author: TIREY, Justice.

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Isaac Denton CUMMINGS, Appellee.
    No. 4075.
    Court of Civil Appeals of Texas. Waco.
    Jan. 10, 1963.
    Rehearing Denied Jan. 31, 1963.

      Jones, Boyd, Westbrook & Lovelace, Waco,, for appellant.
    McLaughlin, Clark, Fisher, Gorin & McDonald, George Clark, Waco, for appellee.
   TIREY, Justice.

This is a compensation case. On a verdict favorable to plaintiff, the Court set aside the award of the Industrial Accident Board and decreed that plaintiff recover the sum of $20.18 per week for a period of 401 weeks from September 8, 1960, and found that the plaintiff is entitled to have the liability of the defendant redeemed by payment of a lump sum with interest upon all past due installments at the rate of 4% compounded annually from the date that each became due, and for all advanced payments discounted at the rate of 4% compounded annually, and to recover interest upon the judgment at 4% compounded annually from date of judgment until paid, and found that defendant had not paid any compensation up to date. It further decreed that plaintiff recover the sum of $7424.41, with interest at the rate of 4% per annum compounded annually from date of judgment until paid, and fixed reasonable attorneys fees for plaintiff’s attorneys, and decreed that plaintiff be apportioned 70% of the amount of the judgment, and that his attorneys be apportioned 30%, and taxed all costs against defendant.

The judgment is assailed on 19 Points. Points 1 and 2 are to the effect that the Court erred substantially as follows: (1) In presuming as a matter of law that ap-pellee had good cause for failure to file his claim with the Industrial Accident Board before July 26, 1961, more than six months subsequent to September 8, 1960, the date of the alleged accidental injury; (2) In overruling appellant’s motion for instructed verdict, where the evidence and the admissions of appellee established as a matter of law that appellee did not file his notice of claim with the Industrial Accident Board within six months of the date of the alleged accidental injury and did not have good cause for his late filing. It is our view that each of the Points must be overruled for reasons hereinafter stated.

A statement is necessary. Plaintiff filed his claim on July 25, 1961, with the Industrial-Accident Board for accidental injury sustained by him on September 8, 1960, in the course of his employment while he was assisting in moving some boxes out of the elevator at Goldstein-Migel Company in Waco, and stated that a stack of boxes buckled and fell against him, knocking him against the elevator and caused the accidental injury to his right leg, which injury extended to and affected other parts of his body generally. Evidence was tendered to the effect that six or eight bundles weighing 60 pounds to the bundle, struck plaintiff on his right leg and threw him back against the steel wall of the elevator, striking his right hip, and that the weight of the bundles caused him to fall to the floor, and that he came to rest after the fall sitting on the floor against the back of the elevator with his left leg in a twisted position and his right leg outstretched with the bundles piled on his leg, pinning him down until they were removed by a fellow employee; that after the accident the claimant complained of an open wound seven to eight inches long on the front of his right leg below the knee where the skin and flesh were scraped down to the bone; that a swollen area immediately developed below the right knee and never went away; that plaintiff at once began having severe pain in his right leg and up the back of his leg and into the hip along the sciatic nerve; that as a result of the injury and resulting infection in the area, a severe phlebitis developed which still persists at the time of the trial; that swelling and discoloration developed in the leg as a result of the injury and infection and enlarged, tortuous and painful varicose veins developed in the right leg as a result of the accident; that severe cramping developed in the right leg; that arthritic deposits in the right knee and right hip and in the blood vessels in the pelvic region near the right hip j oint either developed as a result of the accident or were aggravated by the injury so that such condition for the first time began to cause pain and discomfort; that the sciatic nerve on the right side was damaged by the direct blow to the hip in the accident, and the infection and persistent pain along the sciatic nerve on the right side was caused by a ruptured disc, and that the injuries have resulted in total and permanent incapacity, and that he has been so incapacitated since the date of the accident on September 8, 1960.

Plaintiff’s original petition was filed November 6, 1961, and his first amended original petition was filed on March 2, 1962, the last being the pleading on which the plaintiff went to trial. The original petition contains some 11 pages; plaintiff’s first amended original petition, on which he went to trial, contains some 9 pages, and in each of these pleadings plaintiff set out clearly and in detail grounds which he alleged constituted good cause for his failure to file claim for compensation with the Industrial Accident Board for his injuries of September 8, 1960, until July 26, 1961.

Since the sufficiency of appellee’s trial pleading on the grounds of good cause have not been questioned by points of assignment in appellant’s brief, and since the defendant did not deny either the existence of good cause or the truth of plaintiff’s allegations of good cause in a pleading filed not less than 7 days before the cause proceeded to trial as required by Rule 93 (n), Texas Rules of Civil Procedure, it would serve no useful purpose to go into detail as to the allegations of plaintiff constituting good cause. See Art. 8307b, Vernon’s Ann. Rev.Civ.Stats.; Southern Underwriters v. Tullos; 136 Tex. 408, 151 S.W.2d 789. See also Traders & General Ins. Co., v. Porter. Tex.Civ.App., 124 S.W.2d 900, Pt. 1 (Nov. 1938, w. ref.); Texas Employers Ins. Ass’n v. Warren, 149 S.W.2d 182, Pts. 1-2 (March 1941, this Court, writ ref.). As we understand the decision of our Supreme Court on the foregoing matter, it is to the effect that the provisions of Rule 93 (n) are mandatory, and in effect hold that an allegation on behalf of plaintiff for good cause to file his claim within the statutory period must be challengéd by pleadings denying under oath the existence of good cause for appellee’s failure to file his claim for compensation within the 6 months period provided by the statute, or by denying under oath the truth of the facts as pleaded by appellee as constituting good cause. Our Supreme Court clearly stated the reason for its holding and it has not seen fit to change or modify the Rule heretofore stated. It is true that after testimony was closed, and after both sides had rested, the defendant filed its second trial amendment on March 29, 1962, in which pleading it challenged the issue of good cause by verified plea; however, appellee seasonably filed his motion to strike on the grounds that the pleading was not filed within the time provided by Sec. (n) of Rule 93, aforesaid, and this motion was sustained and the pleading was stricken. Under the above authorities we sustain the action of the Trial Court. Moreover, in the Court’s judgment we find:

“It appears to the Court that the plaintiff, by the allegations in his first amended original petition, shows good cause for plaintiff’s failure to file claim for compensation with the Industrial Accident Board until the time the same was filed on July 26, 1961, and it appears further to the Court that defendant did not, either in its second amended original answer, filed on March 14, 1962, or in an amended pleading filed not less than seven days before this cause proceeded to trial, deny under oath the existence of good cause for plaintiff’s failure to file claim within six months after the date of the injury, or the truth of the facts pleaded by plaintiff as constituting good cause for delay in filing claim for compensation until the time it was filed on July 26, 1961.”

The foregoing finding is not challenged by appellant’s amended motion for new trial, nor is it challenged in appellant’s brief, and must be accepted as correct. See Benson v. Greenville National Exchange Bank, Tex.Civ.App., 253 S.W.2d 918, Pt. p. 928; 4 Texas Digest, Appeal & Error,

Appellant cites and relies on the following cases: Southern Underwriters v. Tullos, supra; Watson v. Texas Indemnity Ins. Co., 147 Tex. 40, 210 S.W.2d 989; Fidelity & Casualty Co. of New York v. Landry (Beaumont Court 1961), Tex.Civ.App., 345 S.W.2d 778, n. r. e.; Texoma Broadcasting Company of Wichita Falls v. Darter, Tex.Civ.App., 296 S.W.2d 277, n. w. h.; Wade v. Superior Ins. Co., Tex.Civ.App., 244 S.W.2d 893, w. ref.; Texas Osage Co-op Royalty Pool v. Kemper, Tex.Civ.App., 170 S.W.2d 849, w. ref.; Texas Employers’ Ins. Ass’n v. Brockman, Tex.Civ.App., 283 S.W.2d 817, n. r. e.; Texas Employers’ Ins. Ass’n v. Ham, Tex.Civ.App., 333 S.W.2d 438, n. r. e.; Kimmell v. Tipton, Tex.Civ.App., 142 S.W.2d 421, n. w. h.; Consolidated Casualty Ins. Co. v. Perkins, 154 Tex. 424, 279 S.W.2d 299; Art. 8307, Revised Civil Statutes, Sec. 4a; Rules 67, 90 and 93, T.R.C.P.; McDonald’s Texas Civil Practice, Vol. 2, Sec. 5.04, p. 482. We have carefully read each of appellant’s citations, and do not believe that they support appellant’s view that this cause should be reversed and remanded.

In oral argument appellant’s counsel put great stress on the decision of the Beaumont Court in the Landry case, supra. We have carefully reviewed this decision and it is our view that the factual situation in the Landry case is obviously distinguishable from the undisputed factual situation in this cause, and the Rule applied in the Landry case is not applicable here. We think we should add that issues are not tried by consent merely by the hearing of testimony thereon, but that submission to the jury has been held to be a part of the process, and the mere facts that testimony may have been developed on issues not necessary to be submitted to the jury under the pleading does not mean that the party has consented to the trial of such issues. See Matthews v. General Accident, Fire & Life Assurance Corp., 161 Tex. 622, 343 S.W.2d 251; also Harkey v. Texas Employers’ Ins. Ass’n, 146 Tex. 504, 208 S.W.2d 919. The term “good cause” for not filing a claim for compensation is not defined by the statute, but it has been uniformly held by the Courts of this state that the test for its existence is that of ordinary prudence; that is, whether the claimant prosecuted his claim with the degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances. Whether he has used the degree of diligence required is ordinarily a question of fact to be determined by the jury or the trier of the fact. It may be determined against the claimant as a matter of law only when the evidence construed most favorably for the claimant admits no other reasonable conclusion. See Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370. In this connection we find that claimant’s allegation to the effect that he believed in good faith that his injuries were not serious, and the further allegation to the effect that he relied on advice of a physician of appellant that his injuries were not serious, brings the claimant’s allegation well within the Rule set out in Harkey v. Texas Employers’ Ins. Ass’n, aforesaid. The foregoing Rule by the Supreme Court not having been changed or modified.

