text:
    Ex parte Frank COLE, With Alias.
    No. 40642.
    Court of Criminal Appeals of Texas.
    July 26, 1967.

      Frank Cole, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an original application for habeas corpus by relator who is confined in the Texas Department of Corrections. The judgment, a copy of which relator attached to his pro se application, indicates he plead guilty before the court on April 18, 1960, to the offense of Assault with Intent to Commit Rape, in the then Criminal District Court of Travis County, and was assessed a punishment of confinement in the State penitentiary for life. The sentence attached to relator’s application, applying the indeterminate sentence law, recites a punishment of not less than two (2) years nor more than life.

The relator’s contention is that Article 1162, Vernon’s Ann.P.C., denouncing the offense of Assault with Intent to Commit Rape provides for a penalty of “any term of years not less than two”; that a life term is not included within the statute, and that, therefore, the judgment and sentence providing for a life term are unauthorized; that the same not being authorized, the minimum term is two (2) years; and relator having served more than such minimum term, he is entitled to his discharge as the remainder of the sentence is excessive and void.

Relator’s contention is correct, and was recently sustained by this Court in Ex parte Davis, Tex.Cr.App., 412 S.W.2d 46.

It having been shown by certificate of the Texas Department of Corrections that the relator has credit for over fourteen (14) years, which is in excess of the minimum punishment provided for the offense of Assault with Intent to Commit Rape, he is entitled to release. Ex parte Davis, supra; Ex parte Rolen, 163 Tex.Cr.R. 525, 294 S.W.2d 403; Ex parte Goss, 159 Tex. Cr.R. 235, 262 S.W.2d 412; Ex parte Erwin, 145 Tex.Cr.R. 504, 170 S.W.2d 226.

It is so ordered.


source: Caselaw Access Project

author: BELCHER, Judge.

license: Public Domain

text:
    Ex parte Marcelino R. MEDINA.
    No. 40549.
    Court of Criminal Appeals of Texas.
    July 26, 1967.

      Joseph Chacon, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION.

BELCHER, Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding the appellant to custody for extradition to the State of Illinois.

At the hearing on the writ, the state introduced in evidence the executive warrant issued by the Governor of Texas.

Omitting the formal introductory parts the warrant recites that:

“Whereas, It has been made known to me by the Governor of the State of Illinois that Marcelino R. Medina stands charged by indictment, capias before the proper authorities, with the crime of .(no offense being named) .committed in said State,” etc.

At the conclusion of the hearing the court ordered the appellant remanded to custody for delivery to the authorized agent of the State of Illinois to be taken to said state. From this order the appellant gave notice of appeal.

In considering a similar extradition record on appeal in Ex parte Riddle, 131 Tex. Cr.R. 563, 101 S.W.2d 268, this court said: “It appears from the record before us that the executive warrant fails to state that the accused is charged with having committed any offense. Subdivision 2 of article 219, C.C.P. 1925 (now Art. 15.02(2) V.A.C. C.P.), relating to warrants of arrest, provides as follows: ‘It must state that the person is accused of some offense against the laws of the State, naming the offense.’

“The law with reference to executive warrants does not seem to make any exception to matters required in the general definition of warrants of arrest given in said article. The warrant of arrest is the legal authority by virtue of which the officer takes the person accused of an offense into custody and retains him. If the warrant shows that the person named therein is not accused of an offense, the arrest, detention, and removal from the state would appear to be illegal. See Ex parte Thomas, 53 Tex.Cr.R. 37, 108 S.W. 663; Ex parte Cubreth, 49 Cal. 435, 436.

“Corpus Juris, vol. 25, § 36, p. 268, states the rule as follows: ‘A warrant need not show on its face that the act charged as a crime in the requisition is in fact a crime by the law or statutes of the demanding state, but it must specify the offense alleged to have been committed by the accused.’

“In the instant case the executive warrant fails to state that the accused is charged with any offense. Hence the arrest, detention, and attempted removal of the accused from the state by virtue of said warrant was not legally authorized. Even though he may be charged with an offense, yet, if the warrant for his arrest fails to state the offense with which he is charged or fails to state any offense, his arrest and detention would not be lawful. It therefore follows that relator was entitled to be discharged.”

The Governor’s warrant of arrest must substantially recite the facts necessary to the validity of its issuance. Art. 51.13, Sec. 7, Vernon’s Ann.C.C.P.

By reason of the defect in the executive warrant as shown, the judgment remanding appellant to custody for extradition is reversed.


author: WOODLEY, Presiding Judge.

text:
    Ex parte Phillip YORK.
    No. 40574.
    Court of Criminal Appeals of Texas.
    July 26, 1967.
    No attorney on appeal, for appellant.
    Barton Boling, Dist. Atty., James H. Kreimeyer, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The appeal is from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Arizona where he is charged by complaint with the offense of rape.

The Extradition Warrant of the Governor of Texas dated March 6, 1967, regular on its face, was introduced in evidence at the habeas corpus proceeding. It recites that the demand of the Governor of Arizona was accompanied by copy of the complaint, warrant and supporting papers certified as authentic by said Governor. The introduction of the Extradition Warrant, regular on its face, was sufficient to make a prima facie case authorizing appellant’s extradition. Ex parte Kronhaus, Tex.Cr.App., 410 S.W.2d 442, and cases cited.

The demand, complaint, warrant and supporting papers, which appear to be regular, were also introduced in evidence by the State.

Evidence was offered by appellant to the effect that he had been previously arrested on a warrant of arrest sent to the El Paso County Sheriff’s office issued upon a prior complaint alleging the same offense, which complaint had been dismissed.

The prior warrant of arrest was not an application for a requisition. The evidence in regard thereto did not refute the certification of the County Attorney in his application for requisition that no further or other application had been made for a requisition of the fugitive growing out of the transaction. The prima facie case for extradition established by the Executive Warrant of the Governor of Texas was not overcome.

The judgment remanding appellant to custody for extradition is affirmed.


author: BELCHER, Judge. WOODLEY, Presiding Judge.

text:
    Robert Tom FREEMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 40523.
    Court of Criminal Appeals of Texas.
    July 26, 1967.
    Herbert H. Landau, Dallas, for appellant.
    Henry Wade, Dist. Atty., Don Koons, Charles Caperton and Kerry L. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for felony theft; the punishment, seven years.

The appellant challenges the sufficiency of the evidence to sustain the conviction.

The indictment alleged that the appellant on or about the 27th day of June, 1965, fraudulently took 13 pairs of men’s shoes of over the value of fifty dollars from the possession of A. F. Grimes.

Officer Tilley, while testifying, identified the appellant as the man he saw across the street about 12:30 a. m., June 27, walking and carrying a large box, and on turning his car toward him, the appellant looked in his direction, dropped the box and continued walking; that he approached the appellant and asked what was in the box and he replied, “what box ?”; that after he found in the box 13 new pairs of Guardsman men’s shoes which appeared to have been made in Plymouth, he arrested the appellant, checked out his story, and took him to the city hall; that they marked the box and shoes and placed a tag on the box bearing the appellant’s “name, race, sex and age, and address” for identification; that the arrest occurred about 300 yards from a warehouse; and that he (Tilley) had no further connection with the investigation.

B. L. Mullonax, warehouse foreman, testified that he supervised the unloading of merchandise and preparing it for delivery; that two officers were at the warehouse when he arrived at 1 a. m., June 27, and on checking the warehouse they found no evidence of any forcible entry, but they found two men in a trailer docked against a warehouse door, which contained general merchandise ; and that he gave no one consent to enter the warehouse or trailers and take any merchandise.

