author: TUNKS, Chief Justice.

text:
    Manuel ROMERO, Appellant, v. Roy M. HORLOCK, d/b/a the Horlock Company, Appellee.
    No. 47.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    March 6, 1968.
    Rehearing Denied March 27, 1968.

      David J. Nagle, Houston, for appellant.
    F. Walter Conrad, Jr., Robert J. Malinak, Baker, Botts, Shepherd & Coates, T. Turner Pope, Kamp, Laswell & Howard, Houston, for appellee.
    Pearson Grimes, Houston; and Butler, Binion, Rice, Cook & Knapp, Houston, for intervenor.
   TUNKS, Chief Justice.

In 1963, the defendant, Roy M. Horlock, appellee here, undertook to construct some apartments or townhouses on a tract of land owned by him in Houston, Texas. In the construction the defendant did not use a general contractor, but, rather, entered into various independent contracts for the performance of particular portions of the construction. In one of those contracts, Gulf Plastering Company, agreed to do the plastering work upon the buildings. Other contracts were made by the defendant which covered carpenter work, brick work, sheet metal work, roofing, etc.

The plaintiff was an employee of Gulf Plastering Company and as such, was, on the date in question, on the defendant’s premises doing plaster work on the chimneys on the roof of one of the two-story buildings being constructed by the defendant. At the end of the day he began his descent from the roof and as he did so, fell, sustaining the injuries for which he here sues.

In the contract between the defendant and Gulf Plastering Company is the following provision: “When needed by him subcontractor (Gulf Plastering Company) shall furnish the following facilities for his own use or pay his pro-rated share of same for the entire construction period: temporary toilets, job sheds, storage and warehouse spaces, temporary water, power, heat, gas and telephone, drinking water, scaffoldings, barricades, night watchmen, shoring and underpining, vertical transportations, hoisting equipment and any other service of facility applicable to his particular scope of the work.”

In the performance of its contract, Gulf Plastering Company built a scaffold at the end of the building complex. This scaffold was used by the employees of the plastering company in hoisting material and equipment to the roof of the buildings and also was used as a means of ascent and descent. The evidence showed and the jury found that this scaffold was a “reasonable means of access to and from the roof.” The evidence also showed and the jury found that an extension ladder had been placed against the back of the building on which plaintiff was working to be used by the employees of Gulf Plastering Company to descent from the roof.

Plaintiff, however, did not use either of those means of descent. There was another carpenter’s ladder leaning against the side of the building. It had been left there by some carpenters (employees of another independent contractor working on the building). It was this carpenter’s ladder that plaintiff undertook to use in getting down. This ladder was not quite long enough to reach the roof level — its top was a little below the level of the roof. As plaintiff started to put his foot on it to descend, he steadied himself by holding on to some of the brick work that extended above the roof level. The brick work gave way causing plaintiff to fall to the ground. The plaintiff sustained, among other injuries, a broken ankle. The jury found his damages to be in the amount of $23,250.00.

The brick wall on which plaintiff leaned in stepping onto the ladder was not a structural wall designed to bear a load. It was a veneer wall and its principal purpose was decorative. It was made of Mexican brick which was soft and easily broken. There was about a one-inch space between the wall of the building and the brick veneer. The brick veneer was not attached to the wall of the building at the time in question. The top three rows of bricks were cantilevered out so that the top row extended about four or more inches from the verticle line of the other bricks. There was no evidence that either the bricks or the mortar used to lay them was defective in any manner. The veneer, particularly the three top rows which were extended out from the verticle, was not designed, nor intended to bear any load at all.

The plaintiff sued the property owner, the appellee Horlock, and the brick contractor who built the wall, R. C. Henderson, alleging that they were guilty of negligence which proximately caused his fall and injuries. Before the trial was completed, the plaintiff dismissed as against the brick contractor. The allegations of negligence as against the defendant, Horlock, may be summarized as follows: The defendant failed to provide reasonably safe means of getting to and from the work areas. The defendant failed to establish work rules concerning use of scaffolds and ladders. The defendant failed to warn plaintiff of the dangerous condition of the brick veneer. The defendant also alleged that he intended to invoke the doctrine of res ipsa loquitur and that the defendant breached a warranty to plaintiff that the brick would support plaintiff’s weight.

The trial court submitted to the jury a special issue as follows: “Do you find from a preponderance of the evidence that the defendant, Roy M. Horlock, his agents and employees failed to provide plaintiff a safe means of getting from the work area?”

The jury answered, “We do not.”

Other issues as to negligence and proximate cause were predicated on an affirmative answer to that issue and were, therefore, not answered by the jury. No other issues concerning the defendant’s negligence were submitted to the jury. On a number of issues relating to contributory negligence of the plaintiff, the jury found that there was no such contributory negligence. The trial court rendered judgment on the verdict for the defendant, and the plaintiff has appealed.

The appellant’s first points of error are to the effect that there is either no evidence or insufficient evidence to support the jury’s finding on his primary negligence issue. It is appellant’s argument, in support of these points, that it was Gulf Plastering Company, an independent contractor, who furnished the safe means of descent — the scaffold and the extension ladder — and that therefore the jury’s finding that defendant and his agents and employees provided them is without support in the evidence.

We overrule those points of error. The scaffold was built and the extension ladder furnished by the plastering company in accordance with the terms of its contract with the defendant. The defendant “provided” the means of descent whether he personally installed them or caused them to be installed through the medium of an independent contractor. The use of the words “agents and employees” in the special issues submitted, was not intended to and did not have the restrictive meaning suggested by appellant’s argument.

The plaintiff requested the submission of twenty-two other special issues which were refused by the trial court. The relation of those requested issues to the grounds of liability alleged in plaintiff’s petition is not entirely clear; but we have assumed that, in those requested issues, he properly presented to the court a request for the submission of those grounds of liability alleged by him. Those allegations of liability are summarized above.

One allegation of negligence was that the defendant failed to warn plaintiff that the bricks might come loose if he used them to balance himself in stepping onto the ladder he used. The trial court refused to submit issues relating to that allegation. That refusal was assigned as error.

There is no question that the plaintiff was an invitee upon the premises of the defendant. Since the plaintiff was an invitee on defendant’s premises, the defendant was under a duty to exercise ordinary care to protect the plaintiff from any dangers on the premises that were not open and obvious or to warn him of those dangers. Halepeska v. Callihan Interests, Inc. (Tex.Sup.Ct.), 371 S.W.2d 368; Grimshaw Co. v. Zoller, Tex.Civ.App., 396 S.W.2d 477, writ ref., n. r. e. The plaintiff, however, was an invitee as the employee of Gulf Plastering Company. The defendant, in discharging his duty to warn those invitees who were such employees, was not required to go to each employee and personally tell him of the hidden danger, if any, represented by the insecure bricks at the top of the veneer wall. That alternative duty to warn was fully discharged when the character of the brick structure was brought to the attention of plaintiff’s employers. In Delhi-Taylor Oil Corp v. Henry, 416 S.W.2d 390 (Tex.Sup.Ct.), it was said: “While an owner owes a duty to employees of an independent contractor to take reasonable precautions to protect them from hidden dangers on the premises or to warn them thereof, an adequate warning to or full knowledge by the independent contractor of the dangers should and will be held to discharge the landowner’s alternative duty to warn the employees.”

If there was a hidden danger from which plaintiff sustained his injuries, it was in fact that the bricks at the top of the wall were not fixed securely. Photographs introduced in evidence show the position in which the bricks were laid. The bricks were laid in the usual manner, lengthwise, flat and with one row directly on top of the other — except 'for the top three rows of bricks. In the third from the top row the bricks were laid at an angle, rather than lengthwise. In that row a corner of each brick extended outward for a distance of two or three inches beyond the perpendicular line of the bricks below. In the second from the top row the bricks were laid lengthwise of the wall, but their edges, too, extended outward from the perpendicular line of the wall approximately one inch farther than the outside corners of the bricks in the row below. It is apparent that there is comparatively little mortar binding the bottom of the bricks in this row. The bricks in the top row are laid still differently. They are laid crosswise of the length of the wall, on their edges and extending out from the perpendicular line of the wall two or three inches further than the bricks in the row below. With such an arrangement it might be argued that it was obvious that the bricks were not securely fixed. We do not, however, base our holding on such a conclusion. But the manner in which the bricks were laid is relevant in evaluating the evidence to see if the fact of the hidden danger, if any, was known to or brought to the attention of plaintiff’s employers or supervisors.

Braxton Lewis, the supervisor of R. C. Henderson, the masonry contractor doing the brick work on the buildings, testified that he cautioned the plaster crew about knocking the brick loose and told them, “if they got on that brick work, they are liable to come tumbling down.” It is not shown, however, that the plaintiff, personally, heard that warning.

Mr. Robert C. Underhill, the owner of Gulf Plastering Company, the plaintiff’s employer, testified that a hose was used to pump plaster up onto the roof and that he had been told that dragging the hose across the brick at the top of the wall would knock them down and that he had learned that some of the brick had been knocked loose in that way.

Obie Tidmore, Jr., Underhill’s foreman and the plaintiff’s supervisor, gave similar testimony clearly indicating that he knew of the instability of the top of the brick. He testified, in fact, that he told the men of his crew of that condition and “not to use the ledge anymore.”

While the evidence was contradictory as to whether the plaintiff actually knew of the dangerous condition, if any, it is uncontradicted that his employer and foreman knew of it. Under those circumstances, on the authority of Delhi-Taylor Oil Corp. v. Henry, supra, we told that the trial court properly refused the plaintiff’s requested special issues on failure to warn.

The evidence did not raise any issues to be submitted to the jury under the other pleadings of the plaintiff. Plaintiff’s allegation of negligence in failing to establish work rules is evidentiary only. Generally, the failure to establish work rules is not, of itself, negligence separate and apart from the failure to warn. It is what is done or not done regardless of rules that may be negligence.

