author: COLEMAN, Justice.

text:
    L. M. MANFORD et al., d/b/a Nixon Products Company, Appellants, v. KELLEY MANUFACTURING COMPANY, Inc., Appellee.
    No. 13805.
    Court of Civil Appeals of Texas. Houston.
    Sept. 28, 1961.
    Rehearing Denied Oct. 19, 1961.

      R. L. Miller, Gonzales, for appellants.
    Ross, Banks & May, Houston, R. B. Cron, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is an appeal from an order overruling a plea of privilege. The point to be decided is whether or not appellants agreed in writing to pay the account sued on in Houston, Texas. The case was tried to the court without a jury and no findings of fact or conclusions of law are included in the record.

To sustain venue in Harris County, Texas, appellee introduced into evidence certain invoices covering part of the account. There is testimony that other invoices were sent to appellants as deliveries were made. Only one of the invoices introduced into evidence bore a properly proven signature of one of the appellants. On all of the invoices was printed, “Accounts payable at Houston, Texas.” The first invoice was paid promptly. Other payments were made, but the account was never paid in full. There was testimony to the effect that there was a “verbal order” for merchandise; that when “this order was accepted and before these items were shipped,” there was a complete agreement as to what the order was to consist of and the approximate date of delivery. The maximum price per unit was agreed on and appellants were to pay the cost of the special dies required in the manufacturing process. Appellants agreed to make payment for the merchandise on appellee’s “usual terms and conditions of sale.” There were to be some changes made which might affect the unit prices submitted in writing and the prices quoted in the invoices were not identical with the previously quoted prices. The invoices were sent with each shipment and were signed after the merchandise was delivered.

The testimony supports the implied finding of the court that the contract was oral in part and written in part. The price per unit was not agreed upon in the oral negotiations. The price quotations were later submitted in writing. It was the understanding of the parties that the quotations were máximums. The actual prices appeared only in the invoices. The usual terms and conditions of sale appeared only in the invoices and one of the conditions was that the account was payable in Houston, Texas. The invoice signed by appellant merely reduced to writing part of the previous oral agreement.

The signed invoice by the terms of which appellant agreed to make payment in Houston, Texas, constituted part of the contract between the parties. By reason of this instrument appellants have “contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing,” as required by Subdivision •5 of Article 1995, Vernon’s Annotated Civ. Statutes of Texas. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825; Berry v. Pierce Petroleum Corporation, Tex.Com.App., 120 Tex. 452, 39 S.W.2d 824, opinion adopted; Dowdell v. Ginsberg, Tex. Civ.App., 244 S.W.2d 265; Vinson v. Horton, Tex.Civ.App., 207 S.W.2d 432.

The judgment is affirmed.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    COMBINED AMERICAN INSURANCE COMPANY, Appellant, v. Mrs. Cordie GANZER, Appellee.
    No. 3899.
    Court of Civil Appeals of Texas. Waco.
    Oct. 5, 1961.
    Brundidge, Fountain, Elliott & Bateman, Dallas, for appellant.
    Bradley & Geren, Groesbeck, for appellee.
   WILSON, Justice.

Appellee, as beneficiary, sued appellant for recovery under policies insuring against death of appellee’s husband, as insured, occurring while he was “actually driving or riding in any automobile, bus, trolley-bus, taxicab or truck.” Appellee pleaded insured lost his life “while riding on a truck, and under the terms of each of said policies” she was entitled to recover. In a non-jury trial appellee recovered judgment.

Appellant says the court erred in determining that the vehicle on which insured met his death was a “truck” under the policies, which do not define the word. The vehicle consists of an under frame and flat bed mounted on two front, and four rear rubber-tired wheels. It is self-propelled by an automotive engine, the driver being seated in a front cab. A large crane, with a separate cab for the crane operator, is permanently mounted on the rear of the frame. The crane consists of a boom and jib approximately 180 feet in length with clutches, windlass and tackle for lifting and lowering heavy loads. It is designed for highway travel, and is described by its manufacturer as a “mobile truck-crane.”

The term “truck”, when qualified by the language, “driving or riding in”, in our opinion, is a word of ordinary meaning. In Texas, at least, we think the term “automobile”, which generally means a wheeled vehicle propelled by its own motor for the transportation of persons or property on a street or roadway, includes “truck.” Nichols v. State, 156 Tex.Cr.R. 364, 242 S.W.2d 396. The word “truck”, it has been said, is “now applied generally to wheeled vehicles used in carrying heavy loads.” Montgomery v. State, 140 Tex.Cr.R. 81, 143 S.W.2d 945; Harrison v. State, 151 Tex. Cr.R. 606, 210 S.W.2d 591, 592; 42A Words and Phrases, pp. 249-251; 89 C.J.S. Truck p. 693. Appellant introduced in evidence the definition of the word from Webster’s New Int. Dict., G & C Merriam Co., (1946), which included “any of numerous vehicles for transporting heavy articles”; any strong heavy cart or wagon, horse-drawn or self-propelled, for heavy hauling”; and a “large automotive vehicle for freight transportation.” Although the policy uses both terms, appellant does not seek to differentiate “automobile” and “truck”.

Absent the crane mounted on the vehicle in question there is no doubt the latter was a truck. The additional machinery did not transform it to something different, under the policy, and the trial court properly determined it was within the provision. Western Reserve Life Ins. Co. v. Meadows, 152 Tex. 559, 261 S.W.2d 554, 557, 560; General American Ind. Co. v. Pepper, Tex. Sup., 339 S.W.2d 660, 661; Davis v. National Cas. Co., 142 Tex. 29, 175 S.W.2d 957, 960.

Appellant insists there is no evidence “insured died or was injured on” the truck, or as to exactly how and where he met his death. It was stipulated he was electrocuted. The conveyance was being driven by a driver seated in its cab. Insured had instructed the driver, “never get out if you hit a highline, because when you get out of the cab and hit the ground it’ll hit you.” Deceased was in the rear crane cab, and by prearranged signals he sounded a horn which, the driver testified, directed the truck driver “to back up and go forward, go forward and back up, and then he gave me a distress signal, and when he did I quit the cab not knowing he was in the high-line.” When the driver stepped to the ground from the cab he was “knocked out”. The last time he saw deceased before stepping to the ground the latter was in the crane cab. When the driver regained consciousness, the dragline was in contact with an electric highline, and the body of insured was on the truck frame “right outside the cab door”, not touching the ground. The point is overruled. Cf. Standard Life & Acc. Ins. Co. v. Hardee, Tex.Civ.App., 330 S.W.2d 544, writ ref., n. r. e.; Dorsey v. Fidelity Union Cas. Co., Tex.Civ.App., 52 S.W.2d 775; Provident Life & Acc. Ins. Co. v. Nitsch, 5 Cir., 123 F.2d 600, 138 A.L. R. 399. Affirmed.


author: CHADICK, Chief Justice.

text:
    Roy SIMMONS, Appellant, v. DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 7320.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 3, 1961.

      Jerry Lasteliclc, Daugherty, Bruner, Kelsoe & Thorp, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., John J. Orvis, Asst. Dist. Atty., Dallas, for appellee.
   CHADICK, Chief Justice.

This is an action authorized by Article 6687b Vernon’s Ann.Texas Civ.St. Summary judgment was entered by a county court of Dallas County suspending the driving privileges of appellant, Roy Simmons, for a period of twelve months. The judgment is affirmed.

It is asserted in support of appellant’s three points of error that this cause of action in county court was an appeal from an administrative decision, and as such the court was limited to an ascertainment of whether or not the decision was supported by substantial evidence. The argument is then advanced that the question of substantial evidence to support the administrative decision could only be determined after a trial at which both parties had an opportunity to tender evidence. Though not expressed in so many words, the appellant’s basic theory is that the summary procedure authorized by Rule 166-A is not applicable to the case.

The following cases have held the summary procedure appropriate in an action of this kind: Wood v. Texas Department of Public Safety, Tex.Civ.App., 311 S.W.2d 274; Whittington v. Texas Department of Public Safety, Tex.Civ.App., 342 S.W.2d 374; McPeak v. Department of Public Safety, Tex.Civ.App., 346 S.W.2d 138; Cooley v. Texas Department of Public Safety, Tex.Civ.App., 348 S.W.2d 267. It is to be noted that Sec. 22(c) of Art. 6687b provides that actions of this nature shall be tried under the rules governing other civil suits.

The appellant next presents a theory that Sec. 22(c), Art. 6687b is void. His hypothesis assumes the substantial evidence rule must apply in the county court in review of a driver’s license suspension. He cites Texas Department of Public Safety v. Azar, Tex.Civ.App., 274 S.W.2d 911, and Texas Department of Public Safety v. Pryor, Tex.Civ.App., 321 S.W.2d 99. Then supposing such rule has been applied in this case, he asserts that its application ipso facto renders Sec. 22(c) null and void because of this language in the cited article: “ * * * Under no circumstances shall the substantial evidence rule as interpreted and applied by the courts of Texas in other cases ever be used or applied to appeals prosecuted under the provisions of this Act. * * * If this subsection (c), or any part thereof, is for any reason ever held by any court to be invalid, unconstitutional or inoperative in any way, such holding shall apply to this Amendatory Act, and in such event this Amendatory Act shall be null, void and of no force and effect.”

It is not necessary in this case to decide the question presented, as the record shows no resort to or application of the substantial evidence rule. For similar disposition of this legal issue see McPeak v. Texas Department of Public Safety, Tex. Civ.App., 346 S.W.2d 138 at page 140.

