author: PHILLIPS, Justice.

text:
    McMILLEN FEEDS, INC. OF TEXAS et al., Appellants, v. Dale HARLOW, Appellee.
    No. 11409.
    Court of Civil Appeals of Texas. Austin.
    June 29, 1966.
    Rehearing Denied July 20, 1966.

      Foreman, Dyess, Prewett, Henderson & Cantey, A. D. Dyess, Jr., Houston, Coleman Gay, Austin, for appellants.
    Reuben Senterfitt, San Saba, Lee Curtis, Belton, Abney, Hammett & Lynch, J. V. Hammett, Lampasas, for appellee.
   PHILLIPS, Justice.

This is a products liability case. The appellee, plaintiff below, brought suit against the appellants feed companies for damages to his turkeys allegedly caused by feed furnished under contract. In response to special issues answered by the jury favorably to appellee, the court entered judgment against the appellants feed companies for $259,646.60.

We affirm.

I.

Appellant McMillen Feeds, Inc. of Texas is engaged in the feed business and is a wholly owned subsidiary of appellant Central Soya. Appellants are in the business of producing and selling various animal feeds, including turkey feeds under the trade name of Master Mix.

Early in 1963 the parties hereto entered into a verbal agreement which included the following provisions:

Appellants sold, and were to deliver to appellee, Master Mix turkey feed from their plant at Lockhart, Texas to be used in feeding all of appellee’s turkeys for the year 1963. The parties contemplated about 250,000 turkeys for the season, of which 158,050 were started.

The Master Mix turkey feed was to be fed according to appellants’ directions.

The feed for some of the turkeys was to be a complete turkey feed (which was later delivered in appellants’ sealed bags) to which the grower added nothing. The feed for the remainder of the turkeys was to be mixed with milo by the grower and fed according to appellants’ directions.

Appellants were to deliver the Master Mix feeds partly in sealed bags and the remainder in bulk.

Appellants were to finance all of the turkey feed, including the milo that was to be purchased by appellee, the turkey poults, and such medication as might be necessary. The parties contemplated that it would cost about $3.40 to market each turkey of which 40⅝⅛ was to cover the labor to be furnished by appellee. Appellants agreed to finance each bird at $3.00. As a part of this financing arrangement, it was further agreed that each flock would constitute a separate transaction, it being understood that as appellee would deliver the 1-day old poults in flocks of several thousand each to the grower’s brooder, a set of security instruments (turkey feed agreement, notes, chattel mortgage) prepared and furnished by appellants would be executed by appellee and would apply only to that particular flock to which the instruments referred.

All of appellee’s growers, (located at ten different locations scattered over a wide area of central Texas) as well as their respective farms, pens and ranges, brooders, houses and litter, their feeding and watering facilities and equipment for caring for the turkeys were to be inspected and approved by representatives of appellants in advance.

Appellants were to furnish an expert in the care and feeding of turkeys who was to make frequent visits to each flock to work with appellee and his growers, to check regularly on the feed consumption and growth rates of the turkeys. Their growth rates were to be measured by references to Dr. Scott’s Turkey World charts. He was also to check feed requirements, health and medication, sanitation and other management practices, and finally, the marketing of the turkeys.

In response to this agreement, appellee placed about 158,050 turkeys with the various growers during the 1963 season. This season began around February 1 with the first flock and ended around January 2 or 3, 1964 when the last flock was marketed; the milo used to mix with part of the feed delivered was to be, and according to the record was, U. S. Government number 2 grade, or better.

The feed was delivered as agreed. Some of the Master Mix turkey feeds were delivered by appellants directly into self-feeders and some were delivered into weather-proof storage bins on the grower’s farms that had been previously approved by appellants for the purpose. Except to mix milo with the Master Mix feed in those instances calling for it, no changes or adulterations were ever made to any of the Master Mix turkey feeds after delivery thereof to the feeders or to the storage bins. The milo was mixed according to appellants’ directions. The feed was fed within the times contemplated and intended by the parties, and at all times under and according to the directions of appellants’ representative and any suggestion this representative made in reference thereto was followed by appellee.

At the beginning of the 1963 season, appellants moved one of their employees, a Mr. Don Hurst, from Ohio to Texas to service appellee’s operation as agreed.

Prior to the start of the 1963 season several of appellants’ representatives visited and approved all of the appellee’s growers, their farms and equipment. Each of these growers had grown turkeys in the past.

