author: ARCHER, Chief Justice.

text:
    GARWOOD IRRIGATION COMPANY et al., Appellants, v. LOWER COLORADO RIVER AUTHORITY, Appellee.
    No. 11261.
    Court of Civil Appeals of Texas. Austin.
    Jan. 27, 1965.
    Rehearing Granted Feb. 17, 1965.
    Second Motion for Rehearing Denied March 10, 1965.

      Vinson, Elkins, Weems & Searls, Victor W. Bouldin, Wm. R. Eckhardt, Houston, Clark, Thomas, Harris, Denius & Winters, Mary Joe Carroll, Austin, for appellants.
    W. Sim Gideon, Mac Umstattd, Charles F. Herring, Fred B. Werkenthin, Austin, for appellee.
   ARCHER, Chief Justice.

This suit, in its original form, was filed by Lower Colorado River Authority, a conservation and reclamation district of the State of Texas (hereinafter called LCRA), against Garwood Irrigation Company, a corporation organized under the irrigation laws of Texas (hereinafter called Gar-wood), to recover $16,906.04 for water allegedly furnished by the plaintiff to defendant during the 1961 irrigation season, together with interest and attorneys’ fees. William K. Lehrer and wife, D. A. Lehrer, were joined as defendants but having assigned all their interest to Garwood the trial court held that plaintiff was not entitled to judgment against them

B. D. Anderson and 44 other farmers intervened and alleged that they own title or right of possession to lands contiguous to, or served by, Garwood’s irrigation system and asserted their statutory and common law rights to be served with irrigation waters to the full extent of the rights which Garwood holds or may acquire to use the public waters of this State.

By pleadings and cross-pleadings, additional issues were raised in regard to the validity of a certain purported contract entered into in 1937 by and between LCRA and three of the five principal irrigation companies using waters from the Colorado River in Colorado, Wharton and Matagorda Counties, and as to the validity of two further purported contracts entered into by and between LCRA and Garwood under date of 1938 which grew out of the purported 1937 contract, and also in regard to the validity and extent of certain water rights claimed by Garwood, and numerous other related issues.

The case was tried to the court without a jury and the court entered judgment on all points for the plaintiff and in the judgment made numerous findings of fact and conclusions of law. The court also granted plaintiff an injunction perpetually enjoining Garwood from diverting water from the Colorado River after the expiration of the purported 1938 contracts (which is December 31, 1964), except for the irrigation of not to exceed 8,858.79 acres of rice per annum.

LCRA pleaded there were two agreements, one dated as of October 2, 1937 (hereinafter referred to as “Main Contract”) the parties to the Main Contract being LCRA, Garwood (then a private partnership), Lakeside Irrigation Company, and Gulf Coast Water Company; and a supplemental contract between LCRA and the Lehrers (assigned to Garwood) dated as of October 13, 1938, but executed by the Lehrers in October 1938 and by LCRA in January 1940 (hereinafter referred to as “Supplemental Contract”). It was alleged that the Supplemental Contract covered a 25 year period (1940-1964) and that Gar-wood had during the period 1939 through 1960 watered acreage for which payment was due LCRA under said contracts and that Garwood had paid LCRA for the water furnished, and that again in 1961 Garwood had watered acreage for which payment was due LCRA under said contracts but had refused to pay for the year 1961 after due demand for payment, hence the lawsuit.

LCRA pleaded that under the Main Contract the parties had agreed the water rights owned by Garwood entitled it to take Colorado River water to irrigate 6,858.79 acres in rice each year without paying LCRA, such being the “Fixed Acreage” for Gar-wood in the Main Contract and the Main Contract provided that if Garwood irrigated more than the Fixed Acreage “it is agreed that such excess acreage is from water supplied by (LCRA) and such fact will be conclusively presumed.”

The Main Contract provided that the purpose of its execution was to “perpetually fix and establish the respective water and riparian rights and rights to impound, take and divert water from the Colorado River of the respective parties.”

Appellant filed a general denial and pleaded (1) the Main Contract was void as against public policy; (2) the Supplemental Contract was void because the Main Contract was void; (3) Garwood, by cross action, pleaded that it was the owner of Certified Filing 398 at the times the Main Contract and Supplemental Contract were executed and that it is now the owner of Certified Filing 602 which it acquired in 1949 after the execution of the Main Contract and Supplemental Contract, and which, Garwood alleged, created certain water rights; and Garwood alleged that although the point of diversion under Certified Filing 602 fixed in 1910 was in Wharton County, Garwood had changed such point of diversion and Garwood alleged a bona fide controversy existed as between Garwood and LCRA as to the water rights of ‘Garwood under Certified Filing 398 and under Certified Filing 602; and Garwood asked for a declaratory judgment, with respect to which Garwood requested the Court to (1) determine Garwood’s water rights under Certified Filing 398 and Certified Filing 602 both with respect to the Main Contract and Supplemental Contract; (2) declare that Garwood under Certified Filing 398 and Certified Filing 602 had unlimited rights to use unlimited amounts of water; (3) declare that LCRA was obligated to release water from storage to meet Garwood’s desires; (4) declare that Garwood did not have to pay LCRA for such water even though Garwood has contracted to do so; and (5) declare and adjudicate the rights of LCRA and Gar wood as to all issues raised by the pleadings.

On trial before the court, jury having been waived, the court found, in substance:

“(1) aside from any questions pertaining to the validity of the Main Contract, the Supplemental Contract was valid and LCRA had delivered water thereunder to Garwood in 1961 and Garwood had taken and used the water and therefore LCRA was entitled to and was awarded judgment against Garwood for water furnished in 1961 in accordance with the Main Contract and Supplemental Contract in the amount of $16,906.04, plus costs, plus attorneys’ fees ;
“(2) the Main Contract was valid and binding;
“(3) the obligations of the Lehrers had been assigned to Garwood and Garwood was bound by the contracts;
“(4) even if the contracts were void (and the Court held they were not) Garwood and the Intervenors were es-topped to question validity of the contracts ;
“(5) as to C.F. 398;
“(a) the total of all rights under C.F. 398 immediately prior to and at time of execution of Main Contract in 1937, consisted of the right to use for rice irrigation purposes not to exceed 20,000 acre feet of water each year from the normal flow of the Colorado River, subject to all prior rights;
“(b) if any rights existed under C. F. 398 other than as set out in (a) immediately above, such rights have been lost by Garwood by (i) abandonment and/or (ii) prescription on part of LCRA;
“(c) all rights under C.F. 398 are covered by the Main Contract and . Supplemental Contract;
“(6) as to C.F. 602 claimed by Gar-wood:
“(a) Garwood failed to meet the burden of proof to show that any rights existed under C.F. 602;
“(b) if any rights existed under C. F. 602 they had been abandoned and lost, and also, if any rights existed these had been lost to LCRA by prescription before the purported acquisition of such rights by Garwood;
“(c) if Garwood acquired any rights under C.F. 602 such rights were later acquired by LCRA by prescription before filing of this suit;
“(d) if any rights existed under C.F. 602 at time of this suit, the total of such consisted of the right to use not to exceed 5,000 acre feet of water each year for rice irrigation, such water to be taken from the normal flow of the Colorado River, and were subject to any and all prior rights;
“(e) that the point of diversion of C. F. 602 was in Wharton County and same could not be moved without an •order of the Texas Water Commission and if so moved, the amount of water which can be taken at the new point of diversion cannot exceed the amount being taken at the old point, which in this case was zero amount;
“(f) no application had been filed with, and no order entered by, Texas Water Commission relative to transferring the point of diversion of C.F. •602;
“(g) that any rights acquired by Garwood under C.F. 602 are covered by the provisions of the Main Contraer and the Supplemental Contract;
“(7) the total rights of each and all defendants and each and all interve-mors, independent of said contracts, with respect to the waters of the Colorado River are set out in (5) and (6) immediately above;
“(8) Garwood’s rights being limited and bound by the Main and Supplemental Contracts, then Garwood shall not use any water out of the Colorado River except as provided in said contracts ;
“(9) except as limited by the Main and Supplemental Contracts (and if either or both are invalid, then except as limited by par. (5) and (6) immediately above) LCRA had the right to impound, conserve, use, discharge and otherwise dispose of all the water of the Colorado River as against the defendants and each of them;
“(10) Garwood is enjoined from using any water from the Colorado River except as permitted by this judgment;”

There appears to be three prime issues as follows:

(1) Is the Main Contract valid and is the Supplemental Contract valid?

(2) Has Garwood used water from the Colorado River for which it owes LCRA?

(3) After the expiration of the term of the Supplemental Contract (December 31, 1964), what rights does Garwood have to take water from the Colorado River with respect to the LCRA?

The court found that the Contracts were valid and that Garwood was liable, and the rights of Garwood to withdraw water from the river as with respect to LCRA were agreed to and determined by the Main Contract, and defined the rights of Garwood in the event the Contracts are void.

The appeal is based on Twenty-seven Points and are to the effect that the court erred in holding that Garwood is restricted after December 31, 1964 to the use of no more water from the river than is necessary to irrigate 8,858.76 acres in any one year; in granting an injunction restraining Gar-wood from supplying water to the lands within its service area in excess of 8,858.79 acres in any one year; in enjoining Gar-wood from irrigating more than 6,858.79 acres of land per annum from 1964 under Certified Filing 398; in sustaining the validity of the 1937 Contract; in holding that except as otherwise provided by the 1937 and 1938 Contracts, LCRA has the right to impound and dispose of waters in the Colorado River; in holding that under Certified Filing 398 Garwood’s rights consisted of the right to use not to exceed 20,000 acre feet of water per annum; in holding that Garwood is restricted to the use of water to the irrigation of rice to the exclusion of other uses; in failing to hold the 1937 Contract invalid on the ground that it purports to limit use of water under Certified Filing 3.98; that the judgment is not clear and does not clearly inform Gar-wood of the acts enjoined; in holding that Garwood and intervenors are estopped to deny the validity of the 1937 and 1938 Contracts; in holding that appellants did not meet the burden of proof to show that any rights existed in Certified Filing No. 602; that there is no evidence, or the evidence is insufficient to support the court’s finding that if any rights existed under Certified Filing No. 602, the total of such use was not to exceed 5,000 acre feet of water annually; in holding that the point of diversion of Certified Filing 602 cannot be removed from Wharton County without order of the Texas Water Commission, and if the point of diversion is moved, no water can be used other than that used immediate-r ly prior to the move; in failing to hold that Garwood’s transfer of the point of diversion fully complied with the law; in holding that if any rights existed under Certified Filing 602, such had been abandoned before the filing of this suit; that there is no evidence or the evidence is insufficient to support the court’s holding of abandonment of such rights; in holding that any rights that ever existed had been lost by prescription; in holding that any rights acquired by Garwood under Certified Filing 602 are bound by the 1937 Contract; in failing to give effect to the 1950 agreement, and finally in holding Garwood liable and in awarding judgment for the sum sued for and attorneys’ fees.

