author: McNEILL, Justice.

text:
    POLK COUNTY MOTOR COMPANY, Appellant, v. Friday HARRIS et al., Appellees.
    No. 6495.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1961.
    Rehearing Denied Nov. 15, 1961.
   McNEILL, Justice.

This case is one of venue. Appellees brought suit against appellant and O. D. Davis in the district court of Hardin County, Texas, to recover damages resulting from a trailer coming' loose from a coupling on a truck as it was traveling along a highway in said county, going across the center of said highway, striking another vehicle which resulted in the death of John B. Prine and loss of an arm to appellee Harris. As pertinent to this appeal, the petition alleged that the accident happened as the proximate result of certain acts of negligence upon the part of appellant to the effect that it sold the truck to said Davis with a defective trailer hitch knowing that it would be used for the purpose of pulling a trailer on the highways, in failing to warn the purchaser that the trailer hitch was defective and in selling the truck for use upon the highways when appellant knew, or should have known, that the trailer hitch was in a dangerous condition, and in failing to properly inspect the trailer hitch and pin before delivering the truck to purchaser.

Appellant duly filed its plea of privilege to be sued in Polk County, the place of its residence. This plea was controverted under Exceptions 9a and 23 of Article 1995, Vernon’s Ann.Civ.St. The facts at the hearing were substantially these: Appellant, the Chevrolet dealer at Livingston, sold both new and used cars and trucks. On or about April 11, 1959, prior to the accident involved appellant sold a new Chevrolet 2-ton truck to one S. L. Gilder under a conditional sales contract. This contract provided that upon failure to pay any monthly installment the seller would have the right to declare the entire balance due, to repossess the truck “including any equipment or accessories thereto” and sell the same at public or private sale. After Gilder had purchased the truck he had what was known as a bolster put thereon in order to haul logs. This bolster had pipes or “stacks” welded upright thereon at the corners of the truck so as to hold the logs on, and a trailer hitch was a part of and welded to said bolster at the rear. Gilder defaulted in his payments on the truck and he and appellant’s codefendant Davis, who had become interested in buying the truck, came to see appellant’s manager together, and approached him with the idea of letting Davis take up past-due payments on the truck. The manager would not handle it that way. Appellant then repossessed the truck from Gilder at its place of business in Livingston where Gilder had brought it. On the day that the truck was repossessed it was sold, says appellant, under authority of the conditional sales contract at private sale to Davis, who executed another conditional sales contract of purchase. When Davis bought the truck he knew the condition the truck was in and knew the condition the bolster and trailer hitch were in. The trailer hitch was so constructed that it had two “ears”, each of which was a flat extension of metal and each of which had holes so that when the front end of the coupling pole of the trailer was placed between the “ears”, a coupling pin could be inserted to fasten the pole and hitch together. At the time of purchase by Davis the left “eye” was pulled out of the bolster and one of the “ears” was on and the other had broken off or had a plug torn out of it so it would not hold a pin. Davis knew of this but did not call it to the attention of appellant but he had appellant do certain repairs on the truck for him and left the truck with appellant for this purpose. Appellant only made such repairs on the truck as Davis asked to be done.

In the meantime Davis had spoken to one A. E. Loftin at his place of business in Kountze about the purchase of a homemade Tandem trailer and he made a deal with Loftin to buy it. But he did not have the money to pay for it. Loftin sold the trailer to Davis with the understanding that appellant would finance it. Before the repairs ordered by Davis on the truck were completed, he asked the appellant to finance the purchase of the Tandem trailer and appellant agreed to if Davis could make a substantial down payment, and if the trailer was worth the amount Davis agreed to pay therefor. For the purpose of ascertaining whether the trailer was worth the money asked, appellant’s agent, Lafferty, went to Kountze and looked at the trailer. About the same time the defendant Davis testified that he took delivery of the truck from appellant at its place of business in Livingston and drove it to Kountze. However, he later changed his testimony to the effect that he drove it part way and appellant’s colored boy drove it the other part way to Kountze. At any rate, Davis and Lafferty reached Loftin’s place of business in Kountze at the same time. After looking the trailer over Lafferty approved the transaction, made out an invoice from A. E. Loftin to O. D. Davis for “1 Tandem Homemade Trailer with Nabors New Way Springs — $1,500.00”, and delivered appellant’s check for that amount to Davis and returned to Livingston. Payment for the trailer by appellant and the sale of the truck to Davis were consummated about May 5, 1960. The invoice of appellant to Davis for the truck and the trailer showed that the price of the truck as $2,250 and the homemade trailer $1,500. Appellant, in turn, financed these items through G. M. A. C.

While Davis was still at Loftin’s place of business he asked Loftin to inspect the trailer hitch on the truck and he found the gap that had been broken out of one of the “ears”. Both “ears” were worn some and would cause the coupling pin to he loose; in fact, with the broken ear no coupling pin would stay in place. At the time Loftin inspected the trailer hitch he asked Davis if he wanted him to replace both ears and Davis said “No, just fix the one with the gap broke out of it.” Davis had Loftin to “face it out” and complete it. Later testifying of this Davis said: “I had to put might near a complete new ear on it.” Loftin also pulled the left eye out of the bolster, replaced it and put a plug in it and that is all he did. Loftin then became busy with other work in the shop and Davis obtained a coupling pin and connected the truck and trailer and drove off with them, and started hauling logs. The tragic accident above mentioned happened a few days after this. It was discovered after the accident that the coupling pin had pulled out and allowed the trailer to go free.

Appellees contend first that appellant owed a duty not only to Davis, but to others who might travel the highways where the truck was being used to see that the trailer hitch affixed to the bolster on the truck was in good condition, and made safe for use in pulling the trailer. In support of this argument, it is claimed that when appellant repossessed the truck from Gilder and foreclosed its mortgage that it became the owner of the bolster with its defective hitch, and before it was sold for use it should have been properly repaired or replaced. Appellant takes the position that when it repossessed the truck it did not know of the bolster or trailer hitch and did not sell the bolster or trailer hitch to Davis. It says in support of this that since the bolster was easily removed and could be taken off the truck without injury to it, it did not become a part of the truck under the rules of accretion or accession. For its position it cites Star Finance Co. v. Chain Investment Co., decided by this court and reported in 146 S.W.2d 291, as well as several out of state cases. We have read each of these and in each there was a contest between either two mortgagees, one of the vehicle and the other of the accessories or equipment, or between the mortgagee and owner of the equipment or vehicle, and in each such instance the courts hold that a mortgage upon the vehicle does not cut off the right of the mortgage on the equipment or accessories which may be removed without injury to the vehicle. We do not consider these cases controlling in the present situation, and we hold that since the conditional sales contract with Gilder gave the mortgagee the right to repossess any equipment or accessories thereto, that the sale of the truck took with it the sale of the bolster and trailer hitch. Appellant contends it did not ever take title to the truck by virtue of the repossession but under its authority in the sales contract, it sold the truck to Davis. Whether it actually took title or not we need not decide. If title to the vehicle was vested in appellant before it was sold to Davis, it acted as principal, or if repossessed but title to the truck was still in Gilder, and appellant acted under the conditional sales contract, which it was authorized to do, it acted in the sale as agent of Gilder. In either event, it would be liable for its negligence, if any, which proximately caused injury to others.

But we think no negligence was shown against appellant. Appellees, upon the basis of the holding in MacPherson v. Buick Motor Company, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, would hold appellant responsible for selling the defective trailer hitch or in allowing it to go un-repaired. The MacPherson case involved a new car while the present is one involving sale of a secondhand vehicle and the trailer hitch was no doubt secondhand. The defective trailer hitch was not a latent defect. Its inadequacy was open, obvious and c’-'ar. It would not hold a pin in its condition sold by appellant. Repairs had to be made on it before it could be used to pull a trailer. This, the new owner, Davis, undertook to do. It was not shown that when appellant sold the truck to Davis he was known to be reckless or careless. The vehicle and its equipment was sold to Davis by appellant without warranty or representation of any kind. Under the circumstances we think there was no showing of negligence upon the part of appellant so as to sustain venue in Hardin County under either Sec. 9a or 23 of Art. 1995. Trust Co. of Chicago v. Lewis Auto Sales, 306 Ill.App. 132, 28 N.E.2d 300; Bergstresser v. Van Hoy, 142 Kan. 88, 45 P.2d 855, 99 A.L.R. 236. The court in each of these cases cites Sec. 388 of the Restatement of the Law on Torts in support of its ruling. No Texas case has been cited on the question, and we have found none.

We think it proper to comment upon one other case emphasized by appellees in seeking to hold appellant responsible: Flies v. Fox Bros. Buick Co., 196 Wis. 196, 218 N.W. 855, 60 A.L.R. 357. There Fox Bros., in the course of their business as keeper of a garage, came into possession of a wrecked automobile. They took the car to their shop, repaired and rebuilt it so as to restore it to a usable condition. They then sold it to one Johnson, representing to him that the car was equipped with all standard equipment and in proper operating condition for use upon the streets of La Crosse. Johnson drove the car out of Fox Bros, place of business down the street and after he had gone two or three blocks he approached a standing streetcar which was taking on and letting off passengers. He attempted to stop the car when he discovered the brakes were inefficient and would not stop the car, because of which he ran into Flies causing her injuries. The brakes of the car when sold to Johnson were in bad condition. While the jury found Fox Bros, did not know of this, it found that in the exercise of ordinary care they should have known. The Supreme Court held Fox Bros, liable for the injuries. That case differs from the present in at least two important respects: first, there was no representation, either express or implied, that the trailer hitch was in good working order. It was apparent iff1 all that the hitch, without having been repaired, was not in working order and appellant here had nothing to do or interest in the trailer that was later attached to it except to advance money in order to finance its purchase by Davis from Loftin. It made no representation as to how the trailer could be connected to the truck nor did it undertake to make any such connection. Secondly, proper brakes and proper steering apparatus are always two essentials In order to safely operate a motor vehicle, but a trailer hitch does not have anything to do with the operation of the vehicle upon which it is fastened.

