author: FRASER, Chief Justice.

text:
    Anthony CERBOSKAS, Appellant, v. Clayton D. FARRIS and Annabelle Farris, Appellees.
    No. 5713.
    Court of Civil Appeals of Texas. El Paso.
    May 26, 1965.
    Rehearing Denied June 16, 1965.

      Hardie, Grambling Sims & Galatzan, A. R. Grambling, El Paso, for appellant.
    George A. McAlmon, El Paso, for appel-lees.
   FRASER, Chief Justice.

On or about January 5, 1963, about 7:00 P.M., and after dark, appellee (sometimes hereinafter referred to as plaintiff) Annabelle Farris, was driving her automobile in a westerly direction upon U. S. Highway 180, approximately 38 miles east of the City of El Paso, and at the same time she was pushing an automobile driven by appellant (sometimes hereinafter referred to as defendant). The motor of the automobile driven by appellant had stopped, and said appellee undertook to push appellant’s car to the next filling station for repairs.

While said appellee was in the process of pushing appellant’s automobile, appellee claims that appellant negligently, suddenly and without warning to appellee turned and swerved his automobile to the right-hand side of the highway upon which appellant and appellee were then traveling. Appellee contends that when appellant swerved his car to the right, it forced her car across the center of the highway and into the path of an oncoming automobile being driven in an easterly direction, and that this resulted in a collision between the automobile operated by appellee and the automobile operated by a third party. There was only one occupant of the oncoming car, and he apparently was instantly killed. In the car with plaintiff was her guest, a Mr. Roquemore, an elderly gentleman who died some ten days after the accident, and seated between plaintiff and Mr. Roque-more was the daughter of Mr. and Mrs. Cerboskas, a little girl nine years of age, named Patricia. Plaintiff and Patricia were badly injured. As the result of the collision, two men were dead, and Mrs. Farris and Patricia were badly hurt. The Cer-boskas car was not involved in the collision.

The automobile of appellant was not in the collision and it is appellant’s contention that the automobile of appellee was at least 150 feet behind appellant at the time the collision occurred. It is further the contention of appellant that no act on his part .caused, or contributed to cause, the accident of which appellees complain.

Appellant moved for an instructed verdict, which was denied by the court, and judgment was entered against appellant and in favor of appellees in the sum of $4,837.00, on the basis of the findings of the jury.

Appellant’s first point of error is that the first issue is duplicitous and contains two separate questions. This issue asks:

“Do you find from a preponderance of the evidence that immediately prior to the collision in question that the defendant turned his automobile to the right and caused the automobile of plaintiff, Annabelle Lewis Farris, to be forced across the center of the highway? Answer yes or no.”

The jury answered “Yes” to the above question, and then answered affirmatively to Issues 2 and 3, which inquired if such action of the defendant was negligent and a proximate cause of the collision.

We agree with appellant’s position that special issues shall be submitted separately and distinctly and no issue should contain two controverted ultimate fact issues. Rule 277, Texas Rules of Civil Procedure; 41-B, Tex.Jur. 576, § 450; Pappas v. Wright, 171 S.W.2d 536 (Tex.Civ.App.). However, we do not believe such a situation is presented in this case. It is uncon-troverted, and defendant so testified, that he did suddenly turn his car to the right. This leaves the issue with only one controversial question to answer. In other words, the issue as worded presents only one controverted fact issue and, as such, in our opinion is not duplicitous or multifarious. The only question in the issue in controversy is whether or not the action of the defendant caused plaintiff’s car to swerve suddenly to the left. There is testimony that the accident took place some four and one-half feet over in what would be the wrong side of the road for plaintiff and defendant. It has been held that where a question or issue presented to the jury contains only one controverted fact issue, it is not duplicitous. City of Winters v. Bethune (Tex.Civ.App.), 111 S.W.2d 797; Texas Cities Gas Co. v. Dickens (Tex.Civ.App.), 156 S.W.2d 1010. We therefore overrule the appellant’s first point and hold that the issue in question was not duplicitous or multifarious as submitted.

Appellant’s second and third points refer to Special Issue No. 6 and allege error in that the court overruled defendant’s motion for an instructed verdict and also overruled defendant’s motion for a new trial. He alleges that the undisputed evidence is contrary to the jury’s finding, and the answers by the jury are so against the great weight and preponderance of all the evidence as to be manifestly wrong and unjust. The jury found, in answer to Issue No. 6 that the defendant was not acting under a sudden emergency when he swerved his car to the right. There was no objection to the court’s definition of the term “sudden emergency”. Defendant and his wife both testified that they thought the oncoming car was going to hit them, and for that reason defendant swerved his car to the right. We do not find any corroboration of this testimony. The driver of the oncoming car was killed in the collision. However, there is testimony from the plaintiff that prior to the accident and at the time of the accident the bumper of her car was against that -of the defendant’s car, pushing said car. There was testimony by a State Highway patrolman that, under those conditions, if the front car suddenly swerved to the right, it would cause or tend to cause the pushing car to swerve in the opposite direction. The jury found, in answer to Issue No. 9, that the two cars of •plaintiff and defendant were in contact at the time defendant swerved to the right. Appellee further points out that, according to the record, there was no indication, from examination of the highway, that the oncoming car was traveling in an improper lane, and the State Highway patrolman testified that the evidence he found indicated the point of impact to be 4.5 feet across the middle of the highway, and not on the side of the highway where the cars of defendant and plaintiff were traveling. Defendant’s car was not damaged. We believe that there was sufficient evidence to justify the jury in answering the issue against the defendant, and to justify the court’s action in denying the motions for an instructed verdict and/or a new trial. It has been held that a disputed fact or facts in a civil case may be established by either direct or circumstantial evidence. Here we have a conflict between the uncorroborated testimony of the defendant who, of course, is an interested party, and evidence of a circumstantial nature. We believe the circumstantial evidence here is strong enough and has enough probative value to justify the action of the jury and the court. Brown v. Dallas Ry. & Terminal Co., Tex.Civ.App., 226 S.W.2d 135; 24 Tex.Jur.2d 398, § 728; Washington v. A & A Construction Co., Tex.Civ.App., 316 S.W.2d 808. In summary, it might be noted that the only evidence produced by appellant was his own testimony, whereas the testimony of the investigating officer indicates that the oncoming car was at least 4.5 feet over on its own side of the highway. The jury’s finding in answer to Issue No. 6, that defendant was not acting under a sudden emergency, of course made it unnecessary for the jury then to answer the following two questions, which asked if defendant did what an ordinarily prudent person would have done under the same or similar circumstances, and if such emergency were the sole proximate cause of the accident. Appellant’s Points 2 and 3 are overruled.

Appellant’s Points 4 and 5 charged that the court erred in overruling defendant’s motion for judgment non ob-stante veredicto, because the plaintiff was negligent in pushing defendant’s car down the highway at night, and that as a matter of law such negligence was a proximate cause; and that the court erred in overruling defendant’s motion for a new trial on the ground that the jury’s answer to Special Issue No. 12 was so against the great weight and preponderance of all the evidence as to be manifestly wrong and unjust. The jury found that plaintiff was pushing the car of defendant just prior to the accident, and in answer to Question No. 11, that plaintiff was guilty of negligence in so doing; but in answer to Question No. 12, the jury held that plaintiff’s negligence in pushing defendant’s car was not a proximate cause of the collision. In considering the question presented by these two points, it must be remembered that the jury, in answer to Question No. 9, found that the two cars were in contact, bumper to bumper, at the time when defendant swerved his car to the right, and the jury had heard the testimony of the State Highway patrolman as to the effect of a sudden swerve by the car being pushed, with the bumpers of the two cars in contact. In answer to Question No. 14 (inquiring whether plaintiff had driven her car to the left of the center of the highway just prior to the time of the accident) the jury answered “No”. We think these two points must be overruled on the ground that the negligence of the plaintiff found by the jury was also found not to be a proximate cause. We do not believe that plaintiff should have foreseen that the defendant would suddenly swerve his car to the right. The record shows that plaintiff had pushed the Cerboskas car to one filling station, during which time the motor in defendant’s car had started up and was running; but that shortly thereafter it ceased to run, and it is uncontroverted that plaintiff agreed to push defendant’s car to the next filling station because Mrs. Cer-boskas was worried about her luggage and, as the plaintiff testified, it was a cold, dark night. There is no evidence in the record that the plaintiff, at the time of the accident, was suffering from any physical or mental condition that would be detrimental to safe driving, nor is there any testimony that she was pushing defendant’s car in an improper manner, the finding being that it was negligent to push the other car; but, as stated above, the jury found that such negligence was not a proximate cause of the accident. In Issues 1, 2, and 3 the jury found that the action of defendant was negligent and a proximate cause of the accident. Plaintiff testified that she realized there might he some danger connected with pushing defendant’s car, but did not testify that she anticipated that defendant might suddenly swerve his car to the right while she was pushing it. The court, in its charge, properly defined “proximate cause”. It has been held that one is not bound to anticipate negligent conduct on the part of another, but only to foresee or anticipate circumstances that would reasonably result from his conduct. In other words, even though a person may be negligent, it does not exonerate the defendant if the act of the defendant was not reasonably foreseeable by the injured person. 40 Tex.Jur.2d 472, 473, 474, § 20; Houston Lighting & Power Co. v. Brooks, 161 Tex. 32, 336 S.W.2d 603; Texas & N.O.R. Co. v. Brannen, 140 Tex. 52, 166 S.W.2d 112. In the Houston Lighting & Power Co. v. Brooks case, our Supreme Court states as follows (citing City of Dallas v. Maxwell, Tex.Com.App., 248 S.W. 667, 670, 27 A.L.R. 927):

“ ‘In this state it is now a settled doctrine that anticipation of consequences is a necessary element in determining not only whether a particular act or omission is actionably negligent, but also whether the injury complained of is proximately caused by such act or omission. * * * Actual anticipation is of course not in any sense the test; but what one should under the circumstances reasonably anticipate as consequences of his conduct.’ ”

Appellant’s Points 4 and 5 are overruled.