We think we should state that the law is well settled that in all cases a reasonable time should be allowed for the investigation, for the preparation and filing of a claim for compensation after the seriousness of the injuries is suspected or determined, and what is a reasonable time depends upon the facts of the particular case and is usually a question of fact. See Hawkins v. Safety Casualty Company, supra. In Texas the rule is well settled that the bona fide belief by a claimant that his injuries are not serious or that they will not disable constitutes good cause if the claimant is acting as an ordinarily prudent person, and particularly is this true when the belief is induced at least in part by the positive representation of the insurance company’s doctor that the injury is not serious and will not be disabling and that claimant can and should continue working. See Hawkins v. Safety Casualty Company, supra. It is likewise true that the good faith that a claimant’s belief that his injuries are not serious as a ground for excusable delay in filing claim for compensation is not affected by the fact that almost constant pain and suffering has existed since the date of injury. See Harkey v. Texas Employers’ Ins. Ass’n, supra. It is the Court’s duty to bear in mind that the Workmen’s Compensation Act is a remedial statute and should be liberally construed to effectuate its humanitarian purposes and to promote justice. See Huffman v. Southern Underwriters, 133 Tex. 354, 128 S.W.2d 4. The extent of liberality to which our Supreme Court has gone is vividly illustrated in Hood v. Texas Indemnity Company, 146 Tex. 522, 209 S.W.2d 345. It is also well settled that the fact that a claimant continued to work and earn money since injury is not controlling on the issue of total and permanent disability, but it is evidence to be considered with other facts and circumstances before the jury. See Consolidated Casualty Ins. Co., v. Baker, Tex.Civ.App., 297 S.W.2d 706, n. r. e., and cases there cited.

The record in this cause is voluminous, but we have considered it most carefully. We are of the view that the charge of the Court correctly submitted the issues tendered by the pleadings and the evidence, and we find no error in the charge, and the evidence is sufficient to support the verdict. Each of the other Points in appellant’s brief has been carefully considered, and it is our view that none presents reversible error.

Accordingly, the judgment of the Trial Court is affirmed.


source: Caselaw Access Project

author: NORTHCUTT, Justice. DENTON, Chief Justice

license: Public Domain

text:
    SHAMROCK OIL AND GAS CORPORATION, Appellant, v. Bertie N. PRICE et al., Appellees.
    No. 7211.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 7, 1963.
    Rehearing Denied Feb. 4, 1963.

      Underwood, Wilson, Sutton, Heare & Berry, J. Avery Rush, Jr., and Ed H. Selec-man, Amarillo, for appellant.
    Richards & Ferguson, Dalhart, Cantey, Hanger, Johnson, Scarborough & Gooch, Fort Worth, for appellees.
   NORTHCUTT, Justice.

This appeal is from an order overruling a plea of privilege. Appellant is a foreign corporation having a permit to do business in Texas, with its principal office in Amarillo, Potter County, Texas. The suit was instituted by appellees to recover of appellant the difference in the sum paid by appellant to appellees for certain gas. It was the appellant’s contention that it paid to appellees the market value of the gas, and appellees contend the market value was more than paid for by appellant. The suit was filed in Sherman County, Texas. Appellant filed its plea of privilege seeking to have the case transferred to Potter County, the place of its principal office and place of business. Appellees filed their controverting plea of privilege seeking to hold venue in Sherman County by virtue of Sections 23 and 27 of Article 1995, Vernon’s Ann.Texas Civil Statutes. It is true, the appellees in the controverting plea also contended venue should be held in Sherman County by virtue of Sections 5 and 14 of Article 1995, but we do not believe they urge those sections in this appeal. However, should we be wrong in our belief, we hold Sections 5 and 14 have no application in this appeal. The question here concerns the payment of the market value of gas. There is nothing in the oil and gas leases stating where payments were to be made as being a contract performed in Sherman County under the terms of Section 5 and the suit does not involve lands as provided in Section 14. The plea of privilege was overruled and from that judgment appellant perfected this appeal.

Appellant’s first point contends that Section 23 of Article 1995 does not apply to foreign corporations. Section 23 refers to corporations and makes no distinction between foreign and domestic corporations. Section 23 applies alike to foreign corporations and domestic corporations. Grayburg Oil Co. v. Powell, 118 Tex. 354, 15 S.W.2d 542; Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978; Pittsburg Water Heater Co. v. Sullivan, 115 Tex. 417, 282 S.W. 576.

By appellant’s second point of error it is urged that Section 27 of Article 1995 is unconstitutional since it conflicts with Section 23 of Article 1995. We do not believe that it is necessary for us to pass upon the constitutionality of Section 27 in determining the question of venue here, but where Section 27 conflicts with Section 23 it has been held unconstitutional. Maryland Casualty Company v. Torrez, Tex.Civ.App., 359 S.W.2d 559 (writ dismissed).

Appellees executed certain oil and gas leases to appellant on land situated in Sherman County. There is no question but that certain wells were drilled and gas produced. Neither is there any question about appellant having the right to purchase ap-pellees’ portion of the gas produced and appellant agreeing to pay the market value. The leases were signed in Sherman County by appellees and sent to either the First National Bank of Amarillo or the Amarillo National Bank with drafts attached. The leases were to be delivered when title was approved by appellant’s attorney and accepted by appellant and the drafts paid. The drafts were paid by appellant at the banks in Amarillo. A deed or oil lease is not executed until there is delivery of it and the consideration therein required is paid. Johnson v. Freytag, Tex.Civ.App., 338 S.W.2d 257 (NRE).

Appellant did not agree in the leases to make payment in Sherman County. The record is silent as to where payments were to be made. It is stated in Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120 by the Supreme Court as follows:

“From this it would apparently follow that the essential obligation in suit for venue purposes is that of payment, and since no place of performance of that obligation is stated in the contract, no exception to the general rule of venue at the domicile is involved.”

This suit is for the failure of appellant to pay the difference in royalties based upon the value as computed and paid for by appellant and royalties based upon the market value as claimed by appellees as being the proper rate. Stated in another manner, appellant claimed it had paid ap-pellee the value for the gas and appellees contended appellant had not paid the market value and that the market value was higher than paid for by appellant. The leases were accepted in Potter County. Consequently, Potter County was the county in which the contracts or leases were made. Harris & Beeman v. Koon, Tex.Civ.App., 229 S.W.2d 212 and the cases there cited; Gleason v. Southwestern Sugar & Molasses Co., Tex.Civ.App., 214 S.W.2d 640; National Life Co. v. Wolverton, Tex.Civ.App., 163 S.W.2d 654; Wood Motor Co. v. Hawkins, Tex.Civ.App., 226 S.W.2d 487. It is also true that a cause of action accrues for the breach of a contract at the place where the breach occurred. National Life Co. v. Wolverton, Tex.Civ.App., 163 S.W.2d 654. The market value at the wells would be the place where the market value should be shown; but as we see the matter, it would not determine the place of payment. The agreement to pay the market value was made in Potter County and if it failed to pay the market value since no place of performance of that obligation is stated in the leases, the failure' was in Potter County. We are unable to see where any part of the transactions creating the primary right or some part of the transaction relating to the portion of that right accrued in Sherman County, and one or the other must have happened in Sherman County to hold venue there. Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674 and cases there cited.

By the expression “the cause of action or a part thereof accrued” means the right to institute and maintain suit and whenever one person may sue another a cause of action has accrued. Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716.

This is not a suit to recover for oil and gas taken and not paid for but is based upon the contention appellant has paid less than the market value. The leases having been accepted in Potter County, we think the contract to pay market value was made in Potter County; and no statements having been made as to where such payments were to be made, that such payments would be at appellant’s principal office and that venue would be in Potter County where appellant’s principal office is located.

Judgment of the trial court is reversed and the case ordered transferred to a district court in Potter County, Texas. Reversed and rendered with instructions.

DENTON, Chief Justice

(concurring).

I agree that the judgment of the trial court should be reversed and the court instructed to enter an order transferring this case to the District Court of Potter County, Texas.

The plaintiffs’ suit is in the nature of an accounting in which damages are sought by reason of the alleged failure of Shamrock to pay the correct amount of royalties in accordance with the terms of the oil and gas leases. It is undisputed that royalties are being paid. The crux of the case is whether or not the royalties are being computed at the correct rate under the terms of the leases; that is to say, the principle element of the cause of action to be proved in the venue hearing is that of payment.

Appellees, in relying on Subdivisions 23 and 27 of Article 1995, contend they have alleged and proved that the cause of action “or a part thereof” arose in Sherman County; and that the significant fact which activated the obligation to pay was the production of gas in Sherman County. The fact production of gas was obtained in Sherman County is an evidentiary matter. Proof that production was had, in addition to the amount of production, will be essential on the trial of the case on its merits in order to establish the amount of damages, if any; but production itself does not constitute a part of the cause of action for venue purposes. As the essential element of the cause of action for venue purposes is that of payment, and since no place of payment is stated in the leases, no exception to the general rule of venue at the domicile of the defendant is involved. Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120. Although the Rorschach case involved Subdivision 5 of Article 1995, the reasoning and conclusions therein expressed are applicable to the case at bar. Whatever obligation Shamrock owes to the appellees, it is owed under the lease contracts.


text:
    The STATE of Texas, Appellant, v. WACO INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 4030.
    Court of Civil Appeals of Texas. Waco.
    Jan. 17, 1963.
    Rehearing Denied Feb. 7, 1963.

