text:
    Kenneth R. BENNETT, Appellant, v. HEATH FURNITURE COMPANY NO. 2, Inc., Appellee.
    No. 3965.
    Court of Civil Appeals of Texas. Eastland.
    April 16, 1965.

      Miller, Sanders & Baker, Amarillo, for appellant.
    Joel E. Wright, Amarillo, for appellee.
   COLLINGS, Justice.

Kenneth R. Bennett brought suit against Homer King, Thomas E. Garner, The Heath Furniture Company, a corporation, Heath Furniture Company No. 2, Inc. and Heath Furniture Company, Inc., seeking to recover ■damages for alleged slander libel and malicious prosecution. The court withdrew the case from the jury and rendered judgment against plaintiff and for three of the defendants, and rendered judgment against ■plaintiff on his claim for slander and libel against Garner and Heath Furniture Company No. 2, Inc. The case was presented to the jury on special issues inquiring about facts relating to plaintiff’s cause of action against Garner and Heath Furniture Company No. 2, Inc. for malicious prosecution. Based upon the jury findings, judgment was rendered against Garner for $500.00 actual damages and $1,000.00 exemplary damages. There is no appeal from that part of the judgment. Heath Furniture Company No. 2, Inc. filed a motion for judgment non obstante veredicto which was granted, and from that portion of the judgment Kenneth R. Bennett has appealed.

The record shows that appellant Bennett purchased furniture from appellee Heath Furniture Company No. 2, Inc. on time payment and a dispute arose between appellant and one of appellee’s employees concerning the status of the account; that appellant asked Mr. Head, a vice president of appel-lee company and the manager of the store, for a discount but Mr. Head stated to appellant that he had no authority to discount the contract. Thereafter, Mr. Head instructed Garner, who was office manager and assistant manager of appellee’s store, to talk to appellant and his wife and try to “straighten things out.” Garner went to appellant’s house and some sort of altercation ensued. Garner testified that after he left appellant’s house he talked by telephone to Mr. Head to advise with him concerning whether he should file charges against appellant for an assault. Garner stated that he thought he “would go down and file charges;” that Mr. Head told appellant that he couldn’t tell him what to do, — that it was up to him and to use his own judgment. Mr. Head testified that Garner told him in the telephone conversation that Bennett had struck him and that he, Garner, wanted to file charges. Head stated that he did not tell Garner to file charges or not to file them. Homer King, credit manager at appellee’s main store, stated that he and another employee listened to the telephone conversation on an extension line and that neither Head nor anyone else directed or told Garner what he should do about filing a complaint. About an hour after the telephone conversation Garner did file a complaint charging Bennett with assault and battery. Appellant was arrested on that charge and made bond. Thereafter, the criminal charge was dropped by Garner at the instance and request of Mr. Frank Heath, the president and secretary of appel-lee corporation.

The jury found in answer to special issue Number 3 that Garner in instituting such criminal proceedings was acting within the scope of his employment with the defendant Heath Furniture Company No. 2, Inc. In connection with special issue Number 3 the court instructed the jury as follows:

“You are instructed that by the term ‘acting within the scope of his employment’ is meant acts of every kind and character having to do with and originating in the work, business or trade of the employer, done by an employee while engaged in or about the furtherance of the affairs or business of the employer, whether upon the employer’s premises or elsewhere.”

As above indicated, the jury answered issue 3 in favor of appellant, but the court entered judgment non obstante veredicto for appellee. Appellant presents one point of error in which it is contended that there was legal and competent evidence to support the findings of the jury and that the court, therefore, erred in sustaining appel-lee’s motion for judgment non obstante veredicto.

Appellant correctly urges that for a judgment non obstante veredicto to be upheld it must appear that there is no evidence of probative force in support of the jury finding which is disregarded. In passing upon the question of whether there is any evidence to support a jury finding only that evidence favorable to the verdict may be considered, and the evidence must be viewed in its most favorable light in support of the findings. The jury is the Judge not only of the facts proved but of any reasonable inference to be drawn therefrom. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Smith v. Bifano, Tex.Civ.App., 330 S.W.2d 473; Cunningham v. Texas Employers’ Insurance Association, Tex.Civ.App., 363 S.W.2d 880.

Appellant contends that the evidence shows that Garner was at all times acting at the specific instance and request of A. E. Head, the vice president of appellee corporation, and Garner’s immediate superior; that Garner was the office manager and assistant manager of the store where the furniture was purchased and, additionally, was in control and had a free hand in the matter of collections; that after the alleged altercation Garner solicited the advice of Mr. Head before filing the criminal proceedings against appellant and later dropped such charges at the request of appellee’s president and secretary Mr. Frank Heath. Appellant urges that these facts show the relative positions of authority of the parties involved, and taken as a whole constitute some evidence in support of the answer to issue 3. Appellant asserts that the evidence is conclusive that Garner was acting in behalf of appellee and within the scope of his authority while he was at appellant’s house trying to settle the dispute amicably; that the evidence further shows that after the altercation at appellant's house Garner immediately made a telephone call to Mr. Head at appellee’s store; that two other employees listened in on the conversation on extension telephones. Appellant admits that there is some inconsistency as to the nature of the conversation and what Mr. Head told Garner, but points out that the conversation and the motives involved are exclusively in the knowledge of appellee’s employees; that under these circumstances the jury could reasonably infer that Mr. Head, appellee’s vice president, gave Garner authority to file a complaint and that Garner had authority to act on behalf of appellee; that Garner was so acting when he soon thereafter went to the police department and filed the complaint against appellant. Appellant also points out that there was evidence to the effect that thereafter Mr. Frank Heath, appellee’s president, apologized to Bennett for Garner’s action, and that a man was sent to the place where Mrs. Bennett was working to apologize to her. Mr. Heath also asked Garner to drop the criminal charges against appellant, Bennett, which was done.

In 54 C.J.S. Malicious Prosecution § 64 at page 1032 it is indicated that generally speaking a corporation may be held liable in an action for malicious prosecution based on the acts of its officers, agents or employees; that where the agent acts within the general scope of his authority in instituting a prosecution, the corporation is liable for the acts of its agent. However, where the acts complained of are not within the scope of the authority or in the course of the employment of the agent, the corporation is not liable therefor, unless expressly authorized or subsequently ratified by the corporation. It is further stated on page 1033 of the text as follows:

“It has been held that employees and subordinate officers of a corporation are without implied authority to apprehend and prosecute persons suspected of crime involving loss to the corporation.”

In our opinion the fact that Garner was office manager and assistant manager of appellee’s store and was in control of and had a free hand in the matter of collections did not give him implied authority as the agent of appellee to institute criminal action. In Genovese v. Butt, Tex.Com.App., 48 S.W.2d 587, where it was held that the manager of a store had no implied authority to cause a customer’s arrest for giving a bad check so as to make the owner of the store liable for malicious prosecution, it was stated:

“Conceding that, as manager of the store for Butt, Kelley had implied authority to collect the debt, still such implied authority did not extend to the institution of a criminal prosecution, for the reason that a criminal prosecution is not a customary and proper means of collecting a debt due from one person to another.”

If appellee is to be held liable for the act of its employee Garner in instituting criminal action against appellant, Bennett, it must be because Garner was expressly authorized by appellee or unless his action was subsequently ratified. Appellant relies upon the testimony concerning the telephone conversation between Garner and Mr. Head to show that Garner was instructed by Head and, therefore, authorized by appellee to file the criminal proceedings against appellant.

If it should be held that Mr. Head, as vice president and manager of appellee’s store, had the power and authority to instruct Garner to institute such criminal proceedings, which question we do not pass on, we are nevertheless of the opinion that there was no evidence from which it could be reasonably inferred that Mr. Head did instruct and authorize Garner to file said criminal proceedings against appellant. The only evidence bearing upon the question was the testimony of Head, Garner and two other employees of appellee. All of these witnesses stated that Mr. Head did not instruct or authorize Garner to file a complaint against appellant. Garner testified that he asked Head’s advice about filing the complaint and that “He said he couldn’t tell me what to do, said it was up to me.” Mr. Head stated that he told Garner “I can’t tell you what to do, just use your own judgment.” It is true as urged by appellant that the conversation between Head and Garner and the motives involved are exclusively in the knowledge of appellee’s employees. However, this fact does not constitute evidence of probative force showing that the exact opposite of their testimony is true. Neither does the fact that Mr. Heath, appellee’s president, requested and influenced Garner to dismiss the complaint constitute any evidence that Garner’s action in filing the complaint was authorized or ratified. The court properly found that there was no' support in the evidence for the jury’s finding that Garner in instituting the criminal prp-„. ceedings against appellant was acting in the course of his employment with Heath Furniture Company No. 2, Inc.

The judgment is affirmed.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    Elmer TAYLOR et al., Appellants, v. Wendell BENTON et al., Appellees.
    No. 3977.
    Court of Civil Appeals of Texas. Eastland.
    April 30, 1965.
    Alton M. Reeder, Amarillo, for appellants.
    Folley, Snodgrass, Calhoun & Kolius, Amarillo, for appellees.
   WALTER, Justice.

Wendell Benton and wife Mary Benton filed a trespass to try title suit against Elmer Taylor and Armstrong County. Buena V. Eubanks filed a trespass to try title suit against R. W. Tevebaugh and wife Billie Tevebaugh and Armstrong County. By agreement, the cases were consolidated for trial. The court instructed a verdict in favor of the county against the Bentons. The county disclaimed as to Eubanks. The court instructed a verdict in favor of the plaintiffs Wendell Benton and wife against the defendant Elmer Taylor and in favor of the plaintiff Eubanks against the defendant R. W. Tevebaugh and wife. No appeal has been perfected from the judgment in favor of the county. The defendants Taylor and Tevebaugh have appealed. The parties will be referred to as they were designated in the trial court.

