text:
    Gloria Jeannine ALLISON, Appellant, v. A. P. ALLISON, Jr., Appellee.
    No. 3835.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 29, 1963.
    Rehearing Denied Jan. 10, 1964.
    Victor R. Blaine, Houston, for appellant.
    Ennis Favors, Stephenville, Clyde Woody, Houston, for appellee.
   COLLINGS, Justice.

This is a divorce suit brought by A. P. Allison, Jr., against his wife Gloria Jeannine Allison. Plaintiff also sought custody of their minor child. The case was tried before the court without a jury and judgment entered granting plaintiff a divorce and custody of the minor child. Gloria Jeannine Allison has appealed.

It is contended in appellant’s first point that the court erred in not dismissing appellee’s suit for divorce because he failed to prove by full and satisfactory evidence that he was an actual bona fide inhabitant of the State of Texas for a period of twelve months prior to exhibiting his petition. The point is not well taken.

A. P. Allison,.Jr., filed this suit on April 21, 1962, and it was alleged in paragraph 1 of his petition that he was and had been for more than twelve months preceding the filing of the petition a bona fide inhabitant of the State of Texas and that he had continuously resided m Erath County for more than six months preceding the filing of such petition. On October 17, 1962, more than a year after the parties returned from Arkansas to Texas, as shown by the evidence, appellant Gloria Jeannine Allison filed her sworn answer and cross action. In this pleading appellant admitted appellee’s allegations concerning residence as set out “in paragraph 1 of plaintiffs original petition.” It thus appears that appellant has by her pleadings admitted the facts required to be shown concerning ap-pellee’s residence. Appellant also alleged in her sworn pleading that she was and had been for more than twelve months prior to the exhibiting of appellee’s petition and the exhibiting of her answer and cross action an actual bona fide inhabitant of the State of Texas. At the trial both appellant and appellee waived a jury and announced ready for trial and presented evidence in support of their respective contentions. Based upon the evidence this judgment was entered by the court on March 8, 1963. Under these circumstances appellant is not in position to complain of the action of the court in hearing the case and granting appellee’s petition for divorce. Prendergast v. Prendergast, Tex.Civ.App., 122 S.W.2d 710; Harris v. Harris, Tex.Civ.App., 190 S.W.2d 489; Long v. Long, Tex.Civ.App., 365 S.W.2d 214.

In this connection the evidence also shows that the parties were married in Kerrville, Texas, on July 10, 1959; that on July 12th or 13th, 1959, they left for Little Rock, Arkansas, where appellee was to receive employment as “a resident surgeon” in the Veterans Hospital. The parties lived in Arkansas until the last week of July, 1961, and then returned to Texas. Appel-lee testified that his residence in Arkansas was temporary and that he “primarily intended to return to Texas.” He admitted that he had considered other places to locate after he finished his residency in the hospital at Little Rock and possibly could have gone elsewhere but referred to his employment in the hospital in Arkansas as a training program. Another witness referred to his work there “as an intern.” The evidence, in our opinion, supports the conclusion that appellee’s residence in Arkansas was temporary and that he never intended to abandon his residence in Texas while he was serving his residency in the Veterans Hospital in Little Rock, Arkansas. It is presumed in support of the judgment that the court so found.

We also overrule appellant’s second point in which it is contended that the court erred in considering a letter of an employee of the Harris County Probation Department as probative evidence because it was hearsay. Unquestionably the letter was hearsay. However, the trial was before the court without a jury and it is presumed that any improper evidence was not considered by the trial judge in arriving at the judgment to be entered. Texas Employers’ Insurance Ass’n v. Polk, Tex.Civ.App., 269 S.W.2d 582; Garcia v. Bradley, Tex.Civ.App., 311 S.W.2d 751; 3-B Tex.Jur. 383.

The judgment is affirmed.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    WHITE MOTOR COMPANY, Appellant, v. Jim LODEN and Gene T. Lewis, Appellees.
    No. 16257.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 6, 1963.
    Rehearing Denied Jan. 3, 1964.

      Leachman, Gardere, Akin, Porter & De-Hay, and Gordon H. Rowe, Jr., Dallas, for appellant.
    McKool & McKool and Mike Aranson, Dallas, for appellees.
   DIXON, Chief Justice.

On February 8, 1963 White Motor Company, Petitioner, filed its application for a writ of error pursuant to Art. 2255 Vernon’s Ann.Civ.St. and Rules 359-363 Texas Rules of Civil Procedure. Petitioner seeks to set aside a judgment rendered against it on October 30, 1962.

On October 1, 1962 Respondents Jim Loden and Gene T. Lewis filed suit for damages for personal injuries alleged to have been received through the negligence of White Motor Company, an Ohio corporation, doing business in the State of Texas.

At the time of filing suit Respondents paid a jury fee and the case was placed on the jury docket. Nevertheless, judgment was rendered by default by the trial court without the intervention of a jury. The judgment was against White Motor Company and in favor of Jim Loden for $5,000.00 and in favor of Gene T. Lewis for $4,500.00.

In its first point on appeal White Motor Company asserts that the court erred in rendering judgment because Respondents in their pleading alleged that White Motor Company was a foreign corporation whose agent for service of citation was C. T. Corporation, but the citation and the officer’s return thereon showed that service was had on one D. E. Wahle in person, designated on the return as “agent for service”.

Art. 8.08, subd. A(2), Vernon’s Ann.Civ. St. of the Texas Business Corporation Act provides that a foreign corporation authorized to do business in Texas may designate a domestic corporation or a foreign corporation authorized to do business in Texas as its registered agent. Art. 8.10 of the Act provides that service of process may be had on a foreign corporation’s registered agent.

Petitioner’s first point on appeal is well taken. In Texaco, Inc. v. McEwen, Tex.Civ.App., 356 S.W.2d 809 this court, speaking through Justice Williams, held that to obtain jurisdiction over a foreign corporation it is imperative that the record affirmatively show a strict compliance with the provided mode of service. We further cited Sharp & Dohme v. Waybourne, Tex.Civ.App., 74 S.W.2d 413. Whether the person served was in fact such an agent must be affirmatively shown before default judgment can be proper. See also Investors Diversified Services v. Bruner, Tex.Civ.App., 366 S.W.2d 810 and McDonald’s “Texas Civil Practice”, pp. 1366-1367, Sec. 17.23.

In the record before us there is no showing that D. E. Wahle, named in the officer’s return as Petitioner’s “agent for service”, was in fact Petitioner’s agent for service. Respondents have attached to their brief a copy of an affidavit dated May 28, 1963 of D. E. Wahle in which he says that he was office manager and authorized agent for accepting service for C. T. Corporation System, the corporation named in Respondent’s pleading as White Motor Company’s agent for service. Respondents should have proved such fact in the trial court. They cannot by affidavit introduce evidence in this court which evidence was necessary to make out a prima facie case in the trial court to support a default judgment taken October 30, 1962 in the trial court. Petitioner’s first point on appeal is sustained.

Petitioner’s second point complains of the court’s action in assessing damages without the intervention of a jury though a jury fee had been paid and the case was on the jury docket.

The rule is that when one party demands a jury and pays a jury fee, the right thus secured to him inures to all the other parties to the suit. And the long accepted interpretation of the rule was that the absence of a party did not amount to a waiver, or impair his right to have the issues in a case tried by jury. Barker v. Kidd, Tex.Civ.App., 357 S.W.2d 490; Finnell v. Byrne, Tex.Civ.App., 7 S.W.2d 139; Constitution of Texas, Art. 1, Sec. 15, Vernon’s Ann.St.; Rule 243, T.R.C.P.

Respondents contend that the rule was changed by the adoption in 1947 of Rule 220, T.R.C.P. This rule provides that when a party has paid a jury fee “he shall not be permitted to withdraw the cause from the jury docket over the objection of the parties adversely interested.” The rule implies that the party paying the jury fee may withdraw the case from the jury docket if his adversary does not object. The rule expressly provides that in such case the court may allow the party to withdraw his jury fee deposit.

In this case White Motor Company did not object because it had no representative at the trial and was not even constructively present in court, since no proper service of citation had ever been obtained on it. White Motor Company was therefore under no duty to appear.

Rule 220, T.R.C.P. does not expressly say that the absence of a party shall constitute a waiver by said party of his right of a trial by jury. If the Rule is to be given such a meaning it must be by judicial construction. We shall not give it that construction in connection with this case. We call attention to the fact that this is not a case where a defendant has been properly served with citation and thus has been given his opportunity to appear and object, but has elected not to appear; nor is it a case so far as the record shows, where a defendant has failed to appear and object because of his own negligence or indifference.

Under the circumstances presented to us here Petitioner, being under no duty to appear at the trial, cannot by his absence be held to have waived a trial by jury. Petitioner’s second point on appeal is sustained.

In its third and fourth points Petitioner asserts in substance that the default judgment was not proper because (3) Respondents’ pleading does not set forth sufficient facts and circumstances constituting their cause of action to fairly notify Petitioner of the basis for their claim, and (4) the court could not have entered judgment for $9,500.00, since Respondents merely alleged damages in excess of the “minimum jurisdictional requirement.” In support of these points Petitioner relies on White v. Jackson, Tex.Civ.App., 358 S.W.2d 174; Grammar v. Hobby, Tex.Civ.App., 276 S.W.2d 311; and Rules 45, 47 and 90, T.R.C.P.

Respondents’ pleading is brief and general in its terms. It simply states that while Respondents “were drivers of a truck they received injuries as the result of inhaling and coming in contact with a foreign matter which was sifting from the cab of this truck which was made and assembled by this defendant”; and that “through the negligence of said White Motor Company in its construction they have sustained injuries in excess of the minimum jurisdictional amount.”

Respondents were apparently undertaking to plead a products liability tort action in abbreviated form. But their pleading does not in our opinion give fair notice to the opponent of their claim against it. The pleading does not say what the foreign matter was or what injuries were sustained, or give any inkling as to how the construction of the truck had anything to do with the foreign matter which was “sifting from the cab”, or wherein the construction of the truck was negligent. Since the minimum jurisdictional amount in the District Court is $500.00 Respondents could have been suing for $501.00 or $501,000,000.00. Petitioner had no way of knowing the amount of the damages claimed by Respondents.

