author: GRIFFIN, Justice.

text:
    Robert Paul SHAVER et al., Petitioners, v. NATIONAL TITLE & ABSTRACT CO. et al. Respondents.
    No. A-8977.
    Supreme Court of Texas.
    Oct. 24, 1962.
    Rehearing Denied Dec. 5, 1962.

      Bowyer & Thomas, Bascom Thomas, Robert H. Thomas, Dallas, for petitioners.
    C. C. Renfro, Dallas, for respondents.
   GRIFFIN, Justice.

This is a suit brought by petitioners as plaintiffs in a District Court of Dallas County, Texas, against the respondents, National Title & Abstract Company; Alamo Title Company; and also against Lone Star Gas Company, as defendants. Plaintiffs alleged that on April 1, 1948, they purchased a 2.35 acre tract of land and paid defendants to issue its policy of title insurance in plaintiff’s favor guaranteeing to plaintiffs that they were receiving a good and indefeasible title to the land; that plaintiffs paid defendants for these services and received a title insurance policy; that about July 15, 1957, plaintiffs for the first time discovered that Lone Star Gas Company was the owner of a recorded easement executed by former owners of the land in 1915 for installation and maintenance of a sixteen-inch high pressure gas line across the tract of land purchased by plaintiffs and covered by defendants’ title insurance policy. Plaintiffs alleged that such gas line was buried about four feet under the surface; that such easement prevented plaintiffs’ title from being a good and indefeasible title; that the condition of the title insurance policy had been breached, and sought damages from defendants.

Defendants answered pleading the four-year statute of limitations; that the title insurance policy contained a provision that it was to be subject to the rights of parties in possession of the premises at the time the policy was issued; that the Gas Company was in possession at such time, and therefore plaintiffs were not entitled to recover.

A jury was had and it answered the issue of limitation favorably to plaintiffs and found the decrease in value of the property by virtue of the outstanding easement both at the time the policy was issued and at the time plaintiffs discovered the existence of the easement. The jury found that plaintiffs’ property had decreased 60% in value due to the outstanding easement. The trial court rendered judgment in favor of plaintiffs against the two title companies for $3,450.00 plus $1,750.00 as attorneys’ fees. At the close of the evidence, the trial court had instructed a verdict in favor of the Gas Company. There was no appeal from this action of the trial court and the Gas Company, and its rights are not before us.

On appeal by defendants, the Court of Civil Appeals held that the Gas Company was in lawful possession at the time of the issuance of the title policy; therefore, the provision in the title policy that it was issued subject to the “rights of parties in possession” was a complete bar to recovery by plaintiffs for damages due to the Gas Company easement, and reversed the trial court’s judgment and rendered judgment in favor of defendants. Tex.Civ.App., 354 S.W.2d 603.

Defendants have filed a motion in this court to dismiss this cause for the rea • son that since the trial in the District Court the Gas Company has released its pipeline easement and abandoned the use of the pipeline across plaintiffs’ land. Defendants attach a copy of the duly recorded release to their motion.

The damages which plaintiffs seek are those resulting from the breach of the defendants’ contract to guarantee plaintiffs a good and indefeasible title. Those damages were suffered prior to the trial of this cause in the District Court and the amount of such damages, if any, suffered by plaintiffs, has not been paid. Plaintiffs’ rights to re-, covery still exist and recompense can be made them only by a final determination of this case. The case is not moot, and we overrule defendants’ motion to dismiss. Sterling v. Ferguson, 122 Tex. 122, 53 S.W.2d 753 (1932); Polk v. Davidson, 145 Tex. 200, 196 S.W.2d 632 (1946); 3 Tex.Jur.2d 313, Sec. 50.

Plaintiffs as petitioners here assign error to the holding of the Court of Civil Appeals that plaintiffs cannot recover, because of the provision that the policy is issued “subject to the rights of parties in possession.”

plaintiffs filed their suit they declared on the title insurance policy and attached a copy thereof to their petition. Under Rule 94, Texas Rules of Civil Proce-Proceplaintiffs were not required to allege and prove that the loss did not come within any of the policy exceptions. In its answer, the defendants specifically pleaded that the policy was issued “subject to the rights of parties in possession,” and that the Gas Company was then in possession; therefore, the plaintiffs could not recover. Prior to the adoption of Rule 94, T.R.C.P., the plain-plainsuing upon an insurance contract was required to allege and prove that the facts plaintiff relied upon for recovery did not come within any of the contract exceptions exempting the issuing company (defendants herein) from liability. Under Rule 94 no such allegations and proof are necessary on the part of the plaintiffs, except where the insurer shall allege that the loss was due to a risk or cause coming within a particular exception to the general liability. After defendants had filed their answer herein, the plaintiffs had the burden of proving their right to recover was not defeated by exception pleaded. Sublett v. American Nat. Ins. Co., 1950, Tex.Civ.App., 230 S.W. S.W.601, writ refused n. r. e.

The last clause of Rule 94, T.R.C.P., states: “provided that nothing herein shall be construed to change the burden of proof on such issue as it now exists.”

Petitioners contend that the Gas Company pipeline was not in such “possession” of the premises as would put them on notice of its existence, therefore, the Gas Company was not a party in possession of the 2.35 acres within the meaning of the title insurance policy sued on.

We sustain this assignment.

The pipeline was buried about four feet under the surface of the land purchased by the plaintiffs. There were no surface indications that a pipeline was buried in the soil. One inspecting the premises could not see anything that indicated there was a pipeline across and under the land. There were no signs indicating the location or existence of the pipeline.

The fact that the easement for the gas line was duly of record cannot be urged as a defense to this action. The title insurance policy guarantees plaintiffs a “good, and indefeasible title” to the property purchased, except as pointed out in the policy.. The easement for the pipeline is not included as an exception, unless it is included as “rights of parties in possession.”

In speaking of the character of possession which will operate as notice to a purchaser of the rights of purchasers, we find it stated in 31 Tex.Jur. 368, § 7: “In order to operate as notice of a claim to the land occupied, possession must be open and visible, notorious, exclusive and not merely constructive.”

In De Guerin et al. v. Jackson (Tex.Civ.App.1932) 50 S.W.2d 443, affirmed 124 Tex. 424, 77 S.W.2d 1041, we find the rule thus stated: stated

: the authorities agree that pos-posin order to constitute notice, must be actual possession of the party, or his agent or tenant, consisting of acts of occupancy which are open, vis-visand unequivocal, and in nature suf-sufupon the observation of a subse-subsepurchaser to put him on inquiry as to the rights of the possessor. Blankenship v. Douglas, 26 Tex. 225, 82 Am.Dec. 608; Ramirez v. Smith, 94 Tex. 184, 59 S.W. 258; Aurelius v. Stewart (Tex.Civ.App.) 219 S.W. 863; Evans v. Foster, 79 Tex. 48, 15 S.W. 170; 2 Pomeroy Eq. Jur. (4 Ed.) § 620; 46 C.J. § 38, p. 547. It must not be ■equivocal or casual. Murphy v. Welder, 58 Tex. 235; Fuentes v. McDonald, 85 Tex. 132, 20 S.W. 43; Vineyard v. Brundrett, 17 Tex.Civ.App. 147, 42 S.W. 232.”

To the same effect are the following additional authorities: Strong v. Strong, 1936, 128 Tex. 470, 98 S.W.2d 346(11), 109 A.L.R. 739; Southern Union Gas Co. v. Cantrell, 1952, 56 N.M. 184, 241 P.2d 1209; 66 C.J.S. Notice § 11, p. 647; 41 A.L.R. 1442 et seq.; 74 A.L.R. 1250 et seq.

Under the undisputed facts of this case, we hold that the possession of the Gas Company was not sufficient to give notice of its easement to plaintiffs at the time they purchased the land, and the title insurance policy. As to the rights of the Gas Company, the recorded easement was constructive notice to plaintiffs, but this does not relieve defendants of liability on their title policies.

Defendants, having been successful in the Court of Civil Appeals, filed no application for writ of error.

We hold the Court of Civil Appeals was in error on the ground upon which it based its holding. The Court of Civil Appeals did not pass on all of defendants’ assignments of error before that Court and it now becomes our duty to examine the defendants’ assignments of error in order to determine if the judgment of the Court of Civil Appeals can be sustained on any of the undiscussed assignments of error. Vanover v. Henwood, 136 Tex. 348, 150 S.W.2d 785; K & G Oil Tool & Service Company, Inc. v. G & G Fishing Tool Service, 158 Tex. 594, 314 S.W.2d 782.

In addition to the defendants’ (appellants in .Court of Civil Appeals) assignment of error sustained by the Court of Civil Appeals, we find these additional assignments in that Court: That plaintiffs’ cause of action was barred by the four-year statute of limitation. The record shows that the jury answered appropriate issues that plaintiffs did not discover the existence of the pipeline easement until July, 1957. Plaintiffs filed their suit in 1958. The question as to the date when plaintiffs first learned of the easement was a disputed one and, therefore, the jury finding is binding. There is no claim that such finding of the jury was not supported by evidence.

Defendants’ Third Point of Error in the Court of Civil Appeals was:

“The trial court erred in awarding plaintiffs $3450.00 on their claim of damages because the liability of these defendants was only such part of the $5750.00 of maximum liability as the area of the pipeline easement bore to the whole tract covered by the policy, and the Court failed to submit issues whereby the jury could have determined what part, if any, of the whole acreage was lost to plaintiffs.”