The parties stipulated as follows:

“Wendell Benton and wife, Mary Benton, acquired the title to the southwest quarter (SWi^) of section 315, Block B-4, H&GN Ry. Co. Survey, in Armstrong County, by deed dated October 10, 1946 — ; that Wendell Benton and wife acquired title to the southeast quarter (SE}4) of said section 315, by deed dated the 15th day of October, 1946.

“It is further stipulated that prior to the institution of the proceedings of Mrs. B. V. Eubanks to open a road between said section 315 and 4, on June 1, 1960, that Elmer Taylor was the record owner of the north half (NJ4) of section 4, block 4, BS&F, situated in Armstrong County, Texas; that Mrs. B. V. Eubanks was the record owner of section 316, block B-4, H&GN Ry. Co., in Armstrong County, Texas; and that R. W. Tevebaugh was the record owner of section 5, block 4, BS&F Ry. Co. Survey, in Armstrong County, Texas.”

“The parties hereby stipulated that the roadway as now located, graded and maintained by Armstrong County, lies thirty (30) feet on each side of the true survey line between said sections 315, block B — 4, H&GN Ry. Co., and section 4, block 4, BS&F survey, that the true and correct survey line between said section 315 and said section 4, is that line which was established by the survey made by Howard T. Trigg on April 10, 1961; that said survey is the center line of the presently located and graded road.”

The Trigg survey shows that section 315 owned by plaintiff, Wendell Benton, is located north of section 4 owned by defendant, Taylor, and section 316 owned by plaintiff, Buena V. Eubanks, is located north of section 5 owned by defendant Tevebaugh. About six acres of land off of the north side of sections 4 and 5 are involved in these lawsuits.

The defendants contend that there was no evidence that the plaintiffs or their predecessors in title had been in continuous and uninterrupted adverse possession of the land for any ten or twenty five years period. The plaintiffs contend the evidence conclusively shows that they satisfied all the requirements of the ten and twenty five year statute of limitations.

Mrs. Buena V. Eubanks testified substantially as follows:

I came with my mother and stepfather to this county in 1905 when my mother purchased sections 315 and 316; at such time there was a fence line to the south of these two sections; in about 1940 or 1941 my mother passed away and in dividing the estate I acquired the west half of section 316; about forty years ago I purchased the east half of the section from Wendell Benton; I have owned section 316 since that time; I have farmed the west half, the east half is in grass and I have “pastured that”; I have claimed this land since I acquired it; I have also leased it; the entire section is leased now and I am collecting the money on the lease; in 1959 I signed a petition to open a road, the center of the road to be the south line of sections 315 and 316; I own the east half of the fence but I have never had any agreement with Tevebaugh about it; the south part of the west part of the section 316 is in cultivation; it is cultivated up to the fence line; the east side of the section is now leased to Tommie Todd and the cultivated land to Dalton Dye; I am paying taxes on this property, but not on Tevebaugh’s section.

I am familiar with section 315 and the old fence line to the south of the section between Mr. Taylor and Mr. Benton; that fence had been there since 1905 until it was moved recently by the county; section 315 has been in cultivation but a part of it is in the Soil Bank now; I have never had this land surveyed; the first time I knew where the true section line was located was after the Trigg survey; that on the 1st day of October, 1959, 1 petitioned the county to open a public road beginning at the southwest corner of section 315 and the northwest corner of section 4; the road was to extend east and the center line of the road “to he the south line of section 315 and 316; I petitioned the county to open the road on the section line;”

“Q. Were you claiming the land, any of the land, on the south side of the road that you petitioned to be opened?

“A. No.”

On June 1, 1960, I signed another petition to the Commissioner’s Court to open a road which is Tevebaugh and Taylor Exhibit No. 2; this calls for a road from the southwest corner of section 315 and the northwest corner of section 4; the center line of the road to be the south line of section 315 and 316; at the time I signed this petition, I recognized that the true section line was where the road was to be constructed ;

“Q. And you were not claiming any land that would lie south of that road, if and when it was opened, would you, Mrs. Eubanks ?

“A. No, sir.”

Benson Eubanks testified substantially as follows:

Mrs. Buena V. Eubanks is my mother; I have lived in Claude all my life; I am familiar with the fence line between these sections; Howard Trigg made a survey and the road was actually built thirty feet on either side of the section line.

Mrs. Wendell Benton testified substantially as follows:

My husband’s father owned section 315 from 1905 until he died and then we acquired it; I have been familiar with the old fence between us and Mr. Taylor since I married Mr. Benton; we farmed the land up to the fence line ever since I have been married to Mr. Benton; the fence has been there continuously all during that time; I don’t know if Mr. Taylor owned half of the fence or not and I don’t know whether we own the fence or not; “Q. Well, I will put it this way — as far as you know, it was not Mr. Benton’s intention to claim any land on the south side of that road after it was opened? A. No, he didn’t want anybody’s land; we just wanted ours up to the fence.”

Wendell Benton’s name appears on an exhibit which was a notice of a petition to open a road. The notice designates the road as beginning at the southwest corner of section 315 and the northwest corner of section 4 and extending east for a mile, the center line of the road to be the south line of section 315 and 316.

When we review an instructed verdict, we must consider the evidence most favorable in behalf of the party against whom the verdict is instructed. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422.

The general rule is that the testimony of interested witnesses does no more than raise fact issues. James T. Taylor, Etc. v. Arlington Independent School District (Sup.Ct.), 335 S.W.2d 371. “Stated in another form, the rule is that the uncontradicted, uncorroborated testimony of a party to a suit will not authorize or support an instructed verdict.” Simmonds v. St. Louis B. & M. Ry. Co. (Com.App.), 127 Tex. 23, 91 S.W.2d 332.

In Cook v. Winter, Tex.Civ.App.,, 207 S.W.2d 145 (Writ Ref. N.R.E.), at: page 149 the court said:

“A person claiming title to land by virtue of ten year adverse possession has the burden of proving ten consecutive years of peaceable adverse possession and that he cultivated, used or enjoyed, the same during that period of time and the proof must be clear and satisfactory. Moore v. Wooten, Tex.Com.App., 280 S.W. 742; West v. Mora, Tex.Civ.App., 138 S.W.2d 600. Presumptions to establish such a claim will not be indulged but such a claimant has the burden of proving every necessary or essential fact, in connection with his possession and claim, which go to make up or give him title by limitation.”

When we consider the fact that the witnesses were interested parties and the further fact that Mrs. Eubanks testified that she had no intention to claim any land south of the road which she had petitioned the county to construct and the further fact that Mrs. Benton testified that it was not her husband’s intention to claim any land south of the road which Mr. Benton had petitioned the county to construct, we are compelled to hold that the record does not show that the plaintiffs have conclusively established their title by limitations. Moreover, the record does not show that the court instructed a verdict on the limitations issue. The court said: “I think I will grant plaintiffs’ motion for instructed verdict, since I think the testimony shows without question that all parties involved in this law suit accepted the fence as the boundary line for many, many years. So, I instruct a verdict on behalf of the plaintiffs.”

We will now consider the boundary issue. We find no merit in plaintiffs’ contention that the instructed verdict was proper because by recognition and acquiescence the old fence was established as the boundary line. Our Supreme Court in the case of Gulf Oil Corporation v. Marathon Oil Company, 137 Tex. 59, 152 S.W.2d 711, 714, said:

“The rules with respect to the establishment of boundary by agreement are well settled by the decisions in this state and by other authorities. There is no real difference about them in the briefs of the parties to this suit. They may be stated generally and briefly as follows: When there is uncertainty, doubt or dispute as to where the true division line between the lands of the parties may be, they may fix it by parol agreement, which will be mutually binding upon them, even though they were mistaken as to the true location of the line. This is true whether the mistake be of a matter of fact or of law. The existence of uncertainty, doubt or dispute is essential to the validity of such agreement. Actual dispute, however, between the parties is not necessary. It is enough that the location of the line had not been definitely established and is doubtful or uncertain.”

In the case of Boothe v. Fuentes, Tex.Civ.App., 262 S.W.2d 754, 755 (No Writ His.), the court said:

“As we understand the doctrine of boundary by acquiescence, it must be shown that there was some uncertainty as to the true boundary, which resulted in a line being established (generally by a fence), and that thereafter the adjoining land owners acquiesced in and recognized this line as the true boundary line between them. The mere erection of a fence off the boundary line is not in itself sufficient to make the doctrine applicable.”

In Strayhorn v. Jones, (Sup.Ct.), 157 Tex. 136, 300 S.W.2d 623, 633, the court said:

“The facts regarding the boundaries were undisputed. The jury finding that no doubt or uncertainty existed and that there was no agreement ‘by words’ as to the fences being the boundary shows there W'as no dispute or uncertainty as to the true boundary. At best, the jury findings show only an acquiescence in the boundary as shown by the fences built. The correct boundary was a question of law.”
“The case of Great Plains Oil & Gas Co. v. Foundation Oil Co., 1941, 137 Tex. 324, 153 S.W.2d 452, 458, discusses fixing boundary lines by acquiescence. The rule is stated as follows :
“ 1 * * * But acquiescence in a line other than the true line will not support a finding of an agreement establishing the line as the boundary when there is no other evidence of agreement than acquiescence and when it is affirmatively shown that the use of the line resulted not from agreement but from a mistaken belief of the parties that it was the true line. Stier v. Latreyte, Tex.Civ.App., 50 S.W. 589; Hunter v. Malone, 49 Tex.Civ.App., 116, 108 S.W. 709; Gulf Oil Corporation v. Marathon Oil Company, 137 Tex. 59, 152 S.W.2d 711. Similarly, when the true location of the line is conclusively proven, mere acquiescence in another line in the mistaken belief that it is the true line will not support a finding that such other line is the true line. Buie v. Miller, Tex.Civ.App., 216 S.W. 630 (Application for writ of error refused); Thompson v. Allen, Tex.Civ.App., 111 S.W.2d 791.’ ”

We have concluded that the court was not warranted in instructing a verdict for the plaintiffs on the boundary issue.

