author: ARCHER, Chief Justice. HUGHES, Justice

text:
    BOARD OF FIREMEN’S RELIEF AND RETIREMENT FUND TRUSTEES OF TEXARKANA, Texas, Appellant, v. Ozella HAMILTON et al., Appellees.
    No. 11185.
    Court of Civil Appeals of Texas. Austin.
    April 15, 1964.
    Rehearing Denied May 6, 1964.
    Sidney Lee, Texarkana, for appellant.
    Friberg & Parish, Wichita Falls, for ap-pellees.
   ARCHER, Chief Justice.

This is an appeal from a judgment of the District Court upholding an order of the Firemen’s Pension Commissioner that ap-pellees were entitled to benefits under the Firemen’s Relief and Retirement System as provided in Vernon’s Ann.Civ.St. Article 6243e as the surviving widow and minor daughter of W. T. Hamilton, deceased.

W. T. Hamilton was employed by the City of Texarkana, Texas, as its Fire Chief on September 22, 1961, at which time he was 52 years old.

' Hamilton had been 'previously employed as a member of the Fire Department of the-City of Wichita Falls, Texas, and by the City of Harlingen, in both of which cities he had served more than twenty years combined. In February of 1962 he sustained an attack of acute heart failure while engaged in fighting a fire in Texarkana, requiring hospitalization for four days during which time he was treated by the city’s physician and was released and permitted to resume his duties as fire chief.

The City of Texarkana has a Relief and Retirement Fund and upon his employment Hamilton became a member of such Retirement Fund and became entitled to its benefits and liable for contributions to such. Because of prior employment, certain sums were available to the City Retirement Fund Trustees, which they refused to accept.

On June 1, 1962, Mr. Hamilton suffered a heart attack and died. Mrs. Hamilton made claim for benefits which'were denied by the Board of Firemen’s Relief and Retirement .Fund Trustees of Texarkana, Texas, and then appealed to the Pension Commissioner who after a hearing rendered a decision that appellees were entitled to benefits under the Act in the total sum of $150.00 per month payable to the appellees in a sum of $110.00 to Mrs. Hamilton and .$40.00 to the daughter, subject to certain conditions.

Appellant filed a suit in the 126th District Court of Travis County attacking the Commissioner’s order as being void because the Commissioner had no power or jurisdiction to entertain the defendants’ appeal and alternatively that the decision order of the Commissioner does not find reasonable support in substantial evidence and alternatively that the decision deprives the plaintiff of property otherwise than by the due course of the law and is in violation of Article 1, Section 19, of the Constitution, Vernon’s Ann.St. .

Further allegations were that after W. T. Hamilton had filed his notice of intention to participate in the fund, plaintiff rejected him because of a good reason to believe that he was not of sound health and because he refused and failed to submit to a physical examination. Plaintiff prayed for judgment vacating the order of the Commissioner.

The defendants, appellees herein, contend that the decision of the Commissioner is supported by substantial evidence and is a valid order being made in an appeal from an order of the Board denying the defendants their legal rights and that the entire proceeding is constitutional and a legal order binding on the plaintiff and sought an award of $150.00 per month, etc.

On July 22, 1963, on a trial before the court, a judgment was rendered upholding the decision of the Pension Commissioner awarding the defendants $150.00, $110.00 to Mrs. Hamilton per month payable during her lifetime, or until she shall remarry and $40.00 per month to Rosemary Hamilton, a minor daughter, until she shall become 18 years old.

In response to request of plaintiff the court made findings of fact and conclusions of law, finding as facts that the award of the Commissioner was supported by substantial evidence and is valid and binding; that all administrative remedies were exhausted; that at the time of employment Mr. Hamilton was in good health and competent to do the work of a Fire Chief and had been previously employed as a fireman by the City of Wichita Falls, Texas, and by the City of Harlingen, Texas, as Fire Chief, with over 20 years service; that the Cities of Texarkana, Harlingen and Wichita Falls are under 500,000 in population and maintained full time fire departments and adopted the Civil Service Law for its fire department; that Hamilton had completed 20 years of service; that plaintiff never required a physical examination or requested one of Hamilton; that the City Physician who is plaintiff’s physician would have passed Hamilton as physically competent as a fireman had he examined him; that Hamilton paid or tendered payment of money due the pension fund and the City made payments due the pension fund chargeable as the contribution chargeable on Hamilton as an employee; that the plaintiff has received or has had tendered to it all monies due by reason of the service of Hamilton to entitle his widow and minor child to a pension and concluded as a matter of law that all parties have exhausted their administrative remedies and that the substantial evidence rule applies and that the decision of the Pension Commissioner is reasonably supported by substantial evidence and is valid; that all necessary parties are before the court and defendants are entitled to a judgment as herein granted and that if the plaintiff had a legal right to require Hamilton to take a physical examination it was waived; that Article 6243e makes it mandatory that an employee regularly employed by a fire department even with 20 years prior service under a pension fund under the act with another city or cities, to continue to contribute to the pension fund in the city where he is currently employed and contemplates the transfer of a fireman from one department in a given city to another city.

The appeal is founded on 20 points assigned as error and may be summarized that the court erred in holding that the order of the Commissioner is valid because the Commissioner had no jurisdiction to render such; in holding that the substantial evidence rule was applicable because there was no evidence or insufficient evidence and contrary to the overwhelming weight of all the evidence; the other points are directed to admission of testimony that Hamilton did not take a physical examination and did not comply with all prerequisites necessary to becoming a member of the retirement fund.

We believe that the judgment of the trial court was correct, and that the facts as found by the court are supported by the record and the law required appellees herein to exhaust all administrative remedies, which was done before appealing to the courts and that the action of the Pension Commissioner was supported by substantial evidence and was authorized by the law.

This Court had before it a case very similar to this case in Board of Firemen’s Relief and Retirement Fund Trustees of Texarkana v. Ryan et al., Tex.Civ.App., 273 S.W.2d 908, no writ history, and which we believe to be determinative of this instant case.

Appellant cites Hall v. Board of Firemen’s Relief and Retirement Fund Trustees of Houston, Texas, 351 S.W.2d 342 (Houston Court of Civil Appeals, no writ history).

The Hall case concerned the question of did the death of Mr. Butler result from some disability or injury received in the performance of his duties as a fireman.

The prime question in this instant case is, we believe, whether the decision and order of the Pension Commissioner finds reasonable support in substantial evidence, and we have evaluated the evidence and we believe it supports the Commissioner's action.

We have not set out the testimony since the facts as found by the trial court were not excepted to or objected to.

The judgment of the trial court is affirmed.

Affirmed.

HUGHES, Justice

(dissenting).

In Hall v. Board of Firemen’s Relief and Retirement Fund, 351 S.W.2d 342, Houston Civil Appeals, no writ history, the Court stated:

“Article 6243e, Section 12, Vernon’s Annotated Texas Statutes, provides that when a fireman dies from a cause growing out of or in consequence of the performance of his duties, and leaves surviving him a widow and/or a child or children under the age of 18 years, the Board shall order paid a prescribed monthly payment. No time is prescribed by the statute within which the claim must be made. No procedure for assertion of or allowance of the claim is prescribed. Article 6243e, Section 3, does vest in the Board the authority to determine claims and to designate surviving beneficiaries. Nowhere does the statute attempt to fix finality to the Board’s decision. Too, while Section 18 of Article 6243e deals with an appeal in certain instances from the Board’s decision, it omits to require or authorize an appeal by surviving beneficiaries of a deceased fireman. It merely provides for an appeal to the Firemen’s Pension Commissioner from the Board’s decision and from his decision to a Travis County District court by a fireman who is not satisfied with the Board’s or Commissioner’s action denying his claim for retirement due to length of service or disability or, denying his claim for temporary disability, or, if such fireman is dissatisfied with the amount allowed.
“[1] The result is, we think, that if the Board denies a surviving beneficiary’s claim, the beneficiary can sue the Board of Trustees in any court of competent jurisdiction to establish his or her claim. In such case the Board’s decision would be presumptively correct, and the burden would be on the claimant to show there was no substantial evidence supporting the Board’s order.”

I agree with this statement of the law and add only that Sec. 19 of Art. 6243e, V.A.T.S. in creating and defining the duties of the office of Pension Commissioner provides, in part, that he “ * * * shall hear, determine, and/or review all appeals herein provided * *

Since an appeal to the Pension Commissioner is not provided for surviving beneficiaries such as appellees he had no authority to consider it and his judgment thereon is, in my opinion, a nullity. ■

Our opinion in the Ryan case, cited by the majority, did not consider this question and the record therein discloses that the authority of the Pension Commissioner to review the action of the local board under circumstances similar to those here was not raised. The judgment in that case was valid because only questions of venue and proper proceedings in the Trial Court would have been presented had the award of the Pension Commission been attacked and disregarded as void. No question going to the jurisdiction of the Trial Court was involved.

I would reverse and remand this case for trial in accordance with the manner indicated in Hall v. Board, supra. I, therefore, respectfully dissent.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    ROYAL INDEMNITY COMPANY, Appellant, v. Bob MARSHALL, Jr., Appellee.
    No. 11174.
    Court of Civil Appeals of Texas. Austin.
    April 15, 1964.
    Rehearing Denied May 6, 1964.

      House, Mercer, House & Brock, Franklin D. Houser, San Antonio, for appellant.
    E. B. Fuller, Arthur Mitchell, Austin, for appellee.
   HUGHES, Justice.

This suit was brought by Bob Marshall, Jr., to recover damages caused by fire to three automobiles owned by him, such loss allegedly being covered by a fire insurance policy issued to him ■ by appellant, Royal Indemnity Company.

The fire occurred on January IS, 1963. The burned building in which appellee’s cars were housed was located at 508 South Congress Street in Austin, Texas. This building was not named in the insurance policy. It was not owned or controlled by appellee. Two of the damaged cars had .been at this address for more than seven days prior to the fire.

