author: COLEMAN, Justice.

text:
    Annie HARTMAN, Individually and as Independent Executrix of the Estate of Morris Kuhimann, Deceased, Appellant, v. Pearl Tiekoetter CRAIN, Guardian of the Person and Estate of Lula Tiekoetter Kuhimann, Appellee.
    No. 14692.
    Court of Civil Appeals of Texas. Houston.
    Jan. 13, 1966.

      James M. Harrington, Edward L. Lasof, Houston, for appellant.
    Herman W. Mead, Houston, for appellee.
   COLEMAN, Justice.

This is a suit for partition of the estate of Morris Kuhlmann, deceased, brought by the guardian of his surviving wife against his independent executrix, who is also the sole devisee under his will. The principal question to be determined is the ownership of funds deposited in the First City National Bank which Annie Hartman claims to own by virtue of a survivorship agreement. Appellee contends that, of the funds in the account, the sum of $5,927.55 constitutes the separate property of her ward and that the balance was community property of Lula Kuhlmann and Morris Kuhl-mann. The trial court so found and awarded appellee $5,927.55 as her separate property together with one-half of the remainder.

In 1941 Morris Kuhlmann and his wife, Lula Kuhlman, established Account No. 13980 in the First National Bank in Houston and in connection therewith signed the bank’s joint checking account form: “The First National Bank in Houston, Houston, Texas, is hereby authorized to recognize either of the signatures below in the payment of funds or the transaction of any other business. Either one or both or the survivor of the parties whose signatures appear hereon may sign checks for withdrawal or for the transaction of other business. The signature of either one shall be sufficient for withdrawal of all or any part of the fund standing to the credit of this account. * * ⅜ ” The account was continued in the First City National Bank of Houston under the same signature card.

On October 29, 1956, the sum of $500.00, which Mrs. Kuhlmann inherited, was deposited in this account. Thereafter she received from the same estate the sums of $3,457.42 and $4,170.13, which were deposited in the account on November 5, 1956, and February 26, 1957, respectively. The balance in this account never was less than $8,127.55 during its existence.

On January 24, 1962, the sum of $13,-311.66 was withdrawn from the account and placed in a new account in the name of M. C. Kuhlmann or Mrs. Annie Hart-mann under an agreement constituting it a joint account with right of survivorship. After this withdrawal only $250.00 was left in the first account. The Kuhlmann-Hart-mann account never fell below the amount of $8,127.55 during the lifetime of Mr. Kuhlmann or until the account was closed on June 27, 1963, and the sum of $8,992.64 transferred into an account in the name of the Estate of Morris C. Kuhlmann by Mrs. Annie Hartmann, Independent Executrix.

Mr. Kuhlmann died May 6, 1963. Mrs. Kuhlmann suffered from hardening of the arteries and was adjudicated non compos mentis June 12,. 1963. Mrs. Hartmann is the sister of Mr. Kuhlmann and Mrs. Crain is the sister of Mrs. Kuhlmann. In November of 1961, Mrs. Kuhlmann’s condition became such that she required special care, and Mrs. Crain took her into her home under an agreement with Mr. Kuhl-mann whereby he paid her $100.00 each month plus the necessary medical expenses. After Mr. Kuhlmann’s death, the estate paid to Mrs. Crain for Mrs. Kuhlmann’s maintenance the sum of $2,477.53. It. appears, therefore, that at the time the Kuhl-mann-Hartmann account was established Mrs. Kuhlmann was disabled to the extent that she needed special care, but that she had not been adjudicated non compos men-tis.

The First City National Bank was named as a defendant in the Plaintiff’s Petition. The bank responded by alleging that it was only a stakeholder and tendered the funds on deposit, $6,358.57, into court. The court discharged the bank, allowing attorney’s fees in the sum of $350.00 payable from the fund.

It is clear that of the funds on deposit in the joint account of Mr. and Mrs. Kuhl-mann, the sum of $8,127.55 was the separate property of Mrs. Kuhlmann. There is no evidence that she had withdrawn any money from the account and the balance in the account exceeded that figure at all times prior to opening of the Kuhlmann-Hartmann account. There is sufficient evidence to trace these funds into the estate account, which was deposited in court by the bank. Sibley v. Sibley, Tex.Civ.App., 286 S.W.2d 657, writ dism.; United States Fidelity & Guaranty Co. v. First National Bank of Fort Worth, Tex.Civ. App., 81 S.W.2d 213, writ dism.

There can be no presumption of a gift to Mr. Kuhlmann from the fact that Mrs. Kuhlmann’s inheritance was placed in their joint account. Tison v. Gass, 46 Tex.Civ.App. 163, 102 S.W. 751, writ ref.; Ralls v. Ralls, Tex.Civ.App., 256 S.W. 688, writ dism., w. o. j. The agreement appears to be one for the protection of the bank in case of unauthorized withdrawals, rather than an agreement creating rights as between the depositors, and does not evidence a gift of an interest in the funds to be deposited. Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48.

Nor was the withdrawal of the money from the bank account as authorized by the deposit agreement and the subsequent deposit of the same money in the Kuhlmann-Hartmann account, effective to defeat the title to the funds held by Mrs. Kuhlmann. In 1887, when by statute the husband had sole management of the wife’s separate property, as well as of the community, the Supreme Court of Texas, in Richardson v. Hutchins, 68 Tex. 81, 89, 3 S.W. 276, held that the husband would be considered a trustee for the wife in managing her separate estate, and held to the duties and liabilities which ordinarily attach to that relation. The Court stated:

“The rule is that every trustee is liable for the diversion of a trust fund, and upon the death of the trustee this liability rests upon his legal representative, and must be satisfied out of such funds in his hands as are subject to the payment of the claims of creditors generally. That the husband is made a trustee by operation of law does not change the rule.”

In Kemp v. Metropolitan Life Ins. Co., U.S.Ct. of App., 5th Cir., 205 F.2d 857, the Court carefully reviewed the Texas authorities relating to gifts made by the husband of community property. In the opinion the Court says:

“Both parties concede the validity of the principle announced in a very early decision of the Supreme Court of Texas, Stramler v. Coe, 15 Tex. 211, 215, that,

“ ‘No consent of the wife is necessary to a valid alienation of such [community], property by the husband. But excessive or capricious donations and sales, made with the intent to defraud the wife, would be void; and she would be entitled to her action against the property of the husband and against third possessors.’

“Naming a third person, to whom no obligation is owed, as beneficiary and paying the premiums with community funds amounts to a gift of the community property, Martin v. Moran, 11 Tex.Civ.App. 509, 32 S.W. 904, 905; 1 de Funiak, Principles of Community Property, Sec. 79, p. 214, Sec. 123, p. 353; Speer, Law of Marital Rights in Texas, Sec. 150, pp. 203, 204, Notes 11, 12. There is no consistency in saying that the wife is entitled to one-half the community property and at the same time that the husband may give away such property without restriction, and consequently in all community property jurisdictions some restrictions are imposed on the power of the husband to give away the common property. 1 de Funiak, Principles of Community Property, Secs. 121 and 122. Apparently Texas recognizes the right of the husband to make moderate gifts for just causes, but excessive or capricious gifts made with intent to defraud the wife are void or at least voidable upon her insistence. * * *

(( * * *

“Indeed, appellees’ counsel frankly and commendably concede that ‘though the statute (Sec. 1 of Article 4619, Rev. Civil Statutes of Texas, 1925, quoted in Footnote 3, supra) makes no exception as to dispositions of community property in fraud of the wife, it is clearly a proper and fixed rule that the power to control the community is limited in this respect.’ Their contention is that only those transfers made with actual intent to defraud are subject to attack and that in this case such intent was not shown. * * *

a * ⅜ *

“Article 3996, Rev. Civil Statutes of Texas, provides that, ‘Every gift, conveyance, assignment, or transfer of, or charge upon, any estate real or personal, * * * given with intent to delay, hinder or defraud creditors, purchasers, or other persons of or from what they are, or may be, lawfully entitled to, shall, as to such creditors, purchasers or other persons, their representatives or assigns, be void.’ In interpreting that article, the Supreme Court of Texas in Biccochi v. Casey-Swasey, 91 Tex. 259, 42 S.W. 963, 964, said:

“ ‘Under this statute we do not consider it material to determine whether the wife could be considered a creditor or not, because she, having a community interest in the land, would be embraced in the language, “or other persons of or from what they are or may be lawfully entitled to” * * *.’

