author: PER CURIAM.

text:
    Floyd GRAY, Appellant, v. STATE of Texas ex rel. William BROWN, Appellee.
    No. 16785.
    Court of Civil Appeals of Texas. Fort Worth.
    Aug. 5, 1966.
    Charles Dickens, Fort Worth, for appellant.
    Doug Crouch, Crim. Dist. Atty. of Tar-rant County, Gerald Weatherly, Fort Worth, for appellee.
   OPINION

PER CURIAM.

This action was brought by the State of Texas, on relation of William Brown, a candidate for the nomination as Justice of the Peace by the Democratic Party of Justice Precinct 3 in Tarrant County, Texas. Object thereof was to have it judicially declared that Floyd Gray, victor in the election for such nomination, had forfeited his right to have his name placed on the official ballot at the general election to be held in November of 1966. Following a trial before the court, without intervention of a jury, a judgment was rendered declaring the forfeiture sought.

We reverse and render according to the application here presented by appellant Floyd Gray.

Through his own ignorance the appellant failed to comply with the provisions of law —in that he did not file a statement of campaign expenditures, etc., on a day not less than seven (7) nor more than ten (10) days prior to the day of the election at which he secured the nomination of his party. He filed such on the sixth day after the election, at the same time that he filed what would have been the supplemental report thereof.

The prime legislative aim in the enactment of the Election Code of the State of Texas was “that the will of the people shall prevail and that true democracy shall not perish from the Lone Star State.” V. A.T.S., Election Code, Art. 1.01. Any question arising under the provisions of the Code should be decided with due consideration given that objective.

A question posed by the situation in the case before us relates to the meaning, if any, to be attributed to the word “knowingly” in Art. 14.09 of the Election Code as applied to an occasion of “nonfeasance”, i.e., when the guilt or fault on the part of the candidate for public office (or nomination for public office) amounts only to a want of “timely compliance” with the provisions of Art. 14.08(b). Therein it is provided that each candidate for office must file his sworn statement of gifts and loans received and of gifts, loans and payments made and all debts and obligations incurred or contracted in behalf of his candidacy at a time not less than seven (7) nor more than ten (10) days prior to the day of the election.

Art. 14.08(h) provides that “Any candidate failing to file such sworn statement at the time provided * * * shall forfeit his right to have his name placed upon the ballot at any subsequent primary, special, or general election.” Art. 14.09 provides that “Any candidate who shall knowingly permit or assent to the violation of any provision of this Chapter [Chapter 14 of the Election Code of which Art. 14.08 is also a part] by any campaign manager or assistant campaign manager, or other person, shall thereby forfeit his right to have his name placed upon the primary ballot, or if nominated in the primary election, to have his name placed on the official ballot at the general election.” It was upon the forfeiture provisions of Art. 14.09 that the State and its relator prayed for the relief decreed by the trial court.

Though Art. 14.08(b) of the Election Code has been since amended, such amendments would not affect the application of principles of construction theretofore made in the case of State ex rel. Butchofsky v. Crawford et al., 269 S.W.2d 536 (El Paso Civ.App., 1954, no writ history). In that case the candidate had failed to timely file his sworn statement within the time provided by the article (Art. 14.08(b)), there having been a delay of one day. Of this the candidate who had been defeated by Crawford in a primary election sought advantage. After reviewing various cases, to be noted in the opinion, the court held that said article should be treated as directory as to the time when the statement was required to be filed, and that the matter of whether a candidate’s failure in such respect should occasion the imposition of the prescribed penalty would be determined under the facts and circumstances of each case. In that connection the court opined that the legislative purpose of requiring expense statements was to serve the electorate in that such would be open for public inspection that the voters might determine what persons were influencing by contributing money or credit or other substantial aid to the candidate so that all might intelligently determine whether or not they should support him. The holding of the court was that there had been a substantial compliance with such legislative purpose.

Neither before the aforesaid section of Art. 14.08 was amended, nor afterward, was there any specific expression made a part thereof relative to any violation being “knowingly” committed, nor as to any compliance therewith being “knowingly” omitted. Section (h) of Art. 14.08 and Art. 14.09 have not undergone amendment since the date of the opinion in State v. Crawford, supra.

Principles of legal construction applicable to the situation in State v. Crawford and to the situation in the controversy presently before this court would not be materially distinguished. Of course, in the instant case there was a delay greater than that in the Crawford case. Here the delay was beyond the date of the election in which the appellant obtained the greater number of votes, and the nomination of his political party for the office of Justice of the Peace. Here there was no satisfaction of the purpose of having the appellant’s statement open for public inspection that the voters might determine what persons were attempting to influence the result of the election. It necessarily follows that appellant would not be entitled to prevail upon a ground of substantial compliance.

However, the evidence in the record is certain, and not a matter upon which an issue of fact is presented, that the appellant’s statement, had it been timely filed, would have correctly shown that $205.60 was the entire expense of appellant’s campaign (as of the time it should have been filed), including the filing fee, all of said amount constituting a personal expenditure. In other words we are saying as a matter of law that if the appellant’s statement had been timely filed, any public inspection thereby afforded would not have caused a voter to cast his vote either for or against the appellant on election day. Indeed, it was further shown that in the week before the election only $112.00 more was spent, of which all except $10.50 was appellant’s money. Appellant’s campaign was financially supported by those who desired to further his candidacy only to the extent of $10.50, and this at a time when there would be no requirement that such be revealed until after the election.

We are convinced that only in an instance where a candidate would intentionally and culpably delay filing the required statement (in other words when he would do so with actual or implied knowledge that the electorate would be deceived concerning the identity of those who were aiding him in his efforts to win a nomination or elective office and/or the amount of aid being received therefrom) that such “sin of omission” should justify judicial deprivation of any victory won in the subsequent election. If we are correct in this conclusion then the word or term “knowingly”, as found in Art. 14.09 (and proper to be implied in a construction of Art. 14.08 (h)) does have substance and meaning. It would mean that such delay or omission was caused or permitted in an attempt to influence the election.

It may be that proof of the mere fact of delay would establish a prima facie case by the State which if unexplained or unexcused would warrant judgment striking from the ballot at a succeeding election the name of the defaulting candidate. This we are not presently required to determine, for the state of the record suffices to establish as a matter of law that there was a complete absence of culpability on the part of the appellant or anyone else in connection with his delay in filing a statement. Furthermore, no one was thereby deceived or injured. As we see it the situation presents that rare exception to the general rule that “ignorance of the law is no excuse”. Such rule may not be invoked where to do so would defeat a legislative object and purpose. It is to be remembered that appellant was not guilty of any “sin of commission” whereby the general law of this state was violated, in consequence of which he was subjected to a penalty as in the case of a misdemeanor or felony, — and to evade the imposition of which he plead ignorance of the law. In this case, if appellant was guilty of anything it would amount only to a “sin of omission”. Because of it the State seeks to punish by depriving appellant of his private right to have his name printed on the ballot as the nominee of his party.

In the absence of any culpability connected with appellant’s delay in filing the required statement — and absence thereof is established — it is our conclusion and holding that to declare forfeiture of his right to be named on the ballot at the succeeding general election as the candidate of the Democratic Party for the office of Justice of the Peace in Precinct 3 of Tarrant County would be in conflict with and to defeat the legislative purpose declared in the Election Code.

Appellant also attacks the constitutionality of section (h) of Art. 14.08 and Art. 14.09 in its entirety on the theory that there is a defect in the caption of the Act of which they are part, and furthermore on the theory that such caption affirmatively suggests that the Act contains no penal provision. Since we are of the opinion that appellant is entitled to prevail for the reason heretofore discussed we do not find it necessary to consider any constitutional question.

The judgment of the trial court is reversed and rendered. The name of the appellant is not to be stricken from the official ballot at the general election of November in 1966.

In the interest of time, and so that the question involved may be resolved by the Supreme Court of Texas, if the parties to the suit so desire, it is ordered that no motion for rehearing shall be permitted to be filed in this court.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Justice.

license: Public Domain

text:
    L. F. SANDERS et al., Appellants, v. SELECT INSURANCE COMPANY, Appellee.
    No. 16757.
    Court of Civil Appeals of Texas. Dallas.
    June 24, 1966.
    Rehearing Denied Oct. 7, 1966.

      Wynne & Wynne, and Gordon R. Wynne, Wills Point, for appellants.
    Thompson, Coe, Cousins & Irons and Larry L. Gollaher, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

This is a venue action involving third-party defendants. The original action was filed in the District Court of Harris County, Texas by United States Homes Division of United States Finance Company, Inc. against Select Insurance Company. Plaintiff alleged that William L. Fisher had delivered to it a mortgage covering Fisher’s property in Van Zandt County to secure the payment of a promissory note; that Select Insurance Company had issued its insurance policy on Fisher’s property with knowledge of the mortgage and was therefore legally obligated to treat such fire insurance policy as though it had a loss payable clause in favor of plaintiff as mortgagee; that said property had been destroyed by fire and thereafter Select Insurance Company had wrongfully paid the total proceeds of its policy to William L. Fisher and to L. F. Sanders, his attorney, all to plaintiff’s loss and damage in the sum of $8,563.32. Select Insurance Company filed its plea of privilege to be sued in Dallas County and such plea was sustained and the cause removed.

Thereafter, pursuant to Rule 38, Vernon’s Texas Rules of Civil Procedure, Select Insurance Company brought William L. Fisher and L. F. Sanders into the case by third-party action seeking indemnity and judgment over against them for any liability which the court might find in favor of the original plaintiff. In this third-party action it was alleged that Sanders, acting as agent and attorney for Fisher, made certain fraudulent and negligent representations to Select Insurance Company in Dallas, Texas concerning the insurance proceeds and that, based upon this representation, Select Insurance Company paid the entire insurance proceeds to Fisher and Sanders. Both Fisher and Sanders filed their pleas of privilege to be sued in their respective counties of residence. Each of such pleas was controverted by Select Insurance Company based upon Subdivisions 7 and 9a, Art. 1995, Vernon’s Ann.Tex.St. Following a nonjury trial the pleas of privilege of third-party defendants were overruled and this appeal follows.

