author: GREEN, Chief Justice.

text:
    CITY OF CORPUS CHRISTI, Appellant, v. Bernie ARNOLD et al., Appellees.
    No. 357.
    Court of Civil Appeals of Texas. Corpus Christi.
    Jan. 25, 1968.
    Rehearings Denied Feb. 29, 1968.

      I. M. Singer, City Atty., Charles J. Mac-manus, Asst. City Atty., Corpus Christi, for appellant.
    Sidney Chandler, Corpus Christi, for ap-pellees.
   OPINION

GREEN, Chief Justice.

This suit involves certain problems of taxation arising out of the annexation by City of Corpus Christi of what we shall designate as the Flour Bluff area. For litigation concerning such annexation, see Pennington v. City of Corpus Christi, Tex.Civ.App., (1962), 363 S.W.2d 502, wr. ref. n. r. e., cert. denied, 375 U.S. 439, 84 S.Ct. 507, 11 L.Ed.2d 471; Winship v. City of Corpus Christi, Tex.Civ.App. (1963), 373 S.W.2d 844, wr. ref. n. r. e., cert. denied, 379 U.S. 646, 85 S.Ct. 611, 13 L.Ed.2d 551.

Appellees Mrs. Bernie Arnold and Jim J. Coffman, hereafter sometimes called plaintiffs, owning taxable property within such annexed area, filed suit against City of Corpus Christi, hereafter styled City, seeking judgment (1) removing cloud from title to their property, real and personal, located in such area by declaring void City’s assessment and levy of taxes on such property for the taxable year 1963, and (2) for a partial refund for taxes for the years 1964, 1965, and 1966, allegedly paid City by plaintiffs under protest. City filed a cross-action for delinquent taxes for 1963.

After trial before the court without a jury, judgment was rendered for plaintiffs declaring the 1963 assessment void and against City on its cross-action, but denying plaintiffs’ prayer for any relief as to the 1964, 1965, and 1966 taxes. City duly excepted to and has appealed from the portion of the judgment declaring void the 1963 assessment and denying it recovery of 1963 taxes. Plaintiffs duly excepted to the portion of the judgment concerning the 1964, 1965, and 1966 taxes, and on this appeal have raised their point by cross-assignment of error.

On request of City for findings of fact and conclusions of law on the phase of the case dealing with the 1963 taxes, the court prepared and filed the following:

“FINDINGS OF FACT
“NO. 1. City of Corpus Christi was enjoined by temporary injunction from exercising municipal jurisdiction over the Flour Bluff area for the period of time from February, 1962, to October, 1963. “NO. 2. For the year, 1963, the attempted assessment of Plaintiff taxpayers property and subsequent action by board of equalization was done without giving Plaintiff taxpayers an opportunity to be heard.
“NO. 3. For the year, 1963, the attempted assessment of Plaintiff taxpayers property and subsequent action by board of equalization was done without giving Plaintiff taxpayers statutory notice or reasonable notice.”
“CONCLUSIONS OF LAW
“NO. 1. Defendant, City of Corpus Christi, did not have authority to levy taxes on Plaintiffs’ property for the year, 1963, because such property was not within its jurisdiction as of January 1, 1963. Vernon’s Ann.Civ.St. art. 1043; City of Austin v. Butler, [Tex.Civ.App.], 40 S.W. 340; Texas City v. J. L. Martin Investment Company, et al, [Tex.Civ.App.], 222 S.W.2d 139.
“NO. 2. For the year, 1963, attempted assessment of Plaintiffs’ property by Defendant, City of Corpus Christi, and subsequent action by the board of equalization were void and invalid.”

The primary issue in Pennington, supra, was whether City had a prior right to annex the Flour Bluff area, or whether certain residents had the prior right to incorporate the same area as a separate town. The trial court upheld the rights of the City, and entered judgment validating the annexation as of August 5, 1961, which was affirmed on appeal. However, the same judgment continued in full force and effect until final adjudication of the cause on appeal the temporary injunction theretofore issued forbidding the City to provide municipal services to the area. (Additional Fact Finding No. 9, supra.)

City provided no municipal services to the area and made no effort to put into effect any of its taxing procedures as to property therein so long as this injunction remained in effect. After the mandate in the Pennington case had been filed with the district clerk, the trial judge on a hearing entered his order on October 1, 1963, declaring dissolved and no longer in effect the injunction against the City’s exercise of municipal authority within the annexed area. The record is conflicting as to whether the City actually furnished any municipal services to the area prior to January, 1964, and there is no finding on such issue. However, promptly on the entry of the above order, City’s tax assessor sent into the area his appraisers and commenced the preparations of the tax rolls for 1963 on taxable property in the annexed territory. On December 26, 1963, at the call of the City tax assessor, the members of the City Equalization Board approved and signed the tax rolls on property including that of plaintiffs within the annexed area.

Appellant City by its 2nd and 3rd points attack the court’s judgment and first conclusion of law that City did not have authority to tax the property in 1963 because such property was not within City’s jurisdiction as of January 1 of that year. We agree with City contentions that under the court’s amended fact finding No. 9, and in view of the judgment in Pennington and the decision in Winship, supra, the annexed property was within the city limits of Corpus Christi on January 1, 1963, and was subject to taxation by proper and legal methods in the taxing process. The trial court cites Art. 1043, Vernon’s Ann.Tex. Civ.St., and the City of Austin and Texas City cases, supra, as its authority for its first conclusion of law, supra. Art. 1043 provides that the rendition of property for taxation shall be as to such property as is within the city limits on January 1 of the taxable year; and the holdings in the City of Austin and Texas City cases, supra, were dependent on the fact that the properties there sought to be taxed were not in the city limits on January 1 of the year for which taxes were assessed. Under the facts of the present case, the cited cases are not in point, since the annexation was held to be valid since August, 1961, and the property sought to be taxed was within the city limits on January 1, 1963.

City further contends that because Corpus Christi is a home rule city operating under the provisions of Art. XI, § 5, Constitution of the State of Texas, Vernon’s Ann.St., it may exercise all of the powers vested in home rule cities by the State Constitution and not expressly denied to it by the Legislature. State ex rel. Rose v. City of La Porte, Tex.Sup.Ct., 386 S.W.2d 782, 785; Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282; Winship v. City of Corpus Christi, supra. Since the power to tax property within an area annexed after January 1 is not expressly denied to home rule cities by statute, City argues that it would be authorized to tax plaintiffs’ property for 1963 regardless of whether it had jurisdiction over it on January 1, 1963. Neither of the cities in the two cases cited by the trial court in support of his 1st conclusion of law were home rule cities, and in the Texas City opinion, the court expressly stated that no question involving the taxing power of home rule cities was presented or decided in that case. However, in view of our above holding that the property sought to be taxed was within the city limits of Corpus Christi on January 1, 1963, and subject to taxation for that year, it is unnecessary that we pass on City’s contention that as a home rule city, it was authorized to tax plaintiffs’ property even though it may not have had jurisdiction over this property on January 1, 1963, as found by the trial court.

City’s 1st, 4th, 6th and 7th points of error raise the proposition of whether the trial court was justified in concluding that because the assessment of plaintiffs’ property and subsequent action by the Board of Equalization was done without giving plaintiffs an opportunity to be heard, and without giving statutory or reasonable notice (fact findings Nos. 2 and 3), such attempted assessment and the action of the board were void and invalid (conclusion of law No. 2). City says that under the provisions of its charter and the applicable laws, it was not required, once it was freed from the court’s injunction, supra, to give plaintiffs as property owners within the city any notice of the actions of the tax assessor and the Board of Equalization, and that the findings of the trial court of no notice were immaterial to any issue in the cause. Because of the unusual relation existing between the City and the property owners caused by the prior litigation, the delay caused by the injunction in the taxing authorities taking action in 1963 until after the times fixed by the city charter for it to do the things necessary to be done in the taxing process and other factors, we do not agree, and we sustain the conclusion reached by the trial court.

Plaintiffs did not at any time in 1963 render their property to City for taxation, as property owners within the City were required to do under the city charter. Article VII, § 3 of the charter provides that in case of non-rendition, the tax assessor shall ascertain the value and place the property on the tax roll. After the property had been placed on the roll, it was the duty of the Board of Equalization to supervise the assessment of property; only in the event the board proposes to raise the value is there any provision for notice to the taxpayer. Section 4 of Article VII of the charter requires the Board of Equalization to examine and equalize the value of all property on the tax assessor-collector’s lists or books, and to approve and return them in the manner provided by law, and to complete its labors not later than September first of each year.

In this instance plaintiffs were contending that the annexation was invalid to and including January 4, 1964, when the Supreme Court of the United States denied writ of certiorari in the Pennington case. As a result, as stated above, they did not render their property for taxation by City. City felt it was bound by the injunction to take no steps to assess plaintiffs’ property. Hence, the assessor did not place their taxable property on the unrendered rolls and the Board of Equalization did not pass upon any assessment of this property within the time specified in the charter, but upon finishing its labors the board adjourned not later than September 1st. The property of plaintiffs was therefore not shown on the tax rolls'of City for taxation purposes either during the period of time the law requires property to be listed for taxes, or at the time the Board of Equalization adjourned. Later, on December 26, 1963, on telephone conversation to the members by the tax assessor-collector without any action having been taken by the City Council, the board approved the tax rolls on plaintiffs’ property as prepared since October 1st by the assessor.