Rule 90, T.R.C.P. seems to us to be applicable here. It provides that every defect in a pleading either of form or substance shall be deemed to have been waived unless pointed out by motion or exception. But the rule expressly provides as follows: “ * * * this rule shall not apply as to any party against whom default judgment is rendered.” (Emphasis ours).

We are aware of the holding of our Supreme Court in Edwards Feed Mill, Inc. v. Johnson, 158 Tex. 313, 311 S.W.2d 232. We think that case may easily be distinguished from the instant case. In the Edwards Feed Mill case the cause of action was based on a promissory note in a definite amount. It was signed by one.of the members of a partnership which was buying feed from plaintiff. The count on the promissory note was followed by a count on sworn account. We see no analogy between the Edwards Feed Mill case and the case now before us. Petitioner’s third and fourth points are sustained.

The default judgment rendered against Petitioner is reversed and the cause remanded to the trial court for another trial:

Reversed and remanded.


author: PRESLAR, Justice.

text:
    W. D. DINWIDDIE et ux., Appellants, v. AMERICAN TRADING AND PRODUCTION CORPORATION, Appellee.
    No. 5678.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 11, 1963.
    Rehearing Denied Jan. 8, 1964.
    William L. Kerr, Turpin, Kerr, Smith & Dyer, Midland, for appellants.
    Garland Casebier, Frank C. Ashby, Midland, for appellee.
   PRESLAR, Justice.

This is an appeal from a temporary injunction order enjoining appellants Evelyn Rose Dinwiddie and W. D. Dinwiddie from interfering with appellee American Trading and Production Corporation in its use of a road across lands in the possession of appellants to reach land on which appellee owns an oil and gas lease. The controversy centers on a road leading to the oil and gas lease and not on the land, Section 36, actually covered by the oil and gas lease. It was stipulated on trial that appellants’ refusal of use of the road by appellee was as to Sections 25, 30, 31 and 32. The road was put in by the Pasotex Pipe Line Company in 1928 under written easements whereby it was granted the right to lay and maintain pipe lines together with the right of egress and ingress along the pipe line way, together with the right to maintain a camp as living quarters for its employees. It appears that Pasotex has used the road through the years in the maintenance of its pipe line, and that its employees have used it as a means of going to and from the nearby town of Orla. Pasotex employees’ children were transported over the road by school bus to and from school. The sections of land involved in this controversy were for many years ranched by Jim Cook-sey under surface leases, and following his death appellants came into possession under surface leases, in February 1961. Neither the owners of the land nor Pasotex are parties to the suit.

When appellants disputed appellee’s right to use the road to reach its mineral estate, appellee brought suit alleging the road had become a public road and that it, as a member of the’ public, had a right to its use. The trial court granted, first, a temporary restraining order, and then the temporary injunction which is the subject of this appeal.

It is our opinion that the evidence is not sufficient to establish the public nature of the road by prescription or implied dedication. Appellee (plaintiff) concedes that its case is not based on prescriptive rights. Therefore, we see no purpose in discussing that phase of the case, and move to a consideration of the court’s judgment based on the theory of implied dedication.

The evidence in support of the judgment is that a county commissioner has, for the past ten years, maintained the road by blad-ing it with a maintainer and filling “mud holes” with caliche. How often this was done is not definite, for the testimony was that it was done “after it rained” and as was needed to keep it passable by the school bus. Appellants’ predecessor in possession, as surface lessee, had requested such maintenance, and appellants, who have been in possession of the surface some three years, were aware of this maintenance. Testimony is conflicting as to the width of the road, one witness describing it as 12 to 15 feet, and another describing it as 20 to 24 feet, and photographs of portions of it show it to be a rather well-kept dirt road. There was evidence of cattleguards where the road crossed fence lines, some of which had been, at least in the early years, maintained by Pasotex, and some of which had been installed by the County as part of the payment for highway right-of-way. One witness testified that some of the ranchers to the north made some use of the road, and that an occasional arrowhead-hunter or fisherman came on the road, but that such use was with permission of the surface lessee.

Common law dedications, such as the one here involved, are divided into two classes, express and implied, and this case being of the latter type, it was incumbent on appellee to establish all of the elements of an implied dedication. Many are the authorities on each of the elements, but we deem it unnecessary to cite them separately, since the Eastland Court of Civil Appeals has clearly defined them in the case of O’Connor v. Gragg, 324 S.W.2d 294. The Supreme Court, while reforming another portion of the judgment, upheld that portion dealing with implied dedication (161 Tex. 273, 339 S.W.2d 878; 1960). The opinions of both courts contain discussions of many of the authorities cited by the parties to the case before us. We quote from the opinion of the Eastland Court of Civil Appeals in O’Connor v. Gragg:

“The elements essential to the creation of a valid dedication are: (1) a person competent to dedicate; (2) a public purpose that will be served by the dedication; (3) an offer or tender of dedication and (4) an acceptance of the offer or tender. 14 — B Tex.Jur. 341.”

We have concluded that there is no evidence in the record to establish the first element — a person competent to dedicate — for the acts relied on for dedication are not those of the owners. Appellee relies heavily on the maintenance of the road by the county commissioner, acquiesced in by Pasotex, Cooksey, and Dinwiddie. Absent some showing of ratification by the owners (of which there is none), we deem the acts of these parties of no consequence. It seems elementary that one cannot lose title to his property through the acts or omissions of others. We think the law is conclusive that a valid dedication can only be made by the owner in fee. City of Corsicana v. Anderson, 33 Tex.Civ.App. 596, 78 S.W. 261 (err. ref.); Robbins v. Houck, Tex.Civ.App., 251 S.W.2d 429 (err. ref. N.R.E.); Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (S.Ct.1962). Appel-lee contends that the appellants are now estopped to deny the public character of the road because of their acquiescence in the maintenance, and because of the act of their predecessor in title in requesting such maintenance. Implied dedication is founded on equitable estoppel, but again it is a matter of the owner being estopped by his (the owner’s) action or inaction. We must bear in mind that appellee seeks to prevail because it is a member of the public, and the public has, against the owner, acquired a right to use the road. There is no contention that appellants owned anything more than a surface lease of the property over which the road in question crosses, and the same is true of his predecessor in possession, Cooksey. The record reflects the fee ownership at the time the easements to Pasotex were granted in 1928, but fee ownership is not alleged or established as to the period of time in which dedication is supposed to have occurred, and the plat introduced in evidence shows the ownership at the time of trial to be different from 1928.

If we ignore the element of who may dedicate, and look to what was done as an act of dedication, we are confronted by the barren state of the record as to any evidence of the third element — an offer of dedication. What acts in this record are evidence of such an offer or tender — cattle-guards, the character of the road, its width and state of repair ? We think not. In the absence of some showing that the cattle-guards were for the convenience of the public, they could just as well be for the convenience of the owner. The same may be said as to the character of the road, for one might maintain a paved and curbed road on his property and not destroy its private nature, unless there was some special showing of a different intention. To hold otherwise would be to penalize a person for maintaining his estate in the manner he sees fit for its full enjoyment. We do not believe that cattleguards and a well-maintained road are, per se, an invitation to the public to use. There is no evidence of any owner having knowledge of the grading by the county commissioner, and if we impute such knowledge to the owners, it becomes, in our view, only a scintilla of evidence of intention to dedicate, for easements had been granted for Pasotex to move across their lands. It is a different situation from one where an owner sits by and sees traffic moving across his land where no one has a right to be.

Appellee urges that its proof of public maintenance shifted the burden of proof to appellants to then prove the nonpublic nature of the road. Authority cited for that proposition is Rowan v. Pickett, by the San Antonio Court of Civil Appeals in 1951, and reported in 237 S.W.2d 734, no writ history. There, the plaintiff sought to enjoin the county commissioners from maintaining what the plaintiffs contended were private roads. The holding was that the burden of proof was on the plaintiffs to prove the non-public character of the roads. We do not read the case as standing for the proposition urged by appellee herein. Ap-pellee, as plaintiff in our case, claimed the road in question was public and that it, as a member of the public, had a right to use it. The burden of proof was on it to prove the public nature of the road; and, as demonstrated, we think it failed to meet that burden. Accordingly, it did not establish a probable loss of right which entitled it to the temporary injunction.

The judgment of the trial court is reversed and the injunction dissolved.


text:
    TEXACO INC., Appellant and Appellee, v. Alvin H. PARKER, Appellee and Appellant.
    No. 5590.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 27, 1963.
    Rehearing Denied Jan. 8,1964.

      Stubbeman, McRae, Sealy & Laughlin, Rush Moody, Jr., W. B. Browder, Jr., W. N. Sands and Johnston S. Rowe, Midland, for appellant.
    Will Hadden, Odessa, for appellee.
   PRESLAR, Justice.

This is an appeal from a trial on the merits in which the plaintiff, Alvin H. Parker, sued Texaco Inc. in trespass to try title, for damages actual and exemplary, and for permanent injunction. While cast as a trespass to try title suit, it is actually the age-old battle between the surface owner and mineral owner, as to their respective rights in the use of Section 2, Block 44, T-2-S, T. & P. Ry. Co. Survey, Ector County, Texas. By separate deeds Texaco Inc. had acquired title to all the minerals under the South half of said Section, and one-half the minerals under the North half thereof. Their deeds provided, in what can be termed the usual language, for the right of ingress and egress for the purposes of developing and producing the minerals. Parker’s deed to the surface was acquired after the minerals had been separated from the surface, and contained a reservation that the mineral owner had the right of ingress and egress. The gist of the action was to determine and preserve the rights of the parties by injunction. Two suits in the trial court were combined for this trial by jury. In cause No. 16257 in the trial court, Parker sued Texaco and some 29 other defendants (agents, employees and contractors of Texaco) in trespass to try title, for monetary damages, and injunctive relief by reason of Texaco’s development of its mineral estate under the section; and Texaco cross-acted for injunctive relief to prevent Parker from interfering with such development. In cause No. 19417, Texaco sued Parker and the Commissioners Court of Ector County seeking to set aside a conveyance of a portion of an alleged public road by the County to Parker, and seeking injunction to prevent Parker from interfering with Texaco’s use of such road leading to the section in question.

