author: KLINGEMAN, Justice.

text:
    Bill RAU, Appellant, v. MODERN SALES & SERVICE, INC., Appellee.
    No. 14548.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 23, 1967.
    Rehearing Denied March 22, 1967.

      Moursund, Ball & Young, San Antonio, for appellant.
    Edwin W. Carp, W. W. Palmer, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is an appeal from a judgment of the trial court in favor of the plaintiff, Modern Sales & Service, Inc., against the defendants, Edward H. Merrick, Jr., and Bill Rau, jointly and severally, in a suit on a promissory note signed by Edward H. Merrick, Jr., and Bill Rau, payable to its order. The trial court also held that defendant Rau was not entitled to recover on his cross-action against defendant Merrick. Trial was by the court without a jury. Defendant Merrick did not prosecute an appeal.

The material findings of fact filed by the trial court were: That Bill Rau was not an accommodation maker; that defendants, Edward H. Merrick, Jr., and Bill Rau, were co-makers for a valuable consideration ; that plaintiff did not make any representation to the defendant Edward H. Merrick, Jr., or Bill Rau relative to the payment of said promissory note signed by Edward H. Merrick, Jr., and Bill Rau, jointly and severally; a purported agreement dated the 11th day of November, 1964, is not a third party beneficiary contract, for the reason that the instrument on its face reflects that Charles McKinney signed said instrument as a witness only, and there is no evidence that Gulf States Theatres, Inc., has signed or ratified said purported contract or agreement; that plaintiff never at any time agreed to an extension of said promissory note signed by the defendants, Edward H. Merrick, Jr., and Bill Rau, as co-makers.

Appellant urges that there is no evidence to support these findings and that the trial court erred in entering judgment against him since the undisputed evidence establishes that he was an accommodation maker on the instrument and was discharged by an extension granted to Merrick by appel-lee, without appellant’s consent.

Under the Negotiable Instruments Act an accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Art. 5933, Sec. 29, Vernon’s Ann.Civ.St. Under Sec. 24 of said Art. 5933, every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.

It appears from the evidence that Bill Rau was the operator of a theatre in San Antonio, and that negotiations were carried on between Rau and Merrick relative to the acquisition of said theatre by Merrick, and that one of the considerations for the purchase of such theatre was the assumption of a certain indebtedness against said theatre owed to Modern Sales and Service, Inc. Defendant Rau contends that such indebtedness was not his indebtedness but that of a corporation, Al-Ra Theatres, Inc., although appellee contends that such corporation was the alter ego of defendant Rau. It appears from the record that Rau was the president of such corporation and a large stockholder. In the process of such negotiations, a meeting was held between the two defendants and Charles McKinney, an officer of Modern Sales & Service, Inc., and in connection therewith the note sued on was executed by both defendants, Merrick and Rau.

The Negotiable Instruments Act, Art. 5933, § 25, defines value as any consideration sufficient to support a simple contract. An antecedent or pre-existing debt constitutes value or consideration. Dallas Handbag Co. v. Majestic Factors Corp., Tex.Civ.App., 397 S.W.2d 238, writ ref’d n. r. e.; Schwarz v. Straus-Frank Co., Tex. Civ.App., 382 S.W.2d 176, writ ref’d n. r. e. In order that one may avail himself of the defense of an accommodation maker he must not be the recipient of any consideration deemed valuable in law. His act in executing the paper must be void of present or anticipated profit, gain or advantage. Robertson v. City Nat. Bank, 120 Tex. 226, 36 S.W.2d 481 (1931); Holtermann v. Conrad, Tex.Civ.App., 143 S.W.2d 791, writ dism’d; Commercial Inv. Co. of Uvalde v. Graves, Tex.Civ.App., 132 S.W.2d 439, writ ref’d; Barr v. Huitt, Tex.Civ.App., 76 S.W.2d 587, no writ.

Appellant contends that he received no monetary consideration for executing said note. The mere fact that one signing a note received no part of the consideration therefor does not constitute him an “accommodation party” within the Uniform Negotiable Instruments Act, and a note signed by one receiving no monetary consideration therefor will be deemed an "accommodation note” for payee only when executed for the sole purpose of negotiation by payee and thereby to procure credit. First Nat. Bank of Fort Worth v. Brown, Tex.Civ.App., 172 S.W.2d 151, writ ref’d; Brinker v. First Nat. Bank, Tex.Civ.App., 16 S.W.2d 965 (reversed upon other grounds, Tex. Comm’n App., 37 S.W.2d 136); Paden v. American State Bank & Trust Co., Tex.Civ.App., 103 S.W.2d 243, writ dism’d. There is no evidence in the record that such note was executed for the purpose of negotiation by the payee, Modern Sales & Service, Inc., or for said payee to obtain credit. The finding of the trial court that Rau was not an accommodation maker as to appellee is sufficiently supported.

Appellant, Rau, also contends that under the undisputed evidence he had been discharged from liability by an extension given by appellee, Modern Sales & Service, Inc., to Merrick. Assuming Rau was an accommodation maker, there is no evidence in the record to show that appellee ever entered into such an extension agreement as would discharge appellant Rau. The evidence indicates that there was some discussion between defendant Merrick and an officer of appellee corporation as to a different amount of monthly payment, but there is no evidence that a valid or binding extension agreement of any sort was ever entered into between appellee'and Merrick. Appellant apparently relies upon an Ex Parte Statement dated November 11, 1964, signed by Edward H. Merrick, Jr., and introduced into evidence in the trial court by appellant, Rau, which provides, “In this agreement with Mr. Solomon and myself it is understood that one hundred dollars per month will be made payable for the Modern Sales & Service, Inc., at Dallas, Texas, until the indebtedness which was incurred by Bill Rau and Charles Albert be eliminated. This includes the note signed by the undersigned and Bill Rau for this indebtedness,” and constituting an extension agreement. Such instrument was executed only by Merrick, and never signed by ap-pellee, Modern Sales & Service, Inc., and there is no evidence that such instrument was ever accepted by appellee, or was ever carried out. Such instrument is vague, indefinite, conditional and uncertain, and could not operate as a valid or binding extension of such note. “To effectuate a release of the surety, the agreement for an extension of time for payment or performance must be made by or on behalf of the owner of the obligation with the maker or his duly authorized agent; it must be binding on them and based on a valid consideration; and it must be unconditional, or, if made on a condition precedent, it must be shown that the condition has been complied with.” 53 Tex.Jur.2d, § 45, p. 612. Wehmeyer v. Dominguez, Tex.Civ. App., 286 S.W.2d 194, no writ; Allen v. Oakes, Tex.Civ.App., 288 S.W. 479, writ dism’d. We conclude that the court was not in error in its holding that appellee never at any time agreed to an extension of said promissory note signed by Merrick and Rau.

Appellant also complains of error in the holding of the trial court that the instrument above discussed, dated November 11, 1964, was not a third party beneficiary contract. Such instrument is executed by Merrick alone. It refers to an agreement made by Merrick with one Mr. Teddy Solomon of Gulf States Theatres, Inc., whereby certain payments were to be made payable to Modern Sales & Service, Inc. Such instrument is not signed by either Mr. Solomon or Gulf States Theatres, Inc., or by appellee, Modern Sales & Service, Inc. There is no evidence that such instrument was ever accepted by Gulf States Theatres, Inc., or by appellee, Modern Sales & Service, Inc. In order for such an instrument to have been effective there must be an acceptance of the contract by the person for whose benefit it is made. Edwards v. Beals, 271 S.W. 887 (Tex. Comm’n App.1925); Benavides v. Laredo Nat. Bank, Tex.Civ.App., 91 S.W.2d 372, no writ; Hawkins v. Western Nat. Bank, Tex.Civ.App., 145 S.W. 722, writ dism’d; 13 Tex.Jur.2d § 353, p. 630. The court’s holding that such instrument is not a third party beneficiary contract is supported by the evidence.

Appellant also complains that the trial court was in error in holding that Rau was not entitled to recover on his cross-action against his co-defendant Merrick, and contends that under the undisputed evidence Merrick assumed the indebtedness for which the note sued on was executed, and that, as between Rau and Merrick, appellant was an accommodation maker and Merrick was the principal obligor of said note, and that under the evidence appellant is entitled to recover over against Merrick any and all sums as appellant may pay to appellee pursuant to such judgment. It appears undisputed that the indebtedness for which the note sued on was executed was assumed by Merrick, and Merrick himself so testified. The record does not disclose that Merrick contested the cross-action of appellant. While it is clear that Rau was not an accommodation maker as to appellee, the evidence sufficiently demonstrates that as between Rau and Merrick such a relationship of principal-surety or accommodation relationship existed as would have entitled Rau to recover against Merrick on his cross-action, and the court erred in denying such cross-action. Where accommodation maker has been compelled to pay amount of note, he has right to recover over against accommodated party, law implying a contract on part of the latter to indemnify accommodation maker against loss. Felker v. Thomas, 83 S.W.2d 1055 no writ; Henslee v. First Nat. Bank of Whitewright, Tex.Civ.App., 314 S.W.2d 881, no writ; Winkler v. First Nat. Bank of Pecos, Tex.Civ.App., 134 S.W.2d 341, no writ; 53 Tex.Jur.2d, § 102, p. 665.

