text:
    Oscar HUMPHREYS, Jr., Appellant, v. Kyle HUMPHREYS et al., Appellees.
    No. 3981.
    Court of Civil Appeals of Texas. Waco.
    June 28, 1962.
    Rehearing Denied July 19, 1962.

      Riley, Jones, Boyd & Lovelace, O. F. Jones, III, Waco, for appellant.
    Carl Walker, Jr., Houston, for appellees.
   McDONALD, Chief Justice.

Oscar Humphreys, Jr., plaintiff, brought this suit against defendants, who are the brothers and sister of his father, Oscar Humphreys, Sr., deceased, to recover his father’s share of the estates of Sandy and Hester Humphreys, both deceased, who were his father’s parents.

Plaintiff contends he is the legitimate son of Oscar Humphreys, Sr. and Hazel Parker Humphreys. It is stipulated that if plaintiff is entitled to recover, his interest is a ⅛⅛ undivided interest in the properties of Sandy and Hester Humphreys.

Trial was to the Court without a jury, which after hearing, entered judgment that plaintiff take nothing. The Trial Court filed Findings of Fact and Conclusions of Law, pertinent of which are:

FINDINGS OF FACT
1) Oscar Humphreys, Sr. never entered into a common law marriage with Hazel Parker.
2) Hazel Parker was lawfully married to Ernest Winn in 1926 and remained his lawful wife until her death.
3) Oscar Humphreys, Jr. is not the legitimate son of Oscar Humphreys, Sr., deceased.
CONCLUSIONS OF LAW
1) Oscar Humphreys, Sr. and Hazel Parker never entered any type of marriage relationship.
2) Oscar Humphreys, Jr. is not the legitimate son of Oscar Humphreys, Sr.
3) Oscar Humphreys, Jr. is not entitled to the relief prayed for in his petition.

Plaintiff appeals, contending that the Trial Court erred in entering judgment on the ground that he was not the legitimate son of Oscar Humphreys, Sr.

It is undisputed that plaintiff is the son of Oscar Humphreys, Sr. and Hazel Parker Humphreys, both deceased; that they were living together as man and wife, before, at the time of, and for long after plaintiff’s birth; that plaintiff’s birth certificate dated July 1930, shows him to be legitimate; that plaintiff’s mother’s first husband had gone to California before she commenced living with plaintiff’s father, and she believed that she had been divorced by him, having heard that he had married a girl named Clara, in California. There is no evidence that plaintiff’s mother and her former husband were not divorced.

The essential elements of a common law marriage are: 1) an express or implied agreement to enter into marriage; 2) cohabitation as husband and wife; 3) holding out to the public as being married. Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, L.R.A.1915E, 1; Cain v. Caine, Tex.Civ.App., (n. w. h.) 314 S.W.2d 137. The evidence is undisputed that all of these elements existed between plaintiff’s father and mother.

In Texas, the presumption of validity of a marriage duly shown to have been contracted, “is one of the strongest, if, indeed, not the strongest, known to law. ‘The presumption is, in itself, evidence, and may even outweigh positive evidence to the contrary. The strength of the presumption increases with the lapse of time, acknowledgments by the parties to the marriage, and the birth of children; and the fact that the legitimacy of a child may be involved is a factor in sustaining the validity of the marriage.’ * * * It is well that the presumption should be so regarded, for it is grounded upon a sound public policy which favors morality, innocence, marriage, and legitimacy rather than immorality, guilt, concubinage, and bastardy.” Tex. Emp. Ins. Ass’n v. Elder, 155 Tex. 27, 282 S.W.2d 371. Our Supreme Court further holds in the Elder case, supra, that upon proof of subsequent marriage, “the presumption itself supplied the evidence,” that a prior marriage had been dissolved and the subsequent marriage was valid; the burden of proving the contrary being upon the party attacking its legality, and no burden resting on plaintiff to show the prior marriage was dissolved, and further, “Courts will gladly resort to any allowable presumption to avoid' the holding that Ethel Mae and Elder were never married and that the mother of Dade’s children is not his wife.” A common law marriage was there in question as in the instant case. See also: Boudreaux v. Taylor, Tex.Civ.App., 353 S.W.2d 901.

Applying the rules announced to the undisputed factual situation, we think that Oscar Humphreys, Sr. and Hazel Parker entered into a common law marriage; that plaintiff is the legitimate son of Oscar Humphreys, Sr.; and that he is entitled to the relief he seeks.

Moreover, Section 42, Texas Probate Code, Vol. 17A, Vernon’s Ann.Tex. Civ.St. provides that, “The issue also of marriages deemed null in law shall nevertheless be legitimate.” Under the factual situation, it is our view, that if it had been affirmatively shown (which it was not), that Hazel Parker had no divorce from her former husband, that plaintiff is “legitimate”, and capable of inheriting from and through his father.

The judgment of the Trial Court is reversed; and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.


source: Caselaw Access Project

author: CHADICK, Chief Justice.

license: Public Domain

text:
    AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Appellant, v. William M. NALL, Appellee.
    No. 7411.
    Court of Civil Appeals of Texas. Texarkana.
    June 19, 1962.
    Leachman, Gardere, Akin & Porter, Dallas, Kenley, Sharp, Ritter & Boyland, Long-view, for appellant.
    Eugene Cavin, Tyler, for appellee.
   CHADICK, Chief Justice.

This is a workmen’s compensation case. The judgment of the trial court making an injured workman a lump sum award of $4,058.26 is affirmed.

The trial court submitted for jury determination, as Special Issue No. 11, the fact issue of duration of the temporary partial incapacity suffered by the workman on account of his injuries, and as Special Issue No. 12, the fact issue of average weekly wage earning capacity of the workman during the existence of his partial incapacity. The jury answered the issues respectively 260 weeks, and $30.00 per week. The following question was propounded and over appellant’s quoted objection the witness’s answer was admitted in evidence:

“Q. In your opinion, is there a place available on the open market, in the floor covering business in Gregg County, for a man who is not physically able to do generally the work of the floor covering business?
“Objection: We object to that, that calls for an opinion and conclusion and invades the province of the jury, and it is presented as a hypothetical question, it assumes facts that are not in evidence in this case, it calls for an opinion on something that is not a subject of expert testimony.
* * * * * *
“A. There definitely is not.”

The appellant’s general position on appeal as to Special Issues Nos. 11 and 12 is that the jury’s verdict finding the workman sustained temporary partial incapacity accompanied by a decrease in average weekly earning capacity for a period of 260 weeks has no reasonable basis in the evidence. The argument pinpoints the complaint to absence of evidence of the extent and duration of the workman’s incapacity. No case is cited, but the appellant asserts that “the testimony that the appellee was experiencing some pain and incapacity before the trial can not raise any inference that such pain and incapacity would persist into the future, or any inference as to how long into the future such would persist.” This argument emphasizes the complete absence of medical opinion proffered in the workman’s behalf, showing the probable extent and duration of his injury, and underscores the testimony the appellant offered from the treating doctor that the workman had completely recovered from his injury. The appellant reasons that even though there might be contradictory testimony about ap-pellee’s incapacity prior to July 17, 1961, the date of trial, still there is no evidence of probative value projecting probable incapacity and decreased earning ability into the future contradicting the medical testimony that the appellee had made a complete recovery. The result being, it is argued, that the appellant’s medical proof of complete recovery stands undenied.

The record contains evidence that after injury on April 25, 1960, the workman’s employer asked him to continue reporting for work so the company records would not show a “lost time accident”. During this period of about four weeks he worked but little and his duties were light. Evidence was tendered to prove his back injury had prevented him from doing heavy lifting and heavy manual labor since injury though about three weeks before the time of trial he undertook employment laying floor covering, but because of the heavy lifting required he was compelled to give it up. His employer at the time of the trial testified that he had given him temporary work in the same field in a supervisory capacity which required little labor, but he could not use a man permanently who was unable to do the heavy lifting incident to the floor covering business. The employer also testified the workman had complained t>f his back hurting when laying floor covering during the period just before trial, and from observation he thought the appellee suffered discomfort when he had to squat and bend. The evidence showed the workman’s experience, training and education fitted him only for laboring jobs.

Development of the evidence in more detail, if possible, would have been desirable, yet this court cannot say that there is no evidence to support the jury verdict on issues 11 and 12, or that such verdict is against the great weight and preponderance of all the evidence. The factual background of cases vary to such degree that it would be unusual to find two having identical facts; yet a study of the many cases treating the problem presented here furnishes a guide to a proper decision. The jury, as reasonable men with adult experience, exercising sound discretion, using common knowledge and considering all facts, including the injury’s duration before trial, the degree and progress of recovery manifest to them by the evidence and the numerous inferences to be drawn from the proof, could with sufficient accuracy for the law’s purpose, judge the probable extent and duration of the injury. While the facts are scanty, they support the jury’s verdict. Employer’s Reinsurance Corporation v. Jones, Tex.Civ.App., 195 S.W.2d 810, w/r, N.R.E.; The Insurance Company of Texas v. Anderson, Tex.Civ.App., 272 S.W.2d 772, w/r, N.R.E.; American General Insurance Company v. Florez, Tex.Civ.App., 327 S.W.2d 643, no wr. hist.; Verhalen v. Nash, Tex.Civ.App., 330 S.W.2d 676, w/r, N.R.E.