The turkeys were located with 10 different growers whose farms were spread over an area of central Texas extending some 175 miles north-south and 70 miles east-west, from Jolleyville near Austin to Desdemona and Rising Star and from San Saba to Eden.

Each flock of turkeys placed with a grower constituted a “round.” Each grower handled at least two “rounds” and some of them as many as three during 1963. Each flock or “round” of 1-day old poults included both sexes. These were later divided into two flocks, one for each sex. The hens and toms were fed differently according to the directions of appellants. The hens were due to be sent to market at 22-24 weeks of age followed by the toms at 24-26 weeks of age.

As the turkeys reached the age of 14-16 weeks (having eaten Master Mix turkey feeds all of their lives) they began to show similar symptoms in all the flocks among all the growers over the wide geographic area involved. The birds lost color, became “droopy” and unthrifty. Check-weights were significantly low and feed consumption abnormally high. When dressed, a sour, pungent odor pervaded the processing plant. This was an unusual condition not observed in any turkeys other than those fed on Master Mix turkey feeds, but present in all the turkeys that had been fed the Master Mix turkey feed.

Appellee noted the appearance of some of the symptoms in June and was concerned. Appellants’ representative Hurst became concerned when the first flock went to market about June 6 and began searching for the cause when the toms from the same flock went to market about July 12.

Consequently, a large number of turkeys were examined at the State diagnostic laboratory in Stephenville, Texas and these reports disclosed that the birds examined had mycosis. These reports make no mention of copper poisoning which appellants contend was one of the causes of the turkeys’ condition.

In connection with the mycosis and the copper poisoning, there were many expert witnesses called to testify for both parties to this lawsuit. Appellants contended that the mycosis found was a bacterial disease that damaged the turkeys unrelated to the feed. In addition, appellants claimed that the turkeys were damaged by the use of a product in the turkeys’ water by the trade name of Ema-sol containing copper sulphate, that the use of Ema-sol caused copper poisoning.

Expert witnesses called by appellee were of the opinion that the mycosis found in the birds was a fungus condition, not caused by bacteria, and resulted from the feed used. Also, the evidence of copper poisoning was refuted. Several of these experts, as will be shown later in this opinion, were experts in the matter and made detailed examinations of the turkeys for appellee for the purpose of righting the conditions that were manifesting themselves. These experts testified that they did not find disease to be the problem and recommended that the turkeys’ feed be changed.

Consequently, appellee divided a flock and fed one flock on feed from a competitive company and left the remainder on the Master Mix turkey feed. Appellants’ representatives agreed that the birds on the competitive feed made a rapid and significant improvement over the birds fed Master Mix. A grower at Temple, Texas who had been using Master Mix changed his feed to a chicken feed with similar good results. Then appellants’ representatives requested appellee to change the remainder of his turkeys to their chicken feed that contained no cotton seed meal. He did so and the turkeys immediately made significant improvement.

II.

Appellants are before this Court on fifty-one points of error.

Their points of error one and two are those of the court in overruling the two defendant’s motions for judgment non obstante veredicto. We overrule these points.

Appellants’ points of error three through ten are their “no evidence” points (no evidence to support the answer of the jury as such finding is contrary to all the evidence in the case) pertinent to the jury’s answers to special issues numbers 1 through 8.

Special Issue No. 1 inquired solely as to cottonseed meal in defendants’ turkey feed and was as follows:

“Do you find from a preponderance of the evidence that the Defendants sold and delivered to the Plaintiff turkey feed containing cottonseed meal in quantities harmful to Plaintiff’s turkeys?”

The jury returned an affirmative answer to this issue and likewise to its companion issues numbers 2, 3 and 4 relating to producing cause, negligence and proximate cause, respectively.

Special Issue No. 5 was as follows:

“Do you find from a preponderance of the evidence that the Defendants sold and delivered to the Plaintiff turkey feeds that were unfit for feeding to Plaintiff’s turkeys ?”

The jury returned an affirmative answer to this issue and likewise to its companion issues numbers 6, 7 and 8 relating to producing cause, negligence and proximate cause, respectively.

Inasmuch as we find that there is sufficient evidence to support the jury’s findings to special issues numbers 1 and 2 (producing cause) we find it unnecessary to pass on appellants’ points three through 10.

III.

