author: DIXON, Chief Justice.

text:
    STATE of Texas et al., Appellants, v. Edward L. HAYS et ux., Appellees.
    No. 16091.
    Court of Civil Appeals of Texas. Dallas.
    July 13, 1962.
    Rehearing Denied Oct. 19, 1962.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, Homer G. Montgomery, Emmett

      Colvin, Jr.', Don R. Stodghill and Ted Z. Robertson, Asst. Dist. Attys., Dallas, for appellants.
    McKool & McKool, Dallas, for appel-lees.
   DIXON, Chief Justice.

This appeal again presents the question of the admissibility of testimony in regard to alleged comparable sales in a condemnation suit.

This is the second appeal in the case. For the opinion in the first appeal see Hays v. State, Tex.Civ.App., 342 S.W.2d 167. For a related case see State v. Morse, Tex.Civ.App., 342 S.W.2d 165.

Appellees admitted that appellants had complied with all the prerequisites and requirements for condemnation. The only questions remaining were issues of value. Nevertheless the trial extended over a period of ten days. The statement of facts covers 1220 pages.

As usual the expert witnesses differed sharply as to value. Appellees’ expert witnesses Ardis Doak and Roy Eastus valued the land and improvements and damages to the remainder at a total of $46,729.40 and $36,235.35, respectively. Another of ap-pellees’ witnesses, Jack Reynolds, valued the improvements condemned, not including the land, at $12,737.00. The land consisted of 2.2 acres in three separate parcels in the City of Seagoville, Texas.

Appellants’ only expert witness, Joseph R. Smith, valued the land and improvements and damages to the remainder at $12,900.00.

■ A "jury found that the value of the land taken and the damage to the remainder totalled the sum of $23,500, for which amount judgment was rendered in favor of appellees Hays, the property owners.

Appellants’ first point on appeal is as follows:

‘.‘The trial court abused its .discretion and erred, over the strenuous objgc- _ tions of appellants, in submitting into evidence through the opinion witnesses of the appellees alleged comparable sales that involved other than a monetary consideration.”

• In their first counterpoint appel-lees say that we should not consider appellants’ point because it is multifarious in that it complains of four separate and distinct rulings of the court pertaining to four separate and distinct grounds involving four separate comparable sales.

We must agree with appellees that appellants’ first point does not comply with Rules 321, 374 and 418, Texas Rules of Civil Procedure; Johnson-Sampson Construction Co., Inc., v. W & W Waterproofing Co., Tex.Civ.App., 274 S.W.2d 926 (Syl. 8); Gass v. Baggerly, Tex.Civ.App., 332 S.W.2d 426.

However, in their statement and argument under their first point, appellants separately name the four sales and the four rulings of the court to which objection is made. Therefore, we shall proceed to consider each of the four rulings as if each were itself the subject of a point on appeal. Rule 422, T.R.C.P.; Wyche v. Noah, Tex.Civ.App., 288 S.W.2d 866; Paul v. Johnson, Tex.Civ.App., 314 S.W.2d 338.

At the beginning of the trial appellants filed a motion asking the court to instruct counsel for appellees not to make any inquiry or reference in the presence of the jury to any alleged comparable sale which involved other than a monetary consideration. The court overruled appellants’ motion.

Appellees’ expert witness, Roy Eastus, went into great detail in explaining how he arrived at his opinion of a value of $36,235.35. After naming that figure he testified that his opinion was based in part on sales of other properties which he considered comparable. He testified specifically concerning thirteen of such sales. Four of these alleged comparable sales were challenged by appellants and are the subject of this appeal. These four sales, with grantors and grantees, are as follows:

(1) Rufus E. Parker and H. J. Solomon to American Petrofina Co. of Texas;

(2) A. Rex. Putnam to Bob Hays;

(3) Bob Hays to Humble Oil & Refining Company;

(4) J. D. Balafas to Dewey Thomason.

Appellants objected to sale No. (1) because it involved an easement; to No. (2) because it involved a consideration of $15,000.00 consisting of $5,000.00 cash and a mortgage on a service station which Hays had been required to build; to No. (3) because the sale was one of the three sales of service stations by Hays to Humble Oil & Refining Company in connection with Hays’ removal from Seagoville, Texas to Athens, Texas, as Humble Company’s agent; and to No. (4) because the contract for $500 cash payment and the execution of a $9,000 mortgage also contained a provision that the proceeds of condemnation should be applied on the $9,000 mortgage.

In support of their contention appellants cite and quote from cases in which it is held that “swaps”, or trades and exchanges of property are not material or relevant in proving market value. Morgan v. State, Tex.Civ.App., 343 S.W.2d 738 (Syl. 4); Cravens v. City of Amarillo, Tex.Civ.App., 309 S.W.2d 903; Fort Worth Improvement District No. 1 v. Weatherred, Tex.Civ.App., 149 S.W. 550; State of Arizona v. McDonald, 88 Ariz. 1, 352 P.2d 343, 349; Redfield v. Iowa State Highway Commission, 252 Iowa 1256, 110 N.W.2d 397; Sanitary District of Chicago v. Boening, 267 Ill. 118, 107 N.E. 810; United States v. Leavell & Ponder, Inc., 5 Cir., 286 F.2d 398; Lewis, “Eminent Domain” Vol. 2, 3rd Ed. § 662, p. 1138; Nichols, “Eminent Domain” 3rd Ed. Vol. 5, § 21.31, p. 280; Alfred Jahr, “Eminent Domain: Valuation & Procedure,” § 139, p. 314. Appellants say that, applying this rule, the court should have sustained their objections to the four sales, and the testimony of Eastus in regard to them should have been stricken.

In Hays v. State, Tex.Civ.App., 342 S.W.2d 167, 170, Justice Thomas, speaking for this Court, gave three conditions under which, in condemnation cases, evidence may be offered of comparable sales. The first of said conditions is in substance as follows: such testimony may be offered on direct examination of expert or lay witnesses as independent substantive evidence of the value of the property to which the comparison is made. That situation is not presented in the case now before us, so we shall make no comment as to whether the evidence in question could properly have been admitted if it were to be tested under the first condition.

It is the second of the conditions stated by Justice Thomas which concerns us here: evidence of alleged comparable sales may be given by expert witnesses on direct examination, not as primary evidence of value, but merely to give an account of the factual basis upon which the expert founds his stated opinion as to the value of the real estate being condemned.

In passing on the admissibility of alleged comparable sales a trial judge must to a certain extent pass on the degree of similarity of said properties and sales. No inflexible rule has been laid down to govern the court’s decision. In admitting or rejecting such evidence a judge is allowed considerable discretion. Lewis on “Eminent Domain” Vol. 2 (2d Ed.) § 443; 23 Tex.Jur. 2d 271, 273 ; 32 C.J.S. Evidence § 593, p. 447.

In exercising this discretion a trial judge is to be allowed a greater latitude in admitting evidence of comparable sales under the second condition than under the first condition named by Justice Thomas in his opinion. City of Houston v. Pillot, Tex.Com.App., 105 S.W.2d 870, 872; Cole v. City of Dallas, Tex.Civ.App., 229 S.W.2d 192, 193; Stewart v. Commonwealth of Kentucky, etc., Ky., 337 S.W.2d 880, 884; United States v. 5139.5 Acres of Land, etc., 4 Cir., 200 F.2d 659, 662.

The reason for this greater latitude is well stated in McCormick & Ray “Texas Law of Evidence,” Vol. 1, page 610, § 835.

“It is the general rule that an expert witness, having testified to an opinion, is permitted to give in evidence, either in direct or cross-examination, an account of the basis upon which he founds the opinion. If this testimony happens to be competent for that purpose it is admissible as independent evidence upon the issues in the case, but even though not so competent, it is still admissible as giving the basis for the previous opinion testified to and thereby enabling the fury to test the value of the opinion evidence.’ (Emphasis ours.)

In the present case the testimony of the witness Eastus in regard to the four disputed sales comes within the second of the conditions named by Justice Thomas. After giving his opinion as to the values of the condemned property, Eastus testified as follows:

“Q Now, Mr. Eastus, do you have any sales, did you check any sales in the area in recent years prior to or since the condemnation within a reasonable distance of the Hays property in order to get and form an opinion as to the value of the Hays property?
“A I have
“Q And were there such sales that have taken place near the Hays property during that period of time?
“A Yes.
“Q Would you give me the name of a grantor and grantee please, sir ?” (Emphasis ours).

Eastus then testified to thirteen sales including the four in dispute. He was vigorously cross-examined about these four sales. Some dissimilarities were brought out in the cross-examination of Eastus. As to other dissimilarity he said he did not know.

Most of the dissimilarities on which appellants rely were brought out in the testimony of appellants’ expert witness Joseph Smith, offered in rebuttal of the testimony of East-us. Smith testified that he had investigated the four sales in question. In his opinion they were not comparable sales for reasons heretofore set out. Thus we have Eastus’ opinion that the sales were comparable against Smith’s opinion that they were not comparable — a fact issue presented by two experts. In the face of this conflicting testimony, the words of our Supreme Court in City of Houston v. Pillot, supra, seem appropriate “On the whole the objections urged go to the weight, rather than the admissibility, of the evidence.”

As to the sale from Parker & Solomon to American Petrofina Company: on the first appeal of this case we took into consideration the fact that the land involved in that sale was burdened with an easement. Nevertheless, it was held that evidence concerning it was properly admissible as a comparable sale.

It is our opinion that under the circumstances disclosed by the record as a whole, it was not reversible error for the trial court to admit the evidence in question in regard to the four sales in controversy. Appellants’ first point is overruled.

In their second point on appeal appellants assert that the trial court abused its discretion in admitting into evidence through the opinion witness of appellees an alleged comparable sale that involved a transaction under threat of condemnation and allowing appellees’ attorney to explore same further in his final jury argument.

Appellees object to our consideration of appellants’ second point on the grounds that (1) it is multifarious; (2) the point is not preserved in appellants’ motion for new trial; (3) appellants did not file any bill of exceptions to the alleged oral argument of appellees’ attorney.