      Will Wilson, Atty. Gen. of Texas, Morgan Nesbitt, Asst. Atty. Gen., Austin, John B. Webster, Sp. Asst. Atty. Gen., Dallas, for appellant.
    Richey, Sheehy, Teeling & Cureton, Sam Lanham, Waco, for appellees.
   TIREY, Justice.

This is a condemnation case. The State brought the action to condemn for highway purposes 7.40 acres of the campus of the University High School in Waco. The special commissioners awarded to appellee the sum of $603,328.00. Both State and school district filed their objections to the award, and upon jury trial in the County Court judgment for condemnation was rendered and appellee was awarded the sum of $850,-000.00. The State appealed.

The judgment is assailed on 16 Points. Points 1 to 7 inclusive are briefed together, and they are substantially to the effect that the Court erred: (1) In submitting to the jury issue 1 over appellant’s objection that it contained an improper measure of damages; (2) Because the wording of the issue assumes that the remaining land and improvements do not have the same utility after the condemnation that they had prior to the condemnation and is, therefore, a comment on the weight of the evidence; (3) Because the wording of the issue assumes that there is. a necessity after the condemnation for the acquisition of additional land for school use and is, therefor, a comment on the weight of the evidence; (4) That the issue is multifarious; (5) That there was no pleading to support the submission of the issue; (6) In refusing to submit appellant’s Issues 1 and 2 seeking the jury’s determination of the value of the High School campus to the School District, both before and after the condemnation; (7) In refusing to submit appellant’s requested Issue 3 for a determination of whether or not the condemned property had a market value as of the date of the taking.

The Court submitted one issue to the jury:

“What do you find from a preponderance of the evidence was the reasonable cost, on November 7, 1961, of land, if any, and facilities, if any, reasonably necessary to replace the 7.40 acres of land and facilities taken by the State with land, if any is required, and facilities of the same or reasonably equal utility for high school purposes as that to which the 7.40 acres and facilities were reasonably utilized immediately prior to the taking in question, and reasonably necessary, if any are reasonably necessary, to restore the remaining 18.35 acres of land and facilities to the same or reasonably equal utility for high school purposes as that to which the 18.35 acres of land and facilities were reasonably utilized immediately prior to the taking in question?”
To which the jury answered: “$850,-000.00.”

A statement is necessary. The State’s suit was filed pursuant to authority of Art. 6674w-3, Vernon’s Ann.R.C.S., which article provides in effect that the exercise of power of eminent domain under such article shall be subject to the laws and procedures described in Article 3264 through Article 3271, R.C.S., Vernon’s Ann. Civ.St. arts. 3264-3271. During the course of the trial the school district filed its first trial amendment, in which it alleged that the correct measure of damages in this case was the reasonable cost to the school district of providing reasonable substitute facilities to replace facilities condemned by plaintiff. Plaintiff duly excepted to this allegation and it was overruled. It is the State’s contention that the difference between the value of the entire campus (25 acres) immediately before the taking, and the value of the remainder immediately after taking, and the market value of the condemned property, together with all damages, if any, which resulted to the remainder of the campus as a result of the condemnation, is the proper measure of damages. The State further contends that constitutional guarantee for compensation for the appropriation of the property for public use is controlled by Title 52 of our Revised Civil Statutes, and that Article 3265 sets forth the method of the determination of the compensation due to a property owner under the exercise of the right of eminent domain; that the concept of market value as the result of damages as set forth in the Article was recognized by our Supreme Court prior to the enactment of the statute, see Buffalo Bayou, B. & C. R. R. Co. v. Ferris, 26 Tex. 588 (1863) ; that our Courts have continued to recognize the market value for compensation as shown by the landmark case of State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 and 979 (979 being the opinion of the Court on motion for rehearing). The State further contends that there is no precedent in the decisions of the Texas Courts for the use of the cost of replacing the condemned facilities as a result of the taking. In opposing the contentions of the State the school district says in effect that Article 1, Section 17 of our State Constitution, Vernon’s Ann.St. prevents appellant from taking, damaging or destroying or applying to public use any property without adequate compensation being made therefor. Such section, in part, provides: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; * * This Court applied that rule in McLennan County v. Sinclair Pipe Line Company, Tex.Civ.App., 323 S.W.2d 471, n. w. h. See also Sinclair Pipe Line Company v. State, Tex.Civ.App., 322 S.W.2d 58, n. w. h. Testimony was tendered to the effect that the campus originally contained some 25 acres, and that the taking of the 7.40 acres included 4 buildings plus the major part of two other buildings; that for all practical purposes, the taking has included most of the classroom facilities of the high school, and that there is not much left. Mr. Downing, the Superintendent, testified to the effect that for all practical purposes the high school “had been wiped out” because the majority of the classrooms had been taken, and classes could not be successfully conducted with the facilities that were left, and the school is ruined by the taking as far as capacity is concerned; that after the taking that the school is left with a $250,000.00 gymnasium, a portion of the campus and three shop buildings, and that in order to make use of those facilities it was necessary to rebuild the academic classrooms; that without the classrooms, the gymnasium would be of no value to the school system; that in his opinion, as Administrator of public schools, that it is desirable and necessary to continue this program and to rebuild the school. He further testified to the effect that he had been a school teacher for 25 years, and during that time he had served as Administrator, Principal, Assistant Superintendent, and Superintendent for 16 or 17 years; that public high schools in the city of Waco or elsewhere, so far as he knew, were not bartered for sale as private property, and that the Waco School District did not sell or trade its public schools; that public schools are not bought and sold. In fact, there is an absence of testimony in the record that public school property is traded and sold in the open market. So the major question in this case is: Did the Trial Court err in holding as a matter of law that the property of the school district as such did not have a market value, and that the form of submission in the Carpenter case, supra, would not give the school district an adequate measure of damages? We think the answer is “No.” Our view is that the proper measure of damages is what is reasonably necessary to restore the remaining 18.-35 acres of land and facilities to the same or reasonably equal utility for high school purposes as that to-which the 25 acres of land and facilities were reasonably utilized immediately prior to the taking in question, which measure of damage is presented in the issue the Court submitted to the jury. This view is grounded on the fact that it makes no difference whether the property had a market value or not, because the value of what the school has or what it has lost is not the inquiry before us; that inquiry is the cost of restoring the remaining facilities to a utility for school purposes equal to that enjoyed prior to the taking if the facility is reasonably needed to fill a public requirement. We are of the view that such Rule was applied in Town of Clarksville v. United States, Fourth Circuit, 4 Cir., 198 F.2d 238. In that case we find this statement:

“Accordingly, the equivalence requirement which must be met with respect to the substitute facility is more that of utility than of mere dollar and cents value. * * * And the substitute facility must be that which the claimant is legally required to construct and maintain, whether or not this type be more expensive or efficient than the facility which was condemned.”

Perhaps one of the finest discussions applying the foregoing principle is found in United States v. Board of Education, 253 F.2d 760, (4th Circuit), and cases there cited. See also United States v. Cors, 337 U.S. 325, 69 S.Ct. 1086, 1090, 93 L.Ed. 1392; Brown v. United States, 263 U.S. 78, 44 S.Ct. 92, 68 L.Ed. 171; City of Fort Worth v. United States, 188 F.2d 217, (5th Circuit). Applying the foregoing principle to the undisputed factual situation here the substitute facility can have no value of any kind until it is constructed, and it has no market value upon completion because it is set aside to Governmental use, so we are of the view that appellant’s requested issue 3, inquiring of the jury whether the property had a market value was wholly immaterial, because of the views here stated. It is true that the Trial Court in United States v. Board of Education, supra, instructed the jury, in effect, that it must make a finding of any or no market value as a predicate to the application of the reasonable substitute rule; but on appeal the appellate court did not so treat the question. In its discussion of Mayor & City Council of Baltimore v. United States, (4th Circuit), 147 F.2d 786, the Court stated in effect that the street involved in the Baltimore case, like the school property it had before it, had no market value for the purposes for which it was being used, and that the Court’s discussion of the reasonable substitute rule makes it clear that market value is not involved. The case of Board of Education v. Kanawha & M. R. Co., 44 W.Va., 71, 29 S.E. 503, is some authority for the proposition that school property, while devoted to such use, has no market value as a matter of law.

