author: SELLERS, Justice.

text:
    O. E. HARTSFIELD, Appellant, v. ANCHOR CASUALTY COMPANY, a/k/a Agricultural Insurance Company, Appellee.
    No. 60.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 8, 1964.
    Rehearing Denied Nov. 5, 1964.

      Robert Roch, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellant.
    H. H. Prewett, Foreman, Dyess, Prewett, Henderson & Cantey, Houston, for appellee.
   SELLERS, Justice.

This case originated in the 129th District Court of Harris County as a compensation case in which O. E. Hartsfield was plaintiff and Anchor Casualty Company was defendant.

On July 20, 1961, plaintiff was doing carpenter work on an apartment where Wolff Construction Company was the contractor for an apartment project. On this date plaintiff was standing on a stool and was hanging a' door on a cabinet when the stool went out from under him and he fell to the floor; Mr. Hartsfield was taken by ambulance to- a hospital where he was treated'for a' compression fracture of the first lumbar vertebra. He never returned to full-time work.

The trial was to a jury and the court submitted some sixteen Special Issues, all of which were answered by the jury in favor of the plaintiff. The jury found that plaintiff was totally and permanently injured while working for Walter F. Wolff and H. G. Wolff, doing business as Wolff Construction Company. The jury further found in favor of plaintiff for a lump sum settlement.

After the jury returned its verdict the plaintiff filed a motion for judgment on the jury’s findings; the defendant filed motion for judgment non obstante veredicto. The trial court, after hearings on the motions denied the motion of plaintiff and granted defendant’s motion and entered judgment that plaintiff take nothing. From this judgment the plaintiff has duly prosecuted this appeal. This appeal involves the jury’s answers to Special Issues 1 and 2, which are as follows;

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that on July 20, 1961,
O. E. Hartsfield was not an independent contractor?
“ANSWER: ‘He was not an independent contractor’
“ ‘He was an independent contractor.’
“An ‘independent contractor’ as used herein, is any person who in the pursuit of a business or occupation undertakes to do a particular work for other persons, and who has exclusive control of such work in respect to the details of the work to be performed and over whom the person for whom the work is being done has no right of control as to such details, and who represents the will of the person by whom the work is done only as to the results of his work and not as to the means or method by which it is accomplished.
“If you have answered Special Issue No. 1 ‘He was not an independent contractor’, and only in that event, then answer:
“SPECIAL ISSUE NO. 2
“Do you find from a preponderance of the evidence that O. E. Hartsfield was an employee of Walter F. Wolff and H. G. Wolff, doing business as Wolff Construction Company on July 20, 1961?
“ANSWER: ‘We do’ or ‘We do not.’
“You are instructed by the Court that within the meaning of the Workmen’s Compensation Law of Texas an employee is a person in the service of another under any contract of hire, expressed or implied, oral or written, whereby the master retains or exercises, or has the right to exercise, the right of control in directing, not merely the end sought to be accomplished, but also the means and details of its accomplishment, not merely what shall be done, but how it shall be done.”

It is the plaintiff’s contention that the evidence is sufficient to support the jury’s answers to these issues, the trial court having followed the defendant’s contention that there is no evidence to support the jury’s findings.

In deciding this issue it is this court’s duty to look to the evidence most favorable to the verdict and reject all evidence unfavorable to the jury’s findings. Elder v. Aetna Casualty & Surety Co., 149 Tex. 620, 236 S.W.2d 611.

We take the following statement of the evidence from appellant’s brief:

“As stated before, the Plaintiff went to work for the elder Mr. Wolff, H. G. Wolff, around 1951 or 1952 and worked off and on for him for many years. Plaintiff began working in February of 1961 for Mr. H. G. Wolff and his son, Walter F. Wolff, on an apartment project, described as the ‘Attacks Street’ job, and while the Plaintiff was working on that job, Mr. Walter F. Wolff asked him- to sign some papers, with a statement, ‘here’s some papers concerning your insurance; I’d like to get you to sign them for me.’ The papers were not filled out, and Plaintiff did not read the papers, but testified that he signed one or more copies of the papers handed to him by Mr. Wolff. Plaintiff had never heard of an apartment job described as the ‘Sixth and one half street job’ when he signed the papers in February while he was on the ‘Attacks Street job.’
“After completing the ‘Attacks Street job’, there was a lapse of a week or two before Plaintiff began working on the ‘Seventeenth Street job’. At the time he began working on the ‘Seventeenth Street job’, there was no agreement that he would be working on the ‘Sixth and one half street job’, but while he was working on the ‘Seventeenth Street job’, he learned of the ‘Sixth and one half street job’. Shortly after finishing his work on the ‘Seventeenth Street job’, Plaintiff started to work on the ‘Sixth and one-half street job’. He was employed to do trim carpentry work on the apartments on the ‘Sixth and one half street job’, and was to be paid $175.00 per apartment. Plaintiff and Mr. Walter Wolff had some discussion regarding the laying of some pine floors in the ‘Sixth and one half street job’ apartments, which the Plaintiff did not do, but made arrangements for his son to perform.
“Defendant offered into evidence Defendant’s Exhibit No. 5 which purports to be a ‘labor contract’’ cpvering ten apartment units at 3514 and 3521 Attacks. Plaintiff testified that he did sign some blank pieces of paper while he was working on the ‘Attacks street job’, and that this appeared to be his signature on Defendant’s Exhibit No. 5. Defendant also offered into evidence Defendant’s Exhibit No. 6, which purports to be another ‘labor contract’ to trim out three units of apartments at 211 West Sevénteenth Street; lay pine floor in four units of apartments at 722 East Sixth and one half street; and trim out five units of-apartments at 722 East Sixth and one half street. Plaintiff testified that it was his signature on Defendant’s Exhibit #6. Plaintiff testified regarding Defendant’s Exhibit No. 6 as follows on cross-examination:
“ ‘Q. Now this — now, this is an identical contract as Defendant’s Exhibit No. 5 is it not, except for the work that is to be done? I am talking about it as a printed; I didn’t make myself clear.
“A. You remember these forms I signed on Attucks Street were not filled out, and this is one of them.
“Q. And it is your testimony that this was signed when you were work-over on Attucks Street ?
“A. Yes, sir.
, “Q. And it wasn’t signed on the 2nd day of June at all?
“A. No, sir, it wasn’t.
“Q. When was it signed?
“A. At the time that I was — the other one was signed on Attucks Street.
“Q. You don’t know when that was ? Was it — * * *
“A. (Interruption) Somewhere in February.
“Q. And you signed it and this one, No. 5 and Defendant’s No. 5, you say it was in blank?
“A. It was. I was working and the other man came around. * * *
“Q. (Interrupting) Just answer my question. * * *
■ “MR. ROCH: (Interrupting) Your Honor, I think he is entitled to answer the question. We object to counsel cutting him off.
“THE COURT: Of course, the witness is entitled to explain it. He should conclude his answer before you ask the next question.
“Q. I merely asked you if this was signed in blank; was it?
“A. It was signed in blank.
“Q. All right.
“Now, you — you were given a copy of this were you not, Mr. Hartsfield?
“A. No, sir, I did not receive a copy of it.
“Q. You didn’t get a carbon copy of either one of these contracts?
“A. No, sir, I didn’t.
“Q. Now, are you sure about that?
“A. Absolutely.’
“Plaintiff testified regarding his arrangement with Mr. Walter Wolff concerning the ‘Sixth and one half street job’ as follows:
“Q. Let me ask you this:
On this Sixth and a half street job, what were you supposed to do ? Trimming out apartments again, or what?
“A. Yes, sir, trimming out apartments.
“Q. Was that for so much an apartment?
“A. Yes, sir.
“Q. How much was it an apartment, if you remember?
“A. I believe it was $175.00.
“Q. Per apartment?
“A. Per apartment.
"Q. All right, sir, Was there also some flooring that Mr. Wolff wanted laid in those apartments?
“A. Yes, sir, there was some pine floors to be laid.
“Q. Did he talk with you about that ?
“A. Yes, sir.
"Q. Did you do that work?
“A. No, sir, I did not.
“Q. What happened about that?
“A. I told him I had a son that could lay ’em, lay that for him. And I made the arrangements for my son to come lay the floor.
“Q. Did your son come lay the floor?
“A. Yes, sir.
“Q. Who paid him; did you pay him or did Mr. Wolff pay him?
“A. Mr. Wolff paid him.
“Q. Do you know how Mr. Wolff paid him?
“A. In cash.
“Q. That was for laying the floors ?
“A. Yes, sir.
“Q. Now, did you start about that time, or a little bit later, working on the apartments ?
“A. Yes, sir, I did.
“Q. Now, let me ask you this:
“When you talked to Mr. Wolff about working these apartments, did he send specifications to you, plans, and say, ‘Now, I have got five apartments, or so many apartments, that I want trimmed out, and I want you to give me a bid on how much money you will do it for.’ Did he do that?
“A. No, sir; no, sir.
“Q. All right. Did he — what did he do; how did he come to this $175.00, or whatever the figure was, whatever he was going to pay you, apparently how did that come about?
“A. He had two of his other men that was working for him trim out an apartment, as he wanted it done; and he carried me to that apartment, showed me how it was fixed, and that was wanting to use this as a model trimming out these other apartments for him.
“Q. Did he * * *
“A. (Interrupting) No, he told me how much he would pay.
“Q. He didn’t ask you, then ?
“A. No, sir.
"Q. He told you, ‘You do this for X dollars’, is that right?
“A. Yes, sir.
“Q. Did he tell you you could change it up any, or anything?
“A. Yes, sir.
“Q. He told you you could do it any way you wanted to?
“A. No sir, had to be done as-according to the other apartment, or as he directed.
“Q. All right. Well, did you start working then?
“A. Yes, sir, I did.
“Q. Did you furnish the supplies, the nails and the boards and the various things?
“A. No, sir, I did not.
“Q. Did Mr. Wolff have those provided for you?
“A. He did.
“Q. He had them there.
“A. He had them there. Someone did; I presumed it was Mr. Wolff, but I’m not sure.
“Q. At least you didn’t do that,
“A. I didn’t do it.
“Q. And you furnished your own hand tools, I assume?
“A. That’s right.
“Q. You had your own carpenter’s tools ?
“A. Yes, sir.’
“Plaintiff testified that he had been working at the ‘Sixth and one half street job’ approximately a week and a half or two weeks when he received his injury. Regarding the supervision of his work Plaintiff testified as follows :
“ ‘All right, sir.
“Now, during the time that you were working there at those apartments did Mr. H. Wolff or Mr. Walter Wolff eyer come .around where you were working?
“A. They did.
“Q. All right. Did they inspect what you were doing?
“A. Yes, sir, they did.
“Q. Did they tell you how to do it?
“A. Yes, sir, if it wasn’t up to what they thought it was, right; they had me to do it according to the way they wanted it.
“Q. Let me ask you this, now:
“You had been doing finish carpentry work for about thirty years, haven’t you?
“A. Yes, sir.
“Q. And I imagine you are pretty well able to do it without anybody having to tell you how to do it, aren’t you ?
“A. I think so.
“Q. You felt like you were a good carpenter, didn’t you?
“A. Very good, or fairly good.
“Q. All right.
“Now, can you remember any specific occasion where either Mr. Walter Wolff or Mr. H. Wolff had to tell you to do something different than the way you had done it on any one of those apartments?
“A. Yes, sir.
“Q. Tell the jury about that.
“A. Well, one particular instance was where a cabinet had — I had built a bar with an overhead cabinet, and I squared the cabinet out from the wall from which it was joined to.
“But, that wall wasn’t square with that wall over yonder (indicating with his hands) where the rest of the cabinet was built. So Mr. Wolff comes in and sees the difference * * *
“Q. (Interrupting) What Mr. Wolff was that?
“A. That was Walter Wolff. Shall I continue?
“Q. Yes, sir, excuse me.
“A. Mr. Wolff comes in and looks at it, as well as I remember; he measured the distance from one end to the other and had me to move it over where it would square with the other cabinet.
“Q. Well, did he say to you; ‘Now, Mr. Hartsfield, I think it would be for your benefit to move it over?’
“A. No, sir, he did not.
“Q. Did h.e say, ‘Move it over’? ,
“A. He said ‘move it over.’
“Q. All right. And did you move it?
“A. I did.
“Q. You did what he tpld you to do?
“A. Yes, sir.
“Q. Had you built that cabinet according to the way the other apartments showed it?
“A. Yes, sir.
“Q. But he didn’t want it that way ?
“A. No, sir.
“Q. And he had you move it?
“A. He had.
“ * * *
“Q. Would you have obeyed anything Mr. Wolff told you to do on that job, sir?
“A. Yes, sir, I would.”