Further, we think it is obvious that neither the doctrine of res ipsa loquitur nor liability based on warranty is applicable here.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    Ella Marie YANCY, Individually and as Next Friend for Carolyn Ann Yancy, a minor, Appellant, v. TEXAS GENERAL INDEMNITY COMPANY, Appellee.
    No. 314.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 29, 1968.
    Rehearing Denied March 28, 1968.

      See also Tex.Civ.App., 417 S.W.2d 643.
    Phenix & Wilder, Bill Wilder, Henderson, for appellant.
    Fred Erisman, Otto A. Ritter, Longview, for appellee.
   DUNAGAN, Chief Justice.

This suit was brought for death benefits under the workmen’s compensation law. Defendant (appellee) filed a plea in abatement to the jurisdiction of the court on the ground that plaintiff (appellant) failed within 20 days after the date of the award of the Industrial Accident Board to give notice of intention to appeal as required by Art. 8307, Sec. 5, Vernon’s Ann.Tex.Civ.St.

Appellant had paid the jury fee and requested this case be placed upon the jury docket. Counsel for appellant made the following statement to the court, preceding a hearing upon appellee’s motion:

“MR. WILDER: I want the record to show that Mr. Ritter’s starting off with an explanation to the Court of what kind ■ of case this was and I have not announced that I am ready for this Hearing. When this case was filed I requested a jury and later on I was advised that I didn’t put up a proper fee. I have now put up a jury fee. I have filed a sworn answer to this Plea in Abatement to the effect that we mailed the Industrial Accident Board notice not to abide. I feel like it is now a jury question and can be determined solely by a jury and we put up the fee and we see no reason for having this hearing because we have a fact question as to whether or not it was received. The law is quite clear that this certificate is not any conclusive evidence.”

The court proceeded to hear evidence on the motion without the aid of a jury and at the conclusion entered an order dismissing this case for the want of jurisdiction.

The appellant contends that the trial court erred (1) “in rendering judgment for dismissal for appellees because the issues presented raised a fact issue which should have been submitted to the jury for determination.” ; (2) “in sustaining evidence presented by the appellees as conclusive evidence and such evidence would not support the judgment.”; (3) “in rendering judgment for appellees because the judgment is contrary to the law and the evidence.”

Appellee in reply to appellant’s contentions contends that no fact issue existed for submission to a jury; further, that the preponderance of the evidence showed conclusively that the District Court of Gregg County, Texas, lacks jurisdiction in this instance. With appellee’s contentions we agree.

Under Article 8307, Sec. 5, V.T.S.C., the claimant was required to give notice of nonabidance within 20 days from the final ruling and decision of the Industrial Accident Board. This is a procedural step for an appeal from a final award of the Industrial Accident Board and compliance with this statute is mandatory and jurisdictional. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926); Lumbermen’s Reciprocal Ass’n v. Henderson, 15 S.W.2d 565 (Tex. Com.App., 1929, holding approved) ; American Employers’ Ins. Co. v. Scott, 33 S.W.2d 845 (Tex.Civ.App., Eastland, 1930, writ ref.); Fidelity & Casualty Co. of New York v. Millican, 115 S.W.2d 464 (Tex.Civ. App., San Antonio, 1938, writ ref.).

Unless the notice of nonabidance is timely given and suit thereafter is timely brought, the court has no jurisdiction to review the case. Tate v. Standard Accident Ins. Co., 32 S.W.2d 932 (Tex.Civ.App., Beaumont, 1930, writ ref.) ; American Employers’ Ins. Co. v. Scott, supra; Harris v. Texas Employers’ Ins. Ass’n, 257 S.W. 998 (Tex.Civ. App., Dallas, 1923, writ ref.).

The final ruling and award of the Board was made on the 26th day of August, 1966. Appellee offered in evidence a certified copy of an envelope of the law firm of Phenix & Wilder of Henderson, Texas, properly stamped, and addressed to the Industrial Accident Board at Austin, Texas, on which was written the Board’s number of appellant’s claim here involved. The envelope also bears the same certified mail number as shown on appellant’s postal receipt retained by her as evidence of the filing of the notice of nonabidance. It also bears the postmark of September 27, 1966, and the stamp of the Texas Industrial Accident Board showing that it was received on September 28, 1966. Appellant also offered in evidence a certified copy of appellant’s notice of nonabidance dated September 12, 1966, signed by claimant, Ella Yancy, and it also bears the stamp of the Industrial Accident Board showing it was received on September 28, 1966.

Appellant relies upon the testimony of her attorney, Bill Wilder, that the notice of nonabidance was deposited in the United States mail in Henderson, Texas, on the afternoon of September 12, 1966.

It is undisputed in the record that the notice of nonabidance was received by the Industrial Accident Board on September 28, 1966, which was 15 days after the 20 days allowed.

Even though the notice of non-abidance was deposited in the mail so that in due course it should have reached the Industrial Accident Board in Austin within the 20 days allowed, the undisputed evidence shows that it was not received by the Board until September 28, 1966. The notice must reach the Board within the 20-day period. McClure v. Georgia Casualty Co., 251 S.W. 800 (Tex.Com.App., 1923, judg. adopted) ; Tate v. Standard Accident Ins. Co., supra.

No such notice of nonabidance having been received by the Board within the 20-day period from the date of the award as provided by Art. 8307, Sec. 5, V.T.C.S., the trial court was without jurisdiction to proceed further in the case and properly dismissed the same. Fidelity & Casualty Co. of New York v. Millican, supra; Taylor v. Royal Indemnity Company, 276 S.W.2d 412 (Tex.Civ.App., Galveston, 1955, n. w. h.).

Appellant’s contentions are overruled and the judgment of the trial court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    J. E. ADAMSON’S ESTATE et al., Appellants, v. J. C. STROUD et al., Appellees.
    No. 11566.
    Court of Civil Appeals of Texas. Austin.
    March 6, 1968.
    Rehearing Denied March 27, 1968.
    Paul M. Branch, Kilgore; Spruiell, Low-ry, Potter, Lasater & Guinn, Charles F. Potter, Tyler, Barkley, Cutcher & Alderson, Jack R. Barkley, Taylor, for appellants.
    Gordon Wellborn & Rex Houston, Ronald D. Krist, Henderson, Joe B. McMaster, Georgetown, for appellees.
   PHILLIPS, Chief Justice.

This suit was filed by Texas Capital Corporation against Kilgore Petroleum Company, the Estate of J. E. Adamson, deceased, and E. D. Markham, to recover on a promissory note dated February 5, 1964, for the principal sum of $480,355.75 (the unpaid balance of which at the time of trial was $418,961.00), and to foreclose a deed of trust on properties owned by Kilgore Petroleum Company, oil properties in the Bethany Field, Panola County, Texas. The money had been loaned by Texas Capital to Kil-gore Petroleum. The note was signed by Kilgore Petroleum and its sole stockholders, J. E. Adamson and E. D. Markham. All signed as makers, however, appellants contend that Adamson and Markham signed for the accommodation of Kilgore Petroleum.

On September 29, 1964, pursuant to negotiations, J. C. Stroud and Triple S Oil Company (a partnership composed of Stroud, his wife and son) acquired from the Adam-son Estate and Markham all the capital stock of Kilgore Petroleum and certain other oil properties, in return for which Stroud signed the note to Texas Capital.

Texas Capital declined to release Adam-son and Markham at the time Stroud signed the note.

Texas Capital filed suit to recover on its note and to foreclose its deed of trust lien. It obtained a summary judgment and the property was sold at sheriff’s sale, purchased by J. C. Stroud for $143,000, which was credited on the note February 8, 1967.

In the suit, the J. E. Adamson Estate (referred to as Adamson) and Markham filed cross actions against Stroud and Triple S Oil company alleging that they had assumed the note to Texas Capital and asking for a declaratory judgment to this effect, and also for judgment over against Stroud and Triple S to the extent that Adamson and Markham might be compelled to pay the Texas Capital note.

The case at bar arose from this cross action and was tried before a jury. The jury found that Stroud did not agree to make the installment payments to Texas Capital and the court entered judgment that each of the three parties, Adamson, Markham and Stroud, should pay one-third of the obligation to Texas Capital, and declared that each of these parties was entitled to contribution on this basis to the extent that he might be required to pay in excess. That if any of the parties were insolvent or unable to pay their part, the other two should pay the obligation one-half each, with a right of contribution on that basis.

There was but one contested issue, whether Stroud agreed to make the payments to Texas Capital.

From this judgment Adamson and Markham have appealed.

We affirm.

Appellants are before this Court on four points of error, briefed together, being that the evidence shows as a matter of law that Stroud assumed to make the payments on the note to Texas Capital; the overwhelming preponderance of the evidence shows that Stroud assumed and agreed to make the payments on the note to Texas Capital; the error of the trial court in overruling Cross-Plaintiff’s-Appellant’s Motion for Instructed Verdict because the evidence clearly proved that Stroud had assumed to make the payments on the Texas Capital note; the error of the trial court in overruling Cross-Plaintiff’s-Appellant’s Motion for Judgment Notwithstanding the Verdict because the evidence clearly proved that Stroud had assumed to make the payments on the Texas Capital note.

We overrule these points.

Appellants contend that they, although signing as makers, were actually accommodation makers, Kilgore Petroleum Company being the accommodated party. This conclusion on behalf of the Appellants is presumptively founded on the fact that Kilgore Petroleum Company is a separate legal entity, and that it is actually the party that procured the oil properties by means of the note in question, and therefore, emerges as the accommodated party, with the Appellants being mere accommodation makers.

In analyzing Stroud’s testimony, Appellants state that there was never any agreement that the parties would be liable on the note one third each if he decided to quit. Appellants further state that this was Stroud’s legal conclusion, but never did he testify this was the agreement. The liability of the parties, in the absence of proof to the contrary, would be presumed to be as it appeared from the face of the note and no express agreement on the part of any of the parties as to equal liability of the others, is necessary in order for such to be the legal relation of the signers, one to the other. Lockett v. Farmers’ State Bank of Vernon, 205 S.W. 526 (Tex.Civ.App., Amarillo 1918, no writ). Culberson v. Hawkins, 321 S.W.2d 140 (Tex.Civ.App., Houston 1959, no writ).

