author: COLEMAN, Justice.

text:
    Carolyn Vee BOHN, Appellant, v. Wilford J. BOHN, Appellee.
    No. 15168.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Sept. 14, 1967.
    Rehearings Denied Oct. 12, 1967.

      Andrews, Kurth, Campbell & Jones, Homer Mabry, Houston, Adams, Gran-berry & Hines, F. P. Granberry, Crockett, for appellant.
    Carey Williams, Houston, for appellee.
   COLEMAN, Justice.

This appeal arises out of a suit for divorce. Appellant’s primary complaint concerns the disposition made of the property of the parties.

This suit was filed by appellee. A judgment of divorce was entered on the cross-action of appellant, who was granted custody of the children. Appellee was required to make payments for the support of the children and was granted visitation privileges. Appellant complains of the judgment in respect to the provisions for support and visitation as well as the provisions regarding the division of the property owned by the parties. There is no appeal from that part of the judgment decreeing a divorce.

The parties were married June 2, 1957. At that time appellee was about thirty-five years of age. He had degrees in Business Administration and Law. He had served in the armed forces of this country for four years in World War II and one year during the Korean War, entering the service as a private and leaving as a 1st Lieutenant. He had practiced law for two years as an employee of different oil companies.

At the time of the marriage appellant was twenty-three years of age. She was a graduate of Southern Methodist University and had taught school in Dallas for one year. There is testimony that she suffered from an inferiority complex. She owned an automobile, some furniture, a relatively small amount of cash, and stock in the Southland Life Insurance Company worth about $70,000.00.

Appellee had little separate property other than an automobile. He had lost his job, and had determined to enter the private practice of law in Tyler. After the wedding appellant’s parents gave the couple $2,000.00 as a wedding present. They gave appellee some office furniture. In November, 1957, appellant’s parents gave them 60 shares of stock of Citizens First National Bank of Tyler, and also provided them funds with which to acquire a membership in a country club in Tyler, Texas. During the marriage appellant’s parents made other gifts to the couple, including some stock in the South-land Life Insurance Company. They also permitted their daughter to draw checks on their bank account and she drew checks in the approximate amount of $33,000.00. There was testimony that this amount was considered an advancement against her share of the estate of her parents.

In November, 1957, appellant had a miscarriage. During this month at appellee’s suggestion she agreed to give him one-half of her Southland Life stock and had it transferred into his name. Appellant testified that appellee told her that for estate tax purposes it would be wise if all of the stock was not in her name and that it would be much better if he had half of it because there wouldn’t be as much estate tax to pay in the event of her death. She also testified that appellee asked her to transfer the stock over to him to show and prove how much she loved him. She testified that she had faith and confidence in him and expected the marriage to last for the balance of her life. She testified that she understood from her conversation with appellee that if their marriage terminated prior to the death of one of them, she would get the stock back. She also testified that he asked her not to mention the transfer of stock to her parents.

While appellee stated that “perhaps” the discussion of the inheritance and estate tax was a secondary aspect to the gift itself, he admitted that the matter of benefits to the estate resulting from a gift to him of half of appellant’s stock was discussed. He did not deny or contradict any of appellant’s testimony concerning the circumstances leading to the gift. A written instrument executed by appellant and appel-lee conveying the stock to a third person in trust for the purpose of transferring it to appellee as a gift was introduced together with the written transfer from the trustee to appellee.

At the time of the trial the Southland stock transferred to appellee, the ownership of which he had retained, had increased in value to a sum of approximately $140,000.00. Appellant remained owner of stock of a greater value. Both parties had sold some of the stock in their respective names to purchase and improve their Houston residence, and appellee had sold some of the stock in his name to make certain payments on a 216 acre farm in Houston County, and appellant had sold some stock to secure cash for her living expenses.

In his judgment the trial court found that the shares of stock of the Southland Life Insurance Company carried on the books of the company in the name of Wilford J. Bohn were his separate property and set these shares of stock apart to him free from any claim of appellant.

The court made the same finding and decree in regard to the shares of stock in that company standing in the name of appellant.

The court further found that a 216 acre tract of land purchased by appellee during the marriage was the separate property of appellee and set over to him this tract of land, together with all improvements thereon and the farm equipment.

It is undisputed in the record that a down-payment of $6,400.00 was made on the purchase price of this land, $3,200.00 of which appellee secured from a sale of Southland Life Insurance Company stock. The balance of the down-payment was paid with the proceeds of a bank loan.' The note given for the balance of the purchase price in the sum of $22,680.00 was executed by appellee alone, and was secured by the vendor’s lien and a deed of trust. Neither this note, nor the note given the bank for $3,200.00 to complete the down-payment, contained any recitations limiting the liability of the community estate or providing that it should be paid from appellee’s separate estate. The deed, however, recited that the downpayment was made by appellee out of his separate property, and purported to convey the land to appellee as his separate property.

The decree recited that all other property in the possession of the parties, except for specified properties held for the benefit of their minor children, “is community property of the parties hereto” and proceeded to divide it. Appellant was given the community homestead together with all household furniture, furnishings, appliances, silver, china, glassware, her personal clothing, jewelry, her automobile, one-half of the balance in certain bank accounts, and other items. She was required to assume the indebtedness on the homestead. Appellee was given his automobile, certain firearms, his personal effects, office furniture, law books, accounts receivable, his business bank account, and other items.

Appellant’s principal points of error concern the action of the trial court in failing to set aside the gift of stock made by her to appellee, and in finding the Houston County farm to be appellee’s separate property.

The trial court erred in his conclusion that the Houston County farm constituted the separate property of appellee. In the absence of evidence to support a finding that the vendor’s lien note executed during the marriage by appellee would be paid out of the separate property of appellee, it necessarily follows that a portion of the purchase price was paid by the community, since by presumption and legal effect the note is a community obligation. That portion of the down-payment paid with the funds acquired by a bank loan must be deemed paid with community funds. The community furnished $25,880.00 of the total consideration of $28,080.00, and thereby acquired a pro tanto ownership in the property. Broussard v. Tian, 156 Tex. 371, 295 S.W.2d 405 (1956).

The trial court is authorized by Article 4638, Vernon’s Ann.Civ.St., to divide the property of the parties as he shall deem just and right, “having due regard to the rights of each party and their children, if any,” but the trial court may not divest either party of title to real estate owned in his or her separate right. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, 1960; Reardon v. Reardon, 163 Tex. 605, 359 S.W.2d 329, 1962; Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 1923.

The statute has been construed to mean that the separate property should be restored to its owners, respectively, and that such division of the community be made as may seem just and right. Fitts v. Fitts, 14 Tex. 443; Puckett v. Puckett, 205 S.W.2d 124, Tex.Civ.App., Texarkana, 1947.

It is well settled, however, that when circumstances require it, the trial court may divide the separate personal property of the parties in such manner as may seem just and right. Ex Parte Scott, 133 Tex. 1, 123 S.W.2d 306, 1939; Fuhrman v. Fuhrman, 302 S.W.2d 205, Tex.Civ.App., El Paso, 1957; Grant v. Grant, 351 S.W.2d 897, Tex.Civ.App., Waco, 1961, error dism., woj.

In spite of the broad discretion vested in the trial court in making a division of the property of the parties, the error of the court in determining the status of the Houston County land as being a part of the separate estate of appellee constitutes harmful error, and requires that the case be reversed for a new trial. Since the trial court was of the opinion that this property was not a part of the community estate, it follows that he was of the opinion that it could not be divided between the parties for such action would result in divesting appel-lee of title to separate real estate. His discretion, therefore, could not have been properly exercised in decreeing the division of the property of the parties.

The trial court refused to set aside appellant’s gift of the Southland Life Insurance Company stock to appellee. In so doing he impliedly found that the gift was not a result of undue influence, duress, or any species of fraud practiced on appellant by appellee. He also impliedly found that appellee did not promise to reconvey the stock to appellant in the event of their being divorced. The trial court erred in making these findings since they are not supported by the evidence.

In Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985, 1948, Mrs. Gray conveyed some property to one of her sons. Later the property was sold with her knowledge and consent, and other property purchased with the proceeds. Mrs. Gray sued her son, alleging that the property was conveyed to him with an understanding that he would reconvey it to her after she was divorced, or, if the property was sold, that he would .divide the proceeds with her and his brothers and sisters. The trial court refused to admit evidence of the parol trust. The Supreme Court held that the testimony was erroneously excluded and affirmed the judgment of the Court of Civil Appeals reversing the trial court.

The Supreme Court held that where at the time of a transfer of property the transferee was in a confidential relation to the transferor, and the transferor relied upon his oral promise to reconvey the property, he is chargeable as a constructive trustee of the property for the transferor. In so holding the Court quoted with approval from Restatement of The Law, Vol. 1, Sec. 44, p. 135; 54 Am.Jur. 178, Sec. 233; and Scott on Trusts, Vol. 1, 253, Sec. 44.2.

The relationship of husband and wife ordinarily is a fiduciary relationship. In Thigpen v. Locke, 363 S.W.2d 247, Tex.Sup.1962, the court quotes from the Restatement of Restitution, § 182, Comment on Clause (b), p. 735, as follows (a confidential relationship exists) “ * * * where, because of family relationship or otherwise, the transferor is in fact accustomed to be guided by the judgment or advice of the transferee or is justified in placing confidence in the belief that the transferee will act in the interest of the transferor.”

In Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 1951, the court quotes with approval the following passage from Sec. 227, 54 Am.Jur., “Trusts,” pp. 174-175 :

“An unfair transaction between a confider and a confidant or fiduciary, at least where the confidence is induced by a fiduciary relationship between the parties, gives rise to a constructive trust in respect of any unjust enrichment of the confidant or fiduciary. Where such a transaction is attacked, the burden of proof is on the confidant or fiduciary to establish the fairness of the transaction, and to this end he must fully disclose the facts and circumstances, and affirmatively show his good faith and the absence of pressure or influence on his part in the matter.”

