author: CADENA, Justice.

text:
    Mary Schwartz SUTTON and C. R. Sutton, Jr., Appellants, v. REAGAN & GEE et al., Appellees.
    No. 14423.
    Court of Civil Appeals of Texas. San Antonio.
    May 18, 1966.
    Rehearing Denied Sept. 7, 1966.

      Matthews, Nowlin, Macfarlane & Barrett, F. W. Baker, San Antonio, for appellants.
    Morriss, Boatwright, Lewis & Davis, San Antonio, for appellees.
   CADENA, Justice.

This suit was filed by appellees, Reagan & Gee, a partnership composed of Cecil Reagan and Clifford Gee, and Reagan and Gee individually, against Louis M. Schwartz, Mary Schwartz Sutton, C. R. Sutton, Jr., and Charles E. Reed. The four defendants were the officers, directors and shareholders of L. Schwartz Company, a corporation which ceased doing business on April 19, 1960, and which has been declared bankrupt. The claims of appellees grew out of the delivery of mohair to the corporation in April, 1960, a few days before the company closed its doors. After trial to a jury, the district court entered judgment in favor of appellees against all defendants in amounts totaling $16,427.17, and awarded the defendants Mary Schwartz Sutton, C. R. Sutton, Jr., and Charles E. Reed, judgment over against Louis M. Schwartz. Only Mary Schwartz Sutton and her husband, C. R. Sutton, Jr., have appealed from this judgment.

The L. Schwartz Company was founded as a sole proprietorship mercantile business in 1878, by the grandfather of Louis Schwartz and Mary Schwartz Sutton. In 1928 the business was incorporated with a stated capital of $225,000.00, subscribed to by twenty-two shareholders. None of the defendants herein owned any stock in the corporation until 1952, when Louis Schwartz and his sister, Mrs. Sutton, acquired, by gift, all of the outstanding stock, with the exception of one share which was held by the person serving as secretary-treasurer of the company.

From 1952 until the company closed its doors on April 19, 1960, Schwartz was president and manager of the corporation, devoting his full time to its affairs. Mrs. Sutton was vice-president but, although she conferred with Schwartz from time to time concerning the business, she spent little time at the company’s place of business. From 1952 until February 2, 1960, no formal meeting of the shareholders or of the board of directors was held. Whenever action by the board of directors was required, the problem would be discussed informally. If action in the form of corporate resolution was required, the resolution was prepared by Schwartz and signed by Mrs. Sutton and by the secretary-treasurer. The usual practice was for Schwartz to present the proposed resolution to his sister, Mrs. Sutton, frequently at her home, for her signature, after which the person acting as secretary-treasurer would sign the instrument. No minutes were prepared reflecting these unanimous, albeit informal, actions by the directors.

In 1955 or 1956, Schwartz began speculating in the commodities market, buying commodity futures both in his own name and in the name of the company. In February, 1956, Schwartz, Mrs. Sutton and a Mrs. Cage, who was then secretary-treasurer, signed a resolution authorizing the company to maintain an account with the brokerage firm of Merrill, Lynch, Pierce, Fenner and Beane (now Merrill, Lynch, Pierce, Fenner and Smith) for the purchase and sale of stocks, bonds or securities, commodities or commodity futures. This authorization was never revoked. In addition to his dealings with the Merrill firm, Schwartz dealt in commodity futures on his own account with other brokers. He used corporate funds to cover his losses. The money thus drawn by Schwartz was charged to his account on the books of the corporation.

Every year since 1952 an independent certified public accountant made a “tax audit” of the corporations’ books for the purpose of filing a corporate income tax return. As part of this investigation, the accountant prepared financial statements, copies of which were made available to Mrs. Sutton. Mrs. Sutton noted, in the 1957 financial statement, an entry described as “loss on commodity futures.” She discussed the matter with Schwartz, who assured her that he would stop such speculation. Subsequent financial statements of the corporation contained no entries showing a profit or loss from dealings in commodity futures, although the evidence conclusively establishes that Schwartz, despite his assurances to Mrs. Sutton, continued his speculation.

Until February 2, 1960, C. R. Sutton, Jr., a physician with a full-time private practice, was neither an officer, director nor shareholder of the corporation and took no part in the management of its affairs. On that date his wife, Mary Schwartz Sutton, transferred nine shares of stock to him, and that evening a shareholders’ meeting was held at which Dr. Sutton was named second vice-president, and elected to the board of directors.

Soon after February 2, 1960, Dr. Sutton engaged Woodrow Ede, a certified public accountant, to examine the books and records of the company and to prepare analyses of the company’s operations. According to Ede, he was unable to compile any tentative figures he could “work with” until March 21, 1960. Some time thereafter Ede prepared and furnished to Dr. Sutton a trial balance sheet as of February 29, 1960. This trial balance contained an entry, as an account receivable under the designation “Merrill, Lynch, Fenner & Smith,” of the sum of $124,175.00. All of this amount apparently represented losses resulting from Schwartz’s speculations.

The trial balance showing the condition of the company as of February 29, 1960, showed that the assets of the company exceeded its liabilities by more than $57,000.00. However, this balance sheet contained a note pointing out that the Merrill, Lynch account was being carried as an account receivable “pending final decision on whether this will be a corporation or individual loss.” At first, Schwartz agreed that he would convey certain property of his to the corporation to secure payment of the amounts owed by him to the corporation. Subsequently, Schwartz reneged on this agreement, and at that time Ede and appellants decided that this account must be carried as a company loss. When the sum of $124,175.00 is deducted from the assets of the corporation, the balance sheet shows that the liabilities of the company exceeded its assets by a substantial sum.

Ede testified that as of March, 1960, Schwartz owed the corporation, on his personal account, the sum of $107,871.00.

After February 2, 1960, Schwartz and Mrs. Sutton each borrowed $60,000.00 by mortgaging ranches owned by them. The $120,000.00 realized from these loans was used for the benefit of the corporation.

Ede testified that he did not determine that the company was insolvent until three or four days before the company closed its doors on April 19, 1960. Until that time, he was of the opinion that it was economically “possible and probable” to keep the business open, and appellants were doing everything possible to see that the business remained open.

The financial collapse of the company was due not only to Schwartz’s disastrous venture into the commodity futures market, but also to heavy losses suffered by the company in its operations relating to the purchase and sale of mohair. All contracts relating to the sale and purchase of mohair were handled exclusively by Schwartz. In March, 1960, Schwartz represented to Ede and to appellants that the great bulk of the mohair which the company was obligated to deliver that spring to buyers under contracts negotiated in the fall of 1959 had already been purchased at prices which would enable the company to realize a profit. In fact, as Ede subsequently discovered, only a minor portion of the mohair required to fulfill the company’s obligations had been acquired, and the price which Schwartz had obligated the company to pay for such mohair was in excess of the price at which the company had obligated itself to sell it. Schwartz assured Ede that he would be able to acquire the needed mohair in Arizona and New Mexico at prices which would enable the company to fulfill its contractual obligations at a profit. Ede himself advised appellants that the high price of mohair in March was due to the lateness of the shearing season, and that as soon as the growers completed shearing the price would decline. Contrary to Ede’s expectations, there was no decline in the price of mohair. As a result, the company suffered heavy losses.

After the company closed its doors on April 19, 1960, several creditors of the corporation, other than appellees, forced it into involuntary bankruptcy.

Appellees’ mohair was delivered to the L. Schwartz Company warehouse on April 2 and April 6, 1960. The jury found that such delivery was on consignment, to be sold by the company on a commission basis for the account of appellees. Appellees’ mohair was sold by the company, and it is undisputed that appellees did not receive the full proceeds of such sales.

Appellees alleged that appellants and the other two defendants were individually liable for the conversion of the mohair, or' the misappropriation of the proceeds of the sale thereof, for the following reasons:

1. Appellants negligently permitted Schwartz, “during the last year before” the transactions involving appellees’ mohair, to appropriate to his own use more than $100,-000.00 of corporate funds.

2. Because of the appropriation of corporate funds by Schwartz, the corporation was, and appellants knew it to be, insolvent at the time of the transactions between ap-pellees and the corporation, and appellants wrongfully concealed such insolvency from appellees.

3. Appellants were negligent in failing to see that the proceeds from the sale of ap-pellees’ mohair were faithfully accounted for and paid to appellees.

4. Appellants were negligent in (1) permitting the corporation to engage in ultra vires acts; (2) permitting Schwartz to remain as president and manager of the corporation; and (3) permitting the corporation to act as a factor or commission merchant without posting the bond required by Article 1275, Vernon’s Ann.Civ.St.

5. The corporate “veil” should be “pierced” because appellants and Schwartz conducted the business of the corporation as though it were owned by them personally, without adopting by-laws or holding meetings of the shareholders or board of directors from 1952 until February 2, 1960.

In addition to finding that the transactions between appellees and L. Schwartz Company constituted consignments of the mohair in question for the purpose of sale, rather than sales thereof to the corporation, the jury found:

1. Mrs. Sutton’s negligence in not discovering the extent to which Schwartz was using corporate funds to speculate was the proximate cause of the loss suffered by appellees.

2. Neither of appellants knew that the corporation was insolvent at the time that appellees delivered their mohair, but their negligent failure to discover such fact was the proximate cause of appellees’ loss.

3. Until February 2, 1960, Schwartz and Mrs. Sutton each treated the company as though it were owned by them personally, rather than by the corporation.

4. From February 2, 1960, until the company ceased doing business on April 19, 1960, Schwartz, Mrs. Sutton and Dr. Sutton each treated the company as though it were owned by the corporation.