The judgment of the trial court in favor of appellee, Modern Sales & Service, Inc., is affirmed, but such judgment is reformed to provide that appellant, Bill Rau, have and recover from defendant Edward H. Merrick, Jr., any and all sums appellant may pay to appellee pursuant to appellee’s judgment.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    Carolyn J. DANIELS, Appellant, v. Donald Dale DANIELS, Appellee.
    No. 7701.
    Court of Civil Appeals of Texas. Amarillo.
    March 20, 1967.
    Rehearing Denied April 24, 1967.
    William T. Brownlee, Perryton, for appellant.
    H. M. Hood, Borger, for appellee.
   CHAPMAN, Justice.

Carolyn J. Daniels originated this suit for divorce against her husband, Donald Dale Daniels, for custody of their minor child, Devon Dale Daniels, and for child support. The husband answered the petition by a general denial of the allegations of plaintiff’s petition and filed a cross-action himself for divorce and for custody of the minor child. Trial was to a jury, which found that the conduct of the husband toward the wife was not of such nature as to render their living together insupportable; that the conduct of Carolyn J. Daniels toward her husband constituted excesses, cruel treatment or outrages of such a nature as to render their further living together insupportable; and that considering only what would be for the best interests of the minor child, his best interests and welfare would be best served by placing him under the care, custody and control of his father.

From such answers by the jury the court rendered a judgment for Donald Dale Daniels for divorce and custody of their minor child, subject to reasonable visitation by the mother under reasonable atid proper circumstances and conditions. It is from such judgment appeal is perfected to this court upon four points of alleged error.

The first three points of alleged error having not been made the basis of assignments of error in appellant’s motion for new trial, they cannot be made the basis of points of error on appeal, since none of the exceptions are present which are set out in Rule 324, Vernon’s Ann.Texas Rules of Civil Procedure, to the prerequisite that points of error on appeal must be based on assignments of error in the motion for new trial in jury cases. Rule 324, V.A.T.R.; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960).

Assignments of error as to the evidence of which parent was a fit and proper person to have the care, custody and control of the minor child were made in the motion for new trial but no points are brought forward in the brief on those questions. Therefore, they are not before us.

The only point brought forward upon which a proper predicate was laid in the motion for new trial so as to entitle the point to be considered by this court on appeal is Point 4 stating: “The trial court erred in refusing to permit appellant to cross-examine the appellee regarding his draft and military status which is material to the question of custody of the minor child.”

We hold the point is without merit. In the first place counsel for appellant proved by Mr. Daniels what his draft status was at that time and what the board had advised him before an objection was lodged to the testimony. Secondly, the jury found that the mother was not a fit and proper person to have the custody of the child. No point is brought forward on the sufficiency of the evidence to support that finding by the jury. Thirdly, the father testified if he were awarded the custody of his child he would take him to the home of his parents who live on a farm in Missouri. That farm family shows in the record to be a wholesomej middle-class, hard-working farm family with a seven-room modern farm home. There was sufficient evidence to support the jury finding that the welfare of the child would be better served in that home than in the trailer-house environment surrounding the mother.

Accordingly, the judgment of the trial court is affirmed.


text:
    Floyd HUGGINS, Appellant, v. Lang KINSEY, Appellee.
    No. 14573.
    Court of Civil Appeals of Texas. San Antonio.
    March 22, 1967.
    Rehearing Denied April 19, 1967.

      Groce, Hebdon, Fahey & Smith, Damon Ball, San Antonio, for appellant.
    Yates & Yates, Schulz & Hanna, Abilene, for appellee.
   KLINGEMAN, Justice.

Writ of error from a default judgment rendered in the District Court of Kimble County, Texas, against appellant, a resident of the State of Kansas, in an automobile accident personal injury case. Appellee filed suit in the District Court of Kimble County for injuries alleged to have been sustained by him as a result of an automobile collision in Kimble County involving a car being driven by appellant. Appellee’s petition alleged that appellant was a resident of the State of Kansas. A “NonResident Notice” under the provisions of Rule 108, Texas Rules of Civil Procedure, was personally served on appellant in Johnson County, Kansas, but no other citation was ever served upon him. Appellant filed no answer and made no appearance of any kind in said suit. Default judgment was thereafter rendered in said case against appellant in the amount of $15,000.00.

Appellant contends that no valid process in said cause was ever issued or served upon him; that the court did not acquire jurisdiction over the person of appellant by reason of such “Non-Resident Notice”; and that the trial court erred in rendering judgment against appellant because the court had no jurisdiction over the person of appellant and no power to render judgment against him. Appellant contends that the landmark case of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, by the Supreme Court of the United States is controlling in this case. Appellee maintains that Pennoyer v. Neff has been so modified and “whittled down” by subsequent decisions of the Supreme Court, including Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091; Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278; International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; and McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, that it does not apply in the case before us. These cases involve the construction of certain state statutes providing for methods of service upon non-residents, chiefly of the nature of our Non-Resident Motorist Act, Art. 2039a Vernon’s Ann.Civ.St., and our so-called “long arm” statute, Art. 2031b, Vernon’s Ann.Civ.St., although Milliken v. Meyer was a suit in a Wyoming court between two citizens of Wyoming, but where notice of the suit was served upon the defendant in Colorado. The Supreme Court in that decision held that the authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state, and that domicile in a state is alone sufficient to bring an absent defendant within reach of a state’s jurisdiction for purpose of a personal judgment by means of appropriate substituted service. Pennoyer v. Neff has been followed by our Texas Supreme Court in York v. State, 73 Tex. 651, 11 S.W. 869; August Kern Barber Supply Co. v. Freeze, 96 Tex. 513, 74 S.W. 303; and Horst v. Lightfoot, 103 Tex. 643, 132 S.W. 761. Appellee cites no Texas cases overruling these decisions.

Appellee concedes that he could have obtained jurisdiction over appellant by service of process under the provisions of our Non-Resident Motorist Statute, Art. 2039a, supra, but instead he chose to utilize the provisions of one of our Rules of Civil Procedure, No. 108, to obtain service on the non-resident. The case of Bonanza, Inc. v. Lee, 337 S.W.2d 437 (Tex.Civ.App. 1960, no writ), was a personal injury suit arising out of an automobile collision involving service of process on a non-resident under Rule 108, T.R.C.P. The Court held that the part of Rule 108 which provides for service on a defendant who is a nonresident of this State will not lend validity to plaintiff’s personal judgment against defendant, and that service in the State of Oklahoma on a non-resident defendant would not support a personal' judgment. The case of Roumel v. Drill Well Oil Co., 5 Cir., 270 F.2d 550, involves an action brought in a Texas court against a nonresident of the State of Texas, in which citation was issued and served on the nonresident under the authority of Rule 108, T.R.C.P. The United States Court of Appeals, Fifth Circuit, stated that it is clear that Texas had not attempted by Rule 108 of its Rules of Civil Procedure to vest jurisdiction in its courts to render personal judgments against non-residents, and held that service under Rule 108 gave the court no jurisdiction to render personal judgment against the defendant. In a recent Texas case involving service on a non-resident under Rule 108, the Court held that where appellant’s cause of action was in personam, citation under Rule 108 did not bring such non-resident before the court so that a personal judgment could be rendered against him, and cited Pennoyer v. Neff as its authority therefor. Henry v. Reno, Tex.Civ.App., 401 S.W.2d 118, writ ref’d n. r. e.

Appellant, having now appeared to attack the judgment, is presumed to have entered his appearance to the term of the court at which the mandate shall be filed. Rule 123, T.R.C.P. The default judgment against appellant is reversed and set aside, and the cause remanded to the trial court for a new trial.

      . Appellant did not make any special appearance as is authorized by Rule 120a, Texas Rules of Civil Procedure.


author: MASSEY, Chief Justice.

text:
    K. H. WILLIAMS, Appellant, v. WESTCHESTER FIRE INSURANCE COMPANY, Appellee.
    No. 16817.
    Court of Civil Appeals of Texas. Fort Worth.
    April 7, 1967.

      Short & Smith, and Donald E. Short, Wichita Falls, for appellant.
    Fillmore & Fillmore, and H. Dustin Fillmore, Wichita Falls, for appellee.
   OPINION

MASSEY, Chief Justice.

In this compensation case the claimant ■employee appealed from what he considered an inadequate award by judgment rendered upon a jury verdict.

Claimant seeks a remand contending that certain of the findings of the jury were so against the great weight and preponderance of the evidence as to be clearly wrong. The special issues in answer to which the jury findings were returned were those upon which the claimant carried the burden of proof.

The jury found that the claimant sustained an accidental injury in the scope and course of his employment on August 4, 1965 as a result of which he sustained temporary total incapacity of fifteen (15) weeks. Claimant believes that such a period of incapacity was much too short. It is of importance to note the further findings occasioned under the theory advanced by the insurance company that all of claimant’s incapacity was limited to and caused solely by the hernia which resulted from claimant’s injury on August 4, 1965. No part of claimant’s theory of recovery, under his pleading, was predicated upon any claim for specific compensation under the Texas Workmen’s Compensation Law in hernia cases. None of the usual issues applicable to hernia cases were submitted. It seems that there was no question but that one result of claimant’s accident was his hernia. This was successfully operated and all the expenses of the operation and treatment of the hernia were paid by the insurance company. Trial, under claimant’s theory, was upon his claim for compensation under the general provisions of the law because of a back injury involving his herniated disc, plus payment of the costs of hospitalization, treatment, etc., separately occasioned because thereof.

