author: ARCHER, Chief Justice. HUGHES, Justice.

text:
    STATE of Texas et al., Appellants, v. C. I. FITTS, Appellee.
    No. 11424.
    Court of Civil of Appeals of Texas. Austin.
    June 29, 1966.
    Rehearing Denied July 20, 1966.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Administrative Asst. Atty. Gen., H. Grady Chandler, W. E. Allen, Kerns B. Taylor, Asst. Attys. Gen., Austin, for appellants.
    Bryan & Amidei, A. J. Bryan, Maurice Amidei, Fort Worth, for appellee.
   ARCHER, Chief Justice.

This is a suit by appellee for a declaratory judgment that he was not liable for motor fuel taxes under Chapter 9 of Title 122A, Taxation-General, Vernon’s Civil Statutes. The State filed cross action for the taxes. The trial court held appellee was not liable for any of the State’s claim.

The State’s cause of action in chief is for taxes upon taxable sales of gasoline by appellee imposed by Article 9.02(1) which have not been paid to the State. Appellee’s liability for these taxes is grounded in the main on its audit pursuant to Articles 9.22(2) and 9.17(1).

The State audited all the known records of appellee, and the records of his vendors and vendees. The audit shows that he sold at wholesale to service station retail outlets in Texas, and at retail through his own service stations, more gasoline than he purchased from his known suppliers. The State’s investigation did not discover from whom nor in what manner he acquired this excess gasoline.

The State and Robert S. Calvert, Comptroller, filed their cross action for tax claim in the amount of $3,362.35 of taxes and for the penalties and interest provided for in said Chapter 9 and also for the additional statutory penalty in the same amount of the taxes, which is provided for in Article 9.22(1) of said Chapter 9. Appellants also prayed for foreclosure of the statutory lien upon the truck tractor and tank trailer used by appellee in his wholesale gasoline distribution business to secure its claim.

Appellants assert that Chapter 9 of Title 122A was intended to provide and that it does provide a completely comprehensive method of taxing every gallon of motor fuel sold, distributed and used in this State and of collecting that tax.

Applied to the case at bar we submit that it provides that any one who acquires gasoline in any manner without being able to show either payment of the tax as provided in Articles 9.22(2) and 9.17(1) or that such acquisition was lawfully tax free, and who sells such gasoline at other than a tax free sale duly authorized as such by the Comptroller, makes a first resale which is a “first sale” and a taxable sale.

The appeal is founded on nine points and are to the effect that the trial court erred in failing to hold that plaintiff’s sales of the motor fuel were taxable “first sales,” and no evidence to disqualify all such sales from being taxable sales and the evidence proved that such sales were taxable, and such sales were taxable subsequent sales within contemplation of Article 9.02(1), in failing to hold that plaintiff was a distributor who made first sales, and that plaintiff was a dealer who was required to keep full records of all purchases and sales and to pay the taxes; that the court erred in not holding that the State had a prior lien on the truck used in plaintiff’s business, and in not assessing a penalty equal to the amount of the taxes due against plaintiff, and finally that the court erred in refusing to admit into evidence certain exhibits concerning prosecution of plaintiff for a criminal offense occurring some time subsequent to the period the taxes were alleged to be delinquent for the purpose of testing the memory and veracity of Mrs. Fitts, a witness for plaintiff.

Article 9.01(10) defines “first' sale” as follows:

“ ‘First sale’ shall mean, except as otherwise provided herein, the first sale or distribution in this State of motor fuel, produced, refined compounded, imported into, or otherwise acquired in said State; provided that when motor fu,el has been purchased tax free under the terms of this Chapter, the first resale or distribution of said motor fuel for any purpose other than a tax free sale duly authorized as such by the Comptroller shall, for the purposes of this Chapter, mean and constitute a ‘first sale.’ ”

We believe that the plaintiff was liable for the taxes and the resulting penalty and the State should recover the taxes sued for and the penalty- and was entitled to a lien and a foreclosure of such on the truck. Judgment is here rendered for the State and that of the trial court is reversed.

The plaintiff, appellee herein, does not plead that he acquired the motor fuel in question at a prior sale in Texas, or at a prior “first sale” in the State.

The audit made by the State is uncon-tradicted and shows that the appellee sold more gasoline during the period of the audit than refinery records from whom he states he purchased show that he purchased. There was no showing from whom or in what manner he acquired the excess gasoline he sold, that is, the amount his records show he sold over the amount shown by the records of the refineries as purchased by him.

The core of this litigation is how or from whom the excess gasoline in controversy was acquired by appellee, the manner of such acquisition, of if any former seller or purchaser thereof, if any, had paid the tax thereon to the State.

The State contends in the alternative that if appellee’s excess sales were not the first actual sale of motor fuel which had been acquired in some manner in this State, then that all of appellee’s sales were the first resale of said motor fuel within contemplation of that portion of the definition of a “first sale” contained in Article 9.01(10) which reads:

“ * * * provided that when motor fuel has been purchased tax free under the terms of this Chapter, the first resale or distribution of said motor fuel for any purpose other than a tax free sale duly authorized as such by the Comptroller shall, for the purposes of this Chapter, mean and constitute a ‘first sale.’ ”

There is no question but that the tax imposed upon sales of motor fuel has not been paid to the State on the fuel in question.

Appellee could not purchase, legally, at tax-free purchases by himself, because he was not a licensed and bonded distributor as required by Article 9.05, subdivisions 1 and 2. He had neither a permit nor a bond.

There is no indication that resales or subsequent sales should escape taxation but the intent of the statute is expressed in Article 9.02(1) which levies the tax that:

“ * * * the said 'tax shall be added to the selling price, so that such tax is paid ultimately by the person using or consuming said motor fuel for the purpose of generating power for the propulsion of any motor vehicle upon the public highways of this State.”

The Motor Fuel Tax Act as enacted shows a Legislative intent to tax every first actual sale and each subsequent sale, excepting those specifically exempt under Article 9.02 (4), and those tax-free under Article 9.05 (1) and (2), is subject to the tax so that the tax is passed on to the ultimate consumer.

Article 9.17(1):

“If any distributor fails or refuses to collect and remit or to pay to the Comptroller any tax, penalties, or interest within the time and manner provided by this Chapter, and it becomes necessary to bring suit or to intervene in any manner for the establishment or collection of said claim, in any judicial proceedings, any report filed in the office of the Comptroller by such distributor or his representative, or a certified copy thereof certified to by the Comptroller or his Chief Clerk, showing the amount of motor fuel sold by such distributor or his representative, on which such tax, penalties, or interest have not been remitted or paid to the State, or any audit made by the Comptroller or his representatives, from any books or other records required to be kept or that may be kept by said distributor, when signed and sworn to by such representatives as being made from said books and records of said distributor or from any books or records of any person from whom such distributor has bought, received, delivered, or sold motor fuel, crude oil, or the derivatives of crude oil, or natural gas, or from the books and records of any transportation agency, who has transported any of said products, such report or audit shall be admissible in evidence in such proceedings, and shall be prima facie evidence of the contents thereof; provided, however, that the prima facie presumption of the correctness of said report or audit may be overcome, upon the trial, by evidence adduced by said distributor.”

Article 9.22(2):

“Provided further, that if the Comptroller finds from examination of records or from other investigation that motor fuel has been sold, delivered, or used for any taxable purpose without taxes levied by this Chapter having been paid to the State of Texas, or accounted for by a licensed distributor, he shall have the power to require the person making such taxable sale, delivery or use of such motor fuel to pay into the State Treasury through the Comptroller the taxes due and a penalty equal to the amount of such taxes due. If any person who has made any such taxable sale or taxable use is unable to furnish sufficient evidence to the Comptroller that said taxes have been paid, or accounted for by a licensed distributor, the prima facie presumption shall arise that such motor fuel was sold, delivered, or used without said taxes having been paid.”

Article 9.03(1) provides for the payment of the tax at Austin, Texas.

Appellee did not testify in person. Mrs. Fitts, his wife, testified that she and her husband owned and operated the wholesale and retail gasoline business and had for many years, and that she kept the records and that the business office had been burglarized and some of the records were taken and that Mr. Fitts had paid the taxes to the refineries on all gasoline purchased and sold.

We do not believe that the testimony of Mrs. Fitts is sufficient evidence to overcome the uncontradicted audit and that of the auditors as to the delinquent taxes.

Mr. Fitts, by the provisions of Articles 9.09 and 9.03, was required to keep complete records and to make reports of all of his transactions relating to all gasoline which he acquired, handled and disposed of in any manner.

Appellee does not plead payment of the tax to the State or offer a satisfactory explanation of how he acquired it, and is liable for the tax. State v. City of El Paso, 135 Tex. 359, 143 S.W.2d 366.

The International Truck-tractor and Trailmobile semitrailer was used by ap-pellee in his gasoline business, and is subject to the State’s prior lien. Articles 9.08 and 1.07; Allied Finance Company v. State, Tex.Civ.App., 387 S.W.2d 435, er. ref., n. r. e.

The penalty equal to the amount of the taxes due is due by appellee as authorized by Article 9.22(2).

. The judgment of the trial court denying the State recovery is reversed and judgment here rendered in favor of the State for the amount sued for, statutory penalty, other penalties and interest as provided in the Motor Fuel Tax Act, the State is declared to have a prior lien, and such lien is ordered foreclosed upon the vehicles described in the trial court’s judgment, for order of sale and costs.

Reversed and rendered.

CONCURRING OPINION

HUGHES, Justice.

