author: LANGDON, Chief Justice.

text:
    Jefferson DAVIS, Appellant, v. ZAPATA PETROLEUM CORPORATION, Appellee.
    No. 5475.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 25, 1961.
    Rehearing Denied Dec. 6, 1961.

      Perkins, Bezoni, Kirwan & McWhorter, Midland, for appellant.
    W. B. Browder, Jr., Stubbeman, McRae, Sealy & Laughlin, Midland, for appellee.
   LANGDON, Chief Justice.

This is a suit brought by appellant, Jefferson Davis, against Zapata Petroleum Corporation, appellee, for damages resulting from the loss of an oil, gas and mineral lease by reason of the alleged breach of a letter agreement dated January 7, 1958, between appellee, Zapata Petroleum Corporation, and Plarry Adams, acting therein for himself and his three associates, L. H. Tyson, Dr. G. T. Hall, and the appellant, Davis.

Appellant and his three associates were the owners of an oil, gas and mineral lease covering 3840 acres of land in Martin County.- By the terms of a “farmout” letter dated January 7, 1958, appellant and his associates agreed to assign a portion of such lease to Zapata, and Zapata agreed to commence drilling operations on the assigned premises with either a cable tool or a rotary rig, on or before February 1, 1958, and thereafter, with due diligence and in a workmanlike manner, continue its development operations upon the assigned premises until: (a) such operations resulted in production; or (b), 30 days after giving notice of its intention to abandon such operations. Pursuant to the terms of the farmout letter, the assignment was placed in escrow, and Zapata timely commenced drilling operations on the assigned premises with the use of a cable tool rig; but later gave notice, as provided by paragraph II — (b) of the farmout letter, that it desired to abandon operations on the lease.

The oil and gas lease involved in this controversy was executed and delivered on February 4, 1948. It provided for a primary term of ten years, which expired on February 4, 1958; however, the lease contained a provision (paragraph 5 thereof) for extending the lease beyond the primary term. The pertinent part of paragraph 5 is set out as follows:

“ * * * If at the expiration of the primary term oil, gas or other mineral is not being produced on said land, but Lessee is then engaged in drilling or reworking operations thereon, the lease shall remain in force so long as operations are prosecuted with no cessation of more than thirty (30) consecutive days, * *

Zapata commenced its operations on the lease under the farmout agreement just three days before the expiration of the primary term of the lease. Notice of its intention to cease such operations was communicated to appellant Davis and his associates by letter dated March 14, 1958. Following receipt of such notice, appellant Davis and his associates drew down the assignment previously placed in escrow, and made a new trade with Mr. J. C. Barnes to take over the operations on the lease.' Pursuant to the new agreement, Barnes moved on the lease with a big rotary rig, preparatory to re-entering and attempting to complete an old well identified in the record as the Callcry & Hurt Well, previously drilled to a depth of 11,500 feet by others (not parties to this suit) and abandoned as a dry hole. Appellant Davis contends that,' after having made the trade with Barnes, and after Barnes had moved on the lease with the big rotary rig for the purpose of continuing operations thereon, they were compelled to mqve off the lease and terminate all operations by reason of the prior termination of the lease due to the failure of Zapata to commence its operations on the assigned premises in good faith, and its failure thereafter to continue its operations in good faith and with due diligence as it was obligated to do under the terms and conditions of the farmout agreement, causing appellant Davis to suffer the damages complained.

Prior to the institution of this suit, appellant Davis filed a suit in the district court of Martin County against E. T. Strain, Waddell Strain, Louisiana Land and Exploration Company, and Earl B. Powell and wife, Jane B. Powell, as owners of the minerals in the land covered by the oil and gas lease which was the subject of the farmout agreement involved here. The suit was No. 2124 on the docket of the District Court of Martin County, styled Jefferson Davis, Plaintiff, vs. E. T. Strain, et al, Defendants. By such suit Davis sought to obtain a decree in the nature of a declaratory judgment, decreeing the lease in question to be a valid, subsisting lease in full force and effect, or, in the alternative, damages for his wrongful eviction from the lease. The case was submitted to the jury on special issues, which resulted in jury findings adverse to Davis. The jury found that E. T. Strain and Louisiana Land & Exploration Company repudiated the title of Davis to the lease in question on or about March 30, 1958; that Waddell Strain concurred in and adopted, by his acts and conduct, the repudiation of Davis’ title by E. T. Strain to the oil and gas lease; that the drilling operations of Zapata were commenced in good faith, but were not continued in good faith until March 14, 1958; and that Zapata ceased to conduct good faith operations on the lease on February 18, 1958. Based on the jury verdict, the trial court entered a take-nothing judgment against Davis as plaintiff in that suit.

Following the adverse judgment in cause No. 2124, Davis instituted the present proceedings against Zapata. In the trial court, appellant Davis attempted to introduce evidence of the words, acts and conduct of E. T. Strain, representatives of Louisiana Land and Exploration Company, and of Waddell Strain in their dealings with Davis and Barnes, for the purpose of showing that these people had repudiated the lease and had evicted Barnes and the appellant Davis from the leased premises by reason of Zapata’s alleged failure to conduct good faith drilling operations on the leased premises. The admission of such evidence was objected to on the grounds that it was hearsay as to Zapata, and was res inter alios acta in that it constituted an attempt to introduce into evidence acts and declarations of strangers to the proceedings, or of one of the parties to the action in his dealings with strangers. The trial court excluded the testimony, the error, if any, being preserved for our consideration by a proper bill of exception. Appellant Davis also offered and attempted to introduce to the jury, for the purpose of showing that the lease had been judicially terminated, the entire judgment, including the jury findings which were set out in the judgment entered in Cause No. 2124 (plaintiff’s Exhibit 15). Zapata objected to the introduction of the judgment in the former cause on the ground that it was not a party to the proceedings; that the findings of the jury in that case were not binding on it; that it was prejudicial to the rights of Zapata; and, further, that it was also res inter alios acta. Based on such objections, the trial court excluded the judgment from consideration of' the jury, but admitted it for the court’s consideration alone. The trial court’s error, if any, in excluding the judgment from consideration of the jury has likewise' been-preserved, - and is one of the points upon which this appeal is predicated.

In addition to certain special exceptions and denials contained in its answer to appellant’s pleadings, Zapata, by way of affirmative defenses, plead: (1) that it had fully performed and discharged all of the covenants, obligations, etc. imposed on it by any agreement with plaintiff; (2) that plaintiff, having joined in and become a part of the operations and performance of defendant (in its operations on the lease), is now estopped to prosecute this action against defendant; and (3), that if plaintiff ever had any cause of action against defendant, plaintiff joined in and accepted the work done and had by defendant, and the suit here attempted to be asserted by plaintiff is barred by the law of laches and stale demand, waiver and estoppel.

The case was submitted to the jury on ten special issues. All of the defensive issues submitted to the jury were answered favorably to defendant Zapata. The jury also found that Zapata had commenced its operations on the leased premises in good faith, but “hung” on the question of whether the operations were thereafter continuously conducted in good faith and with due diligence. The jury found that Davis and his associates had accepted the well drilled by Zapata as a well drilled in compliance with the terms of the contract, and had represented to Zapata that they would take over the drilling of such well as a well drilled in compliance with the terms of the contract; further, it was found that Davis and his associates agreed to release Zapata from the contract, and that Zapata relied upon the statement of Davis and his associates that they would take over the drilling of such well as a well drilled in compliance with the contract. The trial court, after having been advised that the jury could not agree on Special Issue No. 2, or the damage issue, Special Issue No. 7, accepted the partial verdict, dismissed the jury, overruled appellant Davis’ motion for mistrial, granted Zapata’s motion for judgment, and entered judgment for appellee that appellant take nothing. From such judgment appellant has perfected his appeal, and this matter is now before us.

Appellant’s second and third points are complaints that the trial court erred in excluding from the record all testimony concerning the repudiation of the lease by the surface and mineral owners due to alleged bad faith operations by defendant, and in excluding from the jury the judgment entered in a prior suit whereby the lease in question was judicially terminated. Since these two points are closely related, in that both involve questions of evidence, we have elected to discuss them before discussing appellant’s Point One and Point Four, which raise questions relating to the court’s charge and the propriety of the court’s judgment entered on the partial verdict returned by the jury in this cause.

On March 29, 1958, following Zapata’s written notice of its desire to terminate its operations on the lease, J. C. Barnes, having made a trade with Davis to continue operations, moved a big rotary rig on the premises. After the rig was operating for about three days, the landowner, Strain, and the mineral owner, Louisiana Land and Exploration Company, repudiated the lease, denied the good faith of the holding operation that was carried on by Zapata, and denied that such holding operation was sufficient (under the terms of the lease) to maintain the lease beyond its primary term; whereupon Barnes abandoned his operation and moved the rig off the premises at a cost to him of $4,000 to $5,000. The repudiation of the lease was made to Mr. J. C. Barnes and to appellant Davis. The landowners (the Strains) threatened suit to cancel the lease if the operations of Barnes were continued. Objection having been made, the testimony of Davis, Barnes and Waddell Strain as to the repudiation of the lease by the landowners was excluded by the court. Also excluded was the testimony of Barnes and of Glen L. Evans, the division manager of Louisiana Land and Exploration Company, regarding a letter (likewise excluded) from the mineral owner, Louisiana Land and Exploration Company, to Zapata, repudiating the lease; a copy of such letter having been directed to Barnes.

Appellant contends that the testimony relating to repudiations of title made by the land and mineral owners was offered, not to prove the truth of such assertions, but to prove that such statements had been made, and to show the consequences that resulted from such statements, and tha't such testimony was clearly admissible under recognized exceptions to the hearsay rule.

