author: . PARKER, Justice.

text:
    OKLAHOMA FURNITURE MANUFACTURING COMPANY et al., Appellants, v. Harley HUFF et ux., Appellees.
    No. 6897.
    Court of Civil Appeals of Texas. Beaumont.
    April 20, 1967.

      Orgain,. Bell & Tucker, Beaumont, for appellants.
    Barber, Seale & Stover, Jasper, for ap-pellees.
   . PARKER, Justice.

This is a common law damage suit brought by Harley Huff and wife, Betty Huff, against Oklahoma Furniture Manufacturing Company and Melvin Lee Taylor resulting from an automobile-truck collision occurring December 14, 1965. On a judgment based on a jury verdict, the damages awarded were $1,000.00 for Harley Huff’s personal injuries, $4,000.00 for Betty Huff’s personal injuries and $616.23 for automobile damages. No appeal is taken as to the item of automobile damage. The parties will be designated plaintiffs and defendants as in the trial court.

Mrs. Betty Huff was six months pregnant at the time she was injured in this collision. After the wreck her stomach, knee and wrist hurt. Because of her condition of pregnancy, she was most concerned about her stomach. This was her first pregnancy. In a week or so her stomach ceased to trouble her. In a short period of time her knee ceased to pain her. Her whole hand was numb and she experienced difficulty using her fingers. This was the right hand. This trouble with the wrist, hand and fingers continued some three months, accompanied by pain. On the right wrist was a deep bruise and a cut. During this three month period she tried to keep house for herself and her husband although handicapped by the injury to her right wrist, numbness in the arm and trouble with her fingers. In due course she had her child with a normal birth. At that time she had recovered from injuries received in this accident. Both Harley Huff and his wife were most alarmed about the fact that his wife was six months pregnant. Naturally, they were worried and experienced mental anguish as to the possibility of injury to the baby.

Harley Huff was hurting all over after the accident. The doctor taped his ribs and placed a corset affair on him to keep him from moving and bending. After the loss of one day’s work, Huff went back to work, wearing his corset arrangement for three weeks to a month. He was sore, stiff and spitting up blood on occasions. It was almost impossible for him to work but having no other source of income he did work. He was affected by the injuries he received in the wreck for 3 to 4 months. These injuries during the three month period prevented him from making overtime which he would have made but for his injuries. Harley Huff testified:

“Q. Did — did this injury affect your being able to work as much overtime as you would have liked to work?
A. I couldn’t have made sixteen hours-of the same stuff after the wreck happened.
Q. What I’m saying, did you miss some overtime you might could have gotten to-work?
A. Yes, sir, I turned down a lot.”

Also Betty Huff testified:

“Now, during the period of this three to' four months when he was still having-pain, did he complain to you of having pain * * *
A. Yes, sir.
Q. —when he was having pain ? When he would have to get up and go to work did he complain to you of the pain he was having but he had to go to work anyway ?
A. Yes, sir.
Q. And as you say, this was your only source of income?
A. Yes, sir.”

Harley Huff was employed by East Texas Pulp & Paper Co. He was a shiftworker. He had earned as much as $299 a payday, including overtime, being paid every two weeks. His hourly wage was $2.29½. For overtime, he was paid time and one-half. During the four months after his injury, he made $165 a payday without any overtime.

In answer to special issue 15 the jury found that $4,000.00 would fairly and reasonably compensate the plaintiffs for the damages sustained by Betty Huff in the collision. In answering this special issue the jury was instructed as follows:

“In answering this special issue you may take into consideration these elements of damages, and none other:
“(a) The physical pain and mental suffering, if any, sustained by the plaintiff Betty Huff from the time of the collision to the date of trial, proximately caused by the collision in question.
“(b) The diminished ability to perform household duties, if any, sustained by the plaintiff Betty Huff from the time of the collision to the date of trial, proximately caused by the collision in question.”

Defendants excepted and objected to special issue 15 and especially paragraph (b) because: “(1) There is no pleading to support the submission of such element of damages; and (2) There is no evidence of any diminished ability of Betty Huff to perform her household duties from the time of the collision to the date of the trial.” Defendant asserts error in allowing the jury to consider Betty Huff’s loss of ability "to perform household duties since there was mo evidence to raise such loss. It is a matter of common knowledge that household duties require the use of arms and fingers. Such handicap in performing the household duties was not a substantial element of damages by reason of Betty Huff’s injuries but there is evidence of her diminished ability to perform household duties. Considering the evidence most favorable to the finding of the jury, this point of error is overruled.

Defendants also urge there was no evidence of any loss on the part of Harley Huff of his earning capacity. As part of the damage issue as to Harley Huff, complaint is made of the instruction authorizing the jury to consider:

“(b) The diminished earning capacity, if any, sustained by the plaintiff Harley Huff from the time of collision to the date of trial, proximately caused by the collision in question.”

Defendants objected to same as follows:

“Defendants except and object to Special Issue No. 14 and especially paragraph (b) since there is no pleading to support the submission of such element of damage and there is no evidence in the record of any diminished earning capacity or loss of earnings on the part of Harley Huff.”

Considering the evidence most favorable to the finding of the jury, this point of error is overruled.

Defendants’ other points of error assert: The award of damages to Mrs. Betty Huff was grossly excessive as a matter of law and should be set aside or a re-mittitur ordered; the jury’s answer as to damages to Betty Huff were of such magnitude and excessive that it was a result of passion or prejudice and was clearly the result of a complete disregard of the evidence and should be set aside or a re-mittitur granted; the award of $1,000.00 damages to Harley Huff was grossly excessive as a matter of law and should be set aside or a remittitur ordered; and the jury’s answer to special issue as to Harley Huff’s damages was so excessive that it was the result of passion or prejudice and was clearly the result of a complete disregard of the evidence and should be set aside or a remittitur granted.

This court is required to exercise “its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation” and apply the rule set forth in Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993, 994 (1916), which was re-affirmed in Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959).

Having considered the evidence and judgments in similar cases, this court does not consider the judgment excessive as to any item. All of defendants’ points of error are overruled.

Judgment of the trial court affirmed.


source: Caselaw Access Project

author: GREEN, Chief Justice.

license: Public Domain

text:
    L. J. BESEDA, Appellant, v. TRANSAMERICA INSURANCE COMPANY, Appellee.
    No. 282.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 20, 1967.
    Rehearing Denied May 11, 1967.

      Francis I. Gandy, Jr., of Butler, Schraub & Gandy, Corpus Christi, for appellant.
    James C. Watson, of Keys, Russell, Watson & Seaman, Corpus Christi, for appellee.
   OPINION

GREEN, Chief Justice.

This is a Workmen’s Compensation Case, wherein appellant sought to recover for total and permanent incapacity allegedly resulting from a back injury sustained while engaged in the scope of his employment as a carpenter. From a take-nothing judgment based on a jury verdict, plaintiff appeals.

The evidence raises sharp fact issues as to whether appellant suffered disabling injury to his back as alleged and testified to by him. Appellant’s medical witness Dr. Sharp, who treated appellant over a period of several months prior to the trial, expressed the opinion that appellant had a disabling protruding intervertebral disk caused by the injury of September 27, 1963, complained of. Appellee’s medical witnesses Dr. Barnes and Dr. Isensee each testified that in their opinion appellant did not have a ruptured or protruded disk, and that his complaints of low back pain were due to degenerative changes and aging processes, (he was 59 years old at the time of the trial in February, 1966) and that he was physically able to do the work of a carpenter. Dr. Barnes stated that any disability which appellant may have sustained as a result of the September 23, 1963 incident would last not over a few months.

In answer to special issues, the jury found that appellant sustained an accidental personal injury to his body on or about September 27, 1963, while in the course of his employment; that he sustained total incapacity after September 27, 1963, but the answer was “No” to Special Issue No. 5 inquiring whether they found from a preponderance of the evidence that the accidental injury, if any, of September 27, 1963, was a producing cause of such total incapacity, if any. The jury likewise found that appellant sustained partial incapacity after September 27, 1963, but again, in answer to an issue whether from a preponderance of the evidence they found that the accidental injury, if any, of September 23, 1963 was the proximate cause of such partial incapacity, if any, the jury said “No.” Special Issue No. 14 was as follows:

“Do you find from a preponderance of the evidence that plaintiff’s incapacity, if any, was not caused solely by arthritis or by one or more of the injuries sustained by plaintiff on or about January 8, 1940, or the automobile accident of June, 1964, or by a combination of arthritis and one or more of said injuries, and not having been aggravated by the injury, if any, sustained by plaintiff on or about September 27, 1963?”

To this, the answer was “It was solely caused.”

By his fifth and sixth points, appellant seeks a reversal on the grounds that the court excluded evidence by way of explanation of his continuing to work for a period of between three and four weeks after his alleged injury of September 27, 1963.

Appellant testified that he was injured while working as a carpenter on a scaffold. A heavy board slipped over the side of the scaffold while he had hold of one end, and in order to prevent it from falling on a coworker below, he held on to it. In doing so, he felt his back pop, and felt pain in his lower back. It being about 4:15 P.M., just before quitting time on a Friday, he quit work and went home for the weekend. Although his back was troubling him, he came back to work the next Monday, and, after reporting the incident to his foreman, continued on the job for each working day of the next three weeks, receiving treatments from a doctor for his back during his lunch hour of the third week. The doctor placed him in a hospital from October 23 to October 29, 1963, where he was placed in traction and received heat treatments. After being released from the hospital he went back to the job for four days, doing lighter work, after which he was laid off. He would have continued on the job if permitted to do so. He has not worked since.

Appellant argues that he worked after his injury only by reason of economic urgency. Appellee seeks to avoid this explanation by relying upon an admission of hardship. Appellee during the trial stipulated all matters pertaining to appellant’s right to recover in a lump sum any compensation benefits to which he might have been entitled, and says that since appellant did not work regularly after his claim of injury, the period that he did work thereafter from September 27, 1963, to November 7, 1963 was too brief to have any probative value that appellant worked only because of the whiplash of economic necessity.