Appellants’ basic contention for seeking reversal of the trial court’s judgment, as reflected by their points two and three, is that since appellee wholly failed to prove any damages resulting from the alleged fraudulent or negligent representations on the part of appellant Sanders, the exceptions to the venue statute were not applicable and the pleas of privilege should have been sustained. We are in agreement with appellants’ contentions and reverse the judgment below.

The right of Sanders and Fisher to be sued in the county of their domicile is a right that has been repeatedly said by our courts to be a very valuable right which can only be taken away by strict compliance with one of the named exceptions contained in the venue statute. Such exception must be rigidly construed and the facts thereof established by a preponderance of the evidence before one can be deprived of his right to be sued in his home county. Clyde Yarbrough, Inc. v. Browning-Ferris Machinery Co., Tex.Civ.App., 284 S.W.2d 225; Watkins v. McCluskey, Tex.Civ.App., 284 S.W.2d 381; Atlas Assurance Co. v. Houston Fire & Casualty Ins. Co., Tex.Civ.App., 324 S.W.2d 943; and Brown v. Clary, Tex.Civ.App., 315 S.W.2d 385.

Rule 38, T.R.C.P., providing for third-party practice, and being the rule utilized by appellee to bring in appellants Fisher and Sanders, does not in any manner detract from nor weaken the effect of the venue rule announced above. In fact, Subdivision (d) of Rule 38, T.R.C.P., provides that: “This rule shall not be applied so as to violate any venue statute, as venue would exist absent this rule.”

In order to maintain venue in Dallas County pursuant to Subdivision 7 of Art. 1995, V.A.C.S., it was necessary for appel-lee to prove by a preponderance of the evidence all of the necessary elements of fraud which are:

(1) A false representation made by Sanders;
(2) The reliance thereon by appellee;
(3) Action in reliance thereon by appel-lee ; and
(4) Damage to appellee resulting from such fraud or misrepresentation.

Trinity Universal Ins. Co. v. Soliz, Tex.Civ.App., 241 S.W.2d 625; Texas Employers’ Ins. Ass’n v. McDaniel, Tex.Civ.App., 286 S.W.2d 465; Clark on “Venue in Civil Actions in Texas,” Chapter 7, pp. 54-55; and North America Life Ins. Co. v. Wilburn, Tex.Civ.App., 392 S.W.2d 364.

In North America Life Ins. Co. v. Wilburn, supra, we had occasion to discuss and pass upon the question of proof essential to sustain the element of damages required to be shown as a prerequisite for maintaining venue in Dallas County. There, we said:

“However, it is not necessary in this venue hearing that appellees should establish the exact amount of their damages suffered because of the fraud. True, they did have to establish some damage as part of their cause of action but the exact amount need not be proved. In Cockburn v. Less, Tex.Civ.App., 257 S.W.2d 470, this court, speaking through Mr. Justice Cramer, said: ‘Appellant also asserts that the extent of the damage must be proved. We cannot agree with this contention. The court had jurisdiction over the amount involved in the pleadings. No plea in abatement asserting the amount alleged had been fraudulently alleged to confer jurisdiction on the trial court was filed. The venue fact was whether actual damage had been suffered, not the exact amount thereof.’ See also Campbell v. McCown, [Tex.] Civ.App., 176 S.W.2d 226; Maulding v. Niemeyer, [Tex.] Civ.App., 241 S.W.2d 733; First Nat’l Bank of San Angelo, Texas v. Hill & Combs, [Tex.] Civ.App., 177 S.W.2d 75; 60 Tex.Jur.2d § 218, p. 105.”

Appellees admit the rule stated by us in Wilburn, supra, but say in their brief:

“Justice Williams stated in that case that it is only necessary to establish some damage. We suggest that this has been done, and that for venue purposes a third-party plaintiff’s proof of such potential damages is sufficient. Any other rule would make a mockery of the third-party rule, and would promote a multiplicity of suits.”

By this argument appellee concedes, and the record reveals, that no evidence of actual damage exists. However, it says that potential damage, or damage which might possibly be awarded in the future, is sufficient.

During oral argument before this court counsel for appellee frankly admitted that he had been unable to find any Texas authority holding that proof of potential damage, as opposed to proof of actual damage, was sufficient to meet the requirements of the exception to the venue statute. We are likewise unable to find any such authority and do not feel that the rule should be extended, as proposed by appellee.

Nor do we think that the arguments concerning multiplicity of actions is sufficient to overcome the general rule of venue. Emphasis should be placed upon the fact that appellants are not necessary parties to the original suit. They are brought in as third-party defendants for one purpose only and that is to allow appellee to recover indemnity in the event a final judgment is cast against appellee in the main suit.

Our Supreme Court in Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, considered the question of venue in an action wherein a cross-action was filed for contribution in the event judgment should be rendered against the defendant in the main suit. Chief Justice Alexander, speaking for the Supreme Court, said:

“Under the above holding, Amberson’s cross-action against the third party is distinct and severable from the controversy involved in plaintiffs’ suit against the main defendant. Consequently, the cross-action must be treated as an independent suit, and the venue thereof must be tested on the merits of the cross-action, and independent of the venue of plaintiffs’ suit.” (Citing cases.)
* * * * * *
“It may be conceded that it would be more convenient to try the controversy among all the parties in a single suit. Certainly it would avoid a multiplicity of suits. But in view of the positive provisions of Article 1995 to the effect that no person shall be sued out of the county of his domicile, except in the instances therein named, we would not be justified in engrafting an additional exception to the statute merely to avoid a multiplicity of suits.”

A similar situation was presented to the Eastland Court of Tex. Civil Appeals in United States Steel Corp. v. Strong Drilling Co., 272 S.W.2d 791, which involved the right of one who had been brought into a case by cross-action to file a plea of privilege to be sued in the county of his own residence. The court, following the Supreme Court’s opinion in Union Bus Lines v. Byrd, supra, said:

“The steel corporation is not a necessary party to the suit brought by Strong against Dunigan. Strong’s suit against the steel corporation is an independent cause of action asserted in the alternative against Dunigan. It is distinct and sev-erable from Dunigan’s suit against Strong and Strong’s cross action against Dunigan. Venue of Strong’s suit against the steel corporation must be tested on the merits of that suit without regard to the venue of Dunigan’s suit against Strong. The fact that it would be more convenient to try all these cases in one suit and that such would prevent a multiplicity of suits does not control the fact that if Strong is to maintain its suit against the steel corporation in Stephens County it must establish a right to do so under some exception to Article 1995.”

Based upon these authorities it is evident that the cause of action asserted against appellants is distinct and severable from that evidenced by the main suit now pending in Dallas County. The right guaranteed by the venue statute is of paramount importance and controls over such argument relating to multiple causes.

Of course, the same argument relating to the establishment of some element of damages is equally applicable to the provisions of Subdivision 9a, Art. 1995, V.A. C.S. as to Subdivision 7 thereof. It is therefore apparent that appellee has wholly failed to establish one of the essential and necessary elements to bring into existence the exceptions to the venue statute. Accordingly, appellants’ points two and three are sustained.

Appellants’ first point relates to the merits of the case and need not be considered.

For the reasons assigned the judgment of the trial court is here reversed and rendered transferring the cause of action as to appellant Sanders to the District Court of Van Zandt County, Texas and as to appellant Fisher to the District Court of Anderson County, Texas.

Reversed and rendered.


author: COLLINGS, Justice.

text:
    Jeanne TRIPLETT, Appellant, v. Flora J. SHIELD et al., Appellees.
    No. 4057.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 9, 1966.
    Rehearing Denied Oct. 7, 1966.

      Hardeman, Smith & Kever, San Angelo, J. M. Donald, Jacksboro and Justin A. Ke-ver, San Angelo, for appellant.
    Franklin & White, Leonard L. Franklin, Austin, Woodward & Johnson, Halbert Woodward, Rob 0’Ha.ir, Coleman, for ap-pellees.
   COLLINGS, Justice.

This suit was brought in 1939 by Hubert I. O. Shield, referred to as I. O. Shield, for the unpaid balance on five promissory notes executed by Elgean Shield and Flora Shield and for foreclosure of a lien on the land described in a deed of trust executed by the defendants on December 19, 1936. I. O. Shield died and by will his estate passed to his wife Hopilee Shield. Hopilee Shield died on July 25, 1949, leaving a will which was admitted to probate in California and a will which was probated in Montague County, Texas which, if valid, gave her property to her brother, Frank Triplett. Jeanne Triplett is the surviving wife of and claims as the sole beneficiary under the will of her deceased husband, Frank Triplett. The case was brought to trial in 1965. Plaintiff and defendants, Elgean Shield and wife, filed motions for summary judgment which were overruled. A jury was empaneled but after evidence had been introduced the parties agreed for the jury to be dismissed and the cause was submitted to the court for determination. The court entered judgment for the defendants and Mrs. Triplett has appealed.

In appellant’s first point it is contended that the court erred in overruling plaintiff’s motion for summary judgment asserting that the exhibits in evidence and admissions by defendants established plaintiff’s right to recovery and that defendants presented no evidentiary data raising an issue as to any material fact. The point is overruled. A denial of a motion for summary judgment is interlocutory and not ap-pealable. This is not a case in which the court granted a motion by one of the parties for summary judgment and refused the motion of the opposing party. The court here overruled the motions of both .parties. There was then a trial on the merits before the court where there were genuine fact issues and judgment was rendered against appellant and for appellees. Under such circumstances it would not be proper to review the action of the trial court in overruling a motion for summary judgment. Tobin v. Garcia, (1958), 159 Tex. 58, 316 S.W.2d 396; Ackermann v Vordenbaum, Tex., 403 S.W.2d 362.

