author: CHAPMAN, Justice.

text:
    PANHANDLE & SANTA FE RAILWAY COMPANY, Appellant, v. R. D. WALKER and Texas Employers’ Insurance Association, Appellees.
    No. 7172.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 7, 1963.
    Rehearing Denied Feb. 4, 1963.

      Lewis Jeffrey, Simpson, Adkins, Fulling-im & Hankins, Amarillo, McLeod, Mills, Shirley & Alexander, Galveston, for appellant.
    Merchant, Fitzjarrald, Poole & Merchant, Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellees.
   CHAPMAN, Justice.

This opinion is in lieu of our opinion announced bn November 12, 1962.

This is ah appeal by Panhandle & Santa Fe Railway Company from a jury verdict in favor of R. D. Walker and intervenor, Texas Employers’ Insurance Association. Mr. Walker will hereinafter be referred to by his name, or as appellee, and the Association as intervenor. Panhandle & Santa Fe Railway Company will be variously referred to as Santa Fe, appellant, or the railway company.

On September 7, 1960, appellee was and had been since March of that year working as a materials checker for Kellogg Construction Company. The latter will he hereinafter referred to as Kellogg or the construction company.

Kellogg' was engaged in construction work for Phillips Petroleum Company. Large quantities of materials for construction were shipped in to Kellogg by rail. The railroad cars with Kellogg construction materials were parked on the tracks inside the enclosure of Phillips Refinery at Phillips, Texas. On the occasion of appellee’s alleged injury, he was checking materials for Kellogg in a boxcar on the tracks mentioned when Santa Fe coupled its engine onto the east boxcar of a group of five connecting cars. Appellee was working in one of those cars. Kellogg had requested Santa Fe to move one of the cars to another track and had not advised appellant there was anyone working in one of them. Appellee alleged that while checking materials in the boxcar “ * * * defendant, with great force and violence, drove one of its trains into the car in which the plaintiff was working throwing him from a stack of material to the floor of said car causing him serious and permanent bodily injuries to his head, neck, left shoulder, and upper portion of his back.” He alleged he had suffered intense pain and disability since September 7, 1960, and would continue to suffer pain and disability for an indefinite time, even throughout the balance of his lifetime. He asked for one hundred twenty-five thousand dollars ($125,000) damages and the jury gave him fifteen thousand dollars ($15,000).

Prior to the filing of the instant case, ap-pellee had settled a workman’s compensation case with intervenor, insurance carrier for Kellogg, for one thousand five hundred sixty dollars ($1,560) plus the hospital bill and some of the medical bills in the amount of nine hundred thirty-nine dollars and seventy cents ($939.70) growing out of the same alleged injury. The record shows on page 79 of the Statement of Facts that appellee at the time of the trial still owed one of the treating doctors approximately twelve hundred dollars ($1,200), none of which had been paid by intervenor. Judgment was rendered for appellee against Santa Fe for twelve thousand five hundred dollars and thirty cents ($12,500.30) and for intervenor for two thousand four hundred ninety-nine dollars and seventy cents ($2,499.70). It is from such judgment appeal is perfected upon twelve points of error.

In its first point appellant attacks the action of the trial court in allowing, over its objections, appellee’s counsel, while interrogating witnesses, to require them to answer (1) whether it or its employees furnished blue flags or other safety equipment to plaintiff; (2) whether they furnished blue flags or other safety equipment to other Kellogg employees; (3) whether it gave any safety instructions or cautions to Kellogg employees; (4) in overruling its motion to withdraw all such evidence; (5) in failing to give defendant’s requested charge No. 1 limiting the extent of defendant’s duty; and (6) “overruling Amended Motion for New Trial complaining of such overrulings.”

Appellee insists the point is multifarious in that it deals with rulings made separately during the examination of a number of witnesses, with the refusal of the court to give a requested instruction limiting appellant’s liability, and also injects in its argument under the point complaints with respect to argument of Walker’s counsel. Though the point is probably multifarious we are able to determine that appellant is complaining of questions asked by appellee’s counsel and evidence allowed by the court concerning whether appellant furnished flags or other safety devices to Kellogg or its employees working in the railroad cars. Since this court has always been very liberal in writing on multifarious issues where we can tell from the wording of the point what the aggrieved party is complaining about, we shall discuss the point fully.

It should be noted that appellant pleaded negligence of appellee in failing to place a flag or some other safety device to warn of his presence in the car and alleged negligence in the failure of Kellogg to furnish its employees flags to place on the cars to warn of the presence of workmen. It then alleged such negligence of Kellogg was the sole proximate cause of the injuries suffered by appellee. The jury found Kellogg was negligent in failing to furnish appellee flags of some character to place on the end of the car in which he was working to warn of his presence but found that such negligence was not the sole proximate cause of his injuries.

Appellee alleged three grounds of negligence against appellant, (1) in failing to keep a proper lookout, (2) in failing to warn appellee it was going to strike the boxcar, and (3) in striking the car without ascertaining if anyone was in it.

In our previous opinions we stated that the oral argument was not brought forward in the record. It now develops that the record of such argument had been mistakenly sent to the Supreme Court in another record. Prior to this court’s knowledge of that fact, we had overruled per curiam the Motion for Rehearing but had not announced such action. Since the record of argument has been returned, we have read it carefully and have determined that no objections were made to the argument during the trial of the case whereby the court would have had an opportunity to instruct the jury not to consider it if he had considered it improper. Additionally, we believe from this record as a whole that the argument was harmless under Rule 434. We must now consider the ruling of the court concerning questions by appellees’ counsel to a number of witnesses and their answers thereto as to whether Santa Fe furnished flags or other safety devices to appellee to make known his presence in the boxcar.

In the first place recovery does not turn in any particular upon a finding of Santa Fe negligence in the mattter of blue flags. Secondly, whether the testimony was admissible was a matter of relevancy, and it seems clearly to have been made relevant and material both by appellant’s allegations and by the testimony it offered. Santa Fe alleged Walker was negligent in not placing a blue flag to make known his presence in the car and questioned another Kellogg witness working in the same boxcar if he used any character of flag or warning device to warn of his presence in the car. The fact of negligence was to be determined by applying the standard of a prudent person. The circumstances that no one — Kellogg, Santa Fe, or anyone else — ever suggested to him the use of a blue flag seems worthy to be considered by the jury in support of Walker’s contention that he was not negligent in that regard. In 23 T.J.2d 178, Sec. 124, Evidence, it has been textually stated:

“There is no precise or universal test for determining whether proffered evidence is relevant and material. As a general rule, however, it may properly be said that evidence will be deemed to be relevant and material if it tends to prove or disprove any fact in issue, or if it is capable of affording any reasonable presumption or inference as to the principle matter in dispute. In other words, there must be some logical connection, either directly or inferentially, between the evidence or facts offered and the facts in issue that will make the former relevant to the latter.”

The general principle just enunciated has been applied a number of times by our Supreme Court. Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210; Weaver v. Benson, 152 Tex. 50, 254 S.W.2d 95; Dallas Railway & Terminal Company v. Oehler, 156 Tex. 488, 296 S.W.2d 757.

We agree the trial court should not have permitted counsel to lecture one of the witnesses about not telling him certain acts were not their duty or the railway company’s duty, but under this record we do not ■consider the conduct constitutes reversible .error.

As stated in our original opinion, the cases cited by appellant on the alleged errors asserted in this point are not applicable to the facts of our case. For ex.ample, a number of them are cases in which the injury was attributable to the action •or omission of either the plaintiff or his employer and not in the act or omission of •.the defendant.

The court simply held in that line of ■cases that a defendant which has not brought about the injury is under no duty to protect against his own unsafe practices. In the instant case it was the defendant who brought about the alleged injury. Furthermore, the Bell case cited in footnote 3 as a “writ refused” case and quoted from in appellant’s brief was not a case with that writ history at all but was refused for want of merit on the ground that plaintiff Bell was defendant’s employee. Bell v. Humble Oil & Refining Co., 142 Tex. 645, 181 S.W.2d 569.

Additionally, whether there existed a duty of Santa Fe on the blue flag question depended upon the railway company’s ability to have foreseen and prevented the alleged injury. Houston Lighting & Power Company v. Brooks, 161 Tex. 32, 336 S.W.2d 603; Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201.

We, of course, agree with appellant that Santa Fe was obligated to use only ordinary care in coupling onto the boxcars but what constituted that degree of care depended upon the circumstances of this particular case. Therefore, we think it well to review the situation existing at the time the boxcars were coupled onto in order to show the knowledge on the part of Santa Fe that should have suggested someone might have been working in the boxcar and as a guide for the jury to determine if Santa Fe used ordinary care in keeping a proper lookout.

By deposition, Santa Fe’s engine foreman, Mr. Sharp, testified there was a blue flag that belonged in each of the tracks, but that over the months Kellogg had been on the construction it had not used them. He testified he was in charge of the particular switching movement.

C. S. Turner, Santa Fe yardmaster, determined how the cars were to be moved and what precautions were to be taken; he gave the engine foreman no instructions to determine if anyone was in the cars “because when men are working in boxcars they have a flag up;” but he admitted he had known since May 1960 that Kellogg did not use flags.

Mr. Eck, an engineer acting as fireman on the switching job, also testified he had switched cars for Kellogg a number of times, that he had never seen any device used by Kellogg to indicate people were working in the cars and that he had noticed that fact for several months.