This raises only the matter of proportionate damages. Defendant argued that issues should have been submitted to the jury to determine the area covered by the pipeline easement so that the damages might be prorated. We do not sustain this assignment.

Since this is only a 2.35 acre tract and the easement permits the Gas Company to use any part for its pipeline, the existence of the pipeline easement was an encumbrance on the whole of the title to the entire 2.35 acres, and not to just a part of that total acreage. For this reason the policy provision for proportionate payment only is not applicable in this cause.

The only other point complained of the allowance of $1,750.00 as attorneys’ fees to plaintiffs, because no adverse claim or suit was ever asserted against plaintiffs which defendants were required to defend. The record shows that as soon as plaintiffs discovered the existence of the easement they called upon defendants to remove the same. This defendants refused to do, or to pay plaintiffs the damages demanded. Plaintiffs also called upon the Gas Company for release and removal of the easement and pipeline. The Gas Company refused to release the easement or to remove the pipeline unless it was reimbursed for cost of removal. Plaintiffs were required to file suit to secure relief. The policy has a provision requiring the defendants to defend litigation necessary to clear title. Defendants, upon proper notice and demand, refused to litigate for removal of the easement. Plaintiffs were forced to file and prosecute a suit for relief and are entitled to recover their attorneys’ fees.

We cannot affirm the judgment of the Court of Civil Appeals on any of the undis-posed of points.

There are no points of error urged by plaintiffs as to the damages awarded, so the measure of damages, except as raised by defendants in their above point, is not before us for decision.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: WALKER, Justice.

license: Public Domain

text:
    ARGONAUT INSURANCE COMPANY, Petitioner, v. Dawson NEWMAN, Respondent.
    No. A-8641.
    Supreme Court of Texas.
    Oct. 3, 1962.
    Rehearing Denied Dec. 5, 1962.

      Harris, Anderson, Henley & Rhodes, Dallas, for petitioner.
    Tom Bartlett, Jr., Marlin, Gordon R. Wellborn and Rex Houston, Henderson, for respondent.
   WALKER, Justice.

This is a workmen’s compensation case. Dawson Newman, plaintiff, was injured in the course of his employment when a folding walkway fell on his left foot. By trial amendment plaintiff alleged that he suffered two broken toes and a sprained ankle in the accident, that as a result of such injuries he developed myositis in the left leg, and that the injuries had extended to and disabled his low back and body in general. The trial court rendered judgment on the verdict in plaintiff’s favor for total and permanent disability, and the Court of Civil Appeals affirmed. 348 S.W.2d 761. We have concluded that the trial court erred in giving certain instructions to the jury and that the case must be remanded for a new trial.

The terms “total incapacity” and “partial incapacity” were defined in the usual manner in the main charge. The jury was then instructed that “neither total incapacity nor partial incapacity, as such terms are used herein, can exist where an injury and its effects are confined solely to the toes, to the foot, or to the leg, or where the injury produces only a loss of the use of the toes, the foot, or the leg.” Defendant objected to this instruction on the ground that it informed the jury of the effect of their answers, constituted a comment on the weight of the evidence, and was not a proper instruction under the Workmen’s Compensation Law. Such objection was overruled.

After deliberating for about three hours, the jurors returned into open court and announced that they had reached a verdict. For convenience the answers upon which they had agreed at that time will be referred to as the first verdict. Having concluded that some of the findings were conflicting in certain respects, the trial judge gave the jury additional written instructions which are quoted in the margin. The jury was again advised that neither total nor partial incapacity can exist where an injury and its effects are confined to the toes, to the foot, or to the leg, or where the injury produces only a loss of the use of the toes, the foot or the leg. Defendant objected to the additional instructions and pointed out that “such comments and explanations of the Court constitute a comment on the weight of the evidence and advise the jury of the effect of their answers to the special issues and especially is this true by explaining to the jury that in answering Special Issues Nos. 1, 2 and 3, that they have found the plaintiff to be suffering from total and permanent incapacity and explaining to the jury not once, but twice, in such special instructions, that they cannot make the answers to the other special issues that they have made and also find the plaintiff is totally and permanently disabled.” These objections were also overruled.

The jury retired for further deliberation and after about thirty minutes returned another verdict. This second verdict was accepted by the trial court, and judgment was rendered thereon in plaintiff’s favor for total and permanent disability. The substance of the special issues that are necessary to an understanding of our holding and the answers made by the jury in response thereto on each occasion are set out in a footnote to this opinion. Special instructions and language placing' the burden of proof have been omitted.

Defendant’s attack here is directed, as it was in the Court of Civil Appeals, at the italicized portion of the additional instructions. These instructions, as well as the one given in the main charge, are misleading and erroneous comments on the weight of the evidence. See Rule 272, Texas Rules of Civil Procedure. If Texas Employers Ins. Ass’n v. Goines, Tex.Civ.App., 202 S.W.2d 487 (wr. ref. n. r. e.), iholds to the contrary, the decision is unbound and will not be followed in that re.spect. Although our law does not provide .for compensation in the same amount that would be awarded for disability caused by a general injury or by an extension of a specific injury, a claimant may in fact suffer either total or partial incapacity as the result of an injury that is confined to a specific member. In Consolidated Underwriters v. Langley, 141 Tex. 78, 170 S.W.2d 463, it was pointed out that “where injury results to a particular member of the body, compensation for the loss of which is specifically provided by statute, the liability of the insurer is limited to that amount, even though the loss of or injury to that particular member actually results in total permanent incapacity of the employee to labor. But an employee is not precluded- from recovering for total incapacity if he alleges and proves that the injury to the particular member also extended to and affected other portions of his body, or impaired his general health to such an extent as to totally and permanently incapacitate him.” (Emphasis supplied.) If the evidence shows that the claimant is totally or partially disabled from performing the usual tasks of a workman, the jury may properly find that he has suffered incapacity even though it also concludes that his injuries are confined to a specific member.

There is evidence in this case to support the conclusion that the plaintiff has suffered no incapacity apart from some loss of the use of his toes. One of the principal issues is whether the injury to the toes extended to and affected his body in such manner as to entitle him to compensation for total and permanent disability. Both verdicts contain findings that the injury to the toes extended to and affected the foot, that the injury to the foot extended to and affected the leg, and that the injury to the leg extended to and affected the body. When the first verdict was returned, however, the jury was unwilling to say that the incapacity to the foot was not caused solely by the loss of use of the toes, that the incapacity to the leg was not caused solely by the loss of use of the foot, or that plaintiff’s incapacity was not caused solely by the loss of use of the leg. The jurors should have been permitted to consider and answer the extension and confinement issues without being told, in effect, that if they concluded that the plaintiff had sustained either total or partial incapacity they should also find: (1) that his injuries extended to the body, and (2) that his incapacity was not caused solely by the loss of use of a specific mem.ber.

It is apparent from the manner in which the jurors dealt with Special Issues Nos. 9 and 12 that they were confused and misled by the instructions. The evidence leaves little room to doubt that plaintiff had suffered at least some loss of use of his toes. In the first verdict there were findings that such loss of use is both total and partial. After the additional instructions were given, the answers to these issues were changed and the jury refused to find any loss of use of the toes.

In our opinion the case has not been properly tried, and it should be tried again. It is unnecessary, therefore, to discuss some of the questions brought forward for review, but an expression of our views on several other matters may be of assistance on a second trial. The manner in which the case was submitted to the jury is somewhat unusual. Special Issue No. 1 as originally prepared by the trial court inquired whether the injury sustained by plaintiff naturally resulted in his incapacity. Upon objection by defendant, the issue was rephrased and limited to the injury to plaintiff’s toes and foot. Although plaintiff argues to the contrary, we do not think the jury’s answer in response thereto can be regarded as a finding that he sustained incapacity as the result of an original general injury to the body. The issue as finally submitted simply had no place in the charge. When an injury is confined to a specific member, the amount of the recovery is determined by the extent to which the claimant has lost the use of that member. If an injury to a specific member extends to and affects the body in general, the crucial inquiry is whether such extension has caused incapacity. The fact that a specific injury in itself may disable the claimant is immaterial.

If the plaintiff expected to recover for general incapacity on the theory that the toe injury had extended to and affected the body and thereby caused disability, it was necessary for him to obtain a finding to that effect. Apparently he was attempting to trace an extension of such injury through the foot and leg to the body by the answers to Special Issues Nos. 16, 24 and 32, but we do not think the verdict is subject to that construction. The answer to Special Issue No. 32, for example, would ordinarily be regarded as a finding that an original injury to the leg had extended to and affected the-body. We find nothing in the charge to-indicate that the court was there inquiring whether the toe injury had further extended, from the foot through the leg to the bodyv It should also be pointed out that there is no express finding that incapacity has resulted from the extension of any injury to the body.

The judgments of the courts below are reversed, and the cause is remanded to the district court for a new trial.

