author: STEPHENSON, Justice.

text:
    J. B. CHRISTIAN, Administrator of the Estate of Thula Mae Wells, Dec’d, Appellant, v. Pat PACE, Appellee.
    No. 6623.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 12, 1963.

      Baker, Branch & Campbell, Houston, for appellant.
    R. A. Richardson, Kountze, for appellee.
   STEPHENSON, Justice.

This is an appeal from an order of the County Judge transferring a proceeding from the Probate Docket to the Civil Docket of the County Court, and re-decreeing and re-enacting a motion for summary judgment entered in such proceedings on the Probate Docket, and denying a motion to set aside the summary judgment.

The situation leading up to this action of the Probate Court is somewhat confusing. J. B. Christian qualified as Administrator of the Estate of Thula Mae Wells, Deceased. Pat Pace filed a petition in the Probate Proceedings setting forth the allegation that he had furnished the funeral for the Decedent and was the owner of a claim in this amount of $770.00. A portion of this petition is as follows:

“CLAIM OF PACE WELLS FUNERAL HOME, Kountze, Texas, against Estate of Thula Mae Wells, Deceased,
“Funeral of Thula Mae Wells, Deceased, (to balance unpaid) .-$770.00
“/s/ Pace Wells Funeral Home “By Pat Pace_ “Owner
“THE STATE OF TEXAS ) COUNTY OF HARDIN
“/s/ Pat Pace_ "Affiant
“Subscribed and sworn to under my official hand and seal this the 3rd day of March, A.D., 1960.
“/s/ Dwavne V. Overstreet__ “Notary .Public, Hardin County, Texas"

This petition further alleged that the claim for funeral expenses had been presented to the Administrator and more than 30 days had elapsed but the Administrator had not allowed the claim and contained the following prayer:

“WHEREFORE, your Petitioner prays the Court that the said Administrator be cited to appear and answer this petition, and to show cause, if any he has why an order requiring him to allow said claim, and why an order requiring him to pay said claim should not be made, and that upon the final hearing hereof the Court make his order requiring the said Administrator to allow said claim or in the alternative that the Court order such claim paid and allow same, and that on final hearing that said claim be paid in due course of administration, and Petitioner prays for judgment for full amount of said claim and for legal interest, for cost of suit and for such other relief as he may show himself entitled to receive.”

An answer to such claim was filed by the Administrator, denying that such claim for funeral expense had been presented to the Administrator, and such answer contained the following:

“II.
“That had said claim been presented, the Administrator, J. B. Christian, having full knowledge of the services rendered regarding said claim, would have allowed the claim and avoided any necessity for litigation. That the Administrator fully acknowledges the debt as set out in said claim and is willing to pay same as soon as funds are available from the Estate after allowing reasonable time for the liquidation of real property in order to satisfy certain debts in addition to the alleged claim. That the Administrator is presently in the process of attempting to locate a purchaser for the real estate of said Estate and requires some time and some orders from this Court in order to properly dispose of, liquidate, and settle the entire Estate.
“WHEREFORE, PREMISES CONSIDERED, your Administrator prays the Court that said claim be allowed, that no order be necessary requiring him to show cause why said claim should not be allowed, and that he be allowed to pay said claim in the due course of administration without the necessity of a judgment being rendered against the said Administrator for the amount of said claim, including interest and costs of suit for the aforementioned reasons, and for such other and further relief as the Administrator may show himself justly entitled.”

Pat Pace then filed a Motion for Summary Judgment in such Probate Proceeding with the following prayer:

“WHEREFORE, PREMISES CONSIDERED, Petitioner, Pat Pace prays for Summary Judgment allowing his claim as set out in his petition, and ordering same paid in due course of Administration.”

No answer was made to this Motion for Summary Judgment, and September 30, 1960, the court entered an order which contained the following:

“IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED BY THE COURT that the Motion for Summary Judgment of the Petitioner Pat Pace is hereby granted, and the claim of said Petitioner as owner of the Pace Wells Funeral Home in the sum of $770.00 is hereby allowed and approved and classified as claim no. 1, and as such is ordered paid by such Administrator in due course of administration.”

April 21, 1961 the Administrator filed a motion in the Probate Proceedings to set aside the Summary Judgment entered on the ground that it was void for want of jurisdiction and barred by limitation.

October 8, 1962 the County Judge entered an order transferring all of this proceeding set out above to the Civil Docket of the County Court, which order contained the following:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED and this Court does here and now enter its order, judgment and decree nunc pro tunc, that all of the proceedings enumerated in this order and copied herein had in the Matter of the Estate of Thula Mae Wells, deceased, under number 2660 of the Probate docket of this Court were in conformity to law and within the time prescribed by law and that the record thereof as herein made shall become and is hereby ordered to be the record in this cause, to-wit, in Cause No. 1359-A styled ‘PAT PACE VS. J. B. CHRISTIAN, ADMINISTRATOR OF THE ESTATE OF THULA MAE WELLS, DECEASED; IN THE COUNTY COURT OF HARDIN COUNTY, TEXAS’, on the Civil docket thereof, and that all said orders, judgments and decrees, including the Summary Judgment entered in said Probate cause on September 30, 1960, are hereby rein-acted, readjudged, ordered and decreed and are ordered entered in the Minutes of this Court nunc pro tunc as having taken place on the dates enumerated, and the Motion of the Defendant, J. B. Christian, Administrator, to set aside said summary judgment is hereby in all things overruled and said summary judgment is hereby reaffirmed by this Court.”

An appeal from this order was brought directly to this Court of Civil Appeals.

The Administrator contends that the judgment of September 30, 1960 granting the motion for summary judgment was void for want of jurisdiction. That the Probate Court had no jurisdiction to hear a claim which had been rejected by an Administrator and is limited to passing only on claims which had been approved. This latter statement is a correct pronouncement of the law. Poole v. Rutherford, Tex.Civ.App., 199 S.W.2d 665. But, it is not applicable to the situation in this case. We conclude, as the County Judge apparently concluded, that there had been no rejection of this claim for funeral expenses. The legal effect of the instrument filed by the Administrator designated as “Answer to Claim of Petitioner, Pat Pace” was to approve the claim. Sec. 308 of the Probate Code, V.A.T.S. permits a claim to be filed with the Clerk of the Probate Court. Sec. 309 of the Probate Code provides that the representative may endorse on the claim or annex a memorandum to it signed by him, stating the time of presentation or filing of the claim, and that he allows or rejects it, or what portion of it he allows or rejects. The answer of the Administrator complies with these requirements. It shows the date the claim was filed to be June 30, 1960, and its clear and unequivocal meaning is to allow the claim. Sec. 302 of the Probate Code provides that any defect of form shall be deemed waived by the representative unless written objection has been made within 30 days after presentment of the claim. No such objection was filed in this case. The action of the County Judge in granting the summary judgment, in legal effect, constitutes an approval by the Court of a claim which had been approved by the legal representative. No appeal was taken by the Administrator from such order, as provided by Sec. 312(e) to the District Court. This Court cannot entertain an appeal made directly to this court in a Probate matter. Everything done in this matter since the approval of the claim is mere surplusage.

There is no provision in the law authorizing the action of the County Judge to transfer this matter from the Probate Docket to the Civil Docket. Such action was a nullity, and it is ordered expunged from the records.

The order of the Court attempting to re-enact and readjudge the summary judgment on the Civil Docket, and also overruling the motion to set aside the summary-judgment on the Civil Docket is reversed, and ordered expunged. The effect of this opinion is to leave this matter on the Probate Docket with the original summary judgment entered on the Probate Docket in full force and effect.

Judgment reformed in accordance with this opinion.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    PORT TERMINAL RAILROAD ASSOCIATION, Appellant, v. ROHM & HAAS COMPANY, Appellee.
    No. 14193.
    Court of Civil Appeals of Texas. Houston.
    Oct. 10, 1963.
    Frank B. Davis, Alfred H. Ebert, Jr., and Wm. H. Tenison, Jr., Houston, Andrews, Kurth, Campbell & Jones, Houston, of counsel, for appellant.
    Newton M. Crain, Jr., Houston, and Blades, Crain, Slator & Winters, Houston, of counsel, for appellee.
   WERLEIN, Justice.

Port Terminal Railroad Association, hereinafter referred to as “PTRA,” appeals from a judgment against it in the sum of $13,176.62 for the loss of a large part of a shipment of a liquid known as Methyl Methacrylate Monomer, hereinafter called “liquid” which leaked out of a tank car while being handled by it. The car in question was owned by General Transportation Company and leased to appellee. It was loaded by appellee’s employees at ap-pellee’s plant at Deer Park, Texas, which is some twelve to fifteen miles from appellant’s north yard in Houston, about noon on July 13, 19SS, and left at appellee’s plant for PTRA to pick up. PTRA picked up the car and issued a straight bill of lading which recites that the property received was in apparently good order. The bill of lading shows that the property consisted of one tank car of Methyl Methacrylate Monomer, consigned to appellee at Knoxville, Tennessee.

After said car and a number of other cars, during switching operations at various industries in the general vicinity, had been picked up and transported to appellant’s north yard, the car in question was placed on appellee’s Track B-7 as a part of a long “cut” or train of cars. During switching operations after 7 o’clock on the morning of July 14, 1958, appellant’s engineer, Mr. Ziese, shunted said car and some other loaded cars onto Tract B-4. About four to six minutes thereafter Mr. Ziese smelled and discovered the liquid, which had a strong odor, leaking out of the tank car in question in a stream which looked like it was about the size of his hand. The crack in the car was on the side thereof just above a riveted seam and was some 26 inches in length.