The point is indeed multifarious, or at least duplicitous. But for reasons stated in our discussion of appellants’ first point, we shall not refuse to consider the point. Rule 422, T.R.C.P.

The two prongs of the second point are preserved in paragraphs 1(a) and III of appellants’ motion for new trial.

A transcript of the jury argument of ap-pellees’ attorney is part of the record before us. It shows that appellants’ attorney objected to that part of the attorney’s argument referring to the evidence of appellants’ witness, Joseph Smith, to the effect that the State of Texas paid Thomason $8,534.00 for eight-tenths of an acre out of the land previously sold by Balafas to Thomason. One ground of the objection, among other grounds, was that the attorney was discussing a “State condemnation project,” not a proper comparable sale. Appellants’ objection was overruled. The objection of appellants as shown by the record was sufficient to preserve the point for appeal. Rules 372(e) and 373, T.R.C.P. Appellees’ objections to our considering appellants’ second point on appeal are overruled.

It has been held that as a general rule evidence of the price paid by a condemnor for property involved in a condemnation proceeding is not admissible. City of Dallas v. Malloy, Tex.Civ.App., 214 S.W.2d 154; Too Fan v. City of El Paso, Tex.Civ.App., 214 S.W.2d 158; Rayburn, “Texas Law of Condemnation,” pages 432-433. We do not disagree with these holdings, but we believe they are not in point here for these reasons:

(1) The comparable sale in question here was a sale of property from an individual named Balafas, grantor, to another individual named Thomason, grantee. It was not a sale made to a condemnor by an owner of land involved in a pending condemnation proceeding,

(2) The fact that Thomason, the purchaser of the property, two months later successfully negotiated a sale of part of the property to the State of Texas was disclosed by appellants’ own expert witness, Joseph Smith, and was offered in rebuttal to testimony of Eastus, who had earlier testified about the sale from Balafas to Thomason. Smith testified that the contract of sale between Balafas and Thoma-son contained a provision that if part of the property should be condemned, the proceeds of the condemnation would be applied on the note and mortgage signed by Thomason when he purchased the property from Balafas. Thomason later negotiated a sale of part of the land to the State of Texas for $8,534. This sum was paid by Thomason to Balafas and applied on Thom-ason’s note.

(3) The testimony of Eastus in regard to comparable sales was not presented as primary substantive evidence of value, as we pointed out in our discussion of appellants’ first point. It was presented by Eastus in explanation of his opinion as to value. Even if we were to say that the testimony is not admissible as primary evidence of value (we make no ruling on that question as it is not before us), we would have to say that the evidence is admissible as giving the basis for the previous opinion testified to by Eastus, thereby enabling the jury, as said in McCormick & Ray, supra, “to test the value of the opinion evidence.”

(4) In any event we do not believe that the testimony of Eastus in regard to the alleged comparable sale, admissible or not, was calculated to cause and probably did cause the rendition of an improper judgment. This applies also to the alleged improper jury argument. Eastus testified in regard to the thirteen alleged comparable sales. Only four of these sales were challenged in this appeal. The jury obviously did not accept Eastus’ opinion as controlling in reaching its decision as to value. The jury returned a finding of $23,500 as the total value of the land taken and the damage to the remainder. This finding by the jury was closer to the total value and damage of $12,900, as testified to by appellants’ witness Smith', than it was to the total of $36,235 testified to by appellees’ witness Eastus. -It was very much closer indeed, to Smith’s total figure than it was to the figure of $46,729.40 testified to by ap-pellees’ witness, Ardis Doak. It is apparent that the jury did not accept fully any of the experts’ opinions as to the value.

Appellants’ second point is overruled.

In their third point appellants complain because the court refused to give appellants’ requested special Issue No. 1 as follows:

“From a preponderance of the evidence, what do you find was the market value of the land and improvements encumbered by an easement, condemned by the State of Texas and County of Dallas for highway purposes at the time it was condemned, considered separate property?”

The court did submit the following issue:

“From a preponderance of the evidence what do you find was the market value of the Defendants’ property taken by the State of Texas for highway purposes at the time it was condemned on June 12, 1959, considered as separate property ?”

The condemned property is subject to an easement. Appellees’ witness Eastus testified about it. Appellees’ witness Mc-Elya testified about it in great detail. Certainly, it was brought to the attention of the jury.

The issue submitted by the court was in the form approved in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194. Though the issue as submitted did not expressly mention the easement it was all inclusive, so included the easement about which testimony had been received.

Appellants argue that the trial court apparently was of the opinion that there is something sacred about the Carpenter case. To negate such view they cite several cases which approve a departure from the language of-the Carpenter case. State v. Oakley, Tex., 356 S.W.2d 909; Holbrook et al. v. State of Texas, Tex.Civ.App., 355 S.W.2d 235; City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808.

We have no quarrel with the holdings in the above cases. We certainly shall not hold that it is always wrong to depart from the forms of issues as set out in the Carpenter case. We do say that in the case now before us it was not wrong to adhere to the forms approved in the Carpenter case.

Since' the issue submitted was broad enough to include the easement in question, it was not error to refuse submission of the appellants’ requested issue.

Appellants’ third point is overruled. '

The judgment of the trial court is affirmed.

ON REHEARING

In an earnest motion for rehearing appellant cites us to the holdings in the recent cases of State of Texas v. Williams, Tex.Civ.App., 357 S.W.2d 799 and State of Texas v. Curtis, Tex.Civ.App., 361 S.W.2d 448. We are also aware of the holding of our Supreme Court in State of Texas v. Willey et ux, 360 S.W.2d 524.

In our opinion the holdings in the above named cases are not in point with the case-now before us and should not determine our decision here.

In the Williams case the Court of Civil' Appeals at Texarkana speaking through Chief Justice Chadick, first affirmed the trial court’s judgment o,n the ground that the cumulative evidence properly admitted swayed the balance in favor of harmless error. However, on rehearing it was made plain that documentary evidence which had been thought to be a contract of sale, was merely an option contract and should not have been admitted in evidence! This new development, according to the Court, tilted the scales in favor of holding that the admission of incompetent evidence: was harmful.

•It should be observed, too, that of the three witnesses, who testified-in the Williams case on behalf of appellee the qualifications of only one were established as an expert on land values. Another witness, the land owner, was qualified to give his opinion of the value of his land, but his qualifications as an expert were not shown. No effort had even been made to ■qualify the third witness as an expert. In these and other important particulars the material facts differ from the controlling facts in this case.

In the Curtis case, opinion by Justice Pope, in behalf of the San Antonio Court of Civil Appeals, it is expressly stated that the first three points on appeal relate to the nature of comparable sales “when used as proof of value in condemnation cases.” The situation here is quite different. As we pointed out in our original opinion, the challenged testimony of comparable sales in this case was given by a qualified expert, not as independent substantive evidence of value, but merely to give an account of the basis upon which the expert in part founded his opinion. The situation is clearly shown by the testimony which was elicited after the witness Eastus, as an expert, had stated his opinion of the values of the condemned property. Moreover, the facts in the Curtis case, though they are not set out in detail, evidently did not pre- , sent the problem of harmless error, as do the facts in our case.

In the Willey case our Supreme Court : was concerned with the admission in evidence of testimony of sales of lots in subdivided areas as being comparable to undeveloped acreage. This evidence presented . by a witness named Davis, could not be considered as harmless error, for as the Supreme Court said, “it is no wonder that the jury found the value of the condemned land to be exactly, to the dollar, what Davis said it was, $14,160.00.”

■ : In the case now before us appellee in- -■ sists that the four challenged sales are properly comparable sales. Appellee’s wit'ness Eastus, a highly qualified expert, testified that they were. In rebuttal appellant produced a witness, Joseph Smith, who testified that of the thirteen comparable sales about which Eastus testified, four were not comparable. In the face of this conflict in the testimony, appellee contends that the trial judge did not abuse his discretion in admitting the testimony of Eastus and in refusing to strike it after Smith had testified.

Without retreating from our position holding that the challenged testimony was admissible under the circumstances, we are firmly convinced that the error in admitting it, if it was error, was harmless. We so hold for these reasons:

(1) Eastus on behalf of appellee testified as to thirteen alleged comparable sales. Only four of these sales were challenged by the State as to their comparability. Joseph Smith in behalf of appellant testified to sixteen alleged comparable sales. Thus there was an abundantly sufficient cu-mulation of competent evidence of comparable sales to tip the scales in favor of harmless error.

(2) As we pointed out in our original opinion the jury plainly did not accept and rely on Eastus’ testimony. He testified to a total damage by the taking of $36,-23S.00. The jury allowed only $23,500.00. Appellee’s witness Doak testified to a total damage of $46,729.00. Obviously the jury did not accept the valuation put on the property by appellee’s witnesses. In this as in other particulars the instant case differs from the Willey case recently decided by our Supreme Court.

(3) It is easily understandable that Eastus’ testimony in regard to the four disputed comparable sales may well have helped rather than hurt appellant. If, as appellant claims, the four sales were not comparable, Eastus laid himself open to attack and exposure by saying they were comparable. His qualification as an expert on real estate values was well established in the evidence. His opinion as to values was undoubtedly admissible. Appellee could have discontinued further direct examination immediately after Eastus had given his opinion as to value. But appel-lee elected to have Eastus tell of alleged comparable sales as part of the basis for his opinion. The trial lasted ten days. Appellant had an opportunity to have, and did have its expert Joseph Smith, check the alleged comparable sales of Eastus. In rebuttal he testified at length and in great detail, pointing out wherein he considered the four questioned sales not comparable.

We have carefully considered appellant’s motion for rehearing. In the light of the record as a whole we overrule the motion.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    H. S. MOSS, Appellant, v. STATE of Texas, Appellee.
    No. 3749.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 12, 1962.

      Locke, Purnell, Boren, Laney & Neely, Dallas, for appellant.
    Wayne Burns, County Atty., Big Spring, Tom I. McFarling, Asst. Atty. Gen., Austin, for appellee.
   WALTER, Justice.

