving the question insofar as a municipality is concerned. However, the above principle has been applied in Texas in a case where the State of Texas urged the contention here made by appellee. State v. Dickey, 158 S.W.2d 844 (Tex.Civ.App.) 1942, writ ref. for want of merit. This was a case in which the governmental authority, the State in this instance, sued for damage to its property, a bridge, caused by defendant’s negligence. The court discusses the matter of contributory negligence as follows:

“The first point relied upon by the State was alleged error of the court in refusing to sustain plaintiff’s special exception to defendants’ plea of contributory negligence. We think there is no merit in the contention. * * * In this case the State voluntarily made itself a party litigant and sought relief through the courts. It thereby subjected itself to all of the rules of procedure applicable to individuals similarly situated. State v. Elliott, Tex.Civ.App., 212 S.W. 695, writ of error refused. It is the settled policy of our law that contributory negligence by a plaintiff, proximately causing the thing complained of, will preclude a recovery even though it be found that the defendant’s negligence likewise proximately caused the injury. This established rule comports with both common sense and equity. No person should be permitted by a court to profit by his own dereliction of duty to another. 30 Tex.Jur., page 756, section 89. (Now 40 Tex.Jur.2d, p. 602, section 96.) We know of no rule of law by which the State would be immune from the general principles announced, under the circumstances involved here. The State is entitled to each and every right vouchsafed to any and all litigants, no more and no less. If upon another trial, evidence of probative force can be adduced tending to show that the State was negligent in maintaining the bridge in a safe condition for use by those invited to use it, it will be proper for the trial court to submit that phase of the case to the jury.”

The court found no competent evidence of contributory negligence in the record before it. But its approach intimates an attitude that would allow negligence of a municipal corporation contributing to an accident to bar recovery by the municipality even though it was not an authorized recovery against the municipality, because of the governmental function doctrine.

Another Texas case, City of Dallas v. Dickson (memorandum decision September 26, 1947, a copy of which was obtained from the Dallas Court of Civil Appeals with the briefs of appellant and appellee) presented the problem more squarely. The City of Dallas brought suit against a motorist for the value of its Magnolia tree, alleging that he had negligently knocked it down. The tree was located in a parkway in the center of a boulevard, and the negligence relied on consisted of defendant’s driving to the left side of the parkway in an alleged violation of statute and ordinance; because of an oncoming truck, defendant had to turn onto the parkway to avoid collision, and in so doing he struck the tree. One of the defensive pleas was that the City was con-tributorily negligent in failing to have any sign at the beginning of the divided boulevard directing traffic to keep to the right of the parkway. Evidence was introduced by defendant to show that the accident occurred on a dark and rainy night; at the intersection where the parkway began was complex and confusing, particularly to one who, like defendant, was a stranger to Dallas; and other drivers were frequently confused and entered the left roadway of the boulevard. The jury found that, in the light of all the circumstances, defendant was not negligent, but that the plaintiff, City of Dallas, was negligent in failing to have a directional traffic sign at the entrance of the divided boulevard, such negligence being a proximate cause of the damage. The trial court entered judgment for defendant on this verdict, and the City appealed.

The City, on appeal, contended that defendant was negligent as a matter of law, and that the City could not be held negligent so as to bar its recovery because the direction of traffic and erection and maintenance of traffic signs were governmental functions. Dickson maintained that even if his conduct was a technical violation of statute or ordinance, such as would usually be negligence per se, there were sufficient unusual exculpatory circumstances as to justify his acts and prevent them from constituting negligence in this particular case. He further contended that the City’s negligence contributing to its own damage could bar recovery by it, even though such negligence would not support recovery against the City, because of the immunity given under the governmental function doctrine.

The Dallas Court of Civil Appeals delivered the following memorandum opinion, per curiam:

“All points presenting error have been carefully considered and are overruled. This is an appeal from Dallas County Court at Law No. 2 and in view of an affirmance, a written opinion is not required. Western Life Ins. Co. v. Alcorn [Tex.Civ.App.], 153 S.W.2d 868.
“As grounds for above disposition, reference is made to appellee’s statement, authorities and argument in support of his second and fourth counterpoints.
“Affirmed.”