We believe that the court was justified in rendering the judgment and that such finds support in the record.

By the Contracts LCRA guaranteed Gar-wood that it would receive sufficient free water to irrigate 6859.79 acres during dry as well as wet years.

The Main Contract did not impair Gar-wood’s rights with respect to use of water from the river because for 16 years previous to 1937 the average number of acres irrigated by Garwood was 6,771.68 acres.

The Supplemental Contract provided water that Garwood could not otherwise obtain and he so agreed.

The original Contract is not void as against public policy.

As is stated in Missouri, K. & T. Ry. Co. of Texas v. Carter, 95 Tex. 461, 68 S.W. 159:

“The most important question certified arises out of the proposition of ap-pellees’ counsel that the contract is contrary to the public policy of the state, and therefore void. In the case of Registering Co. v. Sampson, L.R. 19 Eq. 465, the court said: ‘It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because, if there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider: That you are not lightly to interfere with this freedom of contract.’ ”

In the case of Big Cottonwood Tanner Ditch Co. v. Shurtliff, 49 Utah 569, 164 P. 856, in speaking of a contract defining the amount of water different users (same as appropriators) could take, the Court said:

“Hawker, as the owner of the water right, in case of dispute, could agree to any arrangement which was satisfactory to himself and to the other users on the ditch. His agreements, if acted upon by the other water users, would not only be binding upon him, hut would also bind all who claim through or under him, and, in view that appellants claim under him, they are bound by his agreements. * * * ”

In Guelker v. Hidalgo County Water Improvement District No. 6, San Antonio C.C.A., 1954, 269 S.W.2d 551, writ refused, n.r.e., the Donna District, a drainage district, had in 1927 sold the perpetual rights to its drainage water to one Engelman, whose rights passed to Hidalgo County Water Improvement District No. 6. Guel-ker and others, landowners in the area, withdrew waters from the district’s drainage ditches claiming the sale to Engelman was void as against public policy. A trial court injunction against the landowners withdrawing such water was upheld, the • court stating as follows at page 554:

“The Donna District having the usu-fruct of the water in the drains, could sell this right to Engelman unless such a sale would be against public policy. The Donna District was organized for the purpose of furnishing irrigation water to the landowners within the terrritorial boundaries of such district, and this was and is its main purpose. No doubt, at the time Donna District made the contract with Engelman no one thought that any one owning land in the Donna District would ever desire to pump water from the drainage ditches. At that time there was an ample supply of river water for all landowners in the Donna District for irrigation purposes and drainage water was regarded as inferior water. However, during the great drought existing in 1952 any kind of water was considered valuable. The Donna District had many years before sold to Engel-man the right to use this water perpetually. In 1927, when the contract was made, it looked like a good deal for the Donna District. It wanted to get rid of this drainage water and Engle-man could use it and was willing to spend some $109,000.00 on drainage ditches in order to secure it. We are not prepared to s.ay that it was against public policy for Donna District to sell this water to Engleman under all of the circumstances that existed at at the time the contract was entered into. The fact that circumstances have now changed does not alter the situation and make the contract void as being against public policy, in that a water district some twenty-five years ago had contracted away water which could now be used by its own landowners.”

The act creating the LCRA states that in accordance with public right and public duty such creation is for the purpose of controlling, distributing, etc. the waters of the Colorado River for irrigation, etc., Article 8280-107, Secs. 1 and 2(a), Vernon’s Ann.Civ.St., and authorizes the entering into contracts to exercise such powers, etc. Garwood as a user of water had the power to enter into a contract. The main contract had for its purpose, as testified by Mr. Lehrer, of settling water and fixing rights, and to assure Garwood of a sufficient amount of water to meet its needs. The irrigators have no rights except through Garwood, and are not appropriators, but are customers of appropriators. Willis v. Neches Canal Co., 16 S.W.2d 266, Com.App., Sec. A., approved.

We believe that the contracts herein are valid and binding and Garwood cannot now, after more than 20 years, be heard to question them. 22 Tex.Jur.2d 674, Estoppel, Sec. 11. Berry v. American Rio Grande Land & Irrigation Co., Tex.Civ.App., 236 S.W. 550, no writ history. Hill County v. Bryant and Huffman, 118 Tex. 359, 16 S.W.2d 513. Guadalupe-Bianco River Authority et al. v. The City of San Antonio, 145 Tex. 611, 200 S.W.2d 989.

Since we have concluded that the contracts are valid and binding, we do not see any useful purpose in considering the questions as to the abandonment of water rights, or loss of such by prescription, or the maximum of water not to exceed 5000 acre feet used by Garwood, during the rice irrigation season.

We do not deem it essential in this case to dispose of the question of the removal of the point of diversion under Certified Filing 602 in view of the holding that the Contracts are binding.

We do not believe that the intervenors have a standing to challenge the validity of the judgment because intervenors are not deprived of any rights for which they have any redress.

The intervenors have a right to demand service when water is available on a non-discriminating basis, but does not give them an interest in Garwood’s source of supply. Lone Star Gas Co. v. Municipal Gas Co., 117 Tex. 331, 3 S.W.2d 790, 58 A.L.R. 797.

We do not believe that appellees are entitled to attorneys’ fees on the Contracts and the suit is not on a sworn account under Article 2226, V.A.C.S. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75.

The judgment of the trial court is reversed and judgment here rendered that appellees cannot recover attorneys’ fees; in all other respects the judgment is affirmed.

Reversed and Rendered in Part and in Part Affirmed.

We have concluded that we were in error in not allowing attorneys’ fees to appellee..

The claim for attorneys’ fees is' based on the provisions of Article 2226, V.A.C.S., which permits the recovery of attorneys’ fees in behalf of “[a]ny person having a valid claim against a person or corporation * * * for material furnished * *

Under the contract appellee has furnished water, that is material, to Garwood, and attorneys’ fees are allowable. Texas Gas Corporation v. Hankamer, Tex.Civ.App., 326 S.W.2d 944, er. ref., n.r.e. Ferrous Products v. Gulf States Trading Co., Tex.Civ.App., 323 S.W.2d 292, affirmed, 160 Tex. 399, 332 S.W.2d 310.

Appellee’s Motion for Rehearing is granted and attorneys’ fees are allowed as provided in the judgment.

Motion granted.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    UNITED FINANCE & THRIFT CORP. et al., Appellants, v. Robert B. SMITH et ux., Appellees.
    No. 101.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 18, 1965.
    Rehearings Denied March 11, 1965.

      Hobert Price, Strasburger, Price, Kelton, Miller & Martin, Burt Berry, Irion, Cain, Cocke & Magee, Dallas, for appellants.
    Mitchell D. Stevens and Edward C. Fritz, Fritz, Vinson & Stevens, Dallas, for appel-lees.
   DUNAGAN, Chief Justice.

The judgment heretofore entered on January 28, 1965, is set aside and the original opinion is withdrawn. This opinion is substituted for the original.

Plaintiffs, Robert B. Smith and wife, Kanzetta Smith, appellees, brought this action against United Finance & Thrift Corporation of Dallas County, its parent corporation, State Loan & Finance Corporation, and its sister corporation, General Fidelity Life Insurance Company, and also against certain separate loan organizations for double damages for usurious interests charged by each, and also for actual and exemplary damages for unreasonable collection contacts which plaintiffs alleged to be malicious.

Plaintiffs settled with and dismissed the other loan organizations from the suit.

Defendant, United Finance & Thrift Corporation, answered with a general denial; a plea that the plaintiffs knew that if they had a preference as to the company or agent on the credit insurance they could so state and their request could not be ignored; a plea for credit for settlements already made by plaintiffs; a plea that plaintiffs incurred debts which they should have known they would be unable to discharge; failed to seek the advice or treatment of a physician ; and a plea that the contacts by the other organizations were the sole proximate cause of plaintiffs’ illnesses.

The jury answers to the issues that are pertinent to this appeal are as follows: (3) United Finance & Thrift Corporation made unreasonable collection efforts against Robert Smith; (4) Such unreasonable collection contacts were actuated by malice; (5) Robert Smith sustained physical pain and mental suffering as a result of such collection efforts; (6) United Finance & Thrift Corporation made unreasonable collection efforts against Kanzetta Smith; (7) United Finance & Thrift Corporation was actuated by malice in making such efforts; (8) Kanzetta Smith sustained physical pain and mental suffering as a result of such unreasonable collection effort; (9) $1,000.00 would fairly compensate Robert Smith for his physical pain and mental suffering as a result of the unreasonable collection efforts of United Finance & Thrift Corporation; (10) $100.-00 would reasonably compensate Kanzetta Smith for her physical pain and mental suffering as a result of the unreasonable collection efforts of United Finance & Thrift Corporation; (11) United Finance & Thrift Corporation should pay Robert Smith $3,-000.00 as exemplary damages; (12) United Finance & Thrift Corporation should pay Kanzetta Smith $1,500.00 as exemplary damages; (13) And plaintiffs paid United Finance & Thrift Corporation $30.00 after July 2, 1957. (The limitations cut-off date.)