No member of the crew that transported the car from appellee’s plant to appellant’s north yard testified at the trial. Appellant did not in any way account for the car during such period. Mr. Ziese did not go to work until about 7 o’clock the morning of July 14, 1958. None of his crew testified. There was no evidence that any of the liquid had leaked out of the tank car until after it had been shunted onto Track B-4, where it, or a cut of cars, of which it was a part, ran into a cut of stationary cars. The evidence showed that the car had been inspected by appellee’s employees in the loading process and there was no leak or noticeable defect therein. The jury found in answer to Special Issue No. 1 that there was not a defect in the tank car in question at the time it was picked up at appellee’s plant by PTRA. The only other special issue was conditional and not answered.

We have read the entire statement of facts and have concluded that the jury’s answer finds support in the evidence and that it is not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. This finding of the jury distinguishes this case from those cases cited by appellant in which the shipper voluntarily selected a car which was shown to be leaky or defective or improperly conditioned when loaded by the shipper.

When appellee showed that the property was in good condition and that there was no defect in the leased car when delivered to appellant, and that the liquid was lost in transportation when being handled by appellant in its north yard, appellee made out a prima facie case of carrier liability. As stated in the well-considered opinion of Justice Walker in Missouri Pacific R. Co. v. Elmore & Stahl, Tex.Sup. 1963, 368 S.W.2d 99:

“The carrier may then escape responsibility for the damage only by showing that it was caused solely by one or more of four excepted perils: (1) an act of God; (2) the public enemy; (3) the fault of the shipper, or (4) the inherent nature of the goods themselves. Where the loss is not due to one of these specified causes, it is immaterial whether the carrier has exercised due care or was negligent. See Commodity Credit Corporation v. Norton, 3rd Cir., 167 F.2d 161; 13 C.J.S. Carriers § 71, p. 131.”

The appellant did not bring itself within one of the recognized common law ■exceptions. The shipment in question was in interstate commerce, but, as stated by Justice Walker in said case, the provisions of the Carmack Amendment, 49 U.S.C.A. § 20(11), do not alter or modify the basic common law rule of carrier liability with which we are here concerned. See Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U.S. 319, 36 S.Ct. 555, 60 L.Ed. 1022, L.R.A.1917A, 265; Secretary of Agriculture v. United States, 350 U.S. 162, 76 S.Ct. 244, 100 L.Ed. 173.

“The general common law rule of ■carrier liability has long been recognized and applied by the Federal courts.” Missouri Pacific Railroad Co. v. Elmore & Stahl, supra, and authorities cited on page 101 of 368 S.W.2d of the court’s opinion. The Supreme Court further pointed out that while the carrier is not an insurer with respect to damage caused solely by one of the excepted perils, its responsibility is similar to that of an insurer insofar as other risks are concerned. The so-called presumption of negligence is not a presumption at all, but is a rule of substantive law under which the carrier is liable for failure to transport safely, unless the loss or damage is due to one of the specified causes. See Chesapeake & O. Ry. Co. v. Thompson Mfg. Co., 270 U.S. 416, 46 S.Ct. 318, 70 L. Ed. 659.

The fact that the tank car in question was a leased car and loaded by appellee is of no controlling significance under the facts and circumstances of this case. It was presumably inspected by appellant before acceptance, since the Rules of the American Association of Railroads provide that all tank cars to be transferred by the carrier must be inspected by the railroad prior to being accepted for shipment. But whether it was or was not so inspected, PTRA issued its bill of lading acknowledging that such property was received by it in apparent good order. No exceptions were noted. The jury found there was no defect in the car when picked up by appellant at appellee’s plant, and there is nothing in the evidence or the circumstances of the case to show that appellant knew of any defect or to charge appellee with knowledge thereof if any existed. The container in which the liquid was placed and transported was the tank car, whereas in Yeckes-Eichenbaum, Inc. v. Texas Mexican Railway Company, 5 Cir. 1959, 263 F.2d 791, the containers holding the cantaloupes were crates supplied and packed by the shipper, which the carrier accepted as being in apparent good order. Although such crates were in a closed freight car, and the only way it could be established that the cantaloupes were in good condition and in undamaged crates was to unload the car, inspect, and reload the car, the court held that the only way the carrier could avoid the prima facie case established by the introduction in evidence by plaintiff of the bill of lading was to prove that the shipments had suffered breakage damage before the cars were delivered to it.

In Schnell v. The Vallescura, 293 U.S. 296, 55 S.Ct. 194, 79 L.Ed. 373, the Supreme Court of the United States, in discussing the rule which requires the carrier to establish that the loss was due to some excepted peril, stated:

“The reason for the rule is apparent. He is a bailee intrusted with the shipper’s goods, with respect to the care and safe delivery of which the law imposes upon him an extraordinary duty. Discharge of the duty is peculiarly within his control. All the facts and circumstances upon which he may rely to relieve him of that duty are peculiarly within his knowledge and usually unknown to the shipper. In consequence, the law casts upon him the burden of the loss which he cannot explain or, explaining, bring within the exceptional case in which he is relieved from liability.”

See also American Cotton Oil Co. v. Davis, 129 Wash. 24, 224 P. 23 (1924), in which the carrier contended that the loss was due to improper loading by the shipper, unsupervised by the carrier, in a defective car furnished by the shipper, which was unsafe for the transportation of soya bean oil. The court said the burden of this defense was on the carrier.

Since in the instant case the carrier failed to prove that the loss sustained by appel-lee was due to the fault of the shipper, that is, one of the excepted causes, the judgment of the trial court is affirmed.

Affirmed.


author: PRESLAR, Justice.

text:
    Homer BARNETT, Appellant, v. PARKER & PARKER, INC., Appellee.
    No. 5548.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 11, 1963.
    Warren Burnett, Odessa, for appellant.
    Turpin, Kerr, Smith & Dyer, Max N. Osborn, Midland, for appellee.
   PRESLAR, Justice.

This is a suit for damages resulting from; an intersection collision. The jury found negligence and proximate cause on the part of both defendant and plaintiff, and judgment was entered for defendant. Plaintiff sought a new trial alleging, among other things, jury misconduct, and from an adverse ruling on that motion plaintiff appeals-to this court on the following points of error:

“First Point
“The Trial Court erred in overruling Appellant’s Motion for New Trial because one of the Jurors gave unsworn testimony in the Jury Room pertaining to conditions of the intersection in question.
“Second Point
“The Trial Court erred in overruling Appellant’s Motion for New Trial* because at least one of the Jurors informed the Jury that the answers to the contributory negligence issues were immaterial.”

On the hearing of the Motion for New Trial, four jurors testified. An examination of the Statement of Facts for that hearing shows their testimony to be in conflict. The trial judge made findings of fact, two of which are pertinent here:

“2. That no juror stated during the jury’s deliberations that it did not make any difference how certain issues were answered.
"3. That no juror gave any personal knowledge concerning the happening ■of the accident, to the other jurors.”

Rule 327, Texas Rules of Civil Procedure, governs the requirements for new trials based on jury misconduct, and it is well established that the complaining party must establish under that rule: (1) that such misconduct did in fact occur; and (2) that injury probably resulted to him. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259. If either requirement is answered in the negative, then the complaining party has not met the burden placed on him by Rule 327. The first requirement is a fact question to be determined from the testimony of jurors and any other competent evidence, including the record as a whole, and the second requirement is a question of law. Traders & General Ins. Co. v. Lincecum, 130 Tex. 220, 107 S.W.2d 585; Motley v. Mielsch, 145 Tex. 557, 200 S.W.2d 622; State of Texas v. Wair, 163 Tex. 69, 351 S.W.2d 878. The first requirement being a fact question brings us to consider the trial judge’s above findings of fact. A study of the Statement of Facts of the hearing on Motion for New Trial shows them to be a negative answer to the very matters urged on that Motion and brought forward as points of error on appeal. The trial judge having found expressly that as a matter of fact there was no misconduct, the question for this court is whether such findings are an abuse of discretion. Viewing the entire record in this case, we are of the opinion that there is support in the evidence for the findings of the trial court, and that such findings are not an abuse of discretion. In the absence of an abuse of discretion, this court is bound by such findings. (See State of Texas v. Wair, 1961, supra.) In the absence of misconduct, there can be no question of probable harm. Selmikeit v. El Paso City Lines, Tex.Civ.App., 365 S.W.2d 840 (ref., N.R.E., El Paso 1963).

Appellant’s points are accordingly overruled, and the judgment of the trial court is affirmed.


author: CLAYTON, Justice.

text:
    In re ADOPTION OF Molly Page ARMSTRONG, a Minor.
    No. 5618.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 11, 1963.
    Rehearing Denied Oct. 16, 1963.

      Morgan & Boling, El Paso, for appellant.
    W. O. Craft, El Paso, for appellee.
   CLAYTON, Justice.

This is an appeal from an order of the-120th District Court of El Paso County,. Texas overruling a motion for new trial" and affirming the decree of the court which granted a petition for adoption of the-minor child, Molly Page Armstrong, then, between four and five years old, by the petitioner, Salvatore E. Manzo, in which petition his wife, Alice Flournoy Davis Man-' zo, the natural mother of the minor, joined. The motion for new trial was filed by appellant R. Wright Armstrong, the natural father of the child. Appellant and appel-lee, Alice Davis Manzo (formerly Alice-Flournoy Davis Armstrong) were divorced' by decree of the 96th District Court of" Tarrant County, Texas on November 6,. 1959. Custody of the minor child of the-parties was awarded to the mother, with> visiting privileges granted to the father. The divorce decree contained the provision that the community and separate property of the parties be distributed by agreement of the parties, and the further provision that the father was to pay into the-Child Support office of Tarrant County “the sum of $50.00 per month, beginning November 16th, 1959, and continuing there■after on the 16th day of each succeeding month until further order of this court, or until said child shall reach 18 years of .age.” Appellant made one payment of $50.00 into the Child Support office in November of 1959 and in February of 1960 he made a payment of $150.00 into the office. While it may perhaps be said that there is some ambiguity in the trial court’s support order as to the application of the $50.-'00 monthly payments when made, it is our •opinion that the payment in November, 1959, was for the month of November, and 'the $150.00 payment in February, 1960, was for the months of December, 1959, January, 1960, and February, 1960. There were no further payments into the Child Support office. The appellant here contends that these two payments covered the period, from November 16, 1959 to March 16, 1960. The verified petition for adoption was filed on March 12, 1962 and alleged that:

“7. Written consent of the natural father R. W. ARMSTRONG, JR., to the adoption herein sought is not necessary upon grounds that the said father has not contributed to the support of said minor child commensurate with his ability to do so for a period in excess of two (2) years, and the Judge of a Juvenile Court of El Paso County, Texas, to-wit: Judge Mulcahy, Judge of the 41st Court, has consented in writing to said adoption under provisions of Section 6, Article 46A, Texas ■Civil Statutes.”