The policy sued on was issued to appel-lee as an “Automobile Dealer,” whose address was stated to be 612 N. Lamar, Austin, Texas. The policy covered automobiles consigned to or owned by appellee and held for sale or used in his business as an automobile dealer. The policy contained these provisions:

“Named Locations — The insured represents that the specific locations named herein are' all of the locations or spaces within locations owned, rented or controlled wholly or in part and used by the insured as places of display or storage of automobiles on the inception date of the policy. The company’s limit of liability for each such location shall be as stated herein.
The limit of liability stated for the main sales location shall be inclusive of the limit of liability for automobiles designated in paragraph 1, ‘Property Covered,’ which are made available for the use of the owner, officers or employees and privately stored at other than the named locations, and the actual cash value of all such automobiles shall be included in the monthly statements of values reported for the main sales location.
UNNAMED LOCATIONS—
(a) The insured shall report to the company any other location owned, rented or controlled wholly or in part by him which he commences to use as a place of display or storage of automobiles. Prior to receiving such report, the company shall not be liable for loss occurring after the first 45 days following the commencement of such use and the company’s limit of liability at any such location shall not exceed
$-.
(b) As respects automobiles at locations other than those named herein or in another policy affording the insured insurance against loss covered hereunder or described in paragraph (a) above, the company shall not be liable for loss occurring more than 7 days after liability could first attach as respects any one location and the company’s limit of liability at all such other locations shall not exceed

Shortly after issuance of the above described policy, appellee sold his business located at 612 N. Lamar, that is, he sold his lease and improvements but retained his cars. He moved his cars to his father’s place of business at West Avenue and Fifth Street and thereafter conducted his car business from that location.

Mr. John Schuler, an insurance agent, who sold the policy in suit to appellee testified that he observed that appellee’s place of business on N. Lamar was being closed and he, after conferring with appellee, endorsed a change of address on the policy from N. Lamar to West and Fifth.

The circumstances under which the damaged cars happened to be at the South Congress address when the fire occurred were testified to by appellee, Mr. Roy Rag-land and Mr. Bob Marshall, Sr.

Mr. Marshall, Sr. acquired the building on S. Congress and used it in connection with his car business located at West and Fifth. The building was used for the purpose of repairing and painting cars and preparing them for sale. The trade calls this a “make ready” process. Mr. Ragland was employed by Mr. Marshall, Sr., working for him on a straight salary, full time basis. He was a “body man.” When Mr. Marshall acquired the S. Congress building, Mr. Rag-land did his work for Mr. Marshall at that location. Mr. Ragland also did “make ready” work for appellee on cars owned by him. This work was done at the S. Congress building after its acquisition by Mr. Marshall, Sr. It was done after “working hours.” Mr. Marshall, Sr. knew that Mr. Ragland worked on appellee’s cars at the S. Congress building after his day’s work for him was over. He had no objection to this arrangement.

Appellee’s three cars damaged by fire at the S. Congress building were there, at the time, to be “made ready” by Mr. Ragland.

Trial was to a jury which made these findings: (a) The burned cars were not, as contemplated in the policy of insurance sued on, in storage at 508 S. Congress Avenue (b) The cars were not so on display at such address (c) damages in the sum of $3325.00.

Appellant has twenty points of error the first being that the Trial Court erred in overruling its motion for an instructed verdict based on the ground that more than seven days had elapsed from the date that liability could have attached to the date of the fire loss at an unnamed location. It is appellant’s construction of the policy that it is not liable for any loss occurring at 508 S. Congress, an address not named in the policy, which loss occurred more than seven days after the damaged cars were carried there. We do not agree with this construction of the policy. The provisions of the policy upon which this point turns have been copied above. Paragraph (a) under “Unnamed Locations” does not apply because the undisputed evidence is that ap-pellee did not own, rent or control, wholly or in part, the premises at 508 S. Congress where the loss occurred. Paragraph (b) does not apply because the building at 508 S. Congress, where the loss occurred, was not a “location” as that term is used in the policy.

There is evidence that the cars belonging to appellee which were damaged in the fire at 508 S. Congress were not in such place for storage or display but that they were housed there solely for the purpose of making them ready for sale.

“Locations,” as used in the policy, refer to locations “used by the insured as places of display or storage of automobiles.” (Policy provisions, supra.) Also it is to be noted that the insured is directed to “Show Main Sales Location First.”

There are only two purposes for a “location” disclosed in the policy, display and storage. Wherever the word location is found in the policy, we construe it as referring to a place where the insured stored 'or displáyed his automobiles. It follows that 508 S. Congress was not, as a matter of law, a “location.”

Appellant’s Motion for an Instructed Verdict was properly denied.

Appellant next jointly briefs points eleven through thirteen which complain of the failure of the Trial Court to submit to the jury three requested special issues which asked the jury to find whether or not each of the damaged cars had been at the 508 S. Congress address for more than seven days prior to the fire.

Under appellant’s theory of liability if •any one of the cars was at the unnamed South Congress address for more than seven days before the fire, then it is exonerated from liability under paragraph (b) of the policy herein quoted. As previously indicated, we do not agree with construction of the policy. We are of the opinion, however, that the evidence is undisputed that- two of the cars had been at 508 S. Congress more than seven days prior to. the fire. It was, therefore, unnecessary to submit these issues.

Points four and five are jointly briefed. They complain of the submission of. Special Issue No. 1 on the ground that it submits only a question of law. The issue reads: “Do you find from á preponderance of the evidence that the automobiles in question were placed at 508 South Congress in Travis County, Texas, before the fire in question for storage as contemplated by the policy of insurance?”

The general rule is that it is the province of the judge to determine the legal effect of unambiguous written instruments, but this rule is subject to the qualification that where it becomes necessary to resort to extrinsic facts and circumstances to ascertain the meaning of technical or peculiar terms used in the writing, then these matters are for the jury. Texas Law of Evidence, 2d ed., McCormick and Ray, Vol. 1, Sec. 9, Achterberg v. Gillett, 322 S.W.2d 306, El Paso Civ.App., writ ref., n. r. e., 159 Tex. 591, 325 S.W.2d 384.

There was no dispute concerning the facts and circumstances surrounding the presence, and the purpose of their presence, of these three cars at the South Congress address at the time of the fire. Whether or not these facts and circumstances constituted “storage” within the meaning of the policy was, we believe, a question of fact. We overrule these points.

A similar issue (No. 2) was submitted to the jury regarding the meaning of the word “display” as used in the policy. What we have said regarding the issue as to “storage” is applicable here. We, therefore, overrule point nine which is that the issue submits only a question of law.

Point seven is that there were not pleadings to support the submission of Special Issue No. 2.

The pleadings in this case are extremely short and very general. Appellee pleaded that he sustained certain losses by fire and that by reason of the insurance policy issued to him appellant was liable for such losses. Appellant denied that its policy covered these losses. It is our opinion that the matter inquired about in Special Issue No. 2 was within the pleadings. It bore directly on the question of policy coverage.

By its fourteenth point appellant asserts error in the failure of the Trial Court to submit to the jury an issue, as requested, inquiring if the cars in suit “were at the location at 508 S. Congress Avenue as contemplated in paragraph 2, sub-paragraph B of the policy in question?”

There was no error -in refusing to submit this requested issue. In order to answer this question the jury would first have to determine what a “location,” as used in the paragraph referred to, meant or included. This was a legal question to be answered by construing the policy as a whole. As construed by the Trial Court and us “location” meant a place for display or storage of the cars. The two issues submitted by the Court inquired about the only facts relevant to the applicability of this paragraph of the policy.

Point ten is that the judgment is contrary to the law. This point is based upon the contention that since at least one of the damaged cars had been at the South Congress address for more than seven days there was no liability. We have previously discussed and overruled this contention.

Points sixteen through nineteen, jointly briefed, complain of the admission in evidence of opinions of witnesses concerning the meaning of the words “storage” and “display” as used in the policy.

The objections to this testimony were that (a) “the contract is in evidence and speaks for itself and it is the best evidence of same” (b) “it invades the province of the jury and also calls for a factual and legal conclusion from the witness, which he is not qualified to give” (c) “it is calling for a man to interpret a written contract” (d) “it’s an invasion of the parol evidence rule.”

The policy was an automobile dealers’ policy. The witnesses were appellee who had been in the car business for a number of years; Mr. Bob Marshall, Sr., who had been in the car business for a number of years; and Mr. E. L. Pulley, a witness for appellant, whose business was appraising damaged automobiles. This , witness, on cross examination, testified without objection as follows:

“Q Now, your experience in the appraisal business, do you feel that you are qualified to discuss the terminology used in the automobile business, both body shop, in repair shop, and also sales work, bywords that they use?
“A Yes, sir.
“Q Using the word ‘display,’ if a car dealer referred to a car being displayed, do you take that word to mean it is displayed to the public for sale, or that it is back in a shop somewhere being repaired ? Is it being displayed while it is being repaired?
“A I would take it that to display an automobile, I would think it would be open to the view of the public.
“Q And if you refer in the car business to ‘storage of an automobile,’ in your opinion is a car that is in the body shop being repaired, is it being stored there or not?
“A There are two ways to look at that. I don’t think you would consider if it was being repaired, that you would consider it being stored. I think if stored, it would be Under safekeeping.
“Q In other words, wouldn’t it be fair to say that if I was going to store my car, I would take it to a garage and say, ‘Keep it for a month?’
“A Yes, sir.
“Q If I take it down to be repaired, regardless of whether it takes a month or a week, it is under repairs, is it not?
“A That’s right. I don’t think it would be under storage.”

Mr. Darrell Ponder, an insurance adjuster, a witness for appellee, testified, over objection, that the policy sued on here had a “very broad coverage.” This testimony should not have been admitted. It is meaningless. We do not believe its admission reversible error under Rule 434, Texas Rules of Civil Procedure.