The affidavit filed in support of the summary judgment motion has not been questioned except by the view expressed in oral argument that the offenses named in the notices of conviction were not necessarily moving traffic violations; particularly the offense designated “traffic light.”. It must be conceded that an offense growing out of the failure to observe traffic light signals can be committed by a pedestrian with no movement of a vehicle occurring. However, here the affidavit states the offenses shown in the notices were moving traffic violations. Failure to controvert this sworn testimony in a manner recognized by Rule 166-A forestalls legitimate complaint at this time.

The record, as it is understood, leaves this court no choice but to affirm the judgment of the trial court. It is so ordered.


author: MURRAY, Chief Justice.

text:
    RAILWAY EXPRESS AGENCY, INC., Appellant, v. F. A. BENNETT, Appellee.
    No. 13814.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 13, 1961.
    Rehearing Denied Oct. 18, 1961.
    Wm. H. Russell, Trueheart, McMillan, Russell & Westbrook, San Antonio, for appellant.
    Dan C. Crow, San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by F. A. Bennett against Railway Express Agency, Inc., to recover the value of a footlocker containing clothes alleged to be of the value of $695.55, which was lost by the defendant from a shipment of three packages being sent from San Antonio, Texas, to Oxnard,' California. The trial was to the court without the intervention of a jury and resulted in judgment in favor of plaintiff in the sum of $615.25, from which judgment Railway Express Agency, Inc., has prosecuted this appeal.

No findings of fact or conclusions of law were requested or filed. The appellant presents the following point of error:

“The court erred in rendering judgment for appellee for $615.25, because the only evidence before the court as to value was the market value of secondhand clothes, the only one new item being a dress which cost $39.75, and market value is not the correct measure of damage for secondhand clothes, and there is no competent evidence of the contents of the box.”

The evidence shows that on or about July 9, 1958, appellee sent to his daughter, Joan Fisher, and his son-in-law, Joe Bob Fisher, three parcels, two cardboard cartons and one large footlocker, addressed to them at 133 Oxnard Avenue, Oxnard, California. The two cartons were received, but the footlocker was lost and never delivered to the Fishers.

On August 26, 1958, appellee furnished appellant a list of all the articles of clothing that were in the lost footlocker. On November 8, 1959, Mr. and Mrs. Fisher assigned to appellee any claim they had in the merchandise contained in the footlocker, and thereafter appellee instituted this suit. He testified that the list furnished appellant was a correct list of the merchandise contained in the footlocker; that he and his wife packed the locker. Mrs. Fisher testified that she packed the locker before she left San Antonio and her mother and father simply repacked it before it was sent. Appellee was asked, “Of your own, personal knowledge, were those items in the foot locker that was missing?” to which he answered, “Well, I would say to the best of my knowledge and '.belief they were in there. That’s about as best as I can do, because I packed most of this stuff myself before it was shipped. * * * I am testifying to the best of my knowledge and belief of what was in there in 1958; * * The fact that appellee limited his testimony as being to the best of his knowledge and belief could go only to the weight to be given such testimony. The trial court saw fit to give weight to his testimony and render judgment in ap-pellee’s favor.

Milton Bennett, brother of appellee, qualified as knowing the cost price of the goods in San Antonio, and testified as to the cost price of the clothing. He admitted that clothing once worn would depreciate in value. Mrs. Fisher testified that the goods would have been worth more to her than the amount alleged, $695.55. This included her husband’s clothes that were in the locker.

The measure of damages for the loss of wearing apparel is the reasonable value of the same to the owner thereof. In 11 Tex.Jur.2d, p. 297, § 517, we find the following:

“Used goods are ordinarily regarded as having no fixed or recognized market value. The ordinary measure of damages for the loss of secondhand goods is their actual or reasonable value to the owner, that is, the actual loss in money the owner would sustain by being deprived of articles so specially adapted to the use of himself and his family. The measure is not any fanciful price he might place on the articles and is not the price at which they could be sold.”

There was some evidence to support the finding of the trial court that the locker and its contents were of the value of $615.25.

Where a cause is tried before the court without a jury and no findings of fact or conclusions of law are requested or made, as was the case here, on appeal, this Court will assume that the trial court’s implied findings support its judgment, and the judgment must be affirmed if there is any evidence of probative force to support it upon any theory authorized by law. Gomez v. Riddle, Tex.Civ.App., 334 S.W. 2d 197; Jones v. Alvin State Bank, Tex. Civ.App., 332 S.W.2d 124; Coker v. Harris, Tex.Civ.App., 281 S.W.2d 100.

Appellant’s point of error is overruled and the judgment affirmed.


author: McNEILL, Justice.

text:
    ARCHIE LACY TRUCK LINES, Appellant, v. Anson D. SMITH, Appellee.
    No. 6486.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 28, 1961.
    Rehearing Denied Oct. 25, 1961.
    Bryan & Patton, Houston, for appellant.
    Alvin E. Wiggins, Daylee Wiggins, Beaumont, for appellee.
   McNEILL, Justice.

This is an appeal by Archie Lacy Truck Lines from an order of the district court ■of Hardin County overruling its plea of privilege to be sued in Harris County. Appellee instituted the suit to recover damages for personal injuries sustained by him on April 14, 1960, while helping unload pipe from a truck on a pipe line right of way. It was alleged that at the time appel-lee was an employee of Mallard & Mallard, a company building the pipe line; that pipe was caused to fall upon appellee from the truck; that the accident took place in Hardin County and was the result of negligence of appellant’s truck driver. Appellee controverted the plea of privilege, asserting his right to maintain suit in Hardin County by virtue of Sec. 9a, Art. 1995, Vernon’s Ann.T ex.Civ.Stats.

Supported by six points, appellant -contends that the trial court erred in overruling its plea. The first, because there was no evidence to prove that the accident happened in Hardin County. While the proof is not the clearest, we think there was evidence to sustain the implied finding that the accident happened in Hardin County. We quote the following excerpts from appellee’s testimony:

“Q. And what were you employed to do for Mallard & Mallard Construction? A. We were laying a pipe line.
“Q. Where were you laying a pipe line? A. Right out of Village Mills here in Hardin County.”
⅛ ⅝ ‡ $ $ $
“Q. (By Mr. Wiggins) How far out of Village Mills were you working, Mr. Smith? A. I’d say about three or four miles out of Village Mills.
“Q. Toward what direction? A. That, I couldn’t say.
“Q. Was it East, West, North, or South of Village Mills? A. Well now, I couldn’t say; all I know, we turned right out of Village Mills.”

Appellee testified that he went about three miles to a big oil field. The evidence indicates Village Mills is sometimes called Long Station. W. L. Selman, appellee’s witness, testified that, “if you turn off to the right at Long Station you would go toward Brooks Field, and that direction would throw you East and you would have stayed on within Hardin County until you crossed the Farm-Market Road going north that leads out of the town of Village Mills and you could have gone if you crossed that and went approximately a mile and a half north of the paved road, Farm-Market Road that crosses the Beech Creek and connects with the Silsbee and Spurger Highway you can get into Tyler County by getting over on that.” “Q. But if you turn off to the right on the road we are speaking of there at Long Station — My question was if you turned to your right on any of those roads at that location, would you still be in Hardin County. A. If you traveled due east you would. Q. If you turned to your right? A. Yes, sir, if you turned to your right you are traveling east.” Mr. Selman said if he passed Brooks oil field and went a mile and a half North one could get into Tyler County. Since ap-pellee stated he went three or four miles out of Village Mills and it was three miles to the oil field he would have to travel another mile and a half before he could get into Tyler County.

The second point urges there was no evidence to prove that there was any negligence on the part of defendant, and the third point is that there was insufficient evidence of such negligence. The facts show that the Archie Lacy Truck Lines’ truck, operated by its driver, was loaded with large pipe and that it was being driven along the pipe line right of way as the sections of pipe were unloaded. It took three men, employees of Mallard & Mallard, to unload the pipe, one joint at a time, so that as each joint was unloaded, the Mallard & Mallard foreman in charge of unloading would have the truck pull forward a sufficient length for another joint to be rolled off. There was one employee at each end of the pipe and appellee was working in the middle. There was no actual bed on the truck. The testimony showed that the pipe line right of way was relatively smooth and that the ground had been “bladed off” by a bulldozer. A short time before the accident happened there was some discussion between the truck driver and the Mallard & Mallard foreman about pulling the pins from the side of the truck so that the pipe could be moved off the truck easier. Appellee stated that while he could not swear to it, he believed the truck driver pulled the front pin. At any rate, the pins were pulled and appellee testified that then the truck “was supposed to be moved real easy and slow”, but the driver jerked the truck and caused several pipe to roll down and off the truck onto appellee before he could get out of the way. No one told the driver how to operate the truck but the Mallard & Mallard foreman told him where to go — he would tell the driver how far to pull up and place his truck so that the pipe could be unloaded at the right location. We think these circumstances dictated caution on the part of the driver in handling the truck.

