text:
    Aubrey Lee ABBOTT, Appellant, v. The STATE of Texas, Appellee.
    No. 39740.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1966.
    John M. Anderson, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Glenn Goodnight and Grady Hight, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDonald, judge.

The conviction is for robbery with two prior convictions of felonies less than capital alleged for enhancement; the punishment, life imprisonment.

It is shown by affidavit of the Tarrant County sheriff that on June 20, 1966, appellant escaped from his custody. He was subsequently re-captured on July 8, 1966, in the State of Washington, where he is currently serving a 35 year prison sentence. The state has made known to us that the State of Washington will not relinquish jurisdiction over appellant until such time-as he has been tried and served his sentence, if any, on the charge there pending..

Vernon’s Ann.C.C.P., Art. 44.09 is applicable to the “re-capture” of a defendant-who escapes pending appeal. However, as. the appellant is not subject to the jurisdiction of the State of Texas he cannot be-said to have been “re-captured” within the-meaning of this statute.

The state’s motion to dismiss the appeal is granted. It is so ordered.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, Appellant, v. The PEOPLES NATIONAL BANK OF TYLER et al., Appellees.
    No. 229.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 20, 1966.
    Rehearing Denied Nov. 3, 1966.
    Frank L. Skillern, Jr., Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellant.
    Charles Potter, Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, for Peoples Nat. Bank of Tyler.
    Kelly Smith, Smith & Smith, Tyler, for J. B. McClung.
    Ben Johnson, Johnson, Hathaway & Jackson, Tyler, for L. A. and Wm. L. Brady.
   SELLERS, Justice.

The Winona State Bank of Winona, Texas, a banking corporation, had been operated by J. B. McClung, the sole banker in charge, prior to the time this suit was filed, and for many years. In fact, J. B. Me-Clung’s father operated the bank for many years before J. B. McCiung took charge of the same. Some time around 1965, this bank ceased to do business and was placed in control of appellant Federal Deposit Insurance Corporation for liquidation. J. B. McCiung was indicted for some infraction of the banking laws.

This lawsuit in the trial court was brought by the Peoples National Bank of Tyler against J. B. McCiung, William L. Brady, L. A. Brady, and the Federal Deposit Insurance Corporation. The Plaintiff’s allegations, in its petition, are as follows:

“1. In due course of business plaintiff acquired the following promissory note:
“Promissory note dated June 17, 1964, in the principal sum of $15,000.00, executed by J. B. McCiung, payable to the order of The Peoples National Bank of Tyler on May 10, 1965, bearing interest at the rate of 6 per cent per annum, containing the usual provisions for acceleration of payment and attorney’s fees.
“2. In due course of business the following promissory notes were endorsed to it as collateral for the note described in the preceding paragraph:
“(a) Promissory note dated March 6, 1963, in the principal sum of $10,000.00 executed by L. A. Brady, payable to the order of J. B. McCiung on demand, bearing interest at the rate of 10 per cent per annum, containing the usual provisions for acceleration of payment and attorney’s fees.
“(b) Promissory note dated May 12, 1961, in the principal sum of $5,000.00, executed by William L. Brady, payable to the order of J. B. McCiung on August 1, 1965, bearing interest at the rate of 10 per cent per annum, containing the usual provisions for acceleration of payment and attorney’s fees.
“3. The F. D. I. C., claiming to act as the successor in rights of the Winona State Bank, has asserted some character of claim of ownership with reference to the aforesaid notes given by L. A. Brady and William L. Brady. Plaintiff’s information, but which is not known to be the fact, is that the F. D. I. C. claims to be the liquidator and receiver of the Winona State Bank and entitled to receive and collect all its assets.
“4. Plaintiff is not fully advised as to the exact nature of the claim of the F. D. I. C. to the said Brady notes, but denies that the said claim is a valid or legal one. Plaintiff alleges that it is the holder in due course of the Brady notes and that if the F. D. I. C. has any right thereto, which is denied, that it is subject and inferior to plaintiff’s rights thereto. Nevertheless, the asserted rights of the F. D. I. C. have cast a cloud on the plaintiff’s right to such an extent that the makers of the Brady notes are uncertain to whom payment should be made and therefore have not made payment.
“5. Plaintiff sues for a declaratory judgment declaring that plaintiff’s rights to the Brady notes are valid and legal rights, prior and superior to any claim of F. D. I. C.”

McCiung filed answer admitting the endorsement and assignment of the notes involved; then the Bradys filed answer as follows:

“I.
“These defendants do not personally possess information upon which they can either admit or deny the allegations in Paragraph 1 of the complaint, but they say they have no present information contrary to that set out in this portion of the Plaintiff’s Complaint.
“II.
“These defendants say that they can neither admit nor deny the allegations in Paragraph 2(a) and 2(b) of the Plaintiff’s Complaint since they do not have personal information upon which to make any such denial or admission, however, they do say that on the dates indicated that they, and each of them, executed notes payable in the various sums indicated in the Plaintiff’s Complaint, but as to whether said notes were made payable to J. B. McClung or the Winona State Bank at the time they were executed by these Defendants, they, and neither of them, can of their own knowledge state. They say that when they executed the notes described in Paragraphs 2(a) and 2(b) of the Plaintiff’s Petition, as they had executed promissory notes with J. B. McClung on many prior occasions, they and each of them on each of such occasions assumed they were borrowing from the Winona State Bank. Neither of them can say positively whether J. B. McClung’s name was on any of the notes in question as payee or not. They do say that if such was the case they, and neither of them, were ever aware of such.
“HI.
“With the exception of the question of whether J. B. McClung was payee on the notes in Paragraphs 2(a) and 2(b), which matter these defendants can neither admit nor deny, these defendants admit the execution of the notes described in paragraph 2(a) and 2(b) of the Plaintiff’s Petition and say they are willing to pay the same in the sums and under the terms of such notes and are in doubt only as to whom such payment should be made.
“IV.
“As Indicated in the Plaintiff’s Petition herein the Federal Deposit Insurance Corporation and the Peoples National Bank of Tyler, Texas are each asserting ownership or other rights in and to said notes. These Defendants cannot by their own decision pay either of such parties without incurring the risk of ha-ving to pay the same again. They say the matter should be determined so these Defendants can pay the rightful holder of such notes.”

The appellant filed answer as follows:

“II.
“This Defendant is without information upon which to either admit or deny the allegations contained in Paragraph I of Plaintiff’s Petition.
“III.
“This Defendant denies the allegations contained in Paragraph 2 of Plaintiff’s Petition. This Defendant admits that Defendants, William F. Brady and L. A. Brady signed promissory notes on the dates and in the amounts set out in said paragraph, but denies that said notes were payable to the order of Defendant J. B. McClung at the time of their execution. This Defendant further denies that Plaintiff holds said notes as collateral.
“IV.
“With regard to the promissory notes referred to in Paragraph II of Plaintiff’s Petition, this Defendant alleges:
“a. Based upon information and belief, that said notes were payable to the Winona State Bank, Winona, Texas, at the time each of said notes was executed by Defendants William F. Brady and L. A. Brady, and thereafter, each of said notes was altered and changed by Defendant J. B. McClung, who inserted his own name as payee in place of The Winona State Bank; each of such alterations was a material one and was made prior to the alleged assignment of said notes to^ Plaintiff by Defendant J. B. McClung.
“b. That if, in fact, said notes were payable to Defendant J. B. McClung at the time of their execution that no consideration passed from Defendant J. B. McClung to either William F. Brady or L. A. Brady and therefore said notes were unenforceable by Defendant J. B. McClung and unenforceable by Plaintiff, who is not a holder in due course.
“c. That Plaintiff is not a holder in due course of said note because each of said notes was not regular on its face at the time that it was transferred to Plaintiff by Defendant J. B. McClung. «* * * »

The case was tried before the Court without a jury and resulted in a judgment for the Plaintiff bank for title to the notes involved as holders in due course, declaring the Bradys liable on the notes according to their face and tenor and further holds J. B. McClung liable as endorser on the notes. From this judgment, the Federal Deposit Insurance Corporation has duly prosecuted this appeal. At the request of appellant, the Court filed the following Findings of Fact and Conclusions of Law:

“FINDINGS OF FACT AND CONCLUSIONS OF LAW
“1. A promissory note dated June 17, 1964, in the principal sum of $15,000 was executed by J. B. McClung, payable to the order of The Peoples National Bank of Tyler, on May, 10, 1965.
“2. On February 2, 1965, the following promissory notes were delivered and endorsed by J. B. McClung to The Peoples National Bank of Tyler as collateral for the above note:
“(a) Promissory note dated March 6, 1963, in the principal sum of $10,000, executed by L. A. Brady, payable to the order of J. B. McClung on demand.
“(b) Promissory note dated May 12, 1961, in the principal sum of $5,000, executed by William L. Brady, payable to the order of J. B. McClung on or before August 1, 1965.
“3. The Brady notes referred to in Para. 2 (a) and (b), were on the printed form used by the Winona State Bank. All of the blanks in the note were filled in the handwriting of J. B. McClung, and also in the same handwriting the words ‘J. B. McClung at’ were written in such way that J. B. McClung became the payee in the note and the note was payable at the Winona State Bank.
“4. It has long been a business practice to use bank form printed promissory notes and to change the payee to a private individual by making similar insertions of the name of the payee, either on a typewriter or by longhand. The insertion of the name of the payee in this manner is not a suspicious circumstance such as should arouse the suspicions of one acquiring the notes that the name of the payee was altered after the note was signed by the maker.
“5. Within a few days after the Peoples National Bank received the Brady notes as collateral security, Wilton Daniel and Walter Adams, officers of said bank, made a full and proper investigation concerning the validity of the notes, by calling upon L. A. Brady and William Brady, presenting the notes to the Bradys and inquiring whether they acknowledged the validity of the same, advising the Bradys that they had acquired the same as collateral security. To this inquiry, the Bradys acknowledged that the notes were valid and unpaid, without at any time suggesting that the name of the payee had been altered. The reason for this investigation was not any suspicion that the notes had been altered, but was made due to the fact that J. B. McClung had been charged with irregularities in the management of the Winona State Bank,, a fact learned by The Peoples National Bank several days after receiving the said collateral notes, and the bank officials desired to have an acknowledgment by the Bradys that the notes had been validly executed and were unpaid. This investigation is the only probative evidence concerning unauthorized alteration and indicates there was none.
“6. L. A. Brady and William L. Brady testified that they had no recollection whether the name ‘J. B. McClung’ was inserted as payee in the notes, respectively, at the time they executed the same, and they could not testify either way on this issue.
“7. J. B. McClung declined to testify, relying upon the privilege of the Fifth Amendment to the U. S. Constitution, because he has been indicted for irregularities in the management of the affairs of the Winona State Bank.
“8. The Winona State Bank ledger sheets on the note accounts of L. A. Brady and William L. Brady do not show that the bank received the collateral notes referred to above.
“9. There is no probative evidence showing an unauthorized alteration of the above notes made after signature by the maker.
“10. The Peoples National Bank took the said collateral notes (the Brady notes) in good faith, without knowledge or notice and without being put on inquiry of any possible. unauthorized alterations.
“CONCLUSIONS OF LAW
“1. Where, in a printed bank note form, the name of the payee bank is obliterated and the name of an individual substituted, such alteration does not render such rióte not ‘complete and regular upon its face’ as required in Art. 5935, Sec. 52(1) R.C. S.
“2. The Peoples National Bank is a holder in due course of the collateral notes given by L. A. Brady and William L. Brady to J. B. McClung, and endorsed by him to The Peoples National Bank. Art. 5935, Sec. 52; Art. 5948; Art. 5933.
“3. In the absence of evidence to the contrary (and there is no such evidence) it is presumed that the name ‘J. B. Mc-Clung’ was inserted as payee in the collateral notes prior to their execution by L. A. Brady and William L. Brady. The simple insertion of the name of such payee in the same handwriting as appears in the other blanks in the note is not a suspicious circumstance, such as to put a party on inquiry or notice of a possible unauthorized alteration.
“4. The officials of The Peoples National Bank, after receiving the Brady collateral notes, properly verified the same by presenting them to the Bradys, respectively, and inquiring whether they were valid notes and were unpaid. If the notes, when presented, had contained an unauthorized alteration, it was the duty of the Bradys, respectively, to so advise the bank at the time it made such inquiry, which they wholly failed to do. Therefore I conclude that if the Bradys had been directly asked whether there was an unauthorized alteration, they would not have replied in the affirmative.
“5. The law and the facts are with the plaintiff, and the plaintiff is entitled to judgment declaring that it is the lawful holder in due course of the Brady collateral notes, and that the Federal Deposit Insurance Corporation has no right or claim thereto.”

The appellant requested the Court to make additional findings of fact which were denied, and complaint on this appeal is made to such refusal. We have carefully reviewed the Court’s findings of fact and find they are fully supported by the evidence and that the court’s conclusions of law are fully supported by such findings. We therefore are of the opinion that there was no error by the trial court in refusing to make the additional findings requested.

In this State, the law seems to be settled that when a printed form is used and there appears to be interlined in the instrument a change in the handwriting of someone, a presumption absent proof to the contrary arises that the change was made before the instrument was executed. Brightwell et al. v. International-Great Northern R. Co. et al., 121 Tex. 338, 49 S.W.2d 437. 3 T.J.2d, Section 44, p. 73. Rodriquez v. Hayes, 761 Tex. 225, 13 S.W. 296.

The only parties giving evidence on the trial as to the execution of the notes at the time they were executed were the Bradys, the makers of the notes, and the sum and substance of their evidence is that they do not know who the payee was in the notes at the time they signed and executed the same, and yet they acknowledged they owe the same according to the tenor thereof. We find this rule laid down in 4 Am.Jur.2d, Section 87, page 81:

“The proof or admission of the signature of the maker of an instrument is prima facie evidence that the instrument written over it is the act of the party; and this prima facie evidence will stand as binding proof, unless the defendant can rebut it by showing from the appearance of the instrument itself, or otherwise, that it has been altered. And even where the alteration is obvious, testimony of the plaintiff to the effect that the defendant consented to such alteration is a sufficient explanation to make the instrument admissible and, together with the instrument itself, is sufficient to entitle him to go to the jury * *

The mere fact that the note was executed on a form note of a bank and the name of the bank was changed to that of an individual will not suffice as evidence on its face to show a subsequent change of the instrument. This exact question was decided in a case almost like the one under consideration Clapper et al. v. Gamble, 8 Cir., 28 F.2d 755:

“In their answer the defendants, other than Dooley, repudiated the notes as above set out, and although they alleged in their answer that the notes were altered with the knowledge of the Drovers’ Bank, and received by that bank with knowledge that they had been altered, there was no substantial evidence to sustain this contention. Moreover, the president of the Drovers’ Bank testified that, at the time the notes were taken by his bank, he knew of no defects or infirmities in them. He further testified that it was not unusual, where printed forms of notes were used, to find the printed name of the payee stricken out and the name of a different payee written in. Without further reviewing or analyzing the evidence on this point, it is sufficient to state that we are of the opinion that there was substantial evidence to support the finding that the notes were complete and regular upon their face, and that the other requisites of a holder in due course were fulfilled.”

There are other contentions by appellant which are believed to be without merit and are overruled. It is the opinion of this court that the trial court had ample evidence before it to support its judgment, and the same will in all respects be affirmed.

Affirmed.


author: DUNAGAN, Chief Justice.

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, Appellant, v. TYLER BANK & TRUST COMPANY et al., Appellees
    No. 228.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 20, 1966.
    Rehearing Denied Nov. 3, 1966.
    Frank L. Skillern, Jr., Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellant.

      W. Dewey Lawrence, Lawrence & Lawrence, Tyler, for Tyler Bank & Trust Co.
    Kelly Smith, Smith & Smith, Tyler, for J. B. McClung.
    Ben Johnson, Johnson, Hathaway & Jackson, Tyler, for L. A. and Wm. L. Brady.
   DUNAGAN, Chief Justice.

The above styled case is a companion case to Federal Deposit Insurance Corporation, Appellant v. Peoples National Bank of Tyler et al., Appellees, Cause No. 229, Tex.Civ.App., 407 S.W.2d 512, which is also appealed from the Seventh Judicial District Court of Smith County, Texas.

It is agreed by all parties that the legal questions raised on the appeal of each of these cases are the same, and the disposition made of Cause No. 229 by this Court controls the disposition to be made of the appeal in Cause No. 228.

The opinion and judgment in Cause No. 229 affirming the judgment of the trial •court will therefore be followed in Cause No. 228, and the judgment in that case accordingly affirmed.


author: COLEMAN, Justice.

text:
    Georgia GAVREL et vir, Appellants, v. Emmett YOUNG, Appellee.
    No. 14803.
    Court of Civil Appeals of Texas. Houston.
    Oct. 6, 1966.
    Rehearing Denied Oct. 27, 1966.

      Alfred C. Schlosser, Paul W. Wommack, Houston, for appellants.
    Baker, Botts, Shepherd & Coates, Stephen A. Wakefield, Houston, for appellee.
   COLEMAN, Justice.

This is a suit for personal injuries resulting from a rear-end collision. Judgment was entered for the defendant on the verdict of the jury which included a finding of contributory negligence on the part of the plaintiff and a finding of no damage. Appellants contend that these adverse findings are contrary to the great weight and preponderance of the evidence.

Since appellants’ points in this appeal present the question of the sufficiency of the evidence to support the answers to certain special issues, Rule 324, Texas Rules of Civil Procedure requires that a motion for new trial be filed. Rule 374, T.R.C.P. provides that the motion for new trial shall constitute the assignments of error on appeal and that a ground of error not distinctly set forth in the motion for new trial shall be considered as waived.

Appellants’ motion for new trial consisted of two paragraphs, reading:

I.
“The verdict is contrary to the evidence and not supported by the evidence, in that the undisputed evidence showed that the defendant was at fault by open judicial admission made by the Defendant in his testimony.
II.
“The verdict is contrary to the evidence in that the jury, in answering the Special Issues as to damages, answered Special Issue No. 15, ‘NONE’, when the undisputed and uncontradicted evidence showed that the Plaintiff Georgia Gavrel had suffered severe physical pain and mental anguish.”

Paragraph II complains of Special Issue No. 15 and is sufficiently specific to direct the trial court’s attention to their contention that the answer to this issue is contrary to the undisputed evidence. The point of error in appellants’ brief that the answer to this issue is contrary to the great weight and preponderance of the evidence is germane to this assignment of error.

Paragraph I, however, is directed at the entire verdict and, in effect, is a contention that plaintiffs were entitled to a directed verdict. The defendant testified that he was distracted and his attention diverted by another automobile and a crowd of people looking toward him and that when he looked ahead it was too late to avoid the collision with plaintiff. The jury found that he was guilty of negligence in failing to keep a proper lookout and in failing to make proper use of his brakes and that these acts of negligence were proximate causes of the collision. The fact that the defendant admitted his negligence, if he did, would not be inconsistent with other evidence that the plaintiff also was guilty of negligence constituting a proximate cause of the collision.

Thus construed this assignment is without merit. The reason annexed to the general complaint is calculated to call the attention of the court to the more specific complaint, and divert his attention from the more general part of the assignment. The attention of the court was not specifically directed to the point now raised, i. e., that the answers made by the jury to Special Issues 13 and 14 are contrary to the great weight and preponderance of the evidence. This point, therefore, is waived. Rule 374, T.R.C.P.; Field v. Sosby, Tex.Civ.App.1950, 226 S.W.2d 484, writ ref.

