author: LANGDON, Justice.

text:
    Pearl Arlene THOMPSON, Appellant, v. Eulys Leonard THOMPSON, Appellee.
    No. 16546.
    Court of Civil Appeals of Texas. Fort Worth.
    June 12, 1964.
    Rehearing Denied July 10, 1964.

      H. Tod Weaver and James F. Hoge, Jr., Fort Worth, for appellant
    McDonald, Sanders, Nichols, Wynn & Ginsburg, and Ernest E. Sanders, Fort Worth, for appellee.
   LANGDON, Justice.

This case is companion to the case of Thompson v. Bott, 380 S.W.2d 640, in which this court handed down its opinion this same date.

On July 12, 1962 suit was instituted by appellee, Eulys Leonard Thompson, against his wife, Pearl Arlene Thompson, appellant, for divorce, division of property, award of custody to his wife and for reasonable visitation and child support

On August 6, 1962 appellant filed her original answer and a counterclaim and cross-action against appellee and Ruth Bott, a feme sole. She alleged that appellee had conveyed 178 shares of Thompson Auto Loans, Inc., stock to Ruth Bott in violation of her community rights and that such transfer of stock should be set aside.

On December 5, 1962 appellant filed a cross-action for divorce and division of property.

The case was tried to a jury on twenty special issues. It found each party guilty of such cruel treatment as to render living together insupportable. It answered fifteen issues concerning market value, specific indebtedness, and other matters relating to community property and awarded appellant $5,000.00 attorney’s fees.

Judgment was rendered awarding a divorce to the appellee, decreeing a division of the property, awarding custody, child support and $5,000.00 in attorney’s fees.

The appellant in appealing attacks the judgment of divorce, division of the property, amount of child support and the amount of attorney’s fees, based upon thirty assignments of error.

We affirm.

Appellant by her first point of error presents four contentions as follows, (1) the acts of appellee were such as to deny him a divorce because of recrimination, (2) her acts were of a lesser degree, (3) no evidence to support the judgment of divorce and (4) same was contrary to the great weight of evidence.

No issues were requested or submitted on the defense of recrimination or inquiring as to the degree of cruel treatment of the respective parties.

“Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived.” Rule 279, Texas Rules of Civil Procedure. Evidence relating to this point was not conclusively established. It was controverted in every essential detail.

In McFadden v. McFadden, 213 S.W.2d 71 (Amarillo Civ.App., 1948, Mand. Overr.), the jury, as here, found both parties guilty of cruel treatment. The court held: “The doctrine of recrimination is observed in a number of jurisdictions in this country and, under it, where it is shown in divorce cases that both parties have been guilty of cruel treatment, a divorce will not be granted. It is now well settled however, that in this state, as well as a number of others, the rule is relaxed and that of comparative rectitude is recognized. In such cases the court has the duty of weighing the conduct of the respective parties and is authorized to grant a divorce to the one who is lesser guilty. Marr v. Marr, Tex.Civ.App., 191 S.W.2d 512; Beck v. Beck, 63 Tex. 34; Jones v. Jones, 60 Tex. 451.” The court further said: “The question is largely within the sound discretion of the trial court and especially so when it is presented by findings of the jury, as it was in this case. We conclude therefore that the court properly weighed the conduct of the respective parties and that the conclusion reached was the correct one.” We hold to the same effect.

As to the contention of no evidence, we must disregard all unfavorable evidence and consider only that favorable to the verdict. Concerning the contention that the judgment was contrary to the great weight, this court, to warrant reversal, must find from the record as a whole that the granting of the divorce was so against a great preponderance of the evidence as to shock the conscience. In applying these rules we find the testimony of appellee and other witnesses in support of the finding of cruel treatment on the part of appellant to be clear and convincing. Evidence is so extensive in this regard that we see no necessity to recite it in any detail.

Appellant complains of the court’s action in granting summary judgment to Ruth Bott and in reading a portion thereof to the jury and commenting thereon and in refusing cross-examination of Bott concerning the transfer of the stock to her. Appellant also complains of the court’s failure to enjoin Ruth Bott from disposing of the 178 shares of stock. Since these points are closely related they will be considered as a group.

In the appellant’s counterclaim and cross-action against appellee and Ruth Bott she alleges the stock transfer in question occurred on September 20, 1961, some months prior to the institution of the divorce action. Mrs. Bott filed a motion for summary judgment with supporting affidavit. It is without dispute that Mrs. Bott paid $10,000.00 cash for the stock. There was no tender or offer to return the money which Mr. Thompson received for the stock. It must be presumed from the circumstances of the transfer that the $10,000.00 became a part of the community assets. There is no evidence in the record to the contrary. Thus the appellant’s suit against Bott to cancel the sale of the corporate stock was for the benefit of the community estate of the Thompsons. The community estate originally had 592 shares of such stock. There remained in the community 414 shares after transfer of the 178 shares to Mrs. Bott. In its judgment of divorce the court found that the community estate consisted of 414 shares of the stock and awarded to each of the parties 207 shares. Thus the court in granting Mrs. Bott’s motion for summary judgment in effect found that the 178 shares of stock belonged to Mrs. Bott and therefore were no longer a part of the community estate. The appellant in her reply to the motion for summary judgment raised no issue of fact as to a fraudulent disposition of the community property by appellee to Mrs. Bott. Finding no genuine disputed fact issues involving the stock transfer the court granted the motion for summary judgment. This effectively took the issue of the 178 shares of stock out of the case. It narrowed the scope of the trial to that extent and the court retained full power to make one complete adjudication on all aspects of the case at the proper time.

It was therefore proper for the court to permit the reading of pertinent portions of the summary judgment to the jury, with instructions that it should not consider the matters therein disposed of as having any bearing on any issue involved in this suit. For the same reason the court properly refused examination of a witness concerning the stock transaction and to enjoin Ruth. Bott from disposing of the stock.

In considering the contention that, the court’s division of the property was inequitable and constituted an abuse of discretion it is the duty of this court to indulge every reasonable presumption in favor of a proper exercise of discretion by the trial court in dividing the properties of the parties. Ingham v. Ingham, 240 S.W.2d 409 (Amarillo Civ.App., 1951, Mand. Overr.) ; Mozisek v. Mozisek, 365 S.W.2d 669 (Fort Worth Civ.App., 1963, Dismissed).

A proper construction of the judgment in the light of the whole record and the-court’s recitals in the judgment shows the court did partition the property.

The provisions of Art. 4638, Vernon’s-Ann.Civ.St, do not require the division of property to be equal. The court can be controlled by what the facts lead him to believe is just and right. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960).

Under the statute, the court has-wide discretion and power to determine-questions of fact in respect to the division or partition of the property between the parties to a divorce and such awards will not be disturbed unless there is a clear abuse of discretion. Kollenborn v. Kollenborn, 273 S.W.2d 660 (Fort Worth Civ.App., 1954, Dismissed) ; Milligan v. Milligan, 282 S.W.2d 127 (San Antonio Civ.App., 1955, no writ, hist.).

We find no abuse of discretion on the part of the trial court in the disposition of the property.

Appellant’s points 7, 8, 10, 27 and 30 are based upon acts of the court which are not complained of in the motion for new trial and therefore the errors, if any, have been waived by appellant. The point concerning the court’s refusal to enforce temporary orders is now moot.

Point 8 above referred to and point 9 complain of the court’s action in refusing to permit appellant to take the oral depositions of certain witnesses. Appellant made known her desire to take the oral deposition of some fifteen witnesses. Following a hearing she was authorized to take the deposition of four witnesses. The order provided that the depositions of the other witnesses could be taken for good cause. There is no showing that appellant ever filed an application or otherwise requested the court to permit the taking of additional depositions or that she took the four depositions authorized. Clearly, under its order the trial court would have permitted the taking of the deposition of any material witness upon request of appellant

Under point fourteen the appellant complains of the court’s action in permitting the appellee, during pendency of the suit, to borrow $30,000.00 additional to the $20,-000.00 already owed to the bank, and thereby encumber and dissipate the community assets.

Under undisputed evidence the Circle 6 Auto Parts, a partnership between appellee and Boyd, owed Thompson Auto Loans, Inc., in excess of $30,000.00. A good part of the $30,000.00 borrowed was paid on the obligations to Thompson Auto Loans, Inc. In so far as the community estate is concerned, the loan did not change the overall financial picture of the parties and their in-debtednesses. The loan was approved by the court for the benefit of the community estate after a full hearing.

Appellant contends that certain notes and paper were sold and transferred in violation of the temporary order restraining ap-pellee from disposing of community property. The order permitted the selling and disposing of community property in the regular course of business. The sale and transfer complained of was in the regular and routine course of business and was duly authorized by its board of directors.

The principal complaint of appellant under her points IS, 16, 17 and 18 concerns the appellee, J. L. Boyd and other witnesses testifying as to the values of the community properties. Some of the properties testified about were divided equally between the parties by the court. Testimony on many items was not objected to. Certainly, as an officer and operator of the various businesses belonging in whole or part to the community the appellee should be thoroughly familiar with their values.

It is not necessary for a witness to be an expert in a technical sense to be qualified to testify as to the value of land. Leyendecker v. Rau, 290 S.W.2d 262 (Fort Worth Civ.App., 1956, no writ hist.), held: “To qualify a witness to so testify, it is generally held to be sufficient for the witness himself to say that he knows the tract of land in question and is acquainted with its value.” See also State v. Sides, 348 S.W.2d 446, 450 (Dallas Civ.App., 1961, Writ ref. n. r. e.), and cases cited therein. Under the foregoing decisions, the testimony of appellee concerning the value of the real properties was admissible.

Mr. Walter Leatherwood, a certified public accountant, testified that as of December 31,1962, he, on behalf of appellee, and Mr. Fred Hall, an accountant on behalf of appellant, cooperated in preparing balance sheets and statements of assets and liabilities of the various businesses in which the community had an interest. The statement was prepared in January or February of 1963 based upon information secured from the books and records of various businesses, comprising the community estate of the parties. Trial balances were taken from the records maintained by the company for these organizations. From these statements the balance sheet for each entity, based on information which they obtained, was prepared. He further testified that he and Mr. Hall were authorized by the appellee to go to the different banks in Fort Worth and secure any information concerning any business in which he was interested. They did go to the different banks where accounts had been carried by appellee or any of his businesses. Mr. Leatherwood was permitted to testify from such balance sheets as to the hook value only of Thompson Auto Loans, Inc., Circle 6 Auto Parts, B & F Motors, B & T Loans, and The Pit. He did not testify as to market value of such businesses.