Appellee cross-examined appellant before the jury at considerable length concerning the fact that he returned to work the Monday following his injury, taking the employment week by week, and day by day, showing the strenuous nature of the work he performed. The purpose of this, as stated by appellee in its brief filed in this Court, (p. 16) was “to show that in fact appellant did not sustain any injury of the job for which compensation benefits were payable in this suit.” Appellant thereafter offered evidence that, though he was hurting at the time, he went back to work because he had bills to pay, monthly installments to meet, taxes past due, children in school, car payments to make, and that the insurance company stopped his compensation payments after two weeks, and that he had to make a living. The trial court sustained an objection to this offered evidence, and we quote his ruling as follows:

“THE COURT: All right. You asked for a stipulation in the beginning if he recovered, you would receive a lump sum, which puts this out the window. He did testify previously about how he did hurt while he was working, which he had a right to do, that’s as far as I could let you go in showing that, he has already shown it, and you don’t have to go back into it.
MR. GANDY: I ask the Court to reconsider. Will you allow this evidence to be introduced?
THE COURT: No, because it is just for prejudice and sympathy at this time. You asked for a stipulation and you received it from opposing Counsel at the time. Do you have any questions of this witness ?
MR. WATSON: No, sir.
THE COURT: All right, that’s all, you may step down.”

The trial court erred in denying to appellant the right to explain to the jury his reasons for returning to work after he sustained his injury. Muro v. Houston Fire and Casualty Insurance Co., Tex.Civ.App., 310 S.W.2d 420, writ ref. n. r. e.; same styled cause after retrial, Tex.Civ.App., 329 S.W.2d 326 writ ref. n. r. e.; Texas Employers Insurance Association v. Tijerina, Tex.Civ.App., 354 S.W.2d 194, writ ref. n. r. e.; Coal Operators’ Casualty Company v. Holloway, Tex.Civ.App., 398 S.W.2d 421, writ ref. n. r. e.; Argonaut Insurance Company v. Shawver, Tex.Civ.App., 375 S.W.2d 510, writ ref. n. r. e.; Transport Insurance Company v. Nunn, Tex.Civ.App., 375 S.W.2d 484, writ ref. n. r. e. We are of the opinion that such error is sufficiently prejudicial to the rights of appellant to require a reversal of the judgment.

We feel that the following language quoted from the opinion of Judge Pope, then of the 4th Court of Civil Appeals, in Muro v. Houston Fire and Casualty Insurance Company, 310 S.W.2d at page 424, is very appropriate to the present case:

“Defendant, in proving the nature and extent of employee’s employment after the injury, was proving to the jury that the extent and duration of the injuries were not as the employee claimed. The proof related to issues different from the lump sum and accelerated payment. Employee offered to explain that he worked to support his family at a time when he was not physically able to do so, when he was hurting and in pain, and because he needed the money, and that situation existed on each of the jobs that he held. The essence of employee’s explanation is that he was forced to work even though he was disabled. When the court excluded that evidence, employee excepted to the exclusion, and again renewed his objection to the order of the court following the original admission of hardship.
“Defendant, by admitting hardship which would permit a lump sum payment in the event it lost the case, then used the admission of hardship as a means to defeat the case itself. The admission was for the purpose of avoiding one issue, but it was used to permit the defendant to deny the extent and duration of the injury without an opportunity by employee for explanation. In our opinion, this was error. The extent and kind of evidence produced by the defendant to prove employment, when unexplained to the jury, in our opinion, resulted in prejudice. * * * ”

Appellant’s fifth and sixth points are sustained.

Appellant’s fourth point of error complains of the action of the trial court in permitting appellee to read in evidence allegations of appellant’s petition in an earlier suit on a different cause of action wherein appellant claimed total and permanent incapacity from injuries to the lumbar area of his back. The rule is well established that pleadings in other actions which contain statements of facts inconsistent with the party’s present position are receivable in evidence as admissions. St. Paul Fire & Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744, 747; Hartford Accident & Indemnity Co. v. McCardell, Tex.Sup.Ct., 369 S.W.2d 331. However, the mere fact that plaintiff filed the suit, the amount of money sued for and the claim in the petition that the incapacity of plaintiff is total and permanent (held to be a mere prediction, not a fact allegation) are not admissible for impeachment, and are irrelevant to any other issue of the case, where properly objected to. St. Paul Fire & Marine Insurance Co. v. Murphree, supra; Hartford Accident & Indemnity Co. v. McCardell, supra; Aetna Casualty & Surety Company v. Depoister, Tex.Civ.App., 393 S.W.2d 822, 831, writ ref. n. r. e. Appellant’s only objection to the introduction before the jury of the portion of the petition was that (1) the proper predicate had not been laid, (2) it was immaterial as to the disabilities plaintiff sustained in the accident, and (3) no causal connection or anything like that. No request was made that the allegation of total and permanent disability be eliminated. The court did not err in overruling the objections made. Haywood v. Texas Employers Insurance Association, Tex.Civ.App., 383 S.W.2d 866, 869(3).

The matters raised by appellant’s first, second and third points concerning alleged jury misconduct will probably not occur on a second trial of this cause, and need not be considered.

Reversed and remanded.


author: FANNING, Justice.

text:
    Luther J. QUALLS, Appellant, v. Byron E. MILLER, Appellee.
    No. 7803.
    Court of Civil Appeals of Texas. Texarkana.
    April 11, 1967.
    Rehearing Denied May 9, 1967.
    W. James Kronzer, Brown, Kronzer, Abraham, Watkins & Steely, Kenneth D. Harrison, John C. Werner, Miller & Gann, Houston, for appellant.
    Blake Tartt, Fulbright, Crooker, Freeman, Bates & Jaworski, Howell E. Stone, Talbert, Giessel, Barnett & Stone, Houston, for appellee.
   FANNING, Justice.

Plaintiff Qualls sued defendant Miller for damages for personal injuries sustained by Qualls on Jan. 14, 1964, when his automobile was struck from the rear by an automobile operated by Miller. The case was tried to a jury. The jury convicted defendant Miller of negligence in causing the collision and found that such negligence was the proximate cause of such collision. The jury acquitted plaintiff Qualls of any contributory negligence. The jury further found that the subject collision was the direct and proximate result of physical injuries to plaintiff Qualls. Special Issue No. 14 and the jury’s response thereto, and the trial court’s instructions and definitions given therewith are found below.

Appellant’s original brief presents five points of error. In his reply brief he has narrowed down his points to four. Appellant by point 1 contends that there is no credible evidence that the jury awarded any sum of money for the general elements of damages.

Special Issue No. 14 submitted the elements of damages generally and the jury answered the general issue with the amount of $1,200.00. The appellant produced evidence from three jurors, including the foreman, by which he sought to show that the jury awarded $1,100.00 for past medical expenses and $100.00 for “pills” in the future, and that the jury did not award him anything for the elements of damages (c), (loss of earnings from Jan. 14, 1964 to date of trial), (d) (diminution of future earning capacity), (e) (such physical pain and mental anguish, if any, suffered by Qualls from Jan. 14, 1964 to date of trial), and (f) (such physical pain and mental anguish, if any, which Qualls would in reasonable probability suffer in the future).

We have carefully examined the testimony of the three jurors and have reached the conclusion that while the evidence of such jurors strongly preponderates in favor of the view of appellant in his contention that the jury did not award plaintiff anything for the elements of damages (c), (d), (e), and (f), however, we are not prepared to say as a matter of law that the record conclusively shows that the jurors did not award any sum of money for damage elements (c), (d), (e), and (f). If the damage issues had been submitted separately and if the jury had found “none” with respect to damage element (e) (past physical pain and suffering etc., suffered by Qualls), we think that such an answer would have been contrary to the evidence inasmuch as the jury, upon ample evidence, found by Issue 13 that the subject collision was the direct and proximate result of physical injuries to plaintiff Qualls. Mr. Qualls testified positively as to his past pain and suffering and was corroborated in this respect by his wife’s testimony. Furthermore, the existence of physical pain and suffering may be presumed in cases where it is a natural consequence of an injury such as was received by the appellant here. In this connection see English v. Hegi, Tex.Civ.App., 337 S.W.2d 860, no writ (1960), and Texas & P. Ry. Co. v. Curry, 64 Tex. 85 (1885). If, as above stated, the issue as to element (e) (past pain and suffering) had been separately submitted and had been answered “none”, this court under this record would have no difficulty in reversing and remanding this cause for that reason alone under the authority of Bolen v. Timmons, Tex.Civ.App., 407 S.W.2d 947, no writ (1966), and authorities cited therein, and under authority of the recent case of Taylor v. Head et ah, 414 S.W.2d 542 rendered April 4, 1967.

However, this case is different from the Taylor v. Head case above referred to in that here the various damage elements were not separately submitted but were submitted all in one issue. While we are of the view that we can not sustain appellant’s first point as a matter of law under the posture that the same is shown by the record here, and we overrule appellant’s first point, nevertheless we think appellant’s second point is his reply brief is well taken and should be sustained.

Appellant’s said second point reads as follows:

“Regardless of whether the record conclusively demonstrates that the jurors did not award any sum of money for the general damage elements, a new trial should be granted because the damages awarded are clearly inadequate and the finding of the jury in response to Special Issue No. 14 is so against the great weight and overwhelming preponderance of the evidence as to be clearly wrong and unjust.”