The following is taken from appellee’s brief :

“The facts are uncontroverted that part of Appellee’s records for the period in question were stolen and that there are records of such facts in the police department of Lake Worth, Texas. If Appel-lee’s records had been destroyed by fire, certainly it could not hold to be within the contemplation of the legislature that these statutes here involved would or should, merely by recitation of the re- ' quirements of keeping records, result in a person being held liable for taxes and penalty on his failure to present the records lost, stolen, or destroyed through no fault of his own. Certainly the taxing authority, Appellants here, should be reasonably expected and required to come forward with some evidence showing fault or some other act of misconduct by Appellee as a basis for placing full responsibility for the loss of the records and/or failure or refusal to carry out some duty imposed upon him by the act in question. No such facts have been plead nor proved by Appellants and no evidence controverting Appellee’s explanation of the loss of his records has been produced by Appellants. To the contrary, Mrs. Fitts’ testimony shows without contradiction that Appellee kept the required records that were later stolen. Appellee did not refuse to produce the records nor did he fail to keep the required records. They were stolen through no fault of Appellee.”

My construction of the statutes requiring the keeping of records is diametrically opposed to the interpretation placed upon them by appellee. The records required to be kept by a Distributor or Dealer for inspection by the Comptroller or the Attorney General are to be kept for a period of two years. Arts. 9.09 and 9.10. If absence of these records can be accounted for by the Distributor or Dealer by his, or his wife’s, testimony that they have been lost, stolen or destroyed, then the State of Texas is at the mercy of every such Dealer or Distributor insofar as the collection of motor fuel taxes from them is concerned.

The manifest showing the transaction between a Distributor and a Dealer is, or a copy, required to be kept by both Distributor and Dealer. It would be an unlikely coincidence for the records of both to be unavailable. When that situation is presented, the Courts will, of course, determine it. In this case, the records of the refineries from whom appellee’s wife claims he bought gasoline are available. They do not show that appellee bought from them the gasoline here involved. Under these circumstances it is my opinion that only by such records could appellee exonerate himself from liability for the taxes for which the State sues, and that the testimony of appellee’s wife is conclusively repudiated by the refinery records and amounts to no testimony in this respect.

Appellee has clearly made taxable sales of the gasoline for which taxes are sought, that is he has made sales on which taxes were or should have been collected. He has failed to show by competent evidence that the taxes on such gasoline sold by him have been paid to the State. The presumption contained in Art. 9.22, V.T.C.S., prevails and appellee, in my opinion, is liable for the taxes claimed.

I concur in the decision by the majority.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    Wales W. WALLACE, Appellant, v. Leslie Owen BRIERS et al., Appellees.
    No. 4063.
    Court of Civil Appeals of Texas. Eastland.
    June 17, 1966.

      Townes & Townes, Edgar E. Townes, Jr., Houston, for appellant.
    Eastham & Meyer, Sam Dawkins, Jr., Houston, for appellees.
   COLLINGS, Justice.

This suit was brought by Leslie Owen Briers, individually and as independent executor of the estate of Nell C. Briers, deceased, against Wales W. Wallace on a promissory note in the amount of $70,750.00, plus interest and attorneys’ fees. The note was attached to plaintiffs’ petition and was admitted by the defendant as being executed by him. Plaintiffs filed a motion for summary judgment on the note and attached thereto supporting affidavits that the note was in default in that no interest payments had been made thereon according to its terms. The defendant did not deny this fact but asserted as a defense that appellees had released certain security they were holding for the note which constituted legal fraud on the defendant even though defendant was in default on the note at the time the security was released. The court rendered summary judgment for plaintiffs for the principal amount of the note together with accrued interest and attorneys’ fees. Wales W. Wallace has appealed.

As a factual background of this suit the record shows that appellees had two tracts of land in Harris County, one consisting of 160 acres, more or less and the other of approximately 65 acres. Appellees wanted to sell said lands if they could find other suitable land to purchase. Appellees located 541 acres of land in Waller County belonging to one Burnside, but Burnside would part with his land only for cash. Appellees, appellant and Burnside then entered an agreement whereby Burnside and appellees would exchange Burnside’s 541 acres in Waller County for 121 acres out of appel-lees’ 160 acre tract and that appellees would sell to appellant the remaining 39 acres of the 160 acre tract retaining a vendor’s lien thereon and a deed of trust securing the payment of a $70,750.00 note executed by appellant. The 65 acre tract owned by ap-pellees was also sold to appellant. Appel-lees retained a vendor’s lien and deed of trust lien thereon securing appellant’s $102,-652.69 note. It was agreed that Burnside would then sell to Wallace the 121 acres he had obtained in trade from appellees, retaining a vendor’s lien thereon to secure a note executed by Wallace to Southern States Life Insurance Company in the sum of $197,000.00, said note being further secured by a deed of trust. Appellant, in order to finance his purchases joined with the payees of the notes executed by him in a rather complicated subordination agreement and pursuant to that agreement executed and delivered to appellees the two notes in the respective amounts of $70,750.-00 and $102,652.69, and the following security instruments to secure this indebtedness :

“(a) First Vendor’s Lien and Deed of Trust Lien to secure $70,750.00 and $102,-652.69 notes executed by Appellant to appellees.
(b) Second Vendor’s Lien and Deed of Trust Lien to secure an indebtedness of $197,000.00 note given by Appellant to Southern States Life Insurance Company to finance balance of his purchases from Burnside.”

The priority of liens on all the lands involved was agreed to by all parties in the Subordination Agreement as follows:

“Tract A — 119 Acres
1st lien — Southern States Life Insurance, $197,000.00
2nd lien — Briers, $ 70,750.00 $102,652.69
Tract B — 43 Acres
1st lien — Southern States Life Insurance, $197,000.00
2nd lien — Briers $ 70,750.00 $102,652.69
Tract C — 1 Acre
1st lien — Southern States Life Insurance, $197,000.00
Tract D — 64 Acres
1st liens — Briers $102,652.69, and $70,-750.00
2nd lien — Southern States Life Insurance, $197,000.00”

It was also agreed therein that the owner of either of the above mentioned notes executed by appellant could release or rearrange all or any part of the sécurity for the notes.

The $70,750.00 note sued on by appellees provided that interest was to be paid by appellant twelve, fifteen, eighteen and twenty-four months from July 30, 1962. It is undisputed that appellant was in default in payment of the interest on said note, having paid no part of interest, when due, or principal at any time.

Appellant then defaulted in payment of the $197,000.00 note to Southern States Life Insurance Company which requested that R. L. Cowling, Trustee under Deed of Trust securing the note, foreclose the Deed of Trust liens, including a Second Vendor’s Lien and Deed of Trust Lien given by appellant on the 65 acres to Southern States Life Insurance Company to secure his $197,000.00 note to them. Appellees were the senior lien holders on the 65 acres. R. L. Cowling, Trustee, the junior lien holder on this tract, foreclosed his second lien thereon and then exercised his right of redemption against appellees, the senior lien holders, by paying to appellees all principal, interest and attorneys’ fees due on the $102,-652.69 note executed by appellant to ap-pellees. Appellees then executed a release of their lien securing such note to the junior lien holder on the 65 acre tract. Appellant, still being in default to appellees on the $70,-750.00 note, no part of interest or principal having been paid, appellees turned the note over to their attorneys for collection.

Appellant urges numerous points all of which relate to or complain of appellees’ releasing their security on the 64 plus acre tract for the $70,750.00 note given to them by appellant. Appellant contends that the court erred in rendering summary judgment against him for the full amount of the $70,750.00 note and urges the following claimed material facts and legal defenses: that prior to June 22, 1964, the due date of the note in question, appellees, on May 21, 1964, voluntarily released the first lien security therefor without consideration, without necessity, occasion or reason therefor and without the knowledge, consent or approval of appellant; that appellees thereby placed the property beyond the reach of appellant, rendered it impossible to have a foreclosure sale of said first lien by which the sale price would be credited against the note, thus obtaining payment to the benefit of both appellees and appellant; that the subordination agreement provided that in the event of default or breach under the note or deed of trust appellees elected to exercise any right of foreclosure, notice was required to the second lien holder who could cure the default and assume payment of the unpaid balance of the note, thus deferring any foreclosure sale and obtaining an additional obligor, thereby benefiting both appellees and appellant; that appellant had a right to rely on the contractual provisions of the subordination agreement and the protection afforded thereby, all of which was ignored and destroyed by appellees’ non-compliance with the contract and release without reason or necessity of the first and superior lien securing said $70,-750.00 note. Appellant asserts that the action of appellees in voluntarily releasing the first lien security for said note and in failing to comply with the agreement between the parties constituted a legal fraud against appellant; that such action materially injured appellant, in that it rendered it impossible to have a foreclosure sale under said first lien by which the sale price would be credited against the note, thus obtaining at least some benefit and relief to appellant as well as to appellees; that the action of appellees in voluntarily and without reason releasing the security for said note without consideration entitles appellant to a credit on said note of the reasonable market value of the land and the enhancement thereof to the time of a proper foreclosure sale; that appellees by their voluntary release of said lien, without consideration, without necessity, occasion or reason therefor, and without the knowledge, consent and approval of appellant, amounts to a waiver by appellees of all rights against appellant on said note and appellees are now estopped to assert any right against appellant on said note.