      . “You have answered special issues one, two and three that the injuries to Dawson Newman’s toes and foot resulted in his incapacity, that such incapacity was total, and that such total incapacity is permanent. In special issues 9, 10, 12, 13, 15, 17, 18, 20, 21, 25, 26, 28, 29, 31, 33, 34, 35, 36 and 37 you have answered that plaintiff suffered total and partial incapacity to his toes, his foot and his leg. As you are instructed on page 9 of the court’s charge neither total incapacity nor partial incapacity can exist where an injury and its effects are confined solely to the toes, to the foot, or to the leg, or where the injury produces only a loss of the use of the toes, the foot, or the leg. Stated (¡another way, a man cannot have total disability to his body in general and total or partial disability to a specific member of his body at the same time.

      “You have also answered in special issue number 16 that the injury to plaintiff’s toes extended to and affected his left foot; in special issue number 24 that the injury to plaintiff’s foot extended to and affected his left leg; and in special issue number 32 that the injury to plaintiff’s leg extended to and affected parts of his body other than the leg. These three answers are not in conflict with each other; however, in special issue number 33 you answered that plaintiff’s incapacity to his foot was caused solely by the loss of the use of the toes; in special issue number 34 you answered that the incapacity to plaintiff’s leg was caused solely by the loss of the use of the left foot; in special issue 35 you answered that the incapacity of plaintiff was caused solely by the loss of use of the left leg; in special issue number 36 you answered that plaintiff’s incapacity is caused solely by his use or attempted use of his injured toe; and in special issue 37 you answered that plaintiff’s incapacity is caused solely by his use or attempted use of his injured foot. The answers to special issues 16, 24, and 32 are in conflict with the answers to special issues 33, 34, 35, 36 and 37. And, as indicated in the first paragraph above, the answers to special issues one, two and three are in conflict with the answers to special issues 9, 10, 12, 13, 15, 17, 18, 20, 21, 25, 26, 28, 29, 31, 33, 34, 35, 36 and 37.
      “The Court does not desire to indicate how you shall answer the special issues, but only to point out the conflict in your answers; so, as stated in the main charge, you must answer the special issues as you find the facts to be and you are entirely free to make any answer to any special issue in the court’s charge as you may find from a preponderance of the evidence, and you will return to your room and reconcile your answers.” (Emphasis supplied).

      . “Special Issue No. 1: Do you find that the injury to Dawson Newman’s toes and foot on November 13, 1959, naturally resulted in his incapacity in any percentage for any length of time?
      “Answer: (first and second verdicts) Yes.
      “Special Issue No. 2: Do you find that Dawson Newman’s incapacity to work, if any, was total for any length of time?
      “Answer: (first and second verdicts) Yes.
      “Special Issue No. 3: Do you find that such total incapacity, if any, was or is permanent or temporary?
      “Answer: (first and second verdicts) Permanent.
      “Special Issue No. 9: Do you find that the injury to plaintiff’s toes on the 13th day of November, 1959, has resulted in a total loss of the use of said toes?
      “Answer: (first verdict) Yes.
      (second verdict) No.
      “Special Issue No. 10: Do you find such total loss of use to be permament or temporary?
      “Answer: (first verdict) Permanent. (second verdict) Not answered.
      “Special Issue No. 12: Do you find that the plaintiff has or will suffer any partial loss of use of his toes as a result of the injury to said toes on the 13th day of November, 1959?
      “Answer: (first verdict) Yes.
      (second verdict) No.
      “Special Issue No. 16: Do you find that the injury to plaintiff’s toes, if any, extended to and affected his left foot, thereby causing incapacity?
      “Answer: (first and second verdicts) Yes.
      “Special Issue No. 24: Do you find that the injury to plaintiff’s foot, if any, extended to and affected his left leg, thereby causing incapacity?
      “Answer: (first and second verdicts) Yes.
      “Special Issue No. 32: Do you find that the injury to plaintiff’s leg, if any, extended to and affected parts of Ms body -other than the leg?
      “Answer: (first and second verdicts) Yes.
      “Special Issue No. 33: Do you find that ■the incapacity, if any, to the foot of plaintiff, was not caused solely by the loss ■of the use of the toes on the left foot, if any'?
      “Answer: (first verdict) It was. (second verdict) It was not.
      •“Special Issue No. 34: Do you find that -.the incapacity, if any, to the leg of plaintiff -was not caused solely by the loss <of the use -of the left foot, if any?
      “Answer: (first verdict) It was.
      (second verdict) It was not.
      “.Special Issue No. 35: Do you find that the incapacity of plaintiff, if any, was not caused solely by the loss of use of Ms left leg, if any?
      “Answer: (first verdict) It was.
      (second verdict) If was not.
      “Special Issue No. 36 : Do you find that the plaintiff’s incapacity to work and earn money, if any, is not caused solely by Ms use or attempted use of Ms injured toes?
      “Answer: (first verdict) It was.
      (second verdict) It was not.
      “Special Issue No. 37: Do you find that the plaintiff’s incapacity to work and earn ■ money, if any, is not caused solely by Ms use or attempted use of Ms injured foot?
      “Answer: (first verdict) It was.
      (second verdict) It was not.


author: MORRISON, Judge.

text:
    Nolan Ray PATE, Appellant, v. The STATE of Texas, Appellee.
    No. 34803.
    Court of Criminal Appeals of Texas.
    Nov. 14, 1962.

      M. D. Emerson, Paris (On Appeal), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is attempting to pass as true a forged instrument; the punishment, two years.

The indictment alleged that appellant attempted to pass the check set forth therein to Mae John Landers. She testified that appellant came into the Brookshire store where she was employed and “asked me to cash a check,” that she instructed him to take it to Mr. Kinser, the manager, for his “O. K.” and that he did so. Kinser testified that he observed certain irregularities in the check when appellant presented the same to him, that he called the police, and that appellant hurriedly left the store, leaving the check in his possession. Constable Dobbins testified that when he saw appellant on the day in question appellant ran, but that he apprehended him and carried him to Brookshire’s store. Appellant was identified, and the fact that the check was a forgery was established. We shall discuss the contentions advanced by brief and in argument.

He first contends that the indictment is defective because it fails to explain what sum was meant by the words “forty eight fifty Dollars” as they appear on the face of the check The motion to quash the indictment which was filed failed to complain of the absence of innuendo averments. Be this as it may, Article 5932, Sec. 17 subdiv. (1), Vernon’s Ann.Rev.Civ.St. (Negotiable Instruments Act), provides, in part, as follows ; “ * * * if the words are ambiguous or uncertain, reference may be had to the figures to fix the amount.” In the check before us here, the figures appear as $48-5-0-. This we conclude is sufficient to fix the amount of such check as $48.50 and that there is no material variance between the indictment which alleged $48.50 and the check which read $48⅝

In Robinson v. State, 148 Tex.Cr.R. 439, 188 S.W.2d 578, upon which appellant relies, the check which was set forth in the indictment called for two different sums, to-wit, “100 Dollars” and “$30.00,” and this Court held the trial court erred in failing to sustain a motion to quash because of the absence of innuendo averments as to what sum was intended. In the indictment before us here, the words “forty eight fifty Dollars” are merely ambiguous and do not call for a different sum of money other than $48.50.

In Roberts v. State, 138 Tex.Cr.R. 39, 133 S.W.2d 974, also relied upon, the instrument set forth in the indictment appeared to be a promissory note, a conditional sale contract and a chattel mortgage, and this Court held that the indictment should have contained innuendo averments to explain the ambiguities therein. Such is not the case before us here because the instrument relied upon is clearly a check.

We find no merit in appellant’s contention that a variance existed because the check bore such printed matter as “when written in ink this check is insured * * ” while the indictment failed to contain these printed words. In Whitlock v. State, Tex.Cr.App., 338 S.W.2d 721, we said:

“As to the omission of the words 'Associate Store’ from the indictment, we quote from 37 C.J.S. Forgery § 68b, p. 83, as follows:
“ ‘So the addition of words, letters, or figures which do not affect the sense will not vitiate the indictment; nor will the omission thereof. * * * A variance in names so trifling that it is inconceivable that defendant could have been misled or prejudiced thereby is immaterial. * * * A variance as to a name in an indictment has been held not fatal if it is not the name averred to be forged.’
“In Criner v. State, 89 Tex.Cr.R. 226, 229 S.W. 860, the instrument offered in evidence bore the phrase ‘a satisfied customer’ under the line for signature. This Court held that failure to copy such words in the indictment did not create a variance. See also Young v. State, Tex.Cr.App., 40 S.W. 793; Anderson v. State, 144 Tex.Cr.R. 26, 161 S.W.2d 88; Biering v. State, 159 Tex.Cr.R. 331, 263 S.W.2d 558; and People v. Brown, 61 Cal.App. 574, 215 P. 1031.”

Appellant next contends that the evidence is insufficient to support the allegations in the indictment in that appellant attempted to pass the check to Mae John Landers when the proof was that he attempted to pass it to Mr. Rinser. Had the offense been the actual passing of the check, another question would have been presented, but one may attempt to pass a check to any number of people, each such attempt constitutes a separate offense, and the State may elect upon which offense to proceed. The evidence is sufficient to support the jury’s finding that appellant attempted to pass the check to Mrs. Landers when he asked her to cash it.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.


author: McDonald, judge. WOODLEY, Presiding Judge

text:
    James R. ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 34933.
    Court of Criminal Appeals of Texas.
    Nov. 14, 1962.