From a trial court judgment denying Parker damages, granting Texaco injunc-tive relief in certain respects, but also granting Parker injunctive relief in certain respects, both parties appeal, Texaco as appellant and Parker as cross-appellant.

By assignments of error, properly preserved for appeal by reason of having been a part of its motion for judgment on the verdict (Rule 324), appellant Texaco asserts that certain issues determined on this trial have already been determined on the two previous hearings on temporary injunction and are res judicata. In that connection it is noted that Parker brought suit for temporary injunction against Texaco, Texaco cross-acted for injunction, the matter was quite fully tried in the trial court, appealed to this court with three volumes of statement of facts, this court affirmed the trial court’s injunction against Parker (cause No. 5384 in this court, 326 S.W.2d 579), and writ was refused N.R.E. by the Supreme Court. A second injunction suit was brought by Texaco against Parker, and it was fully developed in the trial court. The record in the prior suit was introduced in the second suit, and it was appealed again to this court, No. 5396 in this court. The two actions were combined in the trial court for trial on the merits, and the record in the two prior hearings was withdrawn from this court for use in the trial on the merits, which is the case now before us on appeal. This court now has before it many of the exhibits and evidence for the third time, and is called upon again to construe some of the instruments for the third time.

Ordinarily an appeal from an order granting or denying an interlocutory injunction is to be determined on the proper exercise by the trial court of judicial discretion. However, the parties may elect to distinctly put in issue questions of law and matters of fact and fully develop them before the trial court and bring them forward on appeal in such manner that their determination becomes final. Thus, the general rule that an interlocutory judgment will not support a plea of res judicata may have its exceptions. It depends on what was done. This is set out clearly in Wilson v. Abilene Independent School District, 204 S.W.2d 407 (East.Civ.App., 1947 Err. Ref. N.R.E.) where, on the second appeal of a temporary injunction suit, the appellate court upheld the trial court’s action of sustaining the plea of res judicata and dismissing the case. The court reasoned that its case conformed to the well-established rule as to the application of res judicata, to-wit:

“The general principle, announced in numerous cases, is that a right, question or fact, distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense, cannot be disputed in a subsequent suit between the same parties or their privies.”

Of the cases which apply the above rule to temporary injunctions, those more like the one before us are Daniel v. Kittrell, 188 S.W.2d 871 (Waco Court of Civil Appeals), and Hudspeth v. Guggenheim, 12 S.W.2d 238 (San Antonio Court of Civil Appeals, writ dismissed). Even though in the strict sense the decision on appeal from the granting or refusal of a temporary injunction may not be res judicata of the issues on final hearing, it may become the law of the case as to the legal principles declared. Birchfield v. Bourland, Tex.Civ.App., 187 S.W. 422; International Longshoremen’s Ass’n v. Galveston Mar. Ass’n, 358 S.W.2d 607 (Civ.App.1962); Baker v. Hill, Tex.Civ.App., 35 S.W.2d 779 (Wr.Dism.); Hayden v. City of Houston, Tex.Civ.App., 305 S.W.2d 798 (Wr. ref. N.R.E.). This is as it should be, for a dissatisfied litigant has a choice — he may appeal or seek a trial on the merits. Having elected to appeal, he should thereafter be bound by matters fully litigated and determined in the same manner as appeals from final judgments. The desirability of ending all litigation as soon as possible is further justification for these exceptions to the general rule.

It would be difficult to conceive of a case where the issues have been more thoroughly litigated on appeal, prior to final hearing, than the case before us. We are of the opinion that many of the matters considered on final hearing were res judi-cata, as above defined, or became established legal principles so as to be the law of the case within the meaning of the above-cited cases.

By its Points of Error 1 and 2, appellant Texaco sets out some eleven legal principles which it urges are res judicata and should have been found by the trial court when Texaco excepted to plaintiff’s pleadings, or on Texaco’s motion for directed verdict or their motion for judgment. With that we agree, except for certain differences in the language used, but we do not think it would serve any useful purpose to discuss each of them, for they are not in conflict with the result eventually reached by the trial court except in two instances, which will be discussed. The first of these is also the subject of Texaco’s Points numbers 7 and 8, and complains of that portion of the judgment which restricts Texaco’s use of the North one-half of Section 2, in connection with development and operation of the South one-half, to travel on and across the North half to reach the South half. In other words, in this respect the judgment requires Texaco to treat the North and South portions of Section 2 as two separate tracts for development and operation, but does allow passage over the one to get to and from the other. In this we think the trial court’s judgment is incorrect, and it is here modified in that that restriction will be eliminated to the extent that Texaco shall have the right to develop and operate the entire Section 2, free of interference from Parker. Lest we be misunderstood, the judgment is reformed in this connection to enjoin Parker to the same extent and in the same particulars as to the whole of Section 2 as he is now enjoined as to the South one-half of said Section 2. The rights of the parties in this connection depend on, and arise out of, the respective written instruments by which they acquired title, and have already been twice construed by this court. Surely the matter of title to such section should be res judicata, for we fail to see how any different evidence could have been produced on that question, and in fact it was not.

The second matter urged by Texaco as res judicata, and contrary to the judgment, is that portion of the judgment which restrains Texaco from interfering with Parker in his placement of a gate at the northeast corner of Section 2, keeping it locked and furnishing Texaco with a key. This is also the subject of Texaco’s Points 3 through 6, and all will be considered together. We do not think this question is res judicata, nor has it been established as the law of the case. First, the judgment is clear that the place at which the gate is permitted is on the line of Section 2, and not on the public road across the West 300 feet of Section 1. This court specifically held that Texaco had a right to use such road to get on to Section 2, and that is res judicata, but we did not determine that such public road continued within Section 2. We determined, and here affirm, that Texaco had a right to use so much of the surface of Section 2 as is reasonably necessary to develop and produce its minerals. Theirs is the dominant estate, but as this court said in Gulf Oil Corporation v. Walton, 317 S.W.2d 260: "The only limitation on this right of the holder of the dominant estate, to-wit, the mineral estate, is that such holder must not make an unreasonable use of the premises.” Texaco has the right to use the surface, but the question whether or not the use which is being made of it is reasonable is one of fact for the jury. That such is a fact question is now well established. Texaco Inc. v. Joffrion, Tex.Civ.App., 363 S.W.2d 827 (ref. N.R.E.), citing and quoting from an article by Dean Page Keaton and Lee Jones, Jr., in 35 T.L. R. at p. 4, and citing Moore v. Decker, 220 S.W. 773, Tex.Com.App.1920; and Joyner v. R. H. Dearing & Sons, Tex.Civ.App., 112 S.W.2d 1109.

The question presented here is whether the act of the servient estate in locking the gate, and furnishing the dominant estate a key is an unreasonable interference with the rights of the dominant estate, determinable as a matter of law from the instruments of title, or whether it involves the unreasonableness of the use being made, so as to be a fact question. The trial court treated it as a fact question and presented it to the jury. That we think was correct. The Austin Court of Civil Appeals has twice passed on the question under a similar fact situation and declared it to be a fact question. Carleton v. Dierks, 195 S.W.2d 834 (no writ history), and Carleton v. Dierks, 203 S.W.2d 552 (refused, N.R.E.). The jury having determined that a use of the premises by Texaco in a manner other than through a locked gate would be an unreasonable use of the premises, that portion of the judgment pertaining to the gate on Section 2 will not be disturbed, and appellant Texaco’s points in that regard are overruled

By its Points 9, 10 and 11, Texaco notes the failure of the trial court to incorporate in its judgment a proposed plan of future development of Section 2. A single issue was submitted to the jury as to this phase of the lawsuit, which issue inquired whether such plan was reasonably necessary. The jury answered in the affirmative. We fail to see where the plan for development in the future creates any cause of action which would entitle Texaco to any relief not already granted or available to it. Such points of error are accordingly overruled.

Both appellant and appellee complain of the action of the trial court in assessing costs—one-third against Texaco and two-thirds against Parker. We find that the trial court did not abuse its discretion in assessing costs. Texaco’s Point of Error No. 12 and Parker’s Point of Error No. 12 are accordingly overruled.

Cross-appellant Parker, by his Assignments of Error 1 through 4, urges that the trial court erred in granting Texaco the right to travel across the North half to reach the South half of Section 2; in enjoining Parker from interfering with Texaco in its crossing of the North half to reach the South half; in failing to enjoin Texaco from using the South half of Section 2 to develop the North half; in enjoining Parker from interfering with Texaco in its use of the North half to develop the North half and its use of the South half to develop the South half. All of these matters are determined by the nature of title each party acquired by its respective deeds. Those titles have not changed since this court twice before construed them (see our opinion in 326 S.W.2d 579). They are res judicata, and Points 1 through 4 are overruled.

Cross-appellant assigns as error the action of the trial court in enjoining him from interfering with Texaco’s use of the West 300 feet of Section 1 to reach Section 2. We overrule this contention and think it sufficient to note that in a prior opinion we established that Parker was seeking equity while not doing equity in this regard, and was in no position to complain. We did not pass on the legality of the transaction between Parker and Ector County, except to find that the trial court did not abuse its discretion in that regard. We did find, however, that by such actions Parker was attempting to do indirectly what the court had enjoined him from doing directly, and that finding remains as controlling law of the case here

By their briefs the parties agree that to the extent that the trial court’s judgment does not specifically find title to the West 300 feet to now be in Parker, it may be modified; and it shall be modified to provide: That plaintiff and cross-defendant Alvin H. Parker have and recover judgment against all the defendants for title and possession of the West 300 feet of Section 1, Block 44, T-2-S, T. & P. Ry. Co. Survey, Ector County, Texas, less and except all oil, gas and other minerals in, on and under said land, and subject to the right of defendant and cross-plaintiff Texaco Inc., its agents, representatives, employees, contractors and servants, to travel across and use that certain public roadway traversing the northernmost 80 feet of the West 300 feet of said Section 1, Block 44, T-2-S, T. & P. Ry. Co. Survey, Ector County, Texas.