In Archer v. Griffith, 390 S.W.2d 735, Tex.Sup.1965, the court said: “The relation between an attorney and his client is highly fiduciary in nature, and their dealings with each other are subject to the same scrutiny, intendments and imputations as a transaction between an ordinary trustee and his cestui que trust. ‘The burden of establishing its perfect fairness, adequacy, and equity, is thrown upon the attorney, upon the general rule, that he who bargains in a matter of advantage with a person, placing a confidence in him, is bound to show that a reasonable use has been made of that confidence; a rule applying equally to all persons standing in confidential relations with each other.’ Story, Equity Jurisprudence, 7th ed. 1857, § 311. This principle has always been recognized by the Texas courts. Cooper v. Lee, 75 Tex. 114, 12 S.W. 483; Holland v. Brown, Tex.Civ.App., 66 S.W.2d 1095 (writ ref.); Bell v. Ramirez, Tex.Civ.App., 299 S.W. 655 (writ ref.).”

In Riley v. Wilson, 86 Tex. 240, 24 S.W. 394 (1893), the court held that a wife could make a valid gift of her separate property to her husband, and in the opinion quoted from Story, Equity Jurisprudence, 1395, as follows:

“Upon this subject the doctrine is now firmly established in equity that she may bestow her separate property, by appointment or otherwise, upon her husband, as well as upon a stranger; but at the same time courts of equity examine every such transaction between husband and wife with an anxious watchfulness and caution, and dread of undue influence.”

Since the fairness and validity of the transaction has been brought into question by the testimony of appellant, appellee had the burden of showing the fairness of the transaction and he has failed to meet this burden.

Appellee has urged that appellant’s cause of action to set aside the gift of stock is barred by the applicable statute of limitations. Since appellee was married at the time the property was transferred and has been married until this action was brought, her action is not barred. Article 5535, V.A. C.S.; Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025 (1923); Carl v. Settegast, 237 S.W. 238 (Tex.Com.App.1922); Bartholomew v. Bartholomew, 264 S.W. 721 (Tex.Civ.App., 1924); Moore v. Moore, 225 S.W. 78 (Tex.Civ.App., San Antonio 1920).

While there is no direct testimony that appellee told appellant that he wanted to hypnotize her and that she agreed to cooperate to that end, this is a reasonable conclusion to be drawn from the testimony. It appears that the trial court refused to admit testimony of the conclusion that he did hypnotize her, but admitted testimony as to what was said on these occasions. In this the trial court did not err.

The trial court erred in refusing to permit an attorney to testify, in answer to a hypothetical question fairly summarizing the evidence as to the work performed by appellant’s attorney, what sum of money would constitute a reasonable attorney’s fee.

Points of error were directed at that portion of the judgment permitting ap-pellee to have the children visit with him for two weeks during the summer. The order is sufficiently certain and was not an abuse of discretion.

Other points of error are presented and have been carefully considered. None of them constitute error requiring a reversal of this case.

The judgment of the Trial Court awarding a divorce to appellant and awarding her custody of the children is not disturbed. Otherwise the judgment, including the provisions awarding visitation rights, determining the amount of support to be paid by appellee, and dividing the property of the parties, is severed and is reversed and remanded for a new trial.

Reversed and remanded.

On Motions for Rehearing

Appellee complains that this Court erred in considering points of error concerning the action of the trial court in finding that the shares of stock acquired by appellee from his wife constituted his separate property because the trial court lacked jurisdiction to set aside the gifts made by the wife through the instrumentality of a trustee. This argument is based on the limited jurisdiction of the Court of Domestic Relations.

By Article 2338-1 la the Harris County Court of Domestic Relations No. 4 is given jurisdiction concurrent with the District Courts of all divorce cases, including the adjudication of property rights and all other matters involving justiciable controversies between spouses. It was not given jurisdiction to adjudicate disputes as to property rights between husband and wife and third parties. Rose v. Hatten, 417 S.W.2d 456 (Tex.Civ.App., Houston 1966).

Appellee seeks to bring this case under Rose v. Hatten by pointing out that appellant sued to set aside the instrument by which she, joined by her husband, conveyed the stock to Dee Brown Walker, Trustee, “in trust, for the sole and only purpose of conveying the same to Wilford J. Bohn.” Thereafter the trustee transferred the stock by instrument in writing to Bohn and caused the stock to be issued to him. Other shares of stock were transferred by Mrs. Bohn to her husband using the same device. The instruments contained warranties. It is appellee’s position that these instruments cannot be set aside unless the trustees were made parties, and that if they were made parties the Court of Domestic Relations would not have jurisdiction since there would be a controversy involving title to property between a husband and wife and third parties.

It is well settled that one who desires to create an express, private trust must give his trustee affirmative powers and duties. In the absence of such powers and duties the trust is passive or dry, and legal title, not merely an equitable interest, passes to the cestui que trust. There is respectable authority that the duty of executing a deed to a named cestui que trust is not such a duty as will prevent title from vesting immediately. Bogert, Trusts and Trustees, 2d Ed., § 206. See Moore v. City of Waco, 85 Tex. 206, 20 S.W. 61 (1892); Brown v. Harris, 7 Tex.Civ.App. 664, 27 S.W. 45 (1894); Clark v. Wisdom, 403 S.W.2d 877 (Tex.Civ.App., Corpus Christi 1966).

In any event the trustee had transferred the stock in accordance with the trust instrument when this suit was instituted and the trust had terminated. The trustee never had any equitable interest in the stock. There could be no liability under the trustee's warranty since the trust was executed and there was no monetary consideration. Ragsdale v. Ragsdale, 172 S.W.2d 381 (Tex.Civ.App., Galveston 1943), aff’d 142 Tex. 476, 179 S.W.2d 291.

It is our opinion that Dee Brown Walker was not a necessary party to this suit to set aside the instruments in question. The fact that the trustee was not made a party apparently did not bother the court in Ragsdale v. Ragsdale, 142 Tex. 476, 179 S.W.2d 291 (Tex.Com.App.1944, opinion adopted), a suit to set aside a trust agreement, nor the court in Caffey’s Ex’rs et al. v. Caffey, 12 Tex.Civ.App. 616, 35 S.W. 738 (1896). See also Golob v. Stone, 262 S.W.2d 536 (Tex.Civ.App., Texarkana 1953).

The motions for rehearing are overruled.


source: Caselaw Access Project

license: Public Domain

text:
    Wilford J. BOHN, Appellant, v. Carolyn Mims BOHN, Appellee.
    No. 15169.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Sept. 14, 1967.
    Rehearing Denied Oct. 5, 1967.
    Carey Williams, Houston, for appellant.
    Andrews, Kurth, Campbell & Jones, Homer Mabry, Houston, Adams, Granberry & Hines, F. P. Granberry, Crockett, for appel-lee.
   COLEMAN, Justice.

This is an appeal from a judgment entered in a divorce case by the Court of Domestic Relations No. 4 in and for Harris County, Texas. Appellant limits his appeal to that part of the judgment overruling his exceptions to a motion made by appellee to continue in force during appeal a temporary injunction previously granted, and ordering that upon the filing of a supersedeas bond ⅛ the penal sum of $12,500.00 by appellee, the final judgment should be stayed and suspended and that the temporary injunction order previously entered enjoining appellant from selling certain shares of the capital stock of Southland Life Insurance Company should be continued until final disposition of the controversies between the parties herein on appeal, or until the time for perfecting such appeal has expired.

During the trial appellee had sought to have a gift of the shares of stock in question set aside, and to have these shares of stock awarded to her as .her separate property. This relief was denied by the judgment of the trial court, and the shares were adjudged the separate property of appellant. A statement more fully setting out the facts in this case and the issues involved may be found in the opinion of this Court in Bohn v. Bohn, Cause No. 15168, 420 S.W.2d 165.

Appellant takes the position that the order from which this appeal has been taken is an order granting a temporary injunction and has proceeded under the time limits and conditions applying to authorized appeals from interlocutory judgments. He contends that the order is erroneous: (1) because it does not contain the reasons for its issuance required by Rule 683, Texas Rules of Civil Procedure; (2) because the application for the temporary injunction pending appeal sets forth neither equitable nor statutory grounds for the temporary injunction since the shares of stock were adjudged to be appellant’s separate property; (3) because as a matter of law conservatory writs pending appeal on the merits are limited to such writs as are consistent with and tend to effectuate the final judgment of the trial court; and (4), finally, because, assuming jurisdiction to grant the writ, the trial court abused his discretion in so doing.

These points present interesting questions, the answer to which may be in doubt. However, we have determined that the order continuing the temporary injunction on condition that a supersedeas bond be filed could not have resulted in harm to appellant. Appellee filed the bond as required by the order, and as a result the entire judgment entered by the court was superseded. Since the temporary injunction was in force at the time the final judgment was entered, it remained in force when that judgment was suspended. Houtchens v. Mercer, 119 Tex. 431, 29 S.W.2d 1031 (1930, opinion adopted); Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S.W. 326 (1907); Williams v. Pouns, 48 Tex. 141 (1877); Janelli v. Bond, 148 Tex. 416, 225 S.W.2d 824 (1950); Murray v. Humphrey, 132 S.W.2d 444 (Tex.Civ.App., Texarkana 1939).

The judgment of the Trial Court is affirmed.


author: SAM D. JOHNSON, Justice.

text:
    Edna Earl McKnight SIMS et al., Appellants, v. Cubie Marie McKNIGHT, Individually and as Independent Executrix of the Estate of Benjamin Clare McKnight, Deceased, Appellee.
    No. 4.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Oct. 11, 1967.
    Rehearing Denied Nov. 1, 1967.

      Eddington, Kroll, Friloux & Smith, and C. Anthony Friloux, Jr., Houston, for appellants.
    Vinson, Elkins, Weems & Searls and M. C. Chiles and Jarrel D. McDaniel, Houston, for appellee.
   SAM D. JOHNSON, Justice.

The Probate Court of Harris County admitted the will of B. C. McKnight to probate and an appeal was taken to the District Court. Contestants, and appellants herein, are the children of the decedent by his first marriage. The proponent, and appellee herein, is the decedent’s second wife of some thirty-seven years, and his surviving widow. The trial in the District Court was to a jury .which found that the decedent had testamentary capacity by answering affirmatively the single special issue on this subject that was propounded by the court. Contestants filed their motion for new trial based solely on allegations of jury misconduct during deliberations upon the trial of this cause. The trial court overruled the motion for new trial. No findings of fact or conclusions of law were filed by the trial court.