As we view this record it seems to us that the Trial Court grounded its view on the basis that the property -remaining after taking has value to the school district only to the extent that it is a starting point from which to rebuild a high school campus that is absolutely necessary to the Waco School District; that, therefore, the before and after value to the premises to the school would be solely dependent upon the cost of acquiring or constructing reasonable substitute facilities; that the proposed issues as contended by appellant, is simply a more •complicated way of submitting the same issue of damages which the Trial Court framed in a single affirmative issue. Nor do we think the issue submitted was multifarious. As we understand the issue, it inquires as to the cost of the land and facilities, if any, necessary to replace those condemned so as to restore the remainder of the campus to a utility equal to that which the campus had prior to the condemnation. The issue does not call for separate elements of damages. The latter part of the issue relating to the restoration of the remaining 18.35 acres is not a separate element of damage, but on the contrary is a limitation imposed upon the jury to prevent it from including the cost of any land or facilities not necessary to the equivalence of the former utility. This clause, we think, protects the appellant against the possibility of the assessment of double damages. Moreover, it is obvious that this particular school cannot be operated without classrooms, and the evidence is undisputed to this effect. Surely sound business judgment would not tolerate the abandonment of the remaining 18.35 acres with its several hundred thousand dollars in improvements already thereon. Certainly an abandonment of the remainder would have resulted in much greater damage in this cause. It follows that we are of the view that appellant has not been harmed by the wording of the issue, but, on the contrary, has been afforded protection by the way in which the issue is worded. Under the factual situation here before us we are of the view that the measure of damages could not have been fairly submitted by following the form used in the Carpenter case, supra. For example, if the Trial Court had submitted an issue inquiring as to the cost of land and facilities reasonably necessary to the replacement of the 7.40 acres condemned by the State, and followed that with an issue inquiring as to the cost of land and facilities necessary to restore the remainder to equal utility, we think the Court would have invited a finding of double damages, since the only purpose for replacing the 7.40 acres is to restore the remainder to the equal utility as it existed before the condemnation. Therefore, the Trial Court properly and fairly submitted the measure of damages in the single issue, and in so doing imposed upon the jury the limitation that prohibited it from allowing the cost of any replacement facilities not necessary to the restoration of the remainder. Since land and improvements have always been submitted together under the direction of the Carpenter case, therefore, the objection that the issue is multifarious is without any basis. This Court following the Supreme Court in the Carpenter case in State v. Miller, Tex.Civ.App., 92 S.W.2d 1073, (n. w. h.), opinion by late Justice Alexander, made this statement of the rule:

“The remedy of eminent domain, * * is a harsh one and must be exercised in accord with the strict principles appertaining thereto. * * * Such proceeding is in the nature of an enforced sale in which the agency so appropriating the land stands in the position of a buyer. Consequently, it must either take the land with the permanent improvements thereon as it stands and pay for it accordingly, or reject it in toto.”

In the Carpenter case on rehearing (Points 3-5) we find this significant statement:

f> * * * if the improvements which are situated upon the portion of land taken are essential to the use and enjoyment of the remainder of the land, or if their replacement, by removal or reconstruction, is necessary in order to obviate depreciation in the value of the residue, the cost of removal, and/or reconstruction and/or replacement may be a proper inquiry in connection with the issue of diminished market value of the remainder.
* * * * * *
“This opinion must not be construed as attempting to furnish an inflexible rule to be followed in all similar cases.” (Points 7, 8.)

Here the evidence is without dispute that the school district must of necessity replace the buildings that the State destroyed by the taking. The school district is obligated and must have the additional classrooms in order to provide the facilities needed by the school, and consequently there is no way to do it and at the same time utilize the valuable improvements remaining on the 18.35 acres except by replacement.

There is a fundamental distinction between obligation resting on the agency condemning public property, and that of condemning private property. This distinction lies in the obligation thereby imposed on the condemnee. For example, a private party owes no duty to the public to continue its operation either at its original location or elsewhere. It can move, it can stay, or it can liquidate as it alone sees fit. Not so with a school system charged with a legal obligation to the public. A school system suffering the loss of one of its schools by condemnation must replace that school when the facility is necessary to the education of its children as shown by the undisputed evidence in this case. This is the legally imposed duty on the school district, and it has no other choice.

Our view is that since the issue asks the jury to determine only one amount, and that since the State was taking part of school property and destroying it and the usefulness of the school for such purposes, the Trial Court correctly submitted the one issue as a proper measure of damages in this case. Nor do we think the issue is a comment on the weight of the .evidence. The issue does not assume that the land and facilities were necessary to the restoration of the remaining premises for high school use. But on the contrary, the issue permits the jury to find that no additional land or facilities would be necessary since it inquires as to the cost of land, if any, and facilities,' if any, necessary to replace the land taken by the State with land, if any is required, and facilities necessary, if any, are reasonably necessary, to restore the remainder to equal utility. Surely that did not place any greater burden on the State than it was required to bear by reason of the taking of the 7.40 acres of land, and is in accord with the provisions of Article 1, Sec. 17, of our State Constitution, which provides in effect that you cannot condemn property without adequate compensation being made. It follows that we are of the view that Points one to seven inclusive do not present error and each is overruled. We have carefully considered each of appellant’s other points, and it is our view that none presents error, and each is overruled.

Perhaps we should add that it is our view that the evidence is ample to sustain the verdict.

Accordingly, the judgment of the Trial Court is affirmed. All costs of appeal are taxed against the State of Texas.


author: DENTON, Chief Justice.

text:
    James W. MOSS d/b/a Commercial Service, Appellant, v. Emily GIBBS et vir, Appellees.
    No. 7207.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 7, 1963.
    Rehearing Denied Feb. 4, 1963.

      Jack Hazlewood, Amarillo, for appellant.
    Monning & Monning, Amarillo, for ap-pellees.
   DENTON, Chief Justice.

This is an appeal from a judgment restraining and enjoining appellant, James W. Moss, from attempting to enforce a judgment by execution and sale of three city lots situated in the City of Amarillo. The attempted execution was based on a judgment awarded Moss against' Chris Gibbs, the husband of Emily Gibbs, appel-lee. Mrs. Gibbs instituted this suit seeking injunctive relief on the ground the city lots were her separate property and not subject to execution by her husband’s judgment creditors. The case was submitted to a jury. In response to the one special issue submitted, the jury found the lots in question were paid for by Mrs. Gibbs out of her separate funds and rents from her separate property. Based on this jury, verdict, the trial court entered judgment enjoining the attempted execution.

On April 11, 1961, Moss obtained a judgment against Chris Gibbs. On May 15 of that year execution was issued, and thereafter levy was made on the three city lots by the sheriff. Before the sale was made as advertised, the trial court enjoined such sale and this suit followed. It is the contention of appellees that Mrs. Gibbs acquired the three lots on June 4, 194R as her separate property and, as such, the property is not subject to the payment of a debt incurred by her husband. The principal question to be decided is whether or not the property involved is subject to the indebtedness of the husband. Mr. and Mrs. Gibbs have been married since 1912. In 1919 Mrs. Gibbs’ uncle gave her five or six head of cattle and from time to time he gave her a total of approximately thirty cattle. These cattle were sold and the money received was retained by her. In 1924 she established her own bank account. The proceeds from the sale of these cattle were placed in her bank account and from this same account she bought and sold other cattle periodically. This practice went on for some twenty years. The husband had no authority to withdraw funds from his wife’s account and he has never made a claim to any interest in it. When she acquired the three lots in 1941, Mrs. Gibbs paid the full consideration of $1,000.00 with a check drawn on her account. The deed conveyed title to Mrs. Gibbs only, but did not recite the property was her separate property. It is undisputed that Mrs. Gibbs’ bank account, established after her marriage, was derived from the following: The sale of cattle received as a gift from her uncle; sale of other cattle purchased from funds in this account; rents from a rent house which was acquired by funds from this account; and monies received from her husband in payment of money advanced to him for living expenses.

It is evident that the original monies used in opening the bank account constituted the separate property of Mrs. Gibbs. This was the money she received from a sale of the cattle which had been given her as a gift. Proceeds from the sale of separate property assumes the same status as the property sold. Estrada v. Reed (Tex.Civ.App.), 98 S.W.2d 1042 (Error Refused). As a general rule the intrinsic character or status of separate property is not affected by any changes or mutation in its form. That is to say, the character of separate property will not be altered by the sale, exchange, or substitution of the property provided that the property can be traced or identified as separate property. 30 Tex.Jur.2d, Husband and Wife, Section 75, page 132, and cases therein cited. There is positive evidence to the effect the proceeds of the sale of the initial cattle were placed in Mrs. Gibbs’ individual bank account. She purchased a rent house in 1937 with funds from this bank account. Rents from this property were also placed in the account. The deed to. this property was conveyed to Mrs. Gibbs as her separate property. It is quite obvious from the record that Mrs. Gibbs exercised a very real and positive control over these funds and the properties she acquired. In fact, many of her transactions were completed without the knowledge of her husband.

Appellant contends that since the proceeds of the cattle sales and rents from the house are community property, the lots are community property and thus subject to community debts created by the husband. Appellant further contends that as there was a co-mingling of separate and community property, the property became community property. We are unable to agree with these contentions. Although rents and revenues from the wife’s separate property are community property, they are under the exclusive control and management of the wife. It is equally well settled that such rents and revenues may not be subject to the payment of debts .contracted by the husband either by execution or otherwise without the consent of the wife. Article 4616, Vernon’s Ann.Tex.St.; Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799; Hawkins v. Britton State Bank, 122 Tex. 69, 52 S.W.2d 243; Bearden v. Knight, 149 Tex. 108, 228 S.W.2d 837; Van v. Webb (Tex.Civ.App.), 237 S.W.2d 827 (Refused), (NRE). Since Bearden v. Knight was decided in 1950, Article 4616 was again amended in 1957. This amendment eliminated language listing specific items of revenue or income of the wife which were exempt from her husband’s debts, and inserted the broad phrase, “revenue from her separate property”. It is thus clear that the legislative intent was to exempt all kinds of revenue from the wife’s separate property.