If appellants were accommodation makers rather than co-makers, there would have to have been an agreement between the makers that J. C. Stroud would be solely responsible and liable on the note. No such agreement is to be found in the record and the jury concluded that there was no such agreement. Lockett and Culberson, supra. There is sufficient evidence to uphold these findings.

Mr. Stroud’s analysis of the transaction was that he was to inject additional capital into the operation of the oil properties, satisfy some back taxes and accrued operating expenses and that he was to lend his expertise in view of a profitable operation of the properties. Further, he was to sign the note made the subject of this lawsuit as a “co-maker.” The note was signed by Mr. Stroud and on the face it expressly designates him as a “co-maker.” Back operating expenses were satisfied. The payment of back taxes was fulfilled. If after a reasonable period of time had expired it appeared that through the injection of additional capital, and under Mr. Stroud’s management, the properties appeared to be unable economically to fulfill the installment payments falling due under the note, then in that event Mr. Stroud could cease operation of the properties and all of the parties would share in the payment of the note.

This is a logical and reasonable business transaction. It should be borne in mind that these oil properties were in distress. Production had been falling. Texas Capital Corporation wanted additional capital put into the operation. Markham and Adamson were unwilling to inject additional funds into the operation. If Mr. Stroud had been successful in increasing the production he would have benefited in that Kilgore Petroleum Company would own the balance of the oil reserves after deducting therefrom the amount of the note. Mr. Stroud testified that he would not have touched the transaction if he were to emerge as the only party liable under the note. Adamson and Markham received considerable benefits in that through Stroud an opportunity to save the wells was presented without the necessity of their having to inject additional funds into the operation. Moreover, if Stroud’s efforts proved to be unfruitful, nevertheless their over-all liability would be reduced by one-third. It is reasonable to assume that an experienced oil operator such as Mr. Stroud would not have entered into the transaction if the agreement was that he would indemnify his co-makers for any loss. It is reasonable to assume that Stroud would be welcome to try to increase the production and emerge as owner if successful and as a co-maker if unsuccessful. The burden was upon the appellants to prove an indemnity agreement and no express indemnity agreement was proved and no implied indemnity agreement can be discerned from the facts of the transaction. Moreover, the jury found there was no such agreement.

The judgment of the trial court is affirmed.

Affirmed.

      . Vernon’s Ann.Tex.Rev.Civ.Stat.Ann. Art. 5933, Secs. 24 and 29.


author: HUGHES, Justice.

text:
    AMERICAN GENERAL INSURANCE COMPANY, Appellant, v. Clementine KOHN, Appellee.
    No. 11583.
    Court of Civil Appeals of Texas. Austin.
    March 6, 1968.

      Clemens, Knight, Weiss & Spencer, George H. Spencer, San Antonio, for appellant.
    Byrd, Davis, Eisenberg & Clark, Don L. Davis, Austin, for appellee.
   HUGHES, Justice.

This is a workmen’s compensation suit in which appellee, Clementine Kohn, obtained a judgment against American General Insurance Company, appellant, for partial permanent benefits for personal injuries she sustained in the course and scope of her employment in Comal County.

The only point presented by appellant is that the trial court did not have jurisdiction of this case for the reason that appellee’s suit was not filed within twenty days after giving notice to the Industrial Accident Board of her intention to appeal as required by Sec. 5, Art. 8307, Vernon’s Ann.Tex. Civ.St.

The facts are not in dispute. They are: On April 25, 1965, the Industrial Accident Board entered a final award on appellee’s claim for workmen’s compensation benefits. On May 11, 1965, she filed her notice of her intention to appeal from the Board’s award. On May 31, 1965, one day after Memorial Day, at approximately 8:15 A.M., appellee’s counsel personally deposited at the United States Post Office in Austin, Texas, an envelope containing appellee’s original petition in this suit. The envelope, postage prepaid, was marked special delivery and was properly addressed to the District Clerk of Comal County, New Braunfels, Texas. Attached to the petition was a letter requesting it to be filed immediately upon receipt.

Prior to depositing the letter, appellee’s counsel had discovered that the State offices and the District Clerk’s office in Austin were closed on May 31, 1965. At approximately 8:00 A.M. appellee’s counsel attempted to telephone the District Clerk of Comal County, however, he received no answer when the call was placed.

Richard Philebar, Superintendent of Mails in New Braunfels, testified that in the normal course of events a letter mailed in Austin, Texas before approximately 10:30 A.M., would arrive in New Braun-fels at 12:29 P.M. on the same day and will be delivered within 2 hours from the time of its arrival. Appellee’s counsel had previously had similar mail delivered to the District Clerk of Comal County at New Braunfels on the same day it was mailed in Austin. It was stipulated that the District Clerk of Comal County did not have any post office box and that the District Clerk’s mail was delivered directly to the Clerk’s office. Mr. Philebar further testified that if he had heard over the radio or seen in the newspaper that the District Clerk’s office was going to be closed on a particular day, his office would make no attempt to deliver mail on that date; without such notice the post office would have delivered the mail. Mr. Phile-bar could not remember whether or not he thought the Clerk’s office was closed on May 31, 1965.

It was stipulated that although the District Clerk’s office was open on May 31, 1965, the Clerk received no mail on that day and the envelope containing appellee’s original petition was not delivered to the Clerk’s office until the next day, June 1, 1965, at 9:15 A.M. The petition was filed immediately upon receipt thereof at 9:20 A.M., June 1, 1965.

It is conceded by appellee that her petition was filed one day late. It is her position, however, that by depositing her original petition in the mail at a time when in the normal course of events, the petition would have been filed within 20 days from the date notice of intention to appeal was given, appellee has substantially complied with the provisions of Art. 8307, Sec. 5, under the well established rule that the workmen’s compensation laws should be liberally construed in favor of the claimant.

We are unable to agree with this position.

The requirement of Sec. S, supra, that suit be filed within twenty days after giving notice of intention to appeal is jurisdictional. Richards v. Consolidated Underwriters, 411 S.W.2d 436, Tex.Civ. App., Beaumont, writ ref.

The rule of liberality contended for by appellee, does not warrant our interpretation contrary to the plain, unambiguous wording of the statute. Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d 711. The portion of Sec. 5 with which we are here concerned is plain, unambiguous and not subject to construction.

As the court stated in Roberts v. Ohio Casualty Insurance Company, 256 F.2d 35, U.S. Court of Appeals, 5th Circuit, 68 A.L.R.2d 747, “Litigants cannot trifle with Art. 8307, Section 5. It goes beyond the ordinary statutes of limitations. Its requirements are jurisdictional.”

We will briefly discuss the cases upon which appellee relies.

Pacific Indemnity Co. v. Woodall, 253 S.W.2d 490, Tex.Civ.App., Fort Worth, writ ref., holds that the Workmen’s Compensation Act should be liberally construed in the employee’s favor, particularly as to the technical and procedural provisions of the Act. We agree. However, as stated, the provision of the Act before us is not subject to construction and it is not technical. It is jurisdictional.

Lewis v. American Surety Co., 143 Tex. 286, 184 S.W.2d 137, held that the court would liberally construe notices and claims given under the Act to determine their sufficiency.

Tate v. Standard Accident Ins. Co., 32 S.W.2d 932, Tex.Civ.App., Beaumont, writ ref., holds that notice to the Industrial Accident Board of an employee’s intention to appeal from an award was timely when sent by registered mail and notice of its receipt was placed in mail box of the Board within the time allowed although not called for until after the time had elapsed. The Court stated that the failure of the Board to receive notice was not due to any fault of the employee but was “ * * * solely because of the absence of the entire board and its office force from its office * ⅜ ⅜

This case is inapplicable here for the reason that the District Clerk’s office was open on the last day for filing and the Clerk did not have any control over or access to the petition which was under the exclusive control of the United States mail. It was not the fault of the District Clerk that appellee’s petition was not timely received or filed. In point here adversely to appellee is Taylor v. Royal Indemnity Company, 276 S.W.2d 412, Tex.Civ.App., Galveston, n. w. h.

In Texas Indemnity Ins. Co. v. Williamson, Tex.Civ.App., El Paso, writ dismissed, opinions on former appeal found in 59 S. W.2d 232, and in 127 Tex. 71, 90 S.W.2d 1088, it was held (59 S.W.2d) that the evidence sustained a finding that an employee’s petition was received for filing by the District Clerk within the time allowed and that the petition was considered as filed as of such time. A similar fact issue was before the court in Kirby v. Travelers Ins. Co., 370 S.W.2d 912, Tex.Civ.App., Beaumont, writ ref., n. r. e. There is no fact issue before us as to whether appellee’s petition was timely received by the District Clerk.

In Travelers Ins. Co. v. Johnson, 131 S.W.2d 242, Tex.Civ.App., Beaumont, writ dismissed, correct judgment, it was held a notice of intention to appeal received by the post office in Austin on the 19th day and made available to the Board at such time was to be considered as received and filed by the Board as of such time. This, in effect, is the same holding as made in Tate, supra. It is not applicable here.

The last supporting authority cited by appellee is Travelers Ins. Co. v. Machann, 188 F.2d 828 (Sth Circuit), dissenting opinion 190 F.2d 84, in which an erroneous timely filing with the county clerk rather than with the district clerk was sustained as timely under what the court deemed to, be the liberal rule of construction by the Texas Courts of the Workmen’s Compensation Act. This holding is clearly inconsistent with Texas law as noted in the dissenting opinion. Furthermore, the facts of that case are not comparable to the facts of this case.