The statements prepared jointly by Mr. Leatherwood and Mr. Hall were used extensively by the attorneys for appellant and appellee in examining witnesses. Hence, there was no error in permitting appellee •during cross-examination to examine these same balance sheets.

Appellant complains of the court’s failure to grant her motion to transfer the case and her motion for continuance. The record does not reflect that either motion was presented to the court or called to its attention. There is no order disposing of either motion. The appellant fails to show any error under such circumstances. 3 Tex.Jur.2d, Appeal and Error, § 431, p. 684, and § 433, p. 686 of same text; First State Bank & Trust Co. v. First Bank of Truscott, 32 S.W.2d 494, p. 495 (Eastland Civ.App., 1930, Refused).

By a single instrument the appellant requested the submission of twenty-eight special issues and one special charge •over the single signature of her attorney. Some of the issues were submitted by the court and others refused. The appellant contends the court erred in refusing requested issues 3, 4, 6, 7, 8 and 9. The court did not err in refusing issues submitted en masse. Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786 (1941), held: “ * * * it is not error for the trial judge to refuse to submit issues when they are all placed in a single instrument and are intermingled in such a way as to be confusing; and, further, that when issues are submitted in such manner, he is not required to search through the requested issues and submit those which are proper and refuse those which are improper.” The court further held: “If one or more of the special issues requested en masse should not be given, the court is justified in refusing to give any of them.” See also Vaughn v. Watkins, 344 S.W.2d 902, 904 (Eastland Civ.App., 1961, Writ refused n. r. e.).

None of the issues complained of were controlling, ultimate or material issues. There is no evidence to support requested issues 3, 4, 6 and 7. The matters raised in issues 8 and 9 were settled by the summary judgment entered by the trial court.

The appellant levels further complaint that the court abused its discretion in the amount of child support awarded. Because of their ages child support was provided for only one child. The court fixed his support at $35.00 per week. “The duty of a father to support his children, after divorce, corresponds to his financial ability. Each case must stand on its own facts, and trial courts of necessity have wide discretion in regard thereto.” Madden v. Madden, 365 S.W.2d 427, p. 429 (Fort Worth Civ.App., 1963, no writ hist.). We find no abuse of discretion.

The contentions contained in points of error Nos. 22, 23 and 24 are not borne out by the record.

Concerning the balance sheet referred to at page 78 of appellant’s brief the employee of General Rediscount Corporation, Ben B. Smith, testified it was a balance sheet furnished by an accountant of Thompson Auto Loans, Inc., and there were no names on it. Upon objection by appellee’s counsel the trial court refused to permit the instrument to be introduced in evidence. There is no showing that appellant attempted to cross-examine appellee from such statement.

Appellant’s contention that the trial court would not permit her to use Exhibits 9 and 10, financial statements, to impeach appellee’s testimony is not supported by the record. Appellant’s counsel cross-examined appellee as to such statements. The statement of appellant that the trial court refused to allow the appellant to impeach appellee on the basis of testimony given at a temporary hearing while the suit was pending is not supported by the record. The trial court sustained objection to the question because it was too general, and advised counsel, “ * * * I told you if you had a specific instance, that I would admit it * * The court sustained appellee’s objection to testimony concerning the use of a boat given at a prior hearing because it was an attempt to impeach the witness on an immaterial matter. The statement of appellant that the bylaws of the corporation were sought to be introduced for the purpose of impeaching appellee’s testimony finds no support in the record

The trial court erred according to appellant in requiring her to either read certain pleadings to the jury prior to the commencement of testimony or else to waive such pleadings.

In one of her pleadings the appellant in essence stated that she still desires to remain married to and serve her husband faithfully as a lawful wife and to conduct herself toward him with kindness, affection and love. In another she alleged she was entitled to divorce and set forth grounds to support it. It would have been basically unfair in this suit, tried before a jury, to permit the appellant to refrain from reading pleadings upon which she sought relief in the absence of a waiver or dismissal of same. In essence the court held that the appellant should either read her pleadings to the jury or else waive them. We find no error in this ruling.

The appellant contends the court erred in failing to issue a warrant of attachment for the witness A. C. Thompson, ap-pellee’s father. There is no showing that she ever caused a subpoena to be issued or served upon this witness. An attachment would therefore be improper.

The appellant complains that the court, throughout the trial, was continually commenting on the weight of the evidence. We find only two assignments of error in appellant’s motion for new trial which this complaint could conceivably be based upon. These two assignments are too vague and general to identify the remarks for the trial judge to rule upon and thus too general to support a point of error.

The matter of allowance of attorney’s fees and the amount thereof are within the sound discretion of the trial court. Muran v. Muran, 210 S.W.2d 617 (Galveston Civ.App., 1948, no writ hist.); Henderson v. Henderson, 259 S.W.2d 780 (Austin Civ.App., 1953, no writ hist.). The absence of expert evidence is immaterial to the sustaining of an attorney’s fee. Danache v. Danache, 296 S.W.2d 821, p. 824 (Waco Civ.App., 1956, no writ hist.).

The trial court is not bound by the testimony of expert witnesses. It may consider such evidence along with its own experience and observance in such matters. Moore v. Moore, 192 S.W.2d 929, p. 933 (Fort Worth Civ.App., 1946, no writ hist.). Under this record the court did not abuse its discretion in setting the attorney’s fees at $5,000.00.

The judgment of divorce was signed and entered by Judge Floyd Jones, on September 6, 1963. The order terminating alimony was signed and entered on October 7, 1963, by Judge Walter Jordan. The only appeal bond of appellant in the transcript recites that an appeal is being taken from the divorce judgment rendered September 6, 1963. The order of the trial court dated October 7, 1963, is not properly before this court.

In divorce cases, wide discretion is vested in the trial judge, both with respect to the question of divorce, and with respect to the questions relating to the property and financial affairs of the parties.

During the trial of this case, which lasted almost three weeks, the various contentions of the appellant were accorded thoughtful and courteous consideration by the trial judge. The record reflects that throughout the entire trial he exercised the restraint and demonstrated the temperament of an extremely capable trial judge.

The verdict of the jury and the findings of the court will be tested by the evidence tending to support them, disregarding all evidence to the contrary. There is no showing in this record that the able and experienced trial judge abused his judicial discretion in awarding the divorce, and in making a division of the property or otherwise. The suggestion of partiality and prejudice is not supported by the record.

All points of error are overruled and the judgment of the trial court is accordingly affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Pearl Arlene THOMPSON, Appellant, v. Ruth BOTT, Appellee.
    No. 16499.
    Court of Civil Appeals of Texas. Fort Worth.
    June 12, 1964.
    Tod Weaver and James F. Hoge, Jr., Fort Worth, for appellant.
    McDonald, Sanders, Nichols, Wynn & Ginsburg, and Atwood McDonald, Fort Worth, for appellee.
   LANGDON, Justice.

This case is companion to the case of Thompson v. Thompson, 380 S.W.2d 632, in which this court handed down its opinion this same date.

It is an appeal from a summary judgment in favor of Ruth Bott. The subject matter of this suit was finally adjudicated in the companion case above referred to.

On July 12, 1962 suit was instituted by Eulys Leonard Thompson against his wife, Pearl Arlene Thompson, for divorce and a division of community property. Mrs. Thompson filed a counterclaim and cross-action against her husband and Ruth Bott, a feme sole. In her suit Mrs. Thompson alleged that her husband had transferred 178 shares of the stock of Thompson Auto Loans, Inc., to Ruth Bott in violation of her community rights. She requested the court to set aside the transfer of stock to Mrs. Bott and to restrain her from disposing of same. Mrs. Bott filed her motion for summary judgment with accompanying affidavit. There being no disputed fact issues raised the court granted summary judgment which had the effect of narrowing the issues in the primary action of divorce.

Mrs. Thompson’s suit against Mrs. Bott was one for the benefit of the community estate. By its judgment the court found in effect that the stock was not transferred in fraud of Mrs. Thompson’s rights and thus the community estate had no further claim or right in or to the stock. The divorce case could thus proceed to trial with this portion of the community property settled. There was no order of severance. The court therefore retained control over the whole case with the power to make one complete adjudication on all aspects of the case at the proper time.

Thus, the order entered by the trial court was interlocutory in nature. See McDonald, Texas Civil Practice, Vol. 4, § 17.-26.1 (New), No. II (Pocket Parts, pp. 34, 35), and cited authorities. See also § 17.26.-6 and authorities cited of the same text, sub-paragraph (e), p. 70 of Pocket Parts reading in part as follows, “A summary judgment which, without a formal order of severance, fails to dispose of all parties and issues, by the stronger authority, is interlocutory and not appealable. This has been applied where the judgment dealt with separate and severable causes of action; a counterclaim; a third-party claim; some but not all issues of a claim or defense; or a claim as against some but not all defendants. Earlier decisions sustaining some appeals on the theory of an implied severance received the specific disapproval of the Supreme Court: ‘The confusion and uncertainty involved in the application of such a rule outweigh any advantages which might result therefrom.’ ”

Since the cross-action and counterclaim sought no specific relief against Ruth Bott other than a determination as to the ownership of the 178 shares of stock the final judgment in the divorce action disposed of all parties and all issues involved in the entire suit.

Since in our opinion in the absence of an order of severance the summary judgment entered by the court was interlocutory in nature and all parties and issues were disposed of by the judgment in the divorce case the order on the summary judgment is not appealable. The appeal therefrom is accordingly dismissed.


author: WERLEIN, Justice.

text:
    Anthony CALIVA, Jr., et al., Appellants, v. TEXAS CONSTRUCTION MATERIAL CO. et al., Appellees.
    No. 14383.
    Court of Civil Appeals of Texas. Houston.
    June 18, 1964.

