author: HUGHES, Justice.

text:
    CIMARRON INSURANCE CO., Inc., Appellant, v. John W. PRICE et al., Appellees.
    No. 11457.
    Court of Civil Appeals of Texas. Austin.
    Nov. 30, 1966.
    Rehearing Denied Dec. 21, 1966.

      L. W. Anderson, Dallas, for appellant.
    Harvey C. Ford, Carrington, Johnson & Stephens, Ronald L. Neill, Dallas, for appellees.
   HUGHES, Justice.

Cimarron Insurance Co., Inc., appellant, sued John W. Price, Gary M. Holt, Sam Jaffa and wife, Geneva B. Jaffa, for a declaratory judgment respecting its rights and liabilities under a policy of automobile liability insurance issued by it to John W. Price as owner of a 1958 Plymouth 4-door Savoy sedan automobile.

It was alleged that Gary M. Holt was driving this Plymouth on April 16, 1964, when a collision occurred between it and an automobile then being operated by Geneva B. Jaffa allegedly resulting in personal injuries to Mrs. Jaffa and damages to the automobile owned by her and her husband.

The substance of the appellant’s suit is contained in these allegations taken from its amended petition:

“That although the Defendant, John W. Price, orally represented to the Plaintiff, Cimarron Insurance Co., Inc., and its agent that he was the sole owner of said 1958 Plymouth 4-door Sedan, and was listed in the declarations as the sole owner, subject to the lien of the Wynnewood State Bank of Dallas, Texas, nevertheless the same was not true and was a falsehood. That the true facts in connection therewith were that the automobile was bought for the use and benefit of the Defendant, Gary M. Holt, and was used by him most of the time and was supposed to have been registered in his name and that the said Defendant, Gary M. Holt, made monthly payments to the said Defendant, John W. Price, for the purchase price of said automobile, and in turn, the said John W. Price then made said payments to the Wynnewood State Bank of Dallas, Texas, so in truth and in fact, the said Gary M. Holt was the real owner of said automobile, even though it had not been registered in his name at the time of the accident, as had been orally promised by the said Defendant, John W. Price, to Gary M. Holt. That had the Plaintiff known that the Defendant, Gary M. Holt, a seventeen (17) year old minor was the owner and operator of said automobile, it would not have written said policy. That accordingly, the sole ownership clause of the policy was completely violated, and the Plaintiff should be relieved of any liability in connection therewith.”

These allegations were specially denied by appellees. The issue thus made was submitted to the jury trying the case in the form and with the answer shown below:

“Do you find from a preponderance of the evidence that at the time of the accident in question on April 16, 1964, that John W. Price was not the true owner of the 1958 Plymouth automobile in question?
In connection with your answer to this issue you are instructed that the fact that the certificate of title is issued to a person is not conclusive of ownership, but is merely evidentiary and to be considered along with other evidence in the case.
You are further instructed that by the term ‘true owner’ is meant one who has dominion of a thing which he has the right to enjoy and to do with as he pleases, even to spoil or destroy it, so far as the law permits, unless he is prevented by some agreement or covenant which restrains such right.
Answer ‘He was’ or ‘He was not.’
Answer: He was”

Based on this verdict, judgment was entered denying appellant the declaratory judgment for which it prayed.

Appellant’s first two points are jointly briefed. They assert that the trial court erred in overruling its motion for judgment notwithstanding the verdict because there was no evidence to support the finding of the jury, above noted, and that such finding was against the greater weight and preponderance of the evidence, and that, as a matter of law, “a fraud and misrepresentation was made to appellant’s agent that John W. Price was the owner of said automobile.”

It is necessary that we make an extended statement of the evidence in order to reflect our decision in disposing of the first two points.

Mr. M. N. Killough, a local insurance agent for 40 years, acting as agent for appellant, issued a policy of automobile liability insurance to John W. Price covering a 1950 Ford automobile. There was an endorsement to that policy of insurance in November 1963 adding coverage of a 1958 Plymouth automobile. This is the car the ownership of which is in issue in this case.

On December 23, 1964, this contract of automobile liability insurance on both the Ford and Plymouth automobiles was renewed. At the time John W. Price applied for the policy on the Plymouth he explained to M. N. Killough that there was to be a mortgage on the Plymouth automobile in favor of the Wynnewood State Bank. Mr. Price further explained that a minor under the age of 25 years would be driving the automobile and that such minor, Gary M. Holt, would probably be driving it more than anyone else. An extra premium was paid because Gary Holt would be a driver. Mr. Price stated to Mr. Killough that he owned the automobile; that he had bought the car for Gary Michael Holt; that the car would be used by Gary for dates, going back and forth to the store, and whenever he thought he needed it.

Mr. Killough on direct examination testified that John W. Price had represented at the time he applied for the policy that he was the owner of the 1958 Plymouth. He further testified that he was advised that Gary M. Holt, a minor under the age of 25, would be driving the automobile. Mr. Killough stated that he asked Mr. Price the information necessary for writing the policy and that Mr. Price answered that he owned the car. After Mr. Killough got the information he thought necessary for issuing the policy he had no further conversation with Mr. Price concerning the ownership or anything else about the automobile.

Mr. Killough testified that he knew the bank had a lien on the Plymouth and that Mr. Price was responsible for paying the bank. Mr. Price, alone, executed the note and lien in favor of the bank and made all the payments credited to the note.

In a written statement signed by Mr. Killough a year before the trial Mr. Kil-lough stated:

“Actually when Mr. Price reported the ’58 Plymouth to be added to his policy I was not certain if he advised that he had bought the car or just who had bought it, but he did say that it (would) be used as a family car, although Mr. Holt would probably be using the car mostly.”

This statement was admitted in evidence by the trial court for impeachment purposes. Mr. Killough testified that this part of his statement was incorrect.

It was agreed between John Price and Gary Holt before the Plymouth car was purchased that only when Gary Holt had fully reimbursed John Price for the cost of the car would it be transferred to him. It was further explained to Gary by Mr. Price that he could use the car but that any time Mr. Price decided Gary was abusing it he would take the keys and deny Gary the right to drive the car at all. It was further understood that if at any time Gary quit making payments on the car, then the car would continue to belong to Mr. Price, and until the car was completely paid for Mr. Price could do with it as he pleased. Gary Holt testified, “there was an agreement with us that it was his car until I paid or reimbursed him in full for it. He had the right to deny or grant me permission to use the car. * * * If I quit making or reimbursing Mr. Price even though I lacked one payment it was understood that it would be his car.”

Mr. H. N. Killough testified John W. Price represented to him when he wrote the policy that he was the owner of the 1958 Plymouth and had he known Mr. Holt, a seventeen (17) year old male, was the real owner of the 1958 Plymouth automobile he could not have written the policy and would have had to submit it to the insurance company for approval.

Mr. Gary Michael Holt called as an adverse witness, testified that he was seventeen (17) years old at the time the automobile was purchased. Mr. Holt testified that he had discussions with his brother-in-law, Mr. Price, to the effect that he was interested in buying a car and Mr. Price would have somebody looking for him to find one. That thereafter, they located this Plymouth car and he, Holt, drove the car home, and that they finally decided it was a good car for Holt to buy. He further testified that he thereafter paid the One Hundred Fifty Dollars ($150.00) for the down payment on the car, which he assumed was all the down payment. He had nothing to do with ordering the insurance or talking to the agent in any manner. He also testified that he made mechanical repairs and bought four (4) new tires for the 1958 Plymouth. He testified that he paid his brother-in-law and his sister the money to reimburse them in full for the payments on the car as well as the payments on the insurance. He also paid them for buying license plates for the car as well as oil and gas. He further stated that at the time of the accident with Mrs. Jaffa, he was living with a friend of his, Herman Herring. He then summarized the transaction as follows:

“Q All right. Let me ask you this; was it your understanding that you were actually going to pay for the car; isn’t that true?
A Yes, sir.
Q And that your brother-in-law and your sister wouldn’t have to pay any of it, that you were going to pay it all?
A I was going to reimburse them for getting the car for me.
Q Just answer my question; were you going to pay them back for the purchase price of the car, or not?
_ A Yes.
Q All right, now wasn’t there some agreement that he was supposed to register the title of that automobile in your name ?
A After it was paid for.
Q After it was paid for?
A By me.
Q Was that because you couldn’t go down and borrow the money at the bank since you were a minor?
A Yes, sir.”

Mr. Melvin George, the State Agent for Cimarron Insurance Co., Inc., testified that under the circumstances if a seventeen (17) year old minor who owned an automobile had applied for the insurance, the company would not have written the risk because it was prohibited from writing such a risk under the underwriting principles of the Cimarron Insurance Co., Inc.

Mr. John Price was then called as a witness by the appellees, and the certificate of title as well as the payment book were introduced. Under cross-examination Mr. Price testified that the reason the car was taken in his name was because his brother-in-law, Gary Michael Holt, was a minor and the bank would not loan Gary the money. He further testified that- he had borrowed the money actually on behalf of his brother-in-law. He also testified that his wife received the full payments from Mr. Holt for the Wynnewood State Bank as well as the insurance policy, and in turn made the payments in connection therewith. He further testified as follows:

“Q Mr. Price, we know that. Would you just answer my question? Actually, you were holding the title to it in your name until he paid it off, isn’t that true?
A Well, that’s true if that’s what that means. That the title was in my name until it was paid off. That’s true if that’s what that means, yes sir.
Q All right. And he had paid the down payment on the automobile, isn’t that right ? Gary had ?
A I believe that he gave my wife the amount of the down payment.”
Mr. Holt testified:
“A Well, if I may do some explaining, the automobile that I was driving at that time, whatever needed to be done, was the one that was in the driveway last, whether it was Mr. Price’s panel truck or mine; or not my car, but Mr. Price’s car. Excuse me. If I may go on as an explanation, when I state it was my car, it was the fact that I drove this one rather than the other, such as on dates, or weekends, or when I had an appointment at the dentist I would ask John’s permission.”