Appellant’s first point cites error of the •court in not rendering judgment for appellant setting aside the adoption because there is no evidence that appellant failed to contribute substantially to the support of the child for a two-year period prior to the filing of the petition for adoption, commensurate with his financial ability, or that such finding was against the great weight and preponderance of the evidence. Appellant states the child support having been paid until March 16, 1960, that for at least four days of the alleged two-year period the appellant had contributed support to his daughter. However, our interpretation of the court’s support order, as indicated above, is that support payments into the Child Support office covered a period of time through the month of February, 1960, only, and that the adoption petition was filed twelve days thereafter.

But appellant asserts that he had made other payments and contributions in addition to those made to the Child Support office, which should be considered child support payments. After the divorce, the minor child on occasions visited" her - father and grandparents, with whom her father resided, in Fort Worth. Appellant states that on one of these occasional visits, in the summer of 1961, he “bought her some clothes” and “bought her lots of toys” and took her to a production of the Wizard of Oz, the total of these expenditures running “in the neighborhood of $75.00.” The following Christmas, on another visit, he “took her to a clothing store and purchased three dresses and a purse for her for Christmas” at a cost of $50.00.

In February of 1960, after the divorce from appellant was granted appellee Alice Davis Manzo in November, 1959, their house was sold for an amount slightly in excess of a thousand dollars. Appellant contends that it was his understanding that the proceeds from this sale were to be divided between the parties on a fifty-fifty basis but that he directed that the majority of the money be sent to his ex-wife “for the benefit of the child”. He testified that Mrs. Manzo received somewhere in the neighborhood of $875.00 and that he received something like $150.00 or $160.00. However, there was introduced in evidence a property settlement agreement executed by the parties before the divorce and reaffirmed and ratified by the parties after the divorce which contains the following paragraph:

“During their marriage, the parties occupied as their home the residence located at 6853 Middle Road, Fort Worth, Texas. Two Thousand Five Hundred Dollars ($2,500.00) of the down payment for such property was paid out of the separate funds of Flournoy D. Armstrong. In the event that a divorce be granted in the above mentioned suit, such property shall be sold within a reasonable time for the best available offer, taking into consideration the condition of the real estate market, and the net proceeds, if any, therefrom shall be pro rated between the parties proportionate to the separate interest of Flournoy D. Armstrong therein and the community interest of the parties therein. The parties hereto shall execute any instrument necessary or desirable to consulate such sale.”

This provision certainly seems to be at variance with, and refutes, appellant’s claimed understanding as to the equal division of the proceeds of the sale of the home, and that any part of his share of these proceeds was to be considered a contribution by him to child support.

During the period of time after the divorce and up until the date of filing of the adoption petition the appellant had been, on various occasions, ill, unable to work and in the hospital. However, according to our calculations from the evidence presented, appellant had earned during this period an amount in excess of $4,200.00, at least $3,500.00 of which was earned in the two-year period prior to the filing of the adoption petition. For the entire period since the divorce he had paid only $200.00 into the Child Support office. Appellant was a duly licensed and practicing attorney living in Fort Worth, Tarrant County, Texas where the divorce decree with child support order was entered, but he at no time made any effort to have the support order modified or to obtain credit from the Child Support office for the contributions and expenditures he claims to have made for the benefit of his minor child in addition to the two payments made directly into the office. Aside from what income he received in his law practice, he had been employed at various times as Assistant City Attorney, substitute judge of the Corporation Court and finally filled a vacancy as full-time Corporation Court judge in Fort Worth. He was living with his parents who were not only furnishing him food and shelter but paying many incidentals such as carfare, haircuts and laundry. He was either employed in public office without expense, or working in a law office without expense. At the time of- the filing of the adoption petition he was employed as Corporation Court judge at a salary of $239.44 every two weeks and had been so employed- for about a month. He had bought a Pontiac automobile. He testified that he had paid off community debts, but even in this his family helped him. We feel that, from the record, the conclusion is inescapable that the appellant failed to contribute substantially to the support of his child for a two-year period prior to the filing of the petition for adoption commensurate with his financial ability, and the trial court so found in his Conclusions of Law. Appellant’s first point of error is accordingly overruled.

However, appellant urges in his second point of error that the provisions, of Section 6 of Article 46a, Vernon’s Ann. Tex.Rev.Civ.St., had not received full compliance. This is the statutory provision that permits an adoption without the written consent of a living parent of the child sought to be adopted when such parent shall not have contributed substantially to the support of such child during a period of two years commensurate with his financial ability, upon written consent to the adoption by the judge of the juvenile court of the county of such child’s residence. Appellant points out that neither the affidavit accompanying the adoption petition nor the consent of the juvenile judge herein contained the italicized language. The cases of Moorman v. Hunnicutt, 325 S.W.2d 941 (Tex.Civ.App., 1959, ref. N.R.E.) and Stinson v. Rasco, 316 S.W.2d 900 (Tex.Civ.App., 1958, no wr. hist.) are cited as authorities that the provisions of the statute must receive strict compliance. The latter case holds:

“While adoption statutes are to be liberally construed in favor of minors in order to effectuate their beneficial purpose, Woodall v. Schmudlach, Tex.Civ.App., 299 S.W.2d 780, the rule of strict construction applies in favor of a non-consenting parent. Jones v. Willson, Tex.Civ.App., 285 S.W.2d 877. Especially so 'in those cases where it is claimed that owing to misconduct his consent to the adoption is not required. Every intendment should be made in such case in favor of the parent’s claim; and where the statute is open to construction and interpretation, it should be construed in support of the parent’s natural rights.’ 1 Am. Jur. pp. 626, 627.”

We agree with the holding in these cases. But in the instant case the petition contained allegations strictly in conformance with the statute and this petition was verified by the affidavit of both petitioners for the adoption. We believe that in determining whether there has been compliance with the statute, the whole record should be examined, and such an examination in the instant case, in our opinion, reveals full compliance; and as has been shown, it is our further opinion that the allegations ■of the petition have been supported by testimony herein.

Under Point Two appellant further complains that there was no showing that the requirements of Sec. lc of Art. 46a, T.R.C.S., had been met. This section reads as follows:

“Sec. lc. After the filing and docketing of the petition, and in order to aid in completing the investigator’s report required by law, there shall be furnished upon the request of the Judge of the Court in which said application is pending, or the investigator appointed by the Court, or the Executive Director of the State Department of Public Welfare, the following information: (1) the name of the child as it appears on the birth certificate; (2) the names, residences, and/or street addresses of the natural parents; or if the names and addresses of the natural parents or the name of said child are unknown to the petitioner, such fact or facts should be so stated to either the Judge, investigator, or the Executive Director of the State Department of Public Welfare requesting such information, in which event there shall be furnished in response to such request, the name and address of any person, agency or institution having such information.” (Emphasis supplied.)

The record herein reflects that a certified copy of the adoption petition was mailed by the Clerk of the Court to the Executive Director of the State Department of Public Welfare in Austin, Texas, in compliance with the provisions of Sec. lb of said Art. 46a, T.R.C.S. The judge of the trial court made a Finding of Fact that he did not request, nor did the report of the investigator show that the investigator requested any of the information set forth in Section lc, Art. 46a, supra. There is nothing in the record to indicate that the Executive Director made any such request. Had he done so, and appellees failed to furnish the information in response to such request, this certainly would be a factor to be shown by appellant in seeking to set aside the decree of adoption for want of jurisdiction of the trial court. We do not feel that it was incumbent upon appel-lees to negative the fact of such request, especially as the point was not raised in either appellant’s first or amended motion for a new trial. For these considerations, the objections raised in appellant’s Paint No. 2 are overruled.

Appellant’s third point urges the unconstitutionality of Article 46a, T.R.C.S.. in that it permits an adoption without notice to or consent of a natural parent, thereby depriving such parent of his child without due process of law. Point Four maintains that the trial court erred in not rendering judgment for appellant setting aside the adoption because the undisputed evidence shows that the adoption judgment was obtained without any notice to appellant. That no notice was given appellant before the adoption is undisputed, but the necessity for such notice depends upon the answer to Point No. Three.

This matter was passed upon in the case of Lee v. Purvin, 285 S.W.2d 405 (Tex.Civ.App., 1955, wr. ref., N.R.E.) and we have been unable to find any later expression on the subject. The language employed in the cited case is as follows:

“The ninth point in appellant’s brief is as follows: ‘Art. 46a of Revised Civil Statutes of Texas, permitting an adoption of appellant’s children without his consent and without notice to him of any nature of such adoption proceedings is an unconstitutional deprivation of petitioner’s children without due process of law and void.’ Although this court entertains serious doubt as to the correct solution of the problem presented by the foregoing point, we are constrained to overrule the contention of appellant thus presented on the authority of Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269, 151 A.L.R. 1217 and De Witt v. Brooks, 143 Tex. 122, 182 S.W.2d 687. We believe, however, that where the living parents are without notice of adoption proceedings, and where they do not give written consent for such adoption, they must be allowed a full hearing in a subsequent proceeding on the issue of whether sufficient facts existed as to authorize the entry of the judgment of adoption. Such, as we understand it, is the substance of the holding by the Supreme Court in the case of De Witt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, supra.”

