author: WILLIAMS, Justice.

text:
    REPUBLIC NATIONAL BANK BUILDING COMPANY, Appellant, v. J. W. MYATT, Appellee.
    No. 16007.
    Court of Civil Appeals of Texas. Dallas.
    May 11, 1962.
    Rehearing Denied June 8, 1962.

      Thompson, Knight, Wright & Simmons, and Timothy E. Kelley, Dallas, for appellant.
    Akin & Vial, Henry D. Akin, Jr., Dallas, for appellee.
   WILLIAMS, Justice.

This is a “slip and fall” personal injury action. On February 14, 1958 Mrs. Alice Myatt, wife of J. W. Myatt, was an employee of C. L. Norsworthy, Jr. who occupied offices on both the 26th and 27th floors of the Republic National Bank Building in Dallas, Texas. Five elevators operated between these two floors. Also, there was a transfer stairway between the two floors which was habitually used by Mrs. Myatt and other Norsworthy employees for inter-office traffic, said stairway being used more frequently than the elevators because “it was handier”. The stairway in question consisted of two flights of stairs, each flight having ten steps, and said two flights being separated by a landing. Each step of the flight is composed of a concrete tread which is in-cased in a steel riser and steel side pieces with a one inch wide metal strip on the front edge of each step. On the day in question Mrs. Myatt was descending the transfer stairway from the 27th floor to deliver payroll checks to the employees on the 26th floor. She had reached the landing and had just started down the second flight of stairs when she slipped and fell, resulting in personal injuries. Suit was instituted by J. W. Myatt against Republic National Bank of Dallas and Republic National Bank Building Company. The Travelers Insurance Company intervened, seeking to recoup workmen’s compensation insurance payments previously made to Mrs. Myatt. Plaintiff alleged numerous acts of negligence on the part of the defendants to which the defendants responded, contending that Mrs. Myatt was guilty of contributory negligence; that the condition of the stairway where plaintiff sustained her fall was open and obvious; that the doctrine of volenti non fit injuria was applicable in that Mrs. Myatt voluntarily exposed herself to the risk of injury which was open and obvious to her. At the conclusion of the testimony the defendant Republic National Bank of Dallas was dismissed from the case by instruction and such action is not here contested.

The case was submitted to the jury on special issues, sixteen in number, but we need only to refer to the issues which we deem material to this appeal. Special Issue No. 1 was: “Do you find from a preponderance of the evidence that defendant building corporation failed to provide the steps in question with an abrasive substance in addition to the existing surface thereon at the time and on the occasion in question?” To this question the jury answered: “Yes”. In answer to Special Issues Nos. 2 and 3 the jury found that such failure was negligence and a proximate cause of Mrs. Myatt’s injuries. Special issue No. 4 asked: “Do you find from a preponderance of the evidence that the steps in question were maintained by the defendant building corporation in an excessively slick condition immediately prior to the accident in question? By the term such ‘excessively slick’ as used in this issue, is meant a slickness in excess of that that would have been maintained by a person of ordinary prudence exercising ordinary care.” To this issue the jury answered : “No”. The jury then acquitted Mrs. Myatt of various acts of contributory negligence. In Special Issue No. 15, the court asked: “Do you find from the preponderance of the evidence that the condition of the stairway on the occasion in question was not open and obvious to Alice Myatt? In connection with the foregoing Special Issue, you are instructed that the term ‘open and obvious’ means a condition which is as readily viewable and ascertainable by Alice Myatt, as it is readily viewable and ascertainable to the employees of the defendant Republic National Bank Building Company.” The jury answered this issue: “It was open and obvious.”

The defendant Building Corporation moved for judgment on the verdict and, in the alternative, moved for judgment notwithstanding the verdict; motion for mistrial, and motion to disregard the jury’s answers to Special issues Nos. 1, 2 and 3. The court overruled these motions and sustained plaintiff’s motion for judgment, rendering judgment upon said verdict for plaintiff and also judgment for the inter-venor, Travelers Insurance Company.

Appellant appeals, assigning four points of error, (1) the error of the trial court in overruling appellant’s motion for instructed verdict; overruling motion for judgment notwithstanding the verdict of the jury; and in overruling the motion to disregard the jury’s answers to Special Issues Nos. 1, 2 and 3, because (a) there was no duty to provide the steps in question with an abrasive substance because the jury found that the stairs were not maintained in a slick condition, and because there was no evidence that a dangerous defective condition existed on the stairway; (b) there was no evidence of negligence on the part of appellant; (c)' because Special Issues Nos. 1, 2 and 3-should not have been submitted in that they are purely evidentiary in character;-(2) the error of the court in overruling: appellant’s motion for new trial because the jury’s answers to Special Issues Nos. 1, 2 and 3 are in conflict with the answer of the jury to Special Issue No. 4; (3) the error of the court in overruling appellant’s motion for instructed verdict; motion for judgment notwithstanding the verdict of the jury; and motion to disregard the jury’s answers to Special Issues Nos. 1, 2 and 3, because (a) the jury’s answer to Special Issue No. 15 (the condition of the stairway being open and obvious) establishes that appellant owed no duty to Mrs. Myatt and that appellee is barred from recovery by the defense of volenti non fit injuria; (b) that the evidence establishes conclusively and as a matter of law that, because Mrs. Myatt voluntarily encountered the risk of the alleged condition of the stairway that appellant owed no duty to Mrs. Myatt with respect to such open and obvious, condition, and that appellee is bar-red from recovery by the defense of volenti non fit injuria; and (4) the error of the trial court in rejecting requested Special Issues Nos. 1 and 2 in connection with the defense of “no duty” and volenti non fit injuria.

We have carefully reviewed all of the testimony introduced at the trial of this case concerning Mrs. Myatt’s fall on the occasion in question and also the condition of the stairway, both prior to and at the time of her fall. Appellant concedes that the evidence is conflicting regarding the alleged slick condition of the stairway. Appellee’s witnesses testified that the steps were slick, shiny and slippery, whereas appellant’s witnesses maintained that the steps were not slick or slippery and were cleaned and maintained in a proper manner. At the time of her fall Mrs. Myatt, who was then 37 years of age, had been working for C. L, Norsworthy, Jr. for a period of two years. In the course of her duties Mrs. Myatt used the transfer stairway whenever necessary, perhaps “once a week, or frequently twice a week” during the two year period of her employment preceding her injury. On the day in question she was proceeding down the stairway to the 26th floor wearing regular heeled shoes, and carrying payroll checks in her hand. She testified that she was not in a hurry, that she was not running, and that she was watching where she was going. ■She said that she had gotten to the halfway landing between the 26th and 27th floors and had started around this halfway landing when she started to slip and fall. She said that after she fell she looked back up the stairs and saw something that appeared “shiny”. Mr. Thomas, Chief of Service of the appellant, testified that there was a glazed area, being a smoothness on the stairs, being caused by wear of leather; that the second and third step was worn smooth. He testified that the stairs' had not been equipped with corrugation or an abrasive edge. He also admitted that he knew that this particular stairway was frequently used, instead of •the elevators, and that no special procedure had been taken in connection with this stairway. .

Appellant’s points complaining of “po evidence” to support the jury’s answers to Special Issues Nos. 1, 2 and 3 (regarding lack of abrasive substance on the stairway) must be overruled. In passing upon “no evidence” points we are governed by the well-established rule that an issue of fact is raised, if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, the jury might have found in favor of the plaintiff. Wininger v. Fort Worth & Denver City Ry. Co., 105 Tex. 56, 143 S.W. 1150; Great Atlantic & Pacific Tea Co. v. Giles, Tex.Civ.App., 354 S.W.2d 410, and cases therein cited. As demonstrated above, there is conflicting evidence concerning the condition of and maintenance of the stairway in question, hence such “no evidence” points must be overruled. Nor can we agree with appellant that the issue complained of is evidentiary.

We are unable to agree with appellant in its contention that the jury’s answer to Special Issues Nos. 1, 2 and 3 (lack of abrasive substance on the stairway) are in conflict with the jury’s answer to Special Issue No. 4 which found that the stairway was not “maintained” in a slick condition. Both Special Issue No. 1 and Special Issue No. 4 were submitted affirmatively in support of plaintiff’s contention of defendant’s primary negligence. Both were proper issues under the pleadings and evidence raised. The question of placing an abrasive substance “in addition to the existing surface” of the stairway involved a question of construction of the stairway. The question, as reflected by Issue No. 4, as to whether the steps in question “were maintained” in an excessively slick condition, inquires concerning maintenance as opposed to construction. We do not believe that the jury’s answers to these issues are conflicting, therefore we overrule appellant’s second point.