By numerous points of error appellants allege a number of acts of jury misconduct: (a) a juror, during deliberations, obtaining from a dictionary the definition of a word or words used and defined in the court’s charge, (b) by way of comparison with the decedent, jurors relating personal experiences with mentally ill people, (c) misstatement by jurors during their deliberations of the limitations of what evidence could be considered in arriving at a verdict, and (d) the cumulative weight of the alleged individual acts of misconduct by jurors.

Under Rule 327, Texas Rules of Civil Procedure, where jury misconduct is relied on as a ground for a new trial, two burdens rest on the party asserting it. He must prove by a preponderance of the evidence that misconduct occurred and he must establish that it probably resulted in injury to him. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259; Menefee v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 181 S.W.2d 287, ref., w. m.; Watson v. Texas Indemnity Ins. Co., 147 Tex. 40, 210 S.W.2d 989.

Where, as here, no findings of fact or conclusions of law are filed, there is an original presumption that the trial court found all controverted facts in support of its judgment overruling the motion for new trial and that there was no misconduct. Putman v. Lazarus, 156 Tex. 154, 293 S.W. 2d 493; Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770; Milstead v. Aynesworth, Tex.Civ.App., 341 S.W.2d 942, writ ref., n. r. e.

If there is conflicting evidence on the motion for new trial on whether or not there was misconduct, determinations made by the trial court are binding on appeal. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62; State v. Wair, 163 Tex. 69, 351 S.W.2d 878.

The trial of this case lasted over two weeks and the jury deliberation lasted for part, at least, of two days. After the jury retired to deliberate the afternoon of the first day, the vote of the jury stood at 9 to 3 in favor of a finding that the decedent, B. C. McKnight, did not have testamentary capacity. The court’s charge presented to the jury the single special issue concerning testamentary capacity of B. C. McKnight based on the “preponderance of evidence.” That term was defined by the court as “the greater weight and degree of credible evidence before you.” Following the first afternoon’s deliberation, one juror, George Williams, went home and looked up the word “preponderance” in the dictionary and the following day advised the jury that the definition he found in the dictionary meant the “greater weight of the evidence” or “the most evidence.” Later on in this second day the entire jury voted in favor of the decedent having testamentary capacity.

Two principal acts of misconduct are alleged during deliberations by two of the jurors making reference to their experiences with persons of unsound mind. In the first, juror Sarah Gilbert, in visiting with another juror in the hallway, remarked that she had a sister who was mentally retarded. Subsequently, and during the jury deliberations, Mrs. Gilbert was asked about what her sister would be capable of doing the things the decedent had done with help “if one of us stood over her and told her how, but that did not concern this case.” Her response also included that her sister “ * * * had brain damage, that mentally insane and mental retardation were not the same thing, that there was a broad line between them, that she never did or never could be able to do any of these things by herself.” She was immediately rebuked for this by fellow jurors and advised that she should not mention personal experience with people who are mentally incapacitated. This discussion terminated and did not occur again. It is clear that statements of jurors concerning personal experiences constitute unsworn testimony, and, if pertinent to a disputed issue, can be such misconduct as will require a new trial. The burden of showing materiality and probable injury of course must be also met. Martin v. Shell Oil Co., Tex.Civ.App., 262 S.W.2d 564.

“There is nothing incompatible with justice in the act of a juror consulting a dictionary unless specific harm can be demonstrated.” Davis v. Damge, Tex.Civ.App., 328 S.W.2d 203, 207, err. ref’d., n. r. e. In looking up the word “preponderance” in the dictionary, the juror Williams found no information at variance from that available in the charge. He gave no new information to the jurors when he said it meant the “greater weight of the evidence” or “the most evidence.” Since the definition found by the juror Williams was the same, or similar, to the court’s definition, no harm is shown. With the exception of one, fellow jurors testified that Williams in no manner attempted to use this information in discussing the evidence in the case or in attempting to persuade any juror. The trial court’s implied finding that no harm resulted is fully supported by the evidence and the trial court did not err in overruling the motion for a new trial on this ground.

In the case of Davis v. Damge, cited above, a number of jurors looked up the meaning of the word “proximate” in die-tionaries and law books. The definition found by the jurors was not shown in evidence and was subject to speculation as to what definition the jurors actually found. The court there stated “There is nothing incompatible with justice in the act of a juror consulting a dictionary unless specific harm can be demonstrated.” In the case at bar appellants rely upon the later change of position on the part of jurors as the principal showing of “harm.” This falls short, however, of establishing specific harm that probably resulted in injury to the contestants.

The remarks in this instance were clearly limited by Mrs. Gilbert in her concluding that “there was no comparison between the two and couldn’t be related, that it didn’t have any bearing on the case.” By responding to the inquiry in this fashion, Mrs. Gilbert cannot be said to have been making a comparison to the decedent and was clearly not attempting to make any argument to sway the other jurors. The remarks of this juror were made in answer to a question of another juror about her sister and fall in the category of casual remarks that were promptly rebuked. Under such circumstances, no harm is shown. See Spear v. Central Distributing Co., Tex.Civ.App., 384 S.W.2d 180, err. ref., n. r. e.; Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493 (1956).

In the second instance a different juror, Mrs. Serenia Rocio, attempted to inject a discussion of her experiences as an employee in a mental hospital to the jury. This juror had consistently expressed herself and voted throughout the jury deliberation for the appellant’s contention that the decedent lacked testamentary capacity. She was one of the last, if not the last, juror to change her vote and did so just prior to the time that the jury returned its verdict. Her testimony, and that of other jurors, is to the effect that she did attempt to use her experience to try to persuade the other jurors to her original position, that is that the decedent lacked testamentary capacity.

In Crawford v. Consolidated Underwriters, Tex.Civ.App., 323 S.W.2d 657, err. ref, n. r. e., the jury agreed to “flip a coin” to determine an award in a Work man’s Compensation case. The result of the “coin flip” was to give the appellant a higher award. The court held that flipping the coin was obviously misconduct but that the appellant could not complain of it since he had suffered no injury. The court said “[i]nstead of suffering injury as a result, however, the plaintiff benefited and is therefore in no position to complain of the incident.” Until the final part of the jury’s deliberation and the last vote taken, Mrs. Rocio consistently contended and argued that the decedent was of unsound mind. Here the misconduct of the juror throughout substantially all of the jury’s deliberation was calculated and intended to benefit the position of the appellant. As the misconduct complained of was beneficial to the appellants, they cannot now complain of it. Crawford v. Consolidated Underwriters, supra; and see Moore v. Scott, Tex.Civ.App., 16 S.W.2d 1100 (err. dism’d.).

Misconduct is further alleged based on one or more of the jurors’ statement of the limitations on what evidence could be considered in arriving at a verdict. A great deal of documentary evidence had been introduced by appellee concerning the decedent’s ability to attend to his affairs at the time the will was prepared and signed. At least two jurors stated, in the hearing on the motion for new trial, that they believed that they could only consider the evidence that was before them, as contrasted to the witness’ testimony that was presented in the trial of the case. Both, however, qualified their assertion considerably. Juror Brewster, making the response about whether he considered Dr. Vogt’s testimony that “I heard his testimony and I believed what part I wanted to.” Juror Rocio, on close questioning about her consideration of a witness’ testimony that was reread by the court reporter at her suggestion and whether or not she considered it even though it wasn’t “on the table” responded, “I didn’t say what evidence. You consider all the evidence. He was here as a witness and I think you hear it all and listen to the witnesses.” She was then questioned, “And then they did discuss the doctor’s evidence, didn’t they?” She responded, “Yes, we discussed everything that happened in the trial.”

Eliminating, however, the apparent contradiction in these jurors’ statements, their allegation that they thought the jury could only consider the evidence that was “on the table” was strongly controverted by the other jurors that testified. Other jurors confirmed that at all times it was made plain to the jury as a whole that they must consider the testimony as well as the documentary evidence before them. We just presume, indeed are bound by the presumption, in view of the conflicting testimony, that the *trial judge made implied findings that jury misconduct did not occur in this respect. “The above testimony is conflicting on all of the grounds of jury misconduct alleged in the motion for new trial. Therefore, the trial judge’s implied finding that jury misconduct did not occur is binding on this Court.” Brawley v. Bowen, 387 S.W.2d 383 (Tex.Sup.1965).

It is well recognized that a number of repeated instances of misconduct during deliberation of a jury, though harmless if taken separately, may, in combination, call for a reversal of the verdict. Gonzalez v. Broussard, Tex.Civ.App., 274 S.W.2d 737; Scroggins v. Curtiss & Taylor, 148 Tex. 15, 219 S.W.2d 451; Sproles Motor Freight Lines v. Long, 140 Tex. 494, 168 S.W.2d 642. Rule 327, T.R.C.P., provides that a new trial may be granted if the misconduct proved to be material and: “* * * if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.” It is the appellant’s position that the record in its entirety demonstrates probable injury and that the “overt acts of misconduct” themselves are sufficient to support their allegation of probable injury, citing Texas Employers Insurance Association v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958). In McCaslin, a Workman’s Compensation case, the plaintiff during the trial sought out a member of the jury and urged her to do all she could to help her obtain a favorable verdict. The court held 'that an overt act itself may be so highly prejudicial and inimical to fairness of trial that the burden of going forward with proof of harm is met by showing the act and nothing more. The court therein held that the act of the prevailing party, the plaintiff, was within that category.

The “McCaslin Rule” was discussed by the Supreme Court in St. Louis Southwestern Railway Co. v. Gregory, 387 S.W.2d 27 (Tex.Sup.1965). The court, in limiting the application of the rule, said: “There are some types of misconduct, such as jury tampering, in which the burden of proving probable injury is discharged, prima facie, by mere proof of the overt act itself.” Texas Employers Insurance Ass’n. v. Mc-Caslin, supra.

The case at bar presents no comparison to the facts found in the McCaslin case. As said by the Supreme Court in commenting on the McCaslin Rule’s consideration in Aetna Casualty & Surety Co. v. Perez, Tex.Civ.App., 360 S.W.2d 157, “ ‘This is the rule, and a good one, but its extension into new areas flirts with the re-adoption of the discarded rule of presumed harm in misconduct cases.’ Having concluded that mere proof of the acts of misconduct on the part of the juror Bradford does not establish that the trial was materially unfair to the plaintiffs, we examine the record to determine whether it discloses proof of probable injury to the plaintiffs.” St. Louis Southwestern Railway Co. v. Gregory, 387 S.W.2d 27 (Tex.Sup.1965).