The order of the trial court overruling appellant’s plea of privilege is, therefore, reversed and said plea is sustained, and this cause, as to appellant, is ordered transferred to Polk County.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    Eugene E. LABBE et al., Appellants, v. MAGNOLIA PETROLEUM COMPANY et al., Appellees.
    No. 13812.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 18, 1961.
    Rehearing Denied Nov. 15, 1961.

      Sidney P. Chandler, Corpus Christi, Jerry T. Chandler, New York City, for appellants.

      Lloyd, Lloyd & Dean, Alice, Thomas Fletcher, James W. McCartney, Vinson, El-kins, Weems & Searls, Houston, Perkins, Floyd & Davis, Alice, Ross Madole, Dallas, R. T. Wilkinson, Jr., Roy L. Merrill, Houston, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by Eugene E. Labbe and a number of other plaintiffs, against Magnolia Petroleum Company, Union Producing Company, and a number of other defendants, seeking to have an oil and gas lease on plaintiffs’ land declared void or terminated, and seeking damages-in several separate and connected causes of action. The plaintiffs and defendants Magnolia Petroleum Company, Mobil Oil Company, Socony Mobil Oil Company, Inc., and Union Producing Company filed motions for summary judgment. Six other defendants filed disclaimers and were dismissed from the suit. Defendants Sidney P. Smith, George E. Elliott and Addie L. Elliott filed only formal answers.

Upon a hearing, plaintiffs’ motion for summary judgment was overruled, and defendants’ motion for summary judgment granted. Upon motion of both plaintiffs and defendants, the defendants Sidney P. Smith, George E. Elliott, and Humble Oil & Refining Company were dismissed from the suit. Judgment was rendered declaring the lease to be a subsisting instrument, and the plaintiffs were denied any relief whatsoever. The plaintiffs, Eugene E. Labbe et al., have prosecuted this appeal.

Appellants’ first point is that the lease contract dated October 28, 1936, hereinafter referred to as the “Labbe Lease”, is contrary to public policy and void.

It appears that there was a prior lease, dated November 12, 1924, which resulted in litigation. This litigation was compromised and out of the litigation grew the Labbe Lease here involved.

The Labbe Lease contains the following:

“The judgment of the lessee, when not fraudulently exercised, in carrying out the purposes of this lease shall be conclusive. * * *
“The covenants of lessee mentioned in this lease, as well as all implied covenants, are not to be understood as conditions and the breach of one or all of same will not work a forfeiture, abandonment or termination of this lease except the failure to drill or pay rentals provided for in paragraphs number four (4) and eleven (11) hereof.
“After discovery of oil, gas, or other minerals upon said premises, the title to all minerals in and upon and underlying the surface of the land described in this lease shall remain and be vested in lessee and shall not revert to lessor nor end until there is a complete, absolute and intentional abandonment by lessee of each and all of the purposes, either expressed or implied, of this lease and every part and parcel of the lands described herein. Such abandonment is the only manner by which lessee’s title to said minerals can be ended and title to said minerals be reinvested in lessor.”

These are the provisions of the Labbe Lease that appellants contend are void as being contrary to public policy. We overrule this contention. As parties bind themselves so shall they be bound. One of the basic public policies of this State is the right of parties to contract and to have their contracts enforced by the courts. Missouri, K. & T. R. Co. of Texas v. Carter, 95 Tex. 461, 68 S.W. 159.

The obligation of a lessee to develop as a reasonably prudent operator may be relieved by contract. Coats v. Brown, Tex.Civ.App., 301 S.W.2d 932; Warren v. Amerada Petroleum Corp., Tex.Civ.App., 211 S.W.2d 314; Simms Oil Co. v. Flewellen, 138 Tex. 63, 156 S.W.2d 521; Magnolia Petroleum Company v. Page, Tex.Civ.App., 141 S.W.2d 691; Cowden v. Broderick & Calvert, Inc., 131 Tex. 434, 114 S.W.2d 1166, 117 A.L.R. 61; Ralph v. Magnolia Petroleum Company, Tex.Civ.App., 95 S.W.2d 222.

Appellants’ Point Two reads as follows:

“The provisions of the lease of October 28, 1936, as expressed in sections 1, 2, 3, 4 and 5 are not controlled by the sentence — ‘The judgment of the lessee, when not fraudulently exercised, in carrying out the purposes of this lease shall be conclusive.’ — or by section 8 of the lease, for such subsequent provisions are plainly contradictory of the express purposes of the lease and to sustain the contradictory sections destroys and renders the lease inoperative and void.”

We overrule this point. The trial court correctly held, as a matter of law, that the provisions of the lease were not conflicting or invalid. The lease provided, among other things, that it was made to lessee for the purpose of investigating, exploring, prospecting, drilling, mining and operating for and producing oil, gas and all other minerals, etc., and later the lease provides that “The judgment of the lessee, when not fraudulently exercised, in carrying out the purposes of this lease shall be conclusive.” There is nothing inconsistent between these two provisions. In the absence of the latter provision there would be an implied covenant requiring the lessee after the discovery of oil or gas in paying quantities, to use such diligence in drilling and developing the lease for oil and gas as a reasonably prudent operator would use under the same or similar circumstances, but in the light of the latter provision, the lessee would not be required to further develop the lease unless lessee in making a decision not to do so acted fraudulently or at least in bad faith. Magnolia Petroleum Company v. Page, supra.

Appellees accompanied their motion for summary judgment with affidavits showing that the Labbe Lease covers some 2,360 acres. Magnolia Petroleum Company and Union Production Company drilled twenty-three wells on the lease and other defendants drilled three wells. All of these wells were drilled to a relatively shallow horizon, none were drilled below 4,000 feet. Appellants were insisting that wells should be drilled to the Wilcox and Queen City sands, which were very deep sands.

Appellees showed by affidavits that the nearest well drilled to the Wilcox formation was one-half mile northwest of the leased premises, and was unproductive in the Wilcox and Queen City sands; that the closest production well in the Wilcox or Queen City sands, at the time this action was filed, in May, 1958, was approximately three and one-half miles southwest of the lease in a separate field; that this well and other wells in that field gave no indication with respect to the productive potential on the lease at such depths. Russell Barrett, a geologist employed by Union Producing Company, Paul Harrison, a petroleum engineer, and James W. Mooney, Jr., a geologist, both employed by Magnolia Petroleum Company, concluded from a review of available logs and well information, that it would be impossible to state with any degree of reliability that a well drilled on the lease to the Wilcox or Queen City sands would produce any oil or gas — much less produce in quantities sufficient to recover the operator’s cost and return a profit; and as to the shallow production, that appellees could not reasonably expect to recover their total investment from the wells situated on the lease, and that additional wells, in view of the present information available, are economically unjustified ; that there is shallow sand that offers a hope of additional production known as the “Schernowski,” but it is a “river-bed type of deposit,” highly erratic and difficult to locate geologically, and that well-seeking production from this zone would be a “wildcat” having no probability of success.

Appellants filed no affidavits controverting the expert opinions of Barrett, Harrison and Mooney. They did file in connection with their motion for summary judgment, a number of exhibits, consisting of surface maps, well production sheets filed by various operators other than ap-pellees, and an “Oil Map” of Duval County, which is supposed to locate the productive fields in the area. No structure maps, geological data or statements of qualified persons with respect to the productive potentials of the Labbe Lease were filed by appellants.

In view of the fact that the Labbe Lease provided that the decision of lessee in carrying out the purposes of the lease, when not fraudulently exercised, shall be conclusive, the burden was upon appellants to show by affidavit, deposition, admissions on file, or other instruments, that appellees, in not further developing the Labbe Lease, had acted fraudulently or at least in bad faith. Appellees established that they had not acted in bad faith, and appellants did not come forward with affidavits, or other instruments permitted by Rule 166-A, Texas Rules of .Civil Procedure, which would contradict this fact. Appellants quote at length from their pleadings, but a motion for summary judgment pierces the pleadings, and when appellees showed, in the manner provided by Rule 166-A, supra, their good faith in not further developing the lease, it was incumbent upon appellants to come forth with affidavits, depositions and other instruments to show that ap-pellees had acted in bad faith.

Appellants contend that at the trial they expected to place appellees’ officers and employees upon the witness stand and draw from them admissions, and that appellants could not be expected to produce affidavits from adverse parties. Appellants did not ask for delay or for time to take depositions from adverse parties and their employees. See Rule 166-A, sttpra. Under all the circumstances here shown, this was their duty. Bruce Construction Corp. v. United States, 5 Cir., 242 F.2d 873; Garcia v. United States, 108 F.Supp. 608, 123 Ct.Cl. 722; Stafford v. Wilkinson, 157 Tex. 483, 304 S.W.2d 364. Appellees under their showing were entitled to a summary judgment. Ramey v. Young, Tex.Civ.App., 327 S.W.2d 772; City of San Antonio v. Castillo, Tex.Civ.App., 293 S.W.2d 691; Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236. The affidavits, depositions and other instruments offered by appellees were sufficient to show prima facially that they acted in good faith, and as appellants did not, in the manner provided by Rule 166-A, supra, show bad faith, the appellees were entitled to a summary judgment.