We have considered cross-appellant Parker’s other assignments of error and find them without merit, and same are accordingly overruled

The judgment is modified in part, sustained in part, and reversed and rendered in part.


author: STEPHENSON, Justice.

text:
    Arthur KING, Appellant, v. AETNA CASUALTY & SURETY COMPANY, Appellee.
    No. 6653.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 5, 1963.
    Rehearing Denied Jan. 8, 1964.
    Barber & Seale, Jasper, for appellant.
    King, Sharfstein & Rienstra, Beaumont, for appellee.
   STEPHENSON, Justice.

This is a suit brought under the Workmen’s Compensation Act. Judgment was rendered for defendant, based upon a jury finding that plaintiff suffered no incapacity. The parties will be referred to here as they were in the trial court.

Plaintiff was an employee of DuPont Company in Orange, Texas. Counsel for plaintiff filed a motion in limine to disqualify all DuPont employees or their spouses, on the jury panel. This motion was denied. Then, on voir dire examination of the panel, it developed that of the first 24 members on the jury panel list, five were DuPont employees and a sixth was a wife of a DuPont employee. Counsel for plaintiff challenged all six for cause, which was refused by the court.

Plaintiff contends each of these jurors was disqualified as a matter of law under the following portion of Article 2134, Vernon’s Ann.Civ.St. which reads as follows :

“The following persons shall be disqualified to serve as jurors in any particular case:
“1. * * *
“2. Any person interested, directly or indirectly, in the subject matter of the suit.”

Also, that the trial court abused its discretion under the following portion of Article 2134, V.A.C.S., which reads as follows:

“3_ * * *
“4. Any person who has a bias or prejudice in favor of or against either of the parties.
«5. * $»

Plaintiff urges this court to consider the fact that employees of this company have no contract, and no union to protect them from' being fired. In support of these contentions plaintiff cites three cases holding an employee of a party to a suit is disqualified from sitting as a juror; however, no case is cited in which the juror was an employee of the employer in a compensation case.

The Eastland Court of Civil Appeals in Parker v. Traders & General Insurance Company, 366 S.W.2d 107, passed upon the identical question before this court. We quote from this case:

“We also overrule points urged by the Parkers contending that the court erred in refusing to disqualify Martha L. Morris and Donald J. Hart as prospective jurors. Article 2134 Vernon’s Ann.Texas Civ. St. sets out the qualifications for jurors and neither of the prospective jurors was disqualified under this statute. The Parkers’ contention that such veniremen were disqualified is based upon the fact that the evidence shows that one of them was an employee of Coleman County Electric Co-operative, Inc., and that the other was regularly engaged in the business of conducting an insurance agency. There was no evidence that either of the veniremen or the Coleman County Electric Co-operative, Inc., was financially interested in any way in the outcome of the suit although Traders & General Insurance Company was its compensation insurance carrier. Both veniremen stated that they had no preconceived opinions which would influence their decision and each believed he could make a fair and impartial juror. The rule in such cases is stated in Bennett v. Jackson, Tex.Civ.App., 172 S.W.2d 395, (error refused), “A challenge for cause not based on any ground mentioned in the statute is ordinarily addressed to the sound discretion of the trial judge whose action thereon should not be disturbed on appeal unless it clearly appears that a fair and impartial trial was thereby prevented.”

The Supreme Court has granted a writ in this case, however, it was granted on other points. No opinion has been written at this date. We feel constrained to follow the Parker Case, supra. These points are overruled.

Plaintiff also contends the finding of the jury that plaintiff had sustained no incapacity is so against the overwhelming weight and preponderance of the evidence that it was manifestly wrong and unjust. Considering the record as a whole, as we are required to do in passing upon this point, there is evidence that plaintiff sustained total and permanent incapacity, and there is also evidence that plaintiff sustained no incapacity. The jury was the trier of facts and we cannot say their finding was so against the great weight and preponderance of the evidence as to he manifestly wrong and unjust. King v. King, 150 Tex. 662, 244 S.W.2d 660.

Affirmed.


author: FRASER, Chief Justice.

text:
    Jerry COVINGTON, Appellant, v. Elbert A. PRIDDY, Ind. and as Executor of the Estate of Nettie Rolena Priddy, Deceased, et al., Appellees.
    No. 5613.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 4, 1963.
    Rehearing Denied Jan. 15, 1964.
    Frank C. Ashby, Garland Casebier, Midland, for appellant.
    Hill D. Hudson, Pecos, Obel L. Mc-Alister, Fort Worth, for appellees.
   FRASER, Chief Justice.

This is a suit in trespass to try title, wherein Jerry Covington, appellant, sued Elbert A. Priddy and others (appellees), for title and possession of a certain tract of land located in Reeves County, Texas. The case was tried before the court without a jury. At the conclusion of the testimony, the trial judge rendered judgment for Elbert A. Priddy, et al., from which judgment Covington has duly perfected this appeal.

The appellant claims error on the part of the court in admitting in evidence the substitute trustee’s deed from H. N. Mc-Kellar to J. N. Brooker, upon which appel-lees base their title.

Appellant introduced exhibits that he presents as a chain of title, beginning with some deeds back in 1911. It appears to be agreed in both briefs that this is a suit in trespass to try title, and the appellees-de-fendants introduced as their exhibit a deed of trust dated June 20, 1913, filed June 23, 1913, executed by Mrs. M. H. Scharf to J. N. Brooker. Defendants’ Exhibit No. 2 is the above-mentioned trustee’s deed executed by H. N. McKellar, as substitute trustee, dated October 6, 1914 and showing it was filed October 9, 1914, and is designated in the Statement of Facts as being the trustee’s deed from H. N. McKellar, Sub. Tr. to J. N. Brooker. This trustee’s deed recites that M. N. Scharf made default in the payment of the note secured by said deed of trust, and further that the holder thereof “has requested me as substitute Trustee as aforesaid, to proceed to sell said premises as provided in said trust deed for the satisfaction of said indebtedness”. This deed goes on to recite that in pursuance of the provisions of said deed of trust the said H. N. McKellar duly advertised the property for sale at public auction as required by said deed of trust, and that the same was sold in October of 1914 to the said J. N. Brooker. Then follows the recitation of the sale and description of the land. Defendants’ Exhibit No. 3 is a deed from Brooker to George B. Priddy et ux. Ap-pellees claim their title from and through this trustee’s deed.

Appellees maintain that this case is covered by the provisions of Article 5523a, Revised Civil Statutes, which provides in effect as follows (as quoted from appellant’s brief) :

“Article 5523a, ins'ofar as it affects the case at bar, states -that: ‘Any person who has the right of action for the recovery of land because of any one or more of Ihe following defects in any instrument * * * where such instrument is executed by a trustee without record of Judicial or other ascertainment of the authority of such trustee or of the verity of the facts therein recited * * * shall institute his suit therefor not later than ten years next after the date when such instrument has been or hereafter may be actually recorded in the office of the County Clerk of the county in which such real estate is situated and not afterwards ♦ * * > ”

Both sides cite and discuss the case of Dall v. Lindsey (Civ.App.1951), 237 S.W.2d 1006 (Wr.Ref., N.R.E.). Appellees maintain that this statute was written and intended to be curative of titles depending on trustees’ sales in deeds of trust, and it must be noted that the wording of the statute does so indicate. Appellant challenges the effect of the statute on the ground that in the Dali case the trustee’s deed recited that the original trustee declined to act, and that the holder of the deed of trust appointed in writing a substitute trustee. We do not believe that the statute impliedly or directly requires the two features present in the Dali case and not present in the case before us, as described above. It is true that in the controversy here the trustee’s deed does not recite that the original trustee failed to act, or why, or that the substitute trustee was definitely appointed by any instrument in writing or otherwise. We do not believe that the omission of these two items is decisive. Going back to the statute itself, it says as follows: “ * * * where such instrument is executed by a trustee without record of Judicial or other ascertainment of the authority of such trustee or of the verity of the facts therein recited * * * ” (Emphasis ours), and then provides that action shall be taken within ten years if attack is to be made on a trustee’s deed. It is not disputed, in the present case, that the trustee making the sale was not the original trustee in the deed of trust, but the trustee’s deed executed by Mr. H. N. McKellar does recite as follows: “and the holder thereof, has requested me as substitute Trustee as aforesaid to proceed and sell said premises as provided in said trust deed for the satisfaction of said indebtedness.”

We believe that the trustee’s deed is sufficient to come under the provisions of Article 5523a, R.C.S., as the language in the statute seems to us sufficiently clear to dispose of the situation that confronted the trial court. Appellant further argues that the person — to-wit, Mr. McKellar — who sold the property could not have done so legally on the theory enunciated in the case of Campsey v. Jack County Oil & Gas Association, Tex.Civ.App., 328 S.W.2d 912 (Wr.Ref., N.R.E.), wherein the court stated, with reference to Article 5523a, R.C.S.:

“The article was not meant to apply to titles where one not a trustee, and with no authority whatever, executed a deed calling himself a trustee.”

But it must be noted that in the above case the court pointed out that the suit was in part to cancel the deed, and further that plaintiff was able to allege and prove that Stark was not a trustee and had no authority from any source to so call himself and, in fact, had absolute want of authority to execute the deed. We think this is a very significant distinction between the matter presented to the trial court here and the facts in the Campsey case. In the case before us there was no evidence or proof that the substitute trustee had or had not been appointed, other than his own recitation that he was a substitute trustee. So there was not affirmative proof that he was without authority, as in the Campsey case.

Appellees maintain that they have had the property some forty years or more, and it appears from the record that the trustee's deed was dated and filed in 1914, and this is the first definite judicial attack on same.

Therefore, under the circumstances, we believe that Article 5523a, R.C.S., is decisive of the matter before us, and the decision of the trial court is accordingly affirmed.


author: SELLERS, Justice.

text:
    SOUTHWESTERN MOBILE HOMES, INC., Appellant, v. PANEL CORPORATION OF AMERICA, Appellee.
    No. 24.
    Court of Civil Appeals of Texas. Tyler.

      Dec. 19, 1963.

    Cecil D. Elfenbein, Dallas, for appellant.
    John D. Crawford, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.
   SELLERS, Justice.