“We think that the District Judge and appellees’ counsel overlooked the distinction between conveyances made for a valuable consideration and voluntary conveyances made without consideration or for inadequate consideration. Such voluntary conveyances are at least prima facie or presumptively fraudulent as to existing creditors. 24 Am.Jur., Fraudulent Conveyances, Sec. 26; Dixon v. Sanderson, 72 Tex. 359, 10 S.W. 535. * * *

⅜ ⅜ *

“Again in Speer, Law of Marital Rights in Texas, 3rd ed., Sec. 150, p. 203, it is said:

“ ‘His conveyance or disposition of the community may be a legal fraud upon her rights though not intended to wrong her. There may be an utter absence of intended fraud, yet the transaction be voidable. He has no right to make capricious gifts of such property * *

“In Huie, Community Property Laws as Applied to Life Insurance, 18 Texas Law Review 131, it was said:

“ ‘And, in spite of the broad language in some of the cases, there is every reason to believe that, when the matter is finally settled, the extent of the husband’s donative power will not be determined solely by an inquiry into his subjective intent. If an intent to defraud is to be required, that intent can be found in the same way that it has been found in the defrauded-creditor cases.’

“In the case of a disposition of community property in fraud of the wife’s rights, the wife has a right of recourse, first against the property of the husband, and, if resort to the husband’s estate proves unavailing, then, against the person to whom the property has been conveyed or transferred. 1 de Funiak, Principles of Community Property, Sec. 126, pp. 362 and 363; Dixon v. Sanderson, supra.”

It is our opinion that we need not concern ourselves over the effect of the survivorship agreement entered into when the Kuhlmann-Hartmann account was established. The inventory of the estate of Morris C. Kuhlmann is in evidence. It reflects that the home on Lot 7, C. H. Bingle Subdivision was listed as separate property having a value of $8,000.00, and this is the only property listed as being separate property. The household effects and the Kuhlmann-Hartmann bank account were listed as community property. The total value of the estate was shown as $18,734.68. There were no claims due to or owing by the estate. The trial court found that a portion of the household effects was the separate property of Mrs. Kuhlmann and that the real estate was community property. These findings are supported by the evidence. It is clear that at the time the Kuhlmann-Hartmann account was established, and at the date of the death of Mr. Kuhlmann, the money in that account was more than double his share of the other community property. The gift of this account to his sister by Mr. Kuhlmann constituted an excessive or capricious donation and was presumptively fraudulent. Kemp v. Metropolitan Life Ins. Co., supra. While appellee did not allege fraud, she has properly traced her ward’s separate property into the bank account claimed by appellant. Since Mr. Kuhlmann had no title to these funds, none passed by a gift made by him. After the attorney’s fee awarded to the bank is deducted, there remains in the account only $81.02, which was community funds.

Mrs. Hartmann was the sole dev-isee under the will of Mr. Kuhlmann and was entitled to receive only his share of the community property. There was no reversible error in the disposition made of the bank account, by the judgment of the trial court.

Appellant urges that the trial court erred in discharging the Bank and allowing attorney’s fees, citing Davis v. East Texas Savings & Loan Association, 163 Tex. 361, 354 S.W.2d 926. The facts in this case are different in material respects from those in the Davis case. Here we have a real dispute as to the ownership of funds, which the bank was not required to determine at its peril. The bank was a stakeholder and was properly discharged on depositing the funds in the registry of the court. In such a case attorney’s fees are allowed.

Appellant also complains that the trial court found the real property not capable of division in kind and ordered it sold and the proceeds divided, when there is no evidence that the property was incapable of being divided in kind. Appellee contends that such evidence was not required because of a stipulation made in open court. The statement of facts reveals this exchange between counsel and the court:

MR. MEAD: I have one question, we are also in a partition suit and I stated earlier I think I know where the property is and I believe it is incapable of division.
MR. HARRINGTON: I think it has no part in the trial. I don’t think it, the Court has jurisdiction. I would be perfectly happy to call a close to this now.
MR. MEAD: This was brought as a partition suit.
MR. HARRINGTON: Are you asking the Court to appoint—
(Interruption)
MR. MEAD: He has to decide—he has to establish whether or not it is capable of being divided.
THE COURT: He said he would stipulate it is not capable of being divided, without prejudice to urge whatever you want to.
MR. MEAD : All right.
MR. HARRINGTON: The real property involved. I have a couple more questions I would like to ask Mrs. Crain.

We consider this a stipulation of the fact in question.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: PHILLIPS, Justice.

license: Public Domain

text:
    MASON FEED STORE et al., Appellants, v. Mrs. James W. STARKS et al., Appellees.
    No. 11349.
    Court of Civil Appeals of Texas. Austin.
    Jan. 5, 1966.
    Rehearing Denied Jan. 26, 1966.

      Blanks, Thigpin, Logan, Steib & Lewis, S. Ancial Middlebrook, San Angelo, for appellants.
    Harold Schmidt, Mason, Brown, Sparks & Erwin, Will Barber, Byrd, Davis & Ei-senberg, Tom H. Davis, Austin, King, Willoughby, Dickenson & Batjer, C. R. Dickenson, Abilene, for appellees.
   PHILLIPS, Justice.

This is a venue case involving the action of the court in respect to the various pleas hereinafter described. James W. Starks was killed in McCulloch County, Texas, in January of 1964 when a truck owned by Mason Warehouse Association, Inc., and driven by Starks was struck from the rear by a truck owned and operated by W. J. Briley.

As a result of this collision, suit was filed in the District Court of McCulloch County by the deceased’s widow, Mrs. Starks, against the Mason Feed Store, W. J. Briley and his brother Homer Briley, Jr. The Mason Warehouse Association, Inc. intervened in the suit to recover for property damage to its truck and trailer.

In the trial court, Mrs. Starks was plaintiff, Mason Warehouse Association, Inc. was intervenor, and the Mason Feed Store, W. J. Briley and his brother Homer Briley, Jr. were defendants.

All defendants filed pleas of privilege. At a hearing held thereon, the pleas of Mason Feed Store and W. J. Briley were overruled and the plea of Homer Briley, Jr. was sustained.

Mason Feed Store perfected its appeal from the overruling of its plea. Mrs. Starks and the intervenor excepted to the court’s ruling insofar as it sustained the plea of Homer Briley, Jr., and perfected their appeal.

No appeal has been taken from the court’s action in overruling the plea of W. J. Briley and such action is therefore final.

We affirm the judgment of the trial court.