The record reflects that Mr. Hartsfield usually went to work when the other employees did, ate his lunch at the same time, and quit in the evenings at the same time. On cross-examination Mr. Hartsfield testified :

“He would come around about twice a day, and if he saw anything that wasn’t to his liking, or to his suiting, why, he would tell me about it and I would fix it that way, according to the way he wanted it.”

It was the testimony of Mr. Hartsfield that he did not sign any contract for the Seventeenth Street Job or at the Sixth and One Half Street job, that when he signed the blank papers the Sixth and one half street job where he was injured was not even in contemplation of the parties. It is undisputed by the defendant’s witnesses that Mr. Hartsfield was an excellent carpenter and needed little supervision at any time.

One of the witnesses for the defendant was doing the same kind of work that Mr. Hartsfield was doing but under a verbal contract; and on the issue of whether or not the Wolffs had right of control, his testimony was to the effect that they certainly did and he so recognized their rights. Mr. Walter F. Wolff testified in behalf of defendant that the contract of June 2 was signed by Mr. Hartsfield at that time, and on cross-examination it was shown that Mr. Wolff admitted that the contract involving the Seventeenth Street job, as well as the Sixth and one half street job, and at the time it was purported to be signed, the Seventeenth Street job had been completed. His only explanation of this discrepancy was that he was a poor bookkeeper. Mr. Hartsfield and his wife testified that after Mr. Hartsfield was injured and in the hospital, Mr. Wolff came by the hospital and in the presence of Mr. Hartsfield and Mrs. Hartsfield advised them not to worry that his Workmen’s Compensation Insurance would take care of Mr. Harts-field and his bills.

Under this evidence it is our opinion that the same amply supports the jury’s findings to the two Special Issues above set out. The jury certainly had a right to disregard the so-called written contract completely. Newspapers, Inc. v. Love, Tex., 380 S.W.2d 582. When these contracts are eliminated there is little else to evidence a contract other than Mr. Hartsfield was an employee of the Wolffs. He furnished his own tools; so did .the other employees. Hartsfield was not to furnish -any of the materials; he was not to be the judge of the materials used. Surely if anybody had that duty it was the Wolffs.

Without going into all of the evidence, we think the above is sufficient to support the jury’s findings, and our holding is supported by the following authorities: Southern Underwriters v. Samanie, 137 Tex. 531, 155 S.W.2d 359; Dealers National Insurance Company v. Jackson, Tex.Civ.App., 363 S.W.2d 297; Pan American Insurance Company v. Stokes, Tex.Civ.App., 370 S.W. 2d 955; Gaines v. Allstate Insurance Company, Tex.Civ.App., 353 S.W.2d 471; American General Insurance Company v. Sims, Tex.Civ.App., 278 S.W.2d 586.

There has been filed in this cause a Suggestion of Death filed by Mrs. Maude Hartsfield, and informs this Court that the appellant in this cause died on March 22, 1964, and that Mrs; Hartsfield is his widow and cqmmunity. survivor, and moves this Court to substitute her as appellant in this cause.

This appeal was pending when the appellant died, and we are of the opinion that the Suggestion of .Death is well taken and Mrs. Hartsfield will be substituted as appellant in this cause. The holding is in keeping with Rule 369-a, Texas Rules of Civil Procedure:

“If any party to the record in a cause dies after rendition of judgment in the trial court, and before such cause has been finally disposed of on appeal, such cause shall not abate by such death, but the appeal may be perfected and the Court of Civil Appeals or the Supreme Court, if it has granted or thereafter grants a writ therein, shall proceed to adjudicate such cause and render judgment therein as if all the parties thereto were living, and such judgment shall have the same force and effect as if rendered in the lifetime of all the parties thereto. If appellant dies after judgment, and before the expiration of the time for perfecting appeal, sixty days after the date of such death shall be allowed in which to perfect appeal and file the record, and all bonds or other papers may be made in the names of the original parties the same as if all the parties thereto were living.”

The Supreme Court, in the case of Galveston City Ry. Co. v. Nolan, S3 Tex. 139, took occasion to discuss the statute from which this present rule is derived, and held:

“The manifest object of the statute is to allow litigation in the Supreme Court to proceed unaffected by the death of the parties, and the proviso, in the same spirit, hastens determination in that court of useless litigation, but enacts no new forfeiture or loss of rights, as the consequence of death. The proviso was designed not to vacate judgments, but to guard against the abuse of the statute by those whose right of recovery was dependent on the establishment of their original cause of action, and whose cause of action therefore did not survive.”

This Court has reviewed the appeal and find it necessary to reverse the trial court’s judgment which was entered non obstante veredicto, and the trial court is hereby ordered to enter judgment for appellant in keeping with the jury’s verdict for a lump sum recovery, with interest from date of the original erroneous judgment of the trial court. Nederlandsch-Amerikaansche-Stoomvaart-Maatschappij; Holland-American Line v. Vassallo, Tex. Civ.App.,' 365 S.. W.2d 650.

The appellee contends that this Court would be in error in allowing the lump sum award of the jury to stand and that we should allow at most only the amount accrued in weekly payments up to. the date of the death of the appellant. With this contention we cannot agree. There was no judgment for weekly payments entered in this case and none was authorized by the jury verdict. We have found that the jury’s verdict was supported by the evidence, and we do not feel that we would be authorized to disturb its findings on the lump sum settlement.

We do not regard the case of Travelers Insurance Company v. Bailey, 375 S.W.2d 540, as controlling in this case for the reason if no other than that the judgment there was for weekly benefits and not a. lump sum.

Nor do we regard the case of Texas Employers Ins. Ass’n v. Phillips, 130 Tex. 182,. 107 S.W.2d 991, as controlling for the reason that the case on appeal had been reversed and had been re-tried in the trial court..

No Texas case is found involving our fact situation; however, we think our holding is supported by the case of Monson v-Battelle, 102 Kan. 208, 170 P. 801 (Kansas) •case, from which we quote:

“That decision, however, if accepted as sound, would not control here. In the present case the plaintiff had obtained an absolute personal judgment requiring the immediate payment of a fixed amount. It was the legal duty of the defendant to pay it at once, unless a stay should be procured pending an appeal. If payment had been made, the money would have been wholly at the disposal of the plaintiff. If the final result is an affirmance, it will amount to an adjudication that the rights of the parties shall remain as fixed at the time the judgment was rendered. The defendant gains no immunity from the fact of his having taken an appeal which is ultimately determined not to have been well founded.”

Judgment of the trial court is reversed and judgment ordered entered in the trial court in keeping with the jury’s verdict.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    Loran W. HILL et al., Appellants, v. Melecio VILLARREAL, Jr., et al., Appellees.
    No. 14276.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 7, 1964.
    Rehearing Denied Nov. 4, 1964.

      Sam S. Wolf, Dibrell, Gardner & Dotson and Carlos C. Cadena, San Antonio, for appellants.
    Wolfif & Wolff, San Antonio, for appel-lees. >
   BARROW, Justice.

Appellants, the City of San Antonio and six home owners, brought suit on March 28, 1957, to perpetually enjoin Melecio-Villarreal, Jr., and V. and L. By-Products Co., Inc., a' corporation wholly owned by Villarreal, from operating a rendering plant in the southwest part of. the City of San Antonio. The injunction was sought because of the location of the plant and not. for its manner of operation. . Appellants-stipulated that they did not assert a claim for damages.

This is the second appeal of this casein March, 1962, the trial court sustained exceptions to appellants’ petition, primarily upon their failure to allege negligence, and upon appellants’ refusal to amend the petition was dismissed. The Waco Court of Civil Appeals reversed this dismissal and remanded the case for trial. Hill v. Villarreal, 362 S.W.2d 348.

Trial was then had before a jury and findings were made which established a public and private nuisance, however, the trial court refused to enjoin appellees upon. the theory of a balancing of equities. Appellants, haying sought no damages, were denied any relief.

Appellees’ rendering plant was lawfully constructed in 1957, in a zone of the City permitting this use. This zone is the lowest zone of the City and at the time the plant was constructed, two tanneries, a motor freight depot, and a furniture upholstering plant were located nearby. Although the area had been zoned Second Class Manufacturing since 1938, several residential subdivisions were constructed in the zoned area or adjoining same, and, at the time construction of the rendering plant was started, many homes, including those of appellants, were in the immediate vicinity of the rendering plant. Seventeen witnesses testified to the offensive and nauseating odors, as well as the unsightly conditions created solely by the plant, which permeated the neighboring homes. In addition, it was stipulated that over 200 other witnesses would testify to the same facts. This evidence fully supports the findings of a public and private nuisance. Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615 (1950); City of Temple v. Mitchell, Tex.Civ.App., 180 S.W.2d 959, no writ hist.; King v. Columbian Carbon Co., 5th Cir., 152 F.2d 636.