After a judgment had been rendered at the trial upon the merits the court, in response to appellant’s request, made findings of fact and conclusions of law. For a better understanding of the material and controlling issues involved we set out in full the findings of fact and conclusions of law made and filed by the trial court:

“1. On November 22, 1929, Leon Shield and wife, Emma Shield, I. O. Shield (same person as Hubert I. O. Shield) and wife, Vera Shield, Karl E. Wallace and wife, Camille Shield Wallace, Shield Brown and wife, Mary Brown, and El-gean Shield, a single man, executed and delivered their deed of trust upon 2571 acres of land in Coleman County, Texas, to F. O. Ketcham, trustee, to secure payment of six notes made by them to F. O. Ketcham Mortgage Company, the first five for $3200.00 each and the sixth for $16,000.00, payable — from January 1, 1931, to January 1, 1940.
2. Thereafter (January 8, 1930) the same grantors executed and delivered a correction deed of trust bearing the same date to the same trustee to secure payment of the same notes and covering the same land better described.
3. F. O. Ketcham Mortgage Company assigned said notes and lien to Kansas City Life Insurance Company on February 21, 1930.
4. On December 19, 1936, I. O. Shield conveyed to Flora Shield, wife of Elgean Shield, as her separate property, an undivided %5ths interest in 2031 acres of said land. This was a general warranty deed reciting a consideration of $6,000.00 paid and to be paid out of grantee’s separate property, $1,000.00 thereof in cash and the remaining part to be evidenced by five notes executed by grantee, joined by her husband, Elgean Shield. Other than the vendor’s lien securing payment of said five notes there were no exceptions or qualifications to the general warranty contained in said deed. No mention whatsoever was made of the liens and notes referred to in Findings Nos. 1 and 2 above. The conveyance of said %5ths interest was the only consideration for the $1,000.00 so paid and the five notes so given. The following payments and none other have been made on said five notes, towit: $100.00 on June 21, 1937; $200.00 on June 23, 1937; $51.00 on August 28, 1937; $40.00 on September 15, 1937; $75.00 on September 20, 1937; $100.00 on December 1, 1937; $50.00 on January 18, 1938. All such payments were credited on the first of said notes.
5. On the same day, December 19, 1936, Flora Shield and Elgean Shield executed and delivered to the said I. O. Shield the five promissory notes mentioned in Finding No. 4 above, the notes bearing six percent interest, with past due principal and interest bearing interest at the rate of ten percent per annum, and containing provisions for ten percent attorney’s fees and accelerated maturity in case of default. At the same time also the said Flora and Elgean Shield made and delivered their deed of trust upon said 2031 acres of land to E. P. Wood-ruff, trustee, to secure payment of said five notes, the deed of trust containing a general warranty clause and purporting to cover the whole interest in said land.
6. Kansas City Life Insurance Company assigned to First Coleman National Bank of Coleman, Texas, the last three of the notes referred to in Finding No. 1 above by instrument dated February 24, 1938, reciting that the first three of said notes had been paid.
7. First Coleman National Bank appointed S. H. Gray substitute trustee in place of F. O. Ketcham on March 8, 1938.
8. On April 8, 1938, the said S. H. Gray, substitute trustee, sold an undivided ^sths interest in the land covered by the November 22, 1929, deeds of trust, to First Coleman National Bank for $10,-000.00. This was done regularly in accordance with the power of sale contained in the correction deed of trust dated November 22, 1929, sale being at public auction, following proper notice. Unpaid on said 1929 notes and deed of trust at the time of foreclosure was the sum of $26,411.62, principal, interest and taxes. The x%sths interest in the land foreclosed upon included the %sths interest so conveyed by I. O. Shield and wife to Flora Shield.
9. On October 13, 1938, First Coleman National Bank conveyed said 2571 acres to Elgean Shield for a consideration of $32,000.00 represented by 20 notes payable to Mrs. Lillian Winterbotham aggregating $30,000.00, and four notes of $500.00 each payable to Brown Bros., said notes being executed by Elgean Shield, Flora Shield, Karl Wallace and Camille S. Wallace, the vendor’s lien being retained to secure payment of such notes.
10. On October 13, 1938, Elgean and Flora Shield conveyed to Camille S. Wallace as her separate property an undivided 1%oths interest in said 2571 acres and Mrs. Wallace assumed as her primary obligation 1%oths of the indebtedness mentioned in Finding No. 9 above.
11. On December 7, 1950, Camille S. Wallace and Karl B. Wallace conveyed to Elgean Shield all their right, title and interest in 2031 acres of said 2571 acres of land, being the same 2031 acres as that mentioned in Finding No. 4 above and that which is concerned in this Cause. In this deed the Wallaces retained 1%oths of the royalties (non-participating) on oil, gas and other minerals.
12. I. O. Shield died testate and on July 12, 1947, his will was admitted to probate in Cause No. 3830, Montague County, Texas. His widow, Hopilee T. Shield, was made independent executrix and succeeded to the ownership of the December 19, 1936, notes, subject to the contract of Donald & Donald, attorneys, for one-half thereof.
13. Hopilee T. Shield died on July 25, 1949, leaving a will made on July 20, 1949, which was admitted to probate in Cause No. 297,419, Superior Court, Los Angeles County, California, on August 22, 1949, and in which will she gave fifty percent of her residuary estate to Louis A. Eshman, trustee, the principal or income of such trust estate to be paid to the Cedars of Lebanon, Los Angeles, California, for cancer research and hospitalization of indigent cancer patients. The remainder of her residuary estate she gave to her doctor, the said Louis A. Eshman, whom she appointed executor. The December 19, 1936, notes were a part of such residuary estate.
14. On October 24, 1949, in Cause No. 4006, the County Court of Montague County, Texas, entered an order admitting to probate a purported will of Hopilee T. Shield, dated June 8, 1948, which, if valid as her last will and testament, gave her property to her brother, Frank Triplett, and made him executor.
15. Following the death of the said Hopilee T. Shield the first pleading filed in this suit indicating such death and making any sort of substitution of parties on account of such death was in intervention filed by Frank Triplett individually on May 20, 1954.
16. Said Frank Triplett died on January 19, 1961, and his will was admitted to probate in McLennan County, Texas, in Cause No. 19,534, on September 7, 1961. His widow, Jeanne Triplett, was the sole beneficiary and independent executrix of his estate.
17. On November 5, 1963, Louis A. Eshman, individually, made an assignment purporting to assign any and all rights which he had in the five December 19, 1936, notes to ‘Frank Triplett, his heirs and assigns, forever.’
18. Said five notes were delivered by I. O. Shield to the Clerk of this Court and filed in the papers of this Cause along with the original petition herein on April 7, 1939.
19. In connection with the conveyance from I. O. Shield to Flora Shield on December 19, 1936, there was no agreement or understanding that the said Flora Shield should assume any part of the obligations mentioned in Finding No. 1 hereof or that she should take the property subject to any part of same.
20. Although the makers of the notes mentioned in Finding No. 1 above were jointly and severally liable to the holder thereof, as between and among such makers it was I. O. Shield’s obligation to pay %5ths thereof. In connection with the conveyance from I. O. Shield to Flora Shield there was no agreement or understanding that Elgean Shield should pay I.O. Shield’s %5ths part of said 1929 obligations or that he should pay any more than his original share thereof.
CONCLUSIONS OF LAW
1. The foreclosure of the deed of trust and the trustee’s sale mentioned in Finding No. 8 above obliterated the deed dated December 19, 1936, and the interest in land which had been conveyed to Flora Shield by that deed was entirely lost to her. The holder (payee) of the five notes given therefor was obligated thereupon to return them to the makers and was not entitled to enforce the same. Such payee having owned said notes until his death, long after all of them had fallen due, no subsequent owner has been or is entitled to enforce them.
2. By reason of Finding No. 15 above plaintiff’s action is barred by the four year statute of limitation and laches.
3. The ownership of the five notes dated December 19, 1936, (if they were still surviving obligations) became the property of Louis A. Eshman, trustee, and Louis A. Eshman, individually, by reason of Finding No. 13 above, subject only to administration.
4. The subsequent order probating the previous instrument as Hopilee T. Shield’s will did not divest such rights of the said Louis A. Eshman in his capacities aforesaid.
5. The assignment from Louis A. Esh-man to Frank Triplett, made over two years after the latter’s death, was void.
6. In light of Finding No. 18 there is no presumption of ownership in plaintiff from the mere fact that her attorneys offered the five notes in evidence. If said notes still survive as valid obligations plaintiff does not own them.
7. Even if the obligations of the notes have survived and plaintiff is entitled to all the relief it seeks, there is no liability on the part of the Bank to Elgean Shield, because the Bank conveyed good title by its deed of October 13, 1938. The fact that Mr.. Shield might, by taking title, activate the warranty made by him in the deed of trust made on December 19, 1936, would not be a breach of warranty on the part of the Bank.
8. Plaintiff is not entitled to recover against any defendant; Elgean Shield is not entitled to recover against the Bank; the Bank has no recovery against the Wallaces.
Made and signed this the 21st day of January, 1966.”

The evidence shows that in 1936, I. O. Shield conveyed a %5ths interest in 2,031 acres of land to Flora Shield as her separate property and received the notes sued upon as a part of the consideration therefor. The notes in question were executed by Flora Shield and her husband Elgean Shield. At the time of the execution of said notes and deed there was a prior lien on the land. Such prior lien was evidenced by a deed of trust dated November 22, 1929, securing the payment of six notes of the same date in the original total amount of $32,000.00. The First Coleman National Bank on February 24, 1938, by assignment, became the owner of the balance due on the 1929 indebtedness and deed of trust lien securing same. On April 8, 1938 the substitute trustee under such deed of trust sold an undivided ^sths interest in the land covered by the 1929 deed of trust to the First Coleman National Bank. The interest in the land foreclosed upon included the %5ths interest conveyed by I. O. Shield to Flora Shield.