The Mason Feed Store is a partnership comprised of Victor Lehmberg and Marvin McMillan, Jr. and has its principal place of business in Mason County. On and prior to January, 1964, it had executed a grain handler’s agreement with the U. S. Department of Agriculture Commodity Credit Corporation. Under this agreement it was to receive grain from the CCC, store it and issue it on purchase orders that had been secured from the Agricultural Stabilization Committee in Mason. This grain was owned by the CCC and stored with The Continental Grain Company in Brownwood, Texas.

Since Mason Feed Store had two trucks and a Railroad Commission carrier permit to haul grain, it made successive, separate oral agreements with the CCC to haul the grain from the Continental Grain Company at Brownwood to the Mason Feed Store in Mason, Texas. The specific contract involved here was for the hauling of two million pounds of milo between December 31, 1963 and January 30, 1964.

Under the Mason Feed Store’s hauling agreement with the CCC, it was its obligation and responsibility to pick up the grain at Brownwood and haul it to Mason on its trucks under its carrier permit. This grain was released by the Continental Grain Company to the Mason Feed Store on authority from the CCC. When the Mason Feed Store picked up a load of grain at Brownwood, a truck bill of lading was executed, copies of which were given to the driver, which were, in turn, delivered by him to the Mason Feed Store.

On a Saturday preceding the collision in which Mr. Starks was killed, the Mason Feed Store made an agreement with Homer Briley, Jr. to haul as many loads of milo from Brownwood to Mason as he could by the following Wednesday. For this, he was to be paid 10 cents per hundred pounds by Mason Feed Store. This was the same grain that Mason Feed Store was obligated to haul under its agreement with the CCC.

Since Homer Briley, Jr. owned several trucks and trailers, the Mason Feed Store asked him to haul as many loads of grain for them as he could. No specific number of loads were mentioned and Homer Briley testified that under the agreement he was free to haul as many loads as he could or none at all.

This hauling arrangement was made directly with Homer Briley, Jr., and the Mason Feed Store expected him to do the hauling on his trucks with his drivers.

Neither Homer Briley, Jr. nor W. J. Briley had a Railroad Commission Permit authorizing them to carry the grain.

Two loads were hauled by virtue of this agreement, however neither were hauled by Homer Briley, Jr. One was hauled by H. D. Poe, whom Homer Briley, Jr. described as a farmer who does a little trucking, and the other load was hauled by W. J. Briley, Homer Briley, Jr.’s brother. Homer Briley, Jr. testified that the check he received from Mason Feed Company was made payable to H. D. Poe and that he turned the entire amount over to H. D. Poe. He testified further that had he been paid for W. J. Briley’s load, he would have likewise turned over the entire amount to W. J. As to any agreement he might have had with W. J. Briley, Homer Briley, Jr. testified that he “just told him they had the grain to haul and that they were needing somebody to help them, and if they got done unloading down here early enough, to go back up there to load a load if he wanted to do it. In other words, I didn’t say he had to go or nothing.”

On January 20, 1964, W. J. Briley picked up a load of CCC grain from the Continental Grain Company in Brownwood to be hauled to the Mason Feed Store under its hauling contract with the CCC and its subsequent hauling agreement with Homer Briley, Jr. Upon recéiving this grain, W. J. Briley executed a bill of lading which listed the shipper as the Continental Grain Company, and the carrier as Mason Feed Store. W. J. Briley signed the bill as Mason Feed Store’s “authorized representative.”

While enroute to deliver this grain to the Mason Feed Store, W. J. Briley collided with the truck being driven by James W. Starks and Starks was killed.

After the collision, the Mason Feed Store had the grain picked up at the scene of the accident and brought to their store in Mason. A copy of the bill of lading, which had been executed by W. J. Briley when he picked up the grain in Brownwood, was sent by the Mason Feed Store to the CCC office in Kansas City for payment. Upon that bill of lading, Mason Feed Store was paid by the CCC for the delivery of the load of grain.

Mason Feed Store is before this Court on one poipt of error, being that of the trial court in refusing to sustain their plea of privilege inasmuch as there are no facts sufficient to establish venue in McCulloch County, Texas.

We overrule this point.

The trial court made no findings of fact consequently, we will view the necessary venue facts raised by the pleadings and evidence most favorable to appellees. See this Court’s opinion in Ball v. Martin, 277 S.W.2d 182.

Article 911b, Vernon’s Ann.Civil Statutes is a comprehensive act requiring, in part, that one who hauls for hire over the highways of this State between incorporated cities must have a permit from the Railroad Commission. Mason Feed Store had such a permit, however neither of the Briley Brothers had one. There is no question but that a permit was necessary for a carrier to haul grain under the facts of this case. The record discloses that both Brileys knew this.

Article 1690b, Vernon’s Ann.Penal Code of Texas, provides in part as follows:

“(a) Every * * * person who violates or fails to comply with or procures, aids or abets in the violation of any provision of this Act [Art. 911b] * * * shall be guilty of a misdemeanor * *

By procuring Homer Briley, Jr. and through him, W. J. Briley to carry a load of CCC grain from Brownwood to Mason for the Mason Feed Store, neither of whom had a Railroad Commission permit, Mason Feed Store procured, aided and abetted in the violation of Art. 911b, within the meaning of Art. 1690b of the Vernon’s Ann.Penal Code and by reason thereof Mason Feed Store was guilty of negligence per se. See Mundy v. Pirie-Slaughter Motor Company, 146 Tex. 314, 206 S.W. 2d 587. We hold that the further requirements of Pirie have been fulfilled in that there is sufficient evidence of negligence on the part of W. J. Briley in operating his truck at the time of the accident. In addition, while the record is silent as to whether Mason Feed Store, Inc. knew that W. J. Briley did not have a permit to haul grain, there is sufficient evidence to indicate that it was negligent in not ascertaining this fact.

Had there been any question of the fact that Mason Feed Store procured W. J. Briley (testimony of a witness for the Mason Feed Store was that none of the partners had talked to W. J. Briley, but that W. J. Briley had talked to some unidentified employee of the store) Mason Feed Store ratified W. J. Briley’s agency when they forwarded the bill of lading Briley had signed to the CCC in St. Louis for payment.

Art. 1995 V.A.C.S., provides, in part, as follows:

“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:
⅝ ⅜ ⅜ ⅜ Jji ⅝
9a. Negligence. — A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a coun- ■ ty other than the county of defendant’s residence are:
1. That an act or omission of negligence occurred in the county where suit was filed.
2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.
3. That such negligence was a proximate cause of plaintiff’s injuries.”

The court having found that the negligence of Briley occurred in McCulloch County, that the Mason Feed Store was negligent as a matter of law under the rule of Pirie above, we have no difficulty with requirement number 2 of Sec. 9a of Art. 1995 in that, while the record is largely silent as to the actual controls that Mason Feed Store exercised over W. J. Briley, there is sufficient evidence to indicate that he had the right of control necessary to establish a relationship with Briley as that of servant, agent or representative acting within the scope of his employment. See Newspapers, Inc. v. Love et al., 380 S.W.2d 582, Sup.Ct.

There is also a line of cases in this State holding that a person with Railroad Commission carrier permit cannot delegate the rights and responsibilities conferred by such permit to others and thereby release himself from liability for the negligence of such persons. Wardlow v. New-berry, Tex.Civ.App., 319 S.W.2d 437; Berry v. Golden Light Coffee Company, 160 Tex. 128, 327 S.W.2d 436. This rule has been applied to those delegating their rights under such a permit to an independent contractor. Davis v. Employers Casualty Co., Tex.Civ.App., 214 S.W.2d 642. This rule was developed as public policy required a rigorous policing of the public highways and the commercial traffic thereon which policing, in turn, requires strict vigilance of the interrelation of those carriers holding permits with those who do not. Consequently, under the rule of the Wardlow, Golden Light and Davis cases, Mason Feed Store is placed in the position of the defendant in person under Section 9a, Article 1995, V.A.C.S. whose negligence proximately caused the accident in question.