A. F. Grimes testified that on June 27, 1965, he was the terminal manager of the T. P. Ry. and T. P. Trs. Co., consisting of a one-block long building, freight cars, trucks and trailers, and the merchandise in them, which were under his care, control, and management. He further testified as follows:

“Q All right, sir. State the facts with reference to whether or not some shoes were taken from the warehouse on the evening of June 27th, 1965?
“The Court: Just a minute.
“Appellant’s Counsel: Your Honor, I object to the question and I certainly object to any answer he may give unless he himself saw somebody.
“State’s Counsel: You can answer.
“The Court: You would have to testify if you know they were taken.
“Appellant’s Counsel: Whatever he might have heard would be hearsay, Your Honor.
“The Court: I’m telling the witness he can only testify to what he knows.
“Appellant’s Counsel: If he knows of his own personal knowledge, on his own personal observation, then I would have no objection.
“Q (Continuing) If you know the shoes were taken, you may answer the question.
“A Well, I don’t know just exactly where I stand, I do know that the shoes were taken but I did not see the shoes.
“Appellant’s Counsel: Your Honor, on that ground, I object.
“The Court: Overruled. He hasn’t testified who took it, he just testified he knows they were taken.
“Q (Continuing) Were the shoes your corporeal personal property?
“A Yes, sir.
“Q And, were they taken from your possession and without your consent?
“A Yes, sir.
“State’s Counsel: Pass the witness.
“The Court: Cross Examination.
CROSS EXAMINATION
BY APPELLANT’S COUNSEL:
“Q Mr. Grimes, when you said that some shoes were taken from your possession now, you did not see this yourself with your own eyes, is that correct ?
“A No, sir.
“Q In other words, whatever might have been taken was related to you from someone else’s mouth, isn’t that correct?
“A Yes, sir.
“Q In other words, you’re relating something that someone else told you happened, is that correct?
“A That is true.
“Appellant’s Counsel: Your Honor, at this time, I again move that his testimony in regards to that be stricken from the record.
“The Court: Overruled.
“Appellant’s Counsel: Notice our exception.
“Q (Continuing) From your own observation, did you yourself see anybody take anything from either the Texas Railroad property or the Texas & Pacific Motor Freight property ?
“A No, sir.
“Q (Continuing) Now, you said shoes were taken, is that right ?
“A Yes, sir.
“Q Now, that is what somebody told you was taken, isn’t that correct?
“A Yes, sir.
“Q In other words, you did not see it with your own eyes whether there were shoes or something else taken ?
“A No, I did not see it personally.
“Q I see. Your Honor, I again move the Court to strike it from the record, the testimony.
“The Court: Overruled.
“Appellant’s Counsel: Notice our exception.
“Q Let me ask you this Mr. Grimes, if you answered this please tell me whether you did? This particular merchandise that was taken, do you know from your own observation whether it was taken from Texas Railroad? Is there a dock, Texas Railroad dock or something like that?
“A Well, it would be this particular place. It would be a warehouse and from a trailer it would come out of a trailer.
“Q I see. You didn’t see it come out of a trailer with your own eyes?
“A No, sir, I did not.”

W. E. Gaskins testified that he was in charge of freight transportation for Universal Carloading and Distributing Company, and the merchandise shipped to Texas P. Warehouse where it was unloaded and distributed. He further testified as follows:

“Q All right, sir, now you are aware, are you not, of a shipment of shoes that was delivered to the T & P Warehouse on or about June 27th, 1965?
“Appellant’s Counsel: I object to the term, ‘aware’—
“The Court: That’s a proper question if he knows.
“Q (By Appellant’s Counsel) Do you know sir?
“A Yes, sir.
“Q Was that shipment of shoes that was in the warehouse on that date was that some of the merchandise that you contracted with the T & P for—
“A —One of the piggyback trailers.
“Q Was that merchandise or had it arrived and was it there at the warehouse on June 27, 1965?
“A It was reported to me it was at the warehouse.
“Appellant’s Counsel: Your Honor, on that ground, we object. It is hearsay ; he did know of his own knowledge.
“The Court: Just testify to what you know of your own knowledge.
“Appellant’s Counsel: I ask the Court to instruct the jury to disregard it and strike that last remark from the record.
“The Court: Of course the answer would reflect hearsay.
“Appellant’s Counsel: Yes, sir.
“The Court: Somebody told him, I sustain the objection.
“Appellant’s Counsel: Thank you, Your Honor.
“Q (State’s Counsel) Mr. Gaskins, then I’ll ask you whether or not you had an occasion on or after June 27, 1965 to look into a theft matter?
“A Yes, I did, sir.
“Q All right. Did that involve some shoes?
“A Yes, sir.
“Q And what type of shoes was it that was involved?
“A These were shoes shipped from the Plymouth Shoe Company in Massachusetts for the—
“Appellant’s Counsel: Your Honor, at this time. I apologize for the constant objections but to protect my client, I must object to that as to where they came unless he himself knows, if he shipped them himself.
“State’s -Counsel: He doesn’t have to ship them to know where they came from, sir.
“State’s Counsel: Judge, let me ask another question or two.
“The Court: Bill of Lading or something else.
“Q (Continuing) Do you have any of the records of your firm and the shipments and so forth under your care, custody and control ?
“A Yes, sir, we keep a record of the shipments. In fact, there is about nine copies of each shipment that comes into the warehouse of the freight bill. Each individual shipment, a freight bill is made on it and so forth.
“Q All right, sir. Now, these shoes in question, were there some records on those?
“A Yes, sir.
“Q And, did you have an occasion to look at those records?
“A I looked at the freight bill, sir.
“Q By that I mean on or about June 27 of 1965 or shortly thereafter?
“A Yes, sir.
“Q Were those the official records of your business ?
“A Yes.
“Q Are they kept on a day to day basis ?
“A Yes, sir.
“Q All right. Those records, now you say, did you look at them at the time. What was the nature of the records ?
“Appellant’s Counsel: Your Honor, I object on the grounds that the records speak for themselves.
“The Court: Yea. That would be a good objection. Do you have the records with you?
“The Witness: No, sir, I don’t sir.
“The Court: The records would be the best evidence unless they have been lost or destroyed or stolen.
“Q (Continuing) Did you have an occasion to go down to the Police Station at any time, Mr. Gaskins?
“A Yes, sir, I did.
“Q When was that if you recall?
“A I don’t recall the date. It was after the robbery and they called me down there to come to the police property room to look over the merchandise that was down there.
“Appellant’s Counsel: Your Honor, I object to this again as being hearsay. What somebody told him to do and on that ground I ask you to instruct the jury—
“The Court: You said you went down to the Police Department?
“Appellant’s Counsel: Somebody told him to go down?
“The Court: Overrule.
“Appellant’s Counsel: Notice our exception.
“Q (Continuing) And, did you go down and look at some merchandise down there at the Police Department property room?
“A Yes, sir.
“Q What was the property that you looked at?
“A I looked at a case of shoes and a couple cartons of lamps, if I recall all right and a carton of furniture, table leaves or something of that nature but it was furniture.
“Q All right, sir. Now, further for the purpose of connection and identification only, I’ll ask you whether or not, first just answer yes or no, whether or not you noticed any identifying tags or marks on the box that you looked at?
“A Yes, I did.
“Q Would you state, well, for instance, was the name of the Defendant, Robert Thomas Freeman, on the carton.
“Appellant’s Counsel: Your Honor, I object.
“The Court: Just a minute.
“Appellant’s Counsel: I object on the grounds that whatever he has or read or anything would be hearsay and I object to that on the grounds of what he saw or somebody had written—
“The Court: Overrule.
“Appellant’s Counsel: Notice our exception.
“Q (Continuing) Was that name on the carton of shoes that you looked at?
“A I believe it was, yes, sir.
“Q All right. Did it have a date on it ?
“A That I don’t remember, sir.
“Q All right, sir. Did it have any words on it about any criminal charges, just yes or no.
“A No.
“Q Now, was this after June 27, 1965, that you went down to look at those shoes ?
“A It was after that.
“Q It was after it?
“A After it had been reported to me that the merchandise had been stolen from the truck.
“Q All right. Now, did you have an occasion to examine the shoes themselves ?
“A I looked at the box, yes sir.
“Q What kind of shoes was in the box?
“A They were men’s dress shoes.
“Q Did they have a brand on them?
“A Yes, sir.
“Appellant’s Counsel: I object to what he might know. What a brand name is.
“The Court: Overrule.
“Appellant’s Counsel: Notice our exception.
“Q (Continuing) You may answer the question.
“A They were shoes as I say, men’s dress shoes, manufactured by the Plymouth Shoe Company.
“Appellant’s Counsel: Your Honor, I object.
“State’s Counsel: He can testify as to what he saw.
“The Witness: Sir, I didn’t examine the individual shoes in the box.
“The Court: Well, just testify to what you saw there in the box, whatever it was.
“Q (Continuing) You did examine it?
“A I examined the box, yes, and the outer carton of the box.
“Q All right, sir, and were you able to determine from your examination of that after you looked at the shoes whether or not those were the shoes that you, through your company, had shipped to the warehouse?
“A Yes, sir. From my freight bill.
“Appellant’s Counsel: Your Honor, I object to that on the grounds of whatever he heard is hearsay from his freight bills. The freight bills speak for themselves. Whatever record, whatever he testifies to he saw on somebody else’s papers or heard is strictly hearsay.
“The Court: Overrule.
“Appellant’s Counsel: Notice our exception.”