We overrule points by appellant contending, in effect, that the court erred in finding the conveyance by I. O. Shield to Flora Shield on December 19, 1936, was not taken by the grantee subject to the prior 1929 lien on the land. The deed by I. O. Shield recited that in consideration of $1,000.00 cash and the notes here sued upon that he “granted, sold and conveyed” his entire undivided %sths interest in the land described. The deed also contained the following provisions:

“TO HAVE AND TO HOLD the above described premises, together with all and singular the lights and appurtenances thereto in anywise belonging unto the said Flora Shield, as her separate property and estate, her heirs and assigns forever and I do hereby bind myself, my heirs, executors and administrators, to Warrant and Forever Defend, all and singular the said premises unto the said Flora Shield, as her separate property and estate, her heirs and assigns, against every person whomsoever lawfully claiming, or to claim the same, or any part thereof. * * * ”

The deed to Flora Shield was not a quitclaim. Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62. The deed was a conveyance of fee simple title with a covenant of general warranty. Vernon’s Ann.Tex. Civ.St. Article 1292. A covenant of general warranty means that the real property conveyed is free from incumbrances. V.A. T.S., Article 1297. Contrary to appellant’s contention it is not material that Flora and Elgean Shield had knowledge of the prior lien. City of Beaumont v. Moore, 146 Tex. p. 46, 202 S.W.2d 448, (1947); Chapman v. Parks, 347 S.W.2d 805, (Ct.Civ.App.1961, n. r. e.); Compton v. Trico Oil Co., 120 S.W.2d 534, (Ct.Civ.App.1938, error ref.); Rives v. James, 3 S.W.2d 932, (Ct.Civ.App.1928, error dis.). The finding is not against the great weight and preponderance of the evidence. We overrule appellant’s points urging, in effect, that the court erred in finding that I. O. Shield was obligated to pay %5ths of the notes dated November 22, 1929, and that there was no agreement that Elgean Shield would pay that portion of said notes. I. O. Shield was one of the makers of the 1929 Deed of Trust creating the prior lien on the land involved. The 1936 deed by I. O. Shield to Flora Shield was a warranty deed and there was no provision in the deed that the conveyance was subject to the prior lien. There was no evidence that Elgean Shield agreed to pay that portion of the 1929 notes which I. O. Shield was liable for and which were secured by the prior lien. A general warranty clause includes a covenant against incumbrances. A prior lien is an incumbrance. V.A.T.S., Article 1298. It is held that a grantor in a general warranty deed must discharge all liens and in-cumbrances incurred prior to a conveyance which are not assumed by the grantee. Wolff v. Commercial Standard Insurance Company, 345 S.W.2d 565, (Ct.Civ.App., 1961, n. r. e.), and cases cited therein. Such findings are not against the great weight and preponderance of the evidence.

We also overrule appellant’s points contending', in effect, that the court erred in finding that the sale by the substitute trustee to the Coleman bank on April 5, 1938, was done regularly; in finding that the conveyance by the substitute trustee to the bank obliterated the deed dated December 19, 1936, and that the payee or holder of the promissory notes of that date was obligated to return them to the makers. Such findings are not against the great weight and preponderance of the evidence. Appellee offered in evidence the deed of trust purporting to have been executed by Leon L. Shield, I. O. Shield, El-gean Shield and others on November 22, 1929, covering 2571 acres of land and reciting that such deed of trust secured six promissory notes executed by the makers in the total principal sum of $32,000.00. It was shown that the First Coleman National Bank became the owner of the balance of such indebtedness and the lien securing same. There was also introduced in evidence a substitute trustee’s deed conveying 1%5ths of said 2571 acres to the First Coleman National Bank on April 5, 1938, a deed from Elgean Shield, Flora Shield, Karl E. Wallace, Camille Wallace and Shield Brown to the bank, dated April 6, 1938, and a deed from the bank to Elgean Shield on October 13, 1938. These instruments speak for themselves concerning the regularity of the sale by the substitute trustee to the bank. The court found that the sale by the substitute trustee to the bank was made regularly in accordance with the power of sale contained in the correction deed of trust and that the sale was made at public auction following proper notice; that there was unpaid on said 1929 notes and deed of trust at the time of the foreclosure sale the sum of $26,411.62 principal, interest and taxes, and that the ^sths interest in the land foreclosed upon included the %5ths interest conveyed by I. O. Shield to Flora Shield. Appellant’s covenant against incumbrances was broken upon execution of the deed by I. O. Shield to Flora Shield on December 19, 1936. This is true because an incumbrance existed at the time of the execution of the deed. The foreclosure of the prior lien wiped out the 1936 deed from I. O. Shield to Flora Shield resulting in loss of the property there conveyed. This constituted a failure of consideration for the notes given for the property and the deed of trust securing same.

We also overrule appellant’s contention that the doctrine of after acquired title is applicable and that all title owned by Elgean Shield and Flora Shield in the 2,031 acres of land on the date of the execution of the deed of trust by them in 1936, or which they or either of them subsequently acquired passed under the warranty contained in said deed of trust, is covered by the deed of trust lien and is subject to foreclosure in satisfaction of said notes. In our opinion the doctrine of after acquired title has no application to 'the facts in this case. That doctrine rests on the covenant of warranty contained in a deed or deed of trust. In the instant case I. O. Shield executed a warranty deed in consideration of $1,000.00 cash and the notes sued upon. There was a breach of warranty because of the existence of a prior lien, and the property for which the notes were given was lost because of the grantor’s breach of warranty. The fact that Elgean Shield thereafter purchased the property from the bank thereby acquiring title to the land which I. O. Shield conveyed to Flora Shield, but was lost by foreclosure of a prior lien does not make applicable the doctrine of after acquired title.

The disposition made of the points discussed requires that the judgment be affirmed. We have examined other points urged by appellant and find no reversible error.

The judgment is affirmed.


author: LANGDON, Justice.

text:
    Fred SALMON, Appellant, v. Raymond SALMON et al., Appellees.
    No. 16733.
    Court of Civil Appeals of Texas. Fort Worth.
    June 24, 1966.
    Rehearing Denied Sept. 16, 1966.
    Second Motion for Rehearing Denied Oct. 7, 1966.

      Paul Donald, T. B. Coffield, Bowie, Ernest May, Fort Worth, for appellant.
    Earl C. Fitts, Nocona, Fillmore & Fillmore, and H. Dustin Fillmore, Wichita Falls, for appellees.
   OPINION

LANGDON, Justice.

Fred Salmon, appellant, sued the legal heirs of his sister, Maria Hoben, deceased, the executors named in her will and the temporary administrators of her estate to recover the reasonable value of services alleged to have been rendered by him to Tom and Maria Hoben, a childless couple, during their respective lives. The cause of action grows out of an alleged oral contract entered into by Tom and Maria Hoben and appellant in 1920 under the terms of which Tom and Maria Hoben promised to will their entire estate to him in consideration of his moving nearby and rendering personal services to them during their respective lives. Tom Hoben died testate in 1940. The appellant was not mentioned in his will. His principal beneficiary was his surviving widow, Maria Hoben. Maria Hoben died testate on February 18, 1960. The principal beneficiary in her will was Raymond Salmon. Appellant claims he rendered the services required of him under said contract and is entitled to recover at least $142,700.00, the reasonable value thereof from the estate of Maria Hoben. Appellant alleges the personal services were to-wit: ranch hand, business manager and nurse from May 17, 1920, until the death of Maria Hoben on February 18, 1960, a period of 40 years.

The appellant’s case was submitted to the jury on four special issues presumably as requested by him. None of his requested issues were refused. He made no objections to the charge prior to its submission. By its answers the jury found that (1) T. M. and Maria Hoben did not enter into the alleged agreement; (2) appellant performed valuable services for them, “between 1920 and February 18, 1960”; (3) such services were performed for and with the knowledge of T. M. and Maria Hoben; and (4) the reasonable value of the services rendered for such period was $27,500.00.

The court in sustaining the appellees’ motion for judgment, and in rendering the judgment it did, denied any recovery for appellant.

By four points of error the appellant contends that (1) the verdict affords no basis for the judgment, (2) it was error to deny him judgment for $27,500.00 according to the verdict, and (3) and (4) the evidence was not competent or sufficient to support the jury’s finding that the alleged contract was never made. He takes the position that the alleged agreement was established as a matter of law.

We affirm.

In the case of Scott v. Walker, 141 Tex. 181, 170 S.W.2d 718 (1943), the Supreme Court of Texas in a fact situation similar to the one here involved pointed out the legal significance of establishing an oral contract in holding that, “While the contract is unenforceable by reason of the statute of frauds, it is nevertheless important to the plaintiff, suing for the value of services, to establish the contract, in order to show that the services were not gratuitously rendered and that the suit is not barred by limitation. (Cases cited.) Without proof of the contract, limitation begins to run from the time of the performance of the services. (Cases cited.)”

Under the Scott case, the appellant in this case not having established the contract failed to show that his services were not gratuitously rendered and that his cause of action for the reasonable value thereof was not barred by limitation. Moore v. Rice, Tex.Civ.App., 100 S.W.2d 973 (Eastland 1937, no writ history). In Martin v. De La Garza, Tex.Civ.App., 38 S.W.2d 157 (San Antonio 1931, Dismissed), it is stated;

“' “The rule is well settled that, where persons are living together as one household, services performed for each other are presumed to be gratuitous, and an express contract for remuneration must be shown or that circumstances existed showing a reasonable and proper expectation that there would be compensation.” Rockowitz v. Rockowitz (Tex.Civ.App.) 146 S.W. 1070, 1071.’ ” To the same effect for persons related by blood or marriage see 62 Tex.Jur.2d 475, § 6, and cited authorities.

In the case at bar the persons involved were related by blood and marriage and living together as one ranchhold rather than household. They lived nearby in separate houses on and operated the same spread as ranch and farm partners. The appellant, by virtue of the location of the ranch roadway, of necessity passed by the Hoben home to the main road on trips to town. When he took his laundry to town he took the Hoben’s laundry and brought it back with his. The mail and groceries were handled in the same manner. This is not an un-rural thing to do. Persons in rural areas are neighborly and in particular when they are partners. They assist neighbors who are not partners with roundups, branding, fixing windmills and other chores and do it without compensation or the thought of expectation of it for neighbors who are short on hands, in ill health or otherwise unable to participate.