A full hearing was afforded the appellant in the case before us on his amended motion for new trial, and the court after said hearing found against appellant and affirmed its original judgment of adoption. We must conclude that this case comes within the purview of the holding in Lee v. Purvin, supra, and that appellant’s third and fourth points must be overruled.

The judgment of the trial court is accordingly affirmed.


author: BELL, Chief Justice.

text:
    Joyce Bell BURKITT, Independent Executrix of the Estate of George W. Burkitt, Deceased, Appellant, v. D. J. GLENNEY, III, Appellee.
    No. 14185.
    Court of Civil Appeals of Texas. Houston.
    Oct. 3, 1963.
    Rehearing Denied Oct. 24, 1963.

      Kelley & Ryan, C. O. Ryan, Houston, for appellant.
    Fred Parks and Donn C. Fullenweider, Houston, for appellee.
   BELL, Chief Justice.

Appellant was the owner, as Independent Executrix, of a judgment against D. J. Glen-ney, Jr. She obtained the issuance and service of a writ of garnishment on appellee. Appellee answered and in effect stated he was indebted to D. J. Glenney, Jr. in the amount of $200.00 but denied this was subject to garnishment and denied he was otherwise indebted, and set out why he was not otherwise indebted. He asked for attorney’s fees. The trial court, after a hearing, rendered judgment for appellant for $200.00, denied her additional relief, denied appellee attorney’s fees and adjudged costs against appellee.

The evidence establishes that Mrs. E. B. Crane, the assignor of appellant’s husband, George W. Burkitt, who is now deceased, obtained a judgment for $110,399.31 against D. J. Glenney, Jr. Through a sale, under execution, of land in which D. J. Glenney, Jr. claimed an interest, $500.00 was credited on the judgment. D. J. Glenney, Jr. held an interest in some 1400 acres of land at a time prior to the judgment, the land having been conveyed to him by Mrs. Crane. Prior to the judgment a controversy arose between him and Mrs. Crane and Glenney, Jr. reconveyed the land to Mrs. Crane. Subsequently, Glenney, Jr. took the position that his reconveyance of the land was obtained by fraud and duress on the part of Mrs. Crane and her representatives. He conveyed all of his interest in the land and any cause of action he owned with regard to it to appellee here in consideration of the agreement by appellee to pay Glenney, Jr. $200.00 to $300.00 per month during the life of Glenney, Jr. The agreement was oral. Appellee later filed suit against Mrs. Crane to set aside the deed on the ground of fraud and also asked that the deed be declared to have been intended as a mortgage and not a ■deed. See Glenney v. Crane, Tex.Civ.App., 352 S.W.2d 773, C.C.A., ref., n. r. e. After disposition by this Court of that appeal in Glenney v. Crane, the appellant obtained the writ of garnishment. At the time of service of the writ and the filing of the answer by appellee, only one of such monthly payments that had matured remained unpaid. The appellant concedes that the only amount that appellee had an absolute obligation to pay was $200.00 per month. The judgment of the court was only for the $200.00 that had matured and which had not been paid by the garnishee when answer was filed. It was the view of the trial court that appellant was entitled to recover only such of the monthly payments as had matured at the date of garnishee’s answer.

The appellant takes the position that under the oral agreement appellee was obligated to pay Glenney, Jr. $200.00 per month during the latter’s life and this obligation created an indebtedness which could be reached by garnishment even though the monthly payments had not matured or fallen due. She says there is no uncertainty in the indebtedness because there is the absolute obligation to pay monthly during Glen-ney, Jr/s life and the fact that the obligation will terminate on the death of the beneficiary does not make the indebtedness contingent. She seeks, therefore, a judgment against the garnishee, contending that she is entitled to have him pay said monthly installments to her as they fall due during 'Glenney, Jr.’s life, with the right to successive executions against the garnishee for ■such monthly payments as he fails to make.

Appellee contends that since the payments depend upon Glenney, Jr/s being alive, the obligation is a contingent one and too uncertain to be the subject of garnishment.

We are of the view that under Texas rules with regard to garnishment it is contemplated that the judgment against the garnishee shall be in the amount of the indebtedness that is shown on trial to have been absolutely owed in an amount certain when the garnishee is served or files his answer, if there is an accrual between the date of service and filing of the answer.

In the case of Planters’ and Mechanics’ Bank et al. v. Floeck, 17 Tex.Civ.App. 418, 43 S.W. 589, C.C.A., writ den., this Court, speaking through Associate Justice Williams, made a very thorough analysis of our garnishment statutes existing in the 1895 Revised Civil Statutes, and came to the conclusion that the garnishee could be held only for such indebtedness as was owed when the writ was served or when the answer was filed if there was an increase in the indebtedness between the time of service and filing of the answer, but judgment could not be had for indebtedness arising after the time for filing an answer. We have compared our present rules with the material articles of the statutes considered by Justice Williams and find them to be the same in all material respects. It is true that in the case the garnishee held notes of the judgment debtor for collection and there was no obligation on the garnishee to pay anything until it had collected and, of course, when the answer was filed it could not be known whether anything would be collected. However, the necessary effect of the construction given the statute is that the garnishee can be held liable for only such amount as can definitely be ascertained as owing when the answer is filed.

In the case before us, at the date of filing the answer there was an absolute obligation to pay during the life of Glenney, Jr., but it would terminate if the judgment debtor was not alive when the date for payment fixed by the contract arrived. However, we are of the view, in the light of the rules with regard to garnishment, that this makes no difference. Rules 659 and 661, Texas Rules of Civil Procedure, provide that the answer of the garnishee shall state, and the writ of garnishment shall require the garnishee to state, “what, if anything” he is indebted. Rule 668, with regard to the kind of judgment that shall be rendered, provides in substance that if it appears from the answer, or is otherwise made to appear that the garnishee is indebted to the debtor in any amount, or was so indebted when the writ was served, the court shall render judgment in the amount so admitted in the answer or found to be due, unless the amount found to be due is in excess of the judgment, in which case judgment shall be rendered for the full amount of the judgment, interest and costs. Construing all these rules together, we think the term “what, if anything” the garnishee is indebted means not merely whether he is in fact indebted, but also in what amount. In this case because of the nature of the obligation the amount matured at the date of the answer is the only amount that could be stated.

If it be suggested that Rule 668 seems to authorize judgment for an amount shown to be owed at the time of trial because it uses the term “the amount * * * found to be due”, it suffices to refer to Justice Williams’ opinion in the above cited case. He expressly noticed this terminology but rejected the implication that the term referred to the time of trial. When the other pertinent statutes are considered, it is seen to refer to the determination made as to the amount due at the filing of the answer, where the answer does not correctly reflect the amount due and the plaintiff in garnishment has joined issue by its controverting plea.

Our holding, that the indebtedness for which the garnishee is liable is the amount certain for which the garnishee is absolutely liable as of the date his answer is filed, finds support in two Texas cases. We have found none in Texas to the contrary. Shropshire v. Alvarado State Bank, Tex.Civ.App., 196 S.W. 977, C.C.A., no writ hist., and Blankenship & Blake Co. v. Moore Bros., 4 Willson Civ.Cas.Ct.App. 145, 146, 16 S.W. 780.

Appellant, in addition to relying on a case from Kentucky and one from Illinois, that do support her position, relies on the Texas cases of Neal v. Kurz, Tex.Civ.App., 26 S.W.2d 478, C.C.A., no writ hist., and Marble Falls Ferry Co. v. Spitler, 7 Tex.Civ.App., 25 S.W. 985, C.C.A., no writ hist. These two Texas cases relied on by appellant are distinguishable from our case and the last two cited by us in support of our decision. In appellant’s cited cases at the time of the service of the writ of garnishment and of the filing of the answer there were installment obligations owed absolutely in an amount certain. Some installments of the obligation had not matured, but judgment was allowed directing payment to the plaintiff in judgment as they matured. In our case and in the cited cases there was an obligation to pay, but the amount, except for that which had matured, could not be determined because additional payments might never accrue, since they were based on a contingency that might occur at any time.

Appellee has two Cross-Points. One challenges the judgment for $200.00 on the ground that these monthly installments are, except for a small social security payment, the only means of livelihood for D. J. Glen-ney, Jr. and his wife. Public policy is the basis of the challenge. This point is overruled.

Appellee’s second Cross-Point is the alleged error of the trial court in refusing him an attorney’s fee and adjudging costs against him. There is serious question whether appellee properly perfected his appeal. However, we are of the view that he is not entitled to attorney’s fees and costs unless he is discharged. In this case he contended in his answer that he had nothing belonging to the debtor that was subject to garnishment. Judgment was against appel-lee as to $200.00 though he contended this was not subject to garnishment. There was no error in the court’s ruling.

The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Mrs. Lena HORNER, Appellant, v. R. D. SEIDERS, Appellee.
    No. 11181.
    Court of Civil Appeals of Texas. Austin.
    Oct. 2, 1963.
    Rehearing Denied Oct. 23,1963.
    Victor Gleckler, Austin, for appellant.
    Hart & Hart, Austin, for appellee.
   PER CURIAM.

The uncontested motion of appellee to dismiss this appeal is granted.

Final judgment was rendered herein May 9, 1963. No motion for new trial was filed until July 8, 1963. It was overruled on the same date.

For a period of thirty days following the rendition of final judgment no action thereto was taken by any party or by the Trial Court.

The filing of the motion for new trial after the expiration of thirty days from the date of the final judgment and the order overruling it were both ineffective to extend the Trial Court’s jurisdiction over such judgment beyond the thirty day period. Rule 329b, Texas Rules of Civil Procedure.