The second and fourth counterpoints referred to are the points mentioned above, that circumstances could excuse a technical violation of law, and that the City could be barred by its contributory negligence, even in connection with a governmental function.

Appellee contends that the case of Dickerson v. State, supra, overruled the Dickey case insofar as it applies to the instant case. In the Dickerson case the State was defendant and not plaintiff as in the case before us and the contention there was that the cause of action asserted was one sounding in tort, for which the State was not liable. The question we are confronted with in the ease at bar was not presented in the Dickerson case.

In the case of State v. Cloudt, 84 S.W. 415 (Tex.Civ.App.) 1904, writ ref., the court held:

“ * * * When a state appears as a party to a suit, she voluntarily casts off the robes of her sovereignty, and stands before the bar of a court of her own creation in the same attitude as an individual litigant; and her rights are determined and fixed by the same principles of law and equity, and a judgment for or against her must be given the same effect as would have been given it had it been rendered in a case between private individuals.” See State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707, 1943.

In the case of State v. Patterson, 14 Tex.Civ.App. 465, 37 S.W. 478, 1896, no writ hist, the court said:

“ * * * Before entering upon this consideration, we will remark that when a state appears before a judicial tribunal, though it may be a creature of her sovereign authority,-she appears as a suitor, and not in her sovereign capacity, and, as any other litigant, can only invoke such powers and jurisdiction as she has by her constitution and laws conferred upon the court before whom she has brought her action. For courts to recognize her in any other attitude, or draw a distinction in her favor against the humblest individual who appears before them, would be to stultify themselves, and subject their judges to the condemnation of the laws of the state in whose interest they sought to violate them. * * *

Even though the precise question before us was not involved therein, we think the principle of law announced in the Patterson and Cloudt cases has some bearing on the application of the law to the instant case.

The District Court of Appeals of Florida, Department of Public Safety v. Parker, 161 So.2d 886, in discussing the question of whether the State is subject to the defense of contributory negligence in a negligence action instituted by the State in a local court said:

“Apparently the precise question before us on this appeal has not hitherto been passed upon by an appellate court of Florida, although in many decisions the courts of other jurisdictions have done so. Those decisions have been collated in an annotation in 1 A.L.R.2d, pages 827-830 on the subject ‘Contributory negligence as defense to action by state, United States, municipality, or other governmental unit.’ The only eases cited therein in support of immunity from the defense of contributory negligence are two cases from New Jersey and one from Georgia. The leading case for this view is Mayor, etc., of City of Paterson v. Erie R. Co., 78 N.J.L. 592, 75 A. 922, 30 L.R.A.,N.S., 209 (1910).”

The Florida court then proceeded to discuss the decisions in other States on this question. The court in the Parker case further said:

“We, therefore, hold that, in order to present a proper image of Justice, the state, as the creator of the laws, may be subjected to the defense of contributory negligence in a negligence action instituted by the state in a Florida court.”

And the court continued:

“* * * We also hold that, although the plaintiff is a government entity, the defense of contributory negligence may be raised against it when it files an action for damages on account of negligence, * * See People v. Lang Transp. Corp., 43 Cal.App.2d 134, 110 P.2d 464 (1941), Blashfield, Cyclopedia of Automobile Law and Practice, Sec. 3180.

In City of Kalamazoo v. Priest, 331 Mich. 43, 49 N.W.2d 52, the City sued for damages to its fire truck and for injuries to its firemen, allegedly caused by defendant’s negligent operation of his automobile. The trial court directed a verdict for defendant on the ground of contributory negligence on the part of plaintiff’s employee in the operation of the fire truck. The Supreme Court of Michigan made this statement:

“ * * * Inasmuch as the statute has not relieved drivers of fire trucks from the same duties to maintain a lookout, to see and heed what is present to be seen, and, on the basis of such observation, to form a reasonable belief that it is safe to proceed, it follows inescapably that plaintiff’s driver must likewise be held to have been guilty of contributory negligence as a matter of law, barring plaintiff’s right to recovery. * * * ” See Department of Highways v. Jones, La.App., 35 So.2d 828; Department of Highways v. Fogleman, 210 La. 375, 27 So.2d 155; City of Baraboo v. Excelsior Creamery Co., 171 Wis. 242, 177 N.W. 36.