Since the appellant failed to establish the agreement, his only theory of recovery, by jury verdict the statute of limitations begins to run from the time any of such services are performed or commenced pursuant to the alleged contract. In the instant case the commencement date was May 17, 1920. Because of his failure to establish the contract by verdict the appellant is limited to recovery only for that period not barred by the statute. He failed to request in substantially correct form, or in any form, a pertinent element of his cause of action. It is presumed on appeal that the trial court found facts necessary to support its judgment. As reflected elsewhere in this opinion there was ample evidence to support such findings- and specifically that he rendered no services to Maria Hoben during the remaining years of her life and in particular the period not barred by limitation. We find no evidence or insufficient evidence to support a finding to the contrary. Had the appellant’s alleged agreement been established by jury verdict he would have been entitled to recover the reasonable value of his services for the entire period, 1920 to 1960. Having failed he may recover compensation only for the service rendered during the period not barred by the two year statute of limitations. Article 5526, § 4, Vernon’s Ann. Tex.Civ.St. The appellant plead, tried and submitted his cause of action solely on the right to recover the reasonable value of his services for the entire 40 year period pursuant to the alleged oral agreement. He sought no alternative recovery for the services, if any, for the period not barred.

The appellant relied solely on the alleged oral agreement. He did not plead in the alternative for recovery on quantum meruit for the value of his services for the period not barred. Since he requested no issue thereon and obtained no jury finding as to the reasonable value of his services for such period he is not entitled to any recovery. The appellant chose instead the all or nothing route and failed.

Article 5538, V.A.T.S., would toll the statute of limitations for a period of twelve months following the death of the decedent. The appellant states in his brief, assuming certain facts to be true, that he was entitled to judgment for at least the value of his services for “10 months and 28 days before Mrs. Hoben died."

At this point in appellant’s brief there appears a most pertinent and succinct statement, “The trouble was, there was no verdict nor requested issue how much that was.” Both parties claim it was the duty of the other to request a fifth issue inquiring as to the value of services for the period not barred. The appellant contends that appellees waived their plea of limitation in failing to request such issue or one as to how much of the $27,500.00 was barred and therefore he is entitled to judgment for the entire amount of $27,500.00. This because limitation is defensive and the party relying thereon must request submission of any fact issue raised by the evidence with respect to the bar.

We disagree with appellant’s conclusion and are of the opinion that under this record he is neither entitled to judgment for $27,500.00 or another chance to try his law suit. The appellant in his brief confesses that none of the cases cited by him “ruled upon facts like ours.”

In order to recover on quantum meruit for personal services expended in behalf of another, the reasonable value of the services performed must be alleged and proved. Parks v. Kelley, Tex.Civ.App., 126 S.W.2d 534 (Amarillo 1939, no writ history) ; Pearson v. Laws, Tex.Civ.App., 174 S.W.2d 62 (Austin 1943, no writ history). In the latter case the court held that judgment for plaintiff in an action by a daughter for reasonable value of services rendered to her father in his lifetime was improperly rendered where evidence did not fix any value of services sued for on which jury verdict or judgment could be based.

“In suits to recover on a quantum meruit, as in other cases, only such matters are in issue as have been raised by the pleadings of the parties. * * * ” 62 Tex.Jur.2d 495, § 18 (citing Manett, Seastrunk & Buckner v. Terminal Building Corp., 120 Tex. 374, 39 S.W.2d 1, 77 A.L.R. 1122); continuing in the same text, “In accordance with general rules, the pleadings and proof must correspond; a material variance will prevent a recovery. When the plaintiff relies solely on an express contract he cannot recover on a quantum meruit, but must prove performance of that contract (citing Gammage v. Alexander, 14 Tex. 414; Jones v. Brazile, White & W.Civ.Cas.App., § 299) * * * If the plaintiff has also declared on a quantum meruit in the alternative, he can recover on either count that is properly pleaded and supported by the proof.” See cited authorities which include Johnson Aircrafts v. Eichholtz, Tex.Civ.App., 194 S.W.2d 815 (Fort Worth 1946, ref., n. r. e,), and Whiting v. Dugan, 39 S.W. 148 (Court of Civ.App. of Tex., 1896, error ref.).

The appellant failed to allege, prove or request an issue as to the value of his services for the unbarred period. He therefore has no basis for recovery. Having failed in this respect and having made no objections to the charge prior to submission he has waived same. He may not urge them for the first time on appeal. Rules 274 and 279, Texas Rules of Civil Procedure; Stuckey v. Union Mortgage & Investment Company, Tex.Civ.App., 383 S.W.2d 429 (Tyler 1964, ref., n. r. e.); Texas Employers’ Insurance Ass’n v. Neuman, Tex., 379 S.W.2d 295 (1964).

“ * * * an essential prerequisite to liability in quantum meruit is the acceptance of benefits by the one sought to be charged, rendered under such circumstances as reasonably to notify him that the one performing the services was expecting to be paid compensation therefor. It follows that not every acceptance of another’s services will imply an intent on the party of the beneficiary to pay therefor; certainly no promise to pay will be inferred where the facts are inconsistent with that inference. * * *” 62 Tex.Jur.2d 470, § 4.

“The law as to quantum meruit rests on the principle that a person will be compelled to pay for services if he stands by and permits another to render those services under such circumstances as to convince any reasonable man that they were being done with the expectation of being paid for them and no effort is made to prevent the rendition of the services. Where services are rendered by one person for another, that are knowingly and voluntarily accepted, the law presumes, as a general rule, that the services were given and received in the expectation of being paid therefor, and implies a promise to pay their reasonable worth. On the other hand, where the circumstances tend to show that there was no expectation of payment, or that the services were rendered with the understanding that they were to be gratuitous, the law will not imply a promise to pay. Thus, if services are rendered in expectation of remuneration by a legacy, and there is nothing in the conduct or language of the person benefited to induce such an expectation, the services are deemed to be voluntary and gratuitous. And where the relation of the parties is such that a contract to pay for services would be a breach of good faith and illegal, no contract to pay will be implied from an acceptance of the services.” 62 Tex.Jur.2d 472, § 5.

There is testimony that all of the boys, including appellant, were attentive to Mrs. Hoben. Certainly all of the services and kindnesses which were bestowed upon Maria Hoben by her brothers and other relatives was for and with her knowledge but not with the expectation of receiving compensation therefor, with the exception of the appellant. There was no issue or finding that the services, if any, accepted by Maria Hoben from appellant during the last years of her life were rendered under such circumstances as reasonably to notify her that she was to pay compensation therefor. Any one of her brothers or other relatives could have qualified under the wording of the fourth issue for the value of services not conditioned on the finding of an express oral contract.

The record did not justify conclusions that the Hobens knew or had any reason to believe that the appellant expected remuneration for his services. Such services must be actually bargained for. See 7 A.L.R.2d 117 and cases cited thereunder.

“* * * in Hoyle v. Smith (1917) 113 Miss. 729, 74 So. 611, it is declared that the evidence sufficient to overcome the presumption of gratuity arises as to services rendered by one member of a family to another should be ‘clear and positive’ to prevent fraudulent claims against the estate of decedents brought forward by relatives for the first time after the death of the party whose estate is sought to be charged, and that such after-death quantum meruit, open-account claims should be viewed with suspicion. See also Bell v. Oates (1910) 97 Miss. 790, 53 So. 491.” 7 A.L.R.2d 27.

The evidence was neither clear nor positive in support of the agreement alleged by appellant. Under the facts in this record and the reasonable inferences to be drawn therefrom, the jury finding that no agreement was made has ample support.

Scott v. Walker, supra, in which the same defenses as here were plead, including limitations, was submitted on three issues, none of which specifically pertained to limitation. The jury found that personal services as housekeeper and nurse were rendered at the special instance and request of A. E. Bower (emphasis ours). By the second issue the jury was asked to find the reasonable value of the services, if any, for each of the years 1925 to 1939, inclusive. The court stated, “the alleged agreement by Bower to devise the property * * * is an essential element * * * and having failed to establish the agreement, she can recover compensation only for the services rendered during the years 1938 and 1939,” which were not barred by the statute of limitation. Such services however were rendered at the special instance and request of Bower. They were bargained for and not a gratuity. In the case at bar, the jury’s finding of “no agreement” eliminated the only basis for any recovery. The answers to special issues 2, 3 and 4 to the effect that valuable services were rendered during the period in question, with the knowledge and consent of the Hobens, of the reasonable value of $27,500.00 do not call for the making of a contract or as to a promise to pay for services either in property or in money. There is no finding that the services were rendered at the special instance and request of the Hobens. It would be difficult indeed to be the recipient of favors or kindnesses without knowledge thereof or consent. Rendering of a favor is not sufficient to put someone on notice that payment for such favor is expected. It does not constitute a finding that such services were bargained for or that they were not gratuitously given.

Here the pertinent issue as to value was for services “between 1920 and February 18, 1960.” (Emphasis ours.) It was not broken down into periods, including the one barred. The jury could very well have determined that the amount found was for the first and third ten year periods or for the first twenty years. Under the verdict the trial court had no basis for determining the amount earned, if any, during the period not barred, nor does this court. $27,500.00 averages $687.50 per year and approximately $57.29 plus per month for the 40 year period. But for which years or months is not established. Appellant was away from the area for extended periods of time during the entire period he claims such services were rendered.

Appellant and wife moved near the Hobens on May 17, 1920 and appellant and Tom Hoben became ranch partners and shared.in the grain. This partnership continued until about 1938, at which time Hoben sold his interest in the cattle business to the appellant and the latter from that time on leased the land from Hoben and operated the ranch on his own. Mr. Hoben and his wife reserved for their own use the home and the grounds around it. They were not engaged in any farming or ranching operations.

It is undisputed that for one month in 1957, 12 months in 1958, 12 months in 1959 and one month and 18 days in 1960, a total of approximately 26½ months prior to Mrs. Hoben’s death she received help which cared for her every need at a cost of $30,985.78 paid for out of her own funds.

