author: FANNING, Justice.

text:
    The CITY OF PORT ARTHUR, Appellant, v. Harrell G. TILLMAN et al., Appellees.
    No. 7577.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 1, 1964.
    Rehearing Denied Sept. 22, 1964.
    Cary Young, City Atty., Port Arthur, Strong, Pipkin, Strong & Nelson, Beaumont, for appellant.
    W. J. Durham, Dallas, Johns & Willard, Beaumont, for appellees.
   FANNING, Justice.

Plaintiff, City of Port Arthur, as successor and subrogated to the rights of Jefferson County Water Control and Improvement District No. 11, brought suit against defendants, Harrell G. Tillman and wife, D. D. Tillman, Mack Hannah, Jr., Hamilton Paul, Emily Bridges, Isaac Prejean, Frank Boutte, and American Casualty Company of Reading, Pennsylvania, alleging to the effect that the defendants Hannah, Paul, Bridges, Prejean and Boutte as directors of Jefferson County Water Control District No. 11 had violated and breached various of their statutory duties as trustees and directors and were liable in damages for such actions and that in particular the said directors had wrongfully and fraudulently purchased from defendants Harrell G. Tillman and wife, D. D. Tillman by quit-claim deed the Tillmans’ interest, claim, right or title in certain water lines, attachments and meters, and title to certain easements in which the water lines were laid adjacent to two projects, Sunset Gardens and Hannah Estates, located in Jefferson County, Texas, but not within the city limits of the City of Port Arthur, and that the defendants Till-mans claimed their equity, interest, right or title under a quit-claim deed from the defendant Hannah, but actually owned no interest, equity, title or right, in the said lines, property and easements in question.

Plaintiff sought to recover double damages under Art. 4004, Vernon’s Ann.Tex.St., as amended, sought to recover the money paid by the directors to the Tillmans for the quit-claim deed to the interests and properties in question, and further sought to recover from defendant directors, and from defendant, The American Casualty Company of Reading, Pennsylvania, the amount of the bonds ($5,000.00 on each bond) on the ground that the trustees had breached and violated their statutory duties.

Defendants Tillmans, Hannah, Paul, Bridges, Prejean and Boutte filed in their second amended answers to plaintiffs first amended petition, among other matters, certain special exceptions urging the two (2) year statute of limitations, alleging to the effect that plaintiff’s first amended petition on its face showed that plaintiff’s alleged cause of action against said defendants was barred by the two (2) year statute of limitations.

The trial court, after a hearing, sustained said named defendants’ special exceptions urging the two (2) 'year statute of limitations. Plaintiff was given leave to amend but plaintiff refused to amend, whereupon the trial court dismissed plaintiff’s suit as against the defendants Tillmans, Hannah, Paul, Bridges, Prejean and Boutte. Plaintiff, City of Port Arthur, Texas, has appealed.

Appellant presents three points on appeal which read as follows:

"Point No. 1. The Trial Court erred in sustaining the Defendants’ special exceptions urging the two year statute of limitation and thereupon dismissing Plaintiff’s cause of action because Plaintiff’s First Amended Petition on its face pleads facts which toll the running of such statute.
"Point No. 2. The Trial Court erred in sustaining Defendants’ special exceptions urging the two year statute of limitation and thereupon dismissing Plaintiff’s cause of action, insofar as the suit upon the official bonds of Defendants Hannah, Bridges, Paul, Boutte, and Prejean are concerned, because such bonds are written contracts, and actions based thereon are subject to the four year statute of limitation.
"Point No. 3. The Trial Court erred in sustaining Defendants’ special exceptions urging the two year statute of limitation and thereupon dismissing Plaintiff’s cause of action, because that portion of Plaintiff’s First Amended Petition which sets up a cause of action for rescission or cancellation of contract based on fraud is governed by the four year statute of limitation.”

Plaintiff’s amended petition, among other things, pleads to the effect that on August 16, 1956, appellee Hannah, conveyed by quit-claim deed to Harrell G. Tillman and wife, D. D. Tillman, his claim, interest, title, etc., in and to all of the water lines then in the easements and his interest or equity in five (5) feet on each side of the water lines in the easements in question: that on July 7, 1958, the said above referred to water district through its directors entered into a contract with Tillman and wife to purchase all of their right, title and interest in the said water pipelines, together with the said five (5) foot easements; that thereafter, on October 4, 1958, said water district executed a note promising to pay to the Tillmans, d/b/a T. & T. Water Company of Harris County, the sum of $42,897.00 for all of the referred to water lines with the said five (5) foot easement, with said note bearing 7% interest; that on Feb. 11, 1959, said water district drew two checks to purchase a cashier’s check in the sum of $44,580.73, which cashier’s check was delivered on said date to the defendants Tillmans, d/b/a T. & T. Water Company.

On the face of plaintiff’s first amended petition it is alleged to the effect that the plaintiff claims that on the 20th day of March, 1962, for the first time, it discovered that the defendants Tillmans had practiced a fraud upon the said water district and that plaintiff had diligently examined the records of the water district immediately after annexation and did not discover any fraud because the records were incomplete, that the records of the said water district were in the custody of a grand jury impaneled in Jefferson County, Texas, and that after the “matter” was brought to the attention of plaintiff by the grand jury, an investigation was immediately conducted, which revealed many of the heretofore referred to pleaded matters, and that after the investigation suit was filed by plaintiff.

Nowhere on the face of the petition does appellant allege when, if at any time, it discovered any fraud or wrongdoings on the part of the defendants Hannah, Paul, Bridges, Prejean and Boutte, directors of the said water district. Furthermore, plaintiff’s first amended petition on its face fails to disclose what facts were revealed by the investigation that enabled plaintiff to discover the alleged fraud on the part of the Tillmans, on the 20th of March, 1962, that it did not have in its possession when the investigation began. On the face of said .amended petition there is no date alleged as to when the investigation began, or what period of time the grand jury had the records in its possession. .

Plaintiff’s said amended petition on its face shows that statutory bonds were executed by the defendants Hannah, Paul, Bridges, Prejean and Boutte as directors of said water district with said above referred to American Casualty Company as surety. The said amended petition on its face shows that the bonds were conditioned on the faithful performance of the duties of their offices by said directors.

Plaintiff’s said amended petition further charged that said directors did not faithfully perform their statutory duties as directors in the following manner:

1. Issued warrants for the payment of fees of office to themselves as directors.
2. Failed to keep or cause to be kept a true and full account of all meetings and proceedings and preserve th'eir minutes, contracts, record notices, accounts, receipts and records of all kinds in a fireproof vault or safe.
3. Authorized the illegal payment of $6,683.73 and $37,870.00.
4. Authorized the illegal payment of $6,683.73 and $37,870.00 upon an agreement which failed to provide Water District No. 11 with any consideration for the payment.
5. Failed to procure a title opinion from their attorney regarding the interest of Jefferson County Water Control and Improvement District No.
5, Mack H. Hannah, Jr., and H. G. Tillman and D. D. Tillman, prior to the purchase of water lines and easements.
6. That the water system was purchased at an unreasonable and exorbitant purchase price.

Plaintiff’s said amended petition also sought $5,000.00 damages from each of said directors by reason of the alleged failure to faithfully perform their duties as directors of said water district.

Plaintiffs said amended petition also alleges that the alleged misrepresentations of the Tillmans concerning their ownership and interest in the water lines was done with' the intent and did mislead the City of Port Arthur and induce it to annex the territory covered by said water district and to assume the bonds and obligations of said water district, and which area involved was annexed by the said city on Dec. 26, 1959.

The record shows that plaintiff’s suit was filed on June 19, 1962. On the face of plaintiff’s said amended petition it is shown that each' of the alleged acts and alleged false representations were made and occurred prior to February 13, 1959. It thus clearly appears that plaintiff’s suit was filed more than two years after the occurrence of the acts sued upon but less than four years after the occurrence of said acts.

We will first pass on appellant’s contentions with respect to whether the four (4) year statute of limitation is applicable to any phase of this case.

With respect to plaintiff’s alleged cause of action against the defendants Hannah, Paul, Bridges, Prejean and Boutte, for violation of their statutory duties as directors of the said water district and on their official statutory bonds, we think it is well settled law in this state that such a suit is governed by the two year statute of limitations and not the four year statute of limitations. The leading authorities upon this proposition are well stated in Bernardoni v. Holman, Tex.Civ.App., 177 S.W.2d 321, writ refused (1944). We quote in part from the opinion in the Bemardoni case as follows:

“Appellants’ one proposition directly material to that issue is stated by them, as follows: ‘When the County Judge signed his bond, and the sureties joined therein, their liability became contractual toward all wards under the jurisdiction of the Probate Court. Therefore, this is a suit to collect money on an instrument in writing, and appellants’ cause of action comes under the Texas four years’ statute of limitation.’
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“Upon consideration of the single question of law thus presented, aided by able briefs and oral arguments for both sides, this court concludes that appellants are mistaken in their view; that their relied-upon authorities do not sustain it, but that, on the contrary, the precise point raised has already been foreclosed against them by an unbroken line of holdings in Texas to the direct purport that, upon facts not in legal effect different from those appellants so here declared upon, the two-year and not the four-year statute applies, such authorities being these; 43 American Jurisprudence, Sec. 444, R.C. S. of Texas 1925, Art. 5526, Sub. 4; Aetna Casualty & Surety Co. v. State, Tex.Civ.App., 86 S.W.2d 826; Bexar County v. Maverick, Tex.Civ.App., 159 S.W.2d 140; Cowart v. Russell, 135 Tex. 562, 144 S.W.2d 249; Hatcher v. State, 125 Tex. 84, 81 S.W.2d 499, 98.. A.L.R. 1213; Genzer v. Fillip, Tex.Civ. App., 134 S.W.2d 730, writ of error dismissed; McEwin v. Luker, Tex.Civ. App., 81 S.W.2d 137; Phillips v. Hail, Tex.Civ.App., 118 S.W. 190; Rose v. First State Bank, 122 Tex. 298, 59 S.W. 2d 810: Shaw v. Bush, Tex.Civ.App., 61 S.W.2d 526, error refused; Tarrant County v. Prichard, Tex.Civ.App., 89 S.W.2d 1028.
“ * * * the several bonds filed by Judge Holman and his sureties, upon which this suit was based, were all ordinary statutory bonds, conditioned merely that the County Judge should faithfully discharge all duties required of him as such officer, according to law; that none of them contained within themselves a contract to do any one of the things for the non-performance of which appellants brought this action thereon; * * *. The rule on this subject is thus stated in Section 444, of 43 American Jurisprudence, supra: ‘Limitation of Actions, Generally.— There seems to be no dissent from the proposition that an action against a public officer and the sureties on his bond for breach of an official duty is not an action on the bond so as to be governed by the statute of limitations relating to actions for an indebtedness evidenced by or founded upon a contract in writing. The reason for this rule has been said to be that an official bond is merely a collateral security for performance of the officer’s duty, and when suit is barred' for breach of his duty, action is also barred on the bond.’ ”

Appellant’s second point is overruled.