The point on admission of evidence and the argument made assumes the witness was permitted to answer that the workman was in a physical condition that rendered him unfit for employment in the floor covering business in Gregg County. Reference to the question propounded shows the question did not make such inquiry and the witness was not attempting to so say, rather he gave a general opinion that a man who is not physically able to perform the general duties that a floor covering job requires of a workman could not find employment in that business. It would have been an invasion of the jury’s function for the witness to express an opinion that the workman’s injury disabled him from doing a particular work, as the jury should decide that question from the evidence, but it is permissible for a witness experienced in a particular business to testify as an expert on a subject related to his business, such as the physical condition required of a workman in the performance of specified employment, and such an opinion is not an incursion on the jury’s prerogative. Cameron Compress Co. v. Jacobs, Tex.Civ.App., 10 S.W.2d 1040, wr. ref.; 2 Texas Law of Evidence (McCormick and Ray) Sec. 1400 and 1401.

The appellant’s points are respectively overruled, and the judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    Earl PODOLNICK et al., Appellants, v. Mary Jane HAMILTON, Appellee.
    No. 10983.
    Court of Civil Appeals of Texas. Austin.
    June 13, 1962.
    Rehearing Denied July 11, 1962.

      Owens & Purser, Austin, for appellants.
    Cofer & Cofer, Austin, for appellee.
   ARCHER, Chief Justice.

This is the second appeal in a suit involving the same parties and subject matter, and the former action of this Court is found in Podolnick v. Hamilton, 337 S.W.2d 376. The decision of our Supreme Court is found in Podolnick v. Hamilton, Tex., 349 S.W.2d 715. The history of this litigation is fully set out in the above mentioned cases and we shall be as brief as consistent with an orderly determination of this appeal.

M. W. Hamilton and Mary Jane Hamilton were man and wife during all times pertinent to this suit. On or about November 24, 1958 M. W. Hamilton and M. J. Hamilton entered into a contract with Earl Podolnick et al. for the purchase of certain real estate situated in Austin, Texas for the sum of $21,000.00, to be paid in cash and the sum of $5,000.00 was paid to Earl Podolnick et al., appellants herein, in the form of a check drawn on an Austin Bank on an account designated as “M. W. Hamilton Operating Account.” The contract, its terms, as well as a letter giving appellants an additional seven days to complete the transaction, are set out in the former opinions and are not set out again herein.

On March 31, 1959 appellee sued appellants to disaffirm the contract and recover the sum of $5,000.00, alleging as the ground for recovery that she was a married woman at the time of entering into the agreement and that her separate funds were used to make the down payment, deposit or earnest money. The property was later sold by appellants for a lesser sum of money than the price in the contract at issue.

The case was tried before the Court without a jury and judgment was entered for the plaintiff for recovery of the money.

The appeal is founded on four points and are that the Court erred in entering judgment for appellee because the undisputed facts indicate as a matter of law that ap-pellee was estopped to assert coverture and that the funds in question were not the separate property of appellee; in holding that a married woman can recover money paid by her husband under a contract of purchase and sale on the sole ground that it was her separate property, and that the undisputed facts and pleadings indicate as a matter of law that M. W. Hamilton was acting as agent for M. J. Hamilton and had the apparent authority to deal with appellants and appellee is bound by the acts of M. W. Hamilton.

The facts in this case are not in dispute as regards the defense of estoppel contended for by appellants. Appellants take the position that they were entitled to judgment, even presuming that the funds in question were the separate property of ap-pellee.

While negotiation leading to the execution of the contract was being made appellee did not state or suggest that the funds involved therein were her separate property. The contract was made by M. W. Hamilton and wife, M. J. Hamilton, as purchasers, and the property was to be conveyed to the purchasers and the consideration was to be paid by the purchasers.

Earl Podolnick, who handled the sale on behalf of the sellers, testified that the matter was handled as an ordinary business transaction.

As above stated, the subject matter of this litigation has been before this Court and the Supreme Court in the cases cited.

The appellee, Mrs. M. H. Hamilton, had transferred from a bank in New York to her account in the Austin National Bank large sums of money, one transfer was made on November 26, 1958 for $53,429.08. On November 28, 1958 the exact sum of $53,-429.08 was deposited to the credit of M. W. Hamilton Operating Account. Prior thereto and subsequently, other deposits were made by Mary Jane Brickman and by M. J. Hamilton in various amounts to the M. W. Hamilton Operating Account in the Austin National Bank and appellee was not authorized to draw checks against the account.

We believe that under the facts in this case and as a matter of law that the Court erred in entering judgment for appellee because of the pleadings and the facts testified thereto.

Our Supreme Court in its decision in this case, 349 S.W.2d 715, held as follows:

“In our opinion, however, this was not a case for summary judgment. From the record we cannot say that there was no fact question to be determined. In the first place the sellers pleaded facts supported by affidavit which would work an estoppel against Mrs. Hamilton to plead coverture and assert that the money so used in this transaction was her separate property. It is well settled that a married woman may be estopped if she is guilty of any positive act of fraud or an act of concealment upon which another party acts in reliance to his detriment. * * *
Mrs. Hamilton both in the Court of Civil Appeals and here takes only the position that the estoppel cannot be invoked because there was no showing that defendants suffered any injury or prejudice. We think unquestionably injury is shown by the mere fact that absent plea of coverture and the assertion that the money was Mrs. Hamilton’s separate property, the sellers would have been entitled to retain the earnest money. That was a material right possessed by the sellers under the contract. Also this property was necessarily withdrawn from the market by the petitioners pending a consummation of the contract and was eventually sold for a price less than that the Hamiltons agreed to pay.”

A married woman may be estopped. 23 Tex.Jur. 310, 311, Husband and Wife, Secs. 270 et seq. In Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, the elements of estoppel are set out.

There can be no serious question but that M. J. Hamilton was guilty of positive acts of concealment, which acts were intended to cause the appellants to alter their position or condition and she is bound thereby. Brown et ux. v. Federal Land Bank of Houston et al., Tex.Civ.App., 180 S.W.2d 647, error ref.

In Vickery v. Republic Nat. Bank & Trust Co., Tex.Civ.App., 170 S.W.2d 840, error ref., the Court held, citing 30 C.J. pp. 830, 831; 41 C.J.S. Husband and Wife § 267, p. 747, that:

“By permitting her husband to hold title to or deal with her separate property as his own, or in any manner holding out to the world that he is the owner thereto, the wife will be estopped to claim it as against persons purchasing from the husband in good faith or extending credit to him in reliance upon his apparent ownership, * *

All property of a husband and wife, in Texas, is presumed to be community property until proven otherwise.

The first business dealings between Mary Jane Brickman and M. W. Hamilton was on May 16, 1958, when Mrs. Brickman turned $10,000.00 over to Mr. Hamilton to invest for her in Hamco stock, which he did not do. The “M. W. Hamilton Operating Account” was obviously opened over six months previous to the marriage of the couple on October 18, 1958. Appellee alleged and testified in another suit filed on March 3, 1959, in attempting to recover an aggregate sum of $137,963.98, that she had lent to M. W. Hamilton a similar amount in several installments, some of which were represented by notes executed by M. W. Hamilton and payable to appellee. It is therefore apparent that appellee believed that she had lent the various sums aggregating the amount sued for, of which the item of $5,000.00 was a part, to M. W. Hamilton, which went into the M. W. Hamilton Operating Account and which Mrs. Hamilton testified that she expected M. W. Hamilton to repay to her.

We therefore believe that the money loaned to M. W. Hamilton by appellee became community property.

This Court had this issue before it in Mary Jane Hamilton v. Charles Maund Oldsmobile-Cadillac Company, 347 S.W.2d 944, error ref., N.R.E.; Levy v. Williams et al., 20 Tex.Civ.App. 651, 50 S.W. 528, error ref.; Barrington v. Barrington, Tex.Civ.App., 290 S.W.2d 297, no writ history.

In the case of Stanley v. Stanley, Tex.Civ.App., 294 S.W.2d 132, error ref., N.R. E., it is held that:

“The fact that at the time of the marriage one spouse had much property and the other had nothing and that during the marriage relation the parties decreased in fortune, will not rebut the presumptions herein mentioned, *

In Pitts et al. v. Elser, 87 Tex. 347, 28 S.W. 518, the Court held:

“ * * * under the facts stated, a married woman cannot, solely on account of her coverture, recover the payment made. Where money is voluntarily paid, with full knowledge of all the facts, it cannot be recovered, although it may have been paid upon a void demand, or upon a claim which had no foundation in fact.”

The appellee takes the position that reliance upon estoppel is precluded by a judicial admission of appellants’ attorney by his testimony at the trial, that appellee was not guilty of any act of fraud or act of concealment, and that the evidence supports the implied findings of the Trial Court that appellee was not guilty of any positive act of fraud or concealment, and that the $5,-000.00 deposit was appellee’s separate property.

Mr. Owens who did not participate in the trial of this case, but his firm handled the transaction, testified that large sums of money were transferred from New York banks or brokers to the M. W. Hamilton Operating Account and that the money for the Podolnick transaction came out of this account. The witness further testified that Mrs. Hamilton did not conceal anything and that he did not know of any act of fraud on the part of appellee against Earl Podol-nick.

We do not believe that the testimony of Mr. Owens was made under the circum-sances and conditions as to be imputable to the appellants, as having been acquired during the relationship of attorney and client, and while acting within the scope of his employment.

The witness testified that he was told where the money came from by M. W. Hamilton who said he received it from Mary Jane Hamilton in many instances and in small to large amounts and used in several other transactions; that Mrs. Hamilton did not conceal anything from the witness, and did not know of any fraud committed by Mrs. Hamilton against the witness.