We turn now to a consideration of appellant’s third and fourth points, the same being in essence, that appellee is barred from recovery, as a matter of law, because of the jury’s answer to Special Issue No. 15 concerning the “open and obvious” condition of the stairway, or, in the alternative, that if such jury response, in itself, is not sufficient to bar recovery then the trial court erred in refusing to submit requested Special Issues 1 and 2 which encompassed the essential elements of the defense of “no duty” and, “volenti non fit injuria”. These points of error again accent the ever increasing problems that confront our courts in cases of this kind involving “open and obvious conditions.” Keeton, U. of Pa.L. Rev. 100 pp. 629-648. The climate of confusion has been dissipated in large measure by our Supreme Court in the landmark case of Robert E. McKee, Gen. Cont. v. Patterson, 153 Tex. 517, 271 S.W.2d 391. In that case Patterson, an employee of a subcontractor, climbed a ladder to perform his work. The ladder was located on a slick floor. He fell and sustained injuries and his resulting suit for damages raised the defensive issue of “open and obvious” condition and “volenti non fit injuria”. Chief Justice Calvert, in a far reaching and comprehensive opinion denying recovery, announces rules of law which are determinative of the instant appeal. Accordingly, we quote extensively from that opinion. Bearing in mind that we are here concerned with the defensive issues, aside from contributory negligence, we quote Judge Calvert’s basic pronouncement of this applicable rule:

“There are two legal theories, wholly aside from the plaintiff’s own negligence, for denying liability in a suit against an owner or occupier of land brought by an invitee for injuries growing out of open and obvious dangers thereon. One rests on the judiciál •concept that there is no breach of any duty the landowner owes to his invitees. The other arises out of the doctrine of violenti non fit injuria — voluntary encountering risk — which is regarded as a defense to all negligence actions. In this state both theories are recognized. Actually, in their application to a given fact situation the two theories so completely overlap as to be almost Indistinguishable.”

The Court then proceeded to say that it was necessary to determine whether there was a breach of duty by the defendant before reaching the other questions presented by the defense of voluntary exposure to risk. The Court then said:

“In determining whether a landowner is liable to an invitee for injuries sustained on the premises, the duty of the landowner is frequently phrased as one ‘to exercise ordinary care to keep the premises in a reasonably safe condition’ so that the invitee will not be injured. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073, 1074; Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625, 628-629; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 615. But that is only a simplified statement of the duty, sufficient to meet the problems presented in the particular cases. There are certain qualifications not there expressed. It is now well established in this state that the duty as there expressed does not extend to those invitees who know or should know of the existence of the particular condition and who appreciate or should appreciate its dangers. Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497; A. C. Burton Co., Inc., v. Stasny, Tex.Civ.App., 223 S.W.2d 310, writ refused; Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Hausman Packing Co. v. Badwey, Tex.Civ.App., 147 S.W.2d 856, writ refused; Marshall v. San Jacinto Bldg., Tex.Civ.App., 67 S.W.2d 372, writ refused. What the qualification means, of course, is that inasmuch as the invitee has knowledge of the dangers there is no duty on the owner to warn him of them. It means also that if, having knowledge of the dangers, the invitee exposes himself to them he must take the premises as he finds them and there is no duty on the owner to protect him even by the use of reasonable precautions to eliminate the hazards.”

The Court then turned to the defense of voluntary exposure to risk:

“In determining liability, under the defense of voluntary exposure to risk, it is said that one cannot recover for injuries sustained while voluntarily exposing himself to a danger which he either does or should fully realize and appreciate. 38 Am.Jur. 845 et seq., Negligence, Secs. 171-173; 65 C.J.S., Negligence § 174, p. 848; Levlon v. Dallas Ry. & Terminal Co., Tex.Civ.App., 117 S.W.2d 876, writ refused; Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172, 174; Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607, 610.”

The Court then turning attention to the important question of “knowledge and appreciation of danger” said:

“In all such cases, knowledge of the existence of the condition and appreciation of the danger therein by the parties are important factors in determining liability, but the rule for determining whether the parties should have known of the condition and appreciated its danger is not always the same as to each. The owner is charged with knowledge of any dangerous condition that a reasonable inspection would have revealed because his duty to keep his premises in a reasonably safe condition for use by his invitees includes a duty to inspect. Smith v. Henger, [148 Tex. 456, 226 S.W.2d 425] R. E. Cox Dry Goods Co. v. Kellog, Tex.Civ.App., 145 S.W.2d 675, writ refused. There is no such obligation on the invitee. Peck v. Peck, 99 Tex. 10, 87 S.W.248; Triangle Motors of Dallas v. Richmond, Tex., [152 Tex. 354] 258 S.W.2d 60, 63. While he may not close his eyes to obvious dangers, he has a right to assume that the premises are safe for his use. Blanks v. Southland Hotel, Inc., 149 Tex. 139, 229 S.W.2d 357, 360; Triangle Motors of Dallas v. Richmond, supra; Restatement of Torts, Vol. 2, Secs. 343a and 343d.”

The Court then reaching the crucial question of the necessary elements to establish liability and to establish the defense of voluntary exposure said:

“In order to fix liability on the owner it must first be established that he knew or should have known of the existence of the condition and that he should have appreciated its dangers. Once this is established either as a matter of law or by a fact finding, the inquiry then turns to what was known and appreciated, or should have been known and appreciated, by the invitee. In some cases, the existence of the condition may be so open and obvious and the dangers inherent in it so apparent that we may say as a matter of law that the invitee should have known of and appreciated them. Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Marshall v. San Jacinto Bldg., Tex.Civ.App., 67 S.W.2d 372, writ refused; A. C. Burton Co. v. Stasny, Tex.Civ.App., 223 S.W.2d 310, writ refused; United Gas Corp. v. Crawford, 141 Tex. 332, 172 S.W.2d 297. In others, whether the condition was so open and obvious and the dangers in it so apparent that the invitee should have known of them may be fact questions. Triangle Motors of Dallas v. Richmond, Tex., [152 Tex. 354] 258 S.W.2d 60; Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497; Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357.”

The Court then found that the evidence was undisputed that both the defendant and the plaintiff knew of the slick and dangerous condition of the floor and that Patterson fully appreciated the danger of working on it when he mounted the ladder in question. So, said the Supreme Court the question of knowledge and appreciation of danger was established, as a matter of law.

Appellant, here asks us to do that which the Supreme Court did in McKee, that is to say, find, as a matter of law, that Mrs. Myatt knew and fully appreciated the danger of walking on the stairs on the occasion in question. Appellant argues that the case clearly falls within the rules of Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374, which involved walking over a slick marble floor, known to be slick by the person injured. With this contention we cannot agree. The testimony in this case does not establish, as it did in McKee and Adair, that the injured person knew and appreciated the condition which proved to be dangerous, as a matter of law. Mrs. Myatt testified that she did not know of the dangerous condition of the stairs prior to the time she descended the stairway on the occasion in question, such testimony of an interested party raising an issue of fact.

The finding of the jury in answer to Special Issue No. 15 to the effect that the condition of the stairway in question was “open and obvious”, which finding appellee bere does not attack being unsupported by the testimony, presents clearly the “no duty” rule as discussed by Judge Calvert above. But, as Judge Calvert said there must be an appreciation of the danger and a voluntary exposure thereto, following knowledge. As stated above, it is our opinion that the testimony in this case cannot be said to establish the necessary elements of appreciation of danger, as a matter of law. Point three is overruled.

Being an issue of fact, the trial court was requested to submit to the jury defensive Special Issues 1 and 2 which inquired (1) whether Mrs. Myatt knew of the slippery condition of the stairway, or by an exercise of ordinary care should have known it, and (2) whether Mrs. Myatt appreciated the full extent of the danger involved in the use of the stairway. These issues were refused and there are no jury findings upon these necessary elements of the defensive issues.

Appellee earnestly contends that if appellant is correct in its fourth point concerning refusal of defensive issues, then such point should be overruled because appellant did not request the defensive issues ■in substantial correct form, thereby waiving same under the rule. Rule 279, Texas Rules of Civil Procedure. In support of this contention appellee points to the fact that there was no issue requested concerning ■the “voluntary” exposure to the risk. We cannot agree with appellee in this connection. The testimony reveals that, without dispute, Mrs. Myatt voluntarily, and of her own choice, utilized the stairway m question as a matter of convenience to her, rather than utilize the elevators, which were equally available to her in proceeding between the two floors of the building. The same contention was raised and decided adversely to appellant McKee, supra, and in Rittenberry v. Robert E. McKee, Gen. Cont., Inc., Tex.Civ.App., 337 S.W.2d 197. See also Franklin v. City of Galveston, Tex. Civ.App., 256 S.W.2d 997; Chekanski v. Texas & N. O. Ry. Co., Tex.Civ.App., 306 S.W.2d 935 and Keeton, Personal Injuries Resulting from Open and Obvious Conditions — Special Issue Submission in Texas, 33 Tex.L.Rev. 1, 9.

Finding, as we do, that appellant properly requested the submission of its defensive issues, it necessarily follows that the court’s refusal to submit same constitutes reversible error. Appellant’s fourth point is sustained.

The judgment of the trial court is reversed and remanded.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    Henry GASTON et al., Appellants, v. Ida Gaston BRUTON et al., Appellees.
    No. 5520.
    Court of Civil Appeals of Texas. El Paso.
    May 30, 1962.
    Rehearing Denied June 20, 1962.

      Copeland & Clayton, Brownfield, for appellants.
    New & Townes, Denver City, for appel-lees.
   CLAYTON, Justice.

This is a suit brought by appellees in the District Court of Gaines County, Texas, against appellants in which the latter, after an adverse judgment, appealed. All parties are heirs of Nancy A. Gaston, who died in Brownfield, Terry County, Texas, on April 27, 1959 at the age of ninety-one years. The deceased ancestor left a holographic will dated September 14, 1955 which merely disposed of her money in certain bank accounts to be divided among her heirs and which named her daughter, Ida Bruton, “executrix without bond”. The daughter failed to qualify and a son, Henry Gaston, one of the defendants, was appointed administrator. The will made no disposition of any real estate, and administration was still pending at the time of this suit.