In Storey v. Central Hide & Rendering Co., supra, petitioners sought to enjoin the operation of a rendering plant upon evidence, strikingly similar to that in this case, which was held to establish a nuisance as a matter of law. The question presented was whether the nuisance should be abated or petitioner relegated to suits for damages for the injuries suffered by virtue of respondent’s operation of the rendering plant. The Supreme Court, after a full discussion of the law applicable to nuisances and their abatement, held that an abatement of a lawful place of business is a harsh remedy, and that there should, have been a balancing of equities in order to determine if an injunction should be granted.

The balancing of equities is one to be determined by the chancellor in accordance with established equitable rules and principles. Texas Lime Co. v. Hindman, 300 S.W.2d 112, aff. 157 Tex. 592, 305 S.W. 2d 947 (1957); Fargason v. Economy Furniture, Inc., Tex.Civ.App., 356 S.W.2d 212, writ ref. n. r. e.; Lamb v. Kinslow, Tex.Civ.App., 256 S.W .2d 903, writ ref. n. r. e.; Georg v. Animal Defense League, Tex.Civ.App., 231 S.W.2d 807, writ ref. n. r. e.; Oliver v. Forney Cotton Oil & Ginning Co., Tex.Civ.App., 226 S.W. 1094, no-writ hist.

The issue presented in this case is thus one involving the conflicting rights of the parties in the respective uses of their properties. In resolving this issue favorably to appellees after balancing the equities, the trial court found: appellees are engaged in an essential and necessary business which promotes the general welfare and good health of the citizens of San Antonio; a rendering plant helps to conserve what would otherwise be wasted and helps to-afford an efficient and economical means-of disposing of dead animals, scraps and offal; the operation of the rendering plant is not a nuisance per se; appellees’ plant is-of permanent structure erected on land costing $17,000 at a construction cost of $36,000 with equipment costing $30,000, and that it would cost many thousands of dollars to move the plant; appellees bought the land, contracted the construction of the building and ordered the equipment with a total expenditure of about $29,000, before any objection to the plant was made; the plant is in a zone permitting this use and there is not another location that could be selected, within a reasonable range of the City, with the necessary utilities and zoning, which would not be subject to similar objections; similar type industries were already located in this area; the building and equipment were designed and-installed by competent persons, and the rendering plant' is being operated in the • usual • and customary manner. The trial court concluded that the loss or inconvenience to- the individual appellants' and the City is not comparable' or commensurate with the loss to the appellees and the danger and inconvenience to the public resulting from the granting of the injunction.

. Appellants urge that the trial court improperly made these findings, since this was a jury trial. It is seen, however, that these findings are based either on the. undisputed evidence or on the conclusions the trial court, as chancellor, drew from the evidence. The evidence was undisputed as to the amount of money expended in putting appellees’ plant in operation and the dates that each was incurred. There was no evidence of another site in the City which would'meet the utility and zoning requirements of a rendering plant that would not have similar objections. There was evidence that the area surrounding Lake Mitchell, where the City sewage is carried, had necessary utilities, but the trial court apparently concluded that this area, which is outside the City, is not within reasonable range of the City. The trial court apparently concluded that the tanneries were the same type of industry as the rendering plant. It was undisputed that a rendering plant performs a service for the general public and this was the only commercial rendering plant in the City. There was one outside the City limits operating without sewage facilities.

Appellants further urge that the trial court failed to consider the findings of the jury in balancing the equities, and that the finding of the trial court that the equities are in favor of appellees is contrary to the evidence, particularly since appellees were placed on notice that they would create a nuisance before any substantial work had been done in the construction of the plant.

The judgment provides in part:

“And the court without considering the findings of the Jury herein but instead considering the entire record in this cause including the stipulations appearing of record herein and all evidence concerning whether or not the court should balance the equities herein between * * * plaintiffs * * * and defendants * * * makes the following findings:, (those heretofore set out).”

Appellants assert that this recitation demonstrates that the trial court ignored the findings of the jury relating to the odors, scents and flies which came solely from appellees’ plant and substantially interfered with appellants’ use of their property. The record does not support this construction.

Appellees did not file a motion for judgment non obstante veredicto. They did file a motion for judgment in which they asserted, contrary to the holding of the Waco Court of Civil Appeals on the first appeal, that a negligence finding was necessary to support appellants’ cause of action. In view of the answers of the jury to Issues Nos. 10 and 11, appellees urged that they were entitled to judgment. In the alternative, they urged that a balancing of the equities required a refusal of the injunction. The trial court refused to grant appellees’ motion for judgment on the verdict and the recitation was to show that judgment was granted denying the injunction after a balancing of the equities under the entire record.

We have examined the entire record and cannot say that the trial court abused its discretion in denying the injunction after balancing the equities under all the evidence in this case. Storey v. Central Hide and Rendering Co., supra.

Appellant City urges that the rule of balancing of equities is not available against it as the court would thereby be interfering with its police power to abate a public nuisance. We disagree. It is settled law that although a home rule city is given statutory power to define and declare a nuisance, the determination of whether or not something which is not a nuisance at common law or per se is in fact so, is a justiciable question for a court of competent jurisdiction. Crossman v. City of Galveston, 112 Tex. 303, 247 S.W. 810 (1923).

We see no valid reason why a city seeking to invoke the equitable powers of the court through the harsh remedy of injunction should not be governed by the same rules as any other litigant. The rule of balancing of equities has been applied in suits to abate a nuisance maintained by a city. Hogue v. City of Bowie, Tex.Civ.App., 209 S.W.2d 807, writ ref n. r. e.; Mitchell v. City of Temple, Tex.Civ.App., 152 S.W.2d 1116, writ ref.; Boyd v. City of San Angelo, Tex.Civ.App., 290 S.W. 833, writ ref. See also: McKee v. City of Mt. Pleasant, Tex.Civ.App., 328 S.W.2d 224, no writ hist.; Lower Nueces River Water Supply District v. Live Oak Co., Tex.Civ.App., 312 S.W.2d 696, writ ref. n. r. e.; Gillespie County v. Fredericksburg Land Co., Tex.Civ.App., 168 S.W. 9, no writ hist.

The trial court therefore properly considered the equities of all parties in determining whether to grant the injunction.

The judgment is affirmed.

      .Verdict of Jury:
      1. Operation of the rendering plant causes foul odors and scents to be given off into the air surrounding the area where such plant is located.
      2. Such odors or scents are offensive and obnoxious to people of ordinary sensibilities, residing or working in the area surrounding the plant and within one-half mile thereof.
      3. Such odors and scents destroy the enjoyment and comfort of people with ordinary sensibilities, in the use of their residences, situated in the area surrounding the plant and within one-half mile thereof.
      4. Such odors and scents reduce the efficiency of people with ordinary sensibilities, working in the area surrounding the plant and within one-lialf mile thereof.
      5. Operation of the rendering plant causes -the accumulation of carcasses, offal and refuse in open containers in .and. about the premises of the plant.
      6. Such open containers did. not .become'a breeding place for flies, maggots and vermin.
      7. Conditionally submitted and not answered.
      S. The odors and scents complained of in the area surrounding the plant and within one-half mile thereof come solely from the plant in question.
      9. The flies, maggots and vermin complained of in the area surrounding the plant and within a one-mile radius thereof come solely from the plant.
      10. A person of ordinary prudence, in the exercise of ordinary care, in the same or similar circumstances, would have constructed the rendering plant on the site in question in the City of San Antonio.
      11. A person of ordinary prudence, in the exercise of ordinary care, in the same or similar circumstances, would operate-a rendering plant on the site in question.
      12. Conditionally submitted and not answered.
      13. Conditionally submitted and not answered.
      14. Conditionally submitted and .not answered.


author: BELL, Chief Justice.

text:
    Gus S. WORTHAM, Appellant, v. Harry G. NEVINS, Appellee.
    No. 14321.
    Court of Civil Appeals of Texas. Houston.
    Oct. 22, 1964.
    Vinson, Elkins, Weems & Searls, Dave NcNeill, Jr., Houston, for appellant.
    Joel W. Cook, Houston, for appellee.
   BELL, Chief Justice.

Appellee was the holder of record title to Lot 149 of Hahl’s Suburban Farms Subdivision D located in Harris County. Appellant defended against appellee’s trespass to try title suit by a plea that he and his predecessors in interest had acquired title under the 10 year statute of limitation. A jury was empanelled to hear the case but at the conclusion of the evidence the court, upon motion by the appellee, withdrew the ■case from the jury and rendered judgment for the appellee. The sole question for review is whether the trial court was in error in not submitting the issue of whether appellant and his predecessors in interest had satisfied the requirements of the 10 year 'statute of limitation.

Lot No. 149 contains 10 acres of land. On December 1, 1925, C. W. Hahl Company, through its president, C. W. Hahl, executed a contract of sale with Mrs. Mary Gibbs of Cook County, Illinois, under which it agreed to convey the property to Mrs. Gibbs upon h,er. compliance with its terms. On November 24, 1931, the same company, .through its same president, executed a gen-.erál. warranty deed to Mrs. Gibbs. During •the .year's, material to our inquiry, the lot was assessed!- for taxes in the name of Mrs. Gibbs by all taxing agencies and they were paid by her during her life and after her death were paid by her daughter, Mrs. Mary Gibbs Kerting, who had inherited the lot. Tax receipts in Mrs. Gibbs’ name covering the years 1937 — 1951 were introduced by ap-pellee. Mrs. Kerting died on August 17, 1952. Appellee inherited from her. No administration was ever taken out on Mrs. Kerting’s estate. On March 8, 1950 Mrs. Kerting conveyed a right of way on the north 60 feet of the lot to the Harris County Flood Control District. These are the acts of ownership that Mrs. Gibbs and Mrs. Kerting asserted with respect to the land as shown by the record. Mrs. Kerting lived jn- California.

What use, if any, was made by anyone of Lot 149 prior to 1943 is not reflected.

On April 15, 1943, C. W. Hahl Company, through its president, C. W. Hahl, conveyed -to M. -B. Traweek several enumerated lots. We need only notice that among the lots conveyed by this general warranty deed were Numbers 152, 156 and the east part of Lot 160. Lots 152 and 156 each contain 10 acres and the east part of 160 contains 14.83 acres. The deed to these lots was filed for record April 29, 1943. We notice only these three lots because they were the only ones conveyed that lay within the barbwire enclosure that we will now notice.