The judgment is reversed and the cause is remanded.


author: FANNING, Justice.

text:
    Alva SAUNDERS, Appellant, v. William B. MARTIN et al., Appellees.
    No. 7648.
    Court of Civil Appeals of Texas. Texarkana.
    April 13, 1965.
    Rehearing Denied May 11, 1965.

      William G. Odeneal, Jr., Odeneal & Ode-neal, Dallas, for appellant.
    Whitfield Clark, Clark, Reed & Clark, Chester A. Oehler, Dallas, for appellees.
   FANNING, Justice.

A summary judgment case. Plaintiff-appellant Saunders brought suit on the alleged fraudulent actions of defendants-appellees in regard to the sale of a residence by defendant owner William B. Martin and sold by defendant Rosa McMillan as a real estate broker. Plaintiff sought judgment against appellees for the difference in the actual value of the house and the value as represented; and in the alternative sought to recover against defendants jointly and severally his cost in repairing the allegedly concealed defects and made other contentions.

Defendants’ motions for summary judgment were granted by the trial court. Plaintiff’s motion for new trial was overruled. Plaintiff has appealed.

Summary judgment proceedings do not seek to decide issues of fact, but to ascertain if any genuine issues of material fact exist. Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236, wr. ref., n. r. e. (1951); Lotspeich, et vir v. Chance Vought Aircraft, et al, Tex.Civ.App., 369 S.W.2d 705, wr. ref., n. r. e. (1963).

Saunders was shown a house owned by Martin on or about Oct. 15, 1958, and a few days subsequent thereto, by Mrs. Williamson, an agent of real estate broker McMillan. On Oct. 25, 1958, a contract was executed between Saunders and Martin for the purchase of said house for $37,000.00, with Saunders further agreeing to pay the broker McMillan, a commission of $1,500.-00. Martin and wife conveyed the property to Saunders by warranty deed on Nov. 3, 1958, and received the $37,000.00 agreed to be paid to them by the contract. Saunders paid broker McMillan the $1,500.00 commission.

Plaintiff claimed that defendant McMillan made certain oral representations in regard to the house that were false at the time they were made, known to be false by the party making them, and were relied upon by the plaintiff to his damage. This alleged reliance was based on the statement that “the house was built of fine materials and ‘A-l materials’ ”. Plaintiff further claimed that the fair market value of the house as represented was $38,500.00; however, since it was “not built of fine materials and A-l materials”, its value at the time of delivery was $34,500.00. Plaintiff further claimed and alleged that certain defects and flaws were discovered upon moving into the house and that they were either concealed or did not exist at the time of his inspection.

On April 4, 1959, the appellant-plaintiff, after making certain repairs and improvements to the property in an amount (or approximate amount) of $1,445.06, sold the property in question for $40,000.00.

Plaintiff’s oral deposition was taken. In it plaintiff stated to the effect that he looked at the house before he bought it, that he walked through the house twice with Mrs. Williamson (an agent of broker McMillan) and that he went into all of the rooms of the house. In answer to the question “Did Mrs. Williamson conceal anything from you at the time she showed you through the house”, plaintiff replied “Not to my knowledge”. Appellant further stated to the effect that he could not say that Mrs. Williamson had concealed any defects in the house from him and stated: “I imagine if she knew it was there, I think she would have told me about it. But I don’t think she knew the house was in that shape.” Appellant, in answer to the question, “Do you think she (Mrs. Williamson) intentionally concealed anything from you?”, replied, “I do not.” Neither defendant Martin, nor defendant McMillan showed the house to plaintiff Saunders — it was shown by Mrs. Williamson (agent of McMillan) and the house was looked at twice by Saunders, looking into all rooms, before Saunders signed the purchase contract.

We think it is a fair conclusion from appellant’s statements in his deposition and the record as a whole that, due to his actual investigation of the premises he was in as good a position as appellee McMillan and her agent Williamson to determine the quality of the materials and construction of the house.

Appellant’s claim against broker defendant McMillan is based on her statement that “the house was built of fine materials and A-l materials”. This statement was not made by the owner defendant Martin and plaintiff does not claim that Martin made such a statement. It is undisputed that appellee Martin made no representations whatsoever to appellant except those contained in the written contract.

It is clear from the undisputed record that the broker McMillan was not a general agent of defendant Martin authorized to make representations in behalf of Martin. In this connection see Loma Vista Development Co. v. Johnson, 142 Tex. 686, 180 S.W.2d 922 (1944), wherein it was held that ordinarily a real estate broker with whom a house is listed is only a special agent with limited authority to showing the property and finding a purchaser.

Unquestionably, defendant Martin under the undisputed record did not make any fraudulent representations, and any representations made by broker defendant McMillan as to the house being built of fine materials and A-l materials were not authorized (or known of) by Martin and were not within the scope of any authority delegated by Martin to McMillan.

We are also of the view that defendant McMillan’s statement that “the house was built of fine materials and A-l materials”, was more in the nature of puffing talk or dealer’s talk, and the expression of an opinion without there existing any element of bad faith on Mrs. McMillan’s part, since under the record it is clear that defendant McMillan and plaintiff Saunders were dealing at arms length and both had equal means of information and were equally qualified to judge the true facts. See the following authorities: Zucht v. Stewart Title Co., Tex.Civ.App., 207 S.W.2d 414, wr. dism. (1948); Harris v. Sanderson, Tex.Civ.App., 178 S.W.2d 315, writ refused (1944); Whitsel v. Hoover, Tex.Civ.App., 120 S.W.2d 930, wr. dism., (1938).

Also in this connection, see 25 Tex.Jur. 2d 47, wherein it is stated in part as follows:

“General commendations, commonly known as dealer’s talk, seller’s statements, or puffing, do not amount to actionable misrepresentations where the parties deal at arm’s length and have equal means of information and are equally well qualified to judge the true facts. Cope v. Pitzer (CA) 166 S.W. 447, err. dism’d; Patterson v. Bushong (CA) 196 S.W. 962, err. ref.; Tippit v. Stue Kert [Stuckert] (CA) 71 S.W.2d 914 [609], The law will not assist the purchaser who accepts exaggerated statements of value made by a vendor when he is in a position, as good as that of the vendor, to ascertain the truth of the assertions. Riley v. Treanor (CA) 25 S.W. 1054.”

It is our view that under the undisputed record the trial court correctly granted the motions for summary judgment. Appellant’s various contentions have been considered and are overruled.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

The opinion of this court in this cause was rendered April 13, 1965. Rule 458, Texas Rules of Civil Procedure, provides that a motion for rehearing must be filed within 15 days from the date of judgment. Under this rule, appellant should have filed his motion for rehearing on or before April 28,1965.

Rule 5, T.R.C.P. provides as follows:

“When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion (a) with or without motion or notice, order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (b) upon motion permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act; but it may not enlarge the period for taking any action under the rules relating to new trials or motions for rehearing except as stated in the rules relating thereto or the period for taking an appeal or writ of error from the trial court to any higher court or the period for application for writ of error in the Supreme Court, except as stated in the rules relating thereto; provided, however, if a motion for new trial, motion for rehearing, any matter relating to taking an appeal or writ of error from the trial court to any higher court, or application for writ of error is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail one day or more before the last day for filing same, and the envelope or wrapper containing same bears a postmark showing such deposit, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time.” (Emphasis added.)

Rule 5 and Rule 458 with respect to motions for rehearing and providing for mailing a motion are mandatory. Davis v. Brotherhood of Ry. Carmen of America, Tex.Civ.App., 272 S.W.2d 938, no writ (1955).

Appellant on April 29, 1965, addressed a letter to the clerk of this court, enclosing a motion to allow the late filing of appellant’s motion for rehearing in this case, which motion for late filing was received and filed by the clerk of this court on April 30th, 1965. The grounds set up in said motion to file are essentially as follows: That on April 27, 1965, appellant’s attorney mailed a motion for rehearing and two copies of same by proper mail which was postmarked April 27, 1965, and which was addressed to the clerk of this court. However, the address was incorrect in that the envelope was addressed to the clerk of this court at the city of “Dallas”, Texas, instead of the proper address, “Texarkana”, Texas. The said letter was not delivered to the clerk of this court, but was returned by the postal services to appellant’s attorney and he received the same on April 29, 1965. Then, as above stated, said attorney on April 29, 1965, mailed the motion for rehearing with two copies thereof to the clerk of this court and mailed in connection therewith his motion for permission to file the motion for rehearing and has requested this court to liberally interpret Rule 5, T.R.C.P., so as to permit the filing of his motion for rehearing.

The envelope which bore a postmark of April 27th, 1965, addressed to the Clerk of this Court at “Dallas, Texas” did not reach the clerk of this court. Rule 5 requires a proper address. The envelope postmarked April 27, 1965, was improperly addressed and was not in compliance with Rule 5, T. R.C.P.

The motions for rehearing mailed on April 29th, 1965, were mailed too late. Since Rules 5 and 458, T.R.C.P., are mandatory with respect to motions for rehearing, we have no discretion to allow the late filing of appellant’s motion for rehearing. We must therefore overrule appellant’s motion to file his motion for rehearing. In this connection see the following authorities: Reynolds v. Dallas County, 146 Tex. 372, 207 S.W.2d 362 (1948); Thomas v. Thomas, Tex.Civ.App., 228 S.W.2d 548, no writ (1950); Davis v. Brotherhood of Railway Carmen of America, Tex.Civ.App., 272 S.W.2d 938, no writ (1955); Bell, et al. v. Rains County, Texas, Tex.Civ.App., 326 S.W.2d 189, no writ (1959).