This is a condemnation case. H. S. Moss, the condemnee, was awarded $14,-242.40 by the Special Commissioners on February IS, 1954. On February 23, 1954, Moss’ first attorney filed objections to the award, however, no citation was ever issued or served. Apparently Moss’ first attorney represented him until April 7, 1961, at which time Hon. Wayne O. Woodruff was employed. Woodruff prepared an order to withdraw the award, which was signed by the Judge on April 24, 1961. The court dismissed the case for lack of prosecution on June 1, 1961. Moss filed a motion and an amended motion for reinstatement, and the county attorney filed motions to correct the judgment and for a judgment nunc pro tunc. On March 30, 1962, the court heard evidence on Moss’ motion and the State’s motions and overruled the condemnee’s motion for reinstatement and granted the State’s motions.

Moss has appealed from such judgment and contends the court erred by entering said judgment and abused its discretion by failing to grant his motion for reinstatement.

Attorney Woodruff testified to facts that had transpired since his employment. We will now consider the period of time from February 23, 1954, the date on which Moss’ first attorney filed objections to the award, to April 7, 1961, when Woodruff was employed. This is a period of over 7 years. A fair summary of Woodruff’s testimony on cross-examination is as follows : Neither Moss nor his first attorney made any effort to secure a trial during said 7 years period. The case had just been in limbo. He did not know of anything which would excuse or justify the case remaining on the docket more than 7 years without some action. So far as he knew, there were no peculiar facts or circumstances which would necessitate such an extended delay. It was inconceivable to him.

Mr. Little, Moss’ business manager, testified he was employed by Moss during said 7 year period. He further testified that no preparation was made by Moss or his first attorney during such time to try the case and no effort was made to have the case set for trial. He knew of no particular facts which would justify the case remaining static on the docket for over 7 years.

No citation was ever issued or served. When Moss filed objections to the award of the Commissioners, the condemnation proceedings became a cause pending in the County Court of Howard County. It was Moss’ burden to have citation issued and served. Until Howard County was served with citation, it was under no legal obligation to go to trial. See Den-ton County v. Brammer, Tex., 361 S.W.2d 198.

Granting or refusing the motion for reinstatement rested in the sound discretion of the court, subject to review. It now becomes a question of law for us to determine if there was a clear abuse of discretion. See Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85. In Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489, the court said:

“Therefore, it becomes expedient to examine the rule of practice, sometimes called the rule of ‘discontinuance’, as same has been developed in this State by a long line of decisions. Such rule as so developed and applied may be explained in these words: Where the defendant in a suit is called to answer and has .responded to the call, the duty devolves on the plaintiff to proceed in prosecuting the suit to a conclusion with reasonable diligence', and whenever a delay of an unreasonable duration occurs, such delay, if not sufficiently explained, will raise a conclusive presumption of abandonment of the plaintiff’s suit, and a discontinuance results. However, since the discontinuance must be based on a factual situation involving lack of due diligence, same does not and cannot become effective until the basic facts are adjudicated by the court. Whenever the hearing for such adjudication is had, the plaintiff has the right to be heard to explain, if he can, his delay in prosecuting his suit.”

The court’s duty was to first determine whether the case had been on file without action for an unreasonable length of time. If he concluded that it had, then it became his duty to give Moss an opportunity to explain his delay. The court heard evidence relative to the factual situation .regarding diligence. Moss did not testify and his first lawyer did not testify. The court, in effect, Held that Moss’ case had been on file without action for an unreasonable length of time and that he had offered no good reason for such delay. This raised a conclusive presumption of abandonment of his cause of action. See Denton County v. Brammer, supra.

In the Denton County case, Brammer filed timely objections to the award. About 7 years thereafter, Brammer filed amended objections. No citation was ever issued or served. In the.majority opinion the court said:

■ “The question of law presented to this Court by Denton County is: Whether the trial court abused its discretion in failing to hold that the circumstances of the unexplained failure of Brammer to cause citation to issue, and the undisputed evidence that Brammer waited for a period of five years after having withdrawn the $800.00 deposit (the award of the Commissioners) before obtaining a setting and trial of his claim for compensation and damages, raised a conclusive presumption that Brammer had abandoned his objections.”

The majority held that the court did abuse its discretion in failing to hold that the circumstances raised a conclusive presumption that Brammer had abandoned his objections.

In the dissenting opinion in the Denton County case the court said:

“The true question before this Court is not whether as a matter of law Brammer abandoned his objections to the award of the special commissioners, but is whether the trial judge abused his discretion in overruling and in not sustaining Denton County’s motion to dismiss the objections.”

and held:

“No opportunity has been offered Brammer to present evidence to the trial judge to explain his undue delay in the respects mentioned, and the trial judge, therefore, has had no opportunity to exercise his discretion in adjudicating the basic facts of the discontinuance. I would reverse the judgments of the courts below and would remand the cause to the trial court with directions to hear such evidence as Brammer may. care to offer on the motion to dismiss.”

The majority and the dissenting opinion cite with approval Callahan v. Staples; supra. We have concluded that the court followed the rule announced in the Callahan case and the Denton County case and, by giving Moss an'opportunity to present evidence relative to diligence, he also complied with the holding of the dissenting opinion in the Denton County case. We have concluded that the court did not abuse its discretion in failing to grant Moss’ amended motion for reinstatement.

When the case was dismissed the rights of the parties returned to the status they held immediately subsequent to the award of the special commissioners and before objections were filed. In the dissenting opinion in the Denton County case, supra, the court said:

“If good reason for his delay is not ■shown by Brammer, his objections should be dismissed and judgment should be entered on the award just as though no objections had been filed.”

When Moss’ objections were dismissed it became the ministerial duty of the County Judge to cause the commissioners’ award to be entered in the minutes of the County Court. The delay in recording the commissioners’ award was not the fault of ■either party. Our Supreme Court has held that such act is purely ministerial as distinguished from a judicial act. In the case of Pearson v. State, 159 Tex. 66, 315 S.W. 2d 935, the court said:

“Section 7 of Art. 3266 requires the county judge, if no objections are filed within ten days, to cause the award to be recorded in the minutes and make the same the judgment of the court. No jurisdiction is conferred upon the court to do anything more than accept and adopt the award as its judgment, and - this follows by operation of law and the ministerial act of the county judge. There is nothing which the court, as distinguished from the county judge in - his administrative capacity, can hear and determine by the exercise of its judicial powers. It seems clear to us, therefore, that an order directing that • the award be recorded and making the same the judgment of the court does not constitute a judgment in a civil case, and that there is no right of appeal therefrom. This conclusion is inescapable in view of the provisions of Arts. 3266 and 3268, and is also consistent with our holdings in Parker v. Ft. Worth & D. C. Ry. Co., 84 Tex. 333, 19 S.W. 518, and Fortune v. Killebrew, supra [86 Tex. 172, 23 S.W. 976]. See also Temple v. Riverland Co., Tex.Civ.App., 228 S.W. 605, [no writ) and 28 Texas Law Rev. 112.”

We have concluded that the performance of such ministerial duty by the judge was proper.

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

The judgment is affirmed.


author: LANGDON, Chief Justice.

text:
    F. H. SEYDLER et al., Appellants, v. George HERDER, III, et al., Appellees.
    No. 5540.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 3, 1962.
    Rehearing Denied Oct. 31, 1962.

      Ramsey, Barber & Smith, Andrews, Harry D. Larson, Eagle Lake, for appellants.
    Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., Midland, Hodges, Moore & Gates, Columbus, Ross Madole, Charles B. Wallace, James T. Fitzpatrick, Dallas, for appellees.
   LANGDON, Chief Justice.

Appellants, as plaintiffs in the court below, brought this suit in trespass to try title against appellees, claiming and seeking to recover an undivided one-sixteenth interest in the oil, gas and other minerals in 600 acres of land in Andrews County.

Appellants are the heirs of George Seyd-ler and claim title under one of two wills executed by Seydler. Seydler first acquired title to the land in question by virtue of two deeds from E. T. Williamson and wife during the years 1908 and 1909. Thereafter, Seydler conveyed the same land to George Herder, under whom appellees hold title. Seydler executed two deeds to George Herder — the first was a general warranty deed executed and delivered by George Seydler, without the joinder of his-wife, to George Herder on January 30, 1911. The second deed was executed more than sixteen years later, in April of 1927, and. was a quitclaim deed signed by George Sey-dler and wife, Louise Seydler, purporting-to convey the same land to George Herder,, but containing the following clause:

“¾6 oil & Mineral rights retained.”

At the time of trial both the Seydlers, as well as George Herder and his wife, were-dead, the interest of the Herders in the land-in question having passed by conveyance and inheritance to the appellees.

George and Louise Seydler were married' only once during their lifetimes, and then to each other. They were married November 30, 1892, and lived together continuously until the death of Louise Seydler on October 7, 1937, all of her property passing-at that time to George Seydler, who survived her. Thereafter, on May 25, 1951 George Seydler died leaving two wills, the first dated May 26, 1938, and the second June 8, 1938. The will of May 26th was-admitted to probate on January 17, 1955, and probate judgment entered vesting title-to all the property owned by George Sey-dler at the time of his death in Erna and Victor Baumgarten, the only devisees named' in such will. On March 18, 1957, more than two years after the first will was admitted' to probate, the second will of George Sey-dler, in which he devised all of his property to the appellants herein, was admitted to probate.

The Seydler appellants contend that George Seydler, at the time of his death, was the owner of an undivided one-sixteenth interest in the oil, gas and other minerals in the 600-tract of land in question, by virtue of the clause, “Vie oil & Mineral rights retained”, inserted in the quitclaim deed of April, 1927, from George Seydler and wife, Louise Seydler, to George Herder; and that they (the appellants) are now the owners of such interest as the devisees of George Seydler under the terms of his will of June 8, 1938.