The State, it is said, by instituting suit submits its claim as a private litigant and subjects itself to all of the defenses available to such litigants. Frequently this and other similar pronouncements are accompanied by the shibboleth that sovereign immunity may be used as a shield but not as a sword. These are not reasons — they are simply statements of a conclusion. State of Oregon v. Shinkle, 231 Or. 528, 373 P.2d 674, 1962.

The court in the case of the State of Oregon v. Shinkle, supra, said:

“ * * * Here the state employs the machinery of justice to enforce a claim and yet it seeks to deny the defendant a defense whieh would be available to him as against any other plaintiff. There is an appearance of unfairness in the state’s position — the spectacle of a participant in a contest rejecting the ordinary rules of the game by which others must play. Although the state’s claim of immunity in such a case is logically no more unreasonable than where the state asserts its immunity as a defendant, the fact that the state initiates the proceeding puts the matter in a setting which runs counter to generally accepted notions of fair play. The state as the creator of laws, should not present such an image of injustice.”

We are not unmindful of the rule that has been referred to as the New Jersey rule as shown by cases such as City of Paterson v. Erie R. R. Co., 78 N.J.L. 592, 593, 75 A. 922, 30 L.R.A.,N.S., 209 (1910), and others.

The so called New Jersey rule has been criticized by various writers, Cowan, Reform in the Law of Torts, 14 Rutgers L. Rev. 356, 369 (1959); Comment, 14 Rutgers L.Rev. 211 (1959); Note, 15 Rutgers L.Rev. 98 (1960); 24 Tex.L.Rev. 227 (1946); 26 Tex.L.Rev. 510 (1948); Gruschow v. New Jersey State Highway Dept., 56 N.J.Super. 146, 152 A.2d 150 (1959); and the doctrine of immunity of municipalities has been in recent years relaxed in New Jersey. McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820, 88 A.L.R.2d 1313 (1960). Certainly the trend of modern authority is in the restriction of the immunity — not in an extension thereof.

However, we believe the principle enunciated in the case of State v. Dickey, supra, appears to be sound and a better reasoned authority. The Paterson case is the leading case supporting the contention of appellee. The view expressed in the Paterson case has been criticized. State of Oregon v. Shinkle, supra. A note to the Paterson ease in 30 L.R A.N.S., 209 (1911) takes issue with the court’s logic. The contents of the note in part are as follows:

“It is true that many of the decisions exonerating a municipality from responsibility for negligent injury inflicted by its agent upon a third person are apparently referred to the proposition that the doctrine of respondeat superior or of imputed negligence does not apply where the agent is performing one of the public functions of the municipality. This formula serves well enough the practical purposes of such a case, but it does not reflect the real reason for the municipality’s immunity, and is misleading when used, as in [City of] Paterson v. Erie R. Co., as the basis for an inference that the contributory negligence of the agent will not prevent a recovery by the municipality against a third person.
"* * *
“In this view the premise assumed by the court, namely, that the negligence of the driver of the fire engine was not imputable to the municipality, and the conclusion based thereon that such negligence would not preclude a recovery by the municipality against the railroad, are left without any substantial foundation. It is a long step from the assumed nonliability of tthe municipality for an injury inflicted upon a third person by the negligence of the driver of the fire engine, to the liability of the railroad company to the municipality for injury to its property notwithstanding the negligence of the driver to whose care it was entrusted. The question deserves more consideration than the court in the reported case appears to have given to it.”

A discussion of the question before us may be found in Vol. 24, Texas Law Review, page 227 and Vol. 26, Texas Law Review, page 510.

The view we adopt here appears to be not only the Texas view, but is the ma-jonty view of the courts that have passed upon the question. 1 A.L.R.2d 828;, City of Newark v. United States, 3 Cir., 254 F.2d 93 (1958); State of Oregon v. Shinkle, supra. We hold that the immunity of a municipal corporation from liability for negligence in connection with any public or governmental activity should not be extended to shield such municipality from its contributory negligence in its own suit against a private defendant. We believe the view we have taken on the question presented reaches a sound and just result and does no violence to the “immunity from liability” to which appellee is entitled.

In view of the disposition we have made of this case under appellant’s point 1, it is unnecessary to pass upon the other points of error assigned by appellant.

Judgment reversed and rendered for appellant.