Plaintiffs’ first amended original petition had alternate pleas: the first alleging trespass to try title in statutory form, and the second alleging that all parties to the suit were heirs of Nancy A. Gaston, setting out their respective undivided interests in her estate, and seeking to set aside a deed purportedly executed by the ancestor to the defendants on July 13, 1955 covering a parcel of land in Gaines County, Texas. The alternate plea alleges that this deed was not executed by the said Nancy A. Gaston “as her own free will and act and deed”, but that if she did sign such deed, she did not have at the time of its execution sufficient mental capacity to execute the same or to understand the nature and effect of such act.

Appellants answered this petition by pleading not guilty in the trespass to try title, and by specific denial of the allegations in the alternate plea. No plea in abatement, or motions or special exceptions contemplated by Rules 85 and 90, Texas Rules of Civil Procedure, were advanced in the answer.

The case was tried to a jury, and after appellees had presented their case in main and rested, appellants moved to dismiss the cause in so far as it related to trespass to try title on the grounds that “during the trial it developed that the cause of action in Trespass to Try Title is one in which assets are involved which may be decreed a part of the estate of Nancy A. Gaston, deceased” and that “it is necessary as a jurisdictional matter for Plaintiffs to prove that no administration is pending and that none is necessary” concerning said estate, and that plaintiffs had failed to so prove. This motion was overruled.

The charge to the jury contained two special issues accompanied by appropriate definitions of “preponderance of the evidence” and “mental capacity”. These special issues were:

“SPECIAL ISSUE NO. 1

“Do you find from a preponderance of the evidence that on the 13th day of July, 1955, at the time the deed here in question was executed, that Nancy A. Gaston did not have sufficient mental capacity to know and understand the nature and effect of her act in executing the deed in question?”;

to which the jury replied, “She did not have sufficient mental capacity.”

“SPECIAL ISSUE NO. 2

“Do you find from a preponderance of the evidence that the defendants in this cause, at the time the deed was executed, knew that Nancy A. Gaston did not have sufficient mental capacity to know and understand the nature and effect of her act in executing the deed in question?”

to which the jury replied in the affirmative.

Upon such findings of the jury the court entered judgment for appellees setting aside the ancestor’s deed and dividing the ownership of the property involved among the heirs of Nancy A. Gaston by setting out the undivided interest therein of each heir. The judgment recited that each undivided interest was subject to the claims and demands of any creditors of the ancestor’s estate, and further subject to any liens, encumbrances or debts of record against the property.

The appellants urged seven points of error. In Points 1, 2 and 3 appellants maintain that the trial court committed fundamental error in entering judgment for appellees when suit was brought by heirs to recover property allegedly belonging to the estate of their ancestor within the four-year period allowed by law for taking out administration without pleading and proving that no administration was pending upon the estate and that none was necessary, the court having no jurisdiction of the matter without such pleading and proof. For the first time in their motion to dismiss after appellees had rested, appellants brought to the attention of the trial court that the action was partly in trespass to try title in statutory form and that in so far as the action so pertained it should be dismissed because of lack of proof that no administration was pending and that none was necessary. This motion was overruled and the action of the court was cited as error in appellants’ amended motion for new trial. The alleged defect in pleading was brought out for the first time in appellants’ brief on appeal.

There was neither such pleading nor proof; on the contrary, the testimony showed that administration had been taken out on the estate and was still pending at the time suit was brought. Appellees’ amended petition contained, in addition to the statutory form of pleading in trespass to try title which did not refer to the parties as heirs of the ancestor, an alternate plea to set aside the deed of the ancestor in which it was alleged that all of the parties to the suit were heirs of Nancy A. Gaston, deceased.

Appellants, in support of their contention on appeal that the cause should have been dismissed because of the lack of pleading and proof that no administration was pending and that none was necessary, rely upon Pure Oil Co. v. Tunnell et al., 126 Tex. 57, 86 S.W.2d 207 (1935); Youngs v. Youngs, 26 S.W.2d 191 (Comm.App.1930), and earlier cases. The Youngs case set out the general rule of law in Texas regarding this issue as of the time the decision in that case was rendered, as follows:

“We think it is a settled law of this state that before heirs, as such, can maintain a suit to recover a chose in action or other property which has descended to them, within the period allowed by law for the taking out of an administration, they must plead and prove facts entitling them to prosecute the action, and, in the event that the suit is brought within the four-year period allowed by law for an administration, they must plead and prove that there is no administration pending and none necessary. A petition that fails to affirmatively allege these facts is fatally defective and subject to a general demurrer.”

The Pure Oil Company case, however, after referring to the general rule as recited in the Youngs case, modified this rule by stating that:

“In so far, however, as the matter of pleading is concerned, the rule is not applicable to a petition in trespass to try title which does not disclose on its face the fact that the claimants sue as heirs. Article 7366 of the statutes regulates the averments of petitions in trespass to try title. A petition of this sort which alleges nothing more than the statute prescribes is legally sufficient. Bridges v. Cundiff, 45 Tex. 440. In the present instance the petition of the interveners simply follows the statute. It was incumbent on them, however, to show by testimony that no administration of the estate of Mrs. Tun-nell is pending and none is necessary.”

See also Olsan Bros. et al. v. Miller et al., 108 S.W.2d 856 (Civ.App.1937).

Further, as regards the matter of pleading, Izard v. Townsend et al., 208 S.W.2d 666 (Civ.App.1948), holds as follows:

“It has, we believe, never been held that the courts were without jurisdiction to render judgment in a suit brought by heirs, as such, merely because they did not allege there was no necessity for administration on their ancestor’s estate. At most such a petition was but subject to a general demurrer, as appears from Youngs v. Youngs, supra. Indeed, in the case of Fowler v. Roden, 129 Tex. 599, 105 S.W.2d 187, 189, the contention was made that the judgment rendered therein was void because the court was without jurisdiction to render judgment where the suit was by the heirs as such, and there was no allegation that there was no necessity for administration. In that case the court held: ‘In the absence of a plea in abatement, or special exceptions * * * the trial court had jurisdiction to render the judgment in question against her.’
“But general demurrers have been abrogated in our practice by the adoption of Rule 90, Texas Rules of Civil Procedure. This Court held in Texas Osage Co-op. Royalty Pool v. Kemper, Tex.Civ.App., 170 S.W.2d 849, 852, writ refused, speaking through Chief Justice Monteith, that Rule 90 ‘indicates an intent on the part of the rule makers and the State Legislature to simplify our trial procedure by providing that defects of form or substance in a pleading will be deemed to have been waived where they have not been raised by exception or objection in the trial court.’ We do not see how defendant can now raise any objection to the pleadings which by law he must be taken to have waived in the trial court. In a word, in order to invoke the rule stated in Youngs v. Youngs, under our present practice rules, defendant should have urged his objections to plaintiffs’ pleadings as being insufficient in the trial court.”

See also O’Connell et al. v. Scott, 241 S.W.2d 967, ¶l (Civ.App.195l).

A restatement and clarification of Texas decisions on this subject appears in Dutchover v. Dutchover, 334 S.W.2d 569 (Civ.App.1960), in which this court states:

“An examination of appellants’ pleadings reflects that the action in trespass to try title was framed in the formal manner authorized by Rule 783, Texas Rules of Civil Procedure. We believe the law in Texas is well settled that the plaintiff in a trespass to try title suit is not required to allege facts which show his right to sue, even though the action is one which seeks to affect assets of a decedent brought by or against the heirs within four years of the death, and it is not necessary, in a formal petition, to allege that there is no administration or need therefor, provided the pleading does not, on its face, show that the parties are heirs. Pure Oil Co. v. Tunnell, 126 Tex. 57, 86 S.W.2d 207; Fowler v. Roden, 129 Tex. 599, 105 S.W.2d 187; Antone v. Stiles, Tex.Civ.App., 177 S.W.2d 246.
* * * * * *
'We do not agree with appellees’ contention that the plaintiffs’ petition, in a strictly formal trespass to try title action, must contain an allegation that no administration was pending upon the estate of the deceased and none was necessary. If, during the trial, however, it develops, as it has here, that the cause of action is one involving assets which may be decreed a part of a decedent’s estate, it then becomes necessary, as a jurisdictional matter, for the plaintiff to prove that no administration is pending and none is necessary. This, the appellants failed to do, and, in the absence of such proof, the only proper judgment to be entered by the trial court was the order of dismissal, and this was done. Wilson v. Wilson, Tex.Civ.App., 216 S.W.2d 684.”

But if it be said that in the instant case, upon an examination of the pleadings as a whole, it appears that the appellees are suing as heirs and the testimony discloses that the cause of action is one involving assets which may be decreed a part of the decedent’s estate, there nevertheless exists in our law authority for holding that this suit was properly brought.

As pointed out in Izard v. Townsend, supra, there are certain exceptions to the general rule which are as well settled as the .rule itself. One of these exceptions is where the representative of the estate has an interest adverse to the estate. 19 Tex.Jur.2d ¶958, pps. 12, 13. The Supreme Court, in Chandler et al. v. Welborn et al. 156 Tex. 312, 294 S.W.2d 801 (1956) refers with approval to the court of civil appeals opinion, in Gannaway v. Barrera et al., 74 S.W.2d 717, in which the latter court held that:

“Other exceptions to the general rule exist in cases where, there being an administration, it appears that the administrator will not or cannot act, or that his interest is antagonistic to that of the heirs desiring to sue. Rogers v. Kennard, supra [54 Tex. 37] ; Lee v. Turner, 71 Tex. [264,] 266, 9 S.W. [149,] 150; Modern Woodmen v. Yanowsky (Tex.Civ.App.) 187 S.W. 728.”