Mr. Price testified regarding his conversation with Mr. Killough, “I told him that * * * well, I felt that I was the owner of the car since I had control of it, and it was in my name.”

There is no evidence that Mr. Price represented to appellant or its agents that he was the “sole owner” of the Plymouth, nor does the policy in suit contain such phrase. The term used in the policy is “owned automobile” which phrase is defined in the policy as a vehicle of the type enumerated “owned by the named insured.”

It is our opinion that there is evidence of probative value to sustain the finding of the jury failing to find that Mr. Price was not the true owner of the Plymouth when it collided with the car driven by Mrs. Jaffa.

Unquestionably, Mr. Price was vested with some of the indicia of ownership. He possessed the legal title. He was obligated to pay the bank the balance owing on the car. He controlled the use of the car pending reimbursement for the cost and transfer of title to Holt. He purchased the insurance policy from appellant.

In Pioneer Mut. Compensation Co. v. Diaz, Tex.Civ.App., 178 S.W.2d 121, El Paso, affirmed, 142 Tex. 184, 177 S.W.2d 202, it was held that a person having the legal right to have the title certificate to an automobile transferred to him was the “sole” owner of the car under an insurance policy calling for such ownership.

Here, it is undisputed that the right of Holt to have the title to the Plymouth transferred to him when the accident occurred had not matured. He had not fully paid for the car and Mr. Price was under no legal duty to convey title to him. The converse of the rule stated in Diaz should apply to this case. The title to the Plymouth had to be in someone. If it was not in Holt and he was not legally entitled to it, then it must be in Price.

Churchman v. Ingram, 56 So.2d 297, La. Court of Appeals, Second Circuit, is very closely in point and is particularly persuasive because it applied what it considered to be Texas law to a Texas contract. The facts there were that a father purchased an automobile for his twenty year old son for $1700.00. A down payment of $546.00 was made, mostly from money belonging to the son. The father, alone, made a note for the balance, it being contemplated that the son would pay the installments on the note as they came due. Certificate of title to the car was issued to the father. A policy of liability insurance covering the car was issued to the father. The son took possession of the car and while driving it was involved in a collision with the ensuing litigation. The insurance policy-issued to the father provided that the insured was the “sole owner” of the car, and it was alleged that the father so represented.

In holding that the father was the true owner of the car the Court after discussing Hicksbaugh Lumber Co. v. Fidelity and Casualty Company, Tex.Civ.App., 177 S.W.2d 802, Galveston, n. w. h., and Diaz, supra, stated:

“We think the holdings in the above cases, which accord with other numerous cited authorities, is thoroughly sound. As we appreciate the holding the effect is that the mere formality of the registration of title is not controlling and conclusive evidence as to ownership. A test of true ownership as fixed by the Texas Courts is set forth as being a legal right to compel the assignment and transfer of the certificate of title to a vehicle. Certainly under the facts of the instant case Jack W. Ingram, Jr. had no right to compel the transfer and assignment of legal title and until he became of age he could not acquire ownership of the vehicle. We think the facts are overwhelmingly opposed to the contentions advanced on behalf of defendant. Jack W. Ingram, Sr. was not only the holder of the certificate of title but he and he alone was obligated for the payment of the encumbrance against the vehicle amounting to some $1,300.00 more or less. How then can it be contended that Jack W. Ingram, Jr., despite his possession and use of the car, was the true owner, even giving due consideration to the fact that he had contributed several hundred dollars toward the purchase of the automobile. Clearly young Ingram was entitled to the use and possession of the automobile in question only by permission of his father and subject to his father’s control. * * * Even as mere registration of title is not conclusive as to ownership, so possession and use is not conclusive. All the facts bearing upon the question of ownership must be considered and evaluated. We^ are firmly convinced that by any standard or under any requirement, Jack W. Ingram was the sole owner of the automobile in question.”

We emphasize that the above case involved a “sole owner” clause, whereas, our case does not.

We also note that in Churchman the Court did not point to any evidence that the son was required to obtain the father’s permission to use the car. There is evidence here that Mr. Price had control of the use of the car by Holt.

We hold that there is evidence of probative force to support the finding of the jury which is the subject of the points under discussion. We also hold, from a consideration of all the evidence, that such finding is not so against the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.

Appellant’s third point is that the trial court erred in refusing to instruct the jury in connection with a requested special issue identical with the one submitted, copied above, such instruction being:

“In connection with your answer to this Special Issue, you are instructed that the fact that the certificate of title to the 1958 Plymouth automobile was in the name of John W. Price merely creates an administrative presumption which vanishes when positive evidence to the contrary is introduced.”

To sustain this point, appellant cites Diaz, supra, and Truck Insurance Exchange v. Schuenemann, 391 S.W.2d 130, San Antonio, writ ref., n. r. e.

We need not discuss the merits of this point for the reason that it is procedu rally deficient.

Appellant did not object to the special issue given by the court nor to the instruction accompanying it. The failure to object to an issue submitted is not cured by requesting a special issue on the same subject even though the requested issue may be correct. City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176; City of Denton v. Hunt, Tex.Civ.App., 235 S.W.2d 212, Fort Worth, writ ref., n. r. e.; Hardware Dealers Mutual Fire Ins. Co. v. King, 408 S.W.2d 790, Tex.Civ.App., Austin (11-9-66); Rule 274, Texas Rules of Civil Procedure, Hodges, Special Issue Submission in Texas, Sec. 69-73.

We express the opinion, however, that the requested instruction is erroneous. It is quite true that a legal presumption vanishes when positive evidence contrary to it is admitted, but it is equally true that the evidence which gave rise to the presumption in the first place does not vanish. It remains and is accorded its proper probative value. This subject is extensively discussed in the following authorities: Southland Life Insurance Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854, Blanks v. Radford, 188 S.W.2d 879, Tex.Civ.App., Eastland, writ ref., w. o. m.; Roberson v. Allstate Insurance Co., 278 S.W.2d 179, Tex.Civ.App., Waco, writ ref., n. r. e.; Crow v. City of San Antonio, 294 S.W.2d 899, Tex.Civ.App., San Antonio, reversed on other grounds, 157 Tex. 250, 301 S.W.2d 628; McCormick and Ray, Texas Law of Evidence, 2nd ed. p. 72, fn. by Professor James B. McBaine.

Appellant’s last point is that reversible error was committed by counsel for appellee in making the following argument to the jury:

“ * * * In other words he wanted to issue the policy. He wanted to get the policy in force. He wanted to collect the premium on the policy. Ladies and gentlemen, they issued the policy. They got the money on it, and to this good day they haven’t offered to refund it.”

Appellant’s objection to this argument was that there were neither pleadings nor evidence to support it. It also moved for a mistrial. The objection and motion were overruled.

It is true that there were no pleadings and no evidence in support of the statement that the premium paid had not been tendered to appellee.

It is our opinion that this argument, erroneous as it was, does not constitute reversible error under Rule 434, T.R.C.P.

Jurors are too intelligent not to realize that whether an offer to return a few dollars in premiums is made is of small practical importance when thousands of dollars are at stake.

Finding no reversible error, the judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: CLAYTON, Justice. PRESLAR, Justice

license: Public Domain

text:
    Cora ZIMMERMAN, Appellant, v. TEXACO, INC., et al., Appellees.
    No. 5775.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 23, 1966.
    Rehearing Denied Dec. 21, 1966.

      Sanders, Masters & Watson and H. W. Sanders, Wichita Falls, for appellant.
    F. H. Pannill, W. B. Browder, Jr., W. N. Sands, Horace N. Burton, Jack T. Akin, John W. Marlow, J. D. Moon, Midland, Ross Madole, Donald G. Canuteson and Edwin A. Collier, Dallas, for appellees.
   OPINION

CLAYTON, Justice.

This is an oil drainage case. Cora Zimmerman, the appellant, filed suit in the District Court of Gaines County, Texas, against appellees Texaco, Inc. and Sinclair Oil and Gas Co., Tenneco Oil Company, So-cony Mobil Oil Co., Inc. and The Atlantic Refining Co. Appellant alleges that she owns an unleased, undivided ½2⅛ mineral interest in a tract on which Texaco, Inc. owns the remaining leasehold interests (J. H. Syler Lease) and had drilled and operated 16 wells under its leases which cover the other U/Í2ths mineral interests, but without any operating agreement with appellant. The fields involved are in Gaines County, Texas, referred to as the Robertson Field, covering the Upper Clearfork Formation and the Robertson North (Clearfork 7100') Field covering the Lower Clearfork Formation. Appellant alleged that the other appellees operated wells oh tracts adjoining the tract in which she owned an interest.

Appellant alleges that while operating under the Syler Lease Texaco, in January, 1962, began to test its wells on the schedule daily allowable basis, whereas it knew, from working interests with the other operators, or otherwise, that all these operators were testing on the calendar-day allowable, thus producing on top allowables and due to their methods of operating, were draining oil from under the J. H. Syler leased lands, and consequently draining oil from under the land in which appellant owns her interest. She figured that the drainage from her interest in the year 1962 amounted to 1,853 barrels, and for the first six months of 1963 the amount was 1,225 barrels, a total of 3,078 barrels, of the value of $9,234.00 for the Upper Clearfork Formation alone. From the Lower Clearfork Formation, during the same eighteen month period, drainage from her interest was calculated by her at 3,613 barrels of the market value of $10,839.00. Appellant further alleges that from July, 1963 to January, 1964 she was damaged by drainage at the rate of $513.00 per month from the Upper Clearfork, and $602.17 per month from the Lower Clearfork Formation.