During this period of her life, which includes the 10 months and 28 days for which appellant claims compensation for his services, Maria Hoben had domestic help to care for her yard and home, a nurse who cared for her physical needs and a guardian who took care of her business and supervised her care. Thus, appellant’s alleged services as ranch hand, business manager and nurse, particularly during the last two or three years of Maria Hoben’s life, is not in keeping with the facts. As ranch hand the appellant served his own needs — and others served as business manager and nurse for Mrs. Hoben at her expense. This may explain why the issue on value of services was worded as it was and there was no pleading or requested issue on value for the period not barred by limitation.

We have carefully examined the statement of facts. It contains evidence sufficient to support a finding that the alleged contract was entered into. On the other hand there is ample evidence to support the jury’s finding that it was not. Thus, an issue of fact was made which the jury resolved against the appellant.

The duty of this court is to consider the evidence and the inferences to be drawn therefrom in the light most favorable to the prevailing party. To accept as true that testimony and the reasonable inferences therefrom which tends to support the verdict. The jury was the judge of the facts proved and all reasonable inferences to be drawn therefrom. It was the judge of the credibility of the witnesses and the weight to be given their testimony. It was within their province to believe or not to believe the witnesses called by the appellant. The fact that they did not believe them cannot be altered by this court. Burba v. Lary, Tex.Civ.App., 296 S.W.2d 797 (Waco 1956, ref., n. r. e.); Associated Press v. Walker, Tex.Civ.App., 393 S.W.2d 671 (Fort Worth 1965, ref., n. r. e.), and authorities cited therein.

No worthwhile purpose can be served by a lengthy discussion of the evidence. Suffice it to say that witnesses for the appellant recalled statements of the deceased, Tom and Maria Hoben, to the effect that the agreement alleged was made and they described actions and conduct on the part of the appellant pursuant thereto tending to show that he had lived up to his end of the agreement. There was other evidence from persons who were intimately acquainted with the Hobens who had never heard mention of the alleged agreement but had heard expressions from the deceased indicating disposition of the estate in a manner contrary to the agreement.

As previously stated neither the will of Tom or Maria Hoben, both of which were executed subsequent to the alleged agreement, made any reference to it and the terms and provisions of each will were inconsistent with the terms of such an agreement. The testimony reflected that Mr. and Mrs. Hoben were persons of integrity, highly respected by their friends and the people of their community. That they were kind and generous. From the evidence as a whole the jury could readily draw the inference that Mr. and Mrs. Hoben were the kind of persons who would live up to any agreements made by either of them, including the one alleged, and that had such an agreement been made both of the wills would have contained some reference to it and in compliance therewith. But neither will did. Mr. Hoben left all of his estate to his wife. His will was made some years after the alleged contract at a time when he had no way of knowing he would predecease his wife. Yet his will contained no contingent provisions with reference to the alleged contract. Tom Hoben told one witness he was leaving everything to his wife and she could dispose of it any way she wished. In our opinion the case was fully developed and the evidence is more than ample to support the verdict of the jury and the judgment of the court based thereon. The judgment conforms to the pleadings and the verdict. The verdict is not so against the great weight and preponderance of the evidence as to be clearly wrong. In holding as we have there is no necessity to discuss the appellees’ cross-points of error.

All of- the appellant’s points of error are overruled. Judgment is affirmed.

Affirmed.


author: CHAPMAN, Justice.

text:
    H. C. PICKRELL, Appellant, v. ALPHA PIPE & STEEL, INC., Appellee.
    No. 7636.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 19, 1966.
    Rehearing Denied Oct 17, 1966.

      Kirby & Ratliff, Littlefield, for appellant.
    Thomas J. Griffith, Jr., Lubbock, for ap-pellee.
   CHAPMAN, Justice.

This is an appeal from a summary judgment granted appellee, Alpha Pipe & Steel, Inc., against H. C. Pickrell. The corporation is a family owned institution with the husband as secretary-treasurer. The suit is upon a penalty debt in an action filed by appellee upon an alleged usurious contract because of interest paid for the use and detention of money, for which notes, a deed of trust and a chattel mortgage lien were given by appellee to secure the payment thereof.

Several lender and borrower transactions between the parties culminated in a $6,600 note dated February 26, 1964, with interest included in its principal sum, payable in six monthly installments of $1,100 each beginning on April 1, 1964, and bearing interest on its face of ten per cent per annum. The suit was filed seeking recovery under the definitions of Article 5069, Vernon’s Ann. Revised Civil Statutes of Texas, and the prohibitions included in Article 16, Section 11 of the Constitution of Texas, Vernon’s Ann.St. and Article 5071, Revised Civil Statutes of Texas.

Depositions were taken of appellant H. C. Pickrell, the lender, and George B. Snow, secretary-treasurer of appellee, the borrowing corporation. Several months subsequent thereto appellee through its counsel filed a motion for summary judgment. Appellant made an affidavit some seventeen days thereafter asserting his transactions with appellee constituted a joint venture or temporary partnership and were not loans as contemplated by the usury laws of Texas. The case was heard by the court on the pleadings and the record mentioned. A judgment was then rendered holding the record showed an absence of any genuine issue of material fact. We agree with the judgment rendered.

Though appellant’s affidavit stated he agreed to furnish appellee the money as a business transaction, “ * * * for what amounted to a legal joint venture” and “that such transactions are well within the legal meanings of joint ventures or some sort of temporary partnerships; * * * ” between the parties, his deposition admits he loaned $5,700 and collected $6,700. The note, secured by a deed of trust on some real property of appellees in Lubbock and a chattel mortgage on some personal property showed the loan to be due in full in the period from its date of February 26, 1964, to September 1, 1964.

The statements in appellant’s deposition that the transactions constituted some sort of joint ventures or temporary partnerships are conclusions of law and would not be admissible in evidence. Rule 166-A, Section (e). “‘An affidavit * * that [is] but mere conclusions of law [is] insufficient to warrant the overruling of a motion for summary judgment.’ ” Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, 838 (writ ref.). The facts here do not show the characteristics of a joint venture. There were several different loan transactions culminating in the $6,600 note secured by the above described instruments, while a joint venture is usually limited to a single transaction. Thompson v. Duncan, Tex.Com.App., 44 S.W.2d 904; Thompson v. Reed, Tex.Civ.App., 61 S.W.2d 557 (N.W.H.). Neither do they show a partnership, which is defined in Section 6(1) of Article 6132b, Texas Civil Statutes, as “ * * * an association of two or more persons to carry on as co-owners a business for profit.” As will be shown later, no such conditions existed in this case.

By deposition Mr. Pickrell testified the first transaction he had with appellee in connection with furnishing him money in 1964 was when “ * * * he told me he would give me a hundred dollars for a thousand dollars for a week, to — so he could go to Houston and get a truck load of steel.” He admitted that he let him have the money. He further stated by deposition:

“Q. Is this mortgage taken to secure a loan that you made to Alsup Pipe & Steel?
“A. Yeah, I would think it is.”
* * * * * *
“Q. Mr. Pickrell, this is a paper marked P-4. Is this the $6,600.00 note that you understand those were transferred into?
“A. Uh huh.
“Q. Now, is this a note that you took to secure a loan to Alsup Pipe and Steel, Inc?
“A. Yeah, I suppose so.”

In answer to a question concerning a $200 interest payment Mr. Pickrell testified:

“Q. Well, what would it have been received for if not interest?
“A. Well, he told me he would give me so much money for the use of this money.”

The deposition is replete with other statements of similar effect; i. e., that appellee told him he would give him the money he paid him above the principal for the use of the money.

Even upon examination by his own attorney appellant testified by deposition that he was going to use the money to “buy steel at Houston and build his business up there in Lubbock.” (All emphases herein are ours.)

A study of the deposition shows that counsel for appellant obviously did his best to get testimony out of his client to show some sort of sharing arrangement, in one instance practically placing the answer upon the deponent’s tongue. The questions and answers are as follows:

“Q. Now, on each of these occasions, was he going to let you share in this profit if you would furnish the money ?
“A. Yeah, he was just going to — told me what he would give me for the use of that money.
“O. And it was for the purpose of sharing in this transaction?
“A. Yeah, that would be what it would be.”

The only sharing shown by the record on probative evidence was the interest appellant drew for appellee’s use of his money.

Article 16, Section 11 of the Constitution of Texas, as amended August 11, 1891, provides: "All contracts for a greater rate of interest than ten per centum per annum, shall be deemed usurious, and the first Legislature after this amendment is adopted, shall provide appropriate pains and penalties to prevent the same; * * * ”

The legislature did so provide. Article 5069, Texas Civil Statutes, defines interest aS “ * * * compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money; * * * ” Usury in the same statute is defined as “ * * * interest in excess of the amount allowed by law; * * * ”

Appellant urges as grounds for reversal that a fact issue was raised as to the intent to violate the usury laws and as to whether the transactions constituted a joint venture. The latter defense we believe has already been answered. He cites two early Supreme Court cases in support of his other contention and an N.R.E. case by the Waco Court of Civil Appeals.

The two Supreme Court cases were long before our summary judgment rule was passed (166-A, Texas Rules of Civil Procedure), which permits the trial court to consider depositions, admissions on file and affidavits where a motion for summary judgment is filed. At that time, the pleadings raising a defense and the instruments not showing on their face to be usurious, the question of intent would have required a jury trial upon demand therefor. But here we have the “summary judgment evidence” showing usury as a matter of law.

Moser v. John F. Buckner & Sons, supra, did not involve the summary judgment rule, no motion having been filed and the various contracts alleged not showing usury upon their faces. However, Justice Tirey speaking for the Waco court stated the question of intent may be one of law. It becomes one of law in our case by the summary judgment record which shows appellant collected interest far above the ten per cent allowed for appellee’s use of his money.

There is no probative evidence that he had any interest in the steel business, and as stated above, his own testimony by deposition upon questioning of his own attorney stated appellee was going to use the money appellant loaned him to buy steel in Houston and build his (appellee’s) business in Lubbock.

Appellant cites some other cases which involved collateral or side agreements which took the transactions out of usury but no such situations are shown in the record here.