Appellants assert that the lease lapsed because production was not kept up for a certain period of time, some eleven to thirteen years ago. Since that time appellants have recognized the validity of the lease, and are now barred from raising such matters. Texas & Pacific Coal & Oil Co. v. Kirtley, Tex.Civ.App., 288 S.W. 619; St. Louis Royalty Co. v. Continental Oil Co., D.C., 93 F.Supp. 599, modified 5 Cir., 193 F.2d 778.

Appellants next contend that under the terms of the lease appellees were expressly required to continue to investigate, explore, prospect, drill, mine and operate for the production of oil, gas and all other minerals until wells had been drilled over the entire 2,360 acres. This construction of the lease was rejected by the Supreme Court, speaking through Justice Smith,, in Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 696, 79 A.L.R.2d 774, wherein the Court said:

“We agree that, under the terms of the lease, the lessee has the right to explore, but it does not necessarily follow that the lessee is under a duty to explore. To follow petitioners’ argument would be to adopt the theory advanced in their ‘Outline of Argument’, filed in this Court, that ‘In an oil and gas lease, the implied covenant reasonably to explore obligates the lessee to drill when a ready, able and willing operator would drill regardless of the certainty of profit.’ ”

This holding by the Supreme Court was made in a case in which the implied covenant of reasonable development applied. Here it is admitted that there is no implied covenant to develop.

Appellants next contend that the lease has been abandoned by lessees except as to ten acres surrounding each existing well. We overrule this contention. Oil having been discovered in paying quantities on a part of the lease, it is thereby perpetuated as long as oil or gas is produced in paying quantities, and the lease cannot be regarded as abandoned as to parts of the lease where no wells have been drilled, or as to any lower strata not developed. W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27; Leonard v. Prater, Tex.Com.App., 36 S.W.2d 216, 86 A.L.R. 49; Hines v. Hanover Co., Tex.Com.App., 23 S.W.2d 289.

Appellants further contend that ap-pellees determined that certain portions of the Labbe Lease were not productive of oil or gas, and further determined to cease exploration and development thereof, so that the lease, or the portions about which such decision had been made, therefore terminated. We overrule this contention. The Labbe Lease vested in lessees the fee simple determinable fee to the 2,360 acres. Under the terms of the lease lessees were guaranteed the right to exercise their own judgment in developing the lease. It is not shown that appellees have acted fraudulently or in bad faith in the development of the lease. Even in a lease where the reasonable development rule applies, a lessee is not required to drill unless it can be shown such operation will be profitable. Appellees have, from time to time, drilled additional wells. They have consistently reviewed the records of wells drilled in the area, and have assembled the well and geological information available, to revise and maintain a current appraisal of the possibilities of the lease. This shows diligence and good faith.

The record shows that there is no genuine issue as to any material fact, and therefore the trial court properly granted the summary judgment in appellees’ favor.

Appellants complain because the court dismissed the defendants Sidney P. Smith, George E. Elliott and Addie L. Elliott from the suit. Appellants do not show that they were prejudiced in any way by this action. If the court erred in this respect, under the provisions of Rule 434, T.R.C.P., it was harmless error.

The judgment is affirmed.


author: CLAYTON, Justice.

text:
    W. SILVER, Appellant, v. Alejandro NAVARETTE, Appellee.
    No. 5477.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 25, 1961.
    Rehearing Denied Nov. 22, 1961.

      Edwards, Belle, Hunter & Kerr, El Paso, for appellant.
    Guinn, Guinn & Truex, Joe Morgan, El Paso, for appellee.
   CLAYTON, Justice.

This is a personal injury suit in which the appellee recovered a judgment against the appellant for injuries received by the former through what he alleged was negligence on the part of the latter’s employee.

Appellant was engaged in the business of buying and selling scrap metal, and maintained a yard in El Paso, Texas in which the metal purchased was stacked up and stored. He employed a crane operator by the name of Reyner Leyva. This employee operated a traveling crane with about a fifty-foot boom, from the end of which an electro-magnet was suspended by means of a steel cable. This piece of machinery, operating on the principle of magnetic attraction, was used to unload metal from flat cars, trucks and other vehicles, and to stack up the metal in piles, and to move the metal from one pile to another as desired. On or about November 4, 1959, ap-pellee had gone to the yard of appellant in a pickup truck driven by one Leovardo Macias, a relative by marriage, to sell a small load of scrap metal to appellant. Ap-pellee claims that while in the yard, the employee Leyva swung the electro-magnet over the pickup truck next to which appel-lee was standing, and that a piece of metal became dislodged from the magnet and struck the appellee in the face and head.

The case was submitted to the jury on special issues, in response to which the jury found appellant’s employee guilty of negligence in failing to keep a proper lookout, found this to be a proximate cause of appellee’s injuries, found that appellee had not failed to keep a proper lookout, and awarded damages to appellee. After the verdict was returned, appellant filed an original and supplemented motion for judgment non obstante veredicto, which were overruled, and judgment was rendered on appellee’s motion for judgment on the verdict. Appellant’s original and amended motions for new trial were also overruled, and he then perfected his appeal.

The first point upon which this appeal is predicated is that the trial court erred in overruling the motion for judgment non obstante veredicto for two reasons: First, that appellant owed no duty to keep a lookout for the safety of appellee because the crane was being “openly and obviously” operated when appellee approached it, and that appellee was aware of such operation and had come to learn, from prior visits to the scrap metal yard, that pieces of metal had become dislodged and fallen from the magnet on other occasions, and that danger of injury existed to anyone beneath the magnet when it was operating.

The second reason urged under appellant’s first point as to why the trial court erred in overruling the motion for judgment non obstante veredicto is that the ap-pellee was guilty of negligence which proximately caused and contributed to his injuries.

The first reason advanced under Point One requires an examination of the testimony. Appellee testified that on the date his injuries were received, he had gone to appellant’s place of business with a load of “junk” or scrap iron, in the pickup truck being driven by Macias; that the load was weighed in by the front office personnel, and that a lady in charge of the weighing-in told him where to unload the truck. The unloading place was apparently down a narrow lane between two piles of junk, and Macias backed into this lane in order to avoid having to try to turn around. Ap-pellee stated that he dismounted from the truck and was directing the backing up from the right hand side of the truck. He stated that when they first entered the lane, the magnetic crane was operating in a different area to the left of the truck, but as he and the truck were moving into the lane, the boom swung to the right, and directly overhead; that he saw some pipe falling at intervals and he crouched against the truck, and the next moment he was struck and knocked unconscious.

The above testimony of appellee was in all essentials corroborated by the testimony of Leovardo Macias, the driver of the pickup truck. Both of these witnesses stated that in addition to the crane operator who was operating in the yard, there was another man present at the time appellee was injured. This man was identified as one Ramon Quintana, a self-employed truck driver, who hauled materials for appellant. His truck was a two-ton G.M.C. Both the appellee and Macias testified that when ap-pellee was struck, Quintana was with his truck, which was unloaded and parked outside the yard. Macias stated that when appellee was knocked unconscious, and Macias found he could not pick up appel-lee by himself, he called to Quintana, who came over and put some tape on appellee’s head and assisted in getting appellee to the office.

On the other hand, Quintana testified that he was in appellant’s yard with his G.M.C. truck, which was fully loaded with scrap iron, and the crane was immediately in front of his truck. He further testified that while he was working in the yard he saw appellee between the G.M.C. truck and a pile of junk. He stated that when he next saw appellee, the latter threw his hand up to hold the spot where he had been hit; that appellee was bleeding; that he did not see appellee fall; that he asked appellee what had happened and was told by appel-lee that a piece of iron had hit him; and that Quintana applied a piece of tape to the wound to stop the bleeding. Quintana testified that during this time the pickup truck and its driver were outside of the yard in the street.

Reyner Leyva, appellant’s crane operator, testified that on the morning that appellee received his injury, the crane was being operated to unload a two-ton G.M.C. truck in which a man was sitting (whom he later learned to be Quintana) ; that the G.M.C. truck was in the yard while the pickup was outside on the other side of a street, waiting to be unloaded; that the first time he noticed appellee was when he saw appellee standing by the edge of the street, holding his forehead; that Quintana got out of his truck and gave appellee a tape to put on his forehead; that appellee then walked up to his truck and got in it and was not seen again by the crane operator.

From the foregoing it may be observed that there is considerable conflict in the testimony. However, the record does not reveal any attempt to contradict the testimony of appellee and his driver that they were directed to the unloading place by an employee of appellant in the front office. If this be so, and if appellee was following instructions of appellant’s employee in attempting to reach this unloading place at the time of his injury, we consider him to have been an invitee on the premises, and that the doctrine of Jameyson v. Farmers Gin Co-Operative Association, Tex.Civ.App., 278 S.W.2d 169, cited by appellant in his brief, does not apply here.

True, the testimony of the witnesses Quintana and Leyva would indicate that appellee was not in the process of unloading the pickup truck when he was injured, and therefore was not following instructions regarding unloading at the time of such injury. No issue which would have resolved the conflict in testimony in this respect was submitted to the jury, nor was one requested. But appellant urges in his brief that the situation presented by the testimony placed appellee in the category of a bare licensee, and that there is no difference between a trespasser and a bare licensee, citing Texas Pacific Coal & Oil Company v. Bridges et al., Tex.Civ.App., 110 S.W.2d 1248, 1251. This case employs the following language:

“ * * * Circumstances may give rise to a duty due by the owner or occupant of premises to a trespasser or licensee. Sometimes such a duty may be due to a licensee and not to a trespasser. Such duties are not included in, but are additional to, the duty not willfully to injure a trespasser or licensee. When such a duty thus arises and exists, it is an affirmative duty. The necessary predicate to liability based upon a failure to perform such duty would involve acts done and not acts left undone. The negligence predicated upon the failure to discharge such a duty would be active negligence.”