It is obvious from the findings that the jury accepted and believed the insurance company’s contentions that no back injury was involved in claimant’s accident of August 4, 1965, and that his injury was a strain resulting in his hernia, which had been operated and from the effects of which he had recovered by the end of fifteen (15) weeks.

Our test of the whole record, therefore, is directed to evidence bearing upon the question of whether claimant’s claim because of back injury was properly rejected by the jury. We have concluded that it was. The claimant and his brother were carrying some timbers from one place to another and releasing them. In the course thereof claimant had made a statement indicating that he had injured himself. He continued to work the balance of the day but did not return subsequently. Thus, the only evidence of the type and kind of injury sustained was through the testimony of the claimant himself and through the testimony of the co-worker, his brother, as to the statement claimant made relative thereto. There was medical testimony but the opinion testimony of the medical witness was demonstrated to have been necessarily predicated upon the credibility of the claimant’s statements to him relative to the time and manner of the injury.

Through use of a deposition given by the claimant in an earlier lawsuit relative to a back injury sustained by him some ten (10) years prior to the accident giving rise to the instant suit his testimony relative to the nature of his injury and disability stood impeached. He was, of course, an interested party whose testimony the jury was entitled to disbelieve. His “eye witness,” the brother, initiated preparation of the “Employer’s First Report of Injury” to the Industrial Accident Board. He gave the information appearing on the face thereof to the secretary who typed it. Thereon claimant’s “Nature of Injury” is recited as: “Rupture or pulled muscle in the right side of abdomen.” The jury was certainly entitled to disbelieve the testimony of such witness, given on direct examination, to the effect that claimant “told me he had thrown a kink in his back.” We have previously mentioned the testimony of claimant’s medical witness. Where the testimony of the claimant would not be binding upon a jury neither would that of a medical witness when the credibility of his testimony is manifestly dependent upon the credibility of the information imparted to the witness by the claimant. In any event, opinion evidence only serves to raise and support an issue, not to determine it.

It follows, therefore, that the jury findings of which claimant complains were within the jury’s discretion to determine and not proper to be disturbed by this court.

None of the findings were against the great weight and preponderance of the evidence. We cannot say that the jury’s verdict resulted in a wholly inadequate award under the evidence in the record.

The insurance company does not complain of the judgment, though there is some question as to its propriety where a hernia case is obviously presented though the recovery sought is not predicated thereon. It was upon motion of the company that judgment of the lower court was rendered.

Judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    Robert F. CRAWFORD, Appellant, v. CITY OF HOUSTON et al., Appellees.
    No. 4602.
    Court of Civil Appeals of Texas. Waco.
    April 13, 1967.
    Rehearing Denied April 27, 1967.

      Hugo A. Touchy, Houston, for appellant.
    William A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, Houston, for ap-pellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Crawford, from an order of the Houston Firemen’s and Policemen’s Civil Service Commission, sustaining appointment by Houston Police Chief Short, of R. O. Queen, as Superintendent of Identification Bureau of the Houston Police Department.

Plaintiff sued City of Houston; Chief Short, and Houston Civil Service Commission, alleging he, Queen, and another, took the Civil Service Examination for Superintendent of Identification Bureau of Houston Police Department; that plaintiff scored highest with 9125, and Queen scored second highest with 91.08; that Police Chief Short appointed Queen. Plaintiff prayed for injunction against the appointment of Queen, and further prayed that plaintiff be ordered appointed Superintendent of Identification.

Trial was to a jury. At the close of plaintiff’s evidence defendants moved for instructed verdict. The trial court withdrew the case from the jury, held defendants had not acted arbitrarily, unreasonably, capriciously or fraudulently, and entered judgment that plaintiff take nothing.

Plaintiff appeals on six points, contending: the trial court erred in not holding:

1) Plaintiff should be appointed Identification Bureau Superintendent.
2) Chief Short’s reasons for not appointing plaintiff were invalid as a matter of law.
3) The manner in which the hearing of the Civil Service Commission was held showed defendants acted arbitrarily, unreasonably, capriciously or fraudulently.
4) A fact question existed as to whether Police Chief Short’s reasons were valid.

A vacancy existed in the position of Identification Bureau Superintendent of the Houston Police Department. Three members of the Police Department took the examination. Plaintiff Crawford scored highest with 91.25; and Queen scored second highest with 91.08. Police Chief Short wrote two letters to the Civil Service Commission setting out why he was appointing Queen. Such reason in essence was, (that while both men were excellent men), that Queen had experience in supervision, and would be in his judgment a better supervisor. Plaintiff requested the Civil Service Commission to review the reasons given by Chief Short in appointing Queen. The Commission held a hearing which was attended by plaintiff, and subsequently voted to uphold the appointment of Queen. Plaintiff filed suit in District Court seeking to have himself adjudged entitled to the position.

Chief Short testified he appointed Queen because he considered Queen better qualified to serve as Supervisor of Identification. Chief Short’s letters to the Commission are in evidence and state substantially the same thing as testified by Chief Short on trial.

There is nothing in the record to even suggest that Chief Short or the Civil Service Commission acted arbitrarily, unreasonably, capriciously, or fraudulently.

Section 10, Article 1269m Vernon’s Ann. Tex.Civ.St. provides for the appointment in instances as here “of the person with the highest grade, except there be a valid reason why such appointment should be given to the one making the second or third highest grade.” Section 14E, Article 1269m V.A.T. S. provides that the Head of Department (Chief Short) “shall appoint the person having the highest grade, except where such Head of the Department shall have a valid reason for not appointing such highest name, and in such cases he shall, before such appointment, file his reasons in writing, for rejection of the higher name or names with the Commission, which reasons shall be valid and subject to review by the Commission. upon the application of such rejected person.”

The record reflects that Chief Short complied with the statutes; he appointed Queen because he considered him better qualified of the two men to serve as a Supervisor in the Identification Bureau; and so notified the Civil Service Commission; which reviewed such reason and deemed same valid.

The trial court reviewed the findings of the Commission, and is bound by the findings of the Commission if same find reasonable support in substantial evidence. Board of Firemen’s Relief & Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181; Firemen’s & Policemen’s Civil Service Com., etc. v. Shaw, CCA (n. r. e.), 306 S.W.2d 160.

The record reflects the findings and action of the Civil Service Commission had reasonable support in substantial evidence; and that such action was not arbitrary, unreasonable, capricious or fraudulent.

The judgment of the trial court is correct. All of plaintiff’s points and contentions are overruled.

Affirmed.


author: SELLERS, Justice.

text:
    SOUTHERN LIFE & HEALTH INSURANCE COMPANY, Appellant, v. Gordon GRAFTON, Appellee.
    No. 281.
    Court of Civil Appeals of Texas. Tyler.
    April 13, 1967.
    Rehearing Denied May 4, 1967.

      Bath & Turner, Robert M. Bath, Henderson, for appellant.
    Gordon Wellborn & Rex Houston, Vaughan O. Stewart, Henderson, for appel-lee.
   SELLERS, Justice.

We take the following statement of the nature and results of suit from Appellant’s Brief:

“Plaintiff’s suit is on a policy of life insurance issued by the Defendant on the life of Plaintiff’s wife on August 1, 1965, Plaintiff alleging that the wife suffered a fall from a scaffold on September 30, 1965, and received serious injuries from which she died on October 16,1965, Plaintiff alleging that he is entitled to recover the sum of $2,000.00, $1,000.00 attorney’s fees, and 14% statutory penalties.
“The Defendant specially denied that the policy of insurance on the life of Plaintiff’s wife was in force and effect at the time of her death because the policy provides:
“ ‘This policy shall take effect on the date of issue provided the assured is then alive and in sound health and free from accidental injury.’
“The Defendant alleged that at the time the policy was issued, the insured, Marjorie Grafton, was not in good health. The Defendant tendered a return of premiums received on the policy in the sum of $12.00. Because of false representations made in the application of insurance, which amounted to fraud, the Defendant alleged that Plaintiff was not entitled to recover.
“The case went to trial on April 5, 1966, before the Court without a jury and the Court entered judgment on August 5, 1966, allowing Plaintiff a recovery of $2,940.00 and costs of court.
“The Defendant, in open Court, gave notice of appeal to the Court of Civil Appeals and did, on the 1st day of September, file its supersedeas bond in the amount of $5,000.00, conditioned as re-, quired by law.
“On August 11, 1966, the Appellant requested Findings of Fact and Conclusions of Law, and' the Court did, on the 21st day of September, 1966, file in this cause its Findings of Fact and Conclusions of Law.”

As appears from the above statement of the case by appellant, its defense to this suit is that insured was not in good health at the time the policy was issued and that she was suffering from a disease known as “diabetes mellitus.” .

The appellee testified that he and his wife were married on October 15, 1956, and that Mrs. Grafton died on October 16, 1965. At the time of her death, Mrs. Grafton and her husband were living in Kilgore, Texas. The life insurance policy in question was issued to Mrs. Grafton on August 1, 1965. The policy provided that the insured, on the date of issuance of the policy, must be in sound health and free from accidental injury.