Mr. Parker, an engineer and fireman for Santa Fe, was also in the moving crew that day. He testified he knew people worked in the cars with Kellogg materials and knew they unloaded cars sitting on the tracks and that he had never seen a flag or signal on any of the Kellogg cars during all the months they had been bringing in the materials. Santa Fe had all this knowledge before coupling onto the cars in question.

Additionally, there is probative evidence Santa Fe knew hazards attached to couplings with cars in which men were working and that it knew the flag practice was a safety device to make known the presence of workmen in a boxcar.

With all this knowledge on the part of Santa Fe considered in connection with appellant’s own treatment of the blue flag question, we cannot say the questions propounded to its witnesses by appellee’s counsel as to whether it furnished blue flags was improper. Considering the record as a whole it seems to have been a legitimate inquiry upon the foreseeability of the injury by one exercising ordinary care under the particular set of circumstances involved in this case.

Appellant also complains in this point of the refusal of the court to give the following requested charge in connection with the flag question:

“You are instructed that defendant Panhandle & Santa Fe Railway Company owed no duty to plaintiff, an employee of Kellogg Construction Company, to furnish him flags or other warning devices, or to place same on or about cars in which plaintiff might be working; its only duty was to exercise ordinary care under the facts and circumstances then existing.’’

We hold the refusal of the court to give the requested general charge did not constitute reversible error. Boaz v. White’s Auto Stores, 141 Tex. 366, 172 S.W.2d| 481; Farias v. Gaitan, Tex.Civ.App., 312 S.W.2d 273 (NRE); Dial Temp Air Conditioning Company v. Faulhaber, Tex.Civ.App., 340 S.W.2d 82 (NRE). In any event, we would have to say that the mere asking of the questions and the answers responding thereto, together with the refusal of the requested charge did not constitute reversible error under Rule 434 Vernon’s Ann.Texas Rules. Accordingly, we hold point one is without merit.

Appellant next claims error in the refusal of the court to permit it to produce before the jury the Industrial Accident Board records showing his claim, suit, and compromise settlement growing out of the same injuries allegedly arising out of the same incident upon which this suit is based.

The only material difference in the claim filed before the Board and the contention before the jury against Santa Fe is in the amount of the compromise settlement. Therefore, it was not admissible to show-contradictory prior conduct nor to test the credibility of appellee as a witness on good faith, bias, and prejudice, as contended by appellant. The nature of an industrial: claim and a suit of this nature are so different in rules of liability and the measure of damages applicable thereto, the jury may well have been more confused than helped' by the admission of such testimony in their presence. Additionally, the instruments-themselves show they were subjects of compromise. Under the authority of Johnson v. Willoughby et al., 183 S.W.2d 201 (writ refused) ; Myers et al. v. Thomas, et al., 143 Tex. 502, 186 S.W.2d 811; Dallas Railway & Terminal Co. v. Hendrix, Tex.Civ.App., 261 S.W.2d 610 (NWH); and St. Paul Fire & Marine Insurance Co. v. Murphree, Tex., 357 S.W.2d 744, we hold: the point is without merit.

Appellant next argues together a contention of error in refusing to let its counsel argue to the jury the amount of settlement in an industrial claim made in 1954 and in refusing to let it prove by Dr. Thomas what the M.D. testified to in the trial of that case, which was compromised during the trial.

The prior back injury was fully explored and Dr. Thomas permitted to testify concerning appellee’s physical condition then and following the last injury. Counsel was-also permitted to argue appellant’s position with respect thereto except as to the amount of the settlement. There being no question of recent fabrication concerning Dr. Thomas’ testimony, it was not admissible to prove what he testified to in another law suit. This is particularly true in this case in view of his testimony concerning appel-lee’s physical condition at both times.

Under the authorities cited in discussing the previous point, we believe much of the testimony concerning the first compromise settlement should have been rejected under proper objections, but in any event, no error is shown here under Rule 434 V.A.T.R. Points five and eleven are overruled.

In points six and seven appellant complains of error of the court in overruling its objections to the court’s charge as given in special issues two and three. In point twelve, it complains of the error of the court in overruling defendant’s' motion for new trial complaining that the jury’s answer to special issue one on proper lookout was unsupported by any evidence, or was against the great weight and preponderance of the evidence.

Appellee argues by brief that appellant admitted through oral argument that the jury had it within its power to find Santa Fe guilty of negligence. Under the charge given, that was perhaps legitimate argument.

We are compelled under this record to overrule appellant’s contention in point twelve. At least four of appellant’s witnesses involved in moving the Kellogg car knew the construction company did not use warning devices to show men working in the boxcars. There is ample evidence that Santa Fe through its employees knew Kellogg had men working in the cars from time to time and knew there was danger attached to striking the cars while men were working therein. There were five railroad employees involved in moving the cars, with at least two of them on the ground, and there is sufficient evidence from which the jury could believe if they had kept a proper lookout they would have found the north door of the boxcar in question open and thus their attention called to the fact that someone might be working therein. There is evidence that some of the employees involved had seen Kellogg men unloading on both sides of the cars. Under the well-known rule of In Re King’s Estate (King v. King et al.), 150 Tex. 662, 244 S.W.2d 660, we cannot say there was no probative evidence to support the proper lookout issue nor that the verdict on that issue was so contrary to the overwhelming weight of all the evidence as to be manifestly wrong and unjust. It was appellant’s duty to use only ordinary care in keeping a proper lookout, but it was for the jury to determine if it did so under the facts of this case and under the law applied thereto through the definitions given.

Our court and many other courts have held that where the judgment finds support in one ground of negligence, the error of the court in submitting other grounds is generally harmless. McClelland v. Mounger, Tex.Civ.App., 107 S.W.2d 901 and cases there cited; Kansas City Southern Railway Company v. Simmons, Tex.Civ.App., 350 S.W.2d 884; Louisiana & A. Ry. Co. v. Chapin et al., Tex.Civ.App., 225 S.W.2d 614 (error refused). We are not holding that the objections to the other two issues were good but even if they were, it would be harmless error if we are correct in our holding on special issue one. We believe we are correct and consider it unnecessary to discuss the questions raised on the other two issues.

Appellant next asserts reversible error in the court’s refusal to permit the witness Ratliff to testify that in his opinion the impact of the coupling into the car in which appellee was working was not rough enough to shift the lading.

In the first place such question involved an immaterial issue. Secondly, the nature of the coupling had been fully explored. Thirdly, in view of the whole record made in connection with the coupling, no possible harm could be shown in refusing the answer to the question. Rule 434 V.A.T.R. The same would apply to point nine made in reference to plaintiff’s counsel referring to Mr. Jenson, a claim adjustor, as “this smooth claim agent.”

The next point we wish to discuss, and the one which has given us the most concern, is that the jury verdict and judgment based thereon is excessive and so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

The record is clear that the issues of injury and damages were clearly drawn. Appellant took the position that the injury was only very slight, if in fact there was any injury, and that any damages suffered were nominal. Appellee took the position that he was severely injured and that the damages he suffered as a young man of 32 years of age depending on his physical effort for a livelihood for himself and family were extensive.

A previous operation on his low back for an infectious disease and rheumatoid arthritis were urged by appellant as reasons for any appreciable disability on the part of ap-pellee. Some of appellant’s own medical doctors were uncertain on these questions. Dr. Hyde, an orthopedic surgeon used as a witness by appellant, testified that a spinal tap showed' no evidence of infectious disease present and that he found no evidence of any aggravation of an old injury from the fall being still present at the time he made his examination of Walker and hospitalized him. He testified Walker was still in serious trouble when he saw him on October 7, 1960; . that numbness in his arms and headaches would not commonly be caused from arthritis; that he was given a lot of medicine for pain; and that “limitation of motion, the straight-leg raising test — all those things would indicate to us the man had a lot of pain in his back.”

Exhibits introduced into evidence of hospital records show under the signature of Dr. J. R. Carroll, M.D., attending physician; a provisional diagnosis of “cervi-codorsal contusions and sprain” and “possible ruptured disc in this area” [the neck and shoulders]. The final diagnosis shows “cervicodorsal contusions and sprain.”

Surely it could not be said from this testimony that the jury did not have sufficient evidence to find appellee was injured from the September experience in the Santa Fe boxcar.

Dr. Gorrie, the osteopath used by ap-pellee, testified that Walker first became his patient on November 11, 1960; that from that date to the time of trial, which began on July 26, 1961, he had treated him approximately 65 times; that he had a lot of rigidity between his shoulders from the first rib to the seventh or eighth; that the area between the shoulders was very tender and the muscles very spastic; that when he first saw him he was not able to do manual labor required of a truck driver or construction laborer and up to the time of trial had not been able to do so. Dr. Gorrie admitted he had at one time stated he thought Walker would be ready to go back to work after three months from the time he started treating him but that he did not respond to treatment as he had expected. The evidence shows that Walker made several trips with another truck driver carrying Graham Plow implements to Canada following his September injury and before the trial. Dr. Gorrie testified after Walker made the Graham Plow trips that he was-suffering about as much as the first time he-saw him.

Corroborative of appellee’s contention that the injuries for which he sought recovery herein were not a continuation of his 1954 injury or of an arthritic condition, the testimony shows appellee had been through two pre-employment physical examinations since the 1954 injury prior to the 1960 injury and each time had been accepted for employment.