Appellants’ points of error 16 through 24 are their “insufficiency of evidence” points (verdict of jury was so greatly against the weight and preponderances of the evidence as to be manifestly wrong and unjust) relative to special issues one through eight outlined above.

The statement of facts in this case consists of 1334 pages exclusive of exhibits. As stated above, there was testimony from highly qualified experts on both sides of the question. After reviewing the entire record we hold that there is sufficient evidence, both direct and circumstantial, from both expert and lay witnesses from which the jury could have reasonably concluded that the turkey feed appellants sold and delivered to the appellee contained cottonseed meal in quantities harmful to appellee’s turkeys and such was the producing cause of the harm caused and that such findings were not against the great weight and preponderance of the evidence. Consequently, we do not pass on the negligence aspects of the case or on the questions presented by special issue No. S and its accompanying issues 6, 7 and 8 (hereinafter stated).

Whatever else this case involves, ten widely separated growers all having turkeys showing the same symptoms of decline, some having been fed solely on Master Mix feed, some having been fed Master Mix feed with milo added; some having been fed Ema-sol (copper sulfate) in their drinking water, some not; some (according to appellants’ expert witnesses) showing evidence of bacterial infection, some not; the only common denominator being Master Mix feed containing as much as 8% to 20% cottonseed meal. When a group of turkeys was taken off the Master Mix feed containing cottonseed meal and put on chicken feed containing no cottonseed meal, the improvement was dramatic.

Bearing these facts in .mind, we turn to a summary of the opinion of the experts.

Dr. Roy G. Chaney is presently employed by the Texas Animal Health Commissioner as an area supervisor; however, he was formerly employed by the Federal Government and was inspector in charge of the poultry division of the U. S. Department of Agriculture stationed at Lampasas, Texas. It was while in the latter capacity that Dr. Chaney inspected many of ap-pellee’s turkeys at the processing plant at Lampasas.

Dr. Chaney testified that the turkeys in question were thin, had a bluish discoloration, anemia and a pungent, sour odor. That the symptoms were confined to ap-pellee’s turkeys. That the turkeys had no bacterial disease but suffered from a fungus condition caused either from feed or water. That the livers and other organs were studied and did not show any effect of copper sulphate poisoning (Ema-sol).

Dr. Archie Flowers testified for appellee. Dr. Flowers is a professor and is presently the head of the Depártment of Veterinary Public Health at Texas A. & M. His areas of professional interest include Virology, Immunology, Poultry Diseases and Laboratory Animal Medicine.

Dr. Flowers made a detailed examination of several of appellee’s turkeys at appellee’s request and found a non-specific enteritis (an inflammation of the intestines) not bacterial, round worms and mycosis. In answer to a hypothetical question asked him by appellee’s attorney in which the general history of the turkeys outlined above was included, Dr. Flowers stated that, other things being constant, the feed was the cause. In addition, Dr. Flowers stated that in response to certain experiments in the poultry department at A. & M., certain diets will produce mycosis causing the fungus found in the birds.

Dr. James R. Couch testified for appellee. Dr. Couch is a professor at Texas A. & M. University whose speciality is nutrition and biochemistry. Dr. Couch testified that the feed formula concentrate embodied in Master Mix was not adequate nutritionally, that it was low in lysine, that the formula produces an imbalance of amino acids; that if turkeys were fed the formula one could expect less than maximum performance; that a formula containing 8% to 20% cottonseed meal when combined with milo gluten produced a deficiency in amino acids, that 5% cottonseed meal is the maximum he would recommend in any turkey feed.

In response to a hypothetical question similar to that asked Dr. Flowers, Dr. Couch stated that in his opinion the feed had caused the conditions of the turkeys complained of.

There is also evidence that Don Hurst, appellants’ representative who counseled ap-pellee on his turkey operation, made statements to the effect that the feed was the cause, although • Hurst denied these statements. There is also evidence that other of appellants’ experts in studying the problem in the field, made similar statements. However, these also were denied.

Appellants also produced many highly qualified technical witnesses who testified to finding various diseases in the birds examined in the laboratory; that the mycosis common to a large percentage of the birds was bacterial; that in addition to the mycosis, there was evidence presented of salmonella (several types), trichomonad infection, round worms and also the mold infection that we have alluded to before. When asked whether trichmoniasis was the problem, appellants’ witness Dr. Eugene Nicks (a veterinarian currently working for the Upjohn Company in Kalamazoo, Michigan doing poultry research) stated: “there was no single problem to the best of my knowledge. It was one of the problems in my considered opinion.”