5. Fro.m February 2, 1960, until April 19, 1960, Schwartz and Mrs. Sutton each treated the company as though it were owned by them personally.

6. The fact that Schwartz and Mrs. Sutton treated the company as though it were owned by them personally resulted in material injury to appellees.

We do not consider appellants’ contention that some of the jury’s findings are in conflict with each other, since this point was not raised in their motion for new trial. St. Paul Fire & Marine Ins. Co. v. Mur-phree, 163 Tex. 534,357 S.W.2d 744 (1962); Sands Motel v. Hargrave, Tex.Civ.App., 358 S.W.2d 670, wr. ref. n. r. e.

1. Appellants’ Liability for Conversion.

A corporate officer who converts the property of another to the use of the corporation, or who misapplies private funds in the hands of the corporation is personally liable to the person whose property or funds have been so misappropriated. McCollum v. Dollar, 213 S.W. 259 (Tex.Com.App., 1919). However, there is no such liability for the wrongful act of a co-officer where the person sought to be charged did not participate in the wrongful act and had no knowledge, actual or constructive, thereof. Peter v. First Nat. Bank of LaGrange, Tex.Civ.App., 92 S.W.2d 1079, no writ; Economy Filling Station v. Humble Oil & Ref. Co., Tex.Civ.App., 3 S.W.2d 832, wr. dism.; Santa Barbara v. Pasquale Availone & Stefano Miele, 270 N.Y. 1, 199 N.E. 777; 3 Fletcher, Cyclopedia of the Law of Corporations (rev. ed., 1965), §§ ’ 1140-1141, pp. 794-798. This limitation of liability is but an application of the doctrine that liability of corporate officers and directors does not grow out of the fact that they occupy such positions, but springs out of their participation in the wrong. Belo v. Fuller, 84 Tex. 450, 19 S.W. 616 (1892).

In this case it is undisputed that appellees dealt only with Schwartz, and that the sale of the mohair by the corporation was handled exclusively by Schwartz. There is no testimony connecting appellants with any transaction involving such mohair, nor is it shown that any of the proceeds of the sale thereof came into the hands of appellants and were diverted or misapplied by them. The burden was on appellees to introduce evidence showing that appellants participated in the wrong or that, having actual or constructive knowledge thereof, they failed to prevent it. McCollum v. Dollar, supra. They produced no such testimony.

2. Appellants’ Liability for Mismanag ement.

The findings to the effect that Mrs. Sutton failed to discover the extent to which Schwartz was misappropriating corporate funds for purposes of speculation, and that Dr. and Mrs. Sutton failed to discover the insolvent condition of the corporation at the time that appellees delivered their mohair amount to no more than findings of negligent mismanagement of the corporation’s affairs by appellants.

There is considerable confusion in the cases dealing with the problem of directorial liability to creditors for negligent mismanagement of the affairs of the corporation.

All courts seem to agree that a director owes a duty to the corporation to exercise due care in the management of the corporation’s affairs. For breach of this duty, the director is clearly liable to the corporation for any loss it may suffer as a result of his neglect. So, also, the director’s liability may be enforced by any person who is seeking to assert the claim of the corporation, or of the shareholders collectively, if there is a difference between the two, rather than his own individual claim. Thus, the director may be brought to task by (1) the receiver or trustee in bankruptcy of the corporation, or (2) a shareholder, by way of a representative action, to recover for the loss suffered by the corporation. In addition, under special circumstances not necessary to discuss here, a creditor may, through a creditor’s bill brought on behalf of all creditors, enforce the director’s liability.

|— But where, as here, an individual creditor of the corporation brings suit, solely on his own behalf, for negligent mismanagement, agreement disappears. While all courts agree that directors owe a duty of due care to the corporation, it is difficult to find a defensible basis for concluding that directors owe a similar duty to creditors of the corporation. Application of the principles of the law of agency results in a holding that the director is not liable to the corporate creditors for negligent mismanagement, since an agent is not liable to the creditors of his principal for failing in his duty to such principal. Restatement, Agency 2d, § 352 (1957).

Some courts refer to directors as “trustees,” rather than agents. But the so-called “trustee” courts are not in accord concerning the director’s liability to creditors for mismanagement. This lack of harmony is due to disagreement as to the identity of the cestuis que trustent. Some of these courts allow the creditor to recover on the ground that a director is a trustee not only for the corporation, but also for the creditors. Anthony v. Jeffress, 172 N.C. 378, 90 S.E. 414. Other “trustee” courts deny the existence of a trustee-cestui que trust relationship between the director and a creditor of the corporation, and, consequently, will not allow an individual creditor to maintain an action for negligent mismanagement. Webb v. Cash, 35 Wyo. 398, 250 P. 1.

It is difficult to understand the legal reasoning by which a director is converted into a trustee for the creditors of the corporation. It should be apparent that a director who attempts to act as trustee both for the corporation and for third persons who assert claims against such corporation will inevitably be placed in a position involving irreconcilable conflicts of duty, and will be forced to breach his duty to one or the other. This difficulty explains the' general rule that a creditor who sues solely on his own behalf cannot maintain a personal action against directors who, by negligent mismanagement of the corporation’s affairs, have breached their duty to the corporation to the consequent damage or injury of its creditors. Lawson-Richards, Inc. v. Blalock Lumber Co., 30 S.W.2d 797, wr. dism.; Anno: 50 A.L.R. 462 (1927).

The rule of nonliability of directors to creditors for mismanagement finds support not only in the absence of any rational basis for imposing a duty upon the director to the creditor, but also in the fact that a recovery by an individual creditor in such cases would not bar the right of the corporation to recover from the director. 3 Fletcher, op. cit., § 182. To allow an individual creditor to recover in such a case would result in the imposition of double liability on the director.

Since the breach in mismanagement cases is of a duty owed to the corporation, and the primary injury is to the corporatoin, the right to recover therefor may be regarded as a corporate asset. When the corporation enforces the liability of the director, the amount recovered then becomes available for the benefit of all creditors, all of whom have been similarly, if indirectly, injured. The record in this case discloses that there is now pending an action instituted against these appellants by the corporation’s trustee in bankruptcy seeking to recover, on behalf of the corporation, for losses suffered by it due to the mismanagement, if any, by appellants. The amount, if any, which such trustee may recover will be available for use in satisfying the claims of all creditors, including appellees.

The jury’s findings of negligent mismanagement, then, will not support a recovery by appellees in this case.

Even if appellants had actual knowledge of the insolvent condition of the corporation, they owed no duty to appellees to volunteer such information. Nor do appellants become subject to liability because they made no effort, prior to the delivery of appellees’ mohair, to have the corporation discontinue business. Hart v. Hanson, 14 N.D. 570, 105 N.W. 942, 3 L.R.A., N.S., 438.

There is no jury finding to the effect that appellants were negligent in allowing Schwartz to remain as president and manager of the corporation. In addition, while directors may be held liable if they retain in a responsible position a man who has shown himself dishonest or unworthy of trust, such action involves a breach of duty to the corporation, for which only the corporation or someone suing on its behalf may recover. Graham v. Allis-Chalmers Mfg. Co., 188 A.2d 125 (Del.); La Monte v. Mott, 93 N.J.Eq. 229, 107 A. 462 (aff’d, 93 N.J.Eq. 254, 116 A. 269).

It should also be pointed out that the negligence, if any, of Mrs. Sutton in failing to discover the extent to which Schwartz was misappropriating corporate funds took place before appellees became creditors of the corporation. It is generally"^ held that a creditor may not complain of ' mismanagement which took place before he became a creditor. In re Franklin Brewing Co., 263 F. 512 (2d Cir.); Skinner v. Hulsey, 103 Fla. 713, 138 So. 769.

3.Liability for Ultra Vires Acts.

While there is authority to the effect that a director is personally liable if he participates, or allows the corporation to engage, in ultra vires acts, our Supreme Court has held that the doing of an ultra vires act is not a sufficient basis for imposing liability on the officers or directors of the corporation. Staacke v. Routledge, 111 Tex. 489, 241 S.W. 994 (1922).

4.Effect of Failure to Hold Meetings.

Appellants owed no duty to 'appellees to hold meetings of the shareholders or board of directors. Their failure to hold such meetings could amount to no more than mismanagement of corporate affairs, and whatever injury resulted from such neglect was primarily an injury to the corporation. Further, where, as here, all the shareholders act together on behalf of the corporation, their action is substantially corporate action, even in the absence of formal meetings or formal votes. Elyea v. Lehigh Salt Min. Co., 169 N.Y. 29, 61 N.E. 992; 14 C.J., Corporations, § 1354, p. 886; 18 C.J.S. Corporations § 539, p. 1223; 19 Am.Jur.2d, Corporations, § 1121, p. 557.

5.Liability Based on Absence of Factor’s Bond.

Art. 1275, Vernon’s Ann.Civ.St., requires that all commission merchants shall make bond, in the sum of $3,000.00, payable to the county judge of each county in which such commission merchant maintains an office, conditioned that the factor will faithfully perform all agreements entered into with persons who have consigned goods to him for the purpose of sale. In this case it is undisputed that, at the time appel-lees delivered their mohair on consignment to L. Schwartz Company,-and for some years prior thereto, the company had failed to furnish the bond required by this statute.