The Bridges case then quotes from Galveston, H. & S. A. Ry. Co. v. Matzdorf, Tex. Civ.App., 112 S.W. 1036, as follows:

“Persons who go to such places upon occasions like that which took plaintiff to defendant’s waiting room are not there unlawfully or wrongfully, and their rights as licensees to complain of active negligence by which they are injured is unquestioned.”

The Bridges case cites the case of Kruse v. Houston & T. C. Ry. Co., Tex.Civ.App., 253 S.W. 623, 625, in support of its analysis of the duties owed by landowners to invitees, licensees and trespassers on their property. The language of the Kruse case is enlightening and is briefly quoted:

“ * * * In determining this question the general test is whether the injured person, at the time of the injury, had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. In the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied, and the injured person must be regarded as a mere licensee.”

Pursuing this line of thought, the Bridges case then gives this illustration:

“To give an example of the practical application of the distinction thus so clearly pointed out, let us suppose that in Kruse v. H[ouston] & T. C. Ry. Co., supra, plaintiff, instead of predicating his claim of negligence upon a failure of duty as to the unsafe condition of the platform, had sought to charge the defendant with negligence based upon striking him by swinging a crane across the platform where the fact of his license and the probability of his presence thereon by reason of such license gave rise to a duty to anticipate his presence. Of course, a very different question of liability would in such case be presented.”

In the instant case, the jury found that at the time, and on the occasion in question, the operator of appellant’s magnetic crane failed to keep a proper lookout and that such failure was a proximate cause of appellee’s injuries. We feel that in view of these findings and the record as a whole, the appellant’s employee was guilty of “active negligence” of which the Bridges case speaks, whether the appellee was an invitee o.r a licensee.

But the appellant further urges that he owed no duty to appellee to keep a lookout for the safety of appellee because the evidence shows that appellant’s electromagnetic crane was being “openly and obviously” operated at the time of appellee’s approach, and that appellee was fully aware of this fact and the further fact that pieces of iron had from time to time fallen from the magnetic load when in motion, and his placing his body under the crane might result in injuries to himself from falling metal.

The testimony reflects that appellee had previously seen the magnetic crane in operation, and also had previously seen pieces of metal fall from the load, which, if they struck him, would hurt him. But appellee testified: “ * * * when we first entered there the crane was not operating toward our side, it was operating to a different area, that is why we proceeded in.”

The jury found that appellee had not failed to keep a proper lookout, from which it can be fairly inferred that any danger of injury from the crane was not open and obvious to appellee prior to the time that the boom was swung over and above him, with pieces of metal falling from the magnet. There was no requested instruction on the “open and obvious” theory, and none was submitted. Appellant’s “open and obvious” contention might also have been intended to invoke the maxim of volenti non fit in-juria, but the Texas Supreme Court has stated, in Triangle Motors of Dallas v. Richmond et al., 152 Tex. 354, 258 S.W.2d 60, 64, that:

“A plaintiff’s right to recover cannot be defeated on the theory that he assumed the risk of injury under the doctrine of volenti non fit injuria unless it appears that with full knowledge of the nature and extent of the danger involved he put himself in the way of the particular risk involved as the result of an intelligent choice.”

Citing Wood et al. v. Kane Boiler Works, Inc., 150 Tex. 191, 238 S.W.2d 172. See also, City of Fort Worth et al. v. Barlow et al., Tex.Civ.App., 313 S.W.2d 906 (err. ref., n. r. e.). It is considered from the record that the appellee cannot be said to have conducted himself in such a manner as to have voluntarily subjected himself to a risk the nature of which he had full knowledge, and as the result of an intelligent choice on his part. Nor is there anything to. indicate that appellee participated in or consented to the failure of appellant’s employee to keep a proper lookout. Wood v. Kane Boiler Works, Inc., supra; Hobbs et al. v. Grant, Tex.Civ.App., 314 S.W.2d 351.

The first reason advanced under appellant’s Point One is overruled.

Nor do we find merit to appellant’s second reason urged under Point One, that appellee was guilty of contributory negligence as a matter of law. We have held that the danger to appellee did not arise, and therefore was not apparent to appellee, until the magnetic crane was swung over and above him, and metal was dropping from the magnet. Upon seeing this, ap-pellee states: “I crouched myself against the truck and then the next moment I just did not know anything about myself. I saw something fall, and that is it.”

“Q. Why didn’t you get out of the way of this falling pipe?
“A. I did not have an opportunity to do so. It was too near us * * *.
“Q. All right, did you do — did you attempt to get out of the way, or what did you do ?
“A. The only thing I could do was to crouch myself and hug the truck, because to the right of me was a pile of junk.”

Appellant contends that appellee “voluntarily went ahead into an area into which his business did not require him to go at all.” But nothing is found in the record to refute appellee’s testimony, and that of his driver, that they were directed to the unloading spot, near where the incident occurred, by the lady in charge of the weighing-in for appellant.

Appellant’s second reason under Point One is overruled.

Appellant’s second point of error relates to the Special Issue No. 3 in the trial court’s charge, wherein the jury was asked to find whether the appellee failed to keep a proper lookout at the time and on the occasion in question, which issue, as has been stated, was answered favorably to the ap-pellee. Appellant’s contention is that this issue, as submitted, was too restrictive of appellant’s rights in view of the fact that appellant had pleaded general contributory negligence on appellee’s part, and appellee had not excepted to this pleading.

Point of error number three complains of the trial court’s refusal to submit appellant’s requested issues numbers one and two. Number one inquired whether appel-lee had failed to use ordinary care for his own safety, and number two was the related proximate cause issue.

Point of error number four complains of the court’s refusal to submit appellant’s requested issues numbers three and four, which asked whether appellee had been guilty of negligence, and the accompanying proximate cause issue.

Points Two, Three and Four are grouped together in appellant’s brief, and since they are related, will be discussed together here.

The law covering the submission of issues under a plea of general contributory negligence, not excepted to, is apparently well settled in this state. Under such a condition of pleadings, the trial court may submit the issue of contributory negligence either generally or by special issues covering each group of facts raising an issue, if submission is requested. For a complete discussion of this matter, see the Court of Civil Appeals opinion in Coleman County Electric Co-Op, Inc. v. Agnew, 265 S.W. 2d 911, and the Supreme Court holding on application for writ of error, Agnew v. Coleman County Electric Cooperative, Inc., 153 Tex. 587, 272 S.W.2d 877. From these decisions it seems plain that even though a general submission of contributory negligence is given, the defendant is not deprived of his right to special submission of specific acts of negligence raised by the evidence. But as to the converse of this principle the Supreme Court, in Texas & New Orleans Railroad Company v. Iiayes, 156 Tex. 148, 293 S.W.2d 484, 488, has held:

“ * * * But a defendant is not entitled to a general submission of contributory negligence when the only issue of contributory negligence raised by the evidence has been submitted specially, as in this case.”

Therefore, our question here seems to resolve itself into a query as to whether or not the only issue of contributory negligence raised by the evidence in the instant case is that of proper lookout, as submitted. To decide this, another brief glance at the testimony is required. Appellee testified that he and his driver were on their way to a spot at which they were instructed to unload. His driver corroborates this. No one denies that appellee was directed to an unloading spot by one of appellant’s employees. Appellee testified that the magnetic crane was operating in a different direction from where they were going. The driver corroborates this. No one actually refutes it. The crane operator testified that he did not see appellee until after he was injured, and that at that time appellee was not inside the yard, but on the edge of the street. The jury found that the crane operator failed to keep a proper lookout, which was the proximate cause of appel-lee’s injuries. The only other person win» testified as to the occurrence — 'Quintana, the operator of the G.M.C. truck — stated that he did not see appellee until after he was injured, at which time appellee was standing between a pile of junk and the G.M.C. truck, where anyone could have seen him.

We do not find anything in this record that could attribute to appellee any specific act of negligence except, perhaps, the matter of proper lookout, and this issue was submitted to the jury and resolved favorably to appellant. We cannot say that the court erred in the issues submitted to the jury, or those refused, and we are constrained, therefore, to overrule all appellant’s points of error.

The judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. Homer R. SIMMONS, Appellee.
    No. 6490.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1961.
    Rehearing Denied Nov. 15, 1961.

      Orgain, Bell & Tucker, Beaumont, for .appellant.
    Jones, Brian & Jones, Marshall, for ap-pellee.
   STEPHENSON, Justice.

This is a suit for personal injuries brought by Homer R. Simmons against the Kansas City Southern Railway Company, under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. Judgment was rendered for appellee Simmons in the amount of $139,615 based upon jury findings that appellant Railway Company was guilty of negligence and appellee was not contributorily negligent. The jury found appellant negligent in the following respects: (1) In failing to furnish a safe place to work. (2) In failing to provide sufficient help to plaintiff in removing the gate from under the train. (3) In dropping a portion of the gate without warning.