Appellant’s Points 6 and 7 state that the trial court erred in denying defendant’s motions for instructed verdict and for judgment non obstante veredicto, claiming that the undisputed evidence shows that plaintiff voluntarily undertook to push defendant’s car, an4 that she knew and appreciated the danger involved in so doing at the time, and that the trial court further erred in denying defendant’s motion for a new trial on the ground that the jury’s answer, holding that plaintiff did not know and appreciate the danger involved, was so against the great weight and preponderance of all the evidence as to be manifestly wrong and unjust. This matter has been pretty well discussed in our disposition of appellant’s Points 4 and 5; but the parties here, in their brief, maintain that the jury’s answers to Questions 17 and 18 raise the affirmative defense of the doctrine of volenti non fit injuria. These issues were worded as follows:

“QUESTION NO. 17
Do you find from a preponderance of the evidence that plaintiff, Annabelle Lewis Farris, prior to the accident in question, voluntarily undertook to push defendant’s car with her car? Answer ‘yes’ or ‘no.’
We answer: Yes
QUESTION NO. 18
Do you find from a preponderance of the evidence that plaintiff, Annabelle Lewis Farris, prior to the accident in question, knew and appreciated the danger, if any, involved in pushing defendant’s vehicle down the highway at night? Answer ‘yes’ or ‘no.’
We answer: No”

The jury found that appellant negligently suddenly swerved his car to the right, causing plaintiff’s car to be forced across the center of the highway; that such act was negligent and a proximate cause of the accident; and that appellant was not acting under a sudden emergency at the time; and further, in answer to Issue No. 13, that the accident was not unavoidable. Both parties cite the case of Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Supreme Court). This case holds, inter alia, that for the “volenti” doctrine to be applicable, the danger must either be so open and obvious that the plaintiff or injured person was charged in law with knowledge and appreciation thereof, or he must have actual knowledge and appreciation of the dangers. This case, and the many cases cited within it, point out that the word and meaning of the “volenti doctrine” require that the injured person must have either actually known, or should have known, of the danger that he was himself in. As stated in 65 C.J.S. Negligence § 174, page 851, the injured party is not required to anticipate a danger or a hazard not naturally incidental to the situation ; and here plaintiff had pushed defendant’s car for some miles without incident, and we do not believe that plaintiff, when she undertook to push the car, and then to resume pushing the car after the parties had stopped at the first filling station, knew or should have known or anticipated that defendant would suddenly swerve his car off the highway to the right. This is apparently what the jury believed, as evidenced by its answers to the various issues. Appellant’s Points 6 and 7 are therefore overruled.

Appellant’s Points 8, 9, 10 and 11 refer to Issue No. 4, which inquired if the defendant failed to keep a proper lookout just prior to the accident, and Issue No. 5 which inquired if such failure was a proximate cause of the accident. The jury answered both questions in the affirmative. We do not feel it necessary to pass on these points because the answers of the jury to the other issues are sufficient to uphold the verdict as rendered by the court and jury. In other words, the jury found the defendant guilty of conduct that was negligent and a proximate cause of the accident. We do not see how his failure to keep a proper lookout, at a time when he was driving a car which was inoperative and being pushed, could have had much bearing on the case, in view of the fact that not only was his car mechanically dead, but also was not harmed or touched by the collision between the plaintiff and the oncoming car in the opposite lane.

. Appellant’s Points 1 through 7 having been overruled, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: PRESLAR, Justice.

license: Public Domain

text:
    Philip STROUD, Appellant, v. TOWN OF PECOS CITY et al., Appellees.
    No. 5727.
    Court of Civil Appeals of Texas. El Paso.
    May 19, 1965.
    Rehearing Denied June 16, 1965.

      Walker F. Means, Barstow, Richard D. Naylor, Pecos, for appellant.
    W. F. Leigh and H. D. Glover, Pecos, for appellees.
   PRESLAR, Justice.

This is an appeal from an order denying appellant’s application for a temporary injunction. Appellant, Philip Stroud, was the original defendant in a tax foreclosure suit brought by the Town of Pecos City, in which the Pecos Independent School District and the State and County were im-pleaded parties defendant. Stroud had a working arrangement with the City whereby certain work done by him would be credited on his tax bill. He filed no answer to the tax suit, but did some work for the City which he thought was enough to offset the amount of taxes claimed in the suit. The suit remained on the docket for a number of years, and default judgment was taken for the then accrued taxes of the taxing agencies involved. As to the default judgment, appellant filed an action in the nature of a bill of review, and additionally he sought to enjoin the foreclosure of the tax lien and the sale of his property thereunder. It is from the trial court’s refusal of the temporary injunction phase of the case that he brings this appeal.

We affirm, for the record and statement of facts before us do not show an abuse of discretion by the trial court in refusing the temporary injunction. The rule is well established that an appellate court will not set aside an order of a trial court granting or refusing a temporary injunction unless it be established that the trial court abused its discretion in entering the order. Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235. The rights of the parties under their respective contentions are not before us for final determination, for the purpose of a temporary injunction is to maintain the status quo in regard to the matter in controversy, and not to determine the respective rights of the parties under the cause of action asserted or defenses urged. Hand v. State, 335 S.W.2d 410, ref. n. r. e., 160 Tex. 416, 337 S.W.2d 798. In the case before us appellant, as plaintiff, sought to maintain the status quo by allegations that he had no adequate remedy at law and would suffer irreparable injury from foreclosure, pending trial on the merits, of what he termed a void or voidable judgment. His claim that the judgment was void was based on allegations that it was obtained by fraud, or in the alternative, by accident or by mistake. We have carefully reviewed the entire record, and we fail to see how appellant made out a case in support of these contentions of such strength that it can be said that the trial court abused his discretion in overruling them. On the contrary, we think the evidence is ample to support the trial court’s order. This is a case where maintaining the status quo would have given the injunction claimant more than he was entitled to by allowing him relief from a judgment which the proof before us does not show to be invalid. Also, the matters complained of as “irreparable injury” are not proved to be injuries from which relief may not be had by the trial on the merits.

The order of the trial court in refusing the temporary injunction is affirmed.

For the purpose of protecting our jurisdiction, this court granted appellant’s motion to restrain the Sheriff of Reeves County from proceeding with the execution sale pending the disposition of this case on appeal. There being no necessity for the continuation of same, it is ordered and decreed that the injunction which was the subject of the per curiam opinion issuing out of this court on the 19th day of August, 1964, be, and the same is hereby dissolved.


author: MASSEY, Chief Justice.

text:
    Ethel A. SIMS and Husband, Frank Sims, Appellants, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 16643.
    Court of Civil Appeals of Texas. Fort Worth.
    May 28, 1965.
    Rehearing Denied June 25, 1965.
    Carter, Gallagher, Jones & Magee and Ben T. Warder, Jr., Dallas, for appellants.
    Thompson, Knight, Wright & Simmons, Pinkney Grissom, Frank Finn, Jr., and John A. Gilliam, Dallas, for appellee.
   MASSEY, Chief Justice.

Under the Texas Workmen’s Compensation Law an injured employee is compensated for “general” partial incapacity by calculating 60% of the difference between his average weekly wages before he was injured and his average weekly wage earning capacity during the existence of the partial incapacity, — not to exceed $35.00 per week and not for a greater time period than 300 weeks. Vernon’s Ann.Tex.Civ.St. Art. 8306, § 11.

When such an employee’s period of total incapacity ceases, and he has a residual temporary partial incapacity which is not “general” but consists in a disability which is confined to a bodily member, as to a leg, — the amount of his weekly compensation (from and after the date of such confinement) is calculable by multiplying the percent of incapacity existent in the member, as the “percent of ‘loss of use’ of the leg”, by the “average weekly wage” figure, but not to exceed the maximum allowable “basic figure” of $35.00. Further, since the maximum number of weeks for which compensation for permanent “loss of use” controls (in the case of a leg — 200 weeks), the duration for the payment of the compensation would be thereby likewise controlled, — although the time would be further restricted in the event the partial incapacity or “loss of use” sooner terminated. V.A.T.S. Art. 8306, § 12. See Fidelity & Casualty Company of New York v. Shores, 329 S.W.2d 911 (Fort Worth Civ.App., 1959, writ refused).

When disability or incapacity becomes confined to one of the members set out in Sec. 12 of Art. 8306, it amounts to a “loss of use” of the member in so far as the method whereby it should be compensated is to be selected. So long as it is not so confined a “general” incapacity exists (coexists). If it is so confined the method of calculating the amount payable because thereof is calculable under the second paragraph of this opinion. When a “general” incapacity exists the method of calculating the amount payable because thereof is stated in the first paragraph. If incapacity exists, whether it consists in a “loss of use” of a specific member or is of a general character to be distinguished therefrom, there would exist an obligation that compensation be paid.

Conditions possible to be hypothesized would, with respect to a decision upon the method to be selected in computing the amount of compensation, be the same as in those cases of injuries which were originally to a “specific member” of the body, but where, as a proximate result, the effects extend to other parts of the body and thereby cause general disability. In such cases the injured employees may elect to be compensated under either method. They are entitled to make the election if they take these precautions to preserve such right. However, they may not be compensated under both. 45 Tex.Jur. p. 612 “Workmen’s Compensation”, § 178, “Where Injury Results in Additional Permanent Incapacity”.