Plaintiffs filed a motion that United Finance & Thrift Corporation had changed its name to American Plan Corporation of Dallas County as testified to by the manager of said company at the trial, and moved that American Plan Corporation of Dallas County be added to the judgment.

The court rendered judgment for plaintiffs against United Finance & Thrift Corporation of Dallas County and its successor, American Plan Corporation of Dallas County, and State Loan & Finance Corporation, jointly and severally, in the following amounts: $60.00 double damages for usury, $1,100.00 actual damages, and $4,500.00 exemplary damages. The judgment included cancellation of the balance upon the final promissory note and costs of court other than those adjudged against the two settling loan organizations.

The trial court ascertained that the $1,-500,00 jury verdict for exemplary damages for Kanzetta Smith was excessive to the extent of $1,000.00, and that a remittitur should be required of plaintiffs in the amount of $1,000.00 on or before March 20, 1964.

On March 20,1964, plaintiffs filed remitti-tur of the $1,000.00, including therein the following statement: “Plaintiffs expressly reserve the right to an Assignment of Error to the Court of Civil Appeals that said re-mittitur in whole or in part should not have been required, in the event an appeal is taken by defendants in this cause.” On the same day the court overruled defendants’ amended motion for a new trial. Defendants duly perfected their appeal.

Appellants have brought forward 33 Points of Error. However, the appellants in their brief say: “Although it has been necessary to set out a large number of Points of Error, it is appellants’ primary contention that there is no evidence in this case that the Defendants used unreasonable collection methods or that they were guilty of malice or that Kanzetta Smith suffered any actual or exemplary damages or that Robert B. Smith suffered any actual or exemplary damages.

“Alternatively, it is contended that if there was any evidence to support any of the above mentioned findings, it was insufficient and the verdict of the jury on the issues referred to should be set aside as contrary to the overwhelming preponderance of the evidence.

“Further in the alternative, Appellants will contend in this brief that if any judgment for the Plaintiffs is permitted to stand, this court should require a large remittitur as to the alleged actual damages sustained by Robert B. Smith and also the exemplary damages allegedly sustained by Robert B. Smith.” There are no errors assigned to this court as to the jury findings to Issues 1, 2 and 13.

We will now examine and discuss the evidence to ascertain if it supports the jury findings in this case.

At the trial plaintiffs proved a long series of notes and renewals with United Finance & Thrift Corporation involving various kinds of charges labeled by United Finance & Thrift Corporation as credit insurance, service charges, late charges and interest.

During the offering by plaintiffs of their evidence, defendants stipulated that any judgment against United Finance & Thrift Corporation of Dallas County would go also against State Loan & Finance Corporation. Defendants (appellants herein) also admitted complete ownership of General Fidelity Life Insurance Company. Defendants admitted that on mote than 99% of its loan transactions, credit insurance was issued on Old Republic Life Insurance Company which in turn paid 85% of the premiums over to General Fidelity Life Insurance Company. Moreover, the manager of United Finance & Thrift Corporation was an agent for Old Republic Life Insurance Company. We think such investment certificate plan of operation used by United Finance & Thrift Corporation was usurious.

Kanzetta Smith testified that she was not able to read any of the papers signed during the loan transactions. United Finance & Thrift Corporation did not advise plaintiffs they could take out insurance with an agent of their own choice, or with a company of their own choice. When she got behind in her payments, a man from United Finance & Thrift Corporation contacted her in the latter part of 1957, coming on her job in a cafe and demanding a payment, to which she explained that her husband was sick and she made only $25.00 a week and couldn’t pay the payment, to which the United Finance collector said, “Somebody is going to have to pay.” United Finance & Thrift Corporation called her three more times on the job and made personal visits to her house in the latter part of 1957 and the early part of 1958. United Finance & Thrift Corporation continued to come to their house and demand got “rasher,” threatening to take the furniture, threatening to continue to come on her job, and upsetting her.

She further testified that she would cry and the man would continue pressing her after she pleaded with him to leave her husband alone, because each time it would make him much sicker, so the man would take it out on her; Robert was home in bed at that time; she asked them not to contact her on the job but the man threatened to come on the job every day if she didn’t pay and to embarrass her so that she couldn’t keep a job. She was present at times when additional contacts were made on Robert; they came by the house, talked to' them about collecting the money, and at one time they raised their voices. After Robert was sick for two or three weeks, and they had told her they didn’t have any insurance, United Finance & Thrift Corporation started coming out to their house at all times of the week and would go in and tell Robert that he would have to make payments and ■would say, “We can’t fool around with you,” and each time it would upset Robert and he would begin to get nervous. One time after the collector left, Robert was “rickety” in the bed, could hardly stay in the bed and began to get cold and have a chill; Kanzetta piled cover on him, but he stayed cold; after that, each time they came by it would upset him. United Finance & Thrift Corporation also sent collection letters which upset Kanzetta. After the collector came on Kanzetta’s job, her employer sent her word not to come back to work.

Robert Smith testified that around the middle of 1957 he became delinquent and United Finance & Thrift Corporation came out and called and visited him on the job and sent letters, which continued until about the last of 1958; they visited him on every job he ever worked on; the worse contacts were at two service stations; United Finance collectors came out and worried him until he would go and draw some money and make a payment; the first time Robert was made sick was at one of the service stations where he passed out after one of the contacts. Every time, United Finance collectors told him they wanted some money or they were going to take his furniture.

Robert B. Smith further testified that United Finance & Thrift Corporation also contacted him at a third service station, came out on the job and followed him around there from one end of the building to the other until he got nervous, had a blackout, and his brother-in-law came and carried him home and he stayed in bed about a week. The United Finance collectors said a lot of embarrassing words to him, and he almost had a crying spell there, being unable to help himself; they had to get him out from under a car, carry him home and he had to stay in bed about a week; they came out to his house, sometimes two of them, talking “blustering” talk about what they were going to do; he gave them all the money he had; he was late in his payment because he was sick; and then one of them came out to pick up everything he had; at that time they claimed a balance of-'$84.00 and he was unable to raise it; he and his wife were both ill; the United Finance man threatened to get a policeman and come back and get the furniture, but did not do- so; when asked how he felt after such contacts, Robert said he started to leave home several times, and after he had paid them so many times he got to where he couldn’t, he started to leave home; but he knew it was not right to leave his family, so he stayed on and did the best he could; he would have crying spells, headaches and pain, and these spells would come on him on the job and he would have to sit in the car an hour until he got all right.

Robert Smith had been taken to Parkland Hospital several times after these attacks, staying several days. He had not been able to work all the time, and when he was not working he sat around the house and lay down when he got nervous, and had a tiredness coming over him in the chest, back of the neck and head

When the defendants took Robert Smith’s deposition, and asked him what he was complaining of, he answered that the loan company started bothering him and threatening him and got him nervous before he had an attack on his job, and whenever a collector came out and said something to him he would get generally nervous and they would wait near at hand until he got paid and then threaten to take his furniture; he suffered from headaches all the time; he went to a lawyer because United Finance & Thrift Corporation threatened to take his furniture if he didn’t renew his loan. He was tired of United Finance ■& Thrift Corporation bothering him; he could not sleep at night, and they came out and caused him to lose his job at Owens Service Station and went out to his wife’s job. He had heavy sweating spells; United Finance & Thrift Corporation did all the arguing and he just listened. Sometimes United Finance & Thrift Corporation would stay on his job an hour at a time, bothering him until he would go and borrow some money to give them; they came to his house “might near every week,” sometimes twice a week; a lot of times he would give them all he had; a collector for United Finance & Thrift Corporation, cursed him on the telephone after he asked the collector to leave him alone. The United Finance collector said:

“Oh, he said I had better get my so- and-so down there, and I told him I wasn’t coming down there.”

Robert testified that United Finance & Thrift Corporation sent somebody out there with a truck and they went through the house and looked at all the stuff and asked Robert to sign a paper, which he did not sign. Robert refused to let them have the furniture without the police, and after that:

“A. He cussed at me and I told him to get out and he left.
“Q. He cussed again?
“A. (Witness nods head).
“Q. What did he say?
“A. He say, T am going to get this God damned furniture if I have to go get the police to come back’ and I said ‘that is what you are going to have to do.’ ”

In determining the question of no •evidence, the evidence must be viewed in the light most favorable to the verdict. It is the duty of courts to consider only the evidence favorable to the issue. It should ■disregard all evidence which is adverse, contrary or conflicting to the favorable evidence. Renfro Drug Co. v. Lewis, (Tex.S.Ct., 1950) 149 Tex. 507, 235 S.W.2d 609, 613, 23 A.L.R.2d 1114.

Appellants cite the case of Ware v. Paxton, (Tex.S.Ct., 1962) 359 S.W.2d 897, in which the exemplary damages were deleted from the judgment because of insufficient ■evidence of malice. But in the Ware case the facts were quite different. The only evidence of collection contacts was a few letters and several phone calls to the borrower over two years, including only one he could remember, a phone call of December 5, 1950, threatening to pick up everything the borrower had, some letters the contents of which were not recalled, and a conversation with the borrower’s wife saying he • could put the borrower in jail but he didn’t want to do it. The Supreme Court stated .at page 901 of the decision:

“ * * * However, there is no evidence that Ware used abusive or insulting language or anything of that nature in the conversation of December 5, 1950, * * *
“ * * * Mrs. Paxton stated that on that occasion Ware asked where her husband was, what he was doing, and how he could reach him, and that the ■ effect of this was to make her ‘real nervous.’ She admitted that Ware did not use abusive, vulgar, or indecent language in any conversation with her, ■ nor did he threaten any violence. * * ”

In the instant case there is a far longer, more frequent and more malicious course of harassment than in Ware v. Paxton, including threats to get Kanzetta Smith’s job, threats to keep calling Robert Smith on his job, and vulgar, abusive language to them.

The case of Wright v. E-Z Finance Co., (Tex.Civ.App., Dallas, 1954) 267 S.W.2d 602, error ref., n. r. e., is one wherein the facts as to harassment in our opinion were far less flagrant than in the instant case as to Robert B. Smith, and yet the verdict was upheld as to both unreasonable collection contacts and malice.