It is true the note shows upon its face ten per cent interest, but: “The transaction is to be tested by its substance, not its form, and, if from all the facts its essence is found to be the receiving or contracting for a greater rate of interest than is allowed by law, the statutory consequences must be visited upon it.” Independent Lumber Co. v. Gulf State Bank, Tex.Civ.App., 299 S.W. 939 (writ ref.).

It has also been stated: “Parties cannot by entering into a form of contract valid and free from the taint of usury on its face under the cloak of such form violate our usury law without incurring its penalty.” Commercial Securities Co. v. Rea, Tex.Civ.App., 78 S.W.2d 707, affirmed 130 Tex. 11, 105 S.W. 872.

A study of this record forces one to the conclusion, regardless of which party instigated the transactions, that they constituted loans which were usurious and that the trial court properly visited upon appellant the statutory consequences there-ot.

Accordingly, the judgment of the trial court is affirmed.

      . Andrews v. Hoxie, 1849, 5 Tex. 171; Mitchell v. Napier, 1858, 22 Tex. 120.

      . Moser v. John F. Buckner & Sons, 1956, Tex.Civ.App., 292 S.W.2d 668.


author: CHADICK, Chief Justice.

text:
    J. D. LONG and W. Lee Ormes, Appellants, v. COSDEN PETROLEUM CORPORATION and Marshall National Bank, Appellees.
    No. 7741.
    Court of Civil Appeals of Texas. Texarkana.
    June 21, 1966.

      William Lane, Jr., Marshall, for appellants.
    E. N. Smith, Jr., Marshall, Barbara L. Welz, Dallas, for appellees.
   CHADICK, Chief Justice.

This is a garnishment proceeding. The judgment of the County Court is affirmed.

The parties are appellees, Marshall National Bank and Cosden Petroleum Corporation, the garnishee and garnishor respectively; and appellants, J. D. Long and W. Lee Ormes, the sureties on the Garnishment Replevy Bond filed in this action by John A. Bass, the judgment debtor.

The mode of appeal, writ of error, restricts review to errors of law appearing on the face of the record. Milam County v. Robertson, 47 Tex. 222, Appeal and Error—Civil 3 Tex.Jur. 287 § 17. The writ of garnishment is the source of the error singled out. The writ commanded the garnishee bank to “appear and answer at the next term of the County Court * * * ;n said County on the 8th day of February, 1965.” Rule 659 prescribes that the writ shall command the garnishee “to appear before the court out of which the same is issued at or before 10:00 o’clock a. m. of the Monday next following the expiration of twenty days from the date the writ was served, if the writ was issued out of the * * * county court; * * Appellants ground this appeal on the proposition that the writ served was void and the County Court did not acquire jurisdiction over the garnishee bank, and in the absence of jurisdiction the judgment herein is a nullity.

The judgment recites and the statement of fact and appellants’ brief confirm that after the questioned writ of garnishment issued the garnishee bank filed an answer and the debtor Bass made and filed a Garnishment Replevy Bond in which the appellants joined as sureties. The bond instrument is not found in the record, though it is referred to and described in the judgment. Immediately after tendering the Garnishment Replevy Bond debtor Bass filed a sworn pleading labeled “Controverting Affidavit to Garnishee’s Original Answer”. The first numbered paragraph is as follows, to-wit:

“The garnishee answers that it now holds in its hands the sum of $314.94, which it owes to John A. Bass, or which was in the checking account of John A. Bass, when in truth and in fact, it does not now hold said sum.”

The second and third numbered paragraphs set out the defective nature of the Writ of Garnishment. The affidavit or pleading contains no recital limiting debtor Bass’ purpose to a special appearance to question jurisdiction. The content of the pleading raises other than jurisdictional issues as set out in the quoted paragraph. In form and substance the pleading is a traverse of the garnishee bank’s answer authorized by Rule 673, Vernon’s Ann.Tex.Civ.Rules.

The judgment entered recites that a trial of the issues raised by the pleadings, including those of the traverse, was had in the garnishment proceeding. Those recitals, and the record otherwise, show that debtor Bass and his counsel appeared at the garnishment trial and participated in it. The garnishee bank by answering and appearing at the trial waived, as to itself, irregularities in the garnishment writ. The debtor Bass by filing his traverse raised issues in addition to jurisdiction, and it must be held, made an appearance in the proceeding for all purposes. Rules 120 and 121. The statutes and rules specifically authorizing and governing garnishment contemplate a trial in harmony with general procedure, except in such instances as the garnishment statutes or rales may provide differently.

Pleading, appearing and participating in the trial in the particulars recounted made debtor Bass a party to this suit and the judgment entered was conclusive of his rights, as well as those of the other parties unless set aside in an appropriate proceeding. The judgment rendered was in favor of Cosden Petroleum Corporation, and impliedly ran against the garnishee bank to the extent of funds it held belonging to Bass, with express stipulation that no writ of execution issue against the bank, and against Bass and the sureties on his Replevy Bond, Long and Ormes, for the amount of Bass’ money the Bank acknowledged it held, and for costs, etc. Neither the Bank nor debtor Bass appealed from the judgment and as to them it was final at the time writ of error was sued out in this appeal.

Appellants Long and Ormes as sureties executed a Replevy Bond in which, according to the judgment in the record, they agreed to pay Cosden Petroleum Corporation any judgment that might be rendered against the garnishee, Marshall National Bank. As sureties, Long and Ormes’ rights are derivative; their rights are derived from and emanate out of the garnishee Bank and the debtor Bass. “Garnishment”, 27 Tex.Jur.2d 50 § 98. The final judgment in the garnishment proceeding, conclusive against the Bank and Bass, is also by estoppel conclusive against appellants Long and Ormes. See Seinsheimer v. Flanagan, 1897, 17 Tex.Civ.App. 427, 44 S.W. 30, Wr. of Error denied. The contractual provision of the Replevy Bond obligated the sureties to pay the judgment rendered and will not permit the appellants to go back of the judgment; Long and Ormes’ derivative rights do not rise above their source in the Bank or Bass.

While the bondsmen may assert any defense the garnishee bank or debtor Bass might have had, in this instance Bass presented the defense that the garnishee bank might have made and the trial court denied it and judgment has become final against both. The bondsmen have no standing to assert in this court on behalf of the Bank and Bass the same want of jurisdiction defense that Bass presented and the record shows to have been finally adjudicated against the Bank and Bass. To allow this defense to be interposed a second time would amount to giving the garnishee Bank and Bass a second trial upon the same issue without setting aside the judgment in the first trial. Existence of jurisdiction over and a final judgment against the Bank and debtor Bass, the principal in the Replevy Bond, distinguishes this case from Walker v. Illinois Torpedo Co. (Tex.Civ.App.1925), 278 S.W. 456, no writ; Marks v. Security State Bank of McCamey (Tex.Civ.App.1931), 42 S.W.2d 480, writ refused, and other similar want of jurisdiction cases.

The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    Dan L. BAKER, Appellant, v. Vernon George SMITH et al., Appellees.
    No. 16756.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 23, 1966.
    Rehearing Denied Oct. 21, 1966.

      Rodgers & Stephens and T. J. Rodgers, Graham, for appellant.
    James M. Spiller, Jacksboro, Sewell & Forbis and James E. Forbis, Decatur, for appellees.
   OPINION

MASSEY, Chief Justice.

The major question determinative of the correct disposition of this case is whether plaintiffs are to be foreclosed, under the doctrine of res judicata, from claiming title to real estate as the result of certain action in a former suit upon their motion for judgment nunc pro tunc — made for the purpose of amending and correcting a judgment previously entered. In the prior case the defendant (in the instant case) was co-plaintiff with those who are present plaintiffs.

Smith v. Baker, 380 S.W.2d 725 (Waco Civ.App., 1964, writ, ref., n. r. e. at 383 S.W.2d 570), dealt with the instant proceeding, but perforce defendant’s motion for summary judgment. Defendant Dan L. Baker obtained a summary judgment. Plaintiffs Vernon George Smith et al. appealed. Judgment of the Court of Civil Appeals reversed, and, holding that summary judgment was not proper, remanded the cause for trial on the merits. Reference is made to the Waco court’s opinion for explanation concerning that antecedent case wherein all parties were co-plaintiffs in a suit to quiet title to that same interest in real estate over which they are presently contending. The essential holdings of the Waco court were (1) that co-parties inter se as between themselves are not bound by a judgment rendered in a cause in which they were co-parties, and (2) that said judgment — which purported to vest in grantor (defendant herein) title to lands which his own pleadings alleged had been conveyed to grantees (plaintiffs herein) — was not res judicata as to grantor’s right as against grantees.

The present appeal is from the judgment which followed trial on the merits after the Waco court’s remand. Judgment was for the plaintiffs on their suit in trespass to try title.

On the trial on the merits a new ground of defense was advanced. It appears that before plaintiffs filed their suit against defendant they had filed a motion for a judgment nunc pro tunc in the old suit to quiet title. Their motion was denied. Premise of such motion was that since their joint petition stated that Dan L. Baker (appellant herein) had theretofore transferred and conveyed his interest in the subject realty to the children (appellees herein) of Mabel Smith, and that since the warranty deed whereby such transfer and conveyance was effected was introduced in evidence as part of the “plaintiff’s case”, a correct judgment should have decreed ownership of the Dan L. Baker interest in ap-pellees rather than in appellant. Service of process on the motion was had on Dan L. Baker as the party to be adversely affected in the event such motion was granted. As respondent he filed an objection thereto and moved for dismissal of the motion. One ground of his objection asserted that a dispute existed, that it would be improper to attempt to adjudicate the same in the suit where the parties were co-plaintiffs, and that proper procedure would require that a new suit be filed.

Defendant Baker was undoubtedly correct in respect to proper legal procedure to resolve the dispute. An order overruling and denying the motion for judgment nunc pro tunc was entered in the former suit. In said order the trial court decreed denial and refusal of the motion for judgment nunc pro tunc, decreed as granted Baker’s motion to dismiss the motion for judgment nunc pro tunc, and, going further, decreed “and the original judgment filed in this cause on March 29, 1955, is hereby ratified and confirmed, and sustained as being a valid and binding judgment.”