Taking appellee’s testimony of his weekly income from the two jobs he was holding-down at the time of his injury at the most conservative figure, he was making $141 per week. This figure multiplied by the-fifty two weeks in a year would show an annual income of $7,332. The jury had a right to consider these figures, in addition. to the physical pain and suffering following the injury. If the osteopath’s testimony was to be believed, and the jury had a right to do so, he had already suffered almost a .year’s disability at the time of the trial. It is true he made some trips to Canada for Graham Plow Company but from Dr. ■Gorrie’s testimony he was not physically able to do so, thus showing work under the whip of economic necessity. Dr. Gorrie said he would not say how much longer Walker would be unable to perform the tasks of a truck driver or construction laborer. If he was still unable after ten •and a half months to do the work for which he was accustomed the jury had a right from this record to consider that his dis•ability would extend still further and the right to consider his physical pain and suffering, as defined in the court’s charge.

Conversely, there is considerable testimony from medical doctors which indicate appellee’s injury was very minor, but we have no authority to substitute our findings for that of the jury under such conflicting testimony and to require a remittitur of all hut $1,500 as urged by appellee. A recent opinion of the San Antonio Court of Civil Appeals seems particularly appropriate under the facts of our case. Muro v. Houston Fire & Casualty Insurance Co., Tex.Civ.App., 329 S.W.2d 326, 331 (NRE). That court speaking through Justice Pope said:

“What may jurors do with conflicting evidence before them? They may disbelieve a witness though he is neither impeached nor contradicted. Cheatham v. Riddle, 12 Tex. 112. They may believe one witness and disbelieve others. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561. They may resolve conflicts and inconsistencies in the testimony of any one witness as well as the testimony of different witnesses. Benoit v. Wilson, 150 Tex. 273, 239 SW.2d 792. They are not required to depend upon the evidence from a single source. Texas & N. O. Ry. Co. v. New, Tex.Civ.App., 95 S.W.2d 170, 174. They may accept or reject in whole or in part the opinion testimony of physicians. They may accept lay testimony over that of experts. Opinion testimony does not establish material facts as a matter of law. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345; Fry v. Dixie Motor Coach Corporation, 142 Tex. 589, 180 S.W.2d 135; Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943. ‘If the opinions of the experts as given in the evidence do not comport with the jurors’ idea of sound logic, the jurors have a right to say so.’ Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62, 64.”

When the law just quoted is applied to the facts of our case, we cannot justify a remittitur nor a reversal under point three.

In its last point, appellant asserts error in the arrangement of the charge of exclusionary elements of damages.

The record together with the briefs indicate the court numbered the pages after the charge was prepared. In doing so, the exclusionary charge was not arranged next to the damage issue to which it was applicable. Though it would have been better form to have them together, we are unable to see how appellant could possibly have been harmed so long as the exclusionary elements were in the charge. We would have to presume the jury studied the entire charge.

The record here under consideration was without question vigorously prosecuted and just as vigorously defended; two firms of able lawyers represented the appellee; and a firm of able lawyers and appellant’s able and distinguished divisional counsel represented appellant. The jury simply did not agree with appellant’s theory. A most careful and extensive study of the case has convinced this court that the verdict and judgment are not so against the great weight and preponderance of the evidence as to be manifestly unjust. We are satisfied with the discussions of that question in each opinion we have announced in this case even though we have been vigorously challenged on it. As a matter of fact, we have been vigorously challenged on everything we have written in this case but it -is not our duty nor do we have the authority to substitute our findings for that of the jury which did not agree with appellant. The record is long and tedious and we do not believe there is anything in it to justify sending it back for another trial. Accordingly, as we stated in our other opinions, the judgment of the court below is in all things affirmed.

      . We cite the page in the Statement of Pacts because we have been challenged by Motion for Rehearing on this statement.

      . Johnson-Sampson Construction Company v. W & W Waterproofing Company, Tex.Civ.App., 274 S.W.2d 926 (NRE); Lofland v. Jackson et al., Tex.Civ.App., 237 S.W.2d 785 (NRE); Darling v. Panhandle & Santa Fe Ry. Co., Tex.Civ.App., 209 S.W.2d 660 (NRE); Hudspeth v. Hudspeth, Tex.Civ.App., 206 S.W.2d 863 (NWH).

      . Humble Oil & Refining Co. v. Bell, Tex.Civ.App., 180 S.W.2d 970; Texaco, Inc. v. Roscoe, 5th Cir., 1961, 290 F.2d 389; Moore v. Texas Company, Tex.Civ.App., 299 S.W.2d 401 (NRE); Texas Electric Service Co. v. Hawthorne, Tex.Civ.App., 135 S.W.23 531.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    D. Dean WEEKE et al., Appellants, v. PASADENA INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 14066.
    Court of Civil Appeals of Texas. Houston.
    Jan. 17, 1963.
    Rehearing Denied Feb. 14, 1963.
    Billy E. Lee, Houston, for appellants.
    Stanley D. Baskin, Pasadena, for appel-lees.
   WERLEIN, Justice.

Appellants, allegedly residents and taxpayers in the Pasadena Independent School District of Harris County, Texas, brought this suit to mandamus the Board of School Trustees of said District to call an election in accordance with a petition previously presented by certain alleged residents of the District on January 18, 1962, for the purpose of submitting the following proposition to the resident qualified electors owning taxable property in the District, to wit :

“Shall the Board of School Trustees of the Pasadena Independent School District levy a maintenance tax for the 1962-1963 school year and thereafter in an amount not to exceed $1.30 per $100.00 of valuation on the taxable property within said District; * * * ”

:and also asking the court to construe Article 2785, Vernon’s Annotated Texas Statutes. This appeal is from the trial court’s judgment refusing to mandamus said Board.

The trial court in its findings of fact found that the petition calling for a maintenance tax election presented to said Board •of Trustees, being Plaintiffs’ Exhibits Nos. 1 and 2, was not signed by twenty or more •qualified taxpaying voters residing within the Pasadena Independent School District.

The court concluded that the petition presented to the Board of Trustees was not legally sufficient to require said Board to order a maintenance tax election; that said Board of Trustees did not act unreasonably, •arbitrarily or capriciously in not ordering ■such election, and did not abuse its discretion. The court declared that Article 2785 of the Revised Civil Statutes of Texas, as •amended, vested discretion in the Board of Trustees of an independent school district as to the ordering of an election upon the presentation of a legally sufficient petition therefor.

We have carefully read the statement of facts and have concluded th'at the finding of the court that the petition presented to the Board of Trustees calling for a maintenance tax election was not signed by twenty or more qualified taxpaying voters residing within the Pasadena Independent School District, is not against the great weight and preponderance of the evidence. Indeed, there is no evidence of probative force showing that.more than two or three of the individuals who signed the petition were residents of such District although some three or four others were shown to reside in the City of Pasadena.

The burden was upon plaintiffs to prove that the petition presented to the Board was signed by twenty or more qualified taxpaying voters residing in the School District. In an effort to meet this burden of proof, plaintiffs introduced in evidence the petition in two parts that had been presented to the Board of Trustees of the District and called Mr. Landry, an employee in the office of the Assessor and Collector of Taxes in Harris County, and Mrs. Hopkins, the Assessor and Collector of Taxes in the Pasadena Independent School District. Mr. Landry testified that the names on the petition furnished him were, with a few exceptions, names of poll tax holders according to the Tax Assessor & Collector’s records of Harris County. Mrs. Hopkins testified that according to her records the names on the lists furnished here were, with a few exceptions, names of persons who paid taxes on property within the School District. There was no evidence by either of said witnesses that such persons resided within the School District.

The petitions introduced in evidence were clearly hearsay as to statements of fact or declarations contained therein. Hearsay evidence although admitted without objection should be disregarded by the trial judge and will not support a verdict or finding of fact in an appellate court. It is as a general rule no evidence at all. Knapik v. Edison Bros., Inc., Tex.Civ.App., 313 S.W.2d 335, writ ref.; Aetna Insurance Company v. Klein, 1959, 160 Tex. 61, 325 S.W.2d 376; Dallas Railway & Terminal Co. v. Bankston, Tex.Com.App., 51 S.W.2d 304, 309; 24 Tex.Jur.2d 397, Evidence, Sec. 727.

We, therefore, overrule appellants’ Point of Error No. 1. In view of our holding with respect to such point, which is decisive of this case, it will not be necessary to consider appellants’ other points of error.

Judgment of the trial court is affirmed.


author: McNEILL, Justice.

text:
    Mrs. Mamie RESTELLE et al., Appellants, v. Billy Frank WILLIFORD, Appellee.
    No. 6598.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 10, 1963.
    Rehearing Denied Feb. 6, 1963.
    Preston E. Johnson, Liberty, for appellants.
    Zbranek & Friend, Liberty, for appel-lee.
   McNEILL, Justice.

The appeal is from an order granting a temporary injunction against appellants, Mamie Restelle, her attorney, and the sheriff of Liberty County, restraining the sale under execution of certain farming equipment belonging to appellee.

The principal question posed is whether appellee was married at the time of the levy upon his equipment. If he was, his farming equipment could be shown, under proper circumstances, to be exempt to him under Art. 3832, Vernon’s Ann.Tex.Civ.St. No statement of facts is furnished us. The trial court’s findings of fact reveal that at the time the judgment for debt rendered against appellee on February 4, 1959, he was married and the head of a family; that on March 13, 1962 appellee’s wife, Luan Williford, filed suit in the district court of Liberty County against him for divorce and partition of community property; that on June 11, 1962, Luan Williford and husband were before the court, Judge J. Harris Gardner presiding, in divorce Cause No. 19,424, and the following entry was made on the court’s docket:

“6/11/62: Plaintiff granted divorce and property division as per decree on file. It is further ordered by the Court that Plaintiff’s maiden name of ‘Nu-gent’ be restored to her.”

