author: BELL, Chief Justice.

text:
    CITY OF HOUSTON, Appellant, v. Ross BIGGERS et al., Appellees.
    No. 14298.
    Court of Civil Appeals of Texas. Houston.
    June 11, 1964.
    Rehearing Denied July 9, 1964.

      R. H. Burks, City Atty., Joseph G. Rollins, Clifton E. Speir, Senior Asst. City Attys., Houston, for appellant.
    Bracewell, Reynolds & Patterson, William H. White, Houston, for appellees.
   BELL, Chief Justice.

This is an appeal from a judgment in a condemnation case awarding appellant title to 128,520 square feet of land in the City of Houston and giving appellees recovery against appellant for $1,157,615.00 which was the value of the land as determined by a jury.

Appellant complains that the trial court erred in not granting its motion to dismiss the case which motion was made after verdict but prior to the rendition of judgment. The position of appellees is that because of the acts on the part of appellant hereinafter noticed there had been “a taking” of the property before the motion to dismiss was made and the point of no return had therefore been reached by appellant.

On April 3, 1962, the Judge of the court, in response to a petition filed by appellant, appointed commissioners to determine the value of appellees’ property. The property was to be acquired by appellant as a part of the “Civic Center.” After hearing, the •commissioners, on June 22, 1962, made their award and it was filed with the judge July 6, 1962. On the same day appellees filed their objections to the award. Trial of the case in court commenced March 25, 1963. The jury returned its verdict March 29, 1963. On April 3, 1963, the City Council passed a motion authorizing the City Attorney to dismiss the case and directing him to prepare an ordinance eliminating appel-lees’ property from the “Civic Center.” On April 4 the motion to dismiss the case was filed. It recited the action of the Council in •determining not to purchase the property at the value assessed and to exclude the property from the Civic Center and authorizing ■dismissal of the case.

On April 19 appellees filed an answer to the motion to dismiss and made a motion for judgment on the verdict. The basis of the opposition was that because of the appellant’s acts with regard to the property, which we will specifically notice when we review the evidence given on the motion, appellees would be prejudiced by dismissal.

On April 19 appellant filed an amended motion to dismiss which attached a copy of an ordinance passed April 17 purporting to exclude the property from the Civic Center.

A hearing was commenced on the motion to dismiss on April 19, at which evidence was introduced, but it was not completed and was recessed until April 26. However, the court rendered judgment on the verdict April 19. At that time, as evidenced by the judgment signed by the court, appellant excepted to the judgment, and it was also recited therein that the motion to dismiss had been filed.

On April 26 the hearing on the motion to dismiss was resumed and at that time appellant filed what it denominated “Motion to Set Aside Judgment and Enter Judgment of Dismissal.” It added an ordinance of April 24 passed by the City Council which definitely excluded appellees’ land from the Civic Center. After further evidence was introduced the motion to dismiss was overruled.

The evidence on the motion to dismiss reflected without dispute that appellant had never taken physical possession of the property or any part thereof and that no deposit of the amount of the award made by the commissioners had ever been made so as to give appellant the right to possession. It showed that September 23, 1958, the City Council passed an ordinance determining that “Public necessity and convenience required the designation and protection of the Civic Center.” The Civic Center was then designated as covering a defined area including appellees’ land. It further provided that within the area no new structures would be permitted to be built and no repairs to existing structures would be permitted where the cost of the repairs in one calendar year exceeded 25% of the value of the structure repaired. The Director of Public Works and Engineering was directed to refuse any permit to build new structures or to make repairs contrary to the ordinance.

Mr. Ross Biggers, one of the appellees, testified that since the passage of the ordinance appellees had made repairs to the existing structure by putting on a new roof. He had made no application for any permit for a new structure. There is no evidence that appellees contemplated any new structure or additions to the existing structure. Appellee operated a printing business on the property. The operations, including the use of the building and parking facilities, utilized an estimated 5% of the property. Appellees at no time sought amendment of the ordinance to exclude their property. It appears that prior to 1961 the City assessed the property for taxes at a relatively small amount, and beginning in 1961 raised the valuation from $6,950.00 to $217,000.00. Mr. Biggers made it clear that all values for tax purposes, both before and including the increase, were those fixed by the City and not appellees. The owners did not render the property nor was there any appeal to the Board of Equalization. In 1961, when there was this great increase Mr. Biggers appeared before the City Council to protest the increase when he could not utilize the property further because of the ordinance and increase his revenue. He did not, he testified, appear to protest that the amount of the increase exceeded what was a fair value for tax purposes. At that time someone on the Council told him not to worry, the City was going to take the property.

The evidence showed that at times after the passage of the ordinance of September, 1958, appellees had had various people who were interested in negotiating for purchase of the property but ended negotiations when it was learned the property was under threat of condemnation. It should be stated that appellant had the ordinance creating the Civic Center filed in the Deed Records of Harris County. The ordinance in fact directed the City Secretary to file a certified copy with the County Clerk. One advertiser wanted to lease space from appellees for a sign at $500.00 per month but lost interest when he learned of the threat of condemnation. It does not appear just when this interest was shown but the letters introduced in evidence are dated in 1961 and 1962.

As above stated, the City Council, by motion, on April 3, 1963, directed dismissal of the suit and the preparation of an ordinance excluding this property. An ordinance, which is numbered 63-544, was passed April 17, 1963. In the ordinance it was found by the Council that the value as found by the jury exceeded the benefit that would result to the public from acquisition of the property. Section 2 of the ordinance recites that the Council finds and determines that the ordinance of September 23, 1958 (Ordinance No. 58-1033) should be amended so as to exclude this property. It directed the City Secretary to file a certified copy for record with the County Clerk. It was purportedly passed as an emergency measure. Appellees contend this ordinance did not take effect immediately because not shown to have been supported by the proper number of Councilmen. Also, they contend, it merely declares the land should be excluded but does not specifically enact that it is thereby excluded. On April 24 the Council passed Ordinance No. 63-560, which definitely excluded appellees’ land.

In testifying as to value in the condemnation hearing before the jury, Mr. Ross Biggers, one of the appellees, testified the property had a market value of $1,285,200.-00, or $10.00 per square foot. One of ap-pellees’ experts testified the same and another testified to $1,250,000.00. Mr. Jung-man, one of appellees’ experts, testified for several years there had been a rising market and gave as his opinion that the property in the area was increasing at about 16% per annum. Mr. Biggers testified he would rather have the property than get $10.00' per square foot for it.

Appellees’ position is that because of the facts detailed the court was correct in overruling the motion to dismiss. The foundation for such is their contention as follows:

1. The passage of Ordinance No. 58— 1033 and its continuance in force until the ordinance of April 24, 1963 effected a “taking” of the property.

2. They would be prejudiced because' they had been unable to negotiate for the sale or additional use of the property that might entail additional structures.

3. They had been put to expense in connection with the proceedings.

4. Appellant could, after dismissing the suit, refile and possibly get a lower award. In this connection they seem to assert this is the real purpose in seeking to dismiss. In other words, they challenge the good faith of appellant.

We are of the view that the court was in error in not sustaining the appellant’s motion to dismiss.

The rule is well settled in Texas that a condemnor may elect to dismiss a condemnation proceeding at any time prior to judgment if there has been no taking of possession of the property under and by virtue of acquiring the right to possession under an order in a condemnation proceeding or under an agreement with the condemnee pending the proceedings. Brazos River Conservation and Reclamation Dist. v. Allen, 141 Tex. 208, 171 S.W.2d 842; Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953; Lower Nueces River Water Supply Dist. v. Cartwright, 160 Tex. 239, 328 S.W.2d 752; Leonard v. Small, 28 S.W.2d 826 (Tex.C.C.A.), writ ref.; Brazos River Conservation and Reclamation Dist. v. Harmon, 178 S.W.2d 281 (Tex.C.C.A.), ref., w. m.; Board of Regents of State Teachers College v. Kelley, 208 S.W.2d 565 (Tex.C.C.A.), no writ hist.; Rook v. McCulloch County, 326 S.W.2d 603 (Tex.C.C.A.), no writ hist.; Nehoc Land Co. v. City of Houston, 342 S.W.2d 42 (Tex.C.C.A.), ref., n. r. e.; Houston Pipe Line Company v. Brown, 361 S.W.2d 884 (Tex.C.C.A.), ref., n. r. e. See also Nichols, The Law of Eminent Domain, 3rd Ed., Sec. 26.42, p. 192.

In many of the cited cases the expression is used that there may be dismissal where the landowner “will not be prejudiced.” It was then held there was no legal prejudice in any of them except those where prior to attempted dismissal there was actual physical possession under and by virtue of condemnation proceedings, or, possession by agreement pending condemnation and at the time of attempted dismissal possession had not been returned or offered to be returned;

In this case it is undisputed that appellant at no time had possession of the land or any part thereof.

The passage of the ordinance including the land in what was contemplated as a Civic Center did not, as appellees contend, constitute a taking. The act was purely legislative and could be changed at any time. Even though it might have, as a practical matter, interfered with the marketability of the property, it would cause but an incidental damage which is not compensable. The fact that at some future time land might be taken under eminent domain, even where the threatened taking is imminent, is but one of the conditions on which an owner holds property.

In the case of State v. Vaughan, 319 S.W.2d 349 (Tex.C.C.A.), no writ history, the State of Texas sued to condemn residence property that was used by the owners to lease to tenants. The property was within the area that had been designated under authority of statute, by the State Building Commission, as the area where property would be acquired for the construction of State buildings. The Executive Director wrote the owners a letter notifying them of the intent to condemn the property. Tenants, knowing of this, began to move. In the case the owners sought to recover as an element of damage the loss of rental caused by the threat of condemnation. The court denied recovery, holding the action occasioning the vacation by tenants did not constitute a “taking” because there wa~ no physical invasion by the condemnor.