The fourth point relied upon by appellant is that there was no evidence to prove the driver of the truck was the agent or servant of appellant, acting within the scope of his employment at the time of any alleged injury; and the fifth point is like it, that the evidence in such respect was insufficient. At noon before the accident happened that afternoon, appellee ate lunch with the truck driver and the truck driver then told appellee that he was employed by the Archie Lacy Truck Lines. This evidence was admitted over appellant’s objection that agency may not be so established. The declaration of a person that he is the agent of another is ordinarily inadmissible to prove agency; but it may be admitted in corroboration of other evidence of agency. Cook v. Hamer, 158 Tex. 164, 309 S.W.2d 54. Such other evidence should be sufficient, prima facie, to show the fact of agency or employment. McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442. The other evidence admitted showing the truck driver was in the employment of appellant was the sign on the truck itself. Appellee testified the sign said, “Archie Lacy Trucking Company.” Is the fact that the name of the truck line on the truck itself as it was driven along unloading the pipe sufficient, prima facie, to prove that its driver was an employee of the named company and in the scope of his employment? In the absence of any proof to the contrary, we hold it is sufficient. Younger Bros. v. Power, Tex.Civ.App., 92 S.W.2d 1147; Strickland Transportation Co. v. Carmona, Tex.Civ.App., 303 S.W.2d 851. The fact that the name of defendant was “Archie Lacy Truck Lines” though ap-pellee stated the name on the side of the truck to be “Archie Lacy Trucking Company” was, we think in the circumstances, an immaterial variance. 9B Blashfield’s Cyclopedia of Auto. Law & Practice, Sec. 6056, p. 525.

In its sixth point appellant says even though the evidence justifies the court’s implied finding that the driver was in its general employment, it does not follow that the driver was under its control at the very time of the accident, but occupied the position of a loaned servant. It supports this proposition with Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94. The facts show that no one told the driver how to operate the truck itself, but he was told by the foreman on the right of way where to place the truck so that each joint of pipe could be unloaded at the right location. If the Hilgenberg case is decisive, it must be determined which employer had the right of control over the driver in respect to the particular act from which the injury arose. Whether the truck driver was subject to the direction and control of the foreman in respect to the method in which he drove the truck is not clear from the evidence. No such control was attempted. In view of the fact that as an employee of the truck line it was his duty to unload or see that the pipe was unloaded, the implied finding of the court that he was acting for the truck line was justified. Whether the unloading was done joint by joint, strung along a pipe line right of way or whether the pipe was all unloaded at the same point does not necessarily change the relationship. This does not appear to be a case of the truck and its driver having been loaned to another contractor. Rather it appears to be a case where part of the work was being done by the trucking company and part by the pipe line construction company. Long v. Metcalf, Tex.Civ.App., 134 S.W.2d 485 (488).

The judgment of the trial court is affirmed.


text:
    Monroe CRAWFORD, Appellant, v. CONSOLIDATED UNDERWRITERS, Appellee.
    No. 6412.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 21, 1961.
    Rehearing Denied Oct. 11, 1961.
    See also 323 S.W.2d 657.
    McDaniel, Hunt & Fairchild, Center, for appellant.
    Ramey, Brels ford, Hull & Flock, Tyler, for appellee.
   McNEILL, Justice.

Suit by appellant Crawford to recover Workmen’s Compensation benefits for total and permanent disability sustained by him on September 5, 1955, while working for Anderson Mfg. Company in Shelby County, Texas. After completion of testimony the jury found in answer to special issues submitted that appellant was injured on September 5, 1955; that the injury resulted in the appellant sustaining 25% partial disability with said partial disability beginning January 1, 1960 and continuing for a period of 530 weeks. Upon return of the verdict, appellant filed a motion for judgment at $6.30 a week for 300 weeks beginning January 1, 1960. The court denied appellant’s motion for judgment based upon 300 weeks and rendered judgment for 176 weeks compensation, beginning January 1, 1960. From the court’s action in denying appellant’s motion this appeal is perfected.

The sole question for decision is whether . appellant’s recovery, since it was for partial incapacity only, is limited to a period not to exceed 401 weeks from date of his injury under the last clause of Sec. 11, Art. 8306, Vernon’s Ann.Tex.Civ.St. This section reads:

“Sec. 11. While the incapacity for work resulting from the injury is partial, the association shall pay the injured employee a weekly compensation equal to sixty per cent (60%) of the difference between his average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity, but in no case more than Twenty-five Dollars ($25) per week. The period covered by such compensation shall be in no case greater than three hundred (300) weeks; provided that in no case shall the period of compensation for total and partial incapacity exceed four hundred and one (401) weeks from date of injury.”

Appellant argues that the 401 weeks limitation in this section is applicable only in cases involving both total and partial incapacity. He refers us to the same section in the original 1913 Act which contained no limitation on recovery of partial disability other than “to be in no case greater than three hundred weeks.” He calls attention also to Sec. 10, providing for total incapacity, of this early Act which was without limitation except no recovery could be had “greater than four hundred weeks.” (For easy examination of Secs. 10, 11 and 12, 1913 Act, see Texas Employers’ Ins. Ass’n v. Moreno, Tex.Com.App., 277 S.W. 86). And appellant reasons that since Sec. 10 was amended in 1917 so that recovery for total incapacity could “ * * * in no case * * * be greater than four hundred and one (401) weeks from the date of the injury” and the legislature having failed to add a similar clause specifically applying only to recovery for partial incapacity in Sec. 11 but added thereto the clause: “ * * * provided that in no case shall the period of compensation for total and partial incapacity exceed four hundred and one (401) weeks from the date of injury,” this limits recovery in cases only establishing both total and partial incapacity, so that in cases where only partial incapacity is found the limitation upon recovery of both total and partial does not apply. Though this argument is not without force, we think it restricts the overall intention of the legislature. It was no doubt seen after the original enactment of the Workmen’s Compensation law that some restriction of time over which recovery of disability could be had should be set. Could it have been intended in amending the act that a limitation of time should be placed upon recovery of total incapacity and none upon partial ? Would the legislature have desired to restrict a workman’s recovery for the more serious total disability since it happens to run over a period beyond 401 weeks from date of his injury, but allow him to recover partial disability although it may start 401 weeks after his injury ? Would it have prohibited him from recovering for total incapacity, the more valuable right at a time when he was unable to work, and left him the lesser right when he was able to work to some extent ? We cannot ascribe such intention to the legislature.

In addition to his argument, of which the above is a fair summary, appellant relies on two cases, Texas Employers’ Ins. Ass’n v. Reed, Tex.Civ.App., 150 S.W.2d 858, and Associated Employers Lloyds v. Grissom, Tex.Civ.App., 291 S.W.2d 756. Neither are in point for in both the 300 weeks recovered for partial incapacity were well within the 401 week limit. The court in the Reed case referred to the last clause of Sec. 11 and stated (150 S.W.2d at page 864) : “The recovery in the instant case does not violate the latter provision” thereby recognizing that the recovery should be measured by this clause.

Indemnity Ins. Co. of North America v. Williams, 129 Tex. 51, 99 S.W.2d 905 (Tex. Com.App., opinion adopted) cited by appel-lee, supports our conclusion — in fact would impel it. In this case Williams sustained an injury to his right hand and left eye on July 17, 1925 and became incapacitated therefrom on February 28, 1931. We quote from the case: (99 S.W.2d at page 907)

“The trial court gave judgment in favor of Williams for compensation, in a lump sum, for the period of 325 weeks after February 28, 1931, * * * the compensation so awarded is that which is provided for a specific injury in section 12 of article 8306 in the following words: ‘For the loss of an eye and a hand, sixty per cent of the average weekly wages during a period of three hundred and twenty-five weeks.’ * * * Such being the case, the trial court’s judgment, even if it were not otherwise erroneous, would be erroneous for the reason that same allows compensation for the partial incapacity extending beyond the end of the period of 401 weeks from the date of the injury. In section 11 of article 8306, it is provided, among other things, as follows : ‘Provided that in no case shall the period of compensation for total and partial incapacity exceed four hundred and one weeks from the date of injury.’ This provision comprehends every state of partial incapacity which results from an injury sustained by the employee in the course of his employment.”

The last sentence quoted referring to the 401 weeks limitation states, “This provision comprehends every state of partial incapacity which results from an injury * * In that case the partial incapacity was under Sec. 12, the specific injury section, of the Act, and recovery was allowed for the loss of an eye and a hand. This section provides for a specific, definite 325 weeks compensation for such loss. Even so, the Supreme Court held that the last clause in Sec. 11 providing that in no case shall the period of compensation for total and partial incapacity exceed 401 weeks from date of injury applied and limited Williams’ recovery to a time not exceeding 401 weeks from date of his injury. There would have been far more justification to have allowed Williams a recovery for 325 weeks, as that number of weeks was specifically set out under Sec. 12, than to allow appellant partial disability of a general nature, since the specific number of weeks compensation therefor are not distinctly spelled out. If. the last clause of Sec. 11 controls recovery in the specific injury section — Sec. 12 — we can see no reason for holding that such clause does not control the partial incapacity found in the same section with it.

The trial court’s judgment is affirmed.


author: GRISSOM, Chief Justice.

text:
    Duane H. McDONALD, Appellant, v. DEBCO CORPORATION OF TEXAS, Appellee.
    No. 3651.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 22, 1961.

      Donald J. Metcalfe, Dallas, for appellant.
    Jack K. Currey, Abilene, for appellee.
   GRISSOM, Chief Justice.