At the time of this conveyance to Tra-week there was a four-strand barbwire fence that enclosed various lots in the C. W. Hahl subdivision. The lots within the enclosure contained acreage aggregating approximately 220 acres. Who built the fence and for what purpose is unknown. -The fence is described in the testimony as beginning at the southwest comer of Lot 160. This would be the southwest corner of the subdivision. It then ran along the south line of Lots 160 and 161 to the southeast comer of Lot 161. This last point would be in the west line of Addicks Road as shown on the plat of the subdivision. The road is referred to in the testimony as “Jack Rabbit Road.” It then ran north to the northeast corner of Lot 141. It then ran west along the north lines of Lots 141, 149, 150, 156 and 157 to the northwest corner of 157. This last call takes the fence along the north line of the subdivision to its northwest corner. The fence then ran south along the west line of the subdivision to the place of beginning. While the location of the fence was thus given and as thus located would enclose about 220 acres, it appears from the testimony that Lots 153 and 161 were occupied and were also fenced on their north and west sides. These two lots together contain 41 acres so that the enclosure of these two lots by their north and west fence would leave about 180 acres enclosed by the outside fence that was not used other than by Mr. Traweek until he transferred possession. The witnesses referred to the acreage within the enclosure as 200 acres but we have calculated it from the plat. The outside fence would cross two dedicated streets, Bryan Drive and Hockley Drive. These two streets run west from Addicks road to the west line of the subdivision. While they have been dedicated, they have not been opened or used as streets, according to the testimony.

Mr. Traweek testified that in January of 1943 he had bought 110 acres from a man named Crabby. It lay on Jack Rabbit Road and was south of the land enclosed. At one point he testified Crabby had been using it. He bought from Crabby in January, 1943. He said at one point that he started claiming it after buying the other 110 acres from Crabby. He testified that after buying from Crabby he recognized that Mr. Hahl owned some of the pasture in the enclosure to the north. He didn’t know who owned the other land in the pasture; He went to Hahl and told him he wanted to buy what he owned in the pasture. Then-followed the deed to the three lots mentioned. At one point he stated he started claiming it when he bought from Crabby. It is difficult for us to tell whether he was referring' to land in the enclosure or the 110 acres south of the enclosure that he bought from Crabby. However, it seems to us any claim under Crabby is overcome by his voluntarily going to Hahl and wanting to purchase ’from Hahl whatever Hahl owned in the pasture. He did not know what Hahl owned, did not check to see what Hahl owned, and he did not testify he claimed whatever Hahl did not own. He was asked this question; “After you bought from Hahl you started claiming it?” He anszvered: "I was using it.” (emphasis ours except where otherwise noted). He said Hahl had been using it. After he (Traweek) started using it he tore up part of the old fence land replaced it. He kept the fence repaired. He grazed about 250 head of .range cattle in the pasture for the two years he kept and used it." He did nothing to show he was' claiming the land. No one ever tried to put him off so there was nothing to do. When asked if he knew he wasn’t buying everything in the pasture, he stated he didn’t know exactly — he knew how much and what he was buying but he had possession of the whole pasture. He stated he gave a warranty deed to V. C. Parish for some of it and gave a quitclaim to some of it. He did not know which part he gave a warranty deed for and which the quitclaim covered. Traweek was asked if he did not get deeds to other lots in the pasture from persons other than Hahl. He stated: “Seems I did — be guessing if I said I did or didn’t.”

On June 12, 1945, Mr. Traweek executed a quitclaim to V. C. Parish. The description given follows the line of the fence enclosing the pasture, but makes no mention of the fence. There is excepted from the transfer Lots 153 and 161. This quitclaim was not filed for record until June l5, 1950. The quitclaim makes no reference, by number to any lots transferred.

It includes within the boundary given Lot 149. Mr. Parish testified he got the 110 acres Tr.a-week bought from- Crabby and about 98 acres in the Hahl pasture by warranty deed from Traweek. It is of significance that while Traweek stated he did not remember whether he bought from others- than Hahl, the warranty deed conveyed 98 acres though •he bought only 35 from .Hahl. He agreed to. take everything under fence aqd got a quitclaim for all not covered by .warranty deed.

We are unable to find from'the record which lots in the pasture were covered by a warranty deed. Parish paid one price, $26,500.00 for all he got from Traweek, including that in the pasture. At the time nothing was said about title ‘but Traweek just gave him a quitclaim to that under fence. Mr. Parish moved onto the 110 acre tract where Traweek lived. He operated a dairy. The quitclaim excepted Lots 153 and 161 because someone was living on them. He said he was claiming the other lots in the pasture. From the time he bought in June of 1945 until he sold in April, 1951, he used it for his dairy herd. He kept it mowed and grazed his dairy cattle on it. He mowed it about twice a year. He stated that during all that time he claimed the land as his own. He ran from 200 to 225-head of cattle on it. It was always under fence capable of turning cattle — a 4 strand barbwire fence. He saw an ad in the paper from Mr. Traweek and he was looking for a dairy ranch, so he answered it. After he bought he was in continuous possession of the land until he sold to Mr. Peoples. He stated he was claiming everything in the fence. The quitclaim to Peoples, however, does not state he was claiming the land but merely states, after specifying the lots quit-claimed, that he has had them under fence and has used them continuously since June, 1945. In 1950 he gave a right of way deed to Harris County Flood Control District conveying a right of way on part of Lots 156, 157 and 159 and the 110 acre home tract. Lot 149 was not covered though the easement crossed it. He doesn’t know why it was eliminated. The Flood Control District moved the north fence on the lots, including Lot 149, and he made no complaint. In about 1950 a Mr. Belz fenced Lots 141 and 142 that were within the fence. He said nothing about it and didn’t try to interfere. Later Mr. Belz built on the tracts and he said nothing and did nothing. At the time Belz fenced he said nothing because he knew he had not held long enough to get a limitation title. Up to that time he had been claiming it. When building was started by Mr. Belz, he said nothing because he was in the process of selling. At one point in his testimony, when asked if he deliberately and on purpose clouded the title by taking the deed, he stated: “No, I wanted it for pasture and had a chance to use it for pasture and I just used itHe was then asked: “You used it?” He answered, “Yes.” Then he was asked: “Didn’t plan to take it away from anybody?” He answered : “I didn’t have that in mind because I didn’t intend to keep it that long.”

Mr. Parish testified that he rendered everything in the' enclosure for taxes; A later stipulation shows he did not render it. Pie didn’t remember that he did so each-year but he did for some of the years from 1945 to 1951.

When Parish was called by the defense he stated that when he said he didn’t intend to-claim by limitation he was referring to the Belz tract. However he said that even as. to it he was claiming it up to the time Belz started fencing it. He assumed when Tra-week gave him a quitclaim that Traweek-didn’t have title. Parish used the land continuously from the time he got it.

In April, 1951, Parish and his wife executed to W. E. Peoples a quitclaim deed to Lots 145, 147, 148, 149, 150, 154 and 158. It was filed for record ten days later. The quitclaim recites that Parish has had the property under fence and has used it continuously since 1945. Peoples received a warranty deed as to other property. He got the quitclaim because he imagined Parish did not have record title. He knew Parish, did not have record title to the lots covered', by the quitclaim. He did not require Mr. Belz to move. He did not require the County to remove the north fence on Lot 149. He was asked if he just decided to try to. take the land under the limitation statutes. He answered: “Yes, I was claiming it.”' He was then asked: “Trying to take it under the limitation statutes and that is all?”' He answered, “Yes, sir.” He didn’t remember telling anyone he was claiming it. He did not think he rendered Lot 149 for taxes. He did not include Lot 149 in the inventory of property he filed with the “Tax Collector.” He did render the property he got under the warranty deed. He didn’t think it was necessary to render 149 or the other lots he got under quitclaim. He didn’t pay taxes on 149. In October, 1960, he conveyed Lot 149 and the others he had gotten under quitclaim from Parish to appellant by a special warranty deed. He talked to Mr. Belz several times but never stated he claimed the lot (149) next to him. He didn’t discuss the property. Nobody-ever asked him if he was claiming the property. He has tried to and intended to take the full 70 acres described in- the quitclaim from Parish. He knew when he got the land he had just a quitclaim. He never talked to Mr. Wortham. Mr. Peoples pastured dairy cattle on the land after he got it April 30, 1951. At that time a Mr. Calvert, who had leased from Parish, had dairy cattle on it. Mr. Peoples bought his cattle and equipment. He bought 142 head of cattle. He continuously used the land to pasture cattle. Mr. Belz’s land was not in his quitclaim. After he bought he gave up about 30 acres in the enclosure because he was sued for some of it. Some fellow came to him and claimed some of the property in the enclosure and when he showed he had better title Peoples got off. One of the tracts he was sued for he was paid about $500.00 for his claim.

After the sale to Mr. Wortham the land was used for grazing beef cattle and for growing hay.

According to a stipulation the rendition sheets of the Tax Assessor & Collector of Harris County from 1942 through 1952 show neither Parish nor Traweek ever rendered Lot 149 for taxes. The rendition sheet signed by Parish in 1950 was introduced as representative of each year’s rendition sheets insofar as the statement of the taxpayer is concerned. It is worded, in part: 'T do solemnly swear * * * the * * * inventory * * * contains a full, true and complete list of all taxable property owned or held by me in my own name for * * * in this County subject to taxation in this County * * It did not include Lot 149.

Mr. Belz testified about fencing Lots 141 and 142 and building on them in about 1951. Nobody stopped him when he began fencing. No one claimed to own the lots. He thought Mr. Peoples was running cattle in there when he bought — somebody was. He has talked to Mr. Peoples one time and Mr. Peoples just told him he had five and 10 acre tracts in the pasture. He did not say he owned the lot (149) next to Mr. Belz. Mr. Belz said he did not know Mr. Peoples was claiming Lot 149. He didn’t know Mr. Parish was claiming it. Since he bought and fenced his lots, cattle have been pastured on the land in the enclosure outside of his fence.

Suit was filed by appellee March‘22, 1961.

Parish got his quitclaim June 12, 1945 and went into possession and continued until he executed his quitclaim to Peoples April 30, 1951. Peoples took possession and held it until he gave a special warranty deed to Mr. Wortham October 26, 1960. Mr. Wortham took possession on his purchase and has continued his possession. Mrs. Kerting, the owner, died August 17, 1952. No administration was ever taken out on her estate. For one year following her death the running of the statute was suspended. The result is that, assuming the requisites of the statute of limitation, apart from length of time, were met by Mr. Peoples and Mr. Wortham, for title by limitation to have matured prior to filing of suit, part of Mr. Parish’s occupancy must be relied on by appellant.