The statute contains no provisions making the officers, directors or shareholders of a corporation which does not comply with the bond requirements personally liable for the debts or obligations of such corporation. The only sanction imposed on persons who fail to comply with Art. 1275 is found in Articles 1125 and 1700a-3 of the Vernon’s Ann. Penal Code, which make such non-compliance punishable by fine. Since the Legislature itself has decreed the consequences flowing from non-compliance with Art. 1275, the courts are not free to impose additional penalties or sanctions. 19 C.J.S. Corporations § 966, p. 423.

Our holding also finds support in the rule that the failure of a corporation to comply with statutory requirements or conditions precedent to the right to engage in business will not make the officers and directors of the corporation personally liable in the absence of a statutory provision to that effect. Pierce v. Yeaton, 78 N.H. 171, 97 A. 876; 3 Fletcher, op. cit., § 1024.

6.Liability Based on “Piercing” of Corporate “Veil.”

It is a basic rule of the law of corporations that the shareholder is ordinarily insulated from personal liability arising from the activities of the corporation. This insulation from personal liability is said to be the natural consequence of the incorporation process, and is supported by the theory or “fiction” that incorporation results in the creation of an “entity” separate and distinct from the individual shareholders. But the courts have not allowed this concept of a separate entity, useful though it may be in facilitating the achievement of results considered economically desirable, to allow individuals to make use of the corporate form in order to engage in conduct and bring about results which are considered to be in violation of important principles of public policy. In certain cases, the courts, in order to deny insulation from liability,, will “disregard” the “corporate entity” which they themselves have created or, speaking more colorfully, will “pierce” the corporate “veil” which the courts have made available to shareholders for use as a shield from personal liability.

In Pacific American Gasoline Co. of Texas v. Miller, Tex.Civ.App., 76 S.W.2d 833, wr. ref., it was said that the corporate form will be disregarded (1) where it is used as a medium for the perpetration of fraud; (2) where the corporation is organized or conducted as the mere “tool” or “business conduit” of another corporation; (3) where resort is made to the corporate fiction in order to avoid an existing legal obligation; (4) where the corporate form is used to achieve or perpetuate monopoly; (5) where the corporate structure is used as a vehicle for circumventing a statute; or (6) where the fiction is invoked in order to protect crime or justify wrong.

The opinions are replete with statements' to the effect that the shareholder will be held liable where he “dominates” the corporation; or where the corporation is a “subterfuge,” or “mere creature” or “mere instrumentality” of the shareholder; or where it is a “dummy,” “alter ego,” “sham,” “tool,” “buffer,” “business conduit,” “agent,” etc. of the shareholder.

Although such general statements or labels are often referred to as “rules” to be applied in determining whether a particular shareholder will be given the benefit of insulation from personal liability, they are of no help in the solution of specific problems, since they tell us little about the crucial facts which lead to liability. For example, they do not differentiate between the one-man corporation which will be “disregarded” and the one which will be “recognized.” While it is difficult to imagine a corporation whose shares are wholly owned by one individual which will not be “dominated” by such individual, the fact that one individual acquires all of the stock of a corporation does not necessarily require that the separate entity theory be ignored. Hake v. Dilworth, Tex.Civ.App., 96 S.W.2d 121, wr. dism.

Whether or not a shareholder will be insulated from personal liability should depend on the use, or misuse, which that shareholder is making of the corporate form. The only shareholders who should be held personally liable are those who have used the corporation to bring about results which are condemned by the general statements of public policy which are enunciated by the courts as “rules” which determine whether the courts will recognize their own child.

In this case the facts upon which appellees rely, and which have been outlined in the summary of the corporation’s history set out above, cannot be said to indicate that Mrs. Sutton used the corporation as an “alter ego,” “sham,” “subterfuge,” etc. She did not use it as a “cloak” behind which she transacted her own personal business. While it may be that she was derelict in her duty to the corporation, there is nothing to show that she used it as a vehicle for injustice or inequity, or for the purpose of perpetrating a fraud upon appellees or upon any other person. The failure of the company resulted in losses to many persons, including Mrs. Sutton herself, but none of the epithets which are traditionally used to justify the imposition of prsonal liability on shareholders can be fairly applied to her conduct.

Dr. Sutton was not, and had no right to be, active in the affairs of the corporation until about ten weeks before it closed its doors. The record discloses that his activities as an officer, director and shareholder were aimed at the objective of saving a dying company. The fact that he was unsuccessful does not justify the imposition of personal liability on any “veil piercing” theory.

In view of our conclusions concerning the legal rules applicable to this case, we do not consider appellants’ points relating to the sufficiency of the evidence to support the findings of the jury.

The trial court erred in entering judgment against appellants. Since the length of the record in this case makes it apparent that the case has been fully developed, it becomes our duty to enter the judgment which the trial court should have rendered. Rule 434, Texas Rules of Civil Procedure.

The judgment of the trial court is reversed and judgment is here rendered that appellees take nothing by their suit against appellants.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    W. C. ADAMS, Appellant, v. HOUSTON BELT & TERMINAL RAILWAY COMPANY, Appellee.
    No. 14807.
    Court of Civil Appeals of Texas. Houston.
    July 7, 1966.
    Rehearing Denied Sept. 8, 1966.
    Thompson & Hippard, James J. Hip-pard, Houston, for appellant.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Charles M. Haden, Gary B. Webb, Houston, for appellee.
   WERLEIN, Justice.

This suit was brought by appellant under the Federal Employers’ Liability Act to recover damages for personal injuries sustained by him in a collision during switching operations on July 5, 1964. The case was tried by the court without a jury, and the court found that the defendant, Houston Belt & Terminal Railway Company, was liable to appellant in the sum of $1500.00 damages.

Appellant first complains that the trial court failed to make findings of fact as to whether appellant sustained a neck injury in the collision, and also whether a prior neck injury sustained by appellant in 1961 was aggravated by the collision which occurred on March 5, 1964. The court, on request of appellant to make findings of fact and conclusions of law, incorporated in its judgment both findings of fact and conclusions, but did not make any finding with respect to requests for findings that appellant did not sustain a neck injury and that appellant’s neck injury received in 1961 was not aggravated by the trauma sustained on the occasion in question. The judgment of the court containing findings of fact and conclusions of law was entered on September 27, 1965. Appellant did not request additional findings of fact or conclusions until October 6, 1965, which was more than five days from the date of the court’s original findings of fact and conclusions of law contained in the court’s judgment.

It is our view that appellant’s request for additional findings of fact was filed too late under Rule 298, Texas Rules of Civil Procedure. Furthermore, such request for additional findings did not call for findings of ultimate fact but instead called for findings of purely evidential matters. For such reason there was no error on the part of the court in failing to make such additional findings. The omission of such findings has not and will not in any way prevent appellant from making a proper presentation of his case in this Court since the statement of facts includes all of the evidence adduced at the trial.

Appellant complains that the trial court’s finding of only $1500.00 damages is so inadequate and so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. This assignment requires a careful consideration and review of all the evidence adduced at the trial.

The evidence shows that appellant, a switchman in the employ of appellee, sustained an injury when a rough or hard coupling was made in switching operations by appellee’s engineer, Mr. Goley. Appellant, at the time of such coupling, was standing in the cab of the engine and was thrown against the generator housing of the engine or other hard substance, the left side of his chest and left arm striking the same with considerable force, throwing him to his knees, and causing some swelling and a knot on his left forearm and pain in his left chest. No bones were broken, and, according to appellant, his left arm and chest were completely healed and stopped hurting him probably within seven weeks after the accident.

Appellant’s main contention is that he suffered a neck injury on the occasion in question and also an aggravation of a preexisting neck condition. The evidence shows that in March, 1961 appellant, while riding on the side of one of appellee’s railroad cars, sustained a severe injury of his cervical spine when he was struck on the head by a door of a car on a parallel track, and that as a result of such injury he was paid $16,000.00 by appellee in settlement of his suit for damages. Appellant testified that as a result of the 1961 injury he lost fourteen months from work. He then passed a physical examination given by appellee’s doctor, Dr. Moody, and returned to work. He completely recovered from such injury and resumed normal activities including the playing of golf.

With respect to the accident of July 5, 1964, appellant testified that after the accident and after they went down the main line of the railroad track to a siding, his neck pain started; he drove his own car home, and then his wife drove him to the hospital where he saw Dr. Moody, who examined him and gave him a pill and told him to go home and rest and to come to his office the next morning; a day or two later he was admitted to the hospital where he remained until July 10; Dr. Moody saw him three times and Dr. Brodsky examined him one time; Dr. Moody ordered cervical traction; some two weeks after he left the hospital he saw Dr. McGehee, who had been his doctor at the time of the 1961 injury; Dr. McGehee placed him in a Thomas collar and gave him neck therapy; he saw Dr. McGehee about ten times and he was given some thirty therapy treatments at the doctor’s office; he had not been able to work but had done so; that Dr. MeGehee had “stipulated” that he could not return to railroad work.

Appellant further testified that after such injury he first worked as a member of the Sheriff’s Auxiliary; that he had worked as a private store detective and as a railroad detective, and had represented on an application to work for the Port Terminal Railroad Association dated January 30, 1965 that he had no physical defects visible or invisible; that he had worked a month and a half for Texas Gulf Tank Company, doing lay-out and fitting work, but that the work was too heavy for him and he quit although no one asked him to do so; that he had worked for Belmas Corporation doing the same kind of work; that to obtain his job with Texas Gulf Tank Company he had to take a physical examination; that such work required physical activity; and that at the time of the trial he was working' for Robertson Manufacturing Co. doing lay-out work and had been so working for some two months, missing a few days; and that he was paid $2.85 an hour, whereas during the year 1963 when working for appellee his gross earnings were approximately $5,600.00. Appellant also testified that his neck pained him all the time, some times worse than other times, and that he could not play golf because swinging golf clubs hurt him.