We agree with City that the fact that th’e Board of Equalization did not reconvene and approve the tax roll containing plaintiffs’ property before December 26 would not, in and by itself, invalidate the assessment. Blewett v. Richardson Independent School Dist., Tex.Civ.App., 230 S.W. 255, aff’d Tex.Com.App., 240 S.W. 529. But we believe that under the facts here presented plaintiffs were entitled to notice of such irregular meeting which was held at a time and in a manner other than that provided by law. We further believe that the action of the members of the Board of Equalization in assembling on phone call of the assessor, and approving the rolls on December 26 without giving plaintiffs any notice or opportunity to be heard is, under the special facts of this case, similar in legal principle to back-taxing, and as a result void as to these plaintiffs, and that the trial court was justified in so holding. Republic Ins. Co. v. Highland Park Independent School Dist., 141 Tex. 224, 171 S.W.2d 342, 344.

City, in support of the validity of its 1963 tax assessments, argues further that the introduction of the tax rolls into evidence together with evidence of non-payment of taxes created a prima facie case that it had complied with the necessary requirements of the levy and assessment of the taxes, and that the burden there was on plaintiff to prove some illegal procedure, citing City Charter, Art. VII, § 5; Arts. 7336 and 7336F, V.A.T.S.; Vol. 54, Tex.Jur.2d, Taxation, § 173; City of San Marcos v. Zimmerman, Tex.Civ.App., 361 S.W.2d 929, wr. ref. n. r. e.; City of Houston v. McCarthy, Tex.Civ.App., 371 S.W.2d 587. Here under the trial court’s findings and conclusions any prima facie case established by the introduction of the rolls was overcome by the other evidence in the case.

City also contends that any defects in the proceedings involving the 1963 taxes were validated by Sec. 3 of Art. 1174a-8, V.A.T.S., effective May 18, 1965. Such statute by its own terms is not applicable to proceedings relating to annexation of territory. The controversy here litigated developed from and relates directly to the annexation of property by a home rule city, and the statute is not applicable.

We hold that the trial court was not in error in its conclusion of law that the attempted assessments and the action by the Board of Equalization were void and invalid, based on his fact findings Nos. 2 and 3 of lack of notice to plaintiffs, and we overrule City’s points 1, 4, 6 and 7.

We have considered City’s points of error which concern the trial court’s failure to make certain additional fact findings requested by the City. Some of the requested findings were on matters which were not disputed, and no findings were necessary. Smith v. Brown Express, Tex.Civ.App., 343 S.W.2d 550, wr. ref. n. r. e. Other reqeusted findings were on evidentiary matters as distinguished from controlling issues, and the trial court is required to make findings only on ultimate, controlling, material issues. Wade v. Taylor, Tex.Civ.App., 228 S.W.2d 922, n. w. h.; Moore v. Campbell, Tex.Civ.App., 254 S.W.2d 1018, wr. ref. n. r. e. All of such points are overruled.

Appellee’s cross assignment of error reads as follows:

“This record shows without dispute that for many years the CITY OF CORPUS-CHRISTI, by a deliberate adoption of a plan for the omission from the tax rolls of a large volume of property subject to City taxation, is in direct contravention of the constitutional and statutory provision for equality and uniformity of taxation, as required by Article VIII, Section 1, Constitution of Texas, Vernon’s Annotated, Statutes of Texas, and Article 7174, Vernon’s Annotated Civil Statutes of 1925, as amended, and the trial court erred in not so holding.”

The plaintiffs in their amended petition alleged that the appellant City, for the years 1963-1966 inclusive, in the assessing and valuation of property within City’s boundaries at the time of making up the tax rolls and records each year, deliberately, intentionally, systematically and willfully excluded certain types and classes of taxable property within the City subject to taxation, including large volumes of money, notes, stocks, bonds, securities, household furniture, automobiles and other property described in detail. It was further alleged that by reason of such system of exempting taxable property, plaintiffs had paid, under protest, certain excess taxes for the years 1964, 1965, and 1966. The pleading is in detail, and plaintiff sought judgment for such excess taxes paid by them under protest. The trial court expressly found in his judgment “that the proof offered by Plaintiffs and Cross-Defendants cannot sustain a judgment as sued for in Plaintiffs’ First Amended Original Petition against the City of Corpus Christi for a recovery of alleged excess taxes paid during the years 1964, 1965, and 1966” and rendered judgment denying plaintiff recovery therefor.

No findings of fact or conclusions of law were requested on this phase of the case, and other than as above quoted from the judgment, none were filed. At most, it became a fact issue as to whether plaintiffs paid their 1964, 1965, and 1966 taxes under a protest that such taxes were discriminatory and illegal, and it is to be assumed that the trial court, as the trier of facts, found that fact issue against plaintiffs, as well as all other material facts placed in issue. Thus we have here a case of plaintiffs having paid their taxes, and now suing to recover them back claiming a discriminatory, arbitrary and illegal system of taxation by the taxing authority.

Once a tax plan has gone into effect, in order for a property owner to successfully attack such plan on the ground that the taxing agency has omitted certain classes of property from taxation the taxpayer must assume the onerous burden of proving:

(1) That there was an actual omission of taxable property from the tax rolls;

(2) That the omission of said taxable property was the result of a deliberate and arbitrary illegal plan or scheme to exclude taxable property from taxation;

(3) That the omission resulted in substantial injury, in hard dollars, to the taxpayer, and the extent of such injury. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569; City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414; Whelan v. State, 155 Tex. 14, 282 S.W.2d 378; State v. Federal Land Bank of Houston, 160 Tex. 282, 329 S.W.2d 847; Bass v. Aransas County Independent School District, Tex.Civ.App., 389 S.W.2d 165, wr. ref. n. r. e.; Wilson v. City of Port Lavaca, Tex.Civ.App., 407 S.W.2d 325, wr. ref. n. r. e.; City of Orange, Texas v. Levingston Shipbuilding Co., 5 Cir., 258 F.2d 240.

We have given careful consideration to the evidence relevant to this cross-assignment, and conclude that the trial judge as the trier of the facts as well as the law did not commit error in his judgment denying plaintiffs’ prayer for relief as to the 1964, 1965 and 1966 taxes.

The cross assignment is overruled.

The judgment of the trial court is reformed in so far as it holds that the City had no jurisdiction to levy and assess taxes on the subject property for the year 1963, it being the judgment of this Court that City did have the legal right and jurisdiction to levy and assess taxes on such property for 1963, but that the assessment against plaintiffs’ property was invalid for the reasons herein stated. Otherwise, the judgment appealed from is affirmed.

Reformed and affirmed.

      . This was amended by trial court (9th additional Finding of Fact) to read:
      “In City of Corpus Christi vs. Pennington, Cause No. 73192-B, in the 117th District Court of Nueces County, Texas, the Court granted judgment declaring that the City had validly annexed the so-called Flour Bluff Area, as of August 15, 1961, but continued in effect its injunction forbidding the City to provide municipal services to the area until the case was decided upon appeal to the Texas Court of Civil Appeals as stated in Plaintiffs’ Exhibit No. 6.”
      The date should be August 5, 1961, as shown by the judgment in evidence.

      . Ordinance 6242 mentioned in Winship, footnote, p. 845, was the annexation ordinance litigated in Pennington.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION et al., Appellants, v. Bert L. CORNELIUS et ux., Appellees.
    No. 6947.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 8, 1968.
    Rehearing Denied Feb. 28, 1968.

      Orgain, Bell & Tucker, Beaumont, for appellants.
    Sadler & Sadler, Port Arthur, for appel-lees.
   STEPHENSON, Justice.

This is an action for damages for personal injuries to plaintiff’s wife, which are alleged to have occurred when she was struck by a door shoved by defendant, Neil Salter. Both General Motors Acceptance Corporation, the employer, and Neil Salter, its employee, are named as defendants. Trial was by jury and judgment was rendered for plaintiffs upon the jury findings. The parties will be referred to here as they were in the trial court.

Plaintiffs alleged: that defendant, Neil Salter, came to plaintiffs’ restaurant for the purpose of collecting a car note due defendant, General Motors Acceptance Corporation; that defendant, Neil Salter, used abusive language and threats and was asked to leave the premises; that as Salter left, Mrs. Cornelius took hold of the door and undertook to close it; that Salter, because angry, grabbed the door, threw his weight against it and rammed the door into and against Mrs. Cornelius. No allegations of negligence were made, as this cause of action was based upon willful and intentional action on the part of defendant, Neil Salter.

Special Issue No. 1 submitted to the jury read as follows:

SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that the Defendant, Neil T. Salter, struck the Plaintiff, Imogene Cornelius, on the occasion in question by ramming the door into and against Mrs. Cornelius ?
Answer “We do” or “We do not”.
ANSWER: We do.