Appellant asserts that under the subordination agreement appellees, as holders of the first lien securing the two notes of $102,652.69 and $70,750.00, were assured that, in the event of default by appellant, appellees would either be paid their two notes, including the $70,750.00 here sued upon, by the second lienholder, or upon a foreclosure sale could resume and reacquire ownership of the 64.15768 acre tract by one of the remedies recognized in law and in equity. Appellant urges that he had the right to accept, rely on and insist that ap-pellees either (1) comply with the subordination agreement and obtain an assumption of the unpaid first lien notes by the holder of the second lien, which would have resulted in payment of the note sued upon, or (2) that in the event the second lien-holder did not assume the first lien debts, there would' be a foreclosure sale under the deed of trust so that the purchaser at'such sale could pay off the indebtedness and obtain a clear title, thus using the property or fund standing as security for the notes as contemplated, or (3) appellees could have rescinded the sale, if they had the superior legal, title, and thus recaptured the land, by relieving appellant of further liability on the purchase notes.

Appellees’ motion for summary judgment shows and appellant admits that he executed the $70,750.00 note and was in default of interest payments. The record further shows that pursuant to the terms of the note appellees accelerated the maturity of the note and declared the entire amount of principal and interest due and placed it in the hands of an attorney for collection. The note provided that in case of such a default the owner or holder thereof should have the option, without presentment, demand or notice, to declare the note immediately due and payable. We overrule appellant’s contentions concerning alleged defects in presentment, demand and notice. These undisputed facts entitled ap-pellees to a judgment on the note sued upon in the absence of a valid defense raised by appellant.

It is well settled that the holder of a note secured by a lien may sue on the note and recover a personal judgment against the maker without reference to the lien. Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380; Loughney v. Texas City National Bank, Tex.Civ.App., 252 S.W.2d 954 (no writ history); Harper v. First State Bank, Tex.Civ.App., 3 S.W.2d 552 (error ref.) ; Borschow v. Stephenson, Tex.Civ.App., 166 S.W. 121 (no writ history); 58 Tex.Jur.2d 615.

As contended by appellant, appellees did hold first liens on the 64 acre tract securing payment of both the $70,750.00 and the $102,652.69 notes. The latter was shown to be the purchase price for the 64 acre tract. Southern States Life Insurance Company held a second lien on that tract, subject to the two first liens, and, as the junior lien holder, foreclosed its mortgage on that tract, and purchased the 64 acres at the foreclosure sale. Such purchase did not give Southern States Life Insurance Company title to the land. It held such land subject to the first liens thereon. It is well settled that the junior lien holder in such cases is then authorized to exercise its right of redemption against the holders of the senior mortgages. Shelton v. O’Brien, 285 S.W. 260 (Com. apps. opinion adopted); 39 Tex.Jur.2d pages 236, 237. Southern States Life Insurance Company-exercised its right of redemption by paying to appellees the amount of principal and interest due on the $102,652.69 which was the purported purchase price for the 64 acre tract. Appellees then released their first lien on said land securing the smaller $70,-750.00.

It is to be noted that by the terms of the subordination agreement, itself, the owner of any of the notes executed by appellant could release or rearrange all or any part of the security for such notes. In releasing the security for the $70,750.00 note appellees were acting in complete accord with the subordination agreement and there is no showing of a violation of any obligation to appellant.

We cannot agree with appellant’s contention that the action of appellees in releasing their first lien on the 64 acre tract constitutes or raises a fact issue concerning legal fraud, and that it would be inequitable to hold appellant bound for the full amount of $70,750.00 note after appel-lees voluntarily released their first lien upon that tract of land. Appellant’s contention that it would be inequitable to hold him liable for the full amount of the $70,750.00 note, as alleged and as urged on this appeal is that the value of the 64 plus acre tract sometimes herein referred to as 65 acres was such that it could and would have reasonably sold for a sum sufficient to pay all, or substantially all, of the indebtedness secured thereby. Appellant alleged that because of “the actions of plaintiff and the resulting detriment, unfairness and inequity to defendant — defendant is entitled to an offset and credit thereon to the extent of the reasonable value of the said 64.151768 acre tract in excess of the above mentioned $102,652.69 note also secured thereby — .”

Appellant did not allege the value of the 64 acre tract at the time appellees released their first lien thereon, or at any time material thereto, nor did appellant show such value by affidavits or any other form of proof on hearing of the motion for summary judgment. Such allegations by appellant are in the nature of an affirmative defense which he had the burden to prove. Appellees had established by pleadings and affidavits their right to prevail on their motion for summary judgment. The note was in default and appellees were entitled to the relief sought in the absence of the showing of a valid defense. Their motion could not be denied merely because appellant suggested or alleged matters-which, if proved, would require a different judgment. Fisher v. Howard, 389 S.W. 2d 482 (Civ.Apps., 1965); and cases cited therein.

Appellant has failed to show that he was injured by appellees’ action in releasing its first lien on the 64 acre tract. The purchase of that tract by Southern States Life Insurance Company at the junior lien holder’s sale did not give it title to the land, but only the right to redeem appellees’ senior mortgages. The insurance company did this by paying appellant’s $102,652.69 note which was the purchase price of the tract and was secured by a first lien on'the land. The lien on the land securing such note remained but was thereafter held by the insurance company. There also remained the first lien securing the $70,750.00 note still held by appellees. Appellant was obligated to pay both of these notes before his 64 acre tract would be free of the liens securing them. By discharging such indebtedness, which he did not do, appellant could have had clear title to the land, all indebtedness secured by liens thereon having been paid. In this respect appellant’s position was no worse after appellees’ release of their first lien securing the $70,-750.00 note than it was before such release, except that appellant could have been injured if the value of the 64 acre tract was more than enough to pay the $102,652.69 note. This matter, however, was in the nature of an affirmative defense and appellant submitted no evidence by affidavit or otherwise showing that the 64 acre tract had a value of more than the $102,-652.69, which the insurance company paid to appellees. Under the record appellant has shown no injury. Actually he may have benefited from the transaction by the payment of the $102,652.69 note.

Appellant relies upon Maupin v. Chaney (Sup.Ct.), supra, and Reed v. Hardeman, 5 S.W. 505 (Sup.Ct.), as authority for his contention that he should be allowed credit on the $70,750.00 note for the value of the 64 acre tract in excess of the $102,652.69 note, interest and attorneys’ fees. Those cases are to be distinguished from the instant case. In the Maupin case the evidence showed that plaintiffs had appropriated mortgaged property to their own use and then sought recovery for the full amount of the note. It was held that the defendant was entitled to credit for the value of the property so appropriated by the plaintiffs. In the Reed case the plaintiff who claimed a vend- or’s lien on the land had received $150.00 for a partial release from one who had purchased a portion of the land at an execution sale. It was held that the defendant was entitled to have the $150.00 payment credited on his note. In the instant case appellant did not allege nor did he show on the summary judgment hearing by affidavits or any other form or proof, the value of the 64 acre tract. There was no showing that the value of the tract was more than, or even as much as, $102,652.69, the amount of the other note secured by a lien on the land, which was paid by Southern States Life Insurance Company. Appellees had established their right to prevail on their motion for summary judgment. Appellant urged the defense of “legal fraud.” Since appellant has failed to show that he was injured by appellees’ action in releasing its lien on the 64 acre tract no fact issue was raised concerning his pleaded defense of legal fraud. Appellant’s points are all overruled.

The judgment is affirmed.


author: STEPHENSON, Justice.

text:
    WARREN INDEPENDENT SCHOOL DISTRICT, Appellant, v. SOUTHERN NECHES CORPORATION, Appellee.
    No. 6788.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 14, 1965.
    Rehearing Denied Nov. 24, 1965.

      E. G. Aycock, Ft. Worth, for appellant.
    B. F. Whitworth, Jasper, Garrison, Ren-frew, Zeleskey, Cornelius & Rogers, Luf-kin, Wheat & Wheat, Woodville, Fountain, Cox & Gaines, Houston, for appellee.
   STEPHENSON, Justice.

This is a consolidation of eight cases involving the method of evaluation of property for ad valorem taxes by the Warren Independent School District, hereinafter called “School District”. The suits brought by the taxpayers were in the nature of direct attacks seeking relief from the trial court primarily on the ground that an arbitrary and illegal scheme for the evaluation of timberland had been used for the years 1962 and 1963. The suits by the School District were for the collection of taxes for those two years. Inasmuch as each suit involved the same general questions of law, they were consolidated for convenience. Trial was before the court and judgment was rendered that the tax assessments upon the timberlands be set aside and ordered their re-asséssment.

The trial court made findings of fact, a part of which were as follows:

“9. In making an appraisal of the timber lands the appraiser used a formula, or method, substantially as follows:
“(a) After an on the ground inspection, an estimate was made of the standing, marketable timber. Then, a determination was made of its value.
“(b) To determine the value of the timber lands, as distinguished from the value of the marketable, standing timber thereon, the appraiser attempted to determine the net revenue per acre to be expected from such lands over a period extending fifty years into the future. The formula was based upon the following assumptions: That the highest and best use of said lands would be the continued growing of timber, under sustained yield management; that the first timber would be cut at the end of 20 years; that further cuttings would occur at the end of 30 years, 40 years and 50 years. The appraiser then attempted to determine the cost of growing such timber during the 50 year period, and attempt was made to determine the revenue to be expected from such operation. A 5% discount was applied to both the estimated costs and the estimated revenues. The amount of estimated net income to be produced per acre was made the basis for determining the value to be placed upon such timber land — as distinguished from the value of the standing timber.
“10. In connection with the estimate of the value of standing timber, I find that such timber could only be cut and marketed in an orderly manner over a period of years; it could not be cut and marketed immediately. This factor was not considered by the appraiser when he made his appraisal of the value of such standing timber. No discount was allowed. And as to the growth of such standing timber, during the period before it was cut, the same was not considered by the appraiser, nor did he make any calculation as to what such growth would be.
“11. In connection with the attempt of such appraiser to determine the net income from timber lands at such distant dates in the future as twenty, thirty, forty and fifty years, I find that there are so many, essential, but unknown factors, relating to both the costs and revenues at such distant dates, that any such attempt becomes an expedition into the field of what is purely imaginary, and wildly speculative.
“12. The tax values finally placed upon the timber lands for the years 1962 and 1963 are in excess, percentage-wise, of the values placed upon other properties in the District, that is to say, the percentage of the actual cash market value of the timber lands subjected to taxation is materially greater than the percentage of the actual cash market value of other properties subjected to taxation.
“13. The 100% value placed upon the timber lands, by the District, for the years 1962 and 1963 is a value which is materially in excess of the actual cash market value of such lands.
“18. I find that at the. time of such Board hearing in 1962 the members of the Board of Equalization had. very great confidence in those appraisers who had appraised the timber lands, so much so, in fact, that they were willing to delegate the function of fixing values on such lands to said appraisers. I do not find any intentional wrongdoing on the part of any of such members. But I do find an attitude on the part of such members that the appraisers could deal with the problem of fixing such values better than they, the Board members, could, and I find that they were willing to accept the judgment of the appraisers as to the values of such timber lands, whatever such judgment might be, so that it would not be necessary for the Board members to study, hear, consider or understand the evidence relating to such issues, of timber land values, nor to exercise their own judgment in passing thereon.”