If we eliminate the reasoning as sur-plusage, the assignment reads: “The verdict is contrary to the evidence and not supported by the evidence.” We might then reason that appellants were not attacking the issues found in their favor, or those that were immaterial. Since Special Issue IS is attacked in another assignment, we could conclude that appellants intended to assign error only as to Issues 13 and 14, and that the assignment is sufficiently specific to afford basis for the point on appeal.

We have concluded, however, that we are not required, and over the objection of appellee, not authorized, to consider the point.

Many cases hold that an assignment in a motion for new trial to the effect that the verdict is contrary to or not supported by the evidence is too general to support a point on appeal. A.A.A. Air Conditioning & Mfg. Corporation of Texas v. Barr, Tex.Civ.App. 1945, 186 S.W.2d 825, writ ref.; Texas Indemnity Ins. Co. v. Warner, Tex.Civ.App.1942, 159 S.W.2d 173, writ ref.; Weaver v. Tom Felton, Inc., Tex.Civ.App.1961, 346 S.W.2d 159, ref., n. r. e.; Reserve Life Insurance Co. v. Jansen, Tex.Civ.App.1962, 357 S.W.2d 770, ref., n. r. e.; Louisiana & Arkansas Ry. Co. v. Robinson, Tex.Civ.App.1957, 302 S.W.2d 665, ref., n. r. e.; cert. den. 355 U.S. 959, 78 S.Ct. 537, 2 L.Ed. 534; Novita Oil Co. v. Smith, Tex.Civ.App.1952, 247 S.W.2d 151; Redman v. Cooper, Tex.Civ.App. 1942, 160 S.W.2d 318; Arana v. Gallegos, Tex.Civ.App.1955, 284 S.W.2d 958; Posted v. Smith, Tex.Civ.App.1944, 182 S.W.2d 519.

The jury’s answer to the damage issue, Special Issue No. 15, is immaterial since the findings of contributory negligence bar any recovery of damages. It is not necessary to consider the point complaining that the answer to this issue is contrary to the great weight and preponderance of the evidence. Garza v. San Antonio Transit Co., Tex.Civ.App. 1944, 180 S.W.2d 1006, error ref.; Citizens Nat. Bank of Abilene v. Overstreet, Tex.Civ.App.1934, 77 S.W.2d 250, error ref.

The judgment of the trial court is affirmed.


author: RENFRO, Justice. MASSEY, Chief Justice.

text:
    Charles BAILEY, Appellant, v. Raymond CLARK, Appellee.
    No. 16807.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 10, 1966.

      L. J. Varnell, Jr., Mineral Wells, for appellant.
    Morgan, Gambill & Owen and Cecil A. Morgan, Fort Worth, for appellee.
   OPINION

RENFRO, Justice.

In a primary election contest Raymond Clark was adjudged to be the Democratic nominee for the office of County Commissioner, Precinct No. 2 of Parker County.

The contestor, Charles Bailey, appealed.

Appellee Clark filed a motion praying for dismissal of the appeal for the reason the appellant did not timely give notice of appeal and file an appeal bond in compliance with Article 13.30 of V.A.C.S., Election Code.

More than five days had elapsed before appellant gave notice of appeal and filed an appeal bond.

Compliance with the statute (Article 13.30) is necessary to give this court jurisdiction.

Appellee’s motion is granted and the appeal is hereby dismissed.

Dismissed.

CONCURRING OPINION

MASSEY, Chief Justice.

I am not satisfied of the propriety of dismissal of the appeal on the ground stated in the opinion.

However, since absentee voting will begin October 19, 1966, it is obvious that the time within which the appeal could be considered is insufficient for a final determination on the merits. In view thereof it is my opinion that the appeal should be dismissed as moot.


author: ARCHER, Chief Justice.

text:
    Y. W. KIMBRO dba Kimbro Brothers, Appellant, v. ROBERTSON TANK LINES, INC., et al., Appellees.
    No. 11429.
    Court of Civil Appeals of Texas. Austin.
    Oct. 19, 1966.

      William G. Washington and Ulmer W. Spinney, Austin, for appellant.
    Gardere, Porter & DeHay, Gordon H. Rowe, Jr., Dallas, for appellees.
   ARCHER, Chief Justice.

This appeal involves determination of a venue question. Appellant herein was im-pleaded as third party defendant by appel-lees, who were sued by plaintiff below, Cecil Eugene Abernathy, not a party to this appeal. Abernathy by his original suit filed in Bell County sought to recover damages against appellees for injuries allegedly received when as a pedestrian he was struck on a public highway in Bell County by a truck owned by appellee, Robertson Transport Company, and being driven at the time by appellee, Virgil F. Baird. Appellees, by way of third party complaint, impleaded appellant Y. W. Kimbro, d/b/a Kimbro Brothers, alleging that any injuries which might have been sustained by Abernathy were proximately caused by various acts of negligence on the part of one of appellant’s employees acting within the scope of his employment while spreading lime on the premises immediately adjoining the highway where the accident occurred. To this third party complaint, appellant filed his plea of privilege to be sued in Williamson County, Texas, the county of his residence. Said plea of privilege was timely controverted by appellees, who alleged that exceptions to exclusive venue did exist under the provisions of Section 9a of Article 1995, Vernon’s Ann.Civ.St., as well as other sections of that Article. A venue hearing was duly held at which time the various depositions appearing as the Statement of Facts herein were introduced for consideration by the trial court. Upon consideration of them, the trial court entered an order overruling appellant’s plea of privilege and fixing venue in Bell County, Texas, where the accident made the basis of the lawsuit occurred.

The appeal is based on six points, the first four are that there was no evidence or the evidence was insufficient to prove that appellant was guilty of any negligence on the occasion, or that any such negligence was a proximate cause of the injuries sustained by the original plaintiff.

Appellees assert that appellant’s points of error are legally insufficient to present any error for consideration on appeal because such are couched in such general terms that particular grounds are not clearly identified, and cites T.R.C.P. Rules 418, 320 and 321.

Since we believe that the action of the trial court was correct and are affirming the judgment we do not see any need to consider such objection further but do observe that the rules should be complied with. Rosenfield v. Hull, Tex.Civ.App., 304 S.W.2d 571; Red Fish Boat Company v. Jarvis Press, Inc., Tex.Civ.App., 361 S.W.2d 588.

There was adduced before the Court sufficient evidence at the venue hearing to support the trial court’s implied finding in favor of appellees within the meaning of Section 9a, Art. 1995, V.A.C.S., that appellant’s employee acting within the scope of his employment committed acts of negligence in Bell County, Texas, proximately causing injuries directly to plaintiff Abernathy which in turn gave rise to appellees’ suit herein for contribution.

Appellee Baird testified that as he approached along the road the lime dust at first did not present any problem to visibility, but that when he came abreast of appellant’s lime truck, he was suddenly and unexpectedly confronted with a large dispersal of lime from the truck which did obscure visibility, and that he took his foot off the throttle, but was afraid to apply his brakes immediately because there was a passenger car following just behind his truck.

By his deposition Baird testified on pages 55-56:

“Q In what direction did you maintain your vision?
A Straight ahead.
Q And directed where straight ahead?
A Down the road.
Q Down the road?
A Yes.
Q All right. How long would you say that lime truck was ?
A Well, he wouldn’t have been over fifty feet.
Q Was he as long or longer than you ?
A I would say we were both about the same length.
Q You were about the same length?
A Yes, sir.
Q Was the lime coming out the back or front of his vehicle ?
A Coming out of the back of his trailer.
Q Could you see how it was coming out? Was it coming out all on the right side, or all on the left side, or all up and down the back of the truck ?
A Well, I couldn’t tell.
Q You weren’t particularly paying any attention to him?
A Well, I wasn’t particularly interested.
Q All right. Was the lime blowing across the roadway in front of you?
A There was a mist, yes, sir.
Q How thick was that mist ?
A Well, it wasn’t bad until I got right there at the truck.
Q Until you got to the rear of the truck ?
A Yes, sir.
Q How far from the rear of the truck ?
A Just right on it.
Q All right. You kinda underestimated it, I guess ?
A No. I was just right at the truck whenever it got real heavy.
Q When you first saw the lime truck was it kicking up a lot of dust or just a little bit?
A Well, it wasn’t very bad when I first seen it; and as I come on down the road, it still wasn’t very bad.
Q And by not very bad, do you mean that you could see through it completely ?
A Yes, sir.”

On pages 89-90 Baird testified:

“Q All right, sir, you had your eyes straight on down the road ?
A I was watching the road, yes, sir.
Q And at that time, you could see pretty far on down the road, could you not, sir?
A Not at the time I hit him, no, sir.
Q How far could you see down the road?
A Well, I had just suddenly run into a mass of that lime, and I couldn’t see anywhere.
Q Just suddenly there was a mass of lime?
A Yes, sir.
Q Can you account for that in some way?
A No, sir. I don’t know nothing about that.
Q There wasn’t that much lime as you approached them ?
A No, sir.
Q The lime that you did see was real sudden ?
A Yes, sir.”

Continuing from pages 91-92 of his deposition Baird testified:

“Q * * * You knew that you were on the paved portion?
A Yes, I knew I was on the paved portion ?
Q And you never did go off the paved portion.
A No, sir.
Q And at that time, though, you weren’t in the process of either increasing or decreasing your speed?
A I had done got off my throttle whenever I hit Mr. Abernathy.
Q You did what?
A I had done gotten off the throttle * * * when I hit him. When I got into that sudden mist, I got off of it.
Q Did you take your foot off the throttle ?
A Yes, sir.
Q And how long before that, before you hit him ?
A Well, I wouldn’t say. Just as soon as I hit it, I got off of it — where I got to where I couldn’t see.
Q Did you put your foot on the brake ?
A No, sir.
Q Did you feel that you could see far enough ahead where you could stop in that distance ?
A Well, I don’t know whether I even gave that a thought or not.
Q Well, is that the reason you didn’t put your foot on the brake, that you did feel you could see far enough head where you could stop ?
A I had a man behind me, I thought, in a car.”