Plaintiff in the lower court, appellant here, brought this suit upon a contract for the gross sum of $92,678.00 against the Panel Corporation of America, defendant in the lower court, appellee here, alleging it to be a foreign corporation, same being incorporated under the laws of the State of Colorado.

In paragraph one of plaintiff’s original petition, it is alleged:

“Plaintiff is a Texas corporation with its principal office in Dallas, Texas. The Defendant is a foreign corporation with its principal office at 745 South Cherokee Street, Denver, Colorado. Defendant does not have a permit to business in Texas and has no registered agent for service of process in Texas. Service of process on Defendant may be had through the Secretary of State of the State of Texas pursuant to Article 2031(b) V.A.T.S.”

In pursuance of the above allegation, the plaintiff served citation on the Secretary of State of the State of Texas, seeking to secure jurisdiction of the defendant.

The defendant, under Rule 120a of the Rules of Civil Procedure of the State of Texas, filed what is denominated as a special appearance of the appellee in the trial court for the purpose of determining whether or not the plaintiff had acquired jurisdiction over the defendant by serving of citation upon the Secretary of State of the State of Texas. In this special appearance, the appellee negatives practically every provision of Article 2031b of the Revised Civil Statutes of Texas under which the appellant sought to acquire jurisdiction over the appellee.

In answer to this special appearance, the appellant filed its affidavit in support of upholding the jurisdiction over the appellee. This affidavit specifies the grounds upon which the appellant relied to support jurisdiction in the trial court. We quote from said affidavit:

“That Panel Corporation of America, the defendant, hereinafter referred to as ‘Pancoa’, entered into a contract with Southwestern Mobile Homes, Inc. whereby the latter named company was to manufacture at its plant in Grand Saline, Texas, certain wing panels specified by Pancoa.
“That Pancoa and its chief executive, T. Paul Jones, knew that the defendant’s only place of business was in Grand Saline, Texas and that any work given to Southwestern Mobile Homes would be performed at that place.
“That on several occasions representatives of Pancoa came to plaintiff’s place of business in Grand Saline, Texas to inspect and control the manufacturing process.
“That by the terms of the contract between the parties, representatives of Pancoa were present during the life of the contract for in process inspection and final inspection of Southwestern Mobile Homes, Inc.’s production
“Under normal commercial practices, title to the material passed when the goods were inspected and accepted by the representatives of the purchaser, Pancoa, at the plant of Southwestern Mobile Homes, Inc. in Grand Saline, Texas.”

To this affidavit the appellee filed a number of exceptions and objections to its consideration.

On the 9th day of March, 1963, the trial court, after due notice, had a hearing upon the special appearance of the appellee, as well as the controverting affidavit by the appellant, and in its order held that the ap-pellee, defendant in the trial court, be and is hereby dismissed from the cause.

After this hearing and judgment by the court, the appellant, plaintiff in the trial court, requested of the court that he make findings of fact and conclusions of law which was done by the trial court and are in the record. No statement of facts accompanied this record; and it would serve no useful purpose to set out at length the findings of fact by the trial court, but we deem it sufficient to say that every fact that would tend to sustain the jurisdiction of the court under Article 2031b, Sections 3 and 4, were found against the contention of the appellant.

There are no exceptions or objections to the findings of fact by the trial court in the record, and in this situation this court is bound by the findings of the trial court on all issues in the case. Citing Haigh et al. v. Calhoun et al., Tex.Civ.App., 215 S.W.2d 426:

“Where tire record contained no statement of facts and appellants did not challenge or except to any of the trial court’s findings the court of appeals must accept the findings as true and if they support the trial court’s judgment, all parties are bound thereby.”

It is our opinion that the judgment of the trial court must be in all things affirmed.


text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. O. L. WADE, Appellee.
    No. 16240.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 27, 1963.
    Rehearing Denied Dee. 6, 1963.
    Thompson, Knight, Wright & Simmons, and David S. Kidder, Dallas, for appellant.
    Mullinax, Wells, Morris & Mauzy and Lonnie C. McGuire, Jr., Dallas, for appel-lee.
   DIXON, Chief Justice.

The Travelers Insurance Company has. appealed from a judgment in a workmen’s compensation case awarding appellee payments for permanent total disability.

Appellant, presents three points on appeal, but the substance of each of them is that “the verdict of the jury for total and permanent disability was so against the overwhelming preponderance of the evidence as to indicate bias and prejudice.”

Appellee in two points says that appellant’s points are too general to be entitled to our consideration and cannot be sustained because they make no attack on the jury’s answer to any specific special issue. In support of this view appellee cites us to the recent opinion of our Supreme Court in Texas Employers Insurance Ass’n v. Hawkins, Tex., 369 S.W.2d 305.

In the above case the Supreme Court held that the Court of Civil Appeals, 363 S.W.2d 788 erred in reversing the trial court’s judgment on the ground that “[Tjhe verdict of the jury taken as a whole is so against the great weight and preponderance of the evidence.” (Emphasis ours). The Supreme Court said that the above assignment is too general, and that in the proper exercise of its jurisdiction the Court of Civil Appeals must determine which one of the jury’s answers was so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

The above pronouncement by our Supreme Court is not applicable to the situation presented to us in the instant case. Here appellant admits that appellee suffered total disability temporarily. Appellant attacks only the finding that appellee’s total disability is permanent. This narrows our inquiry to one issue, Special Issue No. 5, where the jury by its answer found that appellee’s total disability is permanent. We overrule appellee’s two points wherein appellee asserts that appellant’s three points on appeal are too general to be entitled to our consideration.

Appellee presented the testimony of five lay witnesses, including himself, which testimony was favorable to his claim of permanent total disability. He offered no medical testimony. Appellant offered two medical witnesses and one lay witness, an investigator who had taken motion pictures of appellee while appellee was engaged in certain activities. The medical testimony and, in part, the motion pictures were unfavorable to appellee’s claim. We shall not attempt a detailed statement of the evidence. But the nature of appellant’s points requires that we at least present a short summary of the evidence.

EVIDENCE FOR APPELLEE

Appellee Wade testified that he had been employed by F. M. Woodward Company as an operator of heavy equipment such as bulldozers, scrapers and front end loaders. On October 9, 1961 he picked up a rock weighing between thirty and forty pounds which had fallen from a truck and in tossing the rock back onto the truck he injured his back, suffering great pain.

That evening and on numerous occasions thereafter for two months he was treated by his family physician Dr. Harvey Swords, an osteopath. Dr. Swords gave him medication and manipulative treatments which eased his pain and brought about some improvement in his back condition. Becoming dissatisfied because he had ceased to show further improvement, ap-pellee at his employer’s suggestion went to see Dr. W. M. Branch, an orthopedic surgeon, who treated him until about the middle of December. Appellee had not worked since his injury. He testified that under Dr. Branch his condition became worse.

He returned to work December 21, 1961 but found that he could not continue to operate the heavy equipment because the vibration and the pull necessary to operate heavy levers caused pain in his back. He quit his job with Woodward, in the middle of January 1962. He had been employed by Woodward for about twelve years.

After leaving’ the employ of Woodward appellee went into business for himself, opening an auto parts shop. He soon moved this business to his home. The shop showed gross profits from February through September 1962 averaging $117.20 per month.

Meantime appellee continued to suffer pain in his back, hips and legs. At times he could bend over fairly well but could hardly straighten up. Usually instead of bending over he would squat, keeping his back straight with very little bend. In this way he could get up and down easier. He was unable to lift objects weighing over twenty pounds. Following treatments his pain would diminish. But thereafter if he walked as far as a block the pain would return and his back condition would worsen. He had formerly played “catch” with his son, a Little League baseball player. But he was no longer able to play “catch”, or throw a football in playing with his son. Sometimes he suffered dizzy spells.

Twice appellee’s applications for employment were rejected, once for employment with a machinery company and once for employment as a night watchman. Except for his parts business appellee has not worked since leaving F. H. Woodward Company. At the time of the trial he was ■ still suffering pain.

Appellee’s wife testified that on the date of the injury appellee came home bent over and in pain. He had trouble getting his breath. Often he was unable to sleep at night. He was in bed most of the month of October. He showed some improvement in November and December, but when he went back to work in December she couldn’t tell that he was any better. Sometimes he limps. Sometimes when he bends over he has to lean on something to help him straighten up.

Roy Daniels, his landlord, for a short time after appellee opened his parts shop, saw appellee every day. Daniels owns a ready-to-wear shop where Mrs. Wade works. Appellee’s parts shop was at first located next door to the ready-to-wear shop. Appellee complained of pain, couldn’t lift things and couldn’t take care of his business properly. Daniels had been a friend of appellee’s for seven or eight years.

M. H. Sanders, Ford Motor Company employee and long time friend of appellee, testified that he had seen appellee fifteen or twenty times since October 10, 1961. Appellee complained of pain in his back and legs and could not get to a standing position or walk around to do any good. When Sanders would visit appellee at the latter’s parts shop, he would have to help appellee with his work. Appellee for some years had done automobile repair work during his off-duty hours. About a month prior to the trial Sanders went to see ap-pellee to get him to do some repair work on Sanders’ car. Appellee hobbled to the door and told Sanders he was in such pain that he could not do the repair work.

Mrs. Gertrude Rouse, appellee’s sister, visited him several times after his injury. Appellee complained of pain in his back and legs. He was unable to rise from a sitting position without bracing himself on a table.

EVIDENCE FOR APPELLANT

Dr. Swords, appellee’s family physician was offered as a witness by appellant. The Doctor’s records were subpoenaed and the Doctor himself appeared under threat of a subpoena. He had treated appellee for a general backache on numerous occasions prior to the injury of October 9, 1961. From April 24, 1954 until May 15, 1961 the Doctor’s records show that he had treated appellee for general backache twenty-seven times.

When appellee reported the evening of October 9, 1961 it was too late to take X-ray pictures of his back. However X-ray pictures were taken the next day. They showed no injury, ancient or recent. Appellee continued to complain of pain. The Doctor treated him every day for some time giving him medication and heat and manipulative treatments. Appellee gradually became better, hut was still complaining of pain when the Doctor last saw him.