It is by reason of the proceedings incident to the motion for judgment nunc pro tunc, and the court’s decree in connection therewith, that defendant Baker now contends the relief sought by the plaintiffs is foreclosed. Standing adjudicated by force of the order and decree, according to defendant, is the fact that he has already prevailed in an adjudication of the title dispute in an action wherein plaintiffs were parties adversary to him. Defendant’s theory is that the parties were true adversaries on the motion for judgment nunc pro tunc though they were not such at time of entry of the judgment thereby sought to be reformed and corrected.

We reject the contention and hold that nothing in the proceedings connected with plaintiff’s motion for judgment nunc pro tunc in the former action, nor in the order and decree entered on said motion and on the counter motion of the defendant, had the effect of adjudicating the title dispute arisen between the parties. Concerning the law that a dismissal is not res judicata unless based on some ground that goes to the merits of the case see 34 Tex.Jur.2d 534, “Judgments”, § 480, “Judgments of dismissal”. Concerning reasons why it would have been improper for the trial court to have rendered a judgment nunc pro tunc in the former action as prayed for by the plaintiffs herein (as parties to the former suit) see 33 Tex.Jur.2d 516, et seq., “Judgments”, § 28, “(Nunc Pro Tunc) In general”, and § 31, “Hearing; Evidence and proof”. None of said reasons could embrace or encompass the theory advanced by defendant that the issues presented by the instant suit stood adjudicated by the proceedings on the motion for judgment nunc pro tunc in the other.

Defendant complains of the judgment on the ground that there was an absence of necessary and indispensable parties, though he neither discloses their identity nor interest in the title which is the subject of litigation. He also complains of want of capacity for Mabel Smith to bring suit against him as next friend for the minor Jackie Von Smith, her son. The judgment was in trespass to try title and perforce the provisions thereof all interest .in the subject property claimed by the defendant was adjudicated as belonging to the ■plaintiffs, settling the rights as between the named plaintiffs and the defendant. Furthermore, it is clear that the defendant could •not be subjected to further action which could operate to his prejudice in subjecting him to liability in addition to that already decreed. He may not be heard in respect to these complaints and his points of error advancing them are overruled.

The deed under which plaintiffs asserted title was one from the defendant himself. It was on a New Mexico short form warranty deed form. Therein it was recited that the defendant, for and in consideration paid and love and affection did on January 17, 1952, grant all real estate he owned in Jack County, Texas, including, but not by way of limitation, all oil, gas and other mineral rights to his sister’s children, Ouita Kay Smith, Vernon George Smith and Jackie Von Smith. The grantees, then all minors, were the plaintiffs in the trial court. The acknowledgment before a New Mexico notary recited that the defendant “acknowledged that he executed the same as his free act and deed”, the usual additional language found in Texas acknowledgments, viz.: “for the purposes and considerations therein expressed” being wholly omitted. The deed was filed of record in Jack County, Texas on August 6, 1954, about the time various co-plaintiffs, including the parties to the instant suit, were suing to quiet their titles as against other kindred. This was the antecedent suit in which plaintiffs had sought the nunc pro tunc judgment heretofore discussed.

The deed is not fatally defective for want of the words usually found in the acknowledgments to Texas deeds. Plaintiffs and defendant are the identical parties to the instrument itself, this not being a suit as by parties to be found further removed from the instrument, as in a “chain of title”. Execution by defendant was admitted and the admission of the deed into evidence was wholly proper. The deed purported to convey all lands owned by the defendant in a named county in Texas, such a description being sufficient to effect conveyance of such. Grantees were the niece and nephews of the grantor, whose relation with them at time of the grant encompassed mutual love and affection.

We need not concern ourselves with any question relating to realty interest in Jack County afterwards acquired by the defendant. The suit to quiet title to a fractional interest in the same land in Jack County was one in which the judgment established that the defendant had the very interest he claimed or was entitled to claim as of January 17, 1952, when he executed the deed.

On the matter of delivery, evidence in the record adequately supported the finding that such occurred. Indeed, all the findings of fact requisite to the support of the judgment rendered for plaintiffs was fully supported by evidence, and were not against the greater weight and preponderance of the evidence.

The remainder of the points of error presented by the defendant bear upon his affirmative defense and cross-action. As to these we will state that the trial court, as fact finder, did not err in the findings and conclusions made, against the contentions of the defendant. They were not contrary to the greater weight and preponderance of the evidence.

Judgment is affirmed.


author: FANNING, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. E. L. BAXTER, Appellee.
    No. 7747.
    Court of Civil Appeals of Texas. Texarkana.
    July 19, 1966.
    Rehearing Denied Aug. 9, 1966,
    Howard Waldrop, Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellant.
    Franklin Jones, Jr., Jones, Jones & Baldwin, Marshall, for appellee.
   FANNING, Justice.

A workmen’s compensation insurance case. The jury empaneled in the case answered issues favorably to appellee. Judgment was entered for plaintiff-appellee for total and permanent disability benefits less compensation previously paid. Appellant insurance company has appealed.

Appellant presents 7 points on appeal. Appellant’s first five points revolve around the question of whether the trial court erred in permitting one of appellee’s counsel to make an additional jury argument after appellant’s counsel waived argument, with appellant contending that such additional argument was a “closing” argument and with appellee contending that the trial court allowed an additional “opening” argument and did not err in doing so. Appellant’s 5th and 6th points complain of remarks of the trial court and attorney Baldwin, in the presence of the jury, after the conclusion of Mr. Baldwin’s argument.

Appellant’s attorney and appellee’s attorneys, with the consent of the trial court, agreed upon 45 minutes argument to each side. Attorney Stevens, one of appellee’s attorneys, made an opening argument of approximately 12 minutes. Attorney Wal-drop, appellant’s attorney, waived argument, and moved that the trial court prohibit further oral argument in the case. The trial court, after listening to various contentions made by the opposing attorneys with respect to this matter, ruled as follows :

“THE COURT: Let the record show that I am going to permit Mr. Baldwin to make an additional argument not to exceed thirty minutes, but he will have no closing argument. When he has completed his opening argument, if Mr. Waldrop wants to use his forty-five minutes, he may. Let the record show that the Court allowed each side forty-five minutes to argue their case; that Mr. Stevens used approximately twelve minutes of the forty-five and Mr. Waldrop none.”

Attorney Baldwin, one of appellee’s attorneys, then made an oral argument to the jury.

Appellant’s attorney did not object to any specific portion of Mr. Baldwin’s argument.

After the conclusion of Mr. Baldwin’s argument the following remarks were made as shown by the record:

“MR. WALDROP: If the Court please, we stand on our motion heretofore made.
THE COURT: All right, let the record show that the Court offered Mr. Waldrop an opportunity to argue and he refused.
MR. WALDROP: Let the record further reflect that this action is in line with our motions and exceptions heretofore taken by the defendant in this case.
MR. BALDWIN: In other words, Mr. Waldrop does not choose to use his forty-five minutes, as I understand it?
THE COURT: No.”

Rule 269(b), Texas Rules of Civil Procedure, provides:

“In all arguments, and especially in arguments on the trial of the case the counsel opening shall present his whole case as he relies on it, both of law and facts, and shall be heard in the concluding argument only in reply to the counsel on the other side.”

It is our view that the record in this case clearly shows that the trial court merely allowed attorney Baldwin to make an additional opening argument and that the trial court allowed appellant’s attorney an opportunity to reply to Mr. Baldwin’s argument, if he chose to do so, and that Mr. Baldwin’s argument, under this record, must be considered to be merely an additional “opening” argument and not a “closing” argument. In doing this the trial court did not err. Anizan v. Paquette, Tex. Civ.App., 113 S.W.2d 196, err. dism.; Texas & P. Ry. Co. v. Scott, 64 Tex. 549.

In Anizan v. Paquette, supra (113 S.W.2d 196), plaintiff’s attorney spent one hour in opening argument, defendant’s attorney waived argument, plaintiff’s attorney requested an additional 30 minutes to argue, which was granted. Error was assigned as to the trial court’s action being viola-tive of Rule 36 for District and County Courts, which is identical to Rule 269(b), T.R.C.P. The court in the Anizan case stated:

“This rule obviously does not prohibit an opening argument from being made by two different attorneys for a plaintiff. It does contemplate that, when this opening argument has been answered by defendant’s counsel, no additional matter which defendant’s counsel will not have an opportunity to answer shall be argued.
“But if defendant’s counsel, by a surprise move, declines to exercise his right to argue his side of the case to the jury, we do not see how he can justly complain if the court, at the request of plaintiff’s counsel, allows plaintiff to augment his opening argument. Matters of this sort, so intimate to the mere conduct of the trial, are so obviously necessarily to be ruled by the trial court’s judicial discretion that we will pretermit further discussion.”

Appellant relies upon Wales Trucking Co. v. Kisener, Tex.Civ.App., 373 S.W.2d 266, no writ. The Wales case is clearly distinguishable as the bill of exceptions approved by the trial court in the Wales case certified that the argument in question there was a “closing argument”. Under the record in this case the additional time allowed attorney Baldwin by the trial court to make an argument was for an additional “opening” argument, with appellant being accorded full opportunity to reply thereto.

Appellant’s points 1 to 5 do not present error under the record in this case and are overruled.

Appellant has raised no points contending that the evidence was insufficient or that the verdict of the jury was against the great weight and preponderance of the evidence. The verdict is amply supported by sufficient evidence of probative force and is not against the great weight and preponderance of the evidence. It is our view that the matters complained of by appellant in its 5th and 6th points, viewed in the light of the whole record in the cause, were not reasonably calculated to cause and probably did not cause the rendition of an improper judgment in the case, and do not present reversible error. Rule 434, T.R.C.P.; Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596; Goforth v. Alvey, 153 Tex. 449, 271 S.W.2d 404; Whitener v. Traders & General Ins. Co., 155 Tex. 461, 289 S.W.2d 233; St. Louis Southwestern Railway Co. v. Gregory, Tex., 387 S.W.2d 27.

The judgment of the trial court is affirmed.