Rule 328, Texas Rules of Civil Procedure provides, inter alia, that: “New trials may be granted when the damages are manifestly too small or too large. * * * ”

In Bolen v. Timmons, Tex.Civ.App., 407 S.W.2d 947, no writ (1966), it was stated in part as follows:

“ * * * The Dallas Court of Civil Appeals in Berry v. Lowery, Tex.Civ.App., 266 S.W.2d 917, 921 has quoted with approval the following statement:
‘ “* * * though the amount of damages is ordinarily left to the discretion of the jury under the evidence before them, yet they cannot ignore the undisputed facts and arbitrarily fix an amount neither authorized nor supported by the evidence. (Citing cases) In the instant case the verdict was manifestly wrong under the evidence, and the court should have granted a new trial.” ’
“The Supreme Court of Texas in the same case (Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795, 1954), after granting a writ, held: ‘The answer of the jury that she suffered no damages is not only unsupported by any evidence, but is directly contrary to all the evidence.’ Exactly the same may be said to be true in the instant case.
“Appellee seeks to distinguish the instant case from Lowery on the theory that the child in that case suffered un-unquestionably serious injuries. We do not believe a quantitative basis is a fair ground upon which to distinguish the cases, where all the evidence shows Harold did suffer physical pain and at least some mental anguish as a result of the rear-ending. It is ordinarily the prerogative of a jury to set the amount of damages but they have no authority to completely ignore the undisputed facts and arbitrarily fix an amount neither authorized nor supported by the evidence. Berry v. Lowery, supra.
“The judgment of the trial court is reversed and remanded.” (interpolation ours)

In Edmondson v. Keller, Tex.Civ.App., 401 S.W.2d 718, no writ (1966), it was stated in part as follows:

“The finding of the jury of no damages for past and future pain and suffering and mental anguish was against the great weight and preponderance of the evidence because the undisputed evidence shows that the plaintiff • sustained substantial injuries or in any event some damages.
“As a result of the collision plaintiff was thrown from the car and onto the highway in an unconscious condition, and was treated by Dr. Sewell in his hospital in Belton for a few days and then taken to a hospital in Seguin for further treatment. The evidence as to her injuries and the medical treatment was fully detailed on the trial and there is no useful purpose in reviewing such in further detail here.
“The answer of the jury that plaintiff suffered no damages is directly contrary to all of the evidence. Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795; Floyd v. Organ, Tex.Civ.App., 359 S.W.2d 190, n. r. e.
“The amount of damages is largely within the jury’s discretion. However, they must award something for every element of damage resulting from an injury. Evers v. Langerhans, Tex.Civ. App., 122 S.W.2d 208, n. w. h.; Clark v. Spurdis, Tex.Civ.App., 258 S.W. 881, error dism. * * * ”

The statement of facts in this case contains 323 pages. Plaintiff-appellant presented the testimony of plaintiff Qualls, Mrs. Luther J. Qualls, Frank F. Parrish, M.D., David J. Braden, M.D., Doyle Edwin Neal, Thomas H. McGuire, M.D., and the testimony of defendant-appellee Miller under the adverse witness rule, in the trial of the cause. Defendant-appellee in the trial introduced in evidence a written report of Dr. Ed Fountain, M.D., which was read in evidence, and also read into the record the docket sheet showing various dates of previous settings of the case. On the motion for new trial plaintiff-appellant introduced in evidence the- testimony of jurors Boyce, Hawkins and Eckhardt. The above referred to matters constituted all of the evidence introduced in the trial both on the merits and on the motion for new trial.

Appellant Qualls was 54 years old at the time of the collision in question and had a life expectancy of 20.55 years. He had a sixth grade education and was a welder and electrician. While stopped in his car behind a line of traffic waiting for a traffic signal he was struck from the rear by the automobile being driven by defendant-appellee. The force of the collision wedged Mr. Qualls between the steering wheel and the door of his car with his head and neck against the windshield. As hereinbefore stated the jury found that the collision proximately caused physical injuries to Mr. Qualls. Mr. Qualls testified in great detail as to his back and neck being injured and his pain and suffering, as well as to his medical treatment and drugs prescribed and taken, (which other evidence shows that same were reasonable and necessary), and testified in detail as to other factors relating to damages with respect to the other elements of damages claimed by him and submitted by the court in Special Issue No. 14.

Following the collision Mr. Qualls was treated by Dr. Frank Parrish, M.D., an orthopedic surgeon; Dr. Parrish x-rayed Mr. Qualls, placed him in traction for about two months after the initial examination and for an additional two months about a year later. Mr. Qualls had seen Dr. Parrish about ten times since the collision at the time of the trial and was still under Dr. Parrish’s care at the time of the trial.

Mr. Qualls was also treated by Dr. Bra-den, an internist; had seen him about 16 times by the time of the trial, and he was still under his car at the time of the trial. Mr. Qualls further testified that he was taking nine pills per day in treatment of his injuries, all prescribed by Dr. Braden, (which the evidence showed cost him from about $1.00 to $1.50 per day), and that without the pills he “couldn’t go.”

Mr. Qualls also saw Dr. Fountain, a neurosurgeon, one time for examination, and Dr* Thomas McGuire, also a neurosurgeon, two times for examination.

Mr. Qualls testified that he earned $9,-200.00 in 1964 and $12,500.00 in 1965, but that he could have earned more money if he had not been injured and that he was limited as to how much he could lift, climb and pull, and that he had only been able to climb with the medical assistance (pills) that he had been receiving for the past two years. He further testified that he had not been able to do yard work since the collision because any stooping position created a tremendous pain in the low back, in the back of his neck and in between his shoulder blades. Regarding his work Mr. Qualls testified that because work was so plentiful he was able to choose light work, and that in this respect he had been helped by his union brotherhood. He said if a particular job got too tough for him he would quit and find a job affording lighter work and that he refused to do some jobs because they were hazardous to him in the light of his condition, and that his refusal resulted in his being fired on two different occasions. Mr. Qualls also testified that he quit a job on Dec. 16, 1965 because the job was too tough for him, and that he did not go back to work until about a month later, on Jan. 11th or 12th, of 1966, and that thereby he lost earnings — which loss, according to his 1965 earnings, would be approximately $1,000.00 loss.

Dr. Parrish had performed a back operation on Mr. Qualls in 1957, but he was released six weeks after the operation and allowed to go back to work. Mr. Qualls further testified to the effect that he was thereafter able to perform his work without any further complications and Dr. Parrish’s assistance was not again needed until 1962, when Dr. Parrish treated him for a broken leg. Mr. Qualls testified that after his leg healed and he recovered from a lung condition caused by a blood clot in his lung which hospitalized him in 1962, he was able to do his work as an electrician and welder satisfactorily and that he did not have to see Dr. Parrish again for any reason until after the collision in question of Jan. 14, 1964.

Mrs. Qualls’ testimony was to the effect that after the collision Mr. Qualls has had trouble sleeping, that she has observed him appearing to be in pain; that he had to roll out of bed in the morning as opposed to getting up directly because of the stiffness in his back; that he takes four kinds of medications daily; that since the collision she has had to put Mr. Qualls’ footwear on when he wore shoes with laces in them; that subsequent to the collision Mr. Qualls had been extremely nervous and high tempered, that he took at least six pills per day; that he had been very congenial and easy to get along with prior to Jan. 14, 1964.

Doyle Edwin Neal, a construction electrician who had worked with Mr. Qualls in construction, and testified that he had observed Mr. Qualls’ work in 1948, 1949, 1955 and 1961, and that on all such occasions Mr. Qualls performed the duties of a welder-electrician satisfactorily, which is ordinarily heavy work, that he next came in contact with him in February, 1965 on a job where he was general foreman, and that after observing Mr. Qualls he made him a foreman on the job after about thirty days because Mr. Qualls was not able to perform the work that an average journeyman wireman was performing, and thus gave him lighter work because he was unable to do heavy work, and that even as a foreman Mr. Qualls needed close supervision, but that with the close supervision given him, Mr. Qualls was able to do his job as foreman, which was lighter work.

Dr. Parrish, an orthopedic surgeon (whom defendant-appellee stipulated was an eminently qualified orthopedic surgeon) testified to the effect that he operated on Mr. Qualls’ back in 1957 and removed a ruptured disc at the L-4 L-5 level; that Mr. Qualls recovered from such operation in a short time and returned to work; that in 1962 he treated Mr. Qualls for a broken leg; that he next saw Mr. Qualls on January 29, 1964, at which time he complained of back pain and an aching in his left leg; that certain movements made during the course of his examination of Mr. Qualls produced pain in his back and that since that time he had continued to follow Mr. Qualls with complaints referable to his back; that in his opinion, based on reasonable medical probability, the automobile accident in question was the cause of Mr. Qualls’ condition and that in his opinion, based upon reasonable medical probability, Mr. Qualls would have to have a bone fusion operation on his back at the L4 L5 level; that a bone fusion is a painful operation; that as a result of the operation, Mr. Qualls could probably do some light work within three months thereafter, but that “as far as any great strain on his back that he might do, heavy lifting or a lot of pulling heavy objects, he might be off 8 months to a year”; that his fee for the operation would be about $600.00, and that the hospital charge would be about $500.00, which charges were reasonable and customary charges; and that he never on any occasion doubted anything Mr. Qualls told him during the course of his examination and treatment of Mr. Qualls. On cross-examination Dr. Parrish testified that he found some osteoarthritic changes in Mr. Qualls’ neck which produced pain, but that he has never recommended that Mr. Qualls have an operation on his neck and that in his opinion Mr. Qualls did not have a herniated disc in his neck as a result of the accident.

Dr. David Braden, an internist, as appellant’s witness, testified to treating Mr. Qualls for a blood clot in his left lung in 1962, that he recovered from such condition, that he gave him a check-up in 1963 and found him suffering from abnormal high blood pressure at that time; that he put him on Diuril, a blood pressure lowering medication; that he next saw him in 1963 and found that his blood pressure without control by medications was then good; that he next saw Mr. Qualls on Jan. 24, 1964, when Mr. Qualls told him about the automobile collision of Jan. 14, 1964; that upon examining Mr. Qualls he found his blood pressure elevated considerably, and that in his opinion, based on reasonable medical probability, the accident placed sufficient stress upon Mr. Qualls to produce this blood pressure elevation; that he put Mr. Qualls back on Diuril, prescribed a soma compound for his headache; and prescribed other medications such as aventil and librium; that he prescribed 8 or 9 pills per day in treatment of Mr. Qualls’ condition, which pills cost from $1.00 to $1.50 per day (which charges were reasonable and customary) ; that in his opinion, based upon reasonable medical probability, Mr. Qualls’ blood pressure problems are permanent and that he would continue to need the medication afforded by the prescribed pills.

Dr. Thomas McGuire, a neurosurgeon, as appellant’s witness, testified to the effect that after examination of Mr. Qualls on March 25, 1965, he found numbness over the right arm and over the left leg as compared to the other extremities, and that based on his examinations and on reasonable medical probability, he was of the opinion that Mr. Qualls had a sprain to his neck as a result of the automobile accident in question, but he could not say in reasonable medical probability whether or not Mr. Qualls’ condition would be temporary or permanent.