The transcript and statement of facts were filed in this Court on September 6, 1963. This was more than sixty days from the date of the final judgment. Rule 386, T.R.C.P. They were therefore, inadvertently filed.

The appeal is dismissed.

Dismissed.


author: FRASER, Chief Justice.

text:
    Iva Roberts DINGMAN et al., Appellants, v. Howard C. SPENGLER, Jr., et al., Appellees.
    No. 5574.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 11, 1963.
    Rehearing Denied Oct. 23, 1963.

      Leonard Howell, Midland, for appellants.
    Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., Charles L. Tighe, Midland, for appellees.
   FRASER, Chief Justice.

This is an appeal by Iva Roberts Ding-man and Carl H. Perry from an adverse judgment rendered in the 142nd Judicial District Court of Midland County, Texas, against their claim to land under the ten-year statute in a Trespass to Try Title suit. Trial was before a jury, but at the close of the evidence the trial court withdrew the case from the jury and granted judgment for title and possession of the property to appellees as a matter of law.

The controversy here involves a tract of land described as being 24.8 acres of land out of Section 11, Block 40, T2S, T. & P. Railway Company Survey, Midland County, Texas. It is shown and designated as Tract F4 on a plat referred to by both sides of this controversy, and which appears at page 555 of the Statement of Facts. It appears

that the appellees here are the record owners of said Section 11, and the appellants are the record owners of certain land lying to the north of Section 11 and being a part of the South one-half of Section 2, Block 40, T2S, T. & P. Railway Company Survey, Midland County, Texas. The north boundary line of Section 11 is the south boundary line of Section 2 and is intersected diagonally from southwest to northeast by railroad and highway rights of way, with the result that the tract here involved, to-wit, Tract F4 of Section 11, lies north, and Tract F3 of Section 2 lies to the south of the railroad and highway. Appellees claim title to F4 under and through one Dennis Kennedy, who was grantee from the original patentees of said Section 11. Appellants claim title to Section 2 through one T. B. Roberts, who bought part of Section 2 in 1904. The original and source of the titles to F4 and F3 are not in contest. It is alleged that appellants had used F4 for many years, although it originally belonged to appellees, and appellees had for many years used F3, although it originally belonged to appellants and their predecessors in title. The reason for this arrangement is apparent from the map exhibit, a copy of which is included with this opinion so that the reader will be better able to follow the discussion. The diagonal course of the railroad cuts off F4 from the northern part of its section, and F3 from the southern part of its area, thereby making it economical and feasible for the various parties in ownership and possession to use each other’s land.

Appellants here claim title to Tract F4 by adverse possession for ten years or more. It appears that the tract herein involved lies within the fences of the part of Section 2 long owned by appellants, but was never separately fenced or set out, the fences of appellants extending south to the highway and railroad rights of way at the east and west terminal points of the tract involved. It appears undisputed that the fence enclosing all of the South half of Section 2 included F4 and was kept in repair by the appellants, referred to as the Roberts family, although it is not clear that they built the fences.

In 1957, after the land in Section 2 had been divided among the Roberts heirs, Mrs. Iva Roberts Dingman, who had received part of this land, built a home, dug a well and planted some 400 trees on Tract F4. She was soon notified that she must not move this home over to Tract F3. She thereupon filed the suit in question, claiming title by virtue of ten years or more adverse possession. At the conclusion of the trial of the case, the court withdrew the matter from the jury and granted judgment for title and possession of the tract in question to appellees. In the trial court appellants did not set out any particular ten-year period during which their title matured, but alleged possession and use of the property for more than fifty years.

Appellants’ first point alleges error on the part of the trial court in taking the case from the jury and awarding judgment to appellees. The Statement of Facts here is voluminous, and we will not attempt to review the entire testimony, but rather make an attempt to touch upon the salient points.

First of all, with regard to the fencing, it must be noted that Tract F4 was enclosed by the fences of appellants as they joined the highway and railroad rights of way, and then proceeded in a northerly direction. The northerly boundary of Tract F4 does not appear to have been set off from appellants’ Tract 2 by any fence, and so it seems apparent that the tract in controversy here — to-wit, F4 — was fenced on its southerly boundary by the highway and railroad rights of way, and on its east and west boundary by appellants, but was not fenced at all on its northern boundary. It therefore is clear that F4 was not divided or separated from F2, appellants’ portion of Section 2. It appears from the record that appellants’ cattle often grazed on Tract F4, but watered on appellants’ own property in F2; and although appellants did raise crops on a portion of their part of Section 2, they never ■cultivated any part of Tract F4 and put no improvements of any kind on this tract until 1957. There is no evidence that appellants or any of their predecessors rendered F4 for taxes or paid any taxes on same until 1958, and never executed any instruments of record referring to the title of F4 until 1958, although they had executed title instruments involving their part of Section 2 on several occasions. On the contrary, it appears that appellees did pay taxes on Section 11, of which F4 is a part, and on three different occasions — to-wit, 1922, 1932 and 1949 — the owners of Section 11 sold land for right of way purposes and received, without protest from any appellant, the compensation therefor. On the opposite side of the picture, we cannot find in the record any overt or visible act or manifestation on the part of the appellants showing or defining their intention to claim F4. The only use was apparently the grazing of cattle, but the record does not reveal that they ever dug a well, set up a water trough, or did anything other than permit the cattle to wander down on F4 and graze. The record does reveal that the cattle had to return to F2 in order to obtain water. As stated above the record shows, also, that the owners of Section 11, of which F4 is a part, had paid the taxes on said Section 11 for many, many years, and had committed overt acts indicating ownership, such as the three documentary instruments referred to above, and the receipt and retention of monies for the sale of right of way from and use of Section 11.

It is undisputed that he who seeks title by adverse possession (here, under the 10-year statute) has the burden of proof to prove the elements necessary to establish such adverse possession as defined and delineated by the statute and the cases thereunder. We believe that the case of Orsborn v. Deep Rock Oil Corporation, 153 Tex. 281, decided by the Supreme Court of Texas in an opinion dated March 31, 1954, and cited as 267 S.W.2d 781, is decisive of the matter before us, and we feel that we are constrained to follow the rule and reasoning in such case, although there is a comprehensive and scholarly dissenting opinion contained within such case. We believe the decision of the case itself is the law governing the matter now before us. The facts in the cited case are very similar to the one before us, in that it involved a tract within a tract that had been used for many years; and, like the tract here, however, had not been separately fenced, and cattle had been permitted to graze on the disputed tract. It appears that the taxes on the larger tract had been paid for many years, but the smaller tract had never been separately rendered. It must be noted that the fencing situation in the Orsborn case is similar to the one before us, in that there is no evidence in this case that appellants deliberately or intentionally fenced any part of Tract F4, but that the tract was within a tract owned and used by appellants. The southerly boundary of F4 was fenced off by the railroad and highway, and there is no evidence that the east and west fences, which substantially contained the property of appellants, were ever built or caused to be built by them for the purpose of asserting any claim to or adversely using Tract F4. In the Orsborn case the Supreme Court pointed out:

“When the use relied upon to support the statute is grazing, there must be also at the same time sufficient enclosure, such as to give evidence that the land was designedly enclosed and to show the assertion of claim hostile to the true owner. Vineyard v. Brundrett [17 Tex.Civ.App. 147], 42 S.W. 232.” (Emphasis ours).

Prior to this quotation the court carefully and definitely stated, “It is settled that limitation title cannot be acquired by grazing unenclosed land”, and cited cases thereunder. The Supreme Court then goes on and states that it is in agreement with the court of civil appeals that when the disputed tract of land has been casually or incidentally enclosed with other land — especially when, as here, such other land is held by the possessor under deed — the incidental enclosure and the casual grazing of the disputed tract by cattle straying from the titled land will not admit to such adverse and hostile possession and use as will support the statute of limitations. For the sake of brevity we do not repeat the many cases cited by the Supreme Court. The court also cites from Harmon v. Overton Refining Co., 130 Tex. 365, 372, 109 S.W.2d 457, 460, 110 S.W.2d 555, that in order for a vendee to acquire title by adverse possession of additional or adjoining land outside the limits of the boundaries in his conveyance, he must have actual possession of such additional land of such character as of itself will give notice of an exclusive adverse possession and mature into title after the statutory period. The court states in this particular case (cited in the Orsborn case) that the tract in controversy was not fenced or visibly occupied, and the only use made of same was a casual grazing of cattle. The court, in the Orsborn case, also states as follows in quoting from West Production Co. v. Kahanek, 132 Tex. 153, 121 S.W.2d 328, 331:

“Where the character of use of inclosed land, by a claimant of adverse possession, is not such as to constitute, of itself, an actual and visible appropriation of the land, it may be safely said that such use cannot be aided by a fence which casually created the inclosure, and to the construction of which fence neither the claimant of adverse possession nor any person under whom he claims has contributed.”

In the case before us the record discloses that appellants and their predecessors did keep the fences up and in repair, but we have no record that they designedly built them. The court states, 267 S.W.2d on page 787 of the Orsborn case: “And the intention of the possessor to claim the land as his own or to hold it for himself must be manifested by open or visible act or declaration showing such a purpose.” The court then says, in the next paragraph: “Petitioner had the burden of proving the elements of adverse possession, including ⅛ claim of right’ ”. The court further states that such proof must be clear and satisfactory; then says: “No matter how exclusive and hostile to the true owner the possession may be in appearance, it cannot be adverse unless accompanied by the intent on the part of the occupant to make it so. The naked possession unaccompanied with any claim of right will never constitute a bar.” (This is a quotation from another case adopted and included in the Orsborn opinion). If this were not enough, the Supreme Court, in the Orsborn case, goes on and states as follows:

“Claim of right must be manifested by declaration or by open or visible act. If there is no verbal assertion of claim to the land brought to the knowledge of the land owner, the adverse possession must be so open and notorious and manifested by such open or visible act or acts that knowledge on the part of the owner will be presumed. Hopkins v. Waterstreet [Tex.Civ.App.], 275 S.W. 303.”

