author: McDONALD, Chief Justice.

text:
    McLENNAN ELECTRIC COOPERATIVE INC., Appellant, v. Bobby SIMS, Appellee.
    No. 4197.
    Court of Civil Appeals of Texas. Waco.
    March 5, 1964.
    Rehearing Denied April 2, 1964.

      Jones, Boyd, Westbrook & Lovelace, O. F. Jones, III, Waco, for appellant.
    Minor L. Helm, Jr., W. M. Zachry, Waco, for appellee.
   McDONALD, Chief Justice.

Plaintiff Bobby Sims instituted this case against defendant Electric Cooperative for damages for the death of plaintiff’s horse, which was electrocuted by an energized barbed wire fence. Plaintiff alleged that S. B. Sims (plaintiff’s father), in 1954, requested defendant to extend its electric line from a tenant house on his farm (and upon which was located the meter), 150 feet to a water well; that defendant failed and refused to do so, but provided S. B. Sims with the materials in order that he might extend the line to the well himself; that such materials were defective; that Sims constructed the line himself, but realized it was in an unsafe condition, and requested defendant to place the line in a safe condition, which defendant did not do. Plaintiff alleged that defendant was negligent in not constructing the line to the well; in supplying wire which was not properly insulated; in delivering current through an improperly insulated wire; and in delivering current through an improperly constructed line. Plaintiff further alleged that defendant knew of the dangerous condition of the line; that such line fell across a barbed wire fence energizing it; and that on September 11, 1961 plaintiff’s horse was found electrocuted and dead against the fence.

Defendant filed general denial; and specially denied that it was under any duty to run the line to the well; that plaintiff’s father was guilty of negligence in constructing the line, and that such negligence was imputed to plaintiff; that the acts of the father were the sole cause, or a new and independent cause of the death of the plaintiff’s horse; that the occurrence was the result of an act of God, or an unavoidable accident; and that plaintiff was guilty of contributory negligence.

Trial was to a jury which, in answer to^ issues submitted, found:

1, 2, 3) Defendant supplied defective materials to S. B. Sims to extend the power line to the water well; which was negligence; and a proximate cause of the death of plaintiff’s horse.
4, 5) The electric line in question was in a dangerous condition prior to September 10, 1961; and defendant knew of such dangerous condition prior to September 10, 1961.
6, 7) The continued supplying of electric current to the water well after knowl•edge of the dangerous condition of the line by defendant was negligence; and a proximate cause of the death of plaintiff’s horse.
8, 9) Defendant’s failure to remedy the ■dangerous condition after it had knowledge of such, was negligence; and a proximate cause of the death of plaintiff’s .horse.
10, 11) Defendant’s failure to extend the line to the water well was negligence; and a proximate cause of the death of •plaintiff’s horse.
12) Plaintiff’s horse had a cash market ■value on September 10, 1961 of $1500.
15) The act of S. B. Sims in con•structing the electric line was not the :sole cause of the death of plaintiff’s horse.
16) S. B. Sims was not negligent in failing to warn plaintiff of the dangerous •condition of the electric line.
18) The failure of S. B. Sims to warn plaintiff was not the sole cause of the death of plaintiff’s horse.
19) The electric line was defective prior to the time it fell.
20) Defendant did not know of the defective wooden pin prior to the line falling.
21) The condition of the electric wire was not open and obvious to plaintiff.
22) Plaintiff was not aware of the condition of the electric line at the time he put the horse into the pasture.
23) Plaintiff should not have been aware of the condition of the electric line at the time he put his horse in the pasture.
26) Plaintiff did not fail to observe the condition of the electric line.
29, 30) The death of the horse was not the result of an act of God, or the result of an unavoidable accident.

The Trial Court rendered judgment on the verdict for plaintiff, for $1500.

Defendant appeals, contending:

1) Defendant owes no duty, as a matter of law, “beyond the meter.”
2) The Trial Court erred in not finding that the acts of S. B. Sims were imputable to plaintiff.
3) There is no evidence or insufficient evidence to support the jury’s findings that various acts of negligence on defendant’s part proximately caused plaintiff’s damage.
4) Issues 1 through 12 are not supported by the plaintiff’s pleadings.
5) The Trial Court erred in failing to hold that the condition of the electric line was open and obvious as a matter of law; or that contributory negligence, or the doctrine of Volenti Non Fit Injuria, were applicable as a matter of law.

We revert to defendant’s 1st contention, that it owed “no duty”, “beyond the meter.” Defendant contends it must have actual knowledge of the defective or dangerous condition “beyond the meter”, before any duty on its part arises; that plaintiff’s horse was killed as a result of a wooden insulator pin breaking, which allowed the electric wire to fall on the fence and electrocute the horse; and that the jury found (Issue 20) that it did not know of the defective wooden pin prior to the wire falling. We reject such contention as inapplicable itnder the instant facts. The record reflects, among other things, that defendant knew the line was in a dangerous condition prior to its falling, and continued to supply electricity through such line after it had such knowledge. Under such circumstances the jury was authorized to find defendant guilty of negligence proximately causing the death of plaintiff’s horse. Tri-County Elec. Coop. v. Clair, C.C.A. (n. w. h.), 217 S.W.2d 681; San Antonio Gas & Elec. Co. v. Ocon, 105 Tex. 139, 146 S.W. 162, 39 L.R.A.,N.S., 1046; Denton County Elec. Coop. v. Burkholder, C.C.A. (n. r. e.), 354 S.W.2d 639; International Elec. Co. v. Sanchez, C.C.A., Er. Ref., 203 S.W. 1164; Motsenbocker v. Wyatt, Tex., 369 S.W.2d 319; Syl. 2.

Defendant’s 2nd contention is that the Trial Court erred in impliedly finding that the acts of the father were not imputable to plaintiff. Defendant contends that under the preponderance of the evidence S. B. Sims was either the actual owner, or a bailee of the horse, and in either of which events recovery would be precluded. Defendant did not plead that S. B. Sims was either owner or bailee of the horse. Plaintiff plead the horse was his; and the evidence is uncontroverted that the horse in fact belonged to the plaintiff; and that plaintiff had fed the horse the night before its death, and then put it into the pasture where it was electrocuted.

Defendant’s 3rd contention is that there is no evidence or insufficient evidence to support the jury’s findings 1 through 12; and its 4th contention is that such issues are not supported by the pleadings. We think the evidence ample to support the findings; and we think the plaintiff’s pleadings broad enough to support the issues complained of. Moreover, defendant did not object to any of the issues as being too general, and waived any asserted error in the form of such issues. Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979.

Defendant’s 5th contention is that the Trial Court erred in failing to hold that the condition of the electric line was open and obvious as a matter of law; or that contributory negligence or the doctrine of Volenti Non Fit Injuria, were applicable as a matter of law. The record reflects and the jury found on ample evidence, that the condition of the electric wire was not open and obvious to plaintiff, and that he was not aware of the condition, and that he should not have known of its condition at the time he put the horse in the pasture. He was not at home much of the time after 1954; he was several years in A. & M. College; a year in Louisiana in the Army ; and was absent about 6 of the 7 years that the Sims family had lived on their farm. He had only been at home 2 or 3 days prior to the date the horse was killed. His father didn’t warn him about the line, and there is no showing that he either observed or appreciated the dangerous condition of the wire. All of defendant’s points and contentions are overruled and the judgment of the Trial Court is affirmed.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    T. D. TAYLOR, Appellant, v. Carl MARK, Appellee.
    No. 4202.
    Court of Civil Appeals of Texas. Waco.
    March 12, 1964.
    Rehearing Denied April 2, 1964.

      Robert G. Carter, Marlin, for appellant.
    Thomas Bartlett, Jr., Reagan & Welch, Marlin, for appellee.
   WILSON, Justice.

Appellee, Mark, alleged he and appellant entered into an agreement that appellant would furnish material and appellee was to perform the labor to construct a dwelling. He pleaded that after he had done much work, appellant denied him access to the premises, completed the building himself, sold the house, and failed to pay appel-lee his damages for breach of the contract.

The damage issue submitted authorized the jury, in determining the value of labor and material furnished by appellee in constructing- the building, to consider the “reasonable value of materials paid for by Carl Mark and used in the construction of the house in question.”

Appellant’s sole point is that the court erred in submitting this instruction over his objections: (a) that the issue “allowed the jury to consider as an item of damages the value of material furnished by plaintiff when he did not seek to recover for the value of such material in his pleading”; and (b) there was no evidence as to the value, quantity or nature of materials paid for by appellee and used in the construction of the house.

Appellee’s petition itemized with particularity the items of damage sued for, including $7 paid by him for steel to reinforce the concrete foundation. He alleged a claim for the personal services, labor and material furnished, and prayed judgment for damages in the amounts pleaded. The pleading was sufficient.

Appellee testified he got from a wrecking yard and used in the building several hundred pounds of reinforcing steel to supplement eight bars which appellant furnished; that its value was $7. Appel-lee’s measure of damage is not contingent on his actual payment for the steel, notwithstanding the damage issue used the words, “paid for.” Austin Stone Industries, Inc. v. Capitol Power Co., Tex.Civ.App., 290 S.W.2d 689, 692, writ ref., n. r. e.; San Antonio & A. P. R. Co. v. Moore, 31 Tex.Civ.App. 371, 72 S.W. 226, writ ref.; Peacock v. Coltrane, Tex.Civ.App., 116 S.W. 389, 390. It is immaterial whether plaintiff proved that he had actually paid for the material previously, and the objection does not present reversible error. 25 C.J.S. Damages § 46, p. 525; 15 Am.Jur., Sec. 148, p. 556.

Affirmed.


author: BATEMAN, Justice.

text:
    The STATE of Texas, Appellant, v. L. E. POWELL et al., Appellees.
    No. 16316.
    Court of Civil Appeals of Texas. Dallas.
    March 6, 1964.
    Rehearing Denied April 3, 1964.

      Waggoner Carr, Atty. Gen., and T. B. Wright, Leslie King and William H. Pool, Jr., Asst. Attys. Gen., Austin, for appellant.
    McKool & McKool, Dallas, for appellees.
   BATEMAN, Justice.