Under the facts of this case, we do not believe such evidence was admissible. Neither the Strains nor Louisiana Land and Exploration Company were parties to this suit. Neither was Barnes a party to this proceeding. Being strangers to the proceedings here involved, the testimony of Barnes, a stranger, concerning his dealings with, and the acts and declarations of, other strangers (the Strains and Louisiana Land and Exploration Company) could have no bearing on any material issue in this case, and was properly excluded on the ground of irrelevancy. By the same token, the testimony of Davis, one of the parties to the action, as well as that of Waddell Strain and Glen L. Evans was properly excluded. The prohibition of such testimony •on the ground of irrelevancy has application to the acts and declarations not only of strangers, but also to the parties to the action in their dealings with strangers. In addition, the trial court excluded a letter written by Louisiana Land and Exploration Company to Zapata in which it was asserted that the lease had expired because of the failure of continued operations. Such letter being from a stranger to these proceedings, and containing an ex parte self-serving declaration, was incompetent and without probative force. Facts such as these, sought to be put in evidence, including the letter, are known in the technical language of the law as res inter alios acta, and are excluded because (as said in Stuart v. Kohlberg, Tex.Civ.App., 53 S.W. 596, 597), ■“ ‘ * * * it would be manifestly unjust to admit, since the conduct of one man under certain circumstances, or towards certain individuals, varying, as it will necessarily do according to the motives which influence him, the qualities he possesses, and his knowledge of the character of those with whom he is dealing, can never afford a safe criterion by which to judge of the behavior of another man similarly situated, or of the same man towards other persons.’ Tayl.Ev. § 317.” Other cases in which the same principle of law is announced are: Gruss v. Cummins, Tex.Civ.App., 329 S.W. 2d 496; Taylor v. McFatter, Tex.Civ.App., 109 S.W. 395; and Missouri, K. & T. Ry. Co. of Texas v. A. E. Want & Co., Tex.Civ.App., 179 S.W. 903.

If the testimony was not offered to prove the truth of the matters stated by Mr. Strain and Louisiana Land and Exploration Company, we fail to see how it could be relevant or material to any issue joined between the parties to this cause. This was a suit by Davis against Zapata for an alleged breach of the farmout agreement. The question involved in this litigation is not whether the operations of Zapata zvere sufficient to hold the lease under the terms of the oil and gas lease, but whether the operations of Zapata were sufficient to satisfy its obligations to the appellant Davis and his associates under the terms and conditions of the farmout letter of January 7, 1958. The statements and opinions of both the Strains and of Louisiana Land and Exploration Company were concerned, not with the question of whether Zapata had or had not satisfied its contractual obligations to appellant Davis and his associates, but solely with the question of the termination of the oil and gas lease. The opinions expressed by them were speculative and conjectural in nature, and were based upon questions of fact and law which they had neither the competency nor the authority to decide. Page v. Scaramozi, Tex.Civ.App., 288 S.W.2d 909 (err.ref., n. r. e.) ; Seydler v. Baumgarten, Tex.Civ.App., 294 S.W.2d 467 (err. ref., n. r. e.) ; Turner v. Stoker, Tex.Civ.App., 289 S.W. 190 (err. ref.) ; Dunlap Hardware Co. v. E. F. Elmberg Co., Tex.Civ.App., 252 S.W. 1098; McCormick & Ray, Texas Law of Evidence, Sections 1391, 1399.

Appellant’s second point is accordingly overruled.

Appellant’s third point is the complaint that the trial court erred in excluding from the jury the judgment rendered in a prior suit, whereby the lease was judicially terminated.

It is undisputed that Zapata was not a party to the prior suit, in which the judgment sought to be introduced here, was rendered. As to Zapata, the judgment was res inter alios acta, and could have no effect whatever. The purpose for which a judgment is sought to be introduced, often and most generally determines whether it is admissible. The question of whether or not the oil and gas lease was maintained in effect after the expiration of its primary term on February 4, 1958, was one of the questions in dispute in this suit, and the fact that it was a disputed issue was stipulated and agreed upon by both sides. The stipulation was read to the jury and was placed in evidence as plaintiff’s (Davis’) Exhibit No. 1. In addition, the judgment offered in evidence was offered in its entirety, and no effort was made by appellant to select the admissible parts, if any, although the judgment contained the court’s entire charge, including the special issues and the jury’s findings thereon. Among the findings included in the judgment were express findings to the effect that E. T. Strain and Louisiana Land and Exploration Company repudiated the title of Davis to the leasehold estate in question; that the drilling operations of Zapata were not conducted in good faith, etc. — these being the facts plead by appellant which he necessarily relied upon, and under his theory any recovery in the case at bar depended upon the establishment of identical facts, by favorable jury findings.

In general, a judgment in another cause finding a fact now in issue is not admissible. The fact that another jury had theretofore, in another case, determined the very questions at issue in the present trial would have had a strong tendency to induce the jury in the subsequent case to reach the same conclusion, and would therefore have been very prejudicial. Such judgment, under well settled rules, could not have been introduced in evidence to establish the facts on which it was rendered. Jones v. Teat, Tex.Civ.App., 57 S.W.2d 617, aff’d. Tex.Com.App., 89 S.W.2d 987; Wiggins v. Holmes, Tex.Civ.App., 39 S.W.2d 162 (err. ref.) ; McCormick & Ray, Texas Law of Evidence, Section 1279.

While we recognize the rule announced in McCamant v. Roberts, 66 Tex. 260, 1 S.W. 260, that a judgment is always admissible in evidence for the purpose of showing the fact of its own existence, it is not admissible for the purpose of showing what matters were adjudicated except where the parties and the subject matter in each suit are the same, or where the matter determined was of a public nature (in rem) and from public considerations should be considered binding upon all persons.

Clearly, the entire judgment was not admissible, and the rule applies that where evidence in the form of a letter, document, deposition or conversation contains several facts, some of which are inadmissible, the burden is on counsel for the of-feror to select the admissible parts. Should he fail to do this, and offer the entire instrument or conversation, he cannot complain if the offer is rejected by the judge on proper objection. McCormick & Ray, Texas Law of Evidence, Section 21 at page 20 (together with cases cited thereunder).

Appellant’s third point is accordingly overruled.

This brings us to a consideration of appellant’s first point, by which it is contended that the trial court erred in overruling plaintiff’s motion for mistrial and in granting defendant’s motion for judgment on the partial verdict of the jury, for the reason that the jury was hopelessly deadlocked on Special Issue No. 2 which issue, appellant asserts, was the controlling issue of fact as to defendant’s liability; in that, if answered favorably to plaintiff, such would have established defendant’s breach of contract by its failure to conduct drilling operations in good faith, to which the issues that were answered do not constitute a defense.

We believe such contention must also be overruled. There is sufficient evidence in the record to support the jury-findings that Davis and his associates accepted the well drilled by Zapata on the assigned premises as a well drilled in compliance with the terms of the farmout letter; that Davis and his associates agreed to release Zapata from the terms of the contract set out in the farmout letter; and that Zapata relied upon the representation of Davis and his associates that they would take over the drilling of such well as a well drilled in compliance with the terms of the farmout letter.

Appellant argues that there was no acceptance, waiver or estoppel on the ground that he had no knowledge or information concerning the operations conducted by Zapata. It is true that appellant Davis denied that he had any knowledge of the manner in which Zapata had conducted its operations, or that he ever accepted the well, or agreed to release Zapata from its obligations under the farmout letter.

The testimony of Hugh Leidtke, president of Zapata, and of L. H. Tyson, an associate of appellant Davis, bearing on the question of knowledge, acceptance and release, was directly contrary to that of Davis. According to the testimony of Mr. Leidtke, when Zapata advised appellant and his associates of its desire to cease operation, by letter dated March 14, 1958 (pursuant to paragraph 11(b) of the farmout letter), a meeting was held in the office of Mr. Hamilton McRae, on March 14 or 15, with Davis, Tyson and Leidtke participating. According to Leidtke, Mr. Davis explained at this meeting that a deal had been worked out with a Mr. J. C. Barnes to take over the deal, and that it was his desire and the desire of his associates, Mr. Tyson, Mr. Adams and Doctor Hall, to release Zapata from its obligations at that time, take the lease back, and make a deal with J. C. Barnes; and that he (Leidtke) had agreed to it. Leidtke asserted that his company was verbally released at this meeting by both Mr. Tyson and the appellant Davis. He testified, “ * * * All I know, they each said to me, 'you are released and we are happy we are taking this thing over’ * * Leidtke also testified that subsequent arrangements were made to continue the cable tool operations initiated by Zapata until Barnes could move on, the cost of such cable tool operations after March 14 or 15 to be shared one-third by Zapata, one-third by Barnes, and one-third by Davis and his associates. Tyson confirmed that the meeting was held. He said that Mr. Leidtke had discussed with them the cable tool operations that had been conducted by Zapata on the lease in question; that he knew how these operations had been conducted and knew that Zapata had not drilled very deep. A portion of Mr. Tyson’s testimony is set out:

“Q. Please state whether you then released Mr. Leidtke from the obligations under that letter agreement? A. Yes, I released Mr. Leidtke.
“Q. Did the others that were there, your associates, agree too ? A. Everybody agreed to release him and he agreed to pay a third of the cost for a certain length of time.
“Q. Did Jefferson Davis agree to that? A. Yes, as I remember he did. We all agreed to it.”

While there is an obvious conflict between the testimony of appellant Davis and that of the witnesses Leidtke and Tyson, as to whether Davis himself had any knowledge of the manner in which Zapata had conducted its operations, or whether he had released, or agreed to release, Zapata from its obligations under the farmout letter, it affirmatively appears from Davis’ own testimony that Davis had commenced negotiations as early as March 16 (following Zapata’s written notice on March 14) to put someone else on the lease. Davis testified that he contacted Mr. J. C. Barnes on March 16 and made a trade with him the following day (March 17) to re-enter the Callery & Hurt Well (an old well on the leased premises which had previously been plugged and abandoned at a depth of 11,500 feet, prior in time to any of the contractual relations between the parties to this suit), and that, thereafter, about March 29, Barnes moved a big rotary rig on the premises and prepared to re-enter the Callery & Hurt Well. Davis, on direct examination, answering the questions propounded by his attorney, Mr. Bezoni, testified as follows:

“Q. All right, now, tell the court and jury what the deal was as per- - centagewise and obligationwise of the parties that was agreed upon in Mr. McRae’s office? A. The agreement was that since we had the letter from Zapata stating that they were going to turn it (the lease) back to us that we would take it over. Mr. Barnes was to pay a third, Zapata was to pay a third and Hall and Adams and Tyson and myself were to pay a third of the cost of operating the spudder whom Zapata had put on the lease.”

Davis contends that Mr. Leidtke was not present at the meeting referred to above, and that he had never attended any meeting with Leidtke in Mr. McRae’s office. Whether there was one meeting or two meetings, and whether the meeting attended by Mr. Leidtke and Mr. Tyson in Mr. McRae’s office was also attended by Mr. Davis, and whether appellant Davis and his associates did, at that time, release Zapata, accept the well, take back the lease and draw down the assignment, etc., were disputed questions of fact, and were for the jury to resolve.