The trial court’s conclusions of law were that the failure of the Board of Equalization to use their own judgment rendered their action invalid, and that the manner of conducting their hearings amounted to a denial of due process „ of law.

The School District first contends the trial court erred in substituting its judgment and discretion for that of the Board of Equalization. The courts of this state are uniform in holding that the courts do not have supervisory control over the boards of equalization and that they cannot set aside a tax assessment as being null and void merely because the court differs with the equalization board as to valuation. State v. Houser, 138 Tex. 28, 156 S.W.2d 968. However, we find nothing in the findings of fact, conclusion'-- of law or the judgment to indicate that the trial court made any such substitution. In the Houser Case, supra, the board of equalization found the value of the land to be $4,000.00 and $4,500.00 and the trial court found the value not to exceed $3,000.00. The Houser Case, supra, further holds that “if a board adopts a method that is illegal, arbitrary, or fundamentally wrong, or if its valuation is grossly excessive, the decision of such board may be attacked and set aside.” The point is overruled.

The School District next contends the trial court erred in rendering its judgment because the taxpayers failed to prove fraud, want of jurisdiction, illegality or the adoption of an arbitrary and fundamentally erroneous plan or scheme of valuation, or that the valuations fixed resulted in substantial injury to these taxpayers. In State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, it is stated:

“When the attack is made because the board followed an arbitrary plan or scheme of fixing values, the taxpayer, to prevail, must show not only that the plan was an arbitrary and illegal one but also that the use of the plan worked to his substantial injury.”

We have concluded that the findings of the trial court, which are set forth above, are in effect a finding by the trial court that the School District had adopted an arbitrary and fundamentally erroneous plan or scheme of evaluation which would result in substantial injury to the taxpayers. It is doubtful that these points of error are specific enough to raise issues in this court as to whether or not the findings of fact set out above in this opinion, are supported by the evidence. The School District uses the term “failed to prove” and it is not specifically stated that the findings of the trial court were supported by “no evidence” or that such findings were “contrary to the weight and preponderance of the evidence.” However, we will give a broad and liberal construction to these points, and consider them as raising these issues. First, in passing upon the “no evidence” points, we consider only the evidence favorable to the findings of the trial court. The evidence of both Frank W. Bennett and Richard M. Townsend in their written report and in their testimony in person before the Board of Equalization, which was also offered in evidence before the trial court, shows that the system of placing values upon the timber lands, as found by the trial court in finding No. 9, was .adopted and used by the Board of Equalization. A comparison of the values testified to by witnesses for the taxpayers and the values arrived at by the Board of Equalization using the plan found to be arbitrary demonstrates a difference in value which this court construes to constitute “substantial injury.” The findings by the trial court are supported by the evidence.

After oral argument, counsel for the School District filed an additional brief and, for the first time, urged specifically that each of the findings by the trial court was supported by “no evidence” and that such findings were each “contrary to the great weight and preponderance of the evidence”. Even though this court has the authority to permit an appellant to amend its brief to present additional points of error, no such request was made by the School District in this case.

In passing upon the points as to whether the findings of the trial court were contrary to the weight and preponderance of the evidence, we considered the entire record. There is testimony in the record by members of the Board of Equalization that they were seeking to determine the true cash market value of the timber lands and considered the Bennett-Townsend Report along with all other evidence in arriving at the final values set. This and other evidence offered by the School District did nothing more than raise issues of fact for the trial court to determine, which it did adversely to the School District. We do not find that such findings by the trial court were clearly wrong or manifestly unjust. These points are overruled.

The School District further contends that the trial court erred in determining and adjudging that the Board of Equalization was required to conduct its deliberations in a formal judicial manner and that failure to do so invalidated the taxable values fixed for the properties of appellees by such Board of, Equalization. This point is apparently an attack upon the conclusion of law by the trial court that the hearings before the Board of Equalization were conducted in a manner so lacking m the qualities of a judicial hearing as to amount to a denial of due process of law. The law is clear that a Board of Equalization is a quasi-judicial body and is not bound by the ordinary rules of evidence. It is allowed a broad latitude in determining values. In passing upon this point we are controlled by the presumption stated in State v. Whitten-burg, supra: “Moreover, when their (Board of Equalization) official action is attacked it will be presumed that such boards discharged their duties as public agencies according to law and acted in good faith.”

The record shows that counsel representing some of these taxpayers were denied the right to cross-examine some of the witnesses giving testimony before the Board of Equalization at a hearing conducted in reference to the value of producing minerals. The Board of Equalization also would not require these witnesses to return for cross-examination at the time of the hearing in reference to the value of timber lands. Even though a hearing before a Board of Equalization is not a judicial proceeding and may be informal in nature, at the same time a protesting taxpayer must be given a reasonable opportunity to develop the facts upon which the protest is based. In this instance the owners of the timber lands were protesting the valuations set upon the producing minerals. Proof that one class of property was not bearing its proportionate part of the tax burden would be evidence that an arbitrary and illegal scheme had been adopted. The owners of the timber lands should have been permitted by the Board of Equalization to cross-examine witnesses upon matters which were relevant and material to this contention. It is undisputed that they were denied this right. The evidence supported the finding by the court that the manner in which the hearing was conducted by the Board of Equalization amounted to a denial of due process of law.

The judgment is affirmed.


author: LANGDON, Justice.

text:
    Etta Belle FIELDS et vir, Appellants, v. BURLISON PACKING COMPANY, Appellee.
    No. 16730.
    Court of Civil Appeals of Texas. Fort Worth.
    June 17, 1966.
    Rehearing Denied July 15, 1966.

      Mock, Banner, McIntosh & Wells, and Jack Banner, Wichita Falls, for appellants.
    Jones, Fillmore, Robinson & Lambert, and Clyde Fillmore, Wichita Falls, for appellee.
   OPINION

LANGDON, Justice.

This is an appeal from a judgment non obstante veredicto for appellee. Appellant Etta Belle Fields, as plaintiff, sued the Burlison Packing Company, as defendant, for damages for personal injuries received by her in the course of employment. The parties will be referred to as in the trial court.

The defendant, although eligible, did not carry Workmen’s Compensation Insurance and therefore, was barred from common law defenses of contributory negligence, assumed risk and negligence of a fellow servant, Art. 8306, § 1 (4), Vernon’s Ann. Tex.Civ.St.

It is necessary, however, to a recovery by the plaintiff that she prove negligence on the part of the defendant or his agent or servant acting in the general scope of employment and that such negligence was a proximate cause of her injury. Art. 8306, § 1 (4), supra.

The jury in answer to special issues found (1) that an employee of the defendant placed the “lifter tub” of hamburger meat on the floor of the shipping room and in doing so failed to exercise due care which was a proximate cause of plaintiff’s injuries; (2) that defendant failed to furnish sufficient help for the handling of the container of hamburger meat at the time and on the occasion in question and such failure was a proximate cause, and that defendant did not fail to exercise due care in failing to provide mechanical lifting devices, in placing thirty pounds of hamburger meat in a single container or in its use of the “lifter tub” container. The total damages fixed by the jury was $16,000.00.

By three points of error the plaintiff contends the court erred in disregarding the jury verdict and in failing to enter judgment for the plaintiff on the jury findings.

We affirm.

Our discussion may be confined to a single question, i. e., was the evidence adduced by the plaintiff legally sufficient to prove negligence on the part of the defendant or his agent or servant which was a proximate cause of her injuries?

Under the rule providing that the court may render judgment non obstante veredicto if a directed verdict would have been proper, “the term ‘no evidence’ does not mean literally no evidence at all. ‘No evidence’ comprehends those situations wherein by the application of established principles of law the evidence is deemed legally insufficient to establish an asserted proposition of fact.” Kirkpatrick v. Raggio, 319 S.W.2d 362 (Fort Worth Civ.App., 1958, ref., n. r. e.); Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, p. 1063 (Sup.Ct., 1928).