It is argued by defendants that the trial court erred in submitting this issue because it was multifarious and because it was a comment on the evidence in that it assumed that defendant, Neil Salter, did in fact strike Imogene Cornelius. According to defendants, the two fact issues inquired about were: first, if plaintiff’s wife was struck by a door; and second, whether defendant, Neil Salter, rammed the door into her. Defendants cite to the court a number of cases holding it is error to submit two ultimate fact issues in the same question. We find no fault with these decisions, but the proposition of law for which these stand is not applicable to the situation in this case. The words used in the charge “by ramming the door into and against Mrs. Cornelius” are merely descriptive of the manner by which Neil Salter struck the plaintiff. If anything, this method of submitting the issue placed a greater burden upon the plaintiffs, in that it limited the jury to finding that the striking by the door occurred in a specific manner. Inasmuch as the plaintiffs had pled the occurrence in this particular manner, this special issue would have been subject to objection if it had failed to include the words above quoted. Texas Employers’ Ins. Ass’n v. Rowell, Tex.Civ.App., 104 S.W.2d 613; Eubanks v. Texas Employers’ Ins. Ass’n, 151 Tex. 67, 246 S.W.2d 467.

It is next urged by defendants that the sum of $44,400.00 awarded to plaintiffs by the jury is grossly excessive and shows the jury was influenced by passion or prejudice and prayed that either a new trial be granted or a remittitur ordered. Under the special issue as submitted, the jury was permitted to consider the following items: Physical pain and suffering, both past and present, loss of earnings, both past and present, as well as earning capacity, and loss of household services to the husband.

Rule 440 Texas Rules of Civil Procedure provides that if the Court of Civil Appeals is of the opinion the verdict and judgment of the trial court is excessive, a remittitur shall be suggested for such excess, and to remand the case if the excess is not remitted. The Supreme Court set forth the standard by which this Court of Civil Appeals is to follow in Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993, which is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation for the injury sustained.

The evidence in this record shows: Mrs. Cornelius was 36 years of age at the time this incident occurred, and had a life expectancy of 41.3 years. She had been working in their cafe about a year doing any kind of work which needed to be done, including cleaning, cooking and waiting on customers. She had always been able to do all of her housework. Neil Salter slammed her back against the wall with the door, the door knob hitting her in the stomach, her head hitting the fire extinguisher on the wall and her back hitting the wall. Her stomach, back and head began hurting, a knot appeared on her head and she was addled. Later she began to bleed internally and her low back area became swollen. She wore a back brace all of the time for 2½ years and then from time to time since, this trial commencing March 9, 1967. She has not been able to do cafe work or her house work since the date of her injury. The pain in her back has been constant at all times, sometimes being worse than others. She is still taking drugs for the pain and her nerves and receiving heat treatments. She does not rest well at night, and sleeps on boards on her bed and a hard mattress. She still has nervous spasms in her back and trouble with her legs. She has undergone personality changes and is not jolly as she was before. Dr. Martin Haig, an orthopedic surgeon, testified that his findings were consistent with her complaints and that she was suffering with a 10% partial permanent disability due to the injuries made the basis of this suit.

There is no contention that evidence of a harmful nature was improperly admitted by the trial court, nor that any harmful argument was improperly made to the jury. We do not find that the size of the award itself, in view of the evidence above set forth, showed bias or prejudice. Under the evidence in this case, we find the amount of the verdict and judgment to be reasonable compensation for the injury sustained. There is no excess. The point of error is overruled.

Defendants’ last point of error is that the trial court should have held as a matter of law that Neil Salter was not in the course of his employment at the time of this incident. The jury found that he was acting within the course and scope of his employment for defendant, General Motors Acceptance Corporation.

This is a no-evidence point, and we consider only the evidence supporting such finding in passing upon it. The evidence shows that Neil Salter was engaged in his usual employment at the time, that is, in the normal process of field collections. It was his job to collect accounts, and this was his only reason for calling upon plaintiff and his wife. Salter testified he was doing the work assigned to him and in the interest of furthering the business of General Motors Acceptance Corporation. Salter was working the delinquent list and plaintiffs’ was one of the accounts on the list. The evidence shows that when plaintiff’s wife called the local manager of General Motors Acceptance Corporation by telephone to report the incident, such manager told her: “If you paid your bill, you wouldn’t be shoved around.” There is no evidence in this record to show the action by Neil Salter was performed as a resentment of insults or because of personal animosity. The point is overruled.

Affirmed.


author: NORTHCUTT, Justice.

text:
    J. I. CASE COMPANY, Appellant, v. E. R. DARCY, Appellee.
    No. 7775.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 22, 1968.
    Rehearing Denied Feb. 19, 1968.

      Monning & Monning and Robert R. Bradshaw, Amarillo, for appellant.
    Witherspoon, Aikin, Thomas & Langley, and Thomas W. Kendrick, Hereford, for appellee.
   NORTHCUTT, Justice.

This is a venue case. On October 21, 1964, Tucker Equipment Company of Clovis, New Mexico sold to E. R. Darcy of Moore County, Texas two Case tractors and as a part of the purchase price E. R. Darcy executed and delivered his promissory note in the sum of $5,591.55 payable to Tucker Equipment Company of Clovis, New Mexico. To secure the payment of said note Darcy executed a chattel mortgage upon the two tractors here involved. The note and mortgage were transferred by Tucker Equipment Company to Commercial Credit Equipment Corporation. After Darcy defaulted in the payment of the note, Commercial brought this suit against Darcy to recover the sum due under the terms of the note and to foreclose the lien upon the two tractors.

Darcy filed his answer therein and filed a cross action against Tucker Equipment Company and J. I. Case Company contending the tractors would not perform as represented and sought judgment against Tucker Equipment Company and J. I. Case Company in the sum of $2,798.00, being the sum allegedly paid them in the original sale agreement. In the original sale of the two tractors the $2,798.00 was shown to be a Case swather taken in trade by Tucker Equipment Company for that sum. Commercial and Darcy settled their suit and released each other from all claims and the tractors were returned to Darcy.

J. I. Case Company filed its plea of privilege to have the case transferred to Dallas County, Texas, the place of its residence. Darcy filed his controverting plea contending that Case should be held in Moore County, Texas under Sections 3, 27, and 29a of Article 1995. The trial court overruled the plea of privilege. From that order J. I. Case duly excepted and perfected this appeal.

There are no findings of facts or conclusions of law filed herein and we do not know under which exception the court based its opinion. However, since the ap-pellee only briefed the case here on exception 27, we presume that is the sole point relied upon. We will consider each exception as pleaded by appellee. There is nothing in this record to indicate that appellant is a non-resident or its residence is unknown. It is undisputed that appellant was a foreign corporation with authority to do business in this state and in venue cases it is considered a resident of this state. O. M. Franklin Serum Co. v. C. A. Hoover & Son, Tex.Civ.App., 410 S.W.2d 272 (n. r. e.); Pepsi-Cola Co. v. Spangler, Tex.Civ.App., 401 S.W.2d 923; American Fidelity & Casualty Co. v. Windham, Tex.Civ.App., 59 S.W.2d 259. Section 3 of Art. 1995 does not apply herein.

A necessary party to a suit as used in Section 29a of Art. 1995 is one whose joinder is necessary to afford the plaintiff the full relief to which he is entitled in the suit which can thus be maintained in the county. Herein, appellee could recover full relief that he could show himself entitled to against Tucker Equipment Company and this appellant was not a necessary party under Section 29a. It is stated in Lewis Boggus Motors, Inc. v. Hill, Tex.Civ.App., 340 S.W.2d 957 (writ dism’d) as follows:

“[1,2] A ‘necessary party’ to a suit, as used in Subdivision 29a, is one whose joinder is necessary to afford the plaintiff the full relief to which he is entitled in the suit which can thus be maintained in that county. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758. In the instant case, plaintiffs sued the defendant Ford Motor Company as manufacturer of a defective vehicle, and the defendant Boggus Motor Company as seller of the defective vehicle with duty to inspect. Both defendants were sued as joint tort-feasors and money damages was sought jointly and severally against each defendant. In this event, either defendant is liable for the damages sustained by plaintiffs, and plaintiffs could have full satisfaction therefor by judgment and execution against either defendant. Moreover, an effectual decree could be rendered completely adjudicating plaintiffs’ alleged cause of action against the Ford Motor Company without the joinder of the defendant Boggus Motors as a party defendant. Therefore, we hold that defendant Bogus was not a necessary party to plaintiffs’ suit in Harris County, under the foregoing definition and as contemplated by Subdivision 29a. Tarrant v. Walker, Com.App., 140 Tex. 249, 166 S.W.2d 900, 902; Jaques Power Saw Co. v. Womble, Tex.Civ.App., 207 S.W.2d 206 (no writ hist.); Liles v. Winters Ind. Sch. Dist., Tex.Civ.App., 326 S.W.2d 182 (no writ hist.); Coleman County Telephone Co-op v. Cunningham, Tex.Civ.App., 318 S.W.2d 461, W/E Dis.; Ladner v. Reliance Corp., Sup.Ct., supra.”

J. I. Case was not a necessary party herein as provided for by Section 29a of Art. 1995 as to hold venue in Moore County.