Defendant-appellee read into the record Dr. Edmund F. Fountain’s Feb. 24, 1965, medical report concerning Mr. Qualls. Dr. Fountain, a neurosurgeon, directed the report to Dr. Parrish. Pertinent portions of said report are bound below. Defendant next introduced in evidence the docket sheet of the case showing the various settings of the case.

Plaintiff’s evidence showed past medical and drug bills, with the drug bills being very substantial; the evidence showed that plaintiff was placed on medication on or about Jan. 24, 1964 and continued thereon (with a few weeks intermission) until the date of trial, which was April 19, 1966, and the testimony showed that the reasonable cost of such medication was from $1.00 to $1.50 per day. Plaintiff’s evidence as hereinbefore outlined also showed that in reasonable medical probability that plaintiff’s future medical, hospital and drug bills would be substantial. As we view this record, under the great weight and overwhelming preponderance of the evidence, an award of $1,200.00 for past and future medical was too small for items (a) and (b) together, irrespective of items (c), (d), (e), and (f), for which some amounts of damage should have been awarded.

It is therefore our view that the great weight and overwhelming preponderance of the evidence shows that Mr. Qualls was entitled to recover reasonable compensation for each of the elements of damages submitted in Special Issue No. 14, including elements (a), (b), (c), (d), (e) and (f), and that the total verdict of $1,200.00 in response to Special Issue No. 14 was manifestly too small under the entire record in this cause. Rule 328, Tex.R.Civ.P.

After carefully reviewing the entire record in this cause in the light of the rules of law enunciated in the case of In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), we hold that the jury’s finding to Special Issue No. 14 was so contrary to the great weight and overwhelming preponderance of the evidence as to be clearly wrong and manifestly unjust.

Appellant’s second point is sustained.

Appellant by his third point complains of alleged harmful jury misconduct relative to jurors mentioning personal experiences with troubles or injuries to their backs and other matters. While the alleged jury misconduct complained of may have adversely affected the amount of the verdict for plaintiff-appellant, we have reached the conclusion that it is unnecessary for us to pass upon this point since the cause must be reversed by reason of our sustaining appellant’s second point, and the question of jury misconduct will not likely arise upon another trial.

We also deem it unnecessary to pass upon appellant’s fourth point which complains of the trial court’s refusal of the request of the jury to have read to them portions of the testimony of Dr. Parrish, as this matter will not likely arise upon another trial.

The judgment of the trial court is reversed and the case is remanded for a new trial.

Reversed and remanded.

      . “SPECIAL ISSUE NO. 14
      “What amount of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate the Plaintiff, Luther J. Qualls, for such injuries and damages, if any, as have directly and proximately resulted and which will, in reasonable probability directly and proximately result in the future from such injuries, if any, which you find from a preponderance of the evidence were sustained by Luther J. Qualls as a direct and proximate result of the collision in question, taking into account such of the following elements which you find from a preponderance of the evidence and none other:
      (a) Such reasonable medical expenses, if any, necessarily incurred in the treatment of Luther J. Qualls’ injuries, if any, from January 14, 1964, to the date of this trial.
      (b) Such reasonable medical expenses, if any, that will in reasonable probability be necessarily incurred in the future in the treatment of his injuries, if any.
      (e) Such loss of earnings, if any, suffered by Luther J. Qualls from January 14, 1964 to the date of this trial.
      (d) Such diminution of earning capacity, if any, which Luther J. Qualls will in reasonable probability suffer in the future.
      (e) Such physical pain and mental anguish, if any, suffered by Luther J. Qualls from January 14, 1964 to date of this trial.
      (f) Such physical pain and mental anguish, if any, which Luther J. Qualls will in reasonable probability suffer in the future.
      Answer by stating the amount, if any, in dollars and cents.
      To which the jury answered ‘$1,200.00.’
      You are instructed that you must not take into consideration in determining the amount of damages, if any, nor allow anything for any medical expenses, physical pain, mental anguish, lost earnings or lost earning capacity, if any, either past or future, which are directly or proximately caused by any pre-existing injury or bodily condition of Luther J. Qualls, if any, except insofar as such pre-existing injury or bodily condition, if any, shall have been aggravated as a direct and proximate result of the occurrence of January 14, 1964, if you so find that they have been so aggravated.
      “DEFINITION IN CONNECTION WITH SPECIAL ISSUE NO. 14
      By the term ‘medical expenses’ as used in subparagraph (a) of this Special Issue is meant such reasonable doctors’ bills and drugs, if any, which have been necessarily incurred in the treatment of the Plaintiff’s injuries, if any, from January 14, 1964 to the date of this trial and none other. By the term ‘medical expenses’ as used in subparagraph (b) of this Special Issue is meant such reasonable doctors’ bills, hospital bills and drugs, if any, that will in reasonable probability be necessarily incurred in the future in the treatment of the Plaintiff’s injuries, if any, and none other.
      In arriving at your answers to the questions, you are the sole judges of the credibility of the witnesses and the weight to be given to their testimony, but in matters of the law you must be governed by the instructions given you by the Court in this charge.”

      . “ * * * ' Details of his history were thoroughly recorded in case they are needed at a later date. His neurologic examination showed good mobility of the head and neck. There was no muscle spasm or tenderness over the neck pos-teriorily. The arm reflexes were active and symetrical although the Achilles reflex on the left was diminished. Perhaps this diminution is the result of his disc protrusion of 1957. He had no sensory change in either upper extremity.
      “There was a well healed midline lower lumbar scar. To firm pressure he stated he was ‘a little sore’ at the lumbosacral interspace. Straight leg raising could be carried out to 80-85 degrees on each side with no apparent evidence of pain. The only consistent sensory finding as to the lower extremities was an area over the dorsum of the left great toe and adjacent foot which seemed to be hypalgesic. If this is the case, it should be in the distribution of the L-5 nerve root.
      “The patient stated that he was to have a spinal fusion carried out by you. The veracity of his statement could not be checked with you the following day since you were in surgery at the time. It is hoped that the opportunity of discussing him with you soon will be presented. In the event that you do plan to carry out this surgery and perhaps a myelogram beforehand, there should be no harm in carrying the Pantopaque to the cervical region to more thoroughly evaluate it. Nevertheless, nothing of a surgical nature in the neck is expected.
      “The patient’s x-rays have not yet been reviewed but are expected by mail from St. Joseph’s Hospital shortly. * * * ”


author: WERLEIN, Justice.

text:
    Mrs. Anna Marie GENTRY, a widow, Appellant, v. Mrs. J. S. MONTALBANO et al., Appellees.
    No. 14977.
    Court of Civil Appeals of Texas. Houston.
    May 4, 1967.
    Frank G. White, Houston, for appellant.
    Joe J. Newman, Houston, for appellees.
   WERLEIN, Justice.

This is a trespass-to-try title suit brought by Mrs. Anna Marie Gentry against Mrs. J. S. Montalbano et al for the title and possession of Lot 62 in Block 1 of Oak-wood, a Subdivision in the John S. Collins Survey, in Harris County, Texas, according to map thereof duly recorded in the office of the County Clerk of Harris County, Texas. The property in question is so described in a deed from Nellie M. Mills, a feme sole, to Anna Marie Gentry, dated October 5, 1962.

Appellant relying solely upon the record title, undertook to establish a regular chain of title from the sovereignty into her. The appellees filed answers pleading the three, five, ten and twenty-five year Statutes of Limitation. At the conclusion of appellant’s evidence, the court withdrew the case from the jury and entered judgment for the lot in question in favor of the appellees. Appellant alleges that in doing so the court erred because there was evidence of a regular chain of title from the sovereignty of the soil to her.

Appellant introduced in evidence without limitátion a dedication and map by L. E. Mills and the Houston Home Investment Company, a Texas corporation, labeled “Revised Map of Oakwood Addition and being out of the John S. Collin— Survey— 114 acres, in Harris County, Texas,” such tract of land consisting of one tract of 37⅜ acres, one tract of 60 acres, both conveyed to L. E. Mills by George D. Sears, individually and as executor, by deed recorded in Vol. 305, page 584 of the Harris County Deed Records, one tract of 5.32 acres conveyed to L. E. Mills by H. C. Arnold, and one tract of 5 acres conveyed to H. B. Rumsey. The aggregate of the acreage in the four tracts is less than 114 acres. This map and plat and dedication by Houston Home Investment Company and Louis E. Mills, also called L. E. Mills, and Nellie M. Mills, was filed and recorded in Vol. 10, page 6 of the Map Records of Harris County on May 9, 1929. It shows a lot designated as Lot 62, 50 by 150 feet, which faces 50 feet on Myrtle Avenue and has no other frontage. Myrtle Avenue intersects Holly Street, and the lot is the second lot from Holly Street. This plat was approved by the City of Houston Planning Commission May 7, 1929.

Appellant also introduced without limitation a dedication and map, which is also called a revised map of Oakwood Addition, dated May, 1929, and filed and recorded in Vol. 10, page 61 of the Map Records of Harris County on May 16, 1930. On this map lot 62 in Block 1 faces 50 feet on Farnsworth Street and runs back for depth of only 100 feet. It is the third lot from Simsbury Avenue, and has no frontage on any street except Farnsworth. This plat shows no approval by the City Planning Commission.

Appellant did not locate the lot that she is suing for on the ground, and we are unable to determine from the record where the lot in question is located. Both maps are dated in May, 1929, and the exact date of the plat last introduced is not shown. The location of Lot 62 in Block 1 on the two maps is entirely different. The deed from Nellie Mills to appellant does not state which map is referred to for description of the lot conveyed; nor does it locate the lot in any other way. We find no deed into Nellie Mills of Lot 62, Block 1 of Oakwood, nor to any other property in appellant’s alleged chain of title.

Appellant asserts, however, that there is a regular chain of title from the sovereignty of the soil into Houston Home Investment Company and that in the deed to Home Investment Company, a corporation, dated March 31, 1933, at which time such company was in receivership, reference is made to the plat of Oakwood Addition to the City of Houston, recorded in Vol. 10 at page 61, Harris County Map Records. There is no evidence of probative force that in the deed from Nellie M. Mills to appellant such plat was used or observed. The deed makes no reference to the date or recordation of the plat Nellie M. Mills may have had in mind or intended to be used in locating the lot in question. Furthermore, the record does not disclose any deed from Houston Home Investment Company or its receiver to Nellie M. Mills.