We have hereinabove given consideration to the question of estoppel in this case and we believe that the appellee is estopped to assert an action for the recovery of the $5,000.00 item by her acts in turning the money over to M. W. Hamilton, the execution of the contract in question, and by the institution of suits to recover money alleged to be due and owing her by M. W. Hamilton, or for money lent.

The judgment is reversed and judgment is here rendered that appellee take nothing.

Reversed and rendered.


author: PER CURIAM.

text:
    Bob CHILDRESS, Appellant, v. CITY OF FOREST HILL, Appellee.
    No. 16340.
    Court of Civil Appeals of Texas. Port Worth.
    June 8, 1962.
    Rehearing Denied July 6, 1962.
    John W. Herrick, and Jim Puff, Fort Worth, for appellant.
    Tilley, Hyder & Law and Thos. H. Law, Fort Worth, for appellee.
   PER CURIAM.

The plaintiff Childress brought suit against the City of Forest Hill for damages sustained when plaintiff’s automobile ran into a ditch in the street.

At the conclusion of plaintiff’s evidence' the defendant moved for an instructed verdict on the grounds plaintiff had failed to establish any negligence on the part of the defendant, and that plaintiff introduced no evidence to show that the defendant knew, or should have known, that the ditch in question had sunken.

The motion was sustained and judgment entered for the defendant.

Plaintiff’s petition charged the defendant with negligence in (a) failing to maintain Orchard Street in a reasonably safe condi- : tion for vehicular traffic; (b) failing to warn plaintiff that said street was unsafe for vehicular traffic.

Prior to December 12, 1959, defendant granted a plumbing contractor a permit to dig a ditch across Orchard Street. Orchard Street runs east and west. About three days before the 16th the ditch was filled in but not hard surfaced. A rain fell during the early morning hours of the 16th.

Plaintiff testified that about 8:00 or 8:30 A.M. on the 16th, while driving east on Orchard Street at about 20 miles per hour the front wheels of his car dropped into the ditch. He was looking at the road ahead but did not see the ditch because it was filled to street level with muddy water. He was driving on the south half of the street.

The defendant’s water superintendent testified the ditch was completely filled in on the south side of the street three or four days before the 16th and opened for traffic. He inspected the ditch on the 15th. Apparently there was no defect at that time. He arrived at his office about 7:45 A.M. on the 16th and was told there was trouble on Orchard Street. He went to the trouble spot immediately. When he arrived the front wheels of plaintiff’s car were in the ditch on the south portion of the street.

The defendant’s superintendent of the Sewer Department, who doubled as a police officer, arrived at the scene about 7:45 A.M. A car driven by a lady was in the ditch on the north portion of the street.

He inspected the street on the south half where the ditch had been dug. So far as he could tell the south half was in good condition. He walked on the covering of the ditch. He checked it with his foot and it appeared to be solid. The fill-in had a crust over it. While there he warned some drivers because it “could possibly cave in.” However, upon observing that traffic was crossing it regularly, and no sign of sinking or collapsing appeared, he ceased to warn traffic before plaintiff appeared upon the scene.

It was held in Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944, that where the defects or causes of injury are not traceable to direct acts of the city, or those for whose conduct it is liable, but rather to its failure to inspect and ascertain the existence of defects not due to its own active negligence, or the negligence of those for whom it is responsible, then the city must have had notice of the defects, actual or constructive, and have had a reasonable time and opportunity for removing them.

In the instant case the ditch was dug by a third party with permission of the City. There is no pleading or proof that the actual work was done or left in a negligent manner.

It is undisputed that the street was safe at least until after the rain on the morning of the accident. It is undisputed that the south portion of the street was used with safety by regular traffic until the time plaintiff’s car arrived. A proper City official had inspected the street where the ditch crossed and found it satisfactory. There is no contention he inspected it in a negligent manner nor that he should have done anything other than what he did to determine the safety of the street.

Plaintiff contends the defendant should have warned him of the unsafe condition. As heretofore stated, the defendant inspected and examined the street at the site of the ditch and found no defect or danger requiring a warning.

The fact that part of the ditch on the north side of the street had sunk (it is not shown when the north half had been filled in or whether the north half had been opened to traffic), and that the Water Department’s superintendent testified the ditch on the south side could possibly cave in, might amount to a scintilla of evidence that defendant should have given plaintiff a warning that a comparatively freshly filled ditch was in the street. Even so, it is the duty of the court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such testimony, in legal contemplation, falling short of being “any evidence.” Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791.

Judgment affirmed.


author: DIXON, Chief Justice.

text:
    Adolph N. TURINSKY, Appellant, v. Iva May TURINSKY, Appellee.
    No. 16015.
    Court of Civil Appeals of Texas. Dallas.
    June 15, 1962.
    Rehearing Denied July 13, 1962.
    Burt Barr, Dallas, for appellant.
    Turner, Rodgers, Winn, Scurlock & Terry, and Jerry N. Jordan, Dallas, for appel-lee.
   DIXON, Chief Justice.

Appellee Iva May Turinsky and appellant Adolph Turinsky were divorced in Tulsa, Oklahoma January 25, 1949. Appellant was ordered to pay $150 per month as child support for two children. Thereafter appellant moved to Texas where he resided at the time the present suit was filed. He has made no child support payments.

On December 4, 1959 appellee filed suit in Dallas County, Texas against appellant for the sum of $17,000 for arrears in child support.

In his answer to appellee’s petition appellant pled that appellee’s suit was barred by the three year statute of limitations of the State of Oklahoma, and by the provisions of Art. 5530, Vernon’s Ann.Civ.St. of Texas. He further pled a general denial, and also specifically pled that in connection with the divorce he had deeded to appellee 160 acres of farm land in Oklahoma in lieu of all future child support, and in addition thereto his mother had paid appellee $2,000 from appellant’s inheritance.

Appellant verified his plea of the three year statute of limitations of Oklahoma and his plea seeking to invoke the provisions of Art. 5530, V.A.C.S. of Texas. However, the verification does not meet the requirements of Rule 166-A § (e), Texas Rules of Civil Procedure for summary judgment proceedings. Appellant’s other pleas are not verified.

On May 26, 1961 the trial court sustained appellee’s motion for summary judgment and rendered judgment against appellant for $15,450 principal with interest thereon at 6%.

In his first point on appeal appellant takes the position that appellee’s suit comes within the provisions of an Oklahoma limitations statute which bars after three years suits on contracts not in writing and suits based on “a liability created by statute, other than a forfeiture or penalty.” Appellant argues that the action is barred in Oklahoma and therefore it is barred in Texas. Tourtelot v. Booker, Tex.Civ.App., 160 S.W. 293; 26 Tex.Jur. 448.

The Supreme Court of Oklahoma has held that the three year statute of limitations of that State does not apply to suits for unpaid installments of child support. Hough v. Hough, 206 Okl. 179, 242 P.2d 162. The Oklahoma five year statute of limitations does apply to such suits. But appellant has not pled the five year statute of limitations, therefore he has waived it. Aetna Casualty & Surety Co. v. Moss, Tex.Civ.App., 336 S.W.2d 748; Rule 94, T.R.C.P.

Moreover, Title 12, § 98 of the Statutes of Oklahoma provides that if a person leaves the State the time of his absence shall not be computed as any part of the period within which the action must be brought. Appellant pled in his answer that he had resided in the State of Texas for more than 10 years prior to the time this suit was filed on December 4, 1959. So far as appellant’s first point on appeal is concerned the allegation is an admission against interest, therefore may be taken as true. That being so the running of limitations in Oklahoma was suspended long before the three year period had expired. Appellant’s first point on appeal is overruled.

Appellant’s second point on appeal is as follows:

“Trial court erred in holding Article 5530 R C S would prevent any recovery prior to December 4, 1949.”

The judgment in Oklahoma was rendered January 25, 1949. The present suit was filed in Texas December 4, 1959. The court in calculating the amount of the judgment did not charge appellant with installment payments for child support which had become due more than ten years prior to the date of the filing of the suit in Texas. This action by the trial court resulted in the reduction of the amount of the judgment from the $17,000 sued for to the lesser amount of $15,540. If such action was error on the part of the trial court, it was an error in appellant’s favor, so he will not be heard to complain about it. Providential Inv. Corp. v. Dibrell, Tex.Civ.App., 320 S.W.2d 415; Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454; 4 Tex.Jur.2d 267-268.

We shall express no opinion as to whether the trial court properly construed Art. 5530, V.A.C.S. as a whole, for that question is not presented by appellant’s point on appeal. However, we do say it. was not error for the trial court to exclude from its judgment the payments which became due by appellant prior to December 4, 1949. Appellant’s second point is overruled.

In his third point appellant asserts that the court erred in rendering summary judgment because there was a dispute as to a material fact as to whether appellant gave appellee a 160-acre farm in Oklahoma in lieu of all future child support.

Appellant filed no answer to appellee’s motion for summary judgment, filed no controverting affidavits, filed no sworn pleadings, except as to his pleas of limitations and the affidavits there do not conform to Rule 166-A, Sec. (e) as hereinbefore pointed out.

The record offered by appellee in support of her motion for summary judgment included appellant’s answers to requests for admissions. By his answers appellant admitted as facts that appellant and appellee had been married and divorced, that two children had been born of the marriage, that appellant had made no payments of child support in accordance with the court order, and that appellant had quitclaimed all interest in the 160-acre farm.