The findings further show: that the farming equipment was levied upon on June 15, 1962; that on July 9, 1962, at the time of the hearing on the application for temporary injunction, there was no written decree entered by the court in Cause No. 19,424, entitled Luan Nugent Williford vs. Billy Frank Williford, in Liberty County, Texas; that at the time the divorce suit was filed and at all times since, appellee was engaged in the occupation of farming.

The trial court concluded, as a matter of law, on the findings made that there was no judgment declaring the parties Willi-ford to have been divorced and that therefore they were man and wife. He further concluded that there was no evidence that the parties had partitioned the community property in question between themselves in the manner provided by the constitution and laws of this state, and that consequently the property would not be subject to execution by reason of Art. 3832, supra.

Appellants assail the trial court’s conclusion that appellee and wife were not divorced and were man and wife upon three grounds: First, it is said that the docket entry of June 11, 1962 is proof the judge then pronounced judgment of divorce. We overrule this contention. The trial court’s docket entry is not a part of the record which we may consider; it is a memorandum made for the convenience of the trial court and clerk. Williams v. Land, Tex.Civ.App., 300 S.W. 990; Burleson v. Moffett, Tex.Civ.App., 3 S.W.2d 544.

Appellants’ second ground — assailing the trial court’s conclusion — is that ap-pellee’s application for injunction alleged that appellee and Luan Williford were formerly man and wife, and that the farming equipment involved was received by ap-pellee in the divorce property settlement. It is said that these allegations constitute a judicial admission that the divorce was actually granted. We doubt that the allegations were made with such clarity that they, strictly construed, may be considered a judicial admission. If they should be so considered, there is a clear answer to the proposition that they must be accepted as an admission here. Since we have no statement of facts, to proceed upon it must be presumed upon appeal that sufficient evidence was introduced to support the trial court’s finding that the parties were man and wife. City of Houston v. Adams, Tex.Civ.App., 326 S.W.2d 627. It is appellants’ duty to show that under no possible state of the case could the court’s judgment be upheld. First National Life Ins. Co. v. Herring, Tex.Civ.App., 318 S.W.2d 119. And we are required to indulge every reasonable presumption consistent with the record in favor of the correctness of the judgment rendered. Thomas v. International Harvester Co., Tex.Civ.App., 325 S.W.2d 832. Accordingly, we indulge the presumption that evidence was heard by the trial court indicating that no legal property settlement had been consummated between the parties. This presumption is strengthened by the trial court’s statement in his conclusions that there was no evidence offered showing a legal division of the community property. It is held that a judicial admission is waived when evidence contrary thereto is heard. 31 C.J.S. Evidence § 381c, 1172; Plemmons v. Pevely Dairy Co., 233 S.W.2d (Mo.App.) 426. No property settlement having been properly consummated, no final judgment could be rendered and entered in the minutes.

The third ground of attack on the trial court’s finding that Williford and wife were still married was because of the recital in an order of the District Court (Judge Gardner again presiding) in the divorce case dated July 29, 1962, as follows: “ * * * that the order of the court * * granting the divorce of plaintiff and cross-defendant, Luan Nugent Williford, from defendant and cross-plaintiff Billy Frank Williford * * * ”; and it is asserted therefrom that it is shown unquestionably that the divorce had been rendered on June 11, 1962. The order of July 29th was one setting aside the docket entry of June 11, 1962 and resetting the case for trial in its regular turn. The July 29th order has no proper bearing upon the judgment granting the temporary injunction on July 9, 1962. 31 Tex.Jur.2d 343. But since it is .relied upon by appellants, it may be stated that this very order contains a further recitation “and it further appearing to the court that the parties hereto nor their attorneys have been able to .reach an understanding and agreement as to the property settlement proposed by the court; * * *.” This order' of July 29, which set the divorce case for trial in its regular turn, indicates that though there was a pronouncement of divorce, the court had left the details of the settlement of property rights to the lawyers and the parties involved, as is often done. But later the court discovered that the parties were unable to agree upon division of the property. So, it is seen that, whether he intended it or not, the trial court actually disposed of only part of the issues involved in the divorce case. His order granting the divorce was consequently an interlocutory one which could be set aside at a subsequent term. Brannon v. Wilson, Tex.Civ.App., 260 S.W.2d 201; Consolidated Underwriters v. McCauley, Tex.Civ.App., 320 S.W.2d 60.

Appellants finally urge that the temporary injunction should not have been granted for the reason that the application therefor did not plead the benefit of or refer to Art. 3832, but attempted to obtain the benefit of Art. 3834 which exempts proceeds of sale of homesteads for six months. In the absence of a statement of facts, we must presume in upholding the order of the trial court that the issue of exemption, as raised by Art. 3832, was tried with the implied consent of the parties. Rule 67, Texas Rules of Civil Procedure; Dorman v. Cook, Tex.Civ.App., 262 S.W.2d 744; 4 McDonald P.C.P. p. 1302.

The judgment is affirmed.


text:
    PORT ARTHUR INDEPENDENT SCHOOL DISTRICT et al., Relators, v. Hon. Gordon D. GARY et al., Respondents.
    No. 6637.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 28, 1963.

      See also 364 S.W.2d 448.
    Fuller & Fuller, Port Arthur, for appellant.
    Black & Provost, Port Arthur, for appel-lee.
   McNEILL, Justice.

This is a petition for writ of mandamus filed by the trustees of the Port Arthur Independent School District against the respondent, Hon. Gordon D. Gary, Presiding Judge of the District Court in and for the 60th Judicial District of Texas, and against the City of Groves, a municipal corporation of Jefferson County, as co-respondent. The petition seeks the writ requiring the said District Judge to take jurisdiction, hear and determine an application for temporary injunction presented to said judge on January 18, 1963.

Last fall the relator, Independent School District, let a contract for the construction of a certain school building on property which it owned within the city limits of the City of Groves, and under this contract it was contemplated that the building would be ready for use by September, 1963. After the contract for the building had been let and the work thereon commenced, a dispute arose between the officials of the City of Groves and the officials of the relator as to whether or not certain ordinances of the City of Groves .relating to construction of buildings, the obtaining of permits therefor, and the inspection of such construction by the proper officials of the City of Groves were valid insofar as they affect relator. To resolve this dispute, relator filed orv November 16, 1962, in the 60th District Court of said county under Cause No. B-80012, an application for a declaratory judgment as to whether such ordinances were enforceable against and binding upon said independent governmental agency, the Port Arthur Independent School District. The issue on this question was joined, and at a hearing held on December 6, 1962, the Honorable Gordon D. Gary granted the relief sought by the school district in said suit. The effect of this judgment was to hold that such ordinances were as to the school district and those acting under its authority in the construction of said school building unenforceable and void; and ancillary thereto granted a permanent injunction against the City of Groves and its officials from enforcing or attempting to enforce said ordinances as against the school district in connection with said project, or in any manner interfering with construction of said school building. A formal judgment carrying this into effect was dated, executed and entered by the court on December 13, 1962.

On December 18, 1962, the City of Groves gave notice of appeal to this court, and since that date the appeal has been perfected. On January 8, 1963, for said City, an affidavit was filed with the District Clerk asserting its alleged right under Art. 1174, Vernon’s Ann.Tex.Civ.St., to supersede the judgment of the court without the necessity of filing a bond. Thereafter at a meeting of the City Council of the City of Groves held on January 14, 1963, it was decided by the City Council to enforce the penal provisions of said ordinances against the relators and those acting for and in their behalf in the construction of said building. In connection with this petition, relator presents affidavits from officials of the School Board that it was the intention of the City of Groves to enforce its ordinances in connection with said work and advised the workers on the job site that they were subject to criminal prosecution if they continued to work on the job. As a result of this, work on the building has been stopped.

On January 17, 1963 relator filed in the 60th District Court, in the same Cause No. B-80012, which suit has been appealed to this court, an application for temporary injunction restraining the City of Groves and its officials from enforcing said ordinances pending the appeal and final determination of its suit for declaratory judgment. A hearing being had on this application on January 18, 1963, respondent Judge Gary held that as a matter of law he had no jurisdiction to act upon said application for the reason that, since the judgment rendered by him in Cause No. B-80012, this cause had been appealed to this court where it is now pending. Oral argument was heard by us on January 24, 1963 on the question whether the writ of mandamus would lie. In behalf of relator, it is urged that the enforcement of the ordinances involved against its officials and employees and those carrying on the construction work on said school, would tend to render any judgment finally entered in the action for declaratory judgment in favor of relator ineffectual. The cases of Houston Oil Company of Texas v. Village Mills Co., 109 Tex. 169, 202 S.W. 725, 226 S.W. 1075, and Needham v. Arno Co-op Irr. Co., Tex.Civ.App., 196 S.W. 887, are cited in support of the issuance of the writ. In our investigation of the question, two cases have been found which, in our judgment, dictate a different ruling. These are Yett v. Cook, 115 Tex. 175, 268 S.W. 715, 281 S.W. 843 and Railroad Comm. of Texas v. Roberts, Tex.Civ.App., 332 S.W.2d 745.