Trial was to the court without a jury, and the trial court, after considering the pleadings and the title instruments and the evidence adduced from the witnesses, found and entered judgment that the facts and the law were with the appellees, and that appellants should take nothing by their suit.

Appellants have based this appeal upon six points of error, and six rebuttal points filed in reply to six counter-points raised by appellees in their brief.

It is appellants’ contention (1) that the quitclaim deed is an ancient instrument and that the execution and acknowledgment thereof by the grantors raised legal presumptions that it was delivered by such grantors and was accepted by George Herder, and that such presumptions will stand until overcome by legal and competent evidence; (2) that appellees became bound by the recitals contained in a subsequent deed from Erna Baumgarten, individually and as administratrix of the estate of Victor Baumgarten, deceased (quitclaiming to ap-pellees any interest they, the Baumgartens, then purportedly owned by virtue of the probate of George Seydler’s will of May 26, 1938); (3), that the quitclaim deed of April, 1927, from the Seydlers to George Herder was contractual in its nature and supported by adequate consideration; (4) that such quitclaim deed was and is a link in the George Herder chain of title to the 600-acre tract of land; (5) that such quitclaim deed from the Seydlers to George Herder was ratified and affirmed by appel-lees after the death of George Herder and his wife, Mary Herder; and, (6), it is contended that the judgment of the trial court should be reversed because the evidence shows that appellants are tenants in common with the appellees as to the mineral interest in said land, and as such are entitled to an accounting for their one-sixteenth mineral interest in the oil and gas produced from said land since February, 1955.

It is plain that the title asserted by appellants is based solely upon the mineral clause contained in the Seydlers’ quitclaim deed of April, 1927. Each of appellants’ points relate to and depend upon a determination of certain factual matters, circumstances and events, which were for the court to decide as the trier of facts. Among the facts which the court might have found under the evidence in this case are the following: That the 600-acre tract of land was acquired by George Seydler after his marriage to Louise Seydler in 1892, and became a part of the community property of the said George and Louise Seydler, but that they never lived upon such property or otherwise ever used, claimed or occupied it as a homestead; that the general warranty deed from George Seydler to George Herder dated January 30, 1911 divested each of the Seydlers of their community interest in the land and vested it in George Herder; that there was never any delivery of the quitclaim deed of April, 1927 to George Herder; that Mr. Herder did not request such quitclaim deed and never accepted it; that the quitclaim was placed on record by a stranger to the title after the death of George Herder; that the Herder heirs never received, accepted or used the instrument; that the acceptance by the Herder heirs of a subsequent quitclaim from Erna Baumgarten, the apparent successor to any interest that either George or Louise Seydler may have possessed was, on its face, a compromise and did not either in fact or in law constitute a recognition of the April, 1927 quitclaim.

This was a trial before the court without a jury. Neither party requested, nor did the court on its own accord file, findings of fact or of law, other than are found in the judgment. In such case, where there is sufficient evidence to support such findings, it will be conclusively presumed on the appeal that all the issues of fact were found by the trial court in such way as to support the judgment. Miller v. Leary, Tex.Civ.App., 245 S.W.2d 980 (n. w. h.); DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, cert, den., 325 U.S. 862, 65 S.Ct. 1196, 89 L.Ed. 1983; Pinson v. Dreymala, Tex.Civ.App., 320 S.W.2d 152 (err. dism.); 4 Tex.Digest 396, Appeal & Error, ¶ 931(3).

We have carefully examined the evidence adduced at the trial and have concluded that there was sufficient evidence to support all the findings impliedly made by the court in support of its own judgment.

Even assuming, without so holding, that the character of the land was such as to have required the joinder of Mrs. Louise Seydler with her husband in the general warranty deed from George Seydler to George Herder on January 30, 1911, it is undisputed that whatever title Mrs. Sey-dler possessed passed, on her death, to her husband, George Seydler.

The general warranty deed from George Seydler to George Herder warranted the full fee simple title to George Herder. It conveyed all the title that Seydler had, and if he did not then have the full fee simple title, but later acquired it, then such title would pass eo instante to George Herder, and would relate back to the date of said warranty deed.

In Duhig v. Peavy-Moore Lumber Co., Inc., 135 Tex. 503, 144 S.W.2d 878, the Supreme Court of Texas, speaking through Justice Smedley, in part said:

“The deed, of course, does not actually convey what the grantor does not own. * * *. But the granting clause in this deed describes what is conveyed as the tract or parcel of land known as the Jordan survey. This description includes the minerals, as well as the surface, and thus the granting clause purports to convey both the surface estate and all of the mineral estate.”

In discussing the effect of the covenant of general warranty Justice Smedley cited, with approval, the following from 19 American Jurisprudence 614, section 16, which reads as follows:

“It is a general rule, supported by many authorities, that a deed purporting to convey a fee simple [title] or a lesser definite estate in land arid con- ■ taining covenants of general warranty of title or ownership will operate to estop the grantor from asserting an after-acquired title or interest in the land, or the estate which the deed purports to convey, as against the grantee • and those claiming under him.”

In stating the rule to be followed in such cases, Justice Smedley quoted from a decision of the Michigan court, Smith v. Williams, 44 Mich. 240, 6 N.W. 662, which he termed a “clear statement of the rule and the reasons supporting it”; — as follows :

“Where one assumes by his deed to convey a title, and by any form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give him, he will not be suffered afterwards to acquire or assert a title and turn his grantee over to a suit upon his covenants for redress. The short and effectual method of redress is to deny him the liberty of setting up his after-acquired title, as against his previous conveyance. This is merely refusing him the countenance and assistance of the courts in breaking the assurance which his covenants had given.”

What the rule prohibits is the assertion of a title in contradiction of the warranty. The rule has been consistently followed and upheld in such cases as Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166; McMahon v. Christmann, 167 Tex. 403, 303 S.W.2d 341, 304 S.W.2d 267; Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62; and many others.

If George Seydler was estopped to assert his after-acquired title, as we believe he was, appellants are likewise estopped. See “The Doctrine of After-Acquired Title”, 11 S.W.Law Journal 217, and cited cases.

While other questions are possibly raised by appellants’ points, we are of the opinion that what we have said here is decisive of this case and renders a further discussion unnecessary. We have carefully considered each of appellants’ six original points, as well as the points raised by appellants in rebuttal, and have concluded that all such points should he overruled, and it is so ordered.

The judgment of the trial court is accordingly affirmed.


author: FRASER, Justice.

text:
    CITY OF EL PASO, Texas, Appellant, v. Bill NICHOLSON, Appellee.
    No. 5547.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 3, 1962.
    Rehearing Denied Oct. 31, 1962.
    Travis White, City Atty., Robert J. Gal-van, .John C. Ross, Jr., Asst. City Attys., El Paso, for appellant.
    Holvey Williams, Daniel Garbera, El Paso, for appellee.
   FRASER, Justice.

This is an appeal from a judgment recovered by appellee (plaintiff) against the City of El Paso for a sum of money which had been held by appellant (defendant). The money was taken from one Bob Huff by police officers during the process of a gambling raid, but plaintiff maintains that the money was actually his. The basis of this controversy or lawsuit seems to depend on the terms and interpretation of Section 71 of the El Paso City Charter which, among other things, says:

“The City Council shall have the management and control of the finances and property, real, personal and mixed, belonging to the City; provided, that no suit of any nature whatever shall be instituted or maintained against the City of El Paso unless the plaintiff therein shall aver and prove that previous to the filing of his original petition he applied to the City Council for redress, satisfaction, compensation or relief, as the case may be, and that the same was by the City Council refused”. (Emphasis ours)

In this appeal appellant does not maintain that the money was lawfully or rightfully seized, but appears to base its entire defense on its position that appellee did not comply with the provisions of said Section 71 of the City Charter, in trying to recover his money.

It is obvious from the record that the appellant did not produce sufficient evidence to warrant the forfeiture of the money here involved, amounting to $2440.00.

The gambling raid was made at a residence on January 6, 1958. Approximately a year and eight months later — to-wit, August 26, 1959 — Nicholson, as plaintiff, filed his original petition asking the return of this sum of money. He alleges that he had handed the money to one Huff; that it consisted of five dollar bills contained in a canvas bag; that Huff put it inside of his shirt and went to sleep on a couch in the living room while he (Nicholson) was engaged in what he called a small-stake poker game in the kitchen. During the raid, plaintiff alleges, the money was taken from Huff. After the filing of this petition on August 26, 1959, the defendant on September 17, 1959 filed its plea in abatement and first original answer, comprising a general denial, and setting up plaintiff’s failure to apply to the City Council for redress, satisfaction, compensation or relief, as provided in said Section 71. Thereafter, on March 14, 1960 plaintiff did make such application to the City Council for redress, satisfaction, compensation or relief, leaving his original petition still pending before the trial court. Then, on March 24, 1960 the City Council denied plaintiff’s application. Thereafter, on April 20, 1960 plaintiff filed his first amended original petition and then, on January 20, 1961, filed his second amended original petition. It was on this petition that he went to trial, the first or original petition remaining on file and not dismissed.

On the trial of the case the district court awarded judgment to the appellee for $2440.-00 plus six per cent interest from the date the same was seized from the possession of plaintiff (or Huff), and with interest on such judgment from the date of same at the rate of six per cent.

Appellant, as stated above, bases its appeal on the contention that appellee went to trial on his second amended original petition without having dismissed the original petition which had been filed before any application for redress, etc., had been filed with the City, in accordance with the terms of Section 71 of the City Charter. The appellant points out that the Charter provision says that no suit shall be instituted or maintained unless the plaintiff shall have averred and proven that, previous to the filing of his original petition, he made the above described application.

We do not believe appellant’s point is good, for two reasons. First, as pointed out by Justice Higgins of this court, in El Paso Union Passenger Depot Co. v. Look, Tex.Civ.App., 201 S.W. 714

“It [charter provision] was manifestly mainly intended to protect the city against the instigation of suits upon pecuniary demands until it had been afforded an opportunity to investigate and amicably adjust the same.”