Appellant introduced in evidence the receiver’s inventory and appraisement filed in 1933 in the case of Conrad Trubenbach et al v. Houston Home Investment Company, No. 208,537 on the docket of the District Court of Harris County, Texas, and also the receiver’s final report filed in the receivership. The inventory shows listed, among hundreds of lots, Lot 62 in Block 1, with a mortgage against it. The receiver stated in such report that there were some eight or ten revised plats of Oakwood Addition which had been recorded, and that he was designating all property according to the plat recorded in Vol. 10, page 61, Harris County Map Records. This, of course, constitutes no evidence that Nellie M. Mills in her deed to appellant did likewise.

The final report of the receiver dated July 7, 1949, states that all the capital stock of Houston Home Investment Company was originally owned by L. E. Mills and N. M. Mills, and was hypothecated by them before the receivership was granted. Nothing further is shown concerning such stock, and there is no evidence as to the ownership thereof at the time of the dissolution of the corporation, if, in fact, it was ever dissolved voluntarily, involuntarily or by an administrative determination. 14 Tex.Jur.2d 645, Corporations, Sec. 548. The record before us further shows that the right of the company to do business in Texas was forfeited on July 2, 1932 for failure to pay franchise taxes. There is no evidence that the company’s right to do business was revived or that its charter was forfeited, or that it was dissolved.

It is appellant’s contention that the charter of the company was forfeited, and that at such time all of its property became the property of the stockholders of the company, Louis E. Mills and Nellie M. Mills, in proportion to their stock ownership. Appellant relies upon the case of Humble Oil & Refining Co. v. Blankenburg, 149 Tex. 498, 1951, 235 S.W.2d 891, and also Montgomery v. Heath, Tex.Civ.App. 1926, 283 S.W. 324, aff’d in part 291 S.W. 855. In Blankenburg the Supreme Court said:

“When a corporation is dissolved its property becomes the property of its stockholders in proportion to their respective shares, subject, however, to the rights of the creditors of the corporation whose debts must be satisfied out of the corporation property. Peurifoy v. Wiebusch, 132 Tex. 36, 41, 117 S.W.2d 773, and authorities there cited. The title rests in the stockholders, subject to the payment of the debts owed by the corporation.”

In the instant case there was not enough property to satisfy the rights of the creditors of the corporation. The final report of the receiver of Houston Home Investment Company shows that the corporation was insolvent at the time it was placed in receivership and at the time the inventory and appraisement of the properties of the company was filed on March 11, 1933, and hopelessly insolvent at all times thereafter. It further shows: “That all the real estate described in said Inventory as being encumbered or mortgaged was either quit-claimed to the persons holding mortgage liens against the respective pieces of such encumbered properties in accordance with and on terms prescribed by orders of the Court entered herein, or was foreclosed on by the holders of such liens by sales under deeds of trust without any interference by this Receiver, the market value of such properties in each instance being less than the amount due on such mortgages.” As hereinabove stated, the lot in question was mortgaged, but if we assume that it was unencumbered, it was sold and conveyed by the receiver acting under the orders of the court, as stated in paragraph III of the report as follows: “All the real property described in the Inventory as being unencumbered, as well as the waterworks and all the appurtenances thereto, have been sold and conveyed by the Receiver acting under the orders of this Court and entered herein.”

As the result of such sales and the hopeless insolvency of the company, there was no property whatever for distribution to the stockholders of the company, assuming that the corporation was dissolved, since the liabilities of the company as shown in the final report of the receiver under date of July 7, 1949, far exceeded its assets.

Appellant introduced in evidence the will and probate proceedings in the Estate of Louis E. Mills, Deceased, showing that Mr. Mills left all of his property to his sister, Nellie M. Mills. The inventory of the Estate of Louis E. Mills does not list the property in question nor any property in Oakwood Addition; nor does it list any stock in Houston Home Investment Company which at that time was long since defunct. Also, there is no deed from such company or its receiver conveying the lot in question or any property in Oakwood Addition to Louis E. Mills.,

It is elementary that in a trespass-to-try title suit the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant’s title. Street Realty Company v. Brown, Tex.Civ. App., 291 S.W. 580, writ dism.; Mills v. Pitts, Tex.Sup. 1932, 121 Tex. 196, 48 S.W.2d 941, 84 A.L.R. 319; Ainsworth v. Ruemke, 205 S.W.2d 647, writ ref., n. r. e.; Niendorff v. Wood, 149 S.W.2d 161, writ ref.; Pettis v. Achille, Tex.Civ.App. 1958, 313 S.W.2d 348, n. w. h.

Indulging every reasonable inference in favor of appellant, we are of the opinion that there was no evidence warranting submission of the case to the jury, and that the court did not err in withdrawing the case from the jury and in entering judgment in favor of appellees for the lot in question, since appellant failed to establish a good record title to the property into her.

Judgment affirmed.

COLEMAN, J., not sitting.


text:
    L. A. Jamison MONROE, Appellant, v. Thomas G. MERCER et al., Appellees.
    No. 14994.
    Court of Civil Appeals of Texas. Houston.
    April 20, 1967.
    Rehearing Denied May 11, 1967.

      Fred W. Moore, Vinson, Elkins, Weems & Searls, M. C. Chiles, Houston, for appellant.
    Rawlings, Sayers, Scurlock & Eidson, Reagan Sayers, A. Wm. Brackett, Fort Worth, Butler, Binion, Rice, Cook & Knapp, John L. McConn, Jr., Houston, for appellees.
   WERLEIN, Justice.

This suit was brought by L. A. Jamison Monroe, a resident of Harris County, Texas, against Thomas G. Mercer, a resident of Tarrant County, Texas, and T. E. Mercer Trucking Company, a Texas corporation with its principal office in Fort Worth, Tarrant County, Texas. Appellees filed their respective pleas of privilege praying that the cause of action be transferred to Tarrant County. Appellant filed his controverting affidavit and alleged that appellant’s action was based primarily on fraud committed in Harris County, Texas, and that venue was in Harris County under Section 7, Article 1995, Vernon’s Annotated Texas Civ. Statutes, since fraud was the gist of appellant’s cause of action.

'Appellant alleged that appellee made false representations to appellant in Harris County; that he relied upon such false representations and because thereof resigned his employment in Houston and moved to Tar-rant County, Texas; that his reliance on appellee’s false representations resulted in great damage to him, such damages being more particularly set out in his petition. The pertinent allegations of the petition were adopted as a part of the controverting affidavit, and were properly verified.

The trial court entered an order after hearing the evidence, transferring the case to the District Court of Tarrant County, Texas. Appellant contends that the court erred in so doing for the reason that ap-pellee Mercer falsely represented in Houston to appellant that he, Mercer, owned oil interests in New Mexico arid east Texas which were then producing a revenue of $5,000.00 to $6,000.00 per month above operating costs, and that said appellee agreed in Houston to assign a one-half interest in same to appellant if he would go to work for appellees; that appellant believed and relied upon such false statements, and left his valuable employment in Houston with Armco Steel Corporation because thereof, and went to work for appellee's, to his damage; that appellees owned no mineral interests producing such revenue, and that appellee’s false statements with reference to said oil producing properties were in effect admitted by appellee Mercer, and established by the great preponderance of the evidence. Appellant also asserted that appellees never intended to perform their contract which was partly verbal and partly written, and made in Harris County, and that the false representations which induced appellant to agree to a contract of employment were falsely made in Harris County, and were intended to induce appellant to leave his gainful employment in Harris County and move to Fort Worth.

We have carefully read the statement of facts, and all the evidence adduced at the hearing and are of the opinion that the record contains ample evidence which would support an implied finding by the trial court that in making whatever representations that were made, appellee Mercer was acting individually and not as an agent of the T. E. Mercer Trucking Company, and that the court was warranted in transferring the case to Fort Worth insofar as the Trucking Company is concerned.

It is also our view, after a careful study of the record, that there is ample evidence which would support an implied finding by the trial court that Mercer intended to perform his promise at the time he made the same, and that he did not intend to induce appellant to leave his gainful employment in Harris County and move to Fort Worth so that he, appellee, could beat appellant down and change the terms of the agreed contract consummated in Harris County in a manner to suit appellee, as appellant has asserted.

The evidence clearly shows that appellee Mercer represented in Houston, Texas, to appellant that he, Mercer, owned oil interests in New Mexico and east Texas which were producing a revenue of at least $5,-000.00 per month above operating costs. The evidence is undisputed that appellant was undecided about giving up his position with Armco and going to work for appel-lee. He insisted that he be given something in addition to the salary which appellee would pay him. He was induced to resign from Armco when Mercer agreed to give him one-half of the oil interests in New Mexico and east Texas. He testified that Mercer said, “ * * * he felt this would get me off center in making the decision to join his firm.” Mercer testified that he promised Monroe, in order to get him to come to work, that he would assign and transfer to Monroe a one-half interest in the New Mexico and Anderson County property that would net him approximately $2,750.00 or $2,500.00 a month after the indebtedness against the same was paid off. It was this representation that caused appellant to leave his Houston employment and to go to work for appellee. The evidence shows that appellant, at the time the representation was made by Mercer, had a very lucrative position with Armco Steel Corporation in Houston, and was making a salary at that time of $41,000.00 per year, with fringe benefits consisting of a thrift plan, medical insurance, hospitalization, life insurance and a substantial pension of $1,-250.00 per month. He was 46 years old and had spent approximately 19 years with Armco.

The evidence further shows that appellant left his employment with Armco on the last day of March, 1965, and reported in Fort Worth the next day to go to work for appellee. The evidence is somewhat conflicting as to what occurred subsequent to the time appellant reported for work on April 1, 1965. There may be some question as to whether or not there later occurred on the part of appellee a breach of appellant’s contract of employment, but it is our view that the present case is based mainly upon fraud committed in Harris County, and that it is unnecessary for us to determine whether or not appellee breached his contract in any manner after appellant reported for work. The question to be decided here is whether appellant has made out a prima facie case of fraud committed by appellee in Harris County, and if so, whether he has sustained some damage therefrom.