True, the Gannaway case went off on sufficiency of the pleadings, but in this respect we feel that the rulings in Pure Oil Co. v. Tunnell, supra, and Izard v. Townsend, supra, taken together, are presently controlling in so far as pleadings are concerned. Where the evidence establishes an adverse claim of the administrator to the claimants bringing the suit to determine title to real estate, as in the instant case, the district court is the proper forum to hear such suit. Higginbotham v. Davis, 221 S.W.2d 290 (Civ.App.1949); Jordan v. Garcia, 197 S.W.2d 873 (Civ.App.1946).

The pleading and the testimony in the case before us adequately establish that the interest of the administrator, Henry Gas-ton, one of the defendants and one of the grantees in the ancestor’s deed under attack, was antagonistic to that of the heirs bringing this suit. We hold that under the circumstances the case comes within the purview of the cited exception to the general rule, that the trial court had jurisdiction to render judgment in this case, and that no fundamental error is shown. Appellants’ Points of Error 1, 2 and 3 are accordingly overruled.

Appellants’ Point 4 cites error in rendering judgment adverse to the appellants for the reason that .the evidence is insufficient to support the jury finding on Special Issue No. 1 that the ancestor was lacking in mental capacity to know and understand the nature and effect of her act in executing the deed in question. This point raises a question of fact and requires this court to review all the evidence, both that which supports the verdict and that which does not. Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815 (S.Ct.1959). In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (S.Ct.1951). Under this rule the verdict 'of the jury is to be set aside and the case remanded if it is thus concluded that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust.

The testimony of some twenty-five witnesses occupies 510 pages of the Statement of Facts. Nineteen exhibits are attached to some 16 additional pages. Two of the three appellants testified at some length. The entire Statement of Facts has been carefully read in full and reviewed in the light of this point of error and Points 5 and 6 claiming no evidence and insufficient evidence to show that appellants knew of the mental incapacity of their ancestor.

Nancy A. Gaston, the ancestor, was 87 years of age at the time the questioned deed was executed by her on July 13, 1955. On the day of its execution she was taken by her son, Fancher J. Gaston, one of the appellants and a grantee in the deed, to a notary public (not a lawyer) who drew up the deed and who took the acknowledgment of the ancestor after she had signed it. The instrument was not read by the ancestor, but was read to her by the notary public. The ancestor continued to pay the taxes on the Gaines County land described in the deed until her death on April 27, 1959. On February 17, 1958 the same notary public took the acknowledgment of the ancestor as Lessor (Party of the First Part) on a grazing lease on this same land to one Min-nix, the lease to run for a primary term of five years from January 1, 1958. This lease contained the following provision:

“It is further agreed that should First Party sell said land and premises or otherwise dispose of the same, or any part thereof, during the life of this contract, then such party, or parties, acquiring the title thereto, may avail themselves of the option hereby given the said party of the first part.” (Emphasis supplied).

One John Derryberry (not a party to this suit and not related to any of the parties, but a friend of the family) testified that he had visited and talked with the ancestor frequently just before her death in 1959, and that either on the last visit, about a month or six weeks before her death, or on the next previous visit, she had said that she had disposed of all her property except the property in Gaines County.

Without attempting to recount the testimony offered by the great number of witnesses for appellees and appellants on the issue of mental incapacity of the ancestor at the time of the execution of the disputed deed, suffice it to say that in large measure the testimony of appellees’ witnesses sought to establish that the ancestor (grantor) was old and feeble; that she would often cry without apparent reason; that she had become unnaturally suspicious and critical; that at times she failed to recognize friends or relatives and would call such persons by a wrong name; that she had deteriorated after her husband’s death in 1952 and was vexed with inheritance tax problems thereafter; that subsequent to the execution of the deed on July 13, 1955 she exercised acts of ownership over the property conveyed, and asserted that she still owned it.

On the other hand, appellants’ witnesses contradicted these evidences of mental deterioration and incapacity and maintained that the mind of the grantor remained sound until the time of her death, and that her behavior and memory were normal.

No witnesses testified that the ancestor did not understand the nature and effect of her action in executing the deed, nor would they properly have been permitted to do so, since this was the ultimate issue for the jury to determine. But relevant evidence bearing on mental competency is not restricted to the time a given act is done; that issue may be determined upon testimony as to the actor’s mental condition prior to or subsequent to the time the act in question is done. Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849 (1952).

We are not prepared to say that the admissible testimony shows that the verdict Of the jury in the case before us is “so against the great weight and preponderance of the evidence as to be manifestly unjust.” The jurors had the witnesses before them and could judge from their appearance and manner of testifying just what credence should be given their testimony. It is trite to expound on the exclusive right of the jury to determine what weight should be given the testimony of the individual witnesses. The jurors may believe a witness although he has been contradicted. They may accept part of the testimony of a witness and disregard the remainder of such testimony, or believe one witness and reject the testimony of another. It is our belief that the jury’s verdict on Point 4 has ample support in the testimony and it follows, therefore, that Point 4 must be overruled.

Points 5 and 6 set out that there is no evidence, and insufficient evidence, to show that appellants knew of the mental incapacity of their ancestor, the question submitted in Special Issue No. 2 and answered in the affirmative. Point 5, the “no evidence” point, presents a question of law of which consideration by this court is limited to a determination of whether there was any evidence to support the jury’s finding that appellants were aware of their ancestor’s lack of sufficient mental capacity to know and understand the nature and effect of her act in executing the deed in question. In passing upon this law question “it is the duty of the courts to view the evidence in the light most favorable to the verdict, considering only that evidence which is favorable to or supports the verdict, and to disregard entirely all evidence which is contrary, adverse or conflicting to the favorable evidence.” In re Olsson’s Estate, 344 S.W.2d 171 (Civ.App.1961), citing Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

Even under this restricted view of the evidence we do not find anything, circumstantially or otherwise, upon which the jury could base their finding that appellants knew that their ancestor was mentally incapacitated when she executed the questioned deed. They may have had the opportumty to form such a conclusion from contact with the ancestor and observation of her talk and behavior, but there is no evidence that they did form such a conclusion. Certainly if there is “no evidence” to support the jury’s finding on this issue, there is “insufficient evidence” to do so.

But we feel that Special Issue No. 2, the jury’s finding on which is attacked in appellants’ Points 5 and 6, need not have been submitted to the jury under the facts of this case. In the first place we are unable to find that there is any evidence to require its submission; and secondly, that were there any such evidence, however the jury answered this issue would not have been decisive of any matter material to this case. We conceive the law to be that if the ancestor was not mentally capable of making the conveyance sought to be set aside, the heirs would be entitled to have the conveyance set aside in a direct attack thereon, as in this case. Harrison v. Davis, 58 SW.2d 1025 (Civ.App.1933, err. dism.). We believe this to be the law regardless of whether the grantee knew of the mental incapacity of the ancestor. In so far as we have been able to determine, the only occasions when knowledge by the grantee of grantor’s •disability to make a binding contract is considered material is where there is sought to be established a constructive fraud on the grantor, as in Rattner v. Kleiman, 36 S.W.2d 249 (Civ.App.1931, no wr. hist.), and Branton v. Inks, 149 S.W.2d 667 (Civ.App. 1941, err. dism., judgm. corr.).

So, while we find that appellants’ Points 5 and 6 should probably be sustained, we further find that they reflect no reversible error.

Appellants’ Point No. 7 complains of the refusal of the trial court to admit into evidence the deposition of one J. C. Gaston, a grandson of the ancestor, Nancy A. Gas-ton. An examination of this deposition, which was taken at the instance of appellants and by them attached as an exhibit to the Statement of Facts, reveals that it is merely cumulative of the great volume of testimony as to the mental condition of the ancestor. It does not appear that J. C. Gaston was in any better position to observe the ancestor or to form an opinion as to her mental capacity than any of the numerous other witnesses who testified on this point. We do not feel it necessary to pass on the admissibility of this deposition, since if it was error to exclude it, the error was harmless. Rule 434, Texas Rules of Civil Procedure and cases there noted.

Finding no error in this record requiring the reversal of the judgment of the trial court, that judgment is hereby in all things affirmed.


author: WALTER, Justice.

text:
    M. J. McBEE, Appellant, v. James I. MOODY, Appellee.
    No. 3722.
    Court of Civil Appeals of Texas. Eastland.
    May 25, 1962.
    Montague & Thurmond, Del Rio, for appellant.
    Douglas A. Newton, Del Rio, for appel-lee.
   WALTER, Justice.

McBee Motor Company sued James I. Moody for a deficiency judgment. In a non-jury trial, judgment was rendered that the plaintiff take nothing.

The parties will be designated as they were in the trial court. Plaintiff sold the defendant an automobile on October 12, 1959. The defendant, his wife and son continued to use and operate the automobile for a period of ten months and in August, 1960, returned the automobile to the plaintiff and asserted that they would make no further payments.

The defendant pleaded as a defense to plaintiff’s cause of action a full or partial failure of consideration. The plaintiff pleaded waiver and estoppel.