Dr. McGehee, whose qualifications were admitted, testified in substance that after appellant’s injury in March, 1961, he had recovered and had returned to work in May, 1962; that appellant came to him in March, 1963 complaining of pain in his neck but the complaint was wholly subjective; that he did not see appellant from March, 1963 to July 14, 1964, when he diagnosed appellant’s condition after the 1964 injury as “traumatic injury to the left chest, cervical spine and left forearm”; that he prescribed a Thomas collar for neck support and recommended a muscle relaxer and pain medication; that when he first saw appellant he had a 75% restriction of motion in his neck which was reduced to 50% by August 28, 1964, and reduced to 25% to 30% some thirteen months after the 1964 injury. He further testified that on August 28, 1964, he recommended that appellant gradually discontinue using the Thomas collar and that he return to light work; that he saw appellant again on September 23, and appellant still had pain in the cervical back, particularly on moving his head from side to side, and that he recommended continuation of therapy; that he re-examined appellant’s cervical spine in January of 1965, and found that he had flattening of the Lordotic Curve which was not extremely severe; that when he x-rayed Mr. Adams in July of 1964 he did not think he had any abnormal contour on that occasion, and that usually a flattening of the Lordotic Curve was due to muscle spasm and tightening of the ligaments and muscles, and that one purpose of his treatment was to try to get the normal contour back.

He further testified that he recommended that appellant continue heat and traction; that he found no spreading of the joint spaces of the cervical spine and no evidence of instability when he examined appellant in January, 1965; that in March, 1965, appellant was complaining of numbness in his left arm and hand and ring finger; that the last time he saw appellant was August 22, 1965 (about three weeks before the trial commenced), and that three joints in the neck showed some degree of narrowing and that there were still present pain factors; that despite all efforts at conservative treatments, appellant had shown very little, if any, response; that he thought appellant’s condition was permanent unless there was surgical intervention, and that appellant had not been able to do railroad work down to the time of the trial; that no myelogram had been taken, and that he would not recommend an operation if a myelogram was negative, but would recommend exploration of the neck; that even if there was a successful operation appellant would still have a 10% to 20% disability; that he doubted if appellant could return to the type of work he had been doing, involving bending, etc., and that he recommended that he not do so.

Dr. McGehee testified that his bill was $592.50 for services rendered the appellant during a period of fourteen months following his injury of July 5, 1964. He further testified that most of his diagnosis and prognosis were based on subjective complaints, and that he would expect to find muscle spasm right after the injury and not months later, but that he did not find any right after the injury; that his testimony with respect to numbness was based upon what appellant told him and that there was only one objective symptom and that was the flattening of the Lordotic Curve which was shown in one set of x-rays taken in January, 1965, some six months after the injury, and which appellant did not have right after the accident; and that in reasonable medical probability the accident of July 5, 1964 was the producing cause of traumatic injury to appellant’s cervical spine.

Dr. Brodsky, an orthopedic surgeon who was requested by Dr. Moody to examine appellant, testified that appellant was admitted to the hospital on July 7, 1964 and that he saw him on July 9; that appellant complained of pain in his left chest, midline neck extending to the left side of his neck, and pain in his left forearm where a hematoma was obvious; that appellant denied having any numbness or tingling sensation ; that he found no evidence of fracture or dislocation in any of such locations; that upon appellant’s subjective complaints and subjective responses to testing, he diagnosed his neck condition as a cervical spine sprain; that he found old degenerative changes in the third cervical disc space which were shown in the x-ray that was taken; that x-rays were made on July 5, 1964 and additional x-rays of appellant’s cervical spine were made on July 7, 1964; that his prognosis was good and that he thought appellant would respond to conservative measures without any permanent disability; that he saw no indication for surgery; that flattening of the Lordotic Curve where it occurs is due to muscle spasm and can be due to pain irrespective of the cause, and sometimes due to nonpainful causes; that he accepted appellant’s history as a subjective thing that he had a cervical spine sprain, but he saw no objective, clinical signs of such diagnosis in the strict sense of the word, and there were no truly objective findings.

Dr. Moody, the general surgeon for ap-pellee, saw appellant about 2:30 p. m. on July 5, 1964 in the emergency room of St. Joseph Hospital. Appellant had a slight swelling in the medial surface of the middle third of his left forearm, and complained of pain in his chest, and discomfort in his neck, chest and forearm; that the x-ray taken showed no fractured ribs; that his diagnosis was, after examining him, a possibility of fractured ribs, a possibility of a cervical sprain, and contusion and possible hematoma of the forearm; that there were no objective findings other than the swelling of the forearm; that his diagnosis of possible cervical sprain was based upon the patient’s complaint of discomfort; that they treated him symptomatically that day, and the next day the patient stated that he hurt more than he had previously, and he wanted to go in the hospital; that they hospitalized him for further observation; that his diagnosis remained the same and treatment was symptomatic; and that the patient was fitted with a chest support, for — assuming that he might have — a cracked rib that they couldn’t demonstrate, and this would help to make him more comfortable.

He further testified that appellant had been posted for surgery by Dr. Brodsky for a spur on his foot, and that since he was being seen by Dr. Brodsky, he asked Dr. Brodsky to see him in consultation; and that appellant left the hospital on July 10; that his prognosis was that there would be probably two or three weeks of soreness, and eventually complete recovery under treatment in three to six weeks; that he saw nothing at that time to indicate that appellant was a candidate for neck surgery, and that he personally examined appellant’s neck and found that he had good motion, with no restriction; that they had x-rays of appellant’s neck on two different occasions, and on one occasion they mentioned some early degenerative changes, confined mainly to the C-3 interspace, with what suggested posterior lipping, and on another occasion they mentioned a slight limitation of motion ; that he, Dr. Moody, in the studies they made, and the observations that he made, could see no reason to ever think of neck surgery; that the only objective sign would have been the reported slight straightening shown on the x-ray, and that appellant had full function of the cervical spine, but complained of discomfort with motion, which was a subjective complaint, and that all the tests performed were normal although they did remark on a second x-ray that there was a suggested limitation of motion in flexion and in extension studies.

He also testified that the x-ray taken by Dr. McGehee in August of 1964 showing a normal contour of appellant’s spine would indicate there was not enough muscle spasm to produce any change in the normal contour and would make them feel more confident that the patient did not have much injury; that muscle spasm is thought to be the reason for a straightening of the spine, and it is ordinarily associated with some sort of sprain of the neck but could be associated with a degenerative change in the spine; that if appellant had the injury of the character and magnitude described by appellee’s attorney, he would have expected a great deal of muscle spasm and more objective signs of injury than he saw, and that appellant certainly showed no evidence of injury of that magnitude, and that in his opinion there was no serious injury present, and that he had no reason to think otherwise, and that he did not personally ever see any cervical straightening in appellant and that none was recorded; that he did prescribe traction for appellant and muscle relaxant medication, and that he expected appellant’s cervical sprain to clear up in a matter of weeks in the normal course of things; that he would not expect straightening in the spine six or seven months later in relation to this injury, and that he couldn’t conceive that an injury would cause a straightening six months later unless they had earlier evidence of it, and that when they have straightening they usually pick it up on the first x-ray, and not seven or eight months later, and while he wouldn’t say it would be impossible, it would not be probable or logical.

We have read the statement of facts and carefully considered all of the evidence, both that supporting the trial court’s finding of damages and that militating against it. The medical testimony is based largely upon complaints made by appellant and subjective symptoms. Although the evidence indicates that appellant did sustain injuries on July S, 1964, including probably a sprain of his neck based upon the subjective findings of Dr. Moody and Dr. Brodsky, the court could reasonably have concluded that there were other conditions present which were causing appellant pain and some limitation of motion in his neck. The evidence clearly shows that there were at the time he sustained such injury degenerative changes in the third cervical disc space, and further that such condition could cause pain, and a flattening of the Lordotic Curve. Although appellant pleaded that his condition resulting from the injury in 1961 had been aggravated, there was no evidence whatever to such effect.

This Court has the power to grant a new trial where the finding of the jury or the court is so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust, but we are not authorized to substitute our judgment for that of the jury or the court simply because we might have reached a different conclusion on the facts. Dyer v. Sterett, Tex.Civ.App., 248 S.W.2d 234; Continental Bus System, Inc. v. Biggers, Tex.Civ.App., 322 S.W.2d 1, writ ref., n.r.e.; Donnell v. Acker, Tex.Civ.App. 1961, 343 S.W.2d 718; Dallas Ry. & Terminal Co. v. Farnsworth, 1950, 148 Tex. 584, 227 S.W.2d 1017; 4 McDonald Texas Civil Practice, Section 18.15, p. 1459; Rule 328, Texas Rules of Civil Procedure.