The above stated rule is also supported by the following cases from other jurisdictions: Hamer v. State Highway Commission of Missouri, 304 S.W.2d 869 (Mo.Sup., Div. 2); Sorbino v. City of New Brunswick, 43 N.J.Super. 554, 129 A.2d 473; United States v. Sponenbarger, 308 U.S. 256, 60 S.Ct. 225, 84 L.Ed. 230; Chicago Housing Authority v. Lamar, 21 Ill.2d 362, 172 N.E.2d 790; Mosher v. City of Phoenix, 39 Ariz. 470, 7 P.2d 622; Danforth v. United States, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240; Eckhoff v. Forest Preserve Dist., 377 Ill. 208, 36 N.E.2d 245; 64 A.L.R. 546.

Appellees urge they were prejudiced because the threat of condemnation by virtue of the ordinance prevented negotiations for sale and prevented their effective use of the property except for about 5% of the area. This would be hut an incidental damage that is not compensable. In this connection, however, it is noticed that the evidence shows such repairs as appellees wished to make on their property they were permitted to make. They apparently did not wish to make any additional improvements because they made no application for a permit to build. Mr. Biggers did testify they took the Council at its word that no permit for building would be issued. We have no doubt that had appellees desired to build but did not do so because they felt they could not get a permit, Mr. Biggers would have so testified. If appellees had desired to do so they had their remedy, in spite of the ordinance, by mandamus. Kirschke v. City of Houston, 330 S.W.2d 629 (Tex.C.C.A.), ref., n. r. e. It wopld be purely speculative to say that appellees were deprived of any sale by interference with the right to negotiate. There is nothing to suggest an agreement would have probably been reached between appellees and a prospective purchaser. In the absence of such we are unable to see how any damage could be shown with any certainty. Too, it is noted the evidence shows there was a rising market in the area where appellees’ property is located. They still have their property and Mr. Ross Biggers testified he had rather have the property than the $1,285,200.00 that he testified it was worth. The award was less than this.

Appellees complain of the expense they were put to. Attorneys fees, cost of experts and other expenses in preparation for trial are merely incidental expenses and not recoverable. City of Sherman v. Williams, 296 S.W. 663 (Tex.C.C.A.), no writ history. The incurring of them is not such prejudice as to require the condemnor to take property it decides it can do without. In every civil suit a plaintiff under Rule 164, Texas Rules of Civil Procedure can take a non-suit prior to a court’s decision or the time the jury begins deliberations. Yet it is no condition to the exercise of the right that the plaintiff must pay attorneys’ fees and expenses of the defendant. The same is true with regard to dismissal by the condemnor in a condemnation case.

The raising of the valuation for tax purposes does not result in any legal prejudice. It is observed that nowhere do appellees complain that the valuation is in any way discriminatory or in excess of market value or the percentage of market value at which the City assesses property for tax purposes.

Finally, appellees seem to challenge the good faith of the City in contending the City can refile the suit and they suggest the purpose of the City in dismissing was to avoid the high award of the jury and then to refile suit. There is no evidence to support such a suggestion. As related above, the City Council immediately after the verdict directed dismissal of the suit and preparation of an ordinance eliminating the area from the Civic Center. Then they, on April 17 passed an ordinance declaring it should be eliminated. We need not discuss whether it was in form sufficient to actually accomplish abandonment because it certainly evidences the Council’s intention to abandon. Then when its sufficiency for that purpose was challenged, on April 24 an ordinance certainly sufficient was passed. It is true that the court excluded this ordinance, and we think erroneously, on the ground it was passed after the hearing on the motion to dismiss had commenced. However, it was passed prior to the completion of the hearing. It is true also that it was passed after judgment had been rendered on the verdict. However, the motion to dismiss was pending when the judgment was rendered and was being actively prosecuted by appellant. Too, the judgment was rendered before completion of the hearing on the motion to dismiss over appellant’s objection as evidenced by its exception contained in the judgment and at a time when the court recessed the hearing on the motion to dismiss. We think this evidences rendition of the judgment without prejudice to appellant’s motion to dismiss.

The judgment of the trial court is reversed with directions to the trial court to enter an order dismissing the case.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. JOHN B. HARDWICKE COMPANY, Appellee.
    No. 14212.
    Court of Civil Appeals of Texas. San Antonio.
    June 10, 1964.

      Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellant.
    North, Blackmon & White, Corpus Christi, for appellee.
   BARROW, Justice.

John B. Hardwicke Company, shipper, sued Missouri Pacific Railroad Company, carrier, to recover damages arising out of two shipments of produce. Each shipment is a separate count and a separate lawsuit. After a non-jury trial, judgment was rendered for shipper for the sum of $300.00 on Count I, and for $373.79 on Count II. Carrier has perfected this appeal.

The shipper pleaded a prima facie case under the common law rule on both counts. This rule was recently held by the Supreme Court in Missouri Pacific Railroad Co. v. Elmore & Stahl, 368 S.W.2d 99 (Tex.1963), aff. 84 S.Ct. 1142 (1964), to apply to shipments of perishables:

“Under the general common law rule, a shipper of goods by common carrier makes a prima facie case of carrier liability by showing that the shipment was in good condition when delivered to the carrier at place of origin and in damaged condition when delivered by the carrier at destination. The carrier may then escape responsibility for the damage only by showing that it was caused solely by one or more of four excepted perils: (1) an act of God; (2) the public enemy; (3) the fault of the shipper, or (4) the inherent nature of the goods themselves. Where the loss is not due to one of these specified causes, it is immaterial whether the carrier has exercised due care or was negligent.”

COUNT I

This count involves a car containing 779 sacks of onions loaded at McAllen on May 7, 1960, for shipment to New York City. The car was timely delivered at destination, but the lading was protested for damaged and decayed condition. The trial court made findings of fact which established a prima facie case and, in addition, found that the onions were damaged due to rough handling in transit. Carrier asserts that there is “no evidence” to support these findings. No complaint is made of lack of pleadings to support the finding of rough handling.

It is our opinion that the trial court’s judgment on this count should be affirmed on the basis of the finding that the onions were damaged by rough handling. There is evidence that at destination the lading had shifted eight to twelve inches, and that twenty-one bags required recoop-ering. Eleven were made good and ten were rejected. No unusual bruising was noted on any of the destination inspection reports. There was testimony by Mr. Hardwicke, however, that such a shift in the lading would cause bruising and subsequent decaying of the onions, and further that a shift would interfere with the ventilation of the car and cause rot. This testimony, although controverted by carrier’s witnesses, supports the finding of damages by rough handling.

In Yeckes-Eichenbaum, Inc. v. Texas Mexican Ry. Co., 263 Fed.2d 791 (Fifth Cir.Ct.) the Court distinguished “breakage claims” from claims due to the nature and condition of the commodity. Where damage occurs from breakage, the burden is upon the carrier to show that the lading had sustained this damage prior to delivery to the carrier. Here there was no such proof. Carrier’s point complaining of shipper’s failure to show good condition of the onions at origin is therefore immaterial. See also, Missouri Pacific R. Co. v. Trautmann Bros., Tex.Civ.App., 301 S.W.2d 240.

There was evidence that the onions at destination were found to have some green tinge and brown staining which would affect their sales price. These defects were shown to be due to growing conditions. We cannot say, however, that the evidence is undisputed that this was the sole cause of the damaged condition of the onions. The government market reports were introduced into evidence to show value of Texas onions at destination on date of arrival. The trial court properly considered the quality and condition of the onions in determining the amount of damages. S. & D. Wolf Co. v. Atchison, Topeka & Santa Fe Ry. Co., Tex.Civ.App., 301 S.W.2d 272.

There is evidence to support the trial court’s findings which are the basis of the judgment on Count I.

COUNT II

This Count involves a car containing 640. cartons of lettuce delivered to the carrier at McAllen on January 18, 1960, for shipment to Newark, New Jersey. There was no delay in transportation. The lettuce had been sold to Safeway Stores for the sum of $2,-880.00, F.O.B. plus a charge for vacuum cooling. On arrival at destination, Safeway Stores refused the lettuce on account of decay, and the car was diverted by shipper to Benjamin Koondel, Inc., at New York City. It was subsequently sold and shipper netted the sum of $1,964.59. The trial court made findings of fact which established a prima facie case for shipper, and, after considering the quality of the lettuce, found that the difference in value at destination in its damaged condition was $373.79 less than it should have been.

The carrier asserts that since it performed the transportation services as directed by shipper, the trial court erred in not entering judgment for carrier. There is no finding that the damage was solely caused by the inherent nature of the lettuce. This point has been decided adverse to carrier by the Supreme Court’s application of the common law rule to shipments of produce. Missouri Pacific Ry. Co. v. Elmore & Stahl, supra.

The carrier further urges that there is no evidence to support the trial court’s finding that the lettuce was in good condition at origin, or that it was in any worse condition at destination than it should have been. The lettuce was inspected at origin by a Department of Agriculture inspector and found to be U. S. No. 1, with defects within grade tolerances, including 1% decay. A supplemental letter from the inspector’s supervisor noted the following range of defects at the origin inspection: “In few samples no defects noted. Remainder of load most samples none, some 4% broken midribs; most samples none, many 4% tipburn; most samples none, many 4% discoloration; most samples none, some 4% decay. General range 4 to 12%, mostly 4 to 8%, averaging 6%, including 2% soft and 1% decay.”