To establish title by limitation the possession of the claimant must be adverse, that is, there must be an actual and visible appropriation of the land commenced and continued under a claim of right inconsistent and hostile to the claim of another. Article 5515, Vernon’s Ann.Tex. Civ.St. Claim of right means that the entry by the claimant must be to claim the land as his own, to hold it for himself, and such must continue to be the nature of his possession. Claim of right is an essential element of adverse possession. The intention of the claimant to hold it for himself must be manifested by open or visible acts or declarations showing such purpose. Houston Oil Company v. Jones, 100 Tex. 89, 198 S.W. 290; Orsborn v. Deep Rock Oil Co., 153 Tex. 281, 267 S. W.2d 781, and numerous authorities there cited in both the majority and dissenting opinions. If there is no verbal assertion of a claim of right to the land brought to the knowledge of the owner, the adverse possession must be so open and notorious and manifested by such open and visible acts that knowledge on the part of the owner will be presumed. Orsborn v. Deep Rock Oil Co., supra.

We are of the view that the evidence in this case fails to raise a jury issue, but to the contrary the evidence as a matter of law shows the possession of Traweek and Parish was not hostile to the true owner.

Here under the evidence the fencing was purely casual. It is undisputedly shown that neither Traweek nor Parish built the fence. The record affirmatively' shows no one knew who built the fence or for what purpose. Traweek did testify he replaced part of the fence that was old and maintained the fence. However, when the old part was replaced and how extensive the replacement was is not shown. Traweek and Parish testified to the conclusion that they maintained the fence but no testimony shows what they did which they concluded amounted to maintenance. The significance of fencing by the alleged claimant is that the act itself is such as to evidence an assertion of the claim of ownership. It is true that casual fencing in some cases will not destroy the adverseness of a claim if there is evidence of other acts of dominion that are sufficient of themselves to show adverseness. However, casual fencing will not aid other acts that are not of themselves sufficient to evidence an adverse claim. Orsborn v. Deep Rock Oil Company, supra.

Here Traweek and Parish merely grazed cattle on the entire pasture. Lot 149 was a 10 acre tract in the extreme north end of a pasture of about 180 acres. Traweek grazed about 250 head and Parish later grazed about 200 head. There is no (Evidence as to the physical characteristics of Lot 149 and the record fails to affirmatively show that cattle grazed on Lot 149. We are left to surmise that they did. Too, in the same enclosure were several tracts, the record title to which'was in Traweek and Parish. Entry was presumptively made so far as the owner of Lot 149 was concerned under title to these lots and the-grazing of the cattle was referable to these lots and the grazing, if any, on Lot 149’ would be a casual straying of the cattle from the lots owned by Traweek and Parish.. The land enclosed was mowed only about twice a year. These acts were not sufficient of themselves to evidence adverseness of possession. Orsborn v. Deep Rock Oil Company, supra; West Production. Company v. Kahanek, 132 Tex. 153, 121 S.W.2d 328, opinion approved.

Closely related to the principle of incidental or casual enclosure is the question of the presence of the essential claim or claim of right. No matter how exclusive and hostile to the true owner the possession may be in appearance, it cannot be adverse unless accompanied by the intent on the part of the occupant to make it so~ Naked possession unaccompanied with any claim of right will never constitute a bar. This claim of right must be manifested by declaration or by open or visible act. If there is no verbal assertion of claim brought to the knowledge of the owner, the possession must be so open and notorious and manifested by such open and visible act or acts that knowledge on the part of the owner will be presumed. Orsborn v. Deep-Rock Oil Company, supra.

Here the evidence affirmatively shows that Traweek and Parish never made any verbal assertion of a claim of ownership. Traweek, in his testimony in court, faintly said he was claiming the land. This, as the court in the Orsborn case said, is testimony about a mental process or the expression of a mere opinion or conclusion. The claim of right must be more than a mental process; there must be external circumstances discovering that inward intent. Here Traweek, after stating he claimed the land after buying the 110 acres from Crabby, testified he immediately went to Hahl and told him he wanted to buy whatever Hahl owned in the pasture. This, particularly when coupled with the absence of testimony from Traweek that he was nevertheless claiming whatever Hahl did not own, is an overt act showing the absence of a claim of right that overcomes •any expression of an inward intent. Too, Traweek never paid any taxes on the lot ■and did not fender it for taxation. When ■specifically asked if he started claiming after he bought from Hahl, he answered, '“I was using it.”

Traweek executed a quitclaim to Parish. Parish testified he was claiming the land though he also testified he didn’t intend to get it by limitation because he didn’t intend to keep it that long. This is, of ■course, only testimony as to a mental process. He also testified he never told anyone he was claiming it; that there was no occasion for him to do so. However, there were at least two occasions when his possession of land within the enclosure was •challenged and he sat by and made m> assertion of the claim. In March of 1950 he conveyed a 60 foot right of way to Harris ■County Flood Control District off of the north of Lots 156 and 157 that were west ■of Lot 149 and in the same enclosure. The deed did not include the north 60 feet of Lot 149 though the same project crossed the north 60 feet of Lot 149 and Parish made no complaint that the deed did not ■cover Lot 149. Also as a part of the same project Parish gave a deed to 30 feet off ■of the west side of Lot 159. Parish had record title to these lots. Not only this, but Parish made no claim for any part ■of the money paid Mrs. Kerting by Harris County Flood Control District for the 60 foot right of way she conveyed off of Lot 149. Following the execution of the deeds the Harris County Flood Control District ■entered into possession under Mrs. Kerting for the purpose of improving drainage facilities on the north 60 feet of the right ■of way across Lot 149 and also moved the fence and relocated it at the southern terminus of the right of way, and Parish stood by and said nothing and did nothing. These were acts which invaded the possession of Parish by a person claiming under someone other than Parish that would naturally call for some affirmative action by him. Yet he took none. Too, while Parish testified he rendered Lot 149 for taxes at least for some of the years, it was stipulated by his counsel that he had not. A 1950 rendition sheet signed by Parish on which neither Lot 149 nor other lots covered by the quitclaim from Traweek were listed was introduced. The evidence shows without dispute that the record title owner paid the taxes each year. It should also be noticed that Parish testified he was claiming all lots in the enclosure. Too, he testified, when asked if he deliberately clouded title: “No, I wanted it for pasture and had a chance to use it and I just used it.” His testimony as to his mental process of claiming reflected the same intent with regard to all lots. Nothing is shown that would indicate any different claim as to any particular lot. We think this is significant because Lots 141 and 142 belonging to a Mr. Belz were also in the enclosure. No different use is shown of these two lots than was made of Lot 149. In 1950 Mr. Belz fenced the two lots. Parish saw him doing it and did nothing and said nothing. Then, when just before Parish sold to Peoples in 1951, Parish saw Belz building on the lots and he said nothing. We think, though this involved lots other than Lot 149, that Parish’s attitude as to any lot in the same enclosure is material in reflecting his intent as to all the lots to which he did not hold record title that lay within the enclosure.

The Harris County Flood Control District, through its contractor, excavated in providing drainage facilities on the easement. This entry was under a right of way deed from the record title holder of Lot 149. Too, the District moved the fence on the north line of the lot to the south line of the easement. The deed from Mrs. Kerting was filed for record May 30, 1950 in the Harris County Deed Records. It also provided that the District shall have the right to place. excavated material on the lot adjacent to but outside of the 60 foot easement. When the representatives of the District thus entered into possession of a part of Lot 149 under the • owner, Parish made no protest and asserted no claim. The claimants had never improved the lot and were not in actual possession except as it might be inferred that cattle possibly casually grazed on it. This entry by representatives of the owner and the absence of any protest by Parish establishes there was not that hostile possession under an unmistakable claim of exclusive ownership which is required. Rick v. Grubbs et al., 147 Tex. 267, 214 S.W.2d 925.

The judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    Irene L. Hendrickson HEDTKE et al., Appellants, v. TRANSPORT INSURANCE COMPANY, Appellee.
    No. 14283.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 7, 1964.
    Rehearing Denied Nov. 4, 1964.
    Perkins, Floyd, Davis & Oden, Alice, for appellants.
    Lloyd, Lloyd, Dean & Ellzey, Alice, for appellee.
   MURRAY, Chief Justice.

This is a Workmen’s Compensation case. Heldt Bros. Trucks was the employer, Frank V. Hendrickson, deceased, the fatally injured employee, and Transport Insurance Company, the carrier of the Workmen’s Compensation insurance.

An appeal from the award of the State Industrial Accident Board was taken by Irene L. Hendrickson Hedtke, the wife of Frank Hendrickson at the time of his drowning, in her individual capacity and as guardian of her minor daughter, to the District Court of Zapata County, alleging, among other things, that on October 14, 1961, Frank V. Hendrickson was accidentally drowned in Zapata County. Art. 8307, § 5, Vernon’s Ann.Civ.Stats. Transport Insurance Company challenged the jurisdiction of the District Court of Zapata County on the ground that Hendrickson was not drowned in Zapata County.

The trial court, after hearing evidence, sustained the plea to the venue and jurisdiction and dismissed the cause, from which action Mrs. Hedtke has prosecuted this appeal.

Appellants offered in evidence the death certificate of Frank V. Hendrickson which showed on its face that he accidentally drowned when a fishing boat capsized on Falcon Lake in Precinct 1, Zapata County, Texas. It was signed by Rene L. Garza, local Registrar, and shows on its face that it was based upon information furnished to him by Mrs. Hendrickson (now Mrs. Hedt-ke) . It was not certified by the State Registrar, and was excluded by the trial court. The court’s action in excluding this death certificate is assigned as error by appellants, Mrs. Hedtke and her minor daughter.

It was pointed out in oral argument that appellee had agreed not to object to the introduction of the death certificate on the ground that it was not certified by the State Registrar of Vital Statistics. Under such circumstances, if the trial court had admitted the certificate in evidence, appellee would not have been in a position to assign such action as error, but this agreement does not change the fact that the death certificate was not certified by the State Registrar.

Art. 4477, Rule 54a, Vernon’s Ann. Civ.Stats., which relates to records of the State Department of Health, reads in part as follows: “And any such copy of a record, when properly certified by the State Registrar, shall be prima facie evidence in all courts and places of the facts therein stated.” The certificate herein was not certified by the State Registrar and therefore was not prima facie evidence of the facts stated therein. This certificate shows on its face that it was made by the local Registrar upon information furnished by Mrs. Hedtke, and unless made admissible by the provisions of Rule 54a, supra, it was clearly not prima facie proof of the facts stated therein. As we shall hereafter point out, it is highly improbable that Mrs. Hedtke had any personal knowledge as to where her former husband was accidentally drowned. The trial court did not err in excluding this uncertified certificate.