Based upon our review of the record we have determined that the evidence is legally insufficient to sustain findings of negligence and proximate cause. A summary of the evidence follows:

Defendant is in the general meat packing business and employs 30 to 40 persons, an average of more than 30 persons regularly, including Saturday, the day here involved. The plaintiff, age 41, was a strong, healthy female employee. She had been continuously employed for 4 years and 9 months on May 9, 1964, date of her alleged injury. According to her testimony she had, during the period of her employment, “worked all over the plant,” did most all of the custom wrapping of meat. She “even filed in the office a little,” and “made filets on the boning table.” She worked “wherever I was needed.” She had picked sides of bacon from an overhead hook, head high weighing between 20 to 30 pounds each, and had sacked hams weighing 25 to 30 pounds each. On May 9, 1964, her employer came to the weiner room where she was making weiners with two female employees whose work she supervised and told her “the meat was ready to be wrapped and they were in a hurry because the man was coming after it and wanted me to go on up there.” She knew he meant the shipping room as this is where meat was weighed and wrapped. The boning room is adjacent to the weiner room and you walk through it to the shipping room. There is only a wall with an opening rather than a door between the shipping room and the boning room.

The hamburger meat was in a metal container described as a lifter tub which is about the size of a No. 2 washtub. It was sitting beside the scales about 5 to 6 feet from them. The tub weighed approximately 15 pounds and contained about 25 to 30 pounds of meat. There were two sets of scales with a table between them which was flush with and connected the two scales. Opposite the scales was another table containing a roll of white wax paper, tape and other materials used m wrapping meat. This table would be 5 or 6 feet behind a person standing in front of the scales. It was used to stack meat on as well as to wrap it. There was testimony that the employer was of the opinion that female employees should not lift more than 25 or 30 pounds and that he discouraged employees from seeking help. The plaintiff by deposition testified she had lifted the tub many times before May 9, 1964 particularly during the past 3 years. At the time of the trial she stated she may have lifted it before but could not remember doing so. She had obtained help in lifting the tub on prior occasions.

On May 9, 1964, the plaintiff saw the lifter tub of hamburger meat sitting on the floor. She knew it was too heavy. There was no one else in the room. She did not seek help elsewhere. She picked the tub up and set it on the scales and in doing so sustained the injury in question. She stated she knew the tub was heavy or too heavy and that there was some risk in lifting it but did not know it would hurt her. She “didn’t think about hurting my back,” although “the tub just looked a little heavy * * * . ” She testified that if she had anticipated injury to her back she would never have picked it up but she was unable to foresee injury to her back — had she thought she was going to hurt her back she “would have quit first” rather than lift the tub.

On the day in question there were 20 to 30 employees on the job. Usually there were as many employees on Saturday, “as there is on any other day.” Any one of these employees could have been summoned for help. She could have called for help without the necessity of leaving her station. There were men working in the boning room that morning. • Tom Pierce was there. He would have assisted the plaintiff had she called out to him according to his testimony. There was at least one person in the office. She saw his head in a’ window that opened into the shipping room. She could have requested the assistance of one or both of the female employees she had been wording wirn in the weiner room. She was their supervisor. Certainly, one or both of them would have responded to a request by her for assistance. The plaintiff admitted that if other employees happened to be in the room she asked for and received help. That they were always agreeable to help if they had time. On the occasion in question she made no effort to determine whether her employer or any of her fellow employees could or would help her. Her only excuse was that no one was in the shipping room at the moment she decided to lift the tub. The plaintiff in her testimony at various points testified, “I wouldn’t ever got any help if I didn’t ask for it,” that the men were pretty agreeable to helping the women when called upon and again, “if they were not busy they never refused to help me.”

There can be no negligence on the part of the employer under such facts. In our opinion the employer under such circumstances should be given the opportunity to say “yes” in response to an employee’s request for assistance.

His attitude or response had such a request been made should not be left to conjecture or imagination and certainly liability should not be hinged or based upon such nebulous grounds. To hold otherwise would place an employer at the mercy of every employee who with help available proceeds voluntarily to perform alone a task requiring assistance. The law does not require an employer to assign to each employee an assistant when the duties or work assignments of such employee may only occasionally require assistance and such assistance when needed is available on request or notice. The court in Western Union Telegraph Co. v. Coker, 204 S.W.2d 977 (Sup.Ct., 1947), said, “The employer is not liable when he has provided help and injury results from the act of the employee in voluntarily proceeding to do the work without assistance. The same is true when sufficient help is nearby and available and the employee does the work alone without seeking or askihg for assistance.”

Under this record lifting the tub in question was the only task the plaintiff had during the day in question which required assistance and then only for a few moments. She knew the tub was heavy and risk was involved in lifting it but she abstained from seeking help which she knew was available and voluntarily lifted it.

“The fact that, at the time a workman was injured in attempting to handle a heavy object with insufficient assistance, there was sufficient help available which he could have readily secured has often been relied upon as indicating the master’s freedom from negligence.!1’ 36 A.L.R.2d, p. 32, § 7(c). See Jackson v. Marshall, 243 S.W.2d 205 (Dallas Civ.App., 1951, no writ hist.); and Shumake v. Great Atlantic & Pacific Tea Co., 255 S.W.2d 949 (Dallas Civ.App., 1953, ref., n. r. e.). In the same text (36 A.L.R.2d, p. 30, § 7 (a)), “ * * * or that by adopting another available method of doing the work, the danger could have been avoided,” and page 30, § 7(b), “The fact that the number of men supplied to move a heavy object was insufficient to permit the job to be done in safety by the means adopted by the workmen will not ordinarily charge the master with negligence if the same number of men could have done the work without injury by following another plan of operations equally available to them.” And page 32 same text, “In cases where the size of the load was left to the employee’s discretion, the fact that he attempts to carry a load beyond his capacity and is injured does not subject the master to liability for failing to supply him with assistance.” Jackson v. Marshall, supra. In this case an employee suffered a strain in carrying a tub of waste weighing 75 to 100 pounds. There was no showing he was required to fill the tub to this level, but he voluntarily did so. In Shumake v. Great Atlantic & Pacific Tea Co., supra, a woman employee was injured in lifting a heavy tray of meat. It was shown that there were empty trays available to which she could i'have shifted part of the load, but she did not do so.

“However, if the injured employee had no discretion in choosing the plan of operation, the fact that the job might have been done safely with the number of men supplied if the employer * * * had chosen another procedure will not excuse the employer from his failure to supply sufficient men to do the job by the method which he has actually chosen.” 36 A.L.R.2d, p. 32, § 7(b).

In this case the method of doing the assigned task was within the sole discretion of the plaintiff. She testified, “I hadn’t been instructed how to do it” and at another point, “no, sir, he never told me how to do it.”

This record discloses at least two other methods available to the plaintiff by which she could have accomplished her assignment with safety to herself. She was asked, “Did you have any other kind of container, other than the big, large tub that this meat had been put in out there?” She answered that they had some buckets down there the size of and with handles like a two gallon water bucket. She was then asked, “would hamburger meat put in these * * * be less weight than these big tubs of meat?” and she answered, “Oh, yes.” “Q. Would it have been easier for you to lift than this big tub of meat? A. Yes, sir, because I could have picked it up by the bail and the bucket didn’t weigh much.”

There was no explanation in the record as to why the plaintiff did not use one of the buckets to transfer the hamburger meat from the tub to the scales. It would have required two trips or three at the most over the five or six foot space between the tub and the scales. She knew the tub was too heavy and that the bucket “didn’t weigh much.” Shumake v. Great Atlantic & Pacific Tea Co., supra, involving the employee injured in lifting a heavy tray of meat with empty trays available rather than buckets as here to transfer the meat is directly in point. In the Shumake case the plaintiff on previous occasions had ask-' ed for and received assistance from other employees and knew that she could have obtained help before she was injured but the men employees complained about helping her.

Plaintiff’s co-employees testified as to another and safer way by which they had performed the same task and that they had seen the plaintiff in the past use the same method. To employ this safer method the tube of meat was left on the floor. Meat was removed from it by the handsful and deposited on paper which had been placed on the scales.

To remove the meat from the tub you could, “pat it around” and “lift fifteen pounds up there,” (to the scales) in one “gob” by hand. After you got it on the scales you could take it off, “what you needed — a certain amount goes in each package.” The meat was usually in one, two or three pound packages, seldom more than three pounds in a single package. The plaintiff rejected this method because of the remote possibility of dropping the meat on the dirty floor yet she transfered the meat from scales to wrapping table the same distance without dropping it on the floor.

By the use of this safer method the plaintiff could have removed the 25 or 30 pounds of hamburger meat from the tub to the scales with little or no loss of time and without risk of injury. Further, the plaintiff could have moved the tub by sliding it over the floor to a position closer to the scales rather than lifting it up onto them.

The plaintiff asserted that she alone or with assistance always lifted the tub upon the scales and took the meat out by hand with an eye on the scales to determine the weight of the meat removed. In this manner the meat was prepared in separate parcels for wrapping. The plaintiff not only denied she had ever used the safer method above described but stated she never saw anybody else wrap the hamburger meat and never saw anybody pick it up handful at a time to weigh it. She stated, “I don’t have any way of knowing when I pick that meat up in my hand whether it weighs a pound or not, so when I put it on the scales, I’m not going to have the right amount and I’ve got to go way back over there again either to put meat back or to take more meat out.” Way back over there is a distance of five or six feet, the same distance as from the scales to the wrapping table.

Here as elsewhere the plaintiff puts considerable stress on the fact that she was told to hurry and wrap the hamburger meat.

It was unnecessary for her to make trips to put meat back or take more out. By putting the meat in “gobs” on the paper or by use of one of the buckets available she could have employed the same method she was accustomed to because either the paper or the bucket would have been on the scales in place of the tub. Her testimony that the scales were bloody and she did not have time to clean them off is untenable. There was a cloth or shroud available for this purpose or she could have placed some of the wax paper on the scales as did other employees to protect the meat. The time element under this record was not crucial or critical except in the mind of the plaintiff. It was used by her as an excuse to explain her action in voluntarily lifting the tub without calling for assistance when she knew it was too heavy and in failing to employ a safe method of procedure when same was available at her discretion. Under the. authorities her excuse is legally unacceptable.