Appellant’s motion to file his motion for rehearing is overruled.


author: WILSON, Justice.

text:
    Linus F. HARDIN et al., Appellants, v. JAMES TALCOTT WESTERN, INC., Appellee.
    No. 4364.
    Court of Civil Appeals of Texas. Waco.
    May 6, 1965.
    Rehearing Denied May 27, 1965.
    Howard Wayland, Houston, for appellants.
    Ross, Banks, May & Cron, John A. Cavin, Houston, Cofer & Dillon, Bryan, for appel-lee.
   WILSON, Justice.

This appeal requires determination of the question of whether parol evidence is admissible to show an extrinsic oral agreement supplementing the data and recitals in the following purchase order form:

“PARKER-ASTIN, Incorporated Bryan, Texas.
Parker-Astin, Inc.
By B. H. Dye.”

James Talcott Western, Inc., assignee of Sports Specialties, Inc., to whom the purchase order was directed, sued Parker-Astin for debt alleging non-payment of the purchase price of footballs described in the purchase order. It was alleged that appellants guaranteed payment of the account. Parker-Astin pleaded, among other defenses, that the transaction was a consignment Side under which no title passed. In a non-jury trial a take-nothing judgment was rendered in favor of Parker-Astin, but judgment was rendered against appellants as guarantors.

The court found that the parties agreed Parker-Astin had the right to return the merchandise for credit,’concluding that pa-rol evidence was admissible to prove the terms of the agreement. Appellants’ points, in effect, attack admission of this evidence and rendition of judgment in Parker-Astin’s favor based thereon.

The testimony assailed is that of Parker-Astin’s former sales manager, Dye, concerning his prior or contemporaneous conversation with Sports Specialties’ sales representative, Slaughter, who solicited the purchase order. Dye testified the terms of sale orally agreed on were that it was a “guaranteed sale,” i. e., the merchandise was to be paid for when sold; if it was not sold, it could be returned for credit, or for refund if Parker-Astin paid cash or took a discount. Parker-Astin sold 66 of the 1000 footballs, for which it paid. There is evidence to show the footballs were salable in volume only after a contemplated local promotional advertising campaign, “but the promotion did not go in Bryan.” Slaughter did not testify.

An exception to the basic rule excluding evidence of an extrinsic agreement to vary, add to or subtract from the terms of a written contract is that if the instrument itself shows to be incomplete, parol evidence is admissible “to show what the real contract was to the extent necessary” to make it complete “in its terms which show to be incomplete.” Magnolia Warehouse & Storage Co. v. Davis & Blackwell, 108 Tex. 422, 195 S.W. 184, 185, syl. 1.

The most satisfactory index of whether the writing is intended to embody the entire agreement so as to be regarded as complete, and whether or not the parol or extrinsic agreement is collateral, it has been said, is found in the circumstance of “whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing.” IX Wigmore, Evidence, (3d ed.) Sec. 2430, p. 99. Whether the writing is incomplete, and whether the extrinsic agreement is admissible may be further tested by whether the latter is consistent with or repugnant to the writing. See Schiller v. Elick, 150 Tex. 363, 240 S.W.2d 997, 1000; Martin v. Hemphill, Tex.Com. App., 237 S.W. 550, 552; 4 Williston, Contracts (3rd ed., Jaeger), Sec. 636, p. 1033, Sec. 638, p. 1042, Sec. 642, p. 1067; 2 McCormick & Ray, Evidence (2d ed.) Secs. 1611, p. 451, 452; 1613, p. 467; 1631, p. 483; 1632, p. 487; 1 Restatement, Contracts, Sec. 240.

The order here, typed on ParkerAstin’s printed form, if it is assumed to be a contract, is without doubt incomplete upon its face. It does not deal at all with payment or terms of payment. Indeed the space for “terms” is blank. With what subjects does it deal? Quantity, description of merchandise, and cost. The agreement that the sale was one upon consignment, or was “guaranteed” — an agreement as to “terms” —is one which might naturally and normally have been made collaterally by parties situated as were these. Cases relied on by appellants are those in which the extrinsic bargain directly contradicted the writing sued upon, or were those in which omitted elements were supplied by law. In our opinion the evidence was admissible and supports the judgment. See Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32, 34. Affirmed.

      . (“Guaranteed” has no relation to appellants’ status as subsequent guarantors of the assigned account).

      . Conversely, if the written agreement is absolute and complete on its face, evidence of an extrinsic agreement that the goods might he returned, part of the purchase price might be refunded, or that the transaction was one of bailment has been held inadmissible. 4 Wil-liston, Contracts (3rd ed., Jaeger), Sec. 641, p. 1064.


author: HUGHES, Justice.

text:
    William H. ELLMAN et al., Appellants, v. Rochette REINARZ, Administrator of the Estate of J. L. Baldus, Deceased, Appellee.
    No. 11289.
    Court of Civil Appeals of Texas. Austin.
    May 5, 1965.
    Rehearing Denied May 26, 1965.

      Benjamin Shefman, New Braunfels, for appellants.
    Richard A. Jasinski, New Braunfels, for appellee.
   HUGHES, Justice.

This appeal is from an order, made without notice or bilateral hearing, appointing a receiver to take charge of the New Braun-fels News, a newspaper business, located at 278 W. San Antonio Street in New Braun-fels, Texas.

Rochette Reinarz, Administrator of the Estate of J. L. Baldus, deceased, filed suit in the court below against William H. Ell-man and wife, Elizabeth Ellman, John Taylor, George Stein, Ray Mauer and the New Braunfels Publishing Company, Inc., to recover the balance due on a note executed May 20, 1958, by Mr. and Mrs. Ellman for $18,000.00 payable in monthly installments to plaintiff, appellee herein, for attorney’s fees, interest and costs and for foreclosure of a chattel mortgage lien given to secure payment of such note on “The assets and good will of the weekly publication known as Town and County News, including the following listed itemshere follows a list of office and newspaper furniture and equipment.

Appellee alleged that the Ellmans entered into an agreement with the other individual defendants whereby the newspaper business of the Town and County News was converted into the New Braunfels Publishing Co., a corporation solely owned by the individual defendants.

Appellee also alleged a default in his note of $5,100.00, the default commencing with the installment due April 15, 1963 and continuing through the installment due August 15, 1964. Acceleration of the balance due, as authorized by the note, was declared.

The specific allegations upon which the ex parte appointment of the receiver is based are:

“Plaintiff further shows that, according to his information and belief, the defendants; corporation is insolvent and the defendants are unable to finance and otherwise carry out and perform their said obligations in connection with this business and to pay this plaintiff the amount due him. Plaintiff shows that he had no adequate remedy at law by which to collect the amount due to him by defendants, and that he will suffer irreparable injury by reason of facts set forth unless the properties of the defendants are taken in charge of a receiver and operated under his supervision and direction. Plaintiff states that a continuity of this newspaper business is of necessity, that contractual obligations are owing to the subscribers thereof and others, and there exists a necessity of keeping and retaining the good will of the community as a whole, which is necessary and peculiar to the newspaper business; that plaintiff knows personally that the newspaper will not be able to publish a copy this week unless a receiver is immediately appointed.
“Plaintiff also shows the court that the necessity for the appointment of such receiver is immediate and urgent and that such appointment should be made without any delay whatsoever.”

Appellants have four points of error which are to the effect that under the pleadings it was error for the court to appoint a receiver without notice.

Appellants cite Marion v. Marion, Tex.Civ.App., 205 S.W.2d 426, San Antonio, n. w. h., and other cases for the rule that the “Appointment of a receiver without notice to the adverse party is one of the most drastic remedies known to the courts and should be exercised only in extreme cases, where the right thereto is clearly shown, and then in the exercise of great caution by the court.”

Art. 2293, Vernon’s Ann.Tex.Civ.St., provides, in part that receivers may be appointed in cases where a corporation is insolvent and in actions “by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, when it appears that the mortgaged property is in danger of being lost, removed or materially injured. % * »

It is our opinion that the trial court had discretionary authority under either or both of these statutory provisions and the allegations of the petition to appoint a receiver of the newspaper business of appellants.

It is quite true that insolvency of a corporation alone will not justify the appointment of a receiver for the corporation without notice but insolvency coupled with a situation creating an emergency does authorize the appointment without notice. See Texas Mexican Ry. Co. v. State, Tex.Civ.App., 174 S.W. 298, San Antonio, n. w. h.

The emergency here, as disclosed by the pleadings, was that unless a receiver was appointed to operate the newspaper business of appellants that the newspaper would not be published for the current week.

It is to be noted that the mortgage which appellee held to secure his debt was not merely on certain chattels used in the operation of a newspaper but was on the “assets and good will of the weekly publication known as the Town and County News” including specific articles. Part of the assets of any business, particularly a newspaper business, is its value as a going concern. This asset would be lost if the paper ceased publication as appellee alleged it would.

The asset of “good will,” expressly included in the mortgage, would be greatly impaired, if not lost, by appellants’ inability “to finance and otherwise carry out and perform their said obligations in connection with” the newspaper business as alleged.

Considering that a newspaper has other assets such as subscriptions and advertising accounts which might be lost if publication of the paper was suspended, we are of the opinion that the trial court did not abuse his discretion in appointing a receiver, without notice, to take charge of the affairs of the newspaper business of appellants. We add only that no complaint is made that adequate security has not been posted by appellee and the receiver.

Appellee has filed a supplemental transcript containing matters not before the trial court and, hence, not before this Court. The cost thereof is assessed against him. All other costs are assessed against appellants.

The judgment of the trial court is affirmed.

Affirmed.


author: WERLEIN, Justice.

text:
    AETNA LIFE INSURANCE COMPANY et al., Appellants, v. Emos L. CREEL, Appellee.
    No. 14574.
    Court of Civil Appeals of Texas. Houston.
    May 6, 1965.
    Rehearing Denied May 27, 1965.