Appellant contends there was no evidence to support the submission of Special Issue No. 2, relating to the failure to supply appellee sufficient help to remove the gate from the train. This is a question of law and is to be tested on appeal by considering only the evidence favorable to verdict and disregarding all other evidence. This incident occured when appellee attempted to raise the end of a gate post which had become lodged beneath the train. Through a request for admission, it was proved that appellant’s operating Rule No. 107 provided that all persons employed on a train must obey the instructions given by the conductor. The evidence also showed that if additional help was needed to dislodge the gate, the sole right and duty to provide that help was on the conductor. The conductor told appellee that if they could raise the gate they could slip it out from under the train. When appellee attempted to raise one end of the gate he sustained an injury to his back. The conductor testified he had tried to move the gate himself but could not move it before the attempt was made by appellee. It is clear in this state, the law imposes upon the employer the duty to exercise reasonable care in providing for an employee adequate help in the performance of work required of him. The duty is nondelegable and continuous, the rule being in principle the same as that requiring the employer to furnish his employee with safe instru-mentalities and a safe place to work. Western Union Telegraph Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977. The jury undoubtedly concluded the conductor, as a reasonable prudent person, should not have asked appellee to lift the gate without furnishing additional help to accomplish this task. The submission of this issue was supported by the evidence.

Appellant also contends there was insufficient evidence to support the submission of Special Issue No. 2, discussed in the preceding paragraph. This court has considered all of the evidence in this record, both favorable and unfavorable to the finding of the jury, and hold the point is without merit.

In other points appellant complains of a definition given in connection with Special Issue No. 1, and of the lack of evidence and insufficiency of the evidence to support the submission of Special Issues Nos. 1, 1-A, and 3-B. If there was any error in the submission of this definition and these issues it was harmless error because the findings of the jury in answer to Special Issues Nos. 2 and 2-A were sufficient to support the judgment. Texas & N. O. Ry. Co. v. McGinnis, 130 Tex. 338, 109 S.W.2d 160.

Appellant complains of the size of the verdict in the amount of $139,615.00, contending it is grossly excessive. The San Antonio Court of Civil Appeals, in an opinion by Justice Norvell, clearly sets forth the duty of the appellate court in its examination of this question in Kimbriel Produce Co. v. Webster, 185 S.W.2d 198, 202, as follows:

“The record of the evidence here undoubtedly supports the award of a large sum of money as damages. The determination of the amount rests primarily with the jury, and there is no set formula applicable to cases of this character whereby the exact amount can be measured or ascertained. The amount of the award is not, however, free from control or revision by either the trial court or this Court. ‘The doctrine is now generally accepted that the verdict of the jury is subject to the supervision of the court whether such verdict is too large or too small.’ * * * ‘Precedents are helpful and of some value in determining whether damages awarded for similar personal injuries are or are not excessive or inadequate,’ * * * although it be conceded that no two injuries are alike in all particulars and do not have the same consequences or results insofar as damages are concerned. It is recognized that ‘there should be a reasonable uniformity as to the amount of verdicts and judgments in the various cases.’ ”

Appellee was 46 years of age at the time of injury, and 48 years old at the time of trial, with a life expectancy of 22.88 years. He engaged in work at cleaning and pressing, farming and in the oil field before his employment in 1942 with appellant. Ap-pellee is a high school graduate with one semester of college work. In 1958, his last full year of work he earned a little over $7,000. On the date of the incident, he received two injuries to his back, one while trying to lift the gate and the other when the gate was suddenly dropped. His back has pained him almost continually since that time. He began to receive medical treatment consisting of heat treatment, bed rest and traction. Later he was given a brace to wear. His back continued to hurt and some two months after the injury he underwent a major surgery to remove a disc. He remained in the hospital about 22 days and went home to bed for an additional two weeks. There was no pain for two weeks following the operation, but then it returned and still existed at the time of trial. His testimony showed he worked for 9 days in a liquor store but quit because he could not move cases of liquor and beer. He testified he could not sit too long in one spot and could not stand on his feet too long. He tried hunting several times but could not walk long. He had not seen a doctor for about 5 months before the trial.

Dr. Heinz Faludi was the only doctor to testify. His testimony was given by deposition, the direct portions offered by ap-pellee and the cross examination by appellant. Dr. Faludi testified as to the history of appellee, including the operation removing the ruptured disc, which was performed by another doctor. He found the scar left by the incision, and tenderness over the lumbo-sacral region; weakness and atrophy in the right calf; lumbar lordosis reduced; motion of lumbar spine restricted; tenderness on the lumbo-sacral joint; tenderness over the right medium gluteal muscle; and radiculitis involving the S5 and LI nerve root on the right. He recommended to appellee conservative treatment and if no relief, then a re-exploration operation to free the patient of the scar formation and possibly a posterior rhizotomy, which is cutting the pain fibers of the nerves, if the root was irreparably damaged. Later, he gave appellee a myelo-gram, which was his second, and found a •questionable defect at L4 which he said was more likely old scar formation than new herniation. He stated: “I can’t make any definite promise as to the success of the re-operation.” He was asked if ap-pellee was able to engage in work which required sustained heavy lifting, or stooping and bending, that sort of thing, heavy manual labor, to which he answered: “I do not believe so, not in the condition he is in now.” He testified: “I think an operation would stand a chance, probably better than an even chance to offer him some relief." “I think the pain is fairly well localized and I think it would stand a fairly good chance of success.” He was asked the question, “In other words, you may give him enough relief so he can engage in a remunerative employment, assuming that within reasonable probability that your operation is successful ? ” He answered, “Yes, sir.” Also he testified: “Well, I think we would stand a reasonably good chance that the man could be improved and could be freed of some of his pain, but I am not quite sure that he will definitely be able to go to heavy manual labor. I think he should be able to do moderate labor fairly well.” Also: “I would feel he is stationary and with conservative treatment I very much doubt that he will substantially change.” Also: “I believe he would not be in the good risk group any more. I think he would be probably somewhat in the poor risk group.” At the time of trial appellee had declined a second operation.

This court will apply the rule set forth in Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993, 994: “All the Court of Civil Appeals can do, and all that is required of it to do * * * is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation for the injury sustained, and treat the balance as excess * * * (Having) decided upon an amount that would be reasonable compensation * * * it should authorize a remittitur of the excess * * * in accordance with its sound judgment.” The Supreme Court cited this rule in the case of Flanigan v. Carswell, 159 Tex. 698, 324 S.W.2d 835.

It is unnecessary for us to cite the multitude of cases which involve the amount of damages awarded for injuries more or less similar to those sustained by appellee here. They will be found collated in Houston Belt & Terminal Ry. Co. v. Burmester, Tex. Civ.App., 309 S.W.2d 271 and 17 Tex.Jur. 2d, sec. 350 at p. 425.

After a careful consideration of the evidence and these authorities along with all others cited by appellee on this question, we have come to the conclusion that the verdict of the jury is excessive to the extent of $40,000. We regard the record as presenting a case of considerable past and probable future physical pain and mental suffering. We also have taken into consideration the decreased value of the dollar at this time. We do not consider appellee as having been totally disabled as in the case, City of Fort Worth v. Barlow, Tex.Civ.App., 313 S.W.2d 906, in which the plaintiff was permanently paralyzed from the shoulder down, nor the case of Texas & N. O. Ry. Co. v. Flowers, Tex.Civ.App., 336 S.W.2d 907, in which plaintiff sustained injuries requiring amputation of both legs and one arm. Upon the record, it is our duty to suggest a re-mittitur in accordance with Rule 440, Texas Rules of Civil Procedure.

If appellee will file in this court, within two weeks from the date of this judgment, a remittitur of $40,000, the judgment will be reformed and affirmed for the sum of $99,615.00; otherwise the judgment will be reversed and the cause remanded.

The judgment is affirmed conditionally.


author: MASSEY, Chief Justice.

text:
    DENTON COUNTY, Appellant, v. G. H. BRAMMER, Jr., et ux., Appellee.
    No. 16254.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 20, 1961.
    Coleman & Whitten and Earl L. Coleman, Denton, for appellant.
    Gerald E. Stockard, Denton, for appellee.
   MASSEY, Chief Justice.

This is an appeal by the condemnor in condemnation proceedings from a judgment of the trial court awarding damages, plus interest, to those whose property had been taken under the statutes of eminent domain.

Judgment is reformed so- as to delete the interest awarded therein, and as reformed the judgment is affirmed.

Under Vernon’s Ann.Civ.Tex.St. Title 52, “Eminent Domain”, Art. 3266, “General Provisions”, it is provided that where either the condemnor or condemnee is dissatisfied with the award of the special commissioners appointed for and fixing the value of the condemned property, “* * * such party may within ten days after the same has been filed with the county judge file his objection thereto in writing, setting forth the grounds of his objection, and thereupon the adverse party shall be cited ■and the cause shall be tried and determined ■as in other civil causes in the county court.” (Emphasis supplied.)

Appellant/condemnor predicates its position upon the appeal on the phrase emphasized in the paragraph preceding. It says that when the condemnee is dissatisfied with the award of the commissioners and files his obj ection thereto in writing, thus converting the action into a “cause pending” in the county court, he becomes the complainant. As such, says appellant/condemnor, the burden is incumbent upon him to cause citation to issue as in other causes. Furthermore, says appellant/condemnor, when such a con-•demnee so commits himself by subsequent action (including the withdrawal from the depository of the court the amount deposited by the condemning authority upon entry into possession of the property condemned) that the “cause pending” involves only a question of the amount of compensation to be paid for the property condemned (burden of which is upon the condemnee) — computation of time to be made in a test of appellant/condemnor’s plea of limitations should be from the date the condemnee withdrew its deposit of the commissioners’ award. Culmination of all appellant/con-demnor’s reasoning, as aforesaid, is found in its contention that the trial court erred in overruling its plea of limitation.