After careful review of all of the evidence, insofar as the judgment awards damages to Robert B. Smith, we find it ample to support such award, and the same is not against the great weight and preponderance of the evidence. In re King’s Estate, 244 S.W.2d 660.

We have considered all of appellants’ points and find no merit in 1 through 9, 19 through 22 and 27 through 30. They are overruled. Riley v. Empire Service Company, (Tex.Civ.App., 1959) 326 S.W.2d 942, writ ref., n. r. e.; Moore v. Savage, (Tex.Civ.App., 1962) 359 S.W.2d 95, writ of err. ref., n. r. e. with per curiam opinion of the Supreme Court, 362 S.W.2d 298; Sutton Motor Company v. Crysel, (Tex.Civ.App., 1956) 289 S.W.2d 631, no writ hist., and Texas Employers’ Ins. Ass’n v. Scott, (Tex.Civ.App., 1950) 233 S.W.2d 171, writ ref., n. r. e.

However, in our opinion there is no evidence of probative force to support the jury’s finding and the judgment awarding damages to Kanzetta Smith. The evidence concerning the collection efforts used by appellants relative to Kanzetta Smith amounted to mental anguish only. This alone is insufficient to sustain a recovery of damages. Duty v. General Finance Company, 273 S.W.2d 64, (Tex.S.Ct., 1954) and Harned v. E-Z Finance Co., 254 S.W.2d 81, (Tex.S.Ct., 1953).

The judgment below, as to Robert B. Smith, is in all things affirmed; as to Kanzetta Smith the judgment of the trial court awarding to her $100.00 for actual damages and $500.00 for exemplary damages is reversed and rendered for appellants and is in all other respects affirmed. Costs of appeal are divided equally between the parties. Rule 448, Texas Rules of Civil Procedure; Woodard v. Tatum, 277 S.W.2d 943, (Tex.Civ.App., 1955) no writ hist.; Hennemuth v. Weatherford, 278 S.W.2d 271, (Tex.Civ.App., 1955) writ refused, n. r. e.


author: PRESLAR, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Charlie Robert DOSSEY, Appellee.
    No. 5682.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 17, 1965.
    Rehearing Denied March 10, 1965.
    Turpin, Kerr, Smith & Dyer, James T. Smith, Max N. Osborn, Midland, for appellant.
    Warren Burnett, Robert D. Pue, Odessa, for appellee.
   PRESLAR, Justice.

This is a workman’s compensation case brought by appellee Dossey, as plaintiff, against appellant Texas Employers’ Insurance Association, to set aside an award of the Industrial Accident Board of Texas, and to recover compensation for injuries received while working in the State of New Mexico. Judgment was for the plaintiff for ■total and permanent disability based on jury findings, plus a determination by the court that the plaintiff was, at the time of his injuries, a Texas employee within the meaning of Article 8306, section 19, Revised Civil Statutes of Texas. The principal question for determination on this appeal is whether, at the time of injury, the appellee, Dossey, occupied the status of a Texas employee of Lowe Drilling Company; and secondly, whether such question should have been submitted to the jury.

The pertinent portion of Article 8306, section 19, provides:

“If an employee, who has been hired in this State, sustain injury in the course of his employment he shall be entitled to compensation according to the Law of this State even though such injury was received outside of the State, and that such employee, though injured out of the State of Texas, shall be entitled to the same rights and remedies as if injured within the State of Texas * *

As we begin our inquiry, we must first take note of the clause, “who has been hired in this State”, for our courts have held that such clause does not have reference to, the place where the hiring was originally made. Southern Underwriters v. Gallagher (1940), 135 Tex. 41, 136 S.W.2d 590. This is the landmark case on extraterritorial provisions of the Texas Workmen’s Compensation statutes, and it lays down the rule in these words:

“ * * * The test is: What was the status of the employee at the time of injury with regard to being a Texas employee? If, at such time, he occupied the status of a Texas employee, he is entitled to protection under our Compensation Statutes, even though he was working out of the state. On the other hand, if the employee is hired or contracted with in this state to go out of this state to perform labor or services, he cannot claim protection under our Compensation Law merely because the contract was made or entered into in this state.”

Thus, our inquiry is whether or not Dossey, at the time of his injury, occupied the status of a Texas employee. Our courts have never defined “status of a Texas employee”, and the court has decided in each case, as it has arisen and under its peculiar facts, whether the claimant did or did not have that status. Hale v. Texas Employers’ Ins. Ass’n, 150 Tex. 215, 239 S.W.2d 608 (1951). Of the many cases which have been decided on this basis, the one with the fact situation most like the one before us is Southern Underwriters v. Gallagher (supra). There, we are. given a guide to aid in determining when one has attained the “status of a Texas employee” when the court said:

“Also, if a person is hired to work in this state, — that is, if, under the contract of hiring, such person becomes a Texas employee in the sense that it is contemplated that his services are to be rendered in this state, such employee is protected by our Compensation Law, even though he is first sent incidentally or temporarily out of the state to perform labor or services, and the mere fact that such employee performs his first services out of this state will not defeat his right to protection under our compensation statutes.”

We are of the opinion that the facts of the case before us establish that Dossey had, at the time of his injury, the status of a Texas employee, for the reasons that the contract of hire contemplated that he would perform services in Texas, and prior to his injury he did, in fact, perform services for his employer in this state.

The facts surrounding the hiring of Dos-sey are that he and a companion sought work from one Williams, a driller for Lowe Drilling Company. They had heard that Williams was going to start drilling and was “looking for hands”, so they sought him out. They met Williams on the road a few miles out of Andrews, asked for jobs, and were hired, Dossey as a derrick man and his companion as a floor hand. This took place in Andrews County, Texas, where all lived, on Friday or Saturday, and .at the time neither Dossey nor the driller, Williams, knew where they would actually report to work. The hiring was the customary oil-field manner, in which the drillers are hired by toolpushers, or superintendents of the company, and each driller then selects and hires his own crew — four on the ordinary rotary rig set-up. On Sunday night the driller notified Dossey that they would go to work the next morning and that he would pick him up to go to the job-site. When they started to the job-site the next morning they still did not know the location of the drilling rig on which they were to work, but they were to report to Monument, New Mexico, which they did, and there were told of the rig’s location south of Jal, New Mexico. Dossey worked on that rig until the well was completed— some four weeks — and then his crew worked at laying water and gas lines to another Lowe Drilling Company rig for three days, near Andrews, Texas. The superintendent had told their driller to have them report for this work in Texas, and after the three days they were sent back to New Mexico to the rig on which they had been working, but at another location. Dossey continued to work there until injured some ten days later. The parties stipulated that the contract of employment remained unchanged during these moves. Williams, the driller, testified that at the time he hired Dossey as his derrick man, he did not know where they would be working — Texas or New Mexico — and that he hired Dossey with the understanding that he would be working both in Texas and New Mexico or in either state that the work took him. He testified that with Lowe Drilling Company the fact that you were assigned to a rig did not mean that you were going to stay with that rig all the time, and that had the particular rig. to which he and Dossey were assigned fired up in Texas, on Dossey’s initial employment, then he would first have worked in Texas. Lowe had its principal offices in Midland, Texas, and had rigs operating in both Texas and New Mexico. Front all of this, we conclude that Dossey was hired in contemplation of working in Texas and New Mexico, or either, and did work in both states, and did, at the time of his injury, have such status as a Texas employee as to be eligible to claim the bener fits of the Texas Compensation statutes'. The case is distinguishable from one where a person is employed in Texas to report for work at a specified plant, factory or other immobile installation in another state. Covington v. Associated Employers Lloyds, Tex.Civ.App., 195 S.W.2d 209. It is also distinguishable on its facts from Southern Underwriters v. Gallagher, where it was understood and discussed during the hiring negotiations that the employment would be in New Mexico. In that case the place of hiring was Kermit, Texas, where the workman, Gallagher, sought employment with a drilling company, and was told that he could go to work in New Mexico. He expressed a preference for Texas, and was told that when the rig started up in Pecos County, Texas, he would be transferred to it. With the understanding of the situation he accepted the New Mexico employment and was there injured before the promise of work in Texas materialized, and without ever having worked in Texas under that contract of employment. In finding that Gallagher did not, at the time of his injury, occupy the status of a Texas employee, the court pointed out that in order to justify a holding that he was such a Texas employee, there would have to be a fact finding that at the time Gallagher went to New Mexico to work, he and the drilling company had already entered into a contract by the terms of which he became a Texas employee in the sense that his services were to be performed in Texas. The court found there was no evidence to justify such a conclusion. In the case before us, we think the facts justify such a conclusion.

As to appellant’s point of error that the trial court should have submitted to the jury the question as to whether or not Dossey was a Texas employee, we conclude that the facts determinative of that issue were not in dispute. There being no conflicts of evidence for the jury to resolve, it was a matter of the application of the law to those facts by the court, so there was no error in refusing the issue. Texas Employers’ Ins. Ass’n v. Moore, Tex.Civ.App., 56 S.W.2d 652.

All points of error have been considered and all are overruled. The judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    Minnie RUFFIN et al., Appellants, v. J. W. WEINGARTEN, INC., Appellee.
    No. 49.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 25, 1965.
    James J. Hippard, Thompson, Hippard, Gibson, Korioth & Tita, Houston, for appellants.
    B. Jeff Crane, Jr., Winson, Elkins, Weems & Searls, Houston, for appellee.
   MOORE, Justice.

Appellants, Minnie Ruffin and John Gregory, brought suit against appellee, J. W. Weingarten, Inc., to recover damages for personal injuries alleged to have been sustained by the appellants as a result of a rear-end collision between the automobile driven by Minnie Ruffin and a truck owned by Weingarten being driven by its employee, Mannie Blate.