Plaintiff in its petition does not pray for cancellation or rescission of the quitclaim deed from the Tillmans to the water district, but prays for relief by way of a monetary judgment. Appellant’s suit is not for rescission and cancellation but is a suit for damages seeking a monetary judgment. We also hold that appellant’s suit insofar as it seeks recovery of a money judgment against appellees for alleged fraud is governed by the two year statute of limitations. See the following authorities: Jenkins et ux v. Kimbro et al, Tex.Civ.App., 380 S.W. 2d 189, (1964); Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438, 128 A.L.R. 757, (1940); Gordon v. Rhodes & Daniel, 102 Tex. 300, 116 S.W. 40, (1909). Appellant’s third point is overruled.

Generally fraud prevents the running of the statute of limitations until it is discovered, or by the exercise of reasonable diligence it might have been discovered. However, knowledge of facts that would cause a reasonable prudent person to make inquiry, which if pursued would lead to a discovery of fraud, is in law equivalent to a knowledge of the fraud. See Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738, 150 A.L.R. 775, (1944).

When a defendant, by exception, urges the two year statute of limitation, (if plaintiff’s petition does not already contain sufficient averments) it becomes necessary for the plaintiff to plead such facts as he depends upon to show that his cause of action should be considered for purposes of limitation as having accrued at a time within two years preceding the filing of the suit. In this connection see Powers v. Schubert, Tex.Civ.App., 220 S.W. 120, no writ, (1920) and authorities cited therein.

In Smith et al v. Southern Pine Lumber Company, Tex.Civ.App., 256 S.W.2d 893, no writ, (1953), it was held that the bar of limitation would not be avoided by the plaintiffs’ naked allegation that fraud, only recently discovered by plaintiffs, had been practiced in procurement of a judgment, in the absence of any allegation that plaintiffs did not know facts which would have caused a reasonably prudent person to make an inquiry about the matter which, if pursued, would have led to discovery of the fraud. We quote from the court’s opinion in said case in part as follows:

“There is nothing else in the appellants’ defense to the stated effect that the original judgment had been procured against them by fraud, other than that they had, as recited, not known of it until the lapse of more than seven years thereafter. But as our Supreme Court recently held in Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738, 150 A.L.R. 775, that is not the whole of the rule appellants so rely upon, the balance of it being thus stated by our Supreme Court in Glenn v. Steele, 61 S.W.2d 810: ‘ * * * Knowledge of facts that would cause a reasonably prudent person to make inquiry which would lead to a discovery of the’fraud is in law a knowledge of the fraud.
“As indicated, appellants made no attempt by their pleadings to meet this last-stated element of their defense of fraud they so relied upon; wherefore, the trial court’s judgment may not be set aside because of appellants’ naked allegation that fraud had so been practiced upon them; whereas, they made no attempt to allege that they did not know facts which would have caused a reasonably prudent person to make an inquiry about the matter, which, if pursued, would have lead to a discovery of the fraud. Ruebeck v. Hunt, supra.”

We also quote in part from McBurney v. Daughety, Tex.Civ.App., 19 S.W.2d 113, wr. dism., (1929) as follows:

“In Texas and most jurisdictions the statute runs from the time when the fraud is discovered, unless in the exercise of reasonable diligence it might have been sooner discovered. 37 C.J. 929, § 299b, and cases cited in note 1. The rule is also well settled in Texas that, where one seeks to avoid the bar of the statute on the ground of the exercise of reasonable diligence to discover fraud, he must allege the facts upon which he relies, so that the court may determine from the pleadings whether he is entitled to the relief sought, assuming such allegations to be true; or, as is held in Bremond v. McLean, 45 Tex. 19: ‘The mere statements in the petition that plaintiff could not have discovered that the alleged representations of defendant were false and fraudulent, by the use of reasonable diligence, evidently will not relieve him from the bar of the statute. If the want of such knowledge will prevent the running of the statute, it is not sufficient for the plaintiff to assert merely the conclusion that he could not have discerned that the representations made him were false, by the use of reasonable diligence, but he must state the facts upon which he relies, that the court may see whether they justify and support such a conclusion.’
“See, also, Kuhlman v. Baker, 50 Tex. 636; Brown’s Heirs v. Brown, 61 Tex. 49; Redd v. Brun (C.C.A.) 157 F. 192; Gordon v. Rhodes (Tex.Civ. App.) 117 S.W. 1025; East Texas Land & Improvement Co. v. Graham, 24 Tex.Civ.App. 521, 60 S.W. 476; Luter v. Hutchinson, 30 Tex.Civ.App. 511, 70 S.W. 1014; Ortiz v. De Benavides, 61 Tex. 60; Powell v. March (Tex.Civ.App.) 169 S.W. 938; Bass v. James, 83 Tex. 110, 18 S.W. 336.”

The Supreme Court of Texas in 1962, in White v. Bond et al, Tex., 362 S.W.2d 295, stated in part as follows:

“The Court of Civil Appeals held on the principal point raised here that the testimony does not show as a matter of law that suits were filed more than two years after the discovery of the fraud or when, by the exercise of due diligence, they should have discovered it and that since White failed to request an issue on the limitation question it was therefore waived. It is our view, that both by their pleadings and evidence, it is shown conclusively that the respondents, Jinkins, Smith and Harris, more than two years prior to the institution of their suits, had knowledge of such facts that would cause a reasonably prudent person to make inquiry which would lead to a discovery of the fraud. Knowledge of such facts is in law knowledge of the fraud itself. Wise v. Anderson, Tex., 359 S.W.2d 876 (1962); Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 137 A.L.R. 263. Glenn v. Steele, 141 Tex. 565, 61 S.W.2d 810. Therefore, as to these respondents, the trial court should have instructed the jury against them.
“In their pleadings the respondents alleged ‘that plaintiff did not discover the fraud alleged until on or about September 15, 1958, some five months prior to said date plaintiff became suspicious of defendant’s action and began an investigation which was finally completed on or about said date’. Their suits were filed in August of 1960. White pleaded the "two-year statute of limitations.
“The respondents alleged that the misrepresentations that induced them to purchase the stock were made in July of 1955, but nowhere in their pleadings did they assert that the falsity of those representations could not have been earlier ascertained by the use of reasonable diligence or state any facts that would justify and support such a conclusion. Bremond v. McLean, 45 Tex. 10; Cohen v. Shwarts, Tex.Civ.App., 32 S.W. 820 (1895), no writ history; Logan v. Taylor, Tex. Civ.App., 118 S.W.2d 1094 (1938) no writ history.
í}í ‡ í¡í j{;
“We therefore hold that the claims of respondents, Jinkins, Smith and Harris are barred by the two-year statute of limitations. Art. 5526, Vernon’s Annotated Civil Statutes.” (Emphasis added).

In the case at bar from the face of plaintiff’s pleading it is shown that the acts and representations complained of occurred prior to Feb. 13, 1959. The plaintiff on the face of the petition had the records of the water district immediately after Dec. 26, 1959 and examined them. Nowhere on the face of plaintiff’s said petition is it shown of alleged that the plaintiff could not have discovered its alleged cause of action from the records of the water district in its possession, if plaintiff had made diligent inquiry and investigation such as a reasonably prudent person would have made after finding what information it did find in the records, and found some of them incomplete. The plaintiff did not allege from the information it had, it could not by reasonable diligence have discovered its cause of action. After carefully considering and analyzing plaintiffs’ said amended pleading it is 'our best judgment that such pleading does not contain sufficient averments to avoid the bar of the two year statute of limitations raised by defendants by their special exceptions in regard thereto. We hold the trial court correctly sustained defendants’ said above referred to special exceptions to plaintiff’s said pleading. Appellant’s first point is overruled.

The trial court after properly sustaining the special exceptions above referred to gave leave to plaintiff to amend its pleadings, which plaintiff refused to do. Thereupon the trial court properly dismissed plaintiff’s suit.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: BELL, Chief Justice.

license: Public Domain

text:
    EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Appellant, v. Marion W. SANDERFER, Appellee.
    No. 14382.
    Court of Civil Appeals of Texas. Houston.
    June 25, 1964.
    Rehearing Denied Sept. 24, 1964.

      Vinson, Elkins, Weems & S earls, Houston; Thomas B. Weatherly, Sam W. Davis,. Jr., Houston, of counsel, for appellant.
    Eastup & Kroll, Gordon J. Kroll, Houston, for appellee.
   BELL, Chief Justice.

This is a case where the employer, in-agreement with the insurer, made a workmen’s compensation insurance policy applicable to its executives. The appellee was vice president in charge of drilling and drilling superintendent for Henderson Drilling Company. He was injured when he fell out of a tree while he was on a deer hunt and it is undisputed that his injuries resulted in total permanent disability. The court’s judgment was in the amount of compensation, at the maximum rate, allowable for such disability and for medical expenses which he had paid in an amount in excess of $14,000.00. The attorneys for appellee were allowed a recovery of 30% of the total recovery by appellee including the recovery for medical expenses.

We have three questions to decide: 1. Whether there was evidence of probative force to support the jury’s finding that ap-pellee was acting within the course and scope of his employment at the time of his injury; 2. Whether it was error to admit in evidence a letter written to appellant by Mr. Henderson, the president of Henderson Drilling Company, after the accident, and, if it was error, was such error harmful; and 3. Whether attorneys’ fees could encompass any part of the recovery for medical expenses.