The evidence shows that appellant and appellee Mercer met in Fort Worth on January 15, 1965, and discussed generally appellant’s prospective employment with ap-pellee. The meeting was a brief one and nothing was said concerning oil and nothing was agreed upon. After such meeting appellant came back to Houston. Appellant testified that the oil properties were not mentioned in Fort Worth, but that in a later conversation in Houston he told appellee that he had to have something else other than his salary because he was giving up a retirement plan that was sizable, and other things. He further testified that while in Houston appellee told him that the only other thing he had outside of his family interests would be his personal oil properties in New Mexico and east Texas, and he proceeded to tell appellant a little about them; that the oil properties were not mentioned in Fort Worth, and such conversation took place in Houston, and that appellee said that over and above the operating expenses said oil properties were producing from $5,500.-00 to $6,000.00 a month. Other matters were discussed with respect to the prospective employment.

Appellant further testified that the next meeting, “and the one where we brought all of these things together, * * * and finalized it, * * * ” was on February 2, 1965 in Houston. They discussed appellant’s salary and agreed on $46,000.00. They also agreed upon an assignment to appellant of one-half of appellee’s oil interests in El Charro in New Mexico and in the Anderson County production. Appellant also testified that appellee said, “This would reap over and above operating expenses some $5,000.-00 to $6,000.00 a month.” There was a lien against such properties in the amount of $97,000.00 to $100,000.00 which was to be paid out of production prior to the time that appellant would be receiving anything.

Appellee testified that it was his purpose to give appellant a division of the oil production, and that he promised to transfer to appellant a one-half interest in the New Mexico and Anderson County property that would net appellant some $2,750.00 or $2,-500.00 per month, after the indebtedness was paid off. Appellee also testified that he made such representation in all good faith, and that he thought the checks that he had been receiving were net income checks. He admitted that he told appellant that his one-half would be $2,500.00. When it was later discovered by appellee, according to his testimony, that the total production was only about $2,200.00 to $2,300.00 per month net income, he agreed to guarantee appellant a net income of $2,500.00 per month. After appellant went to work for appellee, he discovered for the first time not only that the production was probably less than one-half what had been represented to him, but also that the property in New Mexico was owned or held in the name of George Royalty Company, a Partnership.

The evidence is undisputed that the representation was made, and that it was false, although probably made in good faith by ap-pellee ; at least the evidence would warrant an implied finding by the trial court that it was made in good faith. Although it may have been made in good faith, such representation was the primary factor and inducement that caused appellant to give up his lucrative position in Houston. The evidence is undisputed that appellant believed such representation to be true; that he relied and acted thereupon and was induced thereby to give up his employment with Armco, and that he sustained some damage as a result of so doing.

It cannot be said that appellant suffered no damage because appellee offered to guarantee that appellant would receive $2,500.00 per month. Appellant was not required to accept appellee’s personal guaranty in lieu of an assignment of an interest in oil properties that would pay him at least $2,500.00 per month as had been represented by appellee. The record clearly shows that appellant did sustain damage as a result of the false representation that caused him to leave his lucrative employment with Armco. He was not paid anything during the period of April 1, 1965 to May 13 or 15, that he was with Mercer. Thereafter he had to accept employment which paid him about one-half of what he was making with Armco. The law is well settled that on a plea of privilege hearing involving fraud the venue fact is whether the plaintiff sustained some damage, and that the extent thereof is to be determined upon the trial of the case on its merits. Cockburn v. Dixon, 1953, 152 Tex. 572, 261 S.W.2d 689; Brown Company v. Terrell, 310 S.W.2d 757, Tex.Civ.App.; Gomillion v. Lingold, 209 S.W.2d 205, Tex.Civ.App.; Maulding v. Niemeyer, 241 S.W.2d 733, Tex.Civ.App., mandamus overruled; 26 Tex.Jur.2d p. 56, Fraud and Deceit, Sec. 95; 60 Tex.Jur.2d, p. 105, Venue, Sec. 218.

Appellee asserts that appellant’s pleadings and evidence establish that the gist of appellant’s cause of action sounds in contract and that the allegations of fraud are merely incidental and not sufficient to maintain venue in Harris County. We do not so construe appellant’s pleading and evidence. Appellant alleges in his petition that he sues primarily for damages resulting from the fraud in question. The petition contains all the allegations necessary to establish fraud and the prayer is for damages resulting from the fraud. It is true that appellant in the alternative and only in the alternative sues and prays for judgment on account of breach of contract. The evidence adduced by appellant clearly shows that he is seeking to recover damages because of fraud. His cause of action is as a matter of law primarily based upon the false representations which he asserts were made in Harris County. The fact that he has an alternative plea for damages resulting from breach of contract does not militate against his cause of action for fraud and his right to maintain the suit in Harris County because of the false representations made in such county. Texarkana Water Supply Corp. v. L. E. Farley, Inc., 353 S.W.2d 885, Tex.Civ.App. See also Cockburn v. Less, 257 S.W.2d 470, Tex.Civ.App.; Cockburn v. Dixon, supra; McDonald, Texas Civil Practice, Vol. 2, p. 571, Sec. 6.20.

We are of the opinion that the evidence is undisputed that a material representation was made by appellee in Harris County that he presently owned oil interests in New Mexico and east Texas which were then producing a revenue of at least $5,-000.00 per month above operating costs, one-half of which would be assigned to appellant; that such representation was false and that the same was made with the intention that it should be acted upon by appellant; that appellant did in fact rely upon said representation and acted thereupon, and as a result suffered injury. Appellant thus established all of the requisites necessary to make out a case of fraud. Wilson v. Jones, Tex.Com.App.1932, 45 S.W.2d 572; Trinity Universal Ins. Co. v. Soliz, Tex.Civ.App., 241 S.W.2d 625; Henry v. Texas Employers Ins. Ass’n, 279 S.W.2d 614, Tex.Civ.App.1955.

The record contains no denial by Mercer with respect to the representation having been made and that it was false. He undertakes to excuse himself on the ground that he made the representation in good faith. The law is well settled that the fact that the false representation is made in good faith will not exonerate the party making such representation. The false representation can be just as injurious to the person who relied thereon, whether it was made in good faith or with knowledge of its falsity. Bondies v. Glenn, 119 S.W.2d 1095, Tex.Civ.App., error dism.; Watson v. Baker, 71 Tex. 739, 9 S.W. 867; Gibbens v. Bourland, 145 S.W. 274, Tex.Civ.App.; Poindexter v. Davis, 27 S.W.2d 139, Tex.Com.App.1930, and authorities cited therein; Associated Employers Lloyd’s v. Burns, 197 S.W.2d 584, Tex.Civ.App., n. w. h.; Powell v. Andrews, 220 S.W.2d 718, Tex.Civ.App., writ ref., n. r. e.; Harris v. Sanderson, 178 S.W. 2d 315, Tex.Civ.App., ref., w. m.; Cassel v. West, 98 S.W.2d 437, Tex.Civ.App., writ ref.; 26 Tex.Jur.2d, p. 86, Fraud and Deceit, Sec. 117. In Stroud v. Pechacek, 120 S.W.2d 626, Tex.Civ.App., the court held that the absence of knowledge and intent cannot relieve one of the consequences of a false representation made by him as an existing fact and calculated to operate and actually operating as an inducement to a contract where exemplary damages are not involved. In the instant case appellant did not sue for exemplary damages, and the representation was of an existing fact.

The law is well settled that a hearing on a plea of privilege is tried in the ordinary way, and that on appeal from a judgment sustaining or overruling a plea of privilege the Court of Civil Appeals must review the fact findings made by the trial court in the same manner as in any other appealed case. Compton v. Elliott, Tex.Com.App., 126 Tex. 232, 88 S.W.2d 91. In the Instant case no findings of fact or conclusions of law were made by the trial court. This Court, therefore, must presume that the trial court resolved all issuable facts in such a way as to support the judgment entered. If there is competent testimony to ■support the court’s judgment, the judgment must be sustained. McElyea v. Cozby, 233 S.W.2d 482, Tex.Civ.App.; Martinez v. General Beverage Distributors, Inc., 312 S.W.2d 284, Tex.Civ.App. In Banks v. Collins, 1953, 152 Tex. 265, 257 S.W.2d 97, it was held that if the evidence is conflicting and there exists in the record sufficient evidence of probative force to support the judgment of the trial court, then the judgment should not be disturbed on appeal.

We have carefully considered all of the evidence in the case at bar, and have concluded that there is no evidence of probative force that would support an implied finding by the trial court that the false representation was not made in Harris County. Hereinabove we have set out the testimony and evidence of appellant as to the false representation being made in Harris County. In our opinion, such evidence has not been refuted by appellee. Appellee, in an effort to dispute appellant’s testimony and to show that any representation that was made was made in Tarrant County, relies upon a letter dated February 4, 1965 from appellant to appellee, and appellee’s statement made in Fort Worth over the telephone to the effect that the letter was agreeable. Appellee, when asked whether he agreed with appellant that the contract or agreement was made between them in Houston, replied, “Well, that is probably a matter of opinion, Mr. Moore. He wrote me that letter in Fort Worth and we talked about it on the telphone — I told him it was acceptable to me and I was coming to Houston on other business matters and we actually shook hands on it, yes, sir, in Houston.” Appellee further testified that he would say the final agreement was over the telephone since he told appellant over the telephone that the letter was agreeable. Nowhere does appel-lee dispute that the representation with respect to the oil properties in question and the net income derived therefrom, was made in Houston on February 2, 1965, as testified by appellant. Nowhere does he dispute the fact that after receiving the letter of February 4, 1965, he came to Houston and agreed to the terms set out in the letter, and that the parties thereupon shook hands.