One of appellants’ theories was that due to overcrowded conditions, wet, poorly-drained areas and insufficient sanitary conditions, disease had invaded the turkeys causing the damage complained of.

Dr. Nicks also testified that there was no live mold present (mycosis) in several of the birds he examined.

Appellants also presented evidence that the Ema-sol (copper sulphate) given the turkeys in their drinking water to counter the enteritis universally found in the birds, caused a copper poisoning.

In addition, appellants presented evidence that the summer of 1963 was very hot with many days over 100 degrees Fahrenheit; that the presence of Ema-sol in the water caused the turkeys to refrain from drinking the required amounts of water (in addition to evidence that spot checks revealed that several growers allowed the watering troughs to remain dry during the heat of the day) thus causing dehydration.

In addition, there was evidence that the turkey formula in question met the same nutritional standards as those used by appellants elsewhere in the United States.

The jury, in answer to special issues, found that appellee had failed to separate the diseased birds from the healthy birds but that such failure was not negligence; that he had not failed to move the healthy birds to different ground; that he had not failed to provide proper sanitation; that he had not failed to provide proper medication and that the result of the appellee’s damage was not the result of an unavoidable accident.

This case involves the rule of strict liability that the law imposes on vendors of foods by virtue of an implied warranty of fitness. Our principal question here is causation. Jacob E. Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479. Our sole concern here is the question of whether the 8½-20% cottonseed meal in the turkey feed caused the damage to the turkeys. Our problem is one of proof and the guidelines attendant thereto.

In Green v. Ralston Purina Company, 376 S.W.2d 119, the Supreme Court of Missouri stated the rules applicable here. Any disputed fact may be established by circumstantial as well as by direct evidence. In neither case is the burden of proof greater than the preponderance. This rule does not require the quality of absolute certainty, nor does it require the plaintiff to exclude every other possibility. All that is required of such rule is that the circumstances point to the ultimate fact sought to be established with that degree of certainty as to make the conclusion reasonably probable. The court held that after showing the unwholesomeness of the product a prima facie case would be made where the evidence was susceptible to a reasonable inference that the death or illness resulted from the eating of unwholesome feed.

Using these rules as guidelines, we have ample evidence to uphold the findings of the jury with respect to the cottonseed meal. Appellants’ own witness, (Dr. John W. West, a professor and head of the Department of poultry science at Oklahoma State University, and pioneer in the use of cottonseed meal in poultry feed) testified that the use of cottonseed meal in poultry feed was a deviation from the standard. There was expert evidence pointing to the cottonseed meal plus the web of circumstances surrounding it. Under the law in Texas, both had probative value. Trinity Universal Ins. Co. v. Walker, Tex.Civ.App., 203 S.W.2d 308, writ, ref., n. r. e.

IV.

Appellee’s points of error eleven through fifteen are “no evidence” points pertaining to Special Issues Nos. Y through Y-4. We overrule these points and will discuss these issues in connection with appellee’s “insufficiency of evidence” points relative thereto.

V.

Appellee’s points of error twenty-five through thirty are his “insufficiency of evidence” points relative to Special Issues Nos. Y through Y-S. We overrule these points.

Special Issue No. Y is as follows:

“In what amount of money, if any, do you find from a preponderance of the evidence that the plaintiff has sustained damages, if any, by reason of his turkey’s loss in weight or failure to gain weight which resulted from the use of such turkey feeds, if any such loss or failure was so caused?
Answer in dollars and cents, if any
Answer $66,000.00

SPECIAL ISSUE No. Y-l

In what amount of money, if any, do you find from a preponderance of the evidence that the plaintiff has sustained damages, if any, by reason of the death of plaintiff’s turkeys, if any, which resulted from the use of such turkey feeds, if any such death was so caused?
Answer in dollars and cents, if any
Answer $34,500,00

SPECIAL ISSUE No. Y-2

In what amount of money, if any, do you find from a preponderance of the evidence that plaintiff has sustained damages, if any, by reason of the condemnation of turkeys by Government Inspectors which resulted from the use of such turkey feeds, if any such condemnation was so caused?
Answer in dollars and cents, if any
Answer $4,500.00