The trial was before a jury and in answer to the special' issues, the jury found (1) that defendant’s employee Blate did not fail to keep a proper lookout; (2) that Blate was not driving the truck at an excessive speed; and (3) that Blate did not fail to make a proper application of the brakes on the occasion in question, thus failing to find any act of negligence. The jury assessed the damages of Minnie Ruffin at the sum of $2,400.00 and that of John Gregory at $786.00. No issue of contributory negligence was submitted to the jury. The trial court entered a take-nothing judgment.

Appellants predicate this appeal upon three points of error asserting that (1) the trial court erred in failing to set aside the jury’s answer to Special Issue No. 5, finding that Blate did not fail to properly apply the brakes, and entering judgment for appellants based upon the proposition that Blate, as a matter of law, failed to make proper application of the brakes; (2) because there was no evidence to support the jury’s finding on Special Issue No. S or in the alternative, the finding was against the great weight and preponderance of the evidence; and (3) because the jury’s finding that Blate did not fail to keep a proper lookout was against the great weight and preponderance of the evidence.

According to appellant, Minnie Ruffin, immediately prior to the collision she had been driving her automobile in the right-hand curb lane of Crawford Street in Houston, Texas, headed in a northerly direction. When she came to the intersection of Crawford and Franklin Streets, she was required to stop for a red signal light; while she was stopped and before she could start moving forward after the light had turned to green, appellee’s truck collided with the left rear-end of her automobile, breaking the left tail light and bending the left rear fender. She testified that she had her right blinker light on, indicating her intention to make a right turn, but that her automobile had not moved form her stopped, position prior to being struck.

Blate, the driver of the truck, disputed appellant’s version of the collision by testifying that Mrs. Ruffin had actually started moving her vehicle and was almost around the corner when she suddenly jammed on. her brakes. He testified that at the time she suddenly applied her brakes and made a sudden stop, he was following her and was only seven or eight feet behind her; that he was-in the process of turning the truck to the left in preparation for also making a right turn with his large tractor-trailer truck.He testified that it appeared to him that while Mrs. Ruffin was in the process of making the right turn, she suddenly changed her mind and slammed on her brakes; that he applied his brakes as quickly as possible, but because of her sudden stop he was unable to avoid striking her vehicle. He testified that the truck was equipped with two-kinds of brakes: a foot brake for the tractor and a hand-operated air brake for the trailer. He admitted that he did not apply the trailer brakes because he did not believe he was going fast enough to need the trailer brakes.

In substance, appellants by their first point contend that the evidence conclusively established that appellee’s driver’s failure to-properly apply the brakes was the proximate cause of the collision, hence the jury’s-finding to the contrary should be disregarded and judgment entered for the appellants.

The rule of law governing proper lookout in rear-end collision cases is stated in Renshaw v. Countess, 289 S.W.2d 621, 624 (Tex.Civ.App.) no writ history, as-follows:

“We think it is the law that a motorist following another vehicle must drive at a reasonable speed, keep back a reasonable distance, and keep his vehicle under reasonable control so as to provide for the contingency of a car in front suddenly stopping; that he must maintain a proper lookout for the car in front, so that he can stop without a collision or can turn out and pass the vehicle in front without getting in the way of traffic approaching from the opposite direction. A question of fact as to the existence of negligence is usually presented when one motor vehicle overtakes and strikes one in front of it, going in the same direction. ‡ ‡»

It has also been held that the collision, under ordinary circumstances, furnishes some evidence of negligent acts or omissions on the part of the driver of the trailing vehicle, which ordinarily calls upon the driver of the rear vehicle to explain and usually presents a question of fact for the determination of the jury. Caraway v. Behrendt, Tex.Civ.App., 224 S.W.2d 512.

“It can not be gainsaid that one who fails to stop his automobile in response to a traffic signal, but propels the same into the rear end of an automobile which has stopped in obedience to the signal, is guilty of negligence proximately causing injury or damage unless such conduct is excused by some extenuating circumstance or condition. * * * ” Hoey v. Solt, 236 S.W.2d 244 (Tex.Civ.App.).

In passing upon the question of whether there was evidence to support the findings of the jury upon appeal, this court may only consider that evidence, which viewed in its most favorable light, supports the jury’s findings and must disregard all evidence which would lend to a contrary result. Miller v. Wagoner, 356 S.W.2d 363 (Tex.Civ.App.), citing Biggers v. Continental Bus System, Inc., 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359, 363. If reasonable minds can differ as to the inferences and conclusions to be drawn from the undisputed evidence, then the case is one for the jury. If reasonable minds cannot differ, then an issue of law only is presented. Hoey v. Solt, supra.

Appellants argue that had the driver of the truck used due care in applying his brakes, the collision would not have occurred because the undisputed evidence shows that had the air brakes on the trailer been applied, the wheels would have locked and stopped the truck immediately. Appellants reason that even though the driver of the truck may have applied his foot brakes, since he admitted that he did not also apply his trailer brakes, and since the application of the brakes would have prevented the collision, negligence proximately causing the collision was established as a matter of law.

Appellee contends that the evidence presents only a fact question and the finding by the jury exonerating the driver is binding on the court. We agree with this contention. We think the circumstances presented here are such that reasonable minds might differ as to the inferences and conclusions to be drawn from the undisputed evidence. Taking into consideration all of the surrounding facts and circumstances, together with the testimony of Blate showing that after appellant’s vehicle proceeded into the intersection it then made a sudden stop, constitutes circumstances, when viewed in a light most favorable to the appellee, shows some excuse for the conduct of the driver which the jury was entitled to consider in passing upon the question of negligence. Appellants did not charge appellee’s driver with negligence in following too closely. We think the jury could have reasonably concluded that the driver of the truck was faced with a sudden emergency, not caused by negligence on his part, and that after the emergency arose his conduct was commensurate with that of a person of ordinary prudence in the exercise of ordinary care. In passing upon the question of proper application of the brakes, the jury no doubt took into consideration the element of time.

“Split-second timing is not ordinarily required of operators of motor vehicles.” Manning v. Block, 322 S.W.2d 651 (Tex.Civ.App.).

The standard of conduct in applying brakes is ordinary care. The burden of proof was on appellants to establish a lack of due care, which burden they failed to discharge.

We have reached the conclusion that the evidence presented here was not of such nature as to conclusively demonstrate, as a matter of law, that appellee’s driver failed to make proper application of the brakes, proximately causing- the collision. Appellants’ first point is therefore overruled.

From the record as a whole, we are convinced that there is ample evidence to support the jury’s findings exonerating appel-lee’s driver of negligence in the application of the brakes and on the question of proper lookout. We are likewise convinced that such findings are not against the overwhelming weight and preponderance of the evidence. We therefore overruled Points 2 and 3.

Finding no reversible error, the judgment is affirmed.

Affirmed


author: MASSEY, Chief Justice.

text:
    M. D. PARSON, Appellant, v. Louise PARSON et al., Appellees.
    No. 16599.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 22, 1965.
    Rehearing Denied Feb. 12, 1965.

      Peery, Wilson & Jameson, and James W. Jameson, Wichita Falls, Brown, Kron-zer, Abraham, Watkins & Steely, and W. James Kronzer, Houston, for appellant
    Mock, Banner & McIntosh, and Jack Banner, Wichita Falls, Attorneys for appellee, Louise Parson.
    Nelson & Sherrod, and Stan Carter, Wichita Falls, for appellee, Texas Employers’ Ins. Assn.
   MASSEY, Chief Justice.

Texas Employers’ Insurance Association became a “stakeholder” in the trial court. It admitted its liability for the payment of “death benefits” under the Texas Workmen’s Compensation Act, in a “lump sum”, and deposited the amount thereof. There is some doubt as to whether it was made a party on the appeal. No point of error raises any contention against it. In order to settle the question it moved to have any appeal as against it dismissed. The motion is granted. We deny the “additional” attorney’s fees for which Texas Employers’ Insurance Association prays because of the circumstances which caused it to . consider that there was a necessity to seek this action. This Court’s authority in the case is appellate only.

Disposition of this case is simplified if the trial court be held to have been correct that Louise Parson was legally the wife of the deceased Robert Parson. Under the record made below there remained no issue of fact to be tried, hence, the case was proper to be resolved on motion for summary judgment.

Circumstances of the relationship between Louise Parson and said deceased were such that presumptions to be indulged were that from and after the date they participated in a ceremony purporting to celebrate their marriage to one another, on August 2, 19S2, they were husband and wife, each constituting the lawful spouse of the other.

This presumption is controlling in the instant litigation, if not positively established, as applied to the deceased. There was no impediment to his lawful contracture of a marriage on August 2, 1952, and he did engage upon such in obtaining a license to marry Louise and participating in the ceremony whereby an authorized official declared that he and Louise were thenceforth husband and wife.

Were only a portion of the record considered there would have been a question whether the same might be said as applied to Louise, and the initial presumption of the lawfulness of her second marriage to-the deceased might have been successfully rebutted so as to create an issue of fact, were we thereto confined. Fowler v. Texas Exploration Co., 290 S.W. 818 (Galveston Civ.App., 1927, error refused). It was positively established that prior to the date of the marriage' ceremony of Louise and the deceased she had participated in a marriage ceremony whereby she was purportedly wed to one John Wesley Sessums. Date thereof was January 10, 1946. Of this union, or purported union, two children were bom. Louise and John Wesley Sessums parted on January 3, 1949, never thereafter cohabiting nor holding themselves out as husband and wife.

When we consider all of the record and evidence we find it conclusively shown that as applied to the marriage ceremony on January 10, 1946, there was no lawful inhibitory impediment to the entry into a valid marriage by Louise. Fowler v. Texas Exploration Co., supra. Not so as applied to John Wesley Sessums. The evidence conclusively shows that he had entered upon what is sometimes termed a “war marriage” during World War II. In England he had on June 25, 1945, under authority of a license obtained for the purpose, participated in a ceremony whereby an authorized official effectively united Sessums and his “war bride” by matrimonial bonds.