The only witness to testify was C. M. Hein, the Sheriff of Zapata County, who was offered by appellants. He testified that Hendrickson, Tom Neal and Speedy Lewis were out on Lake Zapata (Falcon) in a fishing boat, when it capsized, drowning Hen-drickson. Neal and Lewis survived. Hein talked with Neal and Lewis but neither of them knew whether they were on the Texas side of the lake or the Mexico side at the time of the accident. No one was in the boat at the time except those three men. Hendrickson’s body was found three days after the drowning on the Mexico side of the lake, some four to six hundred yards from the boundary line. Thus it appears that no one knows and no one will ever know whether Hendrickson was drowned in Texas or in Mexico. It is apparent that Mrs. Hedtke was not- present when her then husband drowned, and does not know of her own knowledge on which side of the lake he was drowned. The Justice of the Peace did not see Hendrickson’s body until three days after the drowning, and therefore did not know of his own knowledge where it occurred.

The evidence shows that the information in the death certificate was based upon hearsay, and the trial court did not err in disregarding it. Armstrong v. Employers Casualty Co., Tex.Civ.App., 357 S.W.2d 168; Texas Reserve Life Ins. Co. v. Dees, Tex.Civ.App., 368 S.W.2d 886.

Appellants contend that in any event the court should have transferred this cause to a proper court in the proper county, under the provisions of Art. 8307a, Vernon’s Ann.Civ.Stats. We do not agree. This suit was brought in Zapata County under the provisions of Sec. 5, Art. 8307, Vernon’s Ann.Civ.Stats., and having failed to establish that the accidental drowning occurred .in the State of Texas, appellants were .not entitled to have the cause transferred to another county within the State under the provisions of Art. 8307a, reading as follows:

“Art. 8307a. Suit to set aside decision . . of Industrial Accident Board; transfer to county where injury occurred
“Any interested party who is not willing and does not consent to abide by the final ruling and decision of the Industrial Accident Board shall, in the manner, and within the time provided by Section 5 of Article 8307, Revised Civil Statutes of 1925, file notice with said Board, and bring suit in the county where the injury occurred to set aside said final ruling and decision; however, in the event .such suit is brought in any county other than the county where the injury occurred, the Court in which same is filed shall, upon ascertaining that it does not have jurisdiction to render judgment upon the merits, transfer the case to the proper Court in the county where the injury occurred. Provided, however, that notice of said transfer shall be given to the parties and said suit when filed in the court to which the transfer is made, shall be considered for all purposes, the same as if originally filed in said court.”

The evidence here does not show that the accidental injury occurred in any county within this State to which the court could have transferred the case.

Appellants further contend that under the provisions of Sec. 19, Art. 8306, Vernon’s Ann.Civ.Stats., and Art. 8307a, supra, the court erred in not transferring the cause to a proper county provided for in said Sec. 19, supra. The allegations and the evidence would have to be quite different to establish this suit under such section. Texas Employers Ins. Ass’n v. Miller, Tex.Civ. App., 370 S.W.2d 12; Jordan v. Standard Acc. Ins. Co., Tex.Civ.App., 339 S.W.2d 267; Traders & General Ins. Co. v. Collins, Tex.Civ.App., 321 S.W.2d 178. Even if there had been an alternative plea under Sec. 19, supra, and the proof had been sufficient, there would have been no authority for a transfer of the cause to another county. This very question was passed upon in Davis v. Petroleum Casualty. Co., Tex.Civ. App., 70 S.W.2d 649. The Court held, in effect, that Art. 8307a does not apply to cases brought under the provisions of Sec. 19, Art. 8306, supra.

Aside from all of this, the burden of proof was upon appellants to show by a preponderance of the evidence that the accidental drowning occurred in Zapata County, and this they did not do. Therefore, under the provisions of Sec. 5, Art. 8307, supra, appellants failed to show jurisdiction in Zapata County, and even if the evidence was sufficient to raise a fact issue, it has. been resolved by the trial court against appellants.

The burden of proof was upon appellants to show by a preponderance of the evidence that Hendrickson was accidentally drowned in Zapata County, in order to. show venue and jurisdiction of the District Court of Zapata County. 56 Am.Jur. p. 41, Sec. 37; Pena v. Sling, 135 Tex. 200, 140 S.W.2d 441, 128 A.L.R. 1223.

The evidence in this case fails to show that Hendrickson drowned in Zapata County. It probably is sufficient to show that he drowned either in Zapata County or in the Republic of Mexico, but it does not show in which jurisdiction he did in fact drown. A finding that he drowned in Zapata County would necessarily be based on a guess or conjecture, and a finding cannot be based upon either. National Aid Life Ass’n v. Driskill, Tex.Civ.App., 138 S.W.2d 238; Shapleigh v. United Farms Co., 5 Cir., 100 F.2d 287; Texas Co. v. Hood, 5 Cir., 161 F.2d 650.

Therefore, the trial court did not have jurisdiction to try the cause and could not transfer it to any other county within the State, because there is no evidence that the injury occurred in any other County of the State.

The trial court could properly do nothing but dismiss the cause, and the judgment is. affirmed.


author: SHARPE, Justice.

text:
    John E. HAYES, Appellant, v. Joe NORMAN, Jr., Appellee.
    No. 76.
    Court of Civil Appeals of Texas. Corpus Christi.
    Oct. 22, 1964.
    Rehearing Denied Nov. 12, 1964.

      Willis G. Perkin, of Alamia & Perkin, Pharr, for appellant.
    James C. Abbott, of Ewers, Toothaker, Ewers, Byfield & Abbott, McAllen, for appellee.
   SHARPE, Justice.

This appeal is from a summary judgment rendered in favor of appellee, plaintiff below, against appellant, defendant below, after the trial court severed a cross-action filed by appellant against appellee.

By three points appellant contends that the trial court erred, as follows: (1) in severing appellant’s cross-action and docketing same as a separate case, (2) in granting a summary judgment when material issues of fact were allegedly presented, and (3) if summary judgment was proper, in failing to enter an interlocutory judgment in favor of appellee based upon a promissory note and to proceed to trial wtih appellant’s cross-action in the same case.

Appellee’s suit was for the balance of $6,250.00 allegedly due on a promissory note executed by appellant. Appellant filed answer and the case remained on the docket for several months prior to the filing of ap-pellee’s motion for summary judgment. Appellant first filed an answer to appellee’s said motion, supported by counter-affidavits. Two days prior to the hearing on said motion the appellant filed a cross-action and counterclaim seeking damages from appel-lee in the amount of $25,000.00, which ap-pellee moved to sever. The trial judge heard oral argument upon the said motion for summary judgment, took the matter under advisement while he studied the motion, affidavits and depositions, after which he entered an order severing the cross-action, specifically finding that the cross-action had been improperly joined with the instant suit and that it should be filed as a separate cause of action and docketed as a separate suit. Summary judgment was then rendered in favor of appellee on said note and for attorney’s fees.

Appellant’s point one can be sustained only if the trial court abused its discretion in granting the severance of his cross-action and counterclaim. Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588 (1955); McGee v. McGee, 237 S.W.2d 778 (Tex.Civ.App.1950, Wr.Ref. n. r. e.); Paul v. Houston Oil Co. of Texas, 211 S.W.2d 345 (Tex.Civ.App.1948, Wr.Ref. n. r. e.).

In order for a severance to be proper there must be more than one cause of action involved in the controversy, the severed cause must be one that would be the proper subject of a lawsuit if independently asserted, and the cause of action severed must not be so interwoven as to involve the same identical facts and issues nor, in certain instances, relate to the same subject matter as the cause from which it is severed. Hall, Severance ánd Separate Trial in Texas, 36 Texas Law Review 339 (1958), and cases therein cited.

The cross-action asserted by appellant was based upon an alleged oral agreement to the effect that when appellee withdrew from a partnership with appellant that appellee represented that he was doing so for the sole purpose of going to Houston, Texas, and would not be in competition with appellant and the other individuals in his partnership; that appellee did not do this but remained in Hidalgo County, Texas, and solicited clients of appellant’s partnership and competed with it; all to appellant’s alleged damage in the amount of $15,000.00 actual damages and $10,000.00 exemplary damages.

The cross-action and counterclaim asserted by appellant do not contain any matters which would constitute a legal defense to appellee’s cause of action based upon a promissory note, but, on the other hand, constitute a separate cause of action sounding in tort.

Rule 41, Texas Rules of Civil Procedure, provides as follows:

“Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added, or suits filed separately may be consolidated, or actions which have been improperly joined may be severed and each ground of recovery improperly joined may be docketed as a separate suit between the same parties, by order of the court on motion of any party or on its own initiative at any stage of the action, before the time of submission to the jury or to the court if trial is without a jury, on such terms as are just. Any claim against a party may be severed and proceeded with separately.”

The action of the court in ordering severance meets the tests hereinabove mentioned and it also complies with the guideposts' of doing justice, avoiding prejudice, and furthering convenience. Utilities Natural Gas Corp. v. Hill, 239 S.W.2d 431 (Tex.Civ.App.1951, wr. ref. n. r. e.).

Since it appears that appellant’s cross-action and counterclaim assert a separate cause of action which can be tried independently and involves issues and facts which are different from those in appellee’s suit on a note, we cannot say that there was an abuse of discretion in the severance ordered by the trial court in this case. Appellant’s point one is overruled.

Appellant’s point two asserts that the trial court erred in granting summary judgment because there were fact issues arising between the parties and it was improper to grant such judgment under the conditions. In reply, appellee asserts that there was no genuine issue as to any material fact insofar as appellee’s suit on the note was concerned and appellee was entitled to judgment as a matter of law. We sustain appellee’s counterpoint.

Appellee did not raise any question as to the existence of fact issues in connection with appellant’s cross-action and counterclaim. His motion for summary judgment related only to his cause of action on the note.

An analysis of the pleadings, depositions, affidavits and admissions reflects that appellee was entitled to summary judgment on his note. Counsel for appellant earnestly argues here, as he did in the trial court, that fact issues exist in connection with defenses to appellant’s cause of action on the note; however, there is not a single disputed material issue shown to exist which would defeat recovery on the note. Briefly stated, appellant contends that such disputed issues are as follows: (1) whether proper demand had been made by appellant so as to entitle him to attorney’s fees, (2) whether appellee had given sufficient notice under the partnership contract to effect a termination of the partnership and to mature the said note, (3) whether all credits had been given on the note, and (4) if the severance was improper, there are a number of issues with respect to appellant’s set-off and counterclaim which could affect or defeat the ultimate recovery of appellant. The summary judgment “evidence” establishes the first three issues against appellant and the fourth issue is immaterial to disposition of this case, since we have held that the severance was properly granted. Appellant’s point number two is overruled.