The plain and only purpose and effect of the temporary injunction now sought would be to enforce the execution of the original injunctive relief granted by the trial court on the first hearing. An appeal was taken from such original order and such order was superseded. It was held in the Yett and R. R. Com. cases, supra, that under such circumstances the trial court has no jurisdiction to grant the injunctive relief now sought, pending the appeal of the original action.

Therein lies the difference between this action and the Houston Oil Co. v. Village Mills Co., supra. In that case no injunc-tive relief was sought in the original action, and therefore the question of superseding the trial court’s order was not involved.

Since the City of Groves has superseded the judgment in Cause No. B-80012, the trial court’s .ruling that he was without jurisdiction to hear relator’s application for temporary injunction against the enforcement of the ordinances involved of the City of 'Groves is correct. The application for mandamus is denied.


author: HIGHTOWER, Chief Justice. STEPHENSON, Justice

text:
    CITY OF GROVES et al., Appellants, v. PORT ARTHUR INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 6631.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 28, 1963.

      Black & Provost, Port Arthur, for appellants.
    Fuller & Fuller, Port Arthur, for ap-pellee.
   HIGHTOWER, Chief Justice.

This is an original proceeding in this Court by appellee for a temporary injunction against appellant. It was precipitated by a district court’s declaratory judgment in favor of appellee to the effect that certain ordinances of appellant, City of Groves, regulating the construction of buildings within its city limits was void as to ap-pellee. Said judgment also permanently enjoined City of Groves from enforcing any of its building ordinances against appellee in its construction of school buildings. See for additional facts, opinion of this Court this day announced in Port Arthur Ind. School District v. Gary et al., 364 S.W.2d 446. From this judgment (No. B-80072 in the district court) appellant perfected its appeal to this court on the 2nd day of January, 1963, the submission and determination of which only awaits part of the time in which appellee is allowed for filing its brief.

Meanwhile, we have entertained (Jan. 24) appellee’s petition for temporary injunction aforesaid in which it is represented that appellants, having superseded the trial court’s judgment under authority of Art. 1174, Vernon’s Ann.Civ.St., threaten ap-pellee and its agents with immediate criminal prosecutions from day to day if they continue to build in defiance of said building ordinances. It is urged that the school building must be completed for occupancy for the period 1963-64 school year, beginning in September, 1963, and that there exists no adequate remedy at law, and that if appellant is not enjoined from enforcing its building ordinance, appellee has no alternative but to conform to said ordinances, thereby causing the merits of the case before us on appeal aforesaid to become moot and judgment ineffectual.

This Court has authority to protect its jurisdiction and may issue proper writs therefor. Art. 1823, V.A.T.S. It is said that if criminal prosecutions are carried on by the City against those working upon the school building, no other result would follow than that the School District will have to give in, obtain permit and comply with the City’s building ordinances, and that consequently the principal case before us will become moot. At the time arguments were heard on this application for temporary writ of injunction, affidavits were presented by the School District showing that because of threats of criminal prosecutions all construction work on the school building has been stopped. There is no attack made upon the validity of the City’s ordinances as such, but merely that they are not applicable to or controlling upon the School District. In this situation, it may be doubted whether an injunction would lie against such criminal enforcement. Lowe & Archer, Injunctions and Extraordinary Proceedings, p. 242. If injunction should be granted we would be restraining the enforcement of valid ordinances of the City. It is only contended they do not apply to the School District. This is the point that is in doubt. If we fail to grant the injunction work will probably be held up on the school construction. In such event, the appellee may suffer some damage if required to wait upon the outcome of the appeal of the original action, before proceeding with the construction of the school. However, we have no jurisdiction to issue an original writ to prevent damage to a litigant pending appeal. R. R. Comm. v. Roberts, Tex.Civ.App., 332 S.W.2d 745.

STEPHENSON, Justice

(concurring).

I concur with the disposition of this case in accordance with the majority opinion, but for the following reason. The judgment of the trial court, holding the City ordinance void as to appellee and granting injunctive relief to the School District has been superseded. To hold otherwise would, in effect, be to hold that the judgment below can be enforced during the pendency of this appeal, notwithstanding the fact the City of Groves has complied with the law giving it the right to supersede the judgment. The effect of this Court’s granting the relief prayed for would nullify the effect of the supersedeas affidavit, and thereby deprive the City of Groves of its fruits and benefits. No such power vests in this Court. Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S.W. 326; Cisco Independent School Dist. v. Dudley, Tex.Civ.App., 53 S.W.2d 639.

In the second place, the power of this Court to grant original writs is strictly limited by Article 1823, V.A.T.S., to enforce the jurisdiction of this Court. The appellee’s application for this injunction makes out no such case. The appellee makes no showing that the jurisdiction of this Court over the subject matter of the litigation is in anywise in jeopardy. Cisco Independent School Dist. v. Dudley, supra.


author: POPE, Justice.

text:
    J. T. CROSS et al., Appellants, v. B & B GROWERS AND PACKERS, INC., Appellee.
    No. 14043.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 9, 1963.
    Rehearing Denied Feb. 6, 1963.

      Stafford, Atlas & Spilman, Gary Gurwitz, McAllen, Aldrich & McDonald, Edinburg, for appellants.
    Hill, King & McKeithan, Mission, for appellee.
   POPE, Justice.

The trial court granted plaintiff’s motion to dismiss this case. Since the defendants had answered and asked for affirmative relief, the court erred in dismissing their cross-action.

B and B Growers and Packers, Inc., commenced this suit against Simon Heath. It alleged a written contract by which it agreed to buy and Heath agreed to sell a sixty-acre farm for $58,000.00 in cash and notes. It later amended and joined J. T. Cross, H. F. Moffitt, Sun Valley General Sales Corporation and Kenneth Hirstein, to whom Heath, according to plaintiff’s pleadings, had sold the property. Heath at first answered and resisted the specific performance. In February of 1962, about a year after the suit was filed, defendant Heath filed an amended answer and acceded to every demand of the plaintiff. He referred to and adopted those parts of plaintiff’s pleadings which alleged the agreement between the parties, plaintiff’s tender of performance, and the prayer for specific performance of the same property. Heath, by his amended answer, then prayed that plaintiff be required to perform the contract in accord with its own as well as his pleadings. The other defendants pleaded the same thing • and, to effect the specific performance, they conveyed the property back to Heath so he could convey to plaintiff. Heath tendered a deed into court. Plaintiff in March of 1962 filed its motion to dismiss. It also filed, subject to the motion to dismiss, its answer to the merits of defendants’ amended pleadings, and prayed that the specific performance now sought by defendants be denied.

The parties completely exchanged positions. At first plaintiff sought specific performance and the defendants resisted it. The defendants amended and they, by way of affirmative relief, asked for specific performance of the same contract. Plaintiff then moved to dismiss and, subject to this motion, filed its answer resisting specific performance. This was the situation at the time the motion to dismiss was heard.

Plaintiff had the right to dismiss its own suit but had no right to impair the counter-claim of its adversaries. At the time the court ordered the dismissal, the plaintiff had become a counter-claimant in a suit for specific performance. The dismissal of plaintiff’s action for specific performance could not defeat the affirmative relief sought by its adversaries. Rules 96, 164, Texas Rules of Civil Procedure; McElyea v. Parker, 125 Tex. 225, 81 S.W.2d 649; Brooks v. O’Connor, 120 Tex. 121, 39 S.W.2d 22; Thomason v. Sherrill, 118 Tex. 44, 10 S.W.2d 687; Short v. Hepburn, 89 Tex. 622, 35 S.W. 1056.

Plaintiff seeks to justify the dismissal of the entire cause by arguing that conditions have materially changed since its original action. It states in its brief that the land has depreciated in value by reason of a freeze'and that the defendants’ cross-action should be barred by laches. These are matters of fact which will be appropriate for the trial on the merits. No evidence was heard on the motion to dismiss.

That part of the judgment which dismissed plaintiff’s cause of action is affirmed. That part of the judgment which adjudged the costs below against the defendants, appellants here, and dismissed their counterclaim is reversed and remanded for a trial upon the counter-claim. Costs of this appeal are adjudged against appellee.


author: FANNING, Justice.

text:
    Travis WARD, Appellant, v. FAIRWAY OIL & GAS COMPANY, Appellee.
    No. 7472.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 8 1963.
    Rehearing Denied Feb. 5, 1963.
    Moore & Holland, Athens, for appellant.
    Wilson, Miller, Spivey & Steger, Spru-iell, Lowry, Potter, Lasater & Guinn, Tyler, for appellee.
   FANNING, Justice.

This is a venue case. Appellee sued appellant in a District Court in Smith County, Texas, on a sworn account based upon a written contract performable in Smith County, Texas. Appellant filed a statutory plea of privilege to be sued in the county of his residence, Henderson County, Texas. Appellee timely filed its Controverting plea alleging venue in Smith County undfer Subdivision S of Article 1995, V.A. C.S. The trial court overruled the plea of privilege and appellant has appealed.

Appellant’s single contention on ap^ peal is to the effect that under the doctrine of judicial estoppel appellee could not rely on the written contract to fix venue in Smith County, Texas. This contention is not well taken. Judicial estoppel is an affirmative defense on the merits and not a venue fact. 43 B, Tex.Jur. 365; Trinity Universal v. Soliz, Tex.Civ.App., 251 S.W.2d 904; Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.2d 810.