The plaintiff has appealed contending the court erred in rendering such judgment because (1) the defendant is estopped from asserting failure of consideration (2) he has waived his right to assert such defense (3) there is no evidence to support a finding of failure of consideration and (4) there is no evidence to support the judgment sustaining the defendant’s defense.

The appellee has not filed a brief herein and did not avail himself of oral argument. He has not challenged, in any manner, the statements in appellant’s brief relative to the facts and the record. The Court of Civil Appeals accepts, as correct, all facts stated by appellant in his brief. Rule 419 Texas Rules Civ.Proc.; Gonzales v. Gonzales, Tex.Civ.App., 224 S.W.2d 520, (Writ Ref.).

The defendant and his wife were dissatisfied with the performance of the automobile soon after they purchased it in October, 1959. The plaintiff refused to allow a rescission of the contract and the defendant kept the automobile. He, his wife and son continued to use the automobile and the defendant made his regular monthly payments as called for in his contract for approximately ten months. Approximately one month after plaintiff refused to accept the automobile as a trade-in on a new car, the defendant left the car on plaintiff’s lot. As provided for in the mortgage executed by the defendant, the automobile was sold at public auction.

In J. B. Colt Co. v. Head, Tex.Com., 292 S.W. 198, (Commission of Appeals), the defendant Head had purchased a generator from the plaintiff and had failed to pay the purchase price as provided for in their contract. Plaintiff sued to recover the unpaid purchase price. The defendant pleaded that he was fraudulently induced to sign the contract. The defendant’s testimony revealed that he repudiated the contract in June, 1923, by telling the plaintiff that its agent misstated the terms of the contract and at such time instructed the company “Take the plant out.” The defendant continued to use the generator or plant during the remainder of 1923 and finally disconnected it in 1924. In rendering judgment for the plaintiff the court said:

“It is clear to us that Head, after June, 1923, should not have used this property any further. He had repudiated the contract, and tendered the generator back. It was no longer his for any purpose, unless he expected to pay for it as per the contract made. He had no right to wear it out, as its continued use was reasonably calculated to do. When he did continue to use it as he did, after that time, he waived his right, as a matter of law, to rescind the contract. It seems to us that any other rule would lead to the gravest of abuses.”

See also Dalton Adding Machine Sales Co. v. Wicks & Company, Tex.Civ.App., 283 S.W. 642, (no writ history) and Hatch v. National Cash Register Corp., Tex.Civ.App., 105 S.W.2d 1114 (no writ history).

We hold that the defendant, by using the car for approximately ten months after he expressed his dissatisfaction to the plaintiff, waived his right to rescind the-contract for failure of consideration. The judgment of the trial court is therefore reversed and judgment is rendered for the-plaintiff-appellant for $478.29 plus $71.74 attorney’s fees.


author: CHADICK, Chief Justice.

text:
    Curtis HICKEY et al., Appellants, v. Charles SPANGLER et al., Appellees.
    No. 7380.
    Court of Civil Appeals of Texas. Texarkana.
    May 22, 1962.
    Rehearing Denied June 12, 1962.

      Fulton & McClain, Gilmer, LeRoy La-Salle, Ruff Wall, Fred Whitaker, Carthage, for appellants.
    Tom Bankhead, Carthage, Wardlow W. Lane, Center, for appellees.
   CHADICK, Chief Justice.

This action originated as a trespass to try title suit to recover the mineral leasehold estate in a small tract of land. A judgment based on jury answers to special issues was entered and the plaintiffs in the trial court have appealed. The judgment is reversed and the case remanded for new trial.

Curtis Hickey and R. H. Lee, as plaintiffs, brought the suit naming Charles Spangler and sixteen others as defendants. Brief reference to the pleadings and evidence sufficient only to suggest the nature and scope of the suit is made at this point; a more detailed statement where pertinent to questions discussed will be made as the occasion arises. The plaintiffs allege that an oil, gas and mineral lease with a primary term of thirty days executed by Hickey and assigned to Spangler and the other defendants terminated in accordance with the terms of the instrument prior to the institution of the suit. Relief by way of receivership, temporary restraining order, temporary and permanent injunction, cancellation, etc., was sought. The defendants answered by a general denial and plead their title, estoppel, joint adventure, mutual mistake, for reformation of the lease, improvements made in good faith, etc., and for relief appropriate thereto.

The Hickey mineral lease was dated September 8, 1959, and provided for a primary term of thirty days from date. Paragraph 6 of the lease is in this language:

“6. If prior to discovery of oil, gas or other mineral on said land or Lessee should drill a dry hole or holes thereon, or if after discovery of oil, gas or other mineral, the production thereof should cease from any cause, this lease shall not terminate if Lessee commences additional drilling or reworking operations within sixty (60) days thereafter, or if at the expiration of the primary term, oil, gas or other mineral is not being produced on said land, or on acreage pooled therewith, but Lessee is then engaged in drilling or reworking operations thereon or shall have completed a dry hole thereon within sixty (60) days prior to the end of the primary, term, the lease shall remain in force so long as operations are prosecuted with no cessation of more than sixty (60) consecutive days, and if they result in the production of oil, gas or other mineral, so long thereafter as oil, gas or other mineral is produced from said land or acreage pooled therewith * * (Last sentence omitted as it pertains to other contingencies. Emphasis added.)

Exploration was begun within the primary term of the lease, and a well capable of producing oil and gas in commercial quantities was completed January 20, 1960, 105 days after expiration of the primary term. No contention is made that the lease expired before completion date.

The well was shut in at completion. However, at that time a switcher was hired, and from the completion date until the ap-pellees were enjoined from going on the leased premises the switcher opened the well’s controls at least once each week and allowed the gas to blow and be burned. Flaring the well was thought necessary to keep it from logging up and being killed by salt water or other liquid.

Commencing the week of completion Spangler continuously negotiated for a gas sales contract with four separate purchasing companies. The negotiations resulted in the execution of a contract on July 18, 1960, to sell the gas produced from the well to Tennessee Gas Transmission Company. Immediately following completion of the well the location was cleaned up, slush pits filled, and pits and firewall used in burning gas were constructed. This particular work was completed January 29, 1960. Spangler and his associates also negotiated for the construction of a pipeline to connect the well with a gathering system in the period between completion and the execution of the gas sales contract. Hickey assisted the lease owners in obtaining a right-of-way from the county for this purpose. Additionally, between completion time and institution of the lawsuit Spangler and Hickey negotiated with an adjoining lease owner in an effort to form a unit and increase the allowable of the well. While awaiting consummation of the sales contract mentioned Spangler retained an attorney for the purpose of securing a Federal Power Commission permit to produce gas from the well. The exact date does not appear, but sometime after June 23, 1960, and prior to institution of the suit the plaintiffs, Curtis Hickey and R. H. Lee, advised Spangler that the mineral lease had terminated by reason of non-production of minerals, and that he and his associate lessees owned no interest in the leasehold estate.

The motion for re-hearing of appellees, Spangler and his co-lessees, asserts that judgment of the trial court should be affirmed upon the undisputed facts, and supports that position by citing the very recent case of Skelly Oil Company v. Harris, Tex., 352 S.W.2d 950. The record will not sustain the appellees as the facts of this case clearly distinguishes it from the Harris case. In Harris a mineral lease dated October 21, 1943, for a primary term of ten years was assigned to Skelly Oil Company. Pursuant to pooling provisions the leased tract was pooled with other land October 5, 1953. On that same date operations were commenced for drilling a well on the pooled acreage. Actual drilling began October 17, 1953, and was continuously prosecuted until November 24, 1953. At the last mentioned date a gas well was completed and capped. The completed well was capable of producing gas and condensate in paying quantities. The lessee, Skelly Oil Company, thereafter requested and obtained a production allowable, arranged for a gathering system to run lines to the well, installed meters and meter stations, and negotiated a contract with a buyer for sale of the gas as produced from the well. Production from the well began January 4, 1954, forty-one days after completion, and continued without interruption. Production began within the sixty days following completion. The distinguishing facts of the two cases are apparent on reference to the facts of this case heretofore related. To summarize, in this case the well was commenced during the primary term which expired October 8, 1959, and was completed January 20, 1960. The well was shut in, thereafter the gas was flared and burned each week to prevent logging, negotiations entered into for sale of gas, right-of-way, system connections, Federal Power Commission permit, etc., but no actual production of minerals, as that term is used in the Hickey mineral lease, was begun within sixty days after completion on January 20, I960, nor before August 1, 1960, the date Hickey and Lee filed suit.

Because production or its absence, in relation to completion date differs as shown, the Harris case does not support the judgment of the trial court in this case. But Harris is directly in point and controls the construction of the language of the emphasized portion of paragraph 6 of the Hickey mineral lease heretofore quoted. Language in the Harris case mineral lease, identical with that in the lease here considered, was construed by the Supreme Court. That court held that the language of the clause, which it referred to as the “60 day clause”, allowed the lessee a period of sixty days after completion of a well capable of producing to begin either actual or constructive production. The authority of the Harris case compels this court to hold that the Hickey lease terminated sixty days after January 20, 1960, unless the appellees established one or more of the defenses to its termination plead by them as defendants in the trial court. The work done, such as flaring the well, sales contract and other negotiations, together with the other facts developed, do not constitute either drilling or re-working as those terms are used in the referenced clause of the Hickey lease.