There is a Point of Error asserting the trial court erred in rendering judgment for appellee when the finding of the jury that appellee was in the course and scope of his employment was against the great weight and preponderance of the evidence. Since the complaint is addressed to a procedural step involving no evidence, this is but a no evidence point. McDonald v. New York Central Mutual Fire Ins. Co., Sup., 380 S.W.2d 545; Calvert, 38 Texas Law Review 361; Houston Maritime Ass’n v. South Atlantic & Gulf Coast District, I.L.A., 367 S.W.2d 705 (C.C.A.), no writ hist.

Mr. Sanderfer was a minority stockholder in the Henderson Drilling Company. He had been with the Company since its organization fourteen years before trial. He had worked for Mr. Henderson, the president and majority stockholder, for ten years before the organization of the Drilling Company. The Drilling Company’s business was drilling oil wells. Appellee’s duties were supervision of drilling activities, assisting in trying to get jobs for rigs, office work as well as field work. In his work in supervising the drilling of the wells a part of his job was “good will” toward the men working for the Company that Henderson Drilling Company was doing the work for. In performance of his duties in trying to get jobs for his company he entertained representatives of other companies by taking them to lunch, on fishing trips and in other ways. He had a monthly expense account of $250.00 and in addition had credit at private clubs. He had a Company automobile with a gasoline credit card. He was subject to call 24 hours a day.

Appellee’s injury occurred November 18, 1961. His spine was injured in the accident so that he is paralyzed from the waist down. At the time of the injury he was deer hunting on a lease belonging to “Joe’s Rental Tool Service”. This company rented oil tools to people including Henderson Drilling Company. Prior to this appellee had taken people on hunting and fishing trips. In testifying as to why he happened to go on this trip appellee testified' that two or three weeks before Mr. Henderson first mentioned “the fellows that were going to be there.” He went because he was told to go by Mr. Henderson on November 16, 1961. He would not have gone if he had not been told to. About two or three weeks after Mr. Henderson first mentioned his going he talked to Mr. Henderson again. He, after attending the funeral of a friend, went to the office and Mr. Henderson stated, “I thought you would be at the deer camp this morning.” He stated he did not feel like going. A little later that day Mr. Henderson told him business was slow. It might be noticed here that other testimony showed this type of business was generally slow and competition for drilling jobs was keen. Mr. Henderson told him, “The fellows that would be up there and it would be good to be around them, I should go on up there and be with them to create good will.” Appellee went up there later that day and got to the camp between 8 and 8:30 p. m. Also up there were persons the witness named. One was a Mr. Mire who worked for a company that had not done business with Henderson Drilling Company but Henderson Drilling Company was working at getting some business from his company. Another was a man named Hurley who worked for Pan American for whom Henderson Drilling had done work. Another was a man named Moore who worked for Humble. Henderson Drilling had done work for Humble. All of these men, except Moore, were in a position to kill Henderson Drilling Company’s chance of getting business.

After getting to the lease he had no chance to talk to anyone about business. He planned to stay several days. The next morning he took several of the people to their deer stand and then went to his.

The above is the substance of appellee’s testimony on direct. On cross-examination he testified the others up there had been invited by the owner of Joe’s Rental Tool Service and he was “partially” a visitor of theirs. He had not had time to contribute anything toward the food. He had taken three bottles of liquor but it had not been opened before he was hurt. His company rented tools from Joe sometimes. When asked if Joe wanted to entertain him because Henderson gave him business, he answered, “Yes, and also to give me an opportunity to be with these other fellows, too. It was kind of ‘you scratch my back, I will scratch yours.’ ” When asked substantially the same question again, appellee answered, “Yes, and also so I could be in the presence of those other fellows who were influential. That was understood between him and me before I went they would be there.” He knew who would be there or he wouldn’t have gone. He discussed this matter in detail with Mr. Henderson. Mr. Henderson “told me it would be a good idea for me to go up there; there were fellows that would be there it wouldn’t hurt to be around; they could do us some good * * *. He didn’t chase me up there. He told me it would be a good idea for me to go.”

Mrs. Sanderfer testified that appellee usually came home from the office at between 4:30 and 5. On the day he went to the hunting camp he came home about noon. Appellee stated to her, in response to her inquiry as to why he was home early, that Mr. Henderson suggested he go hunting because there were going to be some men there that he could work with in order to get some business for the company.

Mr. Henderson testified by deposition. His testimony corroborates appellee’s testimony as to salary, expense account and credit available. He was asked if he had ever made any written or oral statement regarding appellee’s injury and the witness’ knowledge as to the purpose of his “being up there”. The witness answered nothing other than he wrote the insurance company (appellant) shortly after the injury. The letter was then offered. When the deposition was read at the trial and the letter was offered, appellant objected to the letter on the ground it was hearsay. The letter states that appellee was Mr. Henderson’s assistant who was hurt while hunting on Joe’s Rental Tool lease. It then states, “Since I suggested to Mr. Sanderfer to go up there and hunt with this group which some of them were Pan American employees, namely Mr. Cabness and Mr. Hurley, with whom we have a rig working for and I wanted him to promote good will and since that being the case, I feel that he should be covered by Workmen’s Compensation.” The letter was dated November 24, 1961.

The witness testified appellee was on call 24 hours per day. At the time Mr. Sander-fer “went up there” Mr. Henderson anticipated he would promote good will. Appellee mentioned to him that he would like to go up and go hunting and told Mr. Henderson “those fellows” were going to be there. Mr. Henderson thought it was a very good idea and told appellee to go and stay as long as he wanted to.

A question referred to the letter as indicating the witness wanted appellee to promote good will by going on the trip and then the query was made as to how you promote good will. The witness answered “Well, up there like hunting with those guys and playing a little pitch or poker or drinking a little whiskey and just cutting up and telling lies about how big the deer was that you didn’t get * * *. In other words, it is just a chance to get better acquainted with them.”

At the trial appellant introduced part of the deposition and by this part the witness testified that when appellee mentioned going hunting appellee told him about “some of the Pan American men and others like that, who were going to be up there, and I told him it would be a good idea * * * it would be a good time for him to go.” The witness testified the people were those he had gotten business from and he hadn’t lost any he had gotten from them but “you are always on your toes * * * I mean keeping up your contacts. They say ‘out of sight, out of mind,’ you know. You want to be around every once in a while.”

Viewing the evidence most favorably to the verdict, as we must, and drawing every reasonable inference therefrom that is favorable to the verdict, there is clearly evidence of probative force to support the conclusion that at the time of the injury ap-pellee was acting within the course and scope of his employment. With the approval and suggestion of Mr. Henderson, he went to the lease to hunt and otherwise associate with persons who furnished business to Henderson Drilling Company. He was promoting good will for his company. This was one of his duties. This suffices to support course and scope of employment. Constitution Indemnity Company v. Shytles, 47 F.2d 441 (5th Cir.) ; Texas Employers’ Insurance Ass’n v. Chitwood, 199 S.W.2d 806 (C.C.A.), no writ hist. The fact that appellee was also being personally entertained by Joe’s Rental Tools representatives does not destroy his being at the same time in and about his master’s business. Associated Indemnity Corporation v. Billberg, 172 S.W.2d 157 (C.C.A), no writ hist.; Maryland Casualty Company v. Stewart, 164 S.W.2d 800 (C.C.A.), ref. w. m.

Appellant is in no position to complain of the attorneys’ fee allowed appellee’s attorney. The judgment awarding appel-lee’s counsel 30% of appellee’s recovery can in no way increase appellant’s liability. Ap-pellee contracted to pay out of his recovery from appellant. The judgment against appellant was only for medical expenses and compensation the statute makes it liable for. Texas Indemnity Insurance Company v. Bush, 163 S.W.2d 224 (C.C.A.), writ ref.

The letter introduced, being an out of court declaration, was of course hearsay, and, under the facts here shown did not come within an exception to the hearsay rule, and should not have been admitted. However, considering the whole record, we are of the view it was not such error as was reasonably calculated to cause or probably did cause the rendition of an improper verdict or judgment.

The letter was proved up and introduced at first as a part of the deposition of Mr. Henderson. Mr. Henderson was there for cross-examination. He was cross-examined, not specifically with regard to the letter, but with regard to facts that were also shown in the letter except for the opinion expressed in it. We do not mean that cross-examination operated to waive the complaint, but where, as here, the witness gave original evidence that was the same in substance as the contents of the letter, there is not the same situation as if the erroneously admitted letter stood alone in support of asserted facts. In the deposition introduced Mr. Henderson testified in a manner so as to show that appellee was on the hunt at his suggestion to promote good will for Henderson Drilling Company. Actually, therefore, the vice that taints usual out of court statements was absent, that is, there was opportunity for cross-examination and there was testimony under oath concerning facts also reflected by the letter.

There was another available objection in the light of the fact that Mr. Henderson testified, that is, the letter bolstered his testimony when it had not been attacked. No .such' objection was made.

Insofar as the letter contained an expression of opinion it was subject to such an objection. None was made. The opinion, however, was concerning a matter of law. Mr. Henderson did not purport to be a lawyer and obviously was not. Too, the issue submitted merely inquired as to whether as a fact at the time of the injury appellee was acting within the course .and scope of his employment.

The judgment of the trial court is affirm'■ed.


author: WERLEIN, Justice.

text:
    SOUTHERN PACIFIC COMPANY, Appellant, v. BUILDERS HARDWARE, INC., Appellee.
    No. 14380.
    Court of Civil Appeals of Texas. Houston.
    Oct. 15, 1964.
    Rebearing Denied Nov. 5, 1964.

      Baker, Botts, Shepherd & Coates, John A. MacDonald, Jr., Houston, for appellant.
    Newton M. Crain, Jr., Houston, Blades, Crain, Slator & Winters, Houston, of counsel, for appellee.
   WERLEIN, Justice.