Appellant did not file a sworn denial of the execution of the written contract in question. There being no sworn denial of the execution of the written contract and the same being clearly performable in Smith County, Texas, by its express terms, the trial court correctly overruled the plea of privilege. Rules 86 and 93, T.R.C.P.; Subd. 5, Art. 1995, V.A.C.S.; North Texas Tank Co. v. Pittman, Tex.Civ.App., 290 S.W.2d 724; Rudman v. Hawkins, Tex.Civ.App., 226 S.W.2d 491; Sheffield v. Kirschmer, Tex.Civ.App., 269 S.W.2d 942; Bailey v. A. R. A. Mfg. Co., Tex.Civ.App., 285 S.W.2d 849.

The judgment of the trial court is affirmed.


author: COLLINGS, Justice.

text:
    Willard BRUENGER et ux., Appellants, v. S. T. BURKETT, Appellee.
    No. 3769.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 25, 1963.
    Rehearing Denied Feb. 15, 1963.
    Mark Callaway, Brownwood, for appellants.
    Woodward & Johnson, Coleman, for ap-pellee.
   COLLINGS, Justice.

S. T. Burkett brought suit against Willard Bruenger and his wife, Melba Bruen-ger, alleging that defendants were partners in the business of spraying cotton and other crops for the purpose of killing insects; that on June 28, 1961, plaintiff employed defendants to spray his 100 acre field of cotton because of insect infestation; that defendants by use of an airplane did spray plaintiff’s cotton crop and in the operation negligently used some sort of herbicide, chemical or poisonous substance; that by reason of such action by defendants, plaintiff’s cotton crop was partially destroyed, production was reduced and the crop damaged in the amount of $9,714.53.

Defendants answered by a general denial and also alleged specific facts tending to show a lack of liability on their part and filed a plea of estoppel. Defendants also brought a cross-action against the plaintiff for the alleged contract price of two other spraying operations of plaintiff’s crop in the amount of $450.00.

The case was tried before a jury which found that defendants had negligently sprayed plaintiff’s cotton with an improper and poisonous chemical which damaged said cotton. Based upon such finding and upon other findings bearing upon the issue of damages, judgment was entered for plaintiff in the sum of $3,178.03. Mr. and Mrs. Bruenger have appealed.

Appellants present points urging that there was no evidence of any negligence on the part of appellants in the use and application of the chemical used in spraying plaintiff’s cotton and that the court therefore erred in refusing to grant appellants’ motion for an instructed verdict and in refusing to grant their motion for judgment non obstante veredicto. In our opinion there was ample evidence to support the findings of the jury in this respect and the court did not err in overruling appellants’ motions for an instructed verdict and for judgment non obstante veredicto. There was testimony by several witnesses to the effect that prior to the spraying operation the condition of plaintiff’s cotton crop was good; that the foliage was thick and the cotton healthy and that the cotton, in the absence of the damage complained of, would probably have made about 50 bales or more. Mr. Burkett testified that after some difficulty in getting started, the spraying of the cotton began, and was completed at about 10:30 on the morning of the spraying. The evidence further showed that by noon of that day the cotton was wilting or dying. Mr. Burkett testified that many of the plants never revived; that the damage was worse in spots and that the leaves of the cotton would “kind of swivel.” Mr. Williams, an expert witness, testified that he was a graduate of Texas A&M, was a former County Agent and familiar with sprays, insecticides and herbicides. He testified that he examined the field of cotton in question after the spraying and, in his opinion, it showed “typical herbicide damage” ; that there was some damage all over the field but there were strips which were completely dead. He testified that the leaves of the plants and the bolls had grown in an odd way; that he examined certain stalks of the cotton, which were taken from the field and introduced in evidence, and-that such stalks were typical of those which he found all over the field. Mr. Williams also testified concerning a telephone conversation he had with appellant, Bruenger, and stated that Mr. Bruen-ger had agreed that the condition of the cotton crop after the spraying indicated herbicide damage and the use of some solution other than that properly needed for killing insects.

In our opinion the evidence amply supports the findings of the jury that the defendants sprayed plaintiff’s cotton crop with a herbicide or poison that killed or damaged the cotton. We also hold that the evidence of such action on the part of the defendants supports the finding that they were guilty of negligence and that such negligence was the proximate cause of the damage to plaintiff’s cotton crop. We also overrule appellants’ point in which it is contended that the court erred in overruling appellants’ motion for an instructed verdict because such findings of the jury are against the great weight and preponderance of the evidence. The findings were not against the great weight and preponderance of the evidence, and even if such had been the case, it would not have been proper for the court to have instructed a verdict on that ground.

It is contended in appellants’ third point that the court erred in overruling their motion for judgment against appellee for $450.00 on their cross-action. Appellants urge that the pleadings and the uncontra-dicted evidence showing two additional spraying operations entitled them to such judgment even though no issue was submitted to the jury in this connection. This point is not well taken. Appellants did seek recovery for this item in their pleadings. Appellee admitted that after the spraying complained of appellants sprayed the cotton on two other occasions as provided by the contract and that at the time of the trial appellants had not been paid the contract price of $450.00. Appellee contends, however, that the answers of the jury to the special issues and the judgment have taken into consideration and include a proper disposition of appellants’ claim for $450.-00. In this connection special issue Number 5 requested a finding concerning the reasonable cost or expense “of cultivating, picking or stripping, ginning and marketing the cotton had it not been so damaged.” In answer to this special issue the jury-found the amount to be $42.50 per bale. While the jury was deliberating it requested the court to make “a more specific interpretation” of issue Number 5. The court thereupon, without objection by either party, by written instruction, informed the jury that “the inquiry is to the total cost or amount that would have been reasonably expended from the time of cultivation to the ginning of the cotton crop that he would have made had there been no damage.” Under this instruction it is obvious that when the jury found the amount of $42.50 per bale as the amount that would have been reasonably expended from the time of cultivation through ginning, that such finding took into consideration and included the cost of spraying in the amount of $450.00, which the pleadings and evidence show appellants were entitled to under the contract. The judgment based upon the finding, therefore, also included an offset in favor of appellants for $450.00.

The court in its charge advised the jury that circumstantial evidence was competent evidence and that a cause of action might be proved by circumstantial evidence as well as by direct evidence. The court then further instructed the jury that circumstantial evidence was proof of minor facts, which by indirection, logically and rationally demonstrated facts to be proved and that direct evidence was proof of facts by witnesses who saw the acts done or heard the words spoken. In appellants’ fourth point it is contended that the court erred in overruling their objections to the charge on circumstantial evidence and in failing to amend such instructions because they were incomplete and misleading on the law of circumstantial evidence and constituted a charge on the weight of the evidence. This point is not well taken. The instruction and definition concerning circumstantial evidence as hereinabove stated is substantially and in essence the same as that approved by our Supreme Court in Larson v. Ellison, 147 Tex. 465, 217 S.W.2d 420.

We have considered all points presented by appellants and the record in connection therewith and find no reversible error.

The judgment is affirmed.


text:
    Clyde Everette CALLICOTT, Appellant, v. Jeanette Fay CALLICOTT, Appellee.
    No. 14069.
    Court of Civil Appeals of Texas. Houston.
    Jan. 24, 1963.
    Rehearing Denied Feb. 14, 1963.

      Marvin Schulman, Houston, for appellant.
    Joe S. Moss, Houston, for appellee.
   WERLEIN, Justice.

This suit was brought by appellee, Jeanette Fay Callicott, to change the custody of Gary Wayne Callicott, which had been given to appellant, Clyde Everette Callicott, when appellee and appellant were divorced on September 22, 1958. Gary was born on February 2, 1954. This case went to trial May 23, 1962 when Gary was more than 8 years and 3 months old. The Judge of the Court of Domestic Relations, before whom the case was tried, entered judgment in favor of appellee changing the custody of the child from his father, who had taken care of the child during his entire life and especially during the period from the date of the divorce on September 22, 1958 to the date of the decree of the Court entered June 13, 1962, from which appellant appeals.

Appellant assigns numerous points of error. He first asserts that the trial court erred in refusing to permit Gary to testify as a witness either in open court or chambers, or to allow Gary to be examined for the purpose of determining whether he understood the nature and solemnity of an oath and was competent to testify; and that the court further erred in refusing to allow appellant to perfect a bill of exceptions from the court’s ruling refusing to permit Gary to testify as a witness in behalf of appellant.

We think these points of error should be sustained. Counsel for appellant objected and excepted to the court’s action in refusing to permit him to make out a bill of exceptions in the usual manner by interrogating the witness in the court’s presence. Thereafter appellant undertook to prepare a bill of exceptions out of the court’s presence. The court qualified this make-shift bill of exceptions as follows:

“The exception herein is qualified by reference to Statement of Fact pages 374, 382, and 462-463-464. Further the Court does not know what the witness would have testified to. In addition to ruling on pages heretofore referred to in Statement of Facts, the Court disallowed this eight year old witness because : did not feel would be bound by the testimony; and, did not wish to subject a child of these tender years to embarrassment of courtroom testimony in the presence of his parents and loved ones.
“Signed this 30th day of July, A. D. 1962.”

The record shows that when appellant called Gary as a witness, appellant’s counsel stated, “I would like for the child to be examined, whether it be in open court or in the chambers or whatever circumstances the court might desire. Now, when I— from the last statement the court made I am not certain — is the court willing to have him examined in chambers?” the court replied: “I don’t mind seeing the boy and talking with him but I will not have an eight year old boy present in an open courtroom' hearing. We can do that when we finish the case. Call your next witness.”