Justice Higgins says further:

“ * * * is to be regarded as in aid of the management and control of the city’s finances and property, vested in the council * * *.”

We think these words by Justice Higgins fairly and properly interpret the intent and meaning of the section here involved. It appears to us that here the provisions of this section were substantially complied with. The application was presented to the City Council; they did have a chance to investigate and amicably adjust the same, which they declined to do. Plaintiff then went ahead with his lawsuit. This leaves the appellant resting its entire case on the contention that plaintiff filed his first original petition, failed to dismiss it, then went ahead and filed his application for redress or settlement; and, after it was refused, filed an amended petition upon which this case was eventually tried. We fail to see where any harm did or could have resulted to the City of El Paso. Of course one real and underlying reason for the plaintiff’s procedure is that the statute of limitation was running against him, and as far as we can tell from the record, would have intervened between the date of the filing of the first petition and the second amended original petition. It might be noted, too, that plaintiff describes his petition upon which he went to trial as his second amended original petition. Section 71 merely says that the application must be filed before the filing of the original petition. Here such was done before the filing of his second amended original petition. Without going any farther into the legal ramifications of this matter, we believe and hold that for the reasons above stated this section of the City Charter was substantially complied with by plaintiff, as he did go to trial on his second amended original petition after his application had been presented and turned down by the City Council. We consider this substantial compliance with the provisions of the City Charter that are here applicable.

However, if we be wrong, we further feel and hold that this provision does not apply or affect this particular transaction. It is immediately apparent that here the plaintiff asks to take nothing from the City except that which the City took from him — to-wit, a sum of money. He does not ask for any City property or any City money or anything belonging to the City. This is particularly important when viewed against the logic of the quotation from the opinion of Justice Higgins, hereinabove set forth. This is not a damage suit. The City does not claim the money rightfully belongs to it, nor are there any damages awarded. To hold otherwise would be to say that a city with the governmental powers and responsibilities possessed by the City of El Paso could, through its agents or officers, without proper legal authority, take possession of someone’s money or property and successfully retain it unless the aggrieved individual should comply, with technical perfection, with the City’s own regulations as to how he may regain his wrongfully taken property. We do not believe this to- be the object or intent of the Charter provision here involved.

Appellee points out that there are other exceptions to this type of provision, such as injunctions, and quotes from other jurisdictions where it is held that causes of action based on equitable principles for money had and received, need not be predicated on charter provisions of a nature similar to those of the City of El Paso. Also, appellee points out — we think with considerable justification — -that under Article I, Section 19 of the Texas Constitution, Vernon’s Ann.St., “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” He also quotes from McQuillin Municipal Corporations (3rd Ed.), Sections 19.11 and 19.19, which discuss the Fourteenth Amendment to the United States Constitution, and states that the purpose of the Amendment is as follows:

“ * * * to protect every citizen in his personal and property rights against the arbitrary action of any person or authority.”

And in Section 19.19 this text says:

“To take private property without compensation, except where it does so under a valid exercise of the police or other sovereign power, constitutes a deprivation of property without due process of law within the meaning of the 14th Amendment.”

Here, of course, it is not controverted that this money was illegally taken. We hold, under the circumstances, that where such has been done without adequate legal justification, and retained by the taker, to-wit, the appellant, the appellee has his cause of action in the courts and need not, in pursuing same, be compelled to comply with the provisions of the City Charter of appellant. In other words, he has full recourse to the proper court, and these provisions of the City Charter are not a condition precedent thereto. As pointed out above, this is not an attempt to sue the City for damages or take anything from the City that ever belonged to the City, but is merely an attempt to recover that which rightfully belonged to appellee and which came into the City’s possession in an illegal and wrongful manner, and certainly not by any process of eminent domain. Lastly, appellee points out that Article 638 of the Vernon’s Ann. Penal Code of the State of Texas states as follows:

“Any person having interest in or entitled to possession of any property so seized shall have the right at any time • before the destruction of such property, as in ordinary civil cases, to try the issue of whether or not such property is a gaming table, or bank or device or was used as equipment or paraphernalia of any gambling house and to recover the possession of the same, and to maintain any other character of suit not inconsistent with this law * *

This statute follows Articles 636 and 637, which provide the procedure necessary for officers to follow when they attempt to confiscate or destroy property alleged to be involved in gambling. Appellant’s first point is therefore overruled.

Appellant’s second point complains of the court’s action in allowing interest. Although this point is worded in the appellant’s brief that the court erred in allowing the “judgment” to bear interest at the rate of six per cent per annum, we shall treat it as though appellant meant that the court erred in allowing any interest at all. We do think that the court erred in allowing interest from the date of the raid — to-wit, January 6, 1958 — to the date of January 16, 1958, at which time the money was taken from the police officers by a City alderman and turned over to the City comptroller and deposited by him in the General Fund, in the Miscellaneous Revenue Account. Up until the money was taken from the police, it was a police action and it had not been determined in any way that the money had illegally been taken; but on January 16th the City of El Paso received this money and put it to use, apparently, as it was put into the General Fund. We think interest, therefore, is proper and allowable, not as a punitive measure, but merely because the City had the use of this sum of money by virtue of the action of the alderman. As to the judgment bearing interest, this is provided for by statute. We feel that appellee was not entitled to interest for the ten-day period from January 6 to January 16, 1958 because, during that time, this money was in the possession of the police department as the result of a gambling raid which is a police function. Interest, was not properly allowable in this case until the money came into the possession and use of the City by the action of the alderman, as set forth above. Therefore, the judgment must be reformed to eliminate this sum. With this modification appellant’s second point is overruled.

The judgment of the trial court shall he reformed so as to exclude and eliminate interest on the sum of $2440.00 from January 6, 1958 to January 16, 1958. As reformed, the judgment of the trial court is in all things affirmed.


author: WILLIAMS, Justice.

text:
    Aria DAVIS et al., Appellants, v. Linnie Lee ANDREWS et al., Appellees.
    No. 16036.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 28, 1962.
    Rehearing Denied Oct. 19, 1962.

      Reeves & Reeves, Tyler, for appellants.
    Clemens, Knight, Weiss & Spencer, San Antonio, Harold B. Sanders, Dallas, Enoch G. Fletcher, Grand Saline, and L. F. Sanders and C. L. Stanford, Canton, for ap-pellees.
   WILLIAMS, Justice.

This is an interpleader suit involving the construction of a mineral deed. By deed dated June 2, 1930, Henry York, and wife, Ola York, Mrs. Ella York, a widow, G. N. York and wife, Dennie York, and Aria Davis joined by her husband L. L. Davis as grantors, conveyed, subject to oil and gas leases, a ⅜2nd of ⅛ mineral interest in 50 acres of land of the John Walling Survey in Van Zandt County, Texas.

This deed, omitting immaterial portions, as well as the description of the land, reads as follows:

“We, Henry York and wife, Ola York and Mrs. Ella York, a widow, of Smith County, Texas, G. N. York and wife, Dennie York of Wood County, Texas, and Aria Davis joined by her husband L. L. Davis of Van Zandt County, Texas, for and in consideration of the sum of Ten Dollars ($10.00) cash in hand paid by J. T. York, hereinafter called Grantee, the receipt of which is hereby acknowledged, have granted, conveyed, assigned and delivered and by these presents do grant, sell, convey, assign and deliver unto the said Grantee an undivided ½2nd of the usual one-eighth interest in and under, and that may be produced from the following described land situated in Van Zandt County, Texas, to-wit: * * *
“This conveyance is intended to cover the above described 50 acres of land and does not affect interest in any excess acreage there may be in the above described tract of land together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said land for oil, gas and other minerals and removing the same therefrom.
“Said land now being under an oil and gas lease executed in favor of F. L. Luckel it is understood and agreed that this sale is made subject to the terms of said lease but covers and includes one-thirty-second of all the oil royalty, and gas rentals or royalty due and to be paid under the terms of said lease, in so far as it covers the above described property.
“It is understood and agreed that none of the money rentals which may be paid to the said Grantee and in event that the above described lease for any reason becomes cancelled or forfeited then and in that event undivided one-thirty-second of the lease interest and all future rentals on said land for oil, gas and other minerals privileges shall be owned by said Grantee herein owning ⅛2nd of all oil, gas and other minerals in and under said lands together with %2nd interest in all future rents.
“To have and to hold the above described property, together with all singular the rights and appurtenances thereto in any wise belonging unto the said Grantee herein, his heirs and assigns forever; and we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said property unto the said Grantee herein, his heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof, for a period of 20 years from date hereof and no longer.” (Emphasis supplied.)

C. F. York and wife Lillian York executed and acknowledged the above deed, but were not named therein as grantors. On November 21, 1930, C. F. York and wife Lillian York, as grantors, executed and delivered a correction deed to J. T. York, in which the grantors recite the execution of the prior deed and the failure of that deed to contain their names as grantors. The correction deed does not anywhere contain that part of the quoted portion of the prior deed reading “ * * * for a period of 20 years from date hereof and no longer”.

Oil was discovered in paying quantities on the land in question prior to 1930 and has been continuously produced therefrom to the date of the trial. The Pure Oil Company is the admitted owner of oil and gas leases on the property.

On October 13, 1958 The Pure Oil Company, as stakeholder, instituted this suit in the nature of a bill of interpleader naming therein a large number of defendants. Defendants aligned themselves in this lawsuit as follows: Aria Davis, and husband, L. L. Davis, and others (sometimes referred to as the York Group), and being the heirs of the grantors under the two deeds described above, as appellants; and Linnie Lee Andrews, and others (sometimes referred to as the Persons Group), being the remote grantees under J. T. York, as appellees.

The Pure Oil Company alleged that it had been confronted with conflicting claims of interest by the two groups of defendants named, said contentions growing out of the construction to be placed upon the two deeds described above, and asked the court to determine the respective interest of the parties and deliver to the rightful owner the proceeds of oil and gas that had been produced from said property for a long period of time preceding the filing of this suit.