Three inspections were made at destination with widely varying results. The National Inspection Service found “0-20%, average 9% tipburn; 20-32% whitish, 36-52% show pink discoloration of midribs, or sides of heads; butts red to rusty; range 0 to 8%, average 4% decay.” A U. S. Agricultural Department inspector found “4 to 12 heads per carton averaging approximately 30% tipburn; 4 to 18 decayed heads per carton averaging approximately 40% Bacteria Soft Rot all stages affecting 2 to 4 inner head leaves to entire head.” A Railroad Perishable Inspection Agency inspector found “8% with broken mid-ribs generally firm. Fairly good to good color. 24 to 64% average 44% tipburn. Fresh and crisp. 4 to 32% average 14% decay, affecting head leaves following tipburn.” This inspector also found that 34 packages required recoopering, of which 32 were made good and two were rejected.

Despite the wide variances in the amount of tipburn found in the three destination inspections, it is undisputed that tipburn is a disease occurring during growth of the lettuce and is not caused by transportation. It is also established that decay will occur at the tipburn spot. There was evidence, however, to support the trial court’s finding that decay would not occur in transit if the lettuce was properly refrigerated. The carrier’s records reflect that the car was properly iced, but there was no stipulation or finding that the records correctly reflect what services were performed.

In Thompson v. Bob Tankersley Produce Co., Tex.Civ.App., 289 S.W.2d 840, this Court held that the jury finding of good condition at origin was supported by sufficient evidence where a U. S. D. A. inspection at origin graded tomatoes as U. S. No. 1, although the jury also found that a late blight disease was present in the tomatoes at the time of delivery to carrier. The Court said, “the jury could have properly concluded that although the tomatoes were not perfect and were affected somewhat with late blight, they, nevertheless, could with reasonable care have been transported to their destination without such decay developing to such extent as would have thrown the tomatoes out of grade.” It was further held that the burden of apportionment between causes fell upon the carrier.

In Thompson v. Tankersley, Tex.Civ.App., 238 S.W.2d 263, this Court held that the burden was upon carrier to show that the damaged condition of tomatoes was caused solely by shipper, and to apportion the damages where origin inspection showed 80% U. S. No. 1, and final inspection showed rot following small growth cracks of shoulder scars. This latter condition was shown to have been caused by rapid growth of the tomatoes. It was further shown that rot could develop rapidly from this growing condition if the tomatoes were bruised. The Court determined that it could not be said as a matter of law that the damage was due solely to an inherent vice or defect in the tomatoes coupled with delays caused by the shipper.

It is therefore our opinion that the trial court’s finding of good condition at origin is supported by evidence. The lettuce was shown to be in a damaged condition at destination. These findings made a prima facie case for shipper under the common law rule. The above evidence does not establish as a matter of law that the damaged condition was caused solely by the inherent vice existing in the lettuce at origin.

The government market report for the date the lettuce arrived at destination showed price of Texas lettuce of fair to general good quality to be $6.00 to $6.50 per carton. The trial court was authorized to consider the quality and condition of the lettuce at origin and destination, together with the evidence of market value and determine the amount of damages to be awarded shipper. The trial court was not required to award shipper the full amount of his loss as reflected by difference in net price from amount to be realized in sale to Safeway Stores. S. & D. Wolf Co. v. Atchison, Topeka & Santa Fe Ry. Co., supra.

There .is no error shown in the judgment as to Count II.

The judgment of the trial court is in all things affirmed.

      . “COUNT I.
      “1. Car ART 27450, containing 779 sacks of onions was delivered by plaintiff to the defendant carrier at 8:30 o’clock p. m., May 7, 1960, at which time defendant issued its uniform bill of lading.
      “2. The onions in Car ART 27450 were in good condition at origin when delivered to the defendant on May 7, 1960.
      “3. The onions in Car ART 27450 were in a damaged condition in New York as they contained from 0-16%, average 6%, bacterial soft rot, and 21 sacks required recoopering attention, of which eleven were made good, and ten were rejected.
      “4. Upon inspection of the onions at New York, the load was found to be shifted from 8" to 12", which was the result of rough handling in transit, causing the damage to the onions.
      “5. The damaged condition of the onions at destination was not the result of an act of the shipper, inherent vice of the commodity, or other excepted cause.
      “6. The carrier did not delay the car, and its record shows no ventilation defects, however, the carrier has not shown a clear record of handling as it has not shown itself free of negligence with regard to the shifted condition of the load.
      “7. After taking into consideration the quality of the onions, their size, color and condition, the Court finds that the difference in value in their damaged condition and the value in the condition in which they should have been, together with interest from May 7, 1960 at 6% per annum is $300.00.”

      . “COUNT II.
      “1. Car ART 37163 with 640 cartons of lettuce was accepted by the defendant at 11:50 p. m. January 18, 1960 and the uniform straight hill of lading was issued at that time.
      “2. At time of delivery to the carrier, the lettuce graded U.S. No. 1 and contained 1% decay which was well within the tolerance for U.S. No. 1 lettuce. The lettuce had been vacuum cooled by plaintiff and had a commodity temperature of approximately 34° and was loaded in pre-eooled car. The lettuce was in good condition at origin.
      “3. Upon inspection at destination, the lettuce contained heavy decay.
      “4. Although the carrier’s records of icing seems to show that the carrier iced the car at each icing station in accordance with the tariff, the testimony was undisputed that decay would not advance at temperatures below 40°, and that the temperature of the lettuce should remain at approximately 34° to 35° in the ear under standard refrigeration. The only logical inference to be drawn is that the carrier did not keep the lettuce properly refrigerated in transit.
      “5. The lettuce contained tipburn which was a field defect, but the decay would not have occurred if the lettuce had been properly refrigerated in transit. The loss was not the result of the act of the shipper or of inherent vice of the lettuce.
      “6. The load was shifted 4" from the 2nd layer through the top layer and 34 cartons required recoopering, of which 32 were made good and 2 were rejected.
      “7. The railroad failed to prove that it had transported the lettuce without negligence.
      “S. After taking into consideration, the quality of the lettuce and its condition at origin and destination, the Coust finds that the difference in value in its damaged condition at destination and the the value in the condition in which it should have been, together with interest from January 25, 1060 at 6% per annum is $373.79.”


author: HUGHES, Justice.

text:
    WESTERN ALLIANCE INSURANCE COMPANY, Appellant, v. Asiano ALBAREZ et al., Appellees.
    No. 11205.
    Court of Civil Appeals of Texas. Austin.
    June 17, 1964.
    Rehearing Denied July 8, 1964.

      Gay & Meyers, Austin, for appellant.
    A. T. Mullins, Kuykendall & Kuykendall, Austin, for appellees.
   HUGHES, Justice.

Western Alliance Insurance Company, appellant, having issued a public liability automobile insurance policy to Silas Collins and, after proper notice, having failed to defend an action brought by Asiano, Sefe-rino and Gregorio Albarez and Angelo Hi-nojosa, appellees, against Silas Collins and his brother Miles Collins for damages resulting from a collision of the insured vehicle, while being operated by Miles Collins with the permission of Silas Collins, with a vehicle owned by Asiano Albarez and in which all appellees were then riding, was sued by appellees to recover the amount of judgment awarded them against Silas and Miles Collins in such original action.

Appellant’s refusal to defend the Collins’ suit and its denial of liability for the judgment therein rendered is based upon the following endorsement of exclusion attached to the policy:

“119. EXCLUSION OF NAMED DRIVER
This endorsement forms a part of Policy No. 109902 issued to Silas Collins by the Western Alliance Insurance Company at its Agency located (Name of Insurance Company) (city and state) Austin, Texas and is effective from December 28, 1960
(12 :01 A.M. Standard Time)
(The information above is required only when this endorsement is issued subsequent to preparation of the policy.)
This endorsement forms a part of the policy to which attached, effective from its date of issue unless otherwise stated herein.
It is agreed that the insurance afforded by this policy shall not apply with respect to any claim arising from accidents which occur while any automobile is being operated by Miles Collins (Brother)
Acknowledged by /s/ Silas T. Colh’ns
By ANDERSON MCBRIDE WORMLEY
(Duly Authorized Representative)
Form 119. — EXCLUSION OF NAMED DRIVER
Texas Standard Automobile Endorsement Revised October 20, 1941.”

The Trial Court, in his conclusions of law, found that the above endorsement was invalid because it violated Sections 21, 21 (a), 21(b) and 21(f) of Art. 6701h, Vernon’s Ann.Tex.Civ.St., and Art. 5.06 of the Texas Insurance Code, V.A.T.S. The Court also legally concluded that the endorsement violated the public policy of Texas.

Art. 6701h is known as the “Texas Motor Vehicle Safety-Responsibility Act.” It is a very comprehensive act which was enacted in 1951.

Appellees point to language used by the Legislature in the emergency clauses to the original Act and to a 1963 amending Act which in general language state the purpose of the law to he for the protection of the public against financially irresponsible owners and drivers of motor vehicles and to encourage safer use of motor vehicles on our streets and highways.

We appreciate and approve the laudable objectives of this legislation but in determining its legal effect we are confined to the specific means prescribed by the Legislature for achieving its goal. No general statement of public policy can override or add to the plain provisions of the Act.

The specific provisions of the Act which are claimed to be violated by the endorsement excluding liability for acts of Miles Collins are these:

“Sec. 21. (a) A ‘motor vehicle liability policy’ as said term is used in this Act shall mean an owner’s or an operator’s policy of liability insurance, certified as provided in Section 19 or Section 20 as proof of financial responsibility, and issued, except as otherwise provided in Section 20, by an insurance company duly authorized to write motor vehicle liability insurance in this State, to or for the benefit of the person named therein as insured.
“(b) Such owner’s policy of liability insurance:
“1. Shall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby to be granted; and
“2. Shall pay on behalf of the insured named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, all sums which the insured shall become legally obligated to pay as damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles * * *„
“(f) Every motor vehicle liability policy shall be subject to the following provisions which need not be contained therein:
“1. The liability of the insurance company with respect to the insurance required by this Act shall become absolute whenever injury or damage covered by said motor vehicle liability policy occurs; said policy may not be canceled or annulled as to such liability by any agreement between the insurance company and the insured after the occurrence of the injury or damage ; no statement made by the insured or on his behalf and no violation of said policy shall defeat ir void said policy; * * *.
“4. The policy, the written application therefor, if any, and any rider or endorsement which does not conflict with the provisions of the Ac( shall constitute the entire contract between the parties.”