      W. D. Hollars, Plainview, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was tried by a jury in the county court of Hale County upon an information for the offense of wilfully deserting, neglecting, or refusing to provide for the support and maintenance of his minor children under the age of eighteen years; his punishment was assessed at confinement for one year in the county jail.

The state’s evidence reflects, from an agreed statement of facts in narrative form, that appellant was married to his wife three different times and that at the time in question, April 4, 1962, she was still married to him. The state’s entire testimony was adduced from the wife, Patricia Adams, who testified that three children were born of the marriage and that she and her husband separated on November 25, 1961, because of his mistreatment of her. Mrs. Adams further testified that appellant spent all of his income on liquor and failed to properly support her and the children; that she lived with her parents in Hale County from the time of the separation until the time of the trial and that during that period of more than four months appellant contributed a total of $45 toward the support of his children. She further testified that during the time that she and appellant lived together he worked as a concrete worker, earning from $75 to $100 per week; that since the separation she had worked as a carhop at a drive-in but was unable to support herself and her children on her earnings.

At the close of Mrs. Adams’s testimony the state rested its case.

The appellant was not represented by counsel, offered no testimony, and both sides closed.

In his motion for a new trial appellant contends that the evidence was insufficient to support the conviction because it did not show that he was financially able to support and provide for the maintenance of his children; that he wilfully refused to do so and that he had the ability to do so.

Appellant’s counsel on appeal has filed a brief and urged the above contentions and additionally urges that the evidence does not show that appellant earned any money other than what he gave his wife and children during the time of separation, or that he was financially able to contribute more than he did to the support of his children.

We think that' evidence that the father was able to contribute more to the support of his minor children than he did is a requisite that must be shown in order for the evidence to be sufficient to show that the neglect and failure were wilful. I call attention to the unbroken line of decisions from this court beginning with Prock v. State, 92 Tex.Cr.R. 494, 244 S.W. 601 (1922). Glazener v. State, 117 Tex.Cr.R. 605, 36 S.W.2d 752; Rainwater v. State, 140 Tex.Cr.R. 88, 141 S.W.2d 364.

We further recognize that Cardona v. State, 160 Tex.Cr.R. 541, 273 S.W.2d 73,. is correct, where the evidence was held insufficient. We said:

“In order to here convict, there must be some testimony that the accused was so situated that he could have contributed more to the support of his chil-dien than he did.”

We do not think that the evidence in the instant case shows that the accused was financially able to support his children beyond the contributions that he did make. We are mindful of the moral obligation of a parent to support his children. This obligation makes it difficult to accord to a father charged with refusing to support his children the rights given to him by the law, and yet when the father is prosecuted by the state it is for a violation of the written law and not for a violation of the moral obligation or duty to support his children.

Finding the evidence insufficient to support the verdict the judgment is reversed and the cause is remanded.

WOODLEY, Presiding Judge

(concurring).

The complaint was filed 43 days after appellant and his wife separated. The second child alleged to have been neglected is not mentioned or referred to in any way in the statement of facts. There is no evidence to support a finding that appellant was financially able to contribute more than the $45 he did contribute to the support of his two year old child Jamie Lee Adams.

The state relies upon that portion of Art. 605 P.C. which provides: “Proof of the desertion of such wife, child or children in destitute or necessitous circumstances or of neglect or refusal to provide for ths support and maintenance of such wife, child •or children shall be prima facie evidence that such desertion, neglect, or refusal is willful.”

Where the state proves that the wife, child or children were in destitute or necessitous circumstances, and that the defendant parent deserted or neglected or refused to provide any means for their support and maintenance, the prima facie evidence rule found in Art. 605 P.C. applies and relieves the state of the necessity of further proof that such desertion, neglect or refusal to provide was wilful (such as by proof of the defendant’s financial resources or earnings).

Such prima facie evidence rule does not apply however where, as here, the evidence shows that the defendant parent, charged with wilfully failing to contribute to the support of his child under 18 years of age, did contribute to the support of such child, and the prosecution is upon the theory that he was able to and should have contributed more than he did.


author: WOODLEY, Presiding ■ Judge.

text:
    Ex parte Donald NEWCOMB.
    No. 35004.
    Court of Criminal Appeals of Texas.
    Nov. 14, 1962.

      No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding ■ Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding the appellant to custody for extradition to the State of Florida.

The state offered in evidence the Governor’s Warrant; the requisition of the Governor of Florida and the documents supporting such requisition. It was stipulated that the appellant herein was the person named in the Governor’s Warrant. No evidence was offered in appellant’s behalf.

The proceedings appear regular and the trial court did not err in remanding appellant to custody for extradition.

The judgment is affirmed.


author: McDonald, judge.

text:
    Charlie Floyd LEWELLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 35025.
    Court of Criminal Appeals of Texas.
    Nov. 14, 1962.
    Joseph Williams, Haskell, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted in the County Court of Haskell County of the offense of driving a motor vehicle on a public highway while intoxicated, with punishment assessed at a fine of $50 and confinement in jail for three days.

Our able state’s attorney has confessed error in this case, with which position we are in accord. The three formal bills of exception filed by appellant all reflect error.

Bill of exception No. 1 certifies that a witness, A. T. Ballard, who had testified that appellant’s reputation as a peaceable and law-abiding citizen was good, was asked by the county attorney if he did not know the appellant had been convicted for being drunk in a public place just a week before he was charged with the offense for which he was on trial; that appellant’s counsel objected that the question was improper and not admissible to prove or rebut reputation in that the state was inquiring of the witness concerning specific extraneous offenses allegedly committed by the appellant, in an attempt to impeach the testimony of the witness, by specific law violations; that it was prejudicial and inflammatory; that the trial court overruled the objection.

It is error to ask a witness if he knows of specific acts of misconduct of accused. The 'state can only ask if he had heard of a specific act of misconduct. Pitcock v. State, 168 Tex.Cr.R. 204, 324 S. W.2d 855; Davis v. State, 160 Tex.Cr.R. 138, 268 S.W.2d 152; Wiley v. State, 153 Tex.Cr.R. 370, 220 S.W.2d 172; Wharton v. State, 157 Tex.Cr.R. 326, 248 S.W.2d 739.

Bill of Exception No. 2, which was approved by the court, certified that after the defense had offered evidence as to appellant being a peaceable and law-abiding citizen, the trial court, over proper objection, permitted V. A. Brown, justice of the peace, to testify that appellant had pleaded guilty on April 1, 1962, to being drunk in a public place and paid a fine for such offense. The objection was that such was a misdemeanor offense introduced to prejudice and inflame the minds of the jury; that such was not admissible to prove or rebut reputation and, in an effort to impeach the testimony of the witness as to the good reputation of the accused, was an attempt to prove a specific extraneous misdemeanor offense committed by the appellant.

The trial court also committed error, as reflected in Bill of Exception No. 3, when he permitted the sheriff, G. T. Garrett, to testify that appellant pleaded guilty in 1957 and 1958 to being drunk in a public place and paid fines for such offenses. These offenses inquired about were misdemeanors not involving moral turpitude and could not be used to inflame the minds of the jury. 45 Tex.Jur., p. 106, Sec. 244.

Appellant did not take the stand.

The judgment is reversed and the cause is remanded.


text:
    Stafford AGEE, Appellant, v. The STATE of Texas, Appellee.
    No. 34987.
    Court of Criminal Appeals of Texas.
    Nov. 14, 1962.
    Don C. Alexander, Dallas, for- appellant.
    Henry Wade, Dist. Atty., Steve Guittard and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is unlawfully carrying a pistol; the punishment, 60 days in jail. Trial was before the court without the intervention of a jury.

Officer Murdock of the Dallas police testified that, while on patrol with his fellow officer Elwonger on the night in question, he observed an automobile driving at an excessive rate of speed on the freeway and gave chase; that after he turned on the red light on his patrol car he observed the driver of the automobile in question raise up in his seat and observed certain motions on the part of the two other occupants. He stated that when the automobile came to a halt he approached the same on the driver’s side and asked appellant, who was the driver, to step out while Elwonger got the other two occupants out on the other side; that he observed a fabric cushion approximately one inch thick in the driver’s seat and under the same found a pistol.

Officer Elwonger testified that he observed the occupants leaning forward and reaching down- “towards the underside of the seat or thereabouts” before the automobile came to a stop; that he got the two passengers out at the same time Murdock asked appellant to step out of the automobile, and that he found no pistol on either of them or on the side where they had been seated.

Appellant, testifying in his own behalf, denied that the pistol was his or that he knew of its presence under the one inch thick cotton cushion on which he was seated.

The sole question presented for review is the sufficiency of the evidence to show that the pistol was in appellant’s possession. Reliance is had upon Summerville v. State, 164 Tex.Cr.R. 591, 301 S.W.2d 913. The facts clearly differentiated the two cases. Regardless of who had the pistol originally, appellant was clearly shown to have had it in his possession and on and about his person while he was seated thereon in an effort to conceal it from the officers.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment of the trial court is affirmed.


text:
    Charles Wayne GRANTHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 34982.
    Court of Criminal Appeals of Texas.
    Nov. 14, 1962.

      No attorney on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted in the District Court of El Paso County of the offense of robbery by assault, with punishment assessed at five years’ confinement in the penitentiary.

There is no statement of facts. The transcript contains two formal bills of exception.