Dr. Swords’ diagnosis: pain due to muscle strain, spasms and lesions in eleventh dorsal area. Dr. Swords did not anticipate any permanent disability. The doctor wrote a letter to appellee’s attorney explaining his diagnosis and his treatments in detail. This letter was introduced into evidence. Also introduced into evidence was a written statement made by appellee to the Industrial Accident Board in which appellee stated that he wished the Board to consider Dr. Swords’ opinion in making the award.

Dr. W. M. Branch, orthopedic surgeon, testified that appellee first came to him November 21, 1961 complaining of pain in his back, hip and legs. X-rays were taken and showed no abnormality. Nerve sensations were normal. There were no muscle spasms and no muscle atrophy. Nevertheless because appellee continued to complain of pain the doctor gave him the benefit of doubt and diagnosed his trouble as mid-back pain and sprain of minimal degree.

Dr. Branch read from his case record of January 19, 1961 as follows: “Has quit job because he wasn’t working enough and the patient stated the weather had a lot to do with it.” According to the Doctor’s record appellee also told him that good jobs had come up with the company and he didn’t get any of them and according to the Doctor’s records, that he was going into the parts business because in that type of business he could sit down any time he wanted to and when he sat down and relaxed a minute he felt fine.

Dr. Brandi saw appellee the last time on October IS, 1962. X-rays were again taken. In the Doctor’s opinion there had been no change in appellee’s condition.

Vernon McNeely, employee of Allen Commercial Service, testified that he had taken motion pictures of appellee engaged in various activities around his home after his injury. Appellee was shown working under the hood of an automobile, stooping down to look under the rear end of the automobile and getting in and out of the automobile. He was also shown repairing a sidewalk. In getting in and out of the automobile appellee moved carefully. In bending over he usually squatted or partly squatted rather than making a full bend of his back.

OPINION

In considering the evidence in this case we must bear in mind that the opinions of medical witnesses as to physical conditions are not controlling. In workmen’s compensation cases testimony of lay witnesses as to physical condition based on their observation of a person will support a jury finding of permanent total disability. Jones v. Texas Employers Ins. Ass’n., Tex.Civ.App., 352 S.W.2d 318, 322; Guerra v. Texas Employers Ins. Ass’n., Tex.Civ.App., 343 S.W.2d 306; Angelina Casualty Co. v. Spencer, Tex.Civ.App., 310 S.W.2d 682 (Syl. 2); Commercial Standard Ins. Co. v. Villa, Tex.Civ.App., 313 S.W.2d 627; Insurance Company of Texas v. Anderson, Tex.Civ.App., 272 S.W.2d 772; Traders & General Insurance Co. v. Daniel, Tex.Civ.App., 131 S.W.2d 276; Texas Employers Ins. Ass’n. v. Hevolow, Tex.Civ.App., 136 S.W.2d 931; Oilmen’s Reciprocal Ass’n. v. Harris, Tex.Civ.App., 293 S.W. 580.

It would serve no useful purpose if we were to say that had we been sitting as a jury in this case we might have made a different answer to Special Issue No. 5 than that actually made by the jury. 4 Tex. Jur. 503, 504. In order to reverse this judgment we must go much further: we must be convinced after considering all the evidence that the jury’s answer is so contrary to the overwhelming weight of the evidence as to be manifestly unjust. We (find ourselves unable to make such a finding. The jury obviously believed the lay witnesses. That was the jury’s prerogative. There is sufficient testimony to support the jury’s answer to Special Issue No. 5.

Many cases can be cited pro and con on the question of the sufficiency of the evidence to sustain a jury’s verdict. It would be difficult if not impossible to give a detailed explanation of the rule which would fit all cases. Each case must be determined separately according to the particular evidence presented.

Appellant cites among others the opinion in Texas Employers Ins. Ass’n. v. Vineyard, Tex.Civ.App., 316 S.W.2d 156. That case is not in point here. For a period of years following his injury up to the time of trial Vineyard continuously held good jobs and received promotions and increases in pay. No such circumstances are presented in this case.

The judgment of the trial court is affirmed.

ON REHEARING

In its motion for rehearing appellant cites us to The Travelers Insurance Co. v. Linder, Tex.Civ.App., 368 S.W.2d 797, and earnestly argues that since no one testified that Wade’s injuries were total and permanent we were in error in finding that the evidence was sufficient to uphold the jury’s verdict. In the cited case as in the case now before us only the testimony of lay witnesses was offered in behalf of the plaintiff. In this case, however, there was testimony favorable to appellant presented by medical witnesses.

Appellee and his five lay witnesses, including appellee himself, are not open to criticism for their failure to testify that ap-pellee’s injury was total and permanent. The general rule is that such testimony from a lay witness is not admissible over objection. Federal Underwriters Exchange v. Simpson, Tex.Civ.App., 137 S.W.2d 132, 136; Maryland Casualty Co. v. Sledge, Tex.Civ.App., 46 S.W.2d 442, 445; Tex. Employers’ Ins. Ass’n v. Brock, 36 S.W.2d 704, 706 (Tex.Com.App.); Stowell v. Tex. Employers’ Ins. Ass’n, Tex.Civ.App., 259 S.W. 311, 317. There are exceptions to the rule. For example, one who has lost an arm would certainly be permitted to testify that his injury was permanent. But no such situation is presented here.

Notwithstanding the general rule prohibiting a lay witness from expressing an opinion that injuries are total and permanent, it is well settled that the factual testimony of a claimant alone, or of other lay witnesses, will support a jury finding of total permanent disability. The jury may reasonably infer total and permanent disability from circumstantial evidence. And this is true though the lay evidence may be contradicted by the testimony of medical experts. Travelers Inc. Co. v. Helstrom, Tex.Civ.App., 351 S.W.2d 321, err. ref. n. r. e.; Consolidated Casualty Ins. Co. v. Baker, Tex.Civ.App., 297 S.W.2d 706, err. ref. n. r. e.; The Ins. Co. of Texas v. Anderson, Tex.Civ.App., 272 S.W.2d 772, err. ref. n. r. e.; Western Casualty & Surety Co. v. Mueller, Tex.Civ.App., 169 S.W.2d 223, err. ref. w. o. m.; American Motorists Ins. Co. v. Black, Tex.Civ.App., 253 S.W. 678, no wr. hist.; Lumbermen’s Mutual Casualty Co. v. Zinn, Tex.Civ.App., 220 S.W.2d 906 err. ref.; Lott v. American Surety Co. of N. Y., Tex.Civ.App., 140 S.W.2d 928, no wr. hist. It is to be remembered that the Workmen’s Compensation Act is to be liberally construed in favor of the claimant. Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73.

The determination of whether the evidence is so contrary to the overwhelming weight of the evidence as to be manifestly unjust is a fact finding function of the Court of Civil Appeals. But that fact finding function does not extend so far as to permit a Court of Civil Appeals to substitute its findings for those of the trial court simply because the appellate court might have made a different finding if it had been the original trier of the facts. Consolidated Casualty Ins. Co. v. Baker, Tex.Civ.App., 297 S.W.2d 706, 715; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

After a careful consideration of appellant’s motion for rehearing we are convinced that our original decision in this case was correct.

Appellee has also filed a motion for rehearing. We see no merit in his motion.

The motions of appellant and appellee are both overruled.


author: WALTER, Justice.

text:
    GULF, COLORADO & SANTA FE RAILWAY COMPANY, Appellant, v. Reymundo Frausto DeLEON, Appellee.
    No. 3824.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 20, 1963.
    Kehearing Denied Jan. 10, 1964.

      Hudson, Keltner Jordan, Smith & Cunningham (Walter E. Jordan), Ft. Worth, Holloway & Slagle, Brownwood, for appellant.
    Helm, Jones, Pletcher & Winkelman, Houston, Gordon Griffin, Jr., Brownwood, for appellee.
   WALTER, Justice.

Appellant’s second motion for rehearing is overruled. We adhere to our order affirming the judgment. However, our ■opinion dated September 20, 1963, and our ■opinion overruling appellant’s first motion for rehearing of October 18, 1963, are withdrawn and the following is substituted therefor:

Reymundo Frausto DeLeon recovered a judgment against Gulf, Colorado & Santa Fe Railway Company for $62,500.00, in a Federal Employers’ Liability Act case. The railroad has appealed.

DeLeon was working in an extra gang for the railroad and was ordered by his foreman to load a tool box on a box car. The box was estimated to weigh from four to seven hundred pounds. The terrain where the men were attempting to load the box was sloping away from the tracks. The ground was frozen and it was sleeting. One of the men attempted to unlock the box but the lock was frozen. Six men tried to carry it. The handles on it were too close together and the men had difficulty walking. Foreman Long told them “not to mess around with it, to load it as it was, that he was going to separate the men from the boys there.” Four men then tried to carry it. DeLeon was one of the four. Manuel Mindieta was also one of the •four. They walked about fifteen feet with •it and DeLeon told the boys to let it down. He felt something give and twist and said he hurt his back. The timekeeper took Tiim to Dr. Cutbirth’s office. DeLeon’s injury occurred on January 27, 1961.

DeLeon was 28 years of age at the time of his injury. The parties stipulated that a person 28 years of age has a life expectancy of 43 years. Withholding Tax Statements revealed that DeLeon earned approximately $3,000.00 in 1959, and approximately $3,000.00 in 1960, while working for the railroad. At the time of his injury he was working 40 hours a week earning $2.05 per hour. He was asked if he was getting better or worse and he stated that “sometime I get worse, and then it doesn’t hurt so much, and there are times when it hurts a lot”, and that he was not able to work. A medical witness testified that DeLeon was suffering with a rupture of an intervertebral disc between the fifth lumbar vertebra and the sacrum; that heavy lifting and straining frequently produces a disc injury; that in his opinion such ruptured disc was caused by lifting the tool box, and that DeLeon was totally and permanently disabled.

One of appellee’s lawyers in his argument to the jury said: “A box that weighed some four or five or seven or eight hundred pounds, too much whatever it is. Whatever its size, was a casket that carried the future health of this young Mexican.” Appellant’s objection that such argument was prejudicial and inflammatory was overruled by the court.