In this condemnation suit all essential matters were stipulated except the value of the property taken. The subject property was a lot in the City of Dallas, measuring 100 feet by 100 feet, on the fringe of the downtown business area, zoned for commercial use. The only improvements thereon consisted of a steel link fence, a concrete retaining wall and certain concrete driveways, ramps and steps.

Only three witnesses testified: Charles Marr, an expert who testified for the State that in his opinion the property was worth $11,500; Daniel S. Levy, an expert who testified for the landowners that in his opinion its value was $20,850; and the appellee L. E. Powell, who testified that he thought it was worth $22,000. The jury having found the value to be $16,000, judgment was rendered awarding that amount to appel-lees, the owners. A careful study of the entire record and the briefs and arguments of the parties convinces us that this judgment should be affirmed.

Appellant’s first three points of error complain of the trial court’s permitting the witness Levy to testify concerning three “comparable” sales which he took into consideration in evaluating the subject property, over appellant’s objections that each of said properties was improved and the subject property was unimproved. This witness used a total of seven prior sales which he considered comparable to the one in question, but only three of the properties so compared had a house or other structure on it. The testimony pertaining to those properties is summarized as follows:

(1)Joe R. Grandie to Herman Ivie; 6,100 square feet, on which was an “old type two-story frame apartment or duplex that had been converted to a rooming house. It appeared to be in very bad condition, had very little value.” The witness said the house was at least thirty-five years old. The property was zoned for commercial use but the house on it could not be used for business ; its only value would be for salvage of a maximum value of $500, “or it might cost you $500 to move it off.” The sale was for $11,500, or $1.90 a square foot.

(2) Paul Wyche to Hudson Croy; 5,808 square feet, on which was located an old house that was uninhabitable, “in very bad condition and not able to be occupied,” although it might have had people living in it. The property sold for $13,500, of which the witness “allocated” $750 to the house “even though it was in pretty bad shape. With all those units in there, I assumed that there must have been some fixtures in there that could have been sold, and material. So, I allocated $750 for the structure and $12,250 for the land,” which was $2.10 per square foot for the land only.

(3) Mrs. Manning to Mrs. Blair; 54 feet by 82 feet on the corner of Corsicana and Park Streets, on which was situated an old two-story frame residence, which was later razed and the property used for a parking lot. The witness testified that the property was “purchased for the purpose of land only and not for the land and improvements,” and the sale was for $4.51 a square foot.

Appellant complains of this testimony solely on the ground that the three properties were improved while the subject property was unimproved, relying on City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808. We do not construe that opinion as requiring absolute similarity before properties can be compared for the purpose of forming an opinion as to values. So far as we know, no court has ever made such a requirement. Reason and experience tell us that no two pieces of real property could ever be found which were exactly similar. All the law requires in this respect is that the properties be reasonably similar, and our courts have frequently held that it is within the sound discretion of the trial court to determine whether or not the properties offered for comparison meet the test of similarity. Cravens v. City of Amarillo, Tex.Civ.App., 309 S.W.2d 903, 908, err. dism.; City of Houston v. Pillot, Tex.Civ.App., 73 S.W.2d 585, reversed on other grounds, Tex.Comm.App., 105 S.W.2d 870; McCormick & Ray, “Texas Law of Evidence,” 2d Ed., § 1524, p. 372; Thompson v. State, Tex.Civ.App., 319 S.W.2d 368, 372, no wr. hist.; State v. Childress, Tex.Civ.App., 331 S.W.2d 230, 235, err. ref. n. r. e.

We cannot say that the trial court abused his discretion in admitting this testimony. Here all three properties were zoned for commercial use and were reasonably adapted to business use except that the old frame structures thereon, having been designed and erected for residential purposes, could not very well he used for commercial purposes. In two instances the expert witness valued the structures at certain amounts, enabling the jury to evaluate the land without reference to the improvements. In the third instance, he likewise made it clear that the property had been purchased for the purpose of the land only, not for the land and improvements, that the house had been torn down after the sale and the property used for a parking lot. This was all suitable and proper information to go to the jury, as was that given in connection with prior sales of unimproved properties, three of which both expert witnesses used. Housing Authority of the City of Dallas v. Hubbard, Tex.Civ.App., 274 S.W.2d 165, no wr. hist. The objections went to the weight of the testimony rather than its admissibility. State v. Morse, Tex.Civ.App., 342 S.W.2d 165, err. ref. n. r. e.; Hays v. State, Tex.Civ.App., 342 S.W.2d 167, err. ref. n. r. e.

Moreover, we think it is clear from the verdict itself that the jury was not misled nor the State prejudiced by these comparisons. Of the seven comparable sales used by appellees’ expert witness the prices per square foot ranged from $1.05 to $4.51. The seven sales used by appellant’s expert witness ranged from $1.05 to $1,50 per square foot. The jury found the subject property to be worth $1.60 per square foot, only ten cents per square foot more than was paid in one of the comparable sales used by both expert witnesses. It is also significant that the $16,000 value found by the jury is somewhat closer to the estimate made by appellant’s expert witness than to that given by appellees’ expert witness. State v. Hays, Tex.Civ.App., 361 S.W.2d 401, err. ref. n. r. e. It follows that even if there was error in admitting the testimony, it was not such as probably caused the rendition of an improper judgment and was therefore harmless. Rule 434, Texas Rules of Civil Procedure.

Appellant’s fourth point of error on appeal complains that the court erred in overruling its objection to including the words “and improvements thereon” in the one special issue submitted to the jury inquiring as to the value of the subject property. Appellant says that the addition of such words constituted a comment on the evidence and misled the jury into considering the three sales of improved property hereinabove discussed. This point is without merit and is overruled. We have already held that the jury was entitled to consider the three sales mentioned. Moreover, the evidence was undisputed that the subject property was “improved” to the extent of having upon it a steel link fence 75 to 80 feet in length and 6 feet high, together with a concrete retaining wall 175 feet long and approximately 18 inches high and several concrete driveways, ramps and steps, which the witness Levy valued at $150. The jury doubtless understood the words “and improvements located thereon” used in the special issue to refer to such fence, retaining wall, drives, ramps and steps. They undoubtedly had a right to do so. State v. Evans, Tex.Civ.App., 340 S.W.2d 99, 101, err. ref. n. r. e. We see nothing improper or misleading in the issue as submitted.

Appellant’s fifth point of error is that the cumulative effect of the court’s errors in admitting the three sales herein-above discussed, in addition to the improper submission of the special issue, caused the jury to render an improper and excessive verdict. In the light of the foregoing opinion, it is obvious that this point is without merit. It is overruled.

Finding no reversible error, the judgment of the trial court is affirmed.

Affirmed.


author: COLLINGS, Justice.

text:
    CALLIHAN INTERESTS, INC., Appellant, v. Natalie K. HALEPESKA et al., Appellees.
    No. 3616.
    Court of Civil Appeals of Texas. Eastland.
    March 13, 1964.
    Rehearing Denied April 3, 1964.
    McMahon, Smart, Sprain, Wilson & Camp, J. M. Lee, Abilene, for appellant.
    Childers & Garrett, Abilene, Hill, Brown, Kronzer & Abraham, Houston, for appel-lees.
   COLLINGS, Justice.

This action was brought by Natalie Hale-peska and her children seeking to recover for the wrongful death of their husband and father, who was killed in the “blowing” of a gas well on a lease belonging to appellant Callihan Interests, Inc. Based upon a verdict judgment was rendered for the widow and the four minor children.

Upon an appeal of the case this court, heretofore, on September 8, 1961, reversed the judgment and rendered judgment for appellant, holding that where the decedent, an independent geologist, a vice-president of the owner of the lease and whose duties often required his presence during the drilling and completion of oil and gas wells should have known that the flow line which was in plain sight was not sufficiently staked, should have appreciated the danger in opening the valves to blow the wells and voluntarily exposed himself to the danger and was killed while the well was being blown, the owner was not liable regardless of whether the decedent or an accompanying employee of the owner opened the valve. This opinion is reported in 349 S.W.2d 758.

The judgment of this court was reversed by the Supreme Court of Texas in an opinion reported in 371 S.W.2d 368. It was held by the Supreme Court that the questions of whether the deceased Halepeska should have known of the manner in which the well was equipped and should have realized the danger involved had no bearing on whether recovery was barred under the “no duty” or “volenti” doctrines, and that the jury findings for the defendant on such questions could not support a judgment for the defendant based on contributory negligence in the absence of a finding of proximate cause.

The findings of the jury upon which the trial court judgment was based were, in effect, that appellant Callihan Interests, Inc. failed to sufficiently stake down the flow line; that such failure was negligence and a proximate cause of Halepeska’s death; that Halepeska was a business invitee on appellant’s lease and an independent geologist. The Supreme Court found that there was some evidence to support these findings.

The cause was remanded to this court with instructions to pass upon points of error urged by appellant Callihan Interests, Inc., contending that the answers of the jury to such special issues are not supported by sufficient evidence and that such findings are against the great weight and preponderance of the evidence. The substance of the evidence supporting such findings is set out in the former opinion of this court and in more detail in the opinion of the Supreme Court, to which reference is here made. We have carefully considered all of the evidence and the argument of appellant that the answers to said issues are not supported by sufficient evidence and are against the great weight and preponderance of the evidence. We are of the opinion that appellant’s points of error in this connection are not well taken.

The witness H. J. Gruy testified that the flow line was “not sufficiently staked down” and stated the manner in which it should have been “staked down” for safety, that is that there should have been at least three stakes per joint over the length of the flow line. Gruy’s opinion testimony that the flow line was not properly staked was corroborated by the happening of the tragic accident. It is true that witnesses for appellant testified that the well was properly staked, and that the manner in which the well was “blown” would have resulted in the same regrettable accident even if the flow line had been staked down in the manner recommended by Gruy. In our opinion the evidence is sufficient to support the finding that appellant failed to sufficiently stake down the flow line, that such failure was negligence and a proximate cause of Halepeska’s death and said findings are not against the great weight and preponderance of the evidence.