This suit was primarily based upon the false representations made which induced appellant to give up his position with Arin-co. It is our view that the evidence is undisputed that the representations relied upon were made in Houston. The letter of February 4 cannot be said to constitute any evidence that the representations were made in Tarrant County. Such letter merely confirms the details which were discussed and agreed upon in Houston with respect to appellant’s remuneration upon going to work for appellee. It purports to set out some specifics and details that the parties had already agreed on. Such letter and appellee’s statement that it was agreeable actually corroborate the fact that a representation had already been made with respect to the oil production and also what appellant’s interest therein would amount to. It further confirms the fact that it was appellant’s understanding, which could only be based upon what appellee had represented in Houston, that the New Mexico and east Texas oil properties had a revenue of some $5,000.00 to $6,000.00 per month after operating expenses. We are of the opinion that such letter setting out the terms of appellant’s employment by appellee, definitely corroborates appellant’s testimony that the representation relied upon had already been made in Houston. Under the evidence and the record before us, there is no evidence that the representations with respect to the amount of the oil production were made other than in Harris County.

The judgment of the trial court insofar as it transfers the cause of action against T. E. Mercer Trucking Company to Tarrant County is affirmed. The judgment of the trial court insofar as it transfers the cause of action against Thomas G. Mercer to Tar-rant County is reversed and remanded, with instructions that the trial court enter an order severing such cause of action from the cause of action against the Trucking Company, and retaining the cause of action against Thomas G. Mercer in Harris County.

Affirmed in part, and in part reversed and remanded with instructions.

COLEMAN, J., not sitting.


author: STEPHENSON, Justice.

text:
    CLEGG MOTORS, a partnership of John W. Clegg and Ted N. Clegg and Individually, Appellant, v. James J. SCHRIMSCHER, Appellee.
    No. 6896.
    Court of Civil Appeals of Texas. Beaumont.
    April 27, 1967.

      Lamson & Plessala, Port Arthur, for appellant.
    Peterson & Neumann, Beaumont, for ap-pellee.
   STEPHENSON, Justice.

This is an action for damages against Clegg Motors for negligent repairs to plaintiff’s automobile. Trial was before the court and judgment was rendered for plaintiff. Other defendants and other causes of action were involved in the trial court, but are not on appeal here. The parties will be referred to here as they were in the trial court.

The points of error complained of are that there was no evidence to support a judgment that defendant was guilty of negligence or that such negligence was a proximate cause of the damages to plaintiff’s automobile, and also that there was insufficient evidence to support a judgment that defendant was guilty of negligence or that such negligence was a proximate cause of the damages.

The negligence alleged in plaintiff’s petition was as follows:

“Thereafter Clegg Motors undertook the obligation of repairing such automobile and performed such task in a negligent manner in that it failed to inspect and repair the right wheel on such vehicle after ascertaining the left was defective and in need of repair.”

No findings of fact nor conclusions of law were requested.

We first consider the “no evidence” points, and the testimony favorable to the judgment. Plaintiff’s wife, Mrs. James J. Schrimscher, testified as follows: That in November, 1961, she and her husband purchased a 1962 Mercury automobile from Clegg Motors in Beaumont. About two and a half weeks before the car burned, she noticed a roaring noise in the rear end. August 7, 1962, two weeks before the fire, she drove the automobile from Crystal Beach to Beaumont. Upon arriving in Beaumont she noticed the right rear wheel was smoking. She called defendant’s service manager and told him about the roaring and smoking in the right rear wheel. She asked that the automobile be towed to Port Arthur and was told that it would have to be driven, which she did. The service manager drove the car around and said it was the rear end and asked plaintiff’s wife to wait in the waiting room. That forty or forty-five minutes later the service manager came back and told her the car had been fixed and was ready and that she wouldn’t have any more trouble like she had been having. She drove the car back to Crystal Beach, a distance of 65 or 70 miles, and it was still making the noise. She drove the car at the beach to the grocery store each day, a distance of 6 or 8 blocks. On August 21, 1962, while driving the car back toward Beaumont, along about Winnie, the car sounded like it was missing. Then it felt like a tug on the car, and she found she had no brakes. She brought the car to a stop and smoke began to come from underneath it. It caught on fire at the right wheel and completely burned up. She was not driving with the handbrake on.

T. E. Neff testified as follows: That he had been in the auto repair business for 16 years, and in this trade for 20 years. One of his drivers picked up this automobile after the fire and he inspected the rear end. He personally pulled the axle and inspected the bearing and found it to be defective on the right side. The bearings were flat, oblong, egg-shaped and chipped. The bearings were in bad shape, and he would not expect them to get in that condition in a short period of time. Mileage had put them in that shape. In his opinion anyone inspecting the bearings 200 miles before should have been able to find out they were bad. In his opinion the wheel bearing caused the fire. In response to how it was caused, he gave this testimony:

“A. In other words, when the bearing failed, it let the brake shoes in the drum ride; which created friction. It created so much friction in there that it ignited the brake fluid in the wheel cylinder —in other words, causing a failure of the wheel cylinder. That’s when you get your flames. And more fluid poured in there causes more of a flame there.”

Neff testified further as follows: He also checked the bearings on the left side at the same time and found them to be perfect. That it takes time for a bearing to go out, and there is usually a roaring as a warning. When an automobile is brought into a shop with a roaring noise in the rear end it is usually the bearing. In order to check to see if it is the bearings the automobile is jacked up and the wheels are turned and if you have a defective bearing, you can pick up a roar. You can single it out as to which side. It is pretty easy to detect with the naked ear. That each side is invariably checked in making this test, which can be done in 5 minutes. If it is difficult to tell, the bearings are removed and examined. If a bearing is removed, and a new bearing installed, the wheel should be checked again, first by turning it manually, and then by road-testing the car.

This, and other evidence in the record, supported the judgment of the trial court that defendant was guilty of the negligence alleged by plaintiff, which proximately caused the damages complained of.

In passing upon the “insufficiency of the evidence” points, we considered the entire record. There is evidence that defendant’s service manager and mechanic found the left wheel bearings to be defective and they were replaced. There is evidence that it is highly unusual for the bearings on each side to go bad at the same time or within two weeks of the other. There is also evidence from an expert witness that a handbrake being set or partially set could cause a fire similar to the one in this case. However, none of this evidence is conclusive as to either negligence nor proximate cause, and did no more than raise issues of fact for the court to determine, which it did, adversely to defendant. These points are overruled.

Defendant also contends the trial court erred in rendering its judgment because the testimony established as a matter of law that plaintiff’s wife was guilty of negligence in operating the automobile, and that such negligence was a proximate cause of the damages. This contention is based primarily upon the fact that plaintiff and his wife owned another Mercury automobile which also had the same noise and the same trouble. It is argued that inasmuch as plaintiff’s wife had heard such noise before in the first automobile and had found out it was bearing trouble that she was guilty of contributory negligence as a matter of law in driving the present automobile under the circumstances. The record shows that plaintiff’s wife was not a mechanic, but a housewife. Considering the testimony favorable to the judgment of the court, the evidence supported an implied finding by the court that plaintiff’s wife was not guilty of contributory negligence proximately causing the damages.

Affirmed.


author: NORTHCUTT, Justice.

text:
    Ernestine HUMBER, Appellant, v. Claude MORTON, Appellee.
    No. 7705.
    Court of Civil Appeals of Texas. Amarillo.
    April 17, 1967.
    Rehearing Denied May 15, 1967.
    See also Tex.Civ.App., 399 S.W.2d 831.
    Jerry Hollingsworth, Amarillo, for appellant.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellee, Harlow Sprouse, Amarillo, of counsel.
   NORTHCUTT, Justice.

Ernestine Humber brought this suit against Claude Morton for damages to a house resulting from fire. Morton had had a house built by some independent contractors. Morton contracted with one Johnny F. Mays, an independent contractor, to plan and build a fireplace in said building. All that Morton did was to show Mays where in the building he wanted the fireplace built and was to determine the color of the face brick to be used. After the house was completed, Morton sold it to Ernestine Humber. After Mrs. Humber had been in possession of the house about four months the fire here in question happened. The suit is based upon the theory that the fire was caused because of a defective fireplace. Hereinafter Mrs. Humber will be referred to as plaintiff and Morton as defendant.

Defendant was sued on alternative theories, plaintiff alleging various acts of negligence on defendant’s part in constructing the fireplace in the house which allegedly caused the fire, alleging the doctrine of res ipsa loquitur, alleging an implied warranty of merchantability and fitness for use, which warranty was allegedly breached causing the damage.

Both plaintiff and defendant filed a motion for summary judgment. The trial court sustained the defendant’s motion and entered judgment that the plaintiff recover nothing by her suit and that the defendant be discharged from that judgment. The plaintiff perfected this appeal.

The defendant had sold the house to the plaintiff. The plaintiff had been in possession of the premises for more than four months before the fire in question. The plaintiff was the person who first started the fire in the fireplace and defendant never at any time had any management of the fire in the residence and neither did he have any connection with the building of the fireplace. There is nothing in this record to support the theory of res ipsa loquitur as being applicable here. National Hotel Co. v. Motley, 123 S.W.2d 461 (Tex.Civ.App.-Eastland, 1938, writ dism’d, judg. corr.). See also Texas & P. Coal Co. v. Kowsikowsiki, 103 Tex. 173, 125 S.W. 3 (1910).

The plaintiff does not deny the affidavits of the defendant and Mays showing Mays as an independent contractor building the fireplace and further showing there was no negligence on the part of defendant. The statements made in Smith v. Fireman’s Insurance Co. of Newark, N. J., 398 S.W. 2d 435 (Tex.Civ.App-Houston, 1966, no writ) are identical with the record here, as follows:

“The facts in this case in large measure parallel the facts in Anchor Casualty Company v. Hartsfield, Tex.Sup. 1965, 390 S.W.2d 469. The work by Dohone required special skill and competency, he furnished his own tools, he was doing a particular job according to predetermined plans, he could come to work and leave at times within his discretion, he was paid by the job, he could employ a helper or not do so as he chose, he was not carried on the payroll or on social security and income tax withholding rolls of Texas American Builders. Such facts establish that Dohone was an independent contractor. Pitchfork Land and Cattle Company v. King, 1961, 162 Tex. 331, 346 S.W.2d 598; Industrial Indemnity Exchange v. Southard, 1942, 138 Tex. 531, 160 S.W.2d 905.”