Appellee further testified that during the past several months prior to the issuance of the policy, his wife had not taken any kind of medicine and that she was working eight to ten hours per day. Mrs. Grafton had gone into the business of making figurines from plaster about five years earlier while she and her husband were living in Joinerville, Texas. She not only made the figurines but also peddled them in her automobile. During the several months preceding August 1, 1965, Mrs. Grafton was able to work full time in her plaster business and still do her housework. She made no complaint of pain to her husband during these periods of time.

On September 30, 1965, appellee and his wife were standing on a scaffold putting tar paper on the roof of the building where Mrs. Grafton made and stored her plaster products. The scaffold was about six feet above the ground. The scaffold broke and both appellee and his wife fell to the ground. Mrs. Grafton was unconscious for about two to three minutes, and two hours after the fall, appellee took his wife to the hospital where she was hospitalized by Dr. Echols. This was on a Thursday night and she remained in the hospital until the following Monday at which time she was released to go home. Mrs. Grafton resumed her work after returning from the hospital and appeared to be doing fine except that she made complaints that her head hurt her. On Thursday, October 14, 1965, when ap-pellee went to work, his wife was still asleep. He stopped back by his house around 11 A.M. to get a cup of coffee and found his wife passed out in the bathroom. He took her to the hospital and she remained there until her death on October 16, 1965.

John Donnelly, the agent who sold the policy to Mrs. Grafton, testified that he solicited Mrs. Grafton’s business and that she did not come to him to buy the policy. He stated that he had been around her on several occasions prior to selling her the policy and that he observed her as being a strong lady and being in good physical condition. He said he had visited Mrs. Grafton at her workshop on various occasions, and felt that she would be classified as an active person. It was his opinion that she was healthy, and his company did not require her to take a physical examination. Dr. Echols testified by deposition that he first saw Mrs. Grafton on September 30, 1965 at the Roy H. Laird Memorial Hospital in Kilgore. At that time he treated her for the injuries received in the fall from the scaffold. ' The diagnosis made by Dr. Echols was trauma to the chest, left leg and head. He ascertained from the history taken that Mrs. Grafton had diabetes and that she had taken insulin for about two years but that she had taken herself off it several months prior to September 30, 1965. A diagnosis of subdural hematoma was made only at autopsy. It was the opinion of Dr. Echols that the fall from the scaffold produced the subdural hematoma and that hematoma was the sole cause of death. On cross-examination, Dr. Echols stated that he was able to control Mrs. Grafton’s diabetes and that she responded well to the treatment he gave her. His opinion was that Mrs. Grafton would have died from the subdural hematoma whether she had had diabetes or not. He did not think that diabetes caused her death. He stated that when he first saw her,’ there was nothing to indicate that Mrs. Grafton had diabetes and that he made this diagnosis only after obtaining a blood sugar. He further stated that Mrs. Grafton did not suffer from osteoarthritis or essential hypertension.

Dr. Gonzales, a specialist in pathology, from Tyler testified by deposition. He performed an autopsy on Mrs. Grafton at the request of Roy H. Laird Hospital. Dr.. Gonzales stated that the pathological diagnosis was made by him and showed that death was caused by massive subdural hemorrhage; that the hemorrhage was traumatic in origin and, based upon the history, it was his opinion that the fall from the scaffold was the producing cause; and that the diabetes which he found had no relation to Mrs. Grafton’s death, his opinion being that the subdural hemorrhage was the sole cause.

Dr. Marlin Braswell, a witness for appellant, stated that he had treated Mrs. Grafton from April of 1963 until October of that year. He saw her in the hospital on April 20, 1963, at which time her chief complaint was pain in the back. The Doctor’s notes reveal that he had attributed the back pain to the fact that Mrs. Grafton was a hard working type of lady and that the pain was due to her work. Dr. Braswell also found that Mrs. Grafton had diabetes and hypertension during the time he treated her in the hospital in April of 1963. He was able to correct both conditions and testified he brought the high blood pressure down to normal and the diabetes was controlled to such an extent that it was only ■ten percent above normal.

Dr. Braswell further testified:

“Q And during those five occasions she progressed to such an extent that you thought by early September of 1963 her diabetic condition was practically under control, didn’t you?
“A It was under control.
“Q And you considered her as having ■control of that disease at that time, didn’t you?
“A At that time.
“Q And it was so controlled that you yourself classified it as being practically '.back to normal, didn’t you?
“A Yes, sir.
“Q And you took her off of the insulin yourself, didn’t you?
“A I did.
“Q Now, when you last saw her in 1963 you so told her that she was under control and could go about her normal duties, didn’t you?
“A Yes, and put her on Orinex at that time.
“Q So other than what you have told me you obviously do not know what her condition was in ’64 or in ’65, do you?
“A I do not.
“Q And the best you can do is to say that the last time that you saw her she was under control and back to practically normal, wasn’t she?
“A That is right, as far as diabetes that I know of.”

Article 21.16 of the Insurance Code, V.A. T.S. provides:

“Any provision in any contract or policy of insurance issued or contracted for in this State which provides that the answers or statements made in the application for such contract or in the contract of insurance, if untrue or false, shall render the contract or policy void or voidable, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract, unless it be shown upon the trial thereof that the matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which said policy became due and payable, and whether it was material and so contributed in any case shall be a question of fact to be determined by the court or jury trying such case. Acts 1951, 52nd Leg., ch. 491.”

This statute has recently been upheld by the Supreme Court in an opinion by Chief Justice Calvert in the case of Lane v. Travelers Indemnity Company, 391 S.W. 2d 399,' which states:

“If the quoted provision of the policy is intended to relieve an insurer of liability because of mere misrepresentations, without proof and findings of materiality, it runs afoul of Art. 21.16, Vernon’s Texas Insurance Code, *

The foregoing Article certainly places the burden on appellant to show that the statement that insured gave to the effect that she had not suffered from diabetes was material to the risk or actually contributed to the contingency or event on which said policy became due and payable. All the evidence negatives the idea that Mrs. 'Grafton’s death was due to diabetes, but on the contrary, her death was the result of the fall and injury.

A similar question of whether the statement was material was before the El Paso Court of Civil Appeals in the case of First Texas Prudential Ins. Co. v. Pipes, 56 S.W.2d 203, where the Court in construing a similar statute, held that the statement in an application that the insured had not had consumption, which was false, was shown to be immaterial. The Court said the undisputed evidence showed that the consumption in no way contributed to the insured’s death. The representation was of an immaterial fact and did not affect the risk assumed. There, the insured died of coronary thrombosis.

We are of the opinion that the evidence is sufficient to sustain the trial court’s finding that the insured was in good health at the time she took the policy (Great American Reserve Insurance Co. v. Britton, Tex., 406 S.W.2d 901) and that the statement complained of became immaterial when the undisputed evidence showed that diabetes had no connection with the death of the insured.

Judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    WESTERN TRANSPORT COMPANY, Inc., et al., Appellants, v. GULF, COLORADO & SANTA FE RAILWAY COMPANY et al., Appellees.
    No. 4592.
    Court of Civil Appeals of Texas. Waco.
    April 6, 1967.
    Rehearing Denied April 27, 1967.

      Richey, Sheehy, Teeling & Cureton, John F. Sheehy, Waco, J. P. Word, Meridian, Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellants.
    Hudson, Keltner, Smith & Cunningham, Fort Worth, H. J. Cureton, Jr., Meridian, for appellees.
   OPINION

WILSON, Justice.

Appellee railway company recovered judgment against appellant-defendant gasoline truck transport company for property damage arising out of a railroad crossing accident. The principal questions in the case result from the disregarding of jury findings by the trial court.

Appellant’s truck loaded with gasoline was struck by appellee’s Santa Fe “Chief” in Clifton, Texas. Exploding gasoline caused the property damage to the railroad equipment, found to be nearly $70,000. The jury found in effect that the truck driver’s negligence in failing to keep a proper lookout, in failing to heed the flashing signal light warning which was in operation at the crossing, in failing to properly listen to the train whistle which was blowing, and in failing to stop his truck not less than 15 feet from the track proximately caused the accident. These findings are not challenged. Other material findings were to the effect that the crossing in question was not an extra-hazardous crossing; but that the railway company was negligent in failing to háve a flagman at the crossing, which was a proximate cause. The latter findings as to negligence and proximate cause in failing to have a flagman present were disregarded by the court.

Appellant’s primary position is that the railway company had “voluntarily classified the crossing in question as an extra-hazardous one” by customarily having a flagman present, and the two jury findings which were disregarded entitled it to judgment notwithstanding the further finding of the jury that the crossing was not extra-hazardous.

It is undisputed that Santa Fe maintained an automatic electric flashing-light warning signal guarding the main-line track on which the train which struck appellant’s truck was traveling. It was operating at the time of the accident. Appellant’s truck driver admitted he saw it flashing. He was familiar with it. He knew the “Chief” was scheduled to pass about noon, although the collision occurred about 12:35 P.M. He assumed it had passed. He knew the flashing signal was a warning that a train or locomotive was on one of the tracks in the vicinity of the crossing; but he assumed the lights were flashing due to switching operations, since he did not see a train. He admitted he ignored the warning signal for this reason, and did not stop within the minimum statutory distance from the main line required by Art. 6701d, Sec. 86, Vernon’s Ann.Tex.Civ.Stat. He testified, “I just eased on up through there, more or less feeling my way through,” looking both ways, “because I wasn’t sure where it was or what it was.” There was also in operation at the crossing an automatic hell signal, which was ringing.