It is readily observed, therefore, that John Wesley Sessums, a man already married, was not qualified to lawfully become the husband of Louise when he “went through” the ceremony purporting to make him such on January 10, 1946. It has already been mentioned that Louise was, at that time, qualified to marry. In Texas, however, under the common law long ago adopted as controlling in such matters, it is essential to the legality of a marriage that neither the woman who marries a husband nor the man who marries a wife have a living spouse to whom he or she is then lawfully married. If such a marriage be attempted it is void ab initio and as to both parties. See 93 A.L.R. 345 (supplemented at 144 A.L.R. 747), Anno.: “Validity of marriage celebrated while spouse by former marriage of one of the parties was living and undivorced * * *.”; 4 A.L.R.2d 542, Anno.: “Cohabitation of persons ceremonially married after learning of facts negativing dissolution of previous marriage ■of one, as affecting right to annulment”; 55 C.J.S. Marriage § 17, Subsisting Marriage, p. 831. As stated in 38 Tex.Jur.2d 60, “Marriage”, § 24, “Subsequent Marriages” : “The Penal Code forbids the marriage of one who has a husband or wife living. (Penal Code, Arts. 490 and 490a.) A marriage by such a person is made a felony, and the marriage itself is void.” (Authorities cited.) See also 35 Am.Jur. 271, “Marriage”, § 148, “(Prior Marriage) Generally”.

And when such a purported marriage takes place it is absolutely void, not merely voidable. Prior marriage does not constitute that character of impediment which renders possible the subsequent ratification of the marriage contract, effecting thereby the validity ab initio of a marriage of the parties,—as, for example, a person who was insane at the time the contract was entered into. See Simpson v. Neely, 221 S.W.2d 303 (Waco Civ.App., 1949, error refused); 35 Am.Jur., p. 212, “Marriage”, § 46 “Unlawful or Irregular Marriage as Void or Voidable”. We take occasion to note that in the case before us we are not concerned with the rights of anyone as a “putative” spouse of another

There are instances where, even on direct attack, the burden of proof to establish that a marriage was void ab initio (as distinguished from voidable) lies upon the party contending that it is such. We are not troubled therewith here. The case reaches us on an appeal from summary judgment, a proceeding in which any determination as to which of the parties would carry the burden of proof in a trial on the merits is wholly immaterial.

Neither are we troubled by the complicated type of situation where a man and woman continue to live together as husband and wife,—though originally their marriage was void because one had a living spouse at the time of the celebration of their purported marriage,—after such spouse has either died or obtained a divorce. Although the “war bride” of John Wesley Sessums did obtain a divorce from him, she did not do so during the period Louise was living with him. The “war bride” did not obtain her divorce decree until June 20, 1951. Said date was over one year after Louise separated from him.

Therefore when the entire record is taken into consideration it becomes apparent that Louise, having never been the legal wife of any other person, and not sub-ject to any other disqualification, was fully competent to and did on August 2, 1952, contract and consummate a valid marriage with Robert Parson, since deceased. That valid relationship continued and was in full force and effect on the subsequent date of his fatal injury, concededly sustained while he was within the scope and course of his employment

The Texas Employers’ Insurance Association, compensation insurance carrier for the deceased’s employer, owes the workmen’s compensation death benefits to Louise, as the widow of the deceased, and not to any other person whose legal position might entitle him to receive such benefits if the deceased had not died with a lawful widow surviving. This was the holding and judgment of the trial court, which we affirm.

During the period following January 3, 1949, the date John Wesley Sessums and Louise finally separated, and prior to August 2, 1952, when Louise married Robert Parson, she instituted divorce proceedings in the State of California. In her complaint she alleged in paragraph II thereof, as follows: “That plaintiff and defendant were married on the 10th day of January, 1945, at Lamesa County of Dawson, State of Texas, and ever since the said time have been and now are husband and wife.” The petition was signed, under oath, by Louise, as Cleo Louise Sessums. Therein she swore: “That she is (was) the plaintiff in the above entitled action; that she has read the foregoing COMPLAINT FOR DIVORCE and knows the contents thereof; that the same is true of her own knowledge, except the matters therein stated upon herinformation and belief, and that as to those matters she believes it to be true.”

The divorce proceedings in California were never completed. No decree was entered divorcing Louise from Sessums. In view of the averments, under oath, of the petition for divorce, it is contended that Louise is judicially estopped to testify that she was never the legal wife of Sessums during the period between January 10, 1946 (or 1945) and January 3, 1949. In other words, it is asserted that Louise, having in the course of prior judicial proceedings taken the position, under oath, that at a material time she was the lawful wife of John Wesley Sessums, in an attempt to obtain an advantage pursuant thereto, may not be heard afterward to maintain a contrary position in the absence of proof that the averment was made inadvertently, or by mistake, fraud, or duress. See Long v. Knox, 155 Tex. 581, 291 S.W.2d 292 (1956); 22 Tex.Jur.2d 689, “Estoppel”, § 18, “Judicial-estoppel”.

Louise’s testimony on the proceedings from which the instant appeal is taken is to the effect that at the very time she signed, swore to, and filed the divorce petition in California, she had been informed that Sessums had a living spouse in England to whom he had been married before he purportedly wed her in 1946. Indeed, she swore that such was the reason she separated from him on January 3, 1949. Yet do we believe and hold that the circumstances fail to present a situation ruled by the doctrine of judicial estoppel. Furthermore, in 35 Am.Jur., p. 213, “Marriage”, § 48, “Estoppel to Assert Invalidity”, it is stated: “The general rule as to estoppel arising from the marriage relation is that where a marriage is shown to be void, neither of the parties nor his or her representatives can, by any acts, be estopped from denying the voidness of the marriage * * *»

Judgment is affirmed.


text:
    L. R. HARDING, Temporary Administrator of the Estate of J. M. Pollard, Deceased, Appellant, v. The STATE NATIONAL BANK OF EL PASO, Appellee.
    No. 5694.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 17, 1965.
    Rehearing Denied March 10, 1965.
    Hardie, Grambling, Sims & Galatzan, El Paso, for appellant.
    Kemp, Smith, Brown, Goggin & White, J. Leighton Green, Jr., Jack C. Duncan, El Paso, for appellee.
   PRESLAR, Justice.

This is a suit brought by J. M. Pollard against The State National Bank of El Paso, Executor and Trustee under the will of his father, J. H. Pollard, seeking to terminate the trust as to him, J. M. Pollard. While the suit was pending, J. M. Pollard died, and L. R. Harding qualified as Temporary Administrator of his estate and was substituted as plaintiff. This appeal is from a judgment granting the Bank’s motion for summary judgment. We affirm.

In his will J. H. Pollard gave his Trustee, the Bank, discretion to terminate the trust created in such will as to his son, J. M. Pollard, at any time after fifteen years if, in the opinion of the Trustee Bank, it would be beneficial to J. M. Pollard to terminate same. The fifteen-year period expired in 1956, and beginning in 1957 J. M. Pollard made several requests that the trust be terminated as to him, and such requests being refused, he filed this action in 1962 seeking to compel the Trustee Bank to terminate the trust. He alleged that the Trustee Bank abused its discretion and acted in bad faith in refusing to terminate the trust, and appellant assigns as error that this presented a fact question and, therefore, summary judgment should not have been granted.

We think the summary judgment was correct, for the reason that the death of the plaintiff, J. M. Pollard, brought an end to the question of whether or not he would be benefited by termination of the trust. Under the terms of the will, the Trustee was to terminate the trust when it thought such termination would be beneficial to J. M. Pollard, and by this suit he put in issue the question of whether termination would be beneficial to him. His death ended the question of what would be beneficial to him during his life. The cause of action, if any, did not survive to be carried on by the Temporary Administrator or anyone else.

The very terms of the trust compel the conclusion which we have reached. The test most commonly used to determine survivability is whether or not the cause of action may be assigned. 1 Am.Jur.2d, Abatement, Survival, and Revival, § 57. In this state it is the rule that if a cause of action is not assignable, it does not survive. 1 Tex.Jur.2d, Abatement and Revival, § 106 (citing Galveston, H. & S. A. R. Co. v. Freeman, 57 Tex. 156; Stewart v. Houston & T. C. R. Co., 62 Tex. 246; Moore v. Lumbermen’s Reciprocal Ass’n (Tex.Com.App.), 258 S.W. 1051. None of the cited cases have facts similar to ours, but we are of the opinion that the announced rule is clearly the law in Texas. By the terms of the will before us, it is specifically provided that J. M. Pollard has no power to sell or mortgage any interest thereunder, or to secure any advancements thereon. Any attempts to do so are declared null and void, and the trustee is forbidden to recognize any sale, mortgage or assignment. Assuming that J. M. Pollard had a cause of action against the Trustee Bank, it was so personal to him that he could not, by contract, place it beyond his control, and therefore it did not survive. For the reasons stated we are of the opinion that the motion for summary judgment was properly granted.

The appellant’s points of error are overruled, and the judgment of the trial court is affirmed.


author: DIXON, Chief Justice.

text:
    John W. NEWBERN, Appellant, v. Harry SPIRO, Appellee.
    No. 16465.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 19, 1965.

      Bagby & Ross, Arlington, for appellant.
    Turner, Rodgers, Winn, Scurlock & Terry, Robert W. Calloway and John H. McElhaney, Dallas, for appellee.
   DIXON, Chief Justice.

Appellee Harry Spiro of New Orleans, Louisiana, brought suit against appellant John W. Newbern, doing business as The Newbern Company, for the sum of $239.53, which appellee alleges is the amount of excess shipping charges he was compelled to pay on a shipment of antiques purchased from appellant for the sum of $5,700.

The suit is based on an agreement written on the back of an invoice, said agreement providing that the shipping charges were not to exceed $150 and “any amount over $150.00 to be paid by The Newbern Company.” The written agreement is signed by Hubert Slym, alleged to be the agent of appellant.

Though appellant through his attorney was duly notified of the setting of the cáse for trial, neither appellant nor his attorney appeared or participated in the trial. ■

At the conclusion of the evidence the court sustained appellee’s motion for instructed verdict and rendered judgment accordingly.

In two points on appeal appellant alleges that it was error (1) to instruct the verdict because of a lack of competent evidence, and (2) to overrule appellant’s motion for new trial.