There can be no question but that the evidence fully supports the finding that Halepeska was an independent geologist. In our opinion there is sufficient evidence to support the finding that he was a business invitee at the time of the accident. Halepeska’s presence at the well was as a geologist to participate in decisions concerning how the well could be completed as a producer. He was accompanied by Mr. Morris, whose official and authoritative position with Callihan Interests, Inc., is indicated in detail in the Supreme Court’s opinion. Both Morris and Halepeska had stated to Fuller, appellant’s Superintendent of Production, Howell, appellant’s Field Superintendent directly under Fuller, and to appellant’s employee, Bedford, that the well needed to be blowed hard. The evidence considered as a whole is, in our opinion, sufficient to support the finding that Hale-peska was a business invitee on the occasion in question and such finding is not against the great weight and preponderance of the evidence.

The judgment is affirmed.


author: BARROW, Justice.

text:
    Terry R. DALEHITE, Appellant, v. Perry Rowan SMITH, Appellee.
    No. 14238.
    Court of Civil Appeals of Texas. San Antonio.
    March 18, 1964.
    Clemens, Knight, Weiss & Spencer, Edward R. Finck, Jr., San Antonio, for appellant.
    John Peace, San Antonio, for appellee.
   BARROW, Justice.

This is a venue action. Appellee, Pérry Rowan Smith, filed suit in Bexar County, Texas, to recover attorney’s fees, and appellant, Terry R. Dalehite, filed his plea of privilege to be sued in Frio County, Texas. Appellee controverted this plea and asserted that venue was properly in Bexar County under Subd. 3, Art. 1995, Vernon’s Ann.Civ.St. The trial court, after a non-jury hearing, overruled the plea of privilege, and appellant perfected this appeal.

To maintain venue under Subd. 3 of the venue statute it is necessary for appel-lee to prove that he is a resident of Bexar County and that appellant resides outside of Texas. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758; Ward v. Davis, Tex.Civ.App., 262 S.W.2d 533. It is undisputed that appellee has resided in Bexar County since 19S0, and therefore only the residence of appellant is in issue. Appellee filed this suit on July 17, 1962, and appellant was served with out of state notice in Denver, Colorado.

Appellant urges by three points, that there is no evidence to support the trial court’s implied findings that appellant abandoned his domicile in Frio County prior to the filing of this suit and was a nonresident of Texas for purposes of venue. In passing upon these points, it is our duty to examine the evidence in the light most favorable to appellee and to indulge evei'y reasonable inference in favor of the judgment. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Lambert Corporation v. Martin, Tex.Civ.App., 369 S.W.2d 703.

For about twenty years prior to June, 1961, appellant lived with his wife and family on a ranch near Pearsall in Frio County. In September, 1960, appellant sold his ranch, together with all his equipment and livestock, retaining only one-half of the mineral interest in the land. He received one-fourth of the consideration in cash and was given a note, secured by a deed of trust, for the balance. Under the terms of this sale, full possession was to be given vendee on July 15, 1961. In June, 1961, appellant and his family moved to Denver, Colorado. Since that time, appellant has not been in Frio County, except for brief visits. He owns no real estate there, and on his few visits rented a room at the hotel.

Appellee testified that he helped appellant pack all the family household and personal effects for the move and that appellant stated that he liked the climate in Denver and was going to live there. Appellant purchased a house in Denver in September, 1961, for $28,000, which he retained until February, 1963. Appellant and his famiily remained in Denver until January, 1962, when he and his family went to Guadalajara, Mexico. Appellant told appellee that he would live there, and testified that he had no home other than the one in Guadalajara.

Appellant testified that his only purpose in going to Colorado was to attend school which he did during the summer of 1961. He did not attend school during the fall semester so that he could hunt. There was no evidence that he was pursuing any course of study. He testified that he went to Mexico in order that his four minor children could receive the benefit of a bilingual and bicultural education. He denied having any intention of abandoning Frio County as his legal residence, and corroborated this by written evidence showing that he has claimed Frio County as his residence on poll taxes, automobile license receipts and hunting licenses. He did not express any intention of when he might return to Frio County, if ever. Since one of his children is an infant, their education would presumably take a number of years.

It has been settled since Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136, that the word “domicile” as used in the venue statute, means “residence” which is a lesser-included element within the technical definition of “domicile.” One of the elements of “residence” as there stated by the Supreme Court is: “a fixed place of abode within the possession of the defendant.” Appellant does not meet this test of residence in Texas.

In Texas & N. O. R. Co. v. Tankersley, Tex.Civ.App., 246 S.W.2d 253, this Court held that plaintiff’s residence had not changed from Gonzales County to Bexar County when she had not acquired a fixed place of abode in Bexar County, although she had a definite intention to do so. See also: Prince v. Inman, Tex.Civ.App., 280 S.W.2d 779; Major v. Loy, Tex.Civ.App., 155 S.W.2d 617.

It is therefore our opinion that there is evidence to support the trial court’s implied finding that at the time appellee’s suit was filed, and when appellant was served with process, appellant was a nonresident of Texas.

The judgment is affirmed.


text:
    Anita KRIENKE, Appellant, v. SOUTHWESTERN SUPERIOR PRODUCTS CORPORATION, Appellee.
    No. 4221.
    Court of Civil Appeals of Texas. Waco.
    March 19, 1964.
    Rehearing Denied April 9, 1964.
    Fox, Fondren & Sapp, Taylor, for appellant.
    William S. Lott, Georgetown, Wroe Owens and Phil Mockford, Austin, for appel-lee.
   McDONALD, Chief Justice.

This suit was instituted by appellant against appellee for the purpose of obtaining construction of a “sand, gravel, limestone, dolomite and rock lease”, and a declaration of the rights, duties, and liabilities of the parties thereunder. Appellant is lessor, and appellee is assignee of the original lessee. Such lease is dated August 19, 1948 and provides for a primary term of 20 years, with options to lessee to renew for 20 additional years. Pertinent portions of such lease are:

“Sand, Gravel, Limestone, Dolomite and Rock Lease. * * *
“1. Lessor (Krienke) for and in consideration of the sum of $100.00 cash in hand paid * * *, and of the royalties herein provided, and the other agreements hereinafter set forth, here- ' by grants, leases, and lets exclusively unto Lessee for the purpose of investigating, exploring, prospecting, mining, producing, treating, removing and disposing of as desired, sand, gravel and rock (it is agreed and understood that the words ‘sand, gravel, and rock’, when appearing in this Lease, shall and do include sand, gravel, rock, limestone, and dolomite, and each of them of any and ail kinds, and any combination of any one or more of them) and any one or more of them or any combination thereof, for construction, industrial, chemical, agricultural, and all other uses, and any one or more of them or any combination thereof, together with the right and privilege of building and maintaining roads, installing and maintaining .equipment of any and all kinds for any one or more of said purposes, and the right of constructing and maintaining suitable shed, sheds, building or buildings, for the protection and convenience of the workmen * * * and the right of constructing and maintaining suitable storage for equipment and supplies, and the constructing and maintaining and operating of the necessary structures, roads and equipment thereon to produce, store, save, take care of, treat, transport, and own said products * * * the following described land in Williamson County, Texas, to-wit: * * *
“2. It is expressly understood and agreed that the Lessee may place on said premises any and all machinery, appliances, equipment, structures, wagon roads, truck and automobile roads, and such other objects and things which may be necessary or convenient for use in mining, quarrying, producing, treating, storing, loading, and transporting sand, gravel and rock and any one or more of them, or any combination thereof so mined by Lessee upon said premises, and for such other operations as may be incident to the mining, quarrying and removing of such materials * * *.
“4. * * * All material processed shall remain the property of Lessee until removed from the premises * (Emphasis added).

The original lessee commenced quarrying operations under the lease in 1948, but hauled the rock and dolomite to a location some 3 or 4 miles away and off of lessor’s land for treating and processing of the stone. One of the principal uses of the limestone and dolomite quarried is to convert it into “dead burned dolomite” or “dolomite lime.”

In 1963, lessee erected on the leased premises a large plant or factory, for the purpose of converting the raw dolomite stone into “dead burned dolomite.” Such plant and equipment removed dirt from the quarried stone; reduced the stones in size by blasting; crushed the stone into smaller pieces; screened the crushed stone; conveyed the crushed stone into a kiln or dryer. The kiln treats the stone by subjecting it to high temperatures which drive off certain gases. Iron scale is introduced into the kiln which causes the stone to fuse harden as it reaches certain temperatures at the discharge end of the kiln. The end product, “dead burned dolomite” or “dolomite lime,” has commercial and industrial uses.

It was and is the contention of the appellant landowner, that the lease was simply a quarry lease permitting lessee to extract dolomite and rock from the premises and haul same away; and that lessee is not permitted under the terms of the lease to build a manufacturing plant on the premises, or conduct a manufacturing operation on the premises.

Trial was before the court without a jury, which after hearing, entered judgment construing the lease to permit the plant and operations of lessee.

Appellant lessor appeals on 6 points, contending that the trial court erred in construing the lease, to permit the lessee’s plant for manufacturing “dead burned dolomite.”

The trial court filed Findings of Fact which described the processing and kiln treatment the raw dolomite received in ap-pellee’s plant, substantially as above set forth, and further found in substance:

1) The operations and procedures of defendant is the only accepted procedure for producing and treating dolomite for commercial and industrial uses.
2) Through the treatment of the raw dolomite by heat, it undergoes certain physical and chemical changes, and the resulting product is “dead burned dolomite”, a dolomite, except in chemical language.
3) In this industry, the terms “produce”, “treat” and “processed” as employed in the lease are synonymous with the term “manufacture.”
4) The raw dolomite loses 50% of its weight by volume as a result of the operation.

The trial court filed Conclusions of Law in substance:

1) The actions of defendant to install a kiln, equipment and buildings- on the leased premises are expressly permitted by the lease.
2) The operations of defendant are operations for producing and treating dolomite on the leased premises and such operations are expressly permitted by the lease.
3) The basis for computing plaintiff’s royalty shall be on the weight of the raw stone used to produce the end product.

Paragraph 1 of the lease, among other things, gives appellee the right to mine, produce, and treat dolomite; and to install buildings and equipment to produce and treat such products.

In paragraph 2 of the lease, lessee is expressly given the right to place machinery on the premises to produce and treat the rock.