As he approached the main line track the truck driver “glanced at” the flashing signal lights “to see if they were still working”. He could hear the warning signal bells ringing. When asked to “tell any reason” he “didn’t know a train was approaching” he replied, “Well, he was supposed to have done been through there” around noon, but “I didn’t know for sure.” Although he did not see any switching taking place, he “assumed” this had activated the signals. He had frequently seen the signals working because of switching operations when no train was coming.

In our opinion the action of the trial court in disregarding the finding of the jury that failure to have a flagman at the crossing was a proximate cause is not error. The only purpose which a flagman could serve would be to give warning that a train or locomotive was in proximity to the crossing. This the flashing signal did effectively. It notified the truck driver a train or locomotive was near. Knowing this, he did not heed the warning signal by stopping, but proceeded in spite of it. Causal connection is absent.

The duty to use more than ordinary warning measures where a railroad crossing is extra-hazardous exists because of the user’s increased difficulty in discovering the presence of a locomotive or train. “If a highway traveler knows that a train is so using or about to use it, these extraordinary dangers do- not exist and extra precautions to warn him would be futile, since the only purpose they could serve would be to warn him not to run into the train.” McMahan v. Texas & N. O. R. Co., 138 Tex. 626, 161 S.W.2d 70, 71. See Texas & N. O. R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113, 1115; Galveston, H. & S. A. Ry. Co. v. Wells, 121 Tex. 310, 50 S.W.2d 247; Harris v. Texas & P. Ry. Co., Tex.Civ.App., 28 S.W.2d 1093, 1094, writ ref.; Reedy v. Missouri, K. & T. Ry. Co., Tex.Civ.App., 203 S.W.2d 347, 350; Hasting v. Texas & Pacific Railway Company, Tex.Civ.App., 313 S.W.2d 344, 347.

For this reason also appellant’s points to the effect that there is no evidence or insufficient evidence to support the finding that the crossing was not extra-hazardous, and that it is contrary to the overwhelming preponderance of the evidence, are overruled. That finding is immaterial since the failure to have a flagman present is not a proximate cause. We have examined the evidence, notwithstanding, and in our opinion it is legally and factually adequate to sustain the finding.

In support of the contention that ap-pellee’s custom of having a flagman present established a duty to have one at the crossing at the time of the accident, irrespective of whether the crossing was extra-hazardous, appellant cites cases from other jurisdictions. These cases generally adopt the view of comment (f), Sec. 301, Restatement, Torts, that where the traveling public has been led to rely on a watchman, there may exist a duty to continue a customary or established warning. We have found no evidence, and have been pointed to none, that appellant’s driver knew of any custom (if it be assumed there was one), to maintain a flagman at the crossing or that he did rely on such a custom.

In Galveston H. & S. A. Ry. Co. v. Wells, 121 Tex. 310, 50 S.W.2d 247, 251, in an extra-hazardous crossing casev the Supreme Court stated that even where the crossing was extra-hazardous the railroad company would not be required to maintain both a wigwag signal or other warning device and a flagman in addition. See also Texas & New Orleans Ry. Co. v. Hart, 163 Tex. 450, 356 S.W.2d 901, 907. No issue was submitted or requested concerning whether a custom existed relating to the asserted practice now relied on of having a flagman present. The defense was waived. Rule 279, Texas Rules of Civil Procedure. Clark v. National Life & Acc. Ins. Co., 145 Tex. 575, 200 S.W.2d 820; Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876.

Complaint is made of refusal of requested issues which would have inquired whether appellee maintained “inadequate electrical devices” at the crossing, and signal devices which “would operate for substantial periods of time when no train was approaching”; and as to negligence and proximate cause. Appellant pleaded the matters embodied in these requested issues solely as circumstances which it was charged made the crossing extra-hazardous. On this subject the requested inquiries were evidentiary. There was no pleading to support the issues or findings that the devices or the manner of their operation was negligence or a proximate cause. It was not error to refuse the requested issues. Rules 67, 277, 279, Texas Rules of Civil Procedure.

We have carefully considered the points concerning the jury finding that the negligent operation of the train at a high and dangerous rate of speed was not a proximate cause of the collision. These points challenge the existence or adequacy of evidence to support the finding. They are overruled, as is the point concerning the amount of judgment. Affirmed.


author: McDonald, Chief Judge.

text:
    FIRST STATE BANK OF BELLAIRE, Appellant, v. OLDE COLONY HOUSE, INC., et al., Appellees.
    No. 4578.
    Court of Civil Appeals of Texas. Waco.
    April 6, 1967.
    Rehearing Denied April 20, 1967.

      Eastham & Meyer, Clarence C. Meyer, Sam Dawkins, Jr., Houston, for appellant.
    Powell, Tucker & Kain, Richard L. Reedy, William E. Mallia, Houston, for appellees.
   McDonald, Chief Judge.

This is an appeal by plaintiff bank from a (partially) adverse judgment in a suit against the maker and endorser of a note.

Plaintiff bank sued defendant Olde Colony House, Inc., (a furniture store), the maker, and defendant Calmes, the endorser, for $28,344.52 balance due on a note payable to plaintiff. Defendant Olde Colony by answer, admitted making the note, but alleged plaintiff had seized and converted furniture not covered by the trust receipt securing the note, and prayed that the note be offset and credited with the value of such furniture. Defendant Calmes answered, asserting the note (originally for $35,000) was secured by a trust receipt on individually itemized furniture; that when furniture was sold, payment was to be made, and the note was to be reduced in proportion to the amount of furniture sold; that the bank induced Calmes to endorse the note by representing that it would see that the inventory was not reduced at a faster rate than the amount owed on the note by making periodic inspections; that if Olde Colony defaulted, the bank would deliver to Calmes all furniture under the trust receipt less the items sold and credited on the note; and that the bank would require fidelity bonds on all employees of Olde Colony. Calmes asserted such representations were false and fraudulent, and prayed for cancellation and rescission of his endorsement.

Olde Colony defaulted on the note; plaintiff bank seized all furniture located at Olde Colony’s store; sold same and credited the amount (less expenses) on the note; and sued Olde Colony, the maker, and Calmes, the endorser, for the balance due.

Trial was to a jury which, in answer to issues submitted, found:

1) The bank (Vice President) represented to defendant Calmes that if he endorsed the note the bank would make periodic inspections of the inventory of Olde Colony House, Inc. that was pledged to the note to see that the inventory was not depleted faster than the corresponding amount due on the note.
2) At the time of making such representation the bank (Vice President) had no intention of making such inspections.
3) Such representation was made for the purpose of inducing Calmes to endorse the note.
4) Calmes relied on such representation in endorsing the note.
5) Such representation was a material inducement to Calmes to endorse the note and but for such inducement he would not have done so.
6) Plaintiff bank repossessed furniture of Olde Colony not listed on the trust receipt, of a value of $6,000.

The trial court entered judgment on the verdict that defendant Calmes’ endorsement be cancelled, and that plaintiff bank take nothing as to Calmes; credited the note with $6,000; and entered judgment for plaintiff bank for $22,344.52 against defendant Olde Colony.

Plaintiff bank appeals on ten points, contending :

1) The trial court erred in allowing improper testimony that Calmes relied on plaintiff’s representation to obtain fidelity bonds on Olde Colony employees.
2) There is no evidence to support the jury’s answer to Issue 5, and/or such finding is against the great weight and preponderance of the evidence.
3) The trial court erred in entering judgment for Calmes when no damages were shown; and erred in refusing to submit plaintiff’s requested issue as to causal connection between failure of bank to make periodic inspections of the pledged inventory and damages to Calmes.
4)The trial court erred in awarding judgment for $6,000 offset to Olde Colony.

Plaintiff’s 1st contention complains of testimony that Calmes relied on the bank’s representation to obtain fidelity bonds on Olde Colony employees. Defendant Calmes plead that his endorsement of the Olde Colony note was induced by plaintiff bank’s false and fraudulent representation that it would secure a fidelity bond on Olde Colony employees. The evidence was admissible. The fact that the trial court did not submit defendant Calmes’ requested issue on such, does not render the testimony inadmissible.

Plaintiff’s 2nd contention complains there is no evidence to support the jury’s answer to issue 5 and/or such finding is against the preponderance of the evidence. The jury, in answer to Issue 5, found that the bank’s representation that it would make periodic inspections of the Olde Colony furniture inventory to see that it was not depleted faster than note payments, was a material inducement to Calmes to endorse the note. Plaintiff asserts that Calmes relied on three representations which induced him to endorse the note, and that but for the several representations made he would not have endorsed the note, and thus the finding the representation the bank would inspect the inventory was a material inducement to Calmes to endorse the note is without support in fhe evidence.

It is not necessary, in order to avoid a contract for fraud that such fraud should have been the sole cause of making the same. It is sufficient that the fraudulent representation is relied on to the extent that it was a material factor in inducing the making of the contract and without which the same would not have been made. Buchanan v. Burnett, 102 Tex. 492, 119 S.W. 1141; McClung Const. Co. v. Muncy, CCA (Er.Dis.) 65 S.W.2d 786. The evidence is ample to sustain the finding.

