author: FRASER, Chief Justice.

text:
    FWA DRILLING COMPANY, Inc., a corporation, Appellant, v. Helen LAMBERT, a widow, Ind., et al., Appellees.
    No. 5818.
    Court of Civil Appeals of Texas. El Paso.
    July 26, 1967.
    Rehearing Denied Sept. 27, 1967.

      Turpin, Smith, Dyer & Hardie, Max N. Osborn, L. Larry Fuller, Midland, for appellant.
    W. R. Barnes, Odessa, for appellees.
   OPINION

FRASER, Chief Justice.

This is an appeal from an order of the District Court of Crane County, Texas, overruling appellant’s plea of privilege to be sued in Wichita County, Texas, the place of its residence and principal place of business. The trial court sustained appellee’s controverting plea alleging venue in Crane County, Texas, under the provisions of subdivisions 9a and 29a of Article 1995, Vernon’s Ann Texas Revised Civil Statutes.

This action was brought by appellee asking damages on behalf of herself and four minor children because of the death of her husband, who was killed on December 3, 1963 in Crane County, Texas, while working oh an oil well. It appears that appellant had ordered repair work done on a mud pump during the time when a different crew (that is, a different crew from the one of which deceased was a member) was on duty, November 17, 1963. The death of appellee’s husband was caused by the blowing up or blowing off of the attachments of the mud pump, one of which apparently struck him in the head. It appears that he survived only a few moments after the accident. Appellant, through its tool pusher and driller, had ordered a welder, who was a co-defendant in this lawsuit, to repair the mud pump, as it had become unusable. There is much conflict as to certain factual matters regarding the authorization and conduct of this repair job, which we will go into later. The record reveals that while the appellee sued both the welder and appellant drilling company, both of whom entered pleas of privilege, only the drilling company appeals from the order overruling the two pleas of privilege. Also, it must be pointed out and kept in mind that appellee states in her brief that she waives her contention under subdivision 29a of Article 1995, T.R.C.S. and relies entirely for support of the lower court’s judgment on subdivision 9a of said Article 1995.

As stated, only the drilling company is the appellant here and it claims, under Point 1, that appellee’s suit against appellant is one to recover exemplary damages for gross negligence, and subdivision 9a of the venue statute has no application to a suit based upon gross negligence; and under Point 2, appellant claims that the evidence failed to prove conduct on the part of the appellant constituting gross negligence; and under Point 3, appellant urges that there is no evidence to prove that the employees who were involved with the work complained about were corporate officers and vice-principals of the appellant. Point 4 will not be discussed, as it deals with Article 29a of the venue statute, which appellee specifically says in her brief she no longer claims has any applicability to the present controversy.

We believe that the appellant’s points of error must be overruled and the decision of the trial court overruling the plea of privilege affirmed. It appears from the record that the deceased was a roughneck working on derricks for the appellant, and that George R. Scott was the evening tower driller in charge of the crew at the time the accident occurred on December 3, 1963, on appellant’s Rig No. 9. The deceased was engaged in a process known as jetting the pits, and Mr. Scott saw the pressure on the pump being used to jet the pits suddenly go up and heard a noise at about the same time. He states that he saw the deceased, Robert Lambert, lying on the ground about 20 feet away from the pump, his head badly injured; and, according to Mr. Scott, Mr. Lambert was dead before he was taken away from the rig. Mr. Scott, the driller, examined the mud pump and found that the lines and connections had blown away from the pump and were lying about 30 feet from the pump. He stated that in his opinion some small piece of gravel or something similar had plugged the jet, causing the sudden rise in pressure which resulted in the connections blowing off the pump, striking and killing Lambert. He further stated that plugging of the jet didn’t happen very often, but it does happen occasionally. The driller further testified that he had never seen a welding job done like this because, as he said, “You just don’t weld to mud pumps because sooner or later it gives away, and any welding done on a mud pump would be merely a temporary measure to get you out of a bind until you can get the pump rebored.” Scott stated that the first he knew that a weld had been placed on the mud pump was after the accident, and that if he had known it had been welded, he would have gone ahead and used the pump under the orders of the tool pusher to clean the pits, but that he would not have let any of the men under him get on that side of the pump with the pump in movement. That never before had he seen a steel collar stuck up and welded on the side of a mud pump, and if he had been the driller on tower when the work was done, he wouldn’t have repaired the mud pump in that manner because “you just don’t do things like that”. The collar, nipple, pop-off valve and' the high pressure mud line that blew off weighed between 75 and 100 pounds, and it apparently blew approximately 30 feet, hitting Mr. Lambert in the head, splitting his hard hat and inflicting fatal injuries.

The welder testified to various difficulties that he encountered in doing this job, and further testified about the nature of the welding with reference to cast iron. This testimony was apparently elicited because the steel collar was welded to a cast iron pump. The welder described the proper way for the repairs to be made and, in his opinion, the air chamber of the pump should have been taken to a machinist and then rebored to a larger size, then re-threaded so that a larger nipple could be screwed in, and this is not unusual at all. He testified that when he had finished, that he made out the invoice for the work and took it up to the doghouse to be signed by the driller, the practice being for the company to keep one copy and the welder the other. Mr. Hooper testified that when he gave the invoice to the driller, he told him that the pump was cast (apparently meaning cast iron), and that the weld had checked (meaning that it had cracked) and it wasn’t a good weld, and that it should be sent to a pump company or something and repaired properly, and that they would probably have to rebore it and rethread it. He said he does not think he told the driller that it was dangerous, and stated as follows :

“Q And did you say anything to them at the time of the original weld that that would not work?
A Yes, sir. When I made out the invoice, I carried it up in the doghouse, finished the, that is, wound my spool up, and I made out the invoice and carried it up inside the doghouse; and when the driller signed the ticket, I told him that the pump was cast and the weld had checked and it wasn’t a good weld. It should be sent to a pump company or something and repaired properly, that they would probably have to rebore it and rethread it.
Q Did you tell him it was dangerous at that time?
A No, sir, I don’t suppose I did. I mean, you assume that it is if there is pressure involved, or I would if someone told me that. I mean, from what I know about it, I would be afraid to work around something under a bunch of pressure or something, but at the same time it was still on, I assumed good enough that they could use it for an emergency there until they could get it repaired properly.
Q What was the driller’s name?
A Hipp, I believe.”

It is also apparent from the record that all of the parties involved, such as the tool pusher and the driller, had long experience in the oil fields and on oil drilling rigs, and apparently from the above quotation from the record, it is a fair assumption that Mr. Hooper felt that it was not necessary to tell them it was dangerous. Mr. Hooper was then asked if he protested doing the job like that, and he said:

“A Well now, I didn’t actually know what we was into until I had started to weld, and there wasn’t anybody around then, and when I saw it check, well, I went ahead and finished that weld, and by then, you couldn’t see the checks, and that is the reason I explained to him, you know, that it was cast, it should be fixed because you couldn’t just walk up and tell but what it was just as good as it had ever been.”

Mr. Hooper further testified that he told the driller that it was a cast material and he would get them out of a bind there temporarily because they couldn’t even operate with the pump broken out like it was. He also stated that he told the driller as follows:

“Q Did you tell him it wouldn’t hold under pressure?
A Yeah, I told him that it was not a good setup there like that.
Q Did you tell him it was dangerous?
A Well, I don’t recall if I actually used those words. I mean, that was my purpose in warning him, you know, that there was some danger there.
Q Did you warn anybody besides Hipp?
A No, sir. °
Q You felt that it was dangerous?
A Yes sir. A possibility of danger there, yes, sir.
Q That the pressure would blow it off of there and it wouldn’t hold?
A And even without so much pressure involved, like I say, the vibration on that stuff is terrific, and would have probably have finally cracked off, you know, from vibration itself.
Q Did you tell Hipp about the vibration part?
A Well, I don’t know whether I explained it to him. I just told him that it wasn’t a good weld there.
******
Q But, you just went ahead and did it?
A To get them out of a bind. They usually request something like that or you wouldn’t do it.
Q Did Hipp say they were in a bind, in a hurry, or something like that ?
A They had to get it stuck together or something to that effect.”

One Francis Lamar Herman was working as a derrick man at the time the weld was done. He was under the control and orders of the driller, named Hipp. Mr. Herman testified that after the weld had been done, the driller instructed this witness to screw the pop-off valve down so that it was set for 2000 pounds pressure, whereas before the welding was done they had been drilling at about only 1400 or 1500 pounds pressure.

We then come to admitted testimony of Mr. Hipp, which was as follows:

“Q Did you ever talk to anybody else connected with FWA above you in a supervisory capacity about having this welding done, either ' prior to the time it was done or afterwards ?
A Well, I asked the pusher about it the morning we had it welded on, did he want to have the welder to weld it on, and he said, ‘Get this welder here.’
Q What was that pusher’s name?
A Well, the only name I knew him by was Chief Hobbs from up in the Panhandle.”

Mr. Hipp further testified that the pusher, Chief Hobbs, told him to get a welder and to weld the collar on, and that he was told by the pusher, Chief Hobbs, to weld the nipple on, and the welder suggested the collar being welded on. It is apparent from this record that in the oil field, the chain of command and responsibility begins with the field or drilling superintendent, then down to the tool pusher, who is in charge of the particular drillers while they are on tower, and that the various derrick men, roughnecks and roustabouts are under the control and authority of the particular driller on duty at each tower.

Chief Hobbs, the tool pusher, testified that if he had been warned that the welding could not be done with safety and that it was dangerous, he would have done something else about it and that the welding was done where the pressure could build up, and if somebody put something on there that wasn’t going to hold, a sudden build of air pressure would cause it to blow off; and further, that he depended on the driller. At this point it might be well to mention that there are some conflicts in the testimony, but these, in our opinion, merely produced a factual situation which the trial court obviously decided in favor of the appellees.