The record also includes exemplified copies of the pleadings, appellant’s waiver of service and the court’s judgment in the Oklahoma case. The court recited that the parties had accumulated an interest in 160 acres of described land, that appellant had quitclaimed all his interest in the land to appellee, and that the court approved of such conveyance “and approves said property settlement.” Then the court in further recitations ordered appellant to pay $150 per month as child support. Obviously, if the quitclaim of appellant’s interest in the 160 acres of land had been in lieu of child support, the court would not have ordered payments of child support of $150 per month.

The record also includes an affidavit by appellee wherein she stated that appellant quitclaimed the 160 acres as “part of the property settlement” between them and that in addition appellant was ordered to pay $150 per month as child support. Appellant has not denied the foregoing by answer to appellee’s motion or by affidavit.

In his answer to appellee’s petition appellant alleges that he quitclaimed his interest in the 160-acre farm in lieu of child support. This is the only reference anywhere in the record to any such claim. Mere pleadings cannot be accepted as proof of their own allegations in summary judgment proceedings. The rule is especially applicable here since the burden was on appellant to support his affirmative defenses. Gulf, C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832; Page v. Pan American Pet. Corp., Tex.Civ.App., 327 S.W.2d 469; Stayton, “Notes on Summary Judgment”, 13 Texas Bar Journal, 445, 471.

The record contains no support for appellant’s claim that there is a fact issue in regard to his quitclaiming the 160-acre farm. His third point on appeal is overruled.

The judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    Cecil JONES, Appellant, v. Robert J. DOWNEY, Appellee.
    No. 13924.
    Court of Civil Appeals of Texas. San Antonio.
    May 23, 1962.
    Rehearing Denied June 20, 1962.

      Reid & Taylor, San Antonio, for appellant.
    Hobart Huson, Jr., San Antonio, for ap-pellee.
   MURRAY, Chief Justice.

This is a rear-end automobile collision case. On or about June 11, 1960, at approximately 8:25 A.M., Cecil Jones was driving south on Acme Road in Bexar County, Texas, and when he arrived at the intersection of Acme Road and Ardmore Street he intended to make a left turn to the east on Ardmore Street, but because there was traffic going north on Acme Road, which prevented him from turning into Ardmore Street, he stopped and immediately his automobile was struck from the rear by an automobile driven by Robert J. Downey, traveling south on Acme Road.

The jury found that Downey (1) failed to keep a proper lookout, (5) failed to apply his brakes, and (8) could have avoided striking the Jones automobile by turning to his right, and that each of the above acts constituted negligence and a proximate cause of the collision.

The jury also found that Cecil Jones (11) failed to keep a proper lookout, (13) failed to give an appropriate signal of his intention to turn to the left, and (15) failed to give an appropriate signal of his intention to stop on the paved portion of the roadway, and that each such failure was a proximate cause of the collision. The court rendered judgment that plaintiff, Cecil Jones, take nothing, from which judgment he has prosecuted this appeal.

Appellant’s first point is that the court erred in not disregarding the answers of the jury to Special Issues Nos. 11 and 12, relating to the failure of appellant to keep a proper lookout to his rear. We are aware of the line of decisions holding that ordinarily a motorist is not required to keep a lookout for traffic approaching from his rear. Solana v. Hill, Tex.Civ.App., 348 S.W.2d 481; Kuykendall v. Doose, Tex.Civ.App., 260 S.W.2d 435; Bass v. Stockton, Tex.Civ.App., 236 S.W.2d 229; Caraway v. Behrendt, Tex.Civ.App., 224 S.W.2d 512; Lesage v. Smith, Tex.Civ.App., 145 S.W.2d 308; 7 Tex.Jur.2d, Automobiles, § 95, p. 430. However, where a motorist is traveling upon a paved highway and is preparing stop, slow down or change directions, he is required to keep a lookout for traffic to his rear, and to give proper signals of his intentions. The rule is well stated in 7 Tex. Jur.2d § 262, p. 632, as follows:

“The duty of maintaining a proper lookout that is placed on operators of motor vehicles on the highways concerns vehicles in front of the motorist, not those approaching from behind, in the absence of some particular fact that calls the attention of the driver of the front car to the vehicle following and that would impose some duty on the-front driver to maintain such a lookout,, or unless the driver of the front car either slows his vehicle or intends to-stop it. Under such circumstances, it is the driver’s duty to keep a proper lookout for vehicles following him and: to give them a proper signal of his-intention to slow down or to stop.”

Many annotations on stopping or slowing! automobiles, which largely uphold the above quoted text, are found in 29 A.L.R.2d, pp. 10 to 100.

This matter is largely controlled in this-State by the Uniform Act Regulating Traffic on Highways, Art. 6701d, §§ 68, 69 and 70, Vernon’s Tex.Civ.Stats., and the Law of the Road, Art. 801, § (K), Penal Code. Said section (K) reading as follows:

“The person in charge of any vehicle upon any public highway before turning, stopping or changing the course of such vehicle shall see first that there is sufficient space for such movement to-be made in safety, and if the movement or operation of other vehicles may reasonably be affected by such turning, stopping or changing of course, shall1 give plainly visible or audible signal to the person operating, driving or in-charge of such vehicle of his intentions so to turn, stop or change said course.”

It is undisputed here that appellant intended to slow down and make a left turn into Ardmore Street, and that he did in fact stop, at which time he was struck from the rear by a car driven by appellee. Under such circumstances he was under the duty to keep a lookout to his rear. He was under no compulsion to stop, he could have continued in the direction in which he was going and avoided being struck in the rear, if he had kept a proper lookout to his rear. His own testimony is so confusing and contradictory as to support the finding of the jury to the effect that he did not keep a 'proper lookout, and that such failure was a proximate cause of the collision. The trial court did not err in refusing to disregard the finding of the jury with respect to Special Issues Nos. 11 and 12, inquiring whether appellant failed to keep a proper lookout, and if such failure was a proximate cause of the collision.

Appellant next contends that the court erred in overruling his motion for judgment non obstante veredicto, “in that the Court should have disregarded the findings of the jury with respect to Special Issues Nos. 13, 14, 15 and 16, inquiring into whether or not Plaintiff had given a left turn signal and a stop signal, because such answers find no support in the evidence.” Appellant intended to make a left turn but finally stopped because traffic approaching him from the opposite direction on Acme Road prevented his making such a turn. The evidence is conflicting as to whether or not he gave the signals required of him under the circumstances, by Art. 801, § (K), Tex.Penal Code, and Art. 6701d, §§ 68, 69 and 70, Vernon’s Ann.Civ.Stats. See also, Airline Motor Coaches v. Guidry, Tex.Civ.App., 241 S.W.2d 203.

Where there is any evidence of probative force to sustain the jury finding it should not be disregarded upon a motion for judgment non obstante veredicto. Rule 301, Texas Rules Civil Procedure; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Lee v. Grupe, Tex.Civ.App., 223 S.W.2d 548; Womack v. Womack, Tex.Civ.App., 218 S.W.2d 1007; Goree v. Hansen, Tex.Civ.App., 214 S.W.2d 824; Self v. Becker, Tex.Civ.App., 195 S.W.2d 701.

Appellant next contends that the jury’s answers to Special Issues Nos. 14, 15, 16 and 17 are against the overwhelming weight and preponderance of the evidence. We overrule this contention. Appellant himself testified that he put his hand out the window. Art. 6701d, § 70, requires that where hand signals are used, the sign for a left turn is hand and arm extended horizontally, and for a stop or decrease speed is hand and arm extended downward. Appellee testified that he never saw any arm signals given. From an examination of all the evidence we find that the findings of the jury that appellant failed to give a proper warning sign of his intention to turn left and to stop are supported by the evidence and are not contrary to the great weight and preponderance of the evidence.

The trial court did not submit to the jury the questions as to whether appellant’s failure to keep a proper lookout to his rear, and his failure to give a proper signal of his intention to make a left turn and to stop would constitute negligence. Appellant assigns this as error. We do not agree. Appellant does not show that he excepted to the court’s charge for not submitting these issues, or that he requested proper issues. Under the provisions of Rule 279, T.R.C.P., it will be presumed that the court made findings on such omitted issues as to support the judgment rendered.

The judgment is affirmed.


author: RENFRO, Justice.

text:
    Thelma HOWARD et al., Appellants, v. Raymond SALMON, Appellee.
    No. 16247.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 29, 1961.
    Rehearing Denied Nov. 3, 1961.
    Stine & Stine, Henrietta, for appellant.
    Earl C. Fitts, Nacona, Bullington, Humphrey, Humphrey & Fillmore (Roy Schaef-fer) Wichita Falls, for appellee.
   RENFRO, Justice.

In February of 1960 Maria Hoben, widow, died testate, leaving her property,, mainly real estate in Montague County, to her half brothers, Raymond, Fred, Harry and Bill Salmon. Her three half sisters, Mrs. Howard, Mrs. Henley and Mrs. Downard, were not mentioned in the will. Harry predeceased testatrix, leaving two children.

A few days after the death of Mrs. Ho-ben, the surviving brothers, Mrs. Howard, Mrs. Henley and Judge Stine met for the purpose of reading the will.

The appellants, Mrs. Howard and Mrs. Henley, contend that at said meeting the brothers orally renounced the will, waived their rights thereunder and agreed the will1 would not be offered for probate, thereby allowing the sisters, who did not take under the will, to share equally with the brothers.

Raymond Salmon denied making such agreement.