      Ellis F. Morris, Houston, for appellants.
    Murfee, Hoover & Stillwell, Houston, Monroe Northrop, Houston, of counsel, for appellee Missouri Pac. R. Co.
    Vinson, Elkins, Weems & Searls, Houston, Sam W. Davis, Jr., Houston, of counsel, for appellee Texas Const. Material Co.
   WERLEIN, Justice.

Appellees sued King Construction Company, a partnership, on a debt. An agreed judgment was entered by the trial court on May 17, 1963 in favor of appellees and against said company. Months after such judgment became final, the court on motion of appellees entered on November 18, 1963 a judgment nunc pro tunc against not only said partnership, composed of Anthony Caliva, Jr. and George T. Caliva, but also against said partners, jointly and severally. Appellants, Anthony Caliva, Jr. and George T. 'Caliva, have perfected their appeal from the order of the court overruling their motion to vacate such nunc pro tunc judgment.

In their motion to enter the nunc pro tunc judgment appellees alleged the agreed settlement and that pursuant thereto the court on May 17, 1963 “entered a judgment directing that defendant, King Construction Company, pay to movants the amounts aforesaid.” They then alleged:

“HI.
“That King Construction Company has refused and still refuses to pay any parts of the amounts aforesaid to your movants thereby making it necessary for your movants to seek enforcement of their judgment by means of Writ of Execution.
“IV.
“That said judgment was drawn and approved by your movants in a spirit of compromise while they were operating under the reasonable expectation that it would be voluntarily paid and that, therefore, it assessed judgment solely against the King Construction Company.
“V.
“That the King Construction Company is and was at all times pertinent to this lawsuit a partnership composed of Anthony Caliva, Jr., and George T. Caliva, doing business as King Construction Company, and they are, therefore, the actual parties Defendant against whom judgment and execution should run.
“Based upon the above and foregoing facts, movants petition the Court to now enter said judgment in the form hereto attached and shown in exhibit A.”

The trial court in its judgment nunc pro tunc, among other things recites:

“WHEREUPON, the Court having heard and considered the pleadings and evidence and the parties having made it known to the Court that they had arrived at an amicable agreement for the settlement of the matters involved herein, subject to the approval of the Court, whereby the Defendant and Counter-Defendant, King Construction Company, a partnership composed of Anthony Caliva, Jr., and George T. Caliva, is to pay in compromise settlement and judgment the sums of Four Thousand and No/100 ($4,000.00) Dollars to Missouri Pacific Railroad Company and Five Thousand Six Hundred and No/100 ($5,600.00) Dollars to Texas Construction Material Company and Court costs incurred, which settlement is and was made and approved by all the parties aforesaid; and the Court, being of the opinion that such agreement and settlement is fair and reasonable with respect to all parties hereto, does hereby approve the same and enter judgment accordingly.
“It is therefore ORDERED, ADJUDGED and DECREED by the Court that the Plaintiff, Texas Construction Material Company and Counter-Plaintiff Missouri Pacific Railroad Company, do have and recover from the Defendants King Construction Company, a partnership composed of Anthony Caliva, Jr., and George T. Caliva, and Anthony Caliva, Jr., and George T. Caliva, jointly and severally, the sums of Five Thousand Six Hundred and No/100 ($5,600.00) Dollars and Four Thousand and No/100 ($4,000.00) Dollars respectively.”

In the original judgment no mention whatever is made of Anthony Caliva, Jr. or George T. Caliva. The judgment was taken solely against King Construction Company. Nor was it mentioned in the judgment that King Construction Company was a partnership. In the petition of appellee, Texas Construction Material Company there is nothing to show that King Construction Company was a partnership, nor is either of appellants mentioned by name or otherwise. Citation on said petition, which was made on one H. C. Murphy, Agent, does not reflect that King Construction Company was a partnership. No citation was had upon either of appellants.

It is true that in the original answer and cross-action of King Construction Company it is alleged that such company is a partnership composed of George T. Caliva and Anthony Caliva, Jr. but said individuals did not join in the answer nor did they seek any relief in the company’s cross-action. The answer is that of King Construction Company, which alone prays for relief.

In King Construction Company’s motion to extend time in which to answer the request for admissions filed by counter-plaintiff, Missouri Pacific Railroad Company, King Construction Company is described as a partnership composed of said Anthony Caliva, Jr. and George T. Caliva but only King Construction Company prays for the extension of time in which to answer the request for admissions.

In the first original counter-claim of ap-pellee, Missouri Pacific Railroad Company, it is shown that King Construction Company is a partnership composed of George T. Caliva and Anthony Caliva, Jr. Said ap-pellee, however, prays for citation to be served only on King Construction Company and for judgment only against such company. Service of citation was made only on such company by delivering the citation to George T. Caliva, as an agent of said company, but was not made on George T. Caliva as an individual or partner. The mention of the names of the Calivas in the instances above referred to is merely descriptive of the partnership that was sued. Pope v. State, Tex.Civ.App., 86 S.W.2d 475.

It is thus seen that neither of the Calivas was ever sued or served with citation in the suit, and that neither of them made an appearance therein, and that the original judgment was entered against only King Construction Company. There is no recitation in appellees’ motion to enter judgment nunc pro tunc to the effect that any other judgment than that entered against said company was ever rendered or intended to be rendered. There is nothing in the judgment nunc pro tunc to show that the original judgment was entered by mistake or that the original judgment was not the judgment actually rendered by the court. There is nothing in the record to indicate that the nunc pro tunc judgment is the judgment that was actually rendered by the court on May 17, 1963. Even in their motion to enter judgment nunc pro tunc ap-pellees judicially admit that pursuant to a settlement agreement the court entered judgment against the defendant Construction Company, and that said judgment was drawn and approved'by appellees and that in expectation that it would he paid, “it assessed judgment solely against King Construction Company.”

It is appellees’ contention that the nunc pro tunc judgment was entered pursuant to Rule 317, Texas Rules of Civil Procedure, to correctly show the judgment that was actually rendered by the court. The record does not support such contention. It is clear that the original judgment entered by the court against only King Construction Company reflects accurately the judgment that was actually rendered. Appellees have wholly failed to show that such judgment was entered through error or mistake.

The law in this State is well settled that a clerical error in entering a judgment as distinguished from a judicial error, may be corrected by the court after the judgment has become final. A court has the inherent power to correct a judgment by entry of a judgment nunc pro tunc so as to properly recite the effect of the court’s judgment as rendered. Coleman v. Zapp, 1912, 105 Tex. 491, 151 S.W. 1040; Knox v. Long, 1953, 152 Tex. 291, 257 S.W.2d 289; Williams v. Pitts, 1952, 151 Tex. 408, 251 S.W.2d 148; Railroad Commission of Texas v. Jackson, Tex.Civ.App., 315 S.W.2d 193, writ ref., n. r. e.; Rules 316 and 317, Texas Rules of Civil Procedure; McDonald, Texas Civil Practice, Vol. 4, §§ 17.07 and 17.08.

In the instant case the court unquestionably rendered the original judgment which the attorneys approved and the judge signed, and which was entered on the minutes of the court. It is nowhere shown in the record that one judgment was rendered and a different purported judgment was entered upon the court minutes. In other words, the attempted correction was of a judicial error, if error there was, instead of a clerical error. The attempt was to have the court correct or change the judgment rendered, rather than the minutes. This cannot be done except by a bill of review. Love v. State Bank & Trust Company of San Antonio, 1936, 126 Tex. 591, 90 S.W.2d 819; Arrington v. McDaniel, 1930, 119 Tex. 148, 25 S.W.2d 295; Bolling v. Rodriguez, Tex.Civ.App., 212 S.W.2d 838, writ ref., n. r. e.; Conley v. Conley, Tex.Civ.App., 229 S.W.2d 926, writ dism.

It was also error for the trial court to enter the nunc pro tunc judgment against Anthony Caliva, Jr. and George T. Caliva since neither was a party to the suit, neither made an appearance in the case, and neither was served with citation upon him as an individual or partner. Article 2223, Vernon’s Annotated Texas Civil Statutes.

In Mallory v. Russell, Tex.Civ.App., 242 S.W. 1112, dism., the court said:

“But we are of the opinion that the judgment rendered was not against the individual partners. In House v. Wells [Tex.Civ.App.], 112 S.W. 114, writ refused, Chief Justice James, speaking for the court of Civil Appeals of the Fourth District, said:
' “‘The adjudication against the defendants by the firm name disposed of both partners and their liability as far as the partnership assets extended. The failure to adjudicate against them as individuals was in effect a denial of any such relief.’ ”

In Mims Bros. v. N. A. James, Tex.Civ.App., 174 S.W.2d 276, writ ref., the Court held:

“A partnership may sue or be sued in its partnership name ‘for the purpose of enforcing for or against it a substantive right.’ Rule 28, Texas Rules of Civil Procedure. The effect of this rule was, we think, to treat the partnership as such a legal entity, at least to the extent of obtaining and enforcing a judgment by or against it. Independently of the rule a judgment against a partnership is not enforcible against a member thereof who has not been sued and served and a personal judgment rendered against him. His interest is affected by such judgment only to the extent of his interest in the partnership assets; * *

See also Johnson v. Pioneer Mortgage Co., Tex.Civ.App., 264 S.W.2d 761, dism.

The nunc pro tunc judgment is vacated and held for nought.

Reversed and rendered.


author: BARROW, Justice.

text:
    CITY OF CORPUS CHRISTI, Appellant, v. Frank T. DROUGHT, Appellee.
    No. 14257.
    Court of Civil Appeals of Texas. San Antonio.
    May 27, 1964.
    Rehearing Denied July 8, 1964.

      I. M. Singer, City Atty., James P. Ryan, Asst. City Atty., Corpus Christi, for appellant.
    Keys, Russell, Keys & Watson, Corpus Christi, Thomas Drought, San Antonio, for appellee.
   BARROW, Justice.

This suit was brought by appellee, Frank T. Drought, to recover for engineering .services rendered appellant in connection with an application made by City of Corpus Christi to the Civil Aeronautics Administration (hereinafter called C.A.A.), for a grant of money for construction of a new municipal airport, and in connection with the City bond election involving the same project. Appellee did not have a valid contract under the charter of the City, and therefore sued in quantum meruit. The trial court rendered judgment favorable to appellee on the jury verdict for recovery of the sum of $11,000.00, together with interest from January 1, 19S7, and the City has perfected this appeal.