Mason Feed Store has urged the rule of law upon this Court stated in McCombs v. Stewart, Tex.Civ.App., 117 S.W.2d 869, and that in Linden Lumber Co. v. Johnston, Tex.Civ.App., 128 S.W.2d 121, writ dism. Here the shippers of cattle and lumber, respectively, were not held liable for the torts of the carriers they employed who were overweight in the former and without a permit and also overweight in the latter. These cases are not in point here as in each the shipper owned the cattle and the lumber shipped. The Motor Carrier Act does not require a person to have a carrier permit to transport his own goods. Consequently, any negligent acts of the carriers in McCombs and Linden were those of independent contractors not attributable to the shippers. This is not the case here. Under its contract with the Commodity Credit Corporation, the relationship of the Mason Feed Store was that of carrier and not owner with the resulting liability for an attempt to delegate its authority. W. J. Briley was hauling such grain for the Mason Feed Store, at the time of the accident under its hauling contract with CCC, and Mason Feed Store was paid by the CCC for the haul.

Mason Feed Store further contends that since the accident occurred on the public highway between Brady and Mason the second incorporated town had not been reached, consequently W. J. Briley did not need a carrier permit to haul the grain, citing Article 911b, V.A.C.S. We overrule this contention. Art. 911b requires a permit in such cases where a highway between two or more incorporated cities has been traversed. See State v. Acel Delivery Service, Inc., 388 S.W.2d 930, Sup.Ct.

As stated above, Mrs. Starks is an appellant here as well as an appellee. She presents three points of error being that of the trial court in sustaining the plea of privilege of Homer Briley, Jr. on the theory that he was acting as the agent of the Mason Feed Store and that as a matter of public policy he was responsible for the negligence of W. J. Briley; that he was the party to a conspiracy to procure the hauling of grain in violation of Article 911b; that he was guilty of negligence per se in violating Art. 1690b of the Vernon’s Ann.Penal Code in that he aided and abetted the hauling of grain in violation of Article 911b which by the negligent acts of W. J. Briley became as a matter of law the proximate cause of the collision in question.

We overrule these points.

Subdivision 2 of Section 9a of Article 1995 set out above requires that the act or omission in question be that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.

Homer Briley, Jr. does not qualify under this provision as either the agent of Mason Feed Store or of W. J. Briley. Homer Briley, Jr. was asked by Mason Feed Store if he could help them by hauling grain from Brownwood to Mason. There was no agreement on the amount or the number of loads. He was not bound or obligated to haul any grain for Mason Feed Store. The two trucks he owned were unavailable to haul the grain and when he saw his brother W. J. Briley, he told him that the Mason Feed Store had grain to haul, that they needed help, that if he wanted to haul some of it he could. The Briley brothers did not operate as partners or divide profits. Homer Briley, Jr. did not plan to make and did not make any profit on the transaction in question. The bill of lading on the load of grain which was involved in the collision shows the carrier to be Mason Feed Store. The bill of lading was signed by W. J. Briley as authorized representative of the carrier. Homer Briley, Jr. at most, was merely a conduit for the information that grain could be hauled for Mason Feed Store. These facts do not establish the necessary agency under the statute or place Homer Briley, Jr. in the position of an illegal carrier under Wardlow and its companion cases.

We affirm the judgment of the trial court.


text:
    Claude BERDOLL, Appellant, v. Ivy BERDOLL, Appellee.
    No. 11345.
    Court of Civil Appeals of Texas. Austin.
    Jan. 5, 1966.
    Rehearing Denied Jan. 26, 1966.

      J. H. Hart, Small, Small & Craig, Richard Craig, Austin, for appellant.
    Paul Holt, Mitchell & Gilbert, Arthur Mitchell, Austin, for appellee.
   PHILLIPS, Justice.

This is an action for divorce brought by appellee, Mrs. Berdoll, against her husband who is the appellant here.

The Berdolls were married in 1936 and eight children, all living, were born during the marriage. When suit was filed the five younger children were minors living at home. When the judgment was entered, four of the children were minors living at home.

The parties have been separated since October, 1961 when a prior divorce action was instituted and subsequently dismissed.

Appellee’s original petition alleged statutory cruel treatment as grounds for divorce, requested the filing of an inventory of community property, asked for a temporary restraining order and appointment of receiver, sought custody of the five minor children and payment of support and asked the court to make a division of the community estate.

Appellant answered with a general denial, alleged that the appellee was in a period of poor health, that there was substantial community debts and asked that the divorce be denied.

The trial court entered judgment granting appellee a divorce awarding her custody of the four minor children, assessed attorney’s fees along with all costs of the suit against appellant, ordered division of the community property and directed appellant to pay child support.

We affirm the judgment of the trial court.

Appellant is before this Court on three points of error, the first being that of the trial court in granting appellee a divorce.

We overrule this point.

Appellee alleged in her petition:

“That the defendant has nagged, cursed, abused and kept the plaintiff and minor children of the plaintiff and defendant in a turmoil until plaintiff’s health began to fail and it was necessary for her to seek medical aid; that the defendant has told everyone that would listen that the plaintiff was ‘cra.zy’ and that she was not responsible for her acts; plaintiff says that while she did seek medical assistance, the records show that plaintiff is not a person of unsound mind, but that the constant mistreatment of plaintiff by the defendant has caused her extreme nervousness and mental and physical suffering.”

The record amply supports these allegations. Art. 4629, subsection (1), Vernon’s Annotated Civil Statutes, casts the burden of proof upon a person seeking a divorce to establish by clear and satisfactory evidence that the opposite party is guilty of excesses, cruel treatment or outrages of such a nature as to render the parties living together insupportable, impossible and unendurable. Appellee sustained this burden beyond the faintest shadow of doubt.

There is no need to belabor this dismal record beyond a summary of the excesses and outrages that rendered the parties living together as insupportable, impossible and unendurable. Appellant repeatedly accused appellee of being unfaithful to him and of being “untrue.” Falsely accused her of being interested in other men. Quarreled and argued with appellee concerning the subject matter of these accusations. Cursed her and called her vulgar names. Was ashamed of appellee, telling her that she was not good enough to ride in the car with him. Accused appellee of being crazy, insane and needed to be put away in a State insane asylum. Physically abused appellee several times. There were other outrages and provocations against ap-pellee, however it is not necessary to go into this matter further.

With the possible exception of the physical abuse, the conduct of appellant toward the appellee outlined above, was not intermittent or sporadic but was of such a continuity as to fulfill every letter of the requirements of Article 4629 set out above. This is- so even though it is possible that the physical violence on the part of appellant toward appellee was either condoned or occurred at a point too distant in the past to be material. This is so even though the appellee was unable to show that the actions of appellant had actually impaired her physical health. See McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459. Also see this Court’s opinion in Fomby v. Fomby, Tex.Civ.App., 329 S.W.2d 111. Appellant’s treatment of appellee was clearly of such a nature as to constitute cruel treatment rendering further living together insupportable.

Appellant’s second point of error is that of the trial court in awarding appellee a grossly disproportionate share of the community property.

We overrule this point.