In Evans v. Rush, Tex.Civ.App. 1952, 254 S.W.2d 799, the court said:

“This being a non-jury case the trial judge was the trier of facts under the rules previously herein stated and considerable latitude is vested in him in determining the amount of damages to be awarded in a personal injury action such as this. The damages in a case of this character cannot be measured by a mathematical yardstick.1'

In Nunn v. Daly, Tex.Civ.App., 150 S.W.2d 834, writ dism., judgment cor., the court stated:

“The rules governing the authority of an appellate court to set aside a verdict because of inadequacy are the same as those applicable to an excessive verdict. 13 Tex.Jur. 265, § 150. In Lang Floral & Nursery Co. v. Sheridan, Tex.Civ.App., 245 S.W. 467, 471, it is said: * * The amount of damages to be awarded in a case is as much within the province of the jury as the determination of any other issue of fact, and we are as much without authority to substitute our judgment for that of the jury in this respect as we are with reference to any other issue of fact, provided it does not reasonably appear to be based upon, or influenced by, something besides substantial evidence.’ ”

In our opinion the trial court’s finding is supported by substantial evidence, including medical testimony. We are unable to say that such finding is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Judgment affirmed.


text:
    Annemarie Witt BOENKER, Appellant, v. Alvin Charles BOENKER, Appellee.
    No. 14838.
    Court of Civil Appeals of Texas. Houston.
    June 23, 1966.
    Rehearing Denied Sept 8, 1966.

      Paul E. Delcourt, Jr., Joe Kegans, Houston, for appellant.
    Sonfield, Sonfield & Lawrence, F. Lee Duggan, Jr., Houston, for appellee.
   WERLEIN, Justice.

This suit was brought by Annemarie Witt Boenkér against appellee for divorce, custody of the minor children and child support, and division of the community property. Appellee countered with a cross-action. The case was tried before a jury which found in answer to Special Issue No. 1 that the acts and conduct of appellee toward appellant constituted such excess, cruel treatment, or outrages as to render their further living together’ as husband and wife insupportable. To other tissues the jury made findings with respect to whether certain property was separate or community property and as to a reasonable attorney’s fee for appellant’s attorney. The jury also found that the acts and conduct of appellant toward appellee did not constitute cruelty.

The court, on motion of appellee to disregard the finding of the jury to Special Issue No. 1 and to deny appellant a divorce, concluded that the evidence adduced at the trial was not legally sufficient, and that it was not full and satisfactory to the degree required by law to enable appellant to obtain a divorce, and that a directed verdict for the appellee would have been proper. The court, therefore, granted appellee’s motion for judgment non obstante veredicto, denied appellant a divorce and decreed that she take nothing by reason of her suit. The court also decreed that appellee be denied a divorce and that he take nothing by reason of his cross-action.

Appellant asserts that the court, erred in overruling her motion for judgment on the jury’s verdict and in granting appellee’s motion for judgment non obstante veredicto and entering judgment for appel-lee denying appellant a divorce and decreeing that she take nothing. Appellant further urges that the court erred in denying appellant a reasonable attorney’s fee as found by the jury. Appellee has not appealed from the decree of the court denying him a divorce, and hence this part of the decree will remain undisturbed. We wish to add, however, that since the jury found that the acts and conduct of appellant toward appellee did not constitute cruelty, the court properly decreed upon the jury finding that appellee be denied a divorce and that he take nothing by reason of his cross-action. It is well settled that when the verdict of the jury denies a divorce, the court may not ignore the findings of the jury and award a divorce. In other words, the court’s authority over the verdict of the jury is restrictive or negative only, and not independent or affirmative. Gris-ham v. Grisham, Tex.Civ.App., 185 S.W. 959; McCrary v. McCrary, Tex.Civ.App., 230 S.W. 187; Whitsett v. Whitsett, Tex.Civ.App., 201 S.W.2d 114.

The evidence shows that appellant and appellee were married on September 17, 1949 and allegedly continued to live together as husband and wife until February 2, 1965. This suit was filed by appellant on February 3, 1965. Appellant testified that on appellee’s return from a business trip to Pittsburgh in the summer of 1964, an argument ensued in which he stated that he didn’t think that sex was very important to marriage, and that in his way of thinking women were generally repulsive to him, and that appellant was repulsive to him as a sex partner; that on one occasion he called her a damn city girl and a son of a bitch and said that she didn’t know anything about farming; that he would argue from Friday afternoon until Sunday night; that appellee’s arguments, screaming and hollering, would continue without interruption over the whole week-end and occurred approximately on every week-end in the past year; that he would not let her go to bed, and if she would try to get away from there he would come violently after her; and that his actions would affect the children so they could not sleep.

She related a particular instance in November, 1964, when she discovered that appellee, without having any underwear on, was sleeping in the boys’ room with their four year old boy. She also testified that back in 1962, which was some three years before this suit was filed, appellee produced a pistol during one of their arguments and told her to shoot him if it was God’s will. She further testified that she could no longer live with appellee; that the arguments about which she had testified made her and the children nervous and that at the time she separated she was afraid she was headed for a nervous breakdown, and that she could not go through another such week-end with appellee.

Tom Boenker, the 14 year old son of the parties, who lived with his mother after the separation, was called to testify. He corroborated the testimony of his mother with respect to the week-end arguments, and the hollering and screaming late in the night until early morning. Such arguments occurred nearly every week-end.

Appellee denied such incidents, and testified that he and his wife had had discussions but that she was the one who began them, and that they related chiefly to business matters. He further testified that he never called appellant any vile names; that what he had said about sex was that it was not everything in life, but that there were other things important in marriage, too; and that he did not sleep with nothing on with the four year old boy, but wore the long top to his pajamas.

The evidence reflects that appellee provided a good home, worked hard, and engaged in additional work to make extra money. He testified that his wife would encourage him to take additional employment and then complain about the time such employment took. Appellant admitted that she had a joint bank account with appellee. She also admitted that appellee would kiss her goodbye every morning when he left home for work. Much of appellant’s testimony consists of trivialities, and broad, general statements concerning arguments and bickering and hollering and screaming by appellee over the week-ends. It was not shown whether there were any such arguments and hollering and screaming at any other time during the week. It was not shown what the arguments were about, except that there was some testimony from appellee that there were discussions with respect to money matters, housekeeping and keeping the children clean. It was shown by the family doctor that appellee had a thyroid condition for which he was checked regularly, and that appellant had had a duodenal ulcer which the doctor had cured. The doctor testified further that he had advised appellee to alleviate the situation by turning over “part of the financial funds” to appellant, and that as a result of such advice he understood appellee turned the management of his pay check over to appellant. He also suggested that the parties consult their minister and get counseling, and encouraged them to go to church and take the children with them. He testified that appellant’s response to this suggestion was many times immature. He further testified that appellant had suggested to him that something was wrong with appellee mentally but that he found nothing to indicate that appellee was unstable or that he had a mental disorder or that he ever had any mental disturbance.

Article 4632, Vernon’s Annotated Texas Statutes, provides:

“No suit for divorce shall be heard, or divorce granted, before the expiration of sixty (60) days after the same is filed. In divorce suits the defendant shall not be compelled to answer upon oath nor shall the petition be taken as confessed for want of answer, but the decree of the court shall be rendered upon full and satisfactory evidence, upon the judgment of the court affirming the material facts alleged in the petition. Either party may demand a jury trial.”

The law is well settled that issues of fact are resolved from a preponderance of the evidence, and that special issues requiring a higher degree of proof than a preponderance of the evidence may not be submitted to a jury. Carl v. Settegast, 1922, Tex.Com.App., 237 S.W. 238; Sanders v. Harder, 1950, 148 Tex. 593, 227 S.W.2d 206. In the instant case the jury found from a preponderance of the evidence that appellee was guilty of acts and conduct toward appellant that constituted such cruelty that further living together would be insupportable. In Article 4633, V.A.T.S., it is provided that where the husband or wife testifies, the court or jury trying the case shall determine the credibility of such witness and the weight to be given such testimony. In the present case there was testimony which warranted the jury in finding from a preponderance of the evidence that appellee was guilty of acts and conduct constituting cruelty on his part toward appellant although the evidence may not have been full and satisfactory.

Since there was some evidence of probative force supporting the sufficient allegations of appellant’s petition for divorce, the trial court was required to submit the case to the jury. The court would not have been justified in instructing a verdict in favor of appellee. Daniel v. Daniel, Tex.Civ.App., 16 S.W.2d 303; Skop v. Skop, Tex.Civ.App., 201 S.W.2d 77. Under Rule 301, Texas Rules of Civil Procedure, the court is authorized, upon motion and reasonable notice, to render judgment non obstante veredicto if a directed verdict would have been proper. Upon like motion and notice the court may disregard any special jury finding that has no support in the evidence. But where there is a süf-ficient pleading and some evidence of probative force in support of the jury verdict, as in the instant case, the court is not authorized to render a judgment directly contrary to the verdict.

The law is well settled that in order to meet the requirements of Article 4632, V.A.T.S., the decree of the court must be based upon full and satisfactory evidence affirming the material facts alleged in the petition. Resendez v. Resendez, Tex.Civ.App.1955, 282 S.W.2d 318, and authorities cited. The verdict of the jury is not binding upon the court in the sense that the court must enter judgment thereon. It is also necessary for the trial judge to determine whether the evidence is full and satisfactory. The law is well settled that the appellate court also not only has the power, but it is its duty where a divorce has been granted, to pass upon the issue of whether the evidence in the case is full and satisfactory, although it cannot pass upon the credibility of the witnesses. Resendez v. Resendez, supra, Mayen v. Mayen, Tex. Civ.App., 177 S.W.2d 240; Christoph v. Sims, Tex.Civ.App., 234 S.W.2d 901, writ ref., n. r. e.; Christen v. Christen, Tex.Civ.App., 333 S.W.2d 472, and authorities cited.