There is no basis for us to hold that the mandatory and jurisdictional requirement of Section 5, supra, that suit be filed within twenty days after giving notice of intention to appeal be disregarded in this case. Accordingly, we reverse the judgment of the Trial Court and render judgment dismissing appellee’s suit.

Reversed and rendered.


author: GRISSOM, Chief Justice.

text:
    Mark HORTENSTINE et al., Appellants, v. Arthur McKLEMURRY, Appellee.
    No. 4218.
    Court of Civil Appeals of Texas. Eastland.
    March 8, 1968.
    Rehearing Denied March 22, 1968.

      McCulloch, Ray, Trotti & Hemphill, Ross H. Hemphill, Dallas, for appellants.
    Corsbie & Tandy, W. L. Tandy, Waco, for appellee.
   GRISSOM, Chief Justice.

Arthur McKlemurry sued Mark Horten-stine and wife, Katherine, and also Henry Hortenstine and Kay-Tex, Inc., in trespass to try title to a one-half interest in realty which, for convenience, will be referred to as the DeVille Apartments. He alleged the common source of the title of all parties was Big D. Apartments, which, on March 8, 1965, executed a deed conveying said property to Henry and Mark Hortenstine. Plaintiff alleged that he would introduce said deed for the purpose of showing common source of title and he attached it to his petition which was filed more than 3 days before the trial. McKlemurry further alleged that on July 19, 1965, McKlemurry obtained a judgment against Mark Horten-stine for $59,110.94; that execution was duly issued and levied and a Sheriff’s sale duly held at which McKlemurry bought Mark Hortenstine’s interest in said apartments and the Sheriff, on May 3, 1966, executed and delivered a deed conveying Mark’s interest to him. He alleged that on March 29, 1966, Henry Hortenstine had purported to convey Mark’s interest in said property to a newly formed corporation, to-wit, Kay-Tex, Inc., which was controlled and substantially owned by Henry. Mc-Klemurry sued for the rental value and for title and possession of a one-half interest in the DeVille Apartments. McKlemurry further alleged that four days after he obtained said judgment and while Mark Hortenstine was still the owner of said one-half interest Mark fraudulently executed a deed thereto to his father; that Mark then had no other property in Texas subject to execution sufficient to satisfy said judgment and said deed was executed with intent to delay, hinder and defraud McKlemurry in the collection of his judgment and that said deed was void by virtue of Articles 3996 and 3997, wherefore, he prayed that it be cancelled.

Mark Hortenstine and wife and Henry Hortenstine and Kay-Tex, Inc., pleaded not guilty. They alleged that the Sheriff’s sale to McKlemurry was void because Mark had other property in Texas subject to execution sufficient to satisfy McKlemurry’s judgment but that Mark was not given an opportunity to select which of his properties was to be sold to satisfy said judgment and further, that the Sheriff’s sale of Mark’s interest in the DeVille Apartments to McKlemurry for $15,000.00 was for a grossly inadequate consideration. They prayed that McKlemurry take nothing; that the Sheriff’s deed to McKlemurry be held void and that the cloud thereby cast upon their title be removed.

A jury found (1) that the deed from Mark to his father was delivered with intent to delay, hinder and defraud McKle-murry in the collection of his judgment; that (5) when Mark executed and delivered the deed to his father Mark was not possessed of other property in Texas subject to execution sufficient to pay his debts and (6) that Mark’s interest was not sold by the Sheriff to McKlemurry for a grossly inadequate price. The jury also found that (10) Mark and Henry Horten-stine entered into a conspiracy to hinder, delay and defraud McKlemurry in the collection of his judgment and (11) that Mc-Klemurry was thereby damaged $4,000.00.

The court rendered judgment cancel-ling the deed executed by Mark and Katherine to Henry Hortenstine on July 23rd, 1965. It found that Mark was and had been continuously since that time the true owner of a one-half interest in the DeVille Apartments and that Mark’s interest was conveyed by the Sheriff to McKlemurry and the Sheriff’s sale was in compliance with law. The court quieted the title to a one-half interest in McKle-murry and rendered a money judgment against the defendants for $2,533.62. They have appealed.

The appellants contend that the court committed reversible error in admitting plaintiff’s exhibits 10 and 12 in evidence to show common source of title because they had not been filed with the papers in the case for three days before the trial, as required by Texas Rules of Civil Procedure, rule 798. Plaintiff’s exhibit 10 was a certified copy of the deed executed by Mark and wife on July 23, 1965 to his father purporting to convey Mark’s undivided half interest in the property in controversy. Plaintiff’s exhibit 12 was a certified copy of Henry Hortenstine’s deed purporting to convey that interest to Kay-Tex, Inc. Rule 798 provides that a plaintiff may make proof of common source by introducing certified copies of deeds showing a chain of title to the defendant emanating under and from such common source. But it requires that “Before any such certified copies shall be read in evidence, they shall be filed with the papers of the suit three days before the trial and the adverse party served with notice of such filing — ”

Contrary to appellee’s contention, the deed from Big D. Apartments, Inc., to Henry and Mark Hortenstine, the only certified copy of a deed filed with the papers of the case as required by Rule 798, was not, alone, sufficient to establish common source under T.R.C.P. 798. Mc-Klemurry was required to prove a title emanating from the common source under which both he and defendants claim and, further, that his title from that source was superior to that of the defendants. A good statement of the established rule is found in Hovel v. Kaufman (Tex.Com.App.), 280 S.W. 185, 188, wherein the court said:

“The correct rule is that, whenever a plaintiff in a suit in trespass to try title, undertakes to sustain his claim of title by proof of common source, he must show, in order to make a prima facie case for himself, not only that both he and the defendant claim title under a common source, but also must show that the title emanating from the common source which the plaintiff claims is superior to that claimed by defendant, and that plaintiff holds such title.” The court cited Keys v. Mason, 44 Tex. 140; Sebastian v. Brown, 75 Tex. 291, 12 S.W. 986; Howard v. Masterson, 77 Tex. 41, 13 S.W. 635; Rice v. St. Louis, A. & T. Railway Co., 87 Tex. 90, 26 S.W. 1047, 47 Am.St.Rep. 72; and Simmons Hardware Co. v. Davis, 87 Tex. 146, 27 S.W. 62.

See also Lindley v. Mowell, Tex.Civ.App., 232 S.W.2d 256, 260 (Ref. n. r. e.); Jackson v. First Nat. Bank, Tex.Civ.App., 290 S.W. 276, 277 (Writ dism.); Tarter v. Frazier, Tex.Civ.App., 159 S.W.2d 168, 171 (Ref. W.M.); Tapp v. Corey, 64 Tex. 594, 596 and Word v. Houston Oil Co. of Texas, Tex.Civ.App., 144 S.W. 334, 338 (WR).

Contrary to appellee’s contention, when the statement of facts is studied, it is clear that appellants objected to the introduction of said certified copies because they had not been filed with the papers of the case for three days before the trial as required by Rule 798. That rule gave plaintiff the right to prove common source by certified copies of recorded deeds. But, it expressly required that before such copies were introduced they must be filed among the papers of the case for 3 days before the trial and notice thereof given. The rule provides a method of proving common source of title by certified copies of instruments on file with the County Clerk only when such copies are filed and notice given as required by that rule. Johnson v. Stickney, Tex.Civ.App., 152 S.W.2d 921, 926. The reasoning in Rio Grande & E. P. R. Co. v. Milmo Nat. Bank, 72 Tex. 467, 10 S.W. 563, 564, and Hinton v. Uvalde Paving Co., Tex.Civ.App., 77 S.W.2d 733, 735 (Writ ref.), compels that conclusion. See also 56 Tex.Jur.2d, Section 127, page 268.

Said deeds contained evidence essential to McKlemurry’s recovery which was not otherwise presented. When appellants first objected to introduction of certified copies because they had not been filed among the papers of the case for three days as required by Rule 798, the court called appellee’s attention to the fact that he had the burden of establishing a common source of title and showing that both his title and defendants emanated from that source and that his title from that source was superior. Appellee and the court were given notice by appellants’ objections that they were insisting upon compliance with the requirement of Rule 798, that before certified copies were introduced they must be filed with the papers for three days before the trial. Under the circumstances, since the judgment rests upon such improper evidence, we are forced to conclude that their admission constituted reversible error. The judgment is reversed and the cause is remanded.


author: BARROW, Chief Justice.

text:
    COVINGTON-COMPTON CO., Inc., Appellant, v. MEDINA AGRICULTURE PRODUCTS, INC., Appellee.
    No. 14671.
    Court of Civil Appeals of Texas. San Antonio.
    March 6, 1968.
    Fisher, Roch & Blackstock, Stuart Kin-ard, Houston, for appellant.
    Vance & Vance, Hondo, for appellee.
   BARROW, Chief Justice.

This is a venue action involving Subd. 5, Art. 1995, Vernon’s Ann.Civ.St. Appellee, a Texas corporation, brought this suit for debt against appellant, a Texas corporation, with its principal office and place of business in Harris County, Texas, upon an itemized account verified in accordance with Rule 185, Texas Rules of Civil Procedure. Appellant filed a plea of privilege, but did not include in same a sworn denial of the justness of appellee’s claim. Said plea of privilege was overruled after a non-jury trial.

Appellee’s suit is based upon a written contract whereby it agreed to sell a described product to appellant. Paragraph Two, section c. of said contract provides: “Covington agrees to pay Medina for Product ordered in writing by Covington, which payment shall be made to Medina at its home office in Hondo, Texas within thirty (30) days after delivery of Product to premises of Covington or its consignees.” Appellee alleged that under the terms of said contract and based upon orders in writing, a balance of $15,891.23 is due and owing as shown by the itemized account attached to said petition. Appellee’s sworn account was introduced into evidence at the hearing of the plea of privilege, together with the written contract which was stipulated to be the contract referred to in appellee’s petition. No other evidence was introduced by either party.