In the case presently before us the jury found, in answer to Special Issue No. 9, that the claimant sustained “partial disability”. Answers to additional issues were to the effect that the period of such disability began April 12, 1963, and the duration thereof was fifty-two (52) weeks. Uncontroverted evidence established that before the injury claimant’s average weekly wage was $75.46. The jury found that her average weekly wage-earning capacity during the period of the aforesaid temporary partial incapacity was $60.00. In another portion of its verdict the jury found, by answer to Special Issue No. 14, that claimant’s disability became confined solely to her leg (the date thereof being April 12, 1963). It also found that she suffered neither a total nor partial “loss of use” of her leg. Issues inquiring about “temporary” or “permanent” in relation to duration of such “loss of use”, if any, were not answered because the court had conditioned (requisite therefor upon the jury’s return of different) answers.

When the jury returned its answers, as above, the court decided not to receive it as the verdict. Believing that a conflict existed in answers to Special Issues Nos. 9 and 14, the jury, under written instructions of the court, was directed to attempt reconciliation. The jury did reconcile the answers by changing its answer to Special Issue No. 14. The jury’s ultimate finding was that claimant’s disability “did not become confined solely to her left leg”. In accord with the original instructions of the court’s charge, the jury struck the original findings that claimant had suffered neither a total nor partial “loss of use” of her leg.

Claimant properly made and preserved complaint because of the court’s action. Such is made the subject of a series of points of error.

In our opinion there was no error. Consideration given to the theories under which the litigation was conducted, a conflict existed because the claimant was entitled to a judgment under her theory (Special Issue No. 9, et seq.), or the insurance company was entitled to a judgment under its theory (Special Issue No. 14, et seq.). Fireman’s Fund Indemnity Co. v. Hopkins, 119 S.W.2d 394 (San Antonio Civ.App., 1938, no writ history). The court knew that it would be required to render a judgment. If the judgment was to be one by which any compensation for temporary partial incapacity would be awarded the court required a verdict by which it could calculate the amount of compensation due. Of necessity it must be enabled thereby to make the calculation on either the basis of “general” temporary partial incapacity or on the basis of a temporary partial “loss of use” of the leg as a “specific injury”. The requirement existed because of the parties’ pleadings. Of this, more anon. Under the answers first returned the court could do neither. If incapacity became confined to a specific member (becoming “loss of use” for purposes of computing the amount of compensation to be awarded), the claimant would have no general incapacity thereafter. If incapacity existed theretofore its character would be that of general incapacity, and that general incapacity (although it might undergo a change from “total” to “temporary”) would persist until,' but only until, it became confined to a specific member, — if it continued to exist.

Further complicating the situation confronting the trial court was the effect of the jury’s finding in answer to Special Issue No. 14, that claimant’s disability became confined to her leg, coupled with answers returned to issues conditioned upon such finding which established that (though the incapacity became so confined) no “total” nor “partial” loss of use was resultant. The answer to Special Issue No. 14 conflicted with the answers to the issues conditionally submitted thereunder, for if the claimant had a disability which became confined to her leg she had (for purposes of computing compensation) a “loss of use” as applied to the leg. It would be improper to find that such “loss of use” was neither a “total” nor a “partial” loss of use.

It appears that the trial court decided that it would be simpler to require the jury to resolve the conflict existing in the answers to Special Issues No. 9 and No. 14; then, in the event the answer to No. 9 was changed (with deletion of answers to the conditionally submitted issues appertaining), without change made in the answers to the issues conditionally submitted under Special Issue No. 14, he could send the jury back to resolve the conflict. The jury did what one would expect (consideration given to the findings first made in answer to the issues conditionally submitted under Special Issue No. 14) and changed its answer to No. 14. The new finding was that the claimant’s disability did not become confined to her leg. The jury struck the answers previously returned to the issues thereunder conditionally submitted. In view of the jury’s action the trial court was relieved of any necessity to instruct the jury to resolve the conflict between the jury’s answer to Special Issue No. 14 and the issues conditionally submitted thereunder. Such conflict ceased to exist.

The claimant made and filed a motion for mistrial, and therein her attorney asserted that there was no conflict, but that if there was a mistrial should be declared. Coupled with her motion was a complaint because of the court’s failure to instruct the jury to resolve the conflict appertaining to Special Issue No. 14, etc.

We hold that there was no error in the court’s failure to give the instructions. The court was at liberty to defer any additional instructions until there was a determination made by the jury as to what it might choose to do in resolving the conflict between its answer to Special Issues No. 9 and No. 14. When such conflict was eliminated there was no necessity that any further action be taken.

We have heretofore mentioned the state of the pleadings in the case. We assume the court had them in mind in deciding that a conflict existed in the answers first returned. Claimant’s pleadings alleged general incapacity. She did not seek compensation based upon “loss of use” of the leg. It was the insurance company which attacked claimant’s attempt to recover on the theory of a “general” incapacity, one method adopted having been to allege that the claimant’s “present condition, complaints and disability, if such there be, are limited to Mrs. Sims’ * * * leg”. In this state of the pleadings it was under the company’s defensive theory that Special Issue No. 14 was submitted to the jury. It was in accordance with the contentions of the company that the answer thereto was first returned by the jury. The circumstances were such that the claimant must be treated as having already, at an earlier time, elected as to the theory under which she was claiming compensation, and the method by which she sought to have it measured. Indeed, the argument of her counsel to the jury relative to Special Issue No. 14 included the following statement: “I submit that that should be answered, ‘It did not become confined solely to her left leg,’ and I think that all of the evidence is to the contrary.”

Furthermore, the theory under which claimant proceeded, coupled with the manner of conduct of trial, foreclosed any right to make the complaints asserted. In resolving the conflict the jury changed answers which had theretofore been in the company’s favor and returned answers in favor of the claimant.

Claimant presents a series of points in which the contention is made that reversible error existed in the court’s action sustaining objection to argument which she desired to present. We believe the argument was objectionable and objection thereto properly sustained. It constituted reference to facts that were neither in evidence nor inferable from the evidence. See 56 Tex.Jur.2d, p. 568, et seq., “Trial”, Chap. XV, “Argument”, including the text and authorities beginning at p. 613, § 271, “(Matters Outside Record) — In general”.

Furthermore the limitation placed upon the claimant’s argument would not amount to reversible error in any event. It related to the company’s failure to present as a witness the physician who had treated the claimant during her period of total disability. Before the objection was sustained thereto, claimant’s attorney argued thus: “And it strikes my attention that he treats her for over a year and that they pay for it. He puts her in the hospital, and then rather than call Dr. Sutherland to testify or deny our position in this lawsuit and what, under oath, this good woman says he tells her, they bring in a psychiatrist, a neurologist and a psychiatrist * * * ”. Claimant had testified that Dr. Sutherland told her that she should not return to work “at all ever” if she could help it; that he did not want her to do so. She repeated her testimony to this effect, somewhat embellished, several times. No other testimony constituted a denial that such had been the doctor’s statements. The claimant’s attorney was allowed to argue before the jury that the statements had been made. Under the circumstances we believe that the restriction placed upon the argument, even when it is assumed to have constituted error, would not have amounted to reversible error. Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953).

By other points of error the claimant complains because of jury findings as to the period of time her “temporary” and “partial” disability existed. Essentially, her contentions assert “no evidence” and that the answers were “against the great weight and preponderance of the evidence”. We have reviewed the evidence. This opinion need not be lengthened by a discussion thereof. Testimony from the lips of the claimant, herself, elicited on cross-examination, provided evidence which supported the submission of the issues and the jury’s answers.

Judgment is affirmed.


author: LANGDON, Justice.

text:
    PENNSYLVANIA INSURANCE COMPANY, Appellant, v. STORBECK & GREGORY, Appellee.
    No. 16642.
    Court of Civil Appeals of Texas. Fort Worth.
    May 28, 1965.
    Rehearing Denied June 25, 1965.
    Strasburger, Price, Kelton, Miller & Martin, R. Keith Drummond, and Royal H. Brin, Jr., Dallas, for appellant.
    Lefkowitz, Green, Ginsberg, Eades & Gilmore, and Jack D. Eades, Dallas, for ap-' pellee.
   LANGDON, Justice.

This suit was instituted under Article 5160, Vernon’s Ann.Tex.Civ.St., commonly known as the McGregor Act, seeking recovery for balance claimed under a contract to perform services and furnish material in connection with the construction of the married students apartments at North Texas College in Denton, Texas.

The appellant filed its plea to the venue, asserting its statutory right under Article 5160, Subd. G, to be sued in the county in which the project or work or any part thereof is situated and then answered by way of general denial and plea of lack of the written notices required by the Statute.

The case, including the plea to the venue, was tried by the Court without a jury and judgment was entered for appellee, overruling the plea to the venue and awarding damages against appellant in the amount of $4,861.51 plus interest and costs.

Appellant contends that the trial court erred in overruling its plea to the venue because venue in Denton County is mandatory under the Statute. It raised other points relating to notices required by the Statute which are defensive in nature. In view of our disposition of the case a discussion of these points is not essential to this opinion.

It is undisputed in this suit brought under Article 5160, V.A.T.S., that all of the work covered by the contract and bond was situated in Denton County. No part of it was situated in Dallas County.

Article 5160, Subd. G, provides: “All suits instituted under the provisions of this Act shall be brought in a court of competent jurisdiction in the county in which the project or work, or any part thereof, is situated.”

The last exception to the general venue statute, Article 1995 (30), provides that whenever the venue is expressly prescribed in a law authorizing or regulating any particular action, a suit shall be commenced in the county to which jurisdiction is so expressly given. As pointed out in 59 Tex. Jur.2d 372, “Venue”, § 9, a typical example thereof is the very statute here involved, Article 5160, as to suits for collection for labor and materials furnished prime contractors on public works. Any statute of this nature that authorizes a particular action and procedure and describes its venue is made a part of the venue statutes by the very terms of the final exception to the general venue statute. Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867 (1937); Ballard v. Shock, 91 S.W.2d 385 (Eastland Civ.App., 1933, no writ history).