The question that next presents itself is whether the wife’s management and control will continue over additional property acquired by the wife from rents and revenues under her management and control. In Hawkins v. Britton State Bank the court held that farm equipment purchased from the rent of the wife’s separate' Sand was under her exclusive management and not subject to the debts of the husband. It has also been held that where community income from a trust of a wife’s separate property was invested by purchasing savings bonds, both the income and the savings bonds so purchased were exempt from the husband’s debts. Mercantile Nat’l Bank at Dallas v. Wilson (Tex.Civ.App.), 279 S. W.2d 650 (Refused), (NRE). The writer is impressed with the scrupulous manner in which Mrs. Gibbs controlled and managed her funds and property purchased therewith. Although it is not a controlling factor, it is apparent from this record that these funds and property were at all times considered to be the separate property of the wife by both Mr. and Mrs Gibbs. Both the Hawkins case and the Bearden case based their conclusion that the rents and revenues from the wife’s separate property are exempt from the husband’s debts on the power of management given the wife over her separate property as provided for in Art. 4614 and the exemptions set out in Art. 4616. In our opinion, the broader language of Art. 4616 as amended in 1957 must be interpreted so as to broaden the power of management by the wife. It logically follows that this power of management and control by the wife should be exercised over the property she has acquired from the accumulation of rents and revenues from her separate property. We, therefore, conclude that property acquired by the wife from reinvested funds accumulated from rents and revenues from her separate property is not subject to the payments of the debts of the husband either by execution or otherwise without the consent of the wife. To hold otherwise would ■deny the wife the right to reinvest the funds of her estate without the property being subjected to the husband’s creditors. In our view, this is contrary to the spirit of our property laws dealing with the wife’s separate property.

The record reflects no error in the trial court’s judgment and the judgment is accordingly affirmed.


author: CHAPMAN, Justice.

text:
    Anna HEIEN et al., Appellants, v. W. T. CRABTREE, Adm’r, et al., Appellees.
    No. 7203.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 17, 1962.
    Rehearing Denied Jan. 14, 1963.

      Fike & Hunter, Dalhart, for appellants.
    E. E. Coons, Texhoma, Will Wilson, Atty. Gen., J. H. Broadhurst, Asst. Atty. Gen., Austin, for appellees.
   CHAPMAN, Justice.

This is an appeal from a summary judg,ment granted W. T. Crabtree, Administrator.-of the estate of R. F. Frei, deceased, and the State of Texas, intervenor.

The action was instituted by the heirs of Frank Frei as one group of petitioners and the heirs of Rosa Frei, his wife, as another group of petitioners to determine heirship of R. F. Frei and by whom his estate was to be inherited. Frank Frei and Rosa Frei had plural marriages, the pleadings alleging he had been married once previously and that to said marriage one daughter, Katherine, was born. Her mother predeceased her. Katherine Frei married Herman Heien and the children and grandchildren of that marriage constitute the petitioners alleged to be the heirs of Frank Frei.

Rosa Frei was married twice before marrying Frank Frei. The heirs through a daughter of her second marriage constitute the petitioners alleged to be the only living heirs of Rosa Frei. It is alleged that no children were born of the marriage of Frank Frei to Rosa Frei.

The pleadings alleged R. F. Frei, a bachelor, died intestate without leaving issue and that the petitioners were entitled to all his estate by inheritance from and through his adoptive parents on the theory of adoption by estoppel.

The various pleadings by petitioners also alleged that R. F. Frei was born out of lawful wedlock and that when he was about two years of age his mother entered into an agreement with Frank Frei and Rosa Frei of Olathe, Kansas, in about the year 1886 at Kansas City, Missouri, by which she agreed to release all her rights to the child to the Freís and they agreed to take the child and adopt him, to give him their name and to treat him as their own natural child. They allege they fed, clothed, and educated him; that he stayed in their home until he was 21 years of age; that they held him out to their friends as their son and adopted son; that he called them “Papa” and “Mama”; that they treated him as their son, lavishing affection upon him and instructing him as to proper conduct and properly training him as a mother and father would train and instruct their own natural child.

They also alleged that R. F. Frei at all times treated the said Frank Frei and Rosa Frei as his parents, lavishing affection upon them, obeying them, and doing such work and serving as a child ordinarily renders and performs for its father and mother around its home.

It is patent from the pleadings that appellants have .diligently and carefully sought to bring their case within the area of facts that has been recognized by our Supreme Court as constituting adoption by estoppel, or equitable adoption, to protect the child and its heirs where the adoptive parents promised to adopt a child and then did not perform the statutory requirements necessary thereto. The doctrine was set forth by our Supreme Court in Cubley et al. v. Barbee et al., 123 Tex. 411, 73 S.W.2d 72. Appellants contend that the rule should operate conversely where the heirs of the adoptive parents seek to recover the estate of the alleged adopted child dying intestate without issue, as in the instant case. We find no authoritative case law in Texas nor any textual statements that substantiate such contention.

In Moorman v. Hunnicutt et al., Tex.Civ.App., 325 S.W.2d 941 the heirs of the alleged adoptive parents attempted to establish heirship with the alleged adopted child. The majority opinion of the Austin Court of Civil Appeals held there was not any evidence to support an adoption. In two obiter dicta statements that opinion is not clear as to whether the majority considered the heirs of the alleged adoptive parents could or could not. inherit through the alleged adopted child. Helen Mar Hunnicutt was the alleged adopted child. At one place that opinion said, in referring to the question of adoption by estoppel: “Appellees say these estoppels apply to Helen Mar and her heirs. We agree if such estoppels are shown to exist.” However, a few paragraphs later that opinion, if we interpret the statement correctly, indicated a belief that the converse of the adoption by estop-pel recognized in Texas does not apply wherein it said:

“It is to be noticed that here the parties are undertaking to inherit property from Hicklin P. and Bertha Hunnicutt by establishing the status of Helen Mar as their adopted daughter. This is in effect the reverse of the true principle of estoppel. ‘Estoppel can never be invoked to establish facts, but may only be used to prevent parties from relying upon facts which do exist.’
“Quoted from McLemore v. Charleston & Memphis R. Co., 111 Tenn. 639, 69 S.W. 338, in Massachusetts Bonding & Insurance Co. v. Dallas Steam Laundry & Dye Works, Tex.Civ.App., 85 S.W.2d 937, 940, Er. ref. As has often been said estoppel does not in itself give a cause of action but it is a shield and not a sword.”

Judge Hughes of that court, in a concurring opinion, then agreed with the result but said that the collateral heirs of adoptive parents can claim through the intestate adopted child only if such child is “legally adopted”, meaning in accordance with the statutory procedure provided in the particular state under which adoption is asserted, thus following the Missouri rule.

Obviously then, there is not any guide for us in the Moorman case as to the thinking of the Supreme Court of this state on the subj ect. The most they could have done in considering a writ in the case was to refuse it NRE. This they did, so with the two opinions in the case there is not any precedent whatever for us to follow in Texas from that case as it applies to our problem in the instant case. Therefore, our case is one of first impression.

Since adoption was not known to the common law, we believe it is well to give some history of the evolution of the doctrine of adoption by estoppel in Texas in order to see the reasoning employed by the Supreme Court of this state to justify the erection of the principle, that we may determine if it is applicable to the theory urged by these appellants.

Where a contract for adoption is between natural parents of a minor child and a person deciding to adopt the child, the former agreeing to release custody, control, and the right of the services of the child in return for the promise of the latter to leave property to the child by will or by intestate succession, our Supreme Court in 1921 said that such contract is “void as a matter of public policy” because “[a] parent has no property interest in his child and should not be permitted to deal with his child as property.” The court further said “The custody of a child is not a subject matter of contract and therefore can constitute no consideration for a contract.”

In 1934 our Supreme Court, after citing and quoting from the opinions in cases from other states in which the remedy was characterized as specific performance of a contract to adopt, then said “ * * * [W]e are of the opinion that the real classification of the remedy is that of estoppel. * * * However, the technical classification here is of no consequence. The defendants in error are plainly estopped from asserting the invalidity of the deed of adoption * * *." Cubley v. Barbee, 123 Tex. 411, 73 S.W.2d 72, 83.

A reading of the case just cited showed the child was a musical prodigy; that her adoptive mother toured a large part of the United States with her, visiting New York City alone 45 different times as a musical artist; that her earnings were substantial; and that except for her support she never received any of the money earned thereby. The court then held under such circumstances that the defendants in error were estopped from asserting that a deed of adoption testified about was not filed as required by statute and that to permit them to do so would be a fraud upon the rights of the adopted child.

In 1940 our Supreme Court in another landmark case, where there had been an oral contract to adopt between the natural parent of a three year old girl and the adoptive parents, which child lived in the adoptive parent’s home thereafter until she was married and was held out to the public as their child, extended the doctrine still further. From that case we think the following rules of law may be said to apply.

1. The Supreme Court in Cubley v. Barbee, supra, held estoppel in pais was the applicable estoppel rule by applying the adoption by estoppel doctrine to preclude adoptive parents and their privies from asserting the invalidity of adoption proceedings to situations such as the facts there disclosed.

2. Estoppel in pais is the applicable es-toppel rule to invoke the adoption by es-toppel doctrine to fact situations such as existed in Jones v. Guy.

3. Estoppel in pais is the estoppel rule that would be applicable to our case, if any, because of the very close similarity of the facts in Jones v. Guy with the facts pleaded in our case except as to the source of the two claims.

4. The doctrine of equity upon which decisions of equitable adoption rest are based upon the adoptive parent having received the benefits of the parent-child relationship fully performed by the child.

5. Where the statutory procedure for adoption is followed, the result accruing is that of a legal adoption as distinguished from equitable adoption.