By his point number three, appellant asserts that in the event a summary judgment against him was proper, the trial court should have entered an interlocutory judgment and proceeded to trial on the cross-action.

It is undoubtedly true that a summary judgment which does not dispose of all the parties and issues in a pending suit is interlocutory and not appealable unless a severance of that phase of the case has been ordered by the court. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959); -However, it is also true that after a proper severance, as in this case, the trial court may enter summary judgment and conclude that phase of the case if he desires to do so. Rule 41, T.R.C.P.; Pure Oil Co. v. Fowler, 302 S.W.2d 461 (Tex.Civ. App.1957, wr. ref. n. r. e.). It was apparent in this -case that appellee was entitled to summary judgment on his note and such matter could be, and was, determined promptly, while the matters involved in appellant’s cross-action and counterclaim were more complicated and disposition of same might be long delayed. Associated Growers v. Smith, 244 S.W.2d 348 (Tex. Civ.App.1951, n. w. h.) ; McGee v. McGee, 237 S.W.2d 778 (Tex.Civ.App.1950, wr. ref. n. r. e.). Appellant’s point three is overruled.

’Appellee, by his counterpoint four, contends that since appellant failed to take exception ’to the trial court’s order of severance; that he cannot now complain of same. The record shows that counsel for appellant objected and affirmatively opposed appellant’s motion for severance in the trial court. It was not necessary for him to formally except since he had made his position known to the court. Rule 373, T.R.C.P. Appellee’s said counterpoint is overruled.

The judgment of the trial court is affirmed, and, in accordance with Rule 43S, Texas Rules of Civil Procedure, judgment is rendered against appellant and the sureties on his supersedeas and appeal bonds for the performance of the judgment of the trial court and for payment of all costs incurred in this court as well as the costs assessed against appellant in the trial court.


author: PER CURIAM.

text:
    Frank M. MONTAGUE, Jr., Appellant, v. W. B. “Mack” JOINER, Appellee.
    No. 14365.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 14, 1964.

      Robert R. Barton, Kerrville, for appellant.
    James L. M. Miller, San Antonio, for appellee.
   PER CURIAM.

W. B. “Mack” Joiner, the Democratic nominee for County Commissioner of Precinct No. One, Bandera County, Texas, obtained an injunction against R. L. Hayes, County Clerk of that County, enjoining him from printing the name of Frank M. Montague, Jr., on the official ballot for the general election as the Republican nominee for County Commissioner, Precinct No. One. Montague intervened and after a hearing the trial court granted the injunction. We affirm the decree.

The findings and conclusions of the trial court show that the decree was entered because the Republican Party was not organized and did not exist in Bandera County, and even if there was-a party,'Montague had not complied with many requirement’s of the Election Code. Montague was acting as Republican Chairman of Bandera County in February, 1964. He had not been elected but had been appointed by the State Republican Chairman. He determined to run for Commissioner, so he filed with himself and then resigned as County Chairman. At that time, the Bandera Republican Party had no chairman, and had no executive committee. The party was actually non-existent. This situation was not corrected from February to July 27, 1964, when the State Republican Chairman appointed another person as County Chair-inan. It is asserted that Montague received two votes in one election precinct and three in another. There was no election held in the third election precinct of Commissioner’s Precinct No. One.

Montague takes the position that it was impossible for the Republican Party to comply with the Election Code for the May primary, because the Code requires candidates to file with an elected County Chairman (Article 13.18), and the Republican Party, being a new party in Bandera County, had no elected chairman or executive committee members. The Code requires all candidates to be nominated by a primary election, since more than 200,000 votes were cast for the Republican candidate for Governor in 1962. Art. 13.02, Election Code, V.A.T.S. The trial court found that there never had been a Republican Primary in Bandera County. Montague says that under existing statutes there is no way for the party ever to begin in a county, since candidates must file with an elected county chairman and, to begin with, there is neither an elected chairman nor a county executive committee.

In our opinion, the Code contemplates a reasonable compliance by a bona fide temporary organization of a new party which may be set in motion when the State Executive Committee appoints a County Chairman. See Williams v. Hunt-res v 153 Tex. 443, 272 S.W.2d 87, 88; Morris v. Mims, Tex.Civ.App., 224 S.W. 587. The point before us, however is not the impossibility of .party organization, it is the non-existence of an organization. During all of the claimed election processes, there was no Republican County Chairman, nor an Executive Committee. Before there can be a party election, there must be a party organization to conduct the election. When Montague resigned his appointment, there was nothing left of the county organization, and his vacancy was not filled until long after the election. No effort was made to organize the party after its only official resigned.

We need not place our affirmance upon this total failure to provide a temporary organization until such time as there was an election of party officials. Mr. Montague concedes that the Election Code was not followed in the election process. He reasons that, since it was impossible to comply with the requirement that he file with an elected party chairman, he was excused from all the rest of the Election Code. We shall mention some of the Code provisions which were not followed. The trial court found that Montague did not pay the filing fee required by Art. 13.07a, Election Code, V.A.T.S. See Brown v. Walker, 377 S.W. 2d 630, Tex. 1964. He was not assessed. Art. 13.08. The County Clerk was provided no certificate of those filing for County offices. The Code states in this connection, “ * * * and the names of such candidates shall not be printed on the primary ballot unless such application shall have been filed as provided herein.” No primary committee made up the official ballot as provided in Art. 13.14. No provisions were made for absentee voting. Art. 5.05. The ballots used on election day did not contain the required party test. Article 13.11, Election Code, V.A.T.S.; Mclver v. Starkey, Tex.Civ.App., 316 S.W.2d 321. There was no canvass of the returns by the judges of any election precincts. Art. 13.24. No effort was made to comply with the requirements that the County Executive Committee canvass the returns. Arts. 13.-24, 13.25. There was no official record of any kind in the County Clerk’s office that there had been a Republican Primary in Bandera County on May 2, 1964. The first public record of a party primary appeared dh September 10, when the newly appointed County Chairman filed a certificate which stated that Mr. Montague had been nominated.

The Election Code applies to all parties and all candidates. It is not a sound principle that, while others are bound to observe and obey the requirements of the Election Code, one is freed from its requirements upon proof that there is no party organization. This is what was meant by Art. 6.01, when it stated, “No name shall appear on the official ballot except that of a candidate who was actually nominated (either as a party nominee or as a non-partisan or independent candidate) in accordance with the provisions of this Code.” The trial court properly enjoined the Clerk from printing Mr. Montague’s name on the ballot. Pul-liam v. Trawalter, Tex.Civ.App., 120 S.W.2d 108, accord, Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037.

The decree is affirmed.


text:
    ALICE NATIONAL BANK et al., Appellants, v. William R. EDWARDS et al., Appellees.
    No. 102.
    Court of Civil Appeals of Texas. Corpus Christi.
    Oct. 22, 1964.
    Rehearing Denied Nov. 12, 1964.

      Kenneth Oden, of Perkins, Floyd, Davis & Oden, Alice, Waggoner Carr, Atty. Gen. of Texas, Austin, Elmore H. Borchers, Laredo, Patrick J. Horkin, Jr., of Horkin, Nicolas & Nicolas, Corpus Christi, for appellants.
    Frank Nesbitt, of Fischer, Wood, Burney & Nesbitt, Corpus Christi, Wm. C. Wright, Tom Goodwin, John E. Fitzgibbon, Laredo, Burch Downman, Houston, Bascom Cox, of Cox & Wilson, Brownsville, Geo. E. Donalson, III, Houston, E. Jack Cook, Kingsville, Paul Y. Cunningham, Brownsville, Norton A. Colvin, San Benito, Moisés V. Vela, Harlingen, Carlos G. Watson, Brownsville, for appellees.
   PER CURIAM.

A suit involving the contest of a will is pending in the County Court of Kenedy County, Texas. Appellants are proponents and appellees, except William R. Edwards, are contestants in said suit. Appellee Edwards is Special County Judge of Kenedy County duly named to act in all proceedings in the will contest in the County Court.

This appeal is from a judgment of the District Court of Kenedy County dismissing a petition for writ of mandamus relating to certain pre-trial orders involving discovery under Rules 177a, 186a and 186b, Texas Rules of Civil Procedure and to other pretrial matters in the County Court case, filed in the District Court by appellants against appellees. Said judgment recites as the sole ground for dismissal that the District Court “has no jurisdiction to entertain plaintiffs’ petition for writ of mandamus.” The only question before this Court on this appeal is whether the District Court erred in refusing to take jurisdiction of the petition for mandamus.

In their briefs and on oral argument before this Court, counsel for all parties agreed that a District Court does have jurisdiction in a mandamus proceeding against a County Judge sitting in County Court under certain limited conditions, such as where relief is sought against a void order, or against an action of the County Court which is patently violative of mandatory provisions of the law, or where there is failure to perform a ministerial duty. That a District Court does have jurisdiction to entertain a petition for writ of mandamus under such conditions is fully supported hy the following Texas authorities: Article 5, § 8, Texas Constitution, Vernon’s Ann.St.; Article 1914, Vernon’s Ann.Tex.St.; Thorne v. Moore, 101 Tex. 205, 105 S.W. 985; Journeay v. Shook, 105 Tex. 551, 152 S.W. 809; Southern Bag & Burlap Co. v. Boyd, 120 Tex. 418, 38 S.W.2d 565; Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677; State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279; Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434; Neville v. Brewster, 163 Tex. 155, 352 S.W.2d 449; Maresca v. Marks, Tex.Sup.1962, 362 S.W.2d 299; Crouch v. Craik, Tex.Sup.1963, 369 S.W.2d 311; 37 Tex.Jur.2d, Mandamus, § 41, page 654, et seq.; same, § 70, page 714, et seq.

While a number of the above authorities involve applications for writ of mandamus originally filed in the Supreme Court of Texas against District Judges, the same principles of jurisdiction would apply to an application for the writ filed in the District Court against a County Judge. Journeay v. Shook, supra; Thorne v. Moore, supra; Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484.

Appellees contend that the petition for mandamus fails to set forth allegations which could confer jurisdiction on the District Court to issue the writ and grant the relief prayed for under any of the limited conditions mentioned above. We recognize the rule that an action for mandamus requires greater certainty of pleading than is required in ordinary causes, and that the necessary facts must be stated clearly, fully, and unreservedly, by direct and positive allegations. 37 Tex.Jur.2d, Mandamus, §§ 97-98,-page 751, et seq.; Harney v. Pickens, 120 Tex. 268, 37 S.W.2d 717; In re Greer, Tex.Civ.App., 41 S.W.2d 351, writ dis. However, after a careful study of appellants’ 32-page amended petition, we conclude that the allegations contained therein are sufficient to invoke the jurisdiction of the District Court to hear and determine the issues raised and that the District Judge erred in dismissing the case for lack of jurisdiction to entertain- appellants’ petition. We express no opinion as to how any of the issues should he decided, leaving that to the trial court when it has taken jurisdiction of the cause.