In the present case the trial court, in its wide discretionary power, found the evidence was not full and satisfactory, and therefore under Article 4632, V.A.T.S., it was its duty to refuse to grant appellant a divorce on the jury verdict. But since appellant had the right to a jury trial, and there was some evidence supporting the findings of the jury, the trial court was not authorized to enter a final judgment contrary to the jury findings. The court, however, in refusing to grant a divorce on the jury’s findings, entered a judgment denying a divorce and decreeing that the appellant take nothing by reason of her suit. This is a final judgment against appellant in direct opposition to the jury’s findings based upon a preponderance of the evidence to the effect that appellant was entitled to a divorce.

It is our view that this case is governed by the decision of the Supreme Court of Texas in the case of Moore v. Moore, 22 Tex. 237. In that case it was stated in effect that there must be a concurrence of “full and satisfactory evidence” and “the verdict of a jury” before the court can lawfully proceed to decree a divorce. The court said: “Unless it be so, it is the duty of the court to set aside the verdict, and refuse a decree.” The court then said:

“After hearing the evidence, if it be not deemed sufficient by the court, the correct practice seems to be, to dismiss the petition without prejudice. Page, Divorce, 332; Wright, 469. Such is the effect of the judgment in this case. There was no occasion to continue the cause on the docket, unless the plaintiff could make further proof to the satisfaction of the court; and to enable him to do this, he must have made his application, showing sufficient cause for a new trial.”

We are of the opinion that in the instant case the court properly refused to grant a divorce upon the jury verdict, since the court was of the opinion that the evidence was not full and satisfactory. It is further our opinion, however, that the court should not, in view of the jury verdict, have entered a final judgment that appellant take nothing, but should have dismissed the suit without prejudice. No motion for new trial was filed.

The case of Sanders v. Harder, 1950, 148 Tex. 593, 227 S.W.2d 206, is much in point although not a divorce case. In that case it was held that where the applicable rule of law required facts to be established by clear and convincing evidence, the trial court, if of the opinion that the evidence in support of the verdict did not satisfy such test, may set aside the verdict and order a new trial but should not render judgment contrary to the verdict of the jury. The court further stated: “Such judgments are authorized only where there is no evidence warranting a submission of issues to a jury. Rule 301 of the Rules of Civil Procedure.”

In Garcia v. Garcia, 1944, 185 S.W.2d 227, the trial court without a jury rendered judgment for divorce in favor of the plaintiff. The San Antonio Court of Civil Appeals held that the evidence was not clear and satisfactory and that the judgment could not stand. The court first reversed and remanded the case, but on rehearing the court said:

“Since the decree below was in favor of the appellee, and this Court has decided that the evidence does not meet the statutory requirement of being ‘full and satisfactory,’ it seems that under the proper practice this Court should dismiss the cause, rather than remand the same for new trial. Accordingly, our order of remand will be set aside. The judgment of the trial court is reversed and judgment here rendered dismissing this cause without prejudice.”

In the instant case the trial court in finding that the jury verdict was not based upon clear and satisfactory evidence, was in a position analogous to that of the Court of Civil Appeals in the Garcia case, and as stated should have dismissed the cause without prejudice. We are not persuaded that the evidence in support of appellant’s suit for divorce is full and satisfactory or that the trial court abused his discretion in finding that such evidence was not full, clear and satisfactory. For such reason, this Court is unwilling to enter judgment for appellant on the jury verdict, although it could do so if it had concluded that the evidence was full and satisfactory. Worthen v. Worthen, 1964, Tex.Civ.App., 374 S.W.2d 935; Jernigan v. Jernigan, 37 Tex. 420; Taylor v. Taylor, 18 Tex. 574.

The jury found that $3,750.00 would be a reasonable attorney’s fee for the services of appellant’s attorney down to the date of trial. The special issue inquiring as to what would constitute a reasonable attorney’s fee could be interpreted to include a fee in connection with the prosecution of her suit and also the defense of the cross-action brought against her. It is noted, however, that appellant filed no supplemental petition in reply to appellee’s cross-action and failed to ask for an attorney’s fee in connection with the defense thereof. The evidence is sufficient, however, to show that appellant has no separate estate and that she was unable to pay a reasonable attorney’s fee, and that under the circumstances of this case she was entitled thereto in order to enable her to prosecute her suit adequately and protect her rights. It is our view, therefore, that under the evidence and circumstances of this case, it was error for the trial court to deny any attorney’s fee to appellant for the services of her attorney.

Although no error has been assigned to the wording of such issue, we are of the opinion that in view of the interpretation that could be placed thereon and the possibility that the amount found by the jury included a fee for defense of the cross-action, we should not affirm the allowance made by the jury, but should in the interest of justice sever such cause of action from appellant’s cause of action for divorce, and remand the same for a new trial.

The fact that the court did not grant appellant a divorce would not deprive her of the right to recover a reasonable attorney’s fee for services rendered by her attorney if she had reasonable grounds for bringing the suit and instituted it in good faith. McClanahan v. McClanahan, Tex.Civ.App., 197 S.W.2d 581; Roberts v. Roberts, 144 Tex. 603, 192 S.W.2d 774; Farrow v. Farrow, Tex.Civ.App., 238 S.W.2d 255; Speer’s Law of Marital Rights, 3rd Edition, Sec. 638, page 796, where it is stated: “It is not essential that the wife recover to have her attorney’s fees. If the suit be brought in good faith she may ordinarily recover them; or where she is the defendant she may recover them—such expenses being ordinarily a necessary.” In Wallace v. Briggs, 1961, 162 Tex. 485, 348 S.W.2d 523, the court said: “The respondent argues that the wife may be allowed an attorney’s fee even though the suit for divorce is dismissed or where the divorce has been denied. The cases he cites support that proposition * *

That portion of the judgment denying ap-pellee a divorce on his cross-action, from which no appeal has been taken, will remain undisturbed. Appellant’s cause of action for attorney’s fees is hereby ordered severed from her cause of action for divorce, and that portion of the judgment denying appellant a reasonable attorney’s fee is reversed and remanded for a new trial. The portion of the judgment denying appellant a divorce and decreeing that appellant take nothing, is reversed and remanded to the trial court with instructions to dismiss appellant’s cause of action for divorce without prejudice.

Reversed and remanded with instructions.


author: McDONALD, Chief Justice.

text:
    Rayburn M. HAMILTON et al., Appellants, v. Calvin N. CLYDE, Jr., Administrator, Appellee.
    No. 4483.
    Court of Civil Appeals of Texas. Waco.
    July 14, 1966.
    Rehearing Denied Sept. 1, 1966.

      H. M. Harrington, Jr., Longview, Robert M. Kennedy, Dallas, for appellants.
    Fred Meredith, Terrell, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal from a judgment denying remaindermen heirs of Ava Elizabeth Cobb Cain, royalty and bonus moneys paid to W. W. Cain, the life tenant, from property leased and from a well drilled, after the vesting of the life estate.

Appellants are heirs at law of testatrix Cain; appellee is the executor of the estate of W. W. Cain.

Appellant Hamilton (an heir of testatrix) filed suit in June, 1962 to construe her will. Such will was in deceased’s handwriting and recited:

“This is my last will Mar 1943—
I hereby appoint my husband (W. W. Cain) sole executor of my estate & will. I expressly direct that no bond or security be required & no action taken in probate court other than to prove and record the same and file an inventory and list of claims. I hereby give and bequeath to my husband for his lifetime all property of every kind wherever situated. Inherited property shall remain intact and revert back to my heirs as designated unless circumstances of need necessitate otherwise.
* * * * * *
Ava Elizabeth Cobb”

Appellants asserted in the trial court such will should be construed that deceased’s husband, W. W. Cain, should have only the “use of the proceeds of oil royalty and bonus money of inherited property and not the corpus of same.” Appellant Hamilton asserted that: “revert back to my heirs,” meant a “per capita” distribution (after the death of W. W. Cain); the other appellants asserted such meant a “per stirpes” distribution.

Appellee answered that appellants’ suit was barred by limitations, laches, stale demand; and by reason of 2 agreements entered into by appellants and W. W. Cain, which agreements appellee contends construe the will that W. W. Cain should have all royalty and bonus proceeds from the “inherited property” during his lifetime.

Trial was to the Court without a jury which entered judgment for appellee, that W. W. Cain was entitled to all royalty and bonus money from the “inherited property” during his lifetime; and that appellants inherited such property “per stirpes” upon the death of W. W. Cain. The trial court found that the 2 agreements appellants made with W. W. Cain interpreted the will that W. W. Cain was to receive all bonus or royalties from testator’s separate estate, whether from leases made during her lifetime or after vesting of the life estate; and further that appellants’ claims are barred by laches, waiver, equitable estoppel, limitations, payment and satisfaction, and contractual agreement.

Appellants appeal, contending that they as remaindermen were entitled to royalty and bonus receipts paid to W. W. Cain, the life tenant, from property leased and wells drilled, after the vesting of the life estate; and that W. W. Cain was entitled only to “interest” on such moneys during his lifetime. Appellants further contend that they are entitled to 3j4% interest on such moneys from the date of the death of Cain. Appellant Hamilton contends the trial court erred in decreeing a “per stirpes” distribution to the remaindermen.

The record reflects testatrix died in November, 1945; that she and her husband had no children; that her heirs are appellants; that at the time of her death she owned community property with her husband (consisting of the home in Terrell and adjoining rent property, land in Kaufman County, rent houses in Tyler, royalty in Van Zandt County, stocks, bank accounts, savings accounts, war bonds, household furnishings, and an automobile); that she owned as separate property land in Palo Pinto County, certain royalties, Postal Savings, bank account, and notes; and that she owned as separate property 1/4 interest in the H. S. Cobb Estate which she inherited from her father and which consisted of oil producing lands in Wood and Smith Counties.