In Great Atlantic & Pacific Tea Co. v. Lang, 291 S.W.2d 366 (Eastland, Tex.Civ.App., 1956, ref., n. r. e.), the jury found the defendant guilty of failing to provide sufficient help and a lift and transport device to carry the cartons involved. The Court of Civil Appeals reversed and rendered for defendant. In that case, as here, the plaintiff had no specific instructions as to how he should perform his assignment. He admitted it was pretty well left to his discretion. There was a safe way by which the plaintiff could have performed his task had he chosen to do so. He testified that he was told by his employer “to hurry and fill the shelves.” The court in reversing and rendering said, “The fact that he may have attempted to lift a load beyond his capacity and was injured thereby does not subj ect appellant to liability for failure to supply him with assistants. Louisville & N. R. Co. v. Green, 255 Ala. 642, 53 So.2d 358. The burden was on appel-lee to show that he was not furnished sufficient help to handle the cartons of tissue with safety to himself, employing such methods as were open to him. The appellant is not to be held negligent in this respect as there is a safe and reasonable way to perform the task with the force at hand. There is no showing that appellant could have foreseen that appellee would attempt to lift the carton of tissue to a greater height when a less hazardous method was available to him.” See also 38 Tex. Jur.2d, p. 277, § 98 (p. 280), wherein it is stated, “The burden is on the injured employee to show that he was not furnished sufficient help to handle the work with safety to himself, even employing such work methods as were open to him.” See also August v. Texas & N. O. R., 265 S.W.2d 148 (Beaumont, Tex.Civ.App., 1954, ref., n. r. e.); Sears, Roebuck & Company v. Wedgeworth, 252 F.2d 759, rehearing denied (1958).

There was more than one safe way in which the plaintiff could have performed the task if she had chosen to do so. She did not, and under the authorities no liability can be imposed upon the employer for such failure. See also Collins v. Singer Sewing Machine Company, 239 F.2d 705, Fifth Cir., New Orleans, Louisiana (1957), appealed from Wichita Falls, Texas.

The mere placing of the lifter tub on the shipping room floor cannot in itself be negligence under the facts of this case. We are of the further opinion that the plaintiff cannot prevail because one element of proximate cause, that of foreseeability, is not present and neither of the findings of the jury is a proximate cause of the injury sustained by the plaintiff. Even the plaintiff was unable to foresee injury according to her testimony.

In Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249 (1943), citing Collins v. Pecos & Northern Texas Ry. Co., 110 Tex. 577, 212 S.W. 477, 222 S.W. 156; Johnson v. Wichita Valley R. R. Co., Tex.Civ.App., 104 S.W.2d 128, it is stated: “Although injury may result from a person’s act or omission, yet, if the actor could not have reasonably foreseen the resultant injury, or injuries, similar in character, he is not to be held responsible therefor, 30 Tex.Jur. p. 663, and authorities there cited; Texas & Pacific Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; Union Stock Yards v. Peeler, Tex.Com.App., 37 S.W.2d 126.” The opinion concluded, “Finally, we think that the facts of this record fail, as a matter of law, to show that A. & P. ought to have foreseen that Evans would be injured by doing the character of work required of him in this instance.”

In considering the evidence from the standpoint most favorable to the plaintiff we can find no basis for findings of negligence or proximate cause on the part of the appellee.

In 38 Tex.Jur.2d, p. 277, § 98, it is stated: ‘‘An employer must furnish an adequate force of competent workmen for carrying on the work requested of the employees with reasonable safety. The master must use ordinary care to see that there are sufficient servants present at a particular piece of work to insure the safety of all engaged in the labor. The master’s duty extents to all classes of work, ranging from the navigation of an ocean steamer and the operation of a railway train to the lifting of a log or the turning of a stone. This duty is continuous and nondelegable where the supplying and placing of a sufficient number of workmen is essential to the safety of the employees. * * * To impose on the master prima facie liability for any breach of duty in this connection, the assignment of an insufficient force must be the proximate cause of the injury. When work is done regularly by other employees without assistance, one element of proximate cause, that is, foreseeability, is not present and therefore the failure on the part of the employer to furnish extra help is not a proximate cause of the injury. * * * Also an employer is not liable when he has provided adequate help and injury results from the act of the employee in voluntarily proceeding to do work without assistance, or when sufficient help is nearby and available and the employee does the work alone without seeking or asking for assistance. Further, where the movements of servants are not controlled by a superior, temporary inadequacy of servants at the time and place of the injury cannot be made the ground for a recovery, unless the inadequacy was known, either actually or constructively, to the master or his representative.” See also 35 Am.Jur., p. 626, § 197 and authorities cited therein.

All points of error are overruled and the judgment is in all things affirmed.

Affirmed.


text:
    Theron W. KING, Appellant, v. AETNA CASUALTY & SURETY COMPANY, Appellee.
    No. 6800.
    Court of Civil Appeals of Texas. Beaumont.
    June 23, 1966.

      Waldman & Smallwood, Beaumont, for appellant.
    King, Sharfstein & Rienstra, Beaumont, for appellee.
   STEPHENSON, Justice.

This is a suit brought under the Workmen’s Compensation Act in which plaintiff sought recovery for total and permanent disability. Judgment was rendered for defendant upon the answers of the jury to the special issues. The parties will be referred to here as they were in the trial court.

The jury found: That plaintiff sustained an injury. That such injury was accidental. That such injury was not sustained in the course and scope of his employment. That plaintiff’s disability was solely caused by the disease of arteriosclerosis, or bronchitis, or a combination of the two.

Plaintiff urges first that there was no evidence to support the findings of the jury that plaintiff’s injury was not sustained in the course of his employment and that his disability was solely caused by the disease of arteriosclerosis, or bronchitis, or a combination of the two. In passing upon these points we consider only the evidence favorable to such jury findings.

The evidence showed: Plaintiff became sick while working as an ironworker on his job, had cold chills and then sweating. That the onset of sickness came about 11:00 in the morning of a hot day, July 5, 1961. That plaintiff vomited and went to first aid. That pains hit him while he was lying in bed at the first aid station under the left shoulder and then around in front. Plaintiff was taken to the hospital and was given an electrocardiogram, and it was established that he had suffered a heart attack. It is plaintiff’s contention that this heart attack was brought on because of the fact that plaintiff over-exerted himself on his job while in the hot sun and suffered a heat stroke and exhaustion. Defendant contends that there was no connection between the heart attack and plaintiff’s employment.

The following evidence supported the finding of the jury: Dr. Thomas Lom-bardo, the only cardiologist testifying in this case, gave the following evidence: That plaintiff had suffered a coronary thrombosis or a heart attack. That the medical term defining plaintiff’s condition was arteriosclerotic coronary artery disease with recent diaphragmatic infarction. That plaintiff also had chronic sinusitis with chronic bronchitis and bronchial spasm. That the onset of a heart attack is a variable thing which generally occurs without warning and more commonly when the patient is sleeping. That the plaintiff’s work had nothing to do with his illness which originated from natural causes. That the heat and the exertion did not aggravate nor precipitate this heart attack. That Dr. Lombardo had not been employed by defendant, but had been called into the case by plaintiff’s family physician for the purpose of treating plaintiff. That when plaintiff made application for disability payments July 12th, 1961, his statement showed that his disability was not in any way connected with his employment. That following such application plaintiff received, endorsed and cashed nine disability checks which each certified that the disability was not connected with his employment. Such checks covered a period of time from July 1961 until November 19, 1961. That plaintiff signed a written notice of injury and claim for workmen’s compensation November 20, 1961. That plaintiff returned to work in January 1962 for a different employer and worked on various construction jobs to the date of this trial. The points are overruled.

Plaintiff also urges a series of points that such findings of the jury were supported by insufficient evidence, and were contrary to the great weight and preponderance of the evidence. We consider the entire record in passing upon these points. Plaintiff called two doctors to testify in person, and a third by deposition. All three of these doctors expressed the opinion that the heart attack suffered by plaintiff was produced by the heat exhaustion and the over-exertion. Plaintiff testified: That the day of his injury was very hot, and the records of the weather bureau showed the temperature to be 95 in the sun and 91 in the shade. That he was 52 years of age. That plaintiff’s crew was one man short in doing the work they were called on to perform at the time of his injury. Such testimony was corroborated by a fellow employee. All of this testimony did no more than raise issues for the jury to determine, which it did adversely to the plaintiff. We do not find such answers by the jury to be so contrary to the weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. The points are overruled.

Judgment affirmed.


author: WALTER, Justice.

text:
    CARTE BLANCHE, Appellant, v. Virgil W. JOHNSON, Appellee.
    No. 4061.
    Court of Civil Appeals of Texas. Eastland.
    June 17, 1966.
    Rehearing Denied July 15, 1966.

      Arthur C. Steere, Houston, for appellant.
    Hallie W. Gill, Houston, for appellee.
   WALTER, Justice.

Carte Blanche filed suit against Virgil W. Johnson on a contract as provided for under Rule 185, Texas Rules of Civil Procedure, to which Johnson filed a sworn denial as provided for by said rule. In a non-jury trial the court rendered a judgment that the plaintiff take nothing by its suit. The plaintiff has appealed.