Here the appellants have the obligation to review the entire record which requires a review of the evidence adduced at the trial of the cause. However, appellants do not refer to any evidence adduced on the trial in chief. Having failed to point out the testimony in the 1,202 pages in the statement of facts which would support appellant’s conclusion that they were entitled to a verdict that B. C. McKnight did not have testamentary capacity, appellants do not meet the burden of showing probable injury and the judgment of the trial court should be affirmed. Rule 418, T.R.C.P.; Hughes v. Grogan-Lamm Lumber Co., Tex.Civ.App., 331 S.W.2d 799, err. ref’d., n. r. e.; Novita Oil Co. v. Smith, Tex.Civ.App. 247 S.W.2d 151.

The judgment of the trial court is affirmed.

Affirmed.


author: BARRON, Justice.

text:
    EMSCO SCREEN PIPE COMPANY OF TEXAS, Inc., Appellant, v. HEIGHTS MUFFLER COMPANY et al., Appellees.
    No. 8.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Oct. 11, 1967.
    Wendell S. Loomis, Houston, for appellant.

      Knight, Prappas, Rowland & Caldwell, Everett B. Williams, and Ellis F. Morris, Houston, for appellees.
   BARRON, Justice.

This is a suit on a sworn account filed by Emsco Screen Pipe Company of Texas, Inc. against Southwestern Muffler Manufacturing Company and Heights Muffler Company (the first business succeeding the latter), and Bernard Vlahakis and Louis Gos-tecnik, the last two individuals named being partners in the former firm of Heights Muffler Company. Plaintiffs primary recovery was stipulated to be in the sum of ■$3,599.88 with 15% as attorney’s fees on the amount of the net recovery. The original ■claim was not disputed, and the amount sued for by plaintiff-appellant was allowed by the trial court as a recovery against appel-lees. Southwestern Muffler Manufacturing Company, however, by cross-action and counterclaim, alleged credits and offsets against this account in the sum of $5,540.20 for returned and allegedly defective mufflers sold by Emsco to the appellees, which appellees claim were not credited to the account. For such returned mufflers Southwestern made claim by way of offset against Emsco’s claim.

Trial was to the court. At the conclusion of the testimony the trial court rendered judgment for the full amount sued for by Emsco and allowed recovery by appellee, Southwestern, for $3,546.58; allowed Emsco the balance of $53.05 and attorney’s fees of $7.96, a total of $61.01. Plaintiff Emsco has appealed from the judgment of the trial court attacking the allowance of the offset.

A statement is necessary. The parties did business together from about August, 1960 through August, 1962. Heights Muffler Company and Southwestern Muffler Manufacturing Company, a corporation, acted as distributor of mufflers manufactured by Emsco during the entire period Emsco was manufacturing mufflers, and the appellees purchased $89,200.39 worth of mufflers during the whole period. Appellees sold the mufflers to wholesalers and retailers, who sold and installed the mufflers on various automobiles. Emsco guaranteed the mufflers “against defects in workmanship and material, and from failure from rust and corrosion, for the useful life of the car” while they were in the possession of the purchasers.

When a muffler proved to be defective, the retailer honored the guarantee and returned it to the appellees, who allowed a cash credit to the retailer’s account for the defective muffler. The mufflers were then returned by appellees to Emsco for credit to appellee’s account. Appellees returned mufflers on various occasions and received proper credit, and at no time did appellees return the guarantee certificate issued to the user by the retailer to plaintiff, Emsco. In August, 1962, Emsco notified its customers that it was discontinuing operation of its muffler division, whereupon Southwestern ceased purchasing mufflers from Emsco. However, Southwestern continued to return defective mufflers to plaintiff without user’s warranty certificates as it had done before Emsco discontinued its muffler supply. The record shows that Emsco attempted to protect itself from credits for the returned mufflers and notified Southwestern that its acceptance of the returns would be more rigid after August, 1962. Emsco, however, continued to accept the returned property but failed to allow Southwestern credit for defective mufflers.

Appellant contends that the trial court erred in allowing appellee to recover on its cross-action on the court’s theory that “by custom and usage, the parties, in their business dealings, one with the other, established a contract which provided for allowance of credit to the defendant for merchandise returned to the plaintiff.” Southwestern Muffler Manufacturing Company in its cross-action alleged that the plaintiff was “indebted to cross-plaintiff * * * for the returning of goods and merchandise to the cross-defendant which was delivered to and accepted by cross-defendant * * * ”, and alleged that the cross-plaintiff was claiming that sum of money for merchandise returned and delivered. Further, it was alleged that “ * * * in accordance with long established customary procedure cross-plaintiff in the regular course of business, returned for credit, damaged and defective products, and obtained receipts therefor.” Objection is made that there are no pleadings and no proof to sustain the trial court’s findings of fact that by custom and usage the parties in their business dealings, one with the other, established a contract for allowance of credit under which Southwestern returned the mufflers to Emsco.

The allegations were plain that appellee was claiming the mufflers as an offset by agreement and course of conduct on the part of Emsco and appellees, and there was nothing in the allegations or defect in the pleadings which should have confused or mislead appellant. The testimony is sufficient to show that mufflers were regularly returned by appellee when they became defective and that they were accepted by Emsco by the signature of its agents.

Appellant Emsco apparently refused to allow credit on the merchandise involved in this lawsuit after August, 1962, upon the ground that the guarantee forms (not a part of any specific agreement between Emsco and Southwestern), were not returned to Emsco, and therefore there was no authority to return the property. But the testimony shows that no conditions were agreed upon in Southwestern’s case, and that Emsco from the beginning accepted the returned merchandise without the guarantee forms and had issued credits for it. The record does not show as a matter of law that return of the guarantee certificates was required in the case of appellee, though their return was required in the case of a purchaser who returned a defective muffler to the retailer who sold it to him. While the testimony is conflicting, it is sufficient to support the trial court’s finding that there was an agreement for the return of defective mufflers and that proper credits would be allowed.

The record shows an attempted change of policy on the part of Emsco after a Mr. Johnson came into the operation of appellant’s company. On September 17, 1963, Southwestern Muffler Manufacturing Company received a letter from Emsco, signed by C. E. Johnson, to the effect that returned mufflers had not been replaced in accordance with the guarantee by Emsco, because the certificates were not returned with the defective mufflers and no proof of replacement had been shown. But Mrs. Cynthia Walker, office manager of Emsco, testified that Emsco received mufflers from appellee prior to August 31, 1962, without warranty certificates. She further testified that she was the person to honor or dishonor warranties for Emsco and that she continued after August 31, 1962 to accept goods back without the guarantees on about twelve occasions. She testified that she. had instructions to accept them, and that the defective mufflers were retained by Emsco. The only specific testimony that no credits would be allowed on the returned merchandise was a letter of September 17, 1963.

As stated above, appellant discontinued its muffler supply in August, 1962. At that time the business dealings between the parties terminated. For mufflers sold to ap-pellees prior to that time, the appellant could not change their course of dealings unilaterally and add new conditions regarding the return of defective merchandise. There is no evidence that the parties agreed to any such new conditions. It is not contended that the mufflers were not defective.

The contract in this case was oral and vague in certain particulars. While the sale of merchandise to a purchaser, with certain discounts, to be paid for by the purchaser on an open account is an ordinary business transaction and not unusual, the return of allegedly defective property by the purchaser for credit upon his account may be subject to certain conditions and circumstances. These circumstances here were ill defined or not defined at all. Usage or custom is admissible to determine the terms of a contract where parties have not defined them, provided such usage or custom is so well established and generally known as to raise a presumption that the parties knew of it and contracted with reference to it. The parties themselves are in the best position to know what was intended by their conduct and the language used by them. Great weight should be given to the interpretation placed by the parties on a contract of uncertain meaning. It is undisputed that ap-pellee, until the end of August, 1962, returned the merchandise to appellant freely and unconditionally and received proper credits without further proof that the merchandise was defective. This procedure continued until a short time after September 17, 1963. The mufflers were accepted by appellant, who signed receipts for them. The official who passed upon the warranties testified that she was instructed to receive them. We believe the trial court was correct in finding that the merchandise was returned for credit pursuant to the true understanding and agreement of the parties. James Stewart & Co. v. Law, 149 Tex. 392, 233 S.W.2d 558, 561 (1950); Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504 (1942); 13 Tex.Jur.2d p. 300 et seq., Secs. 128, 129; Jackson Brewing Co. v. Clarke, 375 S.W.2d 352, 355 (Tex.Civ.App.) error ref., n. r. e.

We have carefully examined appellants remaining points of error, numbers 4 and 5, and find that they present no reversible error. Rule 434, Texas Rules of Civil Procedure.

Judgment affirmed.


author: DUNAGAN, Chief Justice.

text:
    SOUTHWESTERN ELECTRIC POWER COMPANY, Appellant, v. Adelle PRESSWOOD et al., Appellees.
    No. 290.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 19, 1967.
    Rehearing Denied Nov. 9, 1967.

      Woodrow Edwards, Mt. Vernon, Joe W. Lovelace, Linden, Enoch Fletcher, Grand Saline, for appellant.
    Elliott & Elliott, Clyde Elliott, Jr., Canton, Wynne & Wynne, Gordon Wynne, Sr., Wills Point, for appellees.
   DUNAGAN, Chief Justice.

This is an eminent domain proceeding instituted in Van Zandt County, Texas, by Southwestern Electric Power Company, appellant, against Adelle Presswood, Esther Hopkins, and the First National Bank of Grand Saline, appellees. The bank is a party to this suit by reason of a Deed of Trust it holds against the property which is the subject matter of this suit. The take was a 100-foot wide surface easement over 40 acres of land belonging to Mrs. Press-wood and Mrs. Hopkins, the part severed amounting to 2.77 acres. In a trial before a jury in the County Court of Van Zandt County, based upon a jury verdict, judgment was entered for appellees in the sum of $1,939.00 for the severed portion and $11,169.00 as damages to the remainder. From that judgment, appellant has duly perfected its appeal. The parties, in the trial court, stipulated that the only issue involved was one of damages.