CROSS EXAMINATION

“Q Now, whatever the information you got as to where those alleged shoes that you saw down at the Police Station you got through intermediate sources, is that correct?
“A That’s right, sir.
“Q Were you there at Gaston Avenue at the time that some alleged shoes were supposed to have been taken?
“A No, sir, I was not.
“Q You, yourself, wouldn’t know who took it, from your own observation ?
“A No, sir, it was reported to me.
“Q From your own observation you would not.
“A Yes, sir.
“Q All right. Now, for you to make a determination as to whether these shoes were taken from that area, you would have to resort to some other information, would you not?
“A Yes, sir.
“Q That’s how you would have made a determination ?
<:A That’s correct.
“Q What people told you and said to you, is that correct?
“A Yes, sir.
“Q All right, so actually your determination of whether these shoes were the shoes that were out there was through these intermediate sources ?
“A Well, sir. If I could explain it to you.
“Q No, sir, you’ll have a chance later on to explain it.
“A I see.
“Q In other words, my question is, you determined that these shoes down at the Police Station were the ones taken from these places through intermediate sources ?
“A That is correct.
“Q What people told you or what you read on some piece of paper or otherwise ?
“A Right.
“Q All right. Now, you said you didn’t see anybody take these alleged shoes from any of the property over there on Gaston Avenue ?
“A I was not there, sir.
“Q Now, Your Honor, at this time I move the Court to strike from the record all the testimony of Mr. Gas-kins as related to his identity of these shoes on the grounds that such identity was done on hearsay testimony and hearsay written instruments of some kind and I further ask the Court to instruct the jury to disregard all of the testimony along that line.
“The Court: Overrule the objection.
“Appellant’s Counsel: Notice our exception.”

The appellant did not testify or offer any evidence.

To support this conviction it is essential that the proof show by competent evidence that the shoes found in the box by the officers were stolen from the possession of A. F. Grimes in Dallas County as alleged.

It is well established that where property is alleged to have been stolen from a certain named and designated person, the proof must show beyond a reasonable doubt that such property belonged to the person from whom it is alleged to have been stolen. Unless the proof meets this requirement, a conviction cannot be sustained. Roberts v. State, 377 S.W.2d 656.

There is no competent evidence showing that the shoes found by the officers were ever in the warehouse, the trailer, or in the possession of A. F. Grimes. No invoices, freight bills, or bills of lading were shown or introduced in evidence.

The only evidence which points toward the commission of the offense by the appellant, after excluding the hearsay testimony to which the appellant timely and properly objected, is that the quantity and kind of shoes found in the box discarded by the appellant within 300 yards of a warehouse are of the same quantity and description, that is, “thirteen pair of mens shoes,” as alleged in the indictment.

From the testimony of the witnesses Mullonax, Grimes, and Gaskins, it appears that they had the possession of information and reports pertaining to the shoes, but that they had very meager knowledge, if any, of the shoes origin, identity, or ownership. This character of information and report is not alone, sufficient to establish the facts necessary to support the conviction.

The evidence is insufficient to meet the requirements of the law that the guilt of the appellant must be established by legal and competent evidence beyond a reasonable doubt.

The judgment is reversed and the cause remanded.

DISSENTING OPINION

WOODLEY, Presiding Judge.

I do not agree that the evidence is insufficient.

At the very time that appellant dropped the box containing 13 pairs of new men’s shoes made by Plymouth Shoe Company in Massachusetts, a trailer that had brought a shipment of such shoes from the factory to Dallas by rail piggyback was parked at the warehouse nearby.

Appellant’s only statement prior to his arrest was “what box.” His “story” following his arrest was excluded when offered by the state. He did not see fit to testify or offer any evidence to account for his possession of the box of shoes and there was none before the jury save his statement “what box,” which in effect was a denial that he had carried and dropped the box of shoes.

Some 30 minutes after appellant dropped the box of shoes, he was taken to the warehouse where the trailer that had been partially unloaded the day before was parked. Two unidentified men were in the trailer and the freight was “strewn all over the back of the trailer.” Until the unloading was completed later in the morning and the merchandise in the shipment was checked, it could not be ascertained what was missing.

The defense elicited evidence that before taking appellant to the warehouse where the trailer was parked the arresting officers “checked” appellant’s story, looked to see of shops in a certain area had been burglarized and conversed with the operator of a pool hall.

While it would have been preferable for the box of shoes dropped by appellant and taken to the police property room and the freight bill to have been introduced in evidence at the trial several months later, the evidence reveals that such box of shoes had been released from the property room and delivered to the factory’s customer.

Gaskins’ investigation was made within a short time after the box of shoes appellant dropped was taken to the police property room. His determination regarding the box of shoes was necessarily based upon information he obtained “from intermediate sources” such as the facts shown by the testimony of the witnesses Mullonax and Grimes and the freight bill.

I would affirm the conviction.


author: GREEN, Chief Justice.

text:
    DINA PAK CORPORATION et al., Appellants, v. MAY ALUMINUM, INC., Appellee.
    No. 289
    Court of Civil Appeals of Texas. Corpus Christi.
    June 29, 1967.
    Rehearing Denied July 20, 1967.

      Allen Melton, Dallas, for appellants.
    Quinnan H. Hodges of Butler, Binion, Rice, Cook & Knapp, Houston, for appellee.
   OPINION

GREEN, Chief Justice.

Plaintiff May Aluminum, Inc., filed suit against defendants Dina Pak Corporation and R. Drumwright Keys in the district court of Wharton County. From an order overruling their respective pleas to be sued in the county of their residence, to-wit, Dallas County, both defendants have appealed to this court. Subdivisions 5, 23, and 29a, Art. 1995, Vernon’s Ann.Tex.St. are involved.

Plaintiff in its petition alleged that on the dates set out in itemized statements attached thereto as Exhibit A, consisting of 73 sheets or invoices, plaintiff at the special instance and request of defendants sold and delivered to defendants as buyers in the regular course of business during the year 1964 the goods, wares, merchandise, equipment, labor and services shown on said exhibit ; that defendants became bound to pay plaintiff in accordance with invoices duly accepted by them the amount of $6,122.19, which debt is due and unpaid. It further alleged that the cause of action or a part thereof arose in Wharton County, the orders for the merchandise having been received and accepted in such county, and the goods, wares and merchandise having been manufactured and/or processed and the labor and services performed by plaintiff there. Additionally as to defendant Keys, plaintiff alleged that he had personally, both orally and in writing, guaranteed payment to plaintiff of all sums due or to become due it by defendant corporation on this account, and that plaintiff relied on such guaranties in furnishing defendants the above goods and services. Such petition was properly verified as provided by Rule 185, T.R.C.P. Plaintiff’s petition was made a part of its controverting and amended controverting affidavits, and the allegations of the petition were there repeated.