The parties to this suit held a total of 1,532 acres of farm and ranch land as the community property of this marriage. This land lies in three tracts: (1) The Newman tract of twenty (20) acres near Garfield in Travis County; (2) the Jones tract of 835 acres, fronting the Austin-Bastrop Highway some six miles from Austin. The family residence is here having been built in 1956 and costing in excess of $20,000.00. In addition, there are improvements on this place consisting of fences, barns, water wells and tanks; (3) the Fowler tract in Bastrop County consisting of 677 acres of which 265 is in cultivation and 225 being subject to irrigation.

In addition to the real estate, the community estate consisted of cattle worth $25,-442.50, farm implements and automobiles valued at $2,420.00, irrigation equipment valued at $4,250.00 and oats and hay valued at approximately $2,800.00. Also Mr. Ber-doll was a partner in a cattle trading business valued at $25,000.00. The total community debts were in the neighborhood of $120,000.00.

The trial court awarded appellee wife the 835 acre Jones place with the obligation to pay a $2,000.00 debt against it. This included the family residence and all furnishings, and any money or other property in her name or possession.

The court awarded appellant the remaining community property with the obligation to pay the balance of the community debt, the appellee’s attorney’s fees which were fixed at $2,500.00, and child support of $50.00 per month for each minor child.

In pronouncing a decree of divorce, the court has wide discretion in disposing of property, both separate and community, and such discretion should be corrected only when an abuse is shown and disposition of the property is manifestly unjust and unfair. See Article 4638, V.A.C.S. Also see this Court’s opinion in Balander v. Balander, 299 S.W.2d 957.

In the light of the facts of this case, we hold that the division made by the trial court was a reasonable one. While appellant was awarded practically all of the community debt, he was also awarded a reasonable portion of the farm lands and all of the farm implements, irrigation equipment, all livestock in addition to the cattle trading partnership. It is apparent here that the trial court made this award to appellant in contemplation of the community debt and in contemplation of a record that portrays appellant as an astute and able farmer-rancher and cattle trader.

With respect to the appellee, the record indicates that she is in poor health and has no training, other than as a housewife and mother, by which she could earn a living.. In addition, she was awarded custody of four minor children.

In making a division of property, the court may take into consideration the business opportunities, capacities and abilities of the parties. Bagby v. Bagby, Tex. Civ.App., 186 S.W.2d 702.

In Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, the Court said:

“While the court, in ordering the divorce, should not be unmindful of the benefits which the spouse not at fault would have derived from a continuance of the marriage, through the estate of the other spouse, its power is not limited to providing compensation for such benefits. Instead the court is to do complete equity as between the husband and wife and the children, having due regard to all obligations of the spouses and to the probable future necessities of all concerned. For the purpose of doing equity, the court may award all the personal property to either spouse, and may subject the income, rents, or revenues of all real estate, belonging to either or both of the spouses, to the support of either or both of them, or to the education and support of the children.”

Appellant’s third point of error is that of the trial court in awarding attorney’s fees in excess of the amount contracted for by appellee’s attorney.

Here appellee has posed a crosspoint complaining that the amount of attorney’s fees awarded by the trial court- was not commensurate with the work done by appellee’s attorneys as the court proceeded on the incorrect premise that appellee was empowered to contract with her attorneys to pay a sum in addition to the amount awarded by the trial court.

We overrule both appellant’s third point point and appellee’s crosspoint.

In support of his contention under his third point of error, appellant calls our attention to that portion of appellee’s petition wherein she states that she “has contracted and agreed to pay him (her attorney) the sum of $1,500.00, the same being reasonable and necessary and the customary fees in such cases, and plaintiff asks that she have judgment against the defendant for her attorney’s fee.” Appellant maintains that this constituted a contract between the wife (appellee) and her first attorney in the case and even though a second attorney was employed to assist the first attorney, the contract fixed the rights of the parties.

We do not agree • with this contention. Appellee testified that she had employed her present attorneys and agreed to pay them $1,500.00 if the case was uncontested, but that in the event that the case became contested, she requested the trial court to fix the fee. Appellee’s attorneys filed a trial amendment reflecting this arrangement. We know of no reason why ap-pellee’s pleadings were not subject to amendment in this regard and all reasonable in-tendments must be indulged in favor of the court’s judgment. We hold that the fee fixed by the trial court was a reasonable exercise of his discretion. See Thompson v. Thompson, Tex.Civ.App., 380 S.W.2d 632.

We affirm the judgment of the trial court.

Affirmed.

ARCHER, C. J., not participating.


author: TIREY, Justice.

text:
    Lorece B. HUBBARD et al., Appellants, v. Ida Mae PARKMAN et al., Appellees.
    No. 4450.
    Court of Civil Appeals of Texas. Waco.
    Dec. 22, 1965.
    Rehearing Denied Jan. 20, 1966.
    Kirchheimer & Kirchheimer, Houston, for appellants.
    Sam Lee, Angleton, Crouch & Ferguson, Alvin, A. R. Mason, Angleton, for appellees.
   TIREY, Justice.

This is an action in trespass to try title brought by plaintiffs (appellees) for title and possession of a tract of 66.82 acres of land in the William Harris League, Abstract 72, Brazoria County, Texas. Defendants entered a plea of not guilty, and specially plead the ten year statute of limitations.

The trial court overruled defendants’ motion for instructed verdict and submitted the cause to the jury on one issue. It was: “Do you find from a preponderance of the evidence that the defendants, and those under whom they claim, either in person or through a tenant or tenants or partly in person and partly through a tenant or tenants, held peaceable and adverse possession of the land in controversy, cultivating, using or enjoying the same, for any period of ten consecutive years, or longer, prior to February, 1, 1963?” To which the jury answered “We do not.”

The court overruled defendants’ motion for judgment non obstante veredicto and granted plaintiffs’ motion for judgment, and decreed that defendants take nothing, and further decreed that the title to the land and premises to be in plaintiffs Ida Mae Parkman, Sarah Lee Rainwater, Dorothy Marie Brannon and Murylene Young, free and clear of any claims of defendants.

Defendants assail the judgment on 14 points. Points 1 through 10 assail the judgment in effect (1) that the jury’s answer to Issue No. 1 is contrary to the undisputed evidence; (2) that the answer of the jury is without any support in the evidence; (3) that the answer of the jury is so against the overwhelming weight and preponderance of the credible testimony as to be manifestly wrong. We overrule each of the foregoing assignments for the reasons hereinafter stated.

The appellants were strangers to the record title and claim the property under the ten year statute of limitations. They had never rendered the property in question for taxes, nor had they paid taxes on the same. On the contrary, the appellees showed a record title to the property from the sovereignty of the soil, paid taxes on the property and kept the taxes current. The record shows that the plaintiffs inherited the land from their father, R. C. Parsley, and that their father had purchased the property from Tom and Clara Ber-thelsen by deed dated May 10, 1934. The record also shows that prior to January 29, 1959, the appellants did not own or claim any land adjoining or in close proximity to the land in this law suit, and that the alleged possession of appellants began on January 29, 1959. The appellants, in order to substantiate their claim under the ten year statute of limitation, sought to tack their possession on to the alleged possession of T. B. Hubbard and the alleged possession of Gilvie Hubbard, both deceased. The record shows that T. B. Hubbard, on April 7, 1930, purchased from Waterloo Savings Bank a 1266 acre tract of land that joined the 66.82 acre tract in this suit; that T. B. Hubbard died on May 4, 1935 and left a written will devising the 1266 acre tract he had purchased from the bank to his brother, Gilvie Hubbard, and his sister, Dovie Delman, now Dovie Walling, in equal parts; that Gilvie Hubbard purchased his sister’s interest in the surface of the 1266 acre tract on the 16th day of November, 1953; that Gilvie Hubbard died on January 29, 1959, and by written will duly probated left the 1266 acre tract to the appellants. Mrs. Dovie Walling, the sister of T. B. Hubbard and Gilvie Hubbard, did not file any pleading claiming any part of the land involved in this law suit, and the evidence does not reflect that she ever asserted any claim to this land.