Prior to the filing by appellant of this suit, the Railroad Commission of Texas, after requests by appellant, and on its own motion, held a hearing on the matter of standardization of well testing requirements and allowable assignments for all wells in the Robertson and Robertson North (Clear-fork, 7100') Fields, at which hearing appellant and all appellees were represented. The Commission found that testing procedures and manner of reporting utilized by the operators varied, and that such test results, coupled with Commission practice in allowable assignments to limited capacity wells, had caused inequities in allowed production to exist among the several producing properties, but did not find any of ap-pellees guilty of any illegal or over-production. The Commission then ordered, effective December 13, 1963, that “The individual wells completed in the Robertson North (Clearfork 7100') Fields, Gaines County, Texas shall be periodically subjected to gas-oil ratio tests, and other production tests that will demonstrate the ability of each of such wells to produce oil, provided that it shall not be required that a well either be tested at the schedule allowable rate, nor that a certification be made that such a well can produce at the schedule allowable rate for any such well to be entitled to produce its allowable as fixed by the applicable field rules and the general statewide market demand order * * * ” and, “That this cause be held open on the docket for such other and further orders as may be necessary.” No appeal was taken from this order.

Involved in this suit, as set out in appellant’s First Amended Original Petition, are damages by drainage of land in which appellant had her interest prior to the Railroad Commission’s order of December 13, 1963, for which it is claimed that the ap-pellees other than Texaco are liable, and appellant claims that Texaco also is liable, because “the drainage was caused either by the negligence of Defendant Texaco Inc. or by its choosing to deliberately ignore the drainage in order to harm Plaintiff.” In addition to actual damages, exemplary damages are prayed for.

In the second count of appellant’s First Amended Original Petition, on which trial was had, appellant alleged in the alternative as follows:

“Second Count
“In the alternative, this Plaintiff alleges that in the event it is found that Defendants did not overproduce their leases and thus drain the Syler Lease, then, and only in that event, this Plaintiff alleges that Texaco Inc., Defendant herein, did not operate the J. H. Syler Lease in a reasonable and prudent manner commencing January 1, 1962, and continuing to January 1, 1964, for the reason that it produced its wells on schedule daily allowable tests while its neighbors were producing their wells on the calendar-day allowable tests; and Defendant Texaco Inc. took no action to restrain the offset operators from producing on the calendar-day allowable. Such action on the part of Texaco Inc. resulted in the drainage alleged in paragraphs Nos. 16 and 17 above, which are incorporated herein by reference.
“25.
“Plaintiff further alleges in this Court that Defendant Texaco Inc. deliberately operated the J. H. Syler Lease in such manner as to deprive this Plaintiff of her fair share of the production in and under the lands covered by said lease and from the two reservoirs above alleged maliciously and wantonly and for the purpose of depriving this Plaintiff of the oil and gas in and under her said land and also for the further purpose of forcing her to either lease her undivided ½2 interest to Texaco Inc. or to sign an operating agreement or to sell her interest. This Plaintiff further alleges that Texaco Inc. has practiced upon her the oldest, most time worn, and most despicable fraud known to the oil industry which is charging this Plaintiff excessive costs in equipping and operating the lease and deliberately cutting down her production in order to ‘squeeze her out’ and make her sell her interest at a low price.
“This Plaintiff alleges that such action on the part of the Defendant Texaco Inc. was calculated and deliberate and continuing. WHEREFORE, This Plaintiff alleges that she should be awarded $100,000.00 exemplary damages against Texaco Inc.”

Appellant ended with the following prayer:

“WHEREFORE, Premises considered, this Plaintiff prays that in the event, and only in the event, that the Court finds that the Defendants under First Count are not liable to Plaintiff, that Plaintiff on final hearing hereof recover of and from Texaco Inc. a judgment in the amount of $20,073.00 drainage for the period of time from January 1, 1962, to July 1, 1963,' and the sum of $1,115.17 per month drainage from July 1, 1963, to January 1, 1964, plus $100,000.00 exemplary damages, costs of suit, and such other and further relief, in law or in equity, to which Plaintiff may show herself justly entitled.”

Each of the appellees filed similar Pleas in Abatement claiming that appellant had not exhausted her remedy before the Railroad Commission and the suit should therefore be abated until the remedy before the Railroad Commission be exhausted. These Pleas in Abatement and all Special Exceptions filed by appellees were overruled.

The appellees then each filed motion for Summary Judgment, after which appellant filed her First Amended Original Petition, in which she omitted any and all allegations as to the existence of a conspiracy, and attention must be directed to this fact along with the matters set forth in this opinion that deal with the second count of her amended petition, which is concerned with Texaco, Inc. only. As will appear from said petition, her first count remains the same with the exception of having dropped the conspiracy charge. In this count she seeks to recover damages against appellees, jointly and severally, for alleged wrongful drainage of oil during the years 1962 and 1963, and for exemplary damages. The trial court granted these Summary Judgment motions, reciting in his order:

“It is therefore ORDERED, ADJUDGED and DECREED that the motions for summary judgment filed herein by the defendants, Texaco Inc., Ten-neco Oil Company, Sinclair Oil & Gas Company, Socony Mobil Oil Company, Inc., and The Atlantic Refining Company, be, and they are hereby, each granted and sustained and that judgment be, and the same is hereby rendered for the defendants and against the plaintiff, that plaintiff’s suit be dismissed with prejudice for want of jurisdiction and that plaintiff take nothing by her suit against the defendants, and that all costs in this behalf expended be adjudged against the plaintiff, for which let execution issue.”

This order of the trial court is attacked by appellant under six points of error, as follows:

“POINT ONE'
“The Court erred in finding that it had no jurisdiction and in granting summary judgment of dismissal for want of jurisdiction.
“POINT TWO
“The Court erred in holding that it had no jurisdiction under Motions for Summary Judgment, when it had already decided that same issue in response to Pleas in Abatement.
“POINT THREE
“The Court erred in finding that there was no genuine issue of material fact under First Count of Plaintiff’s First Amended Original Petition and in granting Summary Judgment thereon for the Defendants.
“POINT FOUR
“The Court erred in finding that there was no genuine issue of material fact under Second Count of Plaintiffs First Amended Original Petition and in granting Summary Judgment thereon for-the Defendant.
“POINT FIVE
“The Court erred in dismissing Plaintiff’s suit with prejudice.
“POINT SIX
“The Court erred in entering a ‘take nothing’ judgment against Plaintiff.”

We come now to the consideration of the court’s decision or holding. Appellees earnestly argue the consideration that the court’s judgment was correct because it was obvious that the District Court of Gaines County had no jurisdiction in this matter. It is apparent from the record that appellant’s complaint against the appellees (having dropped her conspiracy charge) consists of her allegations that the appel-lees, who operated abutting or adjoining oil properties or leases, had over-produced their properties. She contends that this point is made by claiming that the appellees had secured higher allowables; or, in other words, had been given permission by the Railroad Commission to produce more oil than they should have; that said Commission granted these allegedly excessive al-lowables because of testing records and information submitted by the appellees. In other words, this is a dispute or comparison of what is called the “calendar-day allowable” test versus the “schedule daily allowable” test. She seeks money judgments from the appellees, alleging that they secured improper and excessive allowables because of their methods of testing the production of their wells. After correspondence and communications between appellant, her agents, and attorneys, with the Railroad Commission, the Commission, on its own order, set down a hearing in August of 1963. In her communication with the Railroad Commission appellant charges that there are different methods of testing wells in the fields herein involved, and that such resulted in unequal or inequitable al-lowables granted to the various producers. She asked the Commission to standardize the method of testing. After hearing the parties involved in August of 1963, the Railroad Commission handed down its order of December 13, 1963 which states that the Commission found that testing procedures and the reporting of same utilized by the operators in the field varied, and that such, coupled with the Commission practice with reference to limited capacity wells, have caused inequities in allowed production to exist among the several producing properties in the field, and that a uniform standardized testing procedure was needed. However, it must be noted that in this order, which goes on then to outline the procedure, it was not found, and in fact there is no allegation made, that any of the appellees had violated any order or regulation of the Commission, and such order did not find or even discuss the possibility that any of the appellees had done anything illegal or unlawful, the order merely standardizing the method of testing and the certification of the results from said tests so that an equity of allowables would be accomplished.

It is elementary that the Railroad Commission of Texas, a body created by legislative action, is the one endowed with primary authority to regulate the production of oil and gas in the State of Texas for the purpose of conservatiom.and regularity; and so it is to this Commission that the oil companies must go to have the al-lowables of their wells set and determined. In order to accomplish this, the operators or producers send in information applicable thereto on documents described as Form GO-2. From information received, the Commission then makes, sets and continues to adjust orders and allowables as needed. This is the duty and obligation of the Commission as provided by the Legislature. The Legislature also provided that orders dealing with the production allow-ables of gas and oil as made by the Commission can be attacked directly only in a district court of competent jurisdiction in Travis County, Texas. Here, the suit was filed in Gaines County, Texas and accuses the appellees of over-production by virtue of having secured an improper and/or excessive allowable from the Railroad Commission. We do not believe the District Court of Gaines County had jurisdiction to pass on this matter. There are cases where the parties can bring their suits in matters similar to this in counties other than Travis County, but this is where they have charged a violation of an order or regulation of the Commission, committed a common law tort such as trespass, etc., or some affirmative act of negligence, against another producer, or have drilled or are attempting to drill or produce oil or gas without any permit or regulation from the Commission. Such is not the case here. Comanche Duke Oil Co. v. Texas Pac. Coal & Oil Co., 298 S.W. 554 (Tex.Com.App.,1927); Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411 (1961); 42 Am. Jur. 698, § 254 ; 73 C.J.S. Public Administrative Bodies and Procedure § 40, p. 347; Kavanaugh v. Underwriters Life Ins. Co., Tex.Civ.App., 231 S.W.2d 753 (err. ref., 1950); Railroad Comm. v. Gulf Production Co., 134 Tex. 122, 132 S.W.2d 254 (1939); Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 87 S.W.2d 1069, 99 A.L.R. 1107, 101 A.L.R. 1393 (1935); Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961.