With specific reference to the statute here involved, Cole v. Western Brick & Supply Company, 364 S.W.2d 761 (Amarillo Civ.App., 1963, Dismissed), holds that when suit is brought under this act, the mandatory and exclusive venue provisions of the act control, and that the plaintiff has the burden to establish the requisite venue facts. See also Cole v. Smith & Wardroup, Inc., 364 S.W.2d 763 (Amarillo Civ.App., 1963, Dismissed). The appellee failed to meet the burden of alleging and proving the venue facts required of it under the above cases. It filed no controverting plea setting forth specifically the grounds relied upon to confer venue of the case in Dallas County. Since it failed to show any basis for venue the Court’s only alternative in view of the plea to the venue was to transfer the cause to Denton County. Atteberry, Inc. v. Standard Brass & Mfg. Co., 270 S.W.2d 252 (Waco Civ.App., 1954, Writ ref., n. r.e.) ; Southern Insurance Company v. Rogers, 342 S.W.2d 135 (San Antonio Civ.App., 1961, no writ history) ; Terrell v. Vandergriff, 351 S.W.2d 910 (Amarillo Civ.App., 1961, no writ history).

The appellant in its plea to the venue and in its prayer for general relief prays the Court to dismiss the action against it rather than transfer to Denton County which would have been proper. We disagree with appellee’s contention that a prayer for the wrong relief would deny proper relief to a party otherwise entitled thereto.

The appellant’s plea to the venue made clear its position that proper venue was Denton rather than Dallas County and why.

Under a general prayer, any relief appropriate to the facts proved at the trial may be granted. Morris v. Biggs & Co., 165 S.W.2d 915 (Amarillo Civ.App.1942, Dismissed); Payton v. City of Big Spring, 157 S.W.2d 975 (Eastland Civ.App., 1941, no writ history). As stated in 33 Tex.Jur. 2d 555, “Judgments”, § 57, “Even though a party in his prayer for special relief has mistakenly asked unauthorized relief, he may under a general prayer be awarded the relief to which he is entitled under his pleadings and evidence.” See also Williams v. Chambers, Roy & Co., 26 S.W. 270 (CCA of Texas, 1894, refused).

Traders & General Ins. Co. v. Curby, 103 S.W.2d 398 (Waco Civ.App., 1937, no writ history), held in such respect: “But the venue in such cases is controlled by the act itself and not by the provisions of Revised Statutes, art. 1995, and the many exceptions therein provided. Neither is the right to a transfer of such a cause to the proper court controlled by the provisions of article 2007 with reference to the form of a plea of privilege, nor is the procedure to be followed in such a case controlled by the provisions of Revised Statutes, art. 2008, regulating the procedure in pleas of privilege cases generally.” See also Texas Employers’ Ins. Ass’n v. Ribble, 260 S.W.2d 719 (Eastland Civ.App., 1953, no writ history) ; Lloyds Casualty Co. of New York v. Lem, 62 S.W.2d 497 (Galveston Civ.App., 1933, Dismissed).

Even as to an ordinary plea of privilege it is held that the omission of a prayer to transfer the case to the proper county is not fatal to the plea, “especially when the plea and venue hearing disclosed that the transfer must be made, and can only properly be made, to one county.” McDonald, Texas Civil Practice, § 4.43(d), p. 434. To the same effect see Kinder & Keach v. Adams Nat. Bank of Devine, 184 S.W.2d 536 (San Antonio Civ.App., 1944, Dismissed).

In Terrell v. Vandergriff, supra, the plaintiff contended that the plea of privilege was insufficient in that it made no request or prayer that the case be transferred to any other county but simply challenged the venue in Dallas County, where suit was brought. This position was rejected by the appellate court, which reversed the judgment of the trial court overruling the plea of privilege and instructed the trial court to transfer the case to the proper county. The court declared: “No case has been cited and we have found none which requires the prayer to specifically seek a transfer of a case to a designated county. Although we are of the opinion it is better practice to pray that the case be transferred to a particular county, we do not think such an omission is fatal when all requirements of Rule 86 are met. It is to be noted that Rule 86 makes no reference to the prayer of a plea of privilege.”

The judgment overruling the plea to the venue is reversed and the trial court is instructed to enter an order transferring this case to the District Court of Denton County, Texas, for trial on the merits.


author: COLLINGS, Justice.

text:
    D. D. WILLIAMS, Independent Executor and Trustee, Appellant, v. Mabel S. McKNIGHT, Appellee.
    No. 3979.
    Court of Civil Appeals of Texas. Eastland.
    May 21, 1965.
    Rehearing Denied June 11, 1965.

      Peery, Wilson & Jameson, Wichita Falls, Thornton & Thornton, Rick P. Fisher, Olney, for appellant.
    Nelson, Montgomery & Robertson, Ernest Robertson, Wichita Falls, for appellee.
   COLLINGS, Justice.

D. D. Williams, independent executor and trustee of the will and estate of James N. McKnight, Jr., deceased, brought suit against Mabel S. McKnight,' a widow, under the Uniform Declaratory Judgment Act seeking a judgment determining that one-half of $30,000.00 in community funds deposited in savings and loan accounts by James N. McKnight, Jr. and his wife Mabel S. McKnight, subject to survivorship agreements, was in fact the property of James N. McKnight, Jr. as his share of the community property at the time of his death. The case was submitted to the court upon an agreed statement of facts and judgment was rendered in favor of the defendant Mabel S. McKnight. D. D. Williams, independent executor and trustee, has appealed.

The agreed statement of facts shows that James N. McKnight, Jr. and his wife, Mabel S. McKnight, using their community funds undertook to create three joint tenancy accounts with rights of survivorship in accordance with written agreements signed by both the husband and wife. Each of such joint tenancy accounts was in the sum of $10,000.00, and the parties upon depositing such community funds executed agreements in writing, and each agreement contained language to substantially the same effect as the following quoted from the agreement accompanying the deposit of $10,000.00 of the community funds of the parties in The City National Bank of Wichita Falls, Texas, to-wit:

“It is hereby declared by the undersigned that the funds now in this account or which may hereafter come into this account from any sources whatsoever are, and shall be, the property of the undersigned jointly and severally and are to be paid by the City National Bank to us or to either of us in the absence of the other or to any person or persons duly authorized by us or either of us to receive them, or any portion of them and receipt therefor. In the event of the death of either of us, the funds shall be payable to the survivor, and in the event of the death of the survivor, the funds shall be payable to the administrator, executor, heirs, assigns or legal successors of such survivor, and at all times, the funds in this account, or any part thereof shall be paid by the City National Bank to the person or persons so entitled to draw them, regardless of the original ownership of the moneys so deposited.”

Following the death of James N. McKnight, Jr. appellee, Mrs. McKnight, withdrew all of the funds from each of said accounts and claimed such funds as her sole property and estate. Appellant, as executor and trustee under the will of James N. McKnight, Jr. then brought this suit to recover one-half of the balance of each such account at the death of James N. McKnight, Jr. contending that it was community property belonging to the estate of said decedent. It is to be noted that all of the community funds which went into the accounts under consideration were in existence at the time of and were included in the original deposits. We are, therefore, not here concerned with and do not attempt to pass upon the status of deposits of community funds which might thereafter have “come into” said accounts.

Appellant presents one point of error contending that the court erred in rendering judgment for Mrs. McKnight. Appellant urges that under Article XVI, Section XV of the Constitution of the State of Texas, Vernon's Ann.St., a survivorship agreement between husband and wife concerning community property, without more, cannot have the effect of creating separate property interests in and to such property in the parties.

Article 16, Section IS of the Texas Constitution, defines the separate property of the wife as being that owned or claimed by her before her marriage and that acquired afterward by gift, devise or descent. In 1948 Section 15 was amended to permit partition of community property. The portion of that amendment relating to the matter under consideration is as follows:

“* * * provided that husband and wife, without prejudice to pre-existing creditors, may from time to time by written instrument as if the wife were a fern sole partition between themselves in severalty or into equal undivided interests all or any part of their existing community property, or exchange between themselves the community interest of one spouse in any property for the community interest of the other spouse in other community property, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property of such spouse.
This Amendment is self-operative, but laws may be passed prescribing requirements as to the form and manner of execution of such instruments, and providing for their recordation, and for such other reasonable requirements not inconsistent herewith as the Legislature may from time to time consider proper with relation to the subject of this Amendment.”

At common law, one of the principal types of concurrent ownership of property was joint tenancy, under which all the tenants held together, in the theory of the law, but one estate. Each joint tenant owned conjointly with the other cotenants, and each was regarded as the tenant of the whole for purposes of tenure and survivor-ship. “The chief incident of 'joint tenancy’ is right of survivorship.” Tomaier v. Tomaier, 50 Cal.App.2d 516, 123 P.2d 548, 549; Vol. 23, Words and Phrases.

Article 2580, Vernon’s Ann.Tex.Civ.St. abolished joint tenancies in Texas as that type of estate existed at common law. When the Probate Code was adopted in 1955, that statute was brought forward into that code as Section 46, which section at that time provided as follows:

“Where two (2) or more persons hold an estate, real, personal, or mixed, jointly, and one (1) joint owner dies before severance, his interest in said joint estate shall not survive to the remaining joint owner or joint owners, but shall descend to, and be vested in, the heirs or legal representatives of such deceased joint owner in the same manner as if his interest had been severed and ascertained. Provided, however, that by an agreement in writing of joint owners of property, the interest of any joint owner who dies may be made to survive to the surviving joint owner dr joint owners, but no such agreement shall be inferred from the mere fact that the property is held in joint ownership.”

On May 15, 1961, Section 46 was amended by an addition of the following provision :

“It is specifically provided that any husband and his wife may, by written agreement, create a joint estate out of their community property, with rights of survivorship.”