The last expression by the Supreme Court of this state to which we have been cited on the subject of adoption by estoppel or have been able to find is Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972. In that case the court through Judge Calvert held:

“Under the statutes and the cases referred to it was incumbent upon respondent to plead and prove according to recognized rules of law and evidence that: (1) George Ann Barrow executed, acknowledged and filed a statutory instrument of adoption in the office of the County Clerk; or (2) George Ann Barrow undertook to effect a statutory adoption but failed to do so because of some defect in the instrument of adoption or in its execution or acknowledgement, or because of failure to record it; or (3) George Ann Barrow agreed with respondent, or'with respondent’s parents or with some other person in loco parentis that she would adopt respondent. The effort to comply with the statute in the second instance and the agreement to adopt in the third instance are a necessary predicate for the interposition of the equity powers of the courts to decree an adoption by estoppel in favor of one who, acting under and by virtue of such defective proceeding or such agreement, confers, affection and benefits upon the other.
“In no case has this Court upheld the adoptive status of a child in the absence of proof of an agreement or contract to adopt.”

There is not any admissible proof of such facts in this case, as we shall now demonstrate.

In an effort to establish a right of inheritance by the heirs of the adoptive parents through the adopted son, appellants pleaded the facts heretofore related. Even if it should be admitted, arguendo, that they allege a cause of action that still did not preclude the granting of a summary judgment unless showings are made by depositions, admissions, affidavits, or like proofs-one, some, or all. Schmidt v. Kuper, Tex.Civ.App., 324 S.W.2d 307 and authorities there cited under Syl. [1-2] (affirmed by Sup.Ct.).

The pleadings alleging the background relationship by the alleged adopted child and the alleged adoptive parents were sworn to by a number of the appellants by affirmations that said “ * * * In so far as is known to. such petitioner, all the allegations of such petition are true in substance and in fact * * * ” Nowhere is there a showing as to what was known by any of the affiants except an affidavit made by Caroline Schwarz Morrison. Therefore, the pleadings alone would not be sufficient to preclude the granting of summary judgment. As we stated in Schmidt v. Kuper “* * * [T]he better reasoned cases decide that mere pleadings do not show that there is a genuine issue of fact, and thus prevent summary judgment * * (All emphases herein are ours.)

One of the attorneys of record also swore to pleadings in which the background agreement and relationship between R. F. Frei’s mother and Frank Frei and Rosa Frei were alleged. It is obvious that this attorney could not know those facts of his own knowledge and that what he swore to would be hearsay and not admissible in evidence. Consequently, none of the pleadings would themselves preclude summary judgment. Our Supreme Court in Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 399 has said:

“The summary judgment rule, Rule 166-A, Texas Rules of Civil Procedure, provides that affidavits must be made by competent affiants with personal knowledge of the statements in them, which statements must be so worded that if given on the witness stand they would be admissible as evidence.”

Therefore, even though such pleadings should be given the dignity of sworn statements or affidavits they still would not preclude the granting of a summary judgment since the affiants only say the pleadings are true “insofar as is known to such petitioner” without anywhere showing what they know.

There is not any deposition in the case and only the affidavit above mentioned of Caroline Schwarz. Morrison. Though that affidavit states she has “personal knowledge of every statement herein made and fully confident [perhaps meaning competent] to testify to the matters stated herein”, a reading of the affidavit makes it obvious that the statements are not so worded that if given on the witness stand they would he admissible in evidence. The statement in the affidavit that after the death of Frank Frei his estate was divided between Rosa Frei, Katherine Frei Heien, and R. F. Frei, with the latter receiving a child’s share is a conclusion of law. The statement of the same import to the effect that R. F. Frei received from the estate of Frank Frei the share that would have been accorded to him had he been a natural child is also a conclusion of law. The statement that R. F. Frei was given certain funds by Frank Frei when he left home, which he invested in property in Texas that led to the estate he left, would certainly not be admissible in evidence- as worded and without showing as to how she could possibly have-such knowledge except by hearsay. Tobin v. Garcia, supra; Lawyers Surety Corporation v. Sevier, Tex.Civ.App., 342 S.W.2d 604, 608 (NWH); Farmers State Bank v. First State Bank of Liberty et al., Tex.Civ.App., 317 S.W.2d 768 (NWH). The probate proceedings introduced into evidence upon Frank Frei’s estate show he named his surviving wife, Rosa Frei, and his only daughter, Katherine, in his will and that R. F. Frei was not even mentioned.

We believe what we have said is decisive of this case but there are other good reasons why we believe the judgment of the trial court was correct. Our Supreme Court in Liberty State Bank v. Guardian Savings & Loan Ass’n, 127 Tex. 311, 94 S.W.2d 133, has held:

“The principle of estoppel in pais may be invoked against a party only when he has failed to do that which it was his duty to do. He ccmnot be estopped because of his failure to-do that which he owed no duty to do.”

R. F. Frei owed no duty to execute documents of adoption. Any duty in that regard was upon Frank Frei and Rosa Frei. Therefore, no estoppel can arise in their favor, or in favor of those claiming under them.

Since there is no reliable authority in Texas holding that the adoptive parents and those claiming under them may inherit through the adopted child and since the reasoning applied by our Supreme Court to justify the erection of the principle announced in the Cubley case and other Supreme Court cases following it heretofore cited would not be applicable to our facts, we feel some obligation to follow the authority of other jurisdictions. We prefer the reasoning of the Supreme Court of Missouri as announced in Rumans v. Lighthizer, supra, wherein it said:

“An equitable adoption functions to enforce the rights of the child under the agreement to adopt. The child is not chargeable with the adoptive parent’s failure to record the deed, and the enforcement in equity of the agreement to adopt should not confer additional rights upon the adoptive parent. The right of inheritance from the child is a different right from that of the child to enforce the agreement to adopt. That a legal or statutory adoption, binding on all persons in accord with the statutory provisions, differs from an equitable adoption, which is based upon contract for the protection of the child and binding on the parties or those in privity with them, is the effect of Menees v. Cowgill, 359 Mo. 697, 223 S.W.2d 412, 418, a case reaching this court upon transfer from the Kansas City Court of Appeals, Mo.App., 214 S.W.2d 561, 571.”

We concur with the statement of Judge Hughes in Moorman wherein he said “ * * * if the Missouri case is right, and I believe it is, the fact that an adoption by estoppel is shown * * * is not sufficient to confer upon * * * adoptive parents ■ or their kin the right to inherit * * * ”

For all the reasons above stated we hold appellants failed to establish a cause of action and that the summary judgment was -correctly granted.

      . Cubley v. Barbee, supra; Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906, 142 A.L.R. 77; Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972.

      . Rumans v. Lighthizer, 363 Mo. 125, 249 S.W.2d 397 (Sup.Ct. of Missouri).

      . Eckford v. Knox, 67 Tex. 200, 2 S.W. 372 (1886); State ex rel. Walton v. Yturria, 109 Tex. 220, 204 S.W. 315, L.R.A.1918F, 1079 (1918).

      . Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216; Adoption “By Estoppel” by Edward W. Bailey, 36 Texas Law Review, Vol. 1, beginning page 31.

      . The deed of adoption required by the statute then in effect had been executed but not recorded as required by statute.

      . Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906, 142 A.L.R. 77.

      . We do not believe the Cubley v. Barbee case was completely clear as to the estop-pel rule applicable and in the Jones v. Guy case it was clarified.


author: ARCHER, Chief Justice.

text:
    WHITENER TRANSFER & STORAGE, INC., et al., Appellants, v. GENERAL MOVING & STORAGE, INC., et al., Appellees.
    No. 11020.
    Court of Civil Appeals of Texas. Austin.
    Jan. 16, 1963.
    Rehearing Denied Feb. 6, 1963.
    Phinney, Hallman & Pulley, Wm. E. Livingstone, III, Dallas, for appellants.
    Christopher & Bailey, Fort Worth, for appellees.
   ARCHER, Chief Justice.

This is an appeal by Whitener Transfer & Storage, Inc., Tarry Moving & Storage Co.; Roy Wilson, dba Wilson Transfer & Warehouse; Lloyd A. Anderson, dba J. D. Moore Transfer & Storage; Texas Fireproof Storage Co., Inc.; Fidelity Bonded Warehouse Co.; J. C. Netzer; Armstrong Transfer & Storage Co., Inc.; Luther Transfer & Warehouse Co., Inc.; Binyon O’Keefe Warehouse Co.; Binyon O’Keefe Transport Co.; Allied Van’ Lines, Inc.; Luther Transfer & Storage, Inc.; Scobey Fireproof Storage Co., Inc.; Great Southwest Warehouses, Inc.; International Moving & Warehouse Co.; J. B. Craddock, Jr.; Jack C. Aspinwall, Jr.; and Stewart C. Johnson, appellants herein, from an order entered May 24, 1962 by the 53rd Judicial District Court of Travis County, Texas, overruling the pleas of privilege of appellants.

Appellees, certain household goods motor carriers, filed their suit in the 53rd District Court of Travis County, Texas, in two counts, the first being an appeal from certain orders of the Railroad Commission of Texas approving sales and transfers of household goods operating certificates.

The second count is a declaratory judgment action seeking the Court’s support of appellees’ theory that contracts between appellants and Allied Van Lines, Inc. pertaining to the transfer of certain household goods operating authority are in violation of State Anti-Trust Laws. Based on this theory, appellees contend the Railroad Commission of Texas has no jurisdiction to approve applications for sale and transfer based on contracts of the type about which appellees complain.

Appellants filed Pleas of Privilege asserting their basic right to be sued in the County of their residence, and appellees controverted these Pleas relying on subdivisions 4 and 29a of the Venue Statute, Article 1995, Vernon’s Ann.Civ.St.

A hearing on the Pleas of Privilege was held on the 1st day of June, 1961, with a further hearing being held on the 24th day of May, 1962. Pursuant to these hearings an order was entered on the 24th day of May, 1962, overruling the Pleas of Privilege.