Paragraph 4 of the lease contemplates that the rock, dolomite, and limestone will be “processed” on the premises.

The record reflects that the principal commercial use of the raw dolomite rock found on the premises is as “dead burned dolomite”, and that the procedures of cleaning the stone, crushing the stone, and drying it in a kiln with iron oxide additive is the only way to make it commercially usable. The record further shows that as a result of the kiln operation the carbon dioxide content of the stone is driven off and that the resulting “dead burned dolomite” weighs only 1/2 the weight of the raw material.

The lease expressly permitted lessee to produce, treat and process, the raw dolomite on the premises. Funk & Wagnall’s New Standard Dictionary defines “produce” to mean “that which is produced, brought forth, * * * or manufactured.” 72 C.J. S., p. 1208 defines “produce”, “as meaning to bring forth * * * to bring into being or1 form; to give being or form to; to manufacture ' * * *.”

Substantially the same definition of “produce” is approved in the following cases: United States v. Montgomery Ward & Co., D.C., 58 F.Supp. 408; Armature Exchange v. United States, D.C., 28 F.Supp. 10; Spiller v. McGehee, C.C.A. (n. w. h.), 68 S.W.2d 1093; Calvert v. Phillips Chemical Co., C.C.A., Er. Ref., 268 S.W.2d 478.

Funk & Wagnall’s New Standard Dictionary defines “treat” to mean “ * * * apply a special process to * * * to apply chemical reagents to * * 87 C.J.S., 925 defines “treat”: “to deal with or handle; to apply a special process to; to subject to some process with a special end in view; to subject to some action, as of a chemical reagent, •* * * often to subject (a natural or manufactured article) to some process to improve its * * * usefulness.” To the same effect is El Rio Oils (Canada) Ltd. v. Chase, 95 Cal.App.2d 402, 212 P.2d 927.

Funk & Wagnall’s New Standard Dictionary defines “process” to mean “a course or method of operations, natural or artificial, incident to the accomplishment of a result; a systematic series of actions in the production of something; as a metallurgical process * * * 72 C.J.S., p. 976 defines “process” to mean “to subject to or treat by a special process; to subject especially raw materials, to a process of manufacture, development, preparation for the market, etc.; to convert into marketable form * * *. Processing is a flexible term and may refer to either chemical or physical changes in the thing acted upon * * * to subject to a process of manufacture, development or preparation for the market.” To the same effect is Panhandle Constr. Co. v. Shireman, C.C.A. (n. w. h.),, 80 S.W.2d 461.

From the foregoing, we conclude that the plant and operation of appellee lessee on the leased premises, were expressly permitted and authorized by the lease; that the Findings, Conclusions, and judgment of the Trial Court are correct. All of appellant’s points and contentions have been considered and are overruled. The judgment of the Trial Court is affirmed.


author: TIREY, Justice.

text:
    MILSTEAD COMPANY, a Corporation, Appellant, v. A. E. BROWN, dba Krest Homes, et al., Appellees.
    No. 4204.
    Court of Civil Appeals of Texas. Waco.
    March 26, 1964.
    Rehearing Denied April 9, 1964.
    Richey, Sheeny, Teeling & Cureton, John F. Sheehy, Waco, for appellant.
    Carl C. Anderson, Waco, for appellees.
   TIREY, Justice.

Plaintiff has appealed from an adverse judgment against it in garnishment. The facts do not yield to a simple statement. On the 23rd day of October 1962 plaintiff sued Alvin M. Anderson, dba Waco Air Conditioning Company, for a debt due upon accounts for the sum of $13,280.29 in the 74th District Court of McLennan County, Texas. Contemporaneously therewith, plaintiff filed its application for writ of garnishment in which it averred that it had reason to believe that A. E. Brown of McLennan County, dba as Krest Homes, was indebted to defendant Anderson or that it had effects in its hands belonging to defendant, Anderson. Writ of garnishment was duly issued and served upon Brown. Brown, in his original answer, stated in effect that he was indebted to Anderson in the sum of $6,889.08, and that $3,538.55 of said amount was for material sold to Anderson, dba Waco Air Conditioning Company, by Milstead for use on jobs for him; that he had notice from Milstead of the material it had furnished to Anderson and that Milstead had made written demand upon him for the payment in accordance with Articles 5452-5472, Revised Civil Statutes of Texas. He further answered to the effect that J. R. Sustala, dba Sustala Air Conditioning Company, is making demand on him for the payment of said amount, and he asked that Sustala, dba J. R. Sustala Air Conditioning Company, and that Anderson, dba Waco Air Conditioning Company, be made parties to the garnishment proceeding in order that the rights of the parties may be settled. Anderson filed a disclaimer to the funds in controversy. As we understand Sustala’s pleadings, he went to trial on what he designated as “Defendant’s Answer and Cross-Action” filed December 11, 1962, and a supplemental cross-action filed June 5, 1963. As we understand his 1962 pleading, it is to the effect that he is entitled to $6,889.08, and that it represents material he bought and paid for and placed in the houses of garnishee; that Milstead sold such material to him with the knowledge that he was placing it in the houses belonging to the garnishee; that he is in no way connected with defendant, Anderson, of Waco Air Conditioning Company, and that all parties to the litigation knew and were advised of the foregoing facts, and he prayed that the foregoing sum be awarded to him, and for costs. In his cross-action he alleged that Milstead had fraudulently converted the sum of $6,889.08 that belonged to him.

Milstead Company, in its first amended answer and cross-action filed October 1963, entered a general denial to Sustala’s pleadings. It specially plead that Sustala did not notify and secure the approval of garnishee, Brown, that he was taking over the jobs of the Waco Air Conditioning Company; that neither it nor the garnishee knew that Sustala claimed that he had taken over the contracts of Anderson operating as the Waco Air Conditioning Company and, that Brown, in consideration of Milstead Company not filing a material-man’s lien for the materials it had sold to Waco. Air Conditioning Company, guaranteed the payment to Milstead of the amount of $3,538.55, and that such guarantee was made by Brown and accepted by Milstead without any knowledge that Sustala was claiming to be the owner of said business or the money or the account, and that by virtue thereof Sustala is estopped to assert that he is the owner of said funds. In its cross-action it alleged substantially that Anderson, operating as Waco Air Conditioning Company, is indebted to it in the sum of $8,899.61 for materials it furnished to him for the Brown houses and, that if Sustala took over the completion of the Anderson job, it also became liable for the liabilities of Anderson, operating as the Waco Air Conditioning Company, and became liable to it in the foregoing sum. The garnishee went to trial on its second supplemental answer filed October 1963, and it denied all the allegations contained in Sustala’s supplemental pleading heretofore referred to. He also alleged that he acted in the utmost good faith and he averred that it was necessary for him to engage an attorney to represent him, and alleged reasonable attorney’s fees for such service to be $750.00, and he prayed for appropriate relief.

The court overruled Milstead’s motion for instructed verdict and submitted two issues to the jury. They are: “(1) Do you find from a preponderance of the evidence, if any, that J. R. Sustala did not install the air conditioners involved herein in the Brown houses, for and on behalf of Alvin Anderson, dba Waco Air Conditioning Company”. To which the jury answered : “He did not install them for Alvin Anderson.” The court instructed the jury: “If you have answered the preceding special issue: ‘He did not install them for Alvin Anderson’ then and in such event only you will answer the following issue: (2) Do you find from a preponderance of the evidence, if any, that prior to and on the date of the levy of the writ of garnishment of the funds herein involved, Milstead Company, its agents, servants, and employees, knew that such air conditioners in the Brown houses were not installed by J. R. Sustala for and on behalf of Alvin Anderson, dba Waco Air Conditioning Company?” To which the jury answered: “It knew.” The court overruled Milstead company’s motion for judgment and entered judgment on the verdict and awarded $6,889.08 to J. R. Sustala with interest from October 23, 1962, at the rate of 6% per annum and found that Brown was entitled to recover reasonable attorney’s fees in the amount of $500.00, and that it should be assessed against Milstead Company, and decreed accordingly.

The judgment is assailed on five points: One is to the effect that the court •erred in overruling Milstead’s motion for judgment; the second is to the effect that the court erred in rendering judgment for Sustala on the findings of the jury. The fourth point is to the effect that the court •erred in rendering judgment for Sustala and against Milstead for $6,889.08, because the pleadings and the evidence do not support such judgment. We overrule each of the foregoing points for reasons which we shall hereinafter briefly state. First of all, we are of the view that Sustala’s pleading is sufficient to support the judgment entered in his behalf. In Sustala’s pleading filed December 11, 1962, and on which he went to trial, we find the following allegations:

“The defendant would show unto the Court that the Six Thousand Eight Hundred Eighty-nine and 08/100 ($6,-■889.08) Dollars in question herein belongs to this defendant in its entirety. Defendant would further show unto the Court that all of the equipment and materials placed by him in the houses belonging to the garnishee are fully paid for. That the fund in question herein is money due this defendant for materials furnished and labor done upon houses belonging to the garnishee. The defendant would further show unto the court that both garnishor and garnishee herein knew at all times material hereto that he, the said J. R. Sustala, was operating individually and that the garnishor stated said facts to garnishee. That said garnishor sold material and equipment to this defendant with knowledge that he was placing the same in houses belonging to the garnishee. “This defendant would show that he is in no way connected with the said Alvin M. Anderson or Waco Air conditioning Company and that all parties of interest knew and were well advised of said facts.”