The record shows that this property is a part of Waldrip’s subdivision to the City of Grand Saline. The record further shows :

(1) That to the west and in the same addition, Gene Germany has a house in the $50,000.00 class;

(2) That the property here involved is bound on the south by Football Field Road, which is the north boundary line of the City Limits to Grand Saline;

(3) That in the same addition is located the Grand Saline Grammar School;

(4) That the Grand Saline Independent School District has acquired additional property in the same addition for a new high school adjacent to the subject property;

(5) That such school in the open market paid $500.00 per acre for the new high school site;

(6) That across the street (Football Field Road) property sold to Matthews and others for almost $500.00 per acre;

(7) That less than a mile north of the property condemned, Earl Persons owns a home in the $150,000.00 class;

(8) That to the northeast Dr. Marsh has constructed a home in the $25,000.00 to $30,000.00 class and Dr. Hardt at the time of trial was building an even bigger home;

(9) That East down Football Field Road from the subject property is the most exclusive addition to Grand Saline;

(10) That South of and adjoining the subject property, along Football Field Road, Matthews has built a nice home;

(11) That in addition to the foregoing, the condemned property had the following utilities: Phone service, natural gas, electricity, and water furnished by a deep well; and

(12) That the condemned property has a paved street along its South Boundary Line and a paved country road along its North Boundary Line.

Immediately prior to condemnation, the foregoing portrays the neighborhood surrounding Appellees’ property. Appellees Presswood and Hopkins approximately two years prior to condemnation proceedings, had built a home in the $17,000.00 class upon the subject property. The evidence shows that the subject property is located in a nice neighborhood with utilities and available to schools.

The testimony of the witnesses and the jury’s findings as to the value of the 2.77 acres and the 37.23 acres (the remainder) before and after taking, are shown by the following chart:

Appellant has predicated its appeal on three points of error. It asserts in its first point that “The trial court erred in allowing testimony, over plaintiff’s proper objections, concerning adaptability of defendants’ land for a residential subdivision and in entering judgment based on such testimony when there was no evidence that defendants intended their land for such future use or that anything had been done toward developing and improving it for such use.’’ The Appellant says this court has already decided this point in its favor in the case of Melton v. State, 395 S.W.2d 426 , (Tex.Civ.App., Tyler, 1965, writ ref., n. r. e.). We do not consider the Melton case in point under the facts reflected by the record in the instant case. In the Melton case under the facts presented therein, we held that the intended future use of land for a subdivision shopping center specifically was properly excluded in evidence, although its adaptability and suitability for that purpose might be shown generally. Moreover, testimony was admitted in the Melton case that the property was feasible as a shopping center and was the best site for such center in the Sulphur Springs area.

All of Appellees’ witnesses and one of the witnesses (Winn) for the Appellant used a simple method of arriving at the market value of this property. Each of them arrived at the value of the land and then added the value of the improvements to reach the overall value. Two of the Appellant’s witnesses, Hubbard and Estes, did not take into consideration the value of the improvements in appraising this property.

While the witnesses for Appellees gave the opinion that the highest and best use of the property in question was subdivision or small estates, their evaluation of the land was in line with recent sales of property adjoining appellees’ land. Ap-pellees are entitled to have the value of their land considered in the light of what adjacent land is bringing in the market, regardless of past, present or future use. Hays v. State, 342 S.W.2d 167 (Tex.Civ.App., Dallas, 1960, writ ref., n. r. e.). See also City of Tyler v. Ginn, 225 S.W.2d 997 (Tex.Civ.App., Texarkana, 1949, writ of err. dism., 148 Tex. 604, 227 S.W.2d 1022); Kennedy v. Travis County, 61 Tex.Civ.App. 547, 130 S.W. 844 (1910, n. w. h.).

Section 123, Texas Law of Condemnation by Rayburn discusses “adaptability for All Existing and Reasonably Forseeable Uses” which may be shown in evidence to determine market value. This article states that it is settled law in Texas that the setting and surrounding of such property can be shown in evidence to enable the court and jury to determine the ultimate issues of market value of the real estate taken and the damages to the remainder. Many cases are cited for this proposition.

In Continental Pipe Line Co. v. Kiel, 227 S.W.2d 825, 828 (Tex.Civ.App., Fort Worth, n. w. h.), it was held:

“ * * * The test seems to be that the owner may show uses his land was suitable for or adaptable to affecting its value under the facts and circumstances existing at the time condemnor’s acts occurred. This is true whether the’owner has chosen to avail himself of the situation or not. If the value existed it belonged to him and the condemnor could not take it from him without just compensation.”

The Supreme Court, in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, stated that:

“Generally, it may be said that it is proper as touching the matter of the value and depreciation in value to admit evidence upon all such matters as suitability and adaptability, surroundings, conditions before and after, and all circumstances which tend to increase or diminish the present market value. * * * ”

In City of Tyler v. Ginn, 225 S.W.2d 997, 998, writ dismissed 148 Tex. 604, 227 S.W.2d 1022, it was held:

“ * * * There seems to be no question but that appellees are entitled to the highest value for which the property was adaptable. * * * ”

It is a general rule that the value of land condemned is not to be estimated simply with reference to the condition in which the owner has maintained it or for the use to which it is at the time applied, but with reference to any use to which it can be reasonably adapted. 29A C.J.S. Eminent Domain § 160, page 675; Calvert v. City of Denton, 375 S.W.2d 522 (Tex.Civ.App., Fort Worth, 1964, writ ref., n. r. e.).

By its Points Two and Three, Appellant contends (1) that the judgment of the trial court is contrary to the overwhelming preponderance of the credible evidence adduced on the trial; and (2) that the verdict and judgment is so excessive and clearly unjust that Appellant should be awarded a new trial or a remittitur should be required if the judgment is affirmed.

The jury’s findings to the special issues submitted (all being damage issues) were within the range of the testimony as to the value of the 2.77 acres before and after the taking and the 37.23 acres, the remainder, before and after the taking, as is reflected by the above chart of the value testimony. In Maddox v. Gulf, Colorado & Santa Fe Ry. Co., 293 S.W.2d 499 (Tex.Civ.App., Fort Worth, 1956, writ ref., n. r. e.), it is held that in a condemnation case, the jury when considering the value of condemnee’s remaining property immediately after condemnation, is restricted only by the lowest figure testified to.

The Court, in McConnico v. Texas Power & Light Co., 335 S.W.2d 397 (Tex.Civ.App., Beaumont, 1960, writ ref., n. r. e.), said:

“ * * * A jury is at liberty to reach its conclusion by blending all of the evidence admitted before them, aided by their own experience and knowledge of the subject of inquiry. They are not eompelled to credit all the testimony of any witness or to reject it all. * * * ”

After a careful review of all of the •evidence, we find that none of the answers made by the jury are so contrary to the weight and preponderance of the evidence as to be clearly wrong or excessive.

The basis of Appellees’ remaining points of error is that the trial court erred in admitting evidence concerning the ten acre tract adjoining the thirty acre tract ^because the thirty acre tract was jointly owned by Appellees, Adelle Presswood and Esther Hopkins, and the ten acre tract was owned only by Adelle Presswood; that the proof of unity of ownership of the entire forty acres in question is insufficient to support the judgment awarding damages to remainder of the entire forty acres not condemned, which includes the ten acre tract. The record shows that the two tracts of land are contiguous. The easement sought to be condemned was across the lower edge ■of the thirty acre tract, separating it from -the ten acre tract.

The thirty acre tract was purchased in 1956 in the name of both Appellees, Adelle Presswood and Esther Hopkins. The ten acre tract was purchased in 1942 in the name of Adelle Presswood only. Upon the trial of this case, on direct examination, Adelle Presswood testified:

“Q Now, Miss Presswood, there has been some discussion about your property over there. You own how much land, you and Miss Esther own over there ?
“A 40 acres.
“Q That 40 acres is in two tracts, is it?
“A Right.
“Q Now, the 30 acre tract, when did you buy that?
“A 1956.
“Q When did you buy the ten acre tract ?
“A I believe in 1942.
“Q All right. Now, is that operated as one unit?
“A Yes, right.
“Q Any street between the two tracts?
“A No.
“Q All right. Is it a common ownership between the two of you?
“A It is.
it * * *
“Q How about the barn, did you all build the barn together?
“A In 1956 we secured a loan on that at that time in both of our names.
“Q Both of you signed the mortgage on it. When you built your house— when did you build the house?
“A It was completed in April, 1963.”

It seems to be undisputed that the barn is located upon the ten acre tract.

On cross-examination, Adelle Presswood gave the following testimony:

“Q Does your deed to the ten acres have the Miss Hopkins name on it but since 1946 it has been held in trust for her. In other words, she doesn’t have any record ownership of it?
“A There is nothing on record. There has been a provision made in a will. We can change it anytime we want to and I will make this explanation.
“Q You rendered it for taxation though as your separate property, the ten acre tract?
“A I sure do.
“Q The deed does stand in your name?
“A That’s right, it has never changed.”

Upon cross-examination, Appellant’s witness, T. N. Winn, gave the following testimony:

“Q And you know where that ten acres comes down there where the barn is, don’t you?
“A Yes, sir.
“Q That is all used as one unit there, isn’t it?
“A Yes, sir, I would say it is.
“Q The whole thing.
“A I would say it was.
« ⅝ ⅜ ⅝
“Q I don’t want you to read it. I want • you to tell me whether you took the ten acres in consideration or not?
“A I knew it was there. I knew it was used as a unit.
“Q You knew it was used as a unit.
“A I recorded in my record that the barn for the cattle operation was located on this ten acres.
“Q And it was used as a unit together with the other property?
“A Not denying it at all. I am agreeing with you, sir.
« ⅜ *

The fact that Adelle Presswood rendered the ten acre tract for taxes in her name only and paid the taxes thereon does not conclusively and as a matter of law establish ownership to the tract of land.