To sustain venue under Subd. 5, supra, it is necessary to prove: (I) that the defendant is a party reached by the statute; (II) that the claim is based on a written contract; (III) that the contract was entered into by the defendant or by one authorized to bind him; (IV) that the contract by its terms provides for performance of the obligation sued upon in the county of suit. Garcia v. Kingsville First Savings & Loan Assn., 415 S.W.2d 537 (Tex.Civ.App. — San Antonio 1967, writ dism’d); McDonald, Texas Civil Practice, § 4.11.1; Clark, Venue in Civil Actions, Chap. 5, § 6.

Appellee’s verified itemized account which was received into evidence was prima facie evidence of the existence of its cause of action in the absence of a verified denial in appellant’s plea of privilege of the justness of same. Rule 185, supra; Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758 (1956); Dina Pak Corp. v. May Aluminum, Inc., 417 S.W.2d 419 (Tex.Civ.App.—Corpus Christi 1967, no writ); Haney v. Henry, 307 S.W.2d 649 (Tex.Civ.App. — Amarillo 1957, no writ); McDonald, supra, § 4.43.1 (c).

Appellant urges, however, that there is no evidence that this cause of action is based on a contract in writing, in that there is no evidence that each invoice was based upon a written order from appellant. Since the verified petition alleged the account was based upon a written contract and this contract, which was introduced in evidence, provides for payment in Hondo, the county seat of Medina County, venue is properly maintainable under this exception to the venue statute. The validity of the debt will be determined at the trial on the merits.

In Southwestern Investment Co. v. Allen, 160 Tex. 258, 328 S.W.2d 866 (1959) the Supreme Court considered the venue facts required under this exception. The following rule from Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (1942), was cited with approval: “the single venue fact which would cast venue under exception 5 is that the defendant had contracted in writing to perform the alleged obligation in the county where suit is filed or at some definite place therein which is named in the writing.” See also Tyson v. Seaport Grain, Inc., 388 S.W.2d 731, 737 (Tex.Civ.App.—Corpus Christi 1965, writ dism’d); Arnold v. Wheeler, 304 S.W.2d 368, 369 (Tex.Civ.App.—San Antonio 1957, writ ref’d n. r. e.).

The trial court did not err in overruling appellant’s plea of privilege. The judgment is affirmed.

      . If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.


author: PEDEN, Justice.

text:
    William H. WILLIS, Appellant, v. Marion C. WILLIS, Appellee.
    No. 15256.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    March 7, 1968.
    Bill Hilford, Houston, for appellant.
    Sue Walker, Houston, for appellee.
   PEDEN, Justice.

This is an appeal by William H. Willis from an order increasing the amount of the child support payments which he had been ordered to make when the parties were divorced by decree signed on January 9, 1965. One of their five children reached the age of 18 in August, 1966, so the amount of $340.00 per month as ordered in the divorce decree had diminished by one-fifth, to $272.00 per month.

After a hearing on appellee’s motion, the trial court on August 31, 1967 signed an order increasing the monthly payments for the four children still under 18 to $340.00 per month until the third youngest child reaches the age of 18, and thereafter to $250.00 per month until the youngest child is 18 years old.

The question before us is whether the trial court abused its discretion in increasing the support payments. Appellant contends there was no evidence of a material change of conditions; in the alternative, he asserts that the order was against the great weight of the evidence.

We will consider the evidence in the light most favorable to support the ruling of the trial court. 4 Tex.Jur.2d § 747, Appeal and Error — Civil. We find that there is sufficient evidence of the increase in the children’s expense to show a material change of conditions which would justify the increase in support payments. We refer in particular to the need to send one daughter to a boarding school and to the expense involved in having sent her there for two months.

Appellant contends that it is also necessary for appellee to show that appellant’s income has increased since the amount of the payments was fixed at the time of the divorce.

The varying financial circumstances of the responsible parent and his ability to pay are to be considered in determining the amount of child support to be ordered by the court, under Article 4639a, Vernon’s Annotated Civil Statutes, as well as the needs and requirements of the children and their surroundings and circumstances. Angel v. Todd, 368 S.W. 2d 224 (Tex.Civ.App., 1963, no writ hist.), and cases cited.

Appellee has failed to demonstrate that appellant’s current income is greater than it was when the amount of the child support was last fixed, so we will assume it remains unchanged. Martinez v. Gutierrez, 66 S.W.2d 678 (Tex.Com.App., 1933).

The trial judge is properly given broad discretion in fixing the amount of child support payments. He may restrict the amount because of the children’s limited need or the parent’s limited ability to pay. Later, if a change of condition be shown, such as an increase in the children’s needs, it will be within his discretion to order an increase in support payments whether the parent’s ability to pay has increased or not, unless the amount previously ordered paid represented the upper limit of the parent’s ability to pay.

In the case before us the appellant has offered no evidence as to a decrease in his income or an increase in his expenses. The order appealed from returns the amount of support to $340.00 per month, which the trial judge in the divorce had determined appellant was able to pay. Appellant is now paying support to one less child, but the needs of the others have increased.

We hold that the order increasing the amount of the child support payments was not an abuse of discretion and that there was sufficient evidence to support the order. We overrule appellant’s points of error.

The judgment of the Trial Court is affirmed.


text:
    Martine LEE, Sr., and Louvenia Lee, Next Friends of Martine Lee, Jr., Appellants, v. The STATE of Texas, Appellee.
    No. 14673.
    Court of Civil Appeals of Texas. San Antonio.
    March 6, 1968.
    Evans & Marshall, San Antonio, for appellants.
    James E. Barlow, Miles L. Johnsen, San Antonio, for appellee.
   BARROW, Chief Justice.

This is an appeal pursuant to Art. 2338-1, § 21, Vernon’s Ann.Civ.St., from a judgment of the Juvenile Court of Bexar County, entered on December 28, 1966, revoking probation of a judgment of May 14, 1966, and committing Martine Lee, Jr., a fourteen-year-old boy, to the custody of the Texas Youth Council for an indeterminate period not to exceed the time when he shall have become twenty-one years of age. In said judgment, the Juvenile Court also overruled appellants’ petition to revoke the judgment of May 14, 1966, and to retry the question of delinquency. All of appellants’ points on this appeal relate to the May 14th judgment.

On May 11, 1966, a hearing was had at which Martine Lee, Jr., who was represented by a member of the law firm prosecuting this appeal in his behalf, was adjudged a delinquent child because of the commission of a felony on December 12, 1965. The court suspended his commitment to the Texas Youth Council and placed said minor on probation in the care, custody and control of his parents under supervision of the Bexar County Juvenile Probation Department. There was no appeal from that judgment.

On November 22, 1966, a motion was filed by appellee to revoke this probation, wherein it was alleged that the minor had violated his probation by committing another felony and by breaking the rules and regulations of his school authorities. The Juvenile Court, after a full hearing in which said minor was again represented by his chosen attorneys, found that the minor had violated the terms of his probation in the alleged respects and entered judgment revoking the probation. The child was immediately committed to the care, custody and control of the Texas Youth Council and no recognizance was sought from this Court.

Appellee has filed a motion to dismiss wherein it asserts that the cause is now moot in that, as shown by the affidavit of the Executive Director of the Texas Youth Council, said minor made a satisfactory adjustment while under the jurisdiction of the Texas Youth Council and was discharged from its custody on December 4, 1967, pursuant to the provisions of Art. 5143d, § 14, Vernon’s Ann.Civ.St. Therefore, the minor has fully complied with the judgment of May 14, 1966.

As a general rule, questions involved in an appeal become moot when the judgment is complied with by the complaining party and an appellate court will not retain jurisdiction to thereafter decide such an appeal since appellate courts will not decide moot or abstract propositions. Toudouze v. Urban Renewal Agency, 404 S.W.2d 821 (Tex.Civ.App.—San Antonio 1966, writ ref’d n. r. e.) ; City of Mesquite v. Rawlins, 399 S.W.2d 162 (Tex.Civ.App.—Tyler 1966, writ ref’d n. r. e.); Anderson v. Crain Chemical Co., 381 S.W.2d 364 (Tex.Civ.App.—Dallas 1964, no writ); Parr v. First State Bank of San Diego, 307 S.W.2d 309 (Tex.Civ. App.—Eastland 1957, no writ); 3 Tex. Jur.2d, Appeal and Error—Civil, §§ 50-55. A similar rule has been followed by the Court of Criminal Appeals. See Gates v. State, 332 S.W.2d 333 (Tex.Crim.App.1960); Mayes v. State, 214 S.W.2d 791 (Tex.Cr.App.1948).

Since the amendment of Sec. 5, Art. 2338-1, effective August 30, 1965, the jurisdiction of the juvenile court of a delinquent child continues until the child is discharged by the court or until he becomes twenty-one years of age unless committed, to the Texas Youth Council. Cf. Lazaros v. State, 228 S.W.2d 972 (Tex.Civ.App.—Dallas 1950, no writ). Here the minor was committed to the care, custody and control of the Texas Youth Council, but he has now been discharged by this agency. The appeal is therefore moot.

The proper procedure where a case becomes moot on appeal was restated by the Supreme Court as follows: “The rule has long been established in this court that when a case becomes moot on appeal, all previous orders are set aside by the appellate court and the case is dismissed.” Boatright v. City of Mineral Wells, 415 S.W.2d 901 (Tex.Sup.1967); Appellate Procedure in Texas, § 18.21.

The judgment of the trial court is therefore set aside and this case dismissed.

      . Acts 1965, 59th Leg. p. 1256, Ch. 577, § 2, eff. Aug. 30, 1965; Acts 1967, 60th Leg. p. 1083, Ch. 475, § 3, eff. Aug. 28, 1967.


author: MOORE, Justice.

text:
    Mrs. J. A. STUBBLEFIELD, Appellant, v. The STATE of Texas et al., Appellees.
    No. 315.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 8, 1968.
    Rehearing Denied March 28, 1968.