We come now to discussion of whether the above facts and testimony are sufficient to constitute what is known as “gross negligence.” Gross negligence has been defined as follows: that to establish grounds for exemplary damages, the proponent must show that there existed an entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the persons to be affected by it. Sheffield Division, Armco Steel Corporation v. Jones, Sup., 376 S.W.2d 825 (S.Ct., 1964); Armstrong v. Texas Power and Light Company, Tex.Civ.App., 399 S.W.2d 922 (n. r. e.); Loyd Electric Company v. De Hoyos, Tex.Civ.App., 409 S.W.2d 893.

In the case before us we do not have any indication of wantonness or malice or willful conduct, but we believe the evidence does establish a conscious indifference on the part of appellant for the safety of the deceased. It should be remembered that the steel collar was given to the welder by an employee of the appellant; that the job was ordered done by supervisory employees of the appellant; that the welder testified that he told the driller (who was the man in charge of the rig at the time the welding was done) that it was not a good weld, but only a temporary thing to get them out of a bind and put a useless pump into temporary operation. Further, that the pop-off valve was regulated to accommodate pressure of 2000 pounds, rather than the 1400 or 1500 pounds pressure that had been in use; that Hobbs testified that, as tool pusher, when he was present he was in charge, and that when he was not present the driller was in charge of the drilling rig. Also, that one Doyle Kenneth Lee testified that he was a tool pusher for appellant at the time of the accident, and that the appellant had a drilling superintendent at that time named Leland Jennings. Mr. Lee also testified that in December, he and the members of his crew were drilling a well in Crane County (which was the well in' question) and that he had three drillers working under him named James Hipp, George Scott and D. L. Hizer.

In summation, therefore, it is clear and inescapable that there was testimony before the trial court that the welder had discussed this weld, at the very time he finished it, with the driller who was in charge of the rig at the time, and stated that he had only fixed it on a temporary basis. We do not find any evidence in the record that this driller passed on this information given him by the welder, or issued any warning or caution to the other two drillers, or in fact to anyone. The record shows that although the so-called temporary weld was completed on November 17, 1963, appellant continued to use it until December 3, 1963, the day of the accident, without warning any succeeding drillers, or anybody, of the condition or situation existing — to-wit, that the welder felt that, it was an inferior weld, and only a temporary repair job, and that the pump should really be taken into a shop and properly repaired. It should be remembered at this point that the driller Scott testified he did not know that there existed this type of weld, and he testified that if he had known that the pump had been so welded that, although he would have used the pump, he would not have let any of the men working under him get on that side of the pump while the pump was in movement. So it was obviously apparent to the trial court that the welder had advised the driller of the condition of the weld — its temporary function; and it further appears that the ticket showing the type of work done was forwarded in to the company office; so the trial court apparently felt that the office, as well as the driller, had notice that the pump had been repaired by a weld. The important thing is that the driller in charge apparently did not act upon the information or warning given him by the welder. All of these facts, as stated and alluded to above, constitute, in our minds, a conscious indifference to the right or welfare of the persons working on this well; for not only was the information apparently passed on to no one by the driller, but the appellant continued to use the pump from November 17, to December 3rd, when it blew up. Therefore, we hold that gross negligence was satisfactorily established and proven in the trial court.

As to appellant’s point that subdivision 9a of the venue statute does not apply to a suit based upon gross negligence, we hold as a matter of law that it does so apply. It is obvious that the burden of proving gross negligence is much more stringent than proving ordinary negligence, and it would be a strange legislative intent that would permit an exception to the venue statute for ordinary negligence, but exclude the harsher burden of gross negligence. We hold, therefore, that subdivision 9a was intended to, and does, include matters of gross negligence as well as ordinary negligence. Appellant’s Point 1 is therefore overruled.

Appellant’s Point 2 is also overruled, as it is the point alleging that the evidence failed to prove conduct constituting gross negligence on the part of appellant.

Appellant’s Point 3 argues that there was no evidence that the employees who were involved with the work complained about were corporate officers and vice-principals of the appellant. It is obvious from this record that there are many statements in evidence referring to the fact that the driller who was currently on tower was in command of the drilling rig on behalf of the appellant; that supervising the three drillers, one for each tower, was a tool pusher, and above him the drilling superintendent, it is apparent that all of these men exercised and authorized some of the actions and conduct relating to the incident with which we here deal. There is no direct reference, of course, to the drilling superintendent, but the orders did come down from the tool pusher to the drillers, etc. Therefore the other employees at the rig, such as roustabouts, roughnecks or derrick men, were under the care, control and supervision of the driller. We think the record therefore contains ample evidence to substantiate the allegation that the people complained about as having been involved in the accident were representatives of the appellant to the extent that they were corporate officers and/or vice-principals. Appellant’s Point 3 is therefore overruled. Chronister Lumber Co. v. Williams, 116 Tex. 207, 288 S.W. 402 (Com.App., op. adopt.)

Appellant’s first three points having been overruled, the judgment of the trial court is in all things affirmed.


source: Caselaw Access Project

author: GREEN, Chief Justice.

license: Public Domain

text:
    Bert MILLER, Appellant, v. T. D. FITZPATRICK, Appellee.
    No. 288.
    Court of Civil Appeals of Texas. Corpus Christi.
    July 13, 1967.
    Rehearing Denied Aug. 31, 1967.

      Harry F. Maddin, of Cullen, Mallette, Maddin, Edwards & Williams, Victoria, for appellant.
    Gerald T. Bissett, Victoria, for appellee.
   OPINION

GREEN, Chief Justice.

This is a trespass to try title suit filed on August 31, 1965 by appellee Fitzpatrick against appellant Miller for title and possession of a wedge shaped piece of land located within a platted, recorded subdivision. Appellee relied upon record title; appellant’s claim is based upon the ten year statute of limitations. At the close of the trial before the court without a jury judgment was rendered sustaining the contentions of appellee. At the request of appellant, findings of fact and conclusions of law were filed.

By general warranty deed dated June 25, 1953, Wayne F. Christiansen and -wife Mary Louise Christiansen, stipulated to be the common source of title, conveyed to Donald M. Mills and wife Lot No. 2, Block No. 1, of the subdivision of Emerald Hills, as same is shown by the established map and plat thereof duly recorded in the Deed Records of Victoria County, Texas, Vol. 269, Page 12. This was improved property, and the Christiansens had been occupying the residence on it as their home. After the sale the Christiansens moved to a residence immediately across Jade Drive in front of this property. The Mills moved onto said Lot 2, and resided there until they sold the property to appellant Bert Miller and his wife by general warranty deed dated October 31, 1956. This deed used the same description of the property as did the conveyance to Mills, i. e. by lot and block number with reference to the recorded map and plat of the subdivision and with no description of metes and bounds. The Millers thereupon moved on to the property, and have continued to occupy it as their home to the date of trial.

By deed dated January 11, 1965, the Christiansens conveyed to appellee T. D. Fitzpatrick and his wife Lot No. 1, Block No. 1, of Emerald Hills Subdivision, describing the lot solely by reference to map and plat of said subdivision recorded in the county clerk records of Victoria County. Lot No. 1 adjoins Lot No. 2 lying to the east of appellant’s lot.

We incorporate herein a rough drawing of Lots 1 and 2, Block 1 of Emerald Hills Subdivision in order to show the location of the area in litigation, which is represented by the triangle formed by thé lines' A B, B C, and A C, fronting 50 feet on Jade Drive.

The undisputed evidence establishes, and it was found as a fact by the trial court, that the true boundary between Lot 1 and Lot 2 is the line A B, that all of the land in dispute lies within Lot 1 as shown by the established map and plat of the subdivision referred to in the deeds mentioned above, and that appellee Fitzpatrick holds the record title thereto.

When the Christiansens lived in the home on Lot 2, they owned Lot 1 and Lot 2. All of Lot 1 except the triangular wedge in litigation, i. e. all east of the line B C, was unimproved land, covered by heavy brush and weeds. Christiansen had cleared that portion of Lot 1 west of line B C of brush, planted it in grass, and kept the grass' mowed along with the front yard portion of Lot 2. When Mills purchased Lot 2, he believed that the eastern edge extended to the line of brush, which is represented on the plat supra as line B C. From June 25, 1953, when he moved onto said lot, until October 31, 1956, he continued to consider this area as his, and to mow the grass, cut the weeds, and keep the area in a neat and tidy condition, and to make the same use of this land as the Christiansens had made, and as he did of the portion of his front yard to which he had actual record title. From October 31, 1956, the date of the sale to appellant, to the date the suit was filed, August 31, 1965, appellant Miller went into possession of this triangular area along with the lot bought by him, believing that it was a portion of his purchase, and he fertilized and mowed the grass, cut the weeds, planted flowers and shrubs, and installed, in 1961, an underground drainage or irrigating system, and kept the property neat and tidy and made similar use of it as he did of the front yard of the property actually a part of Lot 2 to which he had record title.

Since appellant had not had ten years possession of the property when the suit was filed, it was necessary, if he establish limitation title, that he tack his possession onto the possession of his predecessor Mills. Since Mills’ claim to the land in controversy, if any, began when he went into possession on June 25, 1953, the limitation title, if any, matured against Christiansen prior to the sale of Lot 1 to appellee on January 11, 1965. It is appellant’s contention that their title to the disputed area was perfected in 1963, over 18 months before appellee bought Lot 1 and that hence any lack of knowledge or notice to appellee of appellant’s claim becomes immaterial.

“When the record owner has notice of the adverse claim, the limitation statute commences to run against him. Its operation is not affected by his conveyance of the property, and his grantee may not successfully contend there was a lack of notice.” 2 Tex.Jur.2d 193, Adverse Possession, § 92.