If, as we have assumed m favor of appellant, the evidence raises an issue of fact as to whether or not these automobiles were in storage or on display at the South Congress address when damaged by fire, then it is our opinion that testimony as to the meaning of those terms among automobile dealers was properly admitted. The rule is stated in Frost v. Martin, 203 S.W. 72, by the Fort Worth Court of Civil Appeals, as follows:

“It is the general purpose of all rules for the construction of contracts to aid in ascertaining the intention of the parties, and, since it is a well-recognized canon of construction that technical words are to be interpreted as usually understood by persons in the profession or business to which they relate, unless it is evident that they were used in a different sense (see 2 Elliott on Contracts, § 1511), we think expert testimony was admissible, in case of a disagreement as to the meaning and purport of such technical words, to explain the sense in which such technical terms were understood generally by those engaged in the business of drilling oil or gas wells. The issue was sharply drawn by the pleadings as to whether or not the hole drilled by the lessee was a ‘completed’ well, plaintiffs contending that it was not, and defendant insisting that it was. * * * The court did not attempt to define the word ‘completed’ as applied to a well; hence the jury were left without a guide or chart, except of the common experience and knowledge of mankind, to assist them in determining the sense in which the word ‘completed’ was used by the parties to this contract.”

See also Contracts, 13 Tex.Jur.2d Sec. 137, Texas Law of Evidence, 2d Ed., McCormick and Ray, Sec. 1425, Missouri Pac. R. R. Co. v. Trautmann Bros., ,301 S.W.2d 240, San Antonio Civil Appeals, writ ref., n. r. e.

■ We are inclined to the view that, as a matter of law, the three automobiles were not at the South Congress address when damaged for the purpose of storage or display. We have, however, disposed of this case upon the assumption that these matters were issuable and that the findings of the jury are conclusive.

There being no error requiring reversal of this case, the judgment of the Trial Court is affirmed.

Affirmed.

      . “As a general rule, words used in one sense in one part of a contract are deemed to have been used in the same sense in another part of the instrument, where there is nothing in the contract to indicate otherwise * * 17A C.J.S. Contracts § 303, p. 150.


author: DENTON, Chief Justice.

text:
    BAKER & TAYLOR DRILLING COMPANY, Appellant, v. HEMPHILL COUNTY, Texas.
    No. 7350.
    Court of Civil Appeals of Texas. Amarillo.
    April 20, 1964.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    James D. Crow, Canadian, for appellee.
   DENTON, Chief Justice.

This is a suit by Hemphill County, Texas, against Baker & Taylor Drilling Company for alleged damages to one of the county’s bridges. The judgment of the trial court, based on jury verdict, awarded damages to the County in the sum of $999.-00.

In addition to perfecting this appeal, appellant has filed a motion to reverse and remand this judgment. In substance, this motion is based on the ground that on May 6, 1963, the trial court overruled defendant’s plea of privilege to be sued in Potter County, the county of its residence, from such order the defendant timely perfected its appeal to this Court. On the same day the plea of privilege was heard and overruled by the trial court, the case was tried on its merits despite defendant’s motion for continuance or postponement. The trial on its merits resulted in the jury verdict and judgment which forms the basis of this appeal. On February 3, 1964, this Court reversed the judgment of the trial court overruling defendant’s plea of privilege, and remanded the cause for a new trial on the plea of privilege. Baker & Taylor Drilling Co. v. Hemphill County, Texas, 376 S.W.2d 66. No motion for rehearing having been filed in that cause, such judgment is now final.

We have concluded appellant’s motion to reverse and remand must be granted. It is well settled that after the overruling of a defendant’s plea of privilege and the case is tried on its merits, a reversal of the order overruling the plea of privilege must result in the reversal of any judgment in the main cause, if it is against the defendant who filed the plea of privilege. Goolsby v. Bond, 138 Tex. 485, 163 S.W.2d 830; Keystone-Fleming Transport v. City of Tahoka, (Tex.Civ.App.), 285 S.W.2d 869, (Refused, NRE); Texas & P. Ry. Co. v. Wood, (Tex.Civ.App.), 211 S.W.2d 321, (Refused, NRE).

Defendant’s motion is granted. The judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


author: WILLIAMS, Justice.

text:
    Marjorie RADER, Appellant, v. Daniel L. RADER et al., Appellees.
    No. 16395.
    Court of Civil Appeals of Texas. Dallas.
    April 17, 1964.
    Rehearing Denied May 8, 1964.

      Tobolowsky, Hartt, Schlinger & Blalock, Grover Hartt, Jr., Dallas, for appellant.
    Wm. Andress, Jr., Dallas, for appellees.
   WILLIAMS, Justice.

Marjorie Rader brought this suit in the Juvenile Court of Dallas County against her husband, Daniel L. Rader, seeking to require him to support her and their two minor children. In her second count contained in her petition, styled “Action for Alienation of Affections”, appellant sought injunctive relief against appellee Shirley Rogers to prevent the alleged alienation of affection of Daniel L. Rader and also an injunction against Daniel L. Rader to prevent his further association with Shirley Rogers. The court sustained a motion to sever the cause of action for alienation of affection from the cause of action for support. The appeal involving support has been disposed of by us this date in Rader v. Rader, 378 S.W.2d 373.

In the action for alienation of affection both appellees filed a plea to the jurisdiction of the court, said pleas being sustained and the cause dismissed. From this order appellant brings this appeal contending, in two points of error, that (1) the court erred m severing the causes of action, and (2) the court erred in dismissing her suit for alienation of affection.

There is no merit to appellant’s first point. Rule 41, Texas Rules of Civil Procedure provides that improperly joined causes of action may be severed and tried as separate suits. The court has a broad discretion in acting on motions to sever and such action will not be disturbed on appeal in the absence of abuse of such discretion. We find no abuse of discretion in this case. Pure Oil Co. v. Fowler, Tex.Civ.App., 302 S.W.2d 461; Reynolds v. Pierce, Tex.Civ.App., 320 S.W.2d 376, affirmed 160 Tex. 198, 329 S.W.2d 76.

Appellant’s second point involving the jurisdiction of the Juvenile Court of Dallas County is also without merit and is overruled. The Juvenile Court of Dallas •County is not a constitutional district court as provided in Art. 5, § 8 of the Constitution of Texas, Vernon’s Ann.St. having general jurisdiction therein provided. It is a special court created by the 55th Legislature, Acts of 1957, Chapter 511, Page 1490, and being Art. 2338-9, Vernon’s Ann. Civ.St. It is a court of limited jurisdiction, being confined to the powers delegated to it by § 3 of Art. 2338-9, V.A.C.S. The powers contained in this section relate generally to matters involving children and domestic relations problems. Appellant argues that •the Juvenile Court has jurisdiction of her .action for alienation of affection because the same falls within the category of a ■“justiciable controversy and difference between spouses.” We cannot agree. Appellee Shirley Rogers is not a party to the •marriage, and complaint against her in an action for alienation of affection clearly does not fall within the jurisdiction of the Juvenile Court as designated by the statute. As to her husband, appellant has no cause of action against him for alienation of his own affections. An action for alienation of affection is one founded in tort and a husband is not liable to his wife for a tort committed against her. 30 Tex.Jur.2d, § 143, Page 233; Wilson v. Brown, Tex.Civ.App., 154 S.W. 322; Nickerson v. Nickerson, 65 Tex. 281; Latiolais v. Latiolais, Tex.Civ.App., 361 S.W.2d 252; Nicholson v. Nicholson, Tex.Civ.App., 22 S.W.2d 514.

Appellant’s relief must be sought in the district court. Such relief is not contained within the statute setting forth the jurisdiction of the Juvenile Court and such court has no power outside of or beyond those conferred by statute of its creation. Messner v. Giddings, 65 Tex. 301; Ex parte Hughes, 133 Tex. 505, 129 S.W.2d 270; Cunningham v. City of Corpus Christi, Tex.Civ.App., 260 S.W. 266.

The order of the Juvenile Court of Dallas County dismissing the cause of action is affirmed.

Affirmed.


text:
    Marjorie RADER, Appellant, v. Daniel L. RADER, Appellee.
    No. 16396.
    Court of Civil Appeals of Texas. Dallas.
    April 17, 1964.
    Rehearing Denied May 8, 1964.

      Tobolowsky, Hartt, Schlinger & Blalock, Grover Hartt, Jr., Dallas, for appellant.
    Wm. Andress, Jr., Dallas, for appellee.
   WILLIAMS, Justice.

With no divorce suit pending appellant wife sued appellee husband in the Juvenile Court of Dallas County, Texas alleging that he had failed to support her and the two minor children and prayed that the court should require him to do so. The second count of her petition alleged a cause of action against appellee and a third party for alienation of affection. This portion of the case was severed by the trial court and the final order of the court dismissing that suit has been disposed of by us this date in Rader v. Rader, et al., 378 S.W.2d 371.

The trial court entered an order fixing child support payments but made specific provision in its order that “no portion of the money shall be considered as support for the plaintiff Marjorie Rader.” The trial court dismissed appellant’s claim for support and such order is the sole basis of this appeal. The only question presented to us whether the Juvenile Court of Dallas County may take cognizance of a cause of action by a wife against a husband to whom she is still married and against whom no divorce proceedings were pending, to fix an amount for the exclusive support of the wife which the husband would be required to pay. Appellee has not appealed from the order of the court fixing the amount to be paid for the support of the children.

Appellant concedes that the law applicable to this case is contained in the decision of the Supreme Court of Texas in Trevino v. Trevino, 63 Tex. 650, decided in 1885, wherein the court said:

“The real object of this suit is to compel a husband to support a wife whom he has abandoned, and who is not seeking a divorce. If the plaintiff were suing for divorce, her remedy would be complete. R.S., Arts. 2860-2870. Or if she owned real estate, and her husband were improperly appropriating the revenues, she would have a somewhat restricted remedy; but not in the district court. R.S. Art. 2856. But in the present case the wife appears to have no remedy — at least in this form of action.”

In 1927 the Commission of Appeals in Gonzales v. Gonzales, 117 Tex. 183, 300 S.W. 20, again pointed out the lack of authority of the wife to sue her husband for support. The court there discussed other remedies provided by the Legislature, saying:

“The remedies thus afforded may be thought to be inadequate, but the answer is that the state, whose function it was to deal with the matter, has judged of it and granted what it desired to give and has withheld all else.”