The Jury verdict was as follows:

“Special Issue No. 1: Do you find from a preponderance of the evidence that on or about February 23, 1960, at the meeting held at Mrs. Hoben’s house, Raymond Salmon renounced the will of Mrs. Hoben? Answer ‘Yes’ or ‘No’. Answer: No.

“Special Issue No. 2: Do you find from a preponderance of the evidence that on or about February 23,1960, at the meeting held at Mrs. Hoben’s house Raymond Salmon waived all rights under Mrs. Hoben’s will? Answer ‘Yes’ or ‘No’. Answer: No.

“Special Issue No. 3: Do you find from a preponderance of the evidence that all of the heirs of Mrs. Hoben agreed to the effect that Mrs. Hoben’s will would not be offered for probate; that the property (other than the U. S. Government Bonds) would be divided in accordance with the laws of inheritance; and that Thelma Howard should be appointed administra-trix of Mrs. Hoben’s estate? Answer ‘Yes’ or ‘No’. Answer: No.”

Appellants contend the verdict is against the overwhelming weight and preponderance of the evidence.

All the parties attending the above mentioned meeting, except appellee Raymond Salmon, testified such oral agreement was assented to by all three brothers. Raymond emphatically denied he made such agreement.

In determining whether answers of the jury are contrary to the overwhelming weight and preponderance of the evidence it is the duty of the Court of Civil Appeals to consider all the evidence, including that which is contrary to the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

The great weight and preponderance of the testimony is not determined by the number of witnesses tendered. The trier of the facts has the right to take into consideration the demeanor of the wit-nesses and to determine the credibility of each witness under all the facts and circumstances. Adams v. State Board of Insurance, Tex.Civ.App., 319 S.W.2d 750; Gulf C. & S. F. Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933; Sinclair v. Brownlee, Tex.Civ.App., 300 S.W.2d 103; Russell Coleman Oil Mill v. San Antonio U. & G. R. Co., Tex.Civ.App., 37 S.W.2d 165. In view of the whole record, we cannot say that the verdict was so against the great weight and preponderance of the evidence as to be manifestly unjust. The point of error is overruled.

Immediately after the pleadings were read to the jury, appellee’s attorney introduced as his first evidence the citation for probate of the will of Maria Hoben. He then offered the file date of the application to probate the will. Then the following occurred :

“Mr. H. W. Fillmore: ‘Next Proponent offers the file date on this instrument that I hand the Court Reporter.’ Mr. Vincent Stine: ‘What is it?’ Mr. H. W. Fillmore: ‘That is the Order of the Court admitting the Will to Probate, the Order of the County Court.’ Mr. Vincent Stine: ‘We, of course, object to the introduction generally, but for the consideration of the Court alone, we have no objection.’ The Court: ‘To what?’ Mr. Vincent Stine: ‘The Order.’ The Court: ‘Sustained, except for that purpose.’ ”

Appellants earnestly insist appellee’s counsel committed reversible error in informing the jury the county court had admitted the will to probate.

The order was admissible before the court for jurisdictional purposes, and appellants’ attorney so conceded. He did not object to the remark of counsel, did not ask for any instruction from the court and did not ask for a mistrial. In fact the first complaint concerning the improper remark was made in appellants’ motion for new trial.

In view of the pleadings, the stage of the proceedings at which the remark was made, and the circumstances under which it was made, we believe an instruction from the court would have cured any error occasioned by the remark.

The appellants have failed to show that the remark by counsel amounted to such a denial of the rights of the appellants as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules Civ. Procedure.

Other points complain of the jury argument by appellee’s attorney. We have read the entire arguments of all counsel in the case and when considered with the entire record have concluded that the harmful effect, if any, of'all the argument of which complaint is made could have been cured by instruction from the court.

Moreover, the chief complaint advanced by appellants is that the argument asked the jury to uphold the will, and advised it of the effects of its answers. We have heretofore set out the issues. Every person present at the heretofore mentioned meeting testified at length as to what was said regarding the effect on the will of renouncing, waiving under the will and taking under laws of inheritance. The explanations were fully made by Judge Stine, a most able and competent attorney, and the witnesses, including appellee, related the explanations to the jury with surprising clarity.

In view of the evidence, by the time the charge was read to the jury, and before argument, the jurors, as reasonable men of ordinary intelligence, must have known what effect their answers would have on the will in question.

This court in Fort Worth & D. C. Ry. Co. v. Kiel, Tex.Civ.App., 195 S.W.2d 405, held: “ * * * we are not to be understood as minimizing the importance of the rule against informing the jury of the effect their answers will have on the judgment, yet it has repeatedly been held that the rule is not violated if the jury be apprised of a matter they, of necessity, already knew.”

In the light of the entire record we cannot say the argument of which complaint was made was such as was calculated to' cause and probably did cause the rendition of an improper judgment.

We conclude that, under Rule 434, appellants have failed to show reversible error. All points of error are overruled and the judgment of the trial court affirmed.


author: FRASER, Justice.

text:
    R. L. BARTLETT, Appellant, v. CITY OF CORPUS CHRISTI, Appellee.
    No. 5510.
    Court of Civil Appeals of Texas. El Paso.
    May 16, 1962.
    Rehearing Denied June 27, 1962.
    Second Rehearing Denied July 18, 1962.

      Elmer H. Theis, Corpus Christi, for appellant.
    I. M. Singer, City Atty., W. D. Pilcher, Asst. City Atty., Corpus Christi, for ap-pellee.
   FRASER, Justice.

This is a zoning ordinance case, the facts being as follows: The premises of appellant are located in what is called the North Beach area of Corpus Christi, or otherwise known as Corpus Christi Beach. He has owned, occupied and used these premises as a fish market since 1951, during which time he has marketed and handled oysters as well as fish, shucking the oysters in the process. Appellant’s premises are located in a zoning district which is limited to “light” industry or operation, and which permits the operation of a fish market but does not permit food processing, this latter type of industry being called a “heavy” industry and being otherwise zoned. Appellant continued his fish market operations until 1959, when he was served with a cease and desist order on the basis that oyster shucking is a violation of the appel-lee City’s zoning ordinance. Appellant appealed to the Board of Adjustment, and his appeal thereto was successful. However, on March 17, 1960 the City filed its suit seeking permanent injunction, to which suit appellant filed his reply setting up the decision of the Board of Adjustment as his defense. On April 1, 1960 appellee filed its motion for summary judgment seeking to permanently enjoin appellant as set forth above, and on August 5, 1960 the trial court granted appellee’s motion for summary judgment.

Appellant has presented some eleven points of error. The first five points are largely based on the position taken by appellant that the trial court was incorrect in overruling his motion for dismissal on the ground that in so doing the court found that the Board of Adjustment did not have jurisdiction to hear appellant’s appeal to said Board, thereby holding that any order of the Board therein was without jurisdiction and therefore void and subject to collateral attack.

At the very outset we must say that we do not feel that this case has been properly or sufficiently developed. It was a summary judgment, a procedure which should be very carefully regulated, as in effect it denies a litigant his anticipated day in court on the ground that there is no disputed material fact. Therefore, where a summary judgment in effect enjoins him from one of his primary sources of making a living, such should be granted only on well developed and adequate proof.

The City here takes the position —after describing the difference between a “use” and a “regulation” as being that a “use” is the purpose for which a premise is used, and a “regulation” deals with the subsidiary rules concerning said use of land or building — that the Board of Adjustment here, by granting the appeal of appellant did, in effect, create a new “use”. Appellant contends that his appeal was granted largely under the Board’s powers of granting special exceptions, rather than on a variance. For purposes of illustration it might be pointed out here that it has been settled that a “variance” may be granted where the application of the law or use may present a practical difficulty or unnecessary hardship, and the literal enforcement of the regulations may be disregarded; whereas a “special exception” must be specifically set forth and found in the regulations themselves and may not be altered. Moody v. City of University Park, 278 S.W.2d 912 (Tex.Civ.App., n. r. e.) (and cases cited therein). On the basis of the above, it can readily be seen that this lawsuit depends on whether or not the oyster shucking done by appellant was a part of a normal activity and operation of a fish market, or was in effect, as claimed by the City, a separate and unauthorized use which could only be exercised in the heavy industry zone. In support of its motion for summary judgment the City submitted an affidavit by one Clarkson, which describes in some abbreviated detail the operation as Clark found it at appellant’s place of business; then there is some testimony by appellant himself, very brief and scanty, as to his operation and the type of permit he had from the City of Corpus Christi and the State of Texas. We think the evidence presented to the court by the City in support of its motion for summary judgment did not and does not sufficiently describe plaintiff’s oyster shucking operations so as to enable and entitle the trial court to grant the summary judgment that he rendered. In a somewhat similar case, to-wit, City of Corpus Christi v. Lone Star Fish and Oyster Company, Tex.Civ.App., 335 S.W.2d 621 (no writ history), it was developed that the operator there handled 75 or 100 barrels of oysters per day and prepared them for delivery or shipment to other points. We do not think the evidence here is sufficient to determine whether or not oyster shucking, as done by this appellant, was of such a nature and extent as to constitute “processing” of food, thereby putting it under the pains and penalties of the heavy industry zoning regulation. It is easily understandable that there would and could exist a great difference between the shucking or preparation of oysters for store customers as they come and go, and the shucking and processing— whatever that may be — of quantities of oysters not intended for casual sale at the fish market. We do not intend or mean to suggest any rule, as we feel here that the only proper and fair method, to both parties, is to determine this and other cases on their respective merits, and it is our opinion that this case cannot be so determined on the amount of information before us. We therefore believe that the best interests of justice would be served by further developing this case, so that the entire operation or picture of appellant’s oyster shucking activities is properly before the trial court, and it can then be determined whether what he is doing is a part of the proper operation of a fish market or is, as the trial court held and the City claimed, a completely different “use” than that authorized by the permit to operate a fish market.