Both of these bills urge as error the admissibility of certain testimony by state’s witnesses to the effect that the reputation of the appellant as a peaceable law-abiding citizen was bad. Appellant’s counsel moved the court to strike the testimony of these witnesses for the reason that the witnesses were not shown to be qualified to testify as character witnesses. Both bills bring forward the complained-of testimony of the two witnesses. The trial court qualified both bills, as follows:

“The foregoing bill of exception * * * having been by me submitted to counsel for the State of Texas and found by him and by me to be correct as to testimony from the record is qualified by the Court to reflect other testimony of the witness as reflected in the Statement of Facts.”

Appellant did not file a statement of facts to show the other testimony of the witnesses, nor did he resort to bystanders’ bills as required by Art. 760d, Vernon’s Ann. C.C.P.

There is nothing for thi* court to review. The bills, however, as originally drawn, have been examined and do not reflect error. Campos v. State, Tex.Cr.App., 356 S.W.2d 317; Cook v. State, Tex.Cr.App., 356 S.W.2d 149.

The judgment of the trial court is affirmed.


text:
    Charles D. STUART, Appellant, v. The STATE of Texas, Appellee.
    No. 35020.
    Court of Criminal Appeals of Texas.
    Nov. 14, 1962.
    Leon D. Glasscock, of Glasscock & Glass-cock, San Antonio, for appellant.
    Charles J. Lieck, Jr., Dist. Atty., Andrew L. Jefferson, Jr., and A. J. Homan, Jr., Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the unlawful practice of ■medicine; the punishment, one day in jail .and a fine of $500.00.

The prosecution was upon an information which charged appellant with treating and •offering to treat a disorder and to effect a ■cure and charged money therefor without having registered a certificate authorizing him to practice medicine.

It was shown that a search of the medical .and chiropractic records of the district clerk’s office of the county failed to disclose .a record of any license filed by appellant.

The witness Hope Herrera testified that she entered the Bedell Building in San Antonio and found both “Mission City Clinic” .and “Dr. Stuart” listed in the building directory, proceeded to the third floor, entered his office and, in answer to appellant’s questions, told him that she was extremely nervous; that appellant took her ‘blood pressure, placed a stethoscope to her chest and her back, and then told her that 'he would have to take a blood specimen so that he might know exactly the amount of calcium and phosphorus to prescribe for 'her. She stated that a blood specimen was taken and that she was offered a choice of 'injections or tablets; that she chose tablets but, because he was temporarily out of •the same, she agreed to return the following day, but before leaving she paid appellant : $10.00 and received from him a receipt signed “Dr. Charles D. Stuart” acknowledging the payment of $10.00 and showing .a balance of $5.00. The witness testified ■that while she was in appellant’s office she saw him injecting something into another ■woman’s arm and that she observed syringes, capsules and a sterilizer in the office.

Appellant, testifying in his own behalf, ■stated that he was a naturopathic physician rand a chiropractor, that he examined the spinal column of the prosecuting witness, ■took her blood pressure, stated that his associate took a blood specimen and he did not send the specimen to the laboratory be- • cause the prosecuting witness did not return and pay the remaining $5.00 due. He stated that he had an associate, Dr. Anaya, who was also a naturopath, in the operation of the Mission City Clinic.

We find the evidence sufficient to support the allegations in the information.

The fact that one may be a naturo-path is no defense. Keahey v. State, 168 Tex.Cr.R. 331, 327 S.W.2d 759.. We need not pass upon the question of whether acts constituted those of a practitioner of chiropractic since he was shown not to have been licensed as a chiropractor, as provided in Article 4512b, Vernon’s Ann.Rev.Civ.St.

We are not authorized to consider appellant’s motion to quash the information or his objections to the court’s charge because neither was presented to the trial court in writing as required by statute. Redding v. State, 166 Tex.Cr.R. 517, 316 S.W.2d 724, and Cedillo v. State, 165 Tex.Cr.R. 371, 307 S.W.2d 267.

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


author: WERLEIN, Justice.

text:
    HOUSTON PIPE LINE COMPANY, Appellant, v. Dixie BROWN et al., Appellees.
    No. 13990.
    Court of Civil Appeals of Texas. Houston.
    Oct. 25, 1962.
    Rehearing Denied Nov. 15, 1962.

      Fulbright, Crooker, Freeman, Bates & Jaworski, M. W. Parse, Jr., Houston, for appellant.
    Wiley Thomas, Angleton, for appellees.
   WERLEIN, Justice.

This suit was brought by appellee, Dixie Brown, owner of an undivided fáths interest in Tract 231 of Subdivision No. 13 of Brazos Coast Investment Company’s Subdivision out of the A. Calvit Survey, Abstract 49, in Brazoria County, Texas, against the Houston Pipe Line Company for a mandatory injunction requiring appellant to remove its high pressure gas pipeline from said premises, and, in the alternative, for damages and exemplary damages. Ap-pellee, V. T. Norton, owner of an undivided ¼⅛ interest in said tract, intervened and in effect adopted the pleading of appellee Brown. Appellant pleaded the ten year statute of limitation, and, in the alternative, filed a cross-action in condemnation under Article 3269, Vernon’s Annotated Texas Statutes. The trial court instructed a verdict against appellant on its defense of limitations, and rendered judgment, on the jury verdict, in the sum of $20,000.00 for the .29 acre strip in the right of way, and damages to the remaining 3.27 acres in the tract.

In its first Point appellant complains that the court erred in overruling its motion to dismiss the condemnation proceeding after the jury returned its verdict, contending that it had the legal right to dismiss or abandon its proceeding in condemnation at any time before judgment was entered and possession taken under and by virtue of the condemnation proceedings. Appellant’s motion to dismiss the condemnation proceeding was filed on July 14, 1961. Judgment was not entered until November 7, 1961. Possession of the right of way was not taken under or by virtue of the condemnation proceedings, since appellant, being unable to find the owners of the property in question, had gained possession through a trespass some eleven years prior to the filing of the instant suit.

Ordinarily a condemnor may dismiss its condemnation action at any time before judgment is entered and possession is taken under and by virtue of the condemnation proceedings. Lower Nueces River Water Supply District v. Cartwright, Tex.Sup.1959, 328 S.W.2d 752; Thompson v. Janes, Tex.Sup.1952, 251 S.W.2d 953; Texas Power & Light Co. v. Cole, 1958, 158 Tex. 495, 313 S.W.2d 524; Brazos River Conservation & Reclamation Dist. v. Allen, 1943, 141 Tex. 208, 171 S.W.2d 842.

As stated in Armendaiz v. Ray, Tex.Civ.App.1948, 215 S.W.2d 210, the jury verdict is nothing more than an offer to sell the property to the condemnor for the price found by the jury, which the con-demnor may refuse if he thinks the price is too high. See also Leonard v. Small, Tex.Civ.App.1930, 28 S.W.2d 826, writ ref.; Board of Regents of State Teachers College v. Kelley, Tex.Civ.App.1948, 208 S.W.2d 565. The same rule applies to a cross-action in condemnation filed under Article 3269, Vernon’s Ann.Tex.St. In Brazos River Conservation & Reclamation Dist. v. Harmon, Tex.Civ.App., 178 S.W.2d 281, error ref., w. o. m., the court stated: “* * * it must be borne in mind that the condemnor has the right to abandon such proceedings before judgment and before the right to condemn has vested.”

It is appellees’ contention that since appellant had had actual possession of the right of way for a number of years, it should not be permitted to abandon its condemnation proceeding, especially since, if allowed to do so, appellees would be prejudiced. Appellees thus seek to distinguish the present case from the cases relied upon by appellant where possession of the property had not been taken. Appellees further contend that if appellant is permitted to abandon the condemnation proceeding and judgment is entered requiring appellant to remove its pipeline from appellees’ land, appellees will be injured in that they will not be permitted to recover damages either actual or exemplary growing out of appellant’s trespass in laying and maintaining the pipeline across the land in question.

is our view that appellees are not in a position to complain that they would be deprived of their cause of action for damages if appellant is ordered to remove the pipeline, since appellees in their petition did not assert or pray for damages either actual or exemplary growing out of the original trespass and the laying of the pipe-pipebut only prayed for damages both actual and exemplary in their alternative pleading in the event the court should not-not-the pipeline removed.

While the facts in the instant case are-different in several particulars from those in the case of Lower Nueces River Water Supply District v. Cartwright, supra, we are-of the opinion that the law as enunciated' in the Cartwright case is applicable to the present case and is controlling. The court,, in the Cartwright case, stated:

“Ordinarily, the condemning author-authormay refuse to take the property-sought to be condemned and decline to pay the award finally fixed by either special commissioners or a judicial tribunal. Texas Power & Light Co. v. Cole, Tex.Sup. [158 Tex. 495], 313 S.W.2d 524. However, when the condemning authority gains possession of land under and by virtue of condemnation proceedings and cannot thereafter restore possession to the landowner and thus re-establish the status quo, such authority cannot dismiss the condemnation proceedings under which possession was obtained and seek to relitigate the matter of damages. Such action would result in obvious prejudice to the landowner and if permitted would allow the condemning authority to try the damage issue again and again until it received a favorable or acceptable award. This is the prejudice to the landowner upon which the rule of Brazos River Conservation & Reclamation District v. Allen, 141 Tex. 208, 171 S.W.2d 842, 844, is based.” (Emphasis by the Court.)