The policy in suit obligated appellant:

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
“A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by any person;
“B. injury or destruction of property, including loss of use thereof, hereinafter called ‘property damage’;
arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit as it deems expedient.”

The policy then names those who are insureds as follows:

“PERSONS INSURED
“The following are insureds under Part 1:
“(a) With respect to the owned automobile,
“(1) the named insured and any resident of the same household,
“(2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured;”

Appellees also direct attention to Art. Ill of the Act entitled, “Security following accident,” particularly Sec. S (c) which provides, in part “This Section shall not apply * * * To such operator or owner if such owner had in effect at the time of such accident a motor vehicle liability policy with respect to the motor vehicle involved in such accident.”

Sec. 5 prescribes the procedure to be taken by the Department of Public Safety in accident cases when the owner or operator of the motor vehicle involved fails to deposit security as determined by the Department. As shown by Sec. 5(c) supra, this entire Section 5 is inapplicable where, as here, the owner has a motor vehicle liability policy with respect to the motor vehicle involved in the accident.

Appellees say that, “It would be a strained construction indeed to say that the ‘motor vehicle liability policy’ referred to' in said Secs. 5(c) and 2 is not the same motor vehicle liability policy defined and discussed in Sec. 21 of Article IV.” Further arguing this point appellees say, “The policy issued before the accident and the one issued subsequent to the accident are both motor vehicle liability policies. Each must contain the minimum requirements of statute. The only requirements are contained in Sec. 21.”

Appellees contend that “the only difference between the policy in force before the accident and the policy certified to the Department is that the latter policy provisions are absolute — that is, the company could not raise as a defense late reporting of the accident by the insured, failure to send the company the suit papers, breach of the co-operation clause in the policy, etc. These defenses are available to the insurer under the policy issued prior to the accident.”

However much we might be inclined to appellees’ point of view that the Motor Vehicle Safety Responsibility Act regulates and controls the provisions of motor vehicle liability insurance policies which are required by the Act as well as those which are not required by the Act, we are precluded by explicit language of the Act as well as authoritative Court decisions to the contrary.

There are numerous events in the Act which result in suspension of a motor vehicle’s registration and an operator’s license unless proof of financial responsibility is furnished. Sec. 19(a) of the Act provides that this “Proof of financial responsibility may be furnished by filing with the Department the written certificate of any insurance company duly authorized to write motor vehicle liability insurance in this State certifying that there is in effect a motor vehicle liability policy for the benefit of the person required to furnish proof of financial responsibility.” (Italics added.)

Sec. 21(a) of the Act, quoted supra restricts the phrase “motor vehicle liability policy” to a policy certified to the Department as provided in Secs. 19 and 20 of the Act.

In our opinion, the reference to a motor vehicle liability policy in Sec. 5(c) of the Act, supra, does not bring within the Act, for purposes of regulation or control, any motor vehicle liability insurance policy except those which are required by the Act as proof of financial responsibility. The primary purpose of the Act is the regulation of owners and operators of motor vehicles for the protection of the public, not the regulation of insurance companies.

The case of United States Casualty Insurance v. Brock, 345 S.W.2d 461, Amarillo Civ.App., writ ref., and the authorities therein cited are conclusive upon the construction of the Act in respect to this question. That Court thoroughly discussed the Act - and cited and quoted from the opinion of the San Antonio Court of Civil Appeals in McCarthy v. Insurance Company of Texas, 271 S.W.2d 836, n. w. h., which case also thoroughly analyzed the Act in respect to this question. We quote from the latter case as follows:

“ ‘The sum of the above analysis is that absolute coverage results when a certificate has been furnished. In this case none was ever furnished by the insurer, nor required by the act in advance of the first accident. The insurer is entitled to plead its policy defenses.’ ”

There is no pleading or proof in this case that Silas Collins, the insured had ever had an automobile accident, that his license had ever been suspended or revoked or that he was required to furnish proof of financial responsibility. Neither is there proof that the policy in suit was “certified” to the Department of Public Safety as provided by the Act.

It is our opinion that the Trial Court erred in holding that the exclusionary endorsement was invalid as being in violation of the public policy of this State and that he also erred in holding such endorsement to be in violation of Art. 6701h.

The contention that the policy endorsement is invalid because in violation of Art. 5.06 of the Insurance Code will now be examined. This Article makes it the duty of the Board to prescribe policy forms, “ * * * provided, however, that any insurer may use any form of endorsement appropriate to its plan of operation, provided such endorsement shall be first submitted to and approved by the Board; and any contract or agreement not written into the application and policy shall be void and of no effect and in violation of the provisions of this subchapter * *

It was stipulated that endorsement No. 119, copied above, had been duly approved by the Board prior to its attachment to the policy in suit.

The endorsement was attached to and became a part of the policy. It, the endorsement, was signed by the insured.

Appellees contend that endorsement 119 was not a part of the policy in suit. The endorsement recites that, “This endorsement forms a part of Policy No. 109902 issued to Silas Collins,” and provides that it is effective from December 28, 1960. The number and date of the policy conform to the number and date recited in the endorsement. Under these circumstances, we hold that it conclusively appears that the endorsement was a part of the policy issued to Silas Collins.

There is in the record an instrument signed by Silas Collins as applicant on 12-28-60 which is denominated, “Texas Automobile Insurance Rating Statement,” in which Mr. Collins gave information concerning himself and his automobile. Endorsement No. 119 is not in this instrument.

Appellant contends this is not an application; appellees contend to the contrary.

In our opinion, this instrument is not an application for insurance. It does not purport to be. It does contain the word applicant several times and, unquestionably, Mr. Collins is the applicant, but for what? The instrument does not state. It does relate to automobile insurance. It states the number and description of cars owned by applicant and how and by whom they are used. It contains a statement of the number of accidents and traffic convictions involving applicant. It does not state that applicant is applying for anything. It does not state the kind or amount of insurance desired, or its cost. If an insurance company, and, incidentally, no insurance company is named in the instrument, "accepted” this “application,” there would be no contract of insurance created. It is much too vague to form a contract upon acceptance.

In 44 C.J.S. Insurance § 232, p. 973, it is stated that “An application for insurance consists of two parts, a request for insurance and the furnishing of the information necessary to enable the company to pass on the request.” In 32 Tex. Jur.2d, p. 72, it is stated, “Under the law of insurance the application is the request for a contract of insurance. * * * ”

It follows that, in our opinion, no application for insurance is shown and, hence, no violation of the statute in this respect is shown. We do not construe Art. S.06 to require that a formal written application for insurance be made as a prerequisite to the issuance of an insurance policy.

The only remaining ground upon which the judgment below could be affirmed is that Silas T. Collins, the insured, negligently entrusted the use of the insured car to his brother, Miles Collins, knowing that Miles Collins was a reckless and incompetent driver and that this fact creates liability of the insurer under this provision of the policy in suit, “To pay on behalf of the insured all sums, which the insured shall become legally obligated to pay as damages because of:”

Injuries and damages sustained by any person, “Arising out of the ownership, maintenance or use of the owned automobile * * *.”

Appellees say that this negligent en-trustment arose out of Silas Collins’ “ownership” of the car and not from his “use” of car or by the operation of the car by Miles Collins.

Under the doctrine of negligent entrustment it is not sufficient to prove the entrustment of a car to a reckless or incompetent driver, this must be followed by evidence that such driver negligently operated the car and that such operation resulted in damage to a third person. Munday v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587. The negligent operation of the car by Miles Collins was a prerequisite to liability of Silas T. Collins for his negligent entrustment of the vehicle to Miles Collins. Endorsement 119 excludes liability of appellant under the policy “with respect to any claim arising from accidents which occur while automobile is being operated by Miles Collins.” This claim arose from an accident occurring while Miles Collins was operating the insured car. It is not an insured claim under the endorsement which became a part of the policy.

The judgment of the Trial Court is reversed and judgment is here rendered that appellees take nothing by this suit.

Reversed and rendered.

      . Acts 1951, 52nd Leg., p. 1210.

      . Acts 19G3, 58th Leg., p. 1320.


author: WILSON, Justice.

text:
    Roy APPLEWHITE, Appellant, v. DARR EQUIPMENT COMPANY et al., Appellees.
    No. 4214.
    Court of Civil Appeals of Texas. Waco.
    June 18, 1964.
    Rehearing Denied July 9, 1964.
    Clyde & Hines, Ft. Worth, Jouette M. Bonner, J. M. Donald, Jacksboro, for appellant.
    Malone, Seay & Gwinn, Dalton & Moore, Sam S. Stollenwerck and R. L. McSpedden, Dallas, for appellees.
   WILSON, Justice.

Plaintiff appeals from an order sustaining defendants’ pleas of privilege to be sued in Dallas County. He alleged defendants had collected usurious interest in Jack County where the suit was pending, had converted personalty and had committed a trespass in that county.

We have attempted to catalogue appellant’s complaints as listed in a single point of .error. As we comprehend them from the entire brief, the errors assigned are: (1) the sustaining of defendants’ objection to tendered evidence relating to plaintiff's Jack County residence on the ground his adopted petition admitted he lived in Dallas County at the time a contract alleged to be usurious was entered into, the argument being that plaintiff’s residence was immaterial; (2) that the trial court erred “in refusing to hear testimony that the conversion and trespass occurred in Jack County”; and (3) that plaintiff was denied leave to file a trial amendment alleging his residence to be in Jack County at the time the contract out of which the suit grew was executed.