SUBDIVISION 5, ART. 1995

Subdivision 5 reads:

“5. Contract in Writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

Under this provision, the essential obligation for venue purposes involving a written contract is that of payment, and where no place for payment is specified in the written contract no exception to the general rule of domicile is established. 59 Tex.Jur.2d, Venue, § 42, pp. 435 et seq.; Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120; Magness v. Herider, Tex.Civ.App., 392 S.W.2d 383, n.w.h. We have carefully checked the entire statement of facts, including the invoices attached to the petition and the purchase orders made exhibits to the controverting affidavit, all of which were in evidence, and have found no written agreement whereby either defendant contracted in writing to perform any obligation, including the essential obligation of making payments, in any place in Wharton County. It is shown that the parties did business on written agreements. Defendants ordered merchandise, sometimes by purchase order, sometimes by telephone subsequently confirmed by purchase order. Upon shipment of merchandise ordered, plaintiff would invoice Dina Pak Corporation; Doyle May testified that plaintiff never billed anything until the goods were shipped. Neither the purchase orders, signed by Dina Pak and accepted by plaintiff, nor the invoices executed by plaintiff and accepted by defendants, provided that payments should be made in any place in Wharton County. Had they stipulated for payment to be made in El Campo, where plaintiff’s plant was located this court would take judicial notice that El Campo, though not the county seat, is in Wharton County. Harper v. Killion, 162 Tex. 481, 348 S.W.2d 521; Buckaloo Trucking Company v. Johnson, Tex.Civ.App., 409 S.W.2d 911.

In addition to testimony of oral guaranties of payment by defendant Keys of the account sued on, plaintiff placed in evidence two written contracts of guaranty signed by Keys. The first, executed in 1957, did not say anything as to where the payments should be made. This agreement was superseded by a subsequent contract of guaranty executed by Keys to plaintiff July 22, 1963, which expressly provided that any payments which may become due plaintiff by Keys by virtue of the guaranty shall be paid to plaintiff at Houston, Texas. There was no provision in the contracts of guaranty that Keys was obligated to make any payments in Wharton County.

We hold that there is no evidence in the record to support an implied finding of venue under Subdivision 5, Art. 1995.

SUBDIVISION 23, Art. 1995

This subdivision as applicable here provides that “Suits against a private corporation, association, or joint stock company may be brought * * * in the county in which the cause of action or part thereof arose; * * It applies to venue of the suit as to the corporate defendant only, and requires proof (1) that such defendant is a private corporation, (2) that plaintiff has a cause of action against such defendant, and (3) that said cause of action or a part thereof arose in Wharton County. Danaho Refining Company v. Dietz, Tex.Civ.App., 378 S.W.2d 412.

The evidence is conclusive on both sides that defendant Dina Pak Corporation is a private corporation. Plaintiff’s suit was based upon an open account for goods and merchandise founded on business dealings between the parties and for labor and materials furnished, and was supported by the affidavit of plaintiff in the form set out in Rule 185, T.R.C.P. Defendants, although filing, subject to their pleas of privilege, a sworn general denial, did not file the verified denial of the justness or truth of plaintiff’s claim provided by Rule 185, T.R.C.P. Plaintiff’s petition with the affidavit and exhibits was in evidence. In the absence of the sworn denial required in such instances by Rules 185 and 93, the sworn account shall be taken as evidence of the existence of plaintiff’s cause of action, and defendant shall not be permitted to deny the claim or any item therein. Haney v. Henry, Tex.Civ.App., 307 S.W.2d 649.

A plea of privilege does not constitute a verified denial of any allegation of plaintiff’s petition required to be denied under oath unless specifically alleged in such plea. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758. A general denial in which defendants deny the allegations contained in Plaintiff’s Original Petition and demand strict proof thereof, even though sworn to, does not comply with the requirements of Rule 185, and is insufficient to put in issue the justness or truth of plaintiff’s sworn account.

Thus, without any further proof of the facts concerning plaintiff’s claims, the verified account as alleged and shown by plaintiff’s pleadings was sufficient to show the existence of a cause of action.

In making proof of its cause of action, however, plaintiff did not rely entirely on Rule 185. Much evidence was introduced which showed that defendant corporation did order from plaintiff, and that plaintiff did make and furnish such defendant (plaintiff’s pleadings and evidence also included Keys jointly with his corporation as its customer) the materials and merchandise itemized in the purchase orders, and that the amount sued for was due and unpaid.

It remained for plaintiff to prove by evidence that part of the cause of action arose in Wharton County. Plaintiff’s plant was located in Wharton County; in pursuance to telephone calls to plaintiff and purchase orders received by plaintiff in such county the articles ordered were manufactured by plaintiff in Wharton County, on special orders of defendants, and sometimes picked up by defendants there, and at other times sent from there to defendants either c.o.d. or f.o.b.; in December, 1963, Keys, president of the corporate defendant, made a trip to El Campo, Wharton County, and discussed with plaintiff the casting of dies, manufacture of products, credit matters, and general business dealings between the parties. The evidence amply supports the implied finding of the trial court that a part of the cause of action against the corporate defendant arose in Wharton County, and venue of the case as to defendant Dina Pak Corporation was properly retained in the district court of Wharton County under Subdivision 23. Alamo Products Company v. French, Tex.Civ.App., 316 S.W.2d 765, n.w.h.; Lone Star Gas Company v. Coastal States Gas Producing Company, Tex. Civ.App., 388 S.W.2d 251, n.w.h.; Traders Oil Mill Co. v. Arnold Bros. Gin Co., Inc., 225 S.W.2d 1011, n.w.h.; First Trust Company v. Good Land Lumber Company, Tex.Civ.App., 297 S.W.2d 312, n.w.h.; Cactus Petroleum Company v. Summers, Tex. Civ.App., 319 S.W.2d 729, writ dism.

SUBDIVISION 29a, Art. 1995

This exception to the general rule that a defendant is entitled to be sued in the county of his domicile reads:

“29a. Two or more defendants.— Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”

Since this suit is lawfully maintainable in Wharton County as to the defendant Dina Pak Corporation under subdivision 23, then, under the provisions of subdivision 29a, supra, it may be maintained there against defendant R. Drum-wright Keys provided such defendant has been shown to be a necessary party thereto. The burden was on plaintiff to plead and prove that Keys was m fact a necessary party. Shaw v. Allied Finance Company, Tex.Sup.Ct., 337 S.W.2d 107; Ladner v. Reliance Corp., supra.

A “necessary party” to a suit, as used in subdivision 29a, is one whose join-der is necessary to afford the plaintiff the full relief to which he is entitled in the suit which can be thus retained in that county. Ladner v. Reliance Corp., supra. The relief to which plaintiff was entitled against Dina Pak Corporation, the defendant properly suable in Wharton County, was a money judgment. McCormick v. Vernon Butler Chevrolet Company, Tex.Civ.App., 372 S.W.2d 757; York Supply Company v. Dunigan Tool & Supply Co., Tex.Civ.App., 276 S.W.2d 317; Cockburn Oil Corp. v. Newman, Tex.Civ.App., 244 S.W.2d 845. This relief is obtainable by plaintiff in the suit against the corporate defendant without the joinder of Keys as defendant. The fact that plaintiff alleged and testified that the merchandise was sold to Keys as well as to Dina Pak on the basis of Keys’ promise to pay for them would not constitute Keys a necessary party to the suit in Wharton County. Neither would Keys’ written contract guaranteeing payment up to $10,000.00 of Dina Pak’s account.

We hold that defendant Keys was not a necessary party to plaintiff’s suit in Wharton County under the definition of that term given by the Supreme Court, supra, and as contemplated by subdivision 29a, Art. 1995, V.A.T.S., and that such defendant was and is entitled to his legal right of having this suit as against him transferred to his home county of Dallas. Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774; Weaver v. Acme Finance Company, Tex.Civ.App., 407 S.W.2d 227; Pepsi-Cola Company v. Spangler, Tex.Civ.App., 401 S.W.2d 923; Dr. Salsbury’s Laboratories v. Bell,- Tex.Civ.App., 386 S.W.2d 341; Panhandle Steel Erectors, Inc. v. Whitlow, Tex.Civ.App., 359 S.W.2d 146; Liles v. Winters Independent School District, Tex.Civ.App., 326 S.W.2d 182; Lewis Boggus Motors, Inc. v. Hill, Tex.Civ.App., 340 S.W.2d 957; Smith v. First Nat. Bank in Groveton, Tex.Civ.App., 146 S.W.2d 270; Foster v. Pace Packing Company, Tex.Civ.App., 269 S.W.2d 929.