Appellant argues that if Zapata should contend that the "acceptance” of the well by Davis and his associates as a well drilled in compliance with the farmout agreement (as found by the jury) constituted a waiver of the right of plaintiff to sue defendant for the bad faith operations, such theory is of no avail to defendant, because Davis did not have full knowledge of the material facts. We agree with appellant’s statement of the law, that a waiver is an intentional release or relinquishment of a right that is, at the time, known to the party making it; and without full knowledge of material facts, there can generally be no waiver. Roberts v. Griffith, Tex.Civ.App., 207 S.W.2d 443 (err. ref.); Ford v. Culbertson, Tex.Civ.App., 300 S.W.2d 152; 158 Tex. 124, 308 S.W.2d 855; Bering Mfg. Co., v. W. T. Carter & Bro., Tex.Civ.App., 255 S.W. 243, aff’d. Tex.Com.App., 272 S.W. 1105.

However, in the case at hand, no issue was requested by either party on the question of knowledge or intention, and none was submitted. After the verdict was returned and received by the court, neither party requested of the trial court that it make and file written findings. Rule 279, Texas Rules of Civil Procedure, provides, in part, as follows:

“Upon appeal all ■ independent grounds * * * of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived; but where such ground of * * * defense consists of more than one issue, if one or more of the issues necessary to sustain such ground of * * * defense, and necessarily referable thereto, are submitted to and answered by the jury, and one or more of such issues are omitted, without such request * * *, and there is evidence to support a finding thereon, the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, make and file written findings on such omitted issue or issues in support of the judgment, hut if no such written findings are made, such omitted issue or issues shall be deemed as found by the court in such manner as to support the judgment.” (Emphasis supplied.)

Since neither party to this proceeding made any request for additional issues, or for findings to be made, and the court having refrained from filing any written findings of its own, if there were any omitted issues; we are required by the rule to deem such omitted issues, if any, as having been found by the court in such manner as to support the judgment.

Appellant did not plead, alternatively or otherwise, that the acceptance of the well and/or the alleged release of Zapata from its obligations under the farmout agreement was obtained as the result of either fraud, accident or mistake, and while we have considered all these questions, as well as the assertion made by appellant that “no consideration” had been established for appellant’s agreement to accept the well as a well drilled in compliance with the contract, as found by the jury, we have concluded that appellant’s first point should be, and it is accordingly, overruled.

Appellant’s fourth and last point is based on the contention that the trial court erred in refusing to give the following instructions, presented by plaintiff, in its charge to the jury:

“You are instructed that in order to maintain an oil and gas lease in effect after the expiration of its primary term without production, the following must take place:
“(a) Drilling must have commenced.
“(b) The drilling must have been in good faith.
“(c) The drilling must continue in good faith and with due diligence.” (Emphasis ours.)

The only obligation imposed upon defendant Zapata with respect to the drilling of a well was the obligation imposed upon it by the terms of the farmout agreement; and the instructions given the jury related, and we believe properly so, not to the oil and gas lease, but to the contract or farmout agreement under which said oil operator was drilling said well. The farmout agreement did not specifically provide that Zapata was to conduct its operations in such manner so as to maintain the oil and 'gas tease in effect after the expiration of' its primary term, but it did otherwise specifically provide the manner in which the operations were to be conducted, and such requirements might well have been greater, or less, than those required to maintain the oil and gas lease in effect. We believe the trial court committed no error in refusing to submit the requested charge as presented by appellant. We have considered other questions raised in the same point, and without further discussion, say that they are likewise overruled.

Having considered all points raised by appellant, and having found no reversible error, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    Fred NAGELSON, Appellant, v. FAIR PARK NATIONAL BANK, Appellee.
    No. 15873.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 3, 1961.
    Rehearing Denied Dec. 1, 1961.

      Woodgate, Richards & McElhaney, John H. McElhaney, Dallas, for appellant.
    Strasburger, Price, Kelton, Miller & Martin and Royal H. Brin, Jr., Dallas, for appellee.
   DIXON, Chief Justice.

Appellant Fred Nagelson brought this suit against Fair Park National Bank, Charley P. White and Tony Burrescia for damages for an assault and battery committed on appellant by White and Burrescia, who were attempting to repossess an automobile upon which the Bank held a chattel mortgage. White and Burrescia are partners in a used car business under the name of Big Wheel Motor Company. Nagelson is the operator of an automobile service station.

The Bank filed a motion for summary judgment. The court severed appellant’s cause of action against the Bank from his cause of action against White and Bur-rescia. Thereafter the Bank’s motion for summary judgment was sustained and judgment was accordingly entered that appellant Nagelson take nothing against Fair Park National Bank.

Herman Moore, an employee of appellant Nagelson, purchased an automobile from Big Wheel Motor Company, and as part of the purchase price executed an installment note and mortgage. The note and mortgage were transferred and assigned by Big Wheel Motor Company to Fair Park National Bank.

Some time later appellant Nagelson sold a set of tires to his employee Moore. These tires were put on the automobile purchased by Moore, replacing the old tires which were on the car at the time of its purchase by Moore from Big Wheel Motor Company.

Moore became delinquent in his payments to the Bank. The Bank, which had right of recourse under the terms of the endorsement to the Bank of Moore’s paper, notified Big Wheel Motor Company that Moore was delinquent in his payments.

Soon thereafter White and Burrescia set about to repossess the automobile from Moore. Moore was willing to relinquish the car, but upon learning of the imminent repossession, Nagelson placed the car on an elevated grease rack and started removing the new tires in order to replace them with the old tires which were on the car at the time of the sale by White and Bur-rescia. While Nagelson and Moore were so engaged White and Burrescia arrived on the scene. A controversy arose over the tires. Nagelson claimed the tires belonged to him. A fight took place. White and Burrescia repossessed the automobile together with the tires which were the subject of the dispute. Nagelson thereafter filed this suit for damages for assault and battery.

Marvin Hickman, Assistant Vice-President of the Bank, in an affidavit explained how Herman Moore’s note and mortgage were handled so far as the Bank was concerned. When Big Wheel Motor Company sell an automobile the Bank carries their dealer paper, that is, the Bank discounts the loans made to Big Wheel Motor Company’s individual buyers. If the purchaser of an automobile fails to make his payments, the Bank, pursuant to its right of recourse, simply takes the unpaid balance out of the Big Wheel Motor Company’s reserve account which is set up for that purpose. Big Wheel Motor Company, that is White and Burrescia, then take whatever steps they choose to minimize their loss because of the default. This procedure was followed in the case of Herman Moore. When Herman Moore became delinquent in his payments, White and Burrescia, the partners operating Big Wheel Motor Company, were notified by the Bank, and the indebtedness still owing from Herman Moore was charged against the reserve account of Big Wheel Motor Company.

Hickman further stated in his affidavit that he did not in any way tell White and Burrescia to repossess the automobile purchased by Moore; that he alone at the Bank handled the Big Wheel account; that he did not know until some time later that they had repossessed the car; that he never instructed or inferred that White and Bur-rescia should repossess the car; and that none of the officers and employees of the Bank have any control over White and Burrescia in their buying, selling, trading or repossessing of automobiles.

Charley White and Toney Burrescia, in affidavits also attached to the Bank’s motion for summary judgment, corroborated the statements made by Hickman, in his affidavit. They said their transfers and assignments to the Bank of automobile notes and mortgages were always made with recourse against them. When the Bank informed them that Moore was delinquent, they took it upon themselves to go and get the car back so they could sell it and get what money they could out of the car; and that the Bank never instructed, suggested or in any way inferred that they should repossess the automobile bought by Moore. They further swore that neither of them had ever worked for the Bank in any capacity; that the Bank has no ownership or control over their business; that no officer or employee at the Bank tells them how to run their affairs; and that to their knowledge no one at the Bank knew of the repossession of Moore’s car until after it had been completed.

Opinion

In his brief appellant Nagelson presents one point on appeal. He asserts that the court erred in rendering summary judgment absolving the Bank from liability for the tort committed by persons repossessing an automobile upon which the Bank was the only lien holder, especially when appellant had answered the motion for summary judgment with controverting affidavits tending to prove that the tort-feasors were acting in the interest of the Bank, as its agents, and raising genuine issues of fact material to such issue.

Appellant filed only one controverting affidavit and it is fatally defective. It does not show, as provided by Rule 166-A (e) Texas Rules of Civil Procedure, that it is made on personal knowledge and does not affirmatively show that affiant is competent to testify to the matters stated therein. Lawyers Surety Corp. v. Sevier, Tex.Civ.App., 342 S.W.2d 604; Gaston v. Copeland, Tex.Civ.App., 335 S.W.2d 406; Duffard v. City of Corpus Christi, Tex.Civ.App., 332 S.W.2d 447; Page v. Pan American Pet. Corp., Tex.Civ.App., 327 S.W.2d 469; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396.

The controverting instrument was signed by one of appellant’s attorneys who merely swore that “the facts contained in the foregoing pleadings are true and correct to the best of his knowledge and belief.” In 2 C.J.S. Affidavits § 26 page 981 it is recognized that affidavits on information and belief are sometimes sufficient. But the text further says, “However, the averments must be direct and positive and not on information and belief if the statute which provides for the making of the affidavit expressly requires the facts to be positively stated * * Texas decisions are in accord with the rule as above quoted. St. Paul Fire & Marine Ins. Co. v. Earnest, Tex.Civ.App., 293 S.W. 677 (Syls. 26 & 27); Scudder v. Burrus Mill & Elevator Co., Tex.Civ.App., 285 S.W. 681; Graves v. M. Griffin O’Neil & Sons, Tex.Civ.App., 189 S.W. 778; Abilene Ind. Tel. & Tel. Co. v. Southwestern Tel. & Tel. Co., Tex.Civ.App., 185 S.W. 356; Smith v. Banks, Tex.Civ.App., 152 S.W. 449; Moss v. Whitson, Tex.Civ.App., 130 S.W. 1034; Missouri K. & T. Ry. of Texas v. Pietzsch, 10 Tex.Civ.App. 572, 30 S.W. 1083; Spinks v. Matthews, 80 Tex. 373, 15 S.W. 1101; Graham v. McCarty, 69 Tex. 323, 7 S.W. 342; 2 Tex.Jur.2d 416.