Appellant contends that Article 16, Section 15 of the State Constitution, provides the exclusive means by which a married woman under Texas law may acquire property separate from that acquired and owned by the marital partnership of herself and her husband; that the provision of the Constitution to the effect that a husband and wife may partition between themselves all or any part of their community property contemplates a present division of the community property vesting separate property immediately upon execution of the partition agreement; that the Legislature is without power to modify or enlarge upon the methods provided by the Constitution for acquisition of separate property by a married woman and that a survivorship agreement between a husband and wife concerning community property as here under consideration and as provided by Section 46 of the Texas Probate Code, as amended, does not meet the requirements set out in Article 16, Section 15 of the Texas Constitution. In support of his contention appellant relies upon Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565. We cannot agree with appellant’s contention that a survivorship agreement between a husband and wife concerning existing community property as provided for by Section 46 of the Texas Probate Code as amended, does not meet the requirements set out in Article 16, Section 15 of the Texas Constitution. We are also unable to agree with appellant’s contention that such survivorship agreements concerning existing community property made subsequent to and in accord with Section 46 of the Probate Code are prohibited by the holding of our Supreme Court in Hilley v. Hilley, supra.

The opinion in Hilley v. Hilley was on January 25, 1961, before the amendment to Section 46 of the Probate Code as herein-before set out. It was held by our Supreme Court that under the Constitution property acquired by a wife during marriage in any manner other than by gift, devise or descent, purchase with separate funds, or partition as authorized by applicable statutory provisions does not and cannot be made to constitute her separate property. It was noted that community property might be partitioned in the manner provided in Article 4624a and that the portion of such community property set apart to each spouse thereafter became separate property of such husband and wife; that the wife as provided in Article 4614 then had the sole management, control and disposition of her separate property and could contract in connection therewith, without the joinder of her husband, and that in such cases there was no legal reason for saying that a husband and wife could not make an effective survivorship agreement covering property separately owned by either or both.

It is to be noted that at the time of Hilley v. Hilley the provisions of Section 46 related to an agreement in writing between joint owners of property in general, and did not mention community property of a husband and wife. In this connection it was stated by our Supreme Court as follows:

“We do not think the Legislature in amending Article 2580 (Sec. 46) intended to modify other statutes and provide that separate ownership might result from a transaction which does not meet the requirements of Articles 4613, 4614, 4619, 4624a and 881a-23.”

Thereafter the Legislature amended Section 46 of the Probate Code specifically stating that any husband and his wife may by written agreement create a joint estate out of their community property with rights of survivorship. Article 16, Section 15 of the Constitution provides that a husband and wife may by written instrument, as if the wife were a feme sole, partition between themselves in severalty or into equal undivided interests all or any part of their existing community property. Our Supreme Court in Hilley v. Hilley recognized this right of a husband and wife to partition their property but held that the procedure provided by the statutes of this State as above indicated should be complied with in accomplishing such a partition. The court said:

“The power of the husband and wife to transmute their community property into property held by the spouses in joint tenancy with right of survivor-ship has been recognized in other community property jurisdictions where the question has arisen. See Annotation 30 A.L.R.2d 1241. As will be pointed out later, we are inclined to the view that the marital partners also have that power in Texas, but the question to be decided here is whether they may accomplish this result by purchasing securities or other property and having the same conveyed or transferred to them as joint tenants with right of survivorship.”

There can be no question but that the holding in Hilley v. Hilley indicates that Article 16, Section 15 of the Constitution, empowers a husband and wife to transmute their community property into property held by the spouses in joint tenancy with the right of survivorship. The court held, however, that the provisions of Section 46 of the Probate Code as it then existed were not intended to repeal Article 4624a, V.A.T. C.S. which prescribed the “requirements as to the form and manner of the execution of such instruments” providing for a partition of community property; that since the requirements of Article 4624a were not complied with there was no valid and effective partition of the community property there involved, and that the stock acquired with such community property was the community property of the parties.

In our opinion the amendment of Section 46 of the Probate Code in 1961 and after Hilley v. Hilley provided another statutory method by which a husband and wife have the power to transmute their community property into property held by them in joint tenancy with right of survi-vorship. We hold that Section 46 is not unconstitutional. Article 16, Section 15 of the Constitution, provides for partition of community property. It also provides that laws may be passed “prescribing requirements as to the form and manner of execution of such instruments * * * ”. In our opinion the provisions of the amendment to Section 46, heretofore set out, is a law “prescribing requirements as to manner and form” as contemplated by the Constitution. Appellant’s points urging to the contrary are overruled.

The judgment is affirmed.


text:
    FORT WORTH CONCRETE COMPANY, Appellant, v. The STATE of Texas et al., Appellees.
    No. 16635.
    Court of Civil Appeals of Texas. Fort Worth.
    May 21, 1965.
    Rehearing Denied June 25, 1965.
    Simon & Simon, and Henry W. Simon, Fort Worth, for appellant.
    Brown, Herman, Scott & Young, and Richard E. Miles, Fort Worth, for appellees State of Texas and Tarrant County, Texas.
    Pannell, Dean, Pannell & Kerry, and Beale Dean, Fort Worth, for appellees E. F. Abbott, et ux., and E. E. Newman, et ux.
   LANGDON, Justice.

This is an appeal from an order of dismissal in a condemnation proceeding. For convenience the parties will be designated as follows: Fort Worth Concrete Company as “appellant”; E. F. Abbott and wife Eula, E. E. Newman and wife Ida as “Abbott and Newman”, and the State of Texas and Tar-rant County as “appellees”.

The appellees sought to acquire 9.889 acres of land in Tarrant County for highway purposes. Abbott and Newman, the appellant, and some taxing authorities who later filed disclaimers, were alleged to be the owners of the property. Following a hearing before special commissioners an award of $15,000 was made and the amount deposited in the registry of the Court by ap-pellees. Objections to the award were filed by Abbott and Newman and the appellant.

Thereafter the Court in response to ap-pellees’ petition granted them possession of the property and ordered appellant’s personal property to be removed therefrom. The appellees then filed a motion for a nonsuit as to the appellant and the latter filed its answer. Following a hearing on the motion the Court entered its order on December 14, 1964, granting the nonsuit and dismissing the appellant from the case.

After the order was signed the appellant requested the Court for permission to read its pleadings to the jury and to participate in the trial by presenting evidence in support of its pleadings. The Court refused the request stating that appellant had been completely out of the case since announcement of its ruling on December 11, 1964 granting the nonsuit and dismissal.

A jury trial was had between the parties remaining in the proceedings. The single issue submitted was the reasonable market value of the 9.889 acre tract of land on June 19, 1964 exclusive of all improvements, and subject to the month to month lease with appellant. The jury answered $35,000. On the basis of this finding, Abbott and Newman recovered judgment against appellees in the amount of $35,600, including interest. The Court ordered that such judgment be partially satisfied by payment to Abbott and Newman of the $15,000 on deposit.

Appellant appealed from the order dismissing it from the case and that portion of the judgment ordering the $15,000 deposit paid to Abbott and Newman.

Appellant contends that the Court erred in dismissing it because (1) appellees having secured possession of the property and with no intention of abandonment had reached the “point of no return”; (2) such action was manifestly unjust and prejudicial; (3) appellant’s filing of objections to the award was in effect the institution of a law suit by it and the County Court at Law had the sole and exclusive jurisdiction to hear such suit and determine all issues therein; and (4) the appellees’ filing of the statement seeking condemnation naming it as a party was an admission of its interest which ap-pellees were now estopped to deny and the Court had no jurisdiction to decide or to assume that appellant had no title.

By its fifth and final point the appellant contends that the portion of the judgment ordering withdrawal of the $15,000 deposit and its payment to Abbott and Newman denied to it the security guaranteed by Art. 1, § 17 of the Texas Constitution, Vernon’s Ann.St. We affirm.

Since the record is limited to the testimony and exhibits presented on the motion for nonsuit and dismissal of the appellant, the only question presented on this appeal is the propriety of the Court’s order of dismissal.

Prior to June 19, 1964, the appellant was in possession and occupied the 9.889 acre tract under a lease agreement which expired in January, 1963. An option for an additional two years was never exercised. It is stipulated that appellant occupied the premises on a month to month basis after January, 1963. All rentals had been paid to some period in June, 1964. There is no evidence that any rentals were paid by appellant to anyone thereafter, although under the evidence the property was used and occupied by the appellant until sometime in October of 1964.

A brick veneer building, a wash or batch plant, a railroad spur track, and a tin building were located on the property. These improvements were the exclusive property of appellant under the terms and provisions of the original lease agreement. Abbott and Newman had no interest therein. At some time prior to June 19, 1964, the brick veneer building was vacated by appellant. Preston M. Carter, appellant’s Vice President-General Manager, testified that his company was in possession of the brick office building on June 19, 1964, but was not using it. That in contemplation of the condemnation suit the appellant built a new office at another location and had moved into it. The appellant was likewise in possession of all remaining improvements on June 19, 1964, and used or operated same until some time during the month of October, 1964, at which time it removed all improvements from the property except the brick veneer office building. During the interval between June 19, 1964,.and October, 1964, someone had stripped the brick veneer building down to the four bare walls. The record is silent as to who stripped the building.

Roy Stanley, manager of appellant’s land department, testified — that before the expiration of the first two year term he called Abbott on the telephone and said, “ ‘Slick, this lease is going to be up on the 2d, what do we want to do about it’ ? He said, ‘Well, keep on paying the rent until the highway department runs you off, it’s all right with me if it’s all right with you.’ And I said, ‘Well, it’s sure all right with me.’ So, from that point on we just figured we had a lease on it till the highway department come in there and moved us off. * * * I told him we wanted to stay on there until we got run off.”

It appears from this testimony that appellant considered its lease and any rights under it would be terminated as of the time the appellee entered upon the property and moved them off.