      Harold L. Ogden, Fouts, Moore, Williams & Caldwell, Houston, for appellant Aetna Life Ins. Co.
    Gordon Griffin, Griffin, Griffin & Old, Brownwood, for appellant Willie Belle Creel.
    W. David Evans, Wiley Thomas, Ballard Bennett, Angleton, for appellee.
   WERLEIN, Justice.

This suit was brought by appellee, Emos L. Creel, in the District Court of Brazoria County, Texas, against his former wife, Willie Belle Creel, a resident of Brown County, Texas, and Aetna Life Insurance Company, hereinafter called Aetna, a foreign corporation, seeking a declaratory judgment declaring that Willie Belle Creel is not entitled to receive annuity payments under Group Annuity Contract No. GA 160 issued by Aetna to appellee’s former employer, Petty Geophysical Engineering Company, hereinafter called Petty, and declaring that all annuity payments should be paid to appellee.

Appellant, Willie Belle Creel, filed a plea of privilege to be sued in Brown County, to which a controverting affidavit was filed by appellee. Subject to her plea of privilege appellant pled in her answer the final judgment of the District Court of Brown County entered December 19, 1963 in Cause No. 14694 on the docket of said court, styled “Willie Belle Creel vs. Emos L. Creel” wherein Willie Belle Creel was granted a divorce, and a division of property was decreed. No appeal was taken from such judgment and the same became final. In such judgment Willie Belle Creel was awarded, in addition to other property, all of the parties’ interest in and to said retirement fund and all future payments to be made by Aetna under said Contract No. GA 160, and Emos L. Creel, appellee herein, was awarded certain personal property and all real estate in his name located in Brazoria County.

The parties in the present suit entered into an agreed stipulation of evidence for use by the court in considering appellant’s plea of privilege, pleas to the jurisdiction and in abatement, as well as the merits of the case. The court basing its judgment on such written stipulation and the pleadings of the parties, overruled appellant’s plea of privilege, and her pleas to the jurisdiction and in abatement, and decreed in substance that appellee recover from Aetna monthly annuity payments which had accrued since December, 1963, when said divorce was granted, under its Policy No. GA 160 407-P, in the amount of $55.93 per month, aggregating a total of $615.23. The Court further decreed that appellant has no right to or interest in the monthly annuity payments which had accrued and no interest in future annuity payments which would accrue, and that the portion of the judgment in said Cause No. 14694 entered by the District Court of Brown County, which purports to divest appellee of the right to receive such annuity payments and to grant the same to appellant, is null and void and of no force or effect. The court found that the District Court of Brown County lacked jurisdiction to enter and render said portion of its judgment.

Appellant asserts that the trial court erred in holding the judgment of the District Court of Brown County subject to collateral attack, and in declaring null and void that portion of the judgment of the District Court of Brown County divesting appellee of the right to receive such payments and transferring the same to appellant. Appellant does not assign as error the Court’s overruling of her plea of privilege.

The trial court in its judgment held that the portion of the judgment referred to hereinabove was void, but the court did not set out its conclusions of law or the basis for such holding. Appellee pled in the present suit that the judgment of the District Court of Brown County was void since Aetna was not a party to said divorce suit, nor was appellee’s former employer, Petty, made a party thereto. He contends that both Aetna and Petty were indispensable parties to the suit in Brown County, in which the court awarded to appellant the annuity payments that had accrued and that would accrue, and further that without the joinder of said parties the court lacked jurisdiction to consider or determine such issues.

Appellee has cited a number of cases holding in effect that in a suit to alter, cancel or construe legal rights under a contract, the court has no jurisdiction unless all necessary and indispensable parties are made parties to such suit, and further that the want of necessary parties is fundamental error which the appellate court will notice. The rule relied upon by appellee is well established, but it is inapplicable to the factual situation in the suit brought in the District Court of Brown County. That suit was not brought to alter, cancel, rescind or construe the legal rights or obligations of the parties to the annuity contract in question. The court merely decreed that' as between appellant and appellee both of whom were before the court, appellant shall take all of the parties’ interest in and to said retirement fund.

Appellee did not file in the suit in the District Court of Brown County a sworn pleading complaining of a defect of parties therein, as provided by Rule 93, Texas Rules of Civil Procedure, nor did he make any attempt to bring in additional parties before the case was called for trial, as provided by Rule 37, T.R.C.P.' Appellee, therefore, waived his right to complain in the present suit of any absence or defect of parties in the divorce suit unless there was in such suit an absence of indispensable parties without which no valid judgment could be entered. An indispensable party is defined as “[A] party who has such an interest in the controversy or subject matter that a final adjudication cannot be made, in his absence, without injuring or affecting such interest.” 67 C.J.S. Parties § 1, p. 892; Veal v. Thomason, 138 Tex. 341, 19 S.W.2d 472; Hollar v. Jowers, Tex.Civ.App., 310 S.W.2d 721, writ ref., n. r. e.; 44 Tex.Jur.2d, p. 139, Parties, § 3.

The question arises, therefore, as to whether Aetna or Petty were indispensable parties in said divorce suit in Brown County. Appellee terminated his employment with Petty in 1961. The divorce in question was granted on December 19, 1963. At the time of the termination of his employment with Petty, which was before appellee was 65 years of age, he elected to exercise his right to optional retirement, and thereupon he became entitled to receive each month a payment of $55.93 for life, with the provision that should he die before receiving the total amount of $3,-651.13 the difference between such amount and the amount received before death would be paid to the beneficiary under said policy, Willie Belle Creel. It was stipulated in the present suit that appellant and ap-pellee were married on August 16, 1952, and that appellee started to work for Petty sometime in the year 1937, and that from such date until his retirement in 1961 he made contributions to and was covered by said annuity contract.

Appellee’s former employer, Petty, was not a necessary party to said divorce suit. Some two years before the divorce action, appellee’s employment had terminated with Petty, and it was then definitely determined the exact amount of annuity payments that appellee would be entitled to receive from Aetna. A certificate or notice was issued by Aetna to appellee on August 3, 1961 setting out the amount of each annuity payment and the guaranteed return. Petty had no conceivable interest in the matter at the time of the divorce action. It will be noted also that in the present suit appellee did not consider it necessary to make Petty a party.

It is our view that Aetna was not an indispensable party in the divorce suit. Aetna was obligated to pay appellee, under the annuity contract and partial retirement plan which was selected by him, monthly payments for life, as hereinabove stated, with a guaranteed return of $3,651.13. Aetna’s obligation was fixed and determined. It has not been in any way adversely affected or injured, nor has its interest in the matter been affected. It had to pay a certain amount of money under its contract, and no more or less. Appellee had a vested right in such payments. In the present suit Aetna has filed merely a general denial and has appealed from the judgment of the trial court. It is certainly immaterial to Aetna whether appellant or appellee receives the money which it will have to pay. The judgment of the court in the divorce action and the decision in this suit in which Aetna is a party, will protect Aetna in making payments to appellant.

Since the District Court of Brown County had jurisdiction over appellant and appellee who were the only indispensable parties to the divorce action, its final judgment is not void or subject to collateral attack on the ground that there was a lack of indispensable parties and fundamental error.

Appellee apparently contends that the District Court of Brown County had no jurisdiction to decree said annuity payments to appellant because forbidden to do so by Article 21.22 of the Insurance Code of Texas, V.A.T.S., and also because of the following provision in the orginal annuity contract, to wit:

“No annuity payable hereunder may be assigned except with the written consent of the employer, and every benefit hereunder shall be exempt from claims of creditors of the person entitled thereto to the maximum extent permitted by law.”

Article 21.22 of the Insurance Code is based on Acts 1927, 40th Leg., p. 348, Ch. 234 (Vernon’s Annotated Civil Statutes, Art. 5068a), without substantive change. It merely exempts insurance benefits and annuities from seizure under process by creditors of the insured or of any beneficiary, either before or after said money or benefits is, or are, paid or rendered. The purpose for the enactment of the original Act by the Legislature which was approved March 30, 1927 was, as shown by the emergency clause, to secure beneficiaries in life, health and accident insurance policies and employees under annuities and benefits plans of their employers, against creditors. It does not in any way prevent a District Court in a divorce suit from decreeing and ordering a division of the estate of the parties, as it is required to do by Article 4638 of Vernon’s Texas Civil Statutes.

The provision in the annuity contract to the effect that the annuity could not be assigned except with the written consent of the employer, did not prevent the court from making a division of the estate in the divorce suit or from awarding such annuity to appellant. Furthermore, at the time of the divorce Petty was not the employer of appellee and had not been for some two years. It had no further interest in the annuity after the certificate was issued to appellee at the time of the termination of his employment, and the amount payable thereunder became a fixed and determined vested right in appellee.

Since the District Court of Brown County had jurisdiction over the parties and their estate, and Aetna and Petty were not indispensable parties, the judgment of said Court is not void, in whole or in part, and is not subject to collateral attack.

Reversed and rendered.


author: DUNAGAN, Chief Justice.

text:
    SCURLOCK OIL COMPANY, Appellant, v. Buford JOFFRION, Appellee.
    No. 112.
    Court of Civil Appeals of Texas. Tyler.
    April 29, 1965.
    Rehearing Denied May 27, 1965.

      Ruff Wall, LeRoy LaSalle, Carthage, Vinson, Elkins, Weems & S earls, by Jarrel D. McDaniel and Ewing Werlein, Jr. (on appeal only), Houston, for appellant.
    Tom Bankhead, Carthage, for appellee.
   DUNAGAN, Chief Justice.