In the instant case appellant did not take possession under or by virtue of the condemnation proceedings, and it does not seek to relitigate the matter of damages. It has offered to remove the pipeline from the premises in question and to restore possession to appellees, and to submit to a mandatory injunction requiring it to do so, unless it can establish its claim to the right of way by limitation. It does not appear, therefore, that appellees will be prejudiced in any way by the court granting them the relief they prayed for in their petition in seeking a mandatory injunction against appellant.

In the Cartwright case, as in this case, it was asserted by the property owner that if one who took possession after an award and deposit in the administrative proceedings cannot dismiss, then certainly a trespasser should be denied the right to dismiss the administrative proceedings. The court stated: “This argument is based upon a non sequitur.” The court then, after giving several illustrations, made this very pertinent statement:

“And in these hypothetical instances, where does the matter of possession figure? The answer is that it has no bearing upon the situation one way or another unless that possession has been acquired under and by virtue of, or in connection with the administrative proceedings and a dismissal of such proceedings would result in the authority’s ridding itself of an unfavorable award or agreement to the landowner’s prejudice.” (Citing cases.)

In our opinion the trial court erred in refusing to permit appellant to dismiss the condemnation proceedings prior to judgment, since appellant did not take possession of the right of way under or by virtue of the condemnation proceedings, nor obtain anything whatever therefrom. Moreover, there is nothing in the record to show that appellant seeks to relitigate the matter of damages or do other than restore the premises to appellees and thus place them in the same position they were in prior to the trespass.

Appellant complains that the trial court erred in instructing a verdict against it on its defense of the ten year statute of limitations. We have carefully considered the evidence most favorably in behalf of appellant with respect to adverse possession and limitation, and have concluded that the court did not err in instructing a verdict thereon in favor of appellees. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 1952, 151 Tex. 635, 253 S.W.2d 422. While the evidence shows that appellant had installed the pipeline diagonally across the tract of land in question burying it some 24 inches under the surface of the land, and had used the pipeline continuously for approximately eleven years prior to the time this suit was brought, there is no evidence actual or circumstantial, more than a mere scintilla, that the use of the land under the circumstances shown to exist, was open, notorious, and adverse, or within the knowledge or acquiescence of the owners of the property. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. In our opinion the evidence does not point to any posts, signs, markers or vents upon or in close proximity to the tract in question, prior to the construction of Highway 332 across Tract 231 in 1956, which upon a careful inspection by the owners thereof would have indicated to them the presence of the pipeline involved. Maricle v. Hines, Tex.Civ.App.1952, 247 S.W.2d 611.

In view of our holding, it is not necessary to consider or discuss appellant’s other Points. The judgment of the trial court is reversed and the cause is remanded with instructions that the trial court issue a mandatory injunction in conformity with this opinion, requiring the appellant to remove the pipeline in question from appellees’ property within such time as the trial court may consider proper and reasonable.

Reversed and remanded with instructions.


author: COLEMAN, Justice.

text:
    BEARD DRILLING, INC., Appellant, v. W. J. STEEGER et al., Appellees.
    No. 13980.
    Court of Civil Appeals of Texas. Houston.
    Nov. 1, 1962.
    Rehearing Denied Nov. 29, 1962.

      Spafford, Ledbetter, Freedman, Hamlin & Gay, Donald G. Gay and Roy C. Let-better, Dallas, of counsel, for appellant.
    Finis E. Cowan, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellees.
   COLEMAN, Justice.

This suit was filed by appellant, Beard Drilling, Inc., to recover the value of oil well drilling equipment from appellees, W. J. Steeger, M. M. Kinley, Atlas Pipe, Inc., and C. L. McMahon, Inc. Appellees filed a cross-action seeking to recover from appellant the expense incurred by them in controlling a gas well which blew out and caught fire, destroying appellant’s drilling equipment. The trial court rendered judgment for appellees based on appellant’s failure to drill the well to completion as required by the written contract between the parties.

Both parties pled causes of action based on certain provisions of the contract and on allegations of negligence. Appellees filed a motion for summary judgment which was sustained as to that portion of appellant’s cause of action based on contract. The cause proceeded to trial before a jury on the negligence issues. The jury found that neither appellant nor appellees were guilty of acts of negligence proximately causing damage to the other party.

Appellant has grouped its points of error. The first group complains that the District Court of Harris County erred in entering the interlocutory summary judgment, in refusing to allow a trial amendment based on the contract, and in refusing to admit certain testimony.

The contract between the parties reads as follows:

ROTARY DRILLING CONTRACT

“THIS AGREEMENT between W. J. Steeger whose address is 1702 Esperson Bldg. Houston, Texas, herein called owner, and Beard Drlg, Inc. whose address is 1401 Majestic Bldg. San Antonio, Texas herein called contractor, (all referred to by singular masculine pronouns whether corporations, firms or individuals) WIT-NESSETH :
“1. OBLIGATIONS. Contractor agrees to drill, core, test, survey, and finally complete and equip, or plug and abandon, a test well for oil and gas at the time and place, to the depth, and in the manner provided herein and in the specifications below, and owner agrees to pay contractor therefor the price set out in said specifications.
“2. EQUIPMENT AND LABOR.
“a. FURNISHED BY OWNER: Owner, at his expense, shall furnish the services and materials required of him in said specifications and in addition thereto, all casing (both surface and production), tubing, wellhead connections, separators, flow lines, and other completion equipment installed in or upon said well and location, and all required services and equipment of third persons for drill stem tests, side wall cores, casing perforations, electrical logs, cementing (including surface and production casing and squeeze jobs), and all cement so required.
“b. FURNISHED BY CONTRACTOR : Contractor, at his expense, shall furnish what is required of him in said specifications, and also an adequate rotary drilling rig, including blowout preventer, and all other machinery, tools, equipment, materials, services, and labor necessary or proper to the performance of said work, except those to be supplied by owner as set forth above or in said specifications.
“3. PERFORMANCE. All such work shall be performed by contractor diligently, in a good and workmanlike manner, and in compliance with all applicable governmental rules and regulations. Contractor shall be entitled to no compensation for any partial performance hereof, or upon any basis other than full and complete performance.
“4. OWNER’S PREROGATIVES, ACCESS, AND NOTICE. The size and amount of casing (both surface and production) to be set, and the time, place, manner, and extent of all cementing, coring, testing; electric logging, perforating, squeezing, and completing said well shall be determined by owner and conducted accordingly. Owner and his nominees shall have access to the derrick floor and premises at all times, shall be furnished complete samples and full information at the times and places directed by him, and shall be notified and afforded reasonable opportunity to be present and to observe all coring and testing.
“5. RISK AND INSURANCE. Except as otherwise provided in said specifications, all work hereunder shall be conducted at contractor’s sole risk, and shall be covered by public liability and workman’s compensation insurance, to be carried and paid for by contractor, in amounts and with companies acceptable to and approved by owner.
“6. OWNER’S OPTIONS ON CONTRACTOR’S DEFAULT. If contractor shall fail or be unable to complete this contract (which shall be established by any cessation of work for as much as five days unless ordered by owner), owner, in addition to all other rights and remedies hereunder, may at his option, either take over and use contractor’s drilling rig and other equipment, free of cost, and continue the unfinished work, or remove such drilling rig and equipment, and employ another contractor to continue the work. In either such event all costs and expenses so incurred by owner shall be deducted from any payment to contractor.
“8. CONSTRUCTION AND VENUE. Contractor acts hereunder as, and shall be held to be, an independent contractor, and not owner’s agent or employee. Time is of the essence hereof. Venue hereunder is fixed by agreement in the county of owner’s above address.
copies hereof are signed this 2 day of February 1959.
'/s/ W. J. Steeger OWNER
/s/ Joe Beard President CONTRACTOR”
SPECIFICATIONS
"A. TIME, DEPTH, HOLE, AND LOCATION:
1. Location: 2 wells in Torch Field, Zavalla County &
1 well W. C. (Standifer) Dimmitt County
2. Commence actual drilling (spud in) by
3. Drill to maximum depth of feet below surface, or
3612'-Torch Field-2 wells - 7224' - (not consective)
450(7 - Standifer - 1 well - 4500'
11,724' total
& 7 7/8" as disered
4. The hold shall be 8 3/4" inches in diameter, and shall be straight, with no variation of more than 3 degrees from vertical, to determine which contractor shall run straight hole surveys at intervals of not more than 500 feet.
5. Complete all operations by
B. SERVICES TO BE FURNISHED AND PAID FOR BY OWNER OR CONTRACTOR AS FOLLOWS :
1.Survey and stake location: owner contractor
2. Clear location: owner contractor
3. Build and maintain necessary roads: owner contractor
4. Dig cellar and pits: owner contractor
5. Erect derrick: owner contractor
6. Move rig to location: owner contractor
7. Fill pits on com- owner pletion: contractor
C. EQUIPMENT AND MATERIALS TO BE FURNISHED AND PAID FOR BY OWNER OR CONTRACTOR AS FOLLOWS :
1. Derrick: contractor
owner contractor 2. Fuel:
owner contractor 3. Water:
owner contractor 4. Shale ?
5. Conventional core barrels: owner contractor
6. Conventional core heads and catchers : owner contractor
7. Wire line coring equipment: owner contractor
8. Wire line heads and catchers: owner contractor
9. Mud Weighting materials: owner contractor
10. Fishing tools Aum vTTitvr contractor
Except, Owner when on day rate
D. CONTRACT PRICE:
1. FOOTAGE: For the depth actually drilled, exclusive of all footage-cored, contractor shall be paid $ 2.60 per lineal foot.
2. DAYTIME:
a. Rates: The day rates to be paid contractor by owner, when' applicable, in addition to the footage payment above provided,, shall be:
No. 1. While drill stem in use $xxxxx per hour: 22.90
No. 2. While drill stem not in use: $ - per hour. 20.00
No. 3. While idle, waiting on orders: $ 18.00 per hour, provided that Rate No. 3 shall not apply for more than 24 hours-
b. Payable When: The above day rates shall be paid for all time-consumed in:
(1) Coring: #1
(2) Reaming core hole: #1
(3) Drill stem tests: #1
(4) Electric logging: #2
(5) Perforating casing: #2
(6) Squeezing: #1
(7) Swabbing or otherwise completing the well after cementhas set: #2
(8) Plugging the well on abandonment: #1
(9) Pulling and racking casing on owner’s instructions: #2'
(10)Other delays or interruptions ordered by owner, provided' that no charge shall be made for the time required to run' and cement casing (both surface and production), run tubing, set and cement screen or liner, install valves, wellhead connections, or flow lines, nor for the time necessary for cement to set, not to exceed 24 hours on surface casing, 0 hours after each squeeze job, and 48 hours on production casing. & completion after plug is down in oil string
E. RISK: The operations enumerated in subdivisions (1) to (9) inclusive of paragraph ‘D-2-b’ immediately above, shall be conducted at owners risk and expense, provided however, that owner shall never be liable for contractor’s negligence or want of skill or diligence, or for failure of contractor’s equipment.
48 hours free time allowed before oil string is run Gulf Coast Clause shall apply
When the second well in the Torch Field is drilled this contract shall apply except the footage price shall be $2.40 per "
The foregoing specifications are approved:
/s/ W. J. Steeger for OWNER
/s/ Joe Beard_ for CONTRACTOR”