SPECIAL ISSUE No. Y-3

In what amount of money, if any, do you find from a preponderance of the evidence that plaintiff has sustained damages, if any, by reason of additional costs of production over and above normal costs of producing plaintiff’s turkeys, if any, which resulted from the use of such turkey feeds, if any such additional cost was so caused?
Answer in dollars and cents, if any
Answer $37,800.00
You are further instructed that in answering Special Issues Nos. Y, Y-l, Y-2, Y-3, Y-S and Y-6 you must exclude from your consideration any compensation for damages or injury, if any, to plaintiff’s turkeys due to any one or more of the following, if you find any such to have existed:
(a) Disease, if any, not caused by feed, if any.
(b) Unusually hot weather, if any.
(c) Unprotected or inadequate water supply, if any you have so found.
(d) Inadequate shade for said turkeys, if you find such condition to exist.
(e) Failure to separate diseased birds from healthy birds, if you have found such failure.
(f) Failure to provide proper sanitation,, if you have so found.
(g) Failure to provide proper medication, if you have so found.

SPECIAL ISSUE No. Y-4

Do you find from a preponderance of the evidence that plaintiff’s breeders were rendered unfit for breeding purposes, if they were, as a result of being fed the defendants’ turkey feeds?
Answer YES or NO. Answer yes
If you have answered the above issue YES, then answer issues Nos. Y-S and Y-6 otherwise you need not answer them

SPECIAL ISSUE No. Y-5

What do you find from a preponderance of the evidence was the fair cash market value of plaintiff’s breeders, per bird, in Central Texas, immediately before being fed with defendants’ turkey feeds ?
Answer in dollars and cents, if any
Answer $20.00”

Inasmuch as appellants have chosen not to brief these points, we need not consider them. However, we note that appellee has presented detailed evidence in respect to each of these points from which the jury could have reasonably concluded as they did.

VI.

Appellants’ points of error thirty-one through forty-two are concerned with that part of the verdict allowing ap-pellee recovery on the negligence and proximate cause of appellants in “selling and delivering turkey feeds that were unfit for feeding to plaintiff’s turkeys.” Inasmuch as we do not base our decision on these issues we will merely state them without further discussion.

“SPECIAL ISSUE No. 5

Do you find from a preponderance of the evidence that the defendants sold and delivered to the plaintiff turkey feeds that were unfit for feeding to plaintiff’s turkeys?
Answer YES or NO. Answer Yes
If you have answered the above issue YES, then answer issues Nos. 6, 7 and 8; otherwise you need not answer them.

SPECIAL ISSUE No. 6

Do you find from a preponderance of the evidence that such turkey feeds were a producing cause of the injuries, if any, suffered by plaintiff’s turkeys?
Answer YES or NO. Answer Yes

SPECIAL ISSUE No. 7

Do you find from a preponderance of the evidence that the sale and delivery of such turkey feeds by the defendants was negligence, as that term is defined in this charge?
Answer YES or NO. Answer Yes

SPECIAL ISSUE No. 8

Do you find from a preponderance of the evidence that such unfit turkey feeds, if you have so found, were a proximate cause of the injuries, if any, suffered by plaintiff’s turkeys?
Answer YES OR NO. Answer Yes”

VII.

Appellants’ forty-third point of error is that of the trial court in submitting Special Issue No. Y for the reason that there is no evidence as to plaintiff’s own experience in turkey raising which would justify a finding on the part of the jury that his turkeys normally gained as much weight as the gain shows in the tables which were introduced into evidence.

We overrule this point.

In Special Issue No. Y, stated fully above, the jury answered that appellee had sustained damages in the amount of $66,-000 by reason of his turkeys’ loss in weight or failure to gain weight which resulted in the use of such turkey feeds.

Appellants contend that the only basis on which the jury could make any calculations as to the financial significance of the turkeys’ weight loss or failure to gain weight was on a comparative basis with what the Turkey World Magazine (hereinafter discussed with reference to appellants’ point of error forty-six) showed the. turkeys should have weighed. Appellants further contend that nowhere in the record does the appellee himself testify as an expert witness as to the probability of his turkeys’ weight after being fed for any certain period of time. That nowhere in the record is there testimony from any witness for appellee as to what the turkeys should have weighed.

The statement of facts contains over 100 pages of testimony showing in great detail the number of pounds of the weight loss and its value in dollars. This information is shown in respect to each flock of turkeys by each grower and it is in the record without objection. Summaries of this mass of detail were introduced without objection. It was shown therein that the total weight loss of all turkeys for the year is shown as 427,584.62 pounds, on which