This is an appeal by Duane H. McDonald from an order refusing to grant an injunction against Debco Corporation of Texas. McDonald sued said corporation for damages for breach of a contract. He alleged that in September, 1960, they had a verbal contract that defendant would deliver to him gasoline products having a certain octane rating; that immediately following commencement of deliveries it was agreed that said rating should be increased to .88; that defendant extended to' McDonald a $20,000 open credit so that he might fulfill said agreement and McDonald executed a deed of trust upon real estate in Colorado to secure its payment; that, “immediately following the initial deliveries” McDonald learned that the products delivered were of inferior quality and contained a noxious odor; that he complained to defendant’s agents but was unable to obtain a price adjustment; that, on October 5, 1960, said $20,000 credit was exhausted and McDonald was placed on an open account basis and payments were agreed to be made on receipt of invoices for the products delivered; that, while operating on such basis, plaintiff paid defendant $55,000 for oil products, although he continued to receive an inferior quality; that in December, 1960, defendant was late with its deliveries, causing McDonald’s underground storage tanks to become practically empty and heavy rains flooded the tanks out of the ground and plaintiff was required to close said stations until repairs could be made and the tanks filled; that in December, 1960, McDonald agreed that for each delivery made he would pay an equal amount of money on his past-due account, “created by the delivery of' inferior products”, and he executed checks therefor to defendant which were not paid because the products were inferior. He prayed for $675,000 damages and sought to enjoin defendant from attempting to collect the checks and note or to foreclose its deed of trust lien. The defendant excepted to said petition and denied all of plaintiff’s allegations. Thereafter, McDonald filed a supplemental petition in which he alleged that, subsequent to the filing of his petition, the defendant had filed a motion in a' Colorado Court to have the public trustee sell the Colorado realty and that such a sale would prejudice his rights, because said property secured a “purported” indebtedness which is a necessary part of plaintiff’s case, and would cause irreparable damage, and, unless enjoined, ■ defendant would harass plaintiff by trying to collect said debts and foreclose said lien. Plaintiff’s petition was verified. A restraining order was entered. Thereafter, Debco filed a motion to dissolve it and an answer to plaintiff’s petition for a temporary injunction. The answer was verified. Defendant specially denied that the value of the Colorado property was in excess of $20,000, the amount of plaintiff’s note; that its motion to sell the Colorado property was an attempt to dispose of same to the prejudice of plaintiff, or that a sale would prejudice plaintiff’s rights in this case. It denied that said indebtedness is a necessary or integral part of plaintiff’s cause of action, or that a sale would cause irreparable injury. Defendant denied that the products delivered were of inferior quality and alleged that plaintiff had an adequate remedy at law. Defendant alleged that plaintiff had not alleged ■ and could not allege specific facts which showed plaintiff was entitled to an injunction, or that irreparable injury would result from a sale of said realty or from an attempt to collect said note and checks. Defendant alleged that no immediate or irreparable injury could be shown as the probable result of a sale of the Colorado realty under its deed of trust because the law of Colorado provides a redemption period of six months after such a sale. Defendant alleged that plaintiff had an adequate remedy at law, to-wit, his suit for damages; •ffiat, so far as said $20,000 note was concerned, plaintiff had by its execution obtained from defendant $20,000 worth of oil products, accepted delivery therof, sold same and appropriated the money to his own use and refused to pay said note; that, so far as the checks are concerned, plaintiff obtained deliveries of gasoline upon his representation that he would pay such amounts; that plaintiff accepted such products, sold same and appropriated the money to his own use, and refused to pay the checks issued in payment therefor. Wherefore, defendant prayed that the restraining order be dissolved and an injunction denied. Said motion was granted. From an order refusing a temporary injunction McDonald has appealed.

Appellant contends that such refusal constitutes an abuse of discretion as a matter of law.

There is neither a statement of facts, nor finding of facts, in the record. There are no bills of exception. Appellant says that no evidence was heard and that judgment was rendered on the pleadings alone. Appellee disagrees with this statement. Appellee contends that because the judgment recites that the court heard evidence and this court cannot know what that evidence was we cannot determine whether the court abused its discretion in denying a temporary injunction. The judgment recites that all parties appeared and the court, having considered "the pleadings, the evidence, and the argument of counsel, and it appearing that plaintiff is not entitled to a temporary injunction * * * ”, etc. As shown, the judgment recites that the court heard evidence. Such recital cannot be contradicted by appellant’s brief. We are required to presume that evidence was introduced which supports the judgment refusing to grant a temporary injunction. In Harding v. W. L. Pearson & Co., Tex.Com.App., 48 S.W.2d 964, 966, the court said:

“ * * * where evidence was introduced, it must in some appropriate way be included in the record. Under such statute, and in the absence of evidence in the record to the contrary, everything must be presumed in favor of the judgment of the trial court. A statement of facts showing testimony introduced and heard by the trial court does not properly accompany this record. Therefore it cannot be considered. Kell Milling Co. v. Bank of Miami, (Tex.Civ.App.) 168 S.W. 46; Sutherland v. Cabiness (Tex.Civ.App.) 146 S.W. 331, 332 (writ denied).”

In Pruett v. Sprouse, Tex.Civ.App., 278 S.W.2d 290, 291 (Writ Ref.), the court said:

“The order denying the temporary injunction recites that the court heard evidence of ‘both parties.’ Just what this evidence was we have no way of knowing. It is impossible for us to determine that the trial judge did or did not abuse his discretion in denying appellant’s petition for a temporary injunction when the evidence upon which such order was based is not before us. It was appellant’s duty to bring up this evidence and having failed to do so the trial court’s judgment must be and is affirmed.”

In Andrle v. Fajkus, Tex.Civ.App., 209 S.W. 752, 753, the judgment recited that:

“Upon hearing of the pleadings, proof, and argument of counsel, the court decided that there was no question to be submitted to the jury, and proceeded to find that the law and the facts are with the plaintiff * *

In that case the appellant did not file a statement of facts but contended in its brief, as does appellant here, that the court did not hear evidence. The court held that it should conclusively presume that the court did hear evidence, that the judgment as entered, which imported verity, was the only evidence before the appellate court of what the proceedings were and that it could not consider appellant’s contention that no evidence was heard, since the judgment recited the contrary. The following authorities are to the same general effect. Higgins v. Mossler Acceptance Company, Tex.Civ.App., 140 S.W.2d 532, 533; Allen Motor Sales Company v. Johnson, Tex.Civ.App., 64 S.W.2d 988, 989 (Writ Dis.); Hart v. Foster, Tex.Civ.App., 109 S.W.2d 504 (Writ Dis.); Smith v. Crank, Tex.Civ.App., 259 S.W. 989; Houston Fire & Casualty Co. v. Walker, 152 Tex. 503, 260 S.W. 2d 600; 3 Tex.Jur. 789; 3 Tex.Jur.2d 696; 4 Tex.Jur.2d 117. We must presume that the evidence heard justified the refusal of the temporary injunction.

Appellant’s main suit was one for damages for breach of an oral contract. He does not attack the validity of the note, deed of trust or checks. He admits their execution. He admits execution and delivery of the note and deed of trust in consideration of $20,000 credit, the extension ■of such credit by appellee and its acceptance and exhaustion by appellant. The real controversy is whether appellee breached a verbal contract by delivering inferior products and, if so, how much appellant was damaged thereby. There is no suggestion that appellee is “judgment proof”. Neither the note, deed of trust, nor checks are the subject matter of such ■controversy. We do not think appellant’s pleadings clearly show all facts necessary, nor negative every hypothesis on which ■appellee’s acts might be lawful, to entitle appellant, as a matter of law, to an injunction. 24 Tex.Jur. 222. Generally granting or refusing a temporary injunction is within the sound discretion of the trial court. We cannot say from this record that the court abused its discretion. The judgment is affirmed.


author: CHAPMAN, Justice.

text:
    Mack FERRIER et al. v. CAPROCK MACHINERY COMPANY
    No. 7081.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 25, 1961.

      Culton, Morgan, Britian & White, Amarillo, L. A. White and Neal R. Allen, of counsel, Amarillo, for appellants.
    E. Byron Singleton, Amarillo, for appel-lee.
   CHAPMAN, Justice.

This is a venue appeal.

Appellee, Caprock Machinery Co. sued appellants, Mack Ferrier, Otto Ferrier and Ferrier Brothers in the District Court of Potter County for payment for repairs alleged to have been made for them on appellants’ truck crane. Appellants filed their plea of privilege to be sued in Baylor County where both of the Ferrier brothers reside and have their principal place of business. Appellee controverted, seeking to maintain venue in Potter County under sub-section 5, of Art. 1955 which provides:

“5. Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile. As amended Acts 1935, 44th Leg., p. 503, ch. 213, § 1.”

Before discussing the substantive law we shall dispose of a procedural point raised by appellee in its argument under certain of its counterpoints. If we understand its brief it argues that where the record before us shows no objections or exceptions to the trial court’s findings, such findings must be accepted by us. Our Supreme Court has held otherwise. In Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156, 158 that court said: “There is nothing in the rules which provides that in a case tried before the court without a jury its findings of fact are conclusive on appeal when a statement of facts appears in the record.” See also Durham v. Ft. Worth Tent & Awning Company, Inc., Tex.Civ.App., 271 S.W.2d 181 and Preston State Bank v. Finberg, Tex. Civ.App., 305 S.W.2d 654. These cases are not venue cases but our Supreme Court in a venue case has said, “ * * * the power of the Court of Civil Appeals in reviewing the fact findings of the trial court is the same as it is in any other appealed case.” Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 95. We accordingly hold that appellants are not precluded from challenging in this court findings made by the trial judge simply because they did not file in the trial court an exception to the findings, there being a statement of facts before us and the brief of appellants having challenged the material findings of fact. If this court has heretofore held to the contrary such holding is hereby overruled.