This suit was brought by appellee, Builders Hardware, Inc., to recover the value of a portion of a shipment of steel bars that it never received. The case was tried to the court without a jury and the court rendered judgment against appellant, Southern Pacific Company, in the sum of $3,834.09. The judgment of the court shows that all of the defendants in the suit were disposed of and that judgment was rendered solely against appellant. Appellee took a nonsuit against The Lynch Company, Inc., and Pan American Trade Development Corp., hereinafter called Pan American, filed a motion for summary judgment which was granted. The judgment provides that appellant take nothing against “Orion” Schiffahrts-Ges Reith & Co., hereinafter called Orion, and Freemar Line, and shows that Houston Belt & Terminal Railway Company, hereinafter referred to as Belt, was dismissed from the suit on its motion. For an understanding of the case and appellant’s points of error, it seems advisable to set out briefly some of the rather confusing facts giving rise to the suit.

A total of 532 lifts of steel reinforcing bars were loaded aboard the SS Beteigeuze in Europe in September, 1959 for shipment to Pan American, as consignee, % W. R. Zanes & Co., Houston, Texas, hereinafter called Zanes, under Ship Bills of Lading Nos. 28 (for 120 lifts) and 40 (for 422 lifts), which bills acknowledged receipt of the entire shipment in good order. While said shipment was enroute to Houston, Pan American sold the entire shipment to Lynch Company, which in turn transferred the same to appellee, and appellee-, paid the entire purchase price. Before-instructions for delivery were given to the-ship agents, Hinkins-Hall SS Company, by Zanes, appellee sold to San Jacinto Sales; Co., its claimed joint enterpriser, a portion of the lifts. The SS Beteigeuze was chartered by Orion, its owner, to the defendant,, Freemar Line.

At the request of appellant, the court made its findings of fact and conclusions, of law. Among other things, the court found that Hinkins-Hall was directed by Freemar Line to unload the 532 lifts of steel bars into railroad cars; that 45 of the lifts sold by appellee to San Jacinto-Sales Co. were in turn to be delivered to the Dorsid Trading Co.; that 422 lifts of the steel bars loaded on the SS Beteigeuze under Ship Bill of Lading No. 40 were unloaded at Houston on November 9 and 10,. 1959, into waiting railroad cars and were checked as they were unloaded by E. L. King on behalf of Hinkins-Hall; that the-bill of lading issued by Belt on November 19, 1959 acknowledged receipt of 227 lifts, out of the total shipment of 532 lifts, in. good order, to be delivered to San Jacinto Sales Co., which actually received 228 lifts; that one bill of lading dated November 19, 1959 was issued by appellant, acknowledging receipt of 245 lifts, to be delivered to appellee, and the same were delivered; that appellant on November 19, 1959, issued a second bill of lading acknowledging receipt of 60 lifts to be delivered to ■appellee, which company was served only by appellant; that on November 10, 1959, said 60 lifts, out of the 422 lifts, under Ship Bill of Lading No. 40, had been discharged from said ship in good order into Railroad ■Car No. MP 22638; that the entire 532 lifts were duly cleared through the United States Customs and customs duty thereon was paid; that Car MP 22638 containing 60 lifts was to be delivered by appellant to appellee, for the unloading of 15 of such lifts, and it was thereafter the intention of appellee to have a new bill of lading issued directing the remaining 45 lifts to be delivered to Dorsid Trading Co.; that neither Railroad Car No. 22638 nor the 60 lifts of steel bars placed on it for delivery to appellee was ever delivered to the appellee or its order by appellant, and Dor-sid Trading Company never received any part of the 45 lifts it was to receive, and that appellee absorbed the entire loss since it did not receive sufficient lifts to make delivery to Dorsid Trading Company; that thereafter appellant discovered Car No. MP 5635 on the Houston docks containing 28 lifts of steel which did not bear the same marks as any of the 532 lifts, but appellee agreed to accept such 28 lifts and credit them against its total loss, and said Car MP 5635 was delivered to appellee without appellant issuing a bill of lading; that appellee also gave credit for one extra lift of bars delivered to San Jacinto Sales Company, thereby reducing its loss to a total of 31 lifts; that no part of said 31 lifts has ever been delivered to appellee or its order, and the fair market value of the same was $3,834.09 which has never been paid in whole or part. No additional findings of fact were requested by appellant.

Appellant in its first six Points of Error asserts that the court erred in entering judgment predicated on the enforcement of a cancelled contract; that the court erred in refusing to grant appellant a directed verdict; that there was no evidence and also insufficient evidence to show that appellant received 60 lifts belonging to appel-lee which it failed to deliver; and that the court’s Conclusion of Law No. 2 has no support in the evidence and is against the great weight of the evidence. The Court’s Conclusion No. 2 reads as follows:

“That the Defendant, Southern Pacific Company, received 60 lifts of the steel reinforcing bars loaded aboard. Car No. MP 22638 in good order and condition and issued its Bill of Lading on November 19, 1959, acknowledging receipt of same in good order and condition. That the Defendant, Southern Pacific Company, never delivered said car No. MP 22638 or any of the 60 lifts of steel reinforcing bars to Builders Hardware, Inc. or to its order, the said Builders Hardware, Inc. being the consignee named on the bill of lading covering the said car and its contents and its shipment by the Southern Pacific Company and the Southern Pacific Company has neither pleaded nor proven any excuse for its failure to so deliver said 60 lifts of steel reinforcing bars. It is therefore liable to the Plaintiff, Builders Hardware, Inc., for the fair market value of the 60 lifts of steel reinforcing bars contained in said car No. MP 22638 which it failed to deliver, less the fair market value of the 29 lifts for which plaintiff gave credit against its total loss, or the total sum of $3,834.09.”

Elbert L. King, who was an employee of Hinkins-Hall in November, 1959 but not since 1959, testified in substance that he was deck clerk and checker at No. 4 hold on board the SS Beteigeuze on November 9, and 10, 1959; that on such days the cargo of 422 lifts under Ship Bill of Lading No. 40 was discharged from such hold into waiting railroad cars; that he prepared and kept tally sheets as the steel came out of the hold in order to keep track of the number of lifts discharged therefrom and he would mark down the number of lifts placed in a certain car after they got to the car; and that he was on the deck most of the time but had occasion to go into the cars.

After looking at the tally sheet which he had made and signed (Freemar’s Exhibit No. 1) and refreshing his memory thereby, he testified that 60 lifts of the steel from No. 4 hold were placed in Car MP 22638 as shown on the tally sheet. Freemar’s Exhibit No. 2, also introduced in evidence, shows U. S. Customs Service Release as of November 10, 1959 of the 422 lifts under Ship’s Bill of Lading No. 40.

It is our view that independently of the bills of lading issued by appellant, the unequivocal testimony of Mr. King was evidence of probative force that 60 lifts of the steel bars under Ship Bill of Lading No. 40 belonging to appellee were placed in Car MP 22638 and delivered into appellant’s possession on November 9 or 10, 1959. Appellant wholly failed to show what happened to such car between November 10 and November 17, 1959 when it was located on the appellant’s tracks at Nationwide Supplies in Houston. It was there unloaded on November 19 or 20 and found to contain only 41 lifts which were a part of 188 lifts that Nationwide had purchased and which were delivered to that company under Ship Bills of Lading Nos. 17 and 27. What became of the 60 lifts originally placed in such car was never explained by appellant and has remained a mystery.

On November 19, 1959 after Car No. MP 22638 had been delivered to Nationwide Supplies and was there unloaded or in the process of being unloaded, appellant issued three bills of lading, one for 245 lifts of steel bars ex SS Beteigeuze consigned to appellee which were delivered in due course,, as found by the trial court, one for 60 lifts: of steel bars from such ship consigned to-appellee which were never delivered, and' one for 188 lifts consigned to Nationwide Supplies, and delivered in four cars, one-of which was MP 22638 containing 41 lifts.

Appellant contends that the court, in entering judgment against it, predicated such judgment on the enforcement of a cancelled contract. The evidence shows, that the original bill of lading covering the 60 lifts was not introduced in evidence but that a true copy thereof retained by Zanes-for its record was introduced in evidence-without objection when the handwritten notation thereon was explained. Such-notation reads: “11/25/59 returned orig. to SP for cancellation, car contained 41 lifts Vá x20 for Nationwide ex BL 17.”' The copy of the bill of lading shows that 15 of the lifts out of the 60 were to be delivered to appellee for removal and the balance of 45 lifts were to be delivered at Byers Barge Terminal.

There is evidence that Zanes’ clerk, Mr. Moers, prepared the bills of lading according to appellee’s instructions, and presented the same to the Railroad. Appellant’s freight claims agent testified that the bill of lading covering the 60 lifts consigned to appellee was executed by an authorized representative of the carrier, Southern Pacific. After it was discovered that the car in question had been delivered and unloaded at Nationwide, Moers on November 25, 1959 returned the original bill of lading covering the 60 lifts to appellant for cancellation. The evidence also shows that the United States Customs cleared the entire number of 532 lifts ex Bills of Lading Nos. 40 and 28 SS Beteig-euze.

It is undisputed that the bill of lading dated November 19, 1959, covering the 60 lifts in question was executed by the duly authorized representative of appellant on November 20, 1959 and was not can--celled until November 25, 1959. It was not cancelled with' the consent or authorization of appellee or by anyone authorized to represent it. Furthermore, appellant at no time pleaded the affirmative defense of cancellation of such hill of lading, as required by Rule 94, Texas Rules of Civil Procedure. Even if it can be said that such bill of lading did not acknowledge receipt of any definite number of lifts in good order to be delivered to appellant, in view of the words stamped thereon: “Received subject to check sheet & inventory on file, Houston, Texas,” initialed “S L C,” it did acknowledge that appellant was the delivering carrier of Car MP 22638. That it had possession and control of such car is further evidenced by the fact that appellant did in fact deliver such car on its tracks to Nationwide. This is not a case ■of a shortage in quantity, improper loading, breakage or damage to goods within the purview of 49 U.S.C.A. § 101. In this case neither Car MP 22638 nor any steel therein was delivered to the consignee under the bill of lading or otherwise. The un-impeached testimony of Mr. King shows that 60 lifts were discharged from the ship into such car, and the bill of lading on its face calls for that number of lifts. The law is well settled that a carrier who issues a bill of lading, although' it be marked “Shippers load and count,” is liable for whatever the carrier actually receives from the shipper. The receipt of the goods lies at the foundation of the contract to carry and deliver. Boatmen’s Nat. Bank of St. Louis v. St. Louis Southwestern Railway Co., 8 Cir., 75 F.2d 494, cert. den. 295 U.S. 751, 55 S.Ct. 830, 79 L.Ed. 1695; Chicago & N. W. Ry. Co. v. Bewsher, CCA 8, 6 F.2d 947; Chicago & N. W. Ry. Co. v. Stephens Nat. Bank of Fremont, CCA 8, 75 F.2d 398, cert. den. 295 U.S. 738, 55 S.Ct. 650, 79 L.Ed. 1685; Dwinnell et al. v. Duluth, S. S. & A. Ry. Co., 1928, 242 Mich. 357, 218 N.W. 649.