Appellant strenuously argues that Trevino v. Trevino, supra, should not stand as the law in Texas because such decision results in appellant having no remedy whatsoever in a situation of this kind and would force and compel her to file divorce action to secure relief. Assuming to be true all that appellant says in her complaint against appellee, we may have the deepest sympathy for her plight yet her plea for remedy is made to the wrong forum. “It is the proper function of the court to interpret the law and not to make the law,” said Lord Bacon long ago. This fundamental precept of our system of government is reiterated by our Supreme Court, in Turner v. Cross and Eddy, 83 Tex. 218, 224, 18 S.W. 578, 579, 15 L.R.A. 262, wherein Chief Justice Stayton said:

“It is the duty of a court to administer the law as it is written, and not to make the law; and however harsh a statute may seem to be or whatever may seem to be its omission, courts cannot, on such considerations, by construction restrain its operation, or make it apply to cases to which it does not apply, without assuming- functions that pertain solely to the legislative department of the government.”

Since the decision of Trevino v. Trevino, supra, in 1885, the Legislature of Texas has met in regular and special sessions numerous times but such body, in its wisdom, has never seen fit to grant to the wife, not seeking a divorce the right denied her in Trevino. The trial court did not have the right to grant the relief sought by appellant and correctly dismissed the suit.

The judgment of the trial court is affirmed.

Affirmed.


author: SHARPE, Justice.

text:
    John E. HAYES, Appellant, v. Loula M. HAYES, Appellee.
    No. 21.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 16, 1964.

    Rehearing Denied May 7, 1964.

      Jackson Littleton, of Kelley, Looney, McLean & Littleton, Edinburg, Willis G. Per-kin of Alamia, Perkin, & Lemen, Pharr, for appellant.
    Neal King, of Hill, King & McKeithan, Mission, for appellee. -
   SHARPE, Justice.

This appeal by John E. Hayes, plaintiff below, involves that portion of the judgment which adjudicated the property rights of the parties upon the granting of a divorce to appellant from Loula M. Hayes, defendant below and appellee here.

The divorce issues were severed and tried before Honorable Magus F. Smith, the regular judge of the 93rd District Court, and a jury, resulting in interlocutory decree of divorce on March 22, 1963. Upon agreement of the parties Honorable S. N. Mc-Whorter, a retired district judge, was specially assigned to try the property issues. After non-jury trial, final judgment was rendered on July 18, 1963, granting appellant a divorce, dividing the properties and otherwise settling the rights and liabilities in question.

Appellant and appellee were married on May 14, 1960, and finally separated on November 6, 1962. Prior to said marriage appellant had been married two times and appellee three. Each party was past middle age and owned separate properties at the time of their marriage. The trial court appointed an auditor to investigate and report various accounts and other matters concerning the properites belonging to the parties. Each party filed exceptions to the report of the auditor and he was one of the principal witnesses upon trial of 'the property issues.

Appellant, by five points of error, contends that the trial court erred in excluding a pre-marital contract between the parties, in making division of their properties and in fixing their rights and liabilities in connection therewith. Appellee contends that the trial judge correctly determined such property matters, but, by cross-assignment urges that the amount of attorneys fees awarded to her is inadequate as a matter of law. The divorce issues are not involved in this appeal.

The judgment of the trial court will be briefly summarized.

Appellant wás awarded or allowed to retain the following: (1) Real estate situated in McAllen, Texas, together with a business building, furniture and fixtures used in his accounting business, subject to certain indebtedness. This property belonged to appellant prior to the marriage in question and substantial expenditures were made ia connection with it during the marriage, the details of which will be discussed later in this opinion; (2) a 1960 Cadillac automobile, which was clear of indebtedness at the time the property issues were tried; (3) household furniture owned by appellant prior to the marriage; and (4) a promissory note executed by Darrell Smith in the amount of $11,365.00, for a 20% share of appellant’s accounting business. The judgment reflects that the parties agreed such Smith note would be set aside to appellant and that appellee would have the right to collect a contingent fee which Mrs. Far-well, appellee’s sister, might have to pay appellant for accounting services rendered, depending upon the outcome of litigation. The Smith note and the Farwell contingent fee, therefore, need not be further discussed. The final judgment required appellant to pay an indebtedness of $3,225.-19, secured by lien against a 1962 Cadillac awarded to appellee, one-half of the indebtedness in the amount of $4,298.81 owing to the San Juan Bank, which was secured by household furniture, three notes to banks aggregating the amount of $11,500.00, and an indebtedness to Joe Norman, Jr., of $6,250.00, against which appellant claimed a set-off. Appellant was also required to pay $7,500.00 to appellee to adjust equities, and $1,500.00 for appellee’s attorney fees.

Appellee was awarded or allowed to retain the following: (1) Real estate known as the “Home Place” together with the improvements thereon, subject to indebtedness and lien placed against said property during the marriage, which land had belonged to appellee prior to the instant marriage, and upon which substantial expenditures had been made for improvements during the marriage, the details of which will be hereinafter discussed; (2) a 1962 Cadillac automobile, against which there was an indebtedness secured by lien in the amount of $3,225.19, which appellant was required to pay; (3) household furniture, except that owned by appellant prior to the marriage, subject to payment of one-half the indebtedness in the amount of $4,298.81 to San Juan Bank; (4) the Farwell contingent fee; (5) $7,500.00 to adjust equities; and (6) attorneys fees of $1,500.00.

The record shows in several instances that benefits accrued to the parties, financial and otherwise, not specifically mentioned in the judgment, and which the trial judge could properly have considered in making the property division.

The opinion will be shortened and disposition of this appeal will be facilitated by considering appellant’s points in the following order: Point number three, relating to the alleged error in excluding a prenuptial agreement; point number two, relating to the alleged error in connection with the “Home Place”; point number five, relating to the alleged error concerning the 1962 Cadillac automobile and the indebtedness against it; and points numbers one, four and six, grouped for discussion, relating to the alleged errors of the trial court in making the over-all division of the properties, in requiring appellant to pay virtually all of the debts, and in making an allowance of $7,500.00, to appellee in order to adjust equities.

Findings of fact and conclusions of law were not requested or filed. The judgment, therefore, will be reviewed under well-known rules applicable to such situation.

By his point number three appellant contends that the trial court erred in failing to admit in evidence or, at least to consider for limited purposes, a pre-nuptial contract between the parties in which it was agreed that the separate estate of a party making a contribution would be entitled to reimbursement.

The trial court properly excluded the pre-nuptial contract because it was not witnessed as is required by law. Article 4611, Vernon’s Ann.Tex.Civ.St.; Ellington v. Ellington, 29 Tex. 2 (1867); Hickman v. Hickman, 10 S.W.2d 738 (Tex.Civ.App., 1928, n. w. h.); Hartman v. Hartman, 32 S.W.2d 233 (Tex.Civ.App., 1930, writ dism.); Lieber v. Mercantile National Bank at Dallas, 331 S.W.2d 463 (Tex.Civ. App., 1960, wr. ref. n. r. e.). -Even if admitted or considered the said pre-nuptial contract would not have precluded appellant from making valid gifts to appellee during their marriage, which we hereafter hold that he did in connection with the “Home Place” and the 1962 Cadillac automobile. It further appears that the trial court could have found that such contract would not have substantially affected the disposition of the properties made by it, if the same had been admitted or considered.

By his point number two appellant contends that the trial court erred in failing to allow appellant a contribution by reason of his expenditure of many thousands of dollars for improvements on 'the “Home Place” on North Ware Road, McAllen, Texas, which expenditures undisputedly enhanced the value of’such property, such reimbursement being proper under the intent shown by the pre-nuptial contract as well as by the settled rules of law and equity. Appellee contends that the “Home Place” was properly awarded to her as her separate property without allowing appellant any contribution for his expenditures because, on May 7, 1962, appellant reconveyed the property to her and all of the substantial improvements had been made prior to such date.

The “Home Place” property is generally described as 15.23 acres out of lots 1 & 2, Beatty Subdivision, Hidalgo County, Texas. Appellee owned this tract of land prior to May 14, 1960, the date of her marriage to appellant. Shortly prior to such marriage appellee conveyed said property to a trustee, who, within a few days after the marriage, conveyed it to' both of the parties by special warranty deed. Thereafter, and prior to May 7, 1962, substantial improvements were made at a cost of approximately $27,593.73. The record further shows that during the marriage from May 7, 1962 to March 22, 1963, the amount of $1,564.15 was spent on the “Home Place”. This amount will be discussed hereafter under appellant’s point number one. • At the time of the marriage there was an indebtedness, secured by lien, against the said property in the amount of $5,731.62. After the marriage said indebtedness was paid off and a new loan secured by deed of trust lien was arranged in the amount of $20,000.00. On May 7, 1962, after the parties had reconciled following a separation, appellant conveyed said property by warranty deed to appellee ás her separate property, and she assumed the then outstanding indebtedness against it in. the amount of $18,909.89. On the trial of the case counsel for appellant expressly refused to question the validity of said conveyance to appellee.

We hold that the trial court properly awarded the said “Home Place” tract and improvements to appellee as her separate property. The deed from appellant to ap-pellee made the property conveyed her separate property. It divested appellant of all his interest therein and vested full legal title in appellee. Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900 (1955); Taylor v. Hollingsworth, 142 Tex. 158, 176 S.W.2d 733 (1943); Davis v. Davis, 141 Tex. 613, 175 S.W.2d 226 (1943); Alexander v. Alexander, 373 S.W.2d 800 (Tex.Civ.App., 1964) n. w. h.); McAdams v. Ogletree, 348 S.W.2d 75 (Tex.Civ.App., 1961, wr. ref. n. r. e.); Pevehouse v. Pevehouse, 304 S.W.2d 770 (Tex.Civ.App., 1957, wr. dism.). Appellant’s point number two is overruled.

By his point number five appellant contends that the trial court erred in awarding the 1962 Cadillac automobile to appellee as her separate property and at the same time adjudging that appellant should discharge the indebtedness and lien against it, because there was no evidence, or, at least, the evidence was insufficient, to support such rulings. Appellee contends that the trial court ruled correctly because appellant gave appellee the car and signed.the note for the unpaid purchase price thereon.