The above cases discuss the powers and duties of the Railroad Commission and of similar bodies, and the exceptions thereto which permit a suit for damages arising out of common law tort, and/or the violation of a Railroad Commission rule, and/or the drilling of a well, or production of oil or gas without any permit from the Railroad Commission. From the above, it seems clear that the trial court was correct in holding that he had no jurisdiction to hear this matter.

Secondly, it is our belief that appellant’s cause of action constitutes a collateral attack on orders or regulations of the Railroad Commission. This procedure is not permissible and is another reason why the trial court was correct in holding that he did not have jurisdiction, that there were no material matters of fact in issue, and that judgment should be granted in favor of appellees. The matter of a collateral attack on an order by the Commission is discussed in 43 Tex.Jur.2d, Oil and Gas, § 658, pp. 593-594, and is thoroughly discussed in an article found in 33 Texas Law Review 680, 682.

For these reasons we hold that the judgment of the trial court was correct. We also hold that the adjoining appellees named in the First Count had not been guilty of any wrongs or crimes, but had tested and produced under methods acceptable and allowed until the order of December 13, 1963. Appellant here asks for damages occurring prior to the year 1964.

Also, we believe the trial court was correct in awarding a “take-nothing” judgment because appellant had asked for varying items of damage for which she asked specific sums. Not being entitled to such damages, a take-nothing judgment was therefore proper.

Appellant also attacks the wording of the order of the trial court wherein he states that the suit is dismissed “with prejudice”. Such an order is, of course, usually a determination of the merits of the lawsuit, rather than a plain dismissal; but we think it proper here because the court, in effect, is saying that, based on the matters presented to him, this matter cannot be tried in his court for jurisdictional reasons; and even if it could, appellant has not shown herself to be entitled to any damages.

Appellee Texaco Inc. is the only ap-pellee affected by the second count of appellant’s petition. We do not think appellant has shown any liability in her favor on the part of Texaco, and again we believe and find that the decision of the trial court was correct. First, in her petition the appellant states that in the event it is found that the various appellees (defendants) did not over-produce their leases abutting and adjoining hers, as alleged in the First Count, and thus drain the Syler Lease (the property with which appellant is concerned), then and only in that event does plaintiff allege that Texaco Inc. is liable for improper operation of the said Syler Lease. We could, perhaps, stop with that assertion, but we will discuss other defenses enumerated by Texaco.

First of all, it is obvious that Texaco and appellant are co-tenants of the Syler property by virtue of the fact that appellant owns a ¾2⅛ part of the mineral interest, and Texaco has the other 1%2ths under lease. Appellant urges that Texaco permitted some of the oil on the Syler Lease to be drained off by the abutting or adjoining owners. There is no controversy here about the interests owned by Texaco and appellant. Also, there is no proof or allegation that there was any agreement, covenant or contract between Texaco and appellant with reference to the operation of the Syler property. There was no lessor-lessee relationship or any other contractual relationship between the parties, and none can be implied from the record. Therefore, the parties stood in the relationship of co-tenant, each with the other. The law is clear that one co-tenant does not have an affirmative duty to drill and produce for the benefit of the other co-tenant. Although appellant urges and seeks to impose some affirmative duty on Texaco to prevent the alleged drainage and to ask for proper standardization of testing methods, the law does not so require. Appellant had the same privileges and rights and, as this record shows, did exercise them by appealing to and getting from the Railroad Commission an order calling for standardization of testing methods and information. Then, too, there exists no fiduciary or agency relationship between co-tenants or tenants in common, in the absence of agreement or contract so providing. Therefore, 'regardless of what appellant claims and urges in her petition, Texaco was not only not obligated, but actually had no right or authority to represent her before the Commission. There are many cases dealing with and outlining the rights of co-tenants in oil, gas and mineral properties, and the following are cited: Burnham v. Hardy Oil Company, Tex.Civ.App., 147 S.W. 330, (aff’d. 108 Tex. 555, 195 S.W. 1139); Willson v. Superior Oil Company, Tex.Civ.App., 274 S.W.2d 947 (n.r.e.); White v. Smyth, 147 Tex. 272, 214 S.W.2d 967, 5 A.L.R.2d 1348.

As stated in the Willson case, supra, each owner in a co-tenancy acts for himself, and no one is the agent for the other, neither having any authority to bind the other unless authorized to do so.

Also, it should be noted at this point that we have not found, nor does the record disclose, any evidence of improper or unlawful testing or production on the part of the appellees who own and operate adjoining property; so under the Texas law of “right of capture”, the oil they produced was under a specified allowable granted by the Railroad Commission, and they were entitled to it. If there was over-production in the manner stated by appellant resulting in the drainage from appellant’s property, it was and could only have been corrected as the Commission did in its order of December, 1963.

With respect to the holding of the court that there were no material matters of fact presented or in contest, it should now be obvious that this holding was correct, as the disputes alleged by appellant to exist between her and the various appellees involved jurisdiction of the court, and rights and duties of co-tenants, and all are based on matters of law or legal construction of actions by the various appellees and/or the Railroad Commission.

We will not take up the many cases cited by appellant individually, but it appears to us that these cases are not decisive or in point, as they appear to deal with tort problems and/or violations, none of which conditions prevail in the matter before us.

There is one last matter that we think should be briefly discussed, and that is appellant’s complaint that the wells of appellees on adjoining properties, although reported as being capable of making their schedule daily allowables, did not have adequate equipment to produce that much oil. We do not find any merit in this contention because, as we have set forth above, all appellees admittedly sent in their GO-2 forms containing information as to the testing of their wells. The record shows that all of the allowables granted by the Railroad Commission were well below the capable or potential production of the wells, and it would have been useless and expensive to install equipment competent to extract the maximum allowable. This situation comes about because of the practice of the Railroad Commission in making allowable assignments to “limited capacity wells”. There is no fact dispute with regard to this matter either. This situation, as stated, comes about by virtue of the Railroad Commission’s attempts to prevent inequities. In other words, it might well be that a well had an allowable (as stated in Texaco’s brief) of 90 barrels daily assigned to it by the Railroad Commission’s Semi-annual Proration Schedule, but due to what is called the “market demand factor”, the well was actually limited to 28.5% of its monthly allowable. This percentage, of course, varies somewhat from month to month. This is what is known as a limited capacity well. Therefore, it would be useless and expensive to install equipment capable of producing 90 barrels a day, which was the set allowable, when, as a matter of fact, under the Railroad Commission’s regulations, the well could be permitted to produce only 28.5 per cent of its monthly allowable, and this, of course, could be done with smaller and less expensive equipment.

On the basis of the above reasons and authorities, we hold that the trial court was also correct in its judgment as it affects Texaco Inc., and of course it will be noted from the record that appellant was claiming money damages from Texaco. Since the same problems of non-liability and lack of jurisdiction existed as to the other appellees, the “with prejudice” and “take-nothing” features of the court’s judgment are, in our opinion, properly included.

Appellant’s points are all overruled and the decision of the trial court is in all things affirmed.

PRESLAR, Justice

(concurring).

I concur in the affirmance of the trial court judgment, but cannot agree with the majority holding that the District Court of Gaines County had no jurisdiction to pass on the matter. Briefly, my position is that this is a suit for money damages which does not seek to alter or challenge the validity of an order of the Railroad Commission of Texas.

Article 6049c, section 8, Vernon’s Ann. Tex.Civ.St., provides, in part, that any person aggrieved “ * * * by any rule, regulation or order made or promulgated by the Commission thereunder, and who may be dissatisfied therewith, shall have the right to file a suit in a Court of competent jurisdiction in Travis County, Texas, and not elsewhere, against the Commission, or the members thereof, as defendants, to test the validity of said laws, rules, regulations or orders.” This does not make the Commission a court nor give it powers and jurisdiction to determine a suit for damages by one party against another for taking his oil or against his cotenant for not producing enough of it for him.

The gravamen of appellant’s suit in the District Court of Gaines County is that during the period of time covered by her complaint, two different methods of testing for determining allowables were permitted by the Commission; her co-tenant, Texaco, used one method, and the adjoining producers used the other, and the method used by the adjoining producers resulted in larger allowables to them. This, she says, resulted in drainage from her properties, for which they owe her the money value; or,- if the court finds she cannot recover from them, then she should recover from Texaco for not producing as much as the adjoining producers. It is not contended that the oil was produced illegally. Indeed, she could not make that contention without being in the position of complaining that Texaco should also have operated illegally for her benefit. The orders of the Railroad Commission providing for the methods of testing are not attacked; in fact, no complaint of any nature is lodged against any Commission order or regulation. All complaints are of the acts of the appellees, and appellees’ only connection with the Railroad Commission is that they operate under and are regulated by it. Stripped of its descriptive wording, the nearest thing to a violation of a Commission regulation alleged in appellant’s petition is that the appellees reported to the Commission that their wells were capable of producing greater amounts of oil than they were, in fact,' equipped to produce. That, as explained by the majority opinion, was a proper response to the Commission’s inquiry as to the wells’ potentials. Whether it was, or was not, a proper response or compliance with the Commission regulation was a question to be determined by the court, even as this court determined it. It was made the basis of a claim for money damages, one party against another. Only a court could pass on it. I am convinced that there are no issues in this case, however determined, which would alter or invalidate any order of the Texas Railroad Commission, and that the issues here presented are not exclusively within the jurisdiction of the Railroad Commission or the District Court of Travis County. Jurisdiction deals with the power of a court to determine an action involving a particular subject matter as between the parties, and to render judgment. The District Court of Gaines County had that power in this case, unless the above-quoted provision of Article 6049c took that power away. As I view the case, it did not, and the court had jurisdiction to render the judgment, and was correct in its rendition. The conclusions here reached on the question of jurisdiction are supported by the case of Woods Exploration & Production Company v. Aluminum Company of America, Tex.Civ.App., 382 S.W.2d 343 (err. ref., n.r.e.) and authorities there cited.


author: CHAPMAN, Justice.

text:
    Praxedis J. DOVALINA, Appellant, v. H. A. ALBERT et al., Appellees.
    No. 7661.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 28, 1966.
    Rehearing Denied Dec. 27, 1966.