The shipment in question, being one moving in foreign commerce, was gov-erned by the Federal law, but, as stated by Justice Walker in Missouri-Pacific R. Co. v. Elmore & Stahl, Tex.Sup.1963, 368 S.W.2d 99, the provisions of the Carmack Amendment, 49 U.S.C.A. § 20(11), do not alter or modify the basic common law rule of carrier liability. See Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U.S. 319, 36 S.Ct. 555, 60 L.Ed. 1022; Secretary of Agriculture v. United States, 350 U.S. 162, 76 S.Ct. 244, 100 L.Ed. 173. The Carmack Amendment does not change the pre-existing common law as to liability of rail carriers for damage caused to shipments which occurred on the line of the carrier sued while the merchandise was in the possession of such carrier. Louisiana Southern Railway Co. v. Anderson, Clayton & Co., 5 Cir., 191 F.2d 784; United States v. Mississippi Valley Barge Line Co., 8 Cir. 1960, 285 F.2d 381.

In the instant case there is ample evidence that the 60 lifts of steel bars in question were discharged from the ship and into Car MP 22638, and that neither the car nor the steel bars were ever delivered. Appellant failed to exonerate itself from liability for nondelivery of the car and steel by showing that such failure was caused by one or more of the four excepted perils: “(1) An act of God; (2) Public enemy; (3) The fault of the shipper, or (4) The inherent nature of the goods themselves.” See Chesapeake & O. R. Co. v. Thompson Mfg. Co., 270 U.S. 416, 46 S.Ct. 318, 70 L.Ed. 659; Schnell v. The Vallescura, 293 U.S. 296, 55 S.Ct. 194, 79 L.Ed. 373.

Appellant in its last two points complains that the trial court erred in overruling its motion for new trial based on newly discovered evidence which indicated that appellee’s Exhibits 4 and 6 had been admitted into evidence on the basis of false testimony. Appellant in its motion for new trial asserts that Dorsid was advised on November 17, 1959 that the rail movement in Car MP 22638 had been cancelled because it was all mixed up. It further a§-serts that 40 lifts of steel from the Beteig-euze were delivered to Dorsid by trucks on December 9, 1959, and that Dorsid paid San Jacinto Sales the sum of $5,284.74 on December 23, 1959.

Appellee’s Exhibits 4 and 6 showing the total number of lifts delivered to appellee and San Jacinto Sales Co. and the shortage of 31 lifts, were admitted in evidence without objection. San Jacinto Sales Co. received from Belt the 227 lifts it was entitled to under the bill of lading issued by Belt, and one additional lift. Appellee makes no complaint concerning delivery of such lifts nor does San Jacinto Sales Co., which was not a party to the suit. The evidence shows that from the 60 lifts which were to be delivered in Car MP 22638 appellee intended to remove 15 lifts and forward the balance of 45 lifts to Dorsid Trading Co. at Byers Barge Terminal, under its arrangement with San Jac-into Sales Company. The bill of lading in question contains the typewritten notation : “Car to be switched to Builders Hardware for removal of 15 lifts and then to Byers Barge Terminal for 45 lifts.” There is no evidence in the record that such 45 lifts were ever delivered to Dor-sid. The evidence is just to the contrary. Appellee bore the entire loss of the 60 lifts as reduced by the subsequent receipt of the 28 lifts, as hereinabove stated, and the one additional lift delivered by Belt to San Jacinto Sales Co.

In its motion for new trial appellant asserts that it later discovered that 40 lifts of steel from the SS Beteigeuze were delivered by San Jacinto Sales Co. to Dorsid by trucks on December 9, 1959, pursuant to a contract between San Jacinto Sales Co. and Dorsid Trading Co. dated November 5, 1959 which provided for delivery of same F.O.B. car or truck. The trial court found that Car MP 22638 containing 60 lifts was to be delivered to appellee by appellant for the unloading of 15 of such lifts, and it was thereafter the intention of appellee to have a new bill of lading issued directing the remaining 45 lifts which it sold to San Jacinto Sales Co. to be delivered to Dorsid Trading Co.; and that neither Railroad Car. No. 22638 nor the 60 lifts of steel bars placed on it for delivery to appellee were ever delivered to the appellee or its order by appellant, and Dorsid Trading Co. never received any part of the 45 lifts it was to receive, and that appellee absorbed the entire loss since it did not receive sufficient lifts to make delivery to Dorsid Trading Co.

We find no inconsistency whatever in the court’s findings and the statement made by appellant that 40 lifts of steel were delivered by San Jacinto Sales Co. to Dorsid by trucks on December 9, 1959 pursuant to the contract between them dated November 5, 1959. There is no evidence whatever connecting up such 40 lifts with the 45 lifts which were a part of the 60 lifts discharged into Car MP 22638. It is our view, therefore, that the alleged newly discovered evidence on the part of appellant was not material to any issue in the case and that the court properly overruled appellant’s motion for new trial in the exercise of his discretion.

Furthermore, we are of the opinion that appellant failed to exercise reasonable diligence in obtaining the additional evidence of the sale and delivery to Dorsid by San Jacinto Sales Co. from its warehouse of 40 lifts, although certain records were in the hands of the F.B.I. as stated by appellant. The only possible effect that such evidence could conceivably have would have been to attempt to impeach the testimony of witnesses who actually testified at the trial, and then only as to irrelevant matters. See Davis Bumper-to-Bumper, Inc. v. Roberts, Tex.Civ.App., 331 S.W. 2d 762; Jordan v. New Amsterdam Casualty Co., Tex.Civ.App., 353 S.W.2d 256; Houston Fire & Casualty Insurance Company v. Miller, Tex.Civ.App., 237 S.W.2d 461.

We have carefully read the entire statement of facts and examined all of the exhibits introduced in evidence, and are of the opinion that the court’s findings of fact and conclusions of law are amply supported by evidence of probative force. We cannot say that such findings of fact are so ■against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Judgment affirmed.


author: MOORE, Justice.

text:
    E. F. HAMMON, Appellant, v. TEXAS & NEW ORLEANS RAILROAD COMPANY, Appellee.
    No. 52.
    Court of Civil Appeals of Texas. Tyler.
    July 16, 1964.
    Rehearing Denied Sept. 24, 1964.

      Raymond L. McDermott, Mabel Grey Howell, Houston, for appellant.
    Richard B. Miller and R. Gordon Gooch, Baker, Botts, Shepherd & Coates, Houston, for appellee.
   MOORE, Justice.

This is an action by E. F. Hammon, a brakeman, to recover damages under the Federal Employers’ Liability Act, 45 U.S. C.A. § 51 et seq., by reason of a derailment of the switch engine on which he was riding while engaged in the performance of his duties as a brakeman. Upon the trial of the cause, the jury returned a verdict for the defendant. Based upon the verdict the court entered judgment in favor of the railroad company, to which plaintiff duly perfected this appeal.

The pertinent portion of the plaintiff’s pleadings, alleging negligence on the part of the defendant was as follows:

“ * * * On or about October 17, 1960, Plaintiff was employed as a switchman by the defendant and was acting within the course and scope of his employment for the defendant in Harris County, Texas, when he suffered severe bodily injuries. On such occasion, an old, worn out, defective track of the defendant gave way with the engine of the defendant which was operating thereon when a rail of such track broke resulting in the rail springing up and knocking with great force the plaintiff from the engine. Plaintiff was thrown to the ground and in so doing, struck both knees and legs forcibly against metal portions of the engine. Plaintiff suffered a severe traumatic shock and injuries hereinafter detailed. The occurrence made the basis of this suit resulted from the negligence and carelessness of employees and representatives of the defendant, other than your plaintiff. Such negligence was a proximate cause of the occurrence made the basis of this suit and of the injuries and damages suffered by Plaintiff.”

The defendant, by appropriate pleadings, denies these allegations and pleads unavoidable accident. In answer to the special issues submitted by the Court, the jury found' (1) that defendant did not fail to “maintain” its track in such a manner as would have been done by a reasonably prudent railroad company in the exercise of ordinary care; (2) that the accident was unavoidable, and (3) that plaintiff suffered special damages in the amount of $1,261.00, and general damage in the amount of $5,-000.00. No other issues were requested or submitted. The single objection to the charge leveled by the plaintiff was to the effect that there was no evidence to support the submission of the unavoidable accident issue.

Plaintiff now claims error on the part of the trial court in denying his motion for a new trial; in submitting an issue on unavoidable accident; in rulings on evidence and on the court’s failure to declare one of the jurors disqualified. Each will more fully appear hereinafter.

Plaintiff produced testimony showing that on the occasion in question he was working as a member of the switching crew, which was in the process of “spotting” a loaded box car at a warehouse on what is known as the old Oriental Textile Industrial track in Harris County, Texas; that the engine being used was a diesel switch engine weighing approximately 232,000 pounds; that immediately before the derailment, the engine and the loaded car had passed over the track and the car had been “spotted”; that as the engine was backing out of the industrial track, toward the main line, at a speed of about 6 to 8 miles per hour, he, together with a fellow employee, was riding on the front footboard on the front of the train, which was situated immediately above the rail; that the engine suddenly became derailed and rolled along across ties and then re-railed itself; that in the process, the rail under the footboard where plaintiff was standing broke in two places, causing the end of the rail to “kick up” and strike the footboard; that the impact knocked the footboard loose from the steel support, causing a portion of the footboard and the supports to strike him on the knees and abdomen; that he was knocked off the footboard, falling upon his knees upon the tracks; that he suffered an injury to both knees, causing them to bleed; that after being given first aid at the company hospital, he went home where he remained for two days before returning to work; that his knees and legs continued to bother him, and after returning to the company hospital for treatment on two other occasions, he employed Dr. F. O. McGee, some three weeks after the injury, who continued to treat him until July, 1961, at which time he operated upon plaintiff’s left knee; that thereafter he was off from work for 8 months, after which he returned to his regular employment as a switchman in March, 1962, where he continued to work to the date of the trial.