Appellant’s points are as follows:

“The Trial Court erred in granting Ap-pellee’s Motion for a ‘Take Nothing’ judgment, following plaintiff’s or appellants’ qualified or contingent ‘rest’, because all or any of Appellants’ evidence was sufficient to support a preponderance in favor of this Appellant, such action by the Trial Court being contrary to both the law and the evidence.”
“The entire case of the Plaintiffs below was tried under a ‘misconception’ and a ‘misapprehension’ in both the Plaintiffs and the Court (Judge), as to both the law and the facts applicable (both the facts and the law applicable thereto).”
“The trial judge was under a duty to ‘shift the burden of proof’, or “Shift the burden of persuasion’, or shift to the defendant ‘the burden (duty) of going forward with the evidence.’ ”
“The Trial Judge was under a duty to read both the Motion for New Trial and the Amended Motion for new Trial, to examine the authorities cited therein, to admit them into evidence and consider them as a part of a continuing trial, and grant the relief prayed for therein (reopen the case for further consideration on the merits.)”

Rule 418 T.R.C.P. provides that points will be sufficient if they direct the attention of the court to the error relied upon. We are inclined to believe that these points are too general to be considered proper points under the rule. However, we will consider such points for the reasons set forth in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (Sup.Ct.). In Davis v. Gilmore, 244 S.W.2d 671, (Ct.Civ.Apps., writ ref. 1951) at page 674the court said:

“The sworn account was met by a sworn denial which required appellees to establish their account by legal and competent evidence independent of the aid of Rule 185, Texas Rules of Civil Procedure.”

The court found that Carte Blanche failed to establish its case by legal and competent evidence. The record supports such conclusion.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: SELLERS, Justice.

text:
    NATIONAL FURNITURE MANUFACTURING COMPANY, a Corporation, Appellant, v. CENTER PLYWOOD COMPANY, Inc., Appellee.
    No. 214.
    Court of Civil Appeals of Texas. Tyler.
    June 16, 1966.
    Rehearing Denied July 21, 1966.

      Wardlow W. Lane, Joe Davis Foster, Center, Butler, Binion, Rice, Cook & Knapp, Frank J. Knapp, Houston, for appellant.
    McLeroy & McLeroy, Tom McLeroy, Center, for appellee.
   SELLERS, Justice.

Center Plywood Company, a corporation, located in Shelby County, brought this suit in the District Court of Shelby County to recover indebtedness of several thousand dollars alleged to be due it by appellant, National Furniture Manufacturing Company, a corporation, with its place of business in Wharton County.

The defendant in the trial court and the appellant here filed its Plea of Privilege to be sued in the county of its residence which plea was in due form. The plaintiff in the trial court and appellee here filed its controverting Plea of Privilege in which it seeks to sustain venue in Shelby County under Section 23, Article 1995, Vernon’s Ann.Tex.Civ.St, which provides:

“ * * * [s]uits against a private corporation, association, or joint stock company may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; * *

Upon a trial of this issue before the court without a jury, judgment was entered overruling appellant’s Plea of Privilege from which judgment the appellant has duly prosecuted this appeal.

The only evidence offered on the hearing of the Plea of Privilege was that of appellee and although the suit is for a much greater amount insofar as this hearing is concerned, the appellee relies upon that part of his cause of action evidenced by a so-called “purchase order” in the amount of $10,732.-68.

The facts being undisputed, this appeal turns upon the proper interpretation of these facts as to which county this contract was entered into. Appellant contends that it was entered into in Wharton County where it has its residence; appellee contends that it was executed in Shelby County where it has its residence. There can be no doubt that venue under this section of the venue statute is controlled by the fact of where the contract was entered into or, stated another way, “In the county where the purchase order, as finally agreed upon, was accepted.” Early-Foster Co. v. A. P. Moore’s Sons, Inc., Tex.Civ.App., 230 S.W. 787; Mercantile Securities Co. et al. v. Taylor, Tex.Civ.App., 60 S.W.2d 1059.

The purchase order came about in this way: The Appellant, a corporation, is engaged in the furniture manufacturing business and was in need of certain material to fill a particular order. The appellee is in the lumber manufacturing business and manufactures the kind of material which the appellant needed to fill its order for furniture. The appellant mailed to appellee, at Center, Texas, a complete list of material needed to complete its order for furniture and asked appellee to quote it the prices on the particular lumber. Appellee answered this letter and gave the appellant a figure of $10,732.68 for which it would fill the order. Upon receiving this offer, appellant filled out the so-called “purchase order,” above referred to, and mailed it to appellee at Center, Texas, in Shelby County. This purchase order contained several provisions which the parties had not theretofore discussed or agreed upon. It provided for delivery of the material f. o. b. East Bernard, Wharton County; it likewise provided for payment to be made in Wharton County, and it further provided that delivery of the material was to be made by June 21, 1965. When this purchase order was received in the mail by appellee, it refused to accept the same for the reason only that it could not deliver the material by June 21st, and a Mr. Boyette, Vice-President and General Manager of appellee, placed a telephone call from Center in Shelby County to Mr. Levianthal, President of appellant’s corporation in Wharton County, and advised Mr. Levianthal that he could not possibly deliver the material by June 21st and asked for a change of this date to July 21st. Mr. Levianthal, then and there, over the telephone agreed to this final change. The appellant thereafter wrote a letter to appellee confirming the telephone conversation changing the date to July 21st. Thereafter, appellee wrote a letter acknowledging receipt of the purchase order. Mr. Boyette testified on the trial as follows:

“Q All right. Then when the purchase order was sent to Center by Mr. Levianthal and you ironed out the fact that you couldn’t make delivery by June 21st with Mr. Levianthal, but requested that you be given to July 21st, and he having agreed to that additional 30 days, then Center Plywood Company proceeded to get itself in shape to make delivery, is that correct?
“A That’s correct.
“Q All right. And thereafter Center Plywood Company did make de- >■ livery, pursuant to this purchase order P-8 did it not?
“A That’s right.
“Q And on your invoices to National Furniture Company in connection with the Auburn j ob, you have shown on the face of your invoices, and I’ll not take time to refer to each one, but looking at the top one, it shows that the customer’s order number was 6203791, which corresponds with the number of the purchase order that was issued to you by National Furniture Company, is that not correct ?
“A That’s correct.
“Q Consequently, when you ironed out with Mr. Levianthal the extension from June 21st to July 21st, 1965, then as far as you were concerned you folks had a deal, isn’t that correct?
“A That’s correct.”

It is pointed out in appellee’s brief that there cannot be a contract until the parties’ minds meet respecting the subject matter of the agreement and all its essential terms. Norwood V. Adams, Tex.Civ.App., 51 S.W.2d 625.

Appellee further states in its brief that in making a contract, the offer must be certain and unambiguous, and acceptance must be identical with the offer. Morrow v. De Vitt et al., Tex.Civ.App., 160 S.W.2d 977.

The acceptance of the offer must be unqualified and unconditional, and in the exact terms of the offer. Garrett et al. v. International Milling Co., Tex.Civ.App., 223 S.W.2d 67.

Appellee makes the further statement in its brief that acceptance modifying an offer is a counter-offer which must be accepted. Liquids Dispatch Line v. Texas Power & Light Co., Tex.Civ.App., 6 S.W.2d 169.

We are in full accord with the above principles of law as set out in appel-lee’s brief. To the above statements of the law may be added the rule set out in the case of Mercantile Securities Co. et al. v. Taylor, Tex.Civ.App., 60 S.W.2d 1059. In discussing venue under subdivision 23, it is held:

“It is well settled by the decisions of this state that since a contract upon which a suit is based is a part of the cause of action for damages for its breach, the county in which it is consummated is material in the determination of whether or not venue is properly laid under the subdivision of the statute; and many decisions might be cited holding that when, through the medium of correspondence, wire, or telephone, an offer is made by a person in one county to a person in another county and is accepted by the latter, then the contract is deemed to have been made in the county where the offer is accepted; and by reason thereof venue of suit may be laid in that county, but not in the county where the offer originated.”

Applying the above rules of law to the facts of this case, we are of the opinion that there was a counter-offer made by the General Manager of appellee when he called the appellant in Wharton County and negotiated a changé of the date of delivery to July 21st which was accepted by the appellant in Wharton County, and venue of this case is in Wharton County and not Shelby County.

The appellee contends that the material was delivered to appellant in Shelby County on its trucks and for this reason a part of the cause of action arose in Shelby County. It will be observed that the purchase order provided for delivery f. o. b. East Bernard in Wharton County. It is true that some of the material was actually delivered to appellant on its trucks in Shelby County but this was done because appellee was not able to comply with its contract to make delivery and it is not disputed that appellee paid appellant the delivery charges for the use of its trucks. This, in our opinion, did not constitute performance in Shelby County of the contract. Larry Lightner, Inc. v. United States, 5 Cir., 213 F.2d 449.

The contract having been made in Wharton County, and no breach of the contract having taken place in Shelby County by appellant, venue under Section 23 has not been shown in Shelby County. Ohio Oil Co. v. Varner, Tex.Civ.App., 150 S.W.2d 185. The appellee assigns error in that appellant waived its Plea of Privilege by proceeding to trial on the merits of its case before the hearing on the Plea of Privilege became final.

The facts are that appellant filed its answer to the merits of the case subject to its Plea of Privilege. No action was had on the merits until the court had overruled appellant’s Plea of Privilege and notice of appeal entered from which this appeal was duly perfected.

The appellant having appealed from the order overruling its Plea of Privilege could proceed to trial of the case on the merits without waiving its Plea of Privilege. Vol. 59, T.J.2d, page 616, Sec. 162.