Judgment is affirmed as to the defendant Dina Pak Corporation, and reversed and rendered sustaining the plea of privilege of defendant R. Drumwright Keys and transferring the case against him to one of the district courts of Dallas County, Texas. Costs of appeal are assessed equally, against appellant Dina Pak Corporation and appellee May Aluminum, Inc.


author: PRESLAR, Justice.

text:
    SUNRAY DX OIL COMPANY, Appellant, v. TEXACO, INC., Appellee.
    No. 5839.
    Court of Civil Appeals of Texas. El Paso.
    June 21, 1967.
    Rehearing Denied July 19, 1967.

      M. Darwin Kirk, J. P. Greve, Rufus N. McKnight, Jr., Tulsa, Okl., Perkins & Ker-win and M. J. Kerwin, Jr., Midland, Norbert E. Proctor, Jr., Tulsa, Okl., for appellant.
    W. N. Sands and J. S. Rowe, Midland, for appellee.
   OPINION

PRESLAR, Justice.

This suit was brought by Texaco against Sunray DX Oil Company seeking a declaration that an oil and gas lease had terminated, and for cancellation of same as a cloud upon the title to the land, and a declaration that title to all machinery, fixtures, casing in wells, and improvements placed on the land by the lessee was vested in Texaco Inc. Both parties moved for summary judgment and the trial court denied defendant Sunray’s motion and granted that of plaintiff Texaco, and defendant’s plea in abatement was overruled.

Appellant, as defendant, filed its plea in abatement that the Trustees of Texas Pacific Land Trust, as owners of the surface rights and of royalty interests in the land and as the original lessors of the oil and gas lease, are necessary parties to the suit. The oil and gas lease covers 160 acres of land in Midland County and was executed by the Trust, as lessor, to appellant’s predecessors in title, as lessees, in 1951. In 1954, the Trust conveyed the minerals under such lands to appellee’s predecessors in title with certain reservations of perpetual and term royalties. Title in fee to the surface estate remained in the Trust, and appellant urges that cancellation of the lease in question would cause the fixtures and equipment left on the lease premises to vest in the Trust, instead of appellee as held by the trial court; hence the Trust was a necessary party. We think that the appellee, by the terms of its purchase from the Trust, acquired all of the rights to claim such fixtures which the Trust possessed. Among other things enumerated by the instruments of conveyance, it was provided, under a paragraph relating to lands subject to an existing oil and gas lease, that appellee acquired: “ * * * and other mineral interests of whatever character, including choses in action, possibilities of reverter, rights of entry for condition broken and other reversionary interests of assignors arising out of or created by each of said leases * * *” The instruments of title relied on by appellee Texaco established as a matter of law that it acquired such rights as the Trust held in regard to the fixtures and equipment in the event of termination of the oil and gas lease. We are further of the opinion that the reservation of the non-participating royalties by the Trust did not make it a necessary party to this suit. The reserved royalty interests continued whether this oil and gas lease was canceled or not. This court held, in Magnolia Petroleum Co. v. Storm, 239 S.W.2d 437 (err. ref., n. r. e.), that owners of nonparticipating royalties whose interests were perpetual were not necessary parties to a suit to. cancel an oil and gas lease. Naturally, each such case must depend on the nature of the estate reserved. One of the reservations before us is for a term of 25 years, and another is perpetual, but neither is dependent on the present lease for its tenure or nature of the estate owned. The incidents of ownership of these royalty interests are not fixed or controlled by the existing oil and gas lease. The owners thereof share in the production under this lease the same as they would under any other lease which might be made on these lands. Their interest not being affected by the cancellation of the existing lease, they are not necessary parties. “Necessary parties” has been defined as:

“[1] Necessary parties to a suit are those who have or claim a direct interest in the object and subject matter of the suit and whose interest will necessarily be affected by any judgment rendered therein. Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472; Cook v. Pollard, 70 Tex. 723, 8 S.W. 512.
“[2] The term ‘necessary parties’ has - also been defined as ‘persons who have such an interest in the controversy that a final judgment or decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final adjudication may be wholly inconsistent with equity and good conscience.’ 67 C.J.S. Parties § 1, p. 890. This definition has also been accepted and applied in this jurisdiction. Fischer v. Rio Tire Co., Tex.Com.App., 65 S.W.2d 751; Simmons v. Wilson, Tex.Civ.App., 216 S.W.2d 847; Jones v. English, Tex.Civ.App., 235 S.W.2d 238, Wr. Dism.”

Royal Petroleum Corporation v. Dennis, 160 Tex. 392,332 S.W.2d 313 (1960).

Pertinent portions of the oil and gas lease involved are paragraph 3, containing the habendum clause, and paragraph 7, containing the “cessation” or “drilling and reworking” clause.

“3. This lease shall remain in force, unless terminated as hereinafter provided, for the term of five years (hereinafter called the ‘primary term’), and so long thereafter as oil, gas, casinghead gas, casinghead gasoline, or any of them, is produced hereunder in paying quantities.”
“7. * * * if after the discovery of oil or gas in paying quantities the production thereof should cease from any cause, this lease shall not terminate if the lessee commences additional drilling or reworking operations within thirty days thereafter * * * ”

The lease is dated October 23, 1951, and during the primary term oil was discovered and produced in paying quantities from two wells, and such production continued beyond the five-year primary term. By answers to requested admissions it is established that they produced until December 12, 1962, at which time there was a cessation of all production; that thereafter there was no production during all of the year 1963, and the lessee failed to commence additional drilling or reworking operations within 30 days after December 12, 1962, nor during the whole of the year 1963. The trial court held that the lease had terminated and the lessee-defendant’s title reverted to the lessor-plaintiff as of January 12, 1963, as a matter of law. With that holding we agree. But lessee asserts that such holding is wrong because the lessor estopped itself from asserting termination by its act of challenging lessee’s title. Lessor wrote to Lessee on July 6, 1962, stating that it had come into ownership of the working interest, and:

“Since the primary term of this lease has long since expired and as our production records show that for some time the lease has failed to produce in paying quantities, we feel justified at this time in requesting a release of the acreage from you.
“I will appreciate hearing from you concerning this matter as soon as practical.”

Lessee made no reply, and on August 14th lessor wrote a follow-up letter enclosing a copy of its letter of July 6th. Lessee then replied that it did not agree with the contention of the letter of July 6th and asked for their continued cooperation in the operation of the lease. There was no further correspondence about the matter and, following a gradual decline of production, all production ceased on December 12th. The rule of estoppel relied on here by lessee is stated in Kothmann v. Boley, 158 Tex. 56, 308 S.W.2d 1 (1957) :

“Lessors who thus wrongfully repudiate the lessees’ title by unqualified notice that the leases are forfeited or have terminated cannot complain if the latter suspend operations under the contract pending a determination of the controversy and will not be allowed to profit by their own wrong. See Adams v. Can-nan, Tex.Civ.App., 253 S.W.2d 948 (wr. ref.); Wisdom v. Minchen, Tex.Civ. App., 154 S.W.2d 330 (wr. ref. w. m.); Wheelock v. Batte, Tex.Civ.App., 225 S.W.2d 591 (wr. ref. n. r. e.); Morgan v. ’Houston Oil Co., Tex.Civ.App., 84 S. W.2d 312 (no writ) ; and Shell Oil Co. v. Goodroe, Tex.Civ.App., 197 S.W.2d 395 (wr. ref. n. r. e.).”