With these legal pronouncements from our Supreme Court confronting us, we now examine the record in the case before us to see if the fact situation brings us under the holding in the Orsborn case. It appears from the record that the year 1958 is the only occasion on which any but the record owners of Section 11 rendered F4 for taxation. Mrs. Dingman, one of the appellants, did render it in that year — 1958— for taxation. There is no mention of F4 in the various probate proceedings involved in the Roberts (appellants) title. A Jack Perry, brother-in-law of appellant Mrs. Dingman, testified that he lived on the Roberts place (part of Section 2) for about four years beginning about 1922 or 1923; that he lived in the same house with Mrs. T. B. Roberts and Iva Roberts Dingman (who was then Iva Roberts); that Mrs. T. B. Roberts told him that part of the land within the fence enclosing the south half of Section 2, and specifically in the southwest portion of the fenced area, belonged to the Scharbauer Cattle Company. He also tes-lifted that Mrs. T. B. Roberts acknowledged there was an agreement or understanding that the Scharbauers would use that part of Section 2 lying south of the railroad (F3) and the Roberts would use that part of Section 11 (F4) lying north of the railroad. He also testified that neither Mrs. T. B. Roberts nor her son, Holly Roberts (who lived on the place for many years and helped to run it) ever claimed to own that part of Section 11 now designated as Tract F4. Hewitt Perry, grandson of Mrs. T. B. Roberts, who lived on the place with his father, Jack Perry, and visited thereon with his grandmother frequently thereafter, testified that he knew that part of Section 11 was within the fence around the Roberts place, and that this fact was spoken of from year to year, but that neither Mrs. T. B. Roberts nor Holly Roberts ever made any claim to the property, and that no claim was ever made by any of the Roberts family “until this thing came up”. The exhibits also show that both the appellants and ap-pellees executed various right of way deeds to the State of Texas. These exhibits show that Mrs. Roberts, in deeding a part of Section 2, made no mention of Section 11; and further, that neither Mrs. T. B. Roberts nor any of her children ever claimed any of the money paid by the State or county for the right of way across Section 11. Also, there was introduced into evidence tax renditions for the years 1929 to 1932, signed by either Mrs. T. B. Roberts or Holly Roberts, which renditions assert that Section 2 was the only property owned by either of them in Midland County, Texas. Furthermore, it is in testimony that Holly Roberts, who was running the place for Mrs. T. B. Roberts, acknowledged to a Mr. Cecil Roberts and to Mr. Clarence Scharbauer, Sr., that part of Section 11 was north of the railroad and within the Roberts fence and that it did not belong to the Roberts family. Furthermore, there is an exhibit showing that a Mr. J. G. Miller leased the Roberts place from 1944 until 1955 and lived on the property. This written lease executed by Mrs. T. B. Roberts and Holly Roberts leased the South half of Section 2, and makes no mention of Section 11. Mr. Miller testified that while he was on the property, he found out there was an “off piece of land” within the fence, but that he never claimed it, nor did any one of the Roberts family ever claim it. The exhibits show that all of the oil leases executed by the appellants covered only Section 2, and made no mention of Section 11. Other exhibits show that Section 11 was leased in its entirety by some of the appellees. The probate proceedings involving Mrs. T. B. Roberts, who died in 1956, do not make any reference to Section 11 or Tract F4. Shortly thereafter, her son, Holly E. Roberts, died, and Section 11 is not mentioned in the inventory and appraisement of his estate. There is also a statement in the record by appellant Mrs. Ding-man, made to Mr. J. M. Speed, Tax Assessor and Collector of Midland County in 1958, that she wanted to pay the taxes on Tract F4 because “she had traded with the Scharbauers for all north of the railroad for what was south of the railroad”. This statement, of course, does not indicate or substantiate a prior adverse possession claim, and was made in 1958. Mr. Clarence Scharbauer, Jr. testified that the Scharbauer Cattle Company had leased all of Section 11 for 55 or 60 years prior to this lawsuit, and that there had been an agreement as far back as he could remember that the Schar-bauers would use that part of Section 2 (F3) lying south of the railroad, and the Roberts family would use that part of Section 11 lying north of the railroad (F4). While voluminous, all these facts, we believe, are necessary to show that appellants failed to carry out their burden of proof of adverse, hostile and open possession of the tract in question; but, in fact, used the tract by agreement and that it was never designedly fenced by appellants for the purpose of claiming ownership. In other words, the necessary open and notorious acts and claim are not sufficiently presented in the case before us. Various Texas cases have stated very clearly that a claim of right must accompany possession, and that the proof must not only be actual, but visible, continuous, notorious, distinct and hostile, and of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant. Rick v. Grubbs, 147 Tex. 267, 214 S.W.2d 925; Satterwhite v. Rosser, 61 Tex. 166; Village Mills Co. v. Houston Oil Co., Tex.Civ.App., 186 S.W. 785; Houston Oil Co. v. Stepney, Tex.Civ.App., 187 S.W. 1078.

The cases cited by appellants, in our opinion, have a different fact situation — as, for example, in the case of Wilson v. Rogers, Tex.Civ.App., 343 S.W.2d 309. There the successful adverse claimant committed overt acts — to-wit, wrote letters to the record owners offering to buy or lease the property and stating that if he received no reply he would fence the land and use and claim it and adverse possession. This was certainly an open, adverse and hostile manifestation. Also, in Click v. Collins, Tex.Civ.App., 273 S.W.2d 90, the court apparently was influenced by the fact that the claimant had not only built a fence, but put up a “No Trespassing” sign shortly after going into possession, and the court of civil appeals there apparently felt that this was sufficient visible appropriation of the land.

For the above reasons we feel that we are constrained by the reasoning and ruling of our Supreme Court in Orsborn v. Deep Rock Oil Corporation, supra, to hold that appellants here failed to meet the burden of proof necessary to successfully assert adverse title under the ten-year statute. We must say, in passing, that we have carefully studied the exhaustive and distinguished dissenting opinion of three of the Supreme Court justices in the Orsborn case, but feel, nevertheless, that the case before us is controlled and decided by the majority opinion in the aforesaid Orsborn case. There does not seem to be any disagreement as to the material facts in the case before us, and we believe the court was therefore correct in his action in withdrawing the case from the jury and holding, as a matter of law, that appellants had failed to prove adverse title by the ten-year statute. The actions of the parties, the contents of the documents, and the treatment by various authorities, such as the tax office and the State of Texas, appear to be undisputed. Appellants’ first point is therefore overruled.

Appellants’ second point alleges that the court committed error in setting aside appellants’ prior interlocutory decree against certain non-answering defendants, and rendering final judgment after trial for all the record owners. Appellees answer this claim by stating that inasmuch as the court found that appellants had no claim whatever to the land in controversy (Tract F4), appellants therefore could not be damaged by the dismissing of the interlocutory judgment against certain non-answering ap-pellees. In short, appellees’ position is that, when the court rendered its judgment that appellants take nothing, the interlocutory judgment was properly overruled. It has been said that proof of title to an undivided interest in a tract will support a recovery of the entire parcel as against a stranger to the title and, therefore, that as against a trespasser the entire premises may be recovered by one who has taken a conveyance of a fractional interest in the property. It has long been the law that a claimant under adverse possession must succeed on the merits of his own position, and not on the weakness of any defendant. In other words, the burden of proof is on the adverse claimant. 41-A Tex.Jur. 523, Sec. 11; Padgett v. Guilmartin, 106 Tex. 551, 172 S.W. 1101. We think the law to be as stated above in both the cases and the text. The court having found title in favor of certain record owners who had answered in the case, therefore title was denied to appellants as against all non-answering appellees, as set forth in the authorities stated above. Appellants’ second point is therefore overruled.

Appellants’ third point alleges that the trial court was in error in refusing to permit appellants to amend their pleadings and bring in new parties after the trial had been completed. We do not find merit in this point, as the record and transcript show that the parties which appellants desired to bring in at the close of trial had been included in their original petition, but omitted in their amended petition. In Nelson v. Seidel, Tex.Civ.App., 328 S.W.2d 805, the court says: “The amended petition filed by appellee, in which Gillespie was omitted as a party-defendant, had the effect of dismissing the cause as to the said Gillespie.” In the matter before us Mr. and Mrs. Stenzel, while mentioned in the original pleadings, were not included as parties defendant in the pleading upon which appellants went to trial. Therefore the court had no jurisdiction over them. It is our opinion that having omitted these parties in their amended petition, appellants — inadvertently or otherwise — dismissed them from the lawsuit. Brennan et al. v. Greene et al., 154 S.W.2d 523 (Tex.Civ.App., wr. ref.); Ridley v. McCallum, 139 Tex. 540, 163 S.W.2d 833. We therefore overrule appellants’ third point.

Appellants’ fourth point complains of the court’s refusal to permit a witness who was an attorney to testify relative to a partition deed executed by and between the heirs of Mrs. T. B. Roberts. We overrule this point because it appears from the record that the same matter came before the court through the lips of another witness. The testimony involved a quitclaim deed to Tract F4, given to Mrs. Dingman from her relatives. Mr. Hewitt Perry stated that this exhibit was “part of the entire agreement” and that Mrs. Dingman agreed to take Tract F4 as part of her share. The evidence, therefore, was before the court; but in any event we doubt very much that the evidence was admissible under any consideration, in that it included hearsay testimony and conclusions. In any event its exclusion would not have constituted reversible error under Rule 434, Texas Rules of Civil Procedure. It must be noted that this deed and all transactions concerning it were between and among appellants, and not from or by any of the appellees whom the court found to be the true owners of Section 11, which included Tract F4. This point is accordingly overruled.