Appellant during the trial offered evidence from his witness Mills that prior to and at the time Mills purchased this property, Mrs. Christiansen showed him and his wife the property and told them that the tree line was the property line, and that it was Mills’ understanding that the property they were buying included the area in controversy. Although the record does not show any objection by appellee to any of this testimony except that concerning Mills’ understanding, and the deposition of Mills does appear in the record as having been introduced in evidence without objection except as above stated, the court in his conclusions of law excluded all of the testimony concerning pointing out of boundary lines, ruling same inadmissible. Appellant in his seventh point of error contends that such evidence was admissible particularly to show the extent of the claim of appellant and his predecessor in title, and that Chris-tiansen, the record owner of Lot 1 at the time, had actual knowledge as well as constructive knowledge of the adverse claim. Appellant’s seventh point reads:

“The Court erred in holding as a matter of law that the representations of the parties’ common grantor to Appellant’s predecessor in title were inadmissible, such statements as to boundary being clearly admissible.”

Since this is not a boundary suit, and the Christiansens are not parties, and appellant’s claim is based strictly on adverse possession for a period of ten years, appellant does not contend that such representations of Mrs. Christiansen would have the effect of creating a boundary different from the true line, or passing any title to the disputed area, or that the evidence was admissible on any such theory. Appellant’s contention, as stated in his brief and on oral argument, “is that in reliance on the representations of the record owners as to the extent of what was being sold, Appellant and his predecessor went into possession of the disputed tract, claimed it and did acts evidencing ownership. Appellant contends that his title matured ten (10) years after the representations were made; not at the time of the representations.”

It is undisputed, and the court so found, that the land in question was the community property of the Christiansens at the time they executed the deed to Mills. The husband is the statutory manager of the community and is the agent of the wife in the management, control and disposition of the community. Art. 4615, Vernon’s Ann.Tex.St.; Green v. Gomez, Tex.Civ.App., 348 S.W.2d 185, n. w. h. Except in situations covered by such article, and in the case of purchase by the wife of necessities for herself and children, (Walling v. Hannig, 73 Tex. 580, 11 S.W. 547), notice or knowledge of one spouse is not notice or knowledge to the other unless actual agency exists. Carl v. Settegast, Tex.Com.App., 237 S.W. 238, opinion adopted by Sup.Ct.; Home Owners’ Loan Corporation v. Cilley, Tex.Civ.App., 125 S.W.2d 313, wr. ref.; M. A. Cooper & Co. v. Sawyer, 31 Tex.Civ.App. 620, 73 S.W. 992, n. w. h.; Western Union Tel. Co. v. Moseley, 28 Tex.Civ.App. 562, 67 S.W. 1059, n. w. h. Neither the wife nor the husband is the general agent of the other. Henderson v. Jimmerson, Tex.Civ.App., 234 S.W.2d 710, n. w. h.; Rankin v. Kerrville Bus Co., Tex.Civ.App., 115 S.W.2d 997, n. w. h. It is error to assume that the wife is the agent of the husband. Bradshaw v. McDonald, Tex.Civ.App., 211 S.W.2d 797, 800, affd. 147 Tex. 455, 216 S.W.2d 972. Since there is no evidence that Mrs. Christiansen was acting as the agent of her husband in pointing out any boundary lines to Mills, she was acting without authority from him, and he, as manager of the community, was in no way bound; and such offered testimony would not constitute any evidence to him of any adverse claims of Mills to the disputed property. There was no evidence that Christiansen had any actual notice of any adverse claim to the property.

But even if said evidence were admissible on the issue of an adverse hostile claim of Mills against Christiansen, it would not affect the decision in the case, and any error of the trial court in regard thereto would be immaterial. The evidence shows, and the court found, that both Mills and appellant went into possession under their deed to Lot 2, with the mistaken belief that the eastern line extended to the brush line. There was no showing that Mills intended to hold any of Christiansen’s land adversely or hostile to him; he intended to secure the property deeded to him, but not to take any property not within his deed. In mowing the grass, and keeping this small tract clean he was doing only what Christiansen had been doing before Mills purchased the property. The record fully supports the finding of the court (No. 25) that the claims made to the land in controversy by both Mills and Miller were made under the assumption that said land was conveyed to them by their deeds, and that there is no evidence of any hostile or adverse claim or use made to or on said land from any other reason; and also supports the court’s conclusion (No. 5) that the mowing of lawn, cutting of weeds, caring for hedges, plants and shrubs on the disputed land which was never enclosed by fence, never improved by the construction of buildings or structures thereon, and never visibly occupied or appropriated by defendant or his predecessor in title, evidenced a casual and incomplete use of the premises which was not of such unequivocal notoriety as to create the presumption that the record owner of the land knew of such claim. On the subject of his claim, Mills testified as follows:

“Q * * * So, really, to sum up, when you bought the land, you understood you were buying it to that line ?
A That’s what I understood.
Q And you continued to use it in the same manner as it had been used before by the Christiansens?
A Yes.
Q All right. Now, you said you had been claiming this property. I want you to tell me what you mean by saying you were claiming the property in dispute since the date of your deed in 1953.
A Well, I was simply claiming it because I thought that was where the line was; I thought it was my property or I wouldn’t have been mowing it.
Q You thought this particular piece of land was covered by your deed?
A Yes.
Q And you were claiming it to the extent of what you thought you had bought there.
A Yes.
Q Did you ever know or were you ever informed until finally this lawsuit, that this particular land was not covered by your deed ?
A No. * * *”

As stated in Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781:

“ * * * Looking to all of the evidence and accepting as true all of the evidence offered by petitioner, including petitioner’s testimony, we find that there is wanting evidence of probative value tending to prove that petitioner and his father or either of them had adverse possession of the disputed tract as defined in Article 5515, that is, ‘actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.’ ”

In further discussion of the term “claim of right” the Supreme Court, in Orsborn, says:

“Petitioner had the burden of proving the elements of adverse possession, including ‘a claim of right’. In Moore v. Wooten, Tex.Com.App., 280 S.W. 742, 748, it is said that ‘One who seeks to establish title to land by virtue of the statutes of limitation assumes the burden of proof upon this issue, and this proof must he clear and satisfactory.’ See also Urschel v. Garcia, Tex.Civ.App., 164 S. W.2d 804, 805.
“ ‘No matter how exclusive and hostile to the true owner the possession may be in appearance, it cannot be adverse unless accompanied by the intent on the part of the occupant to make it so. The naked possession unaccompanied with any claim of right will never constitute a bar.’ Houston Oil Co. v. Stepney, Tex.Civ.App., 187 S.W. 1078,1084, application for writ of error refused. See also Hopkins v. Waterstreet, Tex.Civ.App., 275 S.W. 303; Mosley v. Gulf Production Co., Tex.Civ.App., 111 S.W.2d 726; Shaw v. Windham, Tex.Civ.App., 155 S.W. 636, application for writ of error refused; Lyons v. Pullin, Tex.Civ.App., 197 S.W. 2d 494, 501.
“Claim of right must be manifested by declaration or by open or visible act. If there is no verbal assertion of claim to the land brought to the knowledge of the landowner, the adverse possession must be so open and notorious and manifested by such open or visible act or acts that knowledge on the part of the owner will he presumed. Hopkins v. Water-street, 275 S.W. 303

The opinion in Orsborn, supra, quotes from Harmon v. Overton Refining Co., 130 Tex. 365, 372, 109 S.W.2d 457, 460, 110 S. W.2d 555, as follows:

“It is well settled that when one enters into possession of land under a deed his possession is referable to the deed, and is presumed to be in conformity with it, and is confined to the limits thereof. Therefore, in order for a vendee to acquire title by adverse possession of additional or adjoining land outside the limits of the boundaries in his conveyance, he must have actual possession of such additional land of such character as of itself will give notice of an exclusive adverse possession and mature into title after the statutory period. * * * ”

Authorities cited in the opinion are, among others, West Production Co. v. Kahanek, 132 Tex. 153, 158, 121 S.W.2d 328, 331; De Las Fuentes v. MacDonell, 85 Tex. 132, 20 S.W. 43; Mhoon v. Cain, 77 Tex. 316, 14 S.W. 24; Vineyard v. Brundrett, 17 Tex.Civ.App. 147, 42 S.W. 232, writ ref.; McKee v. Stewart, 139 Tex. 260, 162 S.W.2d 948. See also Southern Pine Lumber Company v. Hart, 161 Tex. 357, 340 S.W.2d 775; Allen v. Sharp, Tex.Civ.App., 233 S.W.2d 485, writ refused; McCall v. Grogan-Cochran Lumber Company, 143 Tex. 490, 186 S. W.2d 677; White v. Daniel, Tex.Civ.App., 391 S.W.2d 176, writ ref. n. r. e.; Cook v. Winter, Tex.Civ.App., 207 S.W.2d 145, writ ref. n. r. e.; Bemrod v. Wright, Tex.Civ. App., 273 S.W. 938; City of Houston v. Darland, Tex.Civ.App., 264 S.W.2d 783, writ ref. n. r. e.

There is no evidence that Mills or appellant ever manifested any claim of right to the disputed area by any declaration or verbal assertion of such claim. The acts of mowing the grass, planting flowers, and keeping the land in dispute in the condition in which his grantor kept it did not constitute the character of possession as of itself gave notice of an exclusive adverse possession hostile to the claims of all others. City of Dallas v. Etheridge, 152 Tex. 9, 253 S.W.2d 640; Surkey v. Qua, Tex.Civ.App., 173 S.W.2d 230, writ dism. w. m.; City of Houston v. Darland, Tex.Civ.App., supra; Wicks v. Langford, Tex.Civ.App., 320 S. W.2d 707, n. w. h.

Since appellant’s possession did not cover a full ten year period prior to the filing of this suit, it was necessary for him to tie in his claim with an adverse, hostile possession of the disputed area by Mills. This, as shown above, he failed to do, since the record sustains the trial court’s findings and conclusion that Mills had no such possession openly adverse and hostile to the claims of others, and did not at any time prior to the filing of this suit verbally assert any claim to the disputed area brought to the attention of the land owner.