This brief statement of the rule does not shed much light on what constitutes repudiation, but from a reading of the cited cases, we have concluded that what was done in the instant case does not bring it within the rule. The letter of July 6th did not assert that the lease was canceled or forfeited, nor did it demand a release. Although we have spoken of the parties as “lessor” and “lessee”, each was such as a successor in interest of the original lessor and lessee, and in this connection it should be noted that the appellee here had owned the lessor-interest a relatively short time when it made the statement that according to its production records the lease was not producing in paying quantities. By the terms of the lease, lessee had the obligation to maintain production in paying quantities, or commence further operations, to keep the lease alive — maintain its determinable fee title. In the sense that forfeitures are abhorred by equity, this was not a forfeiture, for the parties had contracted that the lease would terminate upon certain conditions, and those conditions came to pass. When such an instrument is placed of record and thereafter terminates by its own terms, something must be placed of record to show the termination, otherwise it is forever a cloud on the title. Lessor did the normal thing here in requesting a release, and we do not think the fact that they gave as a reason therefor — that their production records showed a lack of production in paying quantities — should be construed as amounting to a repudiation of the lessee’s title. We hold that as a matter of law, what transpired here was not such a repudiation of the lessee’s title as to estop the lessor from complaining of the suspension of operations. Adams v. Cannan (supra); Steeple Oil & Gas Corp. v. Amend, Tex.Civ.App., 337 S.W.2d 809 (err. ref., n. r. e.).

Following the cessation of production in December, 1962, the equipment was left intact on the two wells on the lease in question, and negotiations were carried on to unitize leases in the area for secondary recovery by water-flooding. Both parties to this suit participated in those negotiations and entered into the unitization agreement with other operators in that portion of the Spraberry field. In committing this lease to the unit, Texaco expressly reserved its claim that the lease in question had terminated and that it did not recognize any interest or title in Sunray. Through the unitization, production was restored to the two wells in January 1964. Appellant urges that this was a temporary cessation of production, and that it used reasonable diligence in restoring production so that the lease should not be held to have terminated. Without going into the many instances in which the courts have recognized that the production required to keep the lease in effect after the expiration of the primary term cannot be continuous, since breakdowns in equipment, reworking operations, and other things are bound to occur and cause a temporary cessation of production, suffice it to say that this cannot be characterized as such a temporary cessation situation. The record reflects that there was a gradual decline of production, a depletion to the extent that primary recovery methods were of no avail, and that all production ceased as of December 12, 1962. Also, the terms of the lease prevent the application of the temporary cessation doctrine in this case. The above quoted haben-dum clause being expressly subject to the thirty-day drilling or reworking clause, all production having ceased, and no drilling or reworking operation having been commenced within the thirty-day period, the lease terminated. Adams v. Cannan, Tex. Civ.App., 253 S.W.2d 948, err. ref., n. r. e.; Woodson Oil Company v. Pruett, Tex.Civ. App., 281 S.W.2d 159, err. ref., Haby v. Stanolind Oil and Gas Company, 5 Cir., 228 F.2d 298; Wainwright v. Wainwright, Tex. Civ.App., 359 S.W.2d 628, err. ref., n. r. e.

Appellant urges that the trial court erred in canceling the lease because prior to the cessation of production, and thereafter, appellant was engaged in negotiations to restore production by secondary methods; that more than negotiations were involved, for the wells were kept in condition to again produce; they were, in fact, placed in the unitization plan, and production was again established under the unitization. In all of this, appellant says that it was doing what a reasonably prudent operator would have done under the circumstances. Regrettably, from appellant’s standpoint, secondary recovery methods to unlock the vast reserves of the Spra-berry came too late. Appellant’s obligation under the oil and gas lease contract was to maintain production and, when production failed after the primary term, to commence “drilling or reworking operations” within thirty days. Whether a reasonably prudent operator would have used secondary recovery methods to maintain production, or whether such an operator would have elected to work toward that end in lieu of further drilling or reworking operations, is beside the point. The point is that appellant owned under a determinable fee title, and it could only forestall the end to its title by commencing drilling or reworking operations. In our opinion, it did not meet the terms of its grant to effect this. Appellant admits the fact that all production ceased on December 12, 1962. The thirty-day period then began to run. The unitization agreement was entered into on October 23, 1963, and provided that it would become effective as of January 4, 1964. Appellant also admits that it did not commence additional drilling or reworking operations during the remainder of 1962 or during the year 1963. On the basis of these admissions, and the fact that the negotiations and entry into the unitization program can in no wise amount to “drilling or reworking”, nor take the place of such requirement, no fact question exists but that the lease terminated by its own terms. Gulf Oil Corporation v. Reid, 161 Tex. 51, 337 S.W.2d 267; Francis v. Pritchett, Tex.Civ. App., 278 S.W.2d 288, err. ref.; Hickey v. Spangler, Tex.Civ.App., 358 S.W.2d 216, err. ref., n. r. e.; Hall v. McWilliams, Tex. Civ.App., 404 S.W.2d 606, err. ref., n. r. e.

Appellant eloquently argues that it should not lose title to the fixtures and equipment placed on the lease by reasons of its failure to remove same, and that it should have a reasonable time in which to effect such removal. Numerous cases can be cited where leases are silent as to the period of removal or provide for removal after termination, and the courts have allowed “a reasonable time”. An implied covenant can be said to exist in such instances. Here, there can be no implied covenant, for there is an express provision in the lease contract that the right of removal exists “at any time during the term of this lease”. When express covenants appear in a lease, implied covenants disappear. Magnolia Petroleum Co. v. Page, Tex.Civ.App., 141 S.W.2d 691, err. ref. Appellant is bound by the terms of its contract.

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


author: COLLINGS, Justice.

text:
    SAN JACINTO TITLE GUARANTY COMPANY, Appellant, v. H. N. LEMMON and Alfred Fragala, Appellees.
    No. 4168.
    Court of Civil Appeals of Texas. Eastland.
    June 30, 1967.
    Rehearing Denied July 28, 1967.

      Trimble & Dobbs, Corpus Christi, for appellant.
    Utter & Chase, Corpus Christi, for ap-pellees.
   COLLINGS, Justice.

H. N. Lemmon and Alfred Fragala brought this suit against San Jacinto Title Guaranty Company seeking to recover $1,850.00 because of the alleged breach of the terms of a policy of title insurance. The land in question was purchased by plaintiffs from a third party and plaintiffs for a valuable consideration procured the policy of title insurance from defendant guaranteeing title thereto. The alleged breach of the title insurance contract was the existence of a water line easement and pipeline on the land. The case was tried before the court without a jury and judgment rendered for the full amount of the insurance policy and $925.00 attorney’s fees. San Jacinto Title Guaranty Company has appealed.

The record shows that appellees Lemmon and Fragala purchased certain land in Nueces County and received a warranty deed thereto describing it by subdivision, lot and block number and “as shown by the map or plat thereof now of record in the office of the County Clerk of Nueces County, Texas to which reference is here made for all pertinent purposes.” At all times material hereto appellees have been and are the record title holders of said property. It is stipulated that there exists a water line easement across the lot and a 36 inch water line owned by the City of Corpus Christi, and that such easement existed at the time of the purchase of the property and issuance of the policy of title insurance. After acquiring title to the land appellees for a valuable consideration purchased from appellant a policy of title insurance on the property. The title policy contains the following provision:

“SAN JACINTO TITLE GUARANTY COMPANY
A Texas Corporation-Houston, Texas
For Value Received DOES HEREBY GUARANTEE TO
H. N. Lemmon and Alfred Fragala herein styled assured, their heirs, executors and administrators, that they have good and indefeasible title to the following described real property:
Lot Number Fifteen (15) in Block Number One (1) of NUECES ACRES NUMBER TWO (2), a Subdivision in Nueces County, Texas, as shown by the map or plat Thereof now of record in the office of the County Clerk of Nueces County, Texas, to which reference is here made for all pertinent purposes.”

The description of the land as above set out is the same as the description in the warranty deed by which appellees acquired same. A copy of the official plat of the property as recorded in the deed records of Nueces County was introduced in evidence. This plat shows easements, set back lines, streets, alleys and the size of the lots and blocks in the subdivision in question. The plat shows the water line easement above referred to. The title policy specifies certain exemptions from liability but it does not specifically mention, exclude or except the water line easement in question from the terms of the policy, unless the language urged and relied upon in appellant’s points constitutes an exception.