We are also of the view that there is no probative evidence in the record showing or tending to show that T. B. Hubbard ever claimed the 66.82 acre tract of land in suit. This particular land lies to the west of the 1266 acre tract which Hubbard purchased from the bank. Likewise, we find no probative evidence that shows that Gilvie Hubbard ever claimed the land involved in this suit. Under the record here, T. B. Hubbard and his brother, Gilvie Hubbard, lived in peace with the appellees and their predecessors in title, and during such time the appellees and their predecessors in title asserted many acts of dominion over the 66.82 acres of land involved in this suit, and that during the lifetime of T. B. and Gilvie Hubbard the evidence does not reflect any objections made by either T. B. Hubbard or Gilvie Hubbard to the acts and dominions of appellees and their predecessors in title to this land.

This suit was filed by plaintiffs in the District Court of Brazoria County on February 1, 1963. Mr. Akers, County Surveyor and a licensed State Surveyor, testified to the effect that he had made a study of the William Harris League, Abstract 72, Brazoria County, Texas, and had prepared a plat showing the 1266 acre Hubbard tract heretofore referred to and the 66.82 acre tract involved in this suit, as well as showing County Road 191 and State Highway 35. This plat was tendered in evidence.

Mr. Akers further testified to the effect that he found an old iron pipe that designated the dividing line between the 66.82 acre tract and the Hubbard 1266 acre tract, and found another old iron pipe northeast of the first pipe; that he had examined plaintiffs’ Exhibits 11 through 60 and that they involved the land in this suit. Appel-lees also offered in evidence the inventory and appraisement of the estate of Mrs. Lee Anna Parsley, mother of appellees, and Mr. Akers testified that this inventory included the land in the law suit. The deed from the bank to T. B. Hubbard theretofore was tendered in evidence, and Mr. Akers testified that he had examined this deed and that the land in controversy was not included in the land described in this deed.

Appellees also tendered in evidence a right-of-way deed from R. C. Parser, father of plaintiffs, to the State of Texas. This deed was dated March 2, 1935 and Mr. Akers testified to the effect that he had examined this right-of-way deed and that the same was a right-of-way for what is now State Highway 35, and that it granted the right-of-way to the State, and that the right-of-way crossed the 66.82 acre tract in controversy, and that the State subsequently built State Highway 35 across this tract.

Appellees also tendered in evidence a right-of-way easement from them dated March 26, 1960 to Houston Lighting and Power Company. Akers testified to the effect that this easement crossed the 66.82 acres of land involved in this law suit.

There was also tendered in evidence an instrument dated October 1,1947 by Parsley which was an oil and gas lease on part of the property to Walter L. Morrison, each of the foregoing instruments being duly recorded with the County Clerk in Angleton.

Plaintiffs also tendered in evidence a right-of-way easement to the Briscoe Irrigation Company, executed by R. C. Parsley, father of the plaintiffs, granting to that company the right to construct and maintain a canal, with the privilege of excavating for the bed of the canal, and to build and maintain levies. This instrument was executed on May 15, 1941 and was duly recorded in the Deed Records of Brazoria County.

Appellees also tendered in evidence an oil, gas and mineral lease executed on December 1, 1959 by them, joined by their husbands, with the exception of Mrs. Young, who was a widow, who signed as a feme sole to Monsanto Chemical Company, and Mr. Akers testified to the effect that plaintiffs’ exhibit included the land involved in this suit.

Appellees also tendered in evidence a right-of-way easement to the Southwestern Bell Telephone Company across part of the land in controversy. This instrument is dated June 8, 1942, executed by R. C. Parsley and wife.

Mr. Akers further testified to the effect that as between the Parsley tract and the Plummer tract and the Hubbard tract, he found no fences, but that he did find an old pipe or monument which was the corner between the Hubbard tract and the Parsley tract.

One of the plaintiffs, Mrs. Rainwater, testified to the effect that her father had a dairy on the land in controversy, and that he died in 1954; that she lived on the property for about one year, either in 1937 or 1938; that they had fenced the property and that the fence had been torn down in about 1961, and that she did not realize that there was anyone making any claim to the prop - erty other than her family, until 1961.

The Deputy Tax Assessor and Collector of Brazoria County testified to the effect that the property involved in this suit was rendered in the name of R. C. Parsley to 1954, and then in 1955 the Parsley Estate began to render the property; that neither T. B. Hubbard nor Gilvie Hubbard nor Mrs. Lorece Hubbard, nor Miss Joan Dovie Hubbard, or any member of the Hubbard family, had ever rendered or paid any taxes on the land in controversy; that the Hubbards had rendered land for taxes in Brazoria County from time to time, but did not render the 66.82 acres here involved.

The rule is well settled in Texas: “One asserting title to land by limitation has the burden of proving every fact necessary to give such title, and inferences are never indulged in favor of a limitation claimant.” Citing Dunn v. Taylor, 102 Tex. 80, 113 S.W. 265. See also Stringer v. Johnson, Tex.Civ.App., 222 S.W. 267, 274. See also Federal Land Bank of Houston v. King, 132 Tex. 481, 122 S.W.2d 1061, Com.App., opinion adopted; also Champion Paper & Fibre Co. v. Wooding, Tex.Civ.App., 321 S.W.2d 127, n. r. e., and the cases cited in each of the foregoing opinions.

In Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S.W. 902, we find this statement of the Rule by our Supreme Court:

“In order for a person, having neither title nor color of title nor deed duly registered, to acquire full title, precluding all claims, to real estate in Texas, which will support an action for the recovery of the real estate, such person must have had peaceable and adverse possession of the real estate for not less than 10 years. An essential of the required adverse possession is an appropriation of the land under a claim of right. One may hold land under a claim of right though he enters as a naked trespasser and continues his appropriation of the land for the express purpose of acquiring that which he knows belongs to another. The mala fides of the possessor is not fatal to his claim of right. Yet, without intent to claim land as his own, no matter how groundless the claim, the possessor can never acquire a limitation title thereto.” See cases cited in Champion Paper Fibre Co., v. Wooding, 321 S.W.2d 127, n. r. e.

Much testimony was tendered in this cause which covers 667 pages, together with many exhibits. It is obvious that we cannot quote it extensively, but since the appellants, in order to sustain their claim of limitation, must tack their possession on to that of the Hubbards, we have examined this record with much care to ascertain if there is any basis of limitation found in the alleged claim of T. B. or Gilvie Hubbard during their lifetime, and we are of the view that the record does not contain any evidence of probative effect that will sustain a plea of limitation in behalf of the Hubbards.

In Henry v. Phillips, 105 Tex. 459, 151 S.W. 533, we find this statement of the Rule by the Supreme Court:

“When the appellate court comes to apply the law to testimony constituting the facts of the case, it can only base its conclusion upon such testimony as is under the law competent. That which is not competent testimony should be given no probative force. The admission of such testimony is no talisman to give effect to that which is irrelevant and incompetent to sustain or deny a material issue in a case.”