Both parties agree that the rule applicable to this case was stated in the very similar case of City of Houston v. Finn, 139 Tex. 111, 161 S.W.2d 776, as follows: “It is the settled law in this State, as established by the decisions of this Court, that where a municipality knowingly receives property or services on an agreement which it had power to enter into as a contract, but which was not legally entered into so as to make it binding as a contract, it will be compelled to pay the reasonable value of the property or services so received, as on an implied contract.” It was further said: “The contract that is enforced is one that the law implies, because justice demands that a municipality shall not be permitted to receive and retain the benefits of an agreement without paying the reasonable value of such benefits.” See also, Sluder v. City of San Antonio, Tex.Com.App., 2 S.W.2d 841; City of Houston v. Howe & Wise, Tex.Civ.App., 323 S.W.2d 134.

In 1956 appellee was a licensed professional engineer with considerable experience in the engineering of airport projects. On June 25, 1956, he went from his home in San Antonio to Corpus Christi at the request of appellant’s Mayor, and discussed the construction of a proposed new airport with the Mayor and two councilmen. After this discussion, appellee agreed to perform the. engineering services necessary to secure financial aid from the C.A.A. and for submission of a proposed bond issue. This work was to performed with as much secrecy as possible to avoid speculators buying up the land needed by the City. After several conferences, both in Corpus Christi and with C.A.A. officials in Fort Worth, and after preparation of many preliminary sketches and plans, on August 24, 1956, appellee delivered a satisfactory master plan to the City for the proposed new airport. On August 27, 1956, appellee filed the formal request for aid with the C.A.A. in Fort Worth. On September 1, 1956, the City called a bond election, and on October 6 the issuance of the bonds was approved. Appellee was not employed to perform the engineering services for actual construction of the airport.

City concedes that appellee performed the preliminary phase of the engineering services, and that City derived some benefit from same. It asserts, however, that the verdict of the jury is excessive insofar as the benefit received by the City is concerned.

City asserts by its first five points that the trial court erred in admitting numerous exhibits in evidence which showed services performed by appellee that were of no benefit to City. Exhibit 3 was a wind rose, and Exhibit 4 was a contour map, both of which were furnished to appellee by the Mayor. Their origin and use by appellee in preparation of proper layout of the airport, were clearly explained to the jury and there was no error in the admission of these exhibits. Exhibits 5-25, 30 and 31, were drawings and plans of the airport layout which were prepared by appellee. Appellee testified that Exhibits 5-25 were preliminary drawings and proposed solutions, which were made to determine the most efficient and economical layout for the airport, which was identified as the master plan (Ex. 29). Exhibit 30 was a reproduction of the master plan with future construction distinguished from that proposed to be accomplished immediately. Exhibit 31 was a reproduction of the master plan, with a complete lighting plan incorporated therein.

City’s principal complaint under these points is that a master plan was unnecessary for the preliminary phase of the engineering work and therefore it received no benefit from same. The City urges that a master plan was not required by the C.A.A. in connection with the request for aid which appellee prepared and filed for the City. The form for the request for federal aid required a description of the work to be accomplished, as well as the total estimated cost of each increment of work. The instructions also required: “Prepare a sketch or sketches of the airport layout and indicate thereon, by appropriate legend, the location of each increment of work proposed.” The Assistant District Airport Engineer of C.A.A. testified that a master plan was not required, although a few applications contained such. Appellee’s testimony, however, would clearly support a finding that the submission of a master plan is the better practice where funds are sought for immediate use by the municipality.

Appellee’s work was also used by the City in connection with advertising for successful passage of the bond issue. There was evidence that a master plan would be necessary in order to obtain accurate cost estimates upon which to base a bond issue. The similarity between some of the exhibits was demonstrated to the jury. The exhibits complained of by the City were prepared by appellee, and the jury was given all the evidence as to how they were prepared and their value to the City. Special Issue No. 1 required the jury to find the value of the services rendered to the benefit of the City. The trial court did not err in admitting these exhibits which demonstrated some of the services performed by appellee. The benefit of same to the City was determined by the jury.

City asserts by three points that the value of the work required by the C.A.A. did not exceed $3,500, and that the verdict of the jury of $11,000 is so against the great weight and preponderance of the evidence as to require a remittitur or a new trial.

It is our opinion, after a review of the 632 pages in the statement of facts, that these points are without merit. Three expert witnesses testified as to the reasonable value of appellee’s services. Appellee testified that they were of the value of $17,000. His valuation was based upon the fee schedule of the Texas Society of Professional Engineers which authorized a minimum fee of $5,721 to $17,163. This schedule provided for a minimum fee for the preliminary phase of a job with the total cost to be in excess of one million dollars, of from five to fifteen per cent of the engineer’s total fee, which is five percent of the cost of the job. James S. Naismith, a licensed professional engineer, testified that the services performed by appellee were of the reasonable value of from $9,000 to $12,000. He further testified that it was important in the preliminary phase to have an accurate cost estimate. Jack Graham, the Director of Public Works for the City at the time of trial, testified that $3,000 to $3,500 would be the reasonable value of the preliminary engineering services necessary to secure the C.A.A. approval of request for aid. He did not testify as to the value of the master plan in connection with the bond issue.

One of the City’s defenses was that ap-pellee had agreed that he would not charge more than $3,000, and two former councilmen testified to this effect. Appellee testified, however, that he agreed to accept this amount only in the event that the bond issue failed. His testimony was corroborated by a memorandum to the Mayor made shortly after appellee commenced the work. It is seen that this defense was affirmatively submitted to the jury and was rejected. We cannot say from an examination of the entire statement of facts, that the verdict of the jury is so excessive as to evidence sympathy, prejudice or bias on its part.

The judgment was rendered on April 8, 1963, and City complains that the trial court awarded interest on the sum of $11,000 from January 1, 1957, at the rate of 6% until paid. In Tortuguero Logging Operation, Limited v. Houston, Tex.Civ.App., 349 S.W.2d 315, this Court expressly approved the rule which permits recovery of pre-judgment interest upon unliquidated damages in an action for quantum meruit. This rule was cited with approval in Orkin Exterminating Co. v. Gulf Coast Rice Mills, Tex.Civ.App., 362 S.W.2d 159.

The judgment is affirmed.

      . VERDICT OF THE JURY:
      Special Issue No. 1: The sum of $11,-000 would reasonably and fairly compensate plaintiff for the value of his services rendered to the benefit of the defendant in 1956.
      Special Issue No. 2: Plaintiff did not represent to the defendant that he would perform certain preliminary engineering services in connection with the proposed new Municipal Airport for an amount not to exceed $3,000. , ,
      Special Issues Nos. 3 and 4 were submitted conditionally and were not answered.
      Special Issue No. 5: Plaintiff did not waive any claim for compensation for his services in excess of the sum of $3,-000.


author: CHAPMAN, Justice.

text:
    SOUTHWESTERN PUBLIC SERVICE COMPANY, Appellant, v. Vernon L. MORRIS et al., Appellees.
    No. 7353.
    Court of Civil Appeals of Texas. Amarillo.
    May 4, 1964.
    Rehearing Denied June 8, 1964.

      Stone & Stone, Amarillo, Lovell & Lyle, Dumas, for appellant.
    McCown & Cobb, Dumas, for appellees.
   CHAPMAN, Justice.

This is an appeal by Southwestern Public Service Company, a private electric power company, from a judgment based upon a jury verdict for Vernon L. Morris and wife, Lois Virginia Morris and Amicable Life Insurance Company for damages in a condemnation suit filed by the power company to condemn a 30-foot wide easement for an electric transmission line across the Morris property.

It is agreed by all parties that the first three points in the power company’s appeal in this case are the same points of alleged error urged by the same appellant in Southwestern Public Service Company v. William Clay Spurlock and Harvey Spurlock, No. 7340, and Southwestern Public Service Company v. Joyce Gilbert Spurlock and husband, Clay Spurlock, and Clay Spurlock, Administrator With Will Annexed oi the Estate of Cline Gilbert, No. 7341, announced by our court on March 30, 1964, and which involves the same witness and the same type testimony. The case is reported in Tex.Civ.App., 378 S.W.2d 134, and we refer to that case for a proper disposition of the first three points in this case.

The fourth point urged is that error was committed by the court in refusing con-demnor’s request that the jury panel be drawn before the selection of the jury.

It is difficult for us to understand why a trial court would refuse such request. Rule 224 Vernon’s Ann.Tex.Rules specifically provides that the clerk in a county such as the one in which this case was tried shall draw the names in the manner here requested. It was clearly error to refuse the request but under the record before us it is not such error as requires a reversal.

Long before the adoption of Texas Rules of Civil Procedure, effective September 1, 1941, [and specifically Rules 434 and 503], it was held that where the court failed to comply with the statutes that preceded Rule 224 the record should show that some injury may have been sustained by the party appealing in order to justify reversal. Galveston, H. & S. A. Ry. Co. v. Wessendorf, Tex.Civ.App., 39 S.W. 132.

Rule 434 provides in part as follows:

“ * * * no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall he of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court.”

The court in the Wessendorf case just cited said:

“It was the duty of the court to have required a strict compliance with the statute, which requires that the names of the jury be written on separate slips of paper, and placed in a box, and mixed well, and then drawn from the box, and written down, as drawn, on the lists given to the parties. Rev. St. ..1895, arts. 3217, 3218, 3224. It does not follow, however, that, because the statutory privilege demanded by appellant was refused, a reversal on that ground should be the inevitable result, but the record should show that some injury may have been sustained by appellant by reason of the action of the court.”

In an early case by the Supreme Court of Texas, the action of the trial court was condemned because of refusal to have the jury chosen in strict compliance with the statute, but it was not reversed for that reason, the court specifically stating it was reversing the case because of error in the charge.

We have carefully checked the record here and find no showing that appellant used all its peremptory challenges. In the absence of such showing we do not believe the record could be said to show injury to appellant in the refusal of the court to require compliance with Rule 224. Our Supreme Court has held that even though the trial court violates a rule of civil procedure in the trial, reversal is not shown in the absence of a showing that injury resulted. Ross v. Texas Employers’ Ins. Ass’n, 153 Tex. 276, 267 S.W.2d 541.