The purported controverting affidavit is defective for other reasons. Appellant in his controverting plea refers to, relies on and quotes at length from an alleged oral deposition of Marvin Hickman. But no oral deposition is included in the record which is before us in this appeal.

Appellant also quotes from the alleged testimony of White and Burrescia. But there is no transcript of this alleged testimony in the record and no signature of a court reporter or notary public authenticating the alleged testimony. In a supplemental brief appellant states that this quoted testimony is from a transcript of the testimony of White and Burrescia given at a criminal hearing, upon charges of assault and battery.

Though we have confidence in the integrity of the attorney who made the controverting affidavit, the quotations from the alleged depositions and testimony, unauthenticated as they are, amount to no more than hearsay from outside the record, therefore cannot be given effect as testimony. Riggs v. Bartlett, Tex.Civ.App., 310 S.W.2d 690, 693; Westfall v. Lorenzo Gin Co., Tex.Civ.App., 287 S.W.2d 551; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W. 2d 832; Savage v. Herrin Transfer & Warehouse Co., Tex.Civ.App., 219 S.W.2d 101, 103; Missouri K. & T. Ry. Co. v. Pietzsch, Tex.Civ.App., 30 S.W. 1083; 2 Tex.Jur.2d 418. In its original brief ap-pellee asserts, and the assertion is not denied by appellant, that the transcript of the alleged testimony of White and Burrescia was not even a part of the record before the trial judge.

In its motion for summary judgment ap-pellee says that its plea is based on “the pleadings and the depositions on file, together with the affidavits attached hereto, * * * ”. In its brief appellee says that the oral depositions of appellant Nagelson were taken and were a part of the record before the trial judge when he sustained the motion for summary judgment. This statement is not denied by appellant. The record before us on this appeal does not contain the oral depositions of appellant Nagelson.

From what we have said it is apparent that the record presented by appellant on appeal is not the complete record which was before the trial court. Appellant says that it is not necessary for him to bring up the entire record. We could agree if it were conclusively shown by the partial record before us that a question of fact exists in the case. But the contrary is true. So far as the partial record shows, no question of fact exists. The burden of proof on appeal is on appellant to show error on the part of the trial court. Since the partial record before us fails to disclose error, we shall not presume that the omitted part of the record does show error.

Anyway, we have read the quotations from the alleged deposition and testimony as contained in appellant’s controverting plea, and in our opinion they do not conflict in any material way with the affidavits of Hickman, White and Burrescia attached to appellee’s motion for summary judgment. The affidavits and the alleged oral depositions and testimony are in substantial accord as to the material facts.

Appellant in his supplemental brief asserts that appellee made no challenge at the hearing in the trial court to the sufficiency of his controverting affidavit, did not object to consideration of it by the trial court and made no objection to its inclusion in the transcript on appeal; therefore, this court may properly consider the controverting plea though it technically fails to conform to the rule. In support of this contention appellant cites us to Barron & Holtzoff, “Federal Practice and Procedure”, Rules Ed. § 1237, p. 171; Jno. T. McCoy v. Schuster, D.C., 44 F.Supp. 499; and United States v. Newbury Mfg. Co. D.C., 1 F.R.D. 718.

In answer to the above contention appel-lee in its supplemental brief asserts that ap-pellee’s counsel did raise the matter at the summary judgment hearing and did object to the consideration of the purported quotations in the controverting plea as being the equivalent of an affidavit; but that since appellant brought forward no statement of facts of the hearing on the motion, the objection does not appear in the record.

Thus we are confronted with a situation in which we cannot by examining the record resolve the difference in the respective assertions. Many cases could be cited holding that the burden of proving that there is no genuine issue of any material fact is on the movant in summary judgment proceedings. On the other hand it is equally well established that on appeal the burden is on appellant to show by the record that the trial court erred in some particular. Even if we were to agree with appellant’s contention as to the legal effect of appellee’s alleged failure to object in the trial court to the sufficiency of the controverting plea (we do not so agree), we should not in the present state of the record reverse the trial court’s judgment on the presumption that no such objection was made.

As above stated, we do not agree with appellant’s contention even if it were shown in the record that appellee made no objection at the hearing in the trial court to the sufficiency of appellant’s controverting plea. The deficiencies in our opinion are not merely technical in nature. They go to the very substance of the matter so that the purported controverting affidavit cannot be considered as. anything more than an unsworn pleading.

The authorities cited by appellant are not in point. In McCoy v. Schuster, supra, the trial judge himself ordered the defendant’s testimony to be taken prior to the hearing, swore the witness himself, and the testimony was recorded by the official court reporter. Thus the authenticity of the testimony was known to the court.

In the Newbury Mfg. Co. case, the United States Attorney filed an affidavit showing what he proposed to prove at the trial of the case. The defendant replied with affidavits showing what the affiants would testify at the trial. The trial judge stated that enough had been shown to satisfy him that there were fact issues to be determined. The situation presents no analogy to the present case.

Appellant further contends that we cannot accept the three affidavits offered by appellee as conclusive though they are not contradicted, since they are affidavits by interested parties; therefore they can do no more than give rise to fact issues. In support of this contention appellant cites us, among other cases, to James T. Taylor v. Arlington Ind. School Dist., Tex., 335 S.W. 2d 371.

The general rule as stated in the" above-cited case is that the testimony of an interested witness, even if uncontradicted, ordinarily presents an issue of fact as to the credibility of the witness. However, we do not believe the rule is applicable here. Though Marvin Hickman is an officer of ap-pellee Bank and therefore an interested witness, his affidavit is corroborated by the affidavits of White and Burrescia, who in our opinion are not interested witnesses. They are not parties to the present suit, for appellant’s cause of action against them has been severed from his action against the Bank. They are not employees of the Bank. Moreover, their interest may well be considered adverse to the appellee Bank since it w.ould be to their interest to have an additional defendant to share any liability in the event of judgment in favor of appellant.

But even if White and Burres-cia were to be considered interested witnesses, the general rule relied on by appellant would not apply. One of the exceptions to the rule is that when the testimony of interested witnesses is direct and positive and uncontradicted, and there are no circumstances tending to discredit and impeach them, judgment must be rendered in accordance with their testimony. Gibbs v. Wheeler, Tex.Civ.App., 306 S.W.2d 929, 934; Reese v. Interstate Securities Co., Tex.Civ.App., 301 S.W.2d 480; Holland v. Lansdowne-Moody Co., Tex.Civ.App., 269 S.W.2d 478; Patrick v. Reed, Tex.Civ.App., 253 S.W.2d 444, 449; Trotter v. McLennan County Water Control & Imp. Dist. No. 1, Tex.Civ.App., 252 S.W.2d 734, 739; Wilson v. Teague Ind. School Dist., Tex.Civ.App., 251 S.W.2d 263, 268; Walker v. Simons, Tex.Civ.App., 243 S.W.2d 600, 603; Fowler v. Tex. Emp. Ins. Ass’n., Tex.Civ.App., 237 S.W.2d 373, err. ref; Bartsch v. Ruby, Tex.Civ.App., 229 S.W.2d 105, 106; Dyer v. MacDougall, 2 Cir., 201 F.2d 265; Lindsey v. Leavy, 9 Cir., 149 F.2d 899, cert. denied 326 U.S. 783, 66 S.Ct. 331, 90 L.Ed.2d 474; Orvis v. Brickman, D.C., 95 F.Supp. 605, aff. 90 U.S.App.D.C. 266; 196 F.2d 762. This exception to the general rule seems especially applicable here since there is nothing in the record to show that appellant sought to avail himself of Rule 166-A(f) by showing that he could not by affidavits present facts essential to justify his opposition, or that he sought a continuance to permit affidavits to be obtained, or depositions to be taken or discovery to be had.

In his unsworn petition appellant Nagel-son alleges that White and Burrescia are partners doing business as Big Wheel Motor Company with their place of business in Garland, Texas; that Herman Moore purchased an automobile from them; that the automobile was financed by appellee Bank, which was the holder of the lien on said automobile; that Herman Moore became delinquent in his payments, and agreed to repossession of the car; that appellant Nagelson, Moore’s employer, had sold Moore four new tires; that when repossession of the car became imminent, appellant Nagelson claimed that the four new tires belonged to him, and the automobile was placed on a hoisted grease rack for the purpose of removing the new tires, claimed by Nagelson, and replacing them with the old tires; and that at this juncture White and Burrescia appeared on the scene, assaulted Nagelson, replaced the new tires on the automobile and took the car with the tires from Nagelson’s premises.

In his unsworn petition Nagelson also alleges that White and Burrescia “were the agents, servants or employees of the defendant Fair Park National Bank at the time of committing said unlawful, intentional, willful and wanton acts and were acting in the capacity of ‘repossessors’ or a ‘goon squad’ for defendant Bank.”

We find no evidence in the record before us in support of the above allegations that.White and Burrescia were the servants, agents or employees of the Bank, or that they were in any sense agents of the Bank with authority to convert appellant’s tires (if they were his) to the Bank’s use, or even to repossess the automobile sold by White and Burrescia to Moore. Certainly there is no showing whatever that the Bank authorized, participated in or ratified the acts of White and Burrescia in assaulting appellant Nagelson. All of the evidence is to the contrary. In the early part of this opinion we stated the substance of affidavits made by Hickman, White and Burrescia, so need not repeat those statements here.

If White and Burrescia were agents of the Bank in any sense, they were not servant-agents or employee-agents. The relation between them was not that of master and servant. The undisputed evidence is that they were not subject to the control of the Bank as to their actions or conduct, nor did the Bank request or ratify their assault on appellant. Under such circumstances the Bank cannot be held liable for the assault. Workmen v. Freeman, Tex.Civ.App., 279 S.W.2d 486; Trotter v. McLennan County Water Control & Imp. Dist. No. 1, Tex.Civ.App., 2S2 S.W.2d 734; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Taylor v. Stanford, Tex.Civ.App., 229 S.W. 2d 427; National Cash Register Co. v. Rider, Com.App., 24 S.W.2d 28; Pyle v. Ely & Walker Drygoods Co., 6 Cir., 179 F.2d 677; Globe Ind. Co. v. Victill Corp., 208 Md. 573, 119 A.2d 423 ; 29 Tex.Jur. 409; Prosser on Torts, 2d Ed. 356; Restatement of Agency, 2d § 250.