Plaintiff’s 3rd contention is that Calmes has shown no damage by the failure of plaintiff to make periodic inspections of the inventory; that the inventory might have disappeared the day before Olde Colony defaulted, and that inspections, if made in such situation, would not have disclosed any shortage. The note provided that as each item of furniture on the trust receipt was sold, the amount would be paid on the note. When Olde Colony defaulted the pledged inventory was some 50% short.

Plaintiff did not object to the charge, but did request an issue as to whether “Calmes was not damaged by the failure of (the bank) to make periodic inspections of the pledged inventory”, which issue was refused by the trial court.

Calmes was induced to endorse a $35,000. note on the false and fraudulent representation that the bank would make periodic inspections of the inventory to see that the inventory was not depleted faster than the corresponding amounts of money were paid on the note; and if called upon to pay the note, or any part thereof, Calmes would thus be entitled to a like amount of furniture. When called upon to pay the balance of some $28,000 due on the note — the inventory of furniture was less than one-half of this amount. Calmes incurred a legal liability or obligation different than represented or contracted for, and in such situation no further showing is necessary in order to entitle him to rescission. Russell v. Industrial Transp Co., 113 Tex. 441, 258 S.W. 462; Texas Ind. Trust v. Lusk, CCA, Er.Ref., 312 S.W.2d 324.

Plaintiff’s 4th contention complains of the trial court’s awarding defendant Olde Colony a $6,000 offset. Defendant Olde,Colony plead, and it is undisputed that plaintiff wrongfully converted furniture not covered by the trust receipt, which belonged to Olde Colony. The evidence is ample to sustain the finding that such had a value of $6,000. No error is presented.

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


author: DENTON, Chief Justice.

text:
    GENERAL PLYWOOD CORPORATION, Appellant, v. James R. COLLINS et al., Appellees.
    No. 7698.
    Court of Civil Appeals of Texas. Amarillo.
    April 3, 1967.
    Rehearing Denied May 1, 1967.

      Folley, Snodgrass, Calhoun & Kolius, Amarillo, V. G. Kolius, Amarillo, of counsel, for appellant. •
    James R. Collins, Amarillo, for appellees.
   DENTON, Chief Justice.

This is an appeal from a summary judgment for the defendants in a suit filed by General Plywood Corporation for the purpose of opening an alleged public or county road.

There were no affidavits filed in support of the unsworn motion for summary judgment and no depositions appear in the record. No pleadings or affidavits were filed by appellant in opposition to the motion for summary judgment other than a verified amended petition, and an affidavit tendered on the day of the hearing which was not permitted to be filed nor considered by the trial court. The record also contains appellant’s attorney’s answers to appellees’ written interrogatories. Appellant’s two points of error contend a genuine issue of a material issue of fact was presented by the instruments on file, and the contention the trial court erred in refusing to allow appellant to file its affidavit in opposition to the motion for summary judgment.

Appellant alleged in both verified amended petitions it owned a certain tract of land in Randall County; that the southeast portion of its land joined land owned by appellees, and that appellant had access to and from its land in a southerly direction by a public road which bordered appellees’ property along the entire east side thereof. It was alleged that appellees caused said public road to be closed, boarded up, and fenced off from the public generally; that the road is considered a public road and has been used by the public generally since about 1925; and that Randall County, up until the said road was destroyed by appel-lees, maintained and kept said road in good repair. Appellant sought injunctive relief to prohibit appellees from closing the road to public use, and to enjoin them from interfering with the future use of said road.

Appellees answered by way of general denial and especially denied the alleged road provides access from appellant’s property in a southerly direction; they denied that the road was a county road; and denied the public acquired any right to said road; and that public use of said road was with the permission of appellees and not adversely to them. Appellees propounded certain written interrogatories to appellant. In reply to interrogatories numbers 1 and 2 which asked appellant to state all the facts it was to rely upon to establish the existence of a “county roa(l” and a “public road” appellant’s attorney answered: “I think that in the past the road has been used by the public generally.” Interrogatories numbers 3 and 4 asked the names and addresses of witnesses appellant intended to call to support the allegations the property in question was being used “by the public generally and indiscriminately and at the public’s free will and convenience since about the year 1925” and the same information relative to the allegation “the County of Randall kept such road in a state of good repair and maintained said road so that the public generally could traverse the same at their convenience.’’ To both interrogatories, the appellant’s attorney answered: “I know of none at this time”. Both parties contend the pleadings and interrogatories support their respective positions. Appellees say the answers admitting the appellants had no witnesses to support the allegations is evidence which demonstrates the absence of a genuine issue of material fact. They further say the answers to interrogatories 1 and 2 are no more than opinions and conclusions which would not be admissible on a trial of the merits. On the other hand, appellant takes the position his answers to interrogatories 1 and 2 are sufficient evidence to create an issue of fact; and the answers to interrogatories 3 and 4, given seventeen days before the filing of its second amended petition and some thirty days prior to the date set for a hearing on its merits, had no legal effect at the time the amended petition was filed and when the summary judgment was subsequently filed and granted.

In passing upon a motion for summary judgment, all doubts as to the existence of a genuine issue of material fact must be reserved against the moving party, and the opposite party is entitled to the benefit of every reasonable inference which can be properly drawn in his favor. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W. 2d 929. Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233. In the absence of affidavits and depositions in support of the motion for summary judgment, we look only to the pleadings and the interrogatories and answers thereto to determine the propriety of the summary judgment. Appellant’s answers to the interrogatories under Rule 168, Texas Rules of Civil Procedure are not binding on appel-lees. The rule itself provides these answers may be used only against the party answering the interrogatories. See also Black v. Frank Paxton Lumber Co. (Tex.Civ.App.) 405 S.W.2d 412 (Ref. N.R.E.). Appellant therefore is not in a position to use the interrogatories in support of its contention. However, the burden remains upon the appellees, the movant, to show the absence of fact issues. Appellees contend this burden has been met by appellant’s answers to its interrogatories.

A discussion of the distinction between interrogatories under Rule 168 and admissions under Rule 169 is found in Ford Motor Credit Co. v. Draper, 401 S.W.2d 848. There the Court said:

“Present Rule 168 provides for interrogatories to be propounded by one party to other parties in a lawsuit, and authorizes the admission of evidence gathered thereby in the trial of the suit, subject to compliance with the general rules of evidence and the limitation that such admissible evidence ‘may be used only against the party answering the interrogatories’. Without attempting to detail the distinction it is apparent on comparison that interrogatories propounded and answers thereto under present Rule 168, which was adopted and became effective in 1962, are not intended to perform the function of, supplant, or have the effect of request and admissions in response thereto authorized by the much earlier Rule 169, which went into effect in 1941. The credit company’s replies to the Drapers’ interrogatories are not to be treated as admissions made pursuant to Rule 169. The probative effect of the company’s replies to interrogatories are to be determined by their character as admissible evidence and not as Rule 169 admissions, though as evidence the replies may embody admissions of fact and have effect as such.”

Appellees contend, and we think correctly so, appellant’s answer^ to interrogatories 1 and 2, “I think that in the past the road has been used by (he public generally” would be inadmissible on a trial as a conclusion. These answers merely constituted conclusions which is not evidence sufficient to raise an issue, of fact. Williamson v. Lewis (Tex.Civ.App.) 346 S.W.2d 957 (Error Ref.). Appellees further contend the answers tp interrogatories 3 and 4, that appellant lenew of no witnesses “at this time” to prove its allegation concerning public use of the land is sufficient in itself to show an absence of a fact issue. We do not agree. These answers were given approximately thirty days prior to the date the case iyas set for trial, and some twenty-eight days prior to the time the motion for summary judgment was set and granted. Appellant filed its second amended petition after the interrogatories were answered. These answers in themselves would not bar appellant from timely filing affidavits in opposition to a subsequent motion for summary judgment or from offering witnesses in an attempt to prove its alleged cause of action on a trial on the merits. These sworn answers simply recited appellant’s attorney knew of no witnesses “at this time” who could testify to certain facts alleged. These answers could not mean, as a matter of law, that appellant knew of no witnesses at the time its second amended motion was. filed or at the time the summary judgment was granted. We conclude the answers to interrogatories 3 and 4 do not present sufficient evidence to show an absence of fact issue. Under this construction of the interrogatories and answers, they can not be considered in support of appellees’ motion for summary judgment.

The appellees’ motion for summary judgment must be considered as a motion directed solely to the pleadings. The motion is challenging the sufficiency of appellant’s pleadings to raise issues of fact. It has been textually stated that where such a motion is directed solely to the pleadings, the motion is closely analogous to a spe special exception challenging the sufficiency of the opposition’s pleadings as a matter of law. Summary Judgments by Ray W. McDonald, 30 Tex.Law Rev. 285 at page 297. See also Simpson v. City of Abilene (Tex.Civ.App.) 388 S.W.2d 760 (Ref. N.R. E.). Hatten v. Mohr Chevrolet Co. (Tex. Civ.App.) 366 S.W.2d 945. Other writers have compared a motion for summary judgment directed solely to the pleadings to the old general demurrer. Suggs & Stumberg, Summary Judgment Procedure, 22 Tex.Law Rev. 433. In order to uphold appellees’ summary judgment, granted solely on the pleadings, it is necessary that we take as true every allegation in appellant’s second amended petition. Labbe v. Carr (Tex.Civ.App.) 369 S.W.2d 952 (Ref. N.R.E.). Appellant’s sworn amended petition, as paraphrased above, clearly states a cause of action. When the record is viewed in the light of the presumptions and inferences required, appellees have failed to discharge their burden to show thd absence of fact issues.