The appeal is based on two points of error and are:

"1. Exception 29a of the Venue Statute is not applicable because a resident defendant is Involved, and 29a is purely ancillary to operation of other venue exceptions.
“2. Appellees failed to establish a necessary venue fact of subdivision 4 of the Venue Statute when they failed to prove a cause of action against the resident defendant.”

Appellees take the position that all necessary venue facts were established under Exception No. 4 to the General Rule of Venue, Article 1995, and rely thereon.

This appeal involves only the question of venue, the several appellants having filed pleas of privilege except the defendants Lewis O. Wallin and Allen C. Clark, residents of Travis County, which pleas were controverted.

The plaintiffs alleged that the Commission was without statutory authority and acted beyond the scope of its jurisdiction, and in disregard of the public policy of the State, and that the contracts attached to the applications are void under the provisions of Article 7437.

By subsequent count plaintiffs sought a declaration of rights, status and legal relations as between appellees and all of the appellants, and the Commission as to its rights to authorize sales and transfers where it appears that such are violative of the Anti-Trust Laws.

Allegations were made that Allied is a very large carrier of household goods, and operates throughout the United States, maintaining several hundred offices for solicitation of traffic, moving in interstate and intrastate, twenty-nine of such agencies being within this State.

Further allegations were, that the appellants have entered into a combination and conspiracy in violation of the laws of Texas, through combination of capital and skill for the purpose of carrying out restrictions, in trade, and to prevent or lessen competition.

Allegations were made that Allied late in 1959 and early in January, 1960, caused to-be filed nineteen applications to purchase various certificates of local intrastate carriers; that each had attached contracts in identical terms; that such were denied by the Commission.

That subsequently Allied and each of the selling carriers filed separate applications, similar in terms and tenure; that the appellants are acting together in furtherance of the conspiracy.

Hearing was had on June 1, 1961 and a further hearing on May 24, 1962, and the facts alleged were sought to be established. The appellants did not offer any evidence. It was stipulated that defendants Lewis O. Wallin and Allen C. Clark are residents of Travis County. Many exhibits, of the applications and maps showing the operating authority as to origin and destination, which were being sold to Allied, were offered in evidence.

The several Pleas of Privilege are similar in terms and contentions, if not in exact terms, and in like manner the controverting pleas are similar in terms and context.

Appellees rely on Exception No. 4 to the General Rule of Venue, Article 1995, and recognize that they must establish the venue facts, that (a) the actual residence of one of the named defendants is in the county where the suit is brought, (b) the existence of a bona fide cause of action against the resident defendant, and (c) that the pleading alleging a joint cause of action against such resident defendant and the non-resident defendant, or a cause of action against the resident defendant are so intimately connected with the alleged cause of action against the non-resident defendant that the two may be joined under the rule intended to avoid a multiplicity of suits.

Appellants admit the existence of (a) in this case, and while not admitting the existence of (c), appellants devote their attention and argument in this appeal to (b), contending that appellees have failed to prove the existence of a bona fide cause of action against the resident defendants, Wal-lin and Clark.

We believe that appellees did prove a bona fide cause of action. A conspiracy was fully alleged in plaintiff’s petition and was substantiated by the evidence.

In San Antonio Gas Co. v. State, 22 Tex.Civ.App. 118, 54 S.W. 289, er. ref., the Court set out in detail what combinations and conspiracies are and the remedies afforded and pleadings and proof of such. Since the decision is long we do not copy it herein.

In this present case the agency contract between Allied and Wallin and‘Clark designated as agents, agree “to perform and discharge loyally, diligently and efficiently, all duties and responsibilities of such agency and employment, * * * strictly in compliance with carrier’s then reasonable rules and regulations.”

The agent is required to furnish any and all and every facility, including personnel for carrying on the carrier’s business and, to pay its share of Allied’s costs of operation.

There were many exhibits offered into evidence and the above statements are from such evidence. Exhibit 59 is a copy of the carrier’s rules and regulations, and reference is made to Allied’s by-laws, wherein the operations “shall be conducted exclusively by the utilization of the facilities and equipment of the agents of the Company”, and the agent is required to do everything that is required to carry on the transportation business, in compliance with the “reasonable rules and requirements” of Allied. The agent is required to file with Allied a registration of moving vans, tools and equipment, and to maintain, operate and supply the equipment, to hold Allied harmless against all liability, and to maintain public liability and property damage insurance at agent’s cost, as well as workman’s compensation or employee liability; provided that Allied shall have sole discretion to investigate, settle and defend all claims, and provide for a division of loss or damage claims paid on a certain basis.

Provision is made in the contract for the use by the agent to use the name Allied Van-Lines, Inc. with his business name.

By Rule No. 25, Exhibit 59, the agent is required to keep money on deposit with Allied to finance its operation in such amounts, apportioned among all agents, as may be determined from time to time.

The compensation of agents is provided in Section 4 and sub-paragraph under Article XI of Allied’s by-laws, and as such is long we do not insert such herein, but believe that this is a case of combination capital, ■ skill or acts by two or more persons, firms, corporations or associations of persons, and with the effort to purchase the other named appellants herein, there is established the intent to monopolize the transportation of household goods and used furniture and equipment in this State, and an intent and effort to create, or which may tend to create, or carry out restrictions in trade or commerce, in the free pursuit of such business.

By Section 5 of Article XI of Allied’s bylaws provision is made that there will be no interchange shipments with any other household goods carriers, unless they are required to do so by public authority.

It becomes apparent that this is a bona fide, if not a prima facie, case of combination and skill and acts contrary to our statutes, such as Articles 7426, 7427 and Articles 1632, 1633, 1634 and 1635 of the Penal Code.

All of the applications to purchase the several certificates were in similar form, tenure and effect as to compliance with Allied’s by-laws. These applications were filed in close proximity in points of time, being filed two at a time; the first two having been filed on September 26, 1960, the next two on January 31, 1961, and the others at intervals of approximately sixty days.

We believe that venue has been established in Travis County where the case is pending and the judgment of the Trial Court is affirmed.

Affirmed.

PHILLIPS, J., not sitting.


text:
    Riley F. HUIE et ux., Appellants, v. Lurline D. THOMPSON et al., Appellees.
    No. 7225.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 21, 1963.

      Ray & Knudtson, Amarillo, for appellants.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellees.
   CHAPMAN, Justice.

This is an appeal from a summary judgment granted defendant below, Lurline D. Thompson, in a suit filed by Riley F. Huie •and wife, Carlie Huie on a personal injury claim for damages caused when Mrs. Huie fell in a dressing room of the Smart Form Corset Shop owned by Mrs. Thompson and suffered a fracture of the neck of the left femur.

Mrs. Huie, as a customer of the named shop, was in the process of negotiating her body into a foundation garment known as a panty girdle when she fell and suffered the injury above mentioned, requiring a “hip nailing” operation by an orthopedic surgeon, thirteen days in the hospital, and causing considerable incapacity thereafter. Mrs. Juanita Martin, one of the clerks of the shop, was assisting in the operation at the time of the unfortunate incident and they were the only two present.

Depositions were taken of Mrs. Juanita Martin, Mrs. Huie and Mr. Huie. Motion was made by appellee for summary judgment, supported by the three mentioned depositions and accompanied by material excerpts therefrom. Opposing motion was made by appellants, sworn to by Henry T. Ray, attorney of record for appellants, and unaccompanied by any affidavits or other “summary judgment evidence.”

The record shows that in selling foundation garments of the type mentioned that it is the custom of the trade for a clerk to help assist the customer in trying on the garment. In this instance the customer was pulling up on the front of the garment and Mrs. Martin had been pulling up on the back thereof before the fall. The deposition of Mrs. Martin shows in part as follows:

“Q. And then you say that you had gotten the girdle up past her knees ?
“A. Yes, sir.
“Q. And somewhere between her knees and her waist ?
“A. Yes, sir.
“Q. Can you be any more definite than that on the precise place where you had pulled the girdle up to?
“A. Well, up close to middleways.”
⅜ ⅜ ¥ ⅜ ⅜ ⅜
:‘Q. Now, were you watching her at the exact moment that the fall took place?
“A. Well, I wasn’t looking directly at her, no.
“Q. All right, when were you first aware that she was falling?
“A. I wasn’t aware she was falling; she was down before I knew anything.
“Q. Oh, in other words, you were pulling on this girdle garment when all of a sudden down she was on the floor, is that it?
“A. I think I had quit pulling when she went down.
“Q. Well, but your testimony is that you were not aware that she was falling?
"A. No.
“Q. Until she had already fallen ?
“A. That is right.
“Q. And can you say whether or not you had stopped pulling or wheth- ' er or not the garment was pulled out of your hands as she did fall?
“A. I don’t believe — I’m not just really sure — the garment wasn’t pulled out of my hands as she fell.
“Q. Did you turn loose of the garment? Do you have any memory at this time of having turned loose of the garment?
“A. No.
“Q. So since you don’t remember you can’t say definitely what happened, except that you were pulling and the next thing that you knew she was down on the floor. Can you tell us any more than that of what you actually remember yourself?
“A. Well, I don’t think that I was pulling at the time.”

Mr. Huie’s testimony in his deposition precludes any knowledge on his part of the accident. Thus, the record taken in its most favorable light to appellants shows affirmatively there was not any negligence on the part of Mrs. Martin in the manner in which she assisted Mrs. Huie in trying on the garment. She testified she had been pulling up on the garment in the back while Mrs. Huie was pulling up on it in the front; that she had succeeded in getting the garment up somewhere between her knees and her waist; that she was not watching Mrs. Huie at the moment the fall took place; that she was not aware she was falling until she was on the floor; that the garment was not pulled out of Mrs. Martin’s hands as Mrs. Huie fell; and that she had quit pulling when Mrs. Huie went down.