In Houston & T. C. R. Co. v. Terrell, 69 Tex. 650, 7 S.W. 670 a brother-in-law of the plaintiff was challenged for cause and the trial court refused to disqualify him. On appeal the Supreme Court said: “It does not appear by the bill of exceptions that defendant exhausted its challenges, however, and the action of the court, if erroneous, is not a ground for the reversal of the judgment.” Accordingly, the point is overruled.

In its last point appellant asserts error of the trial court in refusing to permit it to ask-the jury panel: “Now bearing these things in mind which I have just related, do any of you have any preconceived notion as to the extent of the damages that Vernon Morris may have suffered as a result of this easement ? ”

The bill of exception brought forward shows that opposing counsel had asked the jury panel if they had any opinion and “ * * * they said they had no opinion.”

Additionally, the record shows the question was propounded to Mr. Bell and applied to him and the other jurors who served on another condemnation case by the same appellant. Again, there is no showing in the record that all the peremptory challenges were used or that any of the men who served on the other jury served in this case. The record only shows that A. E. Pronger and five other jurors served, naming none of the others. There is also no showing in the record that because of the court’s ruling appellant was forced to take any obnoxious juror. The testimony is sufficient to support the judgment for the amount of damages awarded. Under the test of Rule 434 V.A.T.R. above quoted as applied to the record before us, we are of the opinion that the error, if any, complained about in this point was not reasonably calculated to cause, nor did it probably cause the rendition of an improper judgment

Accordingly, the judgment of the trial court is in all things affirmed.

      . Gulf, C. & S. F. Ry. Co. v. Keith, 74 Tex. 287, 11 S.W. 1117.


author: COLEMAN, Justice.

text:
    STANDARD MOTOR COMPANY, Ltd., Appellant, v. Charles BLOOD, Appellee.
    No. 14301.
    Court of Civil Appeals of Texas. Houston.
    June 11, 1964.
    Rehearing Denied July 9, 1964.

      Fulbright, Crooker, Freeman, Bates & Jaworski, S. G. Kolius, Thomas A. Brown, Jr., Houston, for appellant.
    Robert V. Light, Little Rock, Ark., W. W. Watkins, Curtiss Brown, W. James Kronzer, Houston, Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, Smith, Williams, Friday & Bowen, Little Rock, Ark., of counsel, for appellee.
   COLEMAN, Justice.

This is a suit seeking damages for personal injuries. Appellee was injured while riding as a passenger in a new automobile purchased by the driver from a dealer in the State of Arkansas. Appellant, the manufacturer of Triumph automobiles, is domiciled in England. Appellee’s contention that a defect in the car’s braking system was a proximate cause of the accident was supported by the verdict of the jury and a judgment was rendered in his favor in the sum of $275,000.00.

Appellant tendered into evidence the opinion evidence of four Arkansas peace officers that just prior to the accident the vehicle in which appellee was riding was being operated at a speed of 85 miles per hour. On objection the trial court excluded this testimony. Three of these officers- arrived at the scene within a few minutes after the accident. The accident happened while the car was being driven around a 90° curve on an unbanked two-lane concrete highway. Prior to the accident there had been a heavy rain, and, while the concrete was dry, the shoulders of the highway were muddy. Patrolman Beach testified that he found marks made by the car and followed them to the car. Briefly summarized, it is his testimony that just as the car went into the curve its right-hand wheels went off on the shoulder and left a rut for 39 feet with some indication of braking action by the left wheels remaining on the pavement. The car then got back on the pavement and heavy skid marks from all wheels twelve feet in length could be followed to a point where the car again went off the road and then skidded sideways in the mud for 84 feet where it apparently rolled over sideways and landed on its top. He testified that except for the damage to the top there was little apparent damage to the car.

Officer Beach testified that he had ten years experience as a police officer and five years as a State trooper and had received training and experience in investigating accidents. He testified that based on the facts he observed, the condition of the road and shoulder, the measurements, the damage to the car, and his training and experience, he had formed an opinion of the speed of the car. He also testified that he knew nothing about coefficients of friction, and couldn’t work out the exact speed like Captain De Long could, but that his estimate was his personal opinion based on experience.

The testimony of the two local officers who assisted in the investigation was not significantly different from that given by Trooper Beach. Captain De Long visited the scene two days later with Trooper Beach and saw the marks left by the car. His testimony is properly preserved by bill of exception and reflects that he secured the officer’s measurements and inspected the car. He testified that he had an opinion as to the speed of the car, but that it was not one he would take into court because there were so many varying factors. He stated that in estimating speed from skid marks all made on one surface he would expect an accuracy of between two to eight miles an hour, but that in this instance an estimate was complicated by the fact that the car was on and off of two different surfaces, three times. He further stated that the tolerance of his calculations was not sufficient for him to swear that his estimate was accurate. He stated, however, that it was his opinion that the car was traveling at a minimum speed of 85 miles an hour at the time it entered the curve.

Captain De Long testified that he had attended numerous traffic schools and had graduated from the Northwestern University Traffic Institute. Other evidence indicate'l that from training and experience this witness was qualified by specialized scientific knowledge and skill to estimate the speed of vehicles if he were in possession of sufficient data and information.

As a general rule the question of whether a witness qualifies as an expert in a particular field is a matter for determination of the trial court in the exercise of judicial discretion and is reviewable only for abuse. Lone Star Gas Company v. Thomas, Tex.Civ.App, 345 S.W.2d 844; Bell v. Bradshaw, Tex.Civ.App, 342 S.W.2d 185.

None of these witnesses, with the possible exception of De Long undertook to show any technical or scientific basis for the estimates of speed they offered. There is no suggestion that the damage suffered by the car, or the skid marks found at the scene, offered any reliable scientific basis for an estimate of speed. Under such circumstances the trial court did not err in rejecting the proferred testimony. Union Bus Lines v. Moulder, Tex.Civ.App, 180 S.W.2d 509; Flores v. Barlow, Tex.Civ.App, 354 S.W.2d 173, error ref, n. r. e.

By its Second Point appellant alleges that the court erred in permitting the jury to view motion pictures of certain tests because the tests were made under circumstances at such variance from those existing at the time of the accident made the basis of this suit as to constitute them irrelevant and of no probative force.

It would unduly lengthen this opinion to attempt a detailed explanation of the front braking system of the vehicle in question. The pictures exhibited an automobile similar to that involved in the accident being operated by the expert witness offered by ap-pellee, and swerving violently to the right upon application of the brakes, the driver not having his hands on the steering wheel.

Generally appellee’s theory of the cause of the accident is that the bridge pipe connecting the inboard brake cylinder to the outboard cylinder on the left front wheel became clogged with pieces of the inner lining of the flexible brake fluid hose from the master cylinder, thereby stopping the flow of brake fluid or pressure from the inner to the outer cylinder on the left front wheel. Appellee contends that this caused the outboard braking pad to exert less pressure on the disc than the inboard pad, thereby causing a loss of braking power on the left front wheel. This loss of braking power then caused the car to pull suddenly to the right as it was braked when going into a sharp curve, causing the car to leave the road and overturn.

It is undisputed that after the accident the outer cylinder on the left front wheel of the damaged car was full of hydraulic fluid, as was the entire hydraulic system. The brake pads were almost new and were positioned in close proximity to the disc.

The test presented by motion picture was made with the outboard cylinder on the left front wheel of the test vehicle open to the air. The thickness of the brake pad was not measured, but there was testimony that on visual inspection it was determined that the pad was sufficiently thick for proper braking action, and that both before and after the test in question the brakes operated efficiently.

It is appellant’s theory, supported by considerable testimony, that if the brake pads are new and positioned close to the disc, and the outboard cylinder is full of fluid, even if the bridge pipe between the outboard and inboard cylinder is completely blocked, the outboard pad will be held stationary by the hydraulic fluid in the outboard cylinder and the inboard pad pressing against the disc will cause it to come in contact with the stationary pad. Then as a result of the operation of natural laws of physics the pads will press on the disc with equal force and effect.

Mr. Parkinson, appellant’s design engineer, testified by deposition (introduced into evidence by appellee) to certain tests he had made, including a test with the outboard cylinder completely exhausted of fluid and with the outboard pad moved to its full extent away from the disc. He testified that under such conditions there would still be some braking action on the outboard side, but less than where the cylinder was full of fluid and the pad near the cylinder. In both instances the vehicle would have a tendency to pull to the right. Where the cylinder was full of fluid and the brake was applied at 70 miles per hour, the effort required to correct the pull to the right was 4 to 6 pound feet; at 60 miles per hour, 3 pound feet; at 40 and 30 miles per hour, 2.5 pound feet. After the fluid had been exhausted from the outer cylinder and the pad moved as far from the disc as possible, the results of the deceleration tests were: at 70 miles per hour, 7 pound feet; at 60 miles per hour, 9 pound feet; and at 40 miles per hour, 5 pound feet. Mr. Parkinson further testified that it required 12 pound feet of effort to make the turns required in parking the car parallel to the road. He also testified that he had no difficulty in keeping the car on a straight course during the maneuvers.

Appellee’s witness Doyle testified to certain tests he made at speeds of 30 and 40 miles per hour and that from 7 to 10 foot pounds of effort would be required to correct the tendency to pull to the right. The testimony of both experts discloses that it was quite difficult to accurately measure the amount of effort required to correct the pull. It also appears that there is little difference in the results obtained whether the fluid was removed from the outboard cylinder or it was full. Doyle made no similar tests with the cylinder full. He testified that he installed the brake found on the wrecked car’s left front wheel on a similar car and on driving it found that it caused that car to pull strongly to the right. There appears to be no dispute in the testimony but that there would be a strong pull to the right if the outboard cylinder of the left front wheel contained no fluid when the brakes were applied. The test pictures demonstrated nothing that the members of the jury did not have before them in the testimony. It seems obvious that the jury would know that if the brakes were applied under such circumstances while the driver’s hands were removed from the steering wheel, the car would make a dangerously abrupt turn to the right.

Appellant’s testimony indicates that the differences in the condition of the brakes on appellee’s test vehicle from the conditions found on the damaged car after the accident would make little difference in the results of the test. The difference in conditions was clearly shown by the evidence.