As applied to the instant case, it appears that the commissioners’ award was filed in the spring of 1953, with objection thereto timely filed on April 6, 1953. The only complaint registered by the objection was upon the adequacy of the award. The amount awarded was deposited on April 2, 1953, and was withdrawn by the condemnees on March 11, 1955. No citation was caused to be issued. Over five years after having withdrawn the award condemnees filed amended objections and exceptions thereto. Appellant/condemnor replied, at the same time filing its motion to dismiss the appeal to the county court. The motion was overruled. Condemnees filed their admission of the right to condemn and the regularity of prior proceedings, and requested the right to open and close upon trial. Following a jury trial a judgment was entered upon the verdict, which judgment awarded con-demnees $4,156 more than the amount of the commissioners’ award.

The issue of abandonment is not in the case. Appellant/condemnor did not request the submission of any issue or issues concerning such question, and it is not to be doubted that the burden thereupon was one it was obliged to1 discharge. The state of the record does not establish any abandonment as a matter of law.

We are convinced that the part of the quoted phrase from Art. 3266, viz.: “and thereupon the adverse party shall be cited”, relating to objections to the commissioners’ award filed with the county judge, is in no wise jurisdictional. Particularly is this true as applied to the matter of the county court’s jurisdiction of the parties. By express provision of the same article the commissioners’ award can be made the judgment of the county court in condemnation proceedings only when no objections to the award are filed. As applied to parties before us, the notice in writing issued and served upon them by the commissioners pursuant to the administrative proceedings (under the provisions of Art. 3264) suffices as the only citation essential to be served to make them parties to said administrative proceedings. Upon perfection of an appeal to the county court those who were parties to the administrative proceedings are as certainly parties over which the county court has jurisdiction as would be the case had another citation been issued and served upon those same parties after the appeal. This means that the condemning authority initiating the proceedings would always he a party, and there would never be any necessity to have any citation issued and served upon it after an appeal is taken to the county court. In such circumstances such condemning authority would be taken and treated as a party under the jurisdiction of the court, as to which any additional citation (for the purposes of acquiring jurisdiction) would never be necessary.

It necessarily follows in our opinion that appellant/condemnor’s plea of limitation was wholly without merit. It was properly overruled.

The precise question does not seem to have been previously decided. Persuasive authority leading to the conclusion expressed include the following: Texas Law of Condemnation, Rayburn, sec. 66 “Adverse Parties to be Cited as in Other Civil Causes Commenced”; City of Houston v. Huber, 1958 (Tex.Civ.App., Houston), 311 S.W.2d 488; City of Big Spring v. Garlington, 1935 (Tex.Civ.App., Eastland), 88 S.W.2d 1095; Sherrill v. Brazos River Transmission Electric Cooperative, Inc., 1953 (Tex. Civ.App., Fort Worth), 263 S.W.2d 669, writ ref. n. r. e.; City of Houston v. Susholtz, 1929 (Tex.Civ.App., Galveston), 22 S.W.2d 537, affirmed at Tex.Com.App., 37 S.W.2d 728; Fitzgerald v. City of Dallas, 1930 (Tex.Civ.App., Dallas), 34 S.W.2d 682, error refused.

Furthermore the burden of initial procedure in a condemnation case remains upon the condemning authority until such time as the condemnee stipulates the regularity of its condemnation proceedings. Texas Law of Condemnation, Rayburn, sec. 84 “Burden of Proceeding on Condemnor, —When, Where No Agreement of Con-demnee Admits Right To Condemn”.

We are of the opinion that the judgment of the trial court is erroneous in so far as it purports to award interest to con-demnees between the date appellant/con-demnor took the property and the date of the judgment. No part of the condemnees’ pleading or prayer asserted any claim to such interest either expressly or by implication, and the Eminent Domain Statutes are silent relative to an award of interest as part of the damages to which a condemnee is entitled. Routh v. Texas Traction Co., 1912 (Tex.Civ.App., Dallas), 148 S.W. 1152.

Judgment of the trial court is reformed so as to delete therefrom the award of interest prior to its entry. As so reformed, it is affirmed.


author: LANGDON, Chief Justice.

text:
    George E. FOLEY, Appellant, v. Antonina J. FOLEY, Appellee.
    No. 5492.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 1, 1961.

      Marshall & Wendorf, El Paso, for appellant.
    Pearson & Speer, El Paso, for appellee
   LANGDON, Chief Justice.

This is an appeal from a judgment in a divorce suit filed by appellant, George E. Foley, against appellee, Antonina J. Foley, alleging cruelty as grounds therefor. Ap-pellee denied all allegations of cruelty and, by way of an affirmative defense, plead condonation. The case was submitted to the jury on special issues. By its verdict the jury found that appellee was guilty of cruel treatment toward appellant, but also found that such acts and conduct on her part had been condoned by appellant. Based on the jury verdict, the trial court rendered judgment for appellee. Appellant’s motion for judgment non obstante veredicto and his motion for new trial were overruled.

Appellant charges that the trial court erred: (1) in overruling his motion for judgment non obstante veredicto and in refusing to disregard the jury’s answer to Special Issue No. 2 -(by which it was found that appellant had condoned the acts and conduct of appellee); and, (2), in refusing appellant’s requested explanatory instruction regarding revival of condoned acts of cruelty.

Special Issue No. 2 and its accompanying instruction, as submitted by the trial court, read as follows:

“Question No. 2
“Do you find from a preponderance of the evidence that Mister Foley condoned the prior acts of Mrs. Foley, if any, alleged by him as a cause or ground of divorce, Answer ‘Yes’ or ‘No.’
“We answer: Yes.
“You are instructed that condoning the prior acts means the conditional remission or forgiveness, by means of continuance or resumption of marital cohabitation, by one of the married parties of a known matrimonial offense committed by the other that would constitute a cause or ground of divorce, the conditional forgiveness being that such offense shall not be repeated.”

Appellant’s assertion that the trial court erred in refusing to disregard the jury’s answer to Special Issue No. 2 is based, presumably, on the assumption that such issue was not properly submitted, and that the trial court’s explanatory instruction regarding “condonation” was incorrectly stated. He contends on this appeal that there were other acts of cruelty on the part of appellee, subsequent to those found by the jury to have been condoned, and that such subsequent acts of misconduct or cruelty were sufficient to revive the previously condoned acts.

The record before us reflects that appellant made only one written request in connection with the court’s charge, and it was as follows:

“Plaintiff’s Special Requested Issue
“Plaintiff would request an additional charge, in addition to Question No. 2, as follows, with an additional ‘yes’ or ‘no’ answer at the end of Question No. 2:
“In connection with the term ‘conditional forgiveness’ you are instructed that repetition of the acts of cruelty, if any, after a possible forgiveness or condonation, as above defined, acts to revive the misconduct, and this is so even though the new acts would not, taken alone, be sufficient to authorize a divorce. Therefore, if you find that Captain Foley condoned prior acts of misconduct of Mrs. Foley, but if, and only if, you find that after any con-donation there were new acts of cruel treatment, excesses, and outrages perpetrated by Mrs. Foley, then you should answer ‘No’ to this question.”

Certainly the foregoing does not constitute an objection or exception to the court’s charge; neither does it satisfy the requirement that special requested issues be submitted to the court in “substantially” correct wording. If it be considered a request for an explanatory instruction (assuming the requested instruction is properly stated), it cannot serve as a predicate for a point of error, if refused by the court, unless such request is coupled with an objection.

The jury found that appellee was guilty of the acts and conduct charged, and that such acts and conduct constituted cruelty. It made no specific findings with respect to the specific acts alleged against her, and presumably it found in favor of appellant and against appellee on all such allegations. By the same token, the jury found that (all) such acts and conduct on the part of appellee had been condoned by appellant.

The ultimate issue sought to be established under appellant’s pleading was the question of whether appellee was guilty of cruel treatment. Although appellant plead various acts and conduct on the part of appellee as constituting cruelty, he made no request that each claimed act of cruelty or misconduct be submitted by separate issue, and he presented no such separate issues to the trial court for its approval or refusal. Consequently, the trial court very properly treated the various claimed acts charged against appellee as being eviden-tiary, and charged the jury, in Special Issue No. 1, to make its finding from preponderance of the evidence, on the single ultimate issue of cruelty, which issue was found by the jury in favor of appellant. Howell v. Howell, 147 Tex. 14, 210 S.W.2d 978 (S.Ct.1948).

In the absence of the jury finding (Special Issue No. 2) that Mr. Foley “condoned” the prior acts of Mrs. Foley, charged by him as constituting cruelty, appellant would have been entitled to a judgment of divorce on the jury answer to Special Issue No. 1.

We have carefully examined the record in this case and have concluded that the jury finding on the issue of condonation is quite adequately supported by the evidence. In such case it would have been improper for the trial court to have directed a verdict in favor of appellant; and, by the same token, since there was evidence to support the jury finding, it would have been error for the trial court to disregard the jury finding when such finding is supported, as we believe it was here, by the evidence. Rule 301, Texas Rules of Civil Procedure; Collier v. Hill & Hill Exterminators et al., Tex.Civ.App., 322 S.W.2d 329, 73 A.L.R.2d 1141.

Appellant’s Point One is accordingly overruled.