The York Group (appellants) answered, contending that the deeds in question evidence limitation of the grant which terminated 20 years after June 2, 1930. In the alternative, they say that the conveyance of June 2, 1930 was ambiguous and that it was the intention of the parties that the interest conveyed would terminate after 20 ' years. Further, in the alternative, they alleged that through mutual mistake of the parties that the instrument dated June 2, 1930 did not convey the true meaning intended by the parties to limit the grant to a period of 20 years and therefore the court was requested to reform the instrument to correctly reflect such alleged intent.

Appellees, (Persons Group) answered, pleading that under the conveyance in question they were the owners in fee of the interest conveyed and that the limitation of 20 years applied to the warranty only. In answer to appellants’ prayer for reformation, appellees pled the statute of limitations, the statute of frauds, estoppel on the ground that appellees were bona fide purchasers, stale demand and laches.

Appellants during the trial offered to introduce testimony of Mrs. Aria Davis, L. L. Davis and Mrs. Ola York, to the effect that some few days prior to June 2, 1930 J. T. York, a nephew of Mrs. Ella York came to the York family in an effort to purchase royalty under the 50-acre of land in question; that appellants advised J. T. York that they had sold some mineral interest under the land but that same had been limited in the grant for a period of 20 years and that they would not make another sale of royalty unless the grant was likewise limited. That thereafter, J. T. York had a conveyance drafted and returned to the York family with it, such conveyance being the one in litigation. That the York family, being inexperienced in the conveyance of mineral or royalty interest in lands, and since they were dealing with a nephew of Mrs. Ella York and a cousin of her children, relied upon his assertion that the limitation following the warranty clause in the conveyance would be effective to limit the conveyance for a period of 20 years from the date of such instrument, and that such conveyance would expire on June 2, 1950; that the York family did rely upon such representations and but for them, would not have executed same. This testimony was rejected by the trial court.

At the conclusion of the non-jury trial the court rendered judgment decreeing that The Pure Oil Company be discharged from liability to all defendants; that the appellees should recover title and possession of an undivided ⅛2nd of ⅜ mineral interest in and under the 50-acre tract of land subject to the oil and gas leases of The Pure Oil Company, together with the proceeds of the production of the oil and gas from said tract of land attributable to said interest; and denying all relief sought by appellants.

At the request of appellants the court filed findings of fact and conclusions of law in which it was found that the language in the mineral deed of June 2, 1930 is clear and unequivocally free of ambiguity; that the limitation contained therein applies to the warranty and not to the grant. The court concluded that the instruments in question were sufficient to pass fee simple title to the interest conveyed, subject only to the limited warranty of 20 years.

By their first seven points on appeal, appellants contend in essence, (1) that the deeds in question clearly reflect that the grant thereby made was limited to a term of 20 years from and after June 2, 1930; (2) that the court erred in finding that the interest conveyed by the deeds was "unlimited and that the only limitation was as to warranty for a period of 20 years; (3) that the deeds in question were ambiguous and uncertain; (4) that since said instruments were ambiguous the trial court was in error in not permitting extrinsic evidence to he introduced to ascertain the intention of the parties; (5) that the court erred in refusing to permit appellants to introduce extrinsic evidence with reference to the circumstances surrounding the parties out of which the deeds in question arose to thereby correctly ascertain the intent of the parties.

OPINION

At the threshold of our determination of the inquiry presented by appellants’ points, i. e., the construction to be placed upon the mineral deeds, we deem it advisable and proper to focus attention upon the cardinal objective which is to ascertain the intention of the parties to the written instruments in question. The first rule of construction of a deed is that the intention of the parties be ascertained and given effect. 19 Tex.Jur.2d § 107, p. 391. Even this primary rule of construction must be immediately modified with the restriction that it is not the intention which the parties may have had, but failed to express in the instrument, but it is the intention which by said instrument they did express. Stated another way, the question is not what the parties meant to say but the meaning of what they did say. 19 Tex.Jur.2d § 111, p. 401; Cutrer v. Cutrer, Tex.Civ.App., 334 S.W.2d 599; Sims v. Woods, Tex.Civ.App., 267 S.W.2d 571; reversed on other grounds, 154 Tex. 59, 273 S.W.2d 617; Davis v. George, 104 Tex. 106, 134 S.W. 326; and Stewart v. McKee, Tex.Civ.App., 150 S.W.2d 415; First National Bank of Snyder v. Evans, Tex.Civ.App., 169 S.W.2d 754. Again, it has been said that the intention as expressed in the deed must be given effect, regardless of the intention that the parties had intended to express but that they failed to express. If there is no ambiguity in a deed, the instrument will be enforced as written, even though it does not express the original intention of the parties. 19 Tex.Jur.2d § 107, p. 394; Amarillo Oil Co. v. McBride, Tex.Civ.App., 67 S.W.2d 1098.

Another and equally important rule of construction, sometimes called “four corners rule” is that the intention of the parties, and especially that of the grantor, is to be gathered from the instrument as a whole and not from isolated parts thereof. 19 Tex.Jur.2d § 112, p. 402; Texas Pacific Coal & Oil Co. v. Masterson, 160 Tex. 548, 334 S.W.2d 436.

Certain subsidiary rules of construction were recently announced in Ladd v. Du Bose, Tex.Civ.App., 344 S.W.2d 476, involving the construction of a mineral reservation, in which the court said:

(1) “A deed will be construed to confer upon the grantee the greatest estate that the terms of the instrument will permit.
(2) “It is a principle of universal application that grants are liberally, exceptions strictly, construed against the grantor.
(3) “Another applicable rule is that should there be any doubt as to the proper construction of the deed, that doubt should be resolved against the grantors, whose language it is, and be held to convey the greatest estate permissible under its language.
(4) “Where a deed is capable of two constructions the one most favorable to the grantee and which conveys the largest interest the grantor could convey will be adopted.”

These, and similar rules of construction are set forth in City of Stamford v. King, Tex.Civ.App., 144 S.W.2d 923, writ ref.

A basic rule has been often announced that when the parties to an agreement finally enter into a writing to express the terms of the contract, the presumption is that all prior promises and agreements relating to the transaction have been merged into and are fully expressed by the written instrument. If the terms of the written instrument are plain and unambiguous, then its provisions will be enforced as written, and cannot be added to, varied, or contradicted by parol testimony unless it is clearly alleged and proved that the execution of the instrument had been procured by fraud, accident or mistake.

Whether an instrument is ambiguous is a question of law. The construction to be given an unambiguous instrument is a question of law and not one of fact. These elementary rules are so well established as not to require the citation of authorities.

Being ever mindful of these legal guideposts we turn now to an application of these rules to the instruments in question. Was the language of limitation utilized in the deed of June 2, 1930 intended by the parties to limit the grant, as contended by appellants, or was it merely intended to limit the warranty, as contended by ap-pellees? Was the instrument dated June 2, 1930 ambiguous, as contended by appellants, or clear and certain and lacking ambiguity as contended by appellees ?

One of the most important elements of the subject matter of a conveyance of land is the duration of the estate granted. When the duration of the estate granted is not expressed clearly the answer to the question presented may be affected by the legal presumption, resulting from the provisions of Art. 1291, Vernon’s Ann.Civ.St. (1925) which provides:

“Every estate in lands which shall thereafter [hereafter] be granted, conveyed or devised to one although other words heretofore necessary at common law to transfer an estate in fee simple be not added, shall be deemed, a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.”

With this legal presumption in mind an examination of the granting clause in the deed of June 2, 1930 reveals nothing in the way of limitation of the grant by grantor to grantee of an undivided Ysznd of the usual ⅛ interest in and to the oil, gas and other minerals under the land in question. Neither do we find any words of limitation in the habendum clause which grants to grantee, his heirs and assigns “forever” the interest conveyed in the granting clause. The only clause of limitation appearing in the instrument follows a comma at the end of the warranty clause, saying “for a period of 20 years from date hereof and no longer.” Appellants argue that it is not reasonable that grantors would intend to limit the warranty clause for a period of 20 years. They say that such is not usually done. We are not impressed with this contention. The mere fact that something is not usually done does not render the doing of that act wrong or illegal. The fact that the parties have limited the warranty, though possibly unusual, does not destroy its validity. The question of limitation of warranty was discussed to some extent in Ladd v. Du Bose, Tex.Civ.App., 344 S.W.2d 476. The Supreme Court of Oklahoma in Whitman v. Harrison, 327 P.2d 680 construed an exception to the warranty, as did the Court of Appeals of Virginia in Steinman Coal Corp. v. Fleming, 145 Va. 731, 134 S.E. 696. Based upon these authorities, and reasoning generally, we see no legal barrier to a limit of warranty, as we find in this case. Indeed, it is not difficult to conceive that the grantor might reasonably desire to limit his warranty during the minority of an infant involved in the chain of title.

The nature and character of the warranty clause in a conveyance must be kept in mind in determining its relationship to the other parts of the conveyance. The very purpose of the warranty covenant is for the indemnity of the purchaser against a loss or injury he may sustain by a defect in the vendor’s title. The warranty clause does not convey title nor does it determine the character of the title conveyed. As our Supreme Court has said in City of Beaumont v. Moore, 146 Tex. 46, 202 S.W.2d 448: the “general warranty does not constitute a part of a conveyance nor strengthen or enlarge the title conveyed.”

The granting clause in a conveyance prevails over the other provisions of the deed. Sebastian Independent School Dist. v. Ballenger, Tex.Civ.App., 297 S.W.2d 238; Waters v. Ellis, 158 Tex. 342, 312 S.W.2d 231; Graham’s Estate v. Stewart, Tex.Civ.App., 15 S.W.2d 72, err. ref.

A grammatical analysis of the habendum clause and warranty clause reveals that they are contained in a compound sentence, each complete in itself. It is a well recognized rule of grammatical construction that a qualified portion of a sentence qualifies that sentence only. The qualifying provisions, dealing with the limitation of 20 years, applies only to the warranty clause of the compound sentence. It necessarily qualifies only that part of the sentence relating to warranty and not as to grant.