      Adams, Granberry & Hines, Chester V. Hines, Crockett, for appellant.
    Nat Patton, Jr., County Atty., Houston County, Crockett, for appellees.
   MOORE, Justice.

This is an appeal from a judgment in a condemnation case.

The State of Texas, acting by and through the Commissioners’ Court of Houston County, filed a petition with the County Judge seeking to condemn, for highway purposes, a strip of land owned by appellant, Mrs. J. A. Stubblefield, situated in Houston County, Texas, and described as follows:

“7.33 acres of land, more or less, same being a part of and out of a 160 acre tract in the Berry J. Bray Survey, Abst. 213 and a 30 acre tract in the D. Stilts Survey, Abst. 960, Houston County, Texas; which 7.33 acres of land, more or less, is more particularly described as follows:
“BEGINNING at a point on the proposed west right-of-way line of F.M. 2545, said point bears West 1701.5 feet from the northwest corner of said 160 acre tract and bears West 51.5 feet from Engineers’ Centerline Station 202+45;
“THENCE East 103.0 feet to a point in the east right-of-way line, said point being 50 feet from and at right angles to Engineer’s Centerline Sta. 202+32.8;
“THENCE S 14° 20' W along said east right-of-way line, a distance of 1427.5 feet to the beginning of a curve to the left with central angle of 6° 55' and radius of 2814.93 feet;
“THENCE in a southwesterly direction along said curve 345.8 feet to the end of the curve, being 50 feet from and at right angles to Engineers’ Centerline Station 220+06.1;
“THENCE S 7° 25' W continuing along said east right-of-way line, a distance of 1704.4 feet to a point in the west boundary line of said 30 acre tract, said point being 50 feet from and at right angles to Engineers’ Centerline Station 237+10.5;
“THENCE N 3° 00' W, 553.2 feet to a point in the west right-of-way line, said point being 50 feet from and at right angles to Engineers’ Centerline Sta. 231+66.5;
“THENCE N 7° 25' E along said west right-of-way line a distance of 1160.4 feet to the beginning of a curve to the right with central angle of 6° 55' and radius of 2914.93 feet;
“THENCE in a northeasterly direction along said curve 345.8 feet to the end of the curve, being 50 feet from and at right angles to Engineers’ Centerline Station 216+60.3;
“THENCE N 14° 20' E continuing along said west right-of-way line, a distance of 1403.1 feet to the place of beginning.”

The petition alleged that the fee simple title was owned by appellant, Mrs. J. A. Stubblefield, and she was named as the sole and only party defendant.

The County Judge appointed Special Commissioners, who gave proper notice to appellant and held a hearing, after which they rendered their award. The decision and award of the Special Commissioners described the 7.33 acre tract by a metes and bounds description which was identical with that contained in the petition. The award, however, in addition to describing the 7.33 acre tract, went further and described a 0.14 acre tract stating that it was also being condemned and described the same as follows:

“A part of and out of the D. Stilts Survey, A-960, Houston County, Texas, and located approximately 4.5 miles Southwest of Kennard on proposed F.M. Hwy. 2545;
“Being on the East side of proposed F.M. 2545, a strip or parcel of land 75 feet long and 80 feet wide, 40 feet on each side of a channel centerline, and containing 0.14 acres of land more or less, said centerline being described as follows:
“BEGINNING at a point 50 feet to the left and at right angles to Engineer’s Centerline Station 235+25;
“THENCE S 82-35 E, 75.0 feet to the end of said strip.”
The award of the Special Commissioners further recited:
“That on the 13th day of January, 1964, said Special Commissioners did convene, and the following named parties appeared in person or by their attorneys:-and announced ready for such hearing, and said Special Commissioners proceeded to hear evidence as to the damages which will be sustained by the owner or owners, by reason of the taking of said easement and, after hearing and considering such evidence, said Special Commissioners did find and determine and accordingly assess damages to be paid by the County of Houston, according to the rules of damages set fowrth in Article 3265, Revised Civil Statutes of Texas, in the total' amount of One thousand three hundred ninety-seven and 40/100 Dollars ($1,397.-40). For fences and gates. This sum to be divided between Mrs. J. A. Stubble-field and Gordon Stubblefield equally. This being the same tract of land owned by Mrs. J. A. Stubblefield and Gordon Stubblefield. Same being 7.33 and 0.14 acres.” (Emphasis supplied.)

Appellant, Mrs. J. A. Stubblefield, timely filed her objection to the award and thereby perfected her appeal to the County Court. The trial in the County Court of Houston County was before a jury. The cause was submitted to the jury in three Special Issues. In response to Special Issue No. 1, the jury found that the “market value of the strip condemned” was $733.00. In answer to Special Issues 2 and 3, the jury found that the value of the defendant’s remaining tract of land exclusive of the strip condemned immediately before the strip was taken was $21,267.00, and that the market value of the remainder immediately after the taking was $23,925.30.

The trial court rendered judgment on the verdict awarding appellant the sum of $733.00 for the land taken and denied appellant a recovery for any damages to the remainder. The judgment recited as follows:

“ * * * the Plaintiffs shall be invested with and shall have and recover of and from said Defendant all of the right title and interest for right-of-way purposes for, in, over, and upon the following described tract of land; and the Defendant shall be divested of the fee simple title, same being all of her right title or interest in and to the following land; said land being taken for right-of-way purposes being an undivided one-half (Vz) interest in and to 7.33 acres of land and 0.14 acres (emphasis supplied) out of the hereinafter described tract of land located and situated in Houston County, Texas and described as follows:
“TRACT ONE:”
(Here follows a metes and bounds description identical with that in the petition quoted above.)
“TRACT TWO:”
(Here follows a metes and bounds description of a 0.14 acre tract, identical with the 0.14 acre tract described in the award of the Special Commissioners.)

After filing a motion for new trial, appellant duly perfected her appeal from the judgment. The record before us consists of a transcript and an agreed Statement of Facts in an abbreviated, narrative form.

While appellant attacks the judgment by 19 Points of Error, neither of the points raises the question of fundamental error. In view of our conclusion that the judgment is fundamentally erroneous, a discussion of the appellant’s points will not be necessary.

It is now settled that the Courts of Civil Appeals have the authority and duty to consider fundamental error apparent upon the face of the record, though not assigned since the adoption of the Rules of Civil Procedure. That the trial court exercised jurisdiction when none existed is fundamental error. Rule 374, T.R.C.P.; Glenn v. Armstrong (Tex.Civ.App.) 284 S.W.2d 165; Murray v. Brisco (Tex.Civ. App.) 209 S.W.2d 976; Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979.

We think fundamental error is apparent upon the face of the record for the following reason. Appellees’ petition in condemnation described only a 7.33 acre tract. No mention was made of a 0.14 acre tract. Although the 0.14 acre tract was not mentioned in the petition, both the award of the Special Commissioners and the judgment show that the condemnor was awarded title and possession of a 0.14 acre tract out of a 30-acre tract owned by appellant in the D. Stilts Survey. An examination of the description of the 0.14 acre tract reveals that this tract was not a part of the highway right-of-way proper, but was a strip of land adjoining the right-of-way on the east side thereof, which the state apparently sought to condemn for drainage purposes. Since the judgment attempts to condemn a strip of land not described in the petition for condemnation, it is clearly erroneous upon the face of the record.

Section 1 of Vernon’s Ann.Civ. Statutes, Art. 3264, provides that the statement in writing required to be filed by the party desiring to condemn real estate “shall describe the land sought to be condemned.” It has been held that “if this be not so done as to identify the land to be taken, the jurisdiction of the tribunal having power to condemn never attaches.” Parker v. Ft. Worth & D. C. Ry. Co., 84 Tex. 333, 19 S.W. 518, 519; Wooten v. State, 142 Tex. 238, 177 S.W.2d 56.

It is a well settled rule that the County Court does not acquire jurisdiction to condemned land which is not described in the statement for condemnation, especially where there is nothing in the statement to suggest that the condemning authority intended to take the same. State v. Nelson, 160 Tex. 515, 334 S.W.2d 788. Consequently, since the 0.14 acre tract was not described in the appellee’s petition, the jurisdiction of the trial court with regard to such tract never attached and as a result, the judgment condemning this particular tract was void.

Moreover, the verdict shows that the damages assessed by the jury in the amount of $733.00 were for both tracts taken as a unit. Although the trial court unquestionably had jurisdiction over the 7.33acre tract, the court had no jurisdiction over the 0.14 acre tract and for that reason, the verdict and judgment assessing damages for the combined acreage cannot be sustained. Since the verdict combines the damages to both tracts, it is impossible to apportion the damages so as to sustain the judgment upon the 7.33 acre tract and to reverse and render as to the 0.14 acre tract. Consequently, we have no alternative other than to reverse and remand the cause for another trial. Rule 434, T.R.C.P.; Nelson v. State (Tex.Civ.App.) 324 S.W. 2d 898, rev. on other grounds, 160 Tex. 515, 334 S.W.2d 788.

While further discussion is not necessary, since it appears that the trial court has attempted to adjudicate title, we think some additional remarks would be appropriate. The record shows that the 7.33acre right-of-way tract was laid out in such a manner that it straddled the common boundary line between land owned by appellant and other lands which were owned by her brother-in-law, Gordon Stubblefield. The state, rather than filing one suit against both appellant and Gordon Stubblefield, filed the present suit against the appellant alleging that she was the sole owner of the fee simple title of the 7.33 acre tract. At the same time, as we understand the record, the state also filed a separate condemnation proceeding against Gordon Stubblefield, alleging that he owned the fee simple title to the said 7.33acre tract. At the time of trial, appellant filed a motion to consolidate the two suits. The motion was overruled and the cause proceeded to judgment against the appellant, Mrs. J. A. Stubblefield, only. The record fails to show just how much of the 7.33 acre right-of-way tract crossed over lands owned by appellant or what part of the 7.33 acre tract crossed over the lands owned by Gordon Stubblefield. Apparently, the trial court concluded that the evidence justified a finding that they each owned an undivided one-half interest in the land sought to be condemned. At any rate, the judgment shows that the court attempted to adjudicate the title. This the court was without power to do, since the County Court had no jurisdiction to decide questions of title. Gandy v. State (Tex. Civ.App.) 319 S.W.2d 375.