Even in cases where the relation of master and servant is present it has often been held that the employer is not liable for an assault made by the employee on a third person, unless the nature of the employment and the circumstances of the case authorize the servant to use force, and the servant uses more force than the circumstances require. Jax Beer Co. v. Tucker, Tex.Civ.App., 146 S.W.2d 436; National Life & Accident Ins. Co. v. Ringo, Tex.Civ. App., 137 S.W.2d 828; A. B. C. Stores v. Brown, Tex.Civ.App., 105 S.W.2d 725; Pratley v. Sherwin-Williams Co. of Texas, Tex.Civ.App., 56 S.W.2d 510; Genovese v. Butt, Tex.Com.App., 48 S.W.2d 587; Horwitz v. Dickerson, Tex.Civ.App., 25 S. W.2d 966; Mayes v. American Nat’l Ins. Co., Tex.Civ.App., 16 S.W.2d 333; Moslems Stores v. DeHart, 217 Ind. 622, 29 N.E.2d 948; MacPhail v. Pinkerton’s Nat. Detective Agency, 134 Pa.Super. 351, 3 A.2d 968; Mechem on Agency, 2d Ed. § 1978.

In the instant case appellant Nagelson was not the owner of the automobile which was repossessed. The assault, according to appellant’s own pleadings, took place in connection with a controversy over the ownership of four tires which Nagelson claimed he owned, not over repossession of the autorriobile. There is nothing in the record to show that the Bank knew of Nagelson’s claim and certainly nothing to suggest that the Bank authorized White or Burrescia to commit an assault in order to take possession of four of Nagelson’s tires.

It is to be remembered that the Bank stood to lose nothing by Moore’s failure to make his payments on the car. It simply exercised its recourse against White and Burrescia by charging their reserve account with the balance due on the note and mortgage. Foreclosure and repossession was then up to White and Burrescia, not the Bank. See the annotations at 22 A.L.R. 2d 1231.

Appellant’s point on appeal is overruled.

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    Mrs. Exa WILLIAMS, Appellant, v. Mrs. Ila Mae KRUEGER, Individually and as Independent Executrix under the Will of W. T. Williams, deceased, Appellee.
    No. 3953.
    Court of Civil Appeals of Texas. Waco.
    Nov. 22, 1961.
    Rehearing Denied Dec. 14, 1961.

      Robert W. Brown, Byron McClellan, Gatesville, for appellant.
    H. J. Cureton, Jr., Charles K. Wo-d, Meridian, J. V. Hammett, Lampasas, for appellee.
   WILSON, Justice.

The issue is whether a savings and loan certificate and a bank deposit constituted community property of deceased testator and his wife.

Several years before his death testator deposited $10,000 with a savings and loan association for which he received an investment share account certificate issued in the names of himself “and/or” a daughter by his first marriage. At the time of issuance of the certificate, testator* sighed a “joint control card” form furnished by the association to which he also signed his daughter’s name. Beneath the signatures were the printed words, “or- payable to- the survivor of either.” The certificate is not in evidence, and the record does not show whether it contained such survivorship clause.

Testator made the deposit by a check on a bank account, funds in which were found by the trial court to constitute community property of testator and appellant, his wife. Under the undisputed facts, these funds were community property. Separate and community funds were indiscriminately commingled during a ten year period so that testator’s separate moneys completely lost identity. Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900, 907; Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529, 532; Rippy v. Rippy, Tex.Civ.App., 49 S.W.2d 494, 496, writ ref.; Odell v. Odell, Tex.Civ.App., 306 S.W.2d 914, 918, writ ref. n. r. e.; Stanley v. Stanley, Tex.Civ.App., 294 S.W.2d 132, 136, writ ref. n. r. e., cert. den. 354 U.S. 910, 77 S.Ct. 1296, 1 L.Ed.2d 1428; Cook v. Cook, Tex.Civ.App., 331 S.W.2d 77, 79.

Testator’s daughter, as independent executrix, filed an amended inventory in the probate proceedings reciting that these funds were deposited with the association by testator, that she was given joint control, and considered the certificate to be her property by contract. The probate court approved this inventory. On appeal the district court concluded 'that testator and his daughter did not create a right of sur-vivorship under Section 46, Texas Probate Code, V.A.T.S., because there was no agreement in writing as therein provided; but that the purchase of the certificate by her father constituted a gift in praesenti to her of a one-half interest therein. It was ordered that the value of the remaining half interest be inventoried as community property.

Appellant challenges the determination that the father made a gift of his community interest. There is nothing in the record apart from that above recited to evidence any donative intent on the part of the testator. Neither appellant nor the daughter • were present when he purchased the certificate. There is no evidence the daughter made any prerequisite acceptance, or that she knew of the transaction before testator’s death. To effect a gift in praesenti, transfer of title “must be so complete that the donee might maintain an action for conversion of the property,” and the donor must intend to part with all dominion and control. Fleck v. Baldwin, 141 Tex. 340, 345, 172 S.W.2d 975, 978; Harmon v. Schmitz, Tex.Com.App., 39 S.W.2d 587, 589. The mere deposit of funds by the owner in the name of another, or in their joint names, without other evidence of donative intent is uniformly held insufficient to establish a gift. Fleck v. Baldwin, above; Olive v. Olive, Tex.Civ.App., 231 S.W.2d 480, 483; Pruett v. First Nat. Bank of Temple, Tex.Civ.App., 175 S.W.2d 658, 663; Reed v. Reed, Tex.Civ.App., 283 S.W.2d 311, 314; Benavides v. Laredo Nat. Bank, Tex.Civ.App., 91 S.W.2d 372, 374 (no writs); 66 A.L.R. 884; 103 A.L.R. 1128; 149 A.L.R. 883; 20-B Tex.Jur., Gifts, Secs. 13, 20; II Baylor L. Rev., 224. That rule, we think, is here applicable, and the essential elements of gift in praesenti do not exist.

The parties analyze and urge application of the decision in Hilley v. Hilley, Tex.Sup., 342 S.W.2d 565, Except for the portion of the opinion which holds the elements of gift in praesenti are not there present, we do not think the decision affects this case. Adams v. Jones, Tex.Civ.App., 258 S.W.2d 401 and Johnson v. Johnson, Tex.Civ.App., 306 S.W.2d 780, writ ref., were joint tenancy cases in which both parties executed the agreement. Chandler v. Kountze, Tex.Civ.App., 130 S.W.2d 327, writ ref., only construed Art. 2580 as not prohibiting joint tenancy or survivorship contracts. The trial court’s determination there was no such contract here is unassailed:

The court further modified the inventory by declaring a sum inventoried as a community asset to be the separate property of deceased. Under the record we think it is clearly community property. ’

The judgment is reversed, and judgment here rendered directing the proceeds of the certificate and the sum of $1708.23 to be inventoried as a community asset of decedent’s estate. Upon return of mandate, the Clerk of the District Court is directed to certify this judgment to the County Court for observance. Probate Code, Secs. 255-259; Chefflet v. Willis, 74 Tex. 245, 11 S.W. 1105, 1107.


author: RENFRO, Justice.

text:
    Odis L. HILL et ux., Appellants, v. Terah BROCKMAN, Appellee.
    No. 16255.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 17, 1961.
    Rehearing Denied Dec. 15, 1961.

      Woodruff, Morgan, Woodruff & Nobles, and W. B, Woodruff, Jr., Decatur, for appellants.
    Fannin & Fannin, and Oliver W. Fannin, Fort Worth, for appellee.
   RENFRO, Justice.

This is an appeal from a judgment which reformed a deed so as to convey to the grantees the surface only of a 136 acre tract of land in Wise County.

• In his findings of fact, the trial court found:

“1. A short time prior to the 31st day of December, 1956, Z. D. Brockman and wife, Terah Brockman, agreed to sell and convey, for a cash consideration of $5,500, to Odis L. Hill and Roberta May Hill, and the said Hills agreed to purchase, the surface only of 136 acres of land, more or less, situated ■ in Wise County, Texas, described as follows: (Description)
“2. Pursuant to such agreement, the said Odis L. Hill and Roberta May Hill paid the cash consideration of $5,500 to the Brockmans on the 31st-day of December, 1956, and on said date the Brockmans executed and delivered to the Hills a deed conveying the property above-described. * • * * This deed was a general warranty deed, and no minerals were excepted therefrom.
“3. Through mutual mistake of the parties in the preparation of said deed, the minerals were not excepted therefrom.”

The appellants, Odis' L. Hill and wife, Roberta May, by points of error contend the evidence is'insufficient to support findings Nos. 1 and 3 and insufficient to uphold the judgment entered.

Appellee, Mrs. Terah Brockman, surviving wife of Z. D. Brockman, brought the suit for reformation of the above-mentioned deed.

Several years prior to the execution of the deed in question, the Brockmans, who owned no mineral interest in the land, agreed to sell the surface or top of the 136 acre tract to R. A. Huckabee, appellee’s brother. Huckabee took possession of and lived on said land for seven years. Under his agreement with the Brockmans, he was to receive a deed to the surface when he paid for the land. He did not pay out the purchase price, hence never received a deed from the Brockmans. He was authorized by them, however, to sell the land. He told appellant Hill he did not own any minerals but would sell “the top of it” for $5,500. He testified Hill answered, “I will buy it.” Hill admitted that Huckabee told him he owned no minerals, that he answered, “I will just buy what you have got.” Hucka-bee and Hill went together to attorney Sampson in Bridgeport and told Sampson what the trade was. Sampson prepared a warranty deed (never executed) which made no reference to minerals. Huckabee testified he never saw the Sampson deed and that Sampson made a mistake in failing to except the minerals from the deed. Sometime later Hill arranged to borrow money from a Bank to pay part of the purchase price. The Bank turned the Sampson deed over to the Bank’s attorney, who prepared a new deed, same as the one prepared by Sampson except it recited the amount of money advanced by the Bank and reserved a vendor’s lien. The Bank’s attorney knew none of the parties and knew nothing of the transaction between them. He testified that if there was a mistake in the Sampson deed it was carried over into the deed he prepared. Huckabee testified he never saw the deed the Bank’s attorney prepared and appellee testified that she and her husband never saw the deed until they were called to Bridgeport to execute it. She never read it and did not see her husband read it. She and her husband never owned the minerals and the deed conveying both surface and minerals was “certainly a mistake”.