The State Highway Department notified the appellant by letter dated June 19, 1964, that the amount of $15,000 had been deposited in the registry of the Court and that, “The depositing of this award entitles the State of Texas to possession of this land; therefore, we respectfully demand that you have all the improvements on this property belonging to (appellants) * * * removed from this property on or before July 20, 1964.” On June 24, 1964, Abbott and Newman filed their objections to the award of the special commissioners and appellant filed its objections on July 1, 1964, and on the same date requested the Highway Department to designate the improvements to be removed. The latter by its letter of July 8, 1964, informed appellant’s counsel it expected appellant to remove all of its property. Thereafter on July 22, 1964, the ap-pellees filed their petition for a writ of possession and for the right to remove all improvements from the property. The trial court entered its order granting possession and ordering the appellant’s personal property be removed.

“In the absence of a special stipulation to the contrary, fixtures placed upon the demised premises by the tenant are personal property, subject, however, to become parts of the realty, if not removed by him during the time allowed him by law for their removal. By agreement they may become the property of the landlord, subject only to the lease; or they may be made personalty, and, as between the landlord and tenant, the absolute property of the latter.” Wright v. Macdonell, 30 S.W. 907, (Supreme Court of Texas, 1895) ; Davis v. City of San Angelo, 376 S.W.2d 949 (Waco Civ.App., 1964, no writ history).

It is not clear from this record that the appellant had any interest, leasehold or otherwise, in the property sought to be condemned. Its original lease had expired. The option to renew was not exercised. While it was stipulated that appellant had a month to month tenancy, there was no testimony as to dates of commencement or termination. It could be assumed that the lease expired on June 2 in view of the conversation Stanley had with Abbott stating the lease is going to be up on the 2nd, coupled with the fact that appellant had constructed a new office building and moved into it sometime prior to June 19, 1964.

Under this record appellant paid no rentals after June of 1964, although it occupied and used the premises until sometime during October, at which time it removed the tin building, spur railroad tracks and batch plant. It had the privilege of removing the brick building.

The appellant contends that the right of dismissal should not be exercised by the court in a condemnation proceeding to the prejudice of the party dismissed and relies upon the holding in Brazos R. Conservation & Reclamation Dist. v. Allen, 141 Tex. 208, 171 S.W.2d 842 (1943); Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953 (1952), among other authorities.

The Supreme Court in Lower Nueces River Water Supply Dist. v. Cartwright, 160 Tex. 239, 328 S.W.2d 752 (1959), also cited by appellant, discussed the holdings in the Janes and Allen cases, supra, and held that a party dismissed from a condemnation case has not been prejudiced until or unless the condemnor attempts by such dismissal to avoid an award of damages favorable to the party dismissed and thereby allow the condemnor to try the issue of damages until it obtained an award acceptable to it. The court then stated that, “The ‘prejudice’ referred to in the cited cases is not the advantage or disadvantage, however one may view it, of having damages determined by special commissioners as compared with a district court jury. * * * It is our conclusion that all issues, including those relating to compensation, may properly be determined in the District Court in accordance with the provisions of Article 3269, and the respondents’ rights will in no wise be prejudiced by this action.”

No award favorable to appellant had been made when it was dismissed. Abbott and Newman recovered the sum of $35,000 plus interest after a jury trial and appellant claimed it was entitled to $130,000 over and above any amount due Abbott and Newman.

The record reflects that even before commencement of eminent domain proceedings the appellee contended that appellant had no interest in the 9.889 acres of land owned by Abbott and Newman or any other interest for consideration in such proceedings.

The appellee in filing its condemnation suit named all parties with a possible interest in the land sought to be condemned. Two of the parties filed disclaimers. Appellees later determined and the Court agreed that the appellant had no interest. The filing of ■ the application is not forever binding on the appellees. The application stands as an admission of title or interest therein only so long as it is not withdrawn. If the right of dismissal may be exercised without prejudice to the condemnee, then such right exists. When exercised it operates to remove all admissions as to title which are inferred from and incident to the filing of an application for the appointment of Special Commissioners under Art. 5264, Vernon’s Ann.Tex.Civ.St.; Lower Nueces River Water Supply Dist. v. Cartwright, supra.

From the briefs it is reflected that the following matters represent a portion of the issues in dispute between the appel-lees and the appellant at the time the Court entered its order of dismissal: whether the appellant had any character of lease, and if so, had it terminated and when; did appellant have a claim for loss of profits; were the improvements personalty or realty; was appellant entitled to recover for any or all of the improvements; who stripped the brick veneer office building to its bare walls. These and many other questions must be resolved to determine whether appellant has any compen-sable interest under the facts. “* * * it would seem that as a practical matter a larger and more suitable arena was called for.” Lower Nueces River Water Supply Dist. v. Cartwright, supra.

“As a matter of fact the district court, a judicial tribunal, is the proper place to try serious offenses and complicated lawsuits. It is to be preferred as a practical matter over the administrative process which is primarily designed for conciliation and settlement purposes, rather than litigation. In fact, it seems somewhat anomalous to contend that one is prejudiced for the sole and only reason that his remedy against wrong lies with the District Court, which under our Constitution, is the principal court of original jurisdiction.” Art. 5, § 8, Texas Constitution, V.A.T.S.; Lower Nueces River Water Supply Dist. v. Cartwright, supra.

The rights, if any, of the appellant to recover damages against the State will not be affected in any way by the payment of the $15,000 deposit to Abbott and Newman in partial satisfaction of their judgment. In our opinion the appellant’s bond superseding the Court’s order authorizing the clerk to pay the $15,000 deposit to Abbott and Newman was posted in violation of Art. 3268, V.A.T.S. The appellant has no interest in the judgment awarded to Abbott and Newman. It was not a party to the suit at the time of trial or as of the date judgment was entered. Its rights were not concluded by the trial between appellee and Abbott and Newman nor affected by the judgment in such case. No apportionment of the judgment awarded Abbott and Newman is involved. Appellant claims no interest therein and admits that the verdict of the jury and the judgment based thereon was confined solely to the elements of damage which pertained exclusively to Abbott and Newman.

Since by its action the appellant prevented Abbott and Newman from receiving the $15,000 deposit to which they were entitled under the Court’s judgment, the appellant and its sureties on the superse-deas bond are herewith ordered to pay 6% interest on the $15,000 award for the period beginning December 31, 1964, the date the notice of appeal and supersedeas bond were filed to the date such award is paid by the clerk to Abbott and Newman.

All points of error are overruled and the judgment of the trial court affirmed.


author: BELL, Chief Justice.

text:
    ST. PAUL MERCURY INSURANCE COMPANY et al., Appellants, v. SUGARLAND INDUSTRIES, INC., Appellee.
    No. 14593.
    Court of Civil Appeals of Texas. Houston.
    June 10, 1965.
    Butler, Binion, Rice, Cook & Knapp, Frank J. Knapp, Houston, for appellants.
    Alvin M. Owsley, Jr., and John C. Held, Houston, and Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellee.
   BELL, Chief Justice.

This is an appeal by Floyd West & Company, a partnership, and the individual partners, from an order overruling their pleas of privilege to be sued in the county of their residence. Floyd West & Company, a corporation, had its plea of privilege sustained and appellee complains of this. The insurer filed no plea of privilege and is thus not involved in this appeal.

It appears that appellee sold some cotton seed for planting to A. J. Falco et al., farmers in Falls County, to be used for planting in 1959. Falco et al. later recovered judgment against appellee on the theory that appellee made misrepresentations that the germination rate of the seed was 80%, whereas it was actually much less. The Court of Civil Appeals at Waco affirmed the judgment, awarding $52,000.00 actual damages. Sugarland Industries, Inc., v. Falco et al., 360 S.W.2d 806, writ ref., n. r. e. Appellee carried a policy of liability insurance with St. Paul Mercury Insurance Company containing a form covering certain products liability. Appellee claimed that the claimed loss of Falco et al. was covered by the policy and demanded of the insurer that it defend the suit. Coverage was denied and defense was refused. Floyd West & Company, a partnership, through its agent, Imperial Agency at Sugarland, wrote the coverage. Floyd West & Company, a corporation, was formed by the persons who had been members of the partnership, but this occurred after the events giving rise to this case.

This suit was filed against the insurer to recover the amount of the judgment rendered against appellee and for the costs of defending the suit. Floyd West & Company, a corporation, was joined in this suit but the suit against it was conditioned on a holding that the loss was not covered by the policy. By an amended pleading the partnership and its members were made parties defendant. The pleading against the defendants other than the insurer, both in the petition and the controverting affidavit, is as follows:

“Alternatively, this is a suit against the agents of the liability insurance company for failing to provide insurance of the type required by the plaintiff, if it turns out no such coverage existed, when all through the crucial period involved in this case these agents of the liability insurance company were assuring your plaintiff that it had the necessary coverage * * * plaintiff says that the other defendant was guilty of breach of contract and also alternatively guilty of carelessness and negligence and misrepresentations of coverage which were relied upon, in failing to provide your plaintiff with insurance coverage which would reimburse it for the amounts expended. Not only did they so fail contractually and tortiously, but throughout the crucial period of time in question various of them, through their agents, reassured your plaintiff that it had the very coverage necessary, all to plaintiff’s damage.”

While appellee urged the suit was maintainable in Fort Bend County, under various subdivisions of Article 1995, Vernon’s Ann.Tex.Civ.St., the case as it reaches us involves only whether suit was maintainable there under Subdivision 9a.

We reach the conclusion that under the testimony the suit was not maintainable in Fort Bend County against the defendants other than the insurer.

The testimony shows that for a number of years prior to October 1, 1958, the material policy year, appellee had had its insurance requirements written through the Imperial Agency. In about 1954 appellants appointed this agency as its agent. This relationship continued through the material period of time. During the material period the Imperial Agency was owned by Mr. I. H. Kempner who was also an officer in appellee company.