The range of the defendants’ pleading has been indicated. The trial judges submitted eighteen special issues to the jury, all of which were answered favorably to the defendants, appellees here. By answers the jury found that a well capable of producing gas in commercial quantities was completed January 20, 1960; that thereafter the lessees had been engaged in drilling and re-working operations on the lease with no cessation of more than sixty consecutive days from the date of completion; and that the lessees acted within a reasonable time to connect and produce the well before interruption by this suit. It is not practical to set out the rest of the jury findings, but among them were four answers finding Hickey represented to the original lessee as a positive fact that the Carthage Corporation had agreed to immediately take gas from the well upon its completion; that such representation was untrue; that the defendants, (lessees by assignment) relied upon such representation, and that such representation induced the defendants to make the agreement to drill the well.

Hickey and Lee’s motion for new trial in the court below contained numerous assignments of error. The XI assignment is directed to the action of the trial court in overruling objections to submission of the series of issues raised by the alleged false representation of Curtis Hickey because the issues were immaterial and irrelevant and would not constitute a foundation for a judgment in the case. To understand this assignment it must be known that Spangler and the other appellees as defendants in their trial pleadings alleged that the representation attributed to Hickey was believed by them and induced them to delay the consummation of a gas sales contract until after the well was completed, at which time or soon thereafter the falsity of the representation was discovered, and that by reason of the false representation and the defendants’ reliance thereon Hickey and Lee are estopped to assert in this lawsuit the termination of the leasehold estate conveyed by the mineral lease. The defendants’ prayer, so far as the false representation issues are concerned, is for relief by way of es-toppel.

The appellees grouped their fourth, fifth and sixth points of error and brief them together. The fourth point is that the judgment rendered is not supported or authorized by the jury’s verdict on the false representation series of issues, and that the trial court erred in submitting the series. The fifth point is that the series of issues is not supported by the pleadings and are immaterial and do not support the judgment rendered. The sixth point is that each issue in the series is without support in the evidence, and that the jury’s verdict thereon is against the overwhelming weight and preponderance of the evidence.

The multifarious nature of the assignments of error in the motion for new trial in the trial court and the points of error briefed on appeal created a difficult task for the court below as well as here, to determine the distinct ground of error claimed by the appellant. However, it appears that the basic complaint is that estop-pel in pais was plead by the defendants, but issues of actionable fraud were submitted to the jury by the trial court, and the jury’s verdict on the fraud issues does not support the trial court judgment so far as it may rest upon the estoppel theory.

The elements of actionable fraud and estoppel in pais have much in common. See 22 Tex.Juris. (2) 668, Sec. 8 on the eleménts of estoppel in pais, and 25 Tex. Juris. (2) 625, Sec. 13 through 32 for a general summation of the elements of actionable fraud. The trial judge in submitting the defendants’ issues on the estoppel theory might properly have submitted issues as to Hickey making the representation alleged, its falsity, the defendants’ reliance thereon, and in accordance with the allegations of the pleading, whether or not the representation induced defendants to delay as they did their effort to find a market for the gas and connect the well to a gathering line.

Instead of submitting this last issue mentioned the jury was asked to find whether or not Hickey’s representation induced the lessees to enter into the mineral lease contract. Such an issue is foreign to the estop-pel plead. The issue actually submitted is clearly an issue pertinent only in an actionable fraud series concerned with inducement to enter a contract. Generally, with some exceptions under circumstances not shown here, relief available for fraud inducing a contract is recision, reformation, cancellation or damages. See 26 T.J. (2) 17, Sections 78, 79 and 80, and the numerous cases listed in the footnotes there.

The plaintiffs neither plead nor sought relief from alleged fraudulent conduct on Hickey’s part except by estoppel. Reformation sought in the defendants’ pleading in this action is grounded upon mutual mistake and is not associated with the fraudulent representation issues. Apparently the issues of fraud were tried without pleadings.

As stated, the defendants sought the benefit of the law of estoppel. The first three issues of the series under discussion were pertinent to the theory of estoppel, but they were not necessarily referable to estoppel1 as they were referable also to the fourth in the series, an actionable fraud issue. Appellants’ objection to the submission of the last issue in the fraud series should have-been sustained by the trial court. The appellants’ points of error in this regard are sustained, as well as their points that the jury’s verdict on the entire series of issues, do not support the judgment rendered.

A thorough examination of the record, the briefs of the parties, and the authorities cited satisfies this court that the jury’s verdict upon the several defenses submitted are against the overwhelming weight and preponderance of the evidence. A recitation of the evidence as it relates to each issue is impractical as such treatment would extend this opinion to an excessive length. Conclusions on the insufficiency of the evidence was expressed in the original opinion, and the evidence in support of the issues of mutual mistake discussed in detail. Although the original opinion is to be withdrawn and superseded, for, whatever it may be worth, the parties know the appraisal therein made of the facts.

The original opinion in this case dated March 20, 1962, is withdrawn, the appellees’ motion for rehearing is overruled, the judgment of the trial court is reversed, and the case remanded for new trial.


author: COLLINGS, Justice.

text:
    Doyce Ray WADDELL et al., Appellants, v. EMPIRE DRILLING COMPANY et al., Appellees.
    No. 3688.
    Court of Civil Appeals of Texas. Eastland.
    May 18, 1962.
    Rehearing Denied June 15, 1962.

      Garland Casebier, Frank Ashby, Midland, for appellants.
    Pat Beene, County Atty., Bonham, Perkins, Bezoni, Kirwan & McWhorter, Midland, for appellees.
   COLLINGS, Justice.

Doyce Ray Waddell and Jimmy Carroll Waddell brought suit against Empire Drilling Company and Milhoan Drilling Company to recover the value of water alleged to have been taken by defendants from ponds on plaintiffs’ land. The defendant drilling companies impleaded Frank Miller and Don Cox, tenants under a grazing lease from plaintiffs, as third party defendants. Defendants alleged that said third party defendants had represented they were the owners of the land from which the water was taken and had the right to sell said water; that defendants agreed to and did purchase from Cox and Miller water from said land for the purpose of drilling certain oil wells. Milhoan Drilling Company alleged that after it had purchased from said third party defendants water needed to drill one oil well, it needed additional water to drill another well; that it learned that Miller and Cox were tenants of plaintiffs and that plaintiffs were claiming that their tenants had no right to sell water from ponds on said land; that defendant Milhoan Drilling Company, thereupon, entered into a written agreement with Frank Miller that it would purchase from him water from said land to drill another specified oil well and would pay therefor the sum of $2,000.00, but if it should be determined that Miller did not have the right to sell such water, then he would refund the money received by him or pay it to the party or parties who were the rightful owners of the water and did have the right to sell same. The defendant drilling companies asserted that if there was any liability on their part to plaintiffs for taking such water then Miller and Cox should be held liable for the damages and required to pay same. Miller and Cox answered by general denial.

The trial was before a jury and based upon its answers to special issues finding the value of the water used in drilling the oil wells, judgment was entered for plaintiffs Doyce Ray Waddell and Jimmy Carroll Waddell against the defendant Empire Drilling Company for the sum of $946.00 and against Milhoan Drilling Company for the sum of $1,892.00. It was also decreed that the defendant drilling companies take nothing against the third party defendants Miller and Cox. This portion of the judgment was apparently based partly upon findings of the jury which were taken to mean that the amounts paid to Miller and Cox by the drilling companies were for damages to their grass lease. Plaintiffs, Doyce Ray Waddell and James Carroll Waddell and defendants, Empire Drilling Company and Milhoan Drilling Company have appealed.

Appellants Doyce Ray Waddell and Jimmy Carroll Waddell present points in which it is urged that the court erred in overruling their motion for an instructed verdict, erred in overruling their motion for judgment non obstante veredicto, and erred in refusing to render judgment in their favor against Empire Drilling Company for $2,000.00 and against Milhoan Drilling Company for $4,000.00. These points are overruled.

The Waddells first contend that the prior judgment and opinion in Cause No. 3516 on the docket of this court, 356 S.W.2d 500, styled Waddell et al, relators v. Williams et al, respondents, involves the same matters here under consideration and is “the law of the case” and that the Waddells are, therefore, entitled to judgment against the drilling companies in the said sums of $2,000.00 and $4,000.00. We cannot agree with this contention. There is a material difference in the issues involved in this record and those involved in Cause No. 3516. In both cases it is undisputed that the Waddells are owners of the land involved which was mostly grazing land but included some cultivated land; that the Waddells executed a lease to Miller and Cox which provided that the grazing land should be used “for grazing purposes only”; that the term of the lease was for two years beginning January 1, 1957, and that the lessees had previously held a five year lease on the land. It is also undisputed that both drilling companies took water from the leased land for the purpose of drilling oil wells and that the Empire Drilling Company, which drilled one oil well, paid Miller and Cox $2,000.00 and Milhoan Drilling Company, which drilled two oil wells, paid them $4,000.00. The Waddells’ suit against the drilling companies was to recover the value of the water so taken from the land. The drilling companies make no contention that the Waddells were not entitled to recover from them the value of the water taken. In Cause No. 3516 the only issue was whether the court should enter a judgment, and there was no dispute as to the value of the water. In the instant case, however, there is a conflict in the testimony concerning the value of the water and the facts are not substantially the same as in the previous case. The holding in that case is not therefore the law of the case, and does not determine the disposition of this one. 3-B Tex.Jur. 782, 783.