Appellants ordered a T-24 Michigan Truck Crane from Clark Equipment Company, the manufacturer, through appellee, a distributor for Clark Equipment Co. The transaction was made by a purchase order prepared by appellee on its printed form and signed by appellants. The purchase order described the equipment in detail, named the implement traded in as a down payment and showed the value allowed on the trade-in implement. It also showed the purchaser as Ferrier Bros., P.O. Box 1079, Seymour, Texas, and that it was to be shipped to “F.O.B. — Wheeler, Texas.” The purchase order also provided, “Payable to Caprock Co., Amarillo, Texas, as follows: Cash -Trade Allowance-Balance to finance - Final Charge - Total - Payable in - Equal monthly payments of- each and one monthly payment of first of which is due - and following payments due on the same day of each succeeding month.”

As is readily observable, the paragraph just quoted provides: “Payable to Caprock Co., Amarillo, Texas, as follows:” [and if material at all it is not material to the obligation here sought to be enforced.] But none of those blank spaces were filled in. The purchase order also contains printed provisions dealing with insurance, manufacturer’s price changes, contingencies over which seller had no control, warranty, etc. including a statement that new machinery covered by the order was governed by the manufacturer’s warranty,, and that in the event of failure during the warranty period Caprock Equipment Co. would assist appellant in obtaining the necessary adjustments. This purchase order is one of the instruments relied on by appellee to sustain venue in Potter County.

As may be seen from the instrument, there is not anything in it that imposes upon appellant any obligation to pay for repairs [the obligation sought to be enforced] either in Amarillo, in Potter County, or any other designated place.

Our Supreme Court has said, “[such] written instrument upon which suit is founded must be signed by defendant and contain an express agreement on part of defendant to perform an obligation in a particular county, or a definite place in [such~¡ particular county.” Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, Syl. 5. As heretofore stated, the obligation sought to be enforced here is payment for repairs. (Emphasis ours.)

Appellee contends: “The indebtedness sued upon is based upon, due by reason of and grows out of three contracts in writing, making a complete, whole transaction of purchase, sale, repairs, and payments and being p. Exhibit 1, p. Exhibit 2 and d. Exhibit 1-A.” P. Exhibit 1 is the instrument just discussed. P. Exhibit 2 is nothing more than a letter from appellee to appellants concerning the new parts that should be installed in the crane and the price it would be necessary for them to charge for the labor and new parts. Appellants are not a party to the letter whatsoever except as addressees and do not obligate themselves in any manner by the exhibit to have the work repaired by appellee or to make payment for any repairs or replacements.

It is a fundamental rule of law, established by our Supreme Court, that venue may not be established by implication. Burtis v. Butler Bros., supra; Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610.

Defendants exhibit 1-A which ap-pellee attempts to use as an aid to sustaining the venue in Potter County is a lease-purchase contract between Clark Leasing Co. and Ferrier Brothers entered into two days after the date of the purchase order. Though saying it was nothing more than a matter of financing, the president and general manager of appellee company admitted the company sold the crane to Clark Leasing Corp. and that after it was paid out Clark Leasing Corp. gave a bill of sale to Ferrier Brothers on the equipment. It is also a matter of record that the payments by appellants to Clark Leasing Corp. were payable at 324 E. Dewey Ave., Buchanan, Berrien County, Michigan. We fail to see how ap-pellee can find any consolation for its position in this instrument.

We are not unmindful of the trial court’s designated findings of facts embodied in numbers (17), (18), and (19) of such findings, in which it finds the repairs were payable in Amarillo, Potter County, Texas. There is no instrument so saying and no testimony to that effect, and such findings could be no more than conclusions of law, to which we cannot agree. Regardless of the legal gymnastics between Clark Equipment Co., Caprock Machinery Co., and Clark Leasing Corp. concerning the sale, payment for and the repairs upon the crane the fact still remains that the indebtedness sued upon was for repairs and there is not any evidence in the record that the payment for the repairs was to be made in Potter Co. The 193S Amendment to Subsection 5 of Art. 1995 furnishes no relief for ap-pellee, as its brief apparently contends. Our Supreme Court has said, “the essential obligation in suit for venue purpose is that of payment, and if no place of performance of that obligation is stated in the contract, no exception to the general rule of venue at the domicile is involved.” Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120, 123.

Accordingly, the judgment of the court below is reversed and the case is ordered transferred to Baylor County.

      . We believe many of the designated “Findings of Fact” are conclusions of law.

      . A substantial part of Amarillo is in Randall County. In fact, the residence of a member of our court is iu Amarillo, Randall Co.


author: STEPHENSON, Justice.

text:
    TEXAS AND NEW ORLEANS RAILWAY COMPANY, Appellant, v. Melba HART et al., Appellees.
    No. 6395.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 21, 1961.
    Judgment Made Pinal and Rehearing Denied Oct. 11, 1961.

      Keith, Mehaffy, McNicholas & Weber, Beaumont, for appellant.
    Barber & Seale, Jasper, for appellees.
   STEPHENSON, Justice.

This is a suit for personal injuries brought by appellees Mary Evelyn McCormick and Melba Joy Hart to recover damages from the Texas and New Orleans Railway Company, arising out of an automobile-train collision which occurred at a grade crossing on the Spencer Highway, near LaPorte, Harris County, Texas. Mary McCormick, the driver of the automobile, was nineteen and Melba Hart was seventeen years of age at the time of the collision.

The case was submitted to the jury upon special issues. The jury found: the failure of the railroad company to have a flagman was negligence and a proximate cause; there was not a blinker light operating, which was negligence and a proximate cause; the railroad failed to give adequate warning of the approaching train, which was negligence and a proximate cause; ap-pellee Mary McCormick failed to keep a proper lookout and violated Art. 6701d, sec. 86, Vernon’s Ann. Revised Civil Statutes, each of which act of negligence was a proximate cause; the fireman on the engine was negligent after discovering the perilous position of appellees, which was a proximate cause. The jury found that appellant railroad company did not fail toe ring the bell as they approached the crossing; to blow the whistle; keep proper control; and did not operate at an excessive rate of speed. Judgment was rendered by the trial court for Mary McCormick $5,000, and for Melba Hart $15,-000.

Appellant first complains of the trial court’s method of submitting discovered peril. It is contended “extrication” was not included in the submission. Special Issue No. 23 asked of the jury whether or not the fireman discovered the perilous position. The jury was instructed, in connection with this issue as follows:

“You are instructed that by the term ‘discovered that they were in a perilous position’, as used herein, is meant that whenever it reasonably appears to a person in the fireman’s position from the facts and circumstances within his knowledge that someone is pursuing a perilous course and probably will pursue it to the end, then in such an event, such a person is said to have knowledge of the peril of the other.”

The question here is, does the phrase “that someone is pursuing a perilous course and probably will pursue it to the end” mean the fireman realized they could not and would not free themselves from the peril? Even though the wording used by the trial court is not as clear as it could have been, we hold this is a fair submission of “extrication” in connection with discovered peril. This is almost the identical wording used by the Commission of Appeals in Galveston, H. & S. A. Ry. Co. v. Wagner, 298 S.W. 552, 553, as follows:

“In order for a person to be in peril, it is not necessary that bodily injury will certainly be suffered by him. He is in peril whenever he is pursuing a course which probably will terminate in serious bodily injury to him. Whenever it reasonably appears to a second person, from facts and circumstances within his knowledge, that a person is pursuing such a course and probably will pursue it to the end, then, in such event, the second person is held to have knowledge of the peril of the other.”

In addition, under the circumstances existing in this case, it was not necessary to include “extrication” in the submission to the jury. In his testimony the fireman admitted that he realized the car was in a position of peril and that they could not free or extricate themselves from their position of peril. In view of this admission, it was not necessary to submit Special Issue No. 23 asking whether the fireman discovered the perilous position. This became an undisputed fact, and the form of its submission became immaterial. It could not hurt the appellant. The Supreme Court has written clearly on this point in Texas & N. O. Ry. Co. v. Krasoff, 144 Tex. 436, 191 S.W.2d 1, 6, as follows:

“With defendant’s engineer testifying that he recognized Krasoff was in a perilous position when the latter was 30 or 40 feet from the tracks and when the engine was three or four hundred feet from the point of collision, we do not believe the jury could have thought they were confined by the words ‘at the railroad crossing in question immediately prior to the collision’ to the very last instant before the collision. Moreover, in view of the engineer’s testimony, we think the trial court could have assumed that Krasoff was in a perilous position not only at the point of collision but for at least 30 feet away from it, and that, therefore, it was unnecessary to submit the question of existence of peril in any form.”

Appellant next contends that there was no evidence to sustain the jury finding that the fireman discovered the perilous position of appellees in time to have avoided the collision. The quantum of proof required of the appellees on the elements of discovered peril, in order to entitle them to have the issues submitted to the jury, was such facts and circumstances as taken together with all reasonable inferences therefrom constituted some evidence of probative force of their existence. In determining whether appellees discharged their burden we must view and interpret the evidence in the record in its most favorable light to the appellees, disregarding all evidence and inference therefrom favorable to the appellant. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 563. We also know the rule to be, as followed in the Ford case:

“A jury will not be bound by the statement of defendant as to when he discovered the danger of plaintiff and as to the efforts made to avoid the injury.”