In 1956 Mr. Bob Wommack became the manager of the Imperial Agency. He obtained his employment upon recommendation of Mr. Olmstead who was connected with appellants. Unquestionably since the account of appellee was a big one, appellants were interested in having a competent man on the ground to look after the account. They wanted to sell insurance and they wanted a satisfied customer. Undoubtedly, though there is no direct evidence to this effect, they would want their agent to become familiar with appellee’s operations and see if there was additional coverage they might try to get appellee to obtain, if they sold such coverage. Mr. Wommack became acquainted with the operation. However, the coverage of appel-lee changed very little over the years and for the most part previous policies were renewed. Mr. Wommack did testify that a few changes were suggested to appellee and were accepted by it. However, Mr. Wommack testified there was never any discussion between him and representatives of appellee about coverage such as is now claimed. He did testify that when renewals came up he would go over the policies in force with the officers of the insured. In case of appellee it would be Mr. Stirl or Mr. James. Mr. Stirl was the officer of ap-pellee handling insurance matters. When asked to be specific, the witness said as a usual thing they left it to him. He said, “Whatever I would suggest, why I can’t recall everything being too much debate on it.” The witness had suggested modifications in coverage and policy limits twice since 1956.

Other evidence shows that in addition to Mr. Stirl, an officer of appellee, being in charge of insurance, that each year appel-lee had its insurance coverage analyzed by an insurance consultant from Dallas.

Nowhere is there any evidence that anyone connected with appellee ever discussed this particular coverage with any agent of appellants. Nowhere is there evidence that appellee was relying on appellants to see to it that appellee had every possible coverage on every phase of its operation. Nor do we think there is any testimony from which such inference can reasonably be drawn.

Mr. James, one of the officers of the appellee, testified and he, in his testimony, makes no such claims. It is also to be noted that Mr. Stirl, an officer in appellee company, was not even called as a witness.

We have read the entire statement of facts and we fail to find any evidence from which it may be reasonably inferred that appellants had any duty to obtain coverage unless asked by appellee to do so. Nor do we find any duty by appellants to inform ap-pellee that they do not have a particular coverage.

Apart from the absence of a breach of any duty owed by appellants to appellee, we find no evidence of negligence by appellants. The only testimony in the record shows that there was no such coverage written by any company in the United States. There is the bare indication that a witness had heard it might be available at the London market. The burden of proof to establish negligence is on appellee. It has wholly failed to introduce evidence raising any issue of negligence. We fail to see how there could be negligence that was the proximate cause of appellee’s loss where the evidence fails to show availability of coverage but in fact shows it was not available.

We here pass no judgment on whether the policy issued to appellee shall be construed to encompass the claimed coverage. For purposes of disposing of this appeal, we merely assume it does not.

We have read all of appellee’s authorities and we deem none of them controlling.

The judgment of the trial court overruling appellants’ pleas of privilege is reversed and judgment is here rendered in favor of appellants sustaining such pleas.

The judgment sustaining the plea of privilege of Floyd West & Company, a corporation, is affirmed.


author: STEPHENSON, Justice.

text:
    GRANITE STATE FIRE INSURANCE COMPANY, Appellant, v. Archie M. ROBERTS et al., Appellees.
    No. 6769.
    Court of Civil Appeals of Texas. Beaumont.
    June 3, 1965.
    Motion for Rehearing Overruled June 16, 1965.
    John H. Benckenstein, Beaumont, for appellant.
    Adams & Browne, Keith, Mehaffy & Weber, Beaumont, for appellees.
   STEPHENSON, Justice.

This is an action on an insurance policy. Trial was before the court and judgment was rendered for the plaintiffs. The parties will be designated here as they were in the trial court.

All of the facts were stipulated by the parties. Defendant Granite State Fire Insurance Company wrote a policy of insurance upon an automobile owned by Harold T. Parker. In the application for insurance Parker stated that he was not under 25 years of age. This statement was false, as Parker was 24 years old. This misrepresentation was made for the purpose of obtaining a lower premium rate. Parker left his automobile with Boyd L. Pearson, Jr., for the purpose of having Pearson make a carburetor adjustment. While driving the automobile, Pearson was in collision with another automobile in which plaintiff Roberts was a passenger. Plaintiff Roberts was injured and brought another suit against Parker and Pearson. Defendant Granite State Fire Insurance Company investigated the collision and found that Parker had misrepresented his age, and defended Parker in such suit under a reservation of rights. United States Casualty Company, one of the plaintiffs in this present suit, had written a policy of insurance on Pearson with limits of $5,000.00 for bodily injury to one person. United States Casualty Company defended Pearson in the first suit filed, which grew out of the collision. Roberts recovered a judgment against Pearson for $6,700.00, which judgment became final. Demand of payment was made upon defendant which was refused. United States Casualty Company paid Roberts $5,000.00 plus interest and incurred certain expenses defending the first suit. This action was brought by plaintiff Roberts to recover $1,700.00 plus interest, which was the balance due on the judgment recovered in the first suit against Pearson. United States Casualty Company joined in this suit as plaintiff to recover the $5,000.00 paid plaintiff Roberts on the Pearson judgment and also to recover the cost of defending Pearson in the first case.

Defendant contends that the misrepresentation by Parker of a material fact, that is, as to his age, for the purpose of securing a lower premium rate, relied upon by defendant, made the policy of insurance void or voidable. Defendant also contends this misrepresentation was a breach of warranty.

The misrepresentation as to age was contained in the rating information endorsement or application which was attached to the policy of insurance. This endorsement contained the following provision:

“It is agreed that this endorsement is for rating information only, and does not affect any of the declarations, insuring agreements, exclusions, or conditions of the policy, other than the applicable premium for the coverages afforded.”

We have been cited no Texas cases directly in point. We have concluded that this policy of insurance would be void or voidable only as it was so provided in the policy. If the insurance company had intended that the policy of insurance be void or voidable it could have provided in the policy that there would be no coverage if the age of the insured was misrepresented. The terms of this policy indicates that such was not the intention of the parties as it is specifically provided that this endorsement containing the information as to the age of the insured is for rating information only, and does not affect any of the declarations, insuring agreements, exclusions or conditions of the policy. (Emphasis ours) For the same reasons this was not a breach of warranty. There is no pleading nor stipulation that defendant would not have entered into this contract of insurance if it had known Parker was less than 25 years of age. There is every indication that defendant would merely have collected a higher premium for the insurance. The points are overruled.

Defendant next contends it is not bound under the policy of insurance because Pearson was driving the automobile at the time and place of the collision without the knowledge and permission of Parker. This policy of insurance provided that the persons insured with respect to the automobile are:

“(1) the named insured and any resident of the same household,
“(2) any other person using the automobile, provided the actual use thereof is with the permission of the named insured.”

The facts in reference to this point were stipulated to as follows:

“On the night of April 29, 1958, Harold T. Parker left his automobile with Boyd L. Pearson, Jr., in Beaumont, Texas, for the purpose of having Pearson complete a carburetor adjustment, with the understanding that Pearson would deliver the said automobile to Parker at the Gulf Oil Corporation’s parking lot in Port Arthur, Texas, the following morning. Both Harold T. Parker and Boyd L. Pearson, Jr., were employed at the Gulf Oil Corporation in Port Arthur, Texas. Pearson completed the carburetor adjustment and the next morning, without the knowledge of Parker, instead of taking the automobile directly back to Parker, at the Gulf Oil Corporation parking lot in Port Arthur, Texas, he on said day (April 30, 1958) used it to pick up members of his (not Parker’s) car pool to take them from their respective residences to the Gulf Oil Corporation at Port Arthur, before getting the car to Parker. While so using said car to pick up members of his car pool and while enroute to the residences of the members of his car pool in Beaumont, Texas, Pearson was involved in a collision at the intersection of Fillmore and Cleveland Streets, Beaumont, Texas, with an automobile driven by Peter Victor Garcia and in which collision Archie M. Roberts sustained bodily injuries.”

It is noted that according to the stipulation it was the understanding that Pearson would deliver the automobile to Parker at the Gulf Oil Corporation’s parking lot in Port Arthur, Texas, the following morning. There was nothing in the stipulation to show that it was agreed that Pearson would take the shortest and most direct route, and that Pearson would not pick up the members of his car pool on the way. The term “permission” is broader than the term “course of employment”. We hold that Pearson was driving with permission of Parker at the time of the collision. If this was a deviation from the permission granted, it was only a minor deviation, and would not have the effect of removing the trip taken from coverage by the insurance policy. Sheppard v. Employers’ Casualty Co., Tex.Civ.App., 365 S.W.2d 367. The point is overruled.

Defendant also contends the judgment against it in the amount of $8,768.49 is in excess of its policy limit of $5,000.00. The two paragraphs in the judgment reflecting the disposition of this case read as follows:

“ORDERED, ADJUDGED AND DECREED by the Court that the plaintiffs, Archie M. Roberts, Boyd L. Pearson, Jr., and United States Casualty Company, do have and recover of and from the defendant, Granite State Fire Insurance Company, the sum of SEVEN THOUSAND SEVENTY-ONE and 36/100 DOLLARS ($7,071.36), together with interest thereon at the rate of six per cent (6%) per annum from October 3, 1960, amounting to SIXTEEN HUNDRED NINETY-SEVEN AND 13/100 DOLLARS ($1,-697.13), for a total sum of EIGHT THOUSAND SEVEN HUNDRED SIXTY-EIGHT AND 49/100 DOLLARS ($8,768.49).
“It is further ORDERED, ADJUDGED, and DECREED by the Court that the above-described amount of EIGHT THOUSAND SEVEN HUNDRED SIXTY-EIGHT and 49/100 (($8,768.49) DOLLARS adjudged against the defendant, Granite State Fire Insurance Company, shall be apportioned between the plaintiffs by awarding the plaintiffs, Archie M. Roberts, and Boyd L. Pearson, Jr., the sum of SEVENTEEN HUNDRED AND NO/100 DOLLARS ($1,700.00), together with interest thereon in the amount of FOUR HUNDRED EIGHT AND NO/100 DOLLARS ($408.00), for a toal sum of TWO THOUSAND ONE HUNDRED EIGHT AND NO/100 DOLLARS ($2,108.00), and awarding the plaintiff, United States Casualty Company, the sum of FIVE THOUSAND THREE HUNDRED SEVENTY-ONE AND 36/100 DOLLARS ($5,371.36), together with interest thereon in the amount of ONE THOUSAND TWO HUNDRED EIGHTY-NINE AND 13/100 DOLLARS ($1,289.13), for a total sum of SIX THOUSAND SIX HUNDRED SIXTY and 49/100 DOLLARS ($6,-660.49).”