The appellee, Buford Joffrion, the plaintiff below, brought this action against Scur-lock Oil Company, alleging that said oil company trespassed upon and damaged the plaintiff’s surface leasehold estate by laying two oil gathering pipelines over a portion of the plaintiff’s surface lease. The case was submitted to the jury on Special Issues, and based on the verdict thereon, the trial court awarded judgment for the plaintiff, Buford Joffrion, for both actual and exemplary damages, and the defendant, Scur-lock Oil Company, was additionally enjoined to desist from the use, maintenance or operation of the subject pipelines and to “desist from not removing the two pipelines” and restoring the lands from which they are removed within six (6) months from the date this judgment shall become final. It is from this judgment that the appellant brings this appeal.

In September, 1959, the fee owners of a certain tract of land in Panola County, generally known and referred to as the “S. M. Burns Estate Land,” and appellee entered into a lease from the 1st day of January, 1960, for a term of twelve years, which provided that appellee would have a lease on said land as to the surface rights only. The consideration provided for was $1.00 per acre per year. Paragraph X of said lease provided that the lessors retained all of the oil, gas and minerals in, on and under such lands, together with the rights of ingress and egress to and from any wells or mines for the purpose of developing, exploring, or producing oil, gas or other minerals. The lease was subject to all existing oil, gas and mineral leases, easements and rights-of-way. The tract consisted of about 845 acres of land. The appellee intended to use the land for purposes of a dairy business.

At the time the surface lease agreement was negotiated, there were three (3) wells on the property, which were subject to an oil, gas and mineral lease subsequently assigned to the Texas Company (now Texaco Inc.). The oil and gas leases granted the lessee “all easements, privileges and rights useful or convenient for lessee’s operations thereon, or on adjacent lands, including the right to lay pipelines * * Appellee did not show whether Texaco had any leases on adjacent lands. After the surface lease agreement was signed, but prior to the time that Scurlock Oil Company entered upon the land, there was a period of about a year and a half of very active oil exploration and production upon the subject lands by Texaco Inc. Thus, when Scurlock Oil Company first entered upon the land in 1961, there were at least seventeen (17) wells upon the land. Roads, pipelines, slush pits and other attendant changes had been made in the surface of the land for the construction and use of these numerous wells.

The present case is the second suit Jof-frion brought for damages to his leasehold on the subject land. The first suit was filed on September 1, 1961, and the appellee in this case, Buford Joffrion, instituted suit in the 123rd Judicial District Court of Pan-ola County, Texas, against Texaco Inc. and alleged in his petition that Texaco had negligently and unreasonably used the premises for the purposes of developing the mineral estate; that Texaco had located seventeen (17) oil wells upon the premises; that Texaco had approximately 32 oil and gas pipelines upon the premises and that all of the pipelines were constructed and left lying on the surface of the land; that Texaco had drained waste oil and other waste petroleum into a spring-fed creek near certain of its wells and that this had caused the pollution of the water and rendered it unfit for drinking purposes for ap-pellee’s cattle; and that Texaco had unnecessarily and unreasonably destroyed pine timber of trees on the premises. All of these and other acts and omissions on the part of Texaco, plead the appellee, had deprived him of the use of the surface of his dairy cattle business and further, Texaco had deprived him of this use of the premises for the remaining term of his twelve-year lease.

By trial amendment in that suit, the ap-pellee later modified his petition against Texaco to allege that Texaco’s acts “have rendered the water supply on such premises unfit and unsafe for pasturing cattle thereon, and has interfered with Plaintiff’s use of same and constitutes a negligent and unreasonable use of the premises, depriving the Plaintiff of the use of same for ranching and dairy business, and since the commencement of Plaintiff’s lease to the date of filing of this suit on September 1, 1961, the value of the use of Plaintiff’s leasehold interest in the land in question has been reduced in the amount of $23,000.00 to Plaintiff’s damages in said amount for which the Defendant is liable and indebted unto the Plaintiff. Further, by reason of such acts and conduct of the Defendant, the value of the use of Plaintiff’s leasehold interest in the land in question has been reduced from the date of filing of Plaintiff’s suit on September 1, 1961, until the date of the termination of said lease on January 1, 1973, in the amount of $50,000.00 to Plaintiff’s damage in said amount, for which the Defendant is liable and indebted to the Plaintiff in said amount.”

The appellee was successful in his suit against Texaco Inc. He received judgment based upon jury findings for $3,300.00 for past and future damages to his leasehold estate. One of the findings was:

“SPECIAL ISSUE NO. 2
“Do you find from a preponderance of the evidence that such escaped salt water and petroleum substances polluted the streams and water supplies so as to make the land in question unfit and unusable for ranching and dairy use?
“Answer: 'Yes’.”

Subsequently, the case was appealed by Texaco Inc., and judgment was affirmed by the Texarkana Court of Civil Appeals, Texaco, Inc. v. Joffrion, 363 S.W.2d 827. Texaco Inc. paid in full the judgment and costs.

On May 7, 1962, only 87 days after judgment was entered in favor of the ap-pellee against Texaco Inc., the appellee filed this cause of action against appellant, alleging that appellant had injured his leasehold estate. The leasehold estate involved in the case at bar is the same as that involved in appellee’s suit against Texaco Inc. Upon trial, appellee asserted that appellant had rendered the land unfit for dairying purposes.

In the case at bar, appellee in his first amended original petition alleged in part as follows:

“Plaintiff would show that by virtue of the unlawful trespass by the Defendant that his leasehold estate on such premises has been rendered unfit and unsafe for the dairy business of the Plaintiff, and he had been deprived of the value of the use of said leasehold interest in said land in question, since the date of such trespass to the date of this trial, in the amount of $6,000.00 and that by virtue of the unlawful trespass of the Defendant the value of the use of Plaintiff’s leasehold estate for the remainder of the term of Plaintiff’s lease has been reduced in the amount of $2,000.00 per year, totaling additional damages of $16,000.-00. * * * ” In the case at bar the jury made the following findings:
“SPECIAL ISSUE NO. 2
“Do you find from a preponderance of the evidence that the value of the use of Plaintiff, Buford Joffrion’s, surface leasehold estate was reduced by the construction and operations of the Defendant, Scurlock Oil Company’s 6” pipelines constructed in August of 1961 and January of 1962.
“Answer: Yes.
“SPECIAL ISSUE NO. 3
“What amount of money, if any, if paid now will reasonably compensate the Plaintiff, Buford Joffrion, for such reduced value of the use, if any, from and during August of 1961 to the present date.
“Answer: $3,000.00.
“SPECIAL ISSUE NO 4
“Do you find from a preponderance of the evidence that the value of the use of Plaintiff, Buford Joffrion’s surface leasehold estate from the present date to the remainder of the surface lease term to January 1, 1973, has been reduced by the construction and operations, to this date, of the Defendant, Scurlock Oil Company’s 6” pipelines in question.
“Answer: Yes.
“SPECIAL ISSUE NO. 5
“What amount of money, if any, if paid now, will reasonably compensate the Plaintiff, Buford Joffrion, for such reduced value, if any, from this date through the remainder of the surface lease term to January 1, 1973?
“Answer: $1,000.00.”

The jury also awarded to the plaintiff the sum of $6,000.00 as exemplary damages.

The appellant offered in evidence in the trial court the following proceedings in the appellee’s prior successful suit against Texaco Inc.: Plaintiff’s Original Petition; Plaintiff’s Trial Amendment; Charge of the Court and the Jury’s Answers to Special Issues; Judgment of the Trial Court; the Opinion of the Texarkana Court of Civil Appeals, and Mandate. The trial court refused to admit into evidence these proceedings and appellant by its Points of Error Nos. 1-6 says this action on the part of the trial court constitutes error. In its Point of Error No. 7 the appellant complains of the trial court’s error in limiting the appellant’s right of cross-examination of the appellee concerning his position in the Texaco suit.

Since Points of Error Nos. 1-7 all relate to the same basic problem, the appellant discusses them together and the court will likewise discuss and dispose of them together.

The appellant contends that the proffered evidence constituted highly material and relevant admissions by appellee against his interest regarding ultimate issues of fact litigated in the instant case, rebutting his contentions of causation and damage, and to show appellee sought to recover twice for the value of his lease. The appellant further contends that it was entitled to present to the jury evidence that the appellee— only months before he filed this suit against appellant — had plead that Texaco Inc. had deprived him of the use of his lease for his dairy business for the remainder of his twelve-year lease. That the entire suit against Texaco Inc. by the appellee was an admission by the appellee against interest in the present case. That each of the various exhibits as above named offered by the appellant and refused by the trial court was an admission against interest and was admissible against appellee.

A summary of the evidence in the case of Texaco, Inc. v. Joffrion was found by the Court of Civil Appeals to be as follows :

“The following summary is the evidence in its most favorable aspect supporting the jury findings. Texaco drilled and operates seventeen wells producing oil from the 844.3 acre tract. Oil and salt water pits were excavated that were not large enough to hold the oil, petroleum substances and salt water run into them in the course of production. The pits overflowed and these substances escaped onto the ground and into the creeks and water supply. Approximately 100,000 feet of pipe line was laid on the ground, the lines were ‘scattered’, crossed open fields and hay meadows, and did not follow the roads to the wells or any particular pattern. The fence enclosing the land was cut in six different places, but no gates or cattle guards were installed for approximately fifteen months. Roads to well sites were graded, abandoned, and new roads built in different locations. The entire tract was rendered useless for dairying, pasturing, cultivation of crops and harvesting of hay by Texaco’s use of the surface. The leasehold interest had a value of $5,000.00 per year for dairying purposes.”