One of appellee’s lawyers, in his argument to the jury, said: “Now, was this man injured as a result of an unavoidable accident? That is the following issue. Mr. Foreman, or Madame Forewoman, as the case may be, when you get to that issue read it carefully so that there can be no confusion about it, because it, like the rest, are vital. A wrong answer under the evidence means justice is defeated.” The appellant objected to such argument on the grounds that it was improper and that it was an attempt to tell the jury what they should do and the effect of their answer. The objection was overruled.

The appellant contends that the court erred in permitting appellee’s counsel to misquote and misstate the testimony of one of appellant’s medical witnesses, by telling the jury that Dr. Lazarz said: “I saw the disc, ruptured disc of the disc syndrome * * At this point counsel for appellant said: “If the Court please, he did not say ruptured disc”, and counsel for appellee replied, “He said disc. You are right, Walter. I apologize.” Counsel, nevertheless, asked the court to instruct the jury not to consider such argument and the court sustained such objection, and counsel for appellee said, “Walter was right that time.”

Another point urging improper jury argument is made to the following: “but when any remark is made about, ‘well, this story was a fabrication, and they go out here and get this testifying doctor,’ I want to tell you that most of the practice that we get comes from former jurors in these lawsuits * * After such argument was made the following took place:

“MR. JORDAN: If the Court please, I think that is * * *

MR. HELM: All right. It does not come from them, then. All right, It comes from other sources

THE COURT: Overrule the objection

MR. JORDAN: Note our exception.”

The court sustained appellant’s objection and instructed the jury not to consider the following argument: “I do not claim to be a doctor, although I am kind of like a doctor, I have seen lots of back injuries, and I have seen a lot of people years after these lawsuits are over, and you do not find many happy people. * * * ”

The court overruled appellant’s objection to the following argument: “This business of bringing Dr. Mayo up, well, Dr. Mayo is a good man, I am sure. Never saw him before in my life. What did he contribute to this? Nobody has claimed in this entire thing * * * want to get these local doctors around here hoping some of the jurors might be kin to some of them or know them, and say, ‘well, Dr. Mayo said so-and-so.’ It’s * * * ” Appellant’s objection to such argument was “If the Court please * * * * * * got nothing more to do with it than a jack rabbit. * * * We object to that. That is not the purpose of bringing * * *

MR. HELM: All right.

MR. JORDAN: * * * any witnesses-in this Courtroom. Shirley knows it. It is improper, and we object to it.”

Appellant has another point complaining about the following argument:

“For example, Mr. Jordan said, ‘Now, Doctor, you did not find anything to suggest a ruptured disc, did you, or disc injury,’’ and you saw how carefully those Doctors-would hesitate and think, and study, and not say, ‘No’ Say, ‘Well, yes, I did.’ After the argument was made the following took place:

“MR. JORDAN: If the Court please, I think that is out of the record. That is not the testimony as I recall it. We object to it, to his going out of the record.

MR. PLETCHER: Ladies and Gentlemen, as you recall * * * excuse me, Your Honor.

THE COURT: Members of the jury, you recall the records yourself, and if Counsel is mis-stating the record in any way, disregard it.”

The court overruled appellant’s objection that the following argument was out of the record: “These professional witnesses, these physicians, when they testify, had better be accurate, as accurate as they possibly can be if they do not want the Medical Society and every body else right-on top of them, like a duck on a june bug.”

One of appellee’s counsel made the following argument: “This is not as easy as. sitting down and multiplying life expectancy or work expectancy times earnings. This is something you can not use a slide rule on, but you can judge it this way, I suggest to you. You can not feel the pain of any one. I have had a toothache for "three days now, and nobody but me can feel it. I do not know whether you, or you, or you, are having the worst headache or the worst back ache in the world. Only the person suffering it, as one of the Railroad Doctors so aptly put it, only the person suffering the injury really knows how bad it is. Yet, the Court says, ‘If the evidence shows in pain, both physical and .mental.’ What is mental pain? Well, I ■can imagine what it would be for me if I '■had on my mind that I might not ever .again be a * * * ”

Appellant objected to such argument for "the reason that it was a personal reference, asking the jury and Mr. Pletcher to put •themselves in Mr. DeLeon’s position. The ■court overruled the objection.

“Before a judgment is reversed because ■of argument of counsel two things must .appear: the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” Aultman et vir v. Dallas Ry. & Ter. Co., 152 Tex. 509, 260 S.W.2d 596. We have carefully considered all of the argument. We do not think the nature of the argument was such as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

Appellant sought to impeach De-Leon by his written statement dated February 3, 1961. DeLeon testified at the trial that the ground where they were trying to load the box was “sorta sloped” and that the tool box weighed 700 pounds. Appellant showed by DeLeon’s written statement “but the footing was good and level •where we were walking with the tool box” .and that the box weighed from 400 to 500 pounds. The railroad did not offer the ■statement in evidence. Before DeLeon ■offered to introduce the statement, the appellant made the following objection:

“Just let the record show, Paul, that the defendant objects and excepts to any reference whatever to any alleged injury by Manuel Mindieta as a result of helping carry the box in question in this law suit. The objection is based on the ground that any such reference to the completely different man would be prejudicial and inflamatory, and completely irrelevant and immaterial to any issues involved in the case of Reymundo DeLeon’s back.”

After DeLeon testified that a claim agent for the railroad typed the statement out for him while he was in the hospital, his counsel offered to introduce the statement into evidence and said “if there is no objection.” Counsel for appellant said: “No objection, except as I have stated, Your Honor.” Appellee’s counsel read the statement to the jury and then said: “Now then, lines are drawn by typewritered * * * Counsel for appellant said: “Now, if the Court please, the statement is one thing, but we do not want Mr. Helm testifying about it. It is introduced into evidence without objection.”

The written statement contained the following :

“A little later Manuel Mindietta also complained of straining his back on the tool box and the timekeeper carried us in to Brownwood to Medical Arts Clinic and Dr. Cutbirth examined me and gave me heat treatment or electric treatment and some pills.”

DeLeon’s foreman, Long, and G. E. Petty, a machine operator for the railroad, testified, without objection, to substantially the same thing. The error, if any, in admitting the written statement was thus rendered harmless. City of Sweetwater v. McEntyre, Tex.Civ.App., 232 S.W.2d 434, (Writ Ref. N.R.E.).

Special issue number three and the jury’s answer thereto is as follows:

“Do you find from a preponderance of the evidence that the act of the defendant’s foreman or other superiors in ordering the men to load the tool box in question constituted negligence, as that term has been defined herein for you? Answer 'It was negligence’ or ‘It was not negligence’. It was negligence.”

Special issue number five and the jury’s answer thereto is as follows:

“Do you find from a preponderance of the evidence that at the time of and on the occasion in question the defendant failed to provide adequate facilities on the job? Answer ‘We do’ or ‘We do not’. ANSWER We do.”

Appellant contends that the court erred in overruling its objections and exceptions to these two special issues. At the outset we are confronted with the appellee’s contention that these points are multifarious and cannot be considered. We have concluded that we will consider them as presenting “no evidence” points.

In the case of Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, the Supreme Court of the United States in a Federal Employers’ Liability Act case said:

“The law was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence.”

In the case of Deen v. Gulf, Colorado & Santa Fe Railway Company, 353 U.S. 925, 77 S.Ct. 715, 1 L.Ed.2d 721, the court said:

“We hold that the proofs justified with reason the jury’s conclusion that employer negligence played a part in producing the petitioner’s injury.”

Under the Federal Employers’ Liability Act the test of what constitutes negligence and proximate cause is to he determined by applicable federal decisions. Under recent decisions by the United States Supreme Court in F.E.L.A. cases, we are-compelled to find that there was some evidence of probative force in the record to-support the jury’s answer to special issues-numbers three and five.

We have carefully considered all! of the evidence and have concluded that the-amount of the verdict was not the result of passion or prejudice or other improper motive or in disregard of the evidence. World Oil Co., Inc., v. Hicks, 129 Tex. 297, 103 S.W.2d 962; Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835; Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993. Appellant’s points on excessiveness of the verdict are overruled.

Appellant’s point number eighteen is as-follows:

“The amount of the jury verdict was contrary to and against the overwhelming weight and preponderance of the evidence. (Germane to Point 1, Appellant’s Amended Motion for New Trial.)” Point 1 in appellant’s-amended motion for new trial is as-follows: “The amount of the jury verdict was contrary to and against the overwhelming weight and preponderance of the evidence.”

We have considered all of the evidence and have concluded that the amount of the verdict is not contrary to the overwhelming weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

If, as appellant now contends in its motion for rehearing, point eighteen should be considered as presenting excessiveness of the verdict, applying the established rule for considering that point, it is overruled.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: NYE, Justice.

text:
    Kathelene FRANKE, Appellant, v. Tommy W. FRANKE, Appellee.
    No. 10.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 5, 1963.
    Maynard F. Robinson, San Antonio, for appellant.
    O. Kennedy, Beeville, for appellee.
   NYE, Justice.

This is a divorce suit. The trial court, without the intervention of a jury, entered a decree of divorce for the plaintiff Tommy W. Franke, approving the property settlement agreement made and entered into by the parties and awarding attorney fees to the attorney for the defendant. The defendant Kathelene Franke, the appellant in this court, promptly gave notice of appeal. The judgment was signed and entered May 21, 1963. No motion for new trial was filed. There were no findings of fact or conclusions of law requested of the trial judge. Appellant filed her affidavit in lieu of an appeal bond, stating that she was unable to pay the costs of appeal or any part thereof, or to give security therefor.

The transcript was timely filed on July 2, 1963, in the Court of Civil Appeals for the 4th Supreme Judicial District of Texas, at San Antonio, Texas. A Statement of Facts was tendered for filing on August 30, 1963, more than sixty days after the judgment of the trial court was rendered and signed. On September 9, 1963, the case was transferred to this court pursuant to an order of the Supreme Court of Texas. This court acquired jurisdiction of the appeal by reason of the timely filing of the transcript. Darden v. Davies, 217 S.W.2d 892 (Tex.Civ.App., 1949).