Appellant relies heavily on the recent decision in Gossett v. State of Texas, 417 S.W.2d 730 (Tex.Civ.App., Eastland, 1967), as supporting its contention that there is no competent evidence in the instant case to establish a unit of ownership between the two parcels of land herein involved. We do not deem the Gossett case as controlling of the case before us. The court, in the Gossett case, held that the evidence did not show a unit of ownership between the tracts involved as is required in such cases. The case at bar presents a different fact situation. Here, the undisputed testimony, admitted without objection, does clearly establish a unity of use and ownership of the two tracts of land in question, as is required in such cases.

In the case at bar, there was evidence offered by Appellees as to the type of neighborhood surrounding the property involved, its adaptability, comparable sales and its highest and best use. From these, the jury could arrive at the market value thereof.

Consideration of Appellant’s points has required us to examine the entire record. Having done so and having considered all of the evidence, that supporting as well as that contrary to the verdict and judgment, it is our opinion that all of Appellant’s points are without merit. They are accordingly overruled.

The judgment is affirmed.


author: NORTHCUTT, Justice. CHAPMAN, Justice

text:
    Joe Wayne McFARLIN, Appellant, v. Delta Christiansen TAYLOR, Appellee.
    No. 7739.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 2, 1967.
    Vickers, Vickers & Garner, Lubbock, for appellant.
    Key, Carr & Clark, Donald M. Hunt, Lubbock, for appellee.
   NORTHCUTT, Justice.

This is a venue case. Plaintiff below, ap-pellee here, Delta Christiansen Taylor, of Lubbock County sued Joe Wayne McFarlin of Hale County in the District Court of Lubbock County for damages due to the death of her husband resulting from an accident occurring on October 30, 1965, in the town of New Deal, Lubbock County, Texas. Plaintiff alleged that defendant, Joe Wayne McFarlin, while driving his car in a southerly direction on U. S. 87 negligently struck and killed the plaintiff’s husband. Defendant filed in due form his plea of privilege to be sued in Hale County, his domiciliary residence. The plea was controverted by an allegation relying upon Exception 9a of Article 1995, Vernon’s Ann.Tex.Civ.St. That exception provides as follows:

“9a. Negligence.- — A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant’s residence are:
“1. That an act or omission of negligence occurred in the county where suit was filed.
“2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.
“3. That such negligence was a proximate cause of plaintiffs injuries.”

The court, after a hearing was had, overruled defendant’s plea of privilege and held appellant’s plea of privilege was overruled and the cause ordered to remain in the District Court of Lubbock County, Texas. From that ruling defendant perfected this appeal. The defendant will hereafter be referred to as appellant and plaintiff as appellee.

Appellant presents this appeal upon three points of error. The first point is that the court erred in overruling appellant’s plea of privilege for the reason that there was no evidence to sustain venue in Lubbock County, Texas. The second point contends there was insufficient evidence to sustain such holding and the third point that such action was manifestly unjust and against the great weight and preponderance of the evidence. Since we sustain appellant’s first point, we will not discuss the remaining two points.

The fact that appellant struck and killed the husband of appellee without some proof of negligence on the part of appellant is not sufficient to hold venue in Lubbock County. This record is void of any testimony of how the accident happened and neither is there any evidence to show appellant was negligent in any manner. There is no evidence that appellant was speeding or that he failed to keep a proper lookout or could have seen the deceased or any other acts of appellant to constitute negligence on his part. Negligence or a failure to perform a duty required by law is never presumed as a fact but must be proved by evidence and the burden of proving it is on the party seeking a recovery of damages by reason of such negligence or failure of duty. Jones v. Nafco Oil And Gas, Inc., 380 S.W.2d 570 (Tex.1964); Carroll v. Roger Lacy, Inc., 402 S.W.2d 307 (Tex.Civ.App.-Tyler, 1966, writ ref’d n. r. e.); McCarty v. White, 314 S.W.2d 155 (Tex.Civ.App.-Eastland, 1958, no writ).

In order to maintain venue in a county other than the residence of defendant under Subsection 9a, a plaintiff must establish by a preponderance of the evidence that an act of negligence which was a proximate cause of the injury was committed in the county where suit is brought by the defendant or those for whose negligent conduct he would be legally liable. Southland Beauty Shops, Inc. v. Foreman, 319 S.W.2d 737 (Tex.Civ.App.-Houston, 1958, writ dism’d); Campos v. Smith, 386 S.W.2d 823 (Tex.Civ.App.-San Antonio, 1965, no writ).

There is no evidence that McFarlin ever saw the deceased or knew anything about his presence until after he struck something. Neither is there any other evidence showing appellant was guilty of any negligence other than the fact that deceased was hit and injured. The proof that an accident occurred is not of itself evidence of negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195 (1937) ; Austin Bridge Company v. Polanca, 300 S.W.2d 173 (Tex.Civ.App.-Eastland, 1957, no writ); Conner v. Chatman 272 S.W.2d 136 (Tex.Civ.App.-Galveston, 1954, no writ).

We are of the opinion, and so hold, that there is no evidence in this record showing any negligence on the part of appellant causing the injury and death of appellee’s husband; but should we be wrong in so holding, we further hold the evidence was insufficient to establish by a preponderance of the evidence such facts as to sustain venue in Lubbock County.

Judgment of the trial court is reversed and rendered and here ordered that the case be transferred to the District Court of Hale County, Texas.

CHAPMAN, Justice

(dissenting).

I regret that I am unable to agree with the above holding to the effect there is not any probative evidence to support the trial court’s implied finding by a preponderance of the evidence that an act or omission of negligence occurred in the county where suit was filed; that such act or omission was that of the defendant; and that such negligence was a proximate cause of the injuries resulting in the death of appellee’s husband.

Since the opinion reversed the case on the no-evidence point alone, it appears the court has completely disregarded the inferences that must be indulged in favor of the implied findings of the trial court.

In Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953), a venue case, the Supreme Court established the following principles of law:

“If the evidence is conflicting and there exists in the record evidence of sufficient probative force to support the judgment of the trial court, then the judgment should not be disturbed on appeal. This court, in the case of Wininger v. Ft. Worth & D. C. Ry. Co., 105 Tex. 56, 143 S.W. 1150, announced the correct rule when testing the probative force of the evidence when it said: The honorable Court of Civil Appeals had authority to reverse the judgment of the trial court on the preponderance of the evidence; but it could not render the judgment, if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff’ — then it is to be concluded that there is evidence to support the verdict.”

No findings of fact or conclusions of law were filed by or requested of the trial judge. Such being the situation, our Supreme Court in Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951) has held:

“The trial court’s judgment, therefore, implies all necessary fact findings in support of the judgment. In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto ‘it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.’ Austin v. Cochran, Tex.Com.App., 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.”

Neither Renfro Drug Co. v. Lewis, supra, nor the cases it cited on the point under discussion are venue cases but our Supreme Court in discussing the law where “no evidence” points are raised has held: “The test on appeal from an order sustaining or overruling a plea of privilege is the same as in any other civil case.” Banks v. Collins, supra.

In Banks v. Collins, supra, that court also held:

“ * * * in a case wherein the contention is made * * * that there is no evidence supporting the implied finding of fact in favor of the successful party by the trial court, the Court of Civil Appeals is required to follow the rule, which, in effect, says: If discarding all adverse evidence and giving credit to all evidence that is favorable to the successful party, and indulging every reasonable conclusion that is favorable to him, a trier of the facts might have found in his favor, then it is to be concluded that there is evidence to support the finding.”

When the evidence is considered with the inferences we must indulge; i. e., discard all evidence opposed to the judgment rendered and consider only that evidence most favorable to the issue we have the written confession made by Joe Wayne Mc-Farlin after due warning to him given by the district attorney that on the night in question he was the driver of the automobile which hit a man while he was driving through New Deal in Lubbock County. He stated he did not see the man that he hit but knew he hit something because of the bang on the car; that he first thought it was a dog but later realized it might have been a man; and that he did not stop his car at the accident scene. He also stated in such statement that when a deputy sheriff stopped him four miles north of Abernathy one week later he admitted that he was the driver who was wanted for the offense.

Jessee A. Freeman testified the collision between the man and the automobile happened at a time when it was not quite dark but dark enough to have lights on. He was sitting in his car 40 to SO feet west of the paved portion of the highway and the point of impact occurred down the road 45 to SO yards. He did not obtain the license number of the car but described it as a 1959 Ford with a color between a dark and light. When he went out to the injured man he was groaning, his trousers were torn and his leg was bleeding. It later developed that the car was a light colored 1959 Ford.

Patrolman Clecker went to the scene of the accident and found the injured man with a broken leg, his pants torn, and a bad cut between his knee and hip. He put a tourniquet on the bleeding, which was so bad that when he would release it the blood would spurt. Clecker examined the automobile under the front identified as Joe Wayne McFarlin’s and found a substance which appeared to be blood. He took a sample, sent it to the laboratories of the Department of Public Safety and received a written report from the crime laboratory of that department that the substance was human blood. The patrolman also observed the hood of Mc-Farlin’s car had been freshly repainted.

Clecker also testified without objection that in his interrogation of McFarlin the latter admitted “ * * * he had hit a man out there on the highway on October 30th * * *. He said he first thought he might have hit a dog but he said a little later he was pretty sure he had hit a man * * The testimony of the taking of the written confession is also in the record without objection and Joe Wayne McFarlin’s signature identified.

On the venue hearing appellant denied in oral testimony that he hit any object while driving through New Deal on the night in question. A contention is made in appellant’s brief that he was not of sufficient mentality to make a competent confession. If so, then he was not a competent witness to testify in the trial. He was called as an adverse witness and no objections made of his incompetency to testify. If any proper objection is made in that regard it came too late. See 1 McCormick & Ray, Texas Law of Evidence, p. 248, Section 251; p. 251, Section 254, 255; p. 255, Section 273; Ditto v. Ditto Investment Company, 158 Tex. 104, 309 S.W.2d 219 (1958) ; Ollok v. United Heat Treating Co., 318 S.W.2d 785 (Tex.Civ.App.-Fort Worth, 1958, no writ); Mills v. Cook, 57 S.W. 81 (Tex.Civ.App.-1900, no writ); Martin v. Martin, 130 S.W.2d 863 (Tex.Civ.App.—Dallas, 1939, writ dism’d, judg. corr.); Maler v. Hill, 285 S.W. 638 (Tex.Civ.App.-Galveston, 1926, no writ).