On December 19, 1945 appellants entered into a written agreement with W. W. Cain which provided:

“ * * * it is our interpretation of the intention of Ava Elizabeth Cobb Cain as expressed in her will, because of numerous expressions made in her lifetime, that we as designated heirs should inherit from her the undivided interest which she held in the estate of her father, H. S. Cobb, deceased, at the time of her death, after the lapse of the life estate therein which she gave to her said husband; and further that Ava Elizabeth Cobb Cain did not intend, with respect to the community estate of herself and her husband, W. W. Cain, and with respect to her separate property vested and held individually in her name, to leave her said husband a life estate only therein with vested remainderman interest in us; and
“Whereas it is our mutual desire to eliminate any ambiguity in the interpretation of said will, and to clear and vest fee simple title in W. W. Cain of all of the community property of himself and his deceased wife, and all of her separate property held in her own name at the time of her death, SAVE AND EXCEPT the undivided interest and share owned by Ava Elizabeth Cobb Cain in the Estate of H. S. Cobb, deceased, which it is understood shall be held by W. W. Cain for his lifetime only and then revert to us, as the designated remaindermen heirs in said will;
“Now Therefore * * * ” (appellants conveyed to W. W. Cain all of their undivided interest by remainderman or otherwise under the will of Ava Elizabeth Cobb Cain, to the Community Property of testatrix and W. W. Cain, and to the separate property of testatrix) * * "save and except only any interest we might have under her said will as re-maindermen, after the life estate of W. W. Cain, in her share of the Estate of H. S. Cobb, deceased. * * * ”

In April, 1948 appellants and W. W. Cain entered into another written agreement which provided:

“ * * * for the purpose of interpretation, construction and agreement for the purpose of clearing and avoiding ambiguity or misunderstanding concerning the terms of said will * * *
“1) That she intended by the words ‘inherited property’ to refer to her undivided interest in the Estate of H. S. Cobb, deceased, which now remains intact and owned jointly by the heirs of such estate, and such property only; and that her husband W. W. Cain should have a life estate in such undivided interests owned by her at the time of her death, and then such undivided interests of the testatrix in the Estate of H. S. Cobb, deceased, to revert to the * * * remaindermen heirs;
“2) That she intended to vest in fee simple title in her husband W. W. Cain, all of her community property and all of her separate property then held in her name, whether by purchase or gift ⅛ * * ”
(W. W. Cain then proceeded to make a gift of $21,000 and 151 acres of land to appellants in consideration of his deceased wife’s love and affection and in consideration further of appellants’ “harmonious and cooperative agreements and interpretation of said will”).

Following the vesting of the life estate in W. W. Cain of his wife’s ⅛ interest in the Estate of H. S. Cobb, Cain and the remaindermen (who owned by other inheritance undivided interests in the H. S. Cobb estate), executed a new lease on a portion of the Cobb Estate lands; a new well was drilled thereon; and $18,920.52 was received by life tenant Cain therefor as royalty, and $1875 as bonus for execution of lease. (Cain received $60,310 total royalty payments from the death of testatrix until his death, from the ⅛ interest in the Cobb Estate lands).

Appellants originally contended they were entitled to all $60,310 received by W. W. Cain from Cobb Estate lands; but abandoned this contention; and here only contend they are entitled to the $18,920.52 and $1875 royalty and. bonus payments made to Cain from the Cobb' Estate property, after the vesting of his life estate.

Under Taxas law, if the property at the time it vests in the life tenant is not under lease and is not producing oil and gas, then the royalty and bonus income derived from a later leasing or later well is corpus of the estate, and belongs to the remaindermen; and the life tenant is only entitled to such interest as he may earn by investment of such moneys during his lifetime. Mitchell v. Mitchell, 151 Tex. 1, 244 S.W.2d 803; Avis v. First Nat. Bank, 141 Tex. 489, 174 S.W.2d 255.

Nowhere in the two agreements executed by appellants and W. W. Cain (pertinent portions quoted supra), do appellants waive or convey any of their rights as remaindermen in the ¼ undivided interest testatrix inherited in the estate of her father, H. S. Cobb, deceased. In fact the 1945 agreement specifically exempts from its operation “any interest we might have under said will as remainder-men, after the life estate of W. W. Cain, in her share in the Estate of 'H. S. Cobb, deceased.”

The 1948 agreement confirms the 1945 agreement, and it nowhere contains' any waiver of any rights as remainder-men appellants have in testatrix’s interest in the Cobb Estate.

But appellee contends that appellants are barred by laches, limitation and by execution of the lease with W. W. Cain. W. W. Cain died in September, 1961; the instant suit was filed in June, 1962. No period of limitations could run in this period. Moreover, until the life tenant died, appellants were not entitled to anything; and since they also had an interest in the subject of the lease, their joinder did not waive any of their rights as remaindermen.

We think appellants are entitled, as remaindermen, under the settled law to the $18,920.52 and $1875. items. Since the record reflects such items have been drawing interest at 3%% since the death of W. W. Cain, appellants are also entitled to this sum.

Appellant Hamilton complains of the trial court’s judgment that distribution to the remaindermen was intended to be “per stirpes,” and not “per capita”. The trial court was correct. Probate Rule 43, V.A.T.S.; Paul v. Ball, Sup.Ct., 31 Tex. 10; Dubois v. House, Tex.Civ.App., 294 S.W. 935 (Er. Ref.) ; Jackson v. Evans, Tex.Civ.App., 305 S.W.2d 236 (ref. n. r. e.)

The judgment of the trial court is reversed and judgment rendered for appellants against appellee for $21,164.52 plus 31/2% interest from date of death of W. W. Cain. The judgment decreeing a “per stirpes” distribution to appellants is affirmed.

Costs of appeal are assessed against ap-pellee.

Reversed and rendered in part.

Affirmed in part.


text:
    D. Truitt DAVIS, Appellant, v. COASTAL STATES PETROCHEMICAL COMPANY, Appellee.
    No. 14830.
    Court of Civil Appeals of Texas. Houston.
    July 7, 1966.
    John A. Croom, Houston, for appellant.
    W. T. Blackburn, Corpus Christi, for appellee.
   WERLEIN, Justice.

This is an appeal by D. Truitt Davis from an order of the trial court overruling his plea of privilege. Appellee, Coastal States Petrochemical Company, Inc., instituted suit in Harris County, Texas, against appellant, James R. Clark, Albert E. Fagan, and Cooper Petroleum Company. Appellant filed his plea of privilege seeking removal of the suit as to him to Taylor County, Texas, the county of his residence. Appel-lee filed its amended controverting affidavit alleging certain acts of fraudulent representation on the part of appellant and James R. Clark, and sought to maintain venue in Harris County, Texas, under Subdivision 4 of Article 1995, Vernon’s Annotated Texas Statutes, which reads in part: “If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.”

Appellant contends that the trial court erred in overruling his plea of privilege for the reason that appellee did not prove that any codefendant of appellant resided in Harris County. Appellee filed its request for admissions, directed to James R. Clark and his attorney of record, and the same was served on his attorney, but on no other defendant in the suit. In such request for admissions, James R. Clark was requested to admit the truth of certain matters which would establish that he was a resident of Harris County, Texas. Clark did not file any sworn statement of any kind in response to such request, and hence as to him, under Rule 169, Texas Rules of Civil Procedure, it was established that he resided in Harris County.

The law is well settled that under Subdivision 4 of Article 1995, V.A.T.S., one of the essential venue facts that the plaintiff must prove is that one of the codefend-ants in the action is a resident of the county in which the suit is filed. Burgess v. F. E. Hill Company, Tex.Civ.App., 329 S.W.2d 354; International Harvester Company v. Faris, Tex.Civ.App. 1962, 360 S.W.2d 864. In the latter case, the court said:

“A necessary venue fact to be shown under Subdivision 4 is that one of the defendants is a resident of the county of the suit. Rains-Talley Funeral Home v. Adams et al., Tex.Civ.App., 231 S.W.2d 999 and cases there cited. These matters are not made by the introduction of the allegations of the petition or of the controverting affidavits. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 by the Com. of App. opinion adopted by Sup. Ct.”

The question arises as to whether the failure of Clark to answer the requests can be taken as admissions or proof of Clark’s residence as against appellant. It is our view that it cannot. Appellant had the right to cross-examine Clark or to file cross-interrogatories or requests for admissions. The admissions of Clark are hearsay as to appellant. They do not constitute legally admissible evidence or proof of any fact as against appellant. In Trice Contract Carpets & Furniture, Inc. v. Martin, Tex.Civ.App., 334 S.W.2d 554, the court said:

“Appellant contends the failure of one defendant to answer requests for admissions is binding on another defendant, in this case Mrs. Fluke. Our court in Talbott v. Hogg, 298 S.W.2d 883 (writ dismissed) ; and the San Antonio Court in Krasa v. Derrico, 193 S.W.2d 891, 893 have held otherwise, and we believe properly so.”

In Krasa v. Derrico, 193 S.W.2d 891, which was a trespass to try title suit against Mabel Krasa, individually and as survivor of the community of herself and Adolph J. Krasa, deceased, and as executrix of Adoph J. Krasa, deceased, plaintiff’s attorney requested admissions addressed to “Mabel M. Krasa, Defendant in the above case, or her Attorneys of Record, Kelley & Looney * * * ” The San Antonio Court of Civil Appeals, through Chief Justice Murray, said:

“No answer was made to this request for admissions. It is apparent that the request was addressed only to Mabel M. Krasa, or her attorneys of record and not to her in the two representative capacities in which she was also sued. Thus the question arises, Can her failure to answer these requests be taken as admissions against her in her representative capacities? We think not.”