Appellant’s remaining point of error goes to the alleged error of the trial court in not permitting appellant to file its opposing affidavit on the day the motion for-summary judgment was heard. An opposing affidavit filed on the date of the hearing does not comply with the provisions of Rule 166-A(c). The refusal to permit the filing of such an instrument or to consider it was not error. Medina v. Sherrod (Tex.Civ.App.) 391 S.W.2d 66. These are matters within the discretion of the trial court and no abuse of that discretion is shown.

The judgment of the trial court is reversed and remanded.


author: NORTHCUTT, Justice. DENTON, Chief Justice.

text:
    LAMB COUNTY ELECTRIC COOPERATIVE, Inc., Appellant, v. F. E. COCKRELL, Individually and as next friend of Forrest Ervin Cockrell, Appellees.
    No. 7696.
    Court of Civil Appeals of Texas. Amarillo.
    March 27, 1967.
    Rehearing Denied April 24, 1967.

      Albert Smith, Lubbock, for appellant.
    Huff & Bowers, Lubbock, Broadus A. Spivey, Lubbock, of counsel, for appellees.
   NORTHCUTT, Justice.

This is a venue case. Plaintiffs below, appellees here, F. E. Cockrell et al., sued the defendant, Lamb County Electric Cooperative, Inc. in Hockley County, Texas. 'The defendant filed its plea of privilege to be sued in Lamb County, Texas, its principal place of business, residence, and domicile. Plaintiffs filed their controverting affidavit, contending venue should be retained in Hockley County by virtue of Article 1436a of the Vernon’s Ann.Revised Civil Statutes of the State of Texas and would thereby come under Sections 9 and 9a of Article 1995 as showing negligence was committed in Hockley County.

The acts of negligence pleaded by the plaintiff were as follows:

“Plaintiffs would show that the Defendant was guilty of acts and omissions constituting negligence as follows:
“1. In constructing and maintaining electrical power transmission lines which crossed a public road and highway at a height of less than twenty-two feet in direct violation of Article 1436a of the Revised Civil Statutes of the State of Texas which reads as follows:
‘Except as modified or changed by ordinance or regulation in incorporated cities and towns, all lines for the transmission and distribution of electric energy, whether along highways or elsewhere, shall be constructed, operated and maintained, as to clearances, in accordance with the National Electrical Safety Code, as published in March, 1948, by the National Bureau of Standards, Handbook 30, provided that lines along highways and county roads shall be single pole construction, and provided that at any pla.ce where a transmission line crosses a highway or road it shall be at least twenty-two feet above the surface of the traffic lane.’
“2. In failing to construct, operate and maintain their lines for the transmission and distribution of electric energy across a public highway and .road in Hockley County, Texas in a manner that was in accordance with the national Electric Safety Code, as published in March, 1948 by the National Bureau of Standards, Handbook 30.
“3. In failing to properly inspect and maintain such electrical power transmission lines, and to keep them at a safe height above traffic lane of such road and highway upon which this Plaintiff was traveling.
“Plaintiffs would show that one, more than one, or all of the foregoing acts and omissions constituted negligence and that such negligent acts, operating separately and concurrently, were each a proximate cause of the collision and the severe injuries sustained by Plaintiff, Forrest Er-vin Cockrell.”

The trial court overruled defendant’s plea of privilege and held venue was sustained in Hockley County. From that order the defendant perfected this appeal. The parties will hereafter be referred to as they were in the trial court.

Although defendant presents this appeal upon áeven points of error, we believe that all that is necessary here is to determine the issue as to whether the plaintiffs sustained their burden as required to hold venue in Hockley County under Article 1995.

Exceptions to the venue statute must be strictly construed and clearly established before a party can be deprived of his right to be sued in the county of his domicile. Watkins v. McCluskey, 284 S.W.2d 381 (Tex.Civ.App.-Eastland, 1955, no writ); Brown v. Clary, 315 S.W.2d 385 (Tex.Civ. App.-Austin, 1958, no writ) ; Old Lincoln County Mut. Fire Ins. Co. v. Hall, 214 S.W. 2d 203 (Tex.Civ. App.-Dallas, 1948, no writ); McClanahan v. Cook, 401 S.W.2d 352 (Tex.Civ.App.-Amarillo, 1966, no writ). It is stated in Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91- (Tex.Comm’n App., 1935, opinion adopted) as follows:

“It is well settled that ‘with the venue challenged, under proper plea, by one sued without his county, * * * the burden not only to allege but to prove that the case is within one of the exceptions to the statute rests on the plaintiff.’ Coalson v. Holmes, 111 Tex. 502, 510, 240 S.W. 896, 898; Hilliard Bros. v. Wilson, 76 Tex. 180, 13 S.W. 25; World Company v. Dow, 116 Tex. 146, 287 S.W. 241; Benson v. Jones, 117 Tex. 68, 296 S.W. 865; Greenville Gas & Fuel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S.W. 550; Duffy v. Cole Petroleum Co., 117 Tex. 387, 5 S.W.2d 495; Johnson v. Dallas Cooperage & Woodenware Co., 120 Tex. 27, 34 S.W.2d 845; Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.2d 824.”

The sole issue which we will consider in this appeal is whether the plaintiffs offered any evidence to show the defendant was guilty of negligence in any of the matters pleaded by the plaintiffs. There is no evidence that the defendant failed to inspect its lines but on the contrary the evidence is that it did make periodic checks. The plaintiff did not introduce the National Bureau of Standards, Handbook 30, but there was evidence by a professional engineer that he was familiar with the provisions of the National Electrical Safety Code and that it provided the ground wire or neutral wire to be fifteen feet high, plus an adder for span length making the height here to be sixteen feet. The ground or neutral wire that plaintiff was seeking to go under did not carry any current of electricity,

Article 1436a provides that any place where a transmission line crosses a highway or road it shall be at least twenty-two feet above the surface of the traffic lane. Article 1435 provides electric current and power corporations shall have power to generate, make, manufacture, transport and sell electric current. Then Article 1436 provides such corporations shall have the right to erect its lines over and across any public road and then provides such lines shall be maintained at a height above the ground of at least twenty-two feet. We believe, and so hold, line or lines there used has reference only to lines carrying electric current. There is no evidence in this record, only by implication, that the transmission lines were less than twenty-two feet above the surface of the traffic lane and the only implication is that the plaintiff was injured. Negligence is never presumed and the mere happening of an accident is no evidence of negligence. Wells v. Texas Pac. Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660 (1942) and cases there cited; Bart DeLatt & Associates, Inc. v. Knight, 369 S.W.2d 65 (Tex.Civ.App.-Waco, 1963, no writ).

We do not believe that the case of Texas Power & Light Company v. Jacobs, 323 S.W.2d 483 (Tex.Civ.App.-Waco, 1959, Ref. N.R.E.) is in point here. We are aware of the rule that if there was evidence of probative value to sustain the findings of the court that this court would be bound by such findings. But here we have held there was no evidence of probative force to sustain such findings of the court. There are no findings of fact and we do not know what the court found other than that the plea of privilege should be overruled. In the Jacobs case, supra, the wire that was less than twenty-two feet above the road transmitted electric current, and, therefore, the company violated statutes and was guilty of negligence as a matter of law. There is no evidence in this record that the line the plaintiff sought to raise carried any electric current, but all of the evidence is that it did not. The plaintiff was upon the substructure that was seventeen feet and two inches high and he was five feet, eleven inches tall which would be twenty-three feet, one inch, if he was standing. Plaintiff didn’t remember anything about getting on the substructure or anything until he woke up in the hospital. He testified it burned his ear, neck, back and nearly all of his back and burned the bottom of his feet off. There is no evidence to show just how plaintiff came in contact with the electric current. Under this record it is just as possible that when plaintiff got up on the seventeen foot, two inch substructure that he stood up and his ear touched the transmission line as it is that something else happened.

There is no evidence to show that the plaintiff would be injured by coming in contact with the wire that he went up on the substructure to raise. It would have been a simple matter to measure and determine the height of the transmission lines. The record here does not show that was ever done. The only remaining issue here to be determined on the plea of privilege as to the negligence of the defendant happening in Hockley County is whether the transmission lines were maintained less than twenty-two feet above the roadway. There is no evidence in this record that the transmission lines were not maintained at the required height of twenty-two feet above the roadway.

The burden was upon the plaintiff to establish by a preponderance of the evidence that the act or omission of negligence occurred in Hockley County. The item the plaintiff was to prove here was that defendant maintained the transmission lines less than twenty-two feet above the surface of the traffic lane; that such act or omission was that of the defendant in person or that of its servant, agent or representative acting within the scope of his employment and that such negligence was a proximate cause of plaintiffs’ injury. (See citations above cited). The plaintiffs having failed to comply with that burden, judgment of the trial court is reversed and rendered and the case ordered transferred to the District Court of Lamb County, Texas.

DISSENTING OPINION

DENTON, Chief Justice.

I respectfully dissent.