It is not essential that the conditions of the occurrence and the experiment be identical. Where the dissimilarity between the occurrence conditions and the circumstances of the experiment is minor or is made abundantly clear by explanation, its admissibility rests within the discretion of the trial court. Ft. Worth & Denver Railroad Co. v. Williams, Tex., 375 S.W.2d 279.

In this case the failure to have fluid in the outboard cylinder, under Parkinson’s testimony, would have necessitated the application of about 2.5 pound feet of effort to keep the car on a straight course during the tests, in excess of the amount that would have been required had the cylinder been full of fluid and pressurized. It is clear from his testimony that 2.5 pound feet of effort is very little effort. The other differences in condition are clearly minor. The trial court did not abuse his discretion in permitting the introduction of the test since the differences in condition are minor and easily explained. In any event we do not consider that the introduction of this evidence was calculated to cause, nor that it probably did cause, the rendition of an improper judgment. If the trial court erred in permitting the pictures to be shown to the jury, the error was not one which would require that a new trial be granted.

Point of Error III is multifarious. By examining the statement and argument under the point we have determined that the only matters specifically brought to our attention are: (1) As a matter of law under the undisputed evidence the answers made by the jury to Special Issues 11, 12, and 13 will not support the judgment of the trial court; (2) The jury’s answer to Issue 14 is supported by no evidence or in the alternative insufficient evidence; (3) The answer to Issue 14 is contrary to the great weight and preponderance of the evidence. This analysis is confirmed by the restatement of Point of Error III in appellant’s Postsubmission Brief.

By Special Issue No. 11 the jury found that the component parts of the hose in question were not properly adhered together prior to the assembly of the braking system by Standard Motor Company, Ltd. The jury then found in response to Issues 12 and 13 that the failure was negligence and a proximate cause of the occurrence in question. Appellant’s brief contains no points to the effect that these findings are not properly supported by competent evidence.

In answer to Issues 14 and 15 the jury found that after the front left brake assembly was delivered to Standard Motor Company, Ltd., said Company failed to make such an inspection of the adhering qualities of the component parts of the hose in question as would have been made by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances, which was a proximate cause of the accident. Appellant’s Points have not attacked the answer to Issue 15 (proximate cause) as being unsupported by evidence or contrary to the weight and preponderance of the evidence.

The component parts of the braking system installed on the front wheels of the automobile involved in this controversy were not manufactured by appellant. The hose in question connected this system with a master cylinder of the hydraulic system. It was manufactured by the Dunlop Company or its affiliate, the John Bull Company, and delivered to the Girling Company for the installation of certain fittings. The finished hose was then delivered to the appellant, and was installed on the automobile by one of its employees.

The only witness who testified concerning inspection procedures was James Parkinson. He testified that before appellant contracts with a manufacturing company for parts, it insures that its inspection and quality control are up to appellant’s requirements and that after the contract is made a roving controller employed by appellant visits them periodically to insure that the quality is maintained. He described the testing procedures employed by the John Bull Company at the various stages in the process of manufacturing the hose and the inspection procedure of the Girling Company at the time the fittings are applied. There is no testimony that the procedures employed by these companies were omitted at the time the hose in question was manufactured. While some of the tests were made on a sampling basis, there is no testimony that the testing procedure was not the usual and customary procedure employed by other concerns manufacturing similar articles.

He testified, however, that from the time the hoses are delivered to appellant’s plant they receive no inspection and that appellant has set up no form of testing to confirm the tests made by the manufacturer and that appellant does not give the hoses any form of inspection whatsoever in its plant. He testified that if on installation it is discovered that the hose does not fit or that there is something apparently wrong with it, it will be “Put to one side and at the end of the day they are returned to the inspection department to see what the fault is, and if necessary to return them to the manufacturer.” He testified to other procedures followed by appellant in installing hydraulic fluid, and testing and using the brakes, which would be calculated to remove foreign substances from the hoses and to reveal defective braking. It is not shown how these tests would be effective or helpful in determining whether the component parts of the hose in question were or were not properly adhered together. There is no evidence that an immediate brake failure would result from the failure of the component parts of the hose to adhere.

The evidence clearly is sufficient to support the answer to Issue 14 since it is admitted that no inspection is required by appellant and none in fact made. The jury could conclude from the evidence that on installation apparently defective hoses are sometimes found, and that a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances would have made an inspection of the hose. While the evidence shows that the manufacturer of the hose had established inspection procedures calculated to meet high standards of quality required by appellant, it appears to be well established that appellant has an independent duty to inspect products manufactured by another which it incorporates into its own product and cannot rely alone on the inspections made by the manufacturer. Sears v. MundBoilers, Inc., Tex.Civ.App., 336 S.W.2d 243, writ ref., n. r. e.; Annotation, 78 A.L.R.2d 473, 478.

“The courts have generally held that the ultimate manufacturer is liable for negligence in manufacture or inspection of parts of an automobile directly related to its safe operation even if the defective part was supplied by others and the injured party was not in privity of contract.” Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627, 78 A.L.R.2d 449

By Special Issues 11, 12, and 13, the jury convicted the manufacturer of the hose of negligence, which was the proximate cause of the occurrence made the basis of this suit. No attack was made on the evidence raising and supporting these findings. It is undisputed that appellant assembled the finished product, and marketed it as its own.

Section 400, Restatement of Torts (1934), p. 1086, provides: “One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.” The 1948 revision to Comment c under this section states that the assembler is under a duty to exercise care “to secure the adoption of a proper formula or plan and the use of safe materials and to inspect the chattel when made. But he does not escape liability by so doing. He is liable if, because of some negligence in its fabrication or through lack of proper inspection during the process of manufacture, the article is in a dangerously defective condition which the * * * (assembler) could not discover after it was delivered to him.”

This statement of the law is supported by respectable authority. Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820, 825; S. Blickman, Inc. v. Chilton, Tex.Civ.App., 114 S.W.2d 646, 649, no writ hist.; Ford Motor Company v. Mathis, 322 F.2d 267, 272 (5th Cir.1963); Green v. Equitable Powder Mfg. Co., 95 F.Supp. 127, 132 (D.Ct.Ark.1951) The judgment is supported on this theory by the jury verdict.

It is unnecessary to consider Point of Error IV dealing with appellee’s theory of recovery dealing with warranty, since we have determined that the judgment can he supported on the negligence theories.

The judgment of the trial court is affirmed.


author: WILLIAMS, Justice.

text:
    Myrtle ROBERTS et al., Appellants, v. Harold C. DRAKE, Individually and as Executor of the Estate of Bird L. Drake, Deceased, and as the Administrator of R. S. Drake, Deceased, the Estate of R. S. Drake, Deceased, and W. C. Drake, and Mary E. Drake, Appellees.
    No. 16340.
    Court of Civil Appeals of Texas. Dallas.
    May 8, 1964.
    Rehearing Denied June 26, 1964.

      Turner, Rodgers, Winn, Scurlock & Terry, John H. McElhaney and Jerry N. Jordan, Dallas, for appellants.
    Bruce Graham, Greenville, for appellees.
   WILLIAMS, Justice.

The primary question presented by this appeal is a proper construction to be placed on the holographic will of Bird L. Drake, deceased. Harold C. Drake, as executor of the estate of Bird L. Drake, deceased, brought this action in the district court seeking judicial construction of the will, but advocating no particular construction. Appellants (being named beneficiaries in the will) requested the trial court to construe the will so as to uphold the specific legacies in the will. Since the will contains certain bequests to charitable beneficiaries the Attorney General of Texas intervened pursuant to Art. 4412a, Vernon’s Ann.Civ. St. Appellees, W. C. Drake and Mary E. Drake, are the surviving parents of R.S. Drake, deceased, the husband of Mary E. Drake, deceased. These appellees requested that the will be construed so as to vest title to all her property absolutely in R. S. Drake so that they, as sole heirs of R. S. Drake, would take such property through R. S. Drake, who died intestate.

Following a non-jury trial the district judge decreed that under the will of Bird L. Drake, deceased, her entire estate vested in R. S. Drake as sole beneficiary; that R. S. Drake died intestate; and that W. C. Drake and wife, Mary E. Drake, being the natural mother and father of R. S. Drake, deceased, are the persons who are entitled to receive the estate of R. S. Drake, deceased, under the provisions of Section 38 of the Texas Probate Code, V.A.T.S. From this judgment appellants bring this appeal.

By their first point appellants contend that the trial court erred in failing to hold that the will passed title to appellant beneficiaries because the will passed a conditional or defeasible fee to the surviving husband with the remainder to the individual and charitable beneficiaries named therein. In the alternative, they contend that the will passed a life estate to the husband with the remainder to the individual and charitable beneficiaries. By their second point appellants contend that the will itself constituted evidence of a contract between the husband and wife, enforceable in equity, to accomplish their testamentary plan despite the fact that the instrument itself cannot, for lack of the statutory witnesses, be admitted to probate as the husband’s will. We have concluded that both of these points are without merit and that the decree of the trial court must be affirmed.

FACTS

The facts are brief and undisputed. R. S. Drake and Bird L. Drake were husband and wife. They had no children. On June 4, 1962 Bird L. Drake wrote a will in her own handwriting obviously intended to be a joint and mutual will of herself and her husband, R. S. Drake. The relevant portions of the will are copied verbatim, as follows:

“We, Seward and Bird L. Drake, being of Sound Mind, do this day, June 4th 1962 make our last will and testament.
“In case of accident or death of either the surving one is sole Beneficiary. If both are deceased due to accident or natural causes, Harold C. Drake, Commerce, Texas, is to be ex-ecutator of this w91 the Estate of Seward and Bird Drake.”

(Next follows thirty-nine handwritten lines containing specific bequests to the appellants and the named charities.)

Bird L. Drake signed this will. R.S. Drake signed the will. No witnesses’ names appear on the will. One week later both spouses were involved in a fatal head-on automobile collision. Bird L. Drake died in the collision on June 11, 1962. R. S. Drake died as a result of the collision on June 17, 1962. The will was duly admitted to probate in the County Court of Hunt County, Texas as the last will of Bird L. Drake. R. S. Drake died intestate and Harold C. Drake is the duly appointed and qualified administrator of the estate of R. S. Drake, deceased.