In conclusion we should like to point out that, in the voluminous fact record, there are many references as to what various appellants thought or said relative to the type of ownership or possession they were exercising over Tract F4. Without going into the matter other than by this reference, we believe the authorities cited under Point 1 fully discuss and determine this matter, in that they hold that discussions or statements by and between claimants under an adverse possession claim are mere conclusions or inferences and are wholly insufficient to validate title by adverse possession in the absence of the other necessary elements, such as the open, visible and hostile possession and acts designed to show same.

Having found no error, appellants’ points are all overruled, and the judgment of the trial court is affirmed.


author: DENTON, Chief Justice.

text:
    B. M. ROBERTS, Appellant, v. Dawn O. BREWER, a Feme Sole, Appellee.
    No. 7265.
    Court of Civil Appeals of Texas. Amarillo.
    May 27, 1963.

      Folley, Snodgrass & Calhoun, Amarillo, for appellant.
    Walter P. Wolfram, Amarillo, for ap-pellee.
   DENTON, Chief Justice.

This is a suit seeking specific performance of a contract. Mrs. Dawn O. Brewer, as owner and operator of a lounge, entered into a written agreement with B. M. Roberts whereby she agreed to give Roberts the exclusive right to place amusement machines in her place of business in consideration of Roberts lending her the sum of $1,077.38. Roberts’ sworn petition alleged the execution of such contract and its breach, and prayed for an injunction restraining Mrs. Brewer from operating any amusement machines on her premises other than those owned by appellant; and on final hearing sought specific performance ■of the contract. The trial court sustained appellee’s special exception to appellant’s petition which was to the effect the contract was not capable of specific performance, but the performance thereof would require the constant supervision of the court over a long period of time. Upon appellant’s refusal to amend, appellant’s suit was dismissed. This action of the trial court is; complained of in appellant’s one point of error. No brief has been filed by the ap-pellee.

The sole question to be decided is whether or not the enforcement of the contract requires such supervision of the trial court so as to render the remedy of specific performance unavailable as a matter of law". It is uncontradicted from this record that appellant has no adequate remedy at law. By deposition, appellee testified she owned no property subject to execution, and was in effect insolvent. She leased the premises which is involved here. The parties operated under the contract for some two years and four months before appellee removed appellant’s machines from her premises. Appellant seeks no recovery of damages.

We see no difficulty in enforcing the specific performance of this contract. The injunctive relief sought will have the effect of preventing amusement machines other than those owned by appellant to be placed in appellee’s premises. The contract contains clear and concise language that is unambiguous, and does not present any practical difficulty which would render it un-enforcible. Specific performance of the contract would simply require appellee to place appellant’s machines in her place of business so long as she operates the same. In our opinion the enforcement of the contract would not require constant or continuing supervision by the court. City of Tyler v. St. Louis Southwestern Ry. Co. of Texas, 99 Tex. 491, 91 S.W. 1; Lone Star Gas Co. v. Municipal Gas Co., 117 Tex. 331, 3 S.W.2d 790, 58 A.L.R. 797; Nueces Valley Townsite Co. v. San Antonio U. & G. R. Co., 123 Tex. 167, 67 S.W.2d 215; Central Power & Light Co. v. Purvis, (Tex.Civ.App.), 67 S.W.2d 1086, (Writ Refused).

The judgment of the trial court is accordingly reversed and the cause is remanded for a trial on its merits consistent with this opinion.

Reversed and remanded.


author: CHADICK, Chief Justice.

text:
    Callie SEWELL, Appellant, v. Randall LONDON, Appellee.
    No. 7483.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 13, 1963.
    Rehearing Denied Aug. 27,1963.
    Ralph R. Rash, Sulphur Springs, for appellant.
    Joe N. Chapman, Sulphur Springs, D. L¡ Case, Jackson, Walker, Winstead, Cant-well & Miller, Dallas, for appellee.
   CHADICK, Chief Justice.

This is a common law negligence action for damages resulting from personal injuries. The trial court sustained the defendant’s motion and entered a summary judgment denying the plaintiff a recovery. The judgment of the trial court is reversed and the case remanded. The original opinion dated July 9, 1963, is withdrawn and this substituted for it in overruling the ap-pellee’s motion for rehearing.

Randall London, the defendant below and appellee in this court, is an employee in the High School of the Sulphur Springs, Texas, Independent School District. He teaches the subject, “Building Trades”, in the vocational educational department. The plaintiff in the trial court and appellant here, Callie Sewell, was a sixteen year old boy enrolled as a pupil in the school and assigned to the Building Trades class.

At the term beginning in the first days of September, 1961, the school set up as a project for the Building Trades class the erection of a large dwelling house for a private individual; the school to be reimbursed for material. The pupils in Mr. London’s class were assigned to do the work during the regular class periods under his supervision and direction.

In the course of instruction on the 5th day of December, 1961, Callie Sewell and a fellow pupil were assigned the work of sealing the inside wall of a room. The assignment involved sawing and fitting 1x6 planks; this involved ripping out a part of a plank to conform with a window opening. Callie Sewell was operating a power saw in the performance of this work when a mishap occurred in which his right hand was injured to the extent that the right forefinger, middle finger and a part of the hand were amputated, and some muscle tendons and ligaments of his left leg severed,

Callie Sewell, joined by his father as next friend, in his trial petition asserted several ac*s or omissions by defendant London, alleging each to be negligence and the proximate cause of Callie Sewell’s injury. As the petition is understood, the acts or omissions include, among others, the following: The teacher failed to give the pupil supervision; the teacher failed to give the pupil instructions in the proper technique of handling the power saw; the teacher required the pupil to use a defective power saw; the teacher failed to take the power saw out of use until its defects were repaired; and the teacher failed to instruct the pupil in the safe use of the defective power saw.

The trial court sustained a motion for summary judgment and entered a take nothing judgment. This court has concluded that the evidence raised a fact issue in connection with the alleged negligence of the teacher in requiring the pupil to use a defective power saw, which should be determined in a trial on the merits; and that the teacher’s defensive theory of volenti non fit injuria is not proven as a matter of law. On reaching this conclusion reversal must follow, and it becomes immaterial whether fact issues of other negligent acts or omissions are shown or the legal consequences thereof, and no decision is made respecting the other allegations.

The pupil testified that when the teacher assigned him the work that included ripping tile 1x6 planks with a power saw that he asked the teacher’s permission to use a lighter saw but was told to use the saw at hand. The pupil said that the saw he was directed to use had a defective switch and blade guard. He swore that he had previously called the teacher’s attention to the defects; that the day before the mishap the switch worked improperly. The power saw, also referred to by all parties as a skill-saw, was powered when a trigger switch was pressed and held back, and the power shut off when the pressure on the trigger was released. The pupil offered evidence that the power frequently did not shut off until the trigger was manipulated by successive pulls. The teacher testified that some months prior to the time of the accident the trigger switch became faulty, but had been removed and replaced by a new switch, and at the time of the accident it was working perfectly.

The semi-circular blade guard on the saw snaps over the circular blade’s exposed cutting edge when the blade is withdrawn from the saw cut. The teacher testified that the guard’s function was to protect the operator from injury by the blade, and to protect the blade when the saw was not in use. He said that some time before the date of injury the saw had been dropped and the guard bent, but that it had been straightened and was working perfectly at the time the pupil used it. On the other hand, the pupil testified that the guard frequently would not snap into its protective position when the blade was withdrawn from a cut, thereby leaving the blade exposed, and that this condition had been called to the teacher’s attention.

In his testimony the pupil said that the plank being cut lay on saw-horses, his fellow student steadying it at one end. He held the board with his right hand and had the saw in his left when the sawing operation began. As the saw was cutting it “bounced” out of the board and upward as high as his head, came down on his right hand, cutting his fingers, whereupon he released the saw entirely and it fell upon his left thigh, cutting him and then fell to the floor. He said the power did not go off until the saw hit the floor.

There is very little authority to be found in the adjudicated cases in Texas dealing with the tort liability of school teachers in actions of the nature plead and the reciprocal duties of the teacher-pupil relationship. 78 C.J.S. Schools and School Districts § 238c, p. 1197, says in part: “A teacher in the public schools is liable for injury to pupils in his charge caused by his negligence or failure to exercise reasonable care. * * * a teacher is a public servant with limited powers and duties and when engaged wholly in the performance of public duties is liable only for his own acts of misfeasance in connection with ministerial matters.” The same title, 79 C.J.S. Schools and School Districts § 493, p. 442, says: “As a general rule a school teacher, to a limited extent at least, stands in loco par-entis to pupils under his charge, and may exercise such powers of control, restraint, and correction over them as may be reasonably necessary to enable him properly to perform his duties as teacher and accomplish the purposes of education, * * *. If nothing unreasonable is demanded, he has the right to direct how and when each pupil shall attend to his appropriate duties, * * Under the title “Schools”, 47 American Jurisprudence 431, Sec. 180, it is said: “It is the duty of every principal or teacher in charge of a public school to maintain discipline and good order therein and to require of all pupils a faithful performance of their duties. * * * The quoted expressions state broad general principles, some going beyond the questions in issue here. The principles expressed are to be understood as restricted in this application here to the question of the tort liability of a teacher who requires a student to use a defective power saw in the course of instruction at a vocational school project and to the affirmative defense of voluntarily encountering a known and appreciated danger. See also Fulgoni v. Johnston, 302 Mass. 421, 19 N.E.2d 542.