The history of the 1962 Cadillac automobile which the judgment awarded to appellee is as follows: The car was purchased by appellant in May, 1962, after the parties had reconciled. A 1959 Cadillac, which had been in part a pre-marital gift from appellant to appellee and which was fully paid for, was traded in on the new 1962 Cadillac. The title certificate to the 1962 Cadillac was placed in appellee’s name and reflected an indebtedness of approximately $3,200.00, secured by lien, owing against it. The decree required appellant to pay off and discharge said indebtedness and lien. On the trial of the case appellant testified on two occasions that he gave appellee said 1962 Cadillac. At another point in his testimony he claimed it was community property. The evidence is sufficient to support implied findings in favor of the judgment that said 1962 Cadillac became the separate property of appellee by virtue of a gift from appellant. The trial court properly required appellant to discharge the said indebtedness and lien. Harford Mutual Insurance Company v. Gorbet (5 Cir., 1957) 241 F.2d 363, and cases therein cited. Appellant’s point number five is overruled.

We now pass to a discussion of appellant’s points one, four and six, relating to the alleged errors of the trial court in making the over-all division of the properties, in requiring appellant to pay virtually all of the debts, and in making an allowance of $7,500.00 to appellee in order to adjust equities. Consideration of the entire record herein reflects that when the “Home Place” and the 1962 Cadillac automobile are properly classified as gifts from appellant to appellee, as we have held in deciding appellant’s points two and five, appellant received at least an equal division of the properties, taking into account the debts he was required to pay by the judgment.

Appellant argues under his point number one that the trial court abused its discretion in dividing the properties because appellant’s net worth was reduced more than $38,000.00 to a nominal figure of $1,400.00 while the net worth of appellee was increased by more than $25,000.00 to $5-1,-500.00. Appellant’s starting point for this argument is the comparative statement of the financial position of each of the parties included in the report of the auditor, with projected figures furnished by appellant giving effect to the final decree of July 18, 1963. Although such comparative statements may serve the purpose of furnishing information to the court from an accounting basis, an examination of the entire record reflects that from a legal standpoint a number of items are misclassified, some of them are not fully explained, and some items are omitted. At first glance, it may seem that the division made by the trial court is heavily unequal in favor of appellee; however, extended examination of the record reflects that the division is not as unequal as appellant contends and in some respects an unequal division is justified. Consideration of the specific provisions contained in the judgment along with other benefits and burdens not detailed in the judgment, but which are shown by the evidence and the auditor’s report, furnishes a better understanding of what the trial court accomplished than do the comparative statements relied on by appellant.

After eliminating the “Home Place” and the 1962 Cadillac from consideration because they were, in part, gifts by appellant to appellee, the appellant received the following benefits not specifically detailed in the judgment: In connection with insurance policies separately owned by him prior to and after the marriage here involved there was during the marriage a reduction of loans in the amount of $11,381.32 and an increase of cash values of $5,451.51, said two amounts aggregating $16,832.83. During said marriage there was a reduction of the principal owing on the note and mortgage and payment of taxes in the amount of $7,725.18, on the business property in McAllen, Texas, owned by appellant prior to the marriage and afterwards. During the period of the final separation of the parties from November 6, 1962, to March 22, 1963, appellant earned at least the sum of $11,500.00 while he was paying appellee $1,360.00 in alimony. Appellant also paid $1,564.15 from May 7, 1962 until March 22, 1963, on appellee’s “Home Place”. Crediting appellant with the last two amounts and deducting the same from his earnings for the said period it appears that appellant retained the difference in the amount of $8,632.99. The benefits to apel-lant discussed in this paragraph aggregate the stun of $33,191.00.

Appellee, after eliminating from consideration of the “Home Place” and the 1962 Cadillac automobile, received the following benefits: In connection with the furniture purchased during the marriage, taking appellant’s figures of $3,306.52, less $2,149.40, representing one-half of the indebtedness to San Juan Bank, as provided by the judgment, and disregarding depreciation in value, appellee received a maximum benefit of $1,157.12. Appellee owned separate property located on South 10th Street, Mc-Allen, Texas, on which $6,684.69 was expended during the marriage, principally for reduction of mortgage notes, resulting in a benefit to her to such extent. Appellee was awarded $7,500.00 by the trial judge in order to adjust equities. The benefits to appellee discussed in this paragraph amount to $15,341.81, or an amount which is $17,-849.19 less than that awarded to appellant under the calculation contained in the immediately preceding paragraph.

Appellant complains, by his point number four, of the action of the trial court in having adjudged him liable for virtually all the indebtedness excepting that owing to the San Juan Bank, as follows: First National Bank, Mission, Texas, $4,500.00; First National Bank, McAllen, Texas, $4,-500.00; Security State Bank, Pharr, Texas, $2,500.00; and to Joe Norman , Jr., in the amount of $6,250.00; said notes aggregating $17,750.00. The net benefits accruing to appellant, as is discussed in the last two preceding paragraphs more than off-set the amount of such notes and the action of the trial court in requiring appellant to pay such notes was proper.

There are additional matters shown by the evidence which the trial court could properly have taken into account in making division of the properties and in fixing the rights and liabilities of the parties. Such other matters tend to show that the division of the properties made by the trial court was fairly equal even if the “Home Place” and the 1962 Cadillac automobile are not considered as gifts from appellant to ap-pellee. Some of these items are as follows : Two of the loans, aggregating $7,000.00, which the court required appellant to pay were made by him just prior to the final separation of the parties, with less than a satisfactory explanation being given to show that same constituted a valid community obligation. Appellant reduced his bank account in the amount of approximately $14,000.00 during a short period of time before the final separation, again with something less than a satisfactory explanation. There was evidence that during two periods of time when the parties were separated, appellant made certain expenditures, while engaged in what may conservatively be referred to as escapades, which would not be considered in the interest of appellee or of the community estate. When questioned about such matters, appellant invoked the broad protection of the Fifth Amendment to the Constitution of the United States. This action may have served to prevent appellant’s incrimination but it did not strengthen his position in connection with the property issues involved. The accounting further reflected that during the marriage of the parties the amount of $3,986.48 had been paid for interest on appellant’s mortgage note against his separate business property, which appellant would have been required to pay whether or not he was married to appellee. During the marriage appellant also received the benefit of an allowance for depreciation of his separate business property in the amount of $4,848.00, a deductible item for income tax purposes, contrasted with the amount of $530.00 allowed for depreciation of appellee’s “Home Place”, which was a non-deductible item for income tax purposes, or a net difference of $4,320.00. It further appears that a portion of appellant’s investment in John E. Hayes Company, a partnership, was in the form of cash, bank deposits and accounts receivable, according to the auditor’s report which the trial court could have found to be community property of the parties. The trial court was authorized to find that appellee was the owner of one-half of the amount of $3,874.00 or $1,748.-00, in such connection. Appellant purchased a cemetery lot for $500 during the marriage which he was allowed to retain. It also appears that during the final separation of the parties and before the interlocutory decree, appellant received community income in addition to his earnings heretofore mentioned. The auditor was unable to verify the amount in cash which appellant had on hand and the trial judge was entitled to consider such fact along with the others hereinbefore mentioned.

The trial court is vested with wide discretion in connection with the division or partition between the parties of properties involved in a divorce case. An equal division is not required under all circumstances and the trial court is authorized by Article 4638, V.A.T.S. to make such division as is just and right, taking into consideration and having due regard for the rights of each party. The decision of the trial court will not be reversed on appeal unless an abuse of discretion is shown in that the disposition made is manifestly unjust and unfair. Trimble v. Trimble, 15 Tex. 18 (1855); Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950); Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960); Mozisek v. Mozisek, 365 S.W.2d 669 (Tex.Civ.App., 1963, wr. dism.).

We hold that the trial court did not abuse its discretion in dividing the properties of the parties or in otherwise fixing their rights and liabilities. Accordingly, appellant s points one, four and six are overruled.

Appellee’s cross-assignment as to the alleged inadequacy of attorneys fees awarded to her must be overruled. The test is not what fee we would allow if the matter had originally been submitted to us, but is whether the finding of the trial judge amounts to an abuse of discretion. Chapman v. Chapman, 172 S.W.2d 127 (Tex.Civ.App., 1943, wr. dism.). The award made by the trial court is not inadequate as a matter of law and abuse of discretion is not shown.

The judgment of the trial court is affirmed, and, in accordance with Rule 435, Texas Rules of Civil Procedure, judgment is rendered against appellant and the sureties on his supersedeas and appeal bonds for the performance of the judgment of the trial court and for payment of all costs incurred in this court as well as the costs assessed against appellant in the trial court.


author: FANNING, Justice.

text:
    A. H. TARVER et al., Appellants, v. Arline S. TARVER, Appellee.
    No. 7543.
    Court of Civil Appeals of Texas. Texarkana.
    March 31, 1964.
    Rehearing Denied May 12, 1964.

      H. P. Smead, Jr., Smead & Harbour, Longview, L. F. Burke, Longview, for appellants.
    Jack N. Price, Kenley, Ritter & Boyland, Longview, for appellee.
   FANNING, Justice.

Arline S. Tarver sued her former husband, A. H. Tarver, for partition of their community estate acquired during nearly 40 years of marriage and for an accounting from the date of her divorce, May 19, 1960.

Intervenors-appellants, children and grandchildren of A. H. Tarver by a'first marriage intervened seeking to impose a trust and seeking an accounting and seeking various relief by way of monetary judgments.

Trial was to a jury, resulting in the jury’s response to the single issue submitted that 70% of the property held as of May 19, 1960, was community property of the marriage between A. H. Tarver and Arline S. Tarver. Upon motions for judgment non obstante veredicto filed by all parties the trial court set aside the finding of the jury and rendered judgment to the effect that all property acquired during the marriage between A. H. Tarver and Arline S. Tarver was community property of such marriage. All property acquired prior to July 18, 1921 (the date of marriage of A. H. Tarver and Arline S. Tarver) was awarded one-half to A. H. Tarver in his separate capacity and one-half to intervenors. The judgment also required appellants to account for income attributable to appellee’s one-half of the community property from the date of divorce to the date of the judgment. The judgment also required the appellee Arline S. Tarver to account for one-half the value of a diamond ring which the court found to be a gift from A. H. Tarver to Arline S. Tarver. A. H. Tarver and his intervening children and grandchildren have appealed.