Appellees’ Motion to Dismiss Appeal is Overruled.

Judgment reversed and remanded.


text:
    R. K. HOWELL et al., Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF NEW BRAUNFELS, Appellee.
    No. 14278.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 16, 1964.
    Rehearing Denied Oct. 28, 1964.

      Pat Maloney, San Antonio, for appellants.
    Schleyer, Bartram, Reagan & Burrus, New Braunfels, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by First Federal Savings and Loan Association of New Braunfels, a corporation, against R. K. Howell and wife, Lucille Howell, Irving L. Bates and wife, Marjorie Bates, John H. Jessop, Jr., and wife, Mary Scheib Jessop, seeking to recover the amount of principal, interest and attorney’s fees provided for in a certain deed of trust note in the principal sum of $11,000.00, and for foreclosure of a deed of trust lien against, a'certain tract of land in Wilson County, Texas, a part of the S. & J. Arocha Grant, lying within the corporate limits of the City of Floresville, being known as all of Lots Nos. 3 and 4, and parts of Lots Nos. 5 and 6, in Block No. IS, of the City of Floresville.- Judgment was rendered in favor of plaintiff, as prayed for, against all of the defendants. Defendants Howell and Jessop have not appealed, and the judgment rendered against them is affirmed.

The defendants Bates answered by a general denial, alleging that in taking title to the land Irving L. Bates, Esq. acted only as an agent for his clients, the Howells; that Marjorie Bates incurred no personal liability or responsibility for any act or transaction by and between plaintiff and defendants herein. The answer of defendants Bates was not verified. The trial court in its findings of facts found:

“6. On November 28, 1958, Robert E. Shepherd et al conveyed to Defendants R. K. Howell and wife, Lucille Howell, by general warranty deed recorded in Vol. 332, pages 346-8, of the Deed Records of Wilson County, Texas, the property described therein and in such deed a vendor’s lien was retained for the benefit of said Plaintiff to secure the above described note, which note represented moneys advanced by Plaintiff for part of purchase price-of said property. - -■
“7. On November 28, 1958, R. K. Howell and wife, Lucille Howell, executed and delivered a deed of trust to Plaintiff covering the above mentioned property as additional security for the payment of said note and which deed of trust is recorded in Vol. 329, pages 582-4, Deed of Trust Records of Wilson County, Texas.
“8. On September 13, I960, R. Kl Howell and wife, Lucille Howell, conveyed the property above mentioned to Irving L. Bates and wife, Marjorie Bates, by general warranty deed recorded in Vol. 344, pages 507-8, Deed Records of Wilson County, Texas.
“9. As part of the consideration for the conveyance described in fact finding immediately above, the Defendants Irving L. Bates and wife, Marjorie Bates, agreed to assume the indebtedness evidenced by the aforesaid note.
******
“12, At a pre-trial conference of this case on April 8, 1963, with the Court, Irving L. Bates, as attorney for himself and Marjorie Bates and S. T. Burrus, attorney for Plaintiff, in attendance, the said Irving L. Bates agreed that there was no fact question concerning the execution and delivery of all the instruments above described.”

Appellants did not bring up a statement of facts nor- did they dispute any of the findings of fact made by the trial court.

On March 11, 1963, Irving L. Bates and wife made a demand for a jury, and paid a jury fee of Five Dollars. When the case was called for trial on October 22, 1963, with a jury panel present, none of the defendants appeared, after due notice of the setting of the case for trial. The trial court dismissed the jury panel and after hearing evidence rendered judgment in favor of plaintiff against all defendants for the amount of principal, interest and attorney’s fees due on the note sued on, together with foreclosure of the deed of trust lien against the property above described.

Irving L. Bates and his wife, Marjorie Bates, alone have prosecuted this appeal. Appellants made but one point, as follows:

"The Judgment of the Trial Court should be reversed because the Trial Court was without authority to enter a j'udgment, since Appellants having made a seasonable and legal demand for a jury and paid the jury fee to the proper officer, their right to trial by jury became fixed and inviolate.”

We overrule this point. Under the above condition of the pleadings, the agreed facts, and the findings of facts, the court did not commit reversible error in dismissing the jury panel and proceeding to dispose the cause without a jury trial.

Appellants having failed to bring up a statement of facts, we must presume that the evidence fully justified the findings made, and the judgment rendered by the court. Hursey v. Thompson, 141 Tex. 519, 174 S.W.2d 317; Dutchover v. Dutchover, Tex.Civ.App., 334 S.W.2d 569; 3 Tex.Jur,, § 749, pp. 1-12.

If under the facts and the findings of facts no judgment could have been properly rendered other than the one rendered by the trial court, then if there was error of any kind in trying the case without a jury, it was harmless. Rule 434, Texas Rules of Civil Procedure; Erback v. Donald, Tex.Civ.App., 170 S.W.2d 289; Clark v. Jones, Tex.Civ.App., 164 S.W.2d 62; Dallas Joint Stock Land Bank v. State ex rel. Cobb, 133 S.W.2d 827, aff. 135 Tex. 25, 137 S.W.2d 993.

Appellants’ unverified pleadings herein were either in the nature of a plea of non est factum or an attempt to vary the terms of a written contract by parol evidence, and under such circumstances the trial court was justified in assuming that there would be no fact issues to be passed upon by a jury. This is especially true in view of the fact that defendants failed to appear at the time the case had been previously set for trial.

An unverified plea of non est fac-tum raises no issue as to the execution of a written instrument. Rule 93, T.R.C.P. Toli-ver v. Bergmann, Tex.Civ.App., 297 S.W.2d 208; Prudential Petroleum Corp. v. Raus-cher, Pierce & Co., Tex.Civ.App., 281 S.W. 2d 457; Manning v. Barnard, Tex.Civ.App., 277 S.W.2d 160; Gulf C. & S. R. Co. v: Wilson, 7 Tex.Civ.App. 128, 26 S.W. 131. The provisions of a written instrument cannot ordinarily be disputed or varied by parol. Vansickle v. Watson, 103 Tex. 37, 123 S.W. 112; Jones v. Hubbard, Tex.Civ.App., 302 S.W.2d 493; Renfrow v. Lineberry, Tex.Civ.App., 271 S.W.2d 440; Waggoner v. Magnolia Petroleum Co., Tex.Civ. App., 2S2 S.W. 865; Phoenix Mutual Life Ins. Co. v. Brenfield, Tex.Civ.App., 101 S.W.2d 1025.

There is nothing in this record to show that the trial court committed reversible error in anticipating that nc fact issues would be raised to be submitted to a jury.

The judgment is affirmed.


author: RENFRO, Justice.

text:
    Mrs. H. S. GRAY, Appellant, v. Rose M. STOREY, Individually and as Independent Executrix of the Estate of Joe Magro, Deceased, Appellee.
    No. 16570.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 16, 1964.
    R. Marvin Pierce, Wichita Falls, for appellant.
    Ralph P. Mathis, Anderson. & Cherry, and Geo. W. Anderson, Wichita Falls, for appellee.
   RENFRO, Justice.

Suit for $960.00 was brought by Mrs. H. S. Gray against Mrs. Rose M. Storey, individually and as independent executrix of the estate of Joe Magro, for alleged commissions on rentals and sale of real estate.

Plaintiff alleged that in the early fall of 1957 she and defendant entered into an agreement which provided that plaintiff would be the exclusive agent for defendant for the renting and selling of certain described real estate; that plaintiff obtained Charles L. Preston as lessee for said property; that the lease agreement between defendant and Preston was dated November 22, 1957; that plaintiff collected rentals until July, 1962, at which time defendant be'-gan collecting rentals direct from Preston and in October or November, 1962, defendant sold the property to Preston; that in making such sale defendant refused to accept any assistance offered by plaintiff although plaintiff had instigated the negotiations with Preston.

Suit was for commission on rentals paid by Preston to defendant, and commission on the’ sale price of the property from defendant to Preston.

After filing an answer defendant moved for summary judgment.

The sworn motion for summary judgment ■states plaintiff was not a party to the Preston lease; that the “exclusive” sale agency was dated August 20, 1960, extended to November 22, 1960, “and thereafter, until terminated by my giving you Five (5) days notice in writing”; that on July 5, 1962, defendant delivered to plaintiff a written statement cancelling said agreement; that the sale to Preston was made long after the listing had been cancelled by defendant. Each allegation made by defendant in her motion was supported by designated exhibits.

Plaintiff did not. controvert defendant’s 'motion, but,", instead, chose to rely upon the pleadings.

- The judgment of the trial court recites in part: “ * * * the motion for summary judgment was duly presented to the Court, the same being uncontroverted in any particular; * * *.”

This court has held consistently that formal issues framed in the pleadings are not controlling when extrinsic evidence demonstrates the absence of any true issue. McFarland v. Connally, 252 S.W.2d 486 (Fort Worth Civ.App.1952, no writ hist.); Reese v. Davitte, 255 S.W.2d 1015 (Fort Worth Civ.App.1953, dism.)-; Hansen v. Eagle Mountain-Saginaw Independent School District, 373 S.W.2d 817 (Forth Worth Civ.App.1963, ref., n. r. e.) ; Baker v. City of Fort Worth, 380 S.W.2d 128 (Fort Worth Civ.App.1964, ref., n. r. e.).

Generally a genuine issue of a material fact is not raised by allegations in a pleading when they are controverted by affidavits or other evidence, in the absence of counter-affidavits or evidence to sustain them. Wilkinson v. Powell, 149 F.2d 335 (5th Cir., 1945); Baxter v. Beaupre, 295 S.W.2d 718 (Galveston Civ.App.1956, no writ hist.).

Where a party’s motion for summary judgment has support in extrinsic evidence which will sustain his contention that there is no genuine issue of fact, the opponent should be required to come forward with more than a mere denial pleading, even a sworn one, in order to overcome the force of the motion. McDonald, Texas Civil Practice, Vol. 4, 1962 Cumulative Supplement, § 17.26.3(a), p. 47; Savoy v. Graham Memorial Auditorium Association, Inc., 329 S.W.2d 352 (Fort Worth Civ.App.1959, no writ hist.).

Under the record we agree with the trial court that no issue of material fact was presented for determination and that judgment for the defendant was proper.

'Judgment affirmed.