The Waddells further contend, in effect, that the payments by the drilling companies to Miller and Cox were for sales of water, and that such fact considered in connection with all the other evidence of probative value conclusively shows the value of the water taken to be identical with the payments made to their tenants. There was evidence to the effect that the value of the water was identical with the amount of the payments to Miller and Cox. In our opinion, however, this evidence is not conclusive. Mr. Cox testified, in effect, that the value of the water used for drilling an oil well in that vicinity was $100.00 per well; that the additional money received by him and Miller in connection with the drilling of each of the oil wells in question was for damage to the grazing lease. Miller also testified, in effect, that the payments by the drilling companies to him and Cox were for “damages and water.” It therefore appears that there is a conflict in the testimony concerning the question of whether the payments to Miller and Cox covered the sale of water only, or covered both the sale of water and damages to the grazing lease, and a conflict concerning the value of the water taken. The jury found that the value of the water used in drilling each of the three oil wells in question was $946.00. We overrule appellants’ contention that there is no competent evidence in the record to support the verdict.

We overrule appellants’ point in which it is contended that the court erred in admitting the testimony of the witness Don Cox pertaining to the value of the water. The witness testified that he knew, or thought he knew, the value of the water taken and that in his opinion such value was $100.00 per well. This constituted some evidence that the named amount was the value of the water taken, in spite of the fact that the witness had previously admitted that he did not know “of his own knowledge the value of water in the community.” Contrary to the contention of the Waddells, the court did not err in refusing to render judgment against Empire Drilling Company for $2,000.00 and against Milhoan Drilling Company for $4,000.00.

One of the points urged by appellants, Empire Drilling Company and Milhoan Drilling Company, is that the court erred in not granting them judgment against third party defendants, Miller and Cox, for the amount of the judgment entered for the' Waddells against said appellant drilling companies. This point is well taken.

The jury found that, “Frank Miller and Don Cox were "collecting damages to their grass lease when negotiating with the defendants, Milhoan Drilling Company and Empire Drilling Company.” Assuming, although it is not' entirely clear, that this constituted a finding that the payments by the drilling companies to Miller and Cox covered only damages to their grass lease, and did not cover the sale of any water, we are of the opinion that the evidence does not support the finding. On the contrary, we hold that the evidence is conclusive that the payments by the drilling companies to Miller and Cox included payments for the sale of water. Both Miller and Cox so testified and there is no evidence to the contrary. There was evidence to the effect that the total amount of the payments by the drilling companies was for the sale of water, but no evidence that the payments covered damages only. Cox stated that the value of the water used was $100.00 per well and that the additional amount of the payments was for damages. Miller stated that the payments were for “damages and water.” The evidence is therefore conclusive that Cox and Miller sold water from the land in question and- were paid therefor by appellant drilling companies.

The lease of the land to Miller and Cox by the Waddells was for grazing and agricultural purposes only. The lease gave to the lessees no right to the use or possession of the land for any other purpose. The right to use any water “in excess of the needs” for the farm and ranch operation under the lease belonged to the Wad-dells, the owners of the land, and did not pass to Miller and Cox. Dellwo v. Edwards, 73 Or. 316, 144 P. 441; Mohawk Drilling Co. v. Wolf, (Sup.Ct. of Okl.), 262 P.2d 892. Since Miller and Cox had no right to sell the water but did sell it to appellant drilling companies, they were jointly and severally liable for its value. Cox and Miller were primarily liable for the value of the water and the drilling companies were secondarily liable. Navarro Oil Co. v. Cross, 145 Tex. 562, 200 S.W.2d 616.

The pleadings and motion for judgment of Empire Drilling Company and Milhoan Drilling Company was that if any judgment be rendered for the Waddells against them that the court should then enter judgment for them against Miller and Cox for the same amount. We sustain their contention that the court erred in not granting judgment for them against Miller and Cox for the amount of the Waddell judgment. Shell Petroleum Corporation v. Tippett, Tex.Civ.App., 103 S.W.2d 448, (Writ Ref.). The contract by which it was agreed that if it should be determined that Miller and Cox did not have the right to sell the water they would refund the payment therefor or pay the parties who had the right thereto, was a still further reason why Milhoan Drilling Company was entitled to recover from Cox and Miller as prayed in their pleadings and motion for judgment.

For the reasons stated we overrule all points urged by the Waddells and affirm the judgment of the trial court granting them recovery against Empire Drilling Company for $946.00, and against Milhoan Drilling Company for $1,892.00. That portion of the judgment denying Empire Drilling Company and Milhoan Drilling Company any relief against Miller and Cox is reversed and judgment is here rendered in favor of the drilling companies against Miller and Cox for the amount of the judgment for the Waddells against them.


author: BELL, Chief Justice.

text:
    Lula Mae NIX, Appellant, v. Bette B. DAVIS, Administratrix of the Estate of Lester O. Nix, Deceased, et al., Appellees.
    No. 13966.
    Court of Civil Appeals of Texas. Houston.
    June 14, 1962.
    Elliott & Elliott, Houston, Loran L. Elliott, Houston, for appellant.
    Stein, Bennett & Shepley, Houston, Albert Stein, Houston, for appellees.
   BELL, Chief Justice.

The appellee sued appellant and North Side State Bank of Houston to recover $2,150.87 that was on deposit in said bank at the time of the death of Lester O. Nix. The bank tendered the money into court, it having theretofore refused to pay the money to appellee only because of the conflicting claims of appellee and appellant. The bank was allowed its attorney’s fee and discharged from liability. Appellee filed her motion for summary judgment and after a hearing it was granted.

It appears that appellant and Nix were married in 1944. In 1945 she and Nix operated Nix Feed, Hardware & Ice Store. The business was operated on land belonging to the separate estate of appellant. On or about January 12, 1948 a bank account was opened in the name of “The Nix Feed, Hardware & Ice Store.” It was opened as a joint account. The agreement signed by both Nix and appellant read as follows:

“The undersigned joint depositors hereby agree each with the other and with NORTH SIDE STATE BANK, Houston, Texas, that all sums now on deposit or heretofore or hereafter deposited by either or both of said joint depositors ****** with said bank to their credit as such joint depositors with all accumulations thereon, are and shall be owned by them jointly with right of survivorship and be subject to the check or receipt of either of them or the survivor of them and payment to or on the check of either or the survivor shall be valid and discharge said bank from liability. Each of the undersigned appoints the other attorney, with power to deposit in said joint account moneys of the other and for that purpose to endorse any check, draft, note or other instrument payable to the order of the other or both of said joint depositors. Payment to or on check of the survivor shall be subject to the laws relating to inheritance, succession and estate taxes and all rules and regulations made pursuant thereto. The rights or authority of the bank under this agreement shall not be changed or terminated by said depositors or either of them except by written notice to said bank which shall not affect transaction theretofore made.
“Date:
“Jan. 12, 1948
/s/ L. O. Nix
“/s/ Lula Mae Nix”

The signature card authorized the withdrawal of funds upon the signature of either party. The account was opened in the amount of $552.09.

On June 30, 1949, a judgment of divorce was signed granting appellant a divorce from Nix. It is not necessary to notice all provisions of the decree, but it suffices to say that after finding certain property to be the separate property of one or the other of the parties, it found one tract of land to be the separate property of appellant, but found a lien to exist on it in favor of Nix to secure $1175.00; awarded to Nix the sum of “four hundred dollars cash on hand”; decreed that the “fixtures, stock of merchandise and any and all other personal property located at Nix Feed Hardware & Ice Store and the accounts receivable” were community property and ordered their sale by a receiver appointed by the court. On July 7, 1949, an amended decree was signed reciting that the parties had adjusted their community rights. Then the amended decree declared that the lien that had been impressed on appellant’s land in favor of Nix to secure $1175.00 had been satisfied and discharged. It then ordered that no further action be had in connection with the sale and division of the stock of merchandise and other personal property located at the feed store and that possession of the stock of merchandise and other personal property in the store building occupied by the store be delivered to Nix.

All of the facts above stated are contained in the pleadings and are established by the evidence submitted as a part of the motion for summary judgment.

Appellant, in her answer asserting ownership of the money in the bank account, alleged that immediately after delivery of possession of the store to Nix by the receiver she resumed work in the operation of the store and worked regularly until Nix died in 1960, except for the year 1953, and that she received no salary except for a brief period during the first year after the divorce. She alleged she paid a valuable consideration for the rights under the joint account contract. She further alleges that several thousand dollars were deposited each year in the account and she physically delivered some of the deposits to the bank.

The facts alleged by appellant were supported by her affidavit, and the affidavit also stated the store was located on her land. Further, the affidavit stated she was aware of the bank account.

Appellant, on appeal, asserts error on the part of the trial court in granting a summary judgment because, she says, there were fact issues which if found favorable to her would entitle her to recover on any of the following theories: (1) Gift; (2) Joint venture; and (3) A contract for a joint account owned by her and Nix jointly with right of survivorship.

Appellee takes the position that there is no pleading or evidence of gift, or joint venture, and that if there ever was a joint tenancy with right of survivorship, appellant’s rights were effectively terminated through partition of the estate on divorce when the cash on hand and the personal property were awarded to Nix.