After a careful and exhaustive analysis of the conveyance in question, and applying what we consider to be the established rules of construction, we are impelled to the conclusion that the intention of the parties, as reflected by their own language in the conveyance, was to limit the warranty for a period of 20 years from the date of the instrument and it was not their intention, as expressed in said instrument, to limit the title conveyed to that less than fee simple.

Neither can we agree with appellants that the instrument was ambiguous. We agree with the trial court in his finding that the instrument was free of ambiguity. A contract is not ambiguous in the sense that parol evidence is admissible to explain its meaning unless application of the pertinent rules of interpretation leave a real uncertainty as to which of two or more possible meanings represent the true intention of the parties. An application of the rules of construction, discussed above, reveals no conflict of meaning and therefore no ambiguity results.

We believe that the question of ambiguity, presented by appellants, was decided adversely to them by our Supreme Court in the case of Harriss v. Ritter, 154 Tex. 474, 279 S.W.2d 845 wherein the parties provided for a reservation in a conveyance for a period of 10 years. The following reservation was involved:

“It is understood and agreed that the grantors herein reserve and except to themselves from this conveyance one-half of one-eighth of the oil, gas and other mineral royalty that may be produced from said land, and further reserve and except to themselves from this conveyance one-half of any bonuses or rentals that may be paid under the terms of any mineral lease for a period of ten years, but giving to the grantee herein, his heirs and assigns, the full and exclusive right to execute any and all mineral leases without being joined by the grantors.”

The trial court permitted parol testimony on the question of whether the ten years reservation applied to the royalty, under the theory that the instrument was ambiguous. The Supreme Court held that the instrument was not ambiguous and that the construction given to the deed by the grantors and the grantees was immaterial and therefore parol evidence was not admissible to vary its terms. See also Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563.

Holding, as we do, that the instrument in question dated June 2, 1930, was not ambiguous it necessarily follows that the trial court did not err in refusing to permit parol testimony concerning the intent of the parties. Appellants’ points of error one though seven, inclusive, are overruled.

What we have said also disposes of appellants’ point eight complaining of the refusal of the trial court to consider extrinsic evidence to show the circumstances of the parties at the time of the execution of the instrument so as to demonstrate ambiguity. The trial court, correctly finding that the instrument in question was not ambiguous, did not err in refusing parol testimony.

Appellants’ ninth point complains of the action of the trial court in denying their plea for reformation of the deed of June 2, 1930. In considering this point it is to be recalled that appellants’ allegations for reformation were based upon mutual mistake. We entertain grave doubt that the tendered testimony by bills of exception would be sufficient, as a matter of law, as to constitute evidence of mutual mistake. The evidence is unilateral on the subject of intention on the part of the grantors. The grantee is dead. However, this question becomes secondary for the reason that it is manifestly evident from the record in this case that appellants’ action for reformation is barred by the four year statute of limitations, Art. 5529, V.A.C.S. (1925). Mathis v. Stockdick, Tex.Civ.App., 189 S.W.2d 106 writ ref.; Kahanek v. Kahanek, Tex.Civ.App., 192 S.W.2d 174; Hogan v. Price, Tex.Civ.App., 274 S.W.2d 745; Holt v. Hedberg, Tex.Civ.App., 316 S.W.2d 955; Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62.

Appellants contend that they had no knowledge of the alleged error in the mineral conveyance until this original suit was filed in 1958 and further that they did not have notice of the alleged error in 1950 at the time The Pure Oil Company commenced withholding payment of royalties. We think the law to be settled that a grantor is charged, as a matter of law, with knowledge of the contents of his deed from the date of its execution and therefore limitations should begin to run against his action to correct such deed from the date thereof. Kahanek v. Kahanek, Tex.Civ.App., 192 S.W.2d 174. However, if this not be true then certainly the statute of limitations began to run at the expiration of 20 years from the dhte of the deed, that is in 1950, being the time when appellants contend that the limitations of grant would expire. At that time a reasonably prudent person would be placed upon inquiry to ascertain the facts concerning the payment of royalty by the holder of the oil and gas lease on the property. There is no contention made by appellants that such was done. This suit was filed approximately eight years after the expiration of the 20 year limitation expressed in the conveyance of June 2, 1930 and therefore the limitation of Art. 5529, V.A.C.S. is applicable. Appellants’ ninth point is overruled.

The judgment of the trial court is affirmed.

      . This 50 acres of land is the same land but involving another and different mineral deed construed by this Court in Kokernot v. Caldwell, Tex.Civ.App., 231 S.W.2d 528, writ ref.


author: MASSEY, Chief Justice.

text:
    WORTH STEEL CORPORATION, Appellant, v. Clarence E. GARTMAN et al., Appellees.
    No. 16351.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 28, 1962.
    Rehearing Denied Nov. 2, 1962.

      Pannell, Dean, Pannell & Kerry, and Henry E. Kerry, Fort Worth, for appellant.
    Crowley, Wright, Miller & Garrett, Pepper & Markward, and Rumph, Ivy & Kar-penko, and Evans J. Karpenko, Fort Worth, for appellees.
   MASSEY, Chief Justice.

Clarence E. Gartman, plaintiff, brought a common law suit for personal injury damages against defendant Worth Steel Corporation. Intervening in the suit was a Workmen’s Compensation insurance company which was subrogated to a portion of Gartman’s right to recover damages, if any, by suit against 'the defendant. This intervenor may be disregarded in our discussion.

Trial was to a jury, and upon its verdict judgment was entered against the defendant Worth Steel Corporation. From this judgment appeal was perfected.

Judgment reversed. Cause remanded for another trial.

At the outset we are confronted with a motion to dismiss the appeal, based upon the plaintiff’s contention that the defendant failed to timely perfect its appeal and that jurisdiction to entertain the same was never lodged in this court. In the alternative to the motion to dismiss, plaintiff has moved this court to strike from the record the instrument denominated “Defendant’s Amended Motion for New Trial” (filed November 28, 1961), and the order of the trial court purporting to overrule the same (signed January 5, 1962). The motions were filed prior to the expiration of thirty days after the transcript was filed in the Court of Civil Appeals.

It appears that the defendant’s “Original Motion for New Trial” was timely filed, and that the “Amended Motion” was also timely filed if indeed its character was that of an amended motion for new trial. Plaintiff’s contention is that such was not its character because nowhere therein or appended thereto was there any request or prayer for a new trial. There was a prayer which concluded the motion, but it merely moved the court “to set aside that part of the verdict herein consisting of the jury’s answers to special issues * * * and to set aside its judgment heretofore rendered and entered against the defendant on October 31, 1961, and to enter judgment that the plaintiff and intervenor take nothing by their suit against the defendant”.

The purported amended motion for new trial was “presented” to the trial court on December 18, 1961, and a “hearing” was had thereon on January 5, 1962, with an order entered that day overruling the same. The order did not state that it was an order overruling the amended motion for new trial, but recited that it overruled “defendant’s motion captioned ‘Defendant’s Amended Motion for New Trial’ ”. Transcript was timely filed in the Court of Civil Appeals. At the same time the statement of facts was filed — under agreement of all parties that it might “be filed in the Court of Civil Appeals for the Second Supreme Judicial District of Texas, as the statement of facts in this case”.

There is a dual contention made by the plaintiff in respect to the situation. First, plaintiff contends that the purported amended motion could not be treated as an amended motion for new trial, and that the only motion for new trial filed was the original motion for new trial; second, that the original motion for new trial, never having been “presented” to the trial court, was overruled as a matter of law on December 8, 1961, at the expiration of thirty days from the date of its filing (rather than forty-five days). Under the second .contention the plaintiff insists that the only proper motion for new trial in the case had already been overruled on dates of December 18, 1961, and January S, 1962, when defendant attempted to “present” the instrument purporting to be an amended motion for new trial, and,when the “hearing” was held thereon.

We believe that the plaintiff is in error in his interpretation of sec. 4 of Texas Rules of Civil Procedure, rule 329b, “(Motion for New Trial) — District and County Court Cases”, in his contention that when a motion for new trial is not “presented” within thirty days after the date it is filed it is overruled as a matter of law at the expiration of said thirty day period. The contention is based upon certain language in Chekanski v. Texas & New Orleans Railroad Co., 1957 (Tex.Civ.App., Houston), 306 S.W.2d 935, writ ref. n. r. e. The statement appears at page 937 in the right-hand column. From the whole opinion it is obvious that the language in question expressed a statement upon the law which had no effect upon the disposition of the case and therefore constituted dictum. Furthermore, we are of the opinion that it was inadvertently and unintentionally made. The unmistakable intent of the rule, as applied to the situation before us, and where there has been no formal presentation and no affirmative order overruling the motion for new trial, is that the same shall not be treated as having been overruled by operation of law until the expiration of forty-five (45) days after the date on which it was filed. Holland v. Foley Brothers Dry Goods Company, 1959 (Tex.Civ.App., Texarkana), 324 S.W.2d 430, error refused.

It is worthy of note that the original motion for new trial, which the plaintiff contends should be the only motion for new trial in the case, did not contain any adequate assignment of error upon which a point of error was founded that would require a reversal of the judgment entered in the case. Nevertheless, jurisdiction of the appeal was acquired by the Court of Civil Appeals in view of the timeliness of other “steps” in the process of perfecting the appeal, were any verity accorded plaintiff’s contention of impropriety. It could only be said that other “steps” were not in time, by reason thereof jurisdiction was not acquired by this appellate court, if the plaintiff was correct in his “30 day contention”, heretofore discussed.

The question of whether the instrument was an amended motion for new trial would be most important, for, as we have said, the original motion did not present an adequate assignment of error upon which a point of error on appeal was grounded which would justify a reversal of the judgment. By a certificate dated January 22, 1962, included in the transcript and referring to the instrument captioned “Defendant’s Amended Motion for New Trial”, the trial judge certified that the court had considered the instrument as an amended motion for new trial within the meaning of T.R.C.P. rule 329b, and that in the oral argument made thereon upon hearing on January 5, 1962 (when the order was entered overruling the motion) defendant asked that a new trial be granted, but that the court overruled the motion because he did not consider that the assignments of error therein justified the granting of a new trial.