The trial court, upon due request, filed findings of fact and conclusions of law, which were later partially amended and supplemented, and such findings of fact and conclusions of law as amended, deleted and supplemented read as follows:

“FINDINGS OF FACT
I.
“Albert H. Tarver was married to his first wife, Minnie Ora Peeler, Tarver, in 1903. To this union were born three children: Edward A. Tar-ver, born 1904; Kathleen Tarver, now Mrs. Kathleen Tarver Pfannkuche, born 1909; and Jack H. Tarver, born in 1915. Edward A. Tarver died in 1953, leaving two children surviving him, Kathleen Tarver and Edward A. Tarver, Jr.
“Minnie Ora Peeler Tarver died on November 30, 1918.
II.
“At the death of his first wife in 1918, A. H. Tarver was domiciled in Texas, a community property state, and was possessed of certain assets comprising the community estate of the first marriage. There is attached hereto' as schedule ‘A’ an inventory of such community assets.
III.
“There was no administration on the estate' of Minnie Ora Peeler Tarver, and A. H. Tarver made no accounting or division of the first community estate with the children of the first marriage.
IV.
“A. H. Tarver and Arline Self Tar-ver were married July 18, 1921. At that time, A. H. .Tarver was still possessed of much of the property acquired during the first marriage. Attached hereto as Schedule ‘B’ is an inventory of the assets of the first community estate held by A. H. Tarver at the date of the second marriage.
V.
“Arline S. Tarver and A. H. Tarver were divorced on May 19, 1960.
VI.
“During the intervening years between July 18, 1921, and May 19, 1960, A. H. Tarver sold, hypothecated, or otherwise disposed of most of the assets of the first community estate which were still held in his possession at the date of his marriage to Arline S. Tarver. The only assets which were part of the community estate as of November 30, 1918, and were still owned or held on May 19, 1960, are listed on Schedule ‘CV
VII. ■
“Except for that listed on Schedule ‘C’, all of the property comprising the community estate of the first marriage which was still possessed by A. H. Tarver as of July 18, 1921, was sold or otherwise disposed of prior to the year 1947, and most of such assets were disposed - of before 1930; only about $12,000.00 was received from the sale of any such assets after 1930. Schedule ‘D’ itemizes such property and shows the year in which it was sold or otherwise disposed of, and the amount of money ultimately realized from such disposition.
VIII.
“At the date of the divorce, the estate in the possession of A. H. and Arline S. Tarver consisted of the property listed on Schedule ‘E’.
IV.
“From and after the year 1922, A.H. Tarver maintained one bank account in Shreveport, Louisiana. Through this bank account were channeled virtually all income and receipts from whatever source, and disbursements for virtually all expenses and purchases.
X.
“During the years of the marriage of Arline and A. H. Tarver, a considerable amount of income was realized. This income is analyzed in detail on Schedule ‘F’.
XI.
“Kathleen Tarver Pfannkuche and Jack Tarver, surviving children of the first marriage of A. H. Tarver, and Ned Tarver, deceased child of A. H. Tarver, consented to and acquiesced in A. H. Tarver’s use of any and all property in which they had an interest, at a time when each of them were, respectively, of a legal majority. Such consent and acquiescence originated and continued over a period of time more than twenty-five years prior to the filing of Intervenor’s Petition in this cause.
XII.
“Kathleen Tarver Pfannkuche, Jack Tarver and Edward A. Tarver, during his lifetime, knew that the assets of the first community estate would be, ■and actually were, sold, depleted, depreciated, or otherwise disposed of or converted during the marriage of A. H. and Arline S. Tarver, and that the proceeds from the conversion or disposition were mixed and mingled with income realized by A. H. Tarver from all sources.
XIII.
“A. H. Tarver gave Arline S. Tarver a ladies’ solitaire one-carat diamond ring as an engagement ring prior to their marriage, which diamond ring was community property of the first marriage, and for which this Court ordered Arline S. Tarver to account for one-half of the value to the Inter-venors.
XIV.
“There was no formal trust agreement, either written or oral, regarding the property of the first community estate, between A. H. Tarver and the Intervenors.
XV.
“During the marriage of A. H. and Arline S. Tarver, Arline S. Tarver managed the household and A. H. Tarver managed and directed all business affairs. Arline S. Tarver had no control over, and no active voice in the management of the properties, the production of income, the use or disposition of assets or income, or any of the business affairs, which were managed and directed solely by A. H. Tarver.
XVI.
“With the exception of a fractional interest in each lease purchased from the Barclay Cook Estate shortly before the divorce on May 19, 1960, the Free and Magrill leases, more particularly described in the Judgment, were obtained through A. H. Tarver’s promotional efforts in 1931. Drilling rigs acquired during the first marriage and maintained and repaired for approximately ten years from funds acquired during the second marriage, were used for drilling such leases, but charges were made for the drilling and A. H. Tarver made a profit from such charges.
XVII.
“Intervenors failed to trace any fund, income or assets of the first community estate into any of the property acquired during the second marriage and held as of May 19, 1960.”
(Finding XVIII was withdrawn)

The court granted intervenors’ additional requested finding of fact No. IS, which additional finding reads as follows :

“That the Court appointed LOUIS B. GREEN, a Certified Public Accountant, to audit the estate from 1903 to May 19, 1960, which he did, and filed same with the Clerk of this Court and no written objections were filed thereto; such audit is adopted by this Court as part of its Findings of Fact”.

The trial court also granted A. H. Tar-ver’s requested finding XIII, which reads as follows: “The audit of Louis B. Green, certified public accountant, filed in the papers of this cause, is adopted by the court as a portion of its findings of fact.” In connection with this finding the court also made the additional finding “that if there be any discrepancy between the audit filed in the papers in this cause and any figures, numbers, subtotals or totals, then the audit shall control”.

“CONCLUSIONS OF LAW
I.
“All property acquired during the ■ marriage of Arline and A. H. Tarver and held as of the date of the divorce on May 19, 1960, was community property of their marriage. A complete list of such property is contained on Schedule G’.
II.
“Intervenors are entitled to no accounting or recovery of income as against the community estate of Arline Tarver.
(Conclusions of Law III and IV were withdrawn).
V.
“Arline S. Tarver is entitled to an accounting and to payment of one-half of all income, interest, dividends or other accruals earned or received by virtue of the community property of the marriage of A. H. and Arline S. Tarver from the date of May 19, 1960, until paid to her.”

Omitted for the sake of brevity are the lengthy schedules of property attached to the findings and conclusions of the trial court. However the following references to said schedules will be made.

Schedule A, an inventory of the estate of A. H. Tarver and Minnie Ora Peeler Tarver as of November 30, 1918, shows a total value of the assets at $349,510.12.

Schedule B, an inventory of such first community estate still held by A. H. Tarver on July 18, 1921, shows the then assets to be of the total value of $260,348.95.

Schedule C shows that of the specific assets of the first community estate held by A. H. Tarver on November 18, 1918, and still held on May 19, 1960, consisting of the Hampton Royalty in Caddo Parish, Louisiana, three tracts of land in Hardin County, Texas, diamond rings, jewelry, sterling silver, Dresden china, oriental throw rugs, household furniture, fixtures and library, all of the fair market value of $20,874.50, as of November 18, 1918, was of the fair market value of $29,675.00 as of May 19, 1960.

Schedule D shows in detail the assets held on November 18, 1918, and disposed of during the marriage of A. H. and Arline Tarver, which shows that these assets were disposed of in the years from 1922 to 1930 inclusive, and- the total amount ultimately realized therefrom was the sum of $147,-309.97.

Schedule E shows in detail the estate in possession of A. H. and Arline Tarver on May 19, 1960. The amount of cash on hand then was $8,789.82. Schedule E shows that various listed stocks and bonds were acquired during the marriage between the years 1952 to 1960, inclusive, and were of the fair market value of $91,044.75. The said schedule E further shows that the Magrill Lease, Gregg County, Texas, and the Free Lease, Upshur and Gregg Counties were acquired in 1931 during the marriage, and were of the fair market value of $80,503 and $107,224.67, respectively. Said schedule also shows that a home in Shreveport was acquired in 1923 during the marriage, and was valued at $21,500.00. Also an interest in land in Red River Parish, Louisiana, was acquired in 1947, during the marriage, and was valued at $133.14. Schedule E also shows the property acquired before 1921 and still on hand, which is the same property as referred to in Schedule C. The total fair market value of all of the property described in Schedule E as of May 16, 1960, is listed as $340,345.-38.

Schedule F is a lengthy analysis of the income realized during the marriage of Arline and A. H. Tarver.

Schedule G .is an inventory of the community property of A. H. and Arline Tarver as of May 19, 1960, and is listed as having a fair market value then of $310,970.58.

The court appointed auditor’s report shows that the property in the hands of A. H. Tarver steadily declined each year from 1918 until 1931. In 1931 the net worth of property held by A. H. Tarver, including all property of every character, reached a low net worth value of $48,688.70. In ,1931 Mr. A. H. Tarver acquired the Free and Magrill leases and thereafter his financial status greatly improved as the years went by, largely and primarily as a result of the income from the Free and Magrill leases. From the evidence in the record it is clearly apparent that from and after the year 1931 the great bulk and substantial majority of all income realized during the marriage of A. H. Tarver and Arline Tarver came from the. Free and Magrill leases!

Art. 4613, Vernon’s Ann.Civ.St, provides in part as follows: “All property of the husband, both real and personal, owned or claimed by him before marriage, and that acquired afterwards by gift, devise, or descent, as also the increase of all lands thus acquired, shall be his separate property. * * * ”

Separate property also is that which is logically construed to fall within the categories stated in Art. 4613, V.A.C.S., supra, such as property taken after marriage for a pre-existing debt, or in exchange for separate property, etc. Speer, Marital Rights in Texas, Vol. 1, Sec. 401.