Appellant began operations under this contract. Appellees wrote appellant a letter dated March 13,1959, containing the following paragraph:

“3. 2524 feet, run correlation log, if in 1st Olmos Sand, run open hold D S T, if water free test run, start coring. Measure out of hole last trip before 2524 is reached as it is important that you stop at 2524.”

On May 17, 1959, Mr. Lewis arrived at the well when the depth reached was about 2500 feet. He together with the president of appellant Corporation, Joe Beard, left the site to call the electric logging truck. Before leaving they informed the driller that when he got to 2524 feet he was to circulate the mud and come out of the hole in order to be in a position to run the electric log. The driller followed these instructions by continuing to drill until the required depth was reached. The mud was then circulated for 45 minutes and the process of “pulling out of the hole” was started when Mr. Lewis and Mr. Beard returned. Just as they were getting out of the car, the well blew out and caught on fire. Most of appellant’s drilling equipment at the well site was destroyed. Appellees assumed control of the well and expended a large sum of money in putting out the fire and stopping the flow of gas.

The trial court, in granting appellees’ motion for summary judgment, ordered:

“And the Court having duly considered the motion and having heard argument in support of and in opposition thereto, and having considered all of the depositions on file herein and the affidavits on file herein, finds and concludes as a matter of law that in this particular contract the term ‘electric logging’ does not include the process of withdrawing drill-pipe from the hole before electric logging, and that as a matter of law based on the pleadings, the undisputed evidence from the depositions and the affidavits, that the Plaintiff is not entitled to recover from the Defendants without a showing of negligence on the part of the Defendants, and that the paragraph ‘E’ does not afford the Plaintiff a right to indemnity from the Defendants or a right of recovery from the Defendants without a showing of Defendants’ negligence. It is
“ORDERED, ADJUDGED AND DECREED that the Defendants’ Motion for Summary Judgment is granted in so far as it pertains to the Plaintiff’s contractural theory of recovery, and paragraph ‘5’ of the Plaintiff’s FIRST AMENDED ORIGINAL PETITION is ordered stricken.”

The first question to be determined is whether or not the trial court properly interpreted the contract in determining that paragraph D-2-E did not impose on appel-lees the risk of damage to appellant’s drilling rig when it was being used to pull drilling pipe from the well in order that the employees of the Schlumberger Company would be able to lower electric logging equipment into the well.

In Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306, the court said:

“The rule is well stated in Turner et al. v. Montgomery et al., Tex.Com.App., 293 S.W. 815, as to the construction of instruments, as follows: ‘Through all the rules governing construction of instruments, there runs the central thought of ascertaining the real intention of the parties. In the nature of such inquiry, there can be no fixed rule, for every case, in large measure, depends upon its own facts, context of instrument, and circumstances. Of course it is elementary, if there is no ambiguity, the construction of the written instrument is for the court, and moreover, even in those cases of ambiguous instruments, if the parol evidence is undisputed as to the circumstances, the construction is yet a question of law for the court.’ ”

The parties agree that the contract provides that during “electric logging” the “risk and expense” is on the owner, but they disagree as to the meaning that should be given to the quoted words. It seems clear that the paragraph D-2-E says that the operation of electric logging shall be conducted at owner’s risk and expense. In paragraph 1. the contractor agrees to drill, core, test, survey and complete or abandon a test well for oil and gas. In paragraph 2.a. the owner agrees to furnish all required services and equipment of third persons for drill stem tests, side wall cores, and electrical logs. By paragraph 2.b. the contractor agrees to furnish the drilling rig and all other machinery, equipment, tools materials and labor necessary or proper to the performance of the work, except those which owner specifically agrees to furnish. Paragraph 3. provides that the contractor should receive no compensation unless he performs the contract fully and completely and that contractor should receive no compensation for partial performance. This contract was prepared by filling in blanks on a form copyrighted in 1955 and evidently is widely used in Texas. These provisions must be construed together. A consideration of the provisions of the contract referred to above demonstrates that the parties contemplated that in surveying the well by the process of electrical logging, as well as in running tests and coring, the contractor would have certain duties in addition to those performed by the equipment and labor of third persons.

The testimony of Joe Beard was before the court at the time he ruled on the motion for summary judgment. He testified that the term “electric logging” had a well accepted meaning throughout the oil industry, and that generally speaking the term was used to describe that procedure “whereby a company like Schlumberger comes out to a well, lowers certain instruments into a well, shoots electric currents through there for the purpose of conducting certain tests.” He further testified as follows:

“Q. * * * Is it not true that since neither you nor your employees have . the technical know how nor the technical equipment to conduct electric logging that the operation of electric log- • ging does not commence until the people who have that equipment and that technical know how arrive and start doing the work ?
“A. Your question involves my opinion as to when the electric logging operation commences?
“Q. Specifically logging, Yes.
“A. Logging commences when their equipment is rigged up on the location.”

In his affidavit controverting the motion for summary judgment Beard stated: “ * * * at the time of the blow out * * the operation of electric logging had begun * * *. The electric logging operation consists in part of circulating the mud in the well.” Appellee contends that these statements are legal conclusions which would not have been admissible at a trial. While the statement that the “electric logging operation consists in part of circulating the mud” appears to be a statement of fact, we quote it merely to illustrate appellant’s contention that there is a difference between “electric logging” and the operation of making an electrical log.

The evidence also reflected that under an identical contract between the same parties for the drilling of a previous well, appellant submitted a statement for “day rate” work at $22.50 per hour. “12-29-58 run correlation log 3:00 a. m. to 10: á. m.” The daily drilling reports furnished appellee broke down the seven hour period into the time spent circulating mud, pulling drill pipe, and running survey. This is evidence that the parties considered the work of preparing the hole for testing as a part of the operation of making an electric or correlation log. The previous interpretation placed on a contract by the parties may be considered by the Court in interpreting the contract. Archer v. Skelly Oil Company, Tex.Civ.App., 314 S.W.2d 655, ref., n. r. e. 159 Tex. 154, 317 S.W.2d 47.

By virtue of paragraph 4. of the contract the owner could determine the time, place, manner, and extent of certain named operations including electric logging. There is no express provision in the contract authorizing the owner to direct the contractor to circulate mud and pull the drill pipe except such authority as may be implied from this provision. If the parties intended that the owner he authorized to direct the circulation of mud and the pulling of the drill pipe as an incident to his authority to direct the manner of making an electric log, it seems logical that they regarded such work as part of the operation of making an electric log. We think that by use of the words “time, place, manner, and extent” in paragraph 4. of the contract, the parties intended that the contractor be obligated to perform, under the direction and control of the owner, such work as might be necessary in preparation for the operations listed. The actual work involved in cementing, coring, perforating, electric logging and other specialized jobs would be performed by the employees of specialty contractors furnished by the owner under paragraph 2.a. of the contract.