Plaintiff relied on subdivisions 9 and 29a of Art. 1995, Vernon’s Ann.Tex.St. We agree with him that the allegation as to his residence is immaterial. Consequently any action relating to that pleading or evidence thereunder is likewise immaterial.

The complaint that the court refused to hear evidence as to the alleged conversion and “trespass” is unfounded. The court, after sustaining the objection to evidence as to residence and refusing leave to amend, refused to permit plaintiff’s counsel to withdraw his announcement of ready. Of the latter action no complaint is here made, and it is not referred to in appellant’s brief. Appellant’s counsel thereupon asked, “You’re not going to allow me to present any evidence as to the residence of Roy Ap-plewhite other than that stated in this petition ?” The court replied in the affirmative. Appellant thereafter tendered no evidence as to conversion or trespass. The court excluded none. Plaintiff’s request to “give me the rest of the week before you enter the order” was granted-. The only evidence ruling made related to the immaterial residence of plaintiff. That ruling was harmless in any event.

Since appellant failed to make proof or offer evidencias to any venue fact, the plea was properly sustained. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. Affirmed.


author: McDONALD, Chief Justice.

text:
    Robert ALLEN, Appellant, v. Billy Ray WILLIAMS, Appellee.
    No. 4215.
    Court of Civil Appeals of Texas. Waco.
    June 18, 1964.
    Robert Allen, Ft. Worth, for appellant.
    Cantney, Hanger, -Gooch, Cravens ■& Scarborough, Sloan B. Blair, Ft. Worth, for appellee.
   McDONALD, Chief Justice.

Plaintiff Allen sued defendant Williams for personal injuries and property damages growing out of an intersection collision between plaintiff’s and defendant’s vehicles. Defendant filed an admission that he was guilty of negligence proximately causing the collision, and that plaintiff was not guilty of any acts of negligence proximately causing the collision. Defendant moved that the evidence be restricted to the' question of damages, which motion was granted by the Trial Court.

Trial was to a jury, to which the court submitted the following issue:

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate plaintiff for the injuries, if any, proximately caused by the collision ?
“In answering this issue you may take into consideration the following elements of damage and none other: Such physical pain and mental anguish, if any, as you find from a preponderance of the evidence that plaintiff has suffered as a direct and proximate cause of his injuries.”

To which the jury answered: None.

The Trial Court entered judgment on the verdict that plaintiff take nothing.

Plaintiff appeals, contending' that the Trial Court erred:

1)In granting defendant’s motion to exclude testimony and stipulate liability.
2) In refusing plaintiff’s motion for delay because of an absent witness.
3) In refusing to permit testimony from certain witnesses.
4) In refusing to admit into evidence a letter from Dr. Lyle, and a police report by a police officer.
5) In confining the issue submitted to physical pain and mental anguish.

We revert to plaintiff’s 1st contention. Defendant has the right to admit liability and the court was authorized to restrict the evidence to plaintiff’s damages.

With reference to plaintiff’s 2nd contention, the record contains no motion for continuance, and there is no showing that the absent witness would have contributed anything material to the case.

Plaintiff’s 3rd and 4th contentions complain of the exclusion of evidence by the Trial Court. Plaintiff does not direct attention to any specific testimony which he asserts should have been admitted, except the doctor’s letter and the police report, both of which are clearly hearsay.

Plaintiff’s 5th contention complains of the damage issue submitted by the Trial Court. Plaintiff did not submit or request an issue on damages and may not now complain about the issue that was submitted. See Rule 279, Texas Rules of Civil Procedure.

All of plaintiff’s points and contentions have been considered and are overruled.

The judgment of the Trial Court is affirmed.


author: RENFRO, Justice.

text:
    TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Lotella W. DEATON et vir, Appellees.
    No. 16560.
    Court of Civil Appeals of Texas. Fort Worth.
    June 26, 1964.
    Rehearing Denied July 10, 1964.

      McDonald, Sanders, Nichols, Wynn & Ginsburg and Atwood McDonald, Fort Worth, for appellant.
    Jim Puff and George Busch, Fort Worth, for appellees.
   RENFRO, Justice.

Based upon a jury verdict the plaintiffs, Mrs. Lotella W. Deaton and husband, John Deaton, were awarded a judgment in a woi'kmen’s compensation case of total and permanent incapacity of Mrs. Lotella W. Deaton. For convenience, Mrs. Lotella W. Deaton will be hereafter referred to as plaintiff.

The jury found: (1) plaintiff sustained a personal .injury to her body on or about September 4, 1962; (2) she sustained total incapacity as a natural result of the personal injury; (3) total incapacity began on September 4, 1962; (4) the incapacity is permanent; (5) plaintiff entitled to lump sum payment.

No other issues were requested. The defendant filed only a general denial.

Defendant’s first nine points of error present the questions of whether there is any evidence of probative value to support the verdict, whether the evidence is sufficient to support the verdict, or else, whether the verdict is against the overwhelming preponderance of the evidence, both with respect to the extent and duration of incapacity, and with respect to whether the injury received on September 4 caused total and permanent incapacity.

Plaintiff testified: she went to work at Harris Hospital in 1958 as a nurse’s aid and was working as such when she was hurt on the 4th of September, 1962. She started down some steps, stepped on an object, slipped and fell, landing on left side and left elbow. At the same time her back had a burning sensation in it. She reported to the emergency room where her arm was treated. She then went home, tried to fix dinner, but had to lie down because of pain in lower part of back and in her left hip and left leg. Her vacation started the next day. She spent the biggest part of the time in bed. She did not feel she could afford to go to a doctor because she was the only one in the family with an income. She finally called a doctor on September 16, and entered Harris Hospital where Dr. McDonald performed a spinal fusion and removed disc material from two places. She, at time of trial, was still wearing a brace. She cannot lift or stoop. She has not been released by the doctor and has not returned to work. Since the injury she has been able to do light house duties only. She feels she will never be able to work again. She can do no lifting whatever. When she takes off the brace she has no strength at all. Her back was not like that before the injury. It would be impossible for her to perform the work of nurse’s aid.

On cross-examination she testified: she worked for Royal Tile Company late in 1956 and early 1957 hut quit because she could not lift heavy boxes. In 1956 she entered Harris Hospital as a patient. She was having some aggravating pain in her back. Dr. Levy was her doctor. She remained in the Hospital at that time one week and one day. She also had pain in her leg. She told Dr. Levy she had prior thereto sprained her ankle, hut said nothing about spraining her back. In June or July, 1960, she had acute appendicitis and was a patient in Harris Hospital, but had no back involvement. In October, 1960, she was hospitalized for upper respiratory infection. She did not have back trouble at that time. She was in the hospital in April, 1961, for chest pains and shortage of breath. In September, 1961, she was in the hospital for a hysterectomy, but had no back trouble. She was hospitalized in December, 1961, for pain in her back. She wore a back brace for a month in 1956, did not wear it again until her doctor told her to in 1961. She quit wearing it when she went home. She does not recall talking to anyone at Harris Hospital from September 4, 1962, to the time she entered as a patient on September 16. She knew Dr. Wise was the doctor who took care of employees but she did not call him. She never inquired about medical expenses or workmen’s compensation.

The hospital records show that Dr. McDonald examined plaintiff on September 16. Plaintiff gave him a history of having fallen on the steps in the hospital, causing a pull in her back and left hip; of considerable aching the next morning in .her lower back and left lower extremity. Dr. McDonald diagnosed her condition as “Degenerative disc disease, L^4, H-5, 1^5 S-l with probable herniations of L-4, L-5 on the left.” The diagnosis concluded: “She is to be admitted at this time for a possible spinal fusion.” The “Report of Operation” is rather long and gives minute details. The conclusion reads: “Operation: After exploration was carried out, the posterior elements of the D-4-5 and S-l were prepared for chip graft fusion. The flaps were turned back laterally, preparing a raw bed for the bone chips to be accepted. Strips of cancellous bone were taken from the posterior iliac crest on the It. These_ere placed across the prepared bed, effecting a chip graft type fusion. Wound was closed in layers, using #0 chromic catgut on the heavy fascial tissue, #000 chromic on the subcutaneous tissue and #000 silk continuous in the skin. Dressings applied, and the patient sent to the recovery room in good condition. Operation: 1. Spinal Fusion.”

Defendant introduced hospital records showing treatment of plaintiff in August, 1956. The summary sheet shows an admission diagnosis of ruptured discs made by Dr. Levy. The report also shows that for about two years the patient had been having some recurring pain in the lower part of her back, and also states she stepped in a hole and wrenched her back in 1955. Defendant’s exhibit 3 pertains to plaintiff’s hospitalization in December, 1961. Drs. Levy, Lipscomb and McDonald were her physicians. The exhibit recites that the patient had had considerable trouble with her back for some time, that she had had an identical spell about two weeks before December 18, 1961.

It is apparent there was some evidence to uphold the jury’s findings. Whether the findings are against the great preponderance of the evidence has given us considerable concern, especially in the light of the fact no doctor testified as to the probable future effect of the disc operation.

It has been held, however, that in some situations it is not necessary to present physicians as witnesses in order to prove the extent of an injury. Coca Cola Bottling Co. of Fort Worth v. McAlister, 256 S.W.2d 654 (Fort Worth Civ.App., 1953, no writ) ; American Gen. Ins. Co. v. Smith, 163 S.W.2d 849 (San Antonio Civ.App., 1942, refused).

We have concluded that, m view ■of the whole record, we would not be justified in holding the findings of the jury to be against the great preponderance of the evidence.

Defendant’s tenth point complains >of the manner of submission of issue No. 2.