In Mrs. Huie’s deposition she testified in substance that Mrs. Martin had truly related the incident except that she had not removed her skirt and that the garment was further up than Mrs. Martin had said it was "because in putting on a girdle you don’t have to have help except just on your thighs.”

The only grounds of negligence appellants alleged were that defendant failed to exercise ordinary care in lifting plaintiff, Carlie Huie, off the floor and Mrs. Martin failed to exercise ordinary care in dropping Carlie Huie and those pleadings were not sworn to and constitute no “summary judgment evidence.”

Except that Mrs. Huie had her shoes off, her skirt on and the girdle was further up on her body than Mrs. Martin said, we must take her deposition testimony as true because Mrs. Huie said she had correctly related the incident except for those discrepancies. Therefore, Mrs. Martin could not have failed to exercise ordinary care in either “lifting Mrs. Huie off the floor or dropping her.” This is true because the testimony precludes the assertion that she had lifted her off the floor just before the fall. At the time of the fall Mrs. Martin said she had quit pulling on the garment. If she had quit pulling on it she could not have lifted her off the floor and if she had not lifted her off the floor she could not have dropped her.

If Mrs. Martin had lifted Mrs. Huie off the floor and dropped her, all her attorney would have had to do to defeat the motion for summary judgment would have been to place in the record Mrs. Huie’s affidavit to that effect. Since he did not do so we are bound by Mrs. Martin’s testimony that shows the contrary. Under such record a motion for instructed verdict would be required.

Our Supreme Court in Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, has held:

“When a motion for summary judgment is supported by affidavits, deposi-tions, stipulations or other extrinsic •evidence sufficient on its face to establish facts, which, if proven at the trial, would entitle the movant to an instructed verdict, the opponent must show opposing evidentiary data which will raise an issue as to a material fact, or must justify his inability to do so and seek appropriate relief under subdivision (f) of Rule 166-A.”

Under this record defendants neither ■showed opposing evidentiary data which would raise an issue as to a material fact, nor did they justify their inability to do so and seek appropriate relief under subdivision (f) of Rule 166-A.

Accordingly, the judgment of the trial •court must be affirmed.

      . Mrs. Mar tin had testified in her deposition that Mrs. Huie had removed her skirt.


author: CHAPMAN, Justice. PER CURIAM.

text:
    SECURITY NATIONAL INSURANCE COMPANY, Appellant, v. Blanche CRISP, Appellee.
    No. 7208.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 7, 1963.
    Rehearing Denied Feb. 4, 1963.

      Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellant.
    R. S. Sutton, Amarillo, for appellee.
   CHAPMAN, Justice.

This is an appeal by Security National Insurance Company from a judgment rendered by the court below for Blanche Crisp based upon a jury verdict in a suit filed to recover upon a fire insurance policy covering her household goods. This is a second appeal by the insurance company, we having reversed the case on October 9, 1961, because of failure to prove the amount of damages assessed by the court. That case is reported as Security National Insurance Company v. Crisp, Tex.Civ.App., 351 S.W.2d 262.

The appeal of the litigation involving the house in which the furniture, clothes, and household goods were located is reported as Anchor Casualty Company v. Crisp, Tex.Civ.App., 346 S.W.2d 364 (NWH).

The question of cancellation is before us again, as it was on the previous appeal. As we stated in the October 9, 1961 opinion, the policy here and the one in Anchor Casualty Company employ exactly the same language with respect to notice of cancellation and contain the “giving” provision as distinguished from the “mailing” provision with respect thereto.

It is the settled rule in Texas that where the contract provides the policy may be cancelled by “giving” the insured notice, the conditions of the policy upon which rests the insurer’s rights of cancellation must be strictly followed. Anchor Casualty Company v. Crisp, supra, and the cases there cited. Also Republic Ins. Co. v. Inverness Estates, Tex.Civ.App., 252 S.W.2d 251 (writ refused).

The evidence in this case shows a notice of cancellation was mailed months before the fire resulting in the loss and that such notice was not returned. Appellee testified she never received it.

A presumption prevails that a letter duly mailed will be duly delivered but such presumption is rebuttable. Republic Ins. Co. v. Inverness Estates, supra. The question .of whether appellee received the notice was submitted to the jury and answered adversely to appellant. We are bound by that jury finding, so appellant’s-point contending that the evidence establishes as a matter of law that the policy sued upon was cancelled long before the-time of the fire is without merit.

The fire occurred on November 8, 1959. Appellee pleaded that demand was made-upon appellant by a letter dated February-1, 1960, which was well within the 91 days-provided in the policy. The evidence is-clear that demand was made and refused but for some reason appellee failed to prove it was within the period of 91 days provided for in the policy, which we believe would be fatal except for the fact of waiver. We believe the requirement was waived under Article 5546 Vernon’s Ann. Texas Civ.St. and Rule 93, Sec. (m) Vernon’s Ann.Texas Rules. However, rather than have that question in the case on another trial, we assume appellee will surely at that time make proof of demand and refusal and all other conditions precedent required in the policy. The case must be reversed again so we shall attempt to spell out what we believe to be the proper rules in trying it.

The record indicates to us it was tried on the theory of implied contract rather than an express contract such as we have in this case. The rules of pleading and proof in the two are entirely different. Black v. Nabarrette, Tex.Civ.App., 281 S.W. 1087. Appellee contends under the case just cited it is unnecessary to plead any measure of damages. That is a correct statement where recovery is sought for destruction of chattels by fire under an implied contract. In the case last cited the evidence showed that the owner of two houses burned the houses himself. The tenants sued for recovery of loss of their household goods, which was, of course, under an implied contract as distinguished from an express contract represented by the insurance policy in the instant case.

It is without contradiction in this record that the policy of insurance was written by the company and accepted by appellee. It thus constituted a written contract between the parties and was binding on them unless there was some clause against public policy or was void for some other reason. As part of that written contract it was provided, “Liability hereunder shall not exceed the actual cash value at the time of loss, ascertained with proper deduction for depreciation; nor shall it exceed the amount it would cost to * * * replace the property with material of like kind and quality within a reasonable time after the loss.”

We believe the case should be pleaded and tried in accordance with the contract of the parties as partly represented by the clause just above quoted, since that clause limited the extent of liability of the insurer. Instead, it was submitted and tried upon the theory of intrinsic value; i. e., the value to Blanche Crisp at the time and place of loss. A trial court should use the measure of damages contracted for by the parties. Continental Fire & Casualty Ins. Corp. v. Surber, Tex.Civ.App., 231 S.W.2d 750, Syl. 3-5 (NWH).

From the record made in this case we believe an issue in substantially the following form would be proper:

“What sum of money, if any, do you find from a preponderance of the evidence would have been the reasonable cost at the time of and within a reasonable time after the fire in question of replacing the household and kitchen furniture, furnishings, and personal belongings in question with material of like kind and quality, making allowance for such depreciation as you shall find from the evidence they have undergone ?”

We do not set the issue out as a model under the facts of this case to the extent that it could not be improved upon but it follows substantially the limitation of liability clause in the contract of the insurer under which the parties were bound. The issue has been approved in substantially the same form under a policy with the same clause as we have quoted above except that in our issue we assume there has been some depreciation. Under the facts of this case, even though it might be said that a few minor items may have enhanced in value, there would have to have been some depreciation on some of the household goods described just as a matter of common sense and reason.

There is not any question but that the form of submission used by the trial court is one of intrinsic value, despite the fact there is evidence in the record that the property had some market value. The general rule is that intrinsic value could not be shown unless there is first a showing that the property had no market value. State Mutual Fire Ins. Co. v. Cathey, Tex.Civ.App., 153 S.W. 935. However, this general rule of law is not material here because a measure of damages was contracted for in writing by the parties, as heretofore stated.

There are numerous other points of error assigned. Point 9 is to the effect that special issue one required defendant to prove receipt by plaintiff of the written notice of cancellation five days prior to November 18, 1959. We doubt that the issue would constitute reversible error under Rule 434 V.A.T.R., but it occurs to us it would be more safe to make proof that receipt by plaintiff of the written notice of cancellation was at least five days prior to November 18, 1959. (Emphasis ours). It is true the issue was submitted in the substantial language of the policy, but as worded the jury could have decided defendant must prove receipt by plaintiff of the written notice exactly five days prior to the date mentioned. In any event the case must be reversed because it was pleaded, proved, and submitted upon the wrong theory. Accordingly, the judgment is reversed and remanded for another trial.

ON MOTION FOR REHEARING

PER CURIAM.

In her motion for rehearing appellee cites Tokio Marine & Fire Ins. Co. v. Aldridge, Tex.Civ.App., 21 S.W.2d 547, a writ refused case by our court, as authority for her contention that we were in error in holding her proof for recovery of damages must comply with her written contract with the insurer.

We find no fault with that case. It involved wind and storm damage to a build^-ing as a whole, one piece of property. The building was only partially destroyed and the case was tried on the theory of restoration. In our case the property was totally destroyed. The record as a whole in that case is just so completely different to ours that we do not believe it constitutes any authority on the question here involved.

We are also challenged on a statement in our original opinion to the effect that the general rule requires a showing of no market value before intrinsic value may be shown. We cited a case so holding. However, we respectfully suggest that we also stated that such rule had no application to the instant case because the measure of damages was contracted for in writing by the parties in the insurance policy.

Since the motion for rehearing has not assigned any good reason to cause us to change our original opinion, the motion is overruled, and as stated in our original opinion the judgment of the trial court is reversed and remanded for another trial.

      . American General Ins. Co. v. Bell, Tex.Civ.App., 116 S.W.2d 877, 878.