Before discussing the matters herein involved under Section 27 of Art. 1995 and the fact that the trial court overruled the appellant’s plea of privilege, we must state we are familiar with the rule that in determining the sufficiency of the evidence to support such ruling of the trial court we are required to disregard all adverse evidence and to give credit to all evidence favorable to the judgment. There is another rule that is as well settled in venue matters as expressed in Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969 at 972 where it is stated:

“[1] The general rule of venue is, of course, that a defendant shall be sued in his own county, and however many and important are the exceptions contained in the statute, an equal doubt between the exception and the rule is to be resolved in favor of the rule. Stated differently, the application of the exception must clearly appear. Burtis v. Butler Bros., Tex.Sup., 226 S.W.2d 825, and cases cited at page 828. This principle has not been altered by Rule 47 or others of our Texas Rules of Civil Procedure. See Rule 816, which expressly refers to their effect on venue.”

Appellee purchased the tractors from Tucker Equipment Company of Clovis, New Mexico, and as a part of the purchase price Tucker took in trade a Case swather for the consideration of $2,798.00. Tucker was a dealer and paid J. I. Case for the tractors. Appellee did not have any dealings with J. I. Case in purchasing the tractors. Appellee sought to hold venue in Moore County by contending that Brown Implement Company was an agent and representative of J. I. Case Company. Brown Implement Company had nothing to do with any of the transactions here involved. The agreement between J. I. Case Company and Brown Implement Company shows that Case was to ship the goods ordered by Brown Implement Company and Brown was to pay for the same and Brown, as dealer, was to resell at retail.

There is no evidence in this record to show that Brown had any authority to act in any matters in any degree whatever for J. I. Case Company. It is stated in Morris v. J. I. Case Credit Corporation, Tex.Civ.App., 411 S.W.2d 783 (n. r. e.) as follows:

“It is seen on careful examination of the December, 1961, contracts that they are replete with references to the fact that the dealer purchased the goods from Case for resale and was not the agent of Case. Virtually every paragraph of these contracts contains language to that effect. Therefore, the reservation of title by Case was as security for the purchase price, and the transactions involved were sales and not shipments on consignment. Art. 5489, Vernon’s Ann.Civ.St. (repealed eff. June 30, 1966); Dallas Farm Machinery Co. v. Minneapolis-Moline Co., Tex.Civ.App., 324 S.W.2d 578; Grand Prize Distributing Co. of San Antonio v. Gulf Brewing Co., supra [Tex.Civ.App., 267 S.W.2d 906].”

In Pierce v. Ford Motor Company, Tex.Civ.App., 401 S.W.2d 355 (writ dism’d) it is stated:

“The plaintiff has the burden of establishing the venue facts, in this case, the existence of Ford Motor Company’s agency or representative in Taylor County, by a preponderence of the evidence. Compton v. Elliott, (Tex.Com.App.) 88 S.W.2d 91; Reynolds & Huff v. White, Tex.Civ.App., 378 S.W.2d 923. Plaintiff’s evidence shows that the only warranty issued was by a retail dealer to his customer; that Ford Motor Company had no connection with it and that Arrow had no authority to act for Ford Motor Company concerning warranty. In General Motors Corporation v. Ewing, Tex.Civ.App., 300 S.W.2d 714, an automobile purchaser sued the manufacturer, alleging a defective condition. The manufacturer filed a plea of privilege. In that case the warranty came from the manufacturer. Complaints directed to the manufacturer were referred to the local dealer for inspection and report. The court reversed the trial court’s judgment overruling General Motor’s plea of privilege saying:
'Our view of the record is that the testimony fails to show that the defendant had any dealings or transactions with the plaintiff as regards the sale of the Buick car; plaintiff made his purchase from an independent automobile dealer. It seems to us that the dealer is in no way connected with defendant other than being in a position to resell the automobiles it buys from defendant.’ ”

See also Luse v. Valley Steel Products Co., 5 Cir., 293 F.2d 625.

We are of the opinion, and so hold, that there was no proof of agency between Brown Implement Company and J. I. Case Company but only a dealership which was the contractual relationship.

The judgment of the trial court overruling appellant’s plea of privilege is reversed and judgment is here rendered ordering that the cause as to appellant J. I. Case Company be transferred to one of the district courts of Dallas County, Texas.

Reversed and rendered.

DENTON, C. J., not participating.


author: RENFRO, Justice.

text:
    Gertrude LEATH, Appellant, v. Ben E. TILLERY, Appellee.
    No. 16882.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 19, 1968.
    Rehearing Denied Feb. 23, 1968.
    Sidney E. Dawson, Dallas, for appellant.
    Brantley Pringle, Fort Worth, for ap-pellee.
   OPINION

RENFRO, Justice.

Republic National Life Insurance Company paid into court as stakeholder the sum of $4,500.00, being the proceeds of Group Life Insurance Policy No. 6517.

Ben E. Tillery was the surviving husband of Gloria H. Tillery, and Gertrude Leath was the mother of Gloria H. Tillery. Each claimed the benefits of such policy.

The real controversy in the trial court developed into a contest between Gertrude Leath and Ben E. Tillery.

Judgment was rendered against Gertrude Leath.

Mrs. Leath appealed. Pending the appeal, Mrs. Leath died. The appeal continued in her name. Rule 369a, Texas Rules of Civil Procedure.

For clarity, we refer to Mrs. Leath as plaintiff and Ben E. Tillery as defendant.

On April 15, 1957, Union Casualty and Life Insurance Company issued to Trustees and Successors of the Central States Southeast and Southwest Areas Health and Welfare Fund its Group Life Policy. Gloria H. Tillery was issued Certificate No. 183017, in which Gertrude Leath was named beneficiary. Later, Mount Vernon Life Insurance Company took over the coverage and Mrs. Leath was designated beneficiary.

On April 1, 1960, Republic National Life Insurance Company issued to the Trustees its policy of life insurance No. 6517. Gloria H. Tillery was insured thereunder in the amount of $4,500.00. Gloria H. Tillery did not designate a beneficiary under said policy and none was named in the certificate issued to her.

Gloria H. Tillery died June 8, 1965, without ever naming a beneficiary.

Plaintiff contends that since she was named beneficiary in the 1957 policy issued by Union Casualty and Life Insurance Company, and in the succeeding policy issued by Mount Vernon Life Insurance Company, such designation as beneficiary should be considered to become a part of the 1960 policy issued by Republic National Life Insurance Company, even though no beneficiary was named therein, because, she argues, the Republic policy merely carried out the provisions of the former policies.

Gloria H. Tillery was an unmarried woman when the original policy naming her mother as beneficiary was issued by the Mount Vernon Life Insurance Company. She married Ben E. Tillery prior to the issuance of the Republic policy in 1960. At her death she was survived by Ben E. Til-lery, her husband, and by a minor child.

The Republic policy provided in part: “Any Insured hereunder may, from time to time, designate a new beneficiary by filing with the Company a written request for change of beneficiary on a form satisfactory to the Company. No such change of beneficiary shall take effect until such request shall have been filed at the Home Office of the Company * * *.” It is undisputed the insured never filed the name of a designated beneficiary with the home office.

The policy further provided: “Subject to due proof of death, any sum becoming due on account of the death of an Insured shall be payable to the beneficiary or beneficiaries designated by the Insured and filed at the Home Office of the Company. * * * If no designated beneficiary survives the Insured, or if no beneficiary shall have been named, the insurance shall be paid to the executors or administrators of the Insured except that the Company may in such case, at its option, pay such insurance to the wife or husband, if living; * *

Also, the policy contained the provision, “This policy, the application of the Policyholder attached hereto, and the individual applications, if any, of the Insureds, constitute the entire contract between the parties hereto.”

In Article 3.44, § 3, V.A.T.S., Insurance Code, it is provided that the policy, or policy and application, shall constitute the entire contract between the parties and shall be incontestable not later than two years from its date, except for non-payment of premiums.

The court in Curtis v. Curtis, 378 S.W.2d 955 (Tex.CivApp., 1964, ref., n. r. e.), stated: “ * * * it is not contended that he met the requirements of Prudential as to changing his beneficiary. This policy must be construed by its own terms, and we fail to see how the fact that appellant had been named as a beneficiary on other policies of the insured could affect it. * * * we fail to see any connection between the policies from the records of the insurer, and remain convinced that the beneficiary under Policy No. 9719-B is determined by the provisions of such policy. Article 3.44, subd. 3, Insurance Code of Texas, Vernon’s Ann.Civ.St. provides that the policy, or policy and application, shall constitute the entire contract between the parties * * *. [I] f we be correct in our holding that Policy No. 9719-B constitutes the entire contract between the parties, then the witness would be precluded from altering it by parol testimony.”

The policy was issued to Gloria H. Tillery on April 1, 1960. It was still in force and effect at the date of her death, more than five years later, namely, June 8, 1965. During all this time she made no effort to name a beneficiary. We hold that there was no named beneficiary and the court did not err in denying plaintiff recovery.

Plaintiff briefed nine points of error. Each and all have been considered and each and all are overruled.

The judgment of the trial court is affirmed.