Appellant’s Point Two is based on the alleged error of the trial court in refusing appellant’s requested explanatory instruction regarding revival of condoned acts of cruelty. The point is predicated upon the trial court’s refusal to give “Plaintiff’s Special Requested Issue.” The transcript reflects that only one such request was made, and whether the request was for an additional special issue to be submitted or was, in fact, a request for a further explanatory instruction on the question of the revival of condoned acts of cruelty as appellant now contends, it does not, in our opinion, satisfy the rule (Rule 279, Texas Rules of Civil Procedure) which provides that the trial court’s failure to submit an issue shall not be deemed a ground for reversal of the judgment nor shall its failure to submit a definition or explanatory instruction be deemed a ground for reversal, unless the submission of' the issue, in substantially correct wording, or a substantially correct definition or instruction as the case may be, has been requested in writing and tendered by the party complaining of the judgment. Since appellant’s requested special issue was not in substantially correct wording and does not meet the test of a “substantially correct definition or instruction”, the trial court did not err in refusing to submit it.

Unless appellant’s “Special Requested Issue”, discussed above, be construed as an objection to the court’s charge, it does not appear that appellant either objected or excepted to the court’s charge as submitted. The law in Texas is well settled, even where it is assumed that a requested charge was more accurate than that given, that a request to give such special requested charge, not coupled with any objection to the form used by the court, will not be given effect as an objection to the issue, definition or explanatory instruction as submitted by the court. City of Dallas v. Priolo et ux., 150 Tex. 423, 242 S.W.2d 176, 178 (S.Ct.1951); Duff v. Roeser & Pendleton, Inc. et al., Tex.Civ.App., 96 S.W.2d 682; Isbell et al. v. Lennox et al., 116 Tex. 522, 295 S.W. 920 (S.Ct.1927).

In addition to the authorities cited above, Rule 273, Texas Rules of Civil Procedure, provides in part, as follows:

“ * * * A request by either party for any instructions, special issues, definitions or explanatory instructions shall be made separate and apart from such party’s objections to the court’s charge.”

We hold, therefore, that appellant’s purported request for an explanatory instruction regarding the revival of condoned acts of cruelty was not sufficient to constitute an objection to the court’s charge as given. Therefore, it may not be used as a predicate for appellant’s Point Two, since we are required to assume that, if proper objection had been made, the trial court would have correctly submitted the instruction, if there was, in fact, error in the court’s own submission thereof. Belzung v. Owl Taxi et al., Tex.Civ.App., 70 S.W.2d 288.

Appellant’s Point Two is accordingly overruled, and the judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    Jocelyn H. LEE et ux., Appellants, v. BRISCOE IRRIGATION COMPANY, Appellee.
    No. 13821.
    Court of Civil Appeals of Texas. Houston.
    Nov. 2, 1961.
    Rehearing Denied Nov. 16, 1961.

      Wellborn & Britt, Charles W. Britt, Alvin, for appellants.
    Davis, Kee & Thomas, Wiley Thomas, Angleton, for appellee.
   COLEMAN, Justice.

Appellant, Jocelyn H. Lee, has appealed to this Court from a judgment rendered by the County Court of Brazoria County, Texas, awarding damages in a condemnation action instituted by the Briscoe Irrigation Company.

Because of stipulations entered into by the parties, only three issues were submitted to the jury. These issues were:

Special Issue No. 1
“From a preponderance of the evidence what do you find was the market value of the strip of land condemned by Briscoe Irrigation Company for irrigation purposes at the time it was condemned, considered as severed land?”
Special Issue No. 2
“From a preponderance of the evidence what do you find was the market value of defendants’ track of land, exclusive of the strip of land condemned, immediately before the strip was taken for irrigation purposes, that is, June 10, 1960?”
Special Issue No. 3
“Excluding increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by defendants in common with the community generally and not peculiar to them and connected with their ownership, use, and enjoyment of the particular tract of land across which the strip of land has been condemned, and taking into consideration the uses to which the strip condemned is to be subjected, what do you find from a preponderance of the evidence was the market value of the remainder of defendants’ tract of land immediately after the taking of the strip condemned for irrigation purposes ?”

To each of these issues the jury answered: “313.00.” The trial court entered judgment in favor of appellant in the sum of $713.64. It was stipulated that the tract of land owned by appellant contained 20 acres and that the strip condemned contained 2.28 acres. The trial court evidently considered that the jury intended to answer the issues $313 per acre. Four expert witnesses testified and their estimates of the market value of the land ranged from a low of $200 per acre through $250 per acre and $450 per acre to a high of $500 per acre.

On motion for new trial, appellant has attacked the answers of the jury and the judgment of the court as being against the great weight and overwhelming preponderance of the evidence and as being supported by insufficient evidence. Error was also assigned to the action of the court in entering judgment in a sum contrary to the verdict of the jury.

The verdict of the jury is not ambiguous, although considering the entire verdict in light of the testimony of the expert witnesses, it may seem obvious that the jury intended their answers to be market value per acre. The special issues submitted by the court were written in clear language and cannot be construed to call for a per-acre answer. The issues and the answers considered alone would not compel the conclusion that the jury intended their answers to reflect a per-acre value. Appellants’ motion for new trial did not allege error on the part of the jury and no testimony was taken to determine the intention of the jury in answering as they did. The trial court could not correct the mistake made by the jury. Even if it could be considered that the answers to the special issues as returned into court resulted from clerical error, such errors were not corrected by the jury. The only relief which a trial court properly can grant to correct a jury error is a new trial. Burchfield v. Tanner, 142 Tex. 404, 178 S.W.2d 681, Tex.S.Ct.; Caylat v. Houston E. & W. T. Ry. Co., 113 Tex. 131, 252 S.W. 478, Tex. Com.App., opinion adopted.

However, it cannot be assumed that a unanimous mistake in the nature of a clerical error was made by the jury, — this fact must be proven. Caylat v. Houston E. & W. T. Ry. Co., supra. It seems more likely that the mistake resulted from the failure of the jury to understand the issues they were answering. In such a case the mistake cannot be corrected after the jury has been discharged and has dispersed. Commercial Standard Insurance Co. v. Moore, 144 Tex. 371, 190 S.W.2d 811, Tex. S.Ct.; Adams v. Houston Lighting & Power Co., 158 Tex. 551, 314 S.W.2d 826, Tex. S.Ct. This Court must consider the judgment of the trial court in light of the answers to the special issues as returned into court by the jury.

The answer of the jury to Special Issue No. 1, i. e., $313, is supported by the evidence. While the answer would not be supported if only the testimony of the expert witnesses could be considered, there was other evidence from which the jury could have reasonably concluded that the value of the 2.28 acre strip was $313. Market value may be determined without the assistance of the testimony of expert witnesses. Simmonds v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332, Com. App.; Harris County Flood Control District v. Hill, Tex.Civ.App., 348 S.W.2d 806.

The jury’s answers to Special Issues Nos. 3 and 4 are clearly against the great weight and preponderance of the evidence. There was testimony that a 10.03 acre tract in the general vicinity sold for $86.55 per acre and that another tract sold for $90 per acre. The lowest value given this land by any of the expert witnesses was $200 per acre, or $3,544. It is evident that the answers were not responsive to the questions asked and resulted from the failure of the jury to understand the issues.

The effect of the jury’s answers to these issues was that the taking of the 2.28 acre strip of appellants’ land did not affect the value of the remainder of the land. Since the trial court must render judgment based on the answers made by the jury to the issues submitted to them, the judgment entered herein is based on findings of fact that are not supported by the evidence.

The error of the court in rendering judgment in the amount of $713.64 is favorable to appellant, and, insofar as it reflects the action of the court in disregarding the answer of the jury to Special Issue No. 1, he cannot be heard to complain. However, the court necessarily rendered judgment finding no damage to that portion of the tract of land remaining after condemnation.

In Houston Belt & Terminal Ry. Co. v. Lynch, 221 S.W. 959, Tex.Com.App., the jury found, in answer to issues concerning the market value of property before and after certain construction, that the value before was $2,750 and the value after was $1,450. The trial court entered judgment for $1,300. The defendant in the trial court appealed, contending that the verdict of the jury on the question of the value after the construction was without support in the evidence since the least amount testified to by any witness was $1,500. On appeal the Court of Civil Appeals sustained the assignment, but affirmed the judgment on the filing of a remittitur in the sum of $50. In the Supreme Court it was urged “that the power of the Court of Civil Appeals to suggest re-mittiturs, and affirm upon the filing thereof, is limited to cases in which the verdict and judgment are excessive, and does not exist and cannot be exercised for the purpose of reforming answers of juries to special issues; that the effect of the action of the Court of Civil Appeals was to substitute an answer which the jury did not make, but which they might have made, for one which they did make, thus conforming the answer to some, but not the undisputed, testimony in the case, and thereby depriving defendant of its constitutional right to a trial by jury.” The court held:

“In virtue of article 1626, R.S.1911, Courts of Civil Appeals are not thus limited. Upon the reversal of a cause, those courts are authorized to render such judgment as the court below should have rendered. This does not restrict the Court of Civil Appeals to the entry of such judgment as the judge of the lower court should have rendered upon the verdict of the jury in case of a jury trial. 'The court/ as used in the above-mentioned article, means a body organized to administer justice, and includes judge and jury. Henne & Meyer v. Moultrie, supra [97 Tex. 216, 77 S.W. 607].
“It does not follow, however, that this article empowers the court, upon concluding that the finding of the jury upon a material fact or issue is not supported by the evidence, to reform such finding to make it conform to some, but not the undisputed, evidence. The article excepts cases wherein 'it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is tmcertain, in either of which cases the cause shall be remanded for a new trial in the court below.’ * * *
* ⅝ * ⅝ * *
“Prior to the passage of the remit-titur statute, the rule was established in this state that, where the law afforded no criterion by which to determine damages, the damages being uncertain in their nature, and the amount thereof left to the sense of right and justice of the jury, the appellate courts could declare the verdict and judgment excessive, and thereupon reverse and remand the cause for a new-trial. This was the limit of their authority. They could not substitute their own finding as to damages, and thereby effect a reform in the judgment. The remittitur statute was enacted to enlarge the power of these courts, with a view to a final adjudication on appeal where the only error was excessive judgment; and this has been held no infringement upon the constitutional right of trial by jury. T. & N. O. R. R. Co. v. Syfan, 91 Tex. 562, 44 S.W. 1064. The fact that the case was tried on special issues does not remove it from the operation of the remittitur statute, declared to be applicable 'in all civil cases’ where the verdict and judgment of the trial court is excessive, and for that reason only should be reversed. That which differentiates the verdict of the jury and judgment herein from a judgment rendered upon a general verdict is the fact that herein the basis of the computation of the judgment is manifest, and an error therein easier of detection.
“In a case wherein a general verdict is returned, complained of as excessive, the court, in order to determine the question of excessiveness, must first arrive at a conclusion as to what sum would be held reasonable if it had been assessed by the jury. T. & N. O. R. R. Co. v. Syfan, supra. In the present case, the complaint being that the value of the property after construction and operation was less than justified by the evidence, it was necessary for the Court of Civil Appeals to first determine what value would be justified under the evidence, if it had been found by the jury. The court concluded that the jury could have found from the evidence such value to be $1,500. Having assessed it at $1,450, the result was an excess in the judgment in the sum of $50, plus interest. The same method of ascertainment applies in this case as in a case submitted upon a general charge, and the same result is attained. But for its effect upon the judgment, however erroneous the answer to the second question, it would give no ground for interference with the judgment. That which alone gave the Court of Civil Appeals the right in any manner to interfere with the judgment of the trial court was its exces-siveness. Through this alone defendant was injured. Of this injury it complained by indirection, assigning error to the finding rather than to its necessary effect — excessive judgment. Looking to substance rather than form, the action of the court in this case was no more a substitution of its own finding for that of the jury than in the case of excessive judgment under a general verdict. The court granted defendant the relief, and the only relief, to which it was entitled, and it is in no position to complain of the action of the court in the premises.”

We think that the rule of law established in the case quoted from is that the court must determine from the record whether or not the amount of damage to the property, as determined by comparing the answers of the jury to the before and after issues, is supported by the evidence. Houston Belt & Terminal Ry. Co. v. Lynch, supra, was cited and relied on by the Supreme Court of Texas in Adams v. Houston Lighting & Power Company, supra. There is ample support in the evidence that the property which appellant retained after condemnation sustained no decrease in value.

The judgment of the trial court is affirmed.


author: FANNING, Justice.

text:
    AETNA CASUALTY AND SURETY COMPANY, Appellant, v. Raymond MOORE, Appellee.
    No. 7312.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 17, 1961.
    Rehearing Denied Nov. 14, 1961.

      James A. Williams, Bailey & Williams, Dallas, for appellant.
    H. J. Yarborough, Yarborough, Yarbor-ough & Johnson, Dallas, for appellee.
   FANNING, Justice.

Appellant insurance company has appealed from a lump sum total permanent disability judgment rendered against it (less credit given for compensation paid) in favor of Raymond Moore in a workmen’s compensation insurance case tried before a jury.

Appellant presents two points on appeal. By its first point it contends to the effect that the trial court erred in refusing its special requested issue No. 2, reading as follows: “Do you find from a preponderance of the evidence that such disability, if any you have found in answer to the preceding Special Issue, was limited to the right arm?” By its second point it complains of the refusal of the trial court to submit appellant’s special requested issues 1 to 9, inch, which inquired into whether the plaintiff’s disability was limited to the use of the right arm and if so, in what degree and for what period of time, contending that these issues were proper defensive issues raised by the pleading and the evidence.

Plaintiff pleaded general injuries, principally to the right shoulder and to the back as well as other general injuries.

By trial amendment defendant pleaded in part as follows:

“1.
“The defendant says that any disability or incapacity to the plaintiff resulting from the accidental injury in question was limited to the right arm and therefore was a specific injury to the right arm under the Workmen’s Compensation Act.
“2.
“In the alternative, this defendant says that for a short period of time immediately following the alleged injury on or about March 23, 1959, the disability or incapacity experienced by the plaintiff, Raymond Moore, was of a general nature as that term is understood in light of the Workmen’s Compensation Act. This defendant says, however, that any disability or incapacity which may have existed following that short period of general disability was specific and was limited to the use of the right arm.”

Plaintiff testified that he fell from a ladder striking on his right shoulder and back. He testified in detail as to general injuries to his right shoulder, back and other general injuries, as well as to his disabilities and pains. Three lay witnesses testified in his behalf. A doctor testified in behalf of plaintiff detailing general injuries to his right shoulder, back and other portions of his body and gave his professional opinion that plaintiff Moore was totally and permanently disabled.

Defendant produced only one witness, Dr. Herrick. Dr. Herrick’s testimony disputed the back injury feature of the case and he was of the opinion that Moore did not receive any back injuries.

However, the record conclusively shows that Dr. Herrick did not dispute the right shoulder injury but fully corroborated the fact that Moore had received an injury to his right shoulder. Dr. Herrick, among other things, testified that x-rays showed that Moore had an evulsion or chip fracture on the interior surface of the glenoid socket of the right shoulder. He also testified as to visible outward physical manifestations of Moore’s shoulder injury, stating in part as follows:

“A. I examined the shoulder once more and this time there was — this is a day or two afterwards, and by this time there was marked swelling of the entire shoulder and discoloration of the skin over an area three inches in length and one inch in width. The patient could not and would not move his shoulder in any direction(Emphasis added.)

After fully and repeatedly testifying to an unquestioned right shoulder injury, on examination by appellant’s counsel he, among other testimony, gave the following additional testimony:

“Q. About how much disability did you consider him to have in February of 1960 with respect to his shoulder?
“A. Well, because he had some limitation of motion of his arm, I thought that he probably would have fifteen per cent permanent partial disability of his arm.” (Emphasis added.)

None of appellant’s specially requested issues 1 to 9, inch, made any inquiry whatever as to whether the accidental injury sustained by Moore, if any, was to his arm or to any other specific member of his body. Appellant also did not request any issue as to whether plaintiff’s injttry, if any, was confined to his right arm alone.

Art. 8306, Sec. 12, Vernon’s Ann. Civ.St., sets out in detail the injuries that are classified as specific and there is no reference therein to a shoulder injury. For an injury to be specific it must be one enumerated by the statute. In order for compensation to be confined to a specific member enumerated in the statute the injury must be confined.to the specific member alone and the incapacity must relate alone to the loss of the use of the specific injured member.

We hold that a shoulder injury is a general injury and not a specific injury since it is not enumerated in Article 8306, Sec. 12, V.A.C.S. In this connection see Art. 8306, Sec. 12, V.A.C.S., and National Mut. Casualty Company v Lowery, 136 Tex. 188, 148 S.W.2d 1089.

Since it was undisputed that plaintiff Moore at least received a shoulder injury, which is a general injury, the trial court correctly submitted the case as one of general injury and properly refused to submit defendant’s special requested issues Nos. 1 to 9, inch

The judgment of the trial court is affirmed.


author: RICHARDS, Justice.

text:
    NATIONAL SURETY CORPORATION, Appellant, v. Thurston V. STUKES, Appellee.
    Motion No. 12517.
    Court of Civil Appeals of Texas. Austin.
    Oct. 18, 1961.

      Gay & Meyers, Austin, for appellant.
    Byrd & Davis, Austin, for appellee.
   RICHARDS, Justice.

Appellee has filed a Motion to Affirm on Certificate upon the ground that appellant has failed to file a transcript of the record in a proper time in this Court. Since no transcript of the record has been filed in this Court the Motion to Affirm on Certificate is granted and the judgment of the Trial Court is in all things affirmed against the appellant National Surety Corporation and Fireman’s Fund Insurance Company as surety on the appeal bond.

Appellee also prays that this Court, pursuant to Rules 435 and 438, Texas Rules of Civil Procedure, award an additional 10% penalty to the amount of the judgment already entered upon the ground that the appeal has been taken for delay. Rule 435 provides that when a Court of Civil Appeals affirms the judgment of the lower court it may in its discretion include in the judgment damages not to exceed 10% on the amount of the original judgment as it may deem proper. In the exercise of such discretion this Court is not of the opinion that the award of damages under Rule 435 is warranted.

Even if the award of the 10% amount in dispute as damages is mandatory under Rule 438, this Court is without authority to make such an award since a complete record of the proceedings in the Trial Court has not been filed in this Court in order that by an inspection thereof we may conclude from the whole record that the appeal was taken for delay and that there was no sufficient cause for taking such appeal. Granberry v. Jackson, 62 Tex.Civ.App. 597, 132 S.W. 508; Scott v. McClain, Tex.Civ.App., 246 S.W. 1118; Ramey v. Phillips, Tex.Civ.App., 253 S.W. 323; Texas State Life Ins. Co. v. Aparicio, Tex.Civ.App., 129 S.W.2d 794; 4 Tex.Jur.2d, Sec. 867, p. 445.

Appellee’s motion to award an additional 10% penalty as damages under Rule 435 and Rule 438, T.R.C.P., is denied. All costs of this appeal are taxed against appellant, National Surety Corporation.

Motion granted in part and in part denied.