Our view of this evidence in its entirety is to the effect that there is no evidence of probative force that T. B. Hubbard or his brother, Gilvie Hubbard, during their lifetime, made any claim to the property in question, and since they did not do so, and did not exercise any control or dominion over the same that interfered with the Parsleys and their children during their lifetime, we are of the view that the de= fendants’ claim to a limitation title is without any merit whatsoever. So it is our view that the verdict of the jury has ample support in the evidence; that it is not against the great weight and preponderance of the evidence; and that the judgment of the court is fully supported by the probative evidence in this cause. So we state, again, that since there is no evidence to sustain a limitation title in favor of the Hubbards, it follows that the appellants’ claim to a limitation title must fail.

We have carefully examined each of the other assignments made by the appellants, and we are of the view that they are wholly without merit and each is overruled.

Accordingly, the judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    E. G. HALL et al., Appellants, v. Frederick S. BROWN et al., Appellees.
    No. 4388.
    Court of Civil Appeals of Texas. Waco.
    Jan. 6, 1966.

      Ed Roy Simmons, Mexia, Golden, Croley, Howell, Johnson & Mizell, Bradford D. Corrigan, Jr., J. Ralph Howell, Jr., Dallas, for appellants.
    Carl Cannon, Bradley & Geren, Groes-beck, for appellees.
   WILSON, Justice.

Plaintiffs Brown and others sued defendants Hall and others seeking to recover title to and possession of gas pipelines, to establish a constructive trust upon the rights of the purchaser under a gas purchase contract, to recover damages for loss of use of gas produced and sold under that contract, and to obtain other relief. Judgment was rendered in favor of plaintiffs on a jury verdict for most of the relief sought. Descendants of C. L. Brown, deceased, who are beneficiaries under his will, with their spouses, are the parties. The wife of appellant Hall, daughter of Brown, is independent executrix of the latter’s estate. The evidence shows Hall acted for his wife in the management of estate properties.

The petition alleged that Hall managed the estate properties and carried on enterprises in which Brown had been engaged, including management of oil, gas and pipeline interests. In December, 1962, as was pleaded, plaintiffs and defendants entered into a contract by which plaintiffs purchased and defendants sold the 60% interest of the latter in various properties of the estate for $240,000. Plaintiffs had been tendered the option of buying or selling on this basis. It was alleged the property purchased by them included specified pipe lines and the proceeds of sale of a drilling rig, which were not delivered; that Hall originally obtained from the Humble companies a gas contract on behalf of the estate, permitted it to be cancelled, and then acquired it in his own name. They prayed judgment for the “fair market value of all the natural gas taken from said well by defendants at a price of 27½ cents per thousand cubic feet.” It was averred that it was falsely represented that the proceeds of the sale of the drilling rig had been included in assets purchased, but that defendants later claimed the proceeds constituted fourth quarter operating profits; that plaintiffs acted under a mistake of fact as to ownership of the pipelines; that defendants falsely represented these belonged to themselves, rather than to the estate, and it was sought to impose a constructive trust: thereon. Defendants pleaded that the statement of estate profits for distribution for the fourth quarter of 1962 was prepared in accordance with the 1962 contract of purchase and sale, i. e., as had been done in the past, and according to accepted accounting principles.

Plaintiffs pleaded that they were minors during the period involved; that the estate properties were operated by Hall “as a fiduciary for plaintiffs”; that they were induced to execute a pleaded release of all claims against the estate and the executrix by fraud and misrepresentation.

Notwithstanding plaintiffs’ trial pleadings consume 35 transcript pages and the evidence exceeds 1000 pages, only six issues were submitted. To these the jury answered in effect: (1), (2) and (3) that at the time of signing the contract of purchase and sale specified portions of the pipelines in question “belonged to the estate of C. L. Brown, deceased”; (5) that when he negotiated the Humble gas contract Hall “stood in the relation of fiduciary toward the plaintiffs”; (6) that Hall “took unfair advantage” of the relationship in the Humble transaction. To issue 4, inquiring whether the statement of profits for distribution for the fourth quarter of 1962 “was prepared in accordance with” the sale contract, the jury answered, “No.” No objections to the charge are presented.

We sustain appellants’ points presenting contentions now to be discussed, and overrule the others.

Recovery under the Humble gas contract, and the pipeline and welding machine claims are barred by the pleaded written release executed by plaintiffs as a part of the contract of purchase and sale, it is contended by appellants. That contract consummated negotiations by which plaintiffs were afforded a choice of buying defendants’ interests or selling their own in the estate properties on a fixed-price basis. They elected to buy, executing the release in which they acknowledged they had examined the books and records of the estate and the executrix. Although it was alleged plaintiffs were induced to execute the release by fraud, no issue relating to this allegation was submitted or requested. The judgment does not purport to set aside or reform the release or the contract of sale and purchase. Under Rule 279, Texas Rules of Civil Procedure, since no issue on this independent ground of recovery was submitted or requested, it was waived. Clark v. National Life & Acc. Ins. Co., 145 Tex. 575, 200 S.W.2d 820; Dial Temp Air Conditioning Co. v. Faulhaber, Tex.Civ.App., 340 S.W.2d 82, writ ref. n. r. e.; Reed v. Beheler, Tex.Civ.App., 198 S.W.2d 625.

Plaintiffs pleaded that under the Humble gas purchase contract Hall acquired 168,110 MCF of gas at a rate of eleven cents for his own account and use, but it could have been re-sold (or used by the estate) for 27½ cents per MCF, alleged to be its fair market value, and plaintiffs thereby lost $27,738.15. Although the relief sought is intermingled in the pleading so that it is difficult to ascertain the theory ultimately relied on, plaintiffs prayed (1) that the Humble contract be assigned and awarded to them, (2) that a trust be imposed on the contract, or (3) that they recover judgment for damages. No issue was submitted or requested as to the market value of the gas. The charge contains no damage issue.

It is sought to justify the omission by the contention the damages are undisputed. It is true the quantity of gas acquired under the contract is without dispute. The evidence as to value, however, does not establish the issue as a matter of law. It is true, as plaintiffs insist, that the court made a finding in the judgment that the gas could have been sold for 27½ cents per MCF, and rendered judgment for $27,738.15 as damages; but findings of fact by the court are not authorized where the judgment is based on jury findings, Rancher v. Cadwell, 159 Tex. 8, 314 S.W.2d 820, 822 and cases cited, except under the express provisions of Rule 279, Texas Rules of Civil Procedure. It is not suggested that the issues submitted are necessarily referable, under that Rule, to the independent damage recovery ground, as distinguished from the others.

On the gas contract damage issue one of the plaintiffs testified as follows: “Q. Have you made an effort to ascertain what the reasonable cash market value or the going price of gas is in Limestone County, Texas? A. To what type of customer? Q. Well, to a commercial customer, or a retail customer, or to an industrial customer. A. To an industrial customer our gas sells for 27½ cents per thousand cubic feet. Q. What is the price to a domestic customer? A. To a domestic customer the first MCF of gas they purchase is $1.50 — these are gross figures — • then all over the first thousand is 77 cents gross, but if they pay by the 10th of the month they get a discount,” the rates then being $1.35 and 70 cents. He testified there was a market for the gas in question, and he could have used it, “if it’s handled right”; that “the Humble gas is a lower B. T.U., which is the amount of heat that a gas is capable of putting off,” and if consumers “got a complete batch” of it, “regulators and things would not burn as well” j that it would be necessary to mix Humble and Freestone County gas in proper ratio in order to supply the Mexia State School from two fields. He described the system of lines, chokes, cut-offs, gauges and regulators which it would be necessary to construct to supply and sell such gas. There is no evidence as to the cost or expense of operating the equipment. Another witness testified to the necessity for running the gas “through a sweetener.” The gas coming from the Ross Heirs B-l well in question, he testified, “isn’t what you’d call sweet gas. It still gives us lots of trouble on our engines from its rosy condition.” A pipeline company cancelled its contract “because the gas was giving them lots of trouble in their engines.” There was testimony that the gas “was so bad ’til we could only use it in our engines” and it was not satisfactory for domestic use because of high sulphur and nitrogen content; that to get an industrial account it would be necessary to mix the gas. This evidence was controverted by plaintiffs.