The evidence, most of which is undisputed, is sufficient to show that the vendors agreed to sell and appellants agreed to buy the surface only of the land involved.

Through mistake of the scrivener the minerals were not excepted from the deed. Since the instrument did not, because of such mistake, represent the real agreement of the parties, there was such a mutual mistake as to entitle appellee to reformation. Bates v. Lefforge, Tex.Com.App., 63 S.W.2d 360; Williams v. Hooks, Tex.Civ.App., 333 S.W.2d 184; State ex rel. Brauer v. City of Del Rio, Tex.Civ.App., 92 S.W.2d 287; Turner v. Montgomery, Tex.Com.App., 293 S.W. 815; 76 C.J.S. Reformation of Instruments § 25, p. 352.

Believing the evidence sufficient to uphold the trial court’s findings and judgment, the judgment reforming the deed in question is affirmed.


author: FANNING, Justice.

text:
    Henry JOHNSON, Appellant, v. EMPLOYERS REINSURANCE CORPORATION, Appellee.
    No. 7364.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 21, 1961.
    Rehearing Denied Dec. 19, 1961.

      H. L. Morgan, Brown, Bates, Brock & Morgan, Houston, for appellant.
    R. H. Whilden, C. E. Nadeau, Houston, for appellee.
   FANNING, Justice.

This is a workmen’s compensation insurance case. Nineteen special issues were submitted to a jury. The first three issues were answered and the other sixteen were not answered.

In response to Special Issue No. 1, the jury found to the effect that plaintiff Johnson sustained an injury on or about April 29, 1958, and in response to Special Issue No. 2, found that such injury was accidental.

However, in response to Special Issue No. 3, the jury found to the effect that such injury was not sustained by Johnson while acting within the course of his employment with Shell Oil Company (his employer).

The trial court granted defendant insurance company’s motion for judgment and rendered a take nothing judgment against plaintiff Johnson. Johnson has appealed.

Appellant presents six points on appeal. His first five points raise “no evidence”, “insufficient evidence” and “against the overwhelming weight and preponderance of the evidence” points, with respect to the jury’s negative answer to Special Issue No. 3.

There are many decisions of our Texas Supreme Court with respect to the consideration of “no evidence”, “insufficient evidence” and “against the great weight and preponderance of the evidence” points. For a comprehensive discussion of these matters see an article in the April, 1960 issue of the Texas Law Review (38 Tex.L. Rev. 362) by Justice Calvert of the Texas Supreme Court, entitled “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of' Error”.

Plaintiff, who was an employee of Shell Oil Company on April 29, 1958, testified to the effect that on said date at about 3:30 P.M., while working during the course of his employment with his said employer, and while digging a ditch and picking up a shovel full of dirt he felt something “tear loose” in his back, and that he sustained a severe and permanent accidental injury to his back and spine. Plaintiff testified that he told two of his fellow workmen that he was going to First Aid because he had hurt his back. These two fellow workmen did not testify in the case. Plaintiff further testified that he did go to First Aid and told the nurse that he had hurt his back and that the nurse told him not to come to work the next day and to go see his doctor. Plaintiff testified that he left the job that evening and has not been back since. Plaintiff also testified about going to Dr. Brels-ford where he was examined and treated, and that at the time of the trial he was still under Dr. Brelsford’s treatment and that he had been unable to perform any work since April 30, 1958. Dr. Brelsford also testified in detail as to plaintiff’s alleged disabilities and incapacities as well as to his previous back ailments and previous operation for spinal fusion done by Dr. Brelsford prior to plaintiff’s alleged injuries.

The witness Marshall Hicks, testifying in plaintiff’s behalf testified that (at some time after plaintiff went back to work for Shell after his operation) plaintiff told him one evening after getting off the bus “I hurt my back today.” The witness Hicks asked him “How did you hurt your back?’’ and the plaintiff replied (according to Hicks) “I was out there digging in a ditch.” However, on cross-examination the witness Hicks testified that the alleged accident was in 1957.

Appellant also in his brief quotes Defendant’s Exhibit No. 26, which is the report of Nurse Conway of a visit on January 19, 1959 with appellant Johnson and relates what Johnson then told her, which statements of Johnson are favorable to his contentions.

The only witnesses placed on the stand by appellant were himself, Dr. Brelsford and Marshall Hicks. Appellant’s claim for compensation and several x-ray pictures were also introduced in evidence as exhibits.

Defendant vigorously cross-examined plaintiff about several previous workmen’s compensation insurance claims, previous back injuries, several nonoccupational insurance claims, and in particular with reference to a 1957 back claim where Dr. Brels-ford performed a spinal fusion and where nonoccupational insurance benefits were paid to Johnson. Defendant also placed a 'doctor on the stand, three employees of Shell, and also introduced in evidence numerous exhibits. Defendant-appellee vigorously replies to appellant’s first five points; in this connection we quote from appellee’s brief in part as follows :

“The only description of the accident is plaintiff’s testimony and statements. * * - * The only evidence that plaintiff went to first aid is his testimony. * * * If he had so reported, it would have been recorded. He testified that the nurse wrote it down. The complete scratch pad records kept by the nurses for the days involved are in evidence. This accident is not reflected. Other accidents are reported, including an almost identical one on May 16, 1957. Plaintiff testified on cross-examination that he had only one accident while digging a ditch and that there was no accident on May 16, 1957. The first aid records are kept with considerable care and even reflect that at 9:30 a. m. on the day in question plaintiff obtained aspirin. Although plaintiff well knew that for occupational injuries he should go to the company doctor, he went to his personal physician, Dr. Brelsford.
⅝ ⅜ ⅝ * * #
“It is correct that Dr. Brelsford testified that plaintiff told him he felt a sharp snap in his back but he also testified that plaintiff’s present disability would not ordinarily be caused- by a sharp snap. * * * Immediately after the accident Johnson completed a nonoccupational ‘ disability benefit form which he had used for a cold and for 10½ months for his back. On this form he answered, in his own handwriting, question 5 “spondylolysis acute lumbosacral sprain”, but failed to answer the question “If due to accident, state when, where and how it occurred.” On the same form Dr. Brelsford answered “no” to the question . “Is disability due to injury or illness arising out of plaintiff’s employment?”, even though, according to his testimony, he had been told of the accident. * * *
“ * * * Defendant’s Exhibit 26 is quoted in detail. The quoted statement is merely repetition of what plaintiff told Shell’s nurse and is not independent evidence.
* * ⅜? ⅝ sfc *
“Despite the fact that Johnson knew his fellow employees and the bus driver and passengers, the only evidence of an injury on April 29, 1958, while digging at the Shell refinery are the statements of Johnson on the stand or to Dr. Brelsford or to a Shell Nurse.”
(Note — Appellee’s various references to the Statement of Facts are omitted.)

The jury apparently believed that Johnson had an accidental injury somewhere on April 29th, 1958. However, the jury apparently disbelieved Johnson’s sharply questioned testimony that he received an accidental injury while digging a ditch during the course of his employment with his employer, Shell Oil Company. It was within the jury’s function to disbelieve this portion of Johnson’s testimony if it saw fit to do so. Simmonds v. St. Louis B. & M. Ry. Co., Tex.Comm.App., 127 Tex. 23, 91 S. W.2d 332.

In order for plaintiff Johnson to recover judgment it was incumbent upon him to prove by a preponderance of the evidence that the accidental injury in question occurred during the course of his employment with his employer, Shell Oil Company. The burden was not on the defendant to prove that an injury did not occur while Johnson was digging a ditch for Shell Oil Company on April 29, 1958, nor was it incumbent upon defendant to prove that Johnson’s accidental injury (if any) was sustained at some place other than on Shell’s premises.

After careful consideration it is our view that appellant’s “no evidence” and “insufficient evidence” points should be overruled. Appellant’s points 1 to 4, inclusive, are overruled.

We have also carefully considered the entire record and have reviewed all of the evidence adduced in the case in the light of the rules announced by the Supreme Court of Texas in the case of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, and hold that the jury’s answer of “we do not” to Special Issue No. 3, is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Appellant’s 5th point is overruled.

Appellant by its 6th point contends to the effect that the jury’s answers to Special Issues Nos. 1 and 2 are in conflict with the jury’s answer to Special Issue No. 3, and under the evidence cannot form the basis for a judgment. It is clearly apparent that these answers are not in conflict. In this connection see Texas and Pacific Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280. Appellant’s 6th point is overruled.

Appellee by its 2nd, 3rd and 4th counterpoints contends that there are additional reasons why the judgment of the trial court should be affirmed. We deem it unnecessary to write upon these counter-points since we have already overruled all of appellant’s points.

The judgment of the trial court is affirmed.

Affirmed.


author: BARROW, Justice.

text:
    David L. HALPENNY, Appellant, v. CITY OF SAN ANTONIO et al., Appellees.
    No. 13840.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 22, 1961.

      M. N. Garcia, Austin, for appellant.
    Crawford B. Reeder, City Atty., San Antonio, for appellees.
   BARROW, Justice.

This is a suit for writ of mandamus brought by appellant, individually and as next friend for and on behalf of twenty-four named persons alleged to be minors, seeking to compel the appellees, City of San Antonio and members of the City Council, to:

1.. Withdraw from the ballot used in, January 10th election, the proposition of the issuance of bonds for the construction of the North Expressway.
2. Call a special election for the purpose of submitting to the electorate of the city of San Antonio, the question whether Brackenridge Park, or parts thereof should be used for purposes other than its dedicated use as parkland; or in the alternative;
3. To reword the said proposition so that the question of whether Brack-enridge Park should be used for purposes other than, as a park, could be determined by the voters of the city of San Antonio.

An election was called by the City Council to be held on January 10, 1961, to determine, among other things, if the issuance of bonds of the City should be authorized to provide funds in the sum of $3,500,000.00 for the purchase of right-of-way and necessary approaches for a North Expressway. The proposed North Expressway would go through Brackenridge Park, a public park, owned by the City and used for park purposes. It is alleged that appellant, Hal-penny, is the owner of a business in said City, which is indirectly benefited by the use and popularity of said park, and that he is a resident, qualified elector and taxpayer of said City. It is further alleged that the minor plaintiffs are residents of said City and have an interest in the maintenance of said park, in that they and each of them, have enjoyed and wish to continue to enjoy happy hours of pleasure visiting said park.