Affirmed.


text:
    Alice HERRINGTON et vir, Appellants, v. Alice PELKEY et vir, Appellees.
    No. 6856.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 1, 1968.
    Rehearing Overruled Feb. 28, 1968.
    Musslewhite & Musslewhite, Lufkin, for appellant.
    Jack Dies, Lufkin, for appellee.
   STEPHENSON, Justice.

This is an action upon a written contract to recover a commission for the sale of real estate. Trial was before the court and judgment rendered that plaintiffs, Herring-tons, recover nothing from defendants, Pelkeys. The parties will be referred to here as they were in the trial court.

The contract in question was signed by Alice Herrington as the real estate broker and Alice Pelkey as owner. At the time of execution of this contract, each of these parties was married, and each had had her disabilities of coverture removed. The undisputed evidence shows the real estate involved was the community homestead of defendants. The evidence also shows Alice Herrington found a purchaser for the real estate and the sale was completed within the time specified in the contract. This sale included a second piece of property, but it was agreed that the real estate in question was sold for $27,000.00. The contract here sued upon showed the list price to be $28,000.00.

This contract also provides for payment of a 5% commission, however, both Alice Herrington and Alice Pelkey testified they had agreed orally that the commission would be $800.00. Each had a different version as to why this oral agreement was made. Alice Herrington testified that Alice Pelkey told her she was a licensed real estate broker, so they agreed on a reduced commission. Alice Pelkey testified that even though she formerly had such a license, she did not at the date of making this contract, and that she may have told Alice Herrington that she was in the real estate business but did not tell her she had a license. Alice Pelkey testified that the commission was reduced at the time the contract was signed because she told Alice Herrington she was losing money at the price listed. Alice Pelkey also testified that during the negotiations with the purchaser of the land, when the price of such land was reduced from $28,000.00 to $27,000.00, that she and Alice Herrington agreed that the commission would be $200.00, which she offered to pay. No findings of fact or conclusions of law were requested or made by the trial court, and none were included in the judgment.

One of the defenses pled and supported by the evidence was that the real estate involved was the community homestead of defendants and the contract sued upon was not signed by the husband, Louis Pelkey. Plaintiffs contend first that this contract is binding upon the parties because it was executed and not executory. It is argued that even though at the outset the contract may not have been subject to specific performance, once it was fully executed by Alice Herrington procuring a purchaser and the sale of the property being consummated, that the contract became binding upon Louis Pelkey and his wife, Alice Pelkey. We do not find any of the cases cited by plaintiffs as supporting this proposition of law. The case of Mason v. Abel, Tex.Civ.App., 215 S.W.2d 377 contains a statement that an optional defense available to the owner as against the purchaser is not an available defense to a suit by the broker against the owner. The defense available in the instant case, that the commission contract sued upon is not binding because it was executed bjr a married woman alone, is one existing between the broker and the owner. The case Scarborough v. Payne, Tex.Civ.App., 198 S.W.2d 917 merely holds that under Article 4614 Vernon’s Ann.Civ.St. a married woman was given sole management, control and disposition of her separate property and could make a valid enforceable contract to pay a commission to a broker to find a purchaser for her separate property. The case of Williams v. Doan, Tex.Civ.App., 209 S.W. 761 involved the same factual situation and holding. The case of Leyva v. Rodriguez, Tex.Civ.App., 195 S.W.2d 704 was one in which a husband signed a deed conveying a community homestead, although his name was not mentioned as a grantor, only his wife being named, and the conveyance was held to be valid. No broker’s contract was involved in the case, and the husband was not held to be bound by a contract executed solely by his wife. In Ryan v. Long, Tex.Civ.App., 183 S.W.2d 473, the husband signed the broker’s contract to sell the community homestead and was not joined by the wife. The husband was held to be liable upon the contract, even though, as the court stated, a contract of a married man to sell the homestead could not be enforced by specific performance. In Peters v. Coleman, Tex.Civ.App., 263 S.W.2d 639, a husband was held liable upon a broker’s contract to sell his wife’s separate property. This does not mean to us that the converse is true. At the time the contract sued upon was made, under the law of this state the husband was vested with the sole and exclusive right to manage the community estate, and Alice Pelkey had no authority under the law to execute a broker’s contract for the sale of the community homestead. The implied finding by the trial court that such contract was not binding upon the defendants, is upheld.

It is next contended by plaintiffs that defendants are liable under the broker’s contract by estoppel and ratification. The evidence shows Louis Pelkey was present when Alice Herrington and the purchasers of the land arrived at the Pelkey home on the first occasion, but that he left immediately, ,. Louis.Pelkey was not called to testify, and the only knowledge that he may have had about the transaction came from his wife. Alice Pelkey testified: that her husband did not know that she had originally signed a listing contract; that he knew Alice Herrington was helping her to sell the property; that he knew she was due $200.00 when they closed out the transaction. There is no evidence that Alice Pel-key represented to Alice Herrington that she was not married, or that the property was not a homestead, or that the property was her separate property. The evidence shows Alice Herrington knew Alice Pelkey was married, and also knew the husband did not sign the broker’s contract. The implied finding by the court that neither Alice Pelkey nor Louis Pelkey was guilty of any positive act of fraud or concealment which would have been the basis for estoppel, is supported by the evidence.

It is also contended that the broker’s contract is enforceable because Alice Pel-key had had her disabilities of coverture removed. Article 4626 V.A.C.S., as it existed at all times material to this cause of action, provided for the filing of a petition in the district court, a hearing and authority for an order to be entered declaring a married woman to be a feme sole for mercantile and trading purposes, and continued as follows:

and thereafter she may, in her own name, contract and be contracted with, sue and be sued, and all of her separate property not exempt from execution under the laws of Texas shall thereafter be subject to her debts and liable under execution therefor, and her contracts and obligations shall be binding on her.

No Texas cases are cited to this court by either party, passing upon this precise question. We have concluded that it was not the intention of the legislature, when this law was enacted, to take from the husband his sole and exclusive right to manage the community estate. We hold that the fact Alice Pelkey had her disabilities of coverture removed did not give her the authority under the law to enter into a binding broker’s contract to sell the community homestead.

Under the evidence already discussed, the implied finding by the trial court that Alice Pelkey was not either expressly nor impliedly authorized by Louis Pelkey to act as his agent in executing a broker’s contract with Alice Herrington, is upheld. The point is overruled.

The plaintiffs were not entitled under the law to recover either $800.00 or $200.00 as a commission for the sale of the property involved. The written agreement being unenforceable, plaintiffs are also precluded from recovering under an oral agreement. Under Article 6573a V.A.C.S. this broker’s contract was required to be in writing and signed by the party to be charged therewith or by some person authorized by him. This contract being required to be in writing, none of its essential elements could be supplied by parol. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150.

Affirmed.


author: McDONALD, Chief Justice.

text:
    Arthur S. RICHARDSON et ux., Appellants, v. Arthur Lee HENDERSON, Appellee.
    No. 4671.
    Court of Civil Appeals of Texas. Waco.
    Jan. 25, 1968.
    Rehearing Denied Feb. 29, 1968.
    Berman & Fichtner, Jay S. Fichtner, Dallas, for appellants.
    Touchstone, Bernays & Johnston, Porter Johnston, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff from a take-nothing judgment in an automobile collision case.

Plaintiff Richardson sued defendant Henderson for damages resulting from defendant’s negligence proximately causing a collision between plaintiff’s and defendant’s automobile at the corner of Colonial and Forest Streets in Dallas, Texas. Defendant answered by general denial and alleged plaintiff guilty of contributory negligence proximately causing the collision.

Trial was to a jury which, in answer to issues submitted, found:

1), 2) Defendant failed to keep a proper lookout, which was a proximate cause of the occurrence.
3), 4) Defendant failed to make proper application of his brakes, which was a proximate cause of the occurrence.
5), 6), 7) Defendant failed to stop his vehicle before entering the intersection; which was negligence; and a proximate cause of the occurrence.
8), 9), 10) Defendant failed to turn to the right immediately before the collision; which was negligence; and a proximate cause of the occurrence.
11), 12), 13) Defendant failed to yield the right-of-way to plaintiff; which was negligence; and a proximate cause of the occurrence.
14) Plaintiff did not fail to keep a proper lookout. “(In this connection, you are instructed that when a yellow light is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through the intersection or pass such signal only with caution).”
16) Plaintiff did not fail to make proper application of his brakes.
18) Plaintiff entered the intersection at a greater rate of speed than a person of ordinary prudence would have driven under the same or similar circumstances.
19) Such rate of speed was a proximate cause of the occurrence.
20), 21), 22) The damage issues were answered in a total amount of $2300.

The trial court entered judgment on the verdict that plaintiff take nothing.

Plaintiff appeals on 11 points, contending:

1) There was no evidence, or insufficient evidence, to support submission of Issues 18 and 19.
2) There is no evidence, or insufficient evidence, to sustain the answers to Issues 18 and 19; and such answers are against the great weight and preponderance of the evidence.
3) Issues 18 and 19 are “duplicitous and multifarious” of Issues 14 and 15, and the answers to same are in conflict with the answers to Issues 14, 15, 16, 17, 11, 12 and 13.