      Herbert C. Martin, Ochsner, Nobles & Baughman, Amarillo, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., Howard M. Fender and Larry J. Craddock, Asst. Attys. Gen., Larry Craddock, Jr., Austin, of counsel, for appellees.
   CHAPMAN, Justice.

The principal subject matter of this suit constitutes an attack upon the constitutionality of Article 2615f-2, Vernon’s Ann. Texas Revised Civil Statutes (1965), titled Polygraph Examiners Act. Appellant is Práxedis J. Dovalina, who failed the examination required under the named article that is designed to insure that all operators of polygraph equipment in Texas meet minimum standards of competence. Appellees are the members of the Board of Polygraph Examiners, sued individually and as members of the Board. A writ of mandamus was sought requiring the Board to issue a polygraph examiners license to Dovalina, and alternatively that it be permanently enjoined from seeking to enforce the act against him. The case was tried to the court and judgment rendered denying appellant all relief sought.

The first point of error asserts the subject article is void because in violation of the Texas Constitution, Article 1, Section 16, Vernon’s Ann.St. in that it impaired the obligation of valid and subsisting contracts held by appellant prior to the passage of the act and in effect at the time of trial.

The testimony shows that prior to the effective date of the Polygraph Examiners Act appellant was polygraphing pre-employees for Blue Morrow Sales, Inc. and making polygraph examinations on a certain number of employees on a monthly basis selected at random from three companies owned by Mr. Marmaduke. The latter service was upon a written contract.

The strict question presented in this point is whether one performing in the profession of a polygraph operator with a polygraphing business such as Dovalina’s at the time legislation is enacted may be regulated by legislation requiring minimum standards of competence.

It requires no citation of authorities to say that the legislature can regulate the sales of services of people operating in professional areas such as lawyers, doctors, pharmacists, etc., to the extent of insuring that such people possess the minimum standards of skills required of members of their respective professions. From the testimony in this record, and from common sense, it appears that a polygraph operator passing upon the truth or falsity of those he examines should be required to possess minimum skills in order to detect the presence or absence of deception and those conditions which distort the recording. With respect to the skills that must be possessed by a polygraph examiner it has been textually stated, inter alia, that:

“In discerning whether a particular subject has attempted deception, the examiner must select some point' on the polygraph recording as dividing truth from falsehood. Statistics of accuracy are thus directly related to the selected cut-off point and may be adjusted accordingly. This determination depends entirely upon the skill and experience of the operator. His decision concerning the presence or absence of deception must also take into account the subject’s physical and mental condition at the time of the test. Any impairment, such as excessive anxiety, fatigue, prolonged interrogation, or drug or alcohol influence, will distort the recording. Psychiatrists further assert that the polygraph may record subjective and unconscious thoughts involuntarily communicated, and they complain that mere technicians thus may be evaluating emotions and unconscious thoughts.” (Emphasis added.)

In a case involving the questions of the right of the State of Texas to prohibit the use of sweet natural gas for the manufacture of carbon black in the Panhandle field of Texas, despite private contract provisions to deliver same, the United States Supreme Court said:

“The contention is that the contract clause of the Texas Constitution, (Article 1, § 16) unlike that of the Federal Constitution, prevents the State from enacting a police measure which will result in impairing a contract. In support of that proposition, the company cites Travelers’ Ins. Co. v. Marshall, 124 Tex. 45, 76 S.W.2d 1007, 96 A.L.R. 802, decided by the Supreme Court of Texas in 1934. But that case does not support the proposition. The statute there held void was a moratorium statute specifically directed against the terms of contracts. The statute here challenged is not directed against any term of any contract. It deals merely with the use of an article of commerce; and its effect upon contracts is incidental.”

The Travelers’ Ins. Co. case cited in the quote just made is one of those cases relied upon by appellant and is distinguished from our case just as it was distinguished in Henderson Co. v. Thompson, supra. The statute there held void involved moratorium legislation directed against the terms of contracts. Here as in Henderson the statute challenged is not directed against any term of any contract and its effect upon contracts is only incidental. See also State v. Missouri, K. & T. Ry. Co. of Texas, 99 Tex. 516, 91 S.W. 214, 5 L.R.A.,N.S., 783 (1906) wherein the Court of Last Resort of Texas held parties to the contract that violated an anti-trust statute could not continue activities that had become illegal by legislative action even though when contractually provided for it was legal.

But appellant contends the regulation of contracts may not be given retroactive effect. The cases he relies upon involved such situations as contracts on which there had been partial performance prior to the challenged legislation, such as recovery for real estate fees for services commenced before a license was required to sell real estate or cases of like import. There is not anything in this record to indicate a contention that appellant would have been prohibited from recovering for polygraph examinations performed prior to the effective date of Article 2615f-2.

Appellees have well stated by brief that if appellant’s “ * * * means of livelihood is a right of protection against infringement by the Constitution then the means of livelihood of those who are subjected to polygraph examination by him is also protected, and if such people are to be screened from employment on his recommendation, surely the legislature is not prohibited from enacting legislation to insure that such people will not be unfairly judged.” The point is overruled.

Appellant’s Point 2 attacks the constitutionality of Section 8, the “grandfather” clause of the subject article.

We do not consider the cases he cites furnish proper authority for his contention. The case of Falfurrias Creamery Company v. City of Laredo, 276 S.W.2d 3S1 (Tex.Civ.App.-San Antonio 1955, writ ref’d n. r. e.), is the only Texas case cited. The case concerned an attempt by the City of Laredo to require independent milk inspection by the health inspector of that city of milk delivered therein which had passed inspection by Falfurrias Creamery Company even though an inspection service was maintained by the latter city which was fully approved and accredited by the state authorities. Though the court held a second inspection was an unwarranted restriction of appellant’s rights under the contract clause because public protection was adequately insured by the Falfurrias inspection, there is no indication in the opinion that the court would hold unconstitutional the state-wide inspection act, even though examinations thereunder might infringe upon private contract. The device of the second inspection was simply to protect local dairymen against outside competition.

Neither' do we consider the citations from other jurisdictions as supporting appellant’s contention. For example the Florida Supreme Court case cited by appellant held unconstitutional a Naturopathy Act of the State, not under the usual “grandfather” clause, but which granted special privileges to a limited group, such group being a closed class within a larger closed class. The two other cited cases involved a dispensing optician and a barber. The former was held not to come within the “grandfather” clause for the reason that during the year preceding enactment of the statute governing licensing of dispensing opticians Schwab did not work directly with patients, fitting, or dispensing optical devices, a year of practice in that area before the effective date of the act being the period required under the Arizona act for dispensing opticians. In the case of the barber the court held a part-time teacher of the barber trade, compelled by circumstances beyond his control to give up full time teaching, came within the “grandfather” clause. The “grandfather” clause of the statute of that state provided, inter alia, that if one was operating and instructing in a school of bartering duly licensed under the laws of the state, he might be issued a license without taking examination upon payment of the prescribed fee. The statute we have under construction has no such provision, and additionally we believe the trade or craft of a barber as it affects other people would have little analogy to that of the profession of a polygraph operator as that profession affects the public interest. The point is overruled.

Appellant’s third point contends that Section 18 of the subject act sets forth the grounds upon which the Board may refuse to issue a polygraph license and since failure to pass the examination is not one of the grounds the Board was without authority to refuse a license.

Subsection (7) of Section 18 provides in effect that a license may be refused if the applicant demonstrates unworthiness or incompetence to act as a polygraph examiner as defined by the act. From the record before us the results of the examination taken by applicant clearly demonstrated his incompetence. Additionally: “Each part of the statute is to be considered in connection with the entire enactment, in order to produce a harmonious whole and to reach the true legislative intent.” 53 Tex.Jur.2d, Section 160, Statutes, pp. 231-232. “No inflexible rule can be announced for the construction of statutes. However, the dominant rule to be observed is to give effect to the intention of the Legislature.” Magnolia Petroleum Co. v. Walker, 125 Tex. 430, 83 S.W.2d 929, 934 (1935). A study of the subject act clearly impels the motive of the legislature as being to require a minimum standard of efficiency in polygraph examiners. Therefore, Subsection (7) under Section 7 providing a person is qualified to receive a license who has passed an examination conducted by the Board, or under its supervision to determine his competency must be considered. That part of the statute eliminated appellant under the record before us.

The last point contends there was* reversible error in refusing appellant a license because the Board itself was not legally constituted to serve as a Board, to prepare and submit an examination or to grade the examination papers for the reason that they had not passed an examination conducted by the Board, or under its supervision, to determine his competency to obtain a license to practice as an examiner. The statute was passed in 1965, Acts 59th Leg., p. 888, ch. 441 and provided the Board should be appointed by the governor with the advice and consent of the Senate. Section 4(a). The argument under the point contends the Board was not legally constituted to prepare and submit an examination or pass on the answers thereto because under Subdivision (7) of Section 7 a person qualified to receive a license must have passed an examination conducted by the Board. If this is required of the initial Board it is obvious that the governor’s appointments and the Senate’s confirmation thereof are null and void, as all appointees must have passed an examination conducted by the Board with no Board in existence. Thus, the entire act would be a nullity. There simply would be no way to bring the Board into existence. It would be like trying to bring a chicken or egg into being without the existence of either.