In issue No. 2 the jury was asked, “Do you find from a preponderance of the evidence that Lotella W. Deaton sustained total incapacity for any length of time as a natural result of the personal injury, if any, ■sustained by her on or about September 4, 1962?” The jury answered “yes”.

Defendant objected to issue No. 2 “because said issue as framed is duplicitous in that it submits in a single issue two controlling questions, to-wit: whether or not Lotella W. Deaton sustained any incapacity as a natural result of the personal injuries sustained on September 4, 1962, and also inquires whether or not such incapacity is total.”

Defendant’s point of error reads as follows : “The Court erred in submitting special issue No. 2, contained in the Court’s charge, because such issue was duplicitous, and required the jury to answer, in a single issue, two separate inquiries which constituted two separate elements of Plaintiff’s cause of action.”

In response to requests for admissions, defendant admitted that plaintiff, on the 4th of September, 1962, sustained an accidental injury while in the course of her employment with Harris Hospital. The jury in answer to issue No. 1 found that plaintiff sustained a personal injury to her body •on or about September 4, 1962.

It is to be noted the objection to the issue was on the ground it inquired whether plaintiff sustained any incapacity, and whether such incapacity was total.

As we construe the issue, it inquired only if plaintiff sustained total incapacity as a natural result of the personal injury.

The following issue, No. 3, inquired as to the beginning date of total incapacity.

We believe issue No. 2 as submitted inquired as to an ultimate fact.

In view of the nature of the objection made, considered with the admissions on file and the other issues submitted, reversible error is not shown in the manner of submission of issue No. 2.

Though not precisely in point, our conclusion finds support in Meyer v. Great American Indemnity Co., 154 Tex. 408, 279 S.W.2d 575 (1955) ; Argonaut Underwriters Ins. Co. v. Byerly, 329 S.W.2d 937 (Beaumont Civ.App., 1959, ref., n. r. e.); Safety Casualty Co. v. Teets, 195 S.W.2d 769 (Beaumont Civ.App., 1946, ref.). It is also interesting to note that the Honorable Kearby Peery, highly respected leader in the field of Workmen’s Compensation Law, in his model “General Injury Charge Short Form”, p. 95, of his Texas Workmen’s Compensation Procedure, suggests the submission of total disability issue in a manner almost identical with the manner of submission of said issue in the instant case.

Affirmed.


text:
    B. M. CONNOR, Appellant, v. Thomas B. BUCKLEY et ux., Appellees.
    No. 4205.
    Court of Civil Appeals of Texas. Waco.
    June 4, 1964.
    Rehearing Denied June 18, 1964.

      Dunnam & Dunnam, Waco, for appellant.
    George Chase, Ñaman, Howell, Smith & Chase, Waco, for appellees.
   WILSON, Justice.

• The court, on plaintiffs’ motion, disregarded a jury finding in a suit brought under Art. 4004, Vernon’s Ann.Tex.St. for false representations concerning the condition of a house, and rendered judgment for plaintiffs.

Plaintiffs alleged they purchased a dwelling from appellant-defendant Connor; that before buying it they inspected the house and observed cracks and other . defects; that Connor represented the house was of sound construction, and that he would repair it so that plaintiffs would have no further trouble with it. Thereafter, it was alleged, “the house began to move and shift on its foundation” so that cracks and other defects, constituting the basis for damages recovered, again appeared.

The jury found (a) that Connor did represent the house was of sound construction, (b) that this representation was false, but (c) was “not material.” The jury also answered (d) that this representation was made to induce plaintiffs to purchase the house, and (e) they relied on it. The jury found Connor did not represent that he would repair the house so plaintiffs “would thereafter have no further trouble with it.”

Plaintiffs’ motion to disregard finding (c), that the representation the house was of sound construction was “not material”, asserted that it was material as a matter of law, and the issue was superfluous; that there was no evidence to support the finding, because all of the evidence was to the effect that plaintiffs relied on the representation, and would not have bought the house except for it; that the evidence was insufficient to support the jury’s answer, and it was against the great weight and preponderance of the evidence. This motion was granted.

A trial court is not authorized to disregard a jury finding and render judgment on the grounds the evidence is factually insufficient or the finding is against the weight and preponderance of the evidence. It may then only grant a new trial. Gulf, Colorado & Santa Fe Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933, 937. Our initial duty under the court’s order, then, is to determine whether there is any evidence “reasonably tending to prove, either directly or indirectly,” the fact which the jury found, Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 688, 79 A.L.R.2d 774, under familiar tests. See Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199. However, we are unable, as will appear, to ascertain what the jury actually found.

Appellees say the question before us is whether the representation found “was of a material fact as a matter of law,” and they seek to distinguish representations of material fact from expressions of opinion, conjecture, “puffing and sales talk.” They tell us the legal issue is whether the representation was one of fact or not. It is insisted the representation found related, as a matter of law, to the condition, kind and quality of the property, and was consequently “material” under such decisions as Putnam v. Bromwell, 73 Tex. 465, 11 S.W. 491.

This is not the issue involved as we analyze the record. There is no definition of the term “material” in the charge. Appellant’s attorney objected because no issue was submitted in the charge as to whether the representation induced plaintiffs to purchase the house. The objection was overruled.

Appellees also say that if the representation was material, the inducement was material. The adjective “material” is employed twice in Art. 4004 to modify two dissimilar nouns, 'each of which constitutes a separate element of actionable fraud. One of these is the "fact" falsely represented, which, under the statute, must be material. The other is the "inducement": Under the statute, fraud in a real estate transaction encompasses a false representation of a material fact which is made as a “material inducement” to another party to enter into a contract, and but for which the contract would not have been entered into.

In H. W. Broaddus Co. v. Binkley, 126 Tex. 374, 88 S.W.2d 1040, 1042, in a case where the special issue was whether a representation operated as a “material inducement,” the court held: “The test of materiality necessary to be applied to the representations inquired about is whether the contract would have been signed by Binkley without such representations having been made.” The court there held an issue embodying this test should have been submitted, and suggested the issue be framed as was that in Butler v. Cole, Tex.Com.App., 53 S.W.2d 1010, 1011.

We have carefully examined the evidence admitted, and it is clear there is evidence of probative force to support the disregarded jury finding, if in reality the finding is that referred to in the Binkley case, i. e., that the representation was not “material” as an inducement. In this situation we recognize that ordinarily, under Rule 324, Texas Rules of Civil Procedure, judgment should be rendered for appellant on the verdict, since appellee has filed no cross points. DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 100; Crow v. City of San Antonio, 157 Tex. 250, 301 S.W.2d 628, 631. This we would do if we knew what the verdict was. The difficulty precluding rendition, however, is that it is obviously not ascertainable from the record whether the disregarded finding related to materiality of inducement under the Binkley decision.

We sustain appellant’s point complaining that the charge fails to submit an issue as to whether the representation induced the making of the contract, under the holding in that decision. It is not necessary to pass on other points. Reversed and remanded.


text:
    Vernon George SMITH et al., Appellants, v. Dan L. BAKER, Appellee.
    No. 4212.
    Court of Civil Appeals of Texas. Waco.
    June 25, 1964.
    Rehearing Denied July 9, 1964.
    James M. Spiller, Jacksboro, James E. Forbis, Decatur, for appellants.
    Rodgers & Stephens, Graham, for ap-pellee.
   McDONALD, Chief Justice.

This is an appeal from a summary judgment in favor of the defendant in a trespass to try title suit.

Plaintiffs Smith, et al., instituted this suit against defendant Baker, in trespass to try title for title and possession of an undivided 8/45ths interest in certain lands in Jack County. (Defendant is an uncle of the plaintiffs).

Defendant answered, pleading title to the land by virtue of a judgment rendered in 1955 by the District Court of Jack County, in which the contended for interest in the land was awarded to him; further plead 8 years peaceable and adverse possession; and further entered a plea of not guilty.

Defendant thereafter moved for summary judgment, asserting there was no genuine issue of material fact, and that the 1955 judgment awarding him the contended for interest in the land was determinative of title to such lands.

Plaintiffs answered defendant’s motion for summary judgment, alleging that the 1955 judgment relied on by defendant was rendered in a suit in which present plaintiffs and defendant, were on the same side as parties plaintiff, against a third party over ownership of the land; that the judgment did not purport to determine the relative ownership between present plaintiffs and defendant; that there was no controversy in that suit between present plaintiffs and defendant; that present plaintiffs and defendant occupied totally harmonious positions in that suit; and that in the 1955 suit, present defendant admitted by pleading that his interest in the land had been transferred to present plaintiffs.

Plaintiffs then filed Motion for Summary Judgment, alleging title to the land in controversy, by virtue of a warranty deed executed January 17, 1952 by defendant, conveying such lands to plaintiffs. Plaintiffs further assert that defendant, in his pleadings in the 1955 suit, admitted and affirmed that his interest in the lands had been transferred and conveyed to plaintiffs herein; that the 1955 judgment merely adjudicated the interest of defendant in the lands at the time of filing of the suit, which was prior to the 1952 conveyance by him to plaintiffs; and that defendant is estopped to deny his conveyance to plaintiffs by the 1952 deed.

Defendant replied to plaintiffs’ motion, asserting that the 1955 judgment was a valid and binding judgment, decreeing title to the land to him; that such 1955 judgment took into consideration the title of the property up to and including the date thereof; and that the 1952 deed was thus taken into consideration and adjudged of no force or effect.

The 1955 judgment; defendant’s and plaintiffs’ pleadings in the 1955 suit; and the 1952 deed from defendant to plaintiffs are in the record.

The Trial Court granted defendant’s Motion for Summary Judgment and decreed defendant title and possession of the land in controversy; and overruled plaintiffs’ Motion for Summary Judgment.