Art. 4619, V.A.C.S., provides in part as follows: “All property acquired by either the husband or wife during marriage, ex-r cept that which is the separate property of either, shall be deemed the common property of the husband and wife; and all the effects which the husband and’ wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved. * * *

With respect to the Free and Magrill leases, acquired in 1931, during the marriage of A. H. Tarver and Arline Tarver, which leases were the most valuable assets held by A. H. and Arline Tarver at the date of their divorce, and which leases produced most of the income during their marriage, it is our view that under this record such leases were and are clearly community property of A. H. Tárver and Arline Tarver. These leases were acquired through the talents and promotional efforts and abilities of Mr. Tarver by drilling for the' interests received in such leases. Ostensibly, drilling rigs which were owned during the first marriage (and which had been maintained and repaired over ten years during the second marriage from funds ostensibly acquired during the second marriage) were used for such drilling, however Mr. A. H. Tarver, testified to the effect that he charged for the drilling and made a profit thereon. It is clear that A. H. Tarver’s talents and community efforts in promoting the deals and seeing that the leases were drilled resulted in the acquisition of his interests in the leases, and that no funds from any source antedating the second marriage were expended in the acquisition of such leases in 1931, which time of acquisition of the interests in such leases was about ten years after the marriage of A. H. and Arline Tarver in 1921. We hold that the interests held in the Free and Magrill leases were and are community property óf A. H. .Tarver and Arline Tarver. In this, connection see Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676, and authorities cited therein.

As we view and understand the auditor’s report and the evidence in the record there was bétween $7 and $8 of community income earnéd during the nearly 40 years of marriage of A. H. Tarver and Arline Tar-ver for every $1 separate income of A. H. Tarver and funds attributable to the interest of the children in the first community estate of A. H. Tarver and Minnie Ora Peeler Tarver. However, all income was indiscriminately intermingled over the nearly 40 year period of the second marriage in one common bank account. It was clearly impossible under this record for any of the funds that might be attributable to the interest of the children of the first marriage in the first community estate to be traced through the common bank account, which contained funds commingled over a period of nearly 40 years, into specific assets held on the day of the divorce of Arline Tarver and A. H. Tarver.

It is well settled law in this state that where there has been a commingling of separate funds or property with community funds or property, making it impossible to clearly trace and identify the separate contribution, the aggregate, or the assets acquired therewith, must be deemed community property. Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900; Rippy v. Rippy, Tex.Civ.App., 49 S.W.2d 494, writ refused.

Where separate property 'has undergone various changes and mutations, the burden is on the party asserting the separate character to trace and identify the separate property through all changes made and show that the property so contended as separate is separate.' And the intermingling of separate and community funds beyond the ability to resegregate them causes the aggregate to become community property. Hodge v. Ellis, supra.

The case of Cook v. Cook, Tex.Civ.App., 331 S.W.2d 77, is in some respects' similar to the "factual situation at bar with respect to the commingling of separate and community property and correctly announces principles of law applicable to the facts in the case at bar. We quote from the Cook casé in part as follows:

. “It is asserted that the entire income during this marriage, (except some building rentals in fixed amounts) was oil royalty income of the first community or of W. H. Cook’s separate estate ; and therefore any personalty purchased therefrom belongs to these estates.
“In 1943 Cook opened an account in a Grand- Saline bank with a $2,057.55 deposit. During the next fourteen years of his second marriage until his death, there were hundreds of unidentified deposits and withdrawals
“Dividends, interest, loan repayments and other income from Cook’s separate estate were deposited in this account. The evidence shows that Cook engaged in commercial enterprises during this second marriage, and, although there is no affirmative showing that royalty income was deposited in the account, apparently all income, separate and community, was indiscriminately intermingled. Appellants offered evidence of totals or estimates of royalty income of the first community, but there is nothing in the record to segregate or determine the source of the deposits in the account.
“The presumption concerning the separate property status of hank accounts fixed by Art. 4622, Vernon’s Ann.Tex.Civ.Stats., is inapplicable since the action is between a spouse and successors of a spouse. The commingled funds, out of which the personalty was acquired, became community property as determined by the trial court. Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900, 907. The presumption of Art. 4619, Sec. 1: ‘all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved,’ governs. The burden of rebutting this presumption rests on appellants. Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226; Odell v. Odell, Tex.Civ.App., 306 S.W.2d 914, 918, writ ref. n. r. e. The only evidence to meet this burden is the showing that income from oil runs did exist in a large amount. The points relating to this contention are based on an insupportable factual premise. Callaway v. Clark, Tex.Civ.App., 200 S.W.2d 447, writ ref.; Davis v. Sturdivant, Tex.Civ.App., 306 S.W.2d 386.”

We agree with the trial court’s finding of fact that the intervenors failed to trace any fund, income or assets of the first community estate into any of the property acquired during the marriage of A. H. Tarver and Arline Tarver and held as of May 19, 1960, the date of the divorce.

It is our further view that intervenors’ claim of a trust is without merit under this record. See the following authorities: Logan v. Logan, 138 Tex. 40, 156 S.W.2d 507; Singer v. Singer, 150 Tex. 115, 237 S.W.2d 600; Sims v. Falvey, Tex.Civ.App., 234 S.W.2d 465, wr. ref., n. r. e.; Andrews v. Andrews’ Estate, Tex.Civ.App., 326 S.W.2d 203.

We hold that there was evidence of probative force to support the trial court’s findings of fact and that the evidence was sufficient to support same. After carefully reviewing the entire record in the cause in the light of the rules enunciated in the case of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, we further hold that none of the trial court’s findings of fact are so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

We agree with the trial court’s conclusions of law.

We further hold that the trial court did not err in any of the matters complained of by appellant Tarver and the intervenor-appellants. Each and all of the points raised by appellant Tarver and the inter-venors-appellants are respectfully overruled.

We also overrule the cross-assignments of error brought forward by appellee.

Finding that the trial court entered a correct judgment, the same is accordingly affirmed.


author: DIXON-, Chief Justice.

text:
    W. R. DeMUTH, Appellant, v. Flossie O. HEAD, Appellee.
    No. 16315.
    Court of Civil Appeals of Texas. Dallas.
    March 6, 1964.
    Rehearing Denied April 17, 1964.
    Jonathan H. Allen, Dallas, for appellant.
    Eades & Eades, Eric Eades, Jr., Dallas, for appellee.
   DIXON-, Chief Justice.

Appellant DeMuth brought suit against appellee Flossie O. Head individually alleging that appellee is indorser of a certain promissory note in the principal sum of $1,050.00. Summary judgment was rendered in favor of appellee.

A copy of the note is attached to appellant’s petition as an exhibit. The note was signed by Paskel A. Jones as maker and is payable to the order of Rags to Riches, Inc. The indorsement by which the note was sold and transferred to appellant DeMuth is signed as follows: “RAGS TO RICHES, INC. BY Flossie Head, President.”

| Appellee’s answer consists of a general denial and a verified specific denial that she executed the assignment of the note or that she guaranteed payment thereof.

Since appellee did not attach any affidavits' or :other proof to her motion for summary judgment, her motion is directed solely at the adequacy of appellant’s pleadings. Gibler v. Houston Post Co., Tex. Civ.App., 310 S.W.2d 377; Brownson v. New, Tex.Civ.App, 259 S.W.2d 277.

Though appellant alleged 'that appellee indorsed the note, the attached copy of the note shows very plainly that it was not indorsed by appellee Flossie Head, but was indorsed by Rags to Riches, Inc. In case of such a variance the instrument attached as an exhibit, not the allegations in the pleadings, must govern. Pyron v. Grinder, 25 Tex.Supp. 159, 160; Cawley v. Security State Bank & Trust Co., Tex.Civ.App, 126 S.W.2d 715; Paul v. Houston Oil Co, Tex.Civ.App, 211 S.W.2d 345.

In' his" supplemental petition appellant alleges that Rags to Riches, Inc. is hut the alter ego of appellee, Flossie Head. The allegation is immaterial in this case.

In Farrier v. Hopkins, 131 Tex. 75, 112 S.W.2d 182, the Commission of Appeals in an opinion adopted by the Supreme Court said that it is an ancient rule of law that as to instruments which at common law were required to be executed under seal and as to negotiable instruments parol evidence would not be permitted to bind those not a party to such instruments. The court further said, “They cannot be made the obligation of some one not a party by extrinsic proof, regardless of what are the real facts. * * * .parol proof to show liability of the real principal is inadmissible because 'tending to add to or alter the terms of the written instrument.” 'See also Frankfurt v. Wilson, Tex.Civ.App, 353 S.W.2d 490, 492; Dillon v. Bank of Texas, Tex.Civ.App, 346 S.W.2d 153; First State Bank of Riesel v. Dyer, Tex.Civ.App, 248 S.W.2d 785 (affirmed 151 Tex. 650, 254 S.W.2d 92); and Sheehan v. Hudman, Tex.Civ.App, 49 S.W.2d 953.

Rags to Riches, Inc. is shown by the note itself to be the indorser, not Flossie Head individually. Under the above authorities parol evidence is not admissible to show that Rags to Riches, Inc. was merely the alter ego of’ Flossie Head.

Appellant’s points on appeal are overruled. •

The- judgment of the trial court is affirmed.

Affirmed.

ON REHEARING

In his motion for rehearing appellant asserts that regardless of whether appellee is individually liable on the note in question appellant has a cause of action against ap-pellee under his allegation that he is entitled to an implied vendor’s lien on property conveyed by appellant to appellee. In his petition appellant alleges that the note endorsed by Rags to Riches, Inc. was delivered by appellee to appellant as part of the purchase price of certain described real property conveyed by appellant to appellee.

Appellant’s contention is without ’merit. The fact that appellant accepted the endorsed note of Paskel A. Jones as part of the consideration of the conveyance to appellee raises a presumption that appellant waived any implied vendor’s lien. The presumption unless rebutted will establish the fact of waiver by appellant. Westmoreland v. Masterson, Tex.Civ.App., 79 S.W.2d 655; Strain v. Martin, Tex.Civ.App, 183 S.W.2d 246. Though a presumption does not have the effect of shifting the burden of proof in a suit, it does place on the opposite party the burden of introducing evidence to overcome the prima facie case established by the presumption. See 23 Tex. ' Jur.2d 105, and cases cited under Note No. 1; and 23 Tex.Jur.2d 135, and cases cited under Note No. 14.

In the case now before us appellant neither pled nor proved any facts in rebuttal of the presumption raised by his own pleadings.