Though analogous to our own case only because it involves statutory construction, the Supreme Court of Texas has held in a case involving the construction of the act providing for workman’s compensation for employees of the state highway department that:

“A statute will not be construed so as to ascribe to the Legislature an intention of doing an unjust thing by its enactment, or of causing confusion thereby, if the statute is reasonably susceptible of a construction showing the Legislature’s intention to have been otherwise.”

In 53 Tex.Jur.2d, Section 165, p. 243, it is textually stated:

“The court will never adopt a construction that will make a statute absurd or ridiculous, or one that will lead to absurd conclusions or consequences, if the language of the enactment is susceptible of any other meaning. Nor will application be made of any rule of construction that, in the circumstances, will lead to absurdity. Thus, a statute or provision should not be given a construction rendering it fruitless, futile, meaningless, purposeless, or useless, if the language can be otherwise construed. The reason of the rule is that the legislature is not to be credited with doing or intending a foolish, useless, or vain thing, nor with requiring a futile, impossible, or useless thing to be done.”

The record shows by at least two members of the Board that different members made up separate areas constituting the examination in question and that each member knew the questions and answers. Though not taking the examination along with appellant and others not on the Board, Captain Wynne testified: “We had already taken it [the examination], as I testified before, several times.” Mr. Albert, Chairman of the Board, was trained by the Department of Public Safety examiner and is now supervisor charged with the responsibility of training Department of Public Safety examiners only. He testified his personal opinion was that the examination given to appellant, which he failed, was not rigid enough.

Considering Article 2615f-2 as a whole, we do not believe the denial of a license to appellant by the Board violated the statutory requirements nor denied him due process of law.

There is at least an inference in the record that Captain Wynne graded appellant’s paper and failed him because he is a competitor in Amarillo. Captain Wynne testified he graded the papers without giving any attention to whose they were but did notice when he was partly finished with appellant’s paper that it was Mr. Dovalina’s, so he handed it to another member of the Board to grade.

Since the case was tried to the court the ordinary presumptions would have to be indulged in favor of the judgment.

Accordingly, the judgment of the trial court is in all things affirmed.

      . Lie Detectors in Private Employment: A Proposal for Balancing Interests, 33 George Washington Law Review, p. 932 at pp. 934, 935.

      . Henderson Co. v. Thompson, 300 U.S. 258, 57 S.Ct. 447, 81 L.Ed. 632, 638.

      . That section provides in effect that one actually engaged in the profession of a polygraph examiner and using an instrument which records visually, permanently and simultaneously a subject’s cardiovascular pattern, respiratory pattern and other physiological changes, shall, upon application, within ninety days after the effective date of the act be issued a license effective for a year, provided he satisfies the requirements of Section 7 (1) and (4) (21 years of age and having not been convicted of a felony or misdemeanor going to moral turpitude) and Section 7(7, 8) with respect to passing examinations conducted by the Board to determine competency and the making of a surety bond or insurance policy conditioned that the obligor will pay to the extent of the face amount of the bond or policy all judgments recovered against the licensee by reason of any wrongful or illegal acts committed by him in the course of his examination.

      . Eslin v. Collins, 108 So.2d 889 (1959).

      . State Board of Dispensing Opticians v. Schwab, 93 Ariz. 328, 380 P.2d 784 (1963); State ex rel. Krausmann v. Streeter, 226 Minn. 458, 33 N.W.2d 56, 4 A.L.R.2d 662 (1948).

      . State Highway Dept. v. Gorham, 139 Tex. 361, 162 S.W.2d 934, syl. 5. 936 (1942).


author: WILSON, Justice.

text:
    STATE of Texas, Appellant, v. Percy Lee CURTIS et al., Appellees.
    No. 4478.
    Court of Civil Appeals of Texas. Waco.
    Oct. 27, 1966.
    Rehearing Denied Dec. 22, 1966.

      Waggoner Carr, Atty. Gen., Robert C. Patterson, Asst. Atty. Gen., Austin, for appellant.
    Martin & Martin, Hillsboro, Leslie King, Austin, for appellees.
   OPINION

WILSON, Justice.

In this eminent domain case con-demnor’s appeal presents a dozen points concerning admission and exclusion of evidence. The first complains of testimony of the land owner that undesirable persons came uninvited to his home from the newly constructed highway. The error in admitting the evidence was waived. Other testimony of plaintiff to the effect that “we had other difficulties such as undesirable people traveling on the road and breaking down and coming in the house at all times of the night” was admitted without objection. Wallis v. Schneider, 79 Tex. 479, 15 S.W. 492; Rowe v. Liles, Tex.Civ.App., 226 S.W.2d 253, 255, writ ref., and authorities cited.

Plaintiff and other witnesses were permitted, over appellant’s obj ection, to testify as to a sale of another 231 acre tract of land for $31,743, and to then express an opinion as to the value of three gravel-bearing acres of this tract (said to be comparable to a portion of the 22 acres condemned) as being $1500 to $1700 per acre. This was clearly error. It would have been permissible to show a sale of comparable property, and the consideration; but to permit witnesses to segregate a portion of the tract asserted to be comparable and attribute a value to that portion is to concoct a standard of comparison and thereby reduce opinion evidence to a guess on an artificial basis. An actual transaction is not then at all the measure offered.

Our problem concerning this, and other errors in the case, is whether they probably resulted in rendition of an improper judgment.

There was opinion evidence from three witnesses, not objected to, that the gravel-bearing portion of appellees’ land had a value of $4000 to $5000 per acre, a total value of from $38,000 to $52,000 for approximately 9(4 acres. The jury found the value of the entire tract condemned to be only $32,000 — more than $12,000 less than the average value, which though strongly controverted, was testified to by appellees’ opinion witnesses. There was opinion evidence of the quantity and value of gravel in place. These, and other factors in the entire record convince us that we are not justified in holding the error to be reversible. In our opinion, for the same reason, the further error in admitting evidence of the reproduction cost of the 40-year-old house on appellees’ farm is not reversible under the entire record. Turner v. Turner, Tex., 1965, 385 S.W.2d 230, 238.

Error is assigned to the overruling of condemnor’s motion to strike all the evidence of the witness Baker as to damage on the ground he considered increased insurance rates. Appellant objected “to this element of damage” concerning insurance rates, and the court did instruct the jury not to consider this portion of the testimony. In such state of the record it was not reversible error to refuse to strike his entire testimony.

Condemnor presents four points arising from new trial proceedings. On the trial appellee, over objection, testified concerning a sale consummated during the trial, of two acres of his farm, which contained gravel, for $3,150 per acre. He testified that negotiations for the sale had been in progress for 1½ years, but the sale had not been effected because of lack of means of ingress and egress. On the next day of the trial condemnor moved to strike testimony concerning this transaction because it was three years after the date of taking, and condemnor was surprised by evidence of a sale which took place during the trial. The trial judge, after a hearing in the absence of the jury, sustained condemnor’s motion to strike. Recalling the jury, he twice instructed emphatically that the evidence should not be considered.

Appellant’s preliminary point complains of the admission of the evidence. The instructions by the court cured any error in its admission. Galveston, H. & S. A. Ry. Co. v. Duelm, 86 Tex. 450, 25 S.W. 406; Church v. Waggoner, 78 Tex. 200, 14 S.W. 581; Walker v. Texas Employers’ Ins. Association, 155 Tex. 617, 291 S.W.2d 298.

In its motion for new trial the State alleged as newly discovered evidence that the sale testified to was fabricated and not bona fide, attaching to the motion the affidavit of an assistant State auditor concerning alleged bank records of the payment and source of the consideration claimed. The State obtained a commission to take the oral depositions of the interested parties, but on appellees’ motion to quash, it was ordered they be taken only on written interrogatories. No deposition on written interrogatories was sought to be taken. Subpoenas were issued to require production of pertinent records and attendance of witnesses. The witnesses appeared and were sworn by the court at the time appointed for the hearing on the motion for new trial. For reasons unnecessary to recite the court declined to hear evidence on the motion and overruled it, refusing to permit the State to offer evidence on its bill to show what the evidence on the motion would be. A bill of exception was approved showing a statement by appellant as to what it expected the proof to be.

Irrespective of whether this procedure would ordinarily reflect error, had the evidence tendered been admissible or material, it was evidence which would have served only for impeachment of appellee as to his testimony which had been struck from the record, and which the jury had been instructed not to consider. Such impeachment evidence, the purpose of which is to discredit the witness, is not such newly discovered evidence as will justify the granting of a new trial. Scranton v. Tilley, 16 Tex. 183, 193; Houston City St. Ry. Co. v. Sciacca, 80 Tex. 350, 16 S.W. 31; Conwill v. Gulf C. & S. F. Ry. Co., 85 Tex. 96, 19 S.W. 1017; Al Parker Securities Co. v. Lyons, Tex.Civ.App., 28 S.W.2d 950, writ ref. and cases cited; 41 Tex.Jur.2d Sec. 120, p. 303.

Each of appellant’s primary points has been fully considered and all are overruled.

We have given consideration, also, to the point that even if those points which present error do not show the errors to be reversible, their cumulative effect warrants reversal. The trial of this case consumed much of two weeks. The six-volume record shows a hotly-contested case which tested the best efforts, abilities and patience of the trial judge who carefully attempted to require that the case be fairly presented to the jury. In our opinion the record as a whole does not show that the cumulative effect of the errors probably caused rendition of an improper judgment.