Testifying by oral deposition Gumersindo Navarrete, the driver of the lime truck belonging to appellant, stated:

“Q Now, the complete operation of spreading is handled by the operator of the truck whoever is driving the truck; isn’t that right?
Yes, we are supposed to unload. >
And you are supposed to unload it? ©
Yes. >
And the entire job of unloading was under your control on your particular truck? I mean there wasn’t anybody from McKinney sitting in your truck operating the unloading? O
Oh, no. It was me. >
You were doing it yourself ? ©
Yes. >
And at that time you were doing it for Mr. Kimbro who paid you for that work: is that right ? ©
A Yes.
Q The only thing that McKinney and them had done was to tell you where they wanted it spread?
A Yes.
Q Then it was up to you to do all the the spreading; is that right ?
A Yes.”
Continuing the witness stated:
“Q Usually, but what I am talking about is, can you spread more at one time and less at one time by the way you operate the switches or something inside the truck ?
A Well, you can run up your pressure more, you know.
Q What is the most pressure that you can use?
A 10 pounds.
Q 10 pounds ?
A Yes.
Q In other words, if it goes up to 10 pounds, you are going to put out more lime than if you have it less than that; is that correct?
A Yes, sir.
Q And the actual operation of the spreading with reference to whether you are operating it at 10 pounds or 8 pounds is controlled by you as you go along; is that right ?
A Well, I still ain’t getting what you mean by that.
Q Well, I mean if you have 10 pounds of pressure, you are going to spread more at one time as you go along each foot?
A Yes.
Q And whether or not you’ve got 10 pounds of pressure or 8 pounds of pressure, or 6 pounds, you regulate that? You, yourself, regulate that by reference to that motor that makes the air pressure, do you not?
A Yes, we regulate that.”

We conclude that the evidence was of probative force and value to support the various elements set out in Section 9a of Art. 1995, and that the servant of appellant acting within the scope of his employment committed an act of negligence in Bell County, Texas proximately causing injuries to the plaintiff.

Other points of error to the effect that plaintiff voluntarily exposed himself to danger may become an issue on the trial on the merits.

The judgment of the trial court is affirmed.

Affirmed.


author: DIXON, Chief Justice.

text:
    CHEVRON OIL COMPANY, Appellant, v. Vernon C. HOWELL et al., Appellees.
    No. 16806.
    Court of Civil Appeals of Texas. Dallas.
    July 22, 1966.
    Rehearing Denied Oct. 7, 1966.

      Henderson, Bryant & Wolfe, Sherman, Baker, Botts, Shepherd & Coates and John F. Heard, Houston, for appellant.
    Carrington, . Johnson & Stephens and Robert L. Blumenthal, Dallas, for appellees.
   DIXON, Chief Justice.

Appellant Chevron Oil Company, hereinafter called Chevron, has appealed from a temporary injunction restraining it from proceeding further with the drilling of a directional oil well.

Most of the facts are undisputed and they present an unusual situation. In March 1966 Chevron began operations to drill the well from a location in Grayson County, Texas on the west bank of Lake Texoma. The hole is slanted in a -northeasterly direction so that it may be bottomed in a lease owned by appellant in an area in the State of Oklahoma beneath the waters of Lake Texoma.

Appellee Vernon C. Howell is the owner of a five-year agriculture and grazing lease, revocable at will, dated January 1, 1965 covering the surface rights of a large tract including an area of approximately 189 acres where appellant began its drilling operation. This lease was granted to appellee Howell by the United States, acting by the Secretary of the Army, pursuant to Title 10, United States Code, Section 2667.

Appellee Magna Oil Corporation, hereinafter called Magna, is the owner of an ex-elusive oil, gas and mineral lease dated February 15, 1965 underlying the 189 acres above mentioned. Magna’s lease is from the Hutchinson family, former owners of the fee title to the tract, who retained oil, gas and mineral rights following the taking through condemnation of the surface rights by the United States.

Appellee Howell did not give permission to Chevron to come onto his surface lease to start drilling its oil well. Neither did appellee Magna give Chevron permission to penetrate the subsurface oil, gas and mineral lease owned by Magna. In fact, negotiations had ended by their refusing to give such permission.

Appellant claims that it has the right to start its drilling operation on appellee Howell’s leased surface land and the right to penetrate appellee Magna’s subsurface oil and gas lease pursuant to a license granted to it by the United States, acting through the Corps of Engineers, as set forth in two letters.

The first letter, dated February 10, 1966, is addressed to S. J. Mathews, Jr., appellant’s Division Production Superintendent, and is signed in behalf of the Corps of Engineers by David A. Heims, Chief, Real Estate Division. We quote from this letter:

“Insofar as the interests of the United States as surface owner are concerned we have no objection to the location specified.
“This approval of location is not to be construed as approval of any of your proposed operations as to directional drilling to a bottomhole location approximately 3270 feet North 64° East with a vertical depth of approximately 3800 feet at that point, and or interstate production. Since your proposal is to drill in Texas and produce from Oklahoma, we are furnishing a copy of this letter to the Oklahoma Corporation Commission.
“Mr. Vernon C. Howell, surface tenant, previously advised us that he had no objection to the usage of the surface for the drilling of a directional well but he pointed out that Magna Oil Corporation owns an oil and gas lease covering the land where the proposed surface location will be. We specifically make no determination as to whether or not your operations will conflict with Magna.
“All storage tanks and pits shall be erected above elevation 645 feet, mean sea level, and protected by fire walls or dikes of sufficient capacity to protect the reservoir from oil pollution.” (Emphasis ours.)

The second letter, dated April 1, 1966, is addressed to the Tulsa District Corps of Engineers, attention Mr. Heims, and is signed by S. J. Mathews, Jr. This letter, after referring to the letter of February 10, 1966, states, “It was necessary for us to make a slight change in the surface location due to terrain difficulties.” The letter then describes the new location and requests approval. In the lower left corner of the letter is the notation, “Above revised surface location is hereby approved. Date: 5 April 1966 [Signed] David A. Heims.”

Appellee Howell testified that on March 18, 1966 the foreman of his ranch informed him that someone had made a location for a well on Howell’s government lease. On March 20, 1966 Howell went to the scene of the operations. That evening he contacted Chevron’s superintendent, S. J. Mathews, Jr., by telephone, protesting Chevron’s activities. On March 21, 1966 Magna and Howell followed up Howell’s verbal protest by letter and telegram. Nevertheless Chevron continued its drilling operations.

This suit was filed April 7, 1966 by appel-lees Howell and Magna. Appellee Howell is a vice-president of Magna. Following a hearing on April 13, 1966 the trial court granted a temporary injunction restraining Chevron from (1) “conducting any drilling operations on premises leased to Plaintiffs by the Secretary of the Army and by Charles M. Hutchinson, et al * * * ”; (2) “coming across the surface of the land” in question, “or trespassing thereon”; and (3) “puncturing, penetrating, drilling into, maintaining holes in, or otherwise conducting activities in subsurface formations of the land * * ⅜»

At the time appellee Howell talked to Mathews on March 20, 1966 Chevron had spent about $1,500 preparing to drill. By April 18, 1966, when the injunction was granted, it had spent about $50,000. By that time the drilling operation had reached a depth of 4300 feet. The total intended depth was 5400 feet.

In three points on appeal Chevron asserts that the trial court (1) erred in granting Howell an injunction because his surface lease requires him to grant ingress and egress to licensees of the United States, the surface owner; (2) erred in granting Magna an injunction because Chevron’s directional drilling operation did not in any way interfere with Magna’s rights under its mineral lease; and (3) abused its discretion in granting a temporary injunction because there is no competent evidence of damage either to the surface or to any oil, gas or mineral formation under the surface.

We see no merit in appellant’s points. We do not contrue the two letters of February 10,1966 and April 1,1966 (with new location approval dated April S, 1966) as a license for appellant to go onto and into appellees’ leased properties without appellees’ permission.

It is to be borne in mind that when the United States condemned land to create Lake Texoma, it did not take over the whole property. The oil, gas and mineral rights were retained by the Hutchinson family, grantors of the exclusive oil, gas and mineral lease to Magna. And both the lease to Howell of the surface rights to the 189 acres involved and the exclusive oil and gas lease to Magna were executed long prior to the signing of the alleged license letters.

It is true that the lease of the surface rights to Howell expressly provides that the leased area shall be subject to free public use for hunting and fishing. And that it also provides for lessee Howell to permit ingress and egress to persons holding mineral interests “on land covered by this lease”, or to utility companies or others “to whom the Government has granted an easement or license interest.”

However, we do not believe that a grant of a license to appellant was effectuated by the above recitals or by the statement in the letter of February 10, 1966 that “Insofar as the interests of the United States as surface owner are concerned we have no objection to the location specified.” (Emphasis ours.) To the contrary, we think it is apparent that other paragraphs in the letter make it plain that the United States was not approving appellant’s operations as to directional drilling, or interstate production, and was not making a determination which might conflict with Magna’s rights.

We do not agree with appellant’s contention that the court’s order should be reversed because there was no competent evidence of damage to either the surface or to the oil, gas and mineral formation under the surface.

The testimony of appellant’s own witness, its superintendent, was to the effect that to drill the hole is to damage the formation— “any time you drill into something there is bound to be some damage.” And certainly if appellant were to build “storage tanks and pits * * * protected by fire walls * * * of sufficient capacity to protect the reservoir from oil pollution” it cannot reasonably be said that such installations would not interfere with and do damage to appellee Howell as holder of the agriculture and grazing lease to the surface.