Furthermore, the trial court’s finding of fact No. 26 that there was no transfer, either by parol or by written instrument by Mills to appellant of any of the land in controversy, and his conclusion that under the state of the record there could be no tacking of Mills’ possession to appellant’s possession so as to constitute the required ten years of adverse possession are supported by the evidence. Both Mills and appellant testified that at the time Mills sold Lot 2 to appellant, Mills and Mrs. Mills showed appellant the lot and stated that the property line extended to the brush, so that the disputed area would be included in Lot 2 as purchased by him. Appellee’s objection to this testimony was sustained, and the evidence was excluded. Appellant has not by any point of error assigned this ruling as error, his nearest point being that the court erred in finding that there is no evidence showing the pointing out of boundaries by appellant’s predecessors in title. Since any such offered testimony was excluded by the court, there was as a matter of fact no evidence in the record of such pointing out.

However, even considering such evidence, we do not believe it would constitute the transfer of Mills claim of possession, if any, to appellant so as to permit such possession to be tacked to appellant’s possession, if any, to constitute a ten year period of possession adverse and hostile to the record owner of the property.

“We concur with appellee’s contention that appellants’ testimony that they claim the land from fence to fence concerns a mental process or opinion which does not evidence an open visible act manifesting an intention to claim the land adversely.
“ * * * In a suit for title to a tract of land which is not included in the description of the purchased property, but is claimed by adverse possession, possession of the claimant cannot be tacked to that of his predecessor in title to prove possession for the statutory period unless his predecessor claimed the land and transferred such, claim.” Tankersley v. Randal, Tex.Civ.App., 361 S.W.2d 946, 952, wr. ref. n. r. e.

The character of claim required to be made by the predecessor (Mills) has already been defined in the quotation from Orsborn v. Deep Rock Oil Corp., supra.

See also Harmon v. Overton Refining Co., 130 Tex. 365, 109 S.W.2d 457; on rehearing, 110 S.W.2d 555; affirming Overton Refining Co. v. Harmon, Tex.Civ.App., 81 S.W.2d 207.

Counsel for appellant rely strongly on McAnally v. Texas Co., Tex.Civ.App., 32 S.W.2d 947, aff’d 124 Tex. 196, 76 S.W.2d 997. In that case, the common source conveyed “a part” of Section 8 to Sanders, particularly describing the tract by metes and bounds, and stating that the tract contained 257.65 acres. Sanders enclosed the entire tract by a fence. Several conveyances were made using the same description as in the deed to Sanders. Subsequently the land was conveyed to the Texas Company, the deed describing the property “containing 257.65 acres, * * * more or less, it being the intention of this deed to convey all land under fence now or heretofore enclosing the Maggie A. Teagarden tract, whether on Sur. No. 8, Blk. ‘R’, or other survey or surveys.” (opinion of Court of Civil Appeals, 32 S.W. 2d at p. 949) On resurvey, the land under fence was found to contain 333.5 acres, and this trespass to try title suit was filed to recover the excess acreage. The Supreme Court, in affirming a judgment for the limitation claimants, said:

“The Court of Civil Appeals found that, although the respective deeds on down through the successive claimants did not by their field notes cover the entire tract of land described in the judgment, yet each of the claimants, beginning with Sanders, treated the entire tract as an identity or well-known inclosure, passing by transfer from one claimant to the other, and that each claimant transferred the possession of the entire tract to his succeeding claimant. It concluded that the attribute of privity was thus established.
“That portion of the opinion of the Court of Civil Appeals which discusses the rules applicable to this phase of the case is so well expressed and so thoroughly supported by authorities, all of which we have examined, that we quote it with approval as follows:
“ ‘Our statute (article 5516, R.S.1925) provides that: ‘Peaceable and adverse possession need not be continued in the same person, but when held by different persons successively there must be a privity of estate between them.’
“ ‘Privity of estate, as said in section 89, vol. 2, Tex.Jur. is shown under the following circumstances: ‘Privity of possession between successive occupants or possessors of the land is shown to have existed, apparently, by proof that the earliest occupant’s possession and claim-passed or was transferred to the later occupant by agreement, gift, devise or inheritance. The fact of privity is not established where it simply appears that the land was occupied by different persons successively, there being nothing to show that the claim of the earlier was transferred to the later occupant by contract or otherwise.’
“ ‘In determining the privity of estate by the process of tacking, C. J. vol. 2, p. 91, § 96, states the general rule:
‘The general rule is that possession can not be tacked to make out title by prescription where the deed under which the last occupant claims title does not include the land in dispute. It must clearly appear that the particular premises were embraced in the particular deed or transfer, in whatever form it may have been made.’
“ ‘The important exception is:
“ ‘ “However, the mere fact that the land in dispute is not included in the deed will not of itself operate to deprive the grantee’s possession of the land of the attribute of privity. Even though the deed may have contained a defective description as to require correction, yet sufficient privity exists between the successive occupants where there was a parol delivery of possession, and there are numerous decisions to the effect that a mistake in a deed whereby a portion of the premises intended to be conveyed has been omitted in the description does not prevent the grantee from acquiring title by prescription to such portion if there is an actual transfer of the possession thereof. But an actual transfer of possession is of course necessary where the land is not included in the deed. (Italics ours.) So it has been held that independently of any question, of mistake successive grantors may transfer their possession of a strip of land successively and continuously occupied as part of the granted premises, but not included in the description in any of the deeds, and that by such continuity of possession for the prescriptive period, title by limitations may be acquired. The decisions in this and the preceding section, it may be observed, are readily distinguishable. In the first line of decisions the deed is relied on to establish privity, while in the second line of decisions, the actual transfer of delivery of possession is relied on. This, as was shown in a preceding section, is sufficient to create privity; a parol transfer accompanied by delivery being sufficient for that purpose.” ’ ”

In McAnally, the facts showed actual adverse possession of the disputed area, and enclosure of same by fence, and an actual transfer of the possession from each claimant to his grantee, as stated in the first paragraph copied above, and consequent privity of possession was established. In the present case, there is no evidence of actual adverse possession of the disputed area of such character as of itself gave notice of the exclusive possession required to mature title under the ten-year statute; and the finding of the trial court that there was no transfer of such possession by Mills to appellant, and hence no privity of estate between Mills and appellant is supported by the evidence. Quoting further from the Supreme Court’s opinion in McAnally, page 954 (7):

“ ‘As said in Shuttles v. Butcher, supra: ‘An actual transfer of an adverse possession is necessary to attribute privity where the land is not included in the deed.’ This excerpt is a brief statement of the main element in this controversy. A purchaser’s possession must be referable to that of the vendor.’ ” (Tex.Civ.App., 1 S.W.2d 661, 665).

We do not believe that the opinion in Mc-Anally, supra, governs the facts of this case here on appeal.

In view of the conclusions reached by us, we hold that the trial court did not err in deciding that appellant had failed to perfect a limitation title to the area in controversy, and that such holding of the court is supported by evidence, and is not against the greater weight and preponderance of the evidence. All of appellant’s points have been considered and are overruled.

Judgment affirmed.

OPINION ON MOTION FOR REHEARING

Appellant has taken exception to the statement in our original opinion that the trial court excluded the evidence of the witness Mills that at the time he and his wife sold Lot 2 to appellant, they showed the Millers the lot and stated that the property line extended to the brush. Appellant Miller’s testimony to the above effect on direct examination was excluded on ap-pellee’s objection, and is contained in the statement of facts only on bill of exception. Testimony of Miller given on cross-examination concerning any pointing out of property lines, when considered without reference to the stricken evidence, is indefinite as to the location of the eastern boundary.

There do not appear to be any objections to the evidence given by deposition by the witness Mills that he pointed out the brush line to appellant as the eastern boundary of Lot 2. Our statement that all evidence of such pointing out of boundaries was excluded was based on the exclusion of such evidence when subsequently offered by testimony of the appellant, combined with the statement of the trial court in his eleventh conclusion of law that the statements made by Mrs. Christiansen to Mills, and by Mills to Miller as to the location on the ground of the boundary of the tracts conveyed were inadmissible, making immaterial and academic whether or not Mills or appellant relied on such statements.

However, for the reasons stated in our original opinion, considering such evidence of pointing out by Mills to Miller of the property lines to have been admissible and properly before the trial court, it is our view, and we so hold, that the record does not show such a transfer of Mills’ claim of possession, if any, to appellant as to permit such possession of Mills to be tacked to appellant’s possession, if any, so as to constitute a ten year period of possession adverse and hostile to the record owner of the property.

We have carefully reviewed all of the points raised in appellant’s motion, and remain of the opinion that the judgment should be affirmed.

Motion for Rehearing Overruled.

      . Appellant went into possession October 31, 1956; the suit was filed August 31, 1965.

      . The statement of facts does show that several conferences between counsel and the court were had off the record, but does not show what occurred at such conferences.

      . Emphasis added by us.

      . Emphasis added by us.

      . Emphasis added.


author: O’QUINN, Justice.

text:
    Rosa V. SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 11520.
    Court of Civil Appeals of Texas. Austin.
    Sept. 13, 1967.

      C. B. Bunkley, Jr., Dallas, for appellant.
    Crawford C. Martin, Atty. Gen., George M. Cowden, First Asst. Atty. Gen., A. J. Ca-rubbi, Jr., Staff Legal Asst. Atty. Gen., John R. Grace, Kerns B. Taylor, Asst. Attys. Gen., Austin, for appellee.
   O’QUINN, Justice.

The State brought this suit against Howard Lewis as the operator of the Empire Room in Dallas County for delinquent admissions taxes imposed under Article 21.02 of Title 122A in the amount of $3,365.91. The State sued Rosa V. Smith as owner of the land and building where Lewis operated the Empire Room under provisions of Article 21.04(2) of Title 122A seeking foreclosure of the tax lien on the Smith property.

Lewis was served with process but defaulted, and judgment was entered against him for the amount of the taxes.

Rosa V. Smith answered denying that Lewis owed delinquent admissions taxes in the amount sued for and asserted that the taxes assessed' against Lewis constituted an estimate and were not the actual taxes due. Correctness of the amount of taxes claimed by the State was challenged and demand made for strict proof.