We are of the view that the record presents fact issues and the court, therefore, erred in granting the motion for summary judgment. To be entitled to a summary judgment the movant must show there is no fact issue to be determined and that only questions of law are to be determined. The evidence is viewed most strongly against movant in the trial court. While the evidentiary facts may be undisputed, there may be conflicting reasonable inference as to the existence of ultimate facts that may be drawn from the eviden-tiary facts. In such case there are fact issues to be determined. Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W. 2d 233; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

Also if a fact or theory is not pled, but on motion for summary judgment it appears from the affidavits, depositions used, or instruments used on the motion for summary judgment, that a fact issue or theory is raised that can be pled by amended pleading, then summary judgment is improper. Womack v. Allstate Insurance Company, supra.

We are of the view there is no evidence of a present gift. However, we are of the view 'that a fact issue exists as to whether Nix intended to continue the joint tenancy provided for by the joint bank account. Unquestionably, apart from the complications that arise when community property is involved, such as those discussed in Hilley v. Hilley, Tex., 342 S.W. 2d 565, a joint account created in the language quoted above, creates a joint tenancy with the right of survivorship. Adams v. Jones, Tex.Civ.App., 258 S.W.2d 401, no writ hist.; Johnson v. Johnson, Tex.Civ.App., 306 S.W.2d 780, writ ref. While in our case the contract creating the bank account was executed between appellant and her then husband Nix, the amount on deposit when they were divorced was, we think, effectively awarded to Nix when he was awarded “four hundred dollars cash now on hand”. We regard this as a partition of the fund then on hand and as to such fund the joint tenancy was destroyed. The result is that we have no community property involved here. If the joint account had been renewed, in the form in which it appears, through formal re-execution of the account forms, then there would have been a joint tenancy with right of survivorship. There was no formal re-execution of the account forms. However, it continued in existence. It will be noted It provided for a joint interest in moneys that should be deposited after the date of the creation of the account. With the form of the account remaining unchanged, Nix continued to make deposits from time to time and some were made by appellant, though it appears she merely physically carried the deposit to the bank. Too, appellant’s affidavit shows that for the next ten year period, with the exception of 1953, and for another period of about three weeks, she worked in the operation of the store and was paid no salary. Too, it appears the store was located on land belonging' to appellant. From all of these evidentiary facts we think it could be reasonably inferred that Nix intended to create a joint tenancy in the funds deposited in the account. No such conclusion is impelled, but such may be reasonably inferred and this malees a fact issue. We do not regard it as significant that the account was opened in the name of the business, because it was merely an assumed name and the business was not incorporated.

Too, a joint venture might reasonably be inferred from a consideration of all of the above statements in appellant’s affidavit. No question is raised concerning the competency of appellant, in the light of the dead man’s statute, to make the affidavit.

The judgment of the trial court is reversed and the cause is remanded for trial on its merits.


author: WILSON, Justice.

text:
    McLennan COUNTY et al., Appellants, v. Lois Bell UMBERSON et al., Appellees.
    No. 3890.
    Court of Civil Appeals of Texas. Waco.
    April 26, 1962.
    Rehearing Denied May 31, 1962.
    W. C. Haley, Waco, for appellants.
    Bedford Edwards, Bill Dunnam, Waco, for appellees.
   WILSON, Justice.

Appellee’s statement of the nature of this jury condemnation case, which we will assume to be correct, is paraphrased as follows : Several months before institution of the present proceedings the State Highway Department converted an existing county road forming the western boundary of ap-pellee’s 390 acre farm to a state farm-to-market road by rebuilding on its original course and location. No new right of way was acquired. Prior to this reconstruction. surface water from the west passed across the existing county road and flowed into a drainage ditch across the northern boundary of the farm without significant damage to appellee’s land. The original grade or surface level of the road appears to have been raised by the rebuilding, however, causing the water to accumulate on the western shoulder of the road. To accommodate flowage of the water and to form a cattle passage under the road, a culvert, five feet in diameter, was placed across it.

“In the process of cutting down the land to make such exit and access, an underground spring was opened. Large quantities of water flowed from the spring on to appellee’s farm, thereby covering and actually taking a strip across such farm. The large quantity of water changed from its natural flow and, forced through the 60-inch horn, washed great amounts of soil across the farm, thereby filling a small drainage ditch and causing approximately 50 acres of appellee’s land to be covered with water and to form a swamp”, washed the land and made it unusable.

Some months thereafter, in order to suppress seepage and flow of water from the spring immediately east of the culvert outlet in the original right-of-way, which was uncovered or activated by the new road construction, and to prevent erosion damage to the roadbed, the highway department planned construction of a concrete apron. The eastern outlet of the new culvert-cattle pass was the entrance to the lane of a neighboring farm immediately north of ap-pellee’s property; and it was desired, also, to create a concrete base which would seal off the spring and create a dry passageway for cattle from this lane through the culvert under the new road.

For the latter purposes appellants filed this action to acquire a tract 105 feet in length with maximum width of about 44 feet (1464 square feet) from the northwest corner of appellee’s farm. The jury found the value of the strip so acquired to be $6.72. It answered that the value of the remainder of the 390 acres was reduced $3112 by the taking of the corner tract, and judgment was rendered for appellee on the verdict..

Appellants say judgment was improperly rendered for damages to the remaining land because the damages proved were the result of construction of the road prior to the taking by condemnation, and were not com-pensable in this proceeding. They assert the finding as to consequential damages is grossly excessive.

We have no difficulty in concluding the latter contention must be sustained if we are to follow the consistent rule of decision in the following cases: City of Trinity v. McPhail, Tex.Civ.App., 131 S.W.2d 803, 808; Fort Worth & D. S. P. Ry. Co. v. Gilmore, Tex.Civ.App., 2 S.W.2d 543, 545; City of San Antonio v. Fike, Tex.Civ.App., 211 S.W. 639, 641; Jefferson County Traction Co. v. Wilhelm, Tex.Civ.App., 194 S.W. 448, 451; Stephenville N. & S. T. Ry. Co. x. Moore, 51 Tex.Civ.App. 205, 111 S.W. 758; Kirby v. Panhandle & G. Ry. Co., 39 Tex.Civ.App. 252, 88 S.W. 281, 283 (no writs); and see Texas Elec. Serv. Co. v. Campbell, 161 Tex. 77, 336 S.W.2d 742, 746; Throckmorton County v. Howsley, Tex.Civ.App., 28 S.W.2d 951, 952, writ ref.; City of Fort Worth v. Dietert, Tex.Civ.App., 271 S.W.2d 299, 300, writ ref.; Ideal Laundry Co. v. City of Dallas, Tex.Civ. App., 64 S.W.2d 801, 803, writ dism.; Perry v. Wichita Falls, R. & F. W. R. Co., Tex. Civ .App., 238 S.W. 276, 278; 16 Tex.Jur. Sec. 200, p. 509; 22 Tex.Jur.2d Sec. 149, p. 238; 4 Nichols, Eminent Domain (3rd ed. 1951) Sec. 14.245(1), pp. 377-380.

The rule that previous damages to land not taken, which results from improper construction of earlier works on its own land by the subsequent condemnor before the condemnation proceedings are instituted for land actually taken, are not recoverable and are not to be considered in the proceedings, is established or supported by the foregoing authorities. This is true, primarily, because Art. 3265, subd. 1, Vernon’s Ann.Tex.Civ.Stat., limits the inquiry in condemnation cases to the damages sustained to the remainder “by reason of the condemnation of the property” and the employment of the property condemned in the purpose for which it is condemned. Glade v. Dietert, 156 Tex. 382, 295 S.W.2d 642, 646.

Here the evidence shows, and ap-pellee takes the position in the brief, that asserted damages to the remainder of the farm resulted from reconstruction of the road which involved no acquisition of ap-pellee’s land, and from installation of the culvert; that it was caused by changing the “natural flow” of water “forced through the 60" horn in such concentration” as to inundate and wash the farm land and make it unusable. This damage occurred before the institution of the condemnation action. It was not “by reason of the condemnation.”

The decision in Glade v. Dietert, above, it might be argued, qualified or modified the holding in City of Fort Worth v. Dietert, Tex.Civ.App., 271 S.W.2d 299, 301, writ refused, so as to permit recovery of such damages in this condemnation action and avoid a multiplicity of suits. The decision is clearly not applicable to this case. There the city, through a contractor, inadvertently entered and damaged the very land subsequently condemned before condemnation, and it was held diminution in value caused by previous removal of trees from the land later appropriated was recoverable in the condemnation suit. The damage there was, in effect, identical to that which would result “by reason of the condemnation.” Here, the damage to the remainder was created before the present proceedings were filed. The damage was not a result of the eminent domain proceedings nor the employment of the land acquired thereby.

It is to be observed that appellant McLen-nan County did not construct this state highway ; nor was it authorized to do so: Arts. 6673, 6673-c, 6674q-4, Vernon’s Ann.Civ.Stat.; Iverson v. Dallas County, Tex.Civ.App., 110 S.W.2d 255; Taylor v. McLennan County, Tex.Civ.App., 120 S.W.2d 134. Since it did not build the farm-to-market road, it was not liable for any previous damages resulting from its prior improper construction.

A majority of the court doubts that appellants’ points 1 and 2 are preserved in the motion for new trial; but the court unanimously agrees the damages are excessive under the evidence. The judgment will be affirmed if appellee files a remittitur of $1500 within 10 days from this date; otherwise it will be reversed and the cause remanded.