Moreover, our Supreme Court has held that continuous trespasses to mining property are irreparable and the legal remedy is inadequate, hence equity is quick to restrain the trespass. Hastings Oil Co. v. Texas Co., 149 Tex. 416, 234 S.W.2d 389, 398. See also Boiles v. City of Abilene, 276 S.W.2d 922, 925 (Tex.Civ.App. writ ref.); Ft. Worth Stockyards Co. v. Brown, 161 S.W.2d 549 (Tex.Civ.App., no writ hist.); and Gulf C. & S. F. Ry Co. v. Puckett, 82 S.W. 662 (Tex.Civ.App., no writ hist.). In Boiles v. City of Abilene, supra, it is held that equity will intervene to avoid the necessity of the filing of a multiplicity of damage suits by the aggrieved party in cases involving continuing trespasses.

Appellant’s points on appeal are overruled.

The judgment of the trial court is affirmed.


author: MURRAY, Chief Judge.

text:
    Jerry Vaughn ARCHER, Appellant, v. Shirley Bales ARCHER, Appellee.
    No. 14517.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 28, 1966.
    V. F. Knickerbocker, Vern F. Martin, Midland, for appellant.
    H. S. Harris, Jr., Midland, for appellee.
   MURRAY, Chief Judge.

This is a divorce suit. Appellant, Jerry Vaughn Archer, is attempting to appeal from an interlocutory order overruling his plea in abatement, and further decreeing that the temporary custody of the minor child, Jerry David Archer, be granted to appellee, Shirley Bales Archer, pendente lite, or until further order of the court, and that the home and residence of appellee and the said minor child, located at 300 Mariana Street in the City of Midland, Midland County, Texas, be set aside for the sole and exclusive use of appellee and the minor, Jerry David Archer, pendente lite, or until further order of the court, and ordering appellant, Jerry Vaughn Archer, to pay the sum of $40.00 per month as temporary alimony, pendente lite, or until changed by proper order of the court.

This order is called a temporary injunction, but it is in no sense a temporary injunction — it does not enjoin anyone from doing anything — and no appeal lies from such an order.

In 20 Tex.Jur.2d, § 181, p. 517, it is stated:

“Ordinarily, an appeal does not lie from temporary preliminary orders in a divorce proceeding. They are merely interlocutory and temporary, and no appeal therefrom is provided by statute. But the portion of a judgment in a divorce action continuing in force a temporary restraining order against the doing of bodily harm to or interfering with the plaintiff wife and the children may be construed as an injunction from which appeal is authorized. And a temporary injunction restraining disposition of property is appealable, regardless of whether the underlying suit is a divorce proceeding or not.
“An order overruling a challenge to residence qualifications as related in a divorce action is a nonappealable interlocutory order. Also, an order setting aside a divorce decree and granting a new trial is interlocutory and is not appeala-ble.”

In Janelli v. Bond, 148 Tex. 416, 225 S. W.2d 824, the Supreme Court, speaking through Justice Garwood, said:

“The foregoing applies, of course, only to the jnatter 0f the temporary injunction. Neither article 4662, supra, nor any other statute provides an appeal from an order requiring an inventory and ap-praisement. Since this is so, and since the order was plainly interlocutory, the Court of Civil Appeals was correct in dismissing the appeal as to it. Whether the order was valid or invalid under the evidence or otherwise, its interlocutory character makes it not appealable. Especially as to this aspect of the proposed questions, we could not properly require them to be certified. Simpson v. McDonald [142 Tex. 444, 179 S.W.2d 239], supra.”

In Holmes v. Holmes, Tex.Civ.App., 301 S.W.2d 677, Justice Pope, speaking for this Court said:

“The husband’s plea in abatement and the plea of res judicata were prematurely urged at the hearing for temporary orders, rather than at the trial upon the merits. He has endeavored to try and terminate the case on the merits at the hearing for the temporary orders. Article 4662, Vernon’s Ann.Civ.St., grants the husband the right of appeal with respect to the temporary injunctive features of the case, but not to the other interlocutory orders. The appeal on the temporary injunction in no way carried with it a right for the husband to appeal with respect to his plea in abatement and the plea of res judicata by reason of an earlier divorce action. Hastings Oil Co. v. Texas Co., 149 Tex. 416, 234 S.W.2d 389; Janelli v. Bond, 148 Tex. 416, 225 S.W.2d 824; Murray v. Murray, Tex.Civ.App., 224 S.W.2d 350; Witt v. Witt, Tex.Civ.App., 205 S.W.2d 612; Wilson v. Ammann & Jordan, Tex.Civ.App., 163 S.W.2d 660; 3A Tex.Jur., Appeal and Error Civil Cases, § 91.”

See also, Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523.

We do not have jurisdiction of this attempted appeal, therefore, it is -dismissed.


author: DAVIS, Justice.

text:
    HOME INDEMNITY COMPANY, Appellant, v. John H. THOMPSON et al., Appellees.
    No. 7738.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 6, 1966.

      William A. Barber, Jr., Texarkana, for appellant.
    Cahill Hitt, Atchley, Russell, Hutchinson ■& Waldrop, Texarkana, for appellees.
   DAVIS, Justice.

A suit to recover subrogation from third party under Article 8307, § 6a, Vernon’s Ann.Tex.Civ.St.

Harvie Simmons was employed by John Carver and was covered by workmen’s compensation insurance by plaintiff-appellant, Home Indemnity Company. In the course ■of his employment, he was in the process of getting gasoline that was purchased from defendants-appellees, John H. Thompson and Sinclair Refining Company, and while in the process of loading a truck with gasoline it caught fire and burned Harvie Simmons. Appellant paid to Harvie Simmons the sum of $1,711.85 workmen’s compensation.

While the claim of Harvie Simmons was pending against appellant for workmen’s •compensation, appellees, with knowledge of appellant’s subrogation claim, paid Harvie Simmons One Thousand ($1,000.00) Dollars and obtained a release. Appellees plead the release and moved for summary judgment. Summary Judgment was denied and the case was tried before a jury. The jury answered all the special issues in favor of the appellees and against Harvie Simmons. The jury convicted Harvie Simmons of being guilty of contributory negligence. Appellant filed a motion for judgment non ob-stante veredicto. The trial court overruled the motion and entered judgment that appellant take nothing. Appellant has perfected its appeal and brings forward eight points of error.

By its point one, appellant says the trial court erred in failing to grant its motion for judgment non obstante veredicto against appellees for $1,000.00, and bases its claim under Art. 8307, § 6a, and Pan American Insurance Company v. Hi-Plains Haulers, Inc. (1961), 163 Tex. 1, 350 S.W.2d 644. Appellees take the position that since the jury found that Harvie Simmons was guilty of contributory negligence it was incumbent upon the court to enter the judgment that it did. The judgment, as entered, is contrary to the law as announced by the Supreme Court of Texas in Pan American Insurance Company v. Hi-Plains Haulers, Inc., supra. In that case, the court said:

“It is now the law in this state that the third party’s negligence need not be judicially established before the compensation carrier is entitled to assert its claim for subrogation and where the employee and the third party entered into a settlement, both employee and the third party were liable to the carrier for the amount so paid up to the amount of compensation paid by the carrier to the employee. Traders & General Insurance Co. v. West Texas Utilities Co., supra [140 Tex. 57, 165 S.W.2d 713]. Likewise it was held in Fort Worth Lloyds v. Haygood, supra [151 Tex. 149, 246 S.W.2d 865, 869], that the first money ‘paid or recovered by the employee, or his representatives, belongs to the compensation carrier paying the compensation, and until it is paid in full, the employee, or his representatives, have no rights to any funds; * * *.’ ”

The point is sustained.

Appellant briefly briefed its second point of error, but cited no authorities, on the ground that the appellee, Thompson, had lunch with one of plaintiff’s witnesses. Since appellees were depending upon the release and admitted that they had paid One Thousand Dollars, no harm is shown. It does not matter whether or not any negligence was shown on the part of appellees. The point is overruled.

Appellant did not brief his points 3 through 8 and they have been waived. Although they are not necessary to the decision that we have reached, they are overruled.

The judgment of the trial court is reversed and the cause is remanded to the trial court for entry of a judgment in favor of the appellant for $1,000.00 in accordance with this decision. It is so ordered.


text:
    The STATE of Texas, Appellant, v. The CITY OF TYLER et al., Appellees.
    No. 224.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 13, 1966.
    Rehearing Denied Nov. 10, 1966.
    Waggoner Carr, Atty. Gen. of Texas, J. Milton Richardson, Asst. Atty. Gen. of Texas, Austin, for appellant.
    Troy Smith, City Atty., Henry L. McGee, Jr., Asst. City Atty., Tyler, for appellees.
   SELLERS, Justice.

Appellees brought this suit in the District Court of Smith County, Texas, in trespass to try title against the State of Texas to recover the fee simple title to some sixteen (16) tracts of land now comprising the Tyler State Park. The authority to bring this suit was granted the City and County by the Legislature. The suit likewise seeks to recover $360,000.00. The State answered in the case denying the allegations in the petition and a plea of not guilty and a certain alternative plea in the event the ap-pellees should recover, seeking to recover of the City and County the value of the improvements made by the State in the sum of $710,465.00.