A report of a psychologist is in the record that McFarlin’s I.Q. was between 55 and 60 and he was mentally deficient. It is of passing interest to note that his oral testimony shows coherence and he was able to testify he had bought eyeglasses not long after the date in question and that he bought them from an optometrist instead of a medical doctor. In any event, the weight and credibility to be given to the testimony of an interested witness or of an expert is for the trial court. Mercantile National Bank at Dallas v. McCullough Tool Co., 250 S.W.2d 870, 877 (Tex.Civ.App.-Austin, 1952, reversed on other grounds) and cases there cited.

The fact that human blood was found underneath appellant’s car shortly after the incident in question is also some evidence to establish identity. This raises the question of the admissibility of the report from the laboratories of the Department of Public Safety. Though there is probative evidence without such report of some of the grounds of negligence alleged, it is the view of this writer that the report is admissible under the record of this case. The only objection made to it is that it was hearsay, which does not bring it within the rules we announced in Hartman v. Harder, 322 S.W.2d 555 (Tex.Civ.App.-Amarillo, 1959, no writ).

Honoring the rules of inferences favoring the implied findings of the trial court and considering the grounds of negligence alleged, such court could have impliedly found by a preponderance of the evidence that Joe Wayne McFarlin was negligent in operating his automobile at a rate of speed in excess of that at which a reasonably prudent person would have operated the same under the same or similar circumstances, he having admitted he was driving at the speed limit of 50 miles an hour while going through New Deal. The court from such testimony could also have impliedly found by a preponderance of the evidence that Joe Wayne McFarlin failed to maintain a proper lookout for pedestrians on the occasion in question; that he failed to make proper application of his brakes; that he failed to apply his brakes in sufficient time and at a sufficient distance to bring his automobile to a stop before striking decedent; that he failed to give an audible signal of the approach of his automobile; that he failed to turn his machine to the left to avoid striking plaintiff’s husband, who was found just to the right of the pavement, and that one or more of such grounds of negligence constitute a proximate cause or proximate causes of the injuries resulting in the death of appellee’s husband.

The majority opinion states that should the Court be wrong in its holding that there is not any evidence to support the trial court’s judgment then “ * * * we further hold the evidence was insufficient to establish by a preponderance of the evidence such facts as to sustain venue in Lubbock County.”

A preponderance of the evidence is part of the necessary proof under Exception 9a, though it does not militate against the inferences favoring the implied findings of the trial court except that the proof must be by a preponderance of the evidence. When the required inferences are given, as I have stated before, one or more grounds of negligence, which is a proximate cause of the injuries resulting in ap-pellee’s husband’s death is established. How could it be otherwise in view of appellant’s own confession that he did not see the man but that he ran over him? When the required inferences are given such testimony is without contradiction in the record. Surely it could not be said such testimony constituted no evidence from which the trial court could have impliedly found a failure to keep a proper lookout.

If. the majority opinion seeks by the next to last paragraph in the opinion to discuss the great weight and preponderance of the evidence, it is wholly inadequate under In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Nowhere is opposing testimony discussed and compared to show that the court’s judgment was so against the great weight and preponderance of the evidence as to be manifestly unjust.

Accordingly, this court is without legal authority to reverse the judgment of the trial court.

      . See Richey v. Chicago, Rock Island & Pacific Railroad Co., Tex.Civ.App., 420 S.W.2d 193, announced by our court on September 25, 1967, and the cases there cited on inferences that must be indulged in favor of a fact finding body.


author: CHAPMAN, Justice.

text:
    Bill D. RICHEY, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellee.
    No. 7737.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 25, 1967.
    Rehearing Denied Oct. 23, 1967.
    Harris E. Lofthus, Amarillo, for appellant.
    Thompson, Walker, Shannon & Gracey, Fort Worth, Underwood, Wilson, Sutton, Heare & Berry, Amarillo, R. A. Wilson, Amarillo, of counsel, for appellee.
   CHAPMAN, Justice.

This is an appeal from an instructed verdict granted defendant below, Chicago, Rock Island & Pacific Railroad Company, in a suit against it by appellant, Bill D. Richey, for personal injuries sustained by him when, as a passenger in an automobile, he jumped or was thrown from the automobile when its driver attempted to avoid collision with defendant’s train as it was proceeding at night across a public highway referred to in the record as Spur 228. The paved highway is described in the record as crossing the Rock Island track at a point immediately south of the South Gate of Amarillo Air Force Base.

Appellant and the driver of the automobile in which he was riding were both airmen stationed at said base. The record shows the crossing contained red flasher signals to warn approaching traffic when a train is crossing the road or about to do so. A signal pole on each side of the railroad track has four lights back-to-back, two facing south and two facing north, one east of Spur 228 placed south of the railroad track and one west of Spur 228 placed north of the railroad track. Said lights are supposed to flash on and off alternately upon the approach and during the passage of trains.

Appellant pleaded that both he and the driver knew the lights were located at the crossing and depended on them to give warning of the approach or presence of a train, but that on the night of February 25, 1966, as they approached the crossing, the lights were not operating during the time a train was blocking the passage of vehicular traffic. Negligence of the railroad company is claimed in the failure to maintain signal lights in proper operation and the blocking of a public highway at night with unlighted obstructions.

The record shows that the driver of the automobile, James Gazaway, swerved his automobile sharply to the left to avoid colliding with the train and collided with a guard rail. He was killed in the accident.

The point relied on for reversal is that the trial court erred in granting defendant’s motion for instructed verdict because plaintiff’s evidence was sufficient to create a fact issue for the jury’s determination. In passing on this question, the Supreme Court of Texas in Anglin v. Cisco. Mortg. Loan Co., 135 Tex. 188, 141 S.W.2d 935 (1940) has held:

“In determining in any case whether or not error has been committed by a trial court in instructing a verdict, the testimony must be considered in the light most favorable to the losing party. Conflicts in the testimony must be disregarded, and every intendment reasonably deducible from the evidence must be indulged in favor of such party and against the verdict.”

The quoted statement was later approved by the Supreme Court of Texas with a “writ refused” stamp in Speights v. Deon, 182 S.W.2d 1016 (Tex.Civ.App.-Eastland, 1944, writ ref’d). See also the following cases of like or similar import in their holdings: White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725 (1930); Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 (1952); Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951); Choate v. San Antonio & A. P. Ry. Co., 90 Tex. 82, 36 S.W. 247, 37 S.W. 319 (1896); Eastham v. Hunter, 98 Tex. 560, 86 S.W. 323, 325 (1905); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Houston Transit Co. v. McQuade, 223 S.W.2d 64 (Tex.Civ.App.-Galveston, 1949, writ ref’d). In the last cited case where the trial court disregarded jury findings of contributory negligence against the plaintiff, the Supreme Court of Texas by a “writ refused” stamp has approved the following: “ ‘The court must presume to be true the evidence * * * which was favorable to the party against whom the verdict was. instructed; it must also place upon the testimony favorable to him the most liberal construction in his favor that the evidence would reasonably bear, giving him the benefit of all reasonable inferences arising therefrom. Indeed, all evidence contradictory to that favorable to the losing party, under an instructed verdict, should be disregarded.’ ”

In applying these rules to the facts of the case the testimony of Airman Walker, the only eyewitness testifying except appellant, to the condition of the lights on the side of the railroad track facing the car in which appellant was riding, shows the following:

“Q. Do you know whether that crossing is protected with warning lights?
“A. Yes, sir.
“Q. Had you been over it many times in the past?
“A. Yes, sir.
“Q. Have you ever seen the crossing with a train on it and the lights flashing ?
“A. Yes, I have.
⅜ ⅝ iji ⅝ ⅜ ⅜:
“Q. Well, were there any lights up there ?
“A. If there were I didn’t see them, and I have pretty good vision and I believe I would have noticed them if they had been working.
“Q. Which way were you looking?
“A. I was looking straight ahead.
“Q. And where were the lights in relation to the place you were looking?
“A. Straight ahead.
“Q. Were you in position where you couldn’t help seeing them if they were working or flashing?
“A. Yes, sir; but I didn’t see them.”
On cross-examination appellee’s counsel secured the following testimony from the same witness:
“Q. Do you actually have any real recollection as to whether the flasher signals were working or not?
“A. I didn’t notice them; if they were I believe I would have if they had been.
“Q. But can you actually say that you saw that they were not working?
“A. No. sir, I can’t.
“Q. Is not the truth of it, that you do not know whether the flasher signals were working or were not working ?
“A. Yes, I would say that.
“Q. You just don’t know either way, do you?
“A. I am not sure; but I am sure I would have seen them if they had been, and recollected it if they had been.”

The law also appears settled in this state that “ * * * it is in the province of the jury to resolve conflicts and inconsistencies in the testimony of a witness or between witnesses.” Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359 (1957). See also Pritchard Rice Milling Co. v. Ellis, 266 S.W.2d 233 (Tex.Civ.App.-Galveston, 1924, no writ) and Postal Mutual Indemnity Co. v. Penn, 165 S.W.2d 495 (Tex.Civ.App.-Amarillo, 1942, writ ref’d holding: “ * * * where a witness contradicts his former testimony it is the province of the jury, and not the court, to determine whether the first or last testimony is true.

The record also indicates that the same witness in an exploratory deposition taken before the trial testified in answer to questions by appellee’s counsel as follows:

“Q. And there are flasher lights out there to protect the crossing — did you look at those ?
“A. No, sir, I didn’t; I don’t know if they were blinking or not.
Now, that was your answer on March 2nd, was it not ?
“A. Yes, sir.
"Q. And that is the truth as of this date, is it not, that you don’t know whether those lights were blinking or not?
"A. Yes, sir.”

Clearly, the deposition testimony is in conflict with the above quoted testimony the witness gave favorable to appellant on the trial of the case. However, where the witness, Cecil Butler, testified upon the trial of a case in direct conflict with the testimony he gave on a deposition, our Supreme Court by a “writ refused” stamp has approved the following holding:

“It will thus be seen that the evidence of the witness upon the trial of the case is in direct conflict with his evidence given in the deposition. Appellant argues that this destroys the effect of his testimony and that, with Butler’s testimony eliminated, there is no evidence to support the finding of the jury that Butler was in the course of his employment by appellant at the time of the collision. We do not agree with this contention. Where there is a conflict in the testimony of a witness, it is for the jury to determine which portion of the testimony is correct.” Lynch Oil Co. v. Shepard, 242 S.W.2d 217 (Tex.Civ.App.-Eastland, 1951, writ ref’d).