The judgment of the trial court is reversed and the case ordered transferred by the Clerk of the trial court to the District Court of Wharton County.


text:
    O. G. DYER, Appellant, v. METALLIC BUILDING COMPANY, Appellee.
    No. 4072.
    Court of Civil Appeals of Texas. Eastland.
    June 10, 1966.
    Beard & Kultgen, D. B. Kultgen, J. Robert Sheehy, Waco, for appellant.
    James C. Boone, Houston, Baker, Botts, Shepherd & Coates, Robert A. Hall, Houston, for appellee.
   COLLINGS, Justice.

This is a plea of privilege case. Metallic Building Company, hereinafter referred to as Metallic, brought suit against O. G. Dyer, James Fendley, Langston Building Company and R. E. Langston on a promissory note. O. G. Dyer filed a plea of privilege to be sued in McLennan County, the alleged place of his residence. Metallic controverted contending that the note was payable in Harris County where the suit was filed and that venue was laid in Harris County under the provisions of subdivision 5 of Article 1995, Vernon’s Ann.Tex.Civ. St. Metallic further urged that in any event Dyer had waived his plea of privilege. The court overruled the plea of privilege. Dyer has appealed.

Appellant, O. G. Dyer, presents points contending that the court erred in overruling his plea of privilege because (1) the note was not payable in Harris County and (2) there was no waiver of his right to be sued in the county of his residence. The provision of the note concerning appellant’s promise to pay is as follows: “ — Promise to pay to the order of Metallic Building Company, a Texas corporation, with offices at 4601 Holmes Road in Houston, Texas — ”. In our opinion appellant’s contention that the note is not payable in Harris County and, therefore, does not come within the provisions of subdivision 5 of the venue statute, is well taken. Appellant’s promise, as shown by the above quotation from the note is, in effect, to pay to the order of Metallic Building Company, which has offices in Houston. The note does not provide that payment is to be made at the offices of appellant in Houston. It only indicates that Metallic’s office is in Houston but does not show a promise to pay at that place, or at any designated place in Houston or Harris County.

We next consider the question of whether appellant has waived his right to assert his plea- of privilege. Pleas of privilege to be filed in due order of pleadings must precede a general answer, pleas in abatement and exceptions. Rule 84, Texas Rules of Civil Procedure. Hearn v. Frazier, 228 S.W.2d 582, (Tex.Civ.App. 1950). The record shows that Metallic’s original petition was filed on April 23, 1963. On May 18, 1963, Dyer filed an original answer and a plea in abatement. The plea in abatement asserted the pendency of a lawsuit in another Texas county between the same parties involving the same claim, and prayed that “this case be abated pending the disposition” of such other suit. Dyer’s plea of privilege was not filed until more than two years later, on November 1, 1965. It is a well settled general rule that a plea of privilege is waived if not filed seasonably and in due order of the pleading. O’Neal v. Texas Bank & Trust Company, 118 Tex. 133, 11 S.W.2d 791; Ware v. Texboro Cabinet Corporation, 350 S.W. 2d 47, (Tex.Civ.App.1961, writ dis.); Chapa v. Cox, 271 S.W.2d 486, (Tex.Civ.App.1954, no writ history); Crosby v. Heldt Bros. Trucks, 394 S.W.2d 235, (Tex.Civ.App.1965) ; Dossey v. Oehler, 359 S.W.2d 624, (Tex.Civ.App. 1962, N.R.E.); Foster v. H. O. Wooten Grocer Company, Tex.Civ.App., 273 S.W.2d 461; McDonald v. Grant, 312 S.W.2d 694, (Tex.Civ.App.). We hold that appellant, by filing his original answer and plea in abatement in May of 1963, and not filing his plea of privilege until November 1, 1965, waived his plea of privilege, and the court did not err in overruling same.

The judgment is affirmed.


text:
    Alfred NYMAN, Appellant, v. Jesse SCHNITZER, Appellee.
    No. 4058.
    Court of Civil Appeals of Texas. Eastland.
    June 17, 1966.
    Rehearing Denied July 22, 1966.

      Marvin Teague, Houston, for appellant.
    Douglas J. Wadsworth, Houston, for ap-pellee.
   WALTER, Justice.

Jesse Schnitzer filed suit against Alfred Nyman on a judgment obtained by him against Nyman in the State of New York. The court granted plaintiff’s motion for summary judgment and the defendant has appealed contending the court erred in granting such judgment. The case was tried on an agreed statement of facts as follows:

“Jesse Schnitzer, Plaintiff herein, is a duly licensed, practicing dentist of the State of New York, with offices at 33 West 42nd Street, New York City, New York. Alfred Nyman, Defendant herein, is at the present time a resident of the State of Texas. Prior to the time Defendant became a resident of Texas, he was a resident of the State of New Jersey. During such time as Defendant was domiciled in New Jersey, Plaintiff performed certain dental services for Defendant and members of his family, at Defendant’s request. Said dental services were performed in Plaintiff’s office in the City of New York. Upon the subsequent failure or refusal of Defendant to pay for such dental services, Plaintiff on October 9, 1964, filed suit to recover the amount due, which said action was styled Jesse Schnitzer vs. Alfred Nyman, No. 166,724-64, in the Civil Court of the City of New York, County of New York, State of New York. Defendant was subsequently personally served with citation of the pending New York cause in Houston, Texas, on October 14, 1964, by Harris County, Texas, Deputy Sheriff, J. W. Fry. Defendant filed no answer in the pending New York cause and on February 5, 1965, Judgment was rendered therein for the Plaintiff by the Civil Court of the City of New York in the amount of $536.85. The action before this Court today, cause No. 134,117, Jesse Schnitzer v. Alfred Nyman, County Civil Court at Law Number One, Harris County, Texas, is a suit on the aforesaid unsatisfied Judgment of the Civil Court of the City of New York.”

“The plaintiff herein, Jesse Schnitzer, is the present owner of an unsatisfied Judgment of the State of New York, styled Jesse Schnitzer vs. Alfred Nyman, No. 166,734 — 64, rendered February 5-, 1965, by the Civil Court of the City of New York. Said unsatisfied Judgment is in the amount of $536.85, and is the basis of this cause now pending in the County Civil Court at Law Number One of Harris County, Texas.

“The laws of New York previously cited by Plaintiff in his Brief in Support of his Motion for Summary Judgment, said laws being McKinney Const. Art. 6, Section 15; New York City Civil Court Act, Section 404; CPLR Section 302; and CPLR Section 313, are laws relating to jurisdiction and judgments rendered in the State of New York. Said laws were effective at all times pertinent to the rendition of the New York Judgment, are in existence at the present time, and have not been repealed. Photocopies of said laws of the State of New York are attached to this First Supplemental Stipulated Fact Agreement as Exhibit ‘A’ ”.

The applicable portions of such laws are as follows:

“§ 404. Summons; personal jurisdiction by acts of non-residents
(a) Acts which are the basis of jurisdiction. The court may exercise personal jurisdiction over any non-resident of the city of New York, or his executor or administrator, as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state and a resident of the city of New York if, in person or through an agent, he:
1. transacts any business within the city of New York; * * *.”
“§ 302. Personal jurisdiction by acts of non-domiciliaries
(a). Acts which are the basis of jurisdiction. A court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state, if, in person or through an agent, he:
1. Transacts any business within the state * *
“§ 313. Service without the state giving personal Jurisdiction
A person domiciled in the state or subject to the jurisdiction of the courts of the state under section 301 or 302, or his executor or administrator, may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service within the state who is a resident of the state or by any person authorized to make service by the laws of the state, territory, possession or country in which service is made or by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction.”

This case was submitted to the court on an agreed statement of facts. Rule 263, T.R.C.P. provides that such an agreed statement and the judgment shall constitute the record. The findings of fact have no place in the record on appeal. Also in Rolfe v. Swearingen, 241 S.W.2d 236 (Tex.Civ.App.195l, writ ref. n. r. e.), after holding that the court did not err in refusing to make and file findings of fact and conclusions in a summary judgment case, at page 241 the court said:

“And as stated in Barron & Holtzoff on Federal Practice and Procedure, pp. 121— 2: ‘Logically, findings of fact should not be made in disposing of motions for summary judgment. Findings are appropriate only in deciding issues of fact. In granting a motion for summary judgment, however, the court merely rules that there are no material issues of fact; in denying such a motion, the court holds that there are material issues of fact to be tried, but does not decide them.’ ”
Appellant’s single point is:
“The trial court erred in sustaining appel-lee’s motion for summary judgment and overruling appellant’s motion for summary judgment in that the judgment rendered thereon was contrary to law.”

In McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed. 2d 223 (1957), the Supreme Court of the United States said:

“Since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, this Court has held that the Due Process Clause of the Fourteenth Amendment places some limit on the power of state courts to enter binding judgments against persons not served with process within their boundaries. But just where this line of limitation falls has been the subject of prolific controversy, particularly with respect to foreign corporations.
In a continuing process of evolution this Court accepted and then abandoned ‘consent,’ ‘doing business,’ and ‘presence’ as the standard for measuring the extent of state judicial power over such corporations. See Henderson, The Position of Foreign Corporations in American Constitutional Law, c. V. More recently in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 [161 A.L.R. 1057], the Court decided that ‘due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ Id., 326 U.S. at 316, 66 S.Ct. at 158.”

Did the appellant have the required minimum contacts with the State of New York? We hold that the agreed statement of facts establishes that he did as a matter of law. O’Brien v. Lanpar Company, 399 S.W.2d 340 (Tex. 1966), supports our holding.

The judgment is affirmed.