There was no exception to the allegations contained in the foregoing paragraphs, and we think the allegations therein contained are sufficient to support the findings of the jury, as well as the judgment entered thereon. Evidence was tendered to the effect that eight jobs were involved in this transaction and that the total amount of debt owing by the garnishee on the eight jobs was $6,889.08; that Sustala bought and paid Milstead for the materials entering into these eight jobs, and that Sustala had invoices evidencing the foregoing sum, and that they were presented to the garnishee, Brown; that Sustala paid for this material out of monies that he had borrowed from J. E. Wright Company, and money that he had on hand at the time, and that none of the monies ever belonged to Alvin Anderson, or to the Waco Air Conditioning Company; that the invoices were made out by the employees of the Milstead Company, and that Sustala had no other business with Milstead Company during this period of time other than the jobs on the Brown houses. Walter Stovall, a salesman for Milstead Company, testified in part as follows:

“Q. You did discuss with Arnold Brown about Sustala doing the air conditioning work in ’62?
“A. Yes.
“Q. And so if you testified before that it was in August of ’62, you’re not denying that now, are you, sir?
"A. No, sir.
“Q. Was there any particular reason why you were discussing it with Mr. Brown?
“A. Yes, sir.
“Q. Why?
“A. Mr. Anderson had told me that he was planning to turn the air conditioning work over to Mr. Sus-tala.
“Q. * * * As a matter of fact, didn’t he tell you that he was getting out of the business, and Mr. Sustala was starting his own business ?
“A. He said he was planning on it.
“Q. * * * then on the strength of that, in August of 1962, just like you testified to before, you talked to Mr. Brown concerning it, didn’t you?
“A. Yes, sir.”

Sustala further testified to the effect that he mortgaged some of his personal property to get the money with which to pay for the material to complete the eight houses for garnishee, Brown, and it is without dispute that Sustala paid Milstead for the materials that he placed in the Brown houses, and that leads us to say that the evidence is ample to support the jury finding to the ■effect that Sustala did not install the air conditioning .in the Brown houses for and on behalf of Alvin Anderson, and that Milstead Company knew that such air conditioners installed in the Brown houses were not installed by Sustala for and on behalf of Alvin Anderson. Since Anderson filed a disclaimer to these funds, and since it was without dispute that Milstead Company had cut Anderson off and refused to sell him, except for cash, because of Anderson’s prior indebtedness to Milstead, we are of the view that under Sustala’s pleadings and his proof, that he has carried his burden of showing that he is lawfully entitled to the sum of $6,889.08. That leads us to say that we are of the view that the court did not err in overruling Milstead’s motion for instructed verdict, nor its motion for judgment on the verdict, and likewise the court did not err in entering judgment in behalf of Sustala against Milstead Company for the sum of $6,889.08, because this fund had passed into the hands of Milstead or under its control, and since garnishee, Brown, admitted that he owed the foregoing sum. Appellant’s third point is that the court erred in failing to give its requested special issue No. 1, which is: “Do you find from a preponderance of the evidence, if any, that Arnold Brown did not agree that J. R. Sustala could do the air conditioning work in question for his own account. Answer ‘He did not agree,’ or ‘He did agree.’ We find no error in the court’s refusing to. give the foregoing issue. First of all, Sustala’s pleading was sufficient to support a plea of quantum meruit. He alleged outright that he was the owner of the funds, and was entitled to them because he had installed the materials in the buildings, and that both Milstead and Brown knew it. Brown, in his answer, acknowledged that he owed the debt to someone and under his pleading and the undisputed circumstances, the funds belonged to Anderson or Sustala, and he asked that they be made parties to the garnishment proceedings in order that he could be protected in the payment of the debt. Under the record here made it is without dispute that Brown had permitted the materials to be installed by Sustala, and the only question before him was: Who-was entitled to be paid? — whether it was Anderson or Sustala. Point three is overruled.

Appellant’s fifth point is to the effect that the court erred in rendering judgment in favor of Brown, garnishee, against Milstead Company, for the sum of $500.00 because there was no pleading to justify such a judgment. As we understand the record, Milstead did not contest the garnishment fee. Sustala, in his pleading averred that Brown was not entitled to a fee as garnishee; however, in oral argument it seems all the parties agreed that the fee of $500.00 was reasonable. Rule 677, Texas Rules of Civil Procedure, is controlling here. The last clause in the Rule provides: " * * * where the answer is contested, the costs shall abide the issue of such contest.” Since the cost in the garnishment proceedings was assessed against Milstead, the error of the court in taxing the $500.00 fee against Milstead Company is harmless, and the judgment is reformed to this extent that the fee of $500.00 in behalf of Brown’s attorney is taxed as costs, and all cost is taxed against Milstead Company. This cause is reformed as above indicated, and as reformed, is affirmed.


author: DIXON, Chief Justice.

text:
    B. Joe HATLEY, Appellant, v. Charles L. HATCHER, D.D.S., Appellee.
    No. 16312.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 21, 1964.
    Rehearing Denied April 3, 1964.

      Burt Barr, Dallas, for appellant.
    Joseph J. Silberman, Dallas, for appel-lee.
   DIXON, Chief Justice.

Appellee Charles L. Hatcher, a dentist, recovered judgment against appellant B. Joe Hatley for $351.00 plus $125.00 attorney’s fees in a suit for dental work performed and materials furnished.

In his first and second points on appeal appellant contends, as he did in the trial court, that appellee’s cause of action is barred under the two-year statute of limitations.

The only witness was Dr. Hatcher. He testified that he performed dental work for appellant on February 18, 1959, February 25, 1959, some time in March 1959, and on October 15 or 28, 1959. He further testified that appellant paid $10.00 on November 25, 1959 and $1.00 on December 16, 1959.

The doctor’s testimony as to the terms of payment contains inconsistencies. He first testified that payment was due at the time he did the work. If so his claim in part at least would be barred by limitations, for suit was not filed until October 27, 1961. But the doctor also testified that after he had completed his work by delivering a set of dentures to appellant on October 15, 1959 or October 28, 1959 he agreed with appellant for payment to be made at the rate of $25.00 per month. If this testimony is correct the doctor’s suit is not barred under the statute of limitations.

It is well established that inconsistencies in the testimony of a witness do not destroy the probative force of his testimony as a matter of law. They merely create issues of fact for determination by the jury or by the trial court if there is no jury. See 41 B Tex.Jur. 489 and 24 Tex.Jur.2d 369 and authorities there cited.

It is also well established that in a non-jury trial it will be presumed that the trial court made such implied fact findings as are necessary to support the judgment. National Bond & Investment Co. v. Atkinson, Tex.Civ.App., 254 S.W.2d 885. In this case it is plain that the trial court found against appellant as to the facts in regard to the defense of limitations. Appellant’s first and second points are overruled.

In his third point appellant complains that no evidence was offered to support the allowance of $125.00 as attorney’s, fees. It was not necessary to offer such evidence. Appellee presented proof of the services rendered. He asked for attorney’s, fees in his pleading. This was a non-jury trial. It was not error for the court to fix the amount of the attorney’s fees though no. evidence was offered as to the value of the' attorney’s services. Weatherly v. Longoria, Tex.Civ.App., 292 S.W.2d 139; May v. Donalson, Tex.Civ.App., 141 S.W.2d 702; Johnson et al. v. Blanks et al., 68 Tex. 495, 4 S.W. 557. Appellant’s third point is overruled.

In his fourth point appellant claims, that appellee failed to prove that he was a duly licensed dentist on the times and occasions in question. This point was not raised during the trial. It is urged for the first time on appeal.

The record does not support appellant’s point. The doctor testified that he is a licensed dentist. He attended the University of Texas. He took postgraduate courses in this country and Europe. He has. taught dental surgery. For thirty-five or forty years he has been on the staff of Baylor Hospital. Appellant’s fourth point is overruled.

The judgment of the trial court is affirmed.

Affirmed.


text:
    Bruce S. TERRILL, Appellant, v. Lanelle HARBIN, Appellee.
    No. 3862.
    Court of Civil Appeals of Texas. Eastland.
    March 20, 1964.
    Rehearing Denied April 3, 1964.
    Touchstone, Bernays & Johnston, Lucian Touchstone, Dallas, Ennis Favors, Stephen-ville, for appellant.
    Clyde V. Sweeney, Stephenville, for ap-pellee.
   COLLINGS, Justice.

Lanelle Harbin brought suit in the District Court of Erath County against Dr. Bruce S. Terrill. Plaintiff alleged that she was the wife of Judge Dale W. Harbin pri- or to his death on July 6, 1961; that after the death of her husband, Dr. Terrill performed a wrongful and unauthorized autopsy on his body in Erath County; that such action by the defendant was a trespass and a crime, which caused plaintiff to suffer great mental anguish, distress and ' damages. Dr. Terrill filed his plea of privilege to be sued in Dallas County, the place 'of his residence. The plea of privilege was overruled and he has appealed.

Since appellant does not reside in Erath County, appellee in order to maintain venue therein under the provisions of Article 1995, Subdivision 9, Vernon’s Ann.Tex.Civ.St. had the burden to both allege and prove that a crime, offense or trespass was committed by appellant in Erath County. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; W. B. Johnson Drilling Company v. Lacy, Tex.Civ.App., 336 S.W.2d 230. Appellee Lanelle Harbin alleged in her pleadings, which were attached to and made a part of her controverting affidavit to appellant’s plea of privilege, and contends that she has proved by a preponderance of the evidence that Dr. Terrill committed a crime and/or trespass on the body of her deceased husband in Erath County within the meaning of Subdivision 9, and that she is therefore entitled to maintain venue in such county under the statute.

Appellant presents points urging that the court erred in overruling his plea of privilege because he contends that appellee did not allege and prove (1) the commission of a crime or offense in Erath County; (2) did not allege and prove that appellant committed a trespass in Erath County within the meaning of Subdivision 9; (3) that there was no evidence, and (4) that the evidence was insufficient to support the presumed findings of the court to sustain venue under Subdivision 9; and (5) that any implied finding in support of the judgment was so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. In our opinion no reversible error is shown because the record shows that appellee did both allege and amply prove that appellant Dr. Bruce S. Terrill committed a trespass in Erath County.