The total amount of the judgment, that is, $8,768.49, is $5,000.00 plus the amount of expense incurred by United States Casualty Company, plus interest from the date of the original judgment at the rate of 6% per annum. Inasmuch as the total amount of the judgment is correct, the apportionment of this amount by the court among the plaintiffs is a matter only the plaintiffs can complain about. The point is overruled.

Affirmed.


text:
    W. W. (Woody) HEIDELBERG et ux., Appellants, v. Arthur HARVEY and Harvey Park Company, Appellees.
    No. 5696.
    Court of Civil Appeals of Texas. El Paso.
    May 26, 1965.
    Rehearing Denied June 16, 1965.
    Leonard Howell, Midland, for appellants.
    Deaderick, McMahon & McKim and Robert B. Cox, Odessa, for appellees.
   PRESLAR, Justice.

This is an appeal from a summary judgment decreeing that appellants take nothing on their cross-action against appellees for damages to growing crops and land caused by appellees’ having removed a pipeline from appellants’ land. Appellants also seek to question an order of the trial court holding that a temporary restraining order against them was rightfully issued and valid. In question are the rights of the parties under a pipeline right of way easement granted by appellant W. W. Heidelberg’s father to appellees. We affirm.

The easement granted by appellent’s father, N. L. Heidelberg, was across land the title to which was solely in his name; but it was the community property of N. L. Heidelberg and his wife during her lifetime. The wife died intestate, and was survived by appellant and other children. The easement in question was executed by N. L. Heidelberg some two months after the death of his wife. Soon after execution of the easement N. L. Heidelberg died intestate and, by a partition suit, appellant acquired the land over which the easement was granted. The easement, undated, but acknowledged on January 23, 1951, granted appellees the right to lay, maintain, operate and remove a pipeline for transportation of water across the land involved for so long as used for the purposes granted and until abandoned by the grantees. The instrument recited a consideration of Ten Dollars, and provided that such consideration included any damages to growing crops on the premises by reason of grantees’ operations. It also provided that grantor should have the right to use water from the line for household and livestock purposes, when available, without liability on the grantees’ part to furnish such water. The instrument was filed for record soon after its execution, and apparently the pipeline was installed about the same time, 1951. Appellant testified that he was reared on the land, but moved away in 1938, later returned to build a house on it in 1960, and then resided there and began to farm it. He further testified, and stated by affidavit, that he was not aware of the easement instrument and did not know about the existence of the pipeline until the latter part of 1959, and soon thereafter contacted appellees about taking water from the line, and that he received from appellees a letter offering to sell him water for five dollars per month. He never accepted this offer in writing, but did begin using water from the line and continued to do so for some eighteen months, until the line was removed from his land, and he never paid for the water used. That removal brought on this suit. Appellees contracted for the sale of the pipeline and for its removal, and when appellants refused their numerous requests for permission to go on the land and effect the removal, appellees obtained a temporary restraining order on November 17, 1961. When this case came on for hearing on November 27, 1961, appellees did not seek to ripen the restraining order into a temporary injunction for the reason that they had then completed removal of the pipeline. The parties did appear for the hearing, and appellants offered testimony in an attempt to show that the temporary restraining order was wrongfully issued. Appellants appealed the court’s ruling that the temporary restraining order was not wrongfully issued. This court affirmed (Heidelberg v. Harvey, 366 S.W.2d 121), but the Supreme Court dismissed the appeal, holding that it was not an appealable order (368 S.W.2d 947). As indicated, appellants filed a cross-action for damages to their crops and land, summary judgment was granted appellees as to such cross-action, and from such summary judgment this appeal is brought.

We are of the opinion that appel-lees were bona fide purchasers in the acquisition of their rights under the easement instrument, and that such rights as they acquired thereunder were therefore free of any claim of appellants. It is undisputed that they acted within the terms of the instrument in going upon the land and removing the pipeline. The question is whether such instrument gave them any rights as to the one-half interest of the mother which had passed to the children at the time such instrument was executed by the father solely. The rule of law controlling this case is well stated in Connor v. Lane, Tex.Civ.App., 355 S.W.2d 223:

“Appellants say that Lane proved only an equitable title, because the deed to his stepfather, the asserted common source, named only the stepfather as grantee; that under such decisions as Hill v. Moore, 62 Tex. 610; Patty v. Middleton, 82 Tex. 586, 17 S.W. 909; Howard v. Commonwealth Bldg. & Loan Ass’n., 127 Tex. 365, 94 S.W.2d 144; and Stahl v. Westerman, Tex.Civ.App., 250 S.W.2d 325, where only the husband’s name is mentioned in the deed by which community property is acquired, the wife’s interest therein is equitable in nature, and upon her death such interest passes to her heirs as an equity; and therefore Lane is in the position of seeking to prevail over the holders of the legal title by showing only an equitable title or interest.”

So it is in the case under consideration. Appellants, on the date of execution of the right of way instrument, had an equitable title, and appellees had the legal title. Under the above authorities the legal title prevails, unless it be shown that the holder of the legal title was not an innocent purchaser. Under such circumstances, the burden rests on the holder of the equitable title to establish that the holder of the legal title had notice, and thus was not an innocent purchaser. Connor v. Lane (supra) and cases there cited. This being a summary judgment proceeding, appellants’ burden would not be to establish that appellees had notice, but to raise a fact question as to whether they had notice. Appellants correctly set out that in a summary judgment proceeding the burden is on the movant to negative the existence of a material issue of fact; but that does not change the burden of proof and make what would ordinarily be a plaintiff’s issue one for the defendant, or vice versa. We are of the opinion that the affidavits and testimony before the court did not raise a genuine issue of fact as to the question of notice, on appellees’ part, of the equitable title of appellants. In the absence of such notice, appellees were bona fide purchasers of the legal title, which entitled them to take the action which they did in removing their pipeline from the lands, free of any claim for damages from appellants.

By their second and third points of error, appellants again seek to question on appeal the court’s order holding that the temporary restraining order was not wrongfully issued. That order still stands in the record in the same form as when the Supreme Court ruled that it was not an ap-pealable order. Since it is the same order, and the question of its appealability has been settled it is not before us now except that the same question was involved in it that is also in the summary judgment proceeding: e. g., the rights of the parties under their respective titles. Determination of that question in the summary judgment proceeding would dispose of the temporary restraining order if it were before us.

All points of error having been overruled, the judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    YORK CORPORATION, Appellant, v. SECURITY SAVINGS AND LOAN ASSOCIATION, DICKINSON, TEXAS, Appellee.
    No. 14575.
    Court of Civil Appeals of Texas. Houston.
    June 10, 1965.

      Kenneth J. Peden, Childress, Port & Crady, Houston, for appellant.
    Palmer & Bell, Ralph L. Bell, Dickinson, for appellee.
   COLEMAN, Justice.

The York Corporation has appealed from a summary judgment for the amount of certain promissory notes, together with interest and attorney’s fees, and for the foreclosure of mechanics’ and materialmen’s liens securing the notes, rendered in favor of the Security Savings and Loan Association.

By its original petition appellee made M. H. Ferris and wife, Margret Ferris, Dr. E. M. Ammons, J. T. Stover and L. C. Loper, d/b/a Construction Associates, the York Corporation and David Onstead, defendants.

The York Corporation answered and filed a cross-action against C. M. Ammons, M. H. Ferris and Margret Ferris, alleging that they were indebted to it for labor and materials and praying judgment against them in the amount of the debt, for the establishment and foreclosure of their ma-terialmen’s lien. They also alleged that this lien was superior to that of appellee and prayed an adjudication to that effect.

The motion for summary judgment reflects that all defendants except M. H. Ferris and Margret Ferris answered. While these answers are not in the transcript, the answers filed by the defendants Stover and Loper, and the defendant David Onstead were introduced into evidence at the hearing on the motion for summary judgment. The answer of defendants Stover and Loper prayed for a judgment over against Ferris and Ammons. The answer of Onstead contained a cross-action against Ferris and Loper for debt for labor performed.

The answer and cross-action of Stover and Loper was filed October 16, 1964; that of Onstead was apparently filed on or about August 17, 1964, and that of York Corporation, September 16, 1964. The motion for summary judgment was filed September 28, 1964, and the judgment rendered on November 25, 1964.

Since no summary judgment was sought by defendants, the judgment could not properly have disposed of the various cross-actions filed by them inter se by implication. The transcript does not reflect that the cause of action on which • judgment was rendered was severed from the cross-actions.

Appellee points out that the transcript does not reflect that service was obtained on the cross-actions. Neither does it reflect that they were dismissed for want of prosecution and since they were filed thirty to sixty days before the hearing on the motion for summary judgment, no great delay in obtaining service is shown.

Under these circumstances the summary judgment rendered is interlocutory and not a final judgment from which an appeal can be prosecuted to this Court. Davis v. McCray Refrigerator Sales Corporation, 136 Tex. 296, 150 S.W.2d 377.

Appeal dismissed.