Appellee proved up his case by means of the depositions of appellee Spiro and the testimony of attorney Robert W.' Calloway. Appellant says that the testimony of Spiro as to agency of Slym to act in behalf of appellant is incompetent because of the rule that declarations of an agent are not admissible to prove agency. The rule is not applicable here. Appellant pled only a general denial. He did not comply with Rule 93(h), Texas Rules of Civil Procedure. He did not in his pleadings deny under oath the execution by himself or by his authority of the written instrument sued on by appellee. Therefore no issue was raised as to the execution of the document. Manning v. Barnard, Tex.Civ.App., 277 S.W.2d 160, wr. ref. n. r. e. Furthermore, appellee testified by deposition as to the substance of the agreement and also that he paid shipping charges amounting to $389.53, which testimony was received without objection.

Appellant also says that the invoices including the written agreement, though numbered by the court reporter and testified to by the attorney for appellee, were not actually introduced into evidence. However, all the exhibits were identified without objection by attorney Calloway who had been sworn as a witness, and the written agreement as to shipping charges was read in full to the jury. In Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199 it is said, “Testimony read into the record without objection is tantamount to the introduction of the documents from which the testimony was taken.” Copies of all the exhibits are shown in the statement of facts. Appellant’s objections, being made for the first time on appeal, come too late.

Under his second point appellant argues that he should have been given a new trial because of “inexperience with courts,” and that the judgment against him was due to mistake or accident. This latter statement is a pure conclusion, for appellant does not allege what the mistake or the accident was. Certainly nothing is alleged in appellant’s motion which the court would be authorized to accept as a ground for setting aside the judgment. If a litigant were entitled to a new trial on the grounds alleged by appellant adjudicated causes of action could be reopened many times without end. Indeed, there would never be an end to a suit.

Appellant’s points on appeal are overruled.

The judgment of the trial court is affirmed.

Affirmed.


text:
    HEREFORD LAND COMPANY et al., Appellants, v. GLOBE INDUSTRIES, INC., Appellee.
    No. 102.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 4, 1965.
    Rehearing Denied March 4, 1965.

      Philip I. Palmer, Palmer & Palmer, Dallas, for appellants.
    Vernon O. Teofan and Paul E. Lokey, Ungerman, Hill, Ungerman & Angrist, Dallas, for appellee.
   MOORE, Justice.

This is an appeal from the denial of a temporary injunction. Appellant, Hereford Land Company, a corporation, brought this under the provisions of Section 4, Article 4642, Vernon’s Ann.Tex.St. seeking to enjoin appellee, Globe Industries, Inc. and J. E. Decker, Sheriff of Dallas County, Texas, from selling under execution a certain apartment house located at 3400 Cole Avenue in Dallas and praying for judgment removing cloud cast on the title by reason of the attempted execution and sale. Dr. Doyle Sharp, president of Hereford, intervened and adopted Hereford’s pleadings.

At the hearing on the application for a temporary injunction pendente lite, appellants tendered proof of the following facts which will be hereinafter set forth in chronological order. Appellee offered no testimony.

Appellant, Hereford Land Company, was the owner of the land situated at 3400 Cole Avenue and was desirous of building a rather large apartment house thereon. Officers and directors of the corporation were Doyle L. Sharp, Thomas A. Bowman and Ray Dault. In attempting to arrange the financing, the officers and directors learned that because of the lack of net worth of the corporation the corporation could not obtain a loan for the permanent financing of the project. On December 12, 1961, Bowman, Dault and others made an application for permanent financing to Jones-Cox Mortgage Company in the amount of $107,500.00. On December 18, 1962, Jones-Cox issued a commitment for the loan to Sharp, Bowman and Dault. Neither the application nor the commitment was made in the name of the corporation, nor was any mention made of the corporation. On December 21, 1961, the corporation, through its officers, arranged for a corporate loan for temporary financing of the construction with Republic National Bank of Dallas in the amount of $107,500.00 for which the corporation executed its note and deed of trust as security. Construction was commenced and the structure was completed. Due to the fact that Jones-Cox Mortgage Company would not handle the permanent financing for the corporation, the president and secretary of Hereford Land Company, without any previous authorization, executed a deed on behalf of the corporation conveying the land to its officers and directors, Sharp, Bowman and Dault, who then borrowed the money for the permanent financing from Jones-Cox and executed a note and deed of trust to Jones-Cox for the sum of $107,500.00 which was then used to repay Republic National Bank. No consideration was paid by either Sharp, Bowman or Dault to Hereford Land Company for the deed to the property. They made no payments on the note to Jones-Cox Mortgage Company. The payments were made by either Hereford or by Apartment Information Bureau for the account of Hereford. Neither Sharp, Bowman or Dault received any rentals from the property. Hereford paid for all expenses and upkeep on the property. There was no agreement between Sharp, Bowman and Dault as individuals or as officers and directors of Hereford Land Company as to the transfer of the property from Hereford to them.

While the legal title to the property was thus in Sharp, Bowman and Dault, Globe Industries, Inc. recovered a judgment against Ray Dault and Mastercraft Aluminum Products Company in the amount of $4,666.12. The judgment was abstracted and filed on September 4, 1963.

The loan with Jones-Cox Mortgage Company went into default in December, 1963, at which time the Board of Directors of Hereford met and decided to sell the land in order to pay the indebtedness and au-tfiorized its president, Sharp, to execute the deed. On December 20, 1963, Sharp, Bowman and Dault sold the property to Michael V. McLane, who assumed the original Jones-Cox note in the amount of $107,500.00 and in addition thereto executed his vendor’s lien note payable to Sharp, Bowman and Dault in the amount of $8,000.00, securing same by subordinate deed of trust. Dor some reason,_ unexplained by the record, Carol Dault, the wife of Ray Dault, also joined as a party to this transaction.

Globe Industries, Inc. posted notice of foreclosure on the property at 3400 Cole Avenue in April, 1964, for execution sale on May 5, 1964. Appellants filed this suit to remove cloud on its title and to restrain the sale under execution on March 27, 1964.

. Appellants contend that the trial court abused his discretion in refusing to grant a temporary injunction pending the final outcome of the litigation because the above facts conclusively prove, or at least make a prima facie case showing that a resulting trust was created in favor of the corporation, Hereford, and that Dault held only a bare legal title, while the equitable title remained in Hereford and that Dault therefore had no interest therein subject to execution; hence, a sale under execution would amount to a cloud on Hereford’s title.

Appellee, on the other hand, contends that appellants have failed to make a prima facie case which would entitle it to a temporary injunction, because the deed showed upon its face that Dault and others paid a valuable consideration in the amount of “Ten and No/100 Dollars cash, and other good and valuable consideration” and that this, together with the fact that the deed contained Internal Revenue Stamps indicating a consideration of between $100.00 and $500.00 is sufficient to show a conveyance of both legal and equitable title, thus rebutting the prima facie case of a resulting trust in favor of Hereford and hence the trial court correctly refused the temporary injunction. Appellee further contends that the facts are insufficient to show a resulting trust, and that if any trust was created, same was an express trust, and not being reduced to writing same was void because of the Texas Trusts Act. The primary question presented for review is whether or not the trial court abused his discretion in refusing to grant the application for temporary injunction.

The rule is well established in this state that the granting or refusing of a temporary injunction is within the sound discretion of the district court, and that the court’s action will not be disturbed on appeal unless it clearly appears from the record that there has been an abuse of such discretion. It is equally well established that the trial court's discretion is not unlimited and does not extend to the erroneous application of the law to undisputed facts. Harding v. W. L. Pearson & Co., (Tex.Com.App.) 48 S.W.2d 964; Stowe v. Baldwin, (Tex.Civ.App.) 298 S.W.2d 943.

In approaching the problems before us it will be necessary to re-examine the facts which were presented to the trial court. The basic question presented by the facts involves a question of title. Insofar as the record reveals, the corporation never at any time authorized its officers to make a conveyance of the title. The officers simply made such a conveyance on their own volition and without any written or oral agreement on the part of either the corporation or any of the grantees in the deed. As pointed out before, no consideration was actually paid to the corporation although the deed recited consideration. No express agreements having been made, we therefore do not agree with appellee’s contention that the trust, if any, was an express trust. In our view, the undisputed facts are sufficient to show that even though legal title passed to the officers and directors, it passed in trust for the corporation and by operation of law created a resulting trust in favor of the corporation, the effect of which was to leave the equitable title in Hereford Land Company. The corporation’s title was thus a superior title, superior to the world, subject only to the mortgage.

“A suit to quiet title or to remove a cloud can be maintained only by a person having some interest in the property involved. A fee simple or otherwise incontestable title is no longer essential to relief. Under the blended system of law and equity, a holder of either legal or equitable title can maintain a suit to remove a cloud.” 47 Tex.Jur.2d, para. 12, pages 541, 542.

It is undisputed that the land was originally owned by Hereford prior to the time title was conveyed to its officers and directors. If the conveyance was a bona fide gift or was based upon valuable consideration the deed would convey both the legal and equitable title. There was no evidence showing a gift was intended. Therefore, if the deed was not supported by consideration, such a conveyance by the corporation to its officers would amount to nothing more than a conveyance of the bare legal title, with the equitable title remaining in the corporation.

Appellee contends, however, that appellants should not have been permitted to show, nor should the court have considered evidence on the lack of consideration because such evidence would be in violation of the parol evidence rule and the Texas Trusts Act, and that in the absence of such testimony the question of trusts was not presented. Our courts have held that parol evidence is admissible to prove the real consideration for a deed. Bradshaw v. McDonald, 147 Tex. 455, 216 S.W.2d 972; Shannon v. Shannon, (Tex.Civ.App.) 231 S.W.2d 986, 989.

The Texas courts have many times held that the legal and equitable ownership of property may be vested in different persons, especially in situations where a question of trusts arises. Trusts may be divided into two classes, express and implied. It has' been said that an express trust arises either by express agreement or by the direct and positive acts of the parties by some writing or deed. Wacasey v. Wacasey, (Tex.Civ.App.) 256 S.W. 1020, 1022.