According to the plaintiff, and three of the members of the switching crew, the section of the industrial track where the rail broke had been in a state of disrepair for the past fifteen years. They testified, in substance, that during that period of time none of the cross ties supporting the rail had been replaced; that the ties were rotten and decayed; that a great number of the spikes holding the ties to the rail were missing; that there was no ballast around the ties to hold them in place; that the rail was a small rail, being what is known as a 60-pound rail and had been in use for many years; that it was rusty and worn, and that the track was rough and the train “wobbled” as it passed over the point where the rail broke.

Defendant called as its witness, Pat Neely, the road master in charge of the maintenance and repair of defendant’s industrial tracks in the area. According to his testimony, this particular section of track in question had been out of service from about 1943 to 1955, because during the war years the railroad did not have any industries located along this section of the track that required switching services. In 1955, some five years before this accident made the basis of this suit, Neely testified that under Neely’s supervision, this section of the track had been completely re-habili-tated and had been placed in first class operating condition. The track was raised some three or four inches; the rails were checked for defects and approximately one-third of the cross ties were replaced; that the weight of the rail was 60 pounds to the yard; that this type of rail was in general use on industrial tracks, not only by defendant but by other railroads in the area. He testified that he and his assistant and the regular track inspector, made regular inspections of the company’s industrial track and that the section of track in question was inspected once a week, for which a check was made for rotten ties, loose spikes, defective rails and ballasts, as well as being inspected for low places in the track by the use of a level, but that he had not found or had any defect reported to him, and that the track was in good condition at the time of the derailment. He further testified that the breaking of rails was a common occurrence in the operation of a railroad and that a change in the weather was the most common cause, but that on some occasions a rail will break because of a defect in the metal. He further testified that the company used electronic equipment to search for defects and breaks in the rail on main lines, but that the use of such equipment was not practical on industrial tracks because of the dirt and debris.

One of plaintiff’s witnesses, W. B. Kyle, testified that the condition of the track on the date of the trial was the same as that on the date of the derailment. J. W. Dukes, a track inspector for defendant, testified that while he was not the track inspector prior to the accident, that at the time of the trial, the track was in good condition.

There was no testimony describing the condition of the rail after the break except that the rail was broken in two places.

Plaintiff, in his first three points, contends that under the above factual situation, he has proved negligence as a matter of law and if not, then in the alternative he contends that there is no evidence to support the negative finding of the jury on Special Issue No. 1, or at least is insufficient evidence to support the finding.

The burden of proof was upon the plaintiff to establish negligence on the part of the defendant railway company by a preponderance of the evidence. This burden could have been discharged by obtaining a jury finding, supported by evidence of probative force or by undisputed evidence conclusively showing- negligence. Having failed to obtain a jury finding of negligence, plaintiff now contends that he established negligence as a matter of law. Under the facts presented in this record, we are not prepared to hold that the evidence showed defendant guilty of negligence as a matter of law, nor can we say that the verdict fails to find support in the evidence. To so hold would be to say that the defendant, as a matter of law, failed to use the care of an ordinary prudent railroad company in maintaining its track. It was undisputed that the train derailed and the rail was found to be broken. It was not shown, however, whether the broken rail caused the derailment or whether the derailment and the subsequent re-railment caused the break. Although it seems to be conceded that the break was a new break, there was no testimony linking the break to any defect in the rail itself. The switch engine, together with the car, had passed over the place of the break only moments before the derailment without incident. Hence, we think that the jury could have reasonably concluded that if there was a defect in the rail, same was such that it would not have been detected by a reasonable inspection and was not, therefore, under the circumstances, negligent in the maintenance of its track in failing to inspect for defects in the rail. The only other possible cause for the derailment and the breakage of the rail would be because of the fact that the rail was not properly supported by the ties, spikes and ballasts. Under the testimony, we think the jury could have concluded, as they did, that the defendant was not negligent in failing to properly maintain proper support for the rail. Though the evidence may have raised the issue of negligence, which we need not decide since the verdict was for the defendant, the jury was not compelled to accept the plaintiff’s version of the condition of the track but was at liberty to accept the version of the defendant. Under these circumstances, we would not be justified in holding that plaintiff established negligence by an undisputed preponderance of the evidence. Generally, the question of whether or not there is negligence is one of fact. It is only in the clearest cases, where the facts are undisputed, and are such that reasonable minds can draw but one inference or conclusion therefrom, that a court is justified in finding the existence of negligence as a matter of law. Fort Worth & D. Ry. Co. v. Barlow, Tex. Civ.App., 263 S.W.2d 278; Houston Belt & Terminal Company v. Chance, Tex.Civ. App., 332 S.W.2d 430. The evidence did not show any alleged violation of law by Defendant’s employees proximately causing the accident. The evidence did not establish negligence as a matter of law by showing a total lack of care on the part of defendant or its employees. On the contrary, the evidence viewed in its most favorable light to defendant as required in such cases, shows the existence of some care by defendant and its employees. The question of whether that care was reasonable or due care under the circumstances was one of fact for the jury. Rio Grande, E. P. & S. F. R. Co. v. Dupree, Tex.Com. App., 55 S.W.2d 522; Texas & N. O. R. Co. v. Blake, Tex.Civ.App., 175 S.W.2d 683; Cole v. Missouri-Kansas-Texas R. Co. of Texas, Tex.Civ.App., 179 S.W.2d 343; Mosby v. Texas & P. Ry. Co., Tex.Civ.App., 191 S.W.2d 55; Henwood v. Gilliam, Tex. Civ.App., 207 S.W.2d 904; Adkins v. Texas & P. Ry. Co., Tex.Civ.App., 233 S.W.2d 956; Houston Belt & Terminal Company v. Chance, supra; Conser v. Atchison, T. & S. F. Ry. Co., 266 S.W.2d 587, Sup.Ct.Mo. The effect of the jury’s verdict is to say that in so far as plaintiff was concerned, the defendant discharged its duty of exercising due care in the maintenance of its track. To hold defendant responsible to a greater degree of care would be to impose liability without fault.

“The Act does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur.” Ellis v. Union Pacific Ry. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 600, 91 L.Ed. 572.

Plaintiff contends under point four that the judgment should be reversed because the negative answer of the jury to special issue No. 1, finding no negligence, is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

Ordinarily, this assignment requires the Courts of Civil Appeals of this state to sift and re-weigh all of the testimony in the record, both that supporting the verdict, along with the other evidence in the case, including that which is contrary to the verdict, and then to determine, whether as a matter of fact, the verdict and judgment of the court is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. In Re King’s Estate, 150 Tex. 662, 244 S.W. 2d 660. However, in view of the holding in Deen v. Hickman, 353 U.S. 925, 77 S.Ct. 715, 1 L.Ed.2d 721, reversing the Supreme Court of Texas in Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933, holding that the Texas Supreme Court was in error in reversing the cause to the Court of Civil Appeals for a determination of the question of whether the verdict of the jury was so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust, we express some doubt as to whether this court has any authority to reweigh the evidence and then substitute our judgment in place of that of the jury. As was demonstrated there, such procedure would no doubt be prohibited in a case where a recovery had been allowed a plaintiff. Ellis v. Union Pacific Ry. Co., supra; Rogers v. Missouri Pacific Ry. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493. If this be true, then we can perceive of no just and valid reason why the same rule should not also be applied in a case where the verdict has been rendered for the defendant. This view would seem to find support in the holding of the court in Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. '916, wherein the court held that factual issues cannot be relitigated by the reviewing •courts, stating that it is "only when there is a complete absence of probative facts to support the conclusion reached (jury) does a reversible error appear.”

Suffice it to say, however, we have examined the entire statement of facts consisting of 589 pages and find that we are unable to say as a matter of fact that the verdict of the jury is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.

Points five through eight complain of the action of the trial court in submitting Special Issue No. 3, inquiring as to whether or not the occurrence in question was the result of an unavoidable accident. Plaintiff takes the position that there is no evidence, or at least insufficient evidence, to raise the issue, and further that the verdict finding the accident to be unavoidable is contrary to the overwhelming weight and preponderance of the evidence. He further contends that since such an issue is not a controlling issue under the Federal Employers’ Liability Act, the mere submission of the issue was prejudicial.

No objection was made in the trial court on the ground of the prejudicial effect of the submission of the issue.

In view of the failure of the jury to find any primary negligence on the part of the Defendant, we are of the opinion •that the submission of the unavoidable accident issue, or any alleged error with respect thereto, becomes immaterial. Brown v. Dallas Gas. Co., Tex.Civ.App., 42 S.W.2d 869, writ ref.; Smith v. Morgan, Tex.Civ. App., 235 S.W.2d 938; Adkins v. Texas & Pac. Ry. Co., supra; Blanton v. E & L Transport Co., 146 Tex. 377, 207 S.W.2d 368. In a situation where the plaintiff has failed to discharge his burden of establishing his cause of action by failing to prove any act of primary negligence, the submission of other issues would be harmless. Rule 434, T. R. C. P.; Neal v. Lykes Bros. Steamship Co., 5 Cir., 306 F.2d 313. Quinterno v. Sinclair Refining Co., 5 Cir., 311 F. 2d 217; Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339, 342.

Point nine complains of the action of the trial court in failing to declare a mistrial grounded upon the violation by defense counsel of a motion in limine requiring him to refer to or make mention of the fact that plaintiff had had a prior suit for personal injuries or a claim therefor.