Affirmed.


author: HYDE, Judge.

text:
    Leona MUCKENTHALER, Plaintiff-Appellant, v. C. S. EHINGER, Defendant-Respondent, James E. Anderson, Defendant.
    No. 51649.
    Supreme Court of Missouri, Division No. 1.
    Dec. 12, 1966.
    Rehearing Denied Dec. 30, 1966.
    Robert L. Shirkey, Kansas City, for appellant.
    Lucian Lane, Tucker, Murphy, Wilson, Lane & Kelly, Kansas City, for respondent Ehinger.
   HYDE, Judge.

Action for wrongful death. Plaintiff had verdict for $25,000.00. Defendant Ehinger’s motion for new trial was sustained and plaintiff has appealed. Defendant Anderson has not appealed.

Plaintiff’s husband was killed in a collision between his car and a truck owned by defendant Anderson on August 12, 1959. The principal issue is whether Anderson was an employee of Ehinger. Eh-inger claims the evidence was insufficient to show he hired Anderson but if it was it shows as a matter of law that Anderson was an independent contractor. The negligence of Anderson in running through a red stop signal is not an issue on this appeal. He claimed his brakes went out completely.

Ehinger had a contract with the State Highway Department to remove houses from the right of way acquired for Interstate Highway 70. Anderson had previously driven a dump truck for L. G. Williams in other work Williams had done for Eh-inger. Thereafter Anderson bought a dump truck and did work with- it for several contractors on a contract basis, driving the truck himself. Anderson said that about two weeks after he bought the truck he told Ehinger about it and asked if he would hire him. He said Ehinger told him he would have to get in touch with Bill (William D. Brown, Ehinger’s superintendent) that “he’s the one that does the hiring.” Ehinger denied ever having any such conversation and said Brown had no authority to hire a truck that had never been hired before by him. Brown testified that about two weeks prior to August 12, 1959, Anderson called him by phone, identified himself as one who had driven for L. G. Williams, stated that he now owned a White tandem truck, and asked whether Ehinger would hire him. An offer of proof was made to show that Brown asked him whether he carried liability insurance on the truck; that Anderson said he did not; and that Brown then told him that Ehinger would not hire his truck. This testimony was not permitted; Brown was only permitted to say he told Anderson that Ehinger required certain qualifications and that Anderson was not qualified. Anderson said he did not call Brown prior to August 12, 1959, because he was busy on other jobs. Anderson testified that about 6:45 on the morning of August 12, 1959, he called Ehinger’s number and someone answered at the other end. Anderson asked “Is this Bill?” and the other person said “Yes.” Anderson then told him he used to drive for L. G. Williams; and the person answering told him to go to 28th and Norton, to be there at 8:00 and to haul out to Little Robert’s on Old Highway 40, a salvage yard. Nothing was said about the rate of pay or terms or conditions of hiring the truck, but Anderson said he knew the pay was seven dollars per hour. Brown denied that he ever received any such telephone call from Anderson, or that he ever talked with Anderson at any time on August 12, 1959.

Anderson did appear at the place and time stated, his truck was loaded by Ehinger’s high loader operator and he drove away with the load. He never reached the unloading point because he was involved in the collision a few blocks away from the loading point. Ehinger was notified of the collision by Brown, who had been notified by another driver, went to the scene and had one of his own trucks come to clean up the debris from the street. Ehinger had a city permit for hauling through that street and was required to clean up debris on it. His claim was that Anderson was hauling without authorization; but a witness Jones who investigated the collision on the day it occurred said that both Brown and Ehinger told him then that Anderson was driving a truck for them, “hauling dirt on a construction job of some sort.” Our conclusion is that we must hold the jury reasonably could have believed Anderson’s testimony about his employment and that it was sufficient to show that he was hired. This leaves the issue of whether there was sufficient evidence to show that Anderson was an employee or must be held to have been an independent contractor only.

On this issue, Anderson’s testimony was that when he drove for Williams he was paid two dollars per hour out of which Williams took his Social Security and tax withholding. As to his understanding of terms with Ehinger he testified that he was to maintain the truck, pay all repairs on it and pay for all oil and gasoline; and that he hired himself out with his truck at so much per hour. (At that time Ehinger paid seven dollars per hour.) Anderson never received any pay from Ehinger because he never completed a trip. Ehinger says this case is exactly like Talley v. Bowen Construction Co., Mo.Sup., 340 S.W.2d 701, citing also Williamson v. Southwestern Bell Telephone Co., Mo.Sup., 265 S.W.2d 354, and Rutherford v. Tobin Quarries, 336 Mo. 1171, 82 S.W.2d 918. Plaintiff relies on Madsen v. Lawrence, Mo.Sup., 366 S.W.2d 413, involving similar operations to those herein involved. Our view is that the situation here is more like that in the Madsen case than the others and that the evidence was sufficient to authorize a finding of the right of control in Ehinger over Anderson. In this case, the hours of work were designated. The drivers were to start at 8:00 A.M. and stop at 4:30 P.M. with thirty minutes allowed for lunch. There could be no loading during the lunch period. (It was said these hours were fixed by agreement with the Teamsters Union.) Ehinger said the trucks and drivers “were hired or called or rented on a day to day basis” and that if there was any objection to them or their equipment was not functioning properly they would not be engaged for the next day. If the job was finished by noon or if it rained, they would not be called back that day. Ehinger said: “They are dispatched every day to whatever location we want them.”

The drivers were directed as to the route they should take because Ehinger was paying them by the hour and wanted them to take the shortest route to get as many trips out of them as he could. If a driver “didn’t show back in line every load or two * * * he would possibly be questioned or we would no longer use him.” Ehinger also got a dollar and a half for each load delivered at the salvage yard. The high loader operator determined the load to put on each truck and would notify the driver when to move on by signals given by hand or with the high loader motor. The operator said he had seen Brown tell truck drivers what to do. Ehinger had operations under way at other locations and Brown “could and did dispatch those trucks (working at one location) to go some place else and haul”, if for any reason he could not use them at the place they had started to work, or he could lay them off. They were paid on a weekly basis and at the end of each day were given a slip by the high loader operator showing time worked which they left with Ehinger’s bookkeeper. The pay went to the owner of the trucks regardless of how many trucks he owned. There was no withholding for taxes or Social Security from these payments. In the Madsen case, where owners of trucks were employed to haul away dirt, we said (366 S.W.2d 1. c. 419): “The service of the truck drivers had been regularly used by defendant. Defendant or his employee Sims kept track of the truck drivers’ time; equalized the work among them; told them the hour they were to report for work in the morning and in effect, told them how long they were to work that day and whether they were to report for work the next day. It reasonably could be inferred that the physical work and conduct of the truck drivers in its performance were commanded, managed, directed and controlled (verbally, by signal, and by directing manipulation of the excavating machine) by defendant Lawrence or his employee Sims, and that inferentially the truck drivers were subject to the right of control of defendant Lawrence.” We hold the jury reasonably could find such a situation here with even greater right and exercise of control than shown in the Madsen case and that the court properly refused to direct a verdict for defendant.

The court granted a new trial on grounds of error in refusing to admit testimony that Ehinger had an established rule, of which Anderson was told, requiring independent truck owners as a condition of hiring to carry liability insurance and to furnish him with certificates of such insurance; and in refusing to permit Brown to testify that he had a conversation with Anderson about hiring him some time prior to August 12, 1959, in which Anderson told him he did not have liability insurance on his truck and Brown told him Ehinger would not hire his truck for that reason. Our view is that this evidence was admissible as material on the issue of whether Anderson was employed by Brown for Ehinger. In State ex rel. Cummings v. Witthaus, 358 Mo. 1088, 219 S.W.2d 383, 389, 8 A.L.R.2d 1124, where the issue was whether a driver was an employee or an independent contractor, we said in determining the admissibility of evidence of liability insurance: “[T]he courts apply the simple test of whether it tends to prove an issue. If the particular evidence does tend to prove an issue formed by the pleadings, that evidence cannot be excluded merely because it may also tend to show that some one carried liability insurance on the particular motor vehicle, or any motor vehicle.” . We held the fact there was such insurance was admissible in that case, quoting 85 A.L.R. 784, as follows: “ ‘If an issue in the case is as to whether the plaintiff was a servant of defendant or servant of an independent contractor, evidence is admissible that the defendant carried indemnity insurance on his employees, including the plaintiff, such evidence having been treated in some cases as having a tendency to negative the independence of the contract, or, in other words, as having a tendency to show the plaintiff was considered by the defendant as his employee.’ ” See also Boten v. Sheffield Ice Co., 180 Mo.App. 96, 166 S.W. 883; Nuckols v. Andrews Investment Co., Mo.App., 364 S.W.2d 128; Eldridge v. McGeorge (USCA 8th), 99 F.2d 835, 841; Annotation, 4 A.L.R.2d 761, 776; 20 Am.Jur. 351, Evidence, Sec. 390. We think the fact of a requirement of insurance for hiring trucks did tend to prove an issue in this case. This testimony as to Ehinger’s requirement for hiring truck owners and Brown’s statement to Anderson about it was material and important not only on the issue of whether Anderson was ever hired but also if he was whether he was an employee or an independent contractor. It was error to exclude it and we agree with the trial court’s view that this error was prejudicial. Other matters raised are not likely to arise at another trial.

The order granting a new trial is affirmed.

All concur.


author: HOLMAN, Presiding Judge.

text:
    INDEPENDENCE FLYING SERVICE, INC., a Missouri Corporation (Plaintiff), Appellant-Respondent, v. Vesta AILSHIRE (Defendant), Respondent-Appellant.
    No. 51815.
    Supreme Court of Missouri, Division No. 1.
    Dec. 12, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Dec. 30, 1966.

      Donald E. Raymond, Thomas M. Howell and Terrence Riley, Kansas City, for Independence Flying Service, Inc.
    Walter A. Raymond and Raymond, West & Cochrane, Kansas City, for Vesta Ail-shire.
   HOLMAN, Presiding Judge.