OPINION

Our footsteps on the pathway leading to the proper construction of this will are guided by legal principles which have been illuminated by lamplighters of the past.

1. The first, and most important, guidepost is the ascertainment of the intent of the testator, or testatrix in this case, and then to enforce such intent if it is not unlawful. 44 Tex.Jur. 680-681, § 134, and cases therein cited.

2. If the intention of the testator be not clearly expressed by the particular language used it may be found by looking to the provisions of the will as a whole and to the circumstances surrounding its execution. Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579, 57 A.L.R.2d 97; Republic National Bank of Dallas v. Fredericks, 155 Tex. 79, 283 S.W.2d 39.

3. A will should be construed, when possible, so as to render the instrument and all of its provisions consistent and harmonious. Accordingly, the court will attempt to reconcile conflicting, inconsistent and repugnant provisions of the will if it is possible to do so. If the provisions are so inconsistent or contradictory that all cannot be given effect, then such of them should be ignored and others given effect as seems most nearly to comport with the intention of the testator as gathered from the entire instrument. Thus principal and subordinate provisions should be construed in their due relation. 44 Tex.Jur. 711-714, §§ 150, 151.

4. Wills are accorded a very liberal construction. Considerable latitude is allowed in respect to the informality with which the testator may have expressed his intention and in this connection liberal allowance is made for mere awkwardness in the use of words in their exact sense and in the structure of sentences, for the purpose of attaining the real intention of the testator. 44 Tex.Jur. 700, § 142; Gilky v. Chambers, 146 Tex. 355, 207 S.W.2d 70.

5. Where a will contains a provision that upon a certain contingency an estate given to one shall pass to another, the law favors the first taker, and the testator’s language shall be construed so as to grant such taker the greatest estate which, by fair construction, it is capable of passing. 44 Tex.Jur. 703, § 145; Hancock v. Butler, 21 Tex. 804; Darragh v. Barmore, Tex.Com.App., 242 S.W. 714.

6. If it does not clearly appear from the language of the will that a less ■estate was intended to be created the devise will be deemed to be a fee simple. Pritchett v. Badgett, Tex.Civ.App., 257 S.W.2d 776, wr. ref. In this connection the rule that every part of a will must be given effect, if possible, is subordinate to the rule that a ■devise shall be deemed a fee simple, unless limited by express words. Winfree v. Winfree, Tex.Civ.App., 139 S.W. 36, wr. ref.

7. It is the duty of a court not only to construe the will as creating a vested estate, if possible, but also to adopt the construction which will permit the earliest vesting of title in the first taker. In the ■event of repugnancy, that construction is favored which admits of immediate vesting ■of the entire estate; and when the will, fairly construed, leaves the question in doubt, the doubt will be resolved in favor of the vesting of the title at the earliest possible moment, so as to avoid a conflict with the rule against perpetuities and to uphold the will. 44 Tex.Jur. 737-738, § 172; Jones’ Unknown Heirs v. Dorchester, Tex. Civ.App., 224 S.W. 596; Feegles v. Slaughter, Tex.Civ.App., 182 S.W. 10, err. ref.; Anderson v. Menefee, Tex.Civ.App., 174 S.W. 904, err. ref.

8. When a person dies, leaving a lawful will, all his estate devised or bequeathed by such will shall vest immediately in the dev-isees or legatees. Section 37, Probate Code of Texas.

9. Every estate in lands which shall be granted, conveyed or devised to one shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law. Art. 1291, V.A.C.S.

Being ever mindful of these definite rules of construction, we now turn to a consideration of the will before us. The immediate approach to this problem is rendered more difficult because it was obviously intended by both Mr. and Mrs. Drake that the will be a joint and mutual will and she, being the scrivener, utilized the plural verbiage. Since the effort to create a valid joint and mutual will obviously failed because of lack of necessary witnesses to Mr. Drake’s signature, and since we are admittedly dealing only with the acknowledged valid will of Mrs. Drake, we must pierce the plural verbiage and view the same in its singular form. Although we are keenly conscious of the mandate of the law which precludes courts from rewriting the will of a testator, we do not feel that we do violence to this rule when we attempt to substitute the singular verbiage for the plural language utilized by Mrs. Drake. When we do so the first sentence in controversy, “In case of accident or death of either the surviving one is sole Beneficiary,” would logically read, “In the event of my death, and my husband is living, then he is to be my sole beneficiary.” The second sentence in controversy, “If both arc deceased due to accident or natural causes, Harold C. Drake, Commerce, Texas is to be executator of my estate,” would logically read, “If I should die, and my husband is not living, Harold C. Drake, Commerce, Texas is to be executor of my estate.”

It is quite obvious that the phrase, “In case of accident,” contained in the first controversial sentence in the will amounts to an unnecessary and meaningless phrase inasmuch as the will would not, as a matter of law, become effective upon a contingency such as accident alone. So we may legitimately ignore the phrase since it has no legal meaning.

Since all parties agree that R. S. Drake was living at the time of Mrs. Drake’s death, the question of testamentary intent as revealed by her will is clearly presented. Appellees contend that since Mr. Drake was the “surviving one” then immediately upon Mrs. Drake’s death all of her property passed to him as “sole beneficiary.” Appellants admit that pursuant to Sec. 37, Probate Code of Texas, Mrs. Drake’s estate did vest immediately upon 'her death but argue that the estate so vested •was less than that of fee simple. We observe no express or specific language in the will indicating that Mr. Drake would take only a life estate in the event he survived his wife. The first sentence is clear and explicit that Mr. Drake, being the survivor, is “sole beneficiary.” We believe that the phrase “sole beneficiary” argues forcefully against the idea of a life estate or defeasible fee to remaindermen in the event the husband survives the wife. It is quite apparent to us that the bequest to the named beneficiaries is conditional, as provided in the ■second sentence of the will, which limits these bequests only in the event that “both . are deceased.” This could only mean that Mrs. Drake did not intend for the named ' beneficiaries, appellants here, to take her property unless her husband had died prior to her death. This contingency is not present in this case. Inasmuch as the con- . dition that R. S. Drake be dead before the alternative bequest became operative, and since Mr. Drake was not dead when his wife died, then it must necessarily follow that the conditional bequest named in the second sentence of the will never became operative.

In our opinion the first sentence of this will is clear and unambiguous. If any doubt or uncertainty exists it is with reference to the second sentence. Appellants’ contention that a life estate or defeasible fee was created by this second sentence, being in itself vague and doubtful, runs counter to the established law of our state.

In Winston v. Griffith, Tex.Civ.App., 108 S.W.2d 745, affirmed 133 Tex. 348, 128 S.W.2d 25, the court said:

“But an express bequest or devise cannot be cut down by a subsequent clause of doubtful meaning and an estate granted in plain and unequivocal language in one clause of a will therefore cannot be lessened or cut down by a subsequent clause, unless the language therein is as clear, plain and unequivocal as that in the first grant.”

In Gilliam v. Mahon, Tex.Com.App., 231 S.W. 712, the court said:

“Where the first clause of a will in clear, unambiguous language gives and bequeaths to one devisee all the property real and personal of which the testator dies possessed, such estate so given cannot be disturbed, cut down, or diminished by a subsequent clause, which is uncertain and ambiguous in its meaning.”

In Phillips v. Currie, Tex.Civ.App., 246 S.W.2d 257, the court said: Where a paragraph of the will expresses a gift in absolute terms, the takers are held to have been vested with the fee unless another paragraph clearly discloses testator’s intention to limit the estate thus devised, and that in construing a will the largest estate the language is capable of conveying must be accepted over that of a lesser estate, unless an intention to the contrary is clearly shown.

These decisions merely illuminate the provisions of Art. 1291, V.A.C.S. which expressly states that the estate devised shall be a fee simple estate unless limited by express words. In this connection see Cartwright v. Trueblood, 90 Tex. 535, 39 S.W. 930; Killough v. Shafer, Tex.Civ.App., 358 S.W.2d 748; Weidner v. Crowther, 157 Tex. 240, 301 S.W.2d 621; Rae v. Baker, Tex.Civ.App., 38 S.W.2d 366; Pythian Home for Orphans at Weatherford, Texas v. Barrow, Tex.Civ.App., 346 S.W.2d 426; Wenzel v. Menchaca, Tex.Civ.App., 354 S.W.2d 635.

In our opinion the clear and express devise of fee title to Mrs. Drake’s property which passed to her surviving husband upon her death was not limited by clear and express words sufficient to create a life estate of defeasible title as contended by appellants. Accordingly, in view of these authorities, and clear rules of construction, we hold that the trial judge correctly construed the will of Bird L. Drake, deceased.

Appellants’ second point, wherein they contend that the will of Bird L. Drake, deceased, constituted evidence of a contract between the spouses to accomplish their testamentary plan, and therefore such will should be admitted to probate as the husband’s will, runs directly counter to the decision of our Supreme Court in Graser v. Graser, 147 Tex. 404, 215 S.W.2d 867. In that case, as here, a will was signed by the husband and wife, but not properly witnessed for the wife. The identical contention was there urged to the effect that the incomplete instrument amounted to a contract or agreement to make a will and should be enforced in equity. The Supreme Court denied this contention and in doing so relied upon the case of Ireland v. Jacobs, 114 Colo. 168, 163 P.2d 203, 161 A.L.R. 1413, by the Supreme Court of Colorado, involving facts substantially the same as those in this case. The Supreme Court of Colorado relied essentially upon failure of consideration in denying the theory of contract. To the same effect see Puckett v. Hatcher, 307 Ky. 160, 209 S.W.2d 742, and Spinks v. Rice, 187 Va. 730, 47 S.E.2d 424.

In Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.2d 147, our Supreme Court held that the cases are in agreement in holding that the mere execution of a will or the insertion in a will of a particular devise or bequest, is not sufficient proof of the existence of a contract to make a will or a devise. See also Pullen v. Russ, Tex.Civ.App., 226 S.W.2d 876, and Taylor v. Taylor, Tex.Civ.App., 281 S.W.2d 232, which denied the contractual theory urged by appellants here.

Finding no error requiring reversal of the trial court’s judgment, we affirm the same.