We think the applicable rule of law was stated by the Supreme Court in the case of Campbell v. McLaughlin, 280 S.W. 189 (S.Ct.) 1926, a trespass to try title suit. In that suit the plaintiff was suing to recover some 600 acres of land. The defendant had already recovered these lands in a prior suit in which he was a successful intervenor, but where the plaintiff in the present suit had not been a party. In the course of trial, the defendant introduced in evidence as muniment of title that part of the judgment from the prior suit in which it was rendered that the defendant should recover the lands here involved. Some of the findings made by the jury in the first case, however, were now inconsistent with the position which the defendant was taking against the plaintiff in the second suit. Thus, the plaintiff sought to introduce these special findings of the jury in the prior suit to which the defendant was a party. The trial court refused to admit these special findings. On appeal the Supreme Court held that the trial court committed reversible error by refusing to admit into evidence the jury’s findings from the first case. The court held that the evidence offered by the plaintiff in the second case was an admission by defendants against their interest on a most material question of fact and, thus, the evidence was clearly admissible “as against any objection that could have been urged.” The Supreme Court held that:

“ * * * Such verdict is not to be admitted upon any principle of estoppel or res adjudicata, for of course a judgment has no binding force upon persons who are not parties or privies as to any fact upon which such adjudication was made. Such testimony is admissible as an ordinary admission of a party against interest, and it can make no difference what the precise form of the admission may assume. Any act, whether by oral statement, written pleadings, or conduct, whatsoever, by a person or by one authorized to speak or act for him, which fairly may be interpreted as an admission against interest upon a material matter of court inquiry, may be shown in evidence. * * * »

The court further stated that:

“ * * * The rule is well settled in Texas that abandoned pleadings containing material admissions against interest are admissible in evidence, and such admissibility does not depend upon their being signed or sworn to by the party sought to be bound. * * * There is no reason for holding that statements or conduct of a party in the progress of a trial, to have evidentiary force as an admission of fact, must necessarily be confined to the pleadings in the case. * * * ”

In the case of Swilley v. McCain, 374 S.W.2d 871, the Supreme Court said:

“ * * * We assume without deciding that in view of the position taken by the Swilleys in the Wagers case, the judgments, jury verdicts and other papers filed in both of the former suits were properly received in evidence as admissions against interest.”, citing

Campbell v. McLaughlin, supra, as its authority. See also the case of Southern Lumber Co. v. Kirby Lumber Corporation, 181 S.W.2d 859, (Tex.Civ.App.) 1944, writ refused, w. m.; Haywood v. Texas Employers Insurance Association, 383 S.W.2d 866 (Tex.Civ.App.) 1964, no writ history.

It is now well settled in this state that abandoned pleadings, or pleadings in another action, thereof in another court and between different parties, are admissible against the pleader and may contain material admissions against interest. Wise v. Haynes, 103 S.W.2d 477 (Tex.Civ.App.) 1937, no writ history; Campbell v. McLaughlin, supra; Corn v. Crosby County Cattle Co., 25 S.W.2d 290 (Tex.Com.App.) 1930; Moore v. Horn, 359 S.W.2d 947 (Tex.Civ.App.) 1962, writ refused, n. r. e.

The position taken here by Joffrion is clearly inconsistent with the proceedings instituted by Joffrion against Texaco Inc. and the prior pleadings were admissible as admissions putting Joffrion’s present claim in its true light.

We think the court should have admitted the proffered evidence as admissions against interest. Appellant’s Points 1-7 are sustained.

We next come to the consideration of appellant’s Points 12, 13, 14 and 15. Points Nos. 12, 13 and 14 are all referrable to one central point; that is, that the trial court erred in failing and refusing to include in its charge any reference to the good faith and belief of right in appellant in entering into the S. M. Burns Estate Land in connection with appellee’s claim for exemplary damages. By its Point 15 appellant complains of the court’s refusal to submit to the jury its requested issue as to whether appellant’s employees acted with malice toward plaintiff.

Appellant, before going upon the land in question, obtained right-of-way agreements from the S. M. Burns Estate, the owners of the land. Appellant by its pleadings and evidence in the lower court contended that it was the belief of its agents and officers that it had a right to go upon the land under this agreement. In laying the original lines, upon appellee’s objections thereto, the appellant instructed its agent to pay appel-lee damages for the construction of the pipelines across the Burns Estate, and for such damages paid him the sum of $1,500.-00. Appellant contended that in so paying said sum of $1,500.00, it obtained a letter agreement (which is in evidence) waiving any damages crossing the land in question, which appellant thought was sufficient to allow it to lay the lines in question. Appellant says it has always stood ready, willing and able to pay appellee any actual damages suffered to his grazing and surface lease by its activities upon the Burns Estate Land. Appellant contends that under its pleadings and evidence it was entitled to have submitted to the jury special issues inquiring as to its good faith in placing the pipelines across the Burns Estate Land, as to whether its employees acted with malice toward appellee, and the trial court erred in not submitting such issues.

Appellee alleged that the acts of appellant in trespassing were willful, deliberate and wrongful, thus entitling him to exemplary damages. Appellant denied these allegations and affirmatively pleaded that it entered rightfully under permission granted by the S. M. Burns Estate, the owners of the land herein involved and pursuant to an agreement previously entered into with appellee. Moreover, the appellee alleged that appellant committed a trespass and it has been held that “a trespass” is a willful or intentional wrong. Michels v. Crouch, 122 S.W.2d 211 (Tex.Civ.App.) 1938, no writ history.

We think the appellant by its pleadings and evidence raised the issues of a good faith entry and as to whether the entry complained of was either malicious or willfully made.

It is clear under the Texas authorities that exemplary damages for injuries to real property will not be awarded in the absence of the existence of circumstances of aggravation. The evidence must show some element of fraud, malice or oppression, and the conduct of the defendant must be actuated by or accompanied with some evil intent or result from such gross negligence that the same may be regarded as an intentional injury. Upham Gas Co. v. Smith, 247 S.W.2d 133 (Tex.Civ.App.) 1952, no writ history; Holland v. Lesesne, 350 S.W.2d 859, 865 (Tex.Civ.App.) 1961, writ refused, n. r. e.

Damages by way of punishment, as the general rule, may not be awarded where it appears that the defendant acted in good faith or without wrongful intention or in the good faith belief that he was exercising his right. Erie Telegraph & Telephone Co. v. Kennedy, 80 Tex. 71, 15 S.W. 704 (1891); Pennock v. Texas Builders’ Supply Co., 193 S.W. 760 (Tex.Civ.App.) 1917, no writ history; Cantrell v. Broadnax, 306 S.W.2d 429 (Tex.Civ.App.) 1951, writ refused, n. r. e.; Upham Gas Co. v. Smith, supra; Wilson v. Texas Co., 237 S.W.2d 649 (Tex.Civ.App.) 1951, writ refused, n. r. e.

In the case under consideration appellee alleged that appellant’s conduct was willful, wrongful and unlawful. In order to recover exemplary damages, the appellee must not only plead, but he must prove that appellant acted with malice. Alamo Boiler & Machine Works v. Phillips, 215 S.W.2d 933 (Tex.Civ.App.) 1948, no writ history. It is fundamental that plaintiff must recover, if at all, upon the cause of action alleged. Michels v. Crouch, supra. Appellee made no request for an issue to be submitted to the jury covering this independent ground of recovery. As such, unless it is conclusively established under the evidence, it is appellee’s duty to request the submission of the same or else suffer a waiver of this ground of recovery. Alamo Boiler & Machine Works v. Phillips, supra; Rule 279, Texas Rules of Civil Procedure.

If an ultimate issue essential to the claim or defense and necessary to form the basis for a judgment is pleaded and raised by the evidence, the court upon proper request from the party relying upon same, should submit such issue for determination by the jury. Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, 1940; Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651, 1953.

The burden upon the appellee is set out in 56 Tex.Jur.2d, Trespass, pages 39-41, Section 33:

“Where actual damage has been sustained, and where a wilful or intentional entry on the plaintiff’s land or premises has been pleaded and proved, exemplary or punitive damages may be recovered in an action of trespass. ^ »

Wrongful purpose or intention is determinative of appellant’s liability for exemplary damage. As stated in Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709, 1943; “Regardless of the exception which is used to describe it, the purpose or intention of the defendant is determinative of his liability for exemplary damages.” See 56 Tex.Jur.2d page 16, Section 8.

Under the record in this case, if for no other reason, by virtue of the holding in Holland v. Lesesne, supra, appellant’s recovery of exemplary damages could not stand because there was no finding that the trespass was either malicious or willful. A finding that the trespass was either malicious or willfully done is essential to a recovery of exemplary or punitive damages.

Appellee counters with numerous contentions why these points should not be sustained. Without deciding the merit of appellee’s contentions in view of the disposition we make of this case, we suggest that upon a retrial, if appellee supports his allegations by evidence and requests the submission, the court should submit to the jury the issue of willfulness, placing the burden of proof thereon upon appellee. Alamo Boiler & Machine Works v. Phillips, supra. It is our view that unless the ap-pellee obtains a favorable finding upon the issue, he cannot recover exemplary damages herein. Holland v. Lesesne, supra.

In view of another trial, we further suggest that if appellant, as a defense, pleads its good faith in its conduct made the basis of the suit and if appellant supports such allegations with evidence, this issue upon proper request by appellant should be submitted to the jury. It constitutes an inferential rebuttal issue and a favorable finding thereon would negative completely the existence of a material element of ap-pellee’s cause of action for exemplary damages. Security State Bank v. Spinnler, 55 S.W.2d 128 (Tex.Civ.App.) 1932, writ dismissed; Ulander v. Orman, 26 S.W. 1103 (Tex.Civ.App.) 1894, no writ history; Holland v. Lesesne, supra; Alamo Boiler & Machine Works v. Phillips, supra.

In view of the reversal and remand of this cause, it is unnecessary for us to pass upon appellant’s Assignment of Error No. 16. Neither will we pass upon appellant s Points 8, 9, 10 and 11, as on the next trial the evidence may eliminate the questions raised thereby.

Judgment reversed and remanded for the reasons hereinabove stated.


author: MURRAY, Chief Justice.

text:
    The AETNA CASUALTY AND SURETY COMPANY et al., Appellants, v. Claudine AVANT, Appellee.
    No. 14376.
    Court of Civil Appeals of Texas. San Antonio.
    April 21, 1965.
    Rehearings Denied May 26, 1965.