The motion for rehearing is overruled.

Overruled.


text:
    B. R. SHEFFIELD, Jr., Appellant, v. C. A. NOBLES, Appellee.
    No. 11175.
    Court of Civil Appeals of Texas. Austin.
    April 22, 1964.
    Davee & Davee, Brády, for appellant.
    Lee & Lee, Mason, McCollum & Townsend, Brady, for appellee.
   HUGHES, Justice.

This is an appeal from a judgment rendered upon stipulated facts.

The question presented is the personal liability, vel non, of B. R. Sheffield, Jr., appellant, for the debts of Heart o’ Texas Supply Company, a Texas' Corporation, incurred when the right of such corporation to do business had been forfeited by the Secretary of State tinder Art. ,12.14 — 12.15, Taxation General, V.A.T.S. App.ellee, C. A. Nobles, asserts such liability under the provisions of Art. 12.14, Id, which we quote:

“Each director and officer of any corporation whose right to do business within this State shall be so forfeited shall, as to any and all debts of such corporation, which shall include all franchise taxes and penalties thereon which shall become due and payable subsequent to the date of such forfeiture, and which may be created or incurred, with his knowledge, approval and consent, within this State, after such forfeiture by any such directors or officers, and before the revival of the right of such corporation to do business, be deemed and held liable thereon in the same manner and to the same extent as if such directors and officers of such corporations were partners.”

The pertinent facts are these:

On April 17, 1959, Heart o’ Texas Supply Company was a Texas Corporation. On July 17, 1961, the right of this Corporation to do business in Texas was forfeited by the Secretary of State of Texas for failure to pay its franchise tax to the State. This right to do business was revived by the Secretary of State on March 12, 1962, under Art. 12.15, Id.

On September 29, 1961, and on November 4, 1961 during the time when the forfeiture referred to was extant, the Heart o’ Texas Corporation, acting through appellant, borrowed from appellee a total of $10,000.00. This loan became due and payable during the period when the Corporation’s right to do business was forfeited. Demand for payment was made during such period and default of payment then occurred except as to the sum of $650.00, which was paid. No other payments have been made.

There are three stockholders in the Heart o’ Texas Corporation, appellant, who owns 50% of the stock, Eloise Sheffield who owns 49% and Linda Joyce Wall who owns 1%. Appellant is president of the Corporation; Eloise Sheffield is its secretary-treasurer; and Linda Joyce Wall is its vice-president.

Judgment, final in form, was rendered against appellant for the amount sued for and for foreclosure of an attachment lien on certain realty. Judgment was rendered that appellee do not recover of B. R. Sheffield, Sr., who was a party defendant.

Appellant’s first point of error is that the Trial Court erred in rendering judgment for appellee and in not rendering judgment for him for the reason that the Heart o’ Texas Corporation was not a party to this suit and that appellant if liable at all was only liable as surety.

We overrule this point upon the authority of the statute which appellee invokes and which we have copied. The liability fixed by the statute under facts present here is the liability of “partners.” The relationship between partners is not that of principal and surety. The liability of partners is joint and several. All need not be sued. Lang v. Bass, 374 S.W.2d 900, Austin Civil Appeals, no writ history.

Appellant’s second point is that the Trial Court erred in rendering judgment against him individually for a debt for which the corporation, and not he, was liable.

Under this point appellant expresses intense dissatisfaction with the statute invoked here and stresses its harshness and the equities inherent in its application. He also emphasizes that Arts. 12.14 and 12.15 are revenue statutes and not statutes regulating corporations.

We are aware of and have fully considered the effect of enforcing this statute under all circumstances and agree that it is highly penal in nature and one which could produce great hardship. There is, however, no suggestion that the statute is invalid. The provisions involved here have been before our Courts on two previous occasions and in neither of them has there been any indication that the statute should not be enforced according to its terms. Whitehead v. Bulkley, 37 S.W.2d 1112, Dallas Civil Appeals, Groce-Parrish Co. v. Yakey, 81 S.W.2d 273, San Antonio Civil Appeals, no writ histories.

Our duty is to enforce valid statutes as written. This we do by affirming the judgment of the Trial Court.

Affirmed.

      . This statute was amended in 1961 but the provision quoted here was unchanged. •


author: BATEMAN, Justice.

text:
    CITY OF DALLAS, Appellant, v. G. B. McLEMEE et ux., Appellees.
    No. 16328.
    Court of Civil Appeals of Texas. Dallas.
    April 3, 1964.
    Supplemental Opinion April 17, 1964.
    H. P. Kucera, City Atty., N. Alex Bick-ley, Asst. City Atty., Dallas, and W. H. Frank Barnes, Terrell, for appellant.
    Earl Luna, Dallas, for appellees.
   BATEMAN, Justice.

The City of Dallas appeals from the judgment of the County Court of Kaufman County awarding appellees G. B. McLemee and wife the sum of $1,680 as the value of land condemned by appellant as part of the right-of-way for its pipeline from Lake Tawakoni to Dallas. The land taken is a strip 130 feet wide, comprising 4.8 acres, across the southern end of appellees’ 108-acre tract. While the title taken is the fee simple, all oil, gas and other minerals, together with the right to use the surface for agricultural and grazing purposes are reserved to appellees, their heirs and assigns, subj ect to appellant’s unlimited right of ingress and egress. The only question presented by appellant’s five points of error is the sufficiency vel non of the evidence to support the jury’s finding as to the value of the land taken. In our opinion the award is so excessive as to require reversal.

The only evidence of values offered by appellee? .was the testimony of appellee G. B. McLemee, who did not live on the farm in quéstion but lived about a mile and a quarter from it. He did not purport to be an expert and the only effort made to qualify him to give opinion evidence was counsel’s asking him if he had an opinion or whether, he knew the market value of the farm, to which he replied: “I would think so.” It was not otherwise shown that he was familiar with any land values in the vicinity. He was then asked what the value of the condemned strip was, “considered as severed land,” to which he replied: “I would value it myself for $500.00 an acre.” He was then asked his opinion as to the value of the remaining 103.2 acres, and he replied, “About $250.00 an acre.” He was of course interested in the outcome of the case, and he gave no basis whatever for his conclusions.

The land in the condemned strip was not shown to be more productive, or of better quality, or better located than any of the land abutting it on both sides. McLemee testified that after installation of the pipeline he planted the right-of-way in rye grass, oats and vetch, and that the only way you could, tell the difference between the pipeline strip and the land adjacent to it was the fact that there were no weeds growing on the strip; that he was getting the use of the strip but would not have to pay taxes on it.

Appellees offer nothing, either in their evidence or their brief, to explain how the condemned strip could be worth exactly twice the value of the land adjacent to it, which was the same type and quality of land and indistinguishable from it. Yet the jury saw fit to follow this amazing testimony to a large extent by awarding appellees $1,680, or $350 per acre. As said by Justice Norvell, then of the San Antonio Court of Civil Appeals, in Tennessee Gas & Transmission Co. v. Zirjacks, Tex.Civ.App., 244 S.W.2d 837, err. dism. :

“One claiming damages to land must show the nature of the damage, the ef-feet upon various portions of the tract and the relationship of the same to market value. A mere conclusion as to market value is insufficient for this purpose.”

Our Supreme Court said, in Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 380:

“It is well settled that the naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection.”

It was also held in J. B. Watkins Land & Mortgage Co. v. Campbell, 98 Tex. 372, 84 S.W. 424, 425 that “before a witness should be allowed to state an opinion as to the value of property, his qualification to do so should be shown.”

We are impressed also by the following language in County of Bexar v. Cooper, Tex.Civ.App., 351 S.W.2d 956, 958, no wr. hist.:

“In determining the market value of land condemned, or damaged thereby, actual sales of similar or comparable lands in the immediate vicinity of that being condemned, where willing sellers and willing buyers are involved, are much more reliable than the opinions of experts.”

The only other witness on values was H. E. Gardner who, after fully qualifying as an expert, testified that in his opinion the market value of the strip taken was $100 per acre or a total of $480. He buttressed this opinion with seven comparable sales of other lands within a radius of about eight miles of the farm in question. The prices ranged from $65 to a high of $101 per acre. On cross examination he told of three other sales, one of which was a sale of 75 acres at $156.66 per acre. He said the property which sold for $156.66 per acre was much better improved than the Mc-Lemee tract, and that he would consider it a better buy at $156 an acre than he would the McLemee tract at $100 per acre.

While we recognize the general rule that the probative force of evidence is for the jury, which may accept or reject the opinions of experts as well as the testimony of lay witnesses, yet we have the right and duty to determine whether testimony has sufficient probative force to support jury findings. Constitution of Texas, Art. V, § 6, Vernon’s Ann. St.; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Our review of all the evidence compels the conclusion that the verdict is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Accordingly, we sustain all of appellant’s points of error, set aside the verdict and remand the cause for a new trial.

Since the only reason for reversal is the excessiveness of the verdict, we are required to indicate the amount by which we consider the verdict excessive and give the landowners a reasonable time within which to file a remittitur of such excess. Rule 440, Texas Rules Civil Procedure; Adams v. Houston Lighting & Power Co., 158 Tex. 551, 314 S.W.2d 826; Carter v. Texarkana Bus Co., 156 Tex. 285, 295 S.W. 2d 653; County of Bexar v. Cooper, Tex.Civ.App., 351 S.W.2d 956, no wr. hist.; State v. Spears, Tex.Civ.App., 374 S.W.2d 250. In determining that amount we are of course limited by the evidence in the record. Among the sales of other lands in the vicinity, mentioned in the evidence, the highest amount paid per acre was $156.66. Under the evidence in the record before us, we feel that the use of such figure in determining the proper basis of' remittitur is justified. We therefore hold the verdict to be excessive by $928. .

The judgment of the trial court is reversed and the cause remanded, unless within ten days appellees file with the clerk of this court a written remittitur imthe sum of $928, in which event, the judgment as remitted will be affirmed.

Reversed and remanded conditionally.

SUPPLEMENTAL OPINION

Appellees not having filed the. remittitur suggested in our original opinion, it is ordered that the judgment of the trial court be reversed and remanded for another trial.

Reversed and remanded.