Plaintiff was traveling on Forest; defendant was traveling on Colonial. There is a signal light at the intersection of Forest and Colonial which gives an intermittent yellow or caution signal to traffic on Forest, and gives an intermittent red or stop signal to traffic on Colonial. The jury found that defendant failed to keep a proper lookout, failed to stop at the red light, failed to yield right-of-way to plaintiff, and that such were negligence and proximate causes of the collision.

The jury further found that plaintiff did not fail to keep a proper lookout; did not fail to make proper application of his brakes; and in Issues 18 and 19 found that he did enter the intersection at a greater rate of speed than a person of ordinary prudence would have done, and that such was a proximate cause of the collision.

Plaintiff’s 1st and 2nd contentions assert that Issues 18 and 19 were improperly submitted, and that there is no evidence, or insufficient evidence, to sustain the answers thereto.

Issue 18 found that plaintiff entered the intersection at a greater rate of speed than a person of ordinary prudence would have driven under the same or similar circumstances ; and Issue 19 found that such was a proximate cause of the collision.

The accident occurred at an intersection controlled by a flashing yellow light and a flashing red light. It was 6:00 A. M. in the morning and was dark, and plaintiff was approaching the flashing yellow light. Plaintiff did not violate the speed limit. The evidence varies as to plaintiff’s speed from 20 to 30 miles per hour. Plaintiff admitted that he did not attempt to slow down until he saw defendant’s car; and that he did not reduce speed as he came to the flashing yellow light.

We think the trial court properly submitted Issues 18 and 19, and that the evidence is ample to sustain the jury’s answers thereto, and that such answers are not against the great weight and preponderance of the evidence.

Plaintiff’s 3rd contention is that Issues 18 and 19 are “duplicitous and multifarious” of Issues 14 and 15; and are in conflict with the answers to Issues 11, 12, 13, 14, 15, 16 and 17.

Issues 18 and 19 inquired as to plaintiff’s speed. Issues 11, 12 and 13 inquired whether defendant failed to yield the right-of-way, and if such was negligence. Issues 14 and 15 inquired whether plaintiff failed to keep a proper lookout, and the instruction which accompanied such issues was that drivers who approach an intermittent yellow signal may proceed through the intersection only with caution. The jury found plaintiff did not fail to keep a proper lookout. Issues 16 and 17 found that plaintiff did not fail to make proper application of his brakes.

Speed, right-of-way, lookout, and application of brakes are all ultimate issues, each inquiring about an independent act of negligence. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, provides:

“To require a judgment entered on a verdict containing conflicting answers to be set aside, the conflict between the answers must be such that one answer would establish a cause of action or defense, while the other would destroy it.”

Under the facts of the case at bar, the defense established by the jufy’s answers to Issues 18 and 19, are not in conflict with, or destroyed by, the jury’s answers to Issues 11, 12, 13, 14 and 15.

All of plaintiff’s points and contentions are overruled.

Affirmed.


author: PHILLIPS, Chief Justice.

text:
    Mrs. Ella J. PURVIS et al., Appellants, v. MILLS COUNTY, Texas, Appellee.
    Nos. 11579, 11580.
    Court of Civil Appeals of Texas. Austin.
    Feb. 14, 1968.

      McMahon, Smart, Sprain, Wilson & Camp, Bob J. Surovik, Stephen H. Suttle, Abilene, for appellant.
    John T. Higgins, Lampasas, for appellee.
   PHILLIPS, Chief Justice.

These two cases have been consolidated on appeal as the facts are, for the most part, identical and they are governed by the same principles of law.

These suits were brought by the con-demnor, Mills County, for the purpose of taking a flood control easement over fifteen acres of Appellants’ land, which easement is to be a part of a flood control system to-be constructed on the Blanket Creek watershed pursuant to an agreement between the-United States Government and the Brown-Mills County Soil Conservation District.

The decision of the three special commissioners appointed by the County Judge was appealed to the County Court for Mills-County, who, in a trial to the court, awarded Appellants the sum of $183.58 as damages for the taking of the easement. It is from this judgment that Appellants have perfected their appeal to this Court.

We reverse the judgment of the trial court and the condemnation proceeding is-dismissed.

Appellants are before this Court-on three points of error, the first of which is that neither the special commissioners nor the County Court had jurisdiction over the controversy, the reason therefor being that the description of the land taken as set out in the petition for condemnation was so ambiguous and uncertain that, as a matter of law, it could not serve as a basis for jurisdiction.

We sustain this point.

The rule is well established that the description in any petition for condemnation must identify the land to be taken either on the face of the petition or by other writing referred to. If this is not done the jurisdiction of the tribunal having power to condemn never attaches. Wooten v. State, 142 Tex. 238, 177 S.W.2d 56 (1944). The designation must be sufficiently certain to identify the particular portion of the land which is taken, and the test of what constitutes a description adequate enough to confer jurisdiction on courts to render judgments of condemnation is the same as; that with consensual transfers in a deed. Miers v. Housing Authority of City of Dallas, 153 Tex. 236,266 S.W.2d 842 (1954). The description before us is as follows:

“ALL that certain tract or parcel of land out of the William Smith Survey, Mills County, Texas, being approximately 15 acres, more or less and being enclosed by a 36 acre tract out of such survey described by metes and bounds as follows:
BEGINNING at the Southwest corner of the said survey;
THENCE East 1,730 feet to a point on the South line of said Survey;
THENCE North 37-40 West 1,530 feet to a point;
THENCE North 88-40 West 250 feet to a point;
THENCE North 2-35 East 300 feet to a point;
THENCE South 46-15 West 790 feet to a point on the West line of said Survey;
THENCE South 970 feet to the place of beginning, and being the identical tract shown by plat affixed hereto marked ‘Exhibit A’ for purposes of identification, to which reference is here made for further descriptive purposes;”

There is nothing before us that specifically descibes where, within the thirty-six acre tract, the condemned 15 acres lies. No surveyor could go upon the land and measure the condemned 15 acres. No sheriff would be capable of executing a writ of possession on this land. The attached plat mentioned in the description as “Exhibit A” has a metes and bounds description of the larger tract diagramed thereon, leaving the portion taken still unidentified.

Consequently, the judgment of the trial court is reversed and the condemnation proceeding is dismissed.

Reversed and condemnation proceeding ■dismissed.


author: MASSEY, Chief Justice.

text:
    Mary Frances BUCKLER, Appellant, v. Jack Moore BUCKLER, Jr., et al., Appellees.
    No. 16863.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 29, 1967.
    Rehearing Denied Feb. 2, 1968.

      Lancaster Smith, and Harvey L. Davis, Dallas, for appellant.
    Cantey, Hanger, Gooch, Cravens & Scarborough, and R. Daniel Settle, Fort Worth, for Jack M. Buckler, Jr.
    Weeks, Bird, Cannon & Appleman, and Ben Bird, Fort Worth, for the Trustees of The Walker-Buckler Trust, and The Alice Walker Testamentary Trust.
   OPINION

MASSEY, Chief Justice.

This is a divorce case. The appeal attacks the court’s judgment as applied to the distribution of property.

Primarily, the question posed is whether the divorced wife is entitled to have considered as community property the undistributed income accumulated in what in substance constituted “spendthrift trusts” created in behalf of the divorced husband. In the findings set forth in the judgment the trial court made it clear that in connection with the distribution made of the property of the parties he was excluding the undistributed income from said trusts on the theory and by reason of a holding that such constituted no part of the community property.

If the law of Texas is as it was declared to be in the case of McClelland v. McClelland, 37 S.W. 350 (Tex.Civ.App., 1896, writ ref.) the trial court was correct in its holding. It was there held, in a divorce case presenting the identical question, that undistributed trust income was not community property where the trustee had the right to withhold it from the trust beneficiary because of provision to such effect in the trust instrument.

In 1896 the notation “writ refused” by the Supreme Court meant that said court approved the result reached by the Court of Civil Appeals of Texas but did not necessarily approve the opinion; or it might not even mean approval of the result reached where error was not preserved and presented to the Supreme Court. It is, however, inconceivable that the matter here under consideration was not made a point of error before the Supreme Court in that case.

The language appearing on page 358 of the opinion in the McClelland case is paraphrased in appellees’ brief to demonstrate the application of the holding to the parties to this suit as follows: “ * * If the income arising from the estate was not available to (Appellee Buckler) and could not be reached by him, the right of (Appellant) would be no greater than his, and she would not be allowed to work out and enjoy a right in his estate that was denied him. It is not the purpose and object of the statutes that create the community interest of husband and wife in property to prevent (Alice Walker) from making a disposition of (her) property either upon conditions and trusts which limit the right of (Appellee Buckler), or restrict his interest in (her estate) to a limited extent, and define what its character shall be. This is the right of (Alice Walker). The law did not impose upon (her) the duty of devising and bequeathing (her) property to (her grandson), and when (she) elected to do so (she) had the authority to determine what interest in (her) estate (Appellee Buckler) should enjoy; and, having defined this interest, (Appellant), by force of the community statutes, could not exceed and •extend it. * * * ’ ”

Here, as in McClelland v. McClelland, the terms and provisions of the trusts created in behalf of appellee Buckler so restricted and defined his rights and interests as to exclude his entitlement to undistributed income which the trustees had not seen fit to deliver to him.