The case was tried before the court without a jury. Judgment was entered November 14, 1966, awarding the State recovery of the taxes in the sum of $3,245.64 and declaring the State’s lien prior and superior to the title and interest of Rosa V. Smith and ordering foreclosure of the tax lien on the property used in the business.

Appellant Rosa V. Smith assigns five points of error on appeal. The pith of these points is that the State’s claim for taxes is based in part on a computation and not on an actual count of the number of tickets sold at the Empire Room.

The tax period involved in this case covers the year 1962 and the first nine months of 1963. Quarterly reports were filed with the Comptroller for the nine months of 1963, but no reports were made for 1962. The tax claim for 1963 is based on calculations made from the quarterly reports filed by the operator. The claim for 1962 was based on an estimate or computation made by the Comptroller. Appellant’s attack centers upon the estimated tax for the year 1962.

At the outset of trial the State introduced its tax claim by certificate under provisions of Article 1.08, Title 122A. The claim covered the year 1962 and the first nine months of 1963, being the entire tax period. Appellant made objection to the evidence which the court overruled. On appeal admission of the certificate is not assigned as error.

Under Article 1.08 the State proved the tax claim upon introduction of the certified claim of the Comptroller. Appellant had the burden at that point to show the incorrectness of the claim.

Appellant called as a witness W. C. Schulle, assistant director of the excise and store tax division of the State Comptroller’s office. Schulle testified he had signed quarterly reports from Howard Lewis for the first nine months of 1963. From more recent and from earlier reports, it was Schulle’s opinion that the reports for 1963 were signed by Lewis. The reports were received by the Comptroller’s office and marked by his stamps of receipt. These three quarterly reports were introduced in evidence by the State. Schulle testified that the Comptroller had no reports from Lewis for the year 1962 and that apparently no records were kept by Lewis available to the State for that period.

An official report of J. C. Pugh, a district supervisor for the State Comptroller, was introduced by the State without objection from appellant, showing that Howard Lewis estimated tickets sold in 1962 at the Empire Room were “1,950 tickets at $.75 each; 14,300 tickets at $1.00.”

It was shown that some time after suit was filed Howard Lewis admitted he owed the taxes in controversy and agreed to make monthly payments to discharge the claim. At least one payment of $150 was made pursuant to this agreement.

Appellant did not subpoena Lewis or the auditor who obtained from Lewis his estimate of the tickets for 1962, nor did appellant take the stand herself, to prove an amount of taxes different from the State’s claim. No evidence as to the amount of taxes was offered by appellant in reply to the State’s prima facie proof. The evidence offered appears to be an attack only upon the weight of the State’s evidence.

Appellant challenges the right of the State to compute or estimate the tax for 1962 and insists that the tax must be based strictly upon the formula prescribed by Article 21.02(4) in levying the tax. The statute levies a tax of one cent on each ten cents, or fractional part of ten cents, paid as admission to dance halls and night clubs where the admission exceeds fifty-one cents. The Comptroller determined the taxes due based upon information Lewis gave, as well as the value of business, and upon tax reports Lewis made prior to 1962 and for the year 1963.

Article 21.01 requires the filing of quarterly reports on fees for admission to all places of amusement subject to the tax. Records are required to be kept under provisions of Article 21.03. Failure to file reports and failure to keep records are made offenses under Article 21.04(3). We believe the taxpayer may not escape the tax and defeat the State in enforcement of its lien by failing to make reports or to keep records, in violation of the law. We think common sense would dictate that if a taxpayer fails to make reports or to keep proper records, some formula must be devised to determine the tax imposed by legislative authority. Mitchell Brothers Truck Lines v. Hill, 227 Or. 474, 363 P.2d 49 (1961).

When an administrative body, charged with the duty of enforcing the tax laws, adopts a formula to determine the tax in situations such as encountered in this case, the courts should presume the formula is calculated to reach a reasonable result. It was held in Smith v. State, 64 Wash.2d 323, 391 P.2d 718 (1964), that where the tax cannot be determined with reasonable mathematical certainty from the records of the taxpayer, and the taxing authority declares the tax due from all information available that it deems reasonable, the burden to show the determination unreasonable, excessive, or that it was achieved capriciously or arbitrarily, shifts to the complainant.

A determination such as made by the Comptroller in this case is authorized under Article 1.032(A) of Title 122A. Under the heading, “Deficiency Determination,” this article reads:

“If the Comptroller is not satisfied with the return or returns of the tax or the amount of tax required to be paid to the State by any person, he may compute and determine the amount required to be paid upon the basis of the facts contained in the return or returns or upon the basis of any information within his possession or which may come into his possession.” (Acts 1965, 59th Leg., ch. 402, sec. 8, p. 830).

This statute became effective July 1, 1965. The enactment contained no language confining its operation to prospective operation as distinguished from retroactive effect. The apparent legislative intent expressed in the emergency clause, was to strengthen tax administration procedures in all proceedings pending on the effective date of the law, as well as in proceedings initiated thereafter. Statutes relating to remedies and procedure, including evidence or proof, may be given retroactive as well as prospective effect. 53 Tex.Jur.2d, Statutes, sec. 29, p. 53, and cases cited.

In other jurisdictions having similar statutes, the courts have, approved various formulas and found them sufficient if the method used was reasonably calculated to reflect the taxes due. W. T. Grant Co. v. Joseph, 2 N.Y.2d 196, 159 N.Y.S.2d 150, 140 N.E.2d 244 (estimate of taxes on total number of sales where taxpayer had no record of individual sales); Maganini v. Quinn, 99 Cal.App.2d 1, 221 P.2d 241 (total number of drinks sold, records kept on cash register tape, established price for each brand applied to inventory sold); Fillichio v. Department of Revenue, 15 Ill.2d 327, 155 N. E.2d 3 (gross receipts determined according to best judgment and information).

With the prima facie presumption established that the State’s claim for admissions taxes against Howard Lewis was as shown in the Comptroller’s certificate under Article 1.08, appellant had the burden to overcome the inference with such evidence tending to support the contrary as would be conclusive, or evidence so clear and positive it would be unreasonable not to give effect to it as conclusive. Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854.

To overturn the assessment established by the Comptroller, appellant was required to show by competent evidence that the assessment was arbitrary or illegal and that it was excessive. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414. The burden was also on appellant to show that the method or formula used by the Comptroller was fundamentally wrong and that its application substantially injured appellant. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569. The substantial injury suffered must be more than a showing that a tax was imposed, but not shown to be unjust, and a foreclosure was effected to enforce collection of the tax imposed.

We conclude that appellant failed to offer the evidence required to overcome the prima facie presumption established by the State.

The judgment of the district court is affirmed.

Affirmed.


author: STEPHENSON, Justice.

text:
    Bishop R. E. RANGER, Appellant, v. Bishop J. O. PATTERSON et al., Appellees.
    No. 6922.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 7, 1967.
    Rehearing Denied Oct. 4, 1967.
    H. A. Coe, Jr., Kountze, Mabry, Reardon & Woods, Houston, for appellant.
    Brock & Williams, Houston, A. A. Lat-ting, Memphis, Tenn., O. T. Wells, New York City, J. O. Patterson, Jr., Memphis, Tenn., for appellees.
   STEPHENSON, Justice.

This is an appeal from an order denying a temporary injunction. Bishop Ranger filed this suit seeking to enjoin defendants, Bishop Patterson and others, from interfering with plaintiff in the conduct of the affairs of his office. All of the parties to this suit are officials of the Church of God in Christ. The parties will be referred to here as they were in the trial court.

Plaintiff alleged: That he is a Bishop of and over the Southeast District of Texas and that defendants occupy several different positions in the National Organization. That a church trial was held in which defendants participated in an attempt to remove plaintiff from his office as Bishop. That an announcement was made that plaintiff had been revoved as Bishop and his office declared vacant. That his removal was illegal and void because it did not comply with the Constitution, By-Laws, Customs and Practices of such church.

The sole point of error is that the trial court abused its discretion in refusing to grant a temporary injunction. However, the reasons relied upon by plaintiff, in contending the removal did not comply with the Constitution, By-Laws, Customs and Practices were: (1) Only one witness testified against plaintiff at the trial. (2) Illegal votes were cast for conviction. (3) The punishment assessed was illegal. (4) The charges made against plaintiff were not sufficient. (5) The verdict was not unanimous.

The Church Constitution and By-Laws provide that all trials shall be held according to certain scriptures: Deut. 17:6; 1 Tim. 5:19; 2nd Cor. 13:1. All three of these scriptures from the Bible mention testimony by two or three witnesses. Plaintiff offered in evidence a record of the church trial and contends this record shows that only one witness testified against plaintiff. When this testimony was offered counsel for defendants made the statement that defendants had no objection to it being admitted in evidence as long as it was understood that it was a summary of the record and did not purport to be the record of a court reporter taken in shorthand. The trial court admitted this transcript of the testimony in evidence with the statement that it was recognized that such minutes were not verbatim testimony of what occurred. One of the defendants, Bishop Patterson, also identified as general secretary of the church and executive board, testified that he was present at the church trial, and that testimony was given against plaintiff by Bishop C. H. Brewer, Bishop T. L. Haiver, also by himself, in addition to the testimony of T. L. Pleas, shown in the transcript of the church trial. Counsel for plaintiff objected to the admission of such testimony, but no point of error is brought to this court as to such action. A witness called by plaintiff, Benjamin W. West, testified he was present during the church trial, and that he heard only one witness complain of the plaintiff, and no others. The judgment of the trial court constitutes an implied finding that more than one witness gave testimony against plaintiff.

Complaint if made that illegal votes were cast against plaintiff. This church trial was held by the General Council which is made up of the male elders of this church in good standing. The testimony showed: That the charges were read, evidence heard and a vote taken by having those present stand — 907 voted for conviction and 3 voted against conviction. That there might have been 50 or 60 women present who stood at the time the vote was cast for conviction. Bishop Patterson testified the votes cast by the women were not counted. Benjamin W. West testified that when he walked into the door of the room in which the church trial was held, that he was not asked if he was a member of tlie council and there was no screening process to determine that people who voted'were entitled to vote. He e_sti-mated 40 to 50 women were present and stood while the vote was cast against plaintiff. There is no further showing that illegal votes were counted or that a sufficient number were counted to affect the outcome of the vote taken. The judgment of the trial court constituted an implied finding that the voting was not illegal.