It is impossible to know in a discovered peril case, the specific point a jury had in mind when it determined that a defendant could have avoided a collision by the use of all of the means at his command. This is one of the vices in the method of submitting discovered peril which has the approval of our courts. Even though the laws of this state require specific findings of primary negligence and contributory negligence, the same is not true of discovered peril. It is conceivable that in some instances, each of the twelve jurors may have had a different conception of the means at his command by which a defendant could have avoided a collision. The jury is not required to agree upon the specific means. This could be done readily by following the issue as to the discovery of the perilous condition, with various issues asking if the collision could have been avoided by doing a particular act according to the plaintiffs’ theory of the case as it has been plead and proved. However, there is no such provision in the law of this state at this time, and the appellate court must follow the rales as outlined above in the Ford case, supra, in considering the record on appeal.

There were several estimates as to the speed of the train varying from 5 to 12 miles per hour. There were also several estimates as to the speed of the automobile varying from 35 to 45 miles per hour. The fireman testified he first discovered the automobile when he was 90 feet from the highway, placing the front of the engine 50 feet from the highway. An examination of Exhibit D-6 reveals that at a point 90 feet from the highway a person’s vision is not obstructed in any way by the presence of the depot which was located 99.6 feet from the highway. The jury may have rejected the fireman’s estimate of the distance of the car from the crossing and accepted his estimate of the speed of the automobile, and could have concluded the car was 200 feet or 300 feet from the crossing at the time of discovery. Using the estimate as to speed of the automobile given by the fireman of 35 miles per hour; if the car was 200 feet from the crossing at the time of discovery, the automobile and train would arrive at the crossing at the same time, if the train was traveling 12 miles per hour. Using the same speed of the automobile, 35 miles per hour, if the car was 300 feet from the crossing at the time of discovery, the automobile and the train would arrive at the crossing at the same time, if the train was traveling 8 miles per hour. In the first instance the time from discovery to impact would be 3.9 seconds and in the second instance 5.8 seconds. In much of their argument appellant assumes the only way the collision could be avoided would be for the train to stop. In the Ford case, supra, it is stated:

“The duty rested on the train operatives to slacken the speed of the train even if it could not be stopped before reaching the crossing.”

We are dealing in split second timing in examining the evidence. At 35 miles per hour the appellees’ automobile would travel about 12.7 feet in ¼⅛ of a second. The evidence shows the automobile was struck broadside at about the front door. This means, in about ¼⅛ of a second more the automobile would have cleared the track in safety. It is inconceivable to this court that neither the fireman nor the engineer knew whether there was an emergency brake valve on the fireman’s side. The engineer testified: “I!m not sure, but I am positive there was one.” The jury may have concluded there was an emergency brake valve on the side by the fireman, and that by the use of that means at his command he could have avoided the collision. Then again, the jury may have concluded the fireman by waiting 1 or 2 seconds, as he testified, or even longer, if he had 5.8 seconds traveling time between the time of discovery and the collision, even allowing for normal reaction time, delayed too long in warning the engineer, and that a prompt application of the emergency brakes might have allowed the appellees’ automobile an additional ¼⅛. to ½ of a second, to pass over the tracks in safety. There was evidence of probative value and reasonable inferences to support the finding of the jury.

Appellant contends next that there was a conflict in the answers of the jury to Special Issues Nos. 14 and 25. In answer to No. 14 the jury found the appellant was not guilty of negligence in failing to have its locomotive under proper control. In answer to No. 25 the jury found the fireman, after discovering the appellees’ perilous position, failed to use all of the means at his command to avoid the collision. Appellant cites no authority as a basis for this contention. We hold that it is without merit. In any event, appellant, by not raising an objection to the alleged conflict at the time the jury returned its verdict, has waived the matter. Haddox v. Futrell, Tex.Civ.App., 321 S.W.2d 110.

This case being controlled by the issues on discovered peril, we find it unnecessary to discuss the points raised by appellant concerning the issues of primary negligence of the appellant and contributory negligence of the appellee, Melba Hart.

After reading the entire record, we agree with appellant that the verdicts of $15,000 for Melba Hart and of $5,000 for Mary McCormick are both excessive. The evidence shows the accident happened around noon, August 18, 1958. The girls were taken by ambulance to a hospital in Baytown. While in the hospital Melba Hart had several stitches taken above her right eye, and Mary McCormick received no examination or treatment. They were picked up there by automobile by two boy friends and arrived in Kountze about 4:30 or 5:00 that afternoon. These two boys remained with them until 10:00 or 10:30 that night, and were not called as witnesses. The activities of the two girls on the afternoon of the collision demonstrates the lack of seriousness of their injuries. Mary McCormick was being cross-examined :

“Q. Mary, you said that it was 4:30 or 5:00 when you got back to Kountze on this Sunday afternoon? A. Yes.
“Q. And at this time you yourself had not been examined or treated by a doctor, is that correct? A. No.
“Q. That’s right? A. That’s right.
“Q. Now, when you got back to Kountze, what is the first thing that you did; did you say that you went to Melba’s house and stayed about fifteen minutes? A. When we first got back in Kountze, we did.
“Q. And then from Melba’s house, did you go to the Top Half? A. Yes.
“Q. All right. Now, you had not called your folks from Baytown, had you? A. No.
“Q. And so far as you knew, your folks knew nothing about the accident ? A. No.
“Q. At the time either then you went to Melba’s house or when you left there and got to the Top Half, your folks still knew nothing about it? A. No, not then.
“Q. They did know that you were going to Alvin? A. Yes.
“Q. But they didn’t know anything about the accident? A. No.
“Q. All right. Now, how long did you stay at the Top Half the first time you went there? A. About fifteen or twenty minutes, something like that.
“Q. All right. Then where did you go from the Top Half? A. To my house.
“Q. Out to Honey Island? A. Uh-huh.
“Q. All right. And then is when, I guess, you told your folks about the accident? A. Yes, sir.
“Q. All right. Now, did you stay there the rest of the night at your house and go to bed or anything? A. No, we stayed there about an hour or something like that.
“Q. All right. Then, was Melba still with you all this time? A. Yes.
“Q. So far as you know, her mother had not been contacted either? A. No.
“Q. Now, what time was it 5:30 or 6:00 o’clock when you got to your house? A. Yes.
“Q. And you stayed there about an hour, so you left your house about 7:00? A. Yes, sir.
“Q. Still with the two boys, Pennington and this other fellow and you and Melba? A. Yes.
“Q. Now, did you come back into town then, back into Kountze? A. Yes.
“Q. And I guess it was 6:30 or 7:00 when you got back into Kountze? Is that right? A. Somewhere along in there.
“Q. All right. Now, did you go back to the Top Half then ? A. Yes.
“Q. You came back to town and talked to some friends out there? A. Yes.
“Q. All right. And then did you ride around Kountze for awhile? A. Yes.
“Q. All right. Still with Melba and still with the two boys? A. Yes.
“Q. This is a Sunday night; you didn’t go to church or anything, you just rode around town? A. Yes.
“Q. And, I believe you testified on deposition that you rode around town until about 9:30 or 10:00 o’clock, is that right, visiting with friends and going to the Top Half and what not? A. Yes.
“Q. Now, what time was it that you went home; did you go home finally that night ? A. Uh-huh. It was about 10:00 or 10:30, something iike that when we got home.
“Q. All right. The accident had taken place right at noon, is that right ?
A. Yes.
“Q. And you still hadn’t called Melba’s folks? A. No.”

Melba finished her senior year in high school and played basketball. She played two-thirds of the games and received a letter. Upon graduation in June, 1959, she worked at a cafe for about four months. In September, 1959, she made an application to enter military service. She passed the physical examination and entered the United States Air Force November 17, 1959. She marched only one day, and was discharged from the service 35 days before this case came to trial. Melba Hart visited Dr. Tate of Kountze September 3rd, 22nd, 26th and 27th. Her bill was $16 and he was not called as a witness. Melba was examined by Dr. Shorkey January 22, 1959 and January 11, 1960, which was two days before trial. Melba was also examined by Dr. Dickerson four days before the trial, and both of these doctors were called by her to testify. Melba testified she was suffering pain in her head, back and knee at the time of the trial. The x-rays were all negative as to the injury, or normal. Dr. Dickerson testified Melba’s knee had recovered. He testified she had a severe strain or sprain in her lower back. He found signs of anxiety or instability which he said probably produced headaches. He concluded Melba would have 5 to 10 per cent permanent disability. Dr. Shorkey found Melba had a postural type of back strain, and that she did not appear to be in any particular distress or discomfort at the time he examined her. Dr. Shorkey further testified Melba was suffering from pain but upon direct examination by Melba’s attorney, the following testimony was given:

“Q. And do you have an opinion based on reasonable probability as to whether or not this pain will continue on in the future? A. My opinion as to that is this : I think it will depending, of course, a lot on the continuance of the posture defect itself.
“Q. Well, is it something then that you think there will be some degree of permanent — What is your opinion as to whether or not there will be come degree of permanence to this pain ? A. Of course, one can’t say whether or not it will be permanent or whether it won’t be permanent because in the first place for the year now to my knowledge she hasn’t been doing the exercises that would tend to correct it. Such cases are correctible by exercise, some aren’t, and it’s pretty difficult, I mean, in a given case to say whether it can be or whether it can’t.”