Affirmed.

      . The Attorney General is not a party to this appeal since by settlement, not otherwise relevant, the appellees have agreed to honor the charitable bequests.

      . R. S. Drake and Seward Drake are one and the same person.


text:
    AMERICAN CANAL COMPANY OF TEXAS et al., Appellants, v. The DOW CHEMICAL COMPANY, Appellee.
    No. 14349.
    Court of Civil Appeals of Texas. Houston.
    May 7, 1964.
    First Rehearing June 18, 1964.
    Second Rehearing Denied July 9, 1964.

      Fulbright, Crooker, Freeman, Bates & Jaworslci, Austin C. Wilson, Richard L. Mc-Graw, Jay W. Elston, W. James Kronzer, Houston, Brown, Sparks & Erwin, W-. S. Heatly, Paducah, Eastham, Meyer & Moore, A. J. Eastham, Houston, of counsel, for appellant American Canal Co.
    Waggoner Carr, Atty. Gen., F. R. Booth, Asst. Atty. Gen., Burrel Rowe, Chief Legal Examiner, Texas Water Commission, Austin, of counsel, for appellant Texas Water Commission.
    R. J. Fields, Freeport, Clark, Thomas, Harris, Denius & Winters, Martin Harris, James H. Keahey, Austin, for appellee The Dow Chemical Co.
    W. David Evans, Angleton, John Gold-sum, Austin, for Brazoria County.
    J. E. Junker, Richmond, for Fort Bend County.
    Robert C. Koonce, Edward R. Goff, An-gleton, for Cities of Angleton and Clute.
    Frank W. Stevens, Angleton, for City of Lake Jackson.
    Hall W. Griggs, West Columbia, for City of West Columbia.
    C. Wayne Holder, Freeport, for Cities of Freeport, Sweeny & Brazoria.
    L. A. Van Slyke, Richmond, for City of Richmond.
    O. H. Middlebrooks, Rosenberg, for the City of Rosenberg.
    Price Daniel, Austin, of counsel, for above appcllee-intcrvenors.

      W. David Evans, Angleton, for appellee-intervenor owners, John Alexander, Executor of the Estate of C. H. Alexander, deceased, Mrs. C. H. Alexander, Myron D. Williams and J. G. Jacquemine.
   Motions for Rehearing

COLEMAN, Justice.

This is an appeal from a judgment denying the pleas of privilege of the American Canal Company of Texas and the Texas Water Commission, to be sued in the District Court of Travis County, Texas.

The American Canal Company of Texas is the owner of Permit No. 1040 authorizing it to appropriate 99,932 acre feet of Brazos River water per annum for irrigation, manufacturing and municipal purposes. This permit, issued in 1927, authorized the diversion of the water for irrigation uses. In 1936 the permit was amended so as to authorize the use of the water or any portion thereof for manufacturing or commercial use. In 1941 and 1942 further amendments were secured authorizing the irrigation of 48,179 acres of land in Galveston, Brazoria and Harris Counties, Texas, in place of the same number of acres in Fort Bend County described in the original permit. These lands were outside the watershed of the Brazos River. In 1947 an amendment was secured authorizing the use of "so much of the waters granted by Permit 1040 * * * as is not required or used for irrigation * * * for manufacturing and municipal purposes in Texas City, Texas, Galveston, Texas, and the industrial area in the vicinity of Texas City, Texas.” In 1949 the permit was amended to permit the Company to discontinue service to certain lands in its irrigation area and to institute service to certain new lands.

On November 7, 1962, American Canal submitted an application to further amend Permit 1040, as amended, as well as an application to divert certain quantities of water from Clear Creek for use in the Clear Creek-Clear Lake area. After a joint hearing on the two applications, a permit was granted authorizing the appropriation of water from Clear Creek, and Permit No. 1040, as amended, was further amended to authorize American Canal Company of Texas to use “for industrial purposes not to exceed thirty thousand (30,000) acre feet per annum of the ninety-nine thousand, nine hundred thirty-two (99,932) acre feet of water heretofore authorized for ‘irrigation, manufacturing and municipal’ purposes under Permit No. 1040 as amended.”

The Company was authorized to introduce the Brazos River water into Clear Creek at a specified point in Fort Bend County and to transport the water by use of the bed and banks of Clear Creek to a point in Harris County, Texas, where it could be removed from Clear Creek and used within the Clear Creek-Clear Lake drainage area in northern Brazoria and Galveston Counties and southern Harris County for industrial purposes.

The Dow Chemical Company filed an appeal from the action of the Texas Water Commission in granting the amendment and the new permit in the District Court of Fort Bend County naming the Texas Water Commission and the American Canal Company defendants. Both filed pleas of privilege alleging that exclusive venue of appeals from orders of the Texas Water Commission is vested in the District Courts, of Travis County, Texas by the provisions, of Section 12, Art. 7477, Vernon’s Annotated Civil Statutes. In its controverting plea plaintiff alleged that the case involved, the trans-diversion of water from the-Brazos River watershed into another watershed or watersheds and that the initial point of diversion from the Brazos River is in Fort Bend County and that jurisdiction and' venue of the case is fixed in that county by Article 7590, Vernon’s Annotated Texas. Civil Statutes. The cities Freeport,, Sweeny, Brazoria, Rosenberg, Richmond,. Lake Jackson, Clute, Angleton, West Columbia, the counties Fort Bend and Bra-zoria, and certain individuals intervened in< the cause after the pieas of privilege were filed.

Article 7590 provides:

“Before any person, association of persons, corporation, water improvement or irrigation district shall take any water from any natural stream, water course or watershed in this State into any other watershed, such person, association of persons, corporation, water improvement or irrigation district shall make application to the Board of Water Engineers for a permit so to take or divert such waters, and no such permit shall be issued by the Board until after full hearing before said Board as to the rights to be affected thereby, and such hearing shall be held and notice thereof given at such time and such place, in such mode and manner as the Board may prescribe; and from any decision of the Board an appeal may be taken to the district court of the county in which such diversion is proposed to be made, in the mode and manner prescribed in this chapter for other appeals from the decision of the Board.”

Subdivision 12 of Article 7477 reads :

“Any person affected by any ruling, ■order, decision, or other act of the Board, may, within one hundred and twenty (120) days after the date on which such act is performed, or, in case of a ruling, order, or decision, within one hundred and twenty (120) days after the effective date thereof, file a petition in an action to review, set aside, modify, or suspend such ruling, order, decision, or other act. Or any party affected by the failure of the Board to act in a reasonable time upon an application to appropriate water, or to perform with reasonable promptness any other duty imposed by this Chapter, may file a petition in an action to compel the Board to show cause why it should not be directed by the court to take immediate action. The venue in any or all such actions is hereby fixed exclusively in the District Court of Travis County, Texas.”

For many years prior to the enactment of Subdivision 12, Article 7477, there was no general statutory right of appeal from orders and decisions of the Board of Water Engineers.

In McDonald, Texas Civil Practice, Vol. I, p. 320, this statement of the law, applicable to both Article 7590 and Sec. 12 of Art. 7477, appears :

“Statutes permitting suits against the State, or authorizing special proceedings for the settlement of rights which exist wholly by virtue of statute rather than by virtue of the Constitution or the common law, often fix the county wherein suit must be prosecuted, and such provisions are commonly treated as jurisdictional. Conceptually, however, any statute which lodges in the courts of a single county (named specifically or identified by a description applicable only to it) the exclusive power to try a certain type of case is jurisdictional, even though it be placed by the legislature in juxtaposition to true venue provisions or be referred to in its body as a venue statute.”

This statement is supported by the decisions of the Supreme Court of Texas in Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364; Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, and Texas Employers Ins. Ass’n v. Evans, 117 Tex. 113, 298 S.W. 516.

There can be little question but that prior to the enactment of Sec. 12, Art. 7477, the provision of Art. 7590 granting the right of appeal was exclusive and jurisdictional. After the enactment of Subd. 12, Art. 7477, the jurisdiction granted to the district c.ourt of the county, in which was located the point of diversion of water from one watershed to another, was no longer exclusive. However, jurisdiction remained in the district court of such county.

The repeal of laws by implication is not favored. Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167. A general law will not ordinarily be held to have repealed, by implication, a particular or special law, though both relate to the same subject matter and the particular, or special, law is usually construed as constituting an exception to the general law. Cole v. State, 106 Tex. 472, 170 S.W. 1036; Flowers v. Pecos River Railroad Co., 138 Tex. 18, 156 S.W.2d 260; Jefferson County v. Board of County & District Road Indebtedness, 143 Tex. 99, 182 S.W.2d 908; State v. The Praetorians, 143 Tex. 565, 186 S.W.2d 973; 53 Tex.Jur.2d 160. The provision of Art. 7590 concerning appeals is not worded in such a manner as to grant exclusive venue. It provides that an appeal may be taken. Until the enactment of Art. 7477, Sec. 12, there was no other court to which an appeal could be taken so the venue granted was necessarily exclusive. This is no longer true. The legislative intent to give exclusive venue to the District Court of Travis County is clearly expressed in Art. 7477. Rules of construction cannot override the clearly expressed terms of a duly enacted law. While it may be that appellee has attempted to bring this action under Art. 7590, nevertheless the facts alleged show that Art. 7477 is applicable also. While the District Court of Fort Bend County has general jurisdiction of a trans-diversion case, on a showing of the necessary jurisdictional facts, still venue of the case is controlled by the mandatory venue provision of Art. 7477, Subd. 12. Langdeau v. Burke Investment Company, 163 Tex. 526, 358 S.W.2d 553; Mitchell v. Porter, Tex.Civ.App., 194 S.W. 981; Union Terminal Company v. McDonald, Tex.Civ.App., 324 S.W.2d 561.

The motions for rehearing are granted in part and our original opinion is ordered withdrawn. The judgment of the trial court is reversed and the trial court is directed to enter judgment sustaining appellants’ pleas of privilege and transferring the case to the District Court of Travis County, Texas.

Former judgment vacated, set aside and annulled; original opinion withdrawn; and judgment rendered and opinion on rehearing filed June 18, 1964.

      . This citation, and all other statutes cited herein, refer to Vernon’s Annotated Texas Oivil Statutes.