Appellee alleged and the evidence supports the conclusion that Mrs. Harbin agreed for Dr. Terrill to open the site of a previous operative incision and to look. and see what had happened at the site of the previous operations. The evidence also supports the conclusion that Mrs. Harbin did not agree to a more extensive autopsy. Mrs. Harbin testified that when Dr. Terrill came to her home shortly after the death of her husband and showed a desire to talk to her about the matter she told him that if it was an autopsy he was going to talk about the answer was “no”. She testified that Dr. Terrill then told her the only thing he wanted to do was to look at the operative site and see what happened; that he was not going to ask for an autopsy. Two other witnesses who were present at the time of this conversation testified to substantially the same thing. The only testimony that Mrs. Harbin agreed to anything more than to open the incision and look at the operative site was by appellant Dr. Terrill. He denied that he was “even thinking of going through the operative site” when he discussed the matter with Mrs. Harbin, and denied that she had so limited her permission for the autopsy. He stated that she gave her consent for him and another doctor to perform “the post operative procedure.” The evidence shows that an autopsy was performed on the body of the deceased Dale Harbin in the funeral home at Dublin, Texas, in Erath County. Another doctor who assisted Dr. Terrill testified that an “autopsy” was performed on the body of the deceased Dale Harbin and that the old incision was not touched in performing such autopsy. Dr. Terrill testified that the old operative site could have been opened and the “graft” or “tissue” observed without going into any place except the old operative site. He stated that he and the doctor with whom he was working did not go into the incision where the old operative site was; that such an incision and examination would not have permitted a satisfactory determination of what happened to the previous operations. The doctor stated that the body was opened from the shoulder to the midline at about the left of the mid sternum and then down to the pubis; that skin flaps were retracted and the abdomen opened; that the main attention was to the chest cavity. The doctor stated that the involved specimen” were removed from the body and that such removed parts consisted of the heart, the aorta and all surrounding structures, including a portion of the lungs, the trachea, and the esophagus. Appellant stated that the removed portions were then taken to the Stephenville Hospital & Clinic for examination and thereafter sent to Houston where they remained for a considerable time, almost two years before a final report was made.

The evidence amply supports the conclusion that the autopsy performed by appellant exceeded and went beyond the authority and permission granted by appellee Mrs. Dale Harbin. The question presented is whether such action constitutes a trespass or crime as contemplated by Subdivision 9, supra. In our opinion it does. In 87 C.J.S. Trespass § 1, at p. 955, it is stated that “In a general sense any invasion of another’s rights is a trespass.” Also see Lloyd v. Smith, Tex.Civ.App., 203 S.W.2d 793; Ferguson v. Coody, Tex.Civ.App., 211 S.W.2d 295; Shell Petroleum Corporation v. Liberty Gravel & Sand Company, Inc., Tex.Civ.App., 128 S.W.2d 471. The right to bury a corpse and preserve its remains is a legal right which is well recognized, and it is held that the courts will protect such right and the right to dispose of a corpse by a decent burial which includes the right to possession of the body in the same condition in which death leaves it. 17 Tex.Jur.2d 485; Burnett v. Surratt, Tex.Civ.App., 67 S.W.2d 1041. It is also held that a widow has the primary and paramount right to the possession of her husband’s body above that of any other person. 17 Tex.Jur.2d 487; Flores v. De Galvan, Tex.Civ. App., 127 S.W.2d 305; Curlin v. Curlin, Tex.Civ.App., 228 S.W. 602; Wright v. Harned, Tex.Civ.App., 163 S.W. 685. Any interference with such right of possession of the body of a deceased by mutilation or otherwise disturbing the body without the consent of the next of kin is an actionable wrong for which a claim for damages may he maintained. Love v. Aetna Casualty & Surety Company, Tex.Civ.App., 99 S.W.2d 646, affirmed 132 Tex. 280, 121 S.W.2d 986.

We hold, therefore, that Mrs. Harbin did allege and prove that appellant committed a trespass in Erath County within the meaning of Subdivision 9, supra; that there was some evidence of probative force, and that such evidence was sufficient to support the presumed finding of the court that such a trespass was committed in Erath County, and that such finding was not so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. Appellant’s points contending to the contrary are overruled.

The order of the court overruling appellant’s plea of privilege is affirmed.


text:
    HAGOOD’S CONOCO SERVICE STATION et al., Appellants, v. Nancy FAGLIE et al., Appellees.
    No. 4218.
    Court of Civil Appeals of Texas. Waco.
    March 12, 1964.

      William G. Washington, Ulmer W. Spinney, Austin, for appellant.
    Jack C. Eisenberg, Austin, for appel-lees.
   McDONALD, Chief Justice.

This suit was brought by Nancy Faglie, a minor, for personal injuries sustained by her; and by her father Edward Faglie for medical expenses incurred for Nancy; as a result of an intersection collision between defendants’ automobile and a motorcycle upon which Nancy was a passenger.

Trial was to a jury which found:

1)Defendants’ driver failed to keep a proper lookout; which was a proximate cause of the collision.
2) Conduct of the driver of the motorcycle was not the sole proximate cause of the collision.
3) The value of necessary medical expenses rendered Nancy, as a proximate result of her injuries was $839.35.
4) Issues inquiring as to damages to Nancy in her individual capacity were answered NONE.

The Trial Court entered judgment on the verdict for plaintiff Edward Faglie for $839.35; and further rendered judgment that plaintiff Nancy Faglie take nothing.

Thereafter Nancy Faglie made motion for a new trial, which the Trial Court granted “as to Nancy Faglie only.”

Defendants appeal the judgment in favor of plaintiff Edward Faglie, contending there is no evidence to support the jury’s finding on proximate cause.

Plaintiffs move to dismiss the appeal for want of jurisdiction, contending that the appeal of the defendant is untimely in that a final judgment has not been entered as to all parties of the case.

There was no order severing Nancy’s claim from that of her father, and plaintiffs contend that without such a severance, there is not a final appealable judgment.

A judgment which does not dispose of all parties and issues in the pending suit, is interlocutory and not appeal-able, unless a severance of that phase of the case is ordered by the Trial Court. In the absence of an order of severance, a party against whom such an interlocutory judgment has been rendered will have his right of appeal, when and not before, the same is merged in a final judgment disposing of the whole case. Pan Am. Petroleum Corp. v. Texas Pac. Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200; Sears v. Mund Boilers, Inc., C.C.A., W/E Ref., 328 S.W.2d 199.

Appeal dismissed.


text:
    Guy F. DAVIS, Appellant, v. The CITY OF SAN ANGELO, Appellee.
    No. 4220.
    Court of Civil Appeals of Texas. Waco.
    March 19, 1964.
    Motion for Rehearing Dismissed April 9, 1964.
    Otho Crawford, San Angelo, for appellant.
    Edward P. Bolding, San Angelo, for ap-pellee.
   WILSON, Justice.

Appellant sued the City for the value of two buildings which he had erected, as tenant, on land owned by the City’s vendor. He alleged the City had, in effect, “removed and destroyed the value of the buildings.” In a non-jury trial a take-nothing judgment was rendered. We affirm.

The following are unchallenged findings or undisputed facts: The City acquired by deed a tract of land from appellant’s landlord on which were two buildings owned by appellant, erected by him on the land with his landlord’s consent. Until the conveyance to the City, appellant had orally rented the land from the City’s vendor as a tenant from month-to-month at a monthly cash rental. The City gave appellant written notice to vacate immediately after its purchase of the land in January, 1963. Thereafter the City received no rent. In April, 1963 appellant and the City entered into a written agreement that appellant would vacate the buildings not later than May 10, 1963; that the City was given permission to remove the buildings from the land at no cost to appellant; that vacating of the buildings would not constitute an estoppel against, or a waiver or abandonment of claims by appellant, “except for the actual physical wrecking of the said buildings.” The buildings were of masonry and stone construction and could not be moved without being razed. Appellant vacated the buildings May 10, 1963, and they were torn down in June at the City’s expense.

Appellant testified that under his oral rental agreement with the City’s vendor, his landlord had “no claim on the improvements”, and if appellant “wanted to move the improvements off, he could.” He made the improvements on the landlord’s land ’‘knowing that these buildings could not be moved” without being demolished. He testified his oral agreement with his landlord was that when the rental agreement terminated, “if we couldn’t come to some agreement, well, the buildings were still mine; I could move them off, see.”

The effect of appellant’s points 2 and 3, as we understand them and the argument thereunder, is that he is entitled to damages for the value of the improvements he placed on the land purchased by the City, because the City, though not having sought to condemn, is in the position of a condemnor by virtue of using the land for street purposes; or that the City is liable for taking, damaging, destroying for, or applying his property to public use without compensation.

Appellant does not sue for the City’s failure to permit him to remove the improvements. He concedes they could not be removed intact. He does not sue for conversion of the materials. He does not sue for wrongful termination of his tenancy. He admits it was properly terminated. He had ample notice and time for removal. To be sure, he had the right to remove the buildings. Instead he gave the City written authority to remove them for him without cost to himself, waiving and abandoning any claim for the “physical wrecking” of the buildings.

Appellant has shown no cause of action against the City. He suffered no compensable injury. If appellant’s lessor (the City’s vendor) had elected not to continue appellant’s tenancy by the month and had notified the tenant to remove the improvements, appellant would have had no cause of action against his lessor for the value of the buildings, which appellant would have had a reasonable time to remove. Wright v. Macdonell, 88 Tex. 140, 30 S.W. 907. If, instead of removing the buildings himself, the tenant had thereupon contracted for the landlord to do so without cost to the tenant, no cause of action for removal would exist. The tenant would have suffered no compensable damage. The City, as the landlord’s vendee under its deed, obviously assumed the same relationship to appellant previously borne by its vendor. The fact that the City proposes to use for street purposes the land it acquired under a voluntary sale does not alter that status. There is no compensable taking, damaging, destruction or application of appellant’s property to public use.

Another point concerning admissibility of evidence is immaterial.

Affirmed.


text:
    HUMBLE OIL AND REFINING COMPANY, Appellant, v. John GRUCHOLSKI, Appellee.
    No. 4201.
    Court of Civil Appeals of Texas. Waco.
    March 12, 1964.
    Rehearing Denied April 2, 1964.

      Robert G. Carter, Marlin, Sam G. Reams, Houston, for appellant.
    Thomas Bartlett, Jr., Reagan & Welch, Marlin, for appellee.
   TIREY, Justice.