Appellant presents points contending that the court erred (1) in holding that the easement was contemplated and not excluded from the terms of the policy because such easement was shown on the plat referred to in the property description “for all pertinent purposes”; that the quoted words refer to and include additional exceptions and exclusions to the risks insured against; that the court (2) erred in holding that existence of the easement constituted a failure of title thereunder, and in holding that appellees were not charged with either actual or constructive notice of the existence of the easement on the land prior to the purchase of either the land or the title insurance policy.

Appellees contend that existence of the' easement is a defect constituting a failure of title under the policy and that appellant is, as found by the court, liable therefor. Appellant contends that under the contract of title insurance, appellant only guaranteed title to a specific lot as shown by a map or plat of record, to which reference was made “for all pertinent purposes;” that the water line easement is shown on the plat and, therefore, it constitutes an exception to the risks insured against; that there is nothing wrong with the title to the lot, as so described, and that appellees have good title to the property covered by the policy.

Ordinarily a provision for insurance against loss generally, except for certain designated risks, includes loss from every cause not expressly excepted. 45 C.J.S. Insurance page 949, 29A Am.Jur. 416. The question for determination therefore is whether the reference in the description of the property in the policy to the map or plat of record in the County Clerk’s office “for all pertinent purposes”, constitutes an exception to the coverage provided by the policy.

The description of the property in the policy is identical with and obviously copied from the description in the warranty deed by which appellees acquired title. Such description refers to the map or plat of such property of record in the office of the County Clerk to which reference is made “for all pertinent purposes.” Unquestionably, the reference in the warranty deed to the recorded map or plat contemplated the purposes of the deed. The description of the land in the policy was for the purpose of identifying the land covered by the policy and not, as appellant contends, for the purpose of limiting the insurance protection purchased. In our opinion, this was the clear and unambiguous meaning of the policy. To hold otherwise would, in effect, require appellees, who have purchased title insurance, to be their own insurer in so far gs their title to the land, in the respect here under consideration, is concerned. Such a result would not be in keeping with the principal purpose of the policy and under the facts shown in this record would be improper. Donahue v. Mutual Life Insurance Company, 37 N.D. 203, 164 N.W. 50, L.R.A.1918A, 300.

If it should be held that the language of the policy referring to the recorded plat is uncertain and ambiguous in its meaning then it should be construed strictly against the insurer. 45 C.J.S. Insurance page 948. As stated in American Bankers Insurance Co. v. McDonald, 369 S.W.2d 688, (Ct.Civ.App. 1963, error dismissed), “An insurance policy must be strictly construed against the company writing it, and particularly of provisions which tend to defeat coverage. National Security Life & Cas. Co. v. Davis, 152 Tex. 316, 257 S.W.2d 943, 38 A.L.R.2d 764.”

Authorities also indicate that contracts of insurance should receive a practical, reasonable, and fair interpretation consonant with the apparent object and intent of the parties viewed in the light of their general object and purpose. 29 Am. Jur. page 634. Unquestionably, the principal purpose of a policy of title insurance is to insure and guarantee good title. The very name of such insurance indicates its purpose. A purchaser of such insurance seeks to avoid the necessity and responsibility of checking, examining and analyzing complex public records to determine the condition of title to land, to be assured of the existence of such good title and to be indemnified against loss through defects in title. In the instant case the San Jacinto Title Guaranty Company, for a valuable consideration, undertook to guarantee to appellees “that they have good and indefeasible title” to certain described real property. In construing a policy of insurance the rigid- rules of title law are not applicable. The nature and purpose of the insurance contract and the reasonable requirements of the underwriter are the controlling considerations. State and County Mutual Fire Insurance Company v. Kinner, 319 S.W.2d 297, (Sup.Ct.1958); Hall v. Mutual Benefit Health & Accident Ass’n, 220 S.W.2d 934 (C.C.A.1949, error ref.). Contrary to appellant’s contention we hold that the court properly found that the easement in question was not excluded from coverage under the policy because of the reference in the description of the property to the map or plat “for all pertinent purposes.” The court correctly held that existence of the water line easement on the land constituted a failure of title under the terms of the policy of title insurance and that appellees were not charged with actual or constructive notice of existence of the easement prior to purchasing the policy. Appellees testified that they had no knowledge of the easement, or pipeline, prior to the purchase of the property, prior to the purchase of the title insurance, or prior to construction of the house over the pipeline. There was no evidence to the contrary. In Shaver v. National Title and Abstract Company, 361 S.W.2d page 867, which dealt with a buried pipeline and a similar exception pertaining to the rights of parties in possession, it was stated as follows:

“All the authorities agree that possession, in order to constitute notice, must be actual possession of the party, or his agent or tenant, consisting of acts of occupancy which are open, visible and unequivocal, and in nature sufficient upon the observation of a subsequent purchaser to put him on inquiry as to rights of the possessor.”

We overrule points by appellant contending that there was no evidence to support the finding and holding of the court that the market value of appellees’ property had been reduced by more than $1,850.00 by existence of the easement and water line and that appellees had been damaged in that amount. In Stewart Title Guaranty Company v. Lunt Land Corporation, 347 S.W.2d 584 (Sup.Ct. 1961), it is stated that:

“Where title defect is existence of easement, measure of liability will generally ' be cost of removing the easement.”

It was stipulated by the parties to this suit that “ — the cost of removing the subject easement and 36 inch water line therein from the subject property would exceed the amount of One Thousand Eight Hundred and fifty ($1,850.00) Dollars.”

Appellant’s points are all overruled.

The judgment is affirmed.


author: COLEMAN, Justice.

text:
    Rodney SONNIER, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
    No. 15099.
    Court of Civil Appeals of Texas. Houston.
    June 22, 1967.

      M. W. Plummer, Houston, for appellant.
    Butler, Binion, Rice, Cook & Knapp, Clyde Bracken, Jonathan Day, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from the action of the trial court in withdrawing the case from the jury and entering a judgment for the defendant.

In the defendant’s motion for judgment, filed after the plaintiff announced to the court that he had rested his case, two grounds are set out, i.e., failure to produce sufficient evidence to compute an average weekly wage rate, and failure to produce any evidence that plaintiff had experienced any period of incapacity to work as a result of the injury sustained.

Appellant contends that appellee’s answer contained admissions establishing wage rate. In appellee’s second amended original answer he stated:

“Further answer, Defendant would show that immediately following the Plaintiff’s alleged accident and injury of December 29, 1964, it furnished him with competent and qualified medical care and attention and further paid him his weekly compensation benefits at the rate provided by law; accordingly, defendant has discharged its duty to the plaintiff under the Texas Workmen’s Compensation Law.”

This allegation, that plaintiff was paid “weekly compensation benefits at the rate provided by law”, is contained in a plea in the nature of confession and avoidance following a general denial. The general denial put in issue the question of wage rate. In such a case allegations contained in a special plea do not constitute admissions since under our rules inconsistent pleas may be filed. McDonald, Texas Civil Practice, Vol. 2, § 7.01, at pp. 611-612; Petit v. Klinke, 152 Tex. 142, 254 S.W.2d 769 (1953).

Appellant failed to produce any evidence that would negative Subdivisions 1 and 2 of Article 8309, Vernon’s Ann.Tex. Civ.St. There was, therefore, no evidence from which the jury could have found a wage rate. Texas Employers’ Insurance Association v. Ford, 153 Tex. 470, 271 S.W.2d 397 (1954); Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415 (1960).

While Section 10, Article 8306, V.A.T.S., provides for a minimum wage rate in the case of total incapacity for work, there is no similar provision in the case of partial incapacity. There is no provision for compensating a worker for pain unless the pain produces some incapacity to work, either total or partial.