See also H. Richards Oil Company v. W. S. Luckie, Inc., Tex.Civ.App., 391 S.W.2d 135, writ ref., n. r. e.

It is our view that appellee wholly failed in meeting its burden of proving as to appellant that one of his codefendants was a resident of Harris County, Texas, since the admission by Clark, though binding on him, did not establish as to appellant that the said James R. Clark was in fact a resident of Harris County, Texas. It was error on the part of the trial court to overrule appellant’s plea of privilege to be sued in the county of his residence, and for this reason the court’s order must be reversed.

Appellant next complains that the court also erred in overruling his plea of privilege for the reason that appellee did not prove that it relied on the alleged false representations of appellant and the said James R. Clark in extending credit to International Marketing, Inc. There were two contracts entered into between appellee and International Marketing, Inc. During the term of the first contract an arrangement for payment for products delivered was made with the bank in Abilene and the contract was paid in full. It was during this time that appellee claimed Clark and Davis made the misrepresentations. Appellant contends that appellee’s witness did not at any time testify or prove that they relied on the claimed misrepresentations in entering into the second contract upon which they sued. The evidence shows that when appellee’s president, Oscar S.-Wyatt,'- Jr., was asked, “Would you have entered into that second contract if it had not been for the statement of Mr. Clark and Mr. Davis?” he answered, “We wouldn’t have sold them the material on the first contract if they had not represented to us we were trading with Cooper & Fagan, and I. M. I.” The answer of the witness is equivocal. In any event, his answer is not clear as to whether they would have entered into the second contract if it had not been for the representation that was made, since the answer could be construed as applying only to the first contract.

It is our view that justice will be best subserved by this Court not rendering judgment herein but by reversing and remanding the cause to the trial court where the evidence may be more fully developed.

Reversed and remanded.


author: COLEMAN, Justice.

text:
    Clara L. WASHINGTON, Appellant, v. GOLDEN STATE MUTUAL LIFE INSURANCE COMPANY, Appellee.
    No. 14911.
    Court of Civil Appeals of Texas. Houston.
    July 7, 1966.
    Rehearing Denied Sept. 8, 1966.

      Robert W. Hainsworth, Houston, for appellant.
    Baker, Botts, Shepherd & Coates, John Held, Houston, for appellee.
   COLEMAN, Justice.

The question presented is whether the time for the filing of an appeal bond runs from the date of the signing of an order overruling a motion for new trial where the motion was presented within thirty days of its filing and the ruling of the court was announced, but the order was not signed by the court until after the expiration of forty-five days.

In this case the judgment was signed February 24, 1966. A motion for new trial was filed on March 5, 1966. The order overruling the motion for new trial recites that it came on to be heard on April 11, 1966 and that it was signed April 26, 1966. The appeal bond was filed on May 20,1966.

Rule 329-b, Texas Rules of Civil Procedure, provides that all motions for new trial “must be determined within not exceeding forty-five (45) days after the original * * * motion is filed, unless by written agreement of the parties in the case, the decision of the motion is postponed to a later date.” No written agreement of the parties postponing the decision appears in the transcript. The forty-five day period expired April 19, 1966.

Rule 356, T.R.C.P., requires bonds for costs on appeal to be filed within thirty days after the date of judgment or order overruling motion for new trial. Compliance with this rule has been held to be mandatory and jurisdictional to an appeal. The time limits prescribed cannot be dispensed with or enlarged by this Court for any reason. Glidden Co. v. Aetna Casualty & Surety Co., 1956, 155 Tex. 591, 291 S.W.2d 315; Neuhoff Bros., Packers v. Acosta, Tex.Civ.App. 1959, 319 S.W.2d 416, aff’d 160 Tex. 124, 327 S.W.2d 434.

Where no order overruling a motion for new trial is signed by the trial court, the motion is overruled by operation of law after forty-five days and the period within which the appeal bond must be filed begins. Lucchese v. Specia, Tex.Civ.App.1955, 281 S.W.2d 725, error ref.; Texas Employers Ins. Ass’n v. Martin, 1961, 162 Tex. 376, 347 S.W.2d 916.

The judgment of the trial court overruling the motion for new trial was rendered on the day it was signed. Rule 306a, T.R.C.P.; Ex Parte Godeke, 1962, 163 Tex. 387, 355 S.W.2d 701.

Since the order overruling the motion for new trial was rendered after the expiration of forty-five days from the date it was filed, it was a nullity since the motion had been previously overruled by operation of law. Lucchese v. Specia, supra; Martinez v. Stephens, Tex.Civ.App., 1952, 246 S.W.2d 707.

The period within which the appeal bond had to be filed to confer jurisdiction on this Court, therefore, began on April 19, 1966, the day the motion for new trial was overruled by operation of law. The last day for filing was May 19, 1966. The cost bond was filed on May 20, 1966. This Court acquired no jurisdiction of the case, and the appeal is ordered dismissed.

BELL, C. J., not sitting.


author: MASSEY, Chief Justice.

text:
    Odessa Hailey WILLIAMS, Appellant, v. NATIONAL CREDIT CORPORATION, Appellee.
    No. 16748.
    Court of Civil Appeals of Texas. Fort Worth.
    June 24, 1966.
    Rehearing Denied Sept. 9, 1966.
    Cervin & Stanford, and Paul H. Stanford, Dallas, for appellant.
    Henry Stollenwerck, Dallas, for appellee.
   OPINION

MASSEY, Chief Justice.

The legal question presented is whether the appellant, who retained possession of a lot in the City of Fort Worth after lien thereon was foreclosed in 1959 by prior judgment of a court of competent jurisdiction, may make a fact issue for trial in a subsequent proceeding involving title to the same property by advancing her claim thereto under the five year statute of limitation. V.A.T.S., Title 91, “Limitations”, Article 5509, “Five years’ possession”.

Appellant concedes that if it had been by her deed to appellee’s predecessor in title that her interest had passed to said predecessor she would not have the right to assert the five year statute of limitation, because the grantee would then be holding under her as successor to her right, title and interest in the chain of title to the realty. See Voight v. Mackle, 71 Tex. 78, 8 S.W. 623 (1888) and cases following.

However, appellant contends that since said predecessor acquired the title (which passed by its deed to the appellee) as the result of foreclosure and sheriff’s sale shé has the right to maintain her title under the five year statute of limitation since she was not dispossessed during such period.

Relative to the question posed on propriety of appellant’s plea under the statute of limitation it is our opinion that no distinction may be made in an instance wherein there is a transfer of title by the free act and deed of a grantor and one in which there is an involuntary transfer pursuant to a “sheriff’s sale” under or by virtue of a decree or judgment of a court of competent jurisdiction. In the latter instance a sale by the sheriff, etc., is as good and effectual to pass the title of parties bound by the judgment as any other means of transfer. V.A.T.S., Title 31, “Conveyances”, Article 1295, “Conveyance by authorized officer.”

The 1959 judgment of foreclosure was one to which appellant was a party. It directed the divestiture of her title and a sheriff’s sale. There was such a sale and it was under and by reason thereof that appellee’s predecessor acquired title. However, there was no attempt to acquire possession until after the expiration of five years. When there was the appellant filed suit in the form of trespass to try title and plead the five year statute of limitation premised upon instruments in the chain of title up to the time of the prior foreclosure suit. Pursuant to appellee’s motion therefor, summary judgment was rendered. The only question before this court is whether appellant’s plea in reliance on the five year statute of limitation inhibited entry of the decree. In accord with the holding of the trial court we likewise hold that appellant may not rely thereon. Summary judgment was properly rendered.

As authority for her contention the appellant cites only one case, McKenzie v. Grant, 93 S.W.2d 1160 (San Antonio Civ.App., 1936, writ dismissed). The opinion is lengthy and involved. The judgment of the Court of Civil Appeals was one which reversed the trial court for several reasons, none of which had any bearing upon the question here posed. Indeed, the language from the opinion upon which appellant relies was in favor of the party who lost before the appellate court. Therefore such language constitutes dicta. Furthermore, in such case the “former suit(s)” to which the language of the opinion related was an injunction suit wherein a party (in the position analogous to that of appellant) unsuccessfully sought to prevent the sale by the sheriff, and/or the foreclosure suit (on the strength of which the sheriff purported to make the sale) in which said party had not been joined nor made party to the judgment. Nothing in the language from the opinion is germane to the question posed on the instant appeal.

In general, judgment of a foreclosure suit against one in the position of appellant operates as a “legal estoppel” to a subsequent assertion of any title which did or might have existed in such party at time judgment was rendered in that case. In Freeman on Judgments, 5th Ed., § 868, “Avoiding Effect of Former Judgment”, it is stated: “Whenever, in an action for possession of realty, the question of title is put in issue by the pleadings, the judgment prima facie constitutes an estoppel to the assertion of any title which existed in the losing party at the time of the former suit, with the exceptions hereinafter noted.” By reference to the exceptions so noted none is to be found having any analogy to the appellant’s situation in the case before us. To the same effect is language in 34 Tex.Jur. 2d, p. 623, “Judgments”, § 536, “(Rights concluded by prior judgment) — Rights to ownership of property”, in which the es-toppel is termed estoppel by judgment.

Judgment is affirmed.