The case was tried to the Court without the aid of a jury, and resulted in a judgment for plaintiffs, the City of Tyler and Smith County, for judgment for the fee simple title to the land involved. Among other matters, the Court’s judgment contained the following:

“Said title of THE CITY OF TYLER AND SMITH COUNTY, TEXAS, is subject to the permissive condition of user of the surface by the State of Texas for park purposes only, as is more fully set forth in a following paragraph here- . * * *^
“IT IS ALSO FURTHER ORDERED, ADJUDGED AND DECREED by the Court that THE STATE OF TEXAS shall have the privilege of continuing to operate a state park on the surface of said land, so long as such surface of said land is used by the STATE OF TEXAS for park purposes in accordance with the terms and provisions of Article 6081e of the Revised Civil Statutes of Texas, as the same existed in the year of 1935 and 1936, it being specifically decreed that THE CITY OF TYLER AND SMITH COUNTY, TEXAS, and their lessees, their successors and assigns, for oil and gas purposes, shall have full authority to enter upon said land for any lawful purpose including, without limitation, the right to prospect for oil and gas and develop and operate for the production of oil, gas and other minerals, as is provided for in said leases.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiffs, THE CITY OF TYLER AND SMITH COUNTY, TEXAS, shall recover, jointly and equally, of and from THE STATE OF TEXAS, the sum of ONE HUNDRED FORTY-SEVEN THOUSAND FOUR HUNDRED TWENTY-FOUR AND NO/100 ($147,424.00), together with interest thereon at the rate of six (6%) percent per annum from the date of this Judgment until paid.”

From this judgment, the State has duly prosecuted this appeal. It was around 1934 or 1935 that the City of Tyler became interested in the establishment of a State Park, and in pursuance of this desire, contact was made with the County for a joint adventure with the State Parks Board (later, the name of the State Parks Board was changed to Texas Parks and Wildlife Department) to establish the Tyler State Park by the City and County purchasing sixteen (16) tracts of land for the sum of some twenty thousand dollars, the City to pay ten thousand dollars and the County to pay ten thousand dollars of the purchase price. It seems that the County had its money, but the City had to vote bonds to raise its money, which was done.

It was agreed that sixteen (16) tracts of land would be acquired for the site of the park and separate deeds from sixteen different grantors were executed, naming the State Parks Board as grantee. Some of these deeds retained in the grantor certain royalty interests and a greater number of the deeds provided that if the land should cease to be used for park purposes, the title to the same would revert to the City of Tyler and Smith County, Texas. It was provided that these deeds would be placed in escrow in a bank until all the consideration was paid to the grantors by the City of Tyler and Smith County, Texas.

The consideration for the deeds was duly paid by the City of Tyler and Smith County and the deeds were later recorded in the Deed Records of Smith County, Texas.

It is without dispute that the State Parks Board took possession of the lands and developed the same into the State Park of Tyler, and over the years spent thousands of dollars of the State’s money as well as certain federal funds made available for the purpose of providing parks. The State is still operating the park and has continuously since it took possession around 1935.

Several years after this park was established, the State leased a portion of this land for oil and gas, and producing wells were the result. At the time of the trial, the State had collected $147,424.00 in royalties for the oil produced.

It appears from the record that the City and County discovered for the first time after the State leased the land for oil and gas that the deeds were made to the State Parks Board rather than the City of Tyler and Smith County, and this suit was brought claiming the fee title to the lands. There is no pleading that would authorize the Court to reform the deeds to the Parks Board by making the City and County the grantee therein.

The City and County are relegated then to such rights as they have by virtue of paying the consideration for the land. Our Courts recognize the rule that a party can have an equitable or a legal title to land, or the two titles may be in separate parties, and the one owning the equitable title may sue in trespass to try title to recover the legal title which stands in the name of the other party. Hereford Land Company et al. v. Globe Industries, Inc., Tex.Civ.App., 387 S.W.2d 771.

The appellees seek to recover the legal title to the lands involved on the theory that they own the equitable title, and the appellant owns the legal title and that appellant was a trustee holding, at all times, the legal title for appellees. This rule has been upheld many times in this State but there is one well recognized exception to it, and that is where a gift or other purpose was intended, no trust is created. 57 T.J.2d 643, Section 265. This record is without dispute that the entire negotiations for the purchase of the lands involved were to secure a State Park by the appellees for the use and benefit of its citizens. The arrangements contemplated that appellees would acquire the land and that the State Parks Board would develop and maintain the Park. This was so evident in the trial that the Court in its judgment did not dispossess the appellant from its use of the land for park purposes.

Having failed to show equitable title to the land, then appellees were not entitled to recover. But, appellant contends that the City and County did not have the power under the law to pay for the land which was conveyed to the Parks Board for the establishment of the Tyler State Park. With this, we do not agree. We are of the opinion that the question has been foreclosed against appellees by the reasoning, if not the holding, in the case of King v. Sheppard, Tex.Civ.App., 157 S.W.2d 682 and the authorities therein cited.

The conclusion above reached renders the other assignments of appellant unnecessary to decide.

The judgment of the trial court is reversed and judgment rendered for appellant.


author: BELL, Chief Justice.

text:
    Charles N. RICE, Appellant, v. TRAVELERS EXPRESS CO., Inc., Appellee.
    No. 14863.
    Court of Civil Appeals of Texas. Houston.
    Oct. 6, 1966.

      Croom, Barnes & Adams, Sam G. Croom, Houston, for appellant.
    Jack Bodiford, Houston, for appellee.
   BELL, Chief Justice.

This is an appeal from a summary judgment rendered against appellant and Harold E. Campbell. Only Rice has appealed.

Appellee sued Rice and Campbell as individuals and as co-partners d/b/a Harold’s Drive In. The basis of the suit was that Campbell, who apparently was the operating partner, had, on behalf of the partnership, entered into a contract with appellee to write money orders. The appellee and the partnership were to divide the fees for the services rendered. The partnership was to remit to appellee the funds collected less its part of the fees.

After some months it was discovered that remittances had not been made and it was determined by the parties that the remittances that should have been made amounted to $9,059.62. On January 25, 1965, Harold E. Campbell executed a note payable to ap-pellee in this amount, payment to be made in installments. On March 2, 1965, appellant, in writing, denying any knowledge of Campbell’s failure to remit but expressly acknowledging his liability, jointly and severally, on the note because of his being a partner with Campbell, “unqualifiedly guaranteed the payment of said note.”

Appellee in his petition sued on the theory of a “stated account” ánd also sued on the promissory note.

Appellant’s answer contained an exception to the petition contending suit was not properly upon a “stated account” within the meaning of Rule 185, Texas Rules of Civil Procedure, and therefore appellee could not recover the $3,000.00 attorney’s fee asked. The answer asserted the suit was actually on the note and his guarantee of it and ap-pellee was limited to the 10% provided for in the note as an attorney’s fee. There was also a general denial.

Appellant filed a cross-action against Campbell, contending he knew nothing of the shortage but that Campbell had personally made use of the money collected. He admitted his guaranty of the shortage which was evidenced by the promissory note. He asked that he have judgment over against Campbell for any judgment rendered against him in appellee’s favor.

Campbell filed an answer consisting of a general denial and the same attack that Rice made on the petition of appellee insofar as there was an attempt to recover on a stated account and the $3,000.00 attorney’s fee. He then filed an answer to appellant’s cross-action asserting he and appellant were partners and the money that had not been remitted was used in the partnership business. Campbell then filed a cross-action against appellant in effect asserting an assumption by appellant of all debts of the partnership in consideration of the conveyance to appellant of Campbell’s interest in the business.

It will be noted there is nowhere a denial of the partnership or execution of the note by Campbell.

The court, on appellee’s motion for summary judgment, rendered judgment on the note against Rice and Campbell, jointly and severally, individually and as co-partners. On its own motion the court severed the cross-actions filed by Rice and Campbell against each other.

Appellant urges it was error for the trial court to grant severance on its own motion because the parties had agreed only to the rendition of an interlocutory judgment in favor of appellee against appellant and Campbell and there was no agreement for rendition of a final judgment for appellee and severance of the cross-actions.

There was no error. In the first place we find nothing in the record showing such an agreement. Too, any such agreement to be enforceable would have to comply with Rule 11, T.R.C.P.; Cureton v. Robbins, 319 S.W.2d 735 (Tex.Civ.App.), n. w. h. In the second place, a trial court is vested with broad discretion in severing causes and ordering separate trials. Rules 174, 97(h), and 41, T.R.C.P.; Kliesing v. Nauhaus, 265 S.W.2d 215 (Tex.Civ.App.), n. w. h.; Pure Oil Co. v. Fowler, 302 S.W.2d 461 (Tex.Civ.App.), n. r. e. We hold the meaning of the above rules is such as to authorize the court on its own motion to order severances in the circumstances under which the above rules authorize severance and separate trial and a motion by a party to sever is not necessary.

Here it was entirely proper for the court to order severance of the cross-actions that appellant and Campbell filed against each other. Neither answer nor cross-action seeks to defeat liability to the appellee on the note. The cross-actions merely seek to cast on the other cross-defendant full liability as between themselves which in no wise affects their joint and several liability on the note to appellee.

Appellant does complain that the judgment is against him when he did not sign the note but was liable on his guaranty and final judgment should not be against him until appellee showed inability to collect against Campbell.

We overrule this complaint. The guaranty provides that appellant “unquali-fiedly guarantees payment of said note * * * according to the reading, tenor and effect of said note.” He thus became liable as an original obligor. Cullum v. Commercial Credit Co., 134 S.W.2d 822 (Tex.Civ.App.), n. w. h.; Ganado Land Co. v. Smith, 290 S.W. 920 (Tex.Civ.App.), writ ref.; El Paso Bank & Trust Co. v. First State Bank, 202 S.W. 522 (Tex.Civ.App.), n. w. h.

Apart from the obligation purportedly assumed by the instrument of guaranty, appellant was liable on the note because it was a partnership obligation. A recital in the instrument of guaranty signed by appellant states that appellant as a co-partner with Campbell recognizes and admits he is j ointly and severally liable with Campbell to pay the indebtedness in the manner provided in said note. Partners in a general partnership are jointly and severally liable personally for partnership debts.