The record further shows that counsel for appellant stated: “I would presume the next witness will be lengthy and will run well into 5. I would like time to have Gary examined so he may be back in school Monday.” to which the court replied, “Call your next witness.”

At pages 462, 463 and 464, Statement of Facts, counsel for appellant again tendered Gary as a witness. The court sustained appellee’s objection to the testimony of the boy as being incompetent to testify although no test was made to determine the boy’s qualifications. Appellant then stated that he was willing that the boy be examined by counsel either in open court or chambers, and asked that the examination be in the form of questions and answers, and that the testimony be in the presence of the court to hear and rule upon objections, and appellant tendered the witness for examination either in open court or in chambers or such other place as the court might direct. Whereupon, on the objection of ap-pellee, the court announced in substance that he didn’t mind talking to the boy or at least observing him but didn’t want him as a witness in open court, but if he did talk to the boy it would be very informal and not subject to open questioning by counsel on either side, and that the court would only discuss a few matters with the child and observe him and that is as far as it would go.

We can understand the reluctance of the court to permit Gary to testify in open court before his parents. Appellant, however, tendered the boy for examination by attorneys on both sides in the court’s chambers. He did not waive his right to interrogate Gary. The trial court erred in refusing to grant appellant’s request to examine the boy either in open court or in chambers. In chambers the court could have readily determined the qualifications vel non of Gary to testify in the case. At his age he was in all probability qualified and very likely in possession of information that might well have been of vital im1 portance in the determination of whether he should be taken from the custody, care and guidance of the father to whom his custody had been awarded some years before, and who had under the uncontroverted evidence taken good care of his physical, mental and spiritual growth and development. He might well have confirmed or disaffirmed his happy and wholesome homelife in his father’s home both before and after his father’s legal marriage to his present wife, Hope. He might also have disproved or corroborated his father’s testimony that his natural mother, appellee, during the exercise of visitation rights, had taken him to a drunken party where his father had to go at night and get him after being called by the boy, and had also taken him to beer joints and men’s apartments on visits.

We are in accord with the observation of Justice Northcutt in Cline v. May, Tex.Civ.App., 287 S.W.2d 226, that the discretion of the trial court in custody cases applies to the determination of the court as to the best place to place the child for his or her future welfare, but does not apply to a determination by the court of whether it would be for the best interest of the child to testify. Where a child of competent qualifications under the rules of evidence is called to testify, the trial court does not have within his discretion the right to refuse to permit such child to testify. This Court approves of the trial court and attorneys, upon agreement of the parties, examining the child privately, but knows of no rule that permits a court arbitrarily to refuse to permit a child of proper age and otherwise qualified to testify when one of the parties requests that he take the witness stand. The trial court in qualifying appellant’s exceptions shows that he not only did not permit an examination of Gary either in open court or in chambers, but that he had not talked to the boy and didn’t know what his testimony would be. The court also erred in depriving appellant of the right to properly prepare a bill of exceptions showing in the court’s presence the boy’s qualifications to testify and what he would have testified to. State v. Biggers, Tex.Sup.1962, 360 S.W.2d 516.

A careful reading of the record shows that Gary was always well taken care of by his father and that for a year prior to the change of custody decreed by the trial court, appellant and his present wife, Hope, to whom he had been lawfully married for more than a year, had taken good care of Gary as well as Hope’s other two children, and that all of them lived in a happy and wholesome atmosphere at such time and not as found by the trial court, in an unfit, adulterous and bigamous atmosphere. We think it unnecessary, however, in view of our holding with respect to the refusal of the court to permit Gary to testify, to pass upon appellant’s points that a number of fact findings by the court are against the great weight and preponderance of the evidence, especially since upon a new trial the judge will likely have the benefit of Gary’s testimony and possibly reach a different conclusion with respect to change of custody.

The law is well settled in this State that where a court of competent jurisdiction has given custody of a child to one parent, the burden of proof is on the other parent seeking to change the child’s custody, to show material changes that require, in the interest of the child, that his or her custody be changed. A showing of only slight change of conditions is not sufficient to warrant a change of custody. Short v. Short, Tex.Sup.1962, 354 S.W.2d 933. In the opinion of the Supreme Court, handed down January 9, 1963 in Mumma et ux. v. Aguirre et ux., Tex., 364 S.W.2d 220, Chief Justice Calvert stated:

“However, wholly aside from the binding force of the rule of res judi-cata, the law favors a high degree of stability in a young child’s home and surroundings, and to achieve that stability will not permit a change of custody, once judicially determined, except upon a showing of materially changed conditions, Short v. Short, Tex.Sup., 354 S.W.2d 933; and will not require it, even then, unless denying it would constitute an abuse of discretion by the trial judge. Taylor v. Meek, 154 Tex. 305, 311, 276 S.W.2d 787, 790.”

It will be presumed that the 152nd Judicial District Court of Harris County, Texas, at the time appellant and appellee were divorced, had good grounds for giving the custody of the then four year old Gary to his father and not to appellee. Certainly there should be no change made in the custody of the child absent proof of materially changed conditions. In determining whether such materially changed conditions exist and are such as to require a change of custody, the best interests of the child should be the sole consideration of the court. The burden of making- such proof is upon the parent seeking the change.

In view of conflicting considerations in this case, and the opportunity of the trial judge to observe the parties and witnesses and pass upon their credibility, we are of the opinion that we cannot say that the trial judge has as a matter of law abused his discretion or that judgment should be rendered.

Reversed and remanded.


author: BARROW, Justice.

text:
    TEXAS LIQUOR CONTROL BOARD, Appellant, v. Pete RODRIGUEZ, d/b/a Las Palmas Club, Appellee.
    No. 14046.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 2, 1963.
    Rehearing Denied Jan. 30, 1963.

      Will Wilson, Irwin R. Salmanson, Norman Suarez, Austin, for appellant.
    Pat Maloney, San Antonio, for appellee.
   BARROW, Justice.

This is an appeal from a judgment of the district court setting aside the order of the assistant administrator of the Texas Liquor Control Board cancelling appellee’s license as a beer retailer on premises. The only issue presented is whether the order of the assistant administrator is reasonably supported by substantial evidence. Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198; Texas Liquor Control Bd. v. Luke, Tex.Civ.App., 340 S.W.2d 504, wr. ref.

The rules to be applied to determine this issue are now well settled. The record is to be considered as a whole and involves a question of the law. The burden of proof is upon the licensee to show that there was not substantial evidence affording reasonable support for the administrator’s order of cancellation. In applying the substantial evidence rule, it is not the province of the court to substitute itself for the administrator in determining the wisdom and advisability of the particular order in question. The reviewing court will sustain the action of the administrator so long as his conclusions are reasonably supported by substantial evidence. The reviewing court should view all the evidence, and if there be only a scintilla of evidence the order should be reversed. Because the preponderance of the evidence is against the finding is not grounds to reverse the order of the administrator. The substantial evidence rule does not require the evidence in support of the order to be full and satisfactory. Railroad Commission of Texas v. Manziel, Tex., 361 S.W.2d 560; Railroad Commission v. Shell Oil Company, 139 Tex. 66, 161 S.W.2d 1022; Texas Liquor Control Bd. v. Luke, supra; Texas Liquor Control Bd. v. Armstrong, Tex.Civ.App., 300 S.W.2d 146, writ ref.

To apply these rules it is necessary to review the pertinent facts. On March 27, 1962, at about 11:00 p. m. a fatal shooting occurred on the premises of the Las Palmas Club, which was operated by Rodriguez. After notice and hearing, the assistant administrator ordered the license cancelled under authority of Art. 667-21, Vernon’s Penal Code, which provides:

“The Board or Administrator shall have the power and authority to suspend for a length of time not exceeding thirty (30) days the license of any retail beer dealer upon ascertaining that any act constituting a breach of the peace has occurred upon the premises covered by the license of such retail dealer or under his control, and at the expiration of the date to which such license has been suspended the Board or Administrator shall cancel the license unless it shall have been shown to the satisfaction of the Board or Administrator that the act was beyond the control of the person holding the license and did not result from improper supervision by the licensee of the conduct of persons permitted by him to be on the licensed premises or premises under his control.”

Rodriguez had operated the Las Palmas Club, which was a bar and pool hall, for six or seven years prior to the shooting. The evidence is undisputed that, although this business was in a trouble area of the city, appellee’s business had a good reputation prior to this incident. At the time of the shooting, and for at least an hour prior thereto, the business was in the sole charge of a nineteen-year-old bar maid with only a month’s experience. Appellee had a sore throat and was in his home about 150 to 180 feet from the premises. He was partially dressed and asleep in front of the TV set. About ten minutes before the fatal shooting, the deceased, David Gomez, and his assailant, Alfredo Cerda, had an argument and Gomez struck Cerda in the face and knocked him down. Following this altercation, Cerda left the premises and later returned with a gun. He shot Gomez and accidentally wounded another patron. Although she saw the fight, the young bar maid did not call Rodriguez or the police, and, in fact, did nothing to try to avoid further trouble. Rodriguez was not notified until after the shooting, at which time he ■disarmed Cerda and then carried Gomez out ■of his establishment and was closing same when the police arrived. Gomez was found ■dead on the sidewalk by the police, about fifteen or twenty feet outside the premises. This was on a Tuesday and there were •only ten or fifteen male patrons in the bar at the time. Appellee asserts that no one •could have anticipated this shooting. He •testified, however, that after he had disarmed Cerda, but before he knew of any shooting, he started to close the place to .avoid someone coming back and continuing the fight. An experienced manager could see the danger signs in the fight between •Cerda and Gomez and would take steps to avoid further difficulty.