As to plaintiff’s contention as to an implied warranty of merchantability and fitness for use, there is nothing in her deed to even indicate any such waranty. It is stated in Westwood Development Company v. Esponge, .342 S.W.2d 623 (Tex.Civ.App.-San Antonio, 1961, writ ref’d n. r. e.) as follows:

“In view of another trial, we think it well to note that independently of the remedy provided by art. 4004, supra, an action for breach of an alleged implied warranty of the fitness and suitability of real estate conveyed for the purpose intended does not lie unless expressed in the deed of conveyance. Art. 1297, Vernon’s Ann.Civ.Stats.”

Under the undisputed record herein, we are unable to see any theory that would justify finding of liability on the part of defendant.

Judgment of the trial court is affirmed.


author: WALTER, Justice.

text:
    Florence HALL et al., Appellants, v. Emma Sue Powell TUCKER et al., Appellees.
    No. 4120.
    Court of Civil Appeals of Texas. Eastland.
    April 14, 1967.
    Rehearing Denied May 5, 1967.

      Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., and F. H. Pannill, Midland, for appellants.
    Turpin, Smith, Dyer, Hardie & Harman, Irby L. Dyer and Robert L. Woodward, Midland, Hudson & Archer, Monahans, for appellees.
   WALTER, Justice.

Florence Hall, individually, and with Merle J. Stewart, as independent executors of the estate of G. T. Hall, deceased, and others filed suit against Jimmie L. Powell, a widow, and others in trespass to try title to all of Section 144, Block 34, H. & T. C. R. R. Co. Survey in Ward County. The plaintiffs claimed record title and title under the three, five, ten and twenty-five year statutes of limitation.

In a non jury trial, judgment was rendered in favor of the plaintiffs for 1%4ths interest in the property and against plaintiffs as to 1½4⅛8. The plaintiffs have appealed. They contend the court erred in rendering a take nothing judgment against them as to a ^íths interest because ap-pellees failed to prove that the land was the separate property of W. E. Powell and J. A. Powell; because they failed to prove that appellants had any knowledge that it was the separate property of W. E. or J. A. Powell and because J. V. Cline, as a purchaser without notice of the outstanding title, cut off all other claims to the property. Appellants also contend the court erred in sustaining appellees’ motion to strike the deed from Emma Sue Powell Tucker to J. V. Cline.

We find there is some evidence of probative force to support the court’s implied finding that the property was the separate property of W. E. and J. A. Powell. No findings of fact or conclusions of law were requested by appellants. “It is elementary that when the appellant contests the trial court’s judgment without requesting findings of fact or conclusions of law, we must assume that the trial court’s findings were all in support of its judgment; and the judgment must be affirmed if there is any evidence of probative force to support it upon any theory authorized by law.” City of Abilene v. Meek, 311 S.W.2d 654, (Ct.Civ.Apps.1958, writ ref.).

W. E. and J. A. Powell were residents of the State of Mississippi when they acquired the property on January 30, 1915. A licensed and practicing attorney from Mississippi testified that Mississippi was not a community property State but followed the common law, except as modified by statute, that property acquired in the name of the husband is presumed to be his separate property. The record contains some evidence of probative value that the Powells each paid $500.00 for the property. W. E. Powell procured his part of the purchase price by farming, land sales and borrowing from the bank. J. A. Powell had the “cash on hand.” The record also contains some evidence that the wives of W. E. and J. A. Powell had no separate property and did not contribute any money in purchasing said property.

The property was presumed to be the community property of W. E. and J. A. Powell when they acquired it in 1915. Article 4619, Vernon’s Ann.Civ.St. This presumption was rebutted and the disputed issue was decided in favor of appellees. In Thayer v. Clarke, 77 S.W. 1050, CCA 1903, affirmed by Supreme Court 98 Tex. 142, 81 S.W. 1274 (1904) the court said:

“One of the presumptions indulged under the laws of Texas adds strength to this conclusion. We speak of the presumption that all property held during marriage was acquired during marriage, and by the joint effort of the marital partners. Here we have a husband making a purchase during marriage. There is no proof of how or where he procured the money with which the purchase was made. The presumption is it was earned by him or them during marriage. If this is true, then it was his separate funds, for the laws of his state declare it to be his. That the property, if purchased with his separate funds, became his separate property, is conceded, and the doctrine announced in Blethen v. Bonner, 93 Tex. 141, 53 S.W. 1016, and Oliver v. Robertson, 41 Tex. 422, is not assailed, and in each of them real estate bought in Texas with funds acquired in a common-law state during marriage were adjudged the separate property of the husband.”

In Orr v. Pope, 400 S.W.2d 614, (CCA 1966, no writ history), the court said:

“We have concluded the judgment of the trial court should be affirmed. In the first place, it is the law of this state that where a husband acquired real property situated in Texas while he resides in a common law state, the real property is the separate property of the husband.”

W. E. and J. A. Powell acquired the property in 1915. They died intestate and without children and their widows conveyed the property to Emma Sue Powell Tucker by quitclaim deed of April 26th, 1937 and by correction quitclaim. The quitclaim and the correction quitclaim contained the following :

“IN CONSIDERATION of Ten Dollars cash in hand paid, the receipt of which is hereby acknowledged, and the assumption and payment by the grantee herein of any and all taxes and liens on the lands herein described, we, the undersigned, bargain, sell and quitclaim unto EMMA SUE POWELL TUCKER of Lafayette County, Mississippi, all our right, title, and interest, as heirs at law of J. A. Powell, deceased, of Pontotoc County,-Mississippi, and W. E. Powell, deceased, of Lafayette County, Mississippi, in and to the following described lands in Ward County, Texas, to-wit:
Section No. 144, Block No. 34, H. & T. C. R. R. Co. Survey.”

Mrs. Tucker and husband conveyed to J. V. Cline May 3, 1937 by deed which contained the following:

“This instrument is intended to convey only such interest in said land as is vested in the undersigned, is without warranty, and the purchase— is to assume and pay all liens on said lands.”

Appellants contend there is no evidence that J. V. Cline had any knowledge that the property was other than the community property of W. E. Powell and his wife, Fannie Powell, and J. A. Powell and his wife, Docia Powell. Appellants say the court erred in rendering judgment against them because appellees failed to prove appellants had knowledge that it was the separate property of W. E. and J. A. Powell. Appellees contend that J. V. Cline was not a bona fide purchaser for value without notice of appellees’ ownership because J. V. Cline is shown to claim his title under two quitclaims.

We hold that the authorities support ap-pellees’ contention. In Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286, (1951), the court said:

“This deed contained no covenant of warranty. The deed to Ortiz does not purport to convey the land; it conveys only such title as the grantors and the other parties named had in the land and is therefore nothing more than a quitclaim deed. 14 Tex.Jur. 763, sec. 13. He cannot enjoy the protection afforded a bona fide purchaser; he takes with notice of all defects in the title and equities of third persons. Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226, 234, 136 S.W.2d 207; Cook v. Smith, 107 Tex. 119, 174 S.W. 1094, 3 A.L.R. 940; Threadgill v. Bickerstaff, 87 Tex. 520, 29 S.W. 757; 43 Tex.Jur. 624, sec. 370.”

In Houston Oil Co. of Texas v. Niles, 255 S.W. 604, (Com.Apps.1923), the court said:

“While expressions in some of these cases might indicate that the holder under such quitclaim deed is put merely upon inquiry, we are clear in the view that the decisions cited fairly establish the proposition that the holder of a title in which there appears, however remote, a quitclaim deed is prevented from asserting the defense of innocent purchaser as against an outstanding title or secret trust or equity existing at the time the quitclaim deed was executed.”

Appellants introduced in evidence a warranty deed dated April 27, 1937, from Mrs. Emma Sue Powell Tucker to J. V. Cline to said Section 144. It was admitted in evidence but after it was established that Mrs. Tucker was married on April 27, 1937, and that she was not joined in the deed by her husband and it did not have a married woman’s acknowledgment, the court sustained a motion to strike the deed. The appellants then introduced in evidence a quitclaim deed dated May 3, 1937 from Mrs. Tucker to Cline conveying the same property in which deed Mrs. Tucker was properly joined by her husband, J. A. Tucker, and proper acknowledgments were taken. Appellants contend that because the court refused to admit in evidence Mrs. Tucker’s deed in which she was not joined by her husband, they were deprived of a valuable right to assert their rights under the full warranties contained in the deed.

Mrs: Tucker was a resident of Mississippi at the time she acquired the property by quitclaim deed. There is evidence in the record that Mississippi is not a community property state but that it is a separate property state; that there is a presumption in said state that property taken in the name of the husband or wife is the separate property of that person and that a conveyance to the wife in which she assumes an obligation to pay taxes or an indebtedness against land, the obligation becomes her separate liability. In Bice v. Estate of Bice, 274 S.W.2d 152, (CCA 1954, no writ history), the court said:

“It was conclusively established upon the hearing of the summary judgment that the land involved was the separate property of Mrs. Bice and that at the time of the execution of the written instrument she was the wife of F. L. Bice. The only power conferred by our law upon a married woman to convey her separate property is contained in Article 1299, Vernon’s Annotated Civil Statutes, which requires the joinder of the husband in conveyances by her of such property. This being true, we hold that it is mandatory that the husband shall join in the conveyance of the separate property of his wife. Therefore, the written instrument relied upon as a basis for recovery herein cannot be specifically enforced because F. L. Bice, the husband of Sarah Wilson Bice, did not join her in its execution.”

In Humble Oil & Refining Company v. Downey, 143 Tex. 171, 183 S.W.2d 426, (Sup.Ct.) 1944, the court said:

“Under all the decisions of this Court on the question, the separate acknowledgment of a married woman in the manner and form required by Articles 6605 and 6608 of our Civil Statutes of 1925 is absolutely essential to the validity of any instrument conveying her separate lands in this State. Noncompliance with such statutes renders the instrument an absolute nullity. Johnson v. Bryan, 62 Tex. 623; Veeder v. Gilmer, 103 Tex. 458, 129 S.W. 595; 23 Tex.Jur., p. 277; 1 Tex.Jur., p. 519, and authorities there cited.”

We have concluded that the land involved herein was the separate property of W. E. and J. A. Powell and at their deaths one-half interest passed to their widows and the other one-half vested in the surviving brothers and their descendants.

We have considered all of appellants’ points and find no merit in them. The judgment is affirmed.