After considering the entire record, with its numerous deficiencies and irregularities, it seems to us that we are confronted here with a situation similar to that disclosed in Buchanan v. Jean, 141 Tex. 401, 172 S.W. 2d 688, 689, wherein Chief Justice Alexander remarked: “The whole proceedings were carried on in such an irregular manner that the case cannot be made to fit into any standard pattern or rule of decision.”

In view of another trial, we suggest that with respect to the 7.33 acre tract, the petition in condemnation be amended so as to specifically describe, by a metes and bounds description, the land owned by appellant which the state seeks to condemn.

The judgment of the trial court is reversed; the proceeding as to the 0.14 acre tract is dismissed; and as to the 7.33 acre tract, the cause is remanded.

Reversed and remanded.


author: SAM D. JOHNSON, Justice.

text:
    John H. WAY, Appellant, v. Veronica FISHER, Appellee.
    No. 69.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    March 6, 1968.
    J. R. Ramsey, Houston, for appellant.
    Carol S. Vance, Dist. Atty., R. H. Elder, Asst. Dist. Atty., Houston, for appellee.
   SAM D. JOHNSON, Justice.

This suit was initiated by appellee, Veronica Fisher, in the District Court of Polk County, Iowa, against the appellant, John H. Way, under the Uniform Support of Dependents Law of the State of Iowa, Chapter 2S2A.1 et seq., which is substantially similar to the Uniform Reciprocal Enforcement of Support Act of the State of Texas, the responding state, praying for an order of the court to be directed to the appellant, a resident of Harris County, State of Texas, for support for the benefit of the appellee’s six minor children.

Based on appropriate action in the District Court of Polk County, Iowa, the intiat-ing state, this action was forwarded to the District Clerk of Harris County and duly filed and docketed. Citation was issued on June 1, 1967, and was personally served on appellant on that same date. Appellant, through his attorney, filed his written answer in the form of a general denial on June 16, 1967.

Subsequently, on July 17, 1967, the cause came to be heard in the Court of Domestic Relations of Harris County. The appellant did not personally appear for that hearing, but appeared by and through his attorney of record through whom the appellant’s answer had been previously filed. The trial court entered an order that, among other thing's, recited the appearance of appellee by and through the State’s attorney and the appearance of the appellant by and through his attorney, and the announcement of ready for the hearing upon the petition. The court then found that the sum of $30.00 per week was a fair and reasonable sum of support and entered an order requiring said payments to begin July 21, 1967.

The case comes before this court on a statement of facts of less than two pages that was agreed to by the attorneys. It must be accepted as reciting essentially what transpired on the date set for the hearing, that is, the appearance of the attorneys, the finding and order of the court. It further recites that no instruments were introduced, that no exhibits were presented, that no witnesses appeared, that no testimony was introduced, and that no stipulations were made.

Appellant contends that judgment should have been granted for him in that there was no evidence introduced by the plaintiff on which a judgment for appellee could be based and for the further reason that ap-pellee failed to prove a prima facie case. The appellee responds that this was an entry of a default judgment, and a finding that appellant owes a duty of support is justified when the appellant fails to appear and present a defense.

This is not a situation controlled by Rule 239, Texas Rules of Civil Procedure, providing for judgment by default. Here the appellant had timely filed an answer and his attorney of record was before the court.

The essential question presented is whether or not a judgment of the trial court of this state, as the responding state, under the Uniform Reciprocal Enforcement of Support Act, Article 2328b-l et seq., may be supported in such circumstances. We conclude that it cannot.

In Neff v. Johnson, Tex.Civ.App., 391 S.W.2d 760, no writ hist., a non-resident mother brought suit under the Uniform Reciprocal Enforcement of Support Act and the trial court in this state ordered monthly support and maintenance of children’s payments. The appellate court there found the evidence at the hearing insufficient to support the trial court’s judgment. The court there stated, “Incompetent evidence cannot form the basis of a fact finding or of a judgment regardless of whether it was objected to. Texas Co. v. Lee, 1941, 138 Tex. 167, 157 S.W.2d 628; Austin Bros. v. Patton, Tex.Com.App., 294 S.W. 537.” (Emphasis added.)

In the case at bar, we do not have “incompetent evidence,” we have no evidence. Accepting, as we must, the statement of facts here presented, there is a failure of proof to support the trial court’s judgment.

It might be suggested that the trial court considered the statements made in the certificate and the other material received from the initiating court in Polk County, Iowa, as evidence. The court in the responding state could not consider these as evidence of the facts alleged. Schlang v. Schlang, Tex.Civ.App., 415 S.W.2d 28, ref. n. r. e. “The statements made in the certificate, based upon the plaintiff’s petition, and without notice to the defendant, are not to be considered by the court of the responding state as evidence of the facts alleged in the plaintiff’s petition.” Neff v. Johnson, supra. See also Benson v. Benson, Tex.Civ.App., 368 S.W.2d 125, ref. n. r. e.

We must conclude that in the absence of a prima facie case having been made out by the appellee, the judgment of the trial court cannot stand. Such a prima facie case is not made out where no evidence is before the court.

For the reasons stated, the judgment is reversed and the cause is remanded.


text:
    J. B. CHOATE, Jr., et ux., Appellants, v. The STATE of Texas, Appellee.
    No. 15235.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    March 7, 1968.
    Dixie & Schulman, Robert E. Hall, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell, Asst. Dist. Atty., Houston, for appellee.
   PEDEN, Justice.

This is an appeal from an adjudication by the Juvenile Court of Harris County, Texas, declaring Gary Wayne Choate, age 14, to be a delinquent child under the provisions of Article 2338-1, Vernon’s Ann. Civ.St., and committing him to the custody of the Texas Youth Council. His parents have filed this appeal.

Appellants’ points of error are:

1. The trial court erred in adjudging Gary Wayne Choate to be a delinquent child.

2. The trial court eried in admitting in evidence a confession signed by Gary Wayne Choate.

3. The trial court erred in admitting in evidence the results of a search of appellants’ home.

Appellee has confessed error to the extent of admitting that the record of this case does not clearly show at what time during the interrogation of Gary Wayne Choate he was given such warnings by Officer Turner so as to show a knowing and intelligent waiver of his privilege to remain silent.

Inculpatory admissions made prior to a waiver of the privilege against self-incrimination are not admissible. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellee’s brief shows that appellee recognizes that by In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the United States Supreme Court has made applicable to juveniles the privilege against self-incrimination as it was applied to adults in Miranda v. Arizona, supra.

The same privilege arises in connection with both the signed statement and the search of appellants’ home.

As this case was developed in the trial court the written statement of Gary Wayne Choate, which was admitted in evidence over appellants’ objection, was crucial in establishing the State’s position.

In accordance with Rule 434, Texas Rules of Civil Procedure, the judgment of the Trial Court is reversed and remanded.


text:
    Lela ROBERTSON, Appellant, v. Willie ROBERTSON, Appellee.
    No. 46.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Feb. 28, 1968.
    Rehearing Denied March 27, 1968.
    J. Leonard Gotsdiner, Ranseler O. Wyatt, Houston, for appellant.
    Michael T. Brimble, Houston, for appel-lee.
   SAM D. JOHNSON, Justice.

This was a suit by Willie Robertson to establish his heirship to the estate of his father, Richard Robertson, deceased, and for partition thereof. Willie Robertson, the plaintiff, was the sole child of Richard Robertson and his wife, Edith, who were married in Louisiana in 1907. In 1920, Richard moved to Texas, leaving his son, Willie, and his wife, Edith, in Louisiana.

Subsequently, in 1927, Richard Robertson entered into a ceremonial marriage in this state with the defendant, Lela Herndon, and they continued to live together as husband and wife until Richard died intestate in 1959. Prior to this marriage to Lela Herndon, a divorce was granted in this state to Richard Roberson from Edith Roberson. Aside from the variation in spelling of the last name of the parties, there is a substantial difference of opinion as to the validity of the divorce and whether or not, therefore, Robertson’s subsequent marriage to Lela Herndon was valid.

Without reference to the validity of the marriage between Richard Robertson and Lela Herndon, substantial property was acquired subsequent to it by the parties thereto as they lived together as husband and wife. It is this property that is the subject matter of this litigation.

After the evidence had been presented, the court’s judgment reflects that the court determined that “no fact issue remained for decision by the jury, withdrew the case from the jury without objection of the parties” and entered its judgment for the plaintiff. In the judgment the court found that the plaintiff, Willie Robertson, and the defendant, Lela Robertson, “are the sole owners of, and are by law entitled to partition and division thereof in equal shares” of all of the property, both real and personal, acquired by Richard and Lela Robertson. The court further found that a fair and equitable division of the real property in kind could not be made, and appointed a receiver to sell the property and divide the proceeds equally.

Excepted from the application of the court’s order of sale was one of the three parcels, of realty which was determined by the court to be the homestead of Richard and Lela Robertson at the time of Richard’s death. By the court’s judgment this property was set aside for the exclusive use and benefit of Lela Robertson during her lifetime or so long as she elected to use and occupy the same as a homestead, even though plaintiff’s petition contained no homestead allegation and defendant’s answer represented only that such property was “the homestead premises of the defendant.” No plea or prayer was made for any property to be set aside as the homestead for the use and benefit of the defendant.

Defendant presents ten points of error, the last being that “the court erred in determining that the property involved in this suit was not susceptible to partition when the trial was before a jury.” Here the trial was before a jury with the plaintiff praying for “such partition of said property as may be provided by law.” The evidence presented demonstrated that the property consisted of some $4,609.94 in a savings account, furniture and furnishings in the home of Richard and Lela Robertson at the time of Richard’s death, and three parcels of improved real property, one of which was the homestead.