Affirmed.


author: MOORE, Justice.

text:
    Charles POTTER, d/b/a Potter’s Building Supplies, Appellant, v. Pearl GARNER, Appellee.
    No. 217.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 13, 1966.
    Kehearing Denied Nov. 3, 1966.

      Gordon Wellborn and Rex Houston, Henderson, Malcolm M. Guinn, Rusk, for appellant.
    James H. Rounsaville, Norman, Rounsa-ville, Hassell & Spiers, Jacksonville, W. Wilson McVicker, Rusk, for appellee.
   MOORE, Justice.

This is an appeal from a judgment awarding damages for personal injuries. Appellee, Pearl Garner, was an employee of appellant, Charles Potter, d/b/a Potter's Building Supplies, who was engaged in the construction business. Appellant was an employer subject to the workmen’s compensation, but did not carry workmen’s compensation insurance. Therefore, the defenses of contributory negligence and assumed risk are not available to appellant. Article 8306, Secs. 1 and 4, Vernon’s Ann. Civ. St.

In his pleadings appellee Garner alleged, among other things, that his employer was negligent in furnishing him an electrically powered handsaw which was not equipped with a protective guard and that as a direct and proximate result of such negligence, he suffered severe injuries to his left hand.

Appellant answered with a general denial and specially denied that he furnished ap-pellee with the power saw in question and alternatively that the saw was not defective. Pleading affirmatively, appellant alleged that the appellee was experienced in the use of a power saw and fully realized and appreciated the danger involved in the use thereof and thereafter voluntarily exposed himself to such danger and assumed risk. He further alleged that appellee’s injuries resulted solely from his own negligence in the following respects: (1) failure to keep a proper lookout; (2) using the saw to split a board when he fully realized and appreciated the danger; (3) failing to act in a careful and prudent manner in using the saw; and (4) voluntarily exposing himself to a danger which he knew to exist. Pleading further in the alternative, appellant alleged that even though the power saw may have been defective in some respects, the danger was not known or discernible to him and as a result the event was a new and independent cause of the injuries, thus destroying any causal connection between the act complained of by the appellee; that appellee had the last clear chance of preventing injuries to himself and his failure to use ordinary care was the sole proximate cause of his injuries, and lastly that the occurrence in question was the result of an unavoidable accident.

The dispute turns upon the fact question of whether or not appellant actually furnished the saw and if so, whether the saw was equipped with a protective guard covering the saw blade. The injury was not disputed, nor does appellant challenge the amount of damages awarded by the jury.

The record shows that appellee was a carpenter and had been in the employment of the appellant on several occasions previous to the time of his injuries. On the occasion in question, appellant Potter was engaged in remodeling a dwelling house and had assigned the appellee the duty of laying a hardwood floor in one of the rooms in the building. In performing the work, appellee testified that his employer furnished him and the other employees with a power saw. This particular saw was known and referred to by its brand name or a “Skill” saw, which was equipped with a protective guard over the blade. Several days before his injury, appellee testified that the blade on the “Skill” saw had been severely damaged and had been taken to a repair shop for repairs. Approximately two days before the date of his injury, he testified that while in his employer’s place of business in Jacksonville for the purpose of obtaining supplies for the construction, he advised his employer that the Skill saw had been damaged and that they were in need of another power saw on the job. According to his testimony, appellant then went into the back of his shop and brought out a power saw known as a “Mall” saw, which was not equipped with a protective guard over the blade. He then placed the saw in a box in which he was using to carry some nails and advised him to take the same to the job and use it. It is without dispute that the “Mall” saw in question was an electrically powered saw equipped with a radial blade and was designed to be used as a portable handsaw. According to appellee’s testimony, it was not equipped with the usual type of a protective guard over the blade which would automatically cover the blade after use, nor to his knowledge had it ever been so equipped when he had used it on previous jobs. He testified that he was uncertain as to whether the “Skill” saw had been repaired and returned to the job at the time of his injury, but if so, that he made no effort to locate same before using the Mall saw. He also testified that he knew and appreciated the danger involved in attempting to rip a narrow piece of oak flooring by using the saw without a protective guard. At the time of his injury, he testified that he was in the process of ripping the oak flooring approximately 18 inches in length by holding the same down flat on a sawhorse with his left hand and using the power saw in his right hand. After he had sawed into the board several inches, the saw either hit a hard place or knot or became pinched, thus causing it to suddenly jump up out of the crevice and lurch backward across his left hand near the thumb and across his left wrist, severely injuring his left hand and wrist. According to the medical testimony, there was severe damage to the nerves, ligaments, tendons and bones in his left hand and wrist requiring a surgical operation and in order to join the severed nerves and ligaments, it became necessary to shorten the length of the bones in the forearm. This was done by surgical operation whereby the bones in the forearm were severed and a short piece of the bones were taken out which resulted in a shortening of the arm.

Appellant denied that he furnished the saw to the appellee or that he told him to us the same. According to his testimony, the saw was not owned by him and had never been owned by him, but was the property of his brother-in-law, Henry Fowler, who had worked for him on numerous jobs in the past. He testified that immediately after the injury, he went to the job and made an investigation and found the “Mall” saw to be equipped with a protective guard over the blade; that he had seen the saw on numerous occasions on other jobs and that to his knowledge the saw had always been equipped with a protective guard. He admitted that he knew that Fowler had made a practice of using the saw on previous jobs in which Fowler had been employed by him, and also knew that the saw was being used on the job on the occasion in question.

Mr. Fowler testified that the “Mall” saw was owned by him and that he had used it on numerous other jobs where he had worked for the appellant. He and the other witness maintained, however, that the saw had always been equipped with a protective guard over the blade.

The case was tried before a jury and in response to the Special Issues as numbered in the court’s charge, the jury made the following findings: (1) that the Mall electric saw used by Pearl Garner at the time and on the occasion in question did not have a protective guard; (2) that appellant, at the time and on the occasion in question knew, or in the exercise of ordinary care should have known, that the Mall electric saw did not have a protective guard; (2a) that appellant permitted the Mall electric saw to be used by appellee at the time and on the occasion in question; (3) that such permitting was negligence; (4) that such negligence was a proximate cause of the injuries; (5) that appellant furnished the Mall electric saw to Pearl Garner for his use on the occasion in question; (6) that the act of appellant in furnishing the "Mall electric saw to Pearl Garner for use without a protective guard was negligence; (7) that such actions were a proximate cause of the injuries; (8) that piior to the injuries to appellee, appellant instructed appellee to use the Mall electric saw; (9) that the giving of such instructions was negligence; (10) that such negligence was a proximate cause of the injuries; (11) that prior to the occasion in question appellant failed to make such an inspection of the Mall electric saw as a person of ordinary prudence in the exercise of ordinary care would have made under the same or similar circumstances; (12) that the failure to make such inspection was a proximate cause of the injuries; (13) that the failure of appellant to furnish an electric table saw at the job site was not negligence; (IS) that appellee suffered damages in the amount of $21,000.00; (16) that past medical bills amounted to $565.00; (17) that past hospital services amounted to $249.00; (18) that appellee’s injuries were not the result of an unavoidable accident; (19) that appellee did not cause the saw to be placed in a pinched condition by holding the flooring with the left hand while sawing with the right hand; (23) that a danger inherent in the work was not a proximate cause of appellee’s injuries; (25) that ap-pellee failed to keep a proper lookout for his own safety; (26) that such failure, however, was not a proximate cause of his injuries; (28) that at the time and on the occasion in question appellee attempted to split an unsecured piece of hardwood flooring with a power saw; (29) that in so doing he knew and realized the danger of his acts; (30) that he knew and realized the dangerous condition prevailing at the time and on the occasion in question; (31) that appellee exposed himself to said danger; (32) that such conduct on the part of the appellee was not, however, the sole cause of the injuries; (33) that appellee knew or realized the condition of the power saw while he was using it; (34) that he had the last opportunity to prevent exposing himself to such condition; (35) that ap-pellee failed to avail himself of such opportunity; (36) that such failure, however, was not the sole cause of the appellee’s injuries.

The trial court entered judgment for ap-pellee on the jury verdict and appellant has duly perfected this appeal.

Appellant has assigned 25 Points of Error, the majority of which assert that either there was no evidence to support the jury’s verdict or that the evidence was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Because of these assignments we have reviewed the entire record and have done so in the light of the rules as set forth in the case of In re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (S.Ct.).

In approaching the question of whether or not there is any evidence of probative force to support the verdict, we are required to review the evidence in a light most favorable to the verdict and to disregard that which is favorable to appellant. Barker v. Coastal Builders, 153 Tex. 540, 271 S.W.2d 798, 799; Tips v. Gonzalez (Tex.Civ.App.) 362 S.W.2d 422.

A review of the testimony, we think, adequately demonstrates that there was sufficient evidence of probative force to raise each of the fact issues presented to the jury by the Special Issues, especially when viewed in a light most favorable to the verdict, and therefore each of the no evidence points must be overruled.

In passing upon the question of the sufficiency of the evidence, we have attempted to weigh and evaluate all of the evidence, both that which is favorable and that which is unfavorable to the verdict. We have concluded that the verdict of the jury and the judgment based thereon is not so against the great weight and preponderance of the evidence that the judgment can be said to be clearly wrong and unjust.

By other Points of Error, appellant seems to take the position that the doctrine of volenti non fit injuria, or the no duty doctrine, has some application to the facts of this case. We find ourselves unable to agree with this contention.

It seems to be now settled that the “no duty” concept does not apply to the master-servant relationship. To extend the “no duty” concept to cases of this type would serve to defeat and nullify the obvious and clearly expressed intention of the Legislature to take away from the nonsub-scribing employer the defenses of contributory negligence and assumed risk. Sears, Roebuck & Company v. Robinson, 154 Tex. 336, 280 S.W.2d 238 (S.Ct.).