Plaintiff, a former lessee of a 60-acre flying field, filed this suit to recover damages from the lessor for the alleged conversion of certain buildings and other improvements it had constructed on the premises. The defendant-lessor contended that plaintiff’s right to remove the buildings had been forfeited because of nonpayment of rent and other lease violations. In the first trial the court found for defendant, but on appeal we held that there had been no legal forfeiture and that defendant had been guilty of conversion in re-entering and forcibly excluding plaintiff from the premises. The judgment was reversed “and the cause remanded for proceedings to assess lessee’s damages.” Independence Flying Service, Inc. v. Abitz, Mo.Sup., 386 S.W.2d 399, 405. One John Abitz, a sub-lessee, was originally a defendant, primarily because of other relief sought by plaintiff, but he has not been involved in the case since the remand.

After remand the parties waived a jury and the case was retried upon the limited issue of assessing plaintiff’s damages resulting from the conversion by defendant. At the beginning of that trial the contrary positions of the parties became apparent. It was plaintiff’s theory that it should recover the value of the buildings in place, i.e., as located and used on defendant’s land. On the contrary, it was defendant’s theory that “the only right the lessee had to buildings that it constructed on the property was the right of removal and that its measure of damages is necessarily limited to the value of the right to remove the buildings.” The court ruled that evidence would be heard on both theories and the issue determined at the conclusion of the trial. The trial resulted in a judgment based upon the value of the buildings on the date of conversion as situated on the land, which amount was found to be $14,938. The court gave defendant credit for $700 she paid to satisfy a mortgage on the gasoline pumps, resulting in a net judgment for plaintiff in the sum of $14,238. The court further found that defendant “acted in good faith, even though failing to technically follow the rules of law in converting the property to her own use. It was her belief that she was entitled to claim such forfeiture and the Court sustains her position that plaintiff is not entitled to interest, as claimed, as the result of the conversion.”

Both of the parties have appealed. Plaintiff here contends that its damages amounted to a much larger sum than the court allowed, and that it was entitled to recover interest thereon. It is defendant’s contention on appeal that the court erred in refusing to limit plaintiff’s damages to the removal value of the buildings. We have appellate jurisdiction because the difference between the amount of the judgment and the sum of $29,280, which plaintiff contended it should recover (supported by evidence), exceeded $15,000. Section 477.040 (all statutory references are to RSMo 1959, V.A.M.S.); Mo.Const., Art. V, § 3 (1945), V.A.M.S.

We will briefly describe each building or other improvement and state the evidence relating to its value on the date of conversion, i.e., June 17, 1959.

West hangar: This is a building 28 x 360 feet, covered by corrugated metal, with nine bays, all of which are open on the front except one. Plaintiff’s former president, Mr. Morris, fixed its value at $25,000. Its witness McFall said it could have been constructed new in 1959 for $20,500. Defendant’s witness, John Lund, estimated its erection cost at $9,520 and stated that its salvage value was $1,300.

Office building: This is a concrete block structure 18 x 26 feet. It was rebuilt by plaintiff after it took possession. Mr. Morris fixed its value at $5,000. Mr. Lund was of the opinion that it could have been built for $2,106 and that it had no removal value.

Shop building: This 32' x 40' building was constructed with concrete blocks and galvanized iron siding. According to Mr. Morris its value was $4,000. Another witness for plaintiff fixed its value at $1,702. Mr. Lund said it had no salvage value.

Concrete block hangar: Mr. Morris said this 34' x 41' structure was worth $3,500. Plaintiff’s witness McFall said it could have been constructed in 1959 for $3,400. At that time about one-third of its life had been used. Mr. Lund did not appraise this building.

Lean-to hangar: This building was 66 x 24 feet in size. Mr. Morris fixed its value at $2,500. Defendant had replaced the roof shortly after she took possession. Plaintiff’s witness McFall said it could have been replaced in 1959 (without roof) for $1,633. Mr. Lund said it was worth $2,534 and had a removal value of $1,267.

Gas service island: Mr. McFall fixed the 1959 replacement value of this facility at $860, without pumps. Mr. Morris stated it was worth $1,500, including the pumps.

Wind indicator: This was constructed with a welded frame, covered with fabric, mounted on a swivel in a concrete base. Mr. McFall fixed its 1959 replacement cost at $160.

Runway lights: These lights were valued by Mr. Morris at $1,500.

Mr. Lund testified that the value of the airport with plaintiff’s buildings and improvements in place was $74,938; that the value of the land only was $60,000. That testimony would indicate a value for the improvements of $14,938 which was the value found by the trial court.

We will first determine the issue as to the correct measure of damages. After considering the cases cited in the briefs we have concluded that plaintiff is entitled to recover the value of the improvements as situated on the land. That appears to be a fair and reasonable rule, as that is the condition under which defendant has made use of the improvements since the date of conversion. There are three cases we consider to be squarely in point which unquestionably establish the rule in accordance with the view we have stated. See Neiswanger v. Squier, 73 Mo. 192[3], Red Diamond Clothing Co. v. Steidemann, 169 Mo.App. 306, 152 S.W. 609[3], and Cox v. McKinney, 212 Mo.App. 522, 258 S.W. 445 [10]. Defendant has cited cases such as Russell v. Empire Storage & Ice Co., 322 Mo. 707, 59 S.W.2d 1061, and Kegan v. Park Bank of St. Joseph, 320 Mo. 623, 8 S.W.2d 858, but we do not consider those cases to he in point. They hold that in an action for conversion by a pledgor the pledgee may recoup or offset the amount of the debt from plaintiff’s recovery. That rule has no application in the situation before us. As indicated, we rule this point in favor of plaintiff.

The determination of the value of the improvements on the date of conversion, as situated on the land, is entirely a question of fact. In that connection we have in mind that in our “review of this court-tried case we consider both the law and evidence, in nature de novo, but we give due deference to the trial court’s findings and opportunity to observe and judge the credibility of the witnesses testifying.” Norman v. Durham, Mo.Sup., 380 S.W.2d 296, 299. And “[t]he judgment shall not be set aside unless clearly erroneous.” Civil Rule 73.01(d).

We have carefully considered the evidence of the various witnesses. It is obvious that plaintiff’s witness George Morris placed a very liberal value on the improvements. In several instances the value fixed by him was much more than that alleged in the petition. In some instances it also exceeded the replacement value testified to by plaintiff’s witness McFall. It appears that he did not take into consideration the age and condition of the buildings. The evidence of Mr. McFall was more reliable but he limited his testimony to the cost of constructing the buildings new in 1959. As heretofore indicated, defendant’s witness, John Lund, an experienced real estate broker, expressed the opinion that the improvements as a whole had a value of $14,938, the amount accepted by the court. In view of the wide range of values presented by the testimony of the witnesses we have concluded that we should defer to the finding of the trial judge who had the opportunity to observe the witnesses during their testimony. We accordingly rule that the value of the improvements on June 17, 1959, was $14,938. After deducting the $700 paid by defendant on an equipment mortgage the net amount of plaintiff’s recovery on that item is $14,-238.

We have concluded that the trial court erred in failing to allow plaintiff interest, or damages in the nature of interest, upon the value of the improvements converted. The reason assigned by the trial court for disallowing that item was its finding that defendant acted in good faith under an honest belief that she had a right to the improvements converted. We accept the court’s finding of good faith, but we disagree with the conclusion that good faith is a sufficient reason for denying entirely the claim for interest. Regardless of defendant’s good faith, the fact remains that defendant has had the use, possession, and rental income from property of the value of $14,238 for seven and one-half years which she seized from plaintiff and converted to her own use without any payment therefor. If we deny interest defendant will have had the beneficial use of the property without payment, and plaintiff will have been denied the usufruct thereof during all of that period of time.

“The general rule is that in actions of trover, or actions in the nature of trover, for the conversion of property, interest or the equivalent of interest on the value of the property converted may be recovered.” Annotation 36 A.L.R.2d 377. Along the same line we have said that as a general rule, “in actions for conversion, in order to give the injured party full indemnity, interest is allowed on the value of the property from the date of its conversion.” Carson v. Smith, 133 Mo. 606, 34 S.W. 855, 858. Moreover, the allowance is authorized by § 537.520 which reads as follows: “The jury on the trial of any issue, or on any inquisition of, damages, may, if they shall think fit, give damages, in the nature of interest, over and above the value of the goods at the time of'the conversion or seizure.” In regard to that statute this court has said that, “independently of any statute, this court had long ruled that damages in the nature of interest were allowable in actions of trover and conversion, and the enactment of section 4430 was merely the enactment of the common-law rule in this state * * *.” Lack v. Brecht, 166 Mo. 242, 65 S.W. 976, 981. Under the circumstances of this case the allowance of interest should be at the rate of 6%. Section 408.020.

Defendant tacitly concedes, as the foregoing authorities clearly indicate, that the trial court in its discretion could have allowed interest. It is our view that it was an abuse of discretion not to allow any interest, and we accordingly rule that damages in the nature of interest shall be allowed.

Ordinarily, interest in conversion cases is allowed from the date of conversion. However, in this case, in view of the fact that defendant acted in good faith, we rule that the interest would not begin until there was a formal demand for payment. The transcript does not disclose that any such demand was made prior to the filing of this suit which occurred on September 9, 1961. Interest at 6% on $14,238 from that date to the date of the adoption of this opinion amounts to $4,492.

In the situation presented it is our duty to give such judgment as the trial court ought to have given. Civil Rule 83.-13(c), V.A.M.R. As indicated, the judgment should be modified by the addition of the sum of $4,492 as damages in the nature of interest. It is accordingly adjudged that plaintiff recover from defendant the total sum of $18,730. As so modified the judgment is affirmed.

All concur.