When there has been no explicit language importing an intention to create a trust, a court of equity may infer that such was the intention of the parties, either from what they said or from what they did. The courts and the authors sometime refer to this latter class of trusts as implied trusts or constructive trusts or resulting trusts.

“According to the American Law Institute, ‘A resulting trust differs from an express trust in the manner of its creation, and in the nature and extent of the duties of the trustee.’ It is a species of implied trust — one that arises from what the parties did, not from what they said.” " 42 Tex.Jur., page 635; Elbert v. Waples-Platter Co., (Tex.Civ.App.) 156 S.W.2d 146.
“Where, without receiving any consideration and with no intention to make a gift, A transfers property to B, a trust results to A, though there is no proof that B agreed to hold the property in trust.” 57 Tex.Jur.2d, para. 49, pp. 436, 437; Jopling v. Caldwell-Degenhardt, (Tex.Civ.App.) 292 S.W. 958, rev’d on other grounds, Benton Land Co. v. Jopling, Tex.Com.App., 300 S.W. 28; Shannon v. Shannon, supra; Jackson v. Hernandez, 155 Tex. 249, 285 S.W.2d 184.

The acts and conduct of the parties when taken together with all the other facts and circumstances tends to establish a prima facie case showing the equitable title to be in Hereford Land Company and hence presents questions of title which should be finally determined by the court in the suit to remove cloud. A case which we consider to be in point is the case of Weart v. Mahone, (Tex.Civ.App.) 176 S.W.2d 197, 202, wherein a similar situation was presented and the court upon reversing the case and granting the temporary injunction said:

“We are inclined to agree with plaintiff that the holding made in Stolte v. Karren, Tex.Civ.App., 191 S.W. 600, 60S, writ refused, lays down an exception to the general rule that the action of the trial court in granting or refusing a temporary injunction will be disturbed upon appeal only when it appears from the record that he has abused his discretion. In that case the trial court declined to grant a temporary injunction to sell land under execution, and on appeal the court held that, by reason of Section 4, Article 4642, where the plaintiff sought to have the sale enjoined, and she made out a prima facie case that she owned the title to the land sought to be sold as belonging to another, the court erred in refusing to grant the injunction. Said the court of the evidence presented to the trial on the hearing: ‘This presents a material issue of fact which appellant (the plaintiff) has the legal right to have determined by the jury upon the trial of the main suit and not predetermined in an ancillary proceeding by the court in chambers. She (plaintiff) has the further legal right to have the status of the property involved in this litigation remain as it is until the suit is determined upon its merits.’ The court in effect held that Section 4 of Art. 4642 established as the public policy of the State that the stability and certainty of land titles is of greater moment than the prevention of inconvenience to creditors. But in order for a plaintiff to come within the exception established by the Stolte case, such plaintiff must have exhibited in the trial court upon the hearing such evidence as would constitute a prima facie case upon a trial on the merits.”

It has likewise been held that a judgment creditor or an officer of a corporation who holds only the legal title for the corporation cannot defeat the corporation’s title by levying execution and purchasing the property at execution sale. Scott v. Farmers’ & Merchants’ Nat. Bank, 97 Tex. 31, 75 S.W. 7.

While we make no attempt to pass on the merits of the case, it appears to us that since the undisputed facts established a prima facie case showing superior equitable title to be in Hereford Land Company, a temporary injunction pendente lite should have been granted. If Dault held nothing but the naked legal title, he had no interest in the property on which appellee could levy and sell at execution, and to allow such sale would result in nothing but a cloud on appellants’ title.

“ * * * our system of procedure is such that legal rights cannot be finally determined upon a hearing relating to the wisdom or expediency of issuing a status quo order. Deliberate action is essential for the accurate determination of legal rights and upon occasion this can be secured only by issuing a temporary decree protecting a status quo. Ordinarily, the hearing upon the temporary injunction is not a substitute for, nor does it serve the same purpose as the hearing on the merits.” Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 421.

It is our opinion that the trial court was in error in his application of the law to the undisputed facts and that the judgment must therefore be reversed.

For the reasons given in our discussion, the judgment will be reversed and the trial court instructed to order the issuance of a temporary injunction as prayed for by appellants.

Reversed and remanded, with instructions.


author: WILLIAMS, Judge.

text:
    John GOOD, Appellant, v. RUSSELL FORK COAL COMPANY et al., Appellees.

      Court of Appeals of Kentucky.
    March 5, 1965.
    Combs & May, Dan Jack Combs, Pike-ville, for appellant.
    Harry C. Campbell, Pikeville, for appel-lees.
   WILLIAMS, Judge.

The Workmen’s Compensation Board dismissed a claim for disability filed by appellant John Good. On appeal to the Pike Circuit Court the Board’s order was affirmed. From that judgment this appeal is taken.

Appellant worked for appellee Russell Fork Coal Company for many years until December 1958, at which time he was released due to a reduction in the working force. He was called back to work in April 1959 and directed to take a pre-employment physical examination. He actually worked one day before the result of the physical examination became known. The recommendation of the doctor who made the examination was that appellant not be employed in the mines where he would he exposed to dust. Upon receipt of that report, and based upon the doctor’s recommendation, appellant’s services were terminated. Claim for compensation was made more than two years later, on October 30, 1961.

The Board dismissed the claim on the ground it was barred by the Statute of Limitations, KRS 342.316(3), which provides in part:

“(3) The right to compensation under this chapter for disability resulting from an occupational disease shall be forever barred unless a claim is filed with the Workmen’s Compensation Board within one year after the last injurious exposure to the occupational hazard or after the employe first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted the disease, whichever shall, last occur * ‡ * »

Appellant insists that he was not sufficiently apprised of the fact that he had silicosis at the time of his last dismissal by appellee, and, as a consequence, the statute of limitations did not begin to run at that time. It is true the doctor who examined appellant testified that in his opinion he was suffering from emphysema, but the appellant apparently chose to ignore the doctor’s diagnosis. He testified that at the time his employment was terminated he told the superintendent he had been advised by the doctor that he had silicosis. He also testified that he told the superintendent at that time that he was expecting workmen’s compensation benefits. It is apparent from his own statement, therefore, that he knew he had a compensable disease and was anticipating compensation as a result thereof. We also note that appellant stated in his application for adjustment of claim that his employment was terminated because he contracted an occupational disease.

Three doctors testified that appellant was suffering from silicosis, and two doctors testified that he was not. The proof was ample to sustain the Board’s conclusion that he was suffering from a compensable disease and that he had knowledge of the fact at the time of his last employment.

Appellant insists, however, that there was no evidence that he was disabled at the time of his last employment and that the statute does not commence to run until disability occurs. It is true, as first pointed out in Mary Helen Coal Corporation v. Chitwood, Ky., 351 S.W.2d 167 (1961), that the statute does not commence to run unless and until the employee has a disability. Although the Board did not in so many words find that the appellee was disabled, it did find that he was suffering from silicosis and had not filed his claim within the period allotted by the statute of limitations. Had he not been disabled the statute would not have commenced to run and the Board would not have dismissed his claim. It is not significant that the Board failed to state that disability existed.

As a matter of fact, disability did exist in the most obvious fashion. Appellant returned for work and wanted to work but was denied the opportunity solely because he was afflicted with a disease which turned out to be silicosis. The law does not contemplate that a worker must be disabled from any and every kind of work. It does contemplate that if he is unable to do the work which he regularly performs he is disabled and entitled to compensation as the result of such disability. The existence of an occupational disease which prevents a worker from pursuing his regular type of employment is as surely disabling as one where he is confined to his bed and cannot reach his place of employment

We conclude the appellant was apprised . of the fact that he was suffering from an occupational disease and was disabled therefrom.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    UNITED FUEL GAS COMPANY, Appellant, v. John C. CLARKE et al., Appellees.
    Court of Appeals of Kentucky.
    March 5, 1965.
    W. H. Dysard, Dysard, Johnson & Welch, Ashland (C. E. Goodwin; H. L. Snyder, Jr., Charleston, W. Va., of counsel), for appellant.
    Thomas E. Phipps, Ashland, for appellees.
   WADDILL, Commissioner.

This action was filed by appellant to condemn a right of way across the southeast portion of appellees’ farm for the purpose of constructing, operating and maintaining a pipe line for the transmission of gas in and through the Commonwealth of Kentucky. The jury awarded appellees $1,192.50 as the reasonable market value of the easements taken (approximately three acres) and the further sum of $6000 as damages resulting to appellees’ adjacent 1125-acre tract.

Several grounds are urged for reversal of the judgment, one of which is that the verdict is based on incompetent and prejudicial testimony.

In substantiating the claim of damage, the trial court, over the objection of appellant, permitted appellees’ valuation witnesses to testify that the portion of appellees’ farm located near the easements being taken was susceptible of being laid off into eight building lots, each worth $1000. Also, testimony to the effect that the prospective lot values would be adversely affected by the taking and would result in $8000 damage to appellees’ farm. Testimony of a similar character was held incompetent and prejudicial in Commonwealth, Dept. of Highways v. Lawton, Ky., 386 S.W.2d 466, (rendered January 21, 1965) and in Commonwealth, Dept. of Highways v. Evans, Ky., 361 S.W.2d 766. We adhere to the rule set forth in the foregoing cases and hold that the testimony ■concerning prospective lot values was incompetent and prejudicial in that it result-ad in excessive damages being awarded.

It is next contended that the court erred in refusing to let a witness testify as -to the value of an easement the appellant Rad formerly acquired from appellees but which was being presently abandoned. The ■short answer to this contention is that, in the absence of an avowal or other showing .as to what the witness would testify to, this Court will not review the question of error. East Kentucky Rural Electric Cooperative Corp., Inc. v. Smith et al., Ky., 310 S.W.2d 535.

Other alleged errors are specifically reserved.

The judgment is reversed with directions to set it aside and to grant appellant a new rtrial.

HILL, Judge, dissenting.