The case was tried before the court on January 9, 1961, and judgment was rendered denying in all things the issuance of the writ of mandamus. No evidence was introduced on the trial of said cause, but the parties stipulated that the election in question had been called for January 10, 1961, and that Brackenridge Park is a dedicated park in said City.

On account of the fact that the election was held and the proposition for the issuance of bonds for the construction of the North Expressway carried, appellant has abandoned his request for mandates Nos. 1 and 3, and here seeks a reversal of the trial court’s denial of his request for mandate No. 2, and requests that this Court issue its mandate requiring appellees to call and hold an election as prayed for in mandate No. 2, and that this Court enjoin appellees from taking any action in the construction of the North Expressway until said election is held, and the construe^ tion thereof through said park is authorized by that election. The trial court’s action in refusing to issue the writ of mandamus upon the petition of appellant was proper, for the reason that the facts alleged by appellant do not show that either appellant, individually, or the minors, whom he represents as next friend, have any justiciable interest in the subject matter which would entitle them, or any of them, to bring and maintain the suit. The facts affirmatively show that any rights they may have to the use and enjoyment of Bracken-ridge Park, or to have it maintained as such, are rights which are shared in common with all the people of San Antonio and with the public in general, and any injury to them, by reason of the impairment of such rights, is sustained by the general public. Yett v. Cook, 115 Tex. 205, 281 S.W. 837; San Antonio Conservation Society v. City of San Antonio, Tex.Civ.App., 250 S.W.2d 259; McCarty v. Jarvis, Tex.Civ.App., 96 S.W.2d 564; City Council of Wichita Falls v. Coker, Tex.Civ.App., 93 S.W.2d 459.

The judgment of the trial court is affirmed. All direct relief sought by appellant in this Court is denied.


author: DENTON, Chief Justice.

text:
    CITY OF IRVING v. William H. LUTTRELL et al.
    No. 7132.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1961.
    McCulloch, Ray, Rembert, Luna & Trot-ti, Dallas, for appellant.

      Lefkowitz, Green, Ginsberg & Eades,’ Dallas; for appellees.
   DENTON, Chief Justice.

This suit was instituted by appellant, City of Irving, and is in the nature of a condemnation suit. The city is seeking to condemn a strip of land across appellees’ property for a drainage and utility easement. It is undisputed that appellees’ property is located in Dallas County. This appeal is from an order sustaining appellees’ motion for a change of venue based on their affidavit that too great prejudice existed in Dallas County to enable them to obtain a fair trial there, and that a combination against them instigated by influential persons existed in Dallas .County. The order sustaining this motion transferred the case to Rockwall County, an adjoining county.

Appellees have filed a motion to dismiss this appeal on the ground that the trial court’s order sustaining the motion is not such an interlocutory order from which an appeal is allowed by law. Appellees’ application for change of venue was made under the provisions of Rule 257, Vernon’s Ann.Texas Rules. In support of this motion appellees cite and rely on Byer v. Dallas Power & Light Co., Tex.Civ.App., 290 S.W.2d 948 (no writ history). That case involved the identical procedural question as presented here, however the trial court in the Byer case overruled the application to change venue. Such a distinction is very material and in our opinion this distinction renders the rule in the Byer case inapplicable in the instant case.

Venue was properly laid in Dallas County under Article 3264, Subdivision 1, Vernon’s Ann.Civ.St., unless Rules 257-261 V.A.T.R. were properly pleaded and applied. The trial court’s order in sustaining this application is appealable, as the trial court’s discretion in taking such action is subject to review. In addition, under the circumstances here we see no distinction in sustaining a motion for change of venue under Rule 257 and sustaining a plea of privilege. Rule 385 V.A.T.R. specifically provides for an appeal from an order sustaining a plea of privilege. For the reasons stated appellees’ motion to dismiss is overruled.

In considering this appeal, the question to be determined is whether or not the trial court erred in sustaining the application to change venue. This requires an examination of the affidavits provided for under Rules 257 and 258. Appellees’ application for a change of venue was in proper form and supported by affidavits of three other credible persons as required by Rule 257. Rule 258 directs the trial court to grant such application unless it is attacked by the opposing party. Appellant timely filed an opposing affidavit. We are therefore called upon to determine the sufficiency of this opposing affidavit. Appellees contend the opposing affidavit made no attack upon the application. We are unable to agree. Appellant duly contested the application when it denied under oath the truth of the allegations therein. It stated: “ * * * it is not true * * * ” that ap-pellees could not get a fair trial in Dallas County, and it further stated that of approximately one million residents in Dallas County, affiants knew many people in that county who did not know any of the parties, and it was unlikely any prospective juror in that county would be acquainted with the parties or the case. We think this constituted a sufficient attafck to form an issue which must be tried by the trial judge as required by Rule 258.

Upon the issue being thus formed, the burden was upon the appellees to prove the facts upon which the motion for change of venue was based. Wolnitzek v. Lewis, Tex.Civ.App., 183 S.W. 819 (error refused) ; Bennett v. Jackson, Tex.Civ.App., 172 S.W.2d 395 (refused w. o. m.). Rule 258 provides: “ * * * the issue thus formed shall be tried by the judge * * This language clearly implies that there shall be a hearing before the court for the purpose of presenting evidence in support of the opposing affidavits. The record is before us without a statement of facts or findings of fact and conclusions of law. It is apparent the trial court sustained the application for change of venue without hearing any evidence, but did so after considering the respective affidavits only. This conclusion is borne out not only by the absence of a statement of facts or findings and conclusions, but also from the language of the court’s order sustaining the application. The affidavits themselves cannot be considered as evidence but merely pleadings raising an issue of fact. Galveston H. & S. A. Ry. Co. v. Nicholson, Tex.Civ.App., 57 S.W. 693 (error refused). It is thus apparent appellees failed to sustain their burden of proof. Therefore the trial court erred in sustaining the application in the absence of any evidence to support the same.

In view of the fact the case was not fully ■developed, the judgment of the trial court will be reversed and the cause remanded.

Reversed and remanded.


author: NORTHCUTT, Justice.

text:
    Raymond August ZACHARY, Sr., Appellant, v. DEPARTMENT OF PUBLIC SAFETY of the State of Texas, Appellee.
    No. 7133.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 13, 1961.
    Rehearing Denied Dec. 18, 1961.
    Thompson, Knight, Wright & Simmons, Dallas, for appellant.
    Henry Wade, Dist. Atty., John J. Orvis, Asst. Dist. Atty., Dallas, for appellee.
   NORTHCUTT, Justice.

This is an appeal from an administrative order of suspension of the driving privileges of the appellant pursuant to the legislative provisions of Art. 6687b, Section 22, Vernon’s Ann.Tex.Civ.St. which administrative order was appealed to the County Court at Law No. 2, Dallas County, Texas where summary judgment was entered upholding the said administrative order of suspension of appellant’s driving privileges. This is not an appeal from a judgment of conviction for violation of some traffic law, but it is an appeal from an order authorizing canceling appellant’s driving privileges based upon the conviction of appellant in four cases of traffic violations. On December 19, 1960, an order was entered by the judge of the Corporation Court, Dallas, Dallas County, Texas authorizing the Texas Department of Public Safety to suspend this appellant’s operators license No. 1895293 and driving privileges, and this was done. The appellant appealed from the order of the Corporation Court to the County Court at Law No. 2, Dallas County, Texas and the appellee answered the appeal and filed motion for summary judgment with four notices of conviction, each certified by the clerk of the court showing that appellant had been convicted in the Corporation Court of Dallas. The motion for summary judgment was granted and judgment was entered in the County Court at Law No. 2, Dallas County, Texas sustaining the suspension of appellant’s driving privileges as issued by appellee. From that judgment appellant perfected this appeal to the Court of Civil Appeals for the 5th Supreme Judicial District of Texas at Dallas, Texas and was transferred to this court by order of the Supreme Court of Texas.

Appellant presented this appeal upon three points of error as follows:

"First Point of Error
“The Trial Court erred in entering a summary judgment against Appellant because there is a genuine issue df fact whether he is incapable ⅛' of safely operating a motor vehicle.
“Second Point of Error
“The Trial Court erred in entering a summary judgment against Appellant because there is a genuine issue of fact whether he is an habitual violator of the traffic law.
“Third Point of Error
“The Trial Court erred in entering a summary judgment against Appellant because there is a genuine issue of fact whether he was convicted of four traffic violations within a consecutive period of twelve months preceding the order of suspension.”

Under Art. 6687b, Section 22 there are nine separate grounds giving the Department of Public Safety of Texas authority to suspend the license of an operator. One of the grounds set out therein, and being the one upon which appellant’s license was canceled, is as follows:

“4. Is an habitual violator of the traffic law.
“The term ‘habitual violator’ as used herein, shall mean any person with four or more convictions arising out of different transactions in a consecutive period of twelve (12) months, or seven (7) or more convictions arising out of different transactions within a period of twenty-four (24) months, such convictions being for moving violations of the traffic laws of the State of Texas or its political subdivisions.”

Another ground set out in the same section refers to a person incapable of driving a motor vehicle. In this action it was never contended that appellant was incapable of driving a motor vehicle, but that appellant was an habitual violator of the traffic law as set out in subsection 4 above mentioned. Appellant’s first point of error is overruled.

Appellant- could not under this record contend that. he.had not committed the off-fense for which he was convicted. By appellant’s third point of error it is contended there is a genuine issue of fact whether he was convicted of four traffic violations within a consecutive period of 12 months preceding the order of suspension, and by his second point of error there was a genuine issue of fact whether he was an habitual violator of the traffic law.

Attached to appellee’s motion for summary judgment are four certified copies of convictions, and attached to appellant’s answers to appellee’s motion for summary judgment are four copies of his checks showing he had paid the identical fines as shown by the notices of conviction. Appellant did not deny the charges but acknowledged he sent the checks to pay for the violation but did not appear in court in person. Article 782 of Texas Code of Criminal Procedure provides as follows: “The judgment in a misdemeanor case may be rendered in the absence of the defendant.”

The certified notices of conviction show that appellant was convicted on April 20, 1960, and three times in September, 1960, all of these convictions happening in a period of 6 months, all in 1960, would show without dispute that appellant had four convictions arising out of different transactions in a consecutive period of 12 months.