Quoting from the brief of the appellant we find her position stated, as follows: “The court below based its judgment on the case of McClelland v. McClelland, 37 S.W. 350 (Court of Civil Appeals of Texas, 1896, error refused). It is submitted that this case has been indirectly overruled by Arnold v. Leonard (114 Tex. [535] 538, 273 S.W. 799, 1925) and the many cases following Arnold v. Leonard. The case at bar may be the first case since McClelland v. McClelland where an appellate court has a record directly presenting the question of the nature of income arising from the corpus of a discretionary trust in a divorce action. A probable reason for this is that in most divorce cases the division of the marital property is made within the concept of the judicial discretion of the trial judge.

“The reasoning in McClelland v. McClelland has been repudiated. The old Court of Civil Appeals of Texas held that even the income, created from the corpus of the trust during the marriage, and distributed by the trustees to the husband during marriage was not community property. At page 359 the court stated: ‘ * * * In this connection we will take occasion to say that the wife is not entitled to any interest in the amounts received by appellant McClelland from the executors, because these amounts were his separate property devised to him by the will, in which the wife had no community interest:’

“The court was incorrect in this conclusion. The only separate property devised to McClelland by the will was the corpus of the trust in which he received the vested beneficial interest. The income that arose from the trust corpus was not a devise because that income was not in existence at the time of the death of the settlor of the trust. There cannot be a gift or a devise of property that is not in existence. Chandler v. Alamo Manufacturing Company, 140 S.W.2d 918 (Tex.Civ.App.1950). The law is conclusively settled by many cases holding that income distributed by trustees to the married beneficiary is community property. Golden [Colden] v. Alexander, 141 Tex. 134, 171 S.W.2d 328 (1943).”

Arnold v. Leonard held that property acquired during marriage other than as the result of gift, devise or descent necessarily could not be part of the separate estate, in view of the Texas Constitution, and hence would have the character of community property. The decision does overrule a portion of the holding in McClelland, but it does not overrule the holding which is material to the question before us. As to such the Supreme Court, which disposed of the application for writ of error in McClelland by the notation “writ refused”, has not had occasion to reconsider the decision therein made. It is not the province of a Court of Civil Appeals to anticipate that the Supreme Court would, if afforded the opportunity, reverse itself as applied to a prior holding it has made. We are bound by the prior holdings of that court, specific or construable.

Remaining would be a single point of error. It reads as follows: “The trial court erred in awarding the diamond and platinum lady’s lapel and pendant watch to defendant Jack M. Buckler, Jr., because the uncontradicted evidence is that Jack M. Buckler, Jr., gave the watch to Mary Frances Buckler and therefore the watch became her separate property.”

We overrule the point of error. The division of the properties in divorce actions is lodged in the discretion of the trial court. Only a flagrant abuse of such discretion would warrant an appellate court in disturbing the judgment of the trial court. In the disposition of property the appellant received property valued at $26,199.89, plus $6,000.00 as attorneys’ fees, while appellee received property valued at $21,299.86.

We hold that there was no abuse of discretion on the part of the trial court in awarding the watch to the appellee in the distribution of property upon entry of the decree of divorce. Nothing about the watch held intrinsic value to appellant. Clearly its award to her would have resulted in corresponding value deduction of her portion of other property apportioned. All points of error are overruled and the judgment of the trial court affirmed.

Affirmed.


text:
    Vernon CALHOUN et al., Appellants, v. H. R. BURDEN et al., Appellees.
    No. 4660.
    Court of Civil Appeals of Texas. Waco.
    Jan. 25, 1968.
    Rehearing Denied Feb. 29, 1968.
    Lawrence & Lawrence, F. Lee Lawrence, Tyler, B. R. Reeves, Palestine, for appellants.
    Spruiell, Lowry, Potter, Lasater & Guinn, Charles F. Potter, Tyler, Moore & McCarty, Ennis, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendants Calhoun, et al from an order of the trial court overruling their pleas of privilege to be sued in Anderson County.

Plaintiffs Burden and Killion, owners of livestock auctions in Ennis and Jacksonville, sued E. L. Glaspy, Vernon Calhoun, Vernon Calhoun Packing Company, V. C. Cattle Company (all hereafter referred to as Calhoun), and Bob Jenkins, in Ellis County, on 2 drafts totaling $7,315.76, drawn by Glaspy on Calhoun to pay for cattle purchased by Glaspy from plaintiffs for defendants Calhoun, and delivered to defendants Calhoun by defendant Jenkins. Defendants Calhoun refused to pay the draft, although they received the cattle. Plaintiffs alleged Glaspy was agent of the Calhouns; and further alleged a conspiracy between all defendants to convert plaintiffs’ cattle, and conversion of plaintiff Burden’s cattle in Ellis County.

Defendant Glaspy is a resident of Ellis County; all the other defendants are residents of Anderson County. Defendants Calhoun and Jenkins filed their pleas of privilege to be sued in Anderson County. Plaintiffs controverted, asserting venue in Ellis County under Subdivisions 4 and 9 of Article 1995, Vernon’s Ann.Tex.Civ.St.

After hearing the trial court overruled such pleas of privilege. Defendants Calhoun and Jenkins appeal on 10 points, contending the trial court erred in overruling their pleas of privilege, and assert:

1) No joint cause of action was alleged against defendant Glaspy, as required by Subdivision 4.
2) There was no conversion of plaintiffs’ cattle in Ellis County, as required by Subdivision 9.

The record reflects defendant Glaspy purchased cattle from plaintiffs’ auctions on behalf of defendants Calhoun, and paid for same by drawing drafts on Calhoun. Calhoun received and kept the cattle but refused to pay the draft, contending Glaspy was not their agent, but a buyer on his own account who sold the cattle to Calhoun; that since Glaspy was due no money from Calhoun, the drafts were properly turned down. There is evidence that Glaspy was an agent of Calhoun; and the cattle were billed out to and delivered to Calhoun. Glaspy is a resident of Ellis County. Each sale was alleged to be a cash sale and that title did not pass because the drafts were not paid.

If a person acts as agent for his principal but actually is without authority, he is liable to third persons with whom he deals, based on an implied warranty of authority. Darr Eqpt. Co. v. Owens, Tex.Civ.App. (nwh), 408 S.W.2d 566. A cause of action was proved against defendant Glaspy. A cause of action was alleged against the other defendants.

Subdivision 4, Article 1995 provides:

“If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.” Under such exception, the plaintiff must prove a cause of action against the resident defendant; and alleges a joint cause of action against the resident and non-resident defendants, or a cause of action against the resident defendant so intimately connected with the cause of action alleged against the non-resident defendants that the two may be joined under the rule intended to avoid a multiplicity of suits. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302.

Here the suit alleged against the principal and agent are intimately connected; they are based on the same transaction; and joining them will avoid a multiplicity of suits. See: San Angelo Cotton Oil Co. v. Houston County Oil Mill & Mfg. Co., Tex.Civ.App. (nwh), 185 S.W. 887.

We think venue maintainable in Ellis County under both Subdivisions 4 and 9 of Article 1995. All defendants’ points and contentions are overruled. The judgment is correct.

Affirmed.


author: CHAPMAN, Justice.

text:
    REPUBLIC BANKERS LIFE INSURANCE CO., Appellant, v. Diana M. HUBBARD, Appellee.
    No. 7773.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 22, 1968.
    Shipp & Crooks and Stanley S. Crooks, Dallas, for appellant.
    Winston Brummett, Lubbock, for appellee.
   CHAPMAN, Justice.

This is a venue case.

Diana M. Hubbard sued Republic Bankers Life Insurance Co., a corporation domiciled in Dallas County, Texas upon a policy of insurance.

A plea of privilege was filed by the insurance company, alleging no exception existed to exclusive venue in the county of its residence. The plea was in due time controverted, alleging Sec. 28 of Art. 1995 as the exception to exclusive venue. After a hearing before the court the plea was overruled. The case is before us upon one point, which asserts that “ * * * necessary venue facts under Art. 1995, Sec. 28 were not pleaded nor proved by Mrs. Hubbard”.

We overrule the point.

Appellant’s argument both in its point and the body of its brief appears to be that appellee neither pleaded nor proved which category of insurance under Sec. 28 of Art. 1995 appellee’s case and the subject policy issued by appellant falls under.

“Venue facts are what must be proved to make applicable some exception to Art. 1995. They are defined and can be found only in the subdivision of that article which declares the exception.” National Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021.

By reference to provisions applicable here, Subdivision 28 provided: “Insurance. —* * * Suits on policies may be brought against any * * * health and accident * * * insurance company in the county * * * where loss has occurred or where the policyholder or beneficiary instituting such suit resides.”

The pleading upon which appellant went to trial alleged in effect that on or about August 23, 1964, in consideration of the payment of moneys in the nature of premiums, the insurance company issued a policy of insurance by the terms of which it obligated itself to pay to plaintiff a sum of money not exceeding $1,000.00 for any loss to her resulting from “accidental bodily injury or sickness”; that she resided in Lubbock County, Texas; that on or about April 1, 1966, she sustained accidental injuries requiring the services and attention of a doctor and facilities of the Methodist Hospital in Lubbock and for both of which charges were made totalling $777.50.