      Carl Wright Johnson, Alfred W. Offer, Nat L. Hardy, Richard G. Strong, San Antonia, for appellants.
    Rudy Rice, James H. Brannon, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is a suit by Claudine Avant, individually and as next friend of Dwight W. Avant and A. Queentena Avant, her two minor children, against The Aetna Casualty and Surety Company, seeking to recover death benefits under the Texas Workmen’s Compensation Law, Art. 8306 et seq., Vernon’s Ann.Civ.Stats., for the death of her husband, James W. Avant, a resident of the State of Arkansas, who was accidentally killed in the State of Missouri in a collision between the truck he was driving and a St. Louis-San Francisco Railroad Company freight train. Avant was killed on December 6, 1960. The trial was to a jury and, based upon its findings, judgment was rendered for Claudine Avant against the defendant, Aetna Casualty & Surety Company, in the total sum of $6,300.00, and that the minor plaintiffs take nothing. The Aetna Casualty & Surety Company and the minor plaintiffs have prosecuted this appeal.

By its first two points appellant, Aetna Casualty & Surety Company, raises the contention that there is no evidence to show that Avant was an employee of Querner Truck Lines, and in any event there was no evidence to show that Avant was a Texas employee within the meaning of Sec. 19, Art. 8306, which reads as follows:

“Sec. 19. If an employee, who has been hired in this State, sustain injury in the course of his employment he shall be entitled to compensation according to the Law of this State even though such injury was received outside of the State, and that such employee, though injured out of the State of Texas, shall be entitled to the same rights and remedies as if injured within the State of Texas, except that in such cases of injury outside of Texas, the suit of either the injured employee or his beneficiaries, or of the Association, to set aside an award of the Industrial Accident Board of Texas, or to enforce it, as mentioned in Article 8307, Sections 5-5a, shall be brought either
“a. In the county of Texas where the contract of hiring was made; or
“b. In the county of Texas where such employee or his beneficiaries or any of them reside when the suit is brought, or
“c. In the county where the employee or the employer resided when the contract of hiring was made, as the one filing such suit may elect.
“Providing that such injury shall have occurred within one year from the date such injured employee leaves this State; and provided, further, that no recovery can he had by the injured employee- hereunder in the event he has elected to pursue his remedy and recovers in the state where such injury occurred. Acts 1917, p. 269; Acts 1927, 40th Leg. p. 383, ch. 259; Acts 1931, 42nd Leg. p. 133, ch. 90, § 1.”

Avant, prior to his death, was a resident and citizen of the State of Arkansas where he and his wife resided. Avant’s wife, Claudine Avant, testified that during a great part of the year 1960 her husband worked at a pulp mill belonging to a man named Whise-mont, doing local hauling within the State of Arkansas. In October, 1960, he began working for Stroud & Dyer, driving a truck tractor owned by Stroud & Dyer and a trailer belonging to himself. This vehicle remained in his personal possession. Mrs. Avant did not know the details of the arrangements between her husband and Stroud & Dyer, but she did know that his pay consisted of a percentage of the hauling charges of each trip. He received no money from Querner Truck Lines. Appellee called as witnesses J. L. and Harold Querner, operators of the Querner Truck Lines, who testified that they never paid Avant anything, and he was never on their pay roll. The Querners were not called as adverse witnesses and appellee by calling them vouched for their testimony. Mrs. Avant further testified that on Sunday December 4, 1960, Mr. Stroud called their home and told Avant to go to Pittsburg, Texas, and pick up some yams (sweet potatoes), and to be in Pittsburg on Monday December 5, at 8 a. m. Her husband took the truck and left. The next night he called from Malvin, Arkansas, and the following day he was instantly killed in a collision between his truck and a railroad train at Hayti in the State of Missouri.

The tractor was under a lease contract between Stroud & Dyer as lessors and Querner Truck Lines as lessee, which enabled it to be operated under Querner’s state and interstate permits. The contract for hauling these potatoes was evidently obtained by Stroud & Dyer. There is no pleading, evidence, or finding by the jury that Avant was a Texas employee of Quer-ner Truck Lines within the meaning of Sec. 19 of Art. 8306, supra. Southern Underwriters v. Gallagher, 135 Tex. 41, 136 S.W.2d 590.

The lease agreement between Querner Truck Lines and Stroud & Dyer is in evidence and contains the following provisions:

“It is further understood and agreed that while the foregoing equipment is under the direction and control of Querner Truck Lines, Inc., it shall be operated only by the Lessor or his representatives and Lessor will haul no freight not authorized under the certificates and permits * *

Such agreement further provides:

“The Lessor specifically understands and admits that he or his agent is acting as a Lessor to Querner Truck Lines, Inc. and not as an employee of Querner Truck Lines, Inc., and further that he is not covered as an employee of Quer-ner Truck Lines, Inc. by Workmen’s Compensation.”

It also states:

“In the event Lessor hires a driver during the term of this lease, Lessor agrees
“(A) To furnish at his expense Workmen’s Compensation Insurance to cover said driver; (B) to pay all Social Security, Old Age Benefits and Unemployment Compensation taxes and assessments ; (C) to pay all costs and expenses of operations, maintenance, and upkeep of said equipment, and that Lessee shall not be liable for any of such items; * *

The undisputed evidence shows that Stroud & Dyer and Avant had possession of this truck and they were using and controlling it, carrying loads under contract, and Stroud & Dyer negotiated with the shippers without knowledge of Querner Truck Lines. The only thing that in any way connects the matter with Querner Truck Lines is that they were using Quer-ner’s Interstate Commerce Commission and State permits. It is not necessary for us to here determine whether this constituted a violation of the law or rules of I.C.C. The jury found that Stroud & Dyer were independent contractors with relation to Querner Truck Lines so far as the truck tractor involved was concerned, and appellee has not attacked this finding. An independent contractor and his employees are not protected by the workmen’s compensation insurance of the main contractor. 45 Tex.Jur. p. 416, § 40. There can be no question as to appellee’s being bound by the testimony of J. L. and Harold Querner, to the effect that Avant was not an employee of Querner Truck Lines. The Quer-ners were not parties to this suit, nor were they called as adverse witnesses. Parker v. Traders & General Ins. Co., Tex.Civ.App., 366 S.W.2d 107.

There is no evidence that Avant was a Texas employee of Querner Truck Lines, employed in Texas within the meaning of Sec. 19 of Art. 8306, supra. Avant lived in Arkansas and worked for Stroud & Dyer. He came to Texas on this occasion simply to pick up a load of sweet potatoes, and then began his trip to Cincinnati, Ohio.

There is no dispute that Avant was killed in the State of Missouri; he was not injured in the State of Texas. Before an employee injured or killed in another state can bring himself under the Texas Workmen’s Compensation Law, he must allege and prove that at the time he was injured or killed he occupied the status of a Texas employee temporarily sent out of the State by his employer to perform labor in another state. Southern Underwriters v. Gallagher, supra. The evidence does not show that Avant was an employee of Querner Truck Lines sent temporarily out of the State to perform work for Querner. The testimony of J. L. and Harold Querner affirmatively shows that he was not such an employee, and the Querners are Mrs. Avant’s witnesses. Mrs. Avant did offer evidence to the effect that when Avant was killed in Missouri, the truck he was driving carried the Querner Truck Lines emblem. “Querner carried liability and property damage insurance on the truck. Querner insured the cargo that Mr. Avant was carrying. Querner requested information from the Texas Department of Public Safety concerning Mr. Avant’s driving record. Quer-ner required and kept on file a doctor’s certificate on Mr. Avant. Querner checked Mr. Avant’s equipment. Mr. Avant could not haul anything in interstate commerce for anyone but Querner, or for someone Querner approved. Querner could take away Mr. Avant’s ability to haul in interstate 'commerce if he refused to pick up a load from a wrecked vehicle when told to do so by Querner. Querner instructed drivers such as Mr. Avant to stay out of the territory where Querner could not go under its I.C.C. permit. A driver signed for loads in the name of Querner Truck Lines, Inc. When Mr. Avant was on an out of town trip, Mrs. Avant could always contact him in the daytime at the Querner Terminals. When Mr. Avant pulled a load to Cleveland, Chicago, or any place, he was required to check in at the Querner terminal there. When Mr. Avant was killed, it was Quer-ner who notified Mrs. Avant.”

All of this testimony did nothing more than create a rebuttable presumption that Avant was an employee of Querner Truck Lines, which vanished when evidence to the contrary appeared. Texas Law of Evidence, 2d Edition, Vol. 1, p. 60, § 53. Here the appellant Surety Company did not have to disprove this rebuttal presumption, Mrs. Avant disproved it for Aetna Casualty & Surety Company.

It is true that the jury found that Avant was not an employee of Stroud & Dyer at the time he was killed, but this finding is immaterial so long as the evidence shows that Avant was not a Texas employee of Querner Truck Lines at such time.

There is a serious question raised here as to whether Mrs. Avant can maintain this suit for death benefits under the Workmen’s Compensation Act, Art. 8306 et seq., supra, after prosecuting to final judgment a suit for the benefit of her minor children in the State of Missouri, and there is another serious question as to whether good cause existed for her failure to file her claim for Workmen’s Compensation within six months, with the Texas Industrial Accident Board, but we do not find it necessary to discuss these questions in view of our above holdings.

That part of the judgment which awards to appellee, Mrs. Claudine Avant, workmen’s compensation for the death of her husband, James Woodrow Avant, from appellant Aetna Casualty & Surety Company is reversed and judgment here rendered that she take nothing, and the judgment as to the appellants Dwight W. Avant and A. Queentena Avant, minors, represented by Richard Strong, Guardian ad Litem, denying any recovery is in all things affirmed.