Plaintiffs appeal, contending the Trial Court erred: 1) In denying plaintiffs’ Motion for Summary Judgment; 2) In not holding plaintiffs have title by virtue of the 1952 deed; 3) In not decreeing plaintiffs title under the doctrine of after acquired title; 4) In not holding defendant estopped to deny plaintiffs’ title; 5) In sustaining defendant’s Motion for Summary Judgment; 6) In holding the 1955 judgment was res judicata of the issues raised in the instant suit.

The record before us on Summary Judgment reflects that plaintiffs filed statutory trespass to try title suit against defendant to the lands in controversy. Defendant plead limitations; not guilty; and asserted that a 1955 judgment which vested title in him to the lands in controversy, was determinative of the suit. Examination of the judgment and of the pleadings of defendant in such 1955 suit reflects that defendant and plaintiffs herein, were all parties plaintiff in the 1955 suit, seeking to quiet title to the subject land against the claims asserted by a third party, Amanda Salter; and further that defendant’s own pleading in such suit set out that he had conveyed his interest in the property to plaintiffs herein. The judgment does decree to defendant the interest here involved.

Coparties inter se, as between themselves, are not bound by the judgment rendered in the cause in which they were co-parties. 34 Tex.Jur.2d, p. 432 states the rule thusly:

“Sec. 398 — Coparties inter se.
“A judgment is usually binding only in respect of adversary parties. A judgment for or against two or more joint parties does not, ordinarily, determine their respective rights as between themselves, and is not conclusive in any subsequent litigation between them, unless these rights were properly put in issue and the judgment adjudicated them.”

In the 1955 suit, present plaintiffs and defendant were not adversary parties in any sense of the term. They were in complete accord as to the ownership of the interest now in dispute. Defendant’s pleading states he had conveyed his interest to present plaintiffs. Why the judgment was drawn as it was, we do not know, but as between the parties plaintiff to the 1955 judgment (who are parties plaintiff, and defendant here) such judgment is not res judicata to the rights of present plaintiffs.

Moreover, the record contains the 1952 deed from present defendant to present plaintiffs.

Plaintiffs’ contentions 5) and 6) are sustained. The Trial Court erred in granting summary judgment for defendant, and in holding that the 1955 judgment was res judicata of the issues raised in the instant suit.

Plaintiffs’ contentions 1 through 4 assert that the Trial Court erred in not rendering summary judgment for them; in not holding plaintiffs have title by virtue of the 1952 deed; or under the doctrine of after acquired title; and by not holding defendant estopped to deny plaintiffs’ title. Plaintiffs cite as controlling: Kramer v. Breedlove, Tex.Sup.Ct., 3 S.W. 561; Caswell v. Llano Oil Co., 120 Tex. 139, 36 S.W.2d 208; Houston Oil Co. v. Village Mills Co., Tex.Com.App., 241 S.W. 122; and Powell v. Heckerman, 6 Tex.Civ.App. 304, 25 S.W. 166.

Plaintiffs’ contentions 1 through 4 are overruled. Plaintiffs brought the instant case in Trespass to Try Title. Defendant, among other things, filed a plea of Not Guilty. Under a plea of Not Guilty in a Trespass to Try Title case, the defendant can interpose any legal or equitable defense that tends to defeat the plaintiffs’ right to recover. Guest v. Guest, 74 Tex. 664, 12 S.W. 831, 832; Kauffman v. Brown, 83 Tex. 41, 18 S.W. 425, 427; Bethea v. Wall, Tex.Civ.App., (n. w. h.) 362 S.W.2d 414. Under such record, therefore, Summary Judgment could not be rendered for plaintiffs. See also Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906, 142 A.L.R. 77.

Reversed and remanded.


author: MASSEY, Chief Justice.

text:
    SAFEWAY STORES, INC., et al., Appellants, v. Kenneth AMBURN, Appellee.
    No. 16533.
    Court of Civil Appeals of Texas. Fort Worth.
    June 5, 1964.
    Rehearing Denied July 10, 1964.

      Clark, West, Keller & Clark, and W. B. West III, Dallas, for appellants Safeway Stores, Inc., and R. C. Newman.
    Daugherty, Bruner, Kelsoe & Lastelick, and Jerry Lastelick, Dallas, for appellant Hopper & Hawkins, Inc.
    Anderson & Connell, and Jack Connell, Wichita Falls, for appellee.
   MASSEY, Chief Justice.

Kenneth Amburn, as plaintiff, brought suit in Jack County against Bill Koch and his employer, Hopper & Hawkins, Inc., and against R. C. Newman and his employer, Safeway Stores, Inc. In connection with the transaction out of which plaintiff’s cause of action arose Hopper & Hawkins, Inc., was alleged to have been acting within the scope and course of its agency relationship with Safeway Stores, Inc.

Bill Koch was never served with citation, and for our purposes may be treated as having never been a party defendant. The other defendants were served. Each of them filed a plea of privilege to be sued in the county of residence. The hearing was held upon all of such pleas at one time. They were overruled. Venue of plaintiff’s cause of action was retained in Jack County. Each of the affected defendants brought an appeal to this court.

We have concluded that in so far as the decree affects R. C. Newman it should be reversed and the case, as to him, transferred to Tarrant County where he resides. We have concluded that venue of plaintiff’s case, in so far as it is against the two corporate defendants, was properly sustained in Jack County, and should be affirmed.

The evidence was wholly insufficient to establish a requisite prima facie case against Newman under any applicable subdivision of Vernon’s Ann.Civ.St.Tex. Art. 1995, “Venue, general rule”. We believe that plaintiff did make out a prima facie case, within the venue pleadings, as against Safeway Stores, Newman’s employer, because the trial court was at liberty to factually conclude that Hopper & Hawkins, Inc., acting by and through its agent, servant and employee, Koch, was itself acting as an agent for Safeway Stores, Inc., for purposes of the transaction. We reject the argument presented in behalf of Safeway Stores, Inc., that since Hopper & Hawkins was an independent contractor Safeway could not be liable for the tort committed by it through the individual who was the latter’s servant. Hopper & Hawkins was properly held under the doctrine of respondeat superior for and because of the acts of Koch.

Subdivision 7, “Fraud and defalcation”, to the general venue statute was relied upon by plaintiff, but we are of the opinion that his cause of action upon grounds of “fraud” was not maintainable, under the proof adduced upon the hearing, within the meaning and intent of that exception. In order to sustain venue under that exception, predicated upon allegations of “fraud”, all the constituent elements of '“actionable fraud” must be established. Texas Employers’ Insurance Association v. McDaniel, 286 S.W.2d 465 (Amarillo Civ.App., 1956, no writ), and cases therein •cited. Plaintiff’s proof was wanting in connection therewith.

Another exception relied upon by plaintiff to maintain venue in the county of suit was subdivision 9, “Crime or trespass”. 'The briefs devote considerable space to the ■matter of the tort of “false imprisonment”, it being plaintiff’s contention that the defendants, or one or more of them, had committed “trespass” in this respect. Generally, and as applied to this case, “false imprisonment” would mean “ ‘the wilful detention of another against his consent and where it is not expressly authorized by law, whether such detention be effected by an assault, by actual violence to the person, by threats or by any other means which restrains the party so detained from removing from one place to another as he may see proper.’ ” Fort Worth Well Machinery & Supply Co. v. Waggoman, 52 S.W.2d 306 (Fort Worth Civ.App., 1952), reversed on other grounds at 124 Tex. 325, 76 S.W.2d 1005, with that action effecting an approval of the term as so defined.

We are of the opinion that plaintiff’s proof upon the venue hearing failed to establish his case upon “false imprisonment”. We so hold.

But there is a variety of the forms of causes of action which would constitute active tort, amounting to a “trespass”, within the meaning and intent of exception or subdivision 9. It has been held that a showing of threats of criminal prosecution, abuse, and other overt acts wantonly and deliberately committed, which result in impairment of a plaintiff’s health and in physical injuries, may justify a trial court in overruling a plea of privilege where a claim of right to retain venue under the exception is asserted. See First Nat. Bank v. Childs, 231 S.W. 807, 809 (Austin Civ.App., 1921, error refused). Since the Supreme Court notation antedated June 14, 1927, it did not have the connotation presently attributed to like notations. Nevertheless it shows that jurisdiction was accepted and the result reached by the lower appellate court approved. In “Shepardiz-ing” the opinion we find that the decision has yet to be disapproved in the respect under consideration.

We are of the opinion, and so hold, that plaintiff’s proof was sufficient to establish a “trespass” within the meaning and intent of subdivision 9 to the general venue statute. In so holding we rely upon the cited case. Furthermore the proof was within the allegations of the pleadings to be considered in a test of venue. In the testimony of plaintiff Amburn, relative to a conversation held with Mr. Koch in Jack County very shortly before he signed a statement admitting embezzlement or misappropriation of Safeway property or funds, is found the following: “He had threatened me with Huntsville and the state penitentiary, and to take it up with the bonding company.” Amburn denied the fact of embezzlement or misappropriation by his pleadings and testimony. Further testimony was to the effect that Koch told Amburn that if he paid $500.00 (undoubtedly to or for the benefit of Safeway Stores, Inc., in reimbursement of the asserted misappropriation or embezzlement) he would not be prosecuted, would be given a release, and that no charges against him would be pressed. The plaintiff did, directly and as a result of Koch’s statements or representations, sign the confession presented, yield up his personal automobile and the title thereto, and signed a promissory note in the amount of $280.00. He further testified to physical debilitation proximately flowing from the action of which he complained.

This testimony established what was in former legal parlance called “trespass on the case” or merely “case”, and, within the meaning and intent of exception or subdivision 9 to the general venue statute, established a form of “trespass” in Jack County because of which the court was at liberty to retain venue in that suit as against Koch and/or those who would be responsible for his tort under agency principles.