The City stoutly contends that the action of the Board of Adjustment here usurps the legislative power of the City by attempting to give permission to or granting a new use, alleging, of course, that such is entirely without the jurisdiction of the said Board. We cannot pass on this point on the information now before us, other than to agree generally with the City’s theory that the Board of Adjustment cannot grant new uses.

For this reason we believe this case should be remanded for retrial and further development as indicated.

Appellant also contends that the City had waived its right to enforce this particular zoning ordinance by permitting him to operate for eight years without protest. We do not believe there is any merit in this point, nor in appellant’s other points relative to the City’s alleged failure to prove that appellant’s operation was a public nuisance. We do not pass on these points in this opinion other than to make the observation that we feel they are without merit. Hill v. Board of Adjustment of City of Castle Hills, 301 S.W.2d 490 (Tex.Civ.App., wr. ref.); Gartner v. Board of Adjustment of City of San Antonio, Tex.Civ.App., 324 S.W.2d 454 (n. r. e.). As to the points relative to the nuisance, we think this matter was long ago settled by the case of the Village of Euclid et al. v. Ambler Realty Company, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, which case has been universally followed.

While it may be substantially true that there does not exist a definite dispute as to a material fact in this case, still there must always be adequate evidence of probative force to justify any judgment. The decree here is a permanent injunction. Therefore, without expressly granting any of the appellant’s points of error, but because we feel the trial court did not have adequate information before it when it rendered the summary judgment here in question, we reverse and remand this case for further development in line with the opinion herein. The injunction heretofore granted by the trial court is accordingly vacated and held for naught.

On Motion for Rehearing

Both parties to this controversy have filed motions for rehearing, charging that our holding that this case should be returned for further development was in error.

On the basis of the authorities cited and our previous reasoning, we are still of the opinion that this case should be returned to the trial court for further development and elicitation.

The appellant urges that the trial court had no jurisdiction because the matter had been disposed of within the framework of the City administration, and no appeal therefrom had been perfected. The City responds by admitting that it has made a collateral attack on the cease and desist order and the action thereon by the City authorities, and defends such attack on the ground that the action of the various City boards in effect created a completely new use, rather than a variance or regulation use already in effect. The City urges that the action of the Board of Adjustment usurped the legislative power of the City itself, and in effect created or granted a completely new use, rather than passing upon a regulation. The appellant, of course, continues to maintain that the District Court had no right to render summary judgment because it had no jurisdiction by virtue of the matter having become final because the City did not appeal from the ruling of its own Board.

So again, we say that this entire controversy and the arguments of both parties depend entirely on the nature of the business that Bartlett, ■ the appellant, was conducting. Only when this matter is sufficiently developed can the courts make an intelligent disposition or determination of the lawsuit, because the nature of his activity or business determines whether or not he comes under the zoning provision involved herein, and also is determinative of whether it is a matter that can be decided by a Board of Adjustment, or one— as the City urges — that is concerned with the creation or granting of a new use entirely.

For these reasons the motions of both parties for rehearing are accordingly overruled.


author: COLEMAN, Justice.

text:
    Raymond B. SWEENEY, Appellant, v. UNITED CORE, INC., Appellee.
    No. 13972.
    Court of Civil Appeals of Texas. Houston.
    June 28, 1962.
    Rehearing Denied July 12, 1962.
    Ted Musick, Houston, for appellant.
    The Kempers, Houston, attorneys, W. L. Kemper, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is an appeal from a summary judgment for defendant in a suit for personal injuries arising out of an automobile collision.

Appellant alleged in his third original petition that he was injured in a collision with an automobile owned by the appellee; that the collision was caused by certain acts of negligence of the driver of appellee’s car; that the driver was in the course and scope of his employment at the time of the collision; that appellee was negligent in entrusting the car to the driver; and that serious injuries were received by appellant resulting in damage.

Defendant filed a motion for summary judgment, alleging that none of the acts of negligence pled by plaintiff were committed by him either within the scope of any employment or general authority as an agent or servant of defendant, or in furtherance of its business or for the accomplishment of any object for which he was employed. It was further alleged that on the occasion of the collision in question the driver of defendant’s automobile had taken it without the knowledge or consent of defendant, and that defendant had not entrusted the automobile to the driver for any purpose. Affidavits attached to the motion set out facts fully supporting these allegations.

Raymond B. Sweeney, the plaintiff, filed a sworn answer to the motion which stated that plaintiff “respectfully shows the Court that course and scope of employment of Robert Zorn in his work for United Core, Inc. has been plead in this case, and that there is enough of a fact situation to submit to the jury, * * * Negligent en-trustment by United Core, Inc. to Robert Zorn has also been plead in this case, and the following facts were set out in Plaintiff’s Third Amended Original Petition: ⅜ * * i> Thej-g followed a quotation of the allegations of fact set out in plaintiff’s petition concerned with the alleged negligent entrustment. The answer was sworn to by the plaintiff.

Appellant’s sworn answer to the motion for summary judgment recited no facts refuting those set up in appellee’s affidavits. “The motion for summary judgment will not be denied merely because the opposite party has alleged matters which, if proved, would require that a different judgment be rendered.” Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948.

“In an action on a motion for summary judgment, where the motion is supported by affidavits, depositions and other extrinsic evidence sufficient on their face to establish facts which, if proven at the trial, would entitle the movant to an instructed verdict, the opponent must show opposing evidentiary data which will raise an issue as to a material fact, or must justify his inability to do so and seek appropriate protection.” Allen v. Western Alliance Insurance Company, Tex., 349 S.W.2d 590.

Here appellant has shown no opposing evidentiary data. In effect he has merely on oath stated that certain matters were pled in his petition. Appellant’s answer is insufficient to raise issues of fact.

Appellee has shown by affidavits that Zorn’s use of the automobile on the occasion of the collision was unauthorized. Zorn had not been entrusted with the vehicle. His use of the vehicle at the time of the collision was a personal one not incident to or in any manner in furtherance of the business of his employer. If these facts had been proven at a trial on the merits, defendant would have been entitled to an instructed verdict. Vaughn v. Watkins, Tex.Civ.App., 344 S.W.2d 902, error ref., n.r.e.; Parker and Parker Construction Company v. Morris, Tex.Civ.App., 346 S.W.2d 922, error ref., n.r.e.; Howard v. Herring, Tex.Civ.App., 324 S.W.2d 266; Railway Express Agency v. Knebel, Tex.Civ.App., 226 S.W.2d 922; Rigsby v. Pitner, Tex.Civ.App., 334 S.W.2d 837, error ref., n.r.e.; Chatwell v. Baker Oil Tools, Tex.Civ.App., 344 S.W.2d 700; Cox v. Hedges, Tex.Civ.App., 344 S.W.2d 919, error ref., n.r.e.

The judgment of the trial court is affirmed.


text:
    Ed H. LYSAGHT, Appellant, v. CITY OF FORT WORTH, Appellee.
    No. 16337.
    Court of Civil Appeals of Texas. Fort Worth.
    June 8, 1962.
    Rehearing Denied July 6, 1962.
    Simon & Simon and Richard U. Simon, Fort Worth, for appellant.
    S.G. Johndroe, Jr., City Atty., and Jerome H. Parker, J.r., Asst. City Atty., Fort Worth, for appellee.
   RENFRO, Justice.

The plaintiff appealed from a summary judgment in favor of the City of Fort Worth.

In his petition plaintiff alleged he was the owner of a building located at 1717 Calhoun Street; prior to May, 1959, the building was served by a loading dock on the 17th Street side of the building; in May of 1959, the City constructed highway improvements adjacent to the south and west parts of his property, and thereafter refused to allow trucks to unload on 17th or Calhoun, thereby denying plaintiff access to his property; the loading dock was removed in August of 1959; plaintiff alleged the City did not have authority to remove the dock and deny plaintiff access to the premises without compensating’ him therefor; that because of the removal of the loading dock on the south side of said premises, and because of the denial of access to said property by commercial vehicles, the fair market value of the property had been greatly diminished and depreciated.

Upon hearing the City’s motion for summary judgment, the court found that the pleadings, motions, depositions and controverted affidavits on file conclusively established that there was no genuine issue as to any material fact and that the City was entitled to judgment as a matter of law.

The plaintiff contends the court erred because “A landowner, whose premises were used as a business where, for years, trucks had loaded and unloaded from adjacent streets to the building on the premises of owner, and where the City, by changing such abutting streets, has destroyed owner’s right to serve his premises by truck, is entitled to damages for such taking, * *

Plaintiff’s lot is SO x 100 feet in size and is located at the northeast corner of the intersection of Calhoun and 17th Streets, fronting on Calhoun. The building is approximately 50 years old and has been owned by plaintiff since 1941.

Affidavits filed by the City show that the City, by ordinance in 1959, agreed with the State for the construction and maintenance of a controlled access freeway. Included as part of the access freeway was that portion of 17th along the south side of plaintiff’s property.

Both Calhoun and 17th are public streets.

Plaintiff’s building is flush with his property lines on both streets. The concrete dock was 12 feet long and 4 feet high. It was built entirely in 17th Street, extending from the property line 4.7 feet into said street. No part of the dock was located on plaintiff’s property.