It is contended the punishment assessed was not authorized by the Constitution. The motion which was adopted by the General Council, according to the transcript of the church trial, was that plaintiff was removed from office as Bishop of the Church of God in Christ, and that after one year if he repented of his wrong, he could apply for reinstatement. Plaintiff testified: That every ordained minister of the Church of God in Christ is an elder. That he was an elder first and then a Bishop. That he had been serving as a Bishop, and also was an Elder. It is noted that the motion adopted by the General Council made no mention of plaintiff’s status as an Elder, but only as a Bishop. Plaintiff cites to this court that portion of the official manual of the church governing the trial of an Elder. It is there provided that if the accused is found guilty, the judgment may take the form of expulsion from the church and ministry, or suspension for a limited time from his membership and ministry. No specific mention is made as to the form of a judgment which could be entered upon a trial of a Bishop. The manual states: “The trial of a bishop shall be that of an elder with these exceptions : He shall be tried before the General Council with the right of the General Assembly.” Inasmuch as no exception is made as to the form of judgment being different, it would be presumed that the same punishment could be given a bishop as an elder, that is, that it could be expulsion from the church and ministry or suspension for a limited time from his membership and ministry. We have concluded that the judgment entered by the General Council in this case was included within and provided for by the general terms of the manual of the church.

Plaintiff also maintains that the charges made against him were not sufficient. It is argued that the manual of the church provides that a bishop shall hold office during good behavior and therefore can be removed only for bad behavior. The charges against plaintiff were set forth in a letter introduced in evidence and were as follows:

“The Members of the Executive Board, jointly and severally do herewith charge that you have engaged in and are presently engaging in activities and practices which are deemed to be (1) unbecoming of a Bishop of the Church of God in Christ; (2) not in the best interest of the Church of God in Christ; (3) diametrically opposed to the duly appointed and authorized executive body of the National Church; and (4) in direct opposition to the known decisions, wishes and desires of the General Assembly of the Church of God in Christ.
“More specifically the subscribing members of the Executive Board assert that it is their belief that you have (1) aided and abetted Bishop O. T. Jones, Sr. and others in their attempt to undermine the duly appointed and authorized executive body by appointing, without authority to do so, so-called supervisors or overseers of various states; (2) making statements and distributing literature that were apparently designed and intended to create confusion, discord, dissention and unwarranted and rebellious support within the rank and file of the Ministers and Laymen of the Church; (3) aided, abetted and in other ways supported Bishop O. T. Jones, Sr. and others when he and/or they engaged in the so-called excommunication of Bishop D. A. Burtor, Elder A. D. Baxter and other Pastors in the State of Pennsylvania, all without justification, but only because they chose to continue to recognize the duly appointed and authorized executive body of the National Church; (4) engaged in other activities and practices all of which along with the previously mentioned acts have been not in the best interest of the National Church and in complete and total defiance of the duly appointed and authorized executive body of the Church of God in Christ.”

A portion of the Manual of the Church, just preceding the part providing for a trial of an elder reads as follows:

“The Eligibility of Elders
“The certificate of credentials of an Elder are valid only as long as his life adorns the Gospel of Christ, and his teachings are in harmony with the Church of God in Christ. Any Elder, Evangelist or member acting as pastor of a church, who teaches contrary doctrines, or causes dissention, or in any way proves his inability as a Pastor, may be removed by a State Overseer of a General Board, and another appointed in his place.”

We hold that the charges as made were sufficient.

The last contention by plaintiff is that the verdict was not unanimous. As stated above, 907 voted for conviction and 3 for acquittal. Plaintiff relies upon that portion of the manual of the church pertaining to the trial of an elder which states that the accused may be punished if found guilty by the unanimous judgment of the court. Even though the paragraph found on page ¡22 of the manual of the church mentions the word “court” several times, such paragraph specifically covers the charges, trial and judgment of an elder and makes no mention of a bishop. It is recalled that such manual provides for trials of a bishop before the General Council. This court has not found anything in such manual to indicate how a “court” is established for the trial of an elder, nor who shall sit as a “court” nor the number. The only other mention of a “court” was on page 20 of such manual in a paragraph covering the trial of a church in which it is stated that the State Overseer may appoint a court of five elders. To extend the provision in the manual governing the trial of an elder before a “court” requiring a unanimous verdict, to the trial of a bishop before the General Council, would render the provision for a trial of a bishop meaningless. Inasmuch as the bishop being tried is a member of the General Council, could always vote against conviction, and there could be no expulsion or suspension of a bishop. This clearly was not the intent as set forth in the manual of the church, and we hold that the verdict of the General Council did not have to be unanimous.

We find no abuse of discretion on the part of the trial court in denying the application for a temporary injunction.

Affirmed.


author: BARRON, Justice.

text:
    Lee WASHER, Appellant, v. CONTINENTAL CASUALTY COMPANY, Appellee.
    No. 18.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Sept. 20, 1967.
    Rehearing Denied Oct. 11, 1967.

      Harry Burns, Houston, for appellant.
    Raybourne Thompson, Jr., and Vinson, Elkins, Weems & Searls, Houston, for ap-pellee.
   BARRON, Justice.

This is an action on a family hospital, nursing, medical and surgical expense policy brought in the trial court by appellant, Lee Washer, against appellee, Continental Casualty Company, who issued the policy. Both parties filed motions for summary judgment and the case was heard on both motions on written stipulations of fact. The trial court overruled appellant’s motion and granted the motion of the insurer appel-lee, Continental Casualty Company. Appellant, Washer, has perfected his appeal to this Court. There is no dispute as to any fact. The fact stipulations are as follows:

“1. The policy marked Exhibit “A” to this stipulation is a true and correct copy of policy Number 1961262 issued to Lee Washer.

“2. All prerequisites and conditions precedent necessary to be performed, if such policy is found to be in force, have been complied with.

“3. During the year of 1963 and early in the year of 1964, after the issuance of policy marked Exhibit “A” to plaintiff by defendant, Mrs. Iona J. Washer sustained a “sickness” as defined by said policy.

“4. As a direct result of such sickness Mrs. Iona J. Washer was, on February 28, 1964, operated on for an acoustic neuroma.

“5. On February 28, 1964, Mrs. Iona J. Washer was confined in a hospital by reason of such sickness which is referred to in Stipulation No. 3.

“6. On May 10,1965, Mrs. Iona J. Washer underwent a hypoglossal facial anasto-mosis as a result of such sickness referred to in Stipulation No. 3.

“7. On July 8, 1966, Mrs. Iona J. Washer was operated on for recurrent acoustic neuroma as a result of such sickness referred to in Stipulation No. 3.

“8. The operation of July 8, 1966 and the medical expenses made the basis of plaintiff’s suit resulted from a continuous sickness which existed prior to February 28, 1964.

“9. Mrs. Iona J. Washer is “family of insured” named in the policy.

“10. All medical bills made the basis of plaintiff’s suit were incurred in connection with the operation of July 8, 1966.

“11. All such medical bills were reasonable and necessary for the July 8, 1966 operation and treatment of Mrs. Iona J. Washer’s sickness.

“12. One-Hundred Eighty-Two and .80/100 Dollars was paid by defendant, Continental Casualty Company for doctor bills incurred by reason of the hypoglossal facial anastomosis performed on May 10, 1965 as the result of such sickness.

“13. If plaintiff is entitled to recover, he is entitled to recover the sum of $1,938.40 as the hospital bill, $317.20 as doctor bills, $155.00 for personal attendance in hospital, vacational nurses expense of $21.37 pursuant to the terms of such contract, plus twelve percent statutory penalty interest and reasonable attorney fees.

“14. The deposition of Dr. J. Randolph Jones, which is filed in the papers of the cause, constitutes a part of this stipulation.

“15. If the Court finds that the plaintiff is entitled to recover it is hereby stipulated that the Court may set a reasonable attorney’s fee.

“16. On the 20th day of July, 1965, more than five days prior to the premium due date, defendant mailed to plaintiff, Lee Washer, at his last address as shown by the records of the company, the letter marked Exhibit “B” to this stipulation.

“17. There is no extrinsic ambiguity which in any manner affects the policy marked Exhibit “A” to this stipulation.

“It is agreed and consented to by and between the parties to the captioned cause that the foregoing stipulations may be used for any and every purpose in the captioned litigation.”

The policy made the basis of appellant’s suit dated February 20, 1958, provides for payment of certain benefits in the event insured, or a specifically named dependent, is confined to a hospital. Mrs. Washer, wife of appellant, was first confined in a hospital as a result of sickness on February 28, 1964. She was next confined in a hospital as the result of the same sickness on May 10, 1965. The insurance company gave notice of cancellation of the policy effective August 1, 1965. Mrs. Washer was confined in a hospital on July 8, 1966 as a result of the continuous sickness which existed prior to February 28, 1964. All medical and hospital expenses made the basis of appellant’s suit were incurred by reason of the hospitalization and operation of July 8, 1966.

This entire controversy revolves around two paragraphs in Part I of the insurance policy, and this Court’s construction of these two paragraphs is vital to determination of legal rights and liabilities of the parties. The paragraphs are as follows:

“Indemnity paid under this Part only for expenses listed herein which are incurred within two years after the date of the accident or within two years after the commencement of the first hospital confinement resulting from the sickness which is the basis of claim * * * ”
“If, following a period for which expense is payable under this policy by reason of any one period of sickness, no expense covered by this policy is incurred as a re-suit of such sickness for a period of six consecutive months, but thereafter expenses are incurred from the same cause, such expense so incurred shall he deemed to be the result of a different sickness and compensable as a new period of sickness, subject to a new Deductible Amount.”