Points ten and eleven assert error of the trial court in failing to grant plaintiff a new trial because of the alleged error of the court in not excluding evidence of the prior injury and the claim based thereon.

In granting the motion in limine, the court ruled that Defendant was not to elicit testimony showing plaintiff had made other claims for injuries or had filed any suits for injuries or engaged attorneys to represent him in connection therewith, or had received any settlements unless he had first discussed the matter with the court. On direct examination of the plaintiff by his attorney, it was brought out that in November, 1952, plaintiff had been seriously injured in an accident while working for defendant, as a result of having been knocked from the top of a car. Plaintiff testified that he received injuries to his back and ribs on the left side and had developed stomach trouble; that he suffered pain with these injuries for about four years, but that all of his previous injuries had healed except for the stomach condition which still bothered him. He testified he had been told that his previous injuries were going to be permanent. He also testified that approximately six months before the receipt of the present injury, he had sprained his right leg and knee, by stepping in a hole while employed as a switchman for the defendant, but that within a few days it had healed.

Upon cross examination, without objection, plaintiff admitted that he had claimed in the 1952 accident that he had sustained permanent injuries, and that he would never recover from the back injury, but that he had gotten over the injury hut did not know the date. He was then asked as to whether he had given sworn testimony in that case in Judge Snell’s Court. At this point counsel for the plaintiff objected to the violation of the motion and order in limine and moved for a mistrial. The court overruled the motion.

Eliciting testimony from the plaintiff that he had testified in court in connection with his 1952 injury, was no doubt a violation ■of the order of the court. The effect of such testimony was to show that the plaintiff had actually made a claim upon the previous injury and had filed a suit in court thereon. Counsel for the plaintiff did not, however, request the court to instruct the jury not to consider the testimony, but took the position then, that he does now, that the harmful effect of the testimony was such that it so prejudiced the jury that he should have been granted a mistrial. He contends that the harm was demonstrated by the fact that the jury failed to find in his favor on the issue of primary negligence and awarded what he considers to be an inadequate amount of damages. The fact that the jury did award some damages, would seem to indicate that even though the jury was informed that he had testified in court in regard to his 1952 injury, there was no prejudice on the part of the jury. If there had been prejudice, we think the jury would have more likely awarded no damages.

Liability in this case was predicated upon the proposition of whether or not defendant failed to use ordinary care in maintaining its track. In order to say that the conduct of counsel in eliciting this testimony before the jury, showing that he had had a prior lawsuit, probably caused the rendition of an improper judgment, we would first be compelled to conclude from a review of the record that but for the conduct and the testimony elicited, the jury would probably have answered the issue in such fashion as to impose liability on the defendant. We are not prepared to so hold. The deliberations of the jury in attempting to decide as to whether or not the defendant failed to use due care in maintaining its track would not, in our opinion, be affected by the fact that the plaintiff had testified in court on a previous claim. It is not enough to say that this testimony might have possibly caused the jury to have answered the issue contrary to his contention. Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596, 600; Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277, Rule 434, T.R.C.P.

By points ten and eleven, complaint is made to numerous other questions propounded to plaintiff by counsel for defendant concerning his 1952 injuries and what he claimed in connection therewith. Most of the questions and answers thereto went into the record without objection. In the presentation of these points, counsel does not refer to pages of the transcript where the supporting assignments may be found; nor are the “series of questions”, which are claimed prejudicial and harmful, brought forward in the brief. We think this fails to comply with Texas Rules of Civil Procedure, Rule 418(c), and would prevent our considering any error in connection therewith. Moreover, we think that if the interrogation of the plaintiff in connection with his previous claim had been so prejudicial as now complained of, counsel should, in addition to making a timely objection, have again moved for a mistrial; absent which, the error, if any was waived. Safety Cas. Co. v. Bennett, Tex.Civ.App., 259 S.W.2d 596.

Plaintiff contends by his twelfth point that the trial court erred in refusing to grant a new trial for the reason that the answer by the jury in Special Issue No. 5 in assessing $5,000.00 was so inadequate for the bodily injuries sustained by the plaintiff that the answer is so contrary to and against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. As pointed out herein-above, since the jury failed to find any act of primary negligence which would impose liability upon the defendant, we believe the jury’s answer to the damage issue becomes immaterial, and therefore, any discussion thereon would be purely academic. Shell Oil Co. v. Dennison, Tex.Civ.App., 132 S.W.2d 609; Garza v. San Antonio Transit Co., Tex.Civ.App., 180 S.W.2d 1006.

Point thirteen complains of the action of the court in overruling Plaintiff’s challenge for cause upon one of the prospective jurors, thus forcing plaintiff to take an objectionable juror. The question propounded the juror by plaintiff’s counsel was whether or not the juror’s experience in investigating accidents on behalf of the company he worked for might operate to the detriment and prejudice of plaintiff, to which the juror answered in the affirmative. As we read this juror’s testimony, he testified that the only reason that he said that his previous experience might operate to the detriment and prejudice of the plaintiff was because he felt that if there was any question raised as to his fairness, he wanted to disqualify himself. Upon being questioned by the court, he stated that was the reason he gave such an answer, and then affirmatively assured the court that his previous experience would not in any way affect his ability to he completely fair and impartial. A review of the jurors testimony compels us to conclude that a question of fact was presented to the trial court as to whether or not the juror could be said to have been biased or prejudiced. Although the juror testified that his previous experience “might” have some effect upon his verdict, he never at any time said it “would” affect his verdict. McBroom v. Brown, Tex.Civ.App., 277 S.W.2d 310; Swap Shop v. Fortune, Tex., 365 S.W.2d 151.

Furthermore, we think the error, if any, was harmless. No objection was made to any other juror during the trial and the challenged juror did not serve. After an adverse verdict, upon the hearing for a new trial, plaintiff for the first time made it known that one of the jurors who served at the trial was in fact objectionable. We think that in order to complain, plaintiff would be required to show that prior to the exercise of his pre-emptory challenges, he apprized the trial court that one of the jurors was obnoxious to him and that he would have challenged that juror had he not been forced to exhaust a challenge on an objectionable juror. Galveston, H. & S. A. Ry. Co. v. Keesey, 50 Tex.Civ.App. 463, 110 S.W. 170; Kansas City, M. & O. Ry. Co. of Texas v. Weaver, Tex.Civ.App., 191 S.W. 591.

The judgment of the trial court is affirmed.


author: NYE, Justice.

text:
    Florio R. ESPARZA, Appellant, v. Marla Emma V. ESPARZA, Appellee.
    No. 29
    Court of Civil Appeals of Texas. Corpus Cliristi.
    Aug. 27, 1964.

      John F. Dominguez, Weslaco, for appellant.
    Ramiro B. Martinez, of Rankin, Kern, Martinez & de la Garza, McAllen, for ap-pellee.
   NYE, Justice.

This is a divorce case. The trial court in a separate hearing determined that a common-law marriage existed between appel-lee Maria Emma V. Esparza and appellant Florio R. Esparza. Subsequently, a hearing was held on the issue of divorce, property rights, custody and child support of two minor children, a boy, Florio R. Esparza, Jr., and a girl, Guadalupe Esparza. The controlling issue in this case is the validity of the common-law marriage and the status of the minor children. For convenience, Maria Emma V. Esparza will be called Emma, and Florio R. Esparza will be called Florio, as the parties were referred to in the Statement of Facts.

In October, 1947, Emma married Federico Aleman. She separated from him about a year later, but did not divorce him until 1961. In 1950, she met Florio at a labor camp in Harlingén, Texas. Emma told Florio of her prior marriage, however, they commenced living together as husband and wife. Six months later they moved to Weslaco, Texas, where they lived until the filing of this suit, some eleven years later. In October, 1952, Emma gave birth to a boy, named by the parties, Florio R. Es-parza, Jr. In March, 1954, she gave birth to a girl. They named her Guadalupe Es-parza.

In January, 1956, Emma and Florio, as husband and wife, purchased a lot in Wes-laco, and built a small house on it, where they lived from that time until they separated. Subsequently, they purchased household furniture, appliances and two automobiles. Emma testified that she and Florio started living together with the understanding that they would marry as soon as it was possible for her to do so. She obtained a divorce from Aleman in January, 1961. She continued to live with Florio in the same house until the filing of this suit in June, 1962.

The trial court found that a common-law marriage existed between Emma and Florio; granted the divorce to Emma; awarded her the care, custody and control of the two minor children; ordered Florio to contribute to the support of said minor children in the amount of $75.00 per month until they reached the age of eighteen years; determined that the property acquired by the parties was community property ; ordered the house, the household furniture and appliances to be set aside for the use and benefit of Emma and the minor children; and divided the automobiles, one for Emma and one for Florio. Florio perfected his appeal to this Court, contending that there was insufficient evidence of a common-law marriage; that the court erred in holding that the minor children are the children of Florio; that the trial court erred in requiring Florio to support these minor children; and that the court erred in declaring the property, community property, and in setting aside the property for the use and benefit of Emma and the minor children.

The case was tried • before the trial court without a jury. There were no formal separately stated findings of fact and conclusions of law requested or filed. It is the duty of the Court of Civil Appeals,1 upon appeal from the judgment of the trial court, to uphold such judgment provided it can be done with any reasonable theory supported by evidence and authorized by law. The court’s judgment implies all necessary fact findings in support of the judgment, and in our review thereof, we must consider only that evidence most favorable to support such judgment and disregard that evidence which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Lamb v. Ed Mather, Inc., 368 S.W.2d 255 (Tex. Civ.App. 1963). The appellate court will presume that the trial court found all facts in favor of the judgment to be true and be bound by such findings, and will presume that the trial court accepted the prevailing party’s evidence as true. Rosenberg v. Levin, 181 S.W.2d 832 (Tex.Civ.App.1944 Wr.Ref.); Pasha v. Schell, 229 S.W.2d 818 (Tex.Civ.App.1950, Wr.Ref.W.O.M.).