As pointed out in the defendant’s brief the plaintiff is in the position of urging that defendant should in any event be deprived of the benefit of relying upon the assignments of error made therein because the prayer of the instrument captioned “Defendant’s Amended Motion for New Trial” did not contain what plaintiff contends are the magic words “and that a new trial be granted”. No case cited by plaintiff in support of his contention involves a motion for new trial. The cases cited involve prayers for relief, or absence thereof, in plaintiffs’ petitions upon which trials were conducted.

If the instrument in question had any effectiveness whatever it could only have been as an amended motion for new trial. Were the trial court without jurisdiction the presentation and hearing thereof and order entered thereupon, would have only been “much ado about nothing” if indeed it did not amount to an amended motion for new trial. We are of the opinion that the instrument did have legal effect, and that the only legal effect it could have had was as an amended motion for new trial. Having legal effect as such the assignments therein contained were sufficient as a basis for the points of error advanced in this appellate court. Nalle v. Eaves, 1928 (Tex.Com.App.), 5 S.W.2d 500, Navar v. First Nat. Bank, 1923 (Tex.Civ.App., Fort Worth), 254 S.W. 126; Fort Worth & Denver City Ry. Co. v. Greathouse, 1931 (Tex.Civ.App., Fort Worth), 41 S.W.2d 418, reversed on other grounds at 65 S.W. 2d 762.

The motion to dismiss the appeal and the motion to strike the amended motion for new trial are overruled.

Plaintiff’s alleged injury, by reason of which his suit for damages was brought against the defendant, was sustained while he was working in the course of his employment unloading long steel trusses from the floor of a flat-bed trailer. The trailer belonged to the defendant. The trusses thereon were delivered by the defendant to plaintiff’s employer. Said delivery was by means of the defendant’s truck towing the trailer to the premises where the plaintiff was working and placing the trailer in the position desired by plaintiff’s employer. It was said employer’s duty to unload the trusses. The plaintiff was directed by his employer to perform the function of getting upon the bed of the trailer to move individual trusses into position where he would then assist in connecting them to a crane which was adjacent to the trailer. The crane was being used to lift the trusses into position atop a building under construction. In accomplishing this work the plaintiff was obliged to pull and tug upon the truss next to be picked up by the crane so that it could be lifted without becoming entangled with the trusses remaining on the truck, To do this involved force in that the jostling of the load in the delivery of the trusses would cause them to become somewhat entangled.

It is undisputed that plaintiff, in the process of doing this work, either stepped in an open hole or stood upon a defective or improperly secured board, in the flooring of the trailer, which gave way beneath him thereby creating an open hole. It is not denied that one foot and leg of the plaintiff did go through the trailer-bed past the knee, with the other foot and leg upon the surface of the trailer or over the trusses remaining thereon. That plaintiff actually thereby sustained a back injury was .in dispute.

Plaintiff’s pleaded theory was that the surface of the trailer-bed, at least at the point thereof where his foot went through the hole, was apparently in good sound condition and that there was no open and apparent hole or defect which would cause a reasonably prudent person unloading the truck to anticipate danger. Further, that plaintiff was at and upon a place necessary for him to be and in the exercise of due care and caution, but that the flooring (a board constituting a part of the flooring) gave way beneath him allowing and causing his foot and leg to pass through the hole thereby created. Under this theory of recovery there would have been no assumption of risk of injury.

Defendant’s theory is that the surface of the trailer-bed was in woeful condition and that it had many holes therein which were readily apparent to plaintiff, of which he had notice and as to attendant dangers of which he assumed the risk of injury. Further, that it was into one of these open and obvious holes that plaintiff stepped, resulting in his injuries, if any. Defendant’s contentions include the denial that any portion of the flooring gave way in the trailer-bed, or at least any portion thereof which might have appeared to be safe to plaintiff in the exercise of that care and caution requisite under the circumstances.

Certainly there was adequate evidence which would have entitled the plaintiff to prevail upon the theory under which his pleadings assert his right to recover, i. e., that it was a seemingly safe portion of the trailer-bed on which his foot rested immediately prior to and at the time of the accident which unexpectedly gave way; and that defendant knew or in the exercise of ordinary care should have known that the defect existed at the time it presented the trailer for the kind and character of unloading operation in which plaintiff engaged, by reason of which the furnishing of the trailer-bed in such condition for such a purpose and without warning or notice was negligence which proximately caused plaintiff's injury.

It might be that plaintiff could have alleged, but did not, a cause of action on the theory that it was negligence on the part of the defendant to furnish a trailer which had numerous open and obvious holes, but upon which plaintiff, in view of exigencies, was compelled to engage in the unloading operation. Plaintiff’s pleadings are not of this character. Had they embraced such a theory the manner in which defendant plead and defended would have necessarily been altered. A defendant necessarily goes to trial on the case plaintiff has alleged against him as well as upon the theory under which he defends. From a careful examination of plaintiff’s pleadings it is not to be doubted that his right of recovery was squarely predicated upon the theory of entrapment, and claim that his injury resulted from the dangers thereof.

Under the special issues submitted to the jury upon the matter of defendant’s primary negligence, affirmative answers thereto returned were as susceptible of a construction that plaintiff had put his foot through an open and obvious hole in the bed of the trailer as of a construction that a defective or. loose board fell from the floor, where he was standing. No issue called for the jury to make a finding of fact which would eliminate the necessity to speculate as to just what the jury did conclude.

We have already stated that a plaintiff must not only plead his cause of action and grounds thereof, but prove and obtain jury findings in accord therewith as prerequisite to recovery. A somewhat similar statement might be made relative in the present instance to the defendant’s theory that it was entitled to a judgment denying plaintiff any recovery against it in view of the cause of action plead by the plaintiff and the jury findings returned. The defendant certainly could not be entitled to so prevail when it had obtained no jury finding establishing that plaintiff’s injury, if any, was sustained as the result of plaintiff having stepped into one of the open and obvious holes it claimed was present in the bed of the trailer.

Adverting to the obligations incumbent upon plaintiff as prerequisite to right of recovery, we take note of the fact that no issue or groupings of issues, making inquiry of the jury in plaintiff’s behalf upon the matter of defendant’s negligence and the proximate cause of the accident and injury, included an inquiry as to whether it was a part of the floor of the trailer which gave way beneath his foot, etc. In its objections and exceptions to the court’s charge to the jury the defendant made adequate repeated objections because of the absence of such inquiry. By reason thereof no presumptive finding in plaintiff’s favor upon issue or issues so omitted could be made in support of the judgment. T.R. C.P. rule 279, “Submission of Issues”. Inclusion of the element as part of the issues submitted was the obligation of the plaintiff since he necessarily carried the burden of proof thereon. Defendant preserved its right of complaint by mere objection to the absence of an issue posing the inquiry. Defendant’s points of error based thereon are sustained.

The plaintiff suggests that issue or issues on negligence, which would find predicate in a fact finding as to the cause of his injury, assumes that it is a fact that it was a defective or loose board which dropped from the trailer-bed and caused plaintiff’s foot to go through the floor and that there was no objection because the issue which was so submitted constituted a comment on the weight of the evidence or made the assumption. This circumstance would not effect a cure of the error to which defendant had leveled its objection. Its complaint, made because the jury was not required to make the finding, would extend to and include a protest of the attempt by any other person or entity to make the finding in its place and stead.

The doctrine of res ipsa loquitur has no application under the facts of this case, not being raised by the evidence. Not having been raised, answers of the jury which might be presumed to bear upon the doctrine as a theory of recovery will be disregarded. The doctrine has no application where the facts produced in evidence are equally consistent with all these hypotheses, viz.: that the injury was caused (1) by the negligence of the plaintiff, or (2) by that of the defendant, or (3) by that of both plaintiff and defendant. 30-B Tex.Jur., p. 39S "Negligence", sec. 148 "Res Ipsa Loquitur Generally”; Dallas Railway & Terminal Co. v. Clayton, 1954 (Tex.Civ.App., Dallas), 274 S.W.2d 422, writ ref. n. r. e.; see also 65 C.J.S. Negligence § 220 (6), pp. 1002-1010, “(Happening of Accident or Injury)- — Absence or Unavailability of Direct Evidence of Negligence”, and § 220(8) “ — Accident or Injury and Defendant's Relation Thereto”, under subsection b. “Cause of injury”.

Certain contentions are made in the briefs of the parties upon the matter of jury finding made to the effect that plaintiff was acquainted with and knew the condition of the trailer-bed on the occasion in question. Had the jury found that the cause of plaintiff’s injury was the act of stepping into an open and obvious hole, the findings would have been consistent, one with the other. As already discussed there was no finding upon the matter of how plaintiff’s injury was caused. By other findings the jury either affirmatively or constructively found that plaintiff kept a proper lookout for his safety, and though he failed to ascertain whether the trailer-bed had been properly maintained and repaired sufficiently to afford him proper support, such was not negligence on his part. Further findings were that the defendant failed to use ordinary care to repair and maintain the trailer-bed so that it would support the plaintiff while he was unloading it, which was negligence on defendant’s part and a proximate cause of plaintiff’s injuries. We believe these findings are inconsistent with and contradictory to the finding that plaintiff knew the condition of the trailer-bed. In any event we have no doubt but that justice requires that plaintiff have the opportunity to resubmit the case on a different charge.

In view of what we have said it necessarily follows that the verdict upon which judgment was entered constituted support therefor no more adequate than the bed of the trailer constituted for the plaintiff under his pleaded theory. In view of the failure of the verdict to support the judgment a reversal is required, with opportunity of another trial afforded.

The very numerous additional points of error have been severally examined and deemed to present no error which would require reversal in view of the state of the whole record. Point of error which complains of the excessiveness of the verdict and judgment in respect to plaintiff’s damages is overruled.

Judgment is reversed and the cause remanded for another trial.