The copy of the insurance policy was introduced in evidence after due proof of the purchase of the policy and that all premiums had been paid to that date. The petition was made a part of the controverting affidavit and by reference it was incorporated therein in haec verba. The policy of insurance upon which the suit is based was attached to such affidavit and made an exhibit thereto. Additionally, the controverting plea affirmed that “ * * * by the terms of said policy of insurance [the company] did bind and obligate itself to pay unto plaintiff a sum of money not exceeding $1,000.00 for any loss to her resulting from accidental bodily injury or sickness”.

The attorney of record swore upon oath as part of the controverting plea that each and every statement, allegation and denial thereof is true and correct and the exhibit [naming the policy constituting such exhibit] is a true and correct copy of the policy of insurance theretofore issued by the company and upon which plaintiff’s suit is based. (All bracket designations herein are ours.)

We hold the use of the term “accidental bodily injury or sickness” is sufficient definition within the purview of Sec. 28, when taken in connection with the other part of the record, to constitute pleading that the policy sued upon is a health and accident policy. The petition and controverting affidavit also show the suit was upon an insurance policy, that appellee was the policyholder, and that the loss occurred in Lubbock County, her place of residence. Her oral testimony makes proof of the purchase of the policy named in the petition and controverting affidavit. The policy was introduced in evidence and it shows to be insurance against Accidental Bodily Injury or Sickness, a health and accident policy.

The Supreme Court in Jefferies v. Dunklin, 131 Tex. 289, 115 S.W.2d 391 said the controverting affidavit neither directly nor indirectly made the petition therein a part thereof and then held such plea must therefore be tested by its own allegations, thus indicating that if the petition in the affidavit had been made a part thereof by reference it would have constituted part of the controverting plea.

“Statements in a pleading may be adopted by reference * * * in another pleading”, Rule 58, Vernon’s Ann.Tex.Rules, but even tested by its own allegations the controverting affidavit appears sufficient. Accordingly, the judgment of the trial court is in all things affirmed.


author: JOHN A. BRESLIN, Special Commissioner.

text:
    K. E. STANSBURY et al., Appellants, v. A. E. SMITH and State Farm Fire and Casualty Insurance Company, Appellees.
    Court of Appeals of Kentucky.
    Feb. 23, 1968.
    Lohren F. Martin, Sutton & Martin, Corbin, for appellants.
    Robert L. Milby, Hamm, Taylor & Milby, London, for appellees.
   JOHN A. BRESLIN, Special Commissioner.

About the first week of May 1961, appellants K. E. Stansbury and Mildred Stansbury, purchased a building and its contents known as the Raleigh Motel. Previously a. policy of insurance covering, among other things, the hazard of fire had been issued to the prior owners of the motel by State Farm Fire and Casualty Insurance Company for the period of 24 August 1959 to and including 24 August 1964. On 10 August 1962, this policy of insurance was transferred and assigned to the Stansburys.

Raleigh Motel was a combination motel-dwelling, consisting of eight rental units, in addition to the dwelling unit of the operators.

For a period of time, the motel was operated by the Stansburys but about the 7th of September 1962 it was closed, due chiefly to the fact that lack of business had made it an unprofitable venture. Mrs. Stansbury went back to her old home in Illinois, some three months previous to the closing, and a few days before the closing, Mr. Stansbury also went to Illinois. Before departure, Mr. Stansbury left specific directions to a Mrs. Brown concerning the closing of the Motel. He told her to turn off and drain the water lines, turn off the utilities, and lock it up securely. After his departure, this was done, in September 1962 and no one continued to reside in the unit. No notice was given to appellees, or any of its representatives, of this closing or vacancy. On 1 December 1962, the Raleigh Motel, with its total contents, was consumed by fire. At the time of this fire, and total destruction, the Motel had been vacant for in excess of 80 days. (21 days in September, plus all of October and November)

The Stansburys had executed a note, secured by mortgage, to the appellee A. E. Smith. After the fire, and upon the Stans-burys’ refusal to satisfy the note, same was paid by State Farm Fire and Casualty Insurance Company under a loan receipt executed by Smith. By virtue of the provisions of the policy of insurance involved and according to the loan receipt, this action was brought in the name of Smith to recover from the Stansburys the face amount of the note with the interest due.

In time the issues were made up, following which the Stansburys moved and were granted permission to file a third party complaint whereby State Farm was made a third party defendant. The issues in that portion of the action were made up, proof taken, and all parties moved the court for a summary judgment. Judgment followed in favor of Smith against the Stansburys on the original action, granting him recovery under the note and also dismissing the third party complaint against State Farm. From that judgment this appeal followed.

In that the Stansburys did not brief the question of the right to proceed on behalf of Smith, so much of the judgment as allows recovery to Smith on his action is affirmed for failure to brief, and is considered as confessed. Hall v. Kolb, Ky., 374 S.W.2d 854; Smith v. Smith, Ky., 573 S.W.2d 424, decided February 23, 1968.

Concerned now is the question of the Stansburys’ cause of action against the State Farm on the fire policy. The policy involved contained the standard clause relating to vacancy and nonoccupancy. This provision of the fire insurance policy has been held to be valid by the court in prior decisions of great number. A few include Snyder v. Travelers’ Fire Ins. Co., 282 Ky. 555, 138 S.W.2d 1036; Continental Ins. Co. v. Dunning, 249 Ky. 234, 60 S.W.2d 577, and other cases. In view of the unquestioned fact that the premises insured had been unoccupied far in excess of 60 days at the time the fire occurred, we hold that this was a gross violation of the terms of the policy and defeats any recovery.

The policy of insurance in question also contained a provision requiring the action to be commenced within twelve (12) months next after the occurrence of a loss. The fire occurred on 1 December 1962; the action against appellee State Farm was commenced on 6 February 1964, which is a term exceeding 14 months.

It is therefore obvious that the action was not commenced within the time specified by the policy-contract, and is therefore barred. The contention of the appellants with reference to waiver and estop-pel cannot be upheld or supported; there is no evidence of any action on the part of State Farm which justifies any application of these unusual equitable devices, which really are designed to thwart fraud, and not arm’s length dealings. Further, these equitable remedies were not pleaded and are not available in any event. Bean v. Bevins, Ky., 287 S.W.2d 627.

The judgment is affirmed.

All concur.


author: STEINFELD, Judge.

text:
    Mona R. SMITH (now Cox), Appellant, v. Walter SMITH, Jr., Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1968.
    Robert L. Milby, Hamm, Taylor & Mil-by, London, for appellant.
    No appearance for appellee.
   STEINFELD, Judge.

Mona Smith sought an increase in the award of maintenance and support for the three minor children born of her marriage to Walter Smith, Jr. from whom she had been divorced. She also demanded a judgment for unpaid installments. Her attempt to obtain the increase was unsuccessful and she secured a judgment for only a part of the arrearage which she claimed. We reverse.

The appellant moved that the judgment be reversed because appellee failed to file a brief in this court. RCA 1.230, 1.-260(c). The penalties we may impose are set out in Cartwright v. Cartwright, Ky., 419 S.W.2d 576 (1967). We have determined to accept the appellant’s statement of facts as correct and to treat the failure of the appellee to file a brief as a confession of error, Pierson-Trapp Co. v. Knippenberg, Ky., 387 S.W.2d 587 (1965); Belcher v. Elkins, Ky., 347 S.W.2d 503 (1961) ; Stansbury v. Smith, Ky., 424 S.W.2d 571 (decided February 23, 1968).

Mona stated that the amount of the ar-rearage was $390.00 but the court entered judgment for only $300.00. Based upon the confession we direct that the order of June 1, 1967, be modified and that judgment be entered for $390.00 in full for back pay to that date, for the support and maintenance of the three minor children.

Mona alleged that not less than $150.00 per month was needed for the reasonable support and maintenance of the three children. Again treating the failure of appel-lee to file a brief in this court as a confession, we hold that $150.00 per month was the minimum amount which Walter should have been ordered to pay for the support of the three children. The order of June 1, 1967, should have directed Walter to pay to Mona the sum of $150.00 per month beginning June 1, 1967, for the support and maintenance of the minor children and ordered that said payments should be continued until and unless modified upon a proper showing. KRS 403.070; LeBus v. LeBus, Ky., 408 S.W.2d 200 (1966); Tucker v. Tucker, Ky., 398 S.W.2d 238 (1965); Ingram v. Ingram, Ky., 385 S.W.2d 69 (1964) ; Young v. Young, Ky., 340 S.W.2d 253 (1960). Also see 1 A.L.R.3d 393. Such future modification, if any, shall not affect any period prior to the date the mandate is issued in these proceedings.

Demand was made for the allowance to counsel for appellant of a reasonable attorney’s fee for the services he has rendered in these proceedings. We cannot consider the failure of the lower court to make such an allowance because counsel for appellant has not been made a party to this appeal. Jones v. Jones, Ky., 412 S.W.2d 868 (1967).

The judgment is reversed with directions to enter an order in conformity with this opinion.

All concur.