With these sound principles of law in mind, our consideration of appellant’s points is limited to a consideration of the evidence confined to these principles. We have no difficulty in agreeing with that portion of the trial court’s implied findings that a common-law marriage existed, and the trial court’s decree of divorce. In order to constitute a valid common-law marriage it must be established that the parties: (1) entered into an expressed or implied agreement to become husband and wife; (2) that such agreement was followed by cohabitation as man and wife; and (3) that they held each other out professedly and publicly as husband and wife. Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, L.R.A.1915E 1 (Sup.Ct.1913); Cain v. Caine, 314 S.W.2d 137 (Tex.Civ.App. 1958); Rosales v. Rosales, 377 S.W.2d 661 (Tex.Civ.App.1964).

There is, of course, one additional fundamental rule: that in order-to establish any valid marriage, the parties must possess the capacity to marry, and there must be no legal impediment prohibiting the marriage contract. Our consideration for the establishment of the common-law marriage from the evidence must, therefore, be limited to those conditions giving rise to a valid common-law marriage after Emma’s divorce from Aleman in January, 1961.

The record shows: that when Emma and Florio commenced living together, it was with the understanding that as soon as she obtained her divorce from Aleman, she and Florio would be legally married; that the father of Emma, Santos Valdez, testified that Florio wrote him a letter when he first started living with Emma, asking permission from him to be Emma’s husband; that they cohabitated as husband and wife for a number of months after the divorce; that after the divorce Florio stated “Now we are really husband a wife;” that Florio admitted cohabitation with Emma in their house after the divorce; that witnesses Emma Ramos and Aurora Leal testified that Florio and Emma had represented themselves to the public and to them that they were husband and wife; and that witness, E. G. Henrichson, an attorney at law, testified that when they visited his office concerning the purchase of some real estate (a fifty-acre farm) after the divorce, they told him that they were husband and wife. The record further shows that Florio bought groceries for Emma and the children and paid the utilities; that prior to the divorce and for some months thereafter, Florio maintained a hospitalization policy naming Emma as his wife; that Florio gave Emma some money to obtain the divorce from Aleman; and that on one occasion Florio went with Emma to see the attorney about obtaining the divorce.

We hold that there was ample evidence of a valid common-law marriage existing between Emma and Florio after she obtained the divorce from Aleman. The evidence was also sufficient to grant Emma a divorce from Florio. In fact, Florio offered no evidence contradicting her on the divorce issue. Appellant’s points one and two are overruled.

We have a more difficult problem as to the status of the two minor children. Ap-pellee contends that Probate Code, Article 42, makes these two minor children the legitimate children of Emma and Florio. The portion of the article referred to reads as follows:

V.A.T.S., Probate Code, § 42:
“* * * [w] here aman, having by a woman a child or children shall after-wards intermarry with such woman, such child or children shall thereby be legitimated and made capable of inheriting his estate. The issue also of marriages deemed null in law shall nevertheless be legitimate.”

Appellee contends that since Florio and Emma had a defect in their marriage (the relationship which began in 1951 and prior to the birth of the children while Emma was married to Aleman) which was deemed null in law, the children are nevertheless the legitimate children of this marriage; or alternatively, where Florio having by Emma children and afterwards marries her (the common-law marriage after Emma’s divorce in January), such children are legitimated.

Appellee’s contentions are not well taken for two reasons: (1) the relationship of Emma and Florio prior to January, 1961, with knowledge by both of them of her prior legal marriage, was illicit and meretricious and not a marriage deemed null in law; (2) without competent evidence that the children were illegitimate when born during the time Emma was married to Aleman, they could not be made the legitimate issue of Emma and Florio by Emma and Florio’s subsequent marriage. V.A.T.S. Probate Code, § 42. 8 Tex.Jur.2d § S, p. 520.

Our State recognizes putative marriages which may be based on a common-law marriage. Hupp v. Hupp, 235 S. W.2d 753 (Tex.Civ.App.1950); Whaley v. Peat, 377 S.W.2d 855 (Tex.Civ.App. 1964 Wr.Ref. n. r. e.). The issue of a putative marriage (deemed null in law) are given the status of legitimacy. Boudreaux v. Taylor, 353 S.W.2d. 901 (Tex.Civ.App. 1962); Whaley v. Peat, supra. However, the purported marriage relationship must be contracted in good faith and in ignorance of some existing impediment on the part of at least one of the contracting parties to be a putative marriage. 25 Texas Law Review 685; Consolidated Underwriters v. Taylor, 197 S.W.2d 216 (Tex.Civ.App.1946, Wr.Ref. n. r. e.). Emma and Florio knew of her legal impediment and, therefore, their original purported common-law marriage relationship was void. It was no marriage at all. There being no marriage between the parties before the birth of the children, such issue are not legitimated by the provision in V.A.T.S. Probate Code, § 42, providing for the children to be legitimated if they are the issue of a marriage deemed null in law. United States Fidelity & Guaranty Co. v. Henderson, 53 S.W. 2d 811 (Tex.Civ.App.1932).

The other part of the quoted section from Article 42 of the Probate Code which provides that where a man and woman have children and thereafter marry, such children shall thereby be legitimated, presupposes that the children are the illegitimate children of the parties to such subsequent marriage. This makes available to the parties the means of legitimating a meretricious relationship. Defferari v. Terry, 128 Tex. 521, 99 S.W.2d 290 (Com. App.1936, Opinion adopted by Supreme Court); Boudreaux v. Taylor, supra; James v. James, 253 S.W. 1112 (Tex.Civ. App.1923, Wr.Ref.); Martin v. Cameron County Child Welfare Unit, 326 S.W.2d 31 (Tex.Civ.App.1959, Wr.Ref. n. r. e.), 160 Tex. 274, 329 S.W.2d 83. The essentials to legitimating in such cases are paternity and the actual subsequent marriage of the parents. 8 Tex.Jur.2d § 6, p. 522. Here the parties were subsequently married, but the question before us is: was there sufficient competent evidence that the children were the illegitimate issue of Florio and Emma?

Florio admits that he is the father of these children, Florio R. Esparza, Jr., and Guadalupe Esparza, He stated on cross-examination :

“Q * * * you were living with her (Emma) and sleeping with her?
“A Yes.
“Q And both children (Florio R. Esparza, Jr. and Guadalupe Esparza) were conceived by you and her?
“A Yes.
“Q They were conceived by both you and her?
“A Yes.”

However, Florio contends that since the children were born while Emma was lawfully married to Aleman, he is not liable for their support and the court erred in setting aside his portion of the property for their use and benefit. The decree of divorce between Emma and Aleman is not in the record before us. However, appel-lee stated in her brief, without challenge, that said minor children are not mentioned in such decree.

Emma testified that she did not know the whereabouts of Aleman; that Aleman never did visit her or the children; that all during the time that she lived with Florio, she never had intercourse with Ale-man; and that the two said minor children were born to her while living with Florio as a result of sexual intercourse that she had had with Florio and not by intercourse with anyone else. The trial court erred in permitting Emma to so testify, as such testimony contravenes the well-established rule that prohibits a wife from testifying to facts that will tend to bastardize the children or to show non access to her legal husband. McCormick & Ray, Vol. 1, § 90, pp. 110-113, 8 Baylor Law Review, p. 110; 8 Tex.Jur.2d § 8, p. 523.

It is universally conceded that a child born in lawful wedlock is presumed to be the legitimate child of the husband and wife. This presumption of legitimacy is one of the strongest known of the law. Byrd v. Travelers Insurance Company, 275 S.W.2d 861 (Tex.Civ.App.1955, Wr.Ref. n. r. e.). To bastardize a child born during lawful wedlock, the most clear and convincing evidence of non access is required. Pinkard v. Pinkard, 252 S.W. 265 (Tex.Civ.App.1923). The declarations of the mother that she did not have sexual intercourse with the legal husband, or a showing of non access, cannot be received for the purpose of assailing the legitimacy of the child. This presumption of legitimacy, however, may be refuted. Other persons are permitted to testify as to non access or illegitimacy. McCormick & Ray, Vol. 1, § 90, pp. 110-113. The statement by Florio that the children were conceived by him is admissible as a showing of circumstances of non access. However, this statement standing alone is not sufficient under the law as it exists in Texas. There must be some competent evidence other than the testimony of Emma, as she is disqualified to testify to non access or illegitimacy. Until this is shown by a preponderance of the evidence, Florio has no legal obligation to support the minor children. Lane v. Phillips, 69 Tex. 240, 6 S.W. 610, 6 Baylor Law Review, 1073. Appellant’s points 3 and 4 are sustained.

If, upon another trial, it is shown that Emma and Florio are the parents of said minor children, by proof of non access by Aleman, or other competent evidence, the subsequent valid marriage of Emma and Florio will make said children the legitimate children of Emma and Florio. On the other hand, if such proof fails, the presumption must continue that they are the legitimate children of Emma and Ale-man.

It was undisputed that the house and lot were acquired by the parties during the period when they were not capable of marriage to each other. Only property acquired during marriage and held at its termination is community property. 12 Tex.Jur.2d § 1, p. 212 (see cases cited therein.). The title to the house and lot is in the name of both parties. It then follows that they are joint owners and the amount that each party contributed will have to be determined before a division or disposition of the property can be made. See Estapa v. Saldana, 218 S.W.2d 222 (Tex.Civ.App.1949, Wr.Ref. n. r. e.). We are of the opinion that the judgment of the trial court is erroneous in so far as it declares the property to be community property. Appellant’s fifth point is sustained.

The issues respecting the status of the children, the estate of the parties and the division thereof, are severable from the decree of divorce adjudicated by the trial court. T. R. C. P., Rule 434; Pritzen v. Pritzen, 197 S.W.2d 363 (Tex.Civ.App.1946); and the cases cited therein; Powell v. Powell, 199 S.W.2d 285 (Tex.Civ.App.1946); Mathews v. Mathews, 292 S.W.2d 662 (Tex.Civ.App.1956); Hursey v. Hursey, 165 S.W.2d 761 (Tex.Civ.App.1942, Wr.Dis.). In view of our holding herein, a new trial will be required for a determination of the status of the two minor children and the property rights of the parties. The determination of the status of the minor children will dispose of the question of whether Florio will be required to support them. That portion of the judgment awarding Emma a divorce must be affirmed. Appellant’s other points need not be considered in view of our holding.

Affirmed in part, and reversed and remanded for new trial in part.