Appellant filed a motion on September 12, 1963, to admit the tendered Statement of Facts as part of the record and as if timely filed herein. This motion was filed more than fifteen days after the expiration of the sixty-day period provided by Rule 386, Texas Rules of Civil Procedure and was, therefore, overruled. Where a motion was filed in the Court of Civil Appeals to enlarge the time within which to file and accept the Statement of Facts more than fifteen days after the expiration of the sixty days from the rendition of the final judgment, the court was without jurisdiction to grant the motion irrespective of any reason purporting to show good cause given in the motion. Rule 386, T.R.C.P. As a part of this same motion filed by this appellant, she asked for additional time within which to file her brief. The motion was overruled.

Rule 414 T.R.C.P. provides that appellant shall file her brief in the Court of Civil Appeals within thirty days after the filing of the transcript (and Statement of Facts, if any). Her time for filing her initial brief expired August 1, 1963. The motion was filed September 10, 1963. Appellant is not entitled as a matter of right to file her initial brief on dates later than those calculated under Rule 414 T.R.C.P. Black v. Aldrich, 339 S.W.2d 340 (Tex.Civ.App., 1960).

Appellee filed a motion to affirm’ or in the alternative to dismiss the appeal. Thereafter, and three and one-half months after the time had expired for the filing of the appellant’s brief, the appellant tendered her initial brief, unaccompanied by any motion. Appellant has not offered to show that good cause existed for her failure to timely file her brief, or that appellee has not suffered material injury thereby. It must be presumed that appellee has suffered consequential injury in that he has been denied thereby the exercise of his affirmative right to seasonably file a brief for himself in reply to that of appellant. The failure to comply with the rules relative to the filing of briefs authorizes the court to dismiss the appeal. Rules 414 and 415 T.R.C.P.; Sneed v. Moore, 330 S.W.2d 472 (Tex.Civ.App., 1959), and authorities cited therein.

In the absence of a Statement of Facts it must be assumed that there was evidence to support the judgment of the trial court. The presumption prevails in favor of the judgment, and this court cannot disturb it. Root v. Hester, 309 S.W.2d 480 (Tex.Civ.App., 1958, writ ref.); Quarles v. Horton & Horton Building Materials Co., 336 S.W.2d 267 (Tex.Civ.App., 1960).

We have carefully read the transcript (and the tendered brief which was. received but not filed herein). The record before us does not present any matter involving fundamental error, nor does it present any questions of law that are of any importance to the public in general as distinguished from the parties to this appeal. For the reasons stated in this opinion, and inasmuch as the judgment of the trial court stands unimpaired upon the dismissal of the appeal, appellee’s motion to dismiss is granted.

Appellant’s appeal is dismissed.


author: COLEMAN, Justice.

text:
    Ellen CRISWELL et al., Appellants, v. SOUTHWESTERN FIDELITY LIFE INSURANCE COMPANY, Appellee.
    No. 14196.
    Court of Civil Appeals of Texas. Houston.
    Dec. 19, 1963.

      James B. Turner, Houston, for appellants.
    De Lange, Hudspeth & Pitman; Eugene J. Pitman, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from a County Court judgment entered in a forcible detainer action, by the terms of which appellee was found entitled to the possession of certain premises and was granted a judgment in the sum of $1830.00 as damages.

The principal point presented by appellant is the contention that the trial court lacked jurisdiction over this cause of action since a determination of the right to possession of the real property in question necessarily involved the question of title to the premises.

C. L. Sipe sold the property in question to F. E. Baker by deed dated July IS, 1959, which recited, as part of the consideration for the sale, a promissory note in the sum of $4500.00 bearing interest at the rate of 10% per annum, payable in monthly installments of $59.00 each, and secured by vendor’s lien and a deed of trust to Linus Hardin, Trustee. By an instrument bearing the same date C. L. Sipe sold, transferred and conveyed the note, together with the liens securing same, and all titles held by C. L. Sipe, to Southwestern Fidelity Life Insurance Company, without recourse. On the same date F. E. Baker conveyed the land to Ellen Criswell, who assumed and agreed to pay “the unpaid balance owing on that one certain promissory note dated July 15, 1959, executed by grantor herein, payable to the order of C. L. Sipe, for the original principal sum of $4,500.00, said note being secured by vendor’s lien retained in deed dated July 15, 1959 from C. L. Sipe to grantor herein, and being additionally secured by deed of trust of even date therewith to Linus Hardin, Trustee.” The deed of trust referred to was executed by F. E. Baker and conveyed the property to Linus Hardin, Trustee, as security for the $4,-500.00 note. Included in the provisions of the deed of trust was the following paragraph :

“It is further agreed that in the event of a foreclosure under the power granted hereby, the owner in possession of said property shall thereupon become the tenant at will of the purchaser at such foreclosure sale, and should such tenant refuse to surrender possession and said property upon demand, the purchaser shall thereupon be entitled to institute and maintain the statutory action for forcible detainer, and procure a writ of possession thereunder.” (Emphasis added.)

Each of these instruments was recorded July 16, 1959.

Subsequently Mrs. Criswell became delinquent in the payments due under the terms of the note, and Linus Hardin caused notices of trustee’s sale to be posted. These notices recited that F. E. Baker had made default in the payment of the indebtedness described in the deed of trust. The sale was made and Linus Hardin executed a trustee’s deed by which the property was conveyed to Southwestern Fidelity Life Insurance Company. This deed contained a clause by which F. E. Baker, his heirs, executors and administrators warranted the title to the property into the Insurance Company.

All of these instruments were introduced into evidence over appellant’s objection that the court did not have jurisdiction of questions involving the validity of title to real estate. They were admitted for the limited purpose of showing the basis of the relationship between the Insurance Company and Mrs. Criswell. It was incumbent on appellee to prove the landlord-tenant relationship in order to prevail in a forcible detainer action. American Spiritualist Ass’n v. Ravkind, Tex.Civ.App., 313 S.W.2d 121, error ref., n. r. e.

The only basis for holding that there was a landlord-tenant relationship in this case is the provision in the deed of trust to that effect. It is settled that such a provision is valid as between the mortgagor and mortgagee and that the purchaser under the deed of trust is thereby authorized to institute detainer proceedings to oust the mortgagor from possession. Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 103 A.L.R. 977.

However, despite extensive research, no case from this jurisdiction, or any other, has been found determining whether such an agreement is binding on a purchaser from the mortgagor who assumes the indebtedness.

In the case of Willis v. Moore, 59 Tex. 628, there was a deed of trust providing: “* * * that said Moore or his assigns having possession of said land, will, from and after said sale under said trust deed, attorn to the purchaser or landlord, and hold as tenant at sufferance.” Construing this provision, the Court said:

“The deed of trust seems to evidence the fact that the parties contemplated, even if sale was made under it, that Moore and those claiming under Mm shall not at once surrender the land to the purchaser, but from the time of the sale should attorn to the purchaser, which carries with it, by implication, at least an agreement that, from such time, Moore or his assigns should, as tenants, recognize the purchaser as the landlord and pay rent for the land from the time of foreclosure.” (Emphasis added.)

While the question was not involved in that case, the Court apparently assumed that the agreement would be binding on an assignee of the mortgagor.

The covenant in question does not contain the words “assigns having possession of said land,” but the meaning of the phrase contained therein, “the owner in possession of said property,” is substantially the same. It also appears from an examination of the deed of trust that the mortgagor is referred to throughout as “parties of the first part” or “grantors”, from which circumstance an inference might be drawn that the word “owner” was intended to mean the person owning the property at the time of foreclosure even though such person was not the mortgagor.

It is well settled that one agreeing to pay a note secured by a deed of trust lien, as part of the purchase price of the land so encumbered, cannot question the validity of such note or the lien securing it. Bryan v. Dallas Nat. Bank, Tex.Civ.App., 135 S.W.2d 249, writ dism., judgment correct.

The rights of the payee of a note secured by a mortgage, or a deed of trust, cannot be abridged or diminished by subsequent acts of the mortgagor, or grantor in such deed of trust. Mrs. Criswell, therefore, could occupy a no more favorable position than F. E. Baker. The agreement made by Baker as contained in the note assumed by Mrs. Criswell, and the deed of trust securing same, is binding on Mrs. Criswell, Hampshire v. Greeves, 104 Tex. 620, 143 S.W. 147; Barber v. Federal Land Bank of Houston, Tex.Civ.App., 204 S.W.2d 74.

By her acceptance of the deed from Baker, Mrs. Criswell agreed to pay the note described therein, and, from the recitation that the note was secured by a deed of trust, had constructive notice of the provisions of the deed of trust and impliedly agreed to all of them.

Since the instruments offered into evidence proved a landlord-tenant relationship between Mrs. Criswell and Southwestern Fidelity Life Insurance Company, the trial court did not err in admitting them into evidence for that purpose. Nor did the fact that it was necessary to introduce ■evidence of title in order to prove the landlord-tenant relationship deprive the court of jurisdiction since the validity of the title so developed was not in issue. Young Women’s Christian Ass’n v. Hair, Tex.Civ.App., 165 S.W.2d 238; Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307.

Appellant has complained of the .admission into evidence of the trustee’s deed because of an allegedly defective acknowledgment. The execution of the deed was proved by the testimony of the trustee .and was properly admitted. Johnson v. Russell, Tex.Civ.App., 220 S.W. 352, writ ref.

Appellant’s complaint that the trial court erred in admitting a ledger sheet as evidence of default in making the payments required by the note is without merit. While the attorney for appellee was not accurate in naming the corporation in his question, it can hardly be doubted but that the witness, the trial court, and counsel for appellant understood that the question referred to appellee. Other evidence establishing the same fact was also introduced and there was no evidence to the contrary. The error, if any, was harmless. Red River Valley Publishing Co. v. Bridges, Tex.Civ.App., 254 S.W.2d 854.

Appellant’s point that proper posting of the notices of the trustee’s sale was not proven cannot be sustained. The trustee’s deed recited proper posting of notices and the deed of trust provided that such a recital would be presumed correct. There was no evidence to rebut the presumption. Roe v. Davis, 106 Tex. 537, 172 S.W. 708; Cline v. Cline, Tex.Civ.App., 323 S.W.2d 276, writ ref., n. r. e.

The judgment of the trial court is affirmed.