The conclusion of the assistant administrator is, therefore, reasonable that there was improper supervision of the licensed premises in having an inexperienced nineteen-year-old bar maid in charge of the premises, and that the breach of the peace was not beyond the control of the licensee or his employee, and was the result of this 'lack of supervision. Art. 667-1(e), Vernon’s Penal Code; Texas Liquor Control Bd. v. McGee, Tex.Civ.App., 314 S.W.2d 678, writ ref., n. r. e. This case is distinguishable from Texas Liquor Control Board v. Luke, Tex.Civ.App., 340 S.W.2d 504, writ ref., where the Board did not introduce any evidence, and the record was undisputed that the licensee had no intimation that an employee had left the premises and would shoot a man outside the premises. Texas Liquor Control Bd. v. Champion, Tex.Civ.App., 336 S.W.2d 918, no writ his-vtory, is not in point in that the breach of peace occurred there while the premises were under the control of a. peace officer.

The judgment of the trial court is reversed and here rendered affirming the order of the assistant administrator of the Texas Liquor Control Board.


author: COLEMAN, Justice.

text:
    Donald L. HOYT et al., Appellants, v. Walter N. GEIST et ux., Appellees.
    No. 14062.
    Court of Civil Appeals of Texas. Houston.
    Jan. 24, 1963.

      Sonfield & Sonfield, Robert L. Sonfield, Robert L. Sonfield, Jr., Houston, for appellants.
    Collins & Moore, Fred A. Collins, Houston, for appellees.
   COLEMAN, Justice.

This is a suit brought by Donald L„ Hoyt and Harry Dodd, individually and as representatives of a class, to enjoin Walter N. Geist and his wife, Luana Geist, from conducting a business at the premises, owned by them in Brae Burn Terrace, a. subdivision in Harris County, Texas, which* they allege constitutes a violation of sub-, division restrictions. This appeal has been: taken from a judgment denying injunctive relief.

The trial court filed findings of fact and conclusions of law. There is no attack* on the finding that defendants knew when they purchased their property that among' the restrictions imposed on the subdivision there was one reading: “All tracts in said' addition shall be used for single family-private residence only.”

Walter Geist testified that he was conducting the business of an electrical contractor on his property. He testified that he does mostly maintenance work and that* he does not repair electrical appliances as a business. He testified that he has constructed a 30' by 60' building behind his-residence, which is divided into a main shop and three KK by 12' rooms. He uses*one of the rooms for an office, one is. equipped as a kitchen, and the other as a. bedroom for his daughter’s use on visits. In the shop room he keeps a lathe, drill' press, welding equipment, buffers, polishers, sprays and hand tools. He keeps materials, for use in his business in the shop although-most of the material for a job is ordered' from a supplier and delivered to the job-, site. Most of his business is conducted on-the job site although he works in his shop ■ on occasions. He has few business visitors. He conducts business over his telephone-which is listed in his business name, Geist Electric Company. He does not maintain an office away from his home. The shop and machinery therein are used primarily as a hobby shop.

The trial court found that the activities of defendants do not constitute or threaten to become an annoyance, nuisance, or inconvenience to the neighborhood and that such activities do not amount to a substantial violation of the residential restrictions.

The trial court also found that “residents in the immediate neighborhood of plaintiffs engage in activities closely similar to the ■complained-of activities of defendants and did so for several years prior to January 16, 1960, with no protest having been made.”

While the covenant with which we •are concerned provides that the property can be used for “single family private ■residence only,” an injunction will not issue unless there is a substantial violation of the covenant.

In Southhampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516, the Supreme Court of Texas held: “* * * the renting of a room or rooms in a private residence, which is merely incidental to its mse as a family residence, does not violate .a restriction limiting the use of the property to a single-family residence.”

In Protestant Episcopal Church Council v. McKinney, 339 S.W.2d 400, Tex.Civ.App., writ ref., where the court had before it the question of whether the use of property as a residence and for purposes other than a residence violated a covenant restricting use to residence purposes only, the approach made by the court to the problem is significant. The court said:

“The language of the restrictive covenant is not ambiguous. It prohibits the use of the property for any purpose except ‘for residence purposes only’. There has been no abandonment of the restriction. The findings of fact .and the evidence show the usage of the property by appellant to be ‘first, residence therein by either a Priest or Postulant for Holy Orders’. • This use is not in violation of the restriction but it is not the ‘only’ use that appellant makes of its property. Additional uses, as above set out, are such that it is apparent that appellant’s use of its property is not limited to ‘residence purposes only’. Such additional uses are at least technical violations of the restrictive covenant. These additional uses are not incidental to the use of the property as a residence but are the principal uses for which appellant maintains the property. The question presented is whether under all the circumstances this is such a breach that appellees are entitled to injunctive relief.”

In this case the trial court, by finding no material violation of the restrictions, and refusing a requested finding to the effect that the restrictions had been violated by appellees, has found in effect that the use made of the property for business purposes was incidental to its use as a residence. The use made of the premises by appellee was unobtrusive and resulted neither in appreciable damage to appellants’ property or to neighboring property nor inconvenience, annoyance, or discomfort to appellants or to neighboring residents. The business use is reasonably incidental to residential use and constitutes a nominal or inconsequential breach of the covenant. Moore v. Stevens, 90 Fla. 879, 106 So. 901, 43 A.L.R. 1127.

In Protestant Episcopal Church Council v. McKinney, supra, the court held:

“The general rule is that to entitle a petitioner to injunctive relief there must be established an actual and substantial injury or an affirmative prospect thereof. 43 C.J.S. Injunctions § 22, p. 439; Smiley v. City of Graham, Tex.Civ.App., 37 S.W.2d 289; Sanitary Appliance Co. v. French, Tex.Civ.App., 34 S.W.2d 673; Gambrell v. Chalk Hill Theatre Co., Tex.Civ.App., 205 S.W.2d 126, (Ref. N.R.E.); Hinton v. D’Yarmett, Tex.Civ.App., 212 S.W. 518.
“However, an exception to the above stated general rule is found in cases holding that a covenant restricting the use of land may be enforced by injunction where a distinct or substantial breach is shown, without regard to the amount of damages caused by the breach, and that in such cases it is not necessary to show the existence of any particular amount of damages or to show that the injury will be irreparable. See 43 C.J.S. Injunctions § 87, p. 585; Evangelical Lutheran Church of Ascension of Snyder v. Sahlem, 254 N.Y. 161, 172 N.E. 455; Johnson v. Mt. Baker Park Presbyterian Church, 113 Wash. 458, 194 P. 536.
“Although the existence or extent of damages in such cases is not controlling, it is material, and must be shown in order to come within the exception, that there is’ a distinct and substantial breach of the restrictive covenant. In our opinion the evidence supports the conclusion that the breach of the restrictive covenant in the instant case is a distinct and substantial one. It therefore comes within the exception to the general rule.”

The evidence in.this case failing to show damage, annoyance or inconvenience to the named plaintiffs or the neighboring property owners, does not establish a distinct and substantial breach of the restrictive covenant. Injunctive relief, therefore, was properly denied, even though the defendant’s testimony established* as a matter of law a technical breach of the use covenant.

Appellant has presented 27 points of error complaining either of the findings of fact and conclusions of law filed by the trial court or of the failure of the trial court to make requested findings of fact and conclusions of law. The second point of error reads: “The trial court erred in its 11th finding of fact.” We are unable to determine from this point whether appellant contends that there is no evidence, or insufficient evidence, to support the trial court’s finding of fact, or whether it is his contention that the finding is contrary to the great weight and preponderance of the evidence. When we consider the argument under the point and the prayer for relief, we conclude that it is a no evidence point. “No Evidence" and “Insufficient Evidence” Points of Error, 38 Tex.Law Review, pp. 361-372. All other points relating to the findings of fact made by the trial court are worded in the same manner, and we conclude that they are also “no evidence” points. Since the findings of fact filed by the trial court are supported by evidence of probative force, these points are overruled.

The trial court concluded as a matter of law that the plaintiffs were not entitled to the requested permanent injunction. For the reasons stated in this opinion this conclusion was correct. Any erroneous conclusions of law would be ineffectual to destroy the findings of fact. Keith v. Connally, 85 S.W.2d 788, Tex.Civ.App. Erroneous conclusions of lav/ or conflicts between conclusions of law, do not require reversal where a proper judgment is rendered. Rule 434, Texas Rules of Civil Procedure.

The trial court is required to file findings of fact when requested on ultimate and controlling facts only. Golden State Mutual Life Insurance Company v. Adams, 340 S.W.2d 77, Tex.Civ.App.; Tijerina v. Botello, Tex.Civ.App., 207 S.W. 2d 136. The failure of the trial court to file additional findings of fact and conclusions of law requested by appellants was not harmful error since such findings or elements thereof were disposed of directly or indirectly by the conclusions of law and findings of fact filed by the court. Wentz v. Hancock, Tex.Civ.App., 236 S.W.2d 175, error ref.; Wade v. Taylor, Tex.Civ.App., 228 S.W.2d 922.

The judgment of the trial court is affirmed.