Only the plaintiff testified in this case. It was his testimony that he went to a hospital on the day he was injured; that he stayed in the hospital five days; that his back was still hurting when he got out of the hospital and that it was about a month before he went back to work. He worked one day and was discharged. A week later he secured a job at a filling station. He worked there serving gas and servicing flats about eight months. Sometimes he would feel all right and at other times he couldn’t wbrk. He missed work two or three days a week. He left that job because he couldn’t do the work. He couldn’t fix flats and he thought he was going to be accused of taking money from the cash register. He then passed a pre-employment physical examination and went to work at United Industries and had a pretty good work record there at about the same weekly wage until he was hurt again. He testified that he had a family and had to work, but that he was in pain and sick all of the time. After his second injury for the first time he had pain extending down into his legs. His doctor told him that his first injury was a sprained back. While some of his testimony was weakened on cross-examination, the testimony summarized was not repudiated. At no time did he testify that he was unable to obtain and retain employment. There was no direct testimony that the pain in his back so disabled him that he could not perform the usual tasks of a workman. There was no testimony that his disability was permanent.

As a general rule the question of the extent and duration of the disability resulting from an injury is a question for a jury. Texas Employers’ Ins. Ass’n v. Scott, 233 S.W.2d 171 (Tex.Civ.App., Amarillo 1950), error ref., n. r. e.

The only evidence of total disability is the fact that appellant did not return to work for four weeks following his injury at which time he continued to suffer pain in his back. There is no evidence of permanent disability. Travelers Insurance Company v. Linder, 368 S.W.2d 797 (Tex.Civ.App., Waco 1963), error ref., n. r. e.

Appellant testified that he was paid two weekly compensation payments of $35.00 each. Even if, in the absence of proof of wage rate, he should be entitled to compensation at the minimum rate of $9.00 per week for four weeks of total disability, he has been paid more than that amount. No issue was raised by the evidence on loss of earning capacity in the absence of evidence of wage rate at the time the injury was sustained. The trial court did not err in entering the take nothing judgment.

After this suit was filed, the Industrial Accident Board made an award based on a subsequent injury sustained by appellant while employed by a different company. An appeal from this award was perfected by amending the pleadings in this suit and by making another compensation carrier an additional defendant in this suit.

This pleading was filed a few days before the date on which this case was set for trial. Appellant filed a motion for continuance on the ground that the additional defendant had not filed an answer and that the time for such answer had not expired. The trial court denied the motion and severed the cause of action against the newly impleaded defendant.

The action of the trial court in denying the motion for continuance was not error. While Rule 251, Texas Rules of Civil Procedure, provides that no application for a continuance shall be heard before the defendant files his answer, this rule was not applicable once the motion for severance was granted. Appellant is in the inconsistent position of requesting a continuance and complaining because the court granted a hearing on his request.

The trial court is vested with great discretion in questions of joinder of parties and causes of action, and of severance of causes of action, and his action will not be disturbed in the absence of abuse of discretion. Here the refusal to sever would have resulted in delaying the trial. Without reaching the question of misjoinder of parties raised by appellee, it is our opinion that there was no abuse of discretion under the facts of this case. Parker v. Potts, 342 S.W.2d 634 (Tex.Civ.App., Ft. Worth 1961), error ref., n. r. e.; Wilson v. Am-mann & Jordan, 163 S.W.2d 660 (Tex.Civ. App., Ft. Worth 1942), error dism.

Appellant also complains of the action of the trial court in refusing to delay the trial in order to allow him time to secure the attendance of a doctor as a witness. This action of the trial court is not preserved by bill of exception. The witness was not subpoenaed. There was no formal motion for delay or continuance and no request for permission to withdraw the announcement of ready. ■ Appellant failed to show that he had been diligent in his effort to procure the doctor’s testimony. TT 'J-'~ these circumstances, error is not presented. Hines v. Davison, 381 S.W.2d 360 (Tex.Civ.App., Waco 1964), no writ hist.; Texas Employers’ Insurance Association v. Jackson, 366 S.W.2d 599 (Tex.Civ. App., Waco 1963), writ ref., n. r. e.

The judgment of the Trial Court is affirmed.


author: McDONALD, Chief Justice.

text:
    LINDALE REALTY, Appellant, v. Mrs. R. R. WEARY, Appellee.
    No. 4623.
    Court of Civil Appeals of Texas. Waco.
    July 6, 1967.
    Rehearing Denied July 27, 1967.

      Carey Williams, Houston, for appellant.
    Ira P. & Elliot W. Jones, Houston, Mur-fee, Hoover & Kraft (Karl E. Kraft), Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff from a summary judgment for defendant, in a suit for a real estate commission.

Plaintiff Lindale Realty sued defendant Weary for damages for breach of an exclusive real estate listing contract. The trial court sustained defendant’s motion for summary judgment because the realty was defectively described in the listing agreement.

The listing agreement follows:
“Listing Agreement, Lindale Realty * *
“Houston, Texas 7-1-64
“For and in consideration of your agreement to list and for your efforts to find a purchaser, I, Mrs. R. R. Weary, * * give you * * the exclusive right * * for 6 months * * to sell at a price of $439,000.00 app 488 acres @ 900 per acre * * *.
(S) Mrs. R. R. Weary, Owner’'
The reverse side follows:
“Address Rankin Rd. & E. Hardy * *
“Owner Mrs. R. R. Weary, Ph JA 31298
“Lot size 488.17 acres
“Description open land 161 acres Rice Field — wooded
“Meredith & Co. Oil Co. has lease JA 81941
“Addition Meadow View Farms”

Defendant’s affidavits admit execution of the listing agreement; recites defendant “has at no time owned a tract consisting of approximately 488 acres; the only tract which I did own in July 1964 being approximately 295 acres”; admits sale of a 295 acre tract not located at the intersection of Rankin Road and Hardy; states a “portion of said land was under an oil and gas lease, but not all of it”; and that said land “occupies only a portion of the addition known as Meadow View Farms.”

Plaintiff’s affidavits assert defendant signed the listing agreement; that defendant estimated she owned about 488 acres, and furnished plaintiff with “a whole stack of legal documents from which she said we could work out a description and perhaps the quantity of the land”; that plaintiff and defendant’s husband “together tried to figure up the approximate acreage defendant owned and came up with a figure of 488 acres”; that defendant told plaintiff “161 acres was open rice field and pasture, and all or most of the property was under oil and gas lease to Meredith & Co.”; that plaintiff noted such facts on the listing card; and defendant signed the card. Plaintiff further, by affidavit, asserted the quantity of land in question was 301.77 acres rather than 295 acres.

. The trial court held the description defective, and rendered summary judgment that plaintiff take nothing.

Plaintiff appeals on 3 points, contending the trial court erred in rendering summary judgment because:

1) There was a fact issue as to whether the listing card agreement was the entire written contract, or memorandum between the parties; and
2) The listing card agreement contained sufficient description to raise a fact issue as to whether such description would “lead unerringly to an identifiable tract.”

Plaintiff asserts under its first contention that defendant delivered to it at the time of signing the listing agreement, additional documents, and that these documents may be looked to to aid the description set out in the listing agreement. We reject the contention. The contract cannot be enlarged by documents not specifically referred to by the contract. Rosen v. Phelps, CCA, Er.Ref., 160 S.W. 104; Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150.

Plaintiff’s second contention is that the listing agreement itself furnishes such description or reference to such description, as to preclude summary judgment.

The rule requiring an adequate description under the Real Estate Dealer’s License Act, Article 6573a, Sec. 28, Vernon’s Ann.Tex.Civ.St, is the same as that governing the construction of the Statute of Frauds, Article 3995, V.A.T.S. Tidwell v. Cheshier, 153 Tex. 194, 265 S.W.2d 568. It is that “the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty.” Wilson v. Fisher, supra.

It is true that the listing agreement defendant signed contained several elements of description and reference to an oil lease to Meredith & Co. Oil Company. But the land is described in the agreement as approximately 488 acres, and the record here reflects defendant owned only 301.77 (or 295) acres.

With a discrepancy in quantity of 186 acres (or more than 38%) between the description in the agreement, and the land which defendant owned, the description is fatally defective, and the agreement unenforceable.

The contention is overruled.

The judgment is correct.

Affirmed.