When the dock was removed, the City improved the alley in the rear of the build.ing to provide access from 16th and 17th Streets to plaintiff’s building. Plaintiff also has access from Calhoun Street where trucks and vehicles of reasonable size can be parked parallel to the curb in front of the entrance to the building. Prior to the removal of the dock on 17th Street, large trucks backed up to the dock and extended across the center of 17th Street. By count, 10,350 vehicles per day pass plaintiff’s building on the 17th Street side. In view of the immense traffic load the “backing up” of large six-wheel trucks at plaintiff’s building would be a substantial traffic hazard and would constitute a menace to the safety of the traveling public and the public in general.

No portion of plaintiff’s land was taken or utilized in the street project.

According to plaintiff’s affidavit he is now denied access to his building “for the purposes of loading and unloading the cargo customarily loaded and unloaded in the past.”

By deposition he testified that normal trucks can use the alley entrance, but it is almost impossible to get a six-wheel truck in the alley. He was asked: “ * * * So, when you have said that you are deprived of access to your building, am I correct in saying that you are deprived of the convenience of loading or unloading the 6-wheel trailer trucks at your building.” He answered, “Yes, sir.”

The fact that plaintiff had maintained the concrete dock in the City’s street for many years did not give him a cause of action against the City for its removal.

In J. M. Radford Grocery Co. v. City of Abilene, Tex.Comm.App., 34 S.W.2d 830, the Commission of Appeals held, in a case where the city had previously granted an abutting owner permission to build a platform in the street flush with the curb, that primarily the platform was erected and used by the company for private purposes and did not vest the company with a permanent property right. It was held the city was without power thus to surrender its authority over any portion of the street or to authorize the company permanently to appropriate to a private use the part of the street upon which the platform stood. See also Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945; Hammer v. City of Dallas, Tex.Civ.App., 273 S.W.2d 646; City of Fort Worth v. Gilliland, 140 Tex. 616, 169 S.W.2d 149; Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294.

The City has a nondelegable and inescapable duty to maintain its streets in usable condition, and to abate any permanent obstruction or encroachment which would interfere with their present, or might interfere with their future, use by the public as the progress of the City may demand. City of San Antonio v. Ashton, Tex.Civ.App., 135 S.W. 757; Coombs v. City of Houston, Tex.Civ.App., 35 S.W.2d 1066; City of Lockhart v. Commissioners’ Court of Caldwell County, Tex.Civ.App., 278 S.W. 319. As against the public the city cannot give the abutting property owners the right to construct permanent obstructions on any portion of a street dedicated to public use. Joseph v. City of Austin, Tex.Civ.App., 101 S.W.2d 381. The City, a home rule city, had the right, under Art. 1175, § 18, Vernon’s Civ.St.Ann., to control, .regulate and remove all obstructions or other encumbrances on the street in question. City of Fort Worth v. Ryan Properties, Tex.Civ.App., 284 S.W.2d 211.

Plaintiff urges vigorously that the removal of the loading dock resulted in loss of access to his building and that he is entitled to compensation for such loss.

The Supreme Court in City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218, held: “Undoubtedly the general rule is that access to a public highway is an incident to ownership of land abutting thereon and the corollary follows that this right cannot be taken or destroyed for public purposes without adequate compensation being given therefor. Adams v. Grapotte, Tex.Civ.App., 69 S.W.2d 460; Powell v. Houston & T. C. R. Co., 104 Tex. 219, 135 S.W. 1153, 46 L.R.A., N.S., 1615. While this rule is universally followed where the power of eminent domain is exercised, it does not apply when a municipality invokes its police power for the protection of the health, safety and general welfare of its citizens. * * * ”; and in Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, the Supreme Court said: “All property is held subject to the valid exercise of the police power; nor are regulations unconstitutional merely because they operate as a restraint upon private rights of person or property or will result in loss to individuals. The infliction of such loss is not a deprivation of property without due process of law; the exertion of the police power upon subjects lying within its scope, in a proper and lawful manner, is due process of law. Moreover, police regulations do not constitute a taking of property under the right of eminent domain; and compensation is not required to be made for such loss as is occasioned by the proper exercise of the police power. * * * ”

It was held in Pennysavers Oil Co. v. State, Tex.Civ.App., 334 S.W.2d 546, error refused: “The State has the right under the provisions of Art. 6674w, supra, and its police power, to provide for one-way traffic, no U turns, division barriers, no left or right turns, traffic lanes, speeding and parking regulations, circuitous routes; for the changing of highways generally, and is not responsible for loss of trade to abutting landowners as a result of the exercise of this police power, so long as it does not amount to a complete taking of the right of access. City of San Antonio v. Pigeonhole Parking of Texas, Inc., Tex., [158 Tex. 318,] 311 S.W.2d 218; Grapotte v. Adams, supra; State, By and Through State Highway Commission v. Burk (Oregon) supra [200 Or. 211, 265 P.2d 783].”

It is clear from the record that the removal of the concrete loading dock was a valid exercise of the police power of the city. It was established by plaintiff’s own evidence that the removal of the dock did not deprive him of the right of access to his property. It is true the removal of the dock, and the fact that 17th Street was a heavily traveled one-way street, prevented large six-wheel trucks from loading and unloading on the 17th Street side of the building, yet plaintiff by his own admission had access to his building by ordinary trucks.

Believing the trial court was correct in holding that no material fact issue was presented and that the City was entitled to judgment as a matter of law, we affirm the judgment.


text:
    W. C. BRYAN et al., Appellants, v. C. W. THOMAS, Appellee.
    No. 7394.
    Court of Civil Appeals of Texas. Texarkana.
    May 29, 1962.
    Rehearing Denied June 26, 1962.
    Jones & Jones, Mineóla, Woodrow H. Edwards, Mt. Vernon, for appellants.
    Allen Clark, Greenville, for appellee.
   CHADICK, Chief Justice.

This is a suit brought under the provisions of the Uniform Declaratory Judgments Act, Article 2524-1 Vernon’s Ann. Tex.Civ.St., for judgment declaring the respective interests of the parties in a tract of land. The judgment of the trial court is affirmed as modified.

W. C. Bryan, the heirs of his deceased wife, and the heirs of J. E. Johnson, deceased, as plaintiffs, sued C. W. Thomas and the widow and children of W. B. Bryan, deceased, to have the court declare and adjudicate the respective interest of each of the parties in a tract of approximately 100 acres of land in the Mary Latham Survey of Hunt County, and for a partition of the mineral estate. The defendants, except C. W. Thomas, answered by disclaiming any right, title or interest in the land. Thomas answered by general denial, plead his title as vendee of Josie Bryan, Payton Bryan and H. F. Bryan, the heirs at law of W. B. Bryan, deceased, and by cross-action likewise sought partition of the mineral estate among the parties owning it.

Judgment was entered declaring undivided interests in the mineral estate to be owned ⅜6⅛ by plaintiffs W. C.Bryan, Helen Duffey, and B. B. Bryan, jointly, ¾2& by the plaintiffs, J. E. Johnson, Lucille Butt, and Frankie Gray jointly, and 3%eths by defendant C. W. Thomas. Partition was denied without prejudice to a future partition action because of the absence as parties to the suit of the owners of the remaining interest. After thorough examination and study of appellants’ four points of error the fourth is found to have merit and will be sustained, the others are respectfully overruled. A discussion of the questions presented by the fourth point is justified.

On August 30, 1936, W. B. Bryan executed and delivered to W. C. Bryan an instrument of conveyance which was recorded January 27, 1953. The parties to this suit agree that this instrument conveyed a mineral interest in the Latham Survey tract to W. C. Bryan. The parties differ, however, as to the quantity of the interest granted. The appellees construe it to convey a ⅝6⅛ undivided mineral interest, the appellants say a ¾2⅛ interest. The body of the instrument, except description, is reproduced without effort being made to simulate strikeovers, erasures and changes in its wording that are visible on a photostatic copy of the original, to-wit:

“That I, W. B. Bryan, of the County and State, hereinafter called Grantor (whether one or more) in consideration of the sum of Ten & No/100 ($10.00) Dollars to Grantor cash in hand paid by W. C. Bryan hereinafter called Grantee (whether one or more) the receipt of which is hereby acknowledged, have GRANTED, BARGAINED, SOLD, and CONVEYED, and by these presents do GRANT, BARGAIN, SELL and CONVEY unto said Grantee, an undivided one-twelfth (¾2⅛) (same being a %2th of the customary l^th royalty, or %6th of total production) interest in and to all of the oil, gas and other minerals in and under the following described tract of land, situated in Hunt County, Texas, to-wit: (land description omitted).
“It is distinctly understood and herein stipulated that said land is under an Oil and Gas Lease providing for a royalty of ⅜⅛ of the oil and certain royalties or rentals for gas and other minerals, and that Grantee herein shall receive one-twelfth of the royalties and rentals provided for in said lease; but he shall have ¾2 part of the annual rentals paid to keep said lease in force until drilling is begun.
“It is further agreed that Grantee shall have ¾2 interest in any bonus money received by the Grantor in any future lease or leases given on said land, and that it shall be necessary for the Grantee to join in any such lease or leases so made; That Grantee shall receive under such lease or leases ⅜6⅛ part of all oil, gas and other minerals taken and saved under any such lease or leases, and he shall receive the same out of the royalty provided for in such lease or leases, but Grantee shall have ¾2 part in the annual rentals paid to keep such lease or leases in force until drilling is begun.
“TO- HAVE AND TO HOLD the same unto the said Grantee, his heirs and assigns, forever; PROVIDED, same may be terminated as set out above. Grantor hereby binds himself, his heirs, executors and administrators to WARRANT and FOREVER DEFEND all and singular the said minerals unto the said Grantee, his heirs and assigns, against all persons whomsoever lawfully claiming or to claim the same or any part thereof, by thru or under me.”