There is no evidence in the record giving any indication as to whether or not the three parcels of real property were susceptible to partition in kind. The record contains no indication of the size of the lots, the value of the property, the nature or extent of the improvements, the cost or value of such improvements, their age or condition. The record is in no way descriptive of the subject properties.

“As between a partition in kind or sale of land for division, the courts and the statutes favor a partition in kind, if it can be accomplished equitably and fairly since this does not disturb the existing form of inheritance or compel a person to sell his property against his will, which, it has been said, should not be done except in cases of imperious necessity.” 68 C.J.S. Partition § 125, page 186. Partition in kind is undoubtedly favored in this state. Bayshore Bus Lines v. Cooper, Tex.Civ.App., 223 S.W. 2d 77, ref. n. r. e.; Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620; Amerada Petroleum Corp. v. Cheesman (Tex.Civ.App.), 223 S.W.2d 74, err. ref.; White v. Smyth (Tex.Civ.App.), 214 S.W.2d 953, affirmed 147 Tex. 272, 214 S.W.2d 967, 5 A.L.R.2d 1348; Adams v. Adams (Tex.Civ.App.), 205 S.W. 2d 801, no writ history; Burton v. Williams (Tex.Civ.App.), 195 S.W.2d 245, ref. n. r. e.; Humble Oil & Refining Co. v. Lasseter, Tex.Civ.App., 95 S.W.2d 730, err. dismd.

Generally, where the evidence is conflicting or admits of more than one inference, it is a question of fact for the jury or the trier of facts whether or not a partition in kind is feasible or a sale for division necessary. Adams v. Adams, supra; Burton v. Williams, supra.

In Adams v. Adams, supra, the case was withdrawn from the jury and judgment rendered for the appellees who had filed a motion requesting the appointment of a receiver to sell the entire property for the purpose of effecting the partition sought. The court stated, “The law looks with favor upon a partition in kind of jointly owned property, rather than a sale and division of the proceeds derived therefrom. Humble Oil & Refining Co. v. Lasseter, Tex.Civ. App. suprá. Therefore, it was incumbent upon appellees to establish by a preponderance of the evidence that the property here in controversy was not susceptible of a fair and equitable division in kind before the trial court could properly order the entire property sold through a receiver. Under all the evidence before us we cannot say that such burden was discharged conclusively as a matter of law. We find no direct evidence as to how the value of the property would be effected by a partition in kind as between appellant on the one hand and the joint owners on the other hand. Moreover, the evidence relating to the questions of homestead and improvements was pertinent to the issue of an equitable partition in kind.”

The record before the court in the present case is far removed from that in Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960). There the trial court had made a just and equitable division of a community estate and the Supreme Court stated, “We have examined the statement of facts in this cause and we find there is ample evidence to support the trial court’s judgment.”

In the case at bar, we have a judgment of the court directing a sale and division of the proceeds that is predicated upon a record that contains no evidence as to whether or not the property involved was susceptible of division in kind. The case here presented does not demonstrate that the plaintiff has, by a preponderance of the evidence, indeed, even by a scintilla of evidence, shown that the property was not susceptible of a fair and equitable division in kind. The record is devoid of evidence relating to the property involved; hardly more than its existence is demonstrated.

Having determined that the judgment appealed from must be reversed and the cause remanded for another trial, we do not give detailed consideration to appellant’s other points of error.

Our earlier opinion in this case, wherein we dismissed the appeal, is withdrawn and the judgment of the trial court is reversed and remanded. Costs of appeal are adjudged against the appellee.


author: STEPHENSON, Justice.

text:
    KIRBY LUMBER CORPORATION et al., Appellants, v. Clarence N. YARBROUGH et al., Appellees.
    No. 6931.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 22, 1968.
    Motions for Rehearings Denied March 27, 1968.

      Weller, Wheelus & Green, Beaumont, Ralph Zeleskey, Garrison, Renfrow, Zeles-key, Cornelius & Rogers, Lufkin, for appellants.
    Carl Waldman, Beaumont, for appellees.
   STEPHENSON, Justice.

This is an appeal from an order overruling pleas of privilege of Kirby Lumber Corporation and Crawford Bowen. Plaintiffs, who are residents of Hardin and Jefferson Counties, Texas, brought this action for damages in Hardin County against the defendants, Kirby Lumber Corporation, Crawford Bowen, Lonnie Herrin and Henry Shane. A motion for summary judgment was granted Henry Shane before these pleas of privilege were heard. It was alleged in plaintiffs’ petition that defendant, Lonnie Herrin, was a resident of Jasper County, Texas, and no plea of privilege was filed on his behalf. Kirby Lumber Corporation stated in its plea of privilege that it was a corporation with its domicile and principal place of business in Harris County, Texas. Defendant, Crawford Bowen, alleged in his plea of privilege that he was a resident of Jasper County, Texas. In their controverting pleas, plaintiffs alleged several exceptions to the venue statute, but on this appeal rely upon subsections 9 and 9a of Article 1995 Vernon’s Ann.Civ.St. Under Section 9, it is alleged that defendants violated Article 784 of the Penal Code, Vernon’s Ann. Following a hearing before the court, the pleas of privilege were overruled. No findings of fact or conclusions of law were requested and none were filed. The parties will be referred to here as in the trial court, and defendant, Kirby Lumber Corporation, will be called defendant Kirby.

Plaintiffs alleged in their petition, which was incorporated in their controverting affidavit, that five minors were riding in an automobile driven by one of them, Bobby Biano, in an easterly direction on Highway 105 in Hardin County, Texas. That about 7:10 a. m. on the morning of January 11, 1963, as they reached a point just east of the Pine Island Bayou Bridge, the car ran over some dirt, mud or other substance which had accumulated on the highway, which caused the car to skid, go out of control and crash into a tree. One of the passengers, Judy Fay Denton, was killed and the others injured. That defendant Kirby was in charge of hauling logs from the area adjacent to the highway and the vehicles tracked mud, water and substances onto the highway, causing it to be slippery and dangerous. That the defendants, jointly and severally, were negligent and careless as follows:

a. In causing the mud and other substances to be accumulated on the highway.
b. In failing to remove and clean off the highway.
c. In failing to warn the plaintiffs and other members of the public who traveled on said highway.
d. In obstructing the safe passage of the highway.
e. In failing to erect barricades or other warning signs so as to warn the traveling public and especially plaintiffs.
f. In obstructing the highway in violation of Article 784 of the Penal Code of the State of Texas, which reads as follows: “P.C. 784. Obstructing Public Road, Street, etc. — Whoever shall wil-fully obstruct or injure or cause to be obstructed or injured in any manner whatsoever any public road or highway or any street or alley in any town or city or any public bridge or causeway within this State shall be fined' not exceeding two hundred dollars.”

The primary points of error are that there is no evidence to support the implied findings by the trial court that defendants, Kirby and Bowen, were guilty of an act of negligence which was a proximate cause of the accident in question, that there was insufficient evidence and that such findings were contrary to the great weight and preponderance of the evidence. These points are overruled.

We have concluded that this case is controlled by Kirby Lumber Corporation v. Walters, 277 S.W.2d 796. The Walters case also involved an automobile accident resulting from mud on the highway. The Court of Civil Appeals held that a prima facie case was made out against Kirby on the theory that it was guilty of negligence which proximately caused the collision under Section 9a of Article 1995 V.A.C.S. The following statement of law in the Walters case is as follows:

The defendants were entitled to make reasonable and lawful use of the highway in their hauling and travel, but were under the duty while using it of not wil-fully or negligently injuring others who, in the exercise of their lawful right, might also be using it, and of not wil-fully or negligently creating thereon any condition that was fraught with danger to other lawful users, without taking appropriate precautions to warn and safeguard them against it. The undisputed evidence is sufficient in this instance to support a finding that the defendants, including Kirby and Hare, breached the duty owing by them in the respect last mentioned, and in so doing were guilty of negligence.

It is undisputed that defendants, Herrin and Bowen, were independent contractors, cutting, loading and hauling logs from Kirby land. It is also undisputed that Kirby was engaged in salvage operation, as it is called, from the same land located in the area of this accident. There is direct testimony that a Kirby truck deposited at least a part of the mud on the highway the day before this accident, that it had been raining and was raining at the time of the accident, and that this accident occurred when the automobile involved struck some mud on the highway at approximately the same location, causing the automobile to skid into the tree. In the Walters case, supra, it is stated that it was not necessary for the plaintiffs to show the degree to which the acts of Kirby contributed to cause the collision and quoted the case of Landers v. East Texas Salt Water Disposal Company, 151 Tex. 251, 248 S.W.2d 731, as follows:

Where the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit.

It is admitted that defendant, Bowen, worked 17 men, 4 trucks, 4 caterpillars and a loader on the Kirby land near where the accident occurred the day before this accident. That these trucks would make two or three trips a day to the mill. Giving the evidence heard by the trial court, every reasonable intendment and inference in support of this judgment, we find no error on the part of the trial court in overruling the pl'eas of privilege.

There is a point of error that the undisputed evidence establishes as a matter of law that defendant Kirby violated no duty of care to plaintiffs because the undisputed evidence established that if there was any condition which caused or contributed to cause the collision in question, such condition was well known to the driver of the plaintiffs’ vehicle, and if such condition caused or contributed to cause the accident, it was the result of the sole acts and omissions of the driver. This point is overruled. The testimony of the driver, Biano, one of the plaintiffs, was to the effect that he had seen the mud on the highway during the Christmas holidays, had not traveled this road for two or three days, although he had traveled it the day before but had not noticed the mud on the highway that day. Assuming that the driver knew of the mud on the highway, there is no evidence that all of the occupants of the plaintiffs’ car knew of the mud, and the evidence does not establish as a matter of law that the acts of the driver of the car, Biano, were the sole cause of the accident.

Affirmed.