Plaintiff,- Grucholski, brought this action for breach of contract against defendant for damages he claimed to have sustained to a 50 acre tract of land because of seismograph operations conducted thereon by defendant. Plaintiff alleged that in April 1960 defendant, acting through its agent, made an agreement with him that in consideration of plaintiff’s permission for defendant to conduct seismograph operations •on plaintiff’s land, that defendant agreed to pay all damages that might be done to plaintiff’s land as a result of such operations; fhat before said operations were conducted Riere was located on plaintiff’s land a water well which had been in continuous use for thirty years which furnished water for plaintiff’s domestic use, and that immediately after defendant conducted such operations that, as a direct and proximate cause of such operations, such water well was rendered worthless, and in order to obtain water it was necessary for plaintiff to transport water to his premises at a reasonable cost of $200.00. He also alleged the reasonable market value of his property immediately before the blasting and the reasonable market value of the premises after the blasting and sought damages for this difference in market value. He alleged that all of these damages were the direct and proximate result of the seismograph operations; that he made demand upon defendant, and that it had failed to pay. Plaintiff’s pleading does not state whether the contract was oral or written, but the only evidence introduced thereon was as to an oral contract. The defendant entered a general denial. At the close of the testimony the court overruled defendant’s motion for instructed verdict, and the jury found substantially that about April 1, 1960, plaintiff’s well was damaged by defendant, and that the reasonable cash market value of plaintiff’s farm immediately before its damage was $5,500.00; that the reasonable cash market value of the farm immediately after the farm was damaged was the sum of $4,000.00, and that the damage to the well on the farm was not temporary. The court granted plaintiff’s motion for judgment and decreed that he have judgment against defendant for the sum of $1500.00, with legal interest and costs. Defendant seasonably filed its motion for new trial and, it being overruled, perfected its appeal to this court.

The judgment is assailed on one point. It is: “The trial court erred in overruling and refusing appellant’s motion for instructed verdict.” Defendant, in his brief, says:

“At the trial plaintiff proved by the un-controverted evidence that defendant did not conduct seismograph operations on plaintiff’s land, but instead conducted the same on the public road in front of his property.”

Defendant filed motion for instructed verdict on the ground that plaintiff failed to show that he was entitled to recover from defendant under his contract, or as a result of negligence, and contends that since plaintiff failed to plead or prove negligence on the part of the defendant in the conduct of its operations off of plaintiff’s premises, and there being no pleadings or proof of negligence on the part of defendant, that defendant’s motion for instructed verdict should have been granted. Defendant relies on the doctrine announced in Klostermann v. Houston Geophysical Company, Tex.Civ.App., 315 S.W.2d 664, (w. ref.,) and cases there cited. In the foregoing case our San Antonio court gave a clear and comprehensive review of the leading Texas cases applicable to a tort situation, and said:

“We conclude that Texas is committed to the rule that seismographic operations fall within the tort field of negligence law, and that the better reasons argue against our return to the ancient rule of liability without fault.”

Since our Supreme Court refused application for writ of error in the foregoing cause this opinion represents the last expression of our Supreme Court on the foregoing matter. In appellant’s motion for instructed verdict we find the following allegation:

“The pleadings and the uncontroverted evidence in this cause show that defendant agreed with plaintiff that it would pay him for any damages caused by defendant’s operations on plaintiff’s land, and the uncontroverted evidence shows that defendant did not conduct any operations, seismic or otherwise, on plaintiff’s land, but, on the contrary, conducted all of its operations on the public road in front of plaintiff’s land. Since the operations we're not conducted upon plaintiff’s land, and did not come under the contract between plaintiff and defendant for payment of damages for operations conducted on his land, it is necessary for the plaintiff to plead and prove negligence on the part of defendant in the conduct of its operations off of the plaintiff’s premises in order to entitle plaintiff to recover from defendant for any damages occasioned by defendant’s operations, * * *

This motion was overruled by the trial court and we are in accord with the court’s action thereon. We are in accord with defendant’s statement that the evidence is uncontradicted that the Humble Oil and Refining Company made an agreement with the plaintiff whereby it obtained permission to conduct explorations on his land, and agreed with plaintiff to pay him for such damages resulting therefrom. It is also true that appellant did not actually bore the hole in which to put the explosive material on the plaintiff’s land, but elected to bore the holes in the public highway as near the plaintiff’s land as they could get on account of the fence line, and proceeded to carry out their explorations, which was done for the purpose of seismographing the plaintiff’s land. The evidence is without dispute that appellant did actually conduct the explorations, and did seismograph plaintiff’s land. The fact that appellant elected to put the holes for the explosives in the highway did not and could not by any rule of law exempt it from liability of the promise it made to the plaintiff to pay him for any damages resulting from the exploration. Since plaintiff agreed with appellant that it could conduct seismographic operations on his land, he had no control of appellant as to the exact place it might elect to conduct this particular operation. That selection was a matter of decision for appellant. Since appellant was under a contract to pay to plaintiff any damage resulting from the exploration it was unnecessary for plaintiff to allege negligent conduct on the part of the appellant. It is our view that the court correctly submitted the controlling issues, and the verdict is supported hy ample evidence, (See Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345) and the appellant has failed to show reversible error. Accordingly, the judgment of the trial court is affirmed.


author: WILLIAMS, Justice.

text:
    Cecil AKINS et al., Appellants, v. Roy C. COFFEE, Appellee.
    No. 16318.
    Court of Civil Appeals of Texas. Dallas.
    March 6, 1964.
    Rehearing Denied March 27, 1964.

      Alvin Boyd, Dallas, for appellants.
    Coffee, Coffee & Chantilis, and Roy C. Coffee, Jr., Dallas, for appellee.
   WILLIAMS, Justice.

Summary judgment proceeding. ' Rule 166-A, Texas Rules Civil Procedure. Ap-pellee’s suit against appellants was upon a verified account pursuant to Rule 185, T.R. C.P. Appellants answered, denying generally that they owed appellee anything and specifically alleging that the sand and gravel, being the materials made the basis of the verified account, purchased by them was by virtue of a sublease agreement with one Clark, appellee’s lessee. The answer was verified but not within the language of Rule 185, T.R.C.P. Appellee moved for summary judgment and supported said motion with affidavits and other documents. Appellants did not answer the motion for summary judgment or submit extrinsic evidence in opposition thereto. The trial court, considering the pleadings, motion and affidavits, sustained the motion for summary judgment for the amount of the debt, interest and attorneys’ fees.

Appellants, in their sole point on appeal, generally insist that issues of fact were presented by their verified answer to ap-pellee’s petition and therefore the court should not have sustained the motion for summary judgment. Under the particular facts presented in this record we are of the opinion that the trial court was correct and the judgment should be affirmed.

Appellee’s motion for summary judgment postulates the nonexistence of issuable facts. It is, of course, elementary that upon hearing the burden of proof was definitely upon appellee to establish the absence of any genuine issue of fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. In our opinion appellee has sustained this burden.

Appellee’s cause of action was. upon verified account, with attached invoice showing materials furnished and price thereof, all pursuant to the express terms and provisions of Rule 185, T.R.C.P., which provides that in such action the same shall be taken as prima facie evidence thereof unless the party resisting such claim shall file a written denial, under oath, stating that such claim is not just or true, in whole or in part, and if in part only, stating the items and particulars which are unjust. (Emphasis supplied.) By virtue of this rule, and superseded Art. 3736, Vernon’s Ann. Civ.St., it has been held that failure to file a sworn denial of a verified account amounts to an admission that the account is correct. Walker-Neer Machine Co. v. Acmeline Mfg. Co., Tex.Civ.App., 279 S.W.2d 156, wr. ref. n. r. e. Appellee, by countervailing point, contends that since appel lants did not substantially comply with Rule 185, T.R.C.P., in making verified answer to its petition, that same, fails to deny the correctness of same and amounts to an admission that the account is correct. We agree with this contention. While it is true that no particular form of affidavit is required by Rule 185, T.R.C.P., yet there must be a denial of the account in the language stated in the rule. Glasco v. Frazer, Tex.Civ.App., 225 S.W.2d 633; Kost Furniture Co. v. Radio Equipment Co., Tex.Civ.App., 100 S.W.2d 162; Stephens v. Lott, Tex.Civ.App., 339 S.W.2d 405.

In Sessions Co. v. W. A. Sheaffer Pen Co., Tex.Civ.App., 344 S.W.2d 180, wr. ref. n. r. e., this court had before it an almost identical situation wherein an action upon a verified account under Rule 185, T.R.C.P. was answered by a verified general denial,, followed by special defenses, and summary judgment for plaintiff was affirmed. In sustaining the judgment in that case we held1 that the answer did not comply with the requirements of Rule 185 or Rule 166-A(e), T.R.C.P. In doing so we relied upon our former opinion in Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, wr. ref., in which we held that a general denial, though sworn to, was insufficient to meet the requirements of the law.

Appellants seek to justify the sufficiency of their verified answer by the opinion of the El Paso Court of Civil Appeals in Basse Truckline, Inc. v. Strickland Transportation Co., Tex.Civ.App., 359 S.W.2d 477, no wr. hist., but a careful examination of that opinion discloses that the verified denial in that case was in substantial conformity with Rule 185, T.R.C.P. in that the answer alleged that the account “is not just” and furthermore, in an accompanying affidavit, a specific denial of the justness of the account was made “in whole or in part.” We find no such language, or comparable language, utilized in this case and hence the decision in that case is not applicable here.

Appellants’ verified answer is insufficient to meet the requirements of Rule 166-A(e), T.R.C.P. for the reason that such answer contains hearsay statements and -conclusions which would not be admissible upon the trial of the case. The answer, following general denial of plaintiff’s petition alleges, inter alia, that “it” is defendant’s understanding, at this time, and they have been advised, that said W. L. Clark had a lease agreement with Roy C. Coffee whereby said Roy C. Coffee could sublease with other parties * * (Emphasis -supplied.) Such original lease is not attached, nor does it appear in the record. Such hearsay statements and conclusions negative the sufficiency of the answer to meet the requirements of Rule 166-A(e), T.R.C.P. Lawyers Surety Corp. v. Investors Mutual of Nueces, Inc., Tex.Civ.App., 353 S.W.2d 882. Furthermore, such answer is insufficient in that the affidavit fails to state it is made on personal knowledge of affiant nor does it show that affiant is competent to testify to the matters contained in such answer. Rule 166-A(e), T.R.C.P.; Quarles v. State Bar of Texas, Civ.App., 316 S.W.2d 797; Lawyers Surety Corp. v. Sevier, Tex.Civ.App., 342 S.W.2d 604; Youngstown Sheet & Tube Co. v. Penn, Tex.S.Ct., 363 S.W.2d 230.