But for our holding in said respect in reliance upon principles of law stated in First Nat. Bank v. Childs, and cases therein cited, we will state that we would have reversed the trial court and transferred plaintiff’s suit as to each defendant sued, served, and appearing.

As against the defendant R. C. Newman,, judgment is reversed and plaintiff’s suit is ordered transferred to a district court of Tarrant County, his residence. As against the corporate defendants, Safeway Stores, Inc., and Hopper & Hawkins, Inc., judgment of the trial court is affirmed.


author: WILLIAMS, Justice.

text:
    Thomas E. BEAIRD, Jr., Appellant, v. Jane Robbins BEAIRD, Appellee.
    No. 16354.
    Court of Civil Appeals of Texas. Dallas.
    June 12, 1964.

      Stephens & Stanton, Dallas, for appellant.
    Leonard E. Hoffman, Jr., Dallas, for ap-pellee.
   WILLIAMS, Justice.

Appeal from an order of the Domestic Relations Court of Dallas County denying appellant’s motion to reduce child support payments. In 196b the trial court rendered a final judgment of divorce dissolving the bonds of matrimony between appellant and appellee and decreeing that appellee have the custody of the two minor children. This judgment provided that appellant was to pay the sum of $250.00 per month as child support until -the youngest child had attained the age of eighteen years, or until further orders of the court. On July 23, 1963, the oldest of said children attained the age of eighteen years. Thereupon, appellant filed his motion seeking to reduce the child support payments from $250.00 to $125.00 per month. Appellee filed her motion to increase child support payments. Following a hearing before the court both motions were denied and appellant, only, appeals. We find no basis in law for disturbing this order and therefore affirm same.

Appellant, in his principal point on appeal, contends that it was an abuse of discretion on the part of the trial judge to fail to reduce the child support payments. In his second point he complains of the admission of certain testimony;

Inasmuch as this matter was determined by the trial court, without a jury, and since no findings of fact or conclusions of law were requested and none were filed, our consideration' of appellant’s points is limited by well defined rules of law. The court’s judgment implies all necessary fact findings in support of the judgment and in our review thereof we must only consider that evidence most favorable to the issue and 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. Any doubt as to the construction of the law arising out of the equity of the situation will be resolved in favor of the prevailing party. Smith v. Tipps, Tex.Comm.App., 229 S.W. 307; Shaw v. First State Bank, Tex.Civ.App., 13 S.W.2d 133. The discretion of the trial judge as to the amount to be paid for child support will not be disturbed on appeal unless the record affirmatively demonstrates a clear abuse of discretion. Hooks v. Hooks, Tex.Civ.App., 139 S.W.2d 305; Scott v. Fort Worth Nat’l Bank, Tex.Civ.App., 170 S.W.2d 576.

We have examined the record in the light of these authorities. Appellant supported his motion by showing that the older of the two children with which the original support order was concerned had attained eighteen years and therefore was no longer the subject of child support payments; that an older daughter with whom the original order was not concerned, was married and no longer lived with appellee; that appellant had remarried and his present wife has five minor children by a prior marriage; and that due to added cost of living, he was no longer financially able to contribute the sum of $250.00 per month as child support. Appellant earns $970.00 per month, which was substantially the same amount earned by him when the divorce was originally granted. He has remarried and is now contributing $150.00 per month to the house payments of the house he is now living in, together with other payments and expenses incident to his present household. In substance, he contends that his present expenses for his new family are approximately $787.00 per month and that his net pay amounts to about $800.00 a month.

Appellee testified that the total cost of expenses for maintaining the one minor child approximates $338.45 per month. This includes one-half of the house payments, a maid, food, dental bills, and other items of maintenance. The testimony reveals that, pursuant to the terms of the original property settlement agreement between appellant and appellee, appellant had agreed to-pay the monthly payments on the existing' mortgage of the home occupied by ap-pellee and her children. It is also undisputed that appellant had failed and refused to pay these payments and that appellee has-, been required to borrow the money to make same to avoid foreclosure.

It is elementary that each case involving the question as to the amount of child support payments must depend upon the facts of the particular case. Cockrell v. Cockrell, Tex.Civ.App., 298 S.W.2d 178. And a ruling for child support will be modified only if there has been a material change in circumstances or conditions.. 27B C.J.S. Divorce § 322(2), p. 695. A review of the evidence here reveals that the-changed conditions, as they apply to appellant, were primarily brought about due to-his subsequent remarriage. Of course he may remarry, but any economic changes, brought about by such remarriage must not militate against his dependent children.. Brito v. Brito, Tex.Civ.App., 346 S.W.2d 133. The very fact that one child reaches, the age of eighteen, and the appellant is thereby no longer legally required to contribute to his support, does not automatically reduce the child support payments by-one-half, as contended by appellant. The-court, in considering application for reduction, must consider all of the facts relating-to changed condition, as well as the fact that one child is not now dependent. From-a review of this testimony it is quite obvious that the failure on the part of appellant to comply with his contractual obligation to meet the house payments is a. material factor in support of the court’s refusal to modify payments. Certainly we cannot say that there is no evidence in this; record to support the court’s denial of reduction. Neither can we say that there is-. shown a clear abuse of discretion which would justify us in reversing the order.

Appellant’s second point complains of the admissibility of certain testimony relating to assistance given by appellee to the oldest child. We must assume that the trial court considered only admissible evidence in determining the final order. If the testimony was not admissible, as contended by appellant, we presume that the trial judge disregarded such testimony. Moreover, having reviewed the testimony complained of by appellant we find the admissibility thereof, if it was error, to be harmless. Rule 434, Texas Rules Civil Procedure; 41-B Tex.Jur., pp. 840-841.

The judgment of the trial court is affirmed.

Affirmed.


text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. WHITTENBURG & ALSTON, Appellee.
    No. 14260.
    Court of Civil Appeals of Texas. San Antonio.
    June 10, 1964.
    Kleberg, Mobley, Lockett & Weil, Corpus Christi, Hardy, Galindo & Sharpe, Brownsville, for appellant.
    North, Blackmon & White, Corpus-Christi, for appellee.
   BARROW, Justice.

This is an appeal by Missouri Pacific Railroad Company, carrier, from a judgment favorable to Whittenburg & Alston, shipper, rendered after a jury trial in a suit for damages to two shipments of cantaloupes in interstate commerce.

The special issues submitted to the jury as to each count were identical, except for car numbers and destinations, and the jury verdict is substantially set out below. Carrier presents two points: 1. Judgment should have been entered for it on Count I under the jury findings on Issues 3-5. 2. The trial court erred in not declaring a mistrial as to Count II, because of the jury’s failure to answer Issues 4 and 5.

Carrier asserts that this appeal involves only one fundamental question: “What must a carrier of perishables establish to constitute a defense to a claim for damage from spoilage of perishables?” It is urged that an answer favorable to carrier on Issue 4 established a defense by showing that the spoilage damage was not in any part caused by a failure of the carrier to comply with the instructions of the shipper or a failure to provide complete protection against all other damage except that resulting from one of the excepted causes.

This question is answered by the United States Supreme Court in Missouri Pacific Railroad Company v. Elmore & Stahl, 84 S.Ct. 1142 (1964), wherein it was said: “Accordingly, under federal law, in an action to recover from a carrier for damage to a shipment, the shipper establishes his prima facie case when he shows delivery in good condition, arrival in damaged condition, and the amount of damages. Thereupon, the burden of proof is upon the carrier to show both its freedom from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.” (a. The act of God; b. the public enemy; c. the act of the shipper himself; d. public authority; e. or the inherent vice or the nature of the goods.)

Appellant concedes that the shipper established a prima facie case on both counts. The carrier failed to discharge its burden of securing a jury finding on either count that the damaged condition of the cantaloupes was due solely to one of the excepted causes. A favorable answer to Issue 4 does not discharge this burden. Therefore, the trial court properly rendered judgment for shipper on both counts.

The judgment is affirmed.

      . COUNT I.
      “Issue No. 1. The cantaloupes were in good condition at origin.
      “Issue No. 2. At destination, they were in a worse condition than when delivered to the carrier at origin.
      “Issue No. 3. The defendant and its connecting carriers performed without negligence the transportation services as provided by the terms and conditions of tlie bill of lading and as instructed by the shipper and in a reasonably prudent manner as to matters not covered by the bill of lading or shipper’s instructions.
      “Issue No. 4. The arrival of. the cantaloupes in a worsened condition than when received by the carrier at origin was not in any part caused by the failure of the carrier to comply with the instructions of the shipper and to furnish proper protective care.
      “ ‘Proper protective care,’ as defined, is the ‘carrying out by the carrier of the orders given by the shipper regarding the transportation and care of the commodity; and the providing of complete protection against all other damage except that resulting from (1) the carrying out of the order of the shipper without negligence; (2) an inherent vice or defect in the commodity itself; (3) an act of ■God, the public enemy, or the authority of law; and (4) natural shrinkage.’
      “Issue No. 5. The arrival at destination of the cantaloupes in a worsened condition was not in any part caused by the failure of the carrier' to transport and care for them in a reasonably prudent manner as to all matters not covered by the shipper’s instructions and the bill of lading.
      “Issue No. 6. The worsened condition on delivery at destination was not due solely to an inherent vice existing at the time the cantaloupes were received by the carrier at origin.
      “Issue No. 7. The worsened condition of the cantaloupes at destination than when received at origin was not caused solely by the carrying out, without negligence, of the specific instructions for handling the shipment given by the shipper to the carrier.”
      Issues Nos. 8 and 9 relate to the amount of damages.
      COUNT II.
      The jury verdict is the same as above, except:
      “Issue No. 3. The carrier did not perform without negligence.”
      The jury was unable to agree on the answer to Issues Nos. 4 and 5, and the verdict was returned with these issues unanswered.