Mary McCormick testified the only physical injury she received was a cut on the lip which was healed at the time of trial. Her only complaints were nervousness, headaches and depression at times. She saw Dr. Tate at Kountze 2 or 3 days after the collision. He treated her for the lip and her nerves. He was the first doctor to examine or treat her. Dr. Joe Dickerson examined her one time during the week before the trial and was the only doctor who testified in reference to her condition. He testified Mary McCormick had probably lost 5 per cent of her earning capacity because of her anxiety reaction. The evidence reveals that Mary McCormick was employed by the Texas Highway Department at the time of the collision, and also at the time of trial. She testified she lost one full day from her work and several hours from time to time. The records of her employer showed she lost only three hours on September 9, 1958 because of her nerves due to the accident.

The excessiveness of the jury verdict in each instance shocks our sense of justice. Under the rule set forth in Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835, under the circumstances of this case, damages of $2,000 for Mary McCormick and1. $5,000 for Melba Hart would be reasonable-compensation. Unless appellees, within two» weeks after the filing of this judgment, file: remittiturs to bring the amount of the" judgment for each in conformity with the figures just stated, this case will be reversed and remanded for a new trial. If remittiturs are executed and filed with the clerk of this court within said time the judgment will be affirmed for the balance.

The judgment is affirmed conditionally.

Remittiturs having been filed this October 11, 1961, as suggested, our conditional affirmance is hereby adjudged to be final.


author: LANGDON, Chief Justice.

text:
    Ancel M. AUTRY et al., Appellants, v. Anita D. AUTRY, Appellee.
    No. 5462.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 27, 1961.
    Rehearing Denied Oct. 25, 1961.

      Sanders & Stanford, Canton, Wynne & Wynne, Wills Point, for appellants.
    W. Ernest West, Canton, Wilbur J. Barnes, Richard W. Barnes, Rockville, Md., for appellee.
   LANGDON, Chief Justice.

This is an appeal from an order of the District Court of Van Zandt County, Texas, sustaining appellee’s plea in abatement and plea to the jurisdiction, and ordering the dismissal of a suit brought by Ancel M. Autry against appellee, Anita D. Autry, for divorce and for adjudication of the custody of five of the six minor children born of their marriage. The court’s order also dismissed a suit filed by W. M. Autry and wife, Mary Lou Autry (paternal grandparents of the children involved), as in-tervenors, for custody of the minor children. From such order of the court, appellants (plaintiff and intervenors) have perfected their appeal.

For purposes of clarity, the parties on appeal will be referred to as they were in the trial court.

Plaintiff and defendant were married in California on June 13, 1947. Six children, who are now living, were born of the marriage. Prior to August 13, 1958, plaintiff and defendant had lived continuously for several years in Montgomery County, Maryland; and, unquestionably, the marital domicile and legal residence of both plaintiff and defendant immediately prior to August 13, 1958, was in the State of Maryland. Plowever, plaintiff left Maryland on August 13, 1958 and went to Texas, taking the five eldest children with him, and leaving defendant and the youngest child of the marriage (then about eight months of age) in Maryland. Plaintiff advised the defendant that he was not coming back to Maryland, and that he would not send the children back.

The chronological order of the litigation that followed controlled the trial court’s disposition of the case below, and we think those facts, as found by the trial court and as disclosed by the record before us, are controlling here.

Some six weeks prior to the filing of plaintiff’s action in the district court of Van Zandt County, Texas, defendant filed a suit in Maryland against the plaintiff seeking a divorce “a mensa et thoro”, and custody of the one child of the marriage then in Maryland. Plaintiff was duly summoned as required by the laws of the State of Maryland, but failed to appear, and an order that the Bill of Complaint be taken “pro confesso” was entered by the Maryland court against said Ancel M. Autry on January 22, 1959.

Defendant’s Maryland action against plaintiff was commenced on November 3, 1958. An order of publication required by the laws of the State of Maryland was made by the clerk of the circuit court for Montgomery County, Maryland, on the same date, and same was served on plaintiff by a deputy sheriff of Van Zandt County, Texas, on December 3, 1958. Thereafter, on December 23, 1958, plaintiff filed his suit against defendant in the district court of Van Zandt County, Texas; but service was not had on defendant, Anita D. Autry, in such suit until June 29, 1959. In the meantime, on March 2, 1959, a decree of divorce was made and entered by the circuit court of Montgomery County, Maryland, granting defendant herein, Anita D. Autry, her divorce as prayed for, and awarding to her the custody of the one minor child then in the State of Maryland.

Plaintiff and intervenors (appellants herein) have not complained of the Maryland divorce and the validity of such judgment has not been attacked, nor do appellants complain of the Maryland court’s decree awarding defendant custody of the youngest of the six children born of the marriage. They do argue — and the only point before us on this appeal is the contention — that the trial court erred in sustaining defendant’s plea to the jurisdiction and in abatement and dismissing this cause for adjudication of the custody of the five older children on the ground that the trial court had jurisdiction of the custody question independently of plaintiff’s action for divorce, and that it was the duty of such court to adjudicate the custody of the children.

A foreign judgment or decree of a court of competent jurisdiction is presumed to be valid, and the burden of showing its invalidity is upon the person who attacks it. Under the full faith and credit clause of the United States Constitution, ai.. 4, § 1, courts must accord prima facie vah'dity to a divorce decree of a sister state; there is a rebuttable presumption that the decree is valid, which includes a presumption that the foreign court had full and adequate jurisdiction to grant a divorce; that one of the parties had a domicile within the jurisdiction for divorce; and that there was proper process and service of process. 17a Am.Juris. 138, Divorce and Separation, sec. 956.

For purposes of this opinion, we assume that the divorce obtained by defendant in the State of Maryland was valid and is entitled to full faith and credit in Texas.

The real controversy here, then, is not concerned with the validity of the Maryland divorce, but with the adjudication of the custody of the five oldest children of the marriage.

Until August 13, 1958, all six children were physically located in Montgomery County, Maryland. On that date plaintiff took the five oldest children and started for Texas, leaving defendant and the youngest child in Maryland. After obtaining a divorce “a mensa et thoro” in the Maryland court, by a decree dated March 2, 1959, in which defendant was also awarded custody of the youngest child, defendant then went to Texas in May of 1959, recovered the five oldest children, who were then being cared for by intervenors (paternal grandparents of the children), and returned them to the State of Maryland. On May 15, 1959, the children then being again physically present in the State of Maryland, defendant filed a petition for custody and support of the five children in the circuit court of Montgomery County, Maryland. Service of the Maryland custody proceeding was had on plaintiff in Van Zandt County, Texas, on May 18, 1959 and, thereafter (some time in June, 1959), plaintiff returned to Maryland and, without the knowledge or consent of defendant, obtained possession of the children and fled with them to Texas, thus attempting to escape the Maryland jurisdiction.

The record in this case reflects that on December 23, 1958, at a time when plaintiff had completed less than five months of the Texas residence requirements of the statute (Art. 4631, Vernon’s Annotated Texas Civil Statutes), and after he had already been personally served with process in his wife’s action for divorce in Maryland, he filed his original petition for divorce in the district court of Van Zandt County, Texas. No process or service of process was had on defendant at that time, and the record does not reflect that any attempt was made to serve the defendant therein, or that she even knew of the pendency of such an action at all, until after plaintiff had returned to Maryland to get the children and then fled back to Texas where, on June 27, 1959, he filed his first amended original petition, and secured a restraining order and temporary injunction against defendant, which was served on her on June 30, 1959.

The history of the controversy between plaintiff and defendant in this case is, unfortunately, all too typical of divorce cases involving the custody of children. The State of Maryland having been the marital domicile of the parties, it was at least the most logical forum in which to litigate, not only the issue of divorce, but the question of custody. Where it is possible for all the children of a marriage to be kept together and reared as a family of brothers and sisters, it is not in the best interest of the children that custody of one or more be awarded to one parent, and the balance to the other.

Since the defendant, the mother of the children, had not been served with any form of process, and presumably had no notice of any legal action taken by her husband to secure custody of the children on the occasion of her trip to Texas to see the children, she — at that time — had rights equal to those of her husband with respect to the children. Once the children had been removed from Texas to Maryland, defendant initiated her suit for custody and support. Because the State of Maryland had been the marital domicile of the parties immediately preceding their separation and divorce, and because the children were then physically present within the jurisdiction of the Maryland court, we believe the jurisdiction of such court was properly invoked, process having issued and personal service having been had on plaintiff. To permit or condone the action of plaintiff, after having been served with process, to go to Maryland and to remove the children from that state for the sole purpose of depriving the Maryland court of its jurisdiction to hear and determine the question of custody, would destroy the orderly administration of justice between residents of different states.

We hold, therefore, that the trial court did not err in sustaining defendant’s plea in abatement and plea to the jurisdiction and in dismissing plaintiff’s suit for divorce and custody of the children.

While it is true that the Maryland court had not yet heard evidence or made any final adjudication of the custody of the five minor children at the time they were removed from the state and the jurisdiction of the court by their father, plaintiff herein, its jurisdiction to do so had attached. Upon principles of comity, the Texas court recognized the jurisdiction of the Maryland court to adjudicate the custody of the children. Comity is not a rule of law, but one of practice, convenience and expediency. It does not command, but it does persuade, and it has its value in securing uniformity of decision and in discouraging repeated litigation of the same question. It has its application and best use in cases such as the case now before us, where one authority simply gives way to another. It has no application where what is done by one court is with the concurrence of the other.

Since the intervenors have not separately briefed any points on this appeal, we believe our holding above also disposes of their contentions. We think, too, that in-tervenors have failed to establish a justi-ciable interest in the litigation, and that no further discussion is necessary.