Since it is stipulated that Mrs. Washer’s first hospital confinement for her continuous sickness was on February 28,1964, and that this suit was brought for medical bills incurred on or about July 8, 1966, it is evident that the expenses for which appellant brings suit were incurred more than two years after the first hospital confinement for such illness, and therefore the expenses sought in this action are not recoverable under the policy using the date of February 28, 1964 as the measure. Appellant admits in his brief that the two-year limitation period would, if standing alone, bar his recovery. The fact that this sickness was actually a continuous one in fact cannot be controverted.

But the second paragraph of the policy which provides that in any one period of sickness, when no expense is incurred as a result of such sickness, for a period of six consecutive months, but thereafter expenses are incurred from the same cause, such expense so incurred shall be deemed to be the result of a different sickness, and compensable as a new period of sickness, does not require that the date of February 28, 1964 be used as the beginning date. Mrs. Washer, as we have said, was confined in a hospital on May 10, 1965, which was more than six months from the first operation of February 28, 1964, and during the life of the policy. According to the terms of the second paragraph above, this operation and resulting expense in 1965 is mandatorily regarded under the terms of the policy as a different sickness and compensable as a new period of sickness. The company chose to cancel the policy effective August 1, 1965, which concluded the liability of the company and the insured, except for expenses of sickness resulting directly from the “different sickness” of May 10, 1965.

. [2] We believe the law is settled in Texas that cancellation of a policy of this type must be without prejudice to any claim originating prior to the effective date of cancellation. Drinkard v. Group Hospital Service, Inc., 366 S.W.2d 637 (Tex.Civ.App.) error ref., n.r.e.; American Bankers Insurance Co. v. McDonald, 369 S.W.2d 688 (Tex.Civ.App.), writ dismd.; . American Benefit Association v. Russell, 278 S.W.2d 316 (Tex.Civ.App.), writ dismd.

But the parties by their contract must treat reoccurring episodes as a “different” sickness under the clear terms thereof. The only expenses for which the insured appellant may recover under the policy are those incurred while he or his dependent is confined in a hospital. It is only when no expenses payable under the policy are incurred for a period of six months that such can be deemed to be a different sickness. If it is remembered that Mrs. Washer’s last period of confinement during the life of the policy was May 10, 1965, and that her next period of confinement was July 8, 1966, we can arrive at no other conclusion than that more than six months had elapsed between confinements, and that the confinement of July 8, 1966 must be a different illness as defined in the second paragraph quoted above. While it is understood that appellee’s liability extended past the date of cancellation on August 1, 1965, the policy agreement requires that Mrs. Washer’s confinement be no later than six months from May 10, 1965 if liability is to continue. The company’s liability here expired six months from May 10, 1965. Consequently, we must affirm the judgment below in favor of ap-pellee.

We are bound to give clear and valid provisions of the contract effect.

The judgment of the trial court is affirmed.


author: PARKER, Justice.

text:
    Byron P. FORNEY, d/b/a Forney Construction Co., Appellant, v. COMMERCIAL CREDIT EQUIPMENT CORP., Appellee.
    No. 6917.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 7, 1967.
    Rehearing Denied Oct. 4, 1967.
    Lockett, Embry, Sharp & Roberts, Houston, for appellant.
    Painter & Painter, Houston, for appellee.
   PARKER, Justice.

Byron P. Forney, hereinafter called plaintiff, sued Commercial Credit Equipment Corporation, hereinafter called defendant, to recover the market value of a 1962 Ford tractor and forklift, alleging conversion. At the conclusion of plaintiff’s case, defendant’s motion for instructed verdict was denied. Issues submitted to the jury were favorable to plaintiff. Defendant’s motion for judgment non obstante veredicto was granted with judgment that plaintiff take nothing. Plaintiff’s motion for judgment upon the jury verdict was overruled.

On August 8, 1962 plaintiff purchased this equipment from Oil City Tractors, Inc., for which he executed a purchase money note ■ for part payment in the amount of $6,161.40, payable in 36 successive monthly-payments of $171.30 each with the first payment due on October 1, 1962. This note and chattel mortgage was assigned by seller to defendant. The note and chattel mortgage contained the following provisions:

“Time is of the essence of this contract. If Buyer defaults in complying with any of the terms and conditions hereof * * *, the full amount then unpaid hereunder shall become immediately due and payable without notice, and Seller or his assignee or its agent or any sheriff or other officer of the law may either, (1) collect the same by suit or otherwise, or (2) retake possession of said property with or without process of law and for this purpose may enter any premises where said property may be found and remove same and sell said property either at public or private sale, without notice to Buyer * *

In the assignment from Oil City Tractors, Inc. to defendant it is stated:

“For value received, we hereby sell, assign and transfer to Commercial Credit Equipment Corp., herein called “CCEC”, its successors and assigns, the within contract, and all of our right, title and interest in and to the property therein described, and all rights and remedies thereto, including the right to collect all instal-ments due thereon and the right either in our or CCEC’s name, to take all such proceedings, legal or otherwise, as we might have taken, save for this assignment. We warrant that the contract is genuine, enforceable, and the only contract executéd for the property described therein; that all statements therein contained are true, and that the property was delivered to and accepted by buyer. In event of breach of any of these warranties, we will purchase said contract from CCEC immediately upon demand, and will pay CCEC therefor an amount equal to the unpaid balance owing thereon, plus any costs or expenses incurred by CCEC in connection therewith.
“If CCEC should repossess or come into the possession of any property described in said contract, we will purchase such property immediately upon demand in its then condition and location, and will pay CCEC therefor the unpaid balance owing on said contract, or that portion of the unpaid balance owing on said contract applicable to such property, plus any costs or expenses, including attorney’s fees, incurred by CCEC in connection therewith. If we fail or refuse to purchase said property, then CCEC may sell the same at public or private sale, with or without notice to us, and we will pay CCEC the difference between the net amount realized from such sale and the purchase price provided for above. We agree that CCEC may audit our books and records relating to contracts sold to CCEC and that CCEC may, without notice to us and without releasing our liability hereunder, grant extensions of time of payment of said contract and release any rights thereunder, and we waive presentment and demand for payment, protest or notice of protest. We shall have no authority without CCEC’s prior written consent to accept collections, repossess or consent to the return of said property, or modify the terms of said contract.
“All payments by dealer, seller, or assignor to CCEC provided for in the said agreements between CCEC and us, the foregoing purchase agreement, or this assignment shall be made at the office of CCEC in Houston, Harris County, Texas.”

Plaintiff was delinquent on his payments of March 1, April 1, and May 1st, 1965. On May 21st, 1965 the equipment was repossessed by defendant and placed in possession of Cook Equipment Co. Plaintiff was notified and knew such action would be taken unless he put the account in current shape. The June payment also became delinquent. Plaintiff introduced in evidence a letter from defendant stating that it had given him until June 21st “to redeem this equipment”. This he did not do. The entire balance of indebtedness on June 21st, 1965 was $1,298.05. This is undisputed.

Plaintiff alleges that on Friday, June 25th, 1965 he mailed a check payable to defendant in the sum of $955.75. This was not cashed. The only mention of tender by plaintiff of the full amount due defendant is in plaintiff’s petition. There is no evidence such $1,298.05 was deposited in the registry of the court, that when suit was filed that plaintiff was ready, able and willing to pay such balance of $1,198.05, or that he ever had more than $955.75 to pay defendant on June 25, 1965.

Plaintiff contends the trial court erred in overruling his motion for judgment based upon the jury verdict and entering judgment non obstante veredicto that plaintiff take nothing.

The jury found that defendant took possession of the equipment. This is undisputed. The jury found that on June 25th, 1965 defendant agreed to return to plaintiff the equipment upon plaintiff mailing to defendant his check in the amount of $955.75 which did not mean that plaintiff had to bring $955.75 in cash to defendant’s office by June 25, 1965. The check was mailed but not cashed. There is no evidence that defendant ever received “funds from Forney sufficient to pay the balance under the contract of purchase.”

The jury found that defendant had not resold the Forney contract before it received funds from Forney sufficient to pay the balance due undér the contract of purchase. There is no evidence that plaintiff paid consideration for any extension of time to vary his contractual obligation.

On Monday, June 28, 1965 the check was returned by defendant to plaintiff with letter of that date advising plaintiff that the contract had been re-assigned to the dealer Oil City Tractors, Inc. of Beaumont as provided by the purchase note and agreement.

There was no consideration supporting the verbal agreement pleaded by plaintiff and found by the jury. There never was a tender by plaintiff to defendant of the full amount owing by plaintifí to defendant. Under the terms of the note and mortgage upon plaintiff’s failure to pay the installments when due, all the installments thereupon immediately became due. Upon default in the payment of the installments the defendant had the legal right to do what it did. Bowers v. Ground, 115 S.W.2d 1142 (Tex.Civ.App.1938, n. w. h.) and cases cited on p. 1143; Motor Finance Co. v. Wolff, 387 S.W.2d 129 (Tex.Civ.App.1965, n. w. h.) ; Baucum v. Great American Ins. Co. of New York, 370 S.W.2d 863 (Tex.1963).

Upon plaintiff’s becoming delinquent, defendant legally took possession. Defendant sold, transferred and assigned all its rights to the original seller which it had a right to do. Plaintiff’s points of error are overruled.

The judgment of the trial court is a-firmed.


text:
    MELODY HOME MANUFACTURING COMPANY, Appellant, v. D. P. BURKETT, Appellee.
    No. 6913.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 7, 1967.
    Rehearing Denied Oct. 4, 1967.

      W. G. Walley, Jr., Beaumont, for appellant.
    Jack R. King, Beaumont, for appellee.
   STEPHENSON, Justice.

This is an appeal from an order overruling a plea of privilege. Plaintiff brought this suit to rescind a contract under which he purchased a mobile home. Defendants were Marvin W. Crabtree and wife, d/b/a College Court Trailer Sales, hereinafter called “defendant Crabtree” and Melody Home Manufacturing Company, a corporation, hereinafter called “defendant Melody Home”.