Mr. London denied that he required Callie to use the heavier saw involved in the mishap, and denied the saw was defective at the time of use. The evidence of record is conflicting and creates issues of fact in both respects. The plaintiffs were entitled to have these fact issues determined in the trial of the case on its merit. The evidence also raises a fact issue with reference to proximate cause. Whether or not the defendant’s requirement, if he made it, that Callie use a power saw with a defective switch, defective guard, or both, was the proximate cause of Callie’s injury is a question of fact. The next mentioned facts pertain to the issue and indicate the conflicting nature of the evidence. The saw guard failed to close over the exposed portion of the blade after the saw “bounced” from the cut in the material and the switch permitted the saw to continue to run after the pupil released his handhold on it. A properly operating switch would have shut off power when the pupil’s handhold was released, and a properly operating guard would have snapped shut over the exposed blade when it left its cut in the material. After the saw bounced out of its cut and was falling to the floor the saw blade inflicted injury to the pupil’s leg.

As the argument in the appellee’s brief is understood, it is contended that even though the fact issues mentioned are resolved against appellee, nevertheless Callie Sewell- can not prevail in this action because his, Callie Sewell’s, admitted knowledge and conduct exonerates appellee London of liability. Appellee London bases this exoneration upon the defensive theory of volenti non fit injuria. The parties throughout their pleadings and in their briefs in this court have proceeded on the theory that the relation between Randall London and Callie Sewell is that of teacher and pupil. This tacit agreement by the parties respecting status removes any question of the correlative rights or duties of the parties if some other relationship was shown to exist, such as master-servant, etc.

The evidence is conclusive that Callie Sewell knew the saw’s defects at the time he used it. The affirmative defense of volenti non fit injuria bars Callie Sewell from recovering for his injuries if his use of the saw was voluntary, and he actually knew and appreciated the danger of using it. Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368; 6 Texas Supreme Court Journal 644 (Aug. 3, 1963); Schiller v. Rice, 151 Tex. 116, 246 S.W. 607; Dee v. Parish, 160 Tex. 171, 327 S.W.2d 44-9; Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863. The voluntary quality of Callie Se-well’s action in using the saw is encountered immediately on consideration of the defense.

Besides the questions of the voluntary quality of Callie Sewell’s action, there is no ■conclusive evidence that Callie Sewell, a 16 year old pupil had actual knowledge and appreciation of danger to him in using the defective saw, and decision is rested upon that ground. Such conclusion would have to be reached by inference from evidence that would support a contrary finding. Even less reason exists for saying that such knowledge as he had implied, as a matter of law, a knowledge and appreciation of the danger and that he voluntarily encountered it as in Schiller v. Rice, supra. Knowledge and appreciation are questions of fact for resolution in the trial on the merits. Dee v. Parish, supra; Halepeska v. Callihan Interests, Inc., supra.

The judgment of the trial court is reversed and the case remanded.


text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee, v. Lois B. ODOM, Appellant.
    No. 6608.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 12, 1963.
    Rehearing Denied Oct. 9, 1963.

      Keith, Mehaffy & Weber. Beaumont, for appellant.
    Fulmer, Fairchild & B adders, Nacog-doches, for appellee.
   STEPHENSON, Justice.

This is an appeal from a judgment awarding plaintiff recovery for total and permanent disability under the Workmen’s Compensation Law. The judgment was based upon a jury verdict. The parties will be designated here as they were in the trial court.

The defendant’s first point is as follows: The trial court erred in entering judgment for total and permanent disability because said disability is contrary to the law. This point is too general to demonstrate to this court with sufficient clarity the error complained of. In the statement, argument and authorities, this point is grouped by counsel for defendant with point of “no evidence” and “insufficient evidence” to support the finding of the jury that plaintiff suffered total and permanent incapacity.

The question as to “no evidence” is one of law and is to be tested on appeal by considering only the evidence favorable to the verdict and disregarding all other. The plaintiff testified he had pain in the back of his neck which had been there since the date -of his accident, and that his condition was getting worse. Dr. C. M. Covington testified that in his opinion plaintiff had an extruded disc, most probably between C-6 and C-7, and that plaintiff was totally disabled to do manual labor and in his opinion would be so permanently due to the injury sued upon. The findings of the jury were supported by this evidence.

In determining the point as to the sufficiency of the evidence to support the findings of the jury that plaintiff had sustained total and permanent disability, we must look at all of the evidence bearing on these issues. Giving due application to this rule, we have considered all of the evidence on this point. While there is a definite conflict between the medical witness testifying for plaintiff and defendant, and while there are certain inconsistencies in the record, we cannot and do not conclude that the verdict in this case is so against the great weight and preponderance of the evidence as to be manifestly unjust. This point is overruled.

Defendant contends the trial court committed reversible error in not granting its motion for mistrial because of argument by counsel for plaintiff to the jury. The argument complained of by defendant as informing the jury as to the effect of their answer, was made by counsel for plaintiff in discussing Special Issue 11. This issue read as follows:

“Special Issue No. 11'.
“Do you find from a preponderance of the evidence that the incapacity, if any, you have found, of Lois B. Odom is not due solely to pre-existing conditions, injuries, infirmities or diseases existing independently of and having no connection with the injury alleged to have been sustained by him on August 30, 1961?
“Answer: ‘His incapacity is due solely to pre-existing conditions, injuries, infirmities or diseases’ or ‘His incapacity is not due solely to pre-exist-ing conditions, injuries, infirmities or diseases.’
“Ahswer: His incapacity is not due solely to pre-existing conditions, injuries, infirmities or diseases

The following argument, motion and ruling of the court was made:

“That one hundred and ninety hours, he’d counted it up and knew that was what it was; that is right at fourteen hours per day continously for two weeks; I knew that all the time, but the juror was shaking his head at me, but I knew he was working right at fourteen hours a day; do you think a disabled man could work fourteen hours a day? You don’t think he was disabled before he got hurt. You will have to find he got disabled and actually, solely, wholly, every bit, and if you said, ‘yes’, said ‘Yes, his incapacity was due solely.’ you would be throwing it out the window. Yes, he had no injury.
“MR. McNICHOLAS: May I make my objection?
“THE COURT: Yes, Sir.
“MR. McNICHOLAS: Comes now the Defendant and respectfully moves the Court to declare a mistrial, and as grounds therefor would show unto the Court that Plaintiff’s counsel, Mr. Ful-mer, during his argument to the jury in his argument indicated to the Jury the effect of their answer, such being highly prejudicial to this Defendant and refers to the established Texas Rules of Civil Procedure, and in connection therewith, it being the type of error that cannot be cured by an instruction.
“Wherefore, Defendant respectfully requests the Court to declare a mistrial and discharge the jury.
“Respectfully submitted,
“THE COURT: The motion to declare a mistrial is overruled.
“THE COURT: Ladies and Gentlemen of the Jury, you will not consider that portion of the argument as made by Plaintiff wherein he advised you how to answer a certain issue and if you didn’t answer the issue in a certain way the effect or result of such failure to so answer.
“MR. McNICHOLAS: I respectfully move the Court again to declare a mistrial for the reason that it is the type of error that cannot be cured by an instruction, an instruction only compounding and bringing the error more forcefully to the jury.”

The portion of this argument specifically objected to was the words “you would be throwing it out the window.” Defendant urges this as meaning in effect the plaintiff would not win. Plaintiff argues the meaning was it would be throwing all of the evidence, as to the ability of plaintiff to work 14 hours per day before the accident, out the window. A careful reading of the argument reveals it could be given either interpretation. We must give the plaintiff .he benefit of the doubt. See Texas Emp. Ins. Ass’n v. Mendenhall, Tex.Civ.App., 334 S.W.2d 850. Even should this court place the other interpretation upon this argument, and find counsel for plaintiff was referring to the plaintiff’s cause of action rather than the evidence of long hours of work, we do not believe the attorney would 'have been informing-the jury of anything they did not already know. It must have been obvious to the jury that if plaintiff’s incapacity was due solely to pre-existing conditions, infirmities or diseases, that his cause of action against this defendant would go out the window. Maryland Casualty Co. v. Hill, Tex.Civ.App., 91 S.W.2d 391.

The trial court refused to submit eight special issues requested by defendant inquiring as to whether or not other prior injuries, specifically set out in the requested issues, contributed to plaintiff’s present incapacity. Defendant’s answer contained the following

“Subject to the foregoing, the defendant says that if the plaintiff is suffering from any disability whatsoever, which is not admitted, but expressly denied, then such disability is solely due to diseases, natural causes, and prior injuries, wholly disassociated from the alleged injury forming the basis of this suit.”

Special Issue No. 11, which is set out above in this opinion, was submitted to the jury. This issue substantially followed the wording of the defendant’s answer. The issues requested by defendant were not in the pleadings, and the trial court did not err in refusing to submit them. Rules 277, 279 and 294, Texas Rules of Civil Procedure. Jenkins v. Hennigan, Tex.Civ.App., 298 S.W.2d 905.

The trial court admitted in evidence the hospital records which contained the following:

■‘Diagnosis — Acute cervical strain. Chronic myositis.”

The record was signed by Dr. Copeland. The defendant objected to the admission of the records because they contained the diagnosis of the doctor on the ground it was a hearsay transaction. The trial court sustained the objection at that point. Counsel for plaintiff proceeded to prove by the admission clerk of the hospital that the hospital records tendered were a part of the permanent hospital records, kept in the regular course of business, and signed by Dr. Sam Copeland. When the evidence was re-offered, the record does not show any further objection was made to its admission. Dr. Copeland was called as a witness and testified and was asked about this diagnosis, at which time he testified as follows :

“Acute cervical strain and chronic myositis, which is the diagnosis I entered on that man’s record at the hospital.”

We do not approve of the admission of hospital records containing opinion evidence of a doctor, especially in reference to a subject as uncertain as an acute back strain and chronic myositis. We agree with the statement of law made in the case, Martinez v. Williams, Tex.Civ.App., 312 S.W.2d 742, in reference to the admissibility of this type of evidence. However, even if we assume this error of the court was preserved, in view of the testimony given by the same doctor on the witness stand it was harmless error. Rule 434, T.R.C.P.

Judgment affirmed.