Still honoring the rules of our Supreme Court on inferences that must be indulged in favor of the party against whom an instructed verdict is rendered, we turn to the testimony of the appellant, Richey.

After testifying to passing the car in which the witness Walker was riding, relating the position of their vehicle as being a little over half-way up the incline on the road leading upon the railroad track, and stating that he saw the train first and called it to the driver’s attention, the testimony shows:

“Q. What did you actually say?
“A. I says, ‘Damn, Jim, there’s a train.’
“Q. And what did he say about the train ?
"A. Well, really nothing.
“Q. Were you looking straight ahead down the road?
“A. Yes, sir.
“Q. Did you see any warning lights?
“A. No, sir.
“Q. Were you looking where the warning lights were ?
“A..,. Yes, sir.
“Q. If they had been flashing would you have seen them?
“A. Yes, sir.
“Q. The part of the train you saw, was that near where the warning lights were?
“A. Yes, sir.”

After cross-examination of Airman Rich-ey concerning the activities preceding the fatal accident, particularly with respect to his ability to see whether the flasher signals were working immediately before the fatal accident, re-direct examination produced the following testimony:

“Q. Mr. Richey, in view of the cross examination here, I want you to state definitely whether you were or were not looking in the direction where this flasher signal was installed, at time of approach to this crossing ?
“A. I was looking in that direction.
“Q. Were you looking at any time back toward’s car, in such a way that would have kept you from seeing that signal if it had been operating ?
“A. No, sir, I don’t believe so.
“Q. Were you looking at the place where the signal ought to be?
“A. Yes, sir.
“Q. If that signal had been flashing would you have seen it?
“A. Yes, sir, I believe so.”

Such testimony, as urged by appellee’s brief, has some characteristics of negativeness and conclusions, but we do not believe the following may correctly be so characterized:

“Q. Have you ever made the statement to anybody that would lead them to think that you have at any time expressed any doubt about the signal having been operative ?
“A. No, sir.
“Q. Do you now make any such statement?
“A. No, sir.
“Q. Is there any doubt in your mind whatsoever that that signal was not working ?
“A. None whatsoever.”

To the contrary, such testimony when considered together with his testimony that he was familiar with the location of the warning signals that he was looking straight down the road where they were, and that the part of the train he saw was near where the warning lights were, would, in our opinion, not be classified as negative testimony. All the testimony above related given by Walker and appellant is in the record without objection.

It is true that the witness Richey is a party plaintiff, but so was B. R. Moore in Sigmond Rothchild Co. v. Moore, 37 S.W.2d 121 (Tex.Comm’n App.-1931). Judge Critz speaking for that section of the court in the cited case said: “ * * * Moore’s credibility as a witness, and the weight to be given his testimony was for the jury.” See also Texas Employers’ Insurance Association v. Curry, 290 S.W.2d 767 (Tex.Civ.App.-El Paso, 1956, writ ref’d n. r. e.) where the court said: “ * * * the only testimony on the question was by the plaintiff himself, and it has been held many times when the only testimony is by an interested witness the credibility of his testimony is to be submitted to the jury.” Even if it should be said, arguendo only, that plaintiff Richey’s testimony is inconsistent and even contradictory, it has been held that “ * * * inconsistencies and contradictions in the testimony of a party to a suit present issues of fact which are to be decided by the jury, or by the judge in a nonjury trial.” Jones v. Texas Department of Public Safety, 392 S.W.2d 176, 180 (Tex.Civ.App.-Dallas, 1965, no writ) and cases there cited.

Appellee assumes in its brief that the testimony of Walker and Richey is all negative and -then argues it will not make a fact issue for jury determination as against positive testimony of the four members of the train crew, the signal maintainer and Captain Gierringer. It cites mostly Courts of Civil Appeals opinions without supreme judicial sanction except as to the result reached, some of which were considering questions of the weight and preponderance of the evidence. All are distinguishable from the instant case.

The Supreme Court case of Galveston, H. & S. A. Ry. Co. v. Kutac, 76 Tex. 473, 13 S.W. 327 (1890) relied on by appellee was one where plaintiff Kutac and the driver had testified only that they did not hear the train signals. In Dixon v. Texas & P. Ry. Co., 164 S.W.2d 252 (Tex.Civ.App.-Fort Worth, 1942, writ ref’d w. m.) the testimony relied on to sustain a cause of action against the railway company was that of Mr. and Mrs. Bradley who only said that if the bell was rung, they did not hear it and of Henry Chapman of like negative nature.

In Markusfeld v. Zahn, 99 S.W.2d 438 (Tex.Civ.App.-San Antonio, 1936, no writ) the court was passing upon the weight and preponderance of the evidence question in an appeal from a jury verdict.

Appellee relies on and quotes from Le Master v. Fort Worth Transit Co., 142 S.W.2d 908 (Tex.Civ.App.-Fort Worth, 1940, no writ) where a judgment was rendered non obstante veredicto by the Court of Civil Appeals for the transit company and reversed by the Supreme Court with instructions to enter judgment for plaintiff Le Master upon issues found by the jury convicting the operator of the transit bus of negligence, which was a proximate cause of Le Master’s damages.

Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97 (1939) is distinguishable on the facts from our case. There the testimony relied on “ * * * were bare conclusions,” which cannot properly be said of the evidence in the instant case favorable to appellant.

Honoring the inferences the law requires for appellant as against an instructed verdict, we hold against appel-lee’s contention that the trial court correctly directed a verdict for want of competent proof that the red flasher signals were not working. See Texas & N. O. R. Co. v. Foster, 266 S.W.2d 206 (Tex.Civ.App.-Beaumont, 1954, writ ref’d n. r. e.) and cases there cited. However, in doing so we say unhesitatingly that if the case were before us upon the same facts in an appeal from a judgment for plaintiff based upon a jury verdict, we would hold that “ * * * the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust — this, regardless of whether the record contains ‘evidence of probative force’ in support of the verdict.” In re King’s Estate, supra.

We cannot agree with appellee’s contention made in its second counter point to the effect that the trial court had the authority to find as a matter of law that if the red flasher signals were not working, such deficiency could not have been a proximate cause of the accident. Considering the evidence in the light most favorable to appellant, as we must from the abundant authority heretofore cited, the jury could have determined that failure of the flasher signals to be working at the time in question was a proximate cause of the injuries to appellant. The testimony of Walker and Richey, considered with such favorable inferences, shows the airmen knew the warning lights were on the crossing, they had been over the crossing many times, they knew that night the signals were there, they were looking straight ahead toward them but did not see them even though they were not driving the automobiles. Surely, it could not be said then, as a matter of law, that Richey or Gazaway, the driver, would not have seen such signals before they saw the train on the crossing at ten to 11:00 o’clock at night had such signals been working. There is evidence from which a jury could have found that the part of the train on the crossing immediately before the accident was dark because the engine had already passed and the caboose had not then reached the crossing. Therefore, we do not believe a trial court or an appellate court has the legal authority to hold as a matter of law that the signal flasher could not have been seen more quickly than dark and unlighted railroad cars, or that flasher signals could not have been seen even before the Gazaway car reached the top of the incline, thus showing causation. As heretofore indicated, we believe in considering all the evidence that they were working, but that is not the question before us. We do not consider it necessary even to cite authorities on the question of proximate cause.

By cross-point appellee contends this court materially erred in granting appellant’s motion to file a statement of facts in the case and in overruling its motion to strike.

The record shows that on December 21, 1966, counsel for appellant secured from the court reporter the subject statement of facts and delivered it to our clerk for filing. After it was accepted, our clerk called to counsel’s attention that it had not been signed either by opposing counsel or the trial court. Mr. Lofthus then took the record to Mr. Wilson’s office, attorney for appellee, but was informed that Mr. Wilson was out of his office for the holidays and would not be back until December 29, two days after due time for filing'.

A letter from Mr. Wilson to the trial court dated January 19, 1967, advised he was contesting the right to file the record but except for some corrections of no particular consequence, which he had made in the statement of facts, it correctly records the testimony.

A letter in the statement of facts to our court by the trial judge recognizes that he did not sign it because it was not timely filed.

Article 377(d), Vernon’s Ann.Tex.Rules, provides it is unnecessary for the trial judge to sign the statement of facts except where a difference arises as to whether the record discloses what occurred in the trial court. There is no such disagreement. Therefore, the only signature lacking is that of appellee’s counsel, who has, in fairness to the question, admitted into the record that the statement of facts is correct.

If a statement of facts could be kept out of our court under the circumstances shown in this record, all an attorney would have to do would be to make himself unavailable until time has passed for filing after the statement of facts is delivered to appellant. We do not believe an appellate court should give sanction to a construction of any rule that would make such actions possible in the absence of a direct rule requiring it.

The letter of December 22, 1966, by Mr. Lofthus, shows good cause, we think, for not securing opposing counsel’s signature. The facts of the situation here do not come within the rules of Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952) relied on by appellee.

Though we have stated if this record with the same evidence were before us from a judgment for appellant based upon a jury verdict in his favor, we would unhesitatingly hold in such instances, if the question was raised, that the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, this does not excuse the trial court in refusing to submit it to a jury.

It has been held many times that: “If an issue of fact is raised by the evidence, it must go to the jury even though a verdict based on such evidence would have to be set aside as not supported by sufficient evidence.” Maryland Casualty Co. v. Morua, 180 S.W.2d 194 (Tex.Civ.App.-Waco, 1944, writ ref’d); Bryant v. Hamlin, 373 S.W.2d 837 (Tex.Civ.App.-Dallas, 1963, writ ref’d n. r. e.) ; Alaniz v. Haegelin, 384 S.W.2d 431 (Tex.Civ.App.-Eastland, 1964, no writ); Watson v. Jones, 348 S.W.2d 414 (Tex.Civ.App.-Waco, 1961, no writ).

The judgment of the trial court is reversed and remanded.