Although the judgment allowed recovery by plaintiffs under a claim of damages based on alleged lost profits, there is no jury finding or evidence as to the cost or expense of sale, handling or distribution of the gas.

“Profits are the net pecuniary gain from a transaction, the gross pecuniary gains diminished by the cost of obtaining them.” American Law Inst., Restatement, Contracts, Sec. 331(b). “Plaintiff is entitled to his net profits — not to his expected gross profits.” Net profit is defined as the “gross amount that would have been received pursuant to the business or investment” less “the costs of running that business or attending that investment.” 22 Am. Jur.2d, Damages, Sec. 178, p. 254. See 50 A.L.R. 1397. “In the calculation of net profits, allowance should be made for expenditures that the plaintiff would have been compelled to make.” 17 Tex.Jur.2d, Damages, Sec. 144, p. 212. See id., Sec. 229, p. 290. It is not necessary that the data for estimating lost profits be established beyond reasonable certainty, City of LaGrange v. Pieratt, 142 Tex. 23, 175 S.W. 2d 243, but the basis for applying the net loss measure of damage may not be left entirely to conjecture. Thomas v. Basden & Carrell, Tex.Civ.App., 4 S.W.2d 336, 339, per Gallagher, C. J.

If the testimony of plaintiff on the market value issue be regarded as un-contradicted expert opinion testimony, as appellees insist, it is not, nevertheless, a basis for establishing Value as a matter of law so as to preclude existence of a fact issue. Opinion testimony of an interested party as to value, even though uncontra-dicted, does no more than raise an issue of fact and “should be tested by the jury.” Simmonds v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332, 333, 334. See Fry v. Dixie Motor Coach Corporation, 142 Tex. 589, 180 S.W.2d 135, 137, and cases cited.

On another trial the deposit in the registry relating to the subject matter of defendants’ counterclaim should be offset against any recovery under the Humble contract claim in computation of interest. Various complaints of procedural errors are not clearly shown under the present record to constitute reversible error, and they will probably not recur on another trial. No objection or complaint that various issues submit conclusions, rather than ultimate fact issues, is presented. Appellees’ cross-point is not briefed, and is therefore waived.

No complaint is presented concerning United States bonds recovered by plaintiffs, in paragraph (j) of the judgment, or the recovery of $6,594 in paragraphs (1) and (n). These items are severable. Appellate Procedure in Texas, Sec. 18.15. These portions of the judgment are severed and affirmed. The remainder of the judgment is reversed, and the cause remanded.


author: STEPHENSON, Justice.

text:
    Reverend George GIBSON, Appellant, v. R. O. “BILL” WILLIAMS INS. CO. et al., Appellee.
    No. 6734.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 18, 1965.
    Rehearing Denied Jan. 12, 1966.

      Adams & Browne, Beaumont, for appellant.
    Orgain, Bell & Tucker, Beaumont, Allen E. Smith, Austin, for appellee.
   STEPHENSON, Justice.

This is an action for damages brought against the insurance agency for failure to re-insure a beach house which was destroyed by Hurricane Carla. Trial was by jury and judgment was instructed for defendants at the close of plaintiff’s testimony. The parties will be referred to here as they were in the trial court.

According to plaintiff’s petition this action is based upon negligence, breach of contract, estoppel and fraud. This being an instructed verdict case, we must view the evidence in the most favorable light from the standpoint of the plaintiff, against whom the judgment was instructed.

September 2, 1958, defendants wrote two policies of insurance, each in the amount of $1,500.00 covering plaintiff’s beach house for a term of three years, to expire September 2, 1961. September 4, 1961, the U. S. Weather Bureau issued its first bulletin and at 10:00 a. m., September 9, 1961, ordered hurricane warnings hoisted of Hurricane Carla for the area in which this beach house was located. September 7, 1961, defendants wrote plaintiff a letter which plaintiff received September 9, 1961, informing him that they were unable to renew coverage on his beach house. September 9, 1961, plaintiff attempted to secure coverage on the beach house with two other insurance agencies but was refused because of the hurricane warnings. Hurricane Carla hit the beach September 10th, 11th or 12th, 1961, and plaintiff’s beach house was a total loss. Suit was brought against these defendants and the two insurance companies which had written the policies above mentioned. Summary judgments were granted for each insurance company from which no appeal was taken. Plaintiff testified that defendants had carried his automobile insurance for about ten years and each year would renew the policy, sometimes calling to see if plaintiff wanted any changes and sometimes without any call, and further that these policies of insurance on his automobile had a red sticker on the front stating:

“This policy is mailed to you in keeping with our practice of never letting our customers’ protection lapse. If it is not desired, please mail it back to us. No obligation.”

The evidence showed that the damage was caused by the wind and that there was little water damage. There are no findings of fact or conclusions of law. Plaintiff testified he did not keep up with the expiration dates of insurance policies written by defendants because of the stickers above quoted, and the practice of defendants of never letting their customers’ protection lapse.

There is no doubt that an insurance agent may contract with an insured to maintain certain insurance coverage, and that an action would lie in the event of breach of such contract. Austin Fire Ins. Co. v. Adams-Childers Co. (Tex.Com. of App.) 246 S.W. 365. In this Austin Fire Ins. Co. Case the evidence showed and the jury found that there was an agreement between the insurance agent and the insured that the policies of insurance then held would be renewed when they expired. No such agreement existed in the present case. In fact the plaintiff admitted upon cross-examination that there was no verbal agreement and no written agreement to renew the insurance. Under the circumstances of this case the plaintiff was not obligated to accept renewed policies of insurance just as the defendants were not obligated to renew the policies upon their expiration.

Although plaintiff plead generally fraud and estoppel, neither of these matters were briefed, leaving this court to determine only the question as to whether plaintiff plead and proved a cause of action based upon negligence. Actually, under the pleading and the evidence in this case the sole question to determine is whether or not the placing of the stickers upon the policies of insurance written by defendants upon plaintiff’s automobile, created a duty at law to notify plaintiff before the expiration of such policies that new policies of insurance would not be written, in order to give plaintiff time to secure other insurance. We have been cited no cases on this point.

We are faced with the basic question as to whether under the circumstances of this case a duty arose on the part of the defendants to notify plaintiff that the policies of insurance would expire and would not be re-written. This, then, would be an act of omission on part of defendants, as distinguished from one of commission. For an omission to act there is no liability unless there is -some definite relationship between the parties which is regarded as imposing a duty to act. The courts will find a duty where, in general, reasonable men would recognize it, and agree it exists.

The evidence shows that insurance upon beach homes is not desirable from the standpoint of the insurance carriers, and is usually written only where there is supporting business. The evidence shows the plaintiff no longer carried any other type of insurance with these defendants at the time these two policies of insurance on the beach home expired. Plaintiff admitted on cross-examination that under these circumstances that it was natural for the defendants to assume that plaintiff did not want these policies renewed.

We are not inclined to hold that the actions of the defendants in this case created a duty on the part of the defendants to notify plaintiff that new policies of insurance would not be written. There being no duty on the part of the defendants, there could be no negligence and the instructed verdict was proper.

Judgment affirmed.