Under such circumstances it is not inconsistent that the risk and expense of conducting the operations should be placed on ap-pellee as provided in paragraph E. of the specifications. It should be noted that in such paragraph it is also provided that the owner should never be liable for contractor’s negligence or want of skill or diligence, or for failure of contractor’s equipment. The inclusion of these specific exceptions to the possible liability of the owner indicates that the owner assumed responsibility for such other hazards, arising by reason of the operation being conducted, as personal injury and property damage caused by a blow out and fire and expenses incurred in bringing the well under control.

In paragraph C. of the contract specifications it is agreed that the contractor shall pay for fishing tools except when operating on day rate. This provision is consistent with an intention on part of the parties to place the risk of loss on the owner when he is in control of the operations.

It will be noted that paragraph 4. also provides that the “time, place, manner, and extent” of “completing” the well shall be determined by the owner and “conducted accordingly.” It can hardly be doubted that this work would be done by the contractor at day rates and “at owner’s risk and expense.” A dispute might arise as to what work is involved in the operation of completing a well. In this case there is no dispute as to the meaning of the words “electric logging,” the dispute is as to the work included in the operation of electric logging. The fact that “logging” commences when the specialized equipment is rigged up on the location is not inconsistent with a decision that the operation of electric logging begins with the work of circulating mud in preparation for “logging,” There was no direct testimony as to the meaning of the term “operation of electric logging” before the court at the summary judgment hearing other than the testimony of Joe Beard, which appellee attacks as being a conclusion entitled to no weight. Since the facts were not in dispute, the meaning to be given these words must be determined by the court. Brown v. Payne, supra.

The fact that under the Gulf Coast Clause appellee’s liability to appellant for damage to his drilling equipment would have been limited to loss of such part of the equipment as was in the hole does not affect •our construction of this contract. This •clause applies whether or not the owner has the right to control the operation being conducted at the time of the blow out. It is not •a general limitation of appellant’s right to damage, but rather grants the contractor a right to limited compensation where, in the absence of such a clause, he would be entitled to nothing.

The use in paragraph E. of the contract specifications of the words “owner’s risk and expense” qualified as to cause of loss ■or expense, but without qualification as to the extent of liability, in contrast to the wording of the Gulf Coast Clause, incorporated into the contract, which restricts the •owner’s risk to loss of or damage to the hole •and contractor’s equipment in the hole, indicates that the failure to define the extent •of liability of the owner in said paragraph was not caused by inadvertence, but was deliberate.

The trial court has rendered judgment for appellees on the theory that the ■expense of bringing the well under control ■and extinguishing the fire should be borne hy the drilling contractor either because he was obligated under the contract to complete the well or because of the provision of the contract (Paragraph 5.) that all work under the contract should be conducted at contractor’s sole risk, unless assumed by owner in the specifications. Under either theory the work of circulating the mud and pulling the drill stem would be conducted at contractor’s risk although, as we have held, these operations were subject to the owner’s direction and control. We think it unlikely that this result was intended by the contracting parties.

Considering the language of the contract and specifications, and the surrounding circumstances concerning which there is no material dispute of fact, we conclude that the parties intended that the process of circulating mud and removing the drill stem, when ordered by the owner in preparation for making an electric log, should constitute part of the operation of electric logging. Petersen v. Robinson Oil & Gas Company, Tex.Civ.App., 356 S.W.2d 217. We further conclude that the parties intended the words “at owner’s risk and expense,” as used in paragraph E. of the specifications, to mean that the owner should be liable for damage to contractor’s drilling equipment and for the expense of controlling the well under the facts shown by the record in this case.

Appellant’s ninth Point of Error complains of the action of the court in excluding certain testimony. The witness Whitaker was not permitted to answer the following question: “Did you or did you not observe anything as to what might have caused the gas to come out ?” The objection was made that the question called for a geological, engineering opinion and invaded the province of the jury. A witness may qualify as an expert by reason of special knowledge acquired through experience or study. McCormick and Ray, Texas Law of Evidence, Vol. 2, p. 233. Whether or not a witness is so qualified is a matter to be determined by the court and his determination will not be disturbed in absence of abuse of discretion. The facts in this case do not establish abuse of discretion. Appellant did not perfect a bill of exception showing the answer which would have been made to the question and we may not speculate on what such answer might have been. In the absence of a bill of exceptions, this Court cannot determine whether or not an error in sustaining- an objection to a question resulted in harm or probably caused the rendition of an improper judgment.

Appellant requested the submission of certain special issues inquiring whether Lewis learned on March 17, 1959, that the formations were being encountered at a lesser depth than expected and whether, thereafter, Lewis ordered appellant to continue drilling to 2524 feet, and whether the giving of such order was negligence and a proximate cause of damage. These issues were refused by the court, and this refusal is made a point of error. These issues were based on pleadings which were offered as a trial amendment. The trial court’s refusal to grant permission to file the trial amendment is made a point of error. While trial amendments should be freely allowed, the action of the trial court in refusing to allow such an amendment to be filed is an exercise of judicial discretion and will be sustained on appeal unless the complaining party can show abuse of discretion. Emmons v. Travelers Ins. Co., Tex.Civ.App., 349 S.W.2d 282; Shaw v. Tyler Bank and Trust Co., Tex.Civ.App., 285 S.W.2d 782, error ref., n. r. e.

In this instance the trial court did not abuse its discretion since the refusal of the trial amendment did not result in harm to appellant. The answers to the issues requested by appellant in submitting the defensive matter alleged in the trial amendment could not have affected the judgment to be entered in the cause. As a matter of law the instruction to drill into the gas producing formation under the facts of this case could not have been negligence. Issues might arise as to whether the drilling should have continued without further safety precautions, but the order to drill could not be a basis for a finding of-negligence in the absence of a duty on the part of the owner to take safety measures. Appellant was bound by its contract to drill.. Appellee had the right to stop the drilling for the purpose of making tests, but there was no duty on appellee to supervise the manner in which appellant conducted the drilling operations prior to the time he assumed control for the purpose of testing.

All other Points presented by appellant’s brief have been carefully considered, but they concern matters which will not likely recur at another trial and it is not necessary to extend this opinion by discussing them.

It follows that the trial court erred in granting the summary judgment and in entering judgment for appellee on the verdict of the jury. Since by their verdict the jury found neither party guilty of negligence, the court should have rendered a judgment in favor of appellant on appel-lees’ cross-action. The court, however, could not properly render judgment in favor of appellant on its cause of action based on the contract since the petition on which it went to trial had been amended, by order of the court, so as to eliminate its contention that appellee was liable for the destruction of its drilling equipment by virtue of paragraph E. of the contract specifications. This order of the court was contained in the summary judgment and the court’s error in requiring the amendment to appellant’s petition was presented to this Court by the Point of Error complaining of the summary judgment. While the court erred in requiring the amendment, the petition was amended and this Court would not be able to render a judgment for appellant on its cause of action based on the contract since such a judgment would not be supported by the pleadings.

The trial court erred in refusing to permit appellant to file a trial amendment based on paragraph E. of the specifications to the contract. The summary judgment was interlocutory. City of San Antonio v. Castillo, Tex.Civ.App., 285 S.W.2d 835; Bryant v. City of Austin, Tex.Civ.App., 290 S.W.2d 567, error ref., n. r. e.; Minchen v. Murrah, Tex.Civ.App., 285 S.W.2d 372, error ref. Such a judgment or order can be changed, modified, or set aside at any time before the judgment on the merits becomes final. Pan American Petroleum Corp. v. Texas Pac. Coal & Oil Co., Tex.Civ.App., 340 S.W.2d 548, error ref., n. r. e.; Sneed v. Martin, Tex.Civ.App., 292 S.W.2d 891. Since the action of the court in entering the summary judgment was erronous, the refusal to permit appellant to file its trial amendment, submitted before testimony was begun, on the ground that the matter had been settled by the summary judgment, was also error. Whitaker v. Wilson, Tex.Civ.App., 349 S.W.2d 753, error ref., n. r. e.

Since the case was tried on an erroneous interpretation of the contract and considering the provision of the contract absolving the owner of liability while tests were being conducted if the loss or damage results from either the negligence or want of skill or diligence of the contractor, or by reason of the failure of the contractor’s equipment, justice will be served by reversing and remanding the entire case for a new trial, rather than the cause of action on the contract alone.

The judgment of the Trial Court is reversed and the cause is remanded for a new trial.

      . “In the event of loss of circulation, partial loss of circulation, water flow, domal formation, abnormal pressures, heaving shale, or similar formation, salt or other similar condition, is encountered which makes drilling abnormally difficult or hazardous, causes sticking of drill pipe or casing, or other similar difficulty which precludes drilling ahead under reasonably normal procedures, Contractor shall, in all such cases, without undue delay, exert every reasonable effort to overcome such difficulty. When such condition is encountered, Owner shall assume risk of loss or damage to the hole and to Contractor’s equipment in the hole. Should such condition or conditions persist in spite of Contractor’s efforts to overcome them, then after a period of twenty-four (24) hours time consumed in such efforts, further operations shall be conducted on a day work basis at the applicable day work rate until such conditions have been overcome and normal drilling operations can be resumed. The total time furnished by Contractor under the terms of this paragraph shall be limited to twenty-four (24) hours. The footage drilled while on day work basis shall be deducted from the footage charge. ‘Abnormal pressures’ shall be considered to exist in the event a mud weight in excess of 12 pounds per gallon (unless otherwise specified in Par. 2 of Exhibit “A”) is required.”