Defendant Melody Home filed a plea of privilege to be sued in Tarrant County, its residence and principal office. Plaintiff filed a controverting plea relying upon Sections 4, 23 and 29a of Article 1995, Vernon’s Ann.Civ.St., to sustain venue in Jefferson County. Defendants Crabtree filed no plea of privilege and are not parties to this appeal.

Section 4 provides in part: “If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants reside,”.

The law in this state is clear, that in order to retain jurisdiction against a nonresident defendant (over his protest) within the provisions of Section 4, a plaintiff must allege a cause of action which is joint, and introduce proof that shows that the subject cause of action actually exists against the resident defendant — or, if the causes are not joint but only related, he must “show” that the causes of action are so closely or intimately connected that it is necessary that they be tried together in order that a multiplicity of suits be avoided. Fitts v. Calvert, Tex.Civ.App., 374 S.W.2d 274; Kasishke v. Ekern, Tex.Civ.App., 278 S.W.2d 274 (and cases cited).

In his controverting plea, plaintiff made the following allegations:

“2. This suit is brought by the Plaintiff, D. P. Burkett, for the purpose of rescinding the contract under which the said D. P. Burkett purchased a mobile home from Marvin W. Crabtree and Vera Crabtree, D/B/A College Court Trailer Sales, which mobile home was manufactured by the Melody Home Manufacturing Company. This suit for re-cision is based on the faulty workmanship and defective materials used and applied in the construction of said mobile home.
“3. That said Plaintiff, D. P. Burkett, by his first Amended Original Petition has included Melody Home Manufacturing Company as a Defendant and alleges in said Amended Petition that Marvin W. Crabtree and Vera Crabtree, D/B/A College Court Trailer Sales and Melody Home Manufacturing Company are all equally liable to said Plaintiff for any damages incurred by the Plaintiff by reason of the said Melody Home Manufacturing Company constructing the defective mobile home and the said Marvin W. Crabtree and Vera Crabtree, D/B/A College Court Trailer Sales, selling a faulty and defective mobile home to said Plaintiff.
“4. Plaintiff, D. P. Burkett, alleges that Marvin W. Crabtree and Vera Crab-tree, D/B/A College Court Trailer Sales, Defendants in the above entitled and numbered cause, are residents of Jefferson County, Texas, and at all times material hereto, to-wit: At the time the trailer was sold to the Plaintiff, D. P. Burkett, and at the date of the filing of this suit, were the agents and representatives of the Defendant, Melody Home Manufacturing Company. That Marvin W. Crab-tree and Vera Crabtree, D/B/A College Court Trailer Sales and Melody Home Manufacturing Company, a corporation who has its principal office in Tar-rant County, Texas, and who, on the date of this suit and at all times material thereto, maintained Marvin W. Crabtree and Vera Crabtree, D/B/A College Court Trailer Sales, as an agent and representative for the purpose of selling trailers and mobile homes in Beaumont, Jefferson County, Texas, and they are all proper and necessary parties to this cause of action.
“5. The Plaintiff alleges that this Court has venue of this cause of action and of the Parties Defendant herein under the provisions of Sub-Division 4, SubDivision 23 and Sub-Division 29a of Article 1995, Revised Civil Statutes of Texas and that by virtue of said Statutes the exclusive venue of this suit is in Jefferson County, Texas.”

In plaintiff’s amended petition it is prayed that plaintiff have judgment rescinding the contract and that he have judgment against the defendans, jointly and severally, in the sum of $5,843.00 and for other and further relief. Plaintiff alleged a joint action against both defendants, so we must next examine the record to determine whether or not plaintiff introduced proof to show that the subject cause of action actually existed against the resident defendant.

Sidney King was called as a witness and testified as follows: He was a practicing attorney in Jefferson County. He represented the defendants Crabtree. The Crabtrees resided in Beaumont, Jefferson County, Texas. They are engaged in the mobile home trailer business on College Street. That they maintained agency and sold trailers manufactured by Melody Home Manufacturing Company about the year of January, 1966. That he was aware that the basis of the suit filed on behalf of the plaintiff in the rescinding of the contract is for the quality of workmanship and material that was contained in the trailer delivered to them. That he saw this trailer and evidenced the faulty workmanship. The trailer was labeled as a Melody Home Trailer. Based upon his inspection of the trailer and the faulty workmanship, the plaintiffs have a prima facie case at least that has venue in Jefferson County. No other witness gave testimony.

There is no evidence in the record that the trailer mentioned in the testimony was sold or delivered by the defendants Crabtree to plaintiff. There is no evidence of either a written or oral contract executed by plaintiff and defendants Crabtree, which could be the basis of an action for rescission. Therefore, no cause of action against defendants Crabtree was proved by the evidence, and venue could not be maintained under Section 4, Article 1995, V.A.C.S.

We next look at the record to see if venue can be maintained under Section 23, Article 1995, V.A.C.S. There is no evidence that defendant Melody Home had its principal office in Jefferson County, or that any part of the cause of the action arose in Jefferson County, as there is no evidence as to where the mobile home was sold or delivered or where the contract of sale was made, if there was one. Also, there is no evidence as to where the plaintiff resided at the time the cause of action arose and whether defendant Melody Home had an agency or representative in such county. Therefore, venue could not be maintained under Section 23, Article 1995, V.A.C.S.

It is admitted by plaintiff that Section 29a, Article 1995, V.A.C.S., must always be considered in conjuction with some other exception under Article 1995. There being no evidence to support the order of the court overruling this plea of privilege, this order must be reversed.

It appearing that this case was not fully developed on the hearing of the plea of privilege, in the interest of justice, the case will be remanded for a new trial.

Reversed and remanded.


text:
    FORD MOTOR COMPANY et al., Appellants, v. LEMIEUX LUMBER COMPANY, Inc., Appellee.
    No. 6912.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 7, 1967.

      Baker, Botts, Shepherd & Coates, Houston, for appellants.
    J. C. Zbranek, Liberty, for appellee.
   STEPHENSON, Justice.

This is an appeal from an order overruling the plea of privilege of the defendant, Ford Motor Company. This is an action for breach of both an implied warranty in law and an express warranty in writing, that a Ford truck was suitable for the purpose for which it was sold. The parties will be referred to here as they were in the trial court.

Plaintiff alleged that defendant, N. A. Walker, was an individual engaged in the sale of Ford automobiles and trucks in Liberty County, Texas, and resided in Liberty County, Texas. Plaintiff also alleged that defendant, Ford Motor Company, was a foreign corporation doing business in the State of Texas, with an agent for service in Harris County, Texas.

Defendant, Ford Motor Company, filed its plea of privilege asking that the case be transferred to Harris County, Texas. Plaintiff filed its controverting affidavit, relying upon subdivisions 4, 23, 27 and 29a of Article 1995, Vernon’s Ann.Civ.St, to maintain venue in Liberty County, Texas. Hearing was be-before the court and judgment rendered overruling such plea of privilege. In its brief, plaintiff contends only that venue was sustainable under sections 4 and 27, and we conclude the trial court’s ruling is correct on both of these grounds.

Section 4 provides in part that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. N. A. Walker is one of the defendants, and the undisputed evidence shows that he was a resident of Liberty County, where this suit was brought. The evidence also shows: That plaintiff bought a new Ford pick-up truck with four wheel drive from defendant Walker in Cleveland, Texas. That defendant Walker was the authorized dealer for defendant, Ford Motor Company, at the time of such purchase, and obtained such product from defendant, Ford Motor Company. That plaintiff had a contract to cut fifteen million feet of timber from Interna--tional Paper Company land located in the Devers big thicket or swamps. That defendant, Walker, knew the purpose for which plaintiff was buying the truck in question, and that it was intended to be used to operate in muddy, rough, wet terrain to haul fuel and so forth to the plaintiff’s equipment in the woods. That the needs for this truck were discussed by defendant Walker with Jesse H. Williams, president of plaintiff corporation, who negotiated for and concluded the purchase of this truck. That defendant, Ford Motor Company, furnished defendant, Walker, brochures, depicting in pictures and words the products offered for sale, which were distributed by defendant, Walker. That Williams read one of these brochures before buying the truck, which showed pictures of them crossing streams and ditches, and climbing mountains. That plaintiff relied upon such brochure in making this purchase. This particular truck was a four-wheel drive pick-up and was needed to perform services an ordinary pick-up truck would not. That the truck in question immediately began to have trouble in that the rear end would strip out and the universal joint would burst, even though all of the requirements for proper use and maintenance were complied with. That the truck was carried back to defendant Walker each of the three or four times it occurred and attempts were made to repair and correct the problems, but no solution was found. That plaintiff suffered damages. The evidence supported an implied finding by the court that this truck was not suitable for the purpose for which it was sold.

Defendant, Ford Motor Company, contends that no cause of action was proved against it because there was no privity between it and plaintiff as it was not a party to the sales transaction between plaintiff and defendant Walker. The Supreme Court of Texas, in United States Pipe & Foundry Co. v. City of Waco, 130 Tex. 126, 108 S.W.2d 432, permitted recovery directly against the manufacturer who made representations as to what the product would do, even though there was no privity between such parties. We think it is clear in Texas today that privity is no longer required in an action based upon a breach of an express or implied warranty that a product is suitable for the purpose for which it is sold. McKisson v. Sales Affiliates, Inc., Tex., 416 S.W.2d 787.

Defendant also contends that a brochure cannot be construed to be an express warranty, citing Welch Veterinary Supply Co. v. Martin, Tex.Civ.App., 313 S. W.2d 111. We do not agree with defendant that such case makes such a holding. We have concluded that a manufacturer should be held responsible for the advertising done by it regardless of the medium, whether it be by television, radio, billboard or brochures and other literature. We further conclude that such manufacturer should be held responsible for economics or commercial losses where the product is not suitable for the use for which it is advertised. The Supreme Court of Tennessee in Ford Motor Company v. Lonon, 398 S.W.2d 240, makes an exhaustive discussion of these points.

Affirmed.