In order for appellee to recover for his injuries, it was necessary for him to allege and prove negligence on the part of his employer proximately causing the injuries. The only defenses available to the appellant were to show that he was not guilty of negligence proximately causing the injury or that the appellee himself was guilty of some act which was the sole proximate cause of the injuries. Sears, Roebuck & Company v. Robinson, supra.

Several Special Issues were submitted inquiring whether or not the act and conduct of the appellee was the sole proximate cause of his injury. The burden of the proof upon these issues rested with the appellant. Ae we view the verdict of the jury, appellant failed to obtain a finding showing the conduct of the appellee to be the sole proximate cause of his injuries.

Appellant argues, however, that the jury's findings to Special Issues Nos. 33, 34 and 35 wherein the jury found that appellee realized the condition of the saw and had the last opportunity to prevent exposing himself to such condition and failed to avail himself of the opportunity are tantamount to a finding that the acts and conduct of the appellee was the sole proximate cause of his injuries. We are unable to agree with this contention. Even though such findings could be construed as a finding of either contributory negligence or assumption of the risk, the jury nevertheless found that such conduct on the part of the appellee was not the sole proximate cause of his injuries. In order to exonerate himself from liability because of his own negligent conduct, appellant was required to obtain a jury finding showing that ap-pellee’s own negligent conduct was the sole cause of his injury.

Nor do we agree with the appellant’s contention that the record establishes as a matter of law that appellee’s injuries were the result of a new and independent cause. In this connection appellant argues that since the undisputed facts show that the saw struck a hard place in the lumber, causing it to bind, such was sufficient to break the chain of events between the appellant’s negligence and the injury, and that this fact, together with appellee’s use of the saw, was such a combination of circumstances that injury could not have been reasonably foreseen.

The term “new and independent cause” was defined by the court in connection with the definition of proximate cause. The entire question of causation was thus placed before the jury and was determined adversely to the appellant. As we view the evidence, the facts and circumstances surrounding the question of causation present nothing more than a fact question and therefore we are not in a position to hold that the injuries were the result of a new and independent cause as a matter of law.

Appellant next contends that since the ap-pellee filed no motion to set aside any of the jury’s findings and since the judgment is obviously based upon the entire verdict of the jury, that when all of the jury findings are taken as a whole, without any of the same being set aside, there is an irreconcilable conflict in the issues. In this connection appellant takes the position that the findings of the jury establishing liability on the part of the appellant in Issues Nos. 1 through 12 are in conflict with the defensive Issues Nos. 25, 28, 29, 30, 31, 33, 34 and 35. As we view the record, however, no conflict is presented.

Before a judgment based on a verdict containing conflicting answers will be set aside, it must be shown that the conflict between the answers is such that one answer would establish a cause of action or defense, while the other would destroy it. Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453, 456 (S.Ct); Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (S.Ct.).

The test in such a case is, whether taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant. Howard v. Howard, (Tex.Civ.App.) 102 S.W.2d 473, 475, writ-ref.

In applying this test the court must consider each of the answers claimed to be in conflict, disregarding the alleged conflicting answer but taking into consideration all the rest of the verdict, and if SO' considered, one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers-are fatally in conflict. When these rules are applied to the verdict before us, it becomes obvious that appellant cannot meet the test because the jury refused to find in his favor on any of the issues involving the question of sole proximate cause.

Other points in appellant’s brief complain of the action of the trial court in overruling its exceptions to the charge, rulings on the evidence and the refusal to grant his motion in limine. After having carefully considered each of these points, we are of the opinion that the points are without merit and therefore must be overruled.

The judgment of the trial court is affirmed.


text:
    LONE STAR GAS COMPANY, Appellant, v. Nannette MITCHELL et al., Appellees.
    No. 215.
    Court of Civil Appeals of Texas. Tyler.
    Oct 6, 1966.
    Rehearing Denied Nov. 3, 1966.
    Roy E. Pitts and J. Philip Bilton, Dallas, W. H. Frank Barnes, Terrell, for appellant.
    Clyde Elliott, Jr., Elliott & Elliott, Canton, Gordon R. Wynne, Wynne & Wynne, Wills Point, for appellees.
   DUNAGAN, Chief Justice.

This is a condemnation case wherein Lone Star Gas Company, a public utility, condemned for pipeline purposes 3.22 acres of land out of a tract of approximately 320 acres of land in Van Zandt County, Texas, belonging to appellees. The easement condemned is a 50-foot strip extending across; the 320 acres of land, entering said tract on the east side and going in a westerly direction across said land, a distance of 170 rods. The easement was acquired by appellant so that it could lay a 12" gas pipeline-on the 3.22 acre easement. The pipe is. buried from 3½ feet to 4 feet beneath the surface of the land.

Upon the trial of the case, four issues, were submitted to the jury. Appellant excepted to Special Issues 3 and 4 and objected to submitting such issues to the jury on the ground that there was no legal, competent evidence to support the submission of such issues and that there was insufficient legal, competent evidence to require or justify the submission of such issues to the jury. The jury answered Special Issues Nos. 1 and 2 that the 3.22 acres of land immediately before the easement was taken had a market value of $200.00 per acre, and that immediately after the taking the 3.22 acres had a market value of $25.00 per acre. The jury answered Special Issues Nos. 3 and 4 that the remainder of the 320-acre tract of land had a market value per acre immediately before the taking of the easement of $200.00, and that immediately after the taking of the easement it had a market value per acre of $178.00. Judgment was entered by the trial court for appellees in the sum of $7,532.66, allowing appellant credit for $470.00 which the commissioners had awarded to it and which had been withdrawn. The judgment further provides that $7,062.66 of the amount awarded therein would draw interest from the date of the taking until said judgment is paid. Appellant has appealed to this court.

Appellant complains: (1) there is no evidence, or insufficient evidence, to support the jury’s finding of damage to the remainder, and such findings are against the great weight and preponderance of the evidence and excessive, unreasonable and unconscionable ; (2) the trial court erred in awarding interest on the $7,062.66 from the date of the taking because there are no pleadings to justify such interest.

We will first dispose of appellant’s contention that there is no evidence or insufficient evidence to support the jury’s finding of damage to the remainder. This contention of appellant is controlled by the case of Lone Star Gas Company v. Smith, et ux., in an opinion delivered by the Waco Court of Civil Appeals on June 16, 1966, 405 S.W.2d 238, n. w. h., affirming the trial court’s judgment.

The above mentioned case was a condemnation case appealed from the County Court of Van Zandt County. The facts show that the appellant, Lone Star Gas Company, had condemned a gas pipeline easement of 1.48 acres out of a 160-acre tract owned by appellees and that the pipe was buried 3½ to 4 feet beneath the surface. The appellant in that case made the same contention as it is making in the case at bar. It was shown that the defendants’ witnesses Mills, Stasey, Calhoun and Robinson, who qualified as expert witnesses, testified that they knew the value of the property on the date of taking and further testified to the depreciation of the market value of the remainder of the land. The plaintiff, Lone Star Gas Company, in the Smith case asserted that defendants’ witnesses all testified that their opinions as to damage to the remainder were predicated on the right of ingress and egress plaintiff had over the entire 160-acre tract, and by the element of fear of a high pressure gas pipeline, and the effect these elements had on value. The Waco Court of Civil Appeals in disposing of the appellant’s first contention in that case said:

“ * * * Plaintiff objected to this testimony by the witness Mills (which obj ection was overruled) ; but made no objection to the same testimony by the witnesses Stasey, Calhoun and Robinson. Plaintiff waived his objection to the complained of testimony by permitting the same evidence to be later introduced by the other 3 witnesses without objecting thereto. State v. Dickson, Tex.Civ.App., 401 S.W.2d 361, [writ ref., n. r. e.]; Texas Law of Condemnation, Rayburn, p. 319.”

In the case at bar the appellees offered two witnesses, namely, T. E. Stasey and Irby Mills. The witness Stasey testified the remainder was worth $200.00 per acre before the taking and $170.00 after the taking, and witness Mills testified the remainder was worth $180.00 per acre before the taking and $155.00 after the taking.

The appellant makes the same contention in the case now before this court that it made in Lone Star Gas Company v. Smith, supra. In the case at bar appellant did not object to any of the complained of testimony given by witnesses Stasey and Mills at the time it was offered. Moreover, appellant did not only fail to object to the complained of testimony of Stasey and Mills, but it elicited much of the said testimony on its cross examination of the witnesses Stasey and Mills. It inquired of Stasey and Mills the factors they considered in forming their opinion as to the damage to the remainder of the land after the taking. The qualification of witnesses Stasey and Mills is not in question. They expressed their opinion of value on all issues and gave their reasons therefor. The reasons given for their opinion as to the depreciation of the market value after the taking of the remainder was predicated on the right of ingress and egress appellant had over the entire 320-acre tract, and by the element of fear of a high pressure gas pipeline, which they testified would affect the market value of the property remaining to the extent as above shown. Following the case of Lone Star Gas Company v. Smith, supra, we hold that appellant, by failing to object to the complained of testimony of Stasey and Mills concerning the market value of the remainder, waived its objection thereto.

Appellant’s remaining contention is that the trial court erred in awarding interest from the date of the taking when the appellees had “no pleadings in the record that would legally justify such interest.” This contention has also been decided adversely to appellant in the case of Lone Star Gas Company v. Smith, supra, wherein the court said:

“A prayer ‘for such other and further relief to which they may show themselves entitled’, in the absence of special exception is sufficient to support the trial court’s award of interest. Buckner & Sons v. Arkansas Fuel Oil Corp., (n. r. e.) Tex.Civ.App., 319 S.W.2d 204; Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513, 141 A.L.R. 50.” See also Allied Paint-Patterson Sargent Div. v. Wallace, 400 S.W.2d 18, (Tex.Civ.App.) 1966, n. w. h.

For the reasons above stated, appellant’s points and contentions are overruled.

Judgment affirmed.