Finding as we do that appellants’ verified answer is insufficient to meet the requirements of either Rule 185, T.R.C.P. or Rule 166-A(e), T.R.C.P., it follows that the validity of the account sued upon remains unchallenged and no issue of fact is presented.

Appellee did not rely solely upon the verified account but also attached to its motion for summary judgment extrinsic evidence in the form of affidavits and a letter from appellants. These affidavits support appellee’s claim and appellants’ letter constitutes an admission that they owe the indebtedness sued upon. Appellee, having introduced and presented extrinsic evidence in support of its verified petition and motion for summary judgment, it became the obligation of appellants to raise affirmative defenses by some means other than by their mere pleadings. 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, wr. ref.; Sessions Co. v. W. A. Sheaffer Pen Co., Tex.Civ.App., 344 S.W.2d 180; Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948; Allen v. Western Alliance Ins. Co., Tex.S.Ct., 349 S.W.2d 590; and Burnett v. Cory Corp., Tex.Civ.App., 352 S.W.2d 502.

Although not specifically presented in their point on appeal, appellants, by argument in their brief, present a question concerning the allowance of attorneys’ fees and also argue that no evidence was presented in support of such attorneys’ fees as were allowed by the trial court. There is no merit to this contention. Art. 2226, V.A. C.S., as amended, expressly provides for the recovery of attorneys’ fees in a suit on sworn accounts. Ferrous Products Co. v. Gulf States Trading Co., Tex.Civ.App., 323 S.W.2d 292. Neither was it error for the trial court to fix the amount of the attorneys’ fees though no evidence was offered as to the value of the attorneys’ services. Weatherly v. Longoria, Tex.Civ.App., 292 S.W.2d 139; May v. Donalson, Tex.Civ.App., 141 S.W.2d 702; Johnson, et al v. Blanks, et al, 68 Tex. 495, 4 S.W. 557; and B. Joe Hatley v. Charles L. Hatcher, Tex.Civ.App., 376 S.W.2d 943.

Finding no merit in appellants’ point on appeal, we overrule the same and affirm the trial court’s judgment.

Affirmed.


author: MURRAY, Chief Justice.

text:
    J. I. JAMES et al., Appellants, v. The BOARD OF TRUSTEES OF the EAGLE PASS INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 14291.
    Court of Civil Appeals of Texas. San Antonio.
    March 25, 1964.
    D. E. Hume, Hector F. Frausto, Eagle-Pass, Montague & Thurmond, Del Rio,. J. I. Rhodes, Eagle Pass, for appellants.
    Stahl & Sohn, San Antonio, for appellees.
   MURRAY, Chief Justice.

This suit was instituted in the District Court of Maverick County by J. I. James, Superintendent of Schools of Eagle Pass-Independent School District, seeking in-junctive relief against the Board of Trustees from discharging him as such school superintendent. Richmond C. Harper and J. I. Rhodes, two members of the Board of Trustees of the School District, filed a separate answer. A temporary restraining order was granted on January 8, 1964, but at a hearing on January 23, set for the purpose of determining whether a temporary injunction should issue, the court sustained a plea in abatement of the Board of Trustees and dismissed the cause. The plaintiff excepted and gave notice of appeal to this Court. Appellant James executed a super-sedeas bond, and appellants Harper and Rhodes filed appeal bonds. The transcript was timely filed here.

We doubt if the supersedeas bond was of any effect. Any temporary restraining order that had been theretofore issued would become functus officio after ten days from the date of its issuance, and there was no temporary injunction issued.

We are of the opinion that the trial court properly sustained the plea in abatement. Art. 2654 — 7, § 1, reads as follows:

“Parties having any matter of dispute among them arising under provisions of the school laws of Texas, or any person or parties aggrieved by the actions or decisions of any Board of Trustees or Board of Education, may appeal in writing to the Commissioner of Education who, after due notice to the parties interested, shall examine in a hearing and render a judgment without cost to the parties involved. However, nothing contained in this Section' shall deprive any party of a legal remedy.”

Art. 2654 — 7, § 1, Vernon’s Ann.Civ. Stats, is not unconstitutional. In 1 Tex. Jur.2d p. 650, § 4, we find the following:

“The legislature may properly make use of administrative agencies in exercising state control over property and pursuits — particularly in the fields of commerce and industry and in the professions — that affect the well-being of the public. The tendency of the courts has been to sustain acts creating and conferring authority upon such agencies as against objections on constitutional grounds, such as that they violate the guaranty of due process.”

It is settled law in this State that a school superintendent who has been discharged must first exhaust his right to appeal to the higher school authorities before resorting to the courts. Mission Independent School Dist. v. Diserens, 144 Tex. 107, 188 S.W.2d 568, 161 A.L.R. 877; Daniel v. Dallas Ind. School Dist., Tex.Civ.App., 351 S.W.2d 356; Murray v. San Augustine County Board of School Trustees, Tex.Civ.App., 307 S.W.2d 622; Hinojosa v. San Isidro Ind. School Dist., Tex.Civ.App., 273 S.W.2d 656; Bear v. Donna Ind. School Dist., Tex.Civ.App., 74 S.W.2d 179.

It is true that here James has not yet been discharged, but the court has even less jurisdiction, if possible, to enjoin his discharge. The court cannot presume that the Board of School Trustees will illegally and wrongfully discharge James. But even if it does, this Court would have no jurisdiction of the matter until James has exhausted his administrative remedies by an appeal to the higher school authorities. Bear v. Donna Independent School District, supra.

The judgment of the trial court sustaining the plea of abatement is affirmed.


text:
    J. Roy CRUTCHFIELD, d/b/a Crutchfield Fertilizer Company, Appellant, v. ASSOCIATES INVESTMENT COMPANY, Appellee.
    No. 16296.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 3, 1964.
    Rehearing Denied Feb. 21, 1964.

      Gassaway, Allen & Norman, Borger, John F. Tomlin, Pecos, Johnson & Dionne, Fort Stockton, for appellant.
    Robert R. Cole, Dallas, Campbell, Brock, Wright & Waters, Lubbock, McGown, Godfrey, Logan & Decker, Fort Worth, for appellee.
    Crenshaw, Dupree & Milan, Lubbock, Strasburger, Price, Kelton, Miller & Martin and Royal H. Brin, Jr., and Irion, Cain, Cocke & Magee, Dallas, Lynch & Chappell, Midland, Amici Curiae.
   BATEMAN, Justice.

Appellee obtained a summary judgment for debt based upon written contract by which appellant contracted for the purchase of certain tanks and accessories from Superior Manufacturing Company, which assigned the contract to appellee the. same day it was made.

Appellant’s one “point of appeal” is: “The trial court erred in granting Appellee’s motion for summary judgment, there being one or more genuine issues as to material facts raised by the pleadings and affidavits.” Appellee objects to our consideration of this point of error because it is too general to comply with the requirements of Rule 418, Texas Rules Civil Procedure, citing White v. Great American Reserve Insurance Co., Tex.Civ.App., 342 S.W.2d 793, no wr. hist., and Little v. Employees Security Life Insurance Co., Tex.Civ.App., 343 S.W.2d 517, err. ref. n. r. e. We consider the criticism of the point to be sound, but in accordance with our usual practice, and as we did in both of the cited cases, we shall look to the statements and argument in appellant’s brief to determine, if possible, exactly the nature of his complaint.

His position seems to be that the contract sued upon was procured and induced by fraudulent representations that the tanks he contracted to purchase were manufactured and delivered to another, to whom appellant had agreed to lease the same, but that in fact the tanks had not even been constructed; also that the consideration for his agreement had failed.

Appellant does not contend that he was prevented from knowing, or that he did not know, the contents of the contract he signed; and appellee says that he is es-topped from defending on the ground of fraud, as against appellee, because of the following statements contained in that contract :

“(3) Said property is now in possession of the Mortgagor and shall not be removed from its present location without the written consent of Mortgagee; that said property is now and shall at all times be kept in good condition and repair; that said property shall not be used in violation of any State or Federal law; that said property may be inspected by the Mortgagee from time to time as it may demand.
;}í ijt sj« jjc
“(8) The Mortgagee may assign this mortgage and in event of such assignment the Mortgagor shall perform all promises herein contained to such assignee as the owner hereof and the Mortgagor agrees that after such assignment, the Mortgagor will settle all claims against the Mortgagee directly with it and agrees not to set up any claim which the Mortgagor may have against the Mortgagee as a defense, set-off, cross-complaint, or otherwise to any action for the purchase price or possession of said property brought by the owner hereof.”

Regardless of whether appellant’s answer or affidavit raised material fact issues in connection with his alleged defenses, it is our view that appellant was estopped by the above quoted contractual provisions to assert such defenses and that, as a matter of law, he is indebted to appellee for the debt sued for and that if he has any right of redress against anyone it is against Superior Manufacturing Company, with which he contracted. Therefore the summary judgment was correct and is affirmed.

Affirmed.

ON MOTION FOR REHEARING

Appellant now argues, for the first time on his motion for rehearing, that Article 570, Vernon’s Ann.Tex.St., providing that the assignee of a non-negotiable instrument “shall allow every discount and defense against the same which it would have been subject to in the hands of any previous owner before notice of the assignment was given to the defendant,” established a public policy to the effect that a party to a non-negotiable contract is powerless to waive or forego the right to assert his defenses against the assignee and agree to assert such defenses only against the other party to the original contract. He cites no Texas case in support of this proposition, and we can find none. We do not believe that this is the law in Texas.

The public is not interested in, or in any wise affected by, the contract in question. If public policy is involved, it is that public policy which “permits the utmost freedom of contract between parties of full age and competent understanding and requires that their contracts, when freely and voluntarily entered into, shall be held sacred and enforced by the courts * * 10-A Texjur. 204, CONTRACTS, § 103; St. Regis Candies v. Hovas, 117 Tex. 313, 3 S.W.2d 429; Reef v. Mills Novelty Co., 126 Tex. 380, 89 S.W.2d 210.

The motion for rehearing is overruled»