Finding no error, appellants’ points are overruled, and the judgment of the trial court is affirmed.


author: TIREY, Justice.

text:
    Alvin HURT et al., Appellants v. CITY OF CORSICANA et al., Appellees.
    No. 3895.
    Court of Civil Appeals of Texas. Waco.
    Sept. 21, 1961.
    Rehearing Denied Oct. 12, 1961.
    Mays & Jacobs, Corsicana, for appellants.
    Don Pevehouse, Corsicana, for appellees.
   TIREY, Justice.

This is an appeal from an order denying a temporary injunction. The action is one in behalf of certain individuals and also as class representatives of approximately 100 property owners who reside or own property adjacent to the City of Corsicana, Texas, and they seek to enjoin the city and its officers from passing on second and final reading two ordinances which, when passed on second reading, would annex territory lying west and south of the city. They ground their action on the insufficiency of Section 2 of the present City Charter of Corsicana, a home-rule city, which charter was adopted December 11, 1917, and Section 2 thereof having been amended by the City of Corsicana on June 25, 1949.

The judgment is assailed on three points. They are substantially to the effect that the Court erred:

(1) In refusing to hold that the 1949 amendment to the city charter was insufficient to confer the power granted under Article 1175, Section 2, because neither the charter nor the amendment sets forth any rules, standard or guide, as is required under such Article and Section.

(2) In refusing to hold the 1949 amendment ineffective to confer the power to annex territory without the consent of the inhabitants thereof because such amendment did not expressly or by necessary implication repeal Section 2 of the original charter as it then existed.

(3) In holding that the 1949 amendment to the city charter was sufficient to confer the power of annexation without consent upon the City Commission, because such amendment did not by express language or by implication grant or accept the power to annex additional territory without the consent of the inhabitants of the territory involved.

We overrule each of appellants’ contentions for reasons which we shall hereinafter briefly state. Pertinent to this discussion, Section 2 of the city charter of Corsicana, as adopted December 11, 1917, provided in part as follows:

“Section 2. The City Limits of the City of Corsicana shall be as follows, to-wit: (There follows the perimeter field notes of the corporate limits.)
“The said limits of the City of Corsi-cana may be extended so as to take in other territory, by ordinance duly passed by the Commission, in the manner and form as prescribed by the general laws of the State of Texas.”

Thereafter, on June 25, 1949, said Section was amended, and, as amended, it reads as follows:

“Section 2. The City limits of the City of Corsicana shall be as follows: embracing territory included in the Geo. Hempling, A. Hicks, Peter Sum-merville, Jesus Ortiz, James Powell, Wiley Powell, Rachel Leach, John Harris, John Harris Harr, Geo. Muse, and Rachel White Surveys of Navarro County, Texas, to-wit: (There follows the perimeter field notes as expressed in such amendment.)
“The Commission shall have full power to extend said limits and to annex additional territory by ordinance.”

Section 2 of the charter as it existed on December 11, 1917, was before this Court in Willman v. City of Corsicana, Tex.Civ. App.1948, 213 S.W.2d 155, in which cause Section 2 aforesaid was construed. The Supreme Court granted a writ of error in this cause and affirmed the decision of this court. See City of Corsicana v. Willmann, 147 Tex. 377, 216 S.W.2d 175, 178. The views of this court were clearly stated in the opinion written by Chief Justice Lester, and, as we stated, the views of this court were affirmed by our Supreme Court. Our Supreme Court, in discussing the question before it, said:

“And the Enabling Act, Art. 1175, R.S.1925, in enumerating some of the powers of a home-rule city, says this with respect to annexation: ‘The power to fix the boundary limits of said city, to provide for the extension of said boundary limits and the annexation of additional territory lying adjacent to said city, according to such rules as may be provided by said charter.’ * * * Under that provision petitioner’s charter could permit annexation by ordinance alone or it could provide for the method outlined by the statutes. Exercising that option, the framers of its charter chose the latter method when they wrote Sec. 2, supra; and petitioner is bound by that choice until its charter is amended to provide otherwise. That is what distinguishes this case from City of Houston et al. v. State [etc.], 142 Tex. 190, 176 S.W. 2d 928, 930, cited by petitioner. There the charter unconditionally provided that its commission ‘shall have power by ordinance’ to fix its boundaries and to annex additional adjacent territory. Here we have no such provision.”

That decision by the Supreme Court was in January 1949. On June 25th, 1949, as heretofore stated, Section 2 was amended by the City of Corsicana to comply with the opinion of the Supreme Court. We have previously set out Section 2 as amended, and we think it is in conformity with the pronouncements of our Supreme Court. It is our view that under Section 2, as amended, that the City of Corsicana does have the power to annex property by ordinance, and that the Trial Court properly ■denied the temporary writ of injunction. Since we are of the view that Section 2 as amended complies with the pronouncements made by our Supreme Court aforesaid, it follows that Points 2 and 3 pass out of the ■case, and under this view, each of them is overruled. Accordingly, each of appellants’ points are overruled and the judgment of the Trial Court is in all things affirmed.


author: McDONALD, Chief Justice.

text:
    Olen McMAHON, Appellant, v. Harris FENDER, Appellee.
    No. 3904.
    Court of Civil Appeals of Texas. Waco.
    Sept. 14, 1961.
    Rehearing Denied Oct. 5, 1961.
    McDaniel, Hunt & Fairchild, Center, for appellant.
    Wardlow Lane, Center, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a permanent injunction, enjoining defendant McMahon from going on or cutting timber off of a 640 acre tract of land in Shelby County.

Plaintiff Fender filed this suit alleging that he was owner of and in possession of a described 640 acre tract of land in Shelby County; that defendant McMahon was threatening to go on such tract and cut timber; and would do so unless restrained. The Trial Court granted a temporary restraining order, and set a hearing for temporary injunction.

Defendant McMahon filed answer in which he denied that plaintiff is owner or in possession of the property, and asserted that he has title superior to that of the plaintiff.

Trial was before the court without a jury which found plaintiff to be in possession, and to have the right of possession to the property; granted plaintiff a permanent injunction enjoining defendant from going upon the premises, or cutting any timber therefrom.

Defendant appeals, contending that the Trial Court erred in granting the permanent injunction, because this was a suit between two parties, each claiming the fee, and that the court’s action amounts to an adjudication of title by a suit for injunction, and absent a suit in trespass to try title.

The proof showed that plaintiff was in possession of the 640 acres, and had been in such possession since 1953; that plaintiff deraigned his title under a series of general warranty deeds of conveyance going back to 1946. The proof further showed that defendant was a grantee of 108 acres out of the 640 acre tract, in a quitclaim deed from one Greer executed in 1959. Greer deraigned such rights as he had from other quitclaim deeds originating in a quitclaim deed from one Miller. There is no warranty deed in defendant’s showing nor is there any showing of title in any of the grantors of any of the quitclaim deeds under which defendant claims.

The normal rule is that if the title to land is in dispute, the remedy to try title should ordinarily be resorted to. 24A Tex. Jur., p. 61; and that title cannot be adjudicated by an injunction, but only in an action in trespass to try title. Bruce v. Moore, Tex.Civ.App., 277 S.W.2d 199; City of Mission v. Popplewell, Tex.Civ. App, 288 S.W.2d 200, 156 Tex. 269, 294 S.W.2d 712.

The foregoing cases are applicable, however, where both parties admittedly own the fee to some land, and it is a disputed question as to whether the fee owned by the respective parties, in fact, covers the land sought to be included in the injunction.

In the case before us both parties in their pleading claimed to own the fee to some of the land involved. Plaintiff showed prima facie ownership, by virtue of general warranty deeds of conveyance into him, and his possession of the tract since 1953. Defendant on the other hand, — out of possession, — shows his “right” to the 108 acres by a series of “quitclaim deeds”, into himself.

A quitclaim deed does not of itself establish any title in those holding under it. The quitclaim passes the interest of the grantor in the property, and for the quitclaim to be a conveyance, title in the grantor must be shown. See: 41A Tex. Jur., p. 551, par. 34; Watkins v. Smith, 91 Tex. 589, 45 S.W. 560; Richardson v. Levi, 67 Tex. 359, 3 S.W. 444; Garrett v. Christopher, 74 Tex. 453, 12 S.W. 67; 19 Tex.Jur.2d par. 11, p. 256. In the instant case, defendants show no title in any person; only a chain of 4 quitclaim deeds into defendant. Had defendant shown a warranty deed into himself, or into his grantor, and possession, title would have been in issue, and the rule of Bruce v. Moore, and the other cases cited, supra, would be applicable.

As the record stands before us, plaintiff by pleading and proving ownership and possession, was entitled to an injunction against defendant, who is out of possession and whose claim is based only on a quitclaim deed. Thus the situation before us, is actually that of an injunction in favor of an owner in possession, as against a naked trespasser. See also: Renfrew v. Lineberry, Tex.Civ.App., 271 S.W. 2d 440, (NRE); Houston Oil Co. of Texas v. Niles, Tex.Com.App., 255 S.W. 604; Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286; Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62.

The injunction as entered by the Trial Court is modified to delete the words “or permitting” in the 6th to the last line of the 1st paragraph, and by adding: “Provided further such injunction will expire when and if defendant, by action in trespass to try title or other means, shows superior title in himself,” to the end of such first paragraph.

As modified, the judgment of the Trial Court is affirmed.