Summary judgment is proper in a case in which a driver’s license has been suspended where no material issues have been raised. Whittington v. Texas Department of Public Safety, Tex.Civ.App., 342 S.W.2d 374 (writ refused) N.R.E.; McPeak v. Texas Department of Public Safety, Tex.Civ.App., 346 S.W.2d 138.

The sole question involved herein is whether there has been a material issue raised as to whether appellant was an habitual violator of the traffic law. It is undisputed that the appellant was charged with four violations arising out of different transactions in a consecutive period of 12 months, and was convicted and paid the fines assessed in each case. We do not believe there was a material issue raised herein and therefore the court was correct in granting the summary judgment. Judgment of the trial court is affirmed.


author: DAVIS, Justice.

text:
    Wayne ANDERSON, Appellant, v. Frank L. KING, Jr., Appellee.
    No. 7359.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 28, 1961.
    Rehearing Denied Dec. 19, 1961.

      Fisher, McLaughlin & Harrison, Paris, for appellant.
    Pat Beadle, Clarksville, for appellee.
   DAVIS, Justice.

This is a venue case. Plaintiff-appellee sued the defendant-appellant in the District Court of Red River County for $1,720, the amount the appellant was supposed to have paid the appellee for a Dodge Pickup and a trailer that appellant bought at an auction sale at appellee’s ranch. Appellant, a resident of Lamar County, was permitted to give his personal check on a Lamar County Bank and carry the property with him. It was by this means that the appellant wrongfully converted the property. As soon as the- property was in Lamar County, appellant stopped payment on the check.

At the hearing on the plea of privilege, appellee proved his cause of action, and in conclusion the appellant stipulated as follows : “We stipulate in behalf of Mr. Anderson that at the time of the auction Mr. Anderson gave the check that has been introduced in evidence; but prior to its clearing the bank, he stopped payment on the check, and that he has not made subsequent payment for the equipment.”

The property is still in Lamar County. Appellant takes the position that there was something wrong with the truck. He does not complaint about anything being wrong with the trailer. The auctioneer testified that at the sale he made the announcement, at least three times, that there were no warranties or guarantees of any kind on the motor vehicles. The appellant bought the pickup and trailer and promised to pay therefor. After receiving the property, he stopped payment on his check. He thereby became guilty of conversion and comes within the provisions of Sec. 9 of Article 1995, Vernon’s Ann.Tex.Cir.St. 42 Tex.Jur. 518, Sec. 12; Hill v. Childers et al., Tex.Civ.App., 268 S.W.2d 203, W.R., N.R.E.; San Antonio & A. P. Railway Company v. Smith, Tex.Civ.App., 171 S.W. 282, N.W.H.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    M. T. HARRINGTON, Chancellor Texas A. & M. College, et al., Appellants, v. Laura B. BAILEY et al., Appellees.
    No. 3954.
    Court of Civil Appeals of Texas. Waco.
    Nov. 22, 1961.
    Rehearing Denied Dec. 14, 1961.

      J. A. Amis, Jr., College Station, Lawrence Hargrove, Asst. Atty. Gen., Austin, for appellants.
    Bill Palmos, Hearne, Richey, Sheehy, Teeling & Cureton, Sam Lanham, Waco, for appellees.
   McDONALD, Chief Justice.

This is a suit by the heirs of S. T. Brog-den, deceased, against the officials of Texas A. & M. College, to determine the ownership of a Biblical manuscript which formerly belonged to S. T. Brogden. The ultimate question for determination here is whether ■or not there is evidence and/or sufficient evidence to support the Trial Court’s findings that the deceased did not make a gift of the manuscript to A. & M. College.

Trial was before the Court without a jury; which after hearing entered judgment, finding title to the manuscript to be in the plaintiffs and other heirs of S. T. Brogden. The Trial Court found that the deceased “at no time during his life did he make a gift of the manuscript to anyone.”

Defendants, officials of A. & M. College, appeal on 17 points, contending that there is no evidence or insufficient evidence to support the Trial Court’s findings relating to whether or not a gift of the manuscript occurred.

S.T. Brogden, deceased, was an 1898 graduate of A. & M. College; unmarried; some 80 years of age; nearly blind; and a person deeply interested in religious matters. About 1945 he made a trip to the Holy Land where he obtained a Biblical Manuscript written in Hebrew on goat skins. He cherished this Manuscript very much. In 1952 he told his sister, Miss Lucy Brogden, that he wanted A. & M. College to have this Manuscript. He dictated a note to this effect to his sister. The note was placed with the Manuscript, and both the Manuscript and the note remained in deceased’s possession. Deceased made some effort to- get an official of A. & M. College to come to his home and receive the Manuscript, but was unsuccessful, and the Manuscript remained with Mr. Brogden.

Four years later, in 1956, Mr. Brogden delivered the Manuscript to his sister, Miss Lucy Brogden. She remained in possession of the Manuscript. In 1957 the deceased was legally declared to be a person of unsound mind and placed in the State Hospital for the Insane, and Miss Lucy Brogden was appointed as his guardian. In 1959 Miss Lucy Brogden delivered the Manuscript to A. & M. College. Mr. Brogden died in April 1960, and the instant suit was instituted in August 1960 by plaintiffs (heirs of S. T. Brogden) seeking to have title and possession of the Manuscript vested in the Estate of S. T. Brogden, deceased.

To constitute a valid gift of a chattel, inter vivos 2 elements are necessary: 1) The intention on the part of the donor to make a gift; 2) Delivery of possession of the subject matter of the gift by the donor to the donee or someone claiming under the donee, with a purpose on the part of the donor to vest in the donee, unconditionally and immediately, the ownership of the property delivered. Wells v. Sansing, 151 Tex. 36, 245 S.W.2d 964, 965. The burden of proving a gift inter vivos is upon the party claiming under the gift. Hunt v. Garrett, Tex.Civ.App., 275 S.W. 96, Garrett v. Hunt, Tex.Com.App., 283 S.W. 489.

The Trial Court, as noted, here found there was no gift from S. T. Brogden to A. & M. College. The record reflects that deceased had expressed an intention to give the Manuscript to A. & M. College in 1952 and perhaps on other occasions; but no delivery of the Manuscript was made to anyone until 1956, when deceased delivered the Manuscript to his sister, Miss Lucy Brogden. In 1957, deceased was adjudicated to be of unsound mind; and in 1959 Miss Lucy Brogden delivered the Manuscript to A. & M. College. The record reflects that Miss Brogden herself, testified that her brother, the deceased, delivered the Manuscript to her in 1956, because he was afraid someone might steal it from him. Moreover, the deceased had a conversation with the witness Huddle-ston, subsequent to turning the Manuscript over to his sister, in which he stated that he was going to give the Manuscript to A.&M.

Under the record, the Trial Court was perfectly warranted in finding that deceased delivered the Manuscript to his sister for safekeeping and not as a delivery to A. &' M. College.

Miss Brogden’s agency as an individual, for safekeeping of the Manuscript terminated in 1957 when deceased was legally declared to be of unsound mind. Renfro v. City of Waco, Tex.Civ.App., 33 S.W. 766. Her subsequent delivery in 1959 of the Manuscript to A. & M. College was without any authority whatever, either from the deceased or from the Probate Court, and consequently could vest no title to the Manuscript in A. & M. College or its officials.

We think there is evidence to support the Trial Court findings that no gift of the Manuscript was made by the deceased, during his lifetime, to A. & M. College, and such findings are not against the great weight and preponderance of the evidence, under the rule of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

All of defendants’ points and the contentions thereunder made are overruled, and the judgment of the Trial Court is affirmed.


text:
    CITY OF HOUSTON, Appellant, v. H. S. AUTREY et ux., Appellees.
    No. 3844.
    Court of Civil Appeals of Texas. Waco.
    Nov. 22, 1961.
    Rehearing Denied Dec. 14, 1961.

      R. H. Burks, City Atty., Chas. A. Easter-ling, Clifton E. Speir, Asst. City Attys., Houston, for appellant.
    DeLange, Hudspeth & Pitman, Houston, for appellees.
   WILSON, Justice.

In a condemnation case the City says it was error to permit the landowner to call .as a witness and adduce testimony from a professional appraiser the City had employed to evaluate damages resulting from the taking. Although it engaged and paid him to appraise the value of the property taken and damage to the remainder, con-demnor did not call the appraiser as a witness. Appellee did so; and elicited the foregoing facts, the findings of the witness as to what he ascertained land on the street in question had “sold for in that area per square foot”, and his opinion as to damage to the owner’s land not taken. No inquiry was made as to his opinion of market value of the tract taken.

The City urges that if the court’s action in permitting this witness to testify is permitted to stand it will penalize and prevent efficient and diligent preparation for trial; that since it paid for the services of the witness in making the evaluation, appellees’ calling him was “a taking of appellant’s valuable property rights” which it had paid for without its consent. As we understand it, the City contends the information and opinion of this witness “was testimony that could have been obtained by appellees in a free and open competitive market from one of the many professional appraisers within the county”. In short, the position is that the testimony of the witness it voluntarily employed to ascertain the facts was damaging before the jury, and appellant having paid for it, should be suppressed.

We cannot subscribe to the view that the testimony of a paid witness is property, or that payment for his services gives any exclusive proprietary right. To so hold would be judicial smothering of the search for truth. A logical sequent of the City’s position, as appellee suggests, would be that a condemnor in some areas might be able to employ every qualified appraiser, use those whose testimony is considered favorable, and effectively prevent the owner from using any other as a witness.

It is said the court’s action in requiring production of the appraisal report made by this appraiser at the hearing on a bill of exception was error. The court refused to permit it to be introduced in evidence. It was insisted that the appraiser should not be required to produce his appraisal report under subpoena düces tecum. He did not produce it; it was delivered by' condemnor’s attorney at the court’s direction to complete the bill of exception. Appellant insists this requirement violated Rules 167 and 186a, Texas Rules of Civil Procedure. The latter rule relates to depositions.

No inquiry was made of this witness before the jury concerning market value of appellees’ tract. Although he testified there was severance damage, the jury found there was none.

If there was error in requiring production of the appraisal report to perfect appellees’ bill of exception we are unable to see that it affected the judgment, and under this-record it was harmless.

Complaints are made of the charge. The record does not show objections thereto were presented or acted on as required by Rule 272. The objections relied on do not present reversible error. Appellant presents seventeen points which we have carefully considered. In our opinion none merits reversal, and the judgment is affirmed.