Plaintiff was seriously injured when he came in contact with defendants’ transmission lines which crossed a public road in Hockley County, Texas. As an employee of Britt Trucking Company, the plaintiff was assisting in moving by truck certain oil well equipment along the road. He was atop the equipment which measured some 17 feet 2 inches above the ground. His job was to lift the electrical lines with a wooden stick to permit the loaded truck to pass underneath. While in the process of doing this, he came in contact with one or more of the wires and was severely burned.

As stated in the majority opinion, the primary question is whether the plaintiff below sustained its burden to prove the defendant was guilty of negligence which proximately caused his injuries. The trial court, by its order overruling the plea of privilege, has impliedly found this burden was met. No findings of fact or conclusions of law were requested or filed. In passing upon this law question, we are required to follow the rule: “If discarding all adverse evidence and giving credit to all evidence that is favorable to the successful party, and indulging every reasonable conclusion that is favorable to him, a trier of the facts may have found in his favor, then it is to be concluded there is evidence to support the finding”. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97. Johnson Testers, Inc. v. Kirby (Tex.Civ.App.) 359 S.W.2d 553 (Dismissed).

Plaintiff pleaded both statutory negligence, that is, in failing to maintain the electrical wiring more than 22 feet above the ground as required by Articles 1436 and 1436a, V.A.T.S.; and common law negligence of failing to maintain such lines at a safe height above the traffic lane of the road. The defendants’ lines extending across the road contained three wires: two transmission lines or “hot wires”, and a neutral or ground wire. The ground wire was broken when the plaintiff was injured. It had been previously broken that same day under similar circumstances. Each time the defendants’ employees repaired the broken lines. When the repairs were made the second time, Duke, a lineman for the defendant, measured the height of the lines with a "shotgun stick". He measured the transmission lines to be 22 feet 4 inches above the road. Prior to this measurement, he shortened the ground wire one foot and moved it up to the same height as the two transmission wires. Ellis, another lineman for the defendant, estimated the ground wire was left “say 18 or 19 foot” high after the first repair and prior to the time plaintiff was injured. Duke testified the ground wire was some 4 feet below the two transmission lines before the repairs were made.

It is the defendants’ contention that the transmission lines were more than 22 feet above the ground and therefore, were not in violation of Articles 1436 and 1436a; and that the neutral or lower wire, not being a transmission line, does not come within the provisions of these statutes. This same contention was rejected in Texas Power & Light Company v. Jacobs (Tex.Civ.App.) 323 S.W.2d 483 (Ref.N.R.E.). There, substantially the same facts existed and the same contentions were made. The court held: “We think it is obvious that if the lower line was dangerous in that it carried electricity or the returning current completing the circuit, it would certainly be subject to the terms of the statute and should have been raised a distance of not less than 22 feet over the roadway, and that such failure was negligence as a matter of law.” There the court treated the neutral or ground wire as a “transmission line for all practical purposes”. In the instant case the lower line was also variously described as a “ground wire” or a “neutral wire”. At various times this wire unquestionably carried electricity. Ellis testified that if the two transmission lines carried “any unbalanced load”, the ground wire “will carry the rest of it off”. Although the Jordan case was a trial on the merits and fuller testimony was presented relative to the characteristics and purposes of the ground wire, the testimony here is sufficient to show the ground wire would, on occasions, carry electricity and was designed for that purpose, and as such, it must be considered dangerous. I think the evidence is sufficient to bring this case within the rule announced in the Jacobs case.

It is also my opinion that when the evidence, both direct and circumstantial, is reviewed in the light most favorable to the ap-pellee, there was evidence to support the action of the trial court in holding, for venue purposes, that the defendant was negligent in failing to maintain the electrical wires at a safe height above the road and that such negligence was a proximate cause of ap-pellee’s injuries.

I would affirm the judgment of the trial court.


author: BARROW, Chief Justice.

text:
    Vincent CERVANTES et ux., Appellants, v. Alvaro RAMIREZ, Sr., et al., Appellees.
    No. 14581.
    Court of Civil Appeals of Texas. San Antonio.
    April 12, 1967.
    Rudy Nava, San Antonio, for appellants.
    Mayo J. Galindo, San Antonio, for appel-lees.
   BARROW, Chief Justice.

This is a boundary dispute involving a strip of land with approximately seven feet frontage on Menefee Blvd., in the City of San Antonio, being in Block 36, NCB 3695, Edgewood Addition. Appellants, Vincent Cervantes and wife, Diana R. Cervantes, brought this suit in the nature of a trespass to try title, and also seeking an injunction to enjoin appellees, Alvaro Ramirez and wife, Teresa Ramirez, and their son, Alvaro' Ramirez, Jr., from constructing improvements on the land in controversy. Judgment was rendered after a non-jury trial finding appellees not guilty of the trespass and denying appellants an injunction.

Appellants purchased Tract 6 in said block on December 19, 1960, from Mrs. Emma T. Hillmeyer. On December 7, 1965, appellees purchased the east half of Tract 5 from Alois Hillmeyer, son of Mrs. Emma T. Hillmeyer. In June of 1966 ap-pellees erected a fence to divide Tracts 5 and 6 and commenced construction of a home. This suit was filed to enjoin this construction, wherein it was alleged that the fence and proposed construction encroached approximately seven feet into Tract 6. The five and ten-year statutes of limitation were also pleaded by appellants but no point with reference to same is asserted on this appeal.

The burden of proof was upon appellants as the initiators of this suit to show by a preponderance of the evidence the location of the boundary line upon the ground, and that appellees were trespassing upon their land. Rodriguez v. Flores, Tex. Civ. App., 403 S.W.2d 172, no writ; Brinkley v. Brinkley, Tex.Civ.App., 381 S.W.2d 725, no writ. Appellants assert on this appeal that the trial court erred in not finding the western boundary line in accordance with the survey filed by them. In view of the adverse findings by the trial court, the burden now is upon appellants to show that their alleged boundary line was established as a matter of law.

Although the disputed strip involves the true location of the boundary line between Tracts 5 and 6, the finding of the trial court is largely based upon the boundary line between Tracts 6 and 7, which is the eastern boundary of Tract 6. Tracts 7, 8 and 9 have been owned since 1930 by Hugo F. Kappmeyer. He testified that shortly after he purchased his land, a survey was made and a fence constructed on the line separating Tracts 6 and 7. This fence was accepted thereafter as the boundary line. Mrs. Hillmeyer, although called as a witness by appellants, confirmed that the Kappmeyer fence had always been recognized as the boundary line separating Tracts 6 and 7. After appellants purchased Tract 6 they replaced part of the Kappmeyer fence with a chain link fence, and it is significant that the new fence was located by them on the same line as the original Kappmeyer fence.

Appellants’ claim is based upon a survey of Tract 6 made in 1960, at the time appellants purchased this tract. The survey was made at the request of the title company handling the sale, and showed the eastern boundary line of Tract 6 as being some seven feet west of the Kappmeyer fence. Since the tract is undisputedly 124.6 feet wide, the western boundary line encroached this same distance into Tract 5, and is the strip in controversy. Mr. Jacobs, a licensed surveyor, who made this survey in 1960 and confirmed same prior to the trial, testified that he made his measurements from a beginning point at the intersection of Menefee Blvd. and Cupples Road, which is the northwest corner of Block 36. He admitted that he found no original monument and made no contention that he was retracing the footsteps of the original surveyor.

Mr. Cadena, also a licensed surveyor, testified on behalf of appellees. He prepared a survey in January, 1966, which showed the boundary line between Tracts 5 and 6 as being approximately seven feet west of the line found' by Mr. Jacobs. He testified that he began his survey at the northeast corner of Block 36 and measured west through Tract 5. Each of the seven lots he surveyed was 124.6 feet in width, and his survey coincided almost exactly with the fences which were constructed dividing the various tracts. Specifically, his survey coincided with the original Kappmeyer fence. Also, there are exactly 124.6 feet between the Kappmeyer fence and the fence erected by appellees.

We cannot say that this evidence establishes as a matter of law that the Jacobs survey located on the ground the correct boundary line between Tracts 5 and 6. It is not based upon any original monument, nor is there any contention that Mr. Jacobs retraced the footsteps of the original surveyor. Therefore, the rule to be applied is that used where there is uncertainty, doubt or dispute as to the true division line between two adjoining tracts.

Our facts are very close to those in Kier v. Fahrenthold, 299 S.W.2d 744, writ ref’d n. r. e., wherein this Court affirmed a finding by the trial court that an old fence established the correct boundary line where the plaintiff had failed to locate the true boundary line. This Court said: “It has long been the settled law in this State, that where a boundary line is in doubt, acquiescence for a long period of time is entitled to great weight in determining the boundary line. A strong presumption is indulged that such line is the correct line, and such presumption is strengthened by lapse of time.” See also Guadalupe-Bianco River Authority v. Forshage, Tex.Civ.App., 401 S.W.2d 376, writ ref’d n. r. e.; 9 Tex.Jur.2d, Boundaries, § 52.

Here it is seen that both Mrs. Hillmeyer and Kappmeyer recognized the Kappmeyer fence as the boundary line between Tracts 6 and 7 for over thirty years. Appellants assert claim to a tract of only 124.6 feet in width. The trial court did not err in refusing to locate the boundary line some seven feet west of the line which had been recognized as the eastern boundary line of Tract 6 for such a long period of time.

The judgment is affirmed.