In drawing the instrument under discussion a printed “Royalty Contract” form was used. This form was designed for use in conveying a royalty interest, and the difficulties encountered stem from the obvious effort by the draftsman to amend the form to convey an interest in land quite different from the form’s original purpose. The photostatic copy shows deletions were made in the printed text, and that a parenthetical explanation or qualification of the interest the parties intended the instrument to convey was typed into the granting clause. The parenthetical insert and erasures and changes also indicate the effect of the instrument was the subject of more than casual consideration. Three blank spaces had the typwritten word “No” entered, scratched through and the fraction “⅝2” written in by hand. At one point a printed phrase “ * * * it shall not be necessary * * * had the word “not” erased or inked out, giving the sentence in which the phrase appears the opposite meaning to that it conveyed before the word was eliminated. The entire reversion clause was obliterated and struck from the form. It is understandable that the contract contains some awkward and non sequitur expressions of the agreement of the parties.

As mentioned, it is the theory of the parties and the judgment of the trial court that the grant made by the quoted instrument is an interest in the mineral estate. If the language enclosed in the parentheses in the granting clause is disregarded the grant made thereby is clearly an undivided ⅝2⅛ interest in minerals underlying the land. If the parenthetical language is considered .alone the grant described is “a ¾2⅛ of the customary ⅛ royalty, or ⅜6 of total production”, an interest having the characteristics of royalty. The interest conveyed must be determined from a consideration of the intention of the parties as gathered from the language of the entire instrument. Garrett v. Dils Company, 157 Tex. 92, 299 S.W.2d 904; Harris v. Windsor, 156 Tex. 324, 294 S.W.2d 798; Benskin v. Barksdale, Tex.Com.App., 246 S.W. 360; Sun Oil Co. v. Burns, 125 Tex. 549, 84 S.W.2d 442. Any doubt as to the proper construction of the grant will be resolved by construing the instrument as conveying the greatest estate the language used will permit. Garrett v. Dils Company, supra; Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551; Allen et al. v. Creighton et al., Tex.Civ.App., 131 S.W.2d 47, er. ref. And all provisions of the instrument will be given effect and construed in such way as to avoid inconsistencies and conflicts between them insofar as the language of the instrument, and the intention of the parties as disclosed thereby, will permit. 17 C.J.S. Contracts § 309, p. 726.

The parenthetical insertion in the granting clause should be considered on the basis of common usage. Parentheses are usually used to set off interjected explanatory or qualifying remarks . disconnected with the structure of the sentence in which they appear. Viewed in the light of common usage, the granting clause, may be treated as a grant of ¾2⅛ of the mineral estate, and the parenthetical language as an explanation of the effect of the then existing mineral lease upon the grant made. Thus treated, the lease provisions stipulating the grantee’s rights under existing or future leases, as well as all other provisions, are consistent with such grant and the stipulated rents and royalties are proportionate to a grant of an interest of ¾2⅛ of the mineral estate in fee. On the other hand, if the parenthetical language is considered as in derogation of a grant of Yizth of the minerals and as restricting the grant either to a royalty interest or a ⅜6th mineral interest, the stipulations respecting the existing lease are inconsistent in that the rents and royalties stipulated are not incidental or proportionate to the grant made. If the grant is to a ⅜6th of the minerals, rents and royalties from the existing lease are out of proportion. And if the grant is of royalty the inconsistency is further compounded and argues on intention to make'a rather exotic agreement.

To sustain the proposition that the grant is a ⅜6th interest in minerals, language must be found in the instrument showing the grantor intended that the instrument transfer to the grantee rents and royalties in excess of and out of proportion to the mineral interest granted. Nothing in the instrument points clearly to such intention, but on the contrary the language of the deed in its entirety points to an intention to convey a Yizth interest in minerals consistent with the stipulations of rents and royalties from existing and future mineral leases. At most the parenthetical insert creates a doubt as to the estate the grantor meant to convey. The doubt requires the language within the parentheses be treated as explanatory and the grant construed as conveying a Yizth undivided interest in the mineral estate.

To accord with this construction of the mineral deed, the judgment of the trial court is modified so as to vest Yzth interest in all the oil, gas and other minerals of the described tract in the appellants, W. C. Bryan, Helen Duffey, and B. B. Bryan jointly, and a i/^rd interest in C. W. Thomas; otherwise the judgment of the trial court is affirmed.

On Motion for Rehearing

Although Rule 435, Vernon’s Texas Rules of Civil Procedure requires Court of Civil Appeals to adjudge costs in a case as the court deems proper, it is appropriate to state the reason for dividing the costs in the court’s opinion. The trial court judgment denied relief in appellant’s principal action, and that judgment has been affirmed except as modified to reduce C. W. Thomas’s recovery from a 3%eth undivided interest in minerals to a one-third (½) interest therein. To the extent of the reduction the appellants prevailed in this court. Consistent with the usual rule that the losing party pays the costs and on consideration of all factors involved, costs in the trial court and on appeal will be assessed three-fourths (¾) against the appellants, and one-fourth (J4) against the ap-pellee.

Except as indicated the appellants’ motion for re-hearing is overruled.


author: RICHARDS, Justice.

text:
    Elsie J. GORDON, Appellant, v. Earl E. GORDON, Appellee.
    No. 10990.
    Court of Civil Appeals of Texas. Austin.
    June 27, 1962.

      Curtis, Duncan & Bragg, Killeen, for appellant.
    Harris & Holbrook, Killeen, for appellee.
   RICHARDS, Justice.

Earl E. Gordon, appellee, sued Elsie J. Gordon for divorce upon the statutory grounds set forth in Art. 4629(1), Vernon’s Civil Statutes. After trial before the Court without a jury judgment was rendered granting the divorce in favor of appellee, dividing the community property and adjudging a recovery in favor of appellant against appellee for $350.00 as attorney’s fees necessarily incurred by appellant in her defense. Having duly perfected her appeal to this Court from the adverse judgment of the Trial Court, appellant assigns as her sole point of error that the evidence was insufficient to sustain the judgment for divorce.

The only evidence considered by the Trial Court was the testimony of appellee and appellant, both of whom were witnesses in their own behalf. The parties had been married for approximately thirteen months prior to the date of the filing of appellee’s petition. Appellee testified that he is an enlisted dental technician in the United States Army and shortly after their marriage in Pennsylvania, he was stationed at Fort Hood, Texas, where he was active in Little Theatre work conducted on the post. After he became stationed at Fort Hood he was joined by his wife who did not appear to be interested in the Little Theatre activities in which her husband was engaged in off-duty hours and did not participate with her husband in such activities either on the post at Fort Hood or when his friends and associates in these activities came to their home in Killeen during the evening. Before his wife came to Texas he was putting in almost every night in the Little Theatre activities but after she came to Fort Hood he cut his activities in Little Theatre work to two or three times a week; that his wife never asked him to stop that kind of work but she would have liked it if he had stopped it and stated that she did not like the amount of time he was having to spend at the Little Theatre; that she did not find any interest in the conversations with the military personnel of the Little Theatre group and that she did not try to develop any; that she never stated to appellee that she did not like his friends when he brought them to their house but she would be very quiet after they left and that he and his wife did not have anything in common so that they could get along together and that he did not love her and could never live with her again. After he filed suit for divorce, she left him and returned to her family in Pennsylvania.

Appellee also testified that appellant did not keep their house properly and that on many occasions appellant would not prepare meals on weekends and stated that she was not feeling well and although appellant was working as an operator in a Beauty Shop in Killeen, there were many occasions that she could have prepared meals but refused to do so.

Appellant testified that after she came to Killeen she worked in a beauty shop, her hours of work varying from 7 A.M. to 6 P.M. and sometimes later; that during the latter part of the month there would be occasions when she only worked a half day; that she prepared meals when she got home from work except when appellee wanted to go to the Little Theatre and then he would advise her that it was not necessary because he had to be there at a certain time; that in July appellee advised her that he did not love her any more and that he wished to get a divorce, at which time she left Killeen and returned to her former home in Erie, Pennsylvania.

After a careful examination of the record and the evidence adduced upon the trial, we have concluded that the evidence in this case is insufficient as a matter of law to show cruel treatment under Art. 4632, V.C.S. While it is within the province of the Trial Court to pass upon the credibility of the witnesses, it is the duty of this Court to pass upon the issue as to whether the evidence is full, clear and satisfactory. Moore v. Moore, 22 Tex. 237. Divorces should not be granted for trivial matters or disagreements. McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459, 463.

Despite the weight to be given the finding of the Trial Judge in granting the decree of divorce, it is our opinion that the testimony of appellee when considered by itself falls far short of constituting the full, clear and satisfactory evidence of cruel treatment required by Art. 4632, V.C.S. Accordingly, the judgment of the Trial Court is reversed and judgment is here rendered setting aside the decree granting a divorce to appellee from appellant and dividing the community property between appellant and appellee, but affirming the Trial Court’s judgment against appellee awarding appellant the sum of $350.00 as attorney’s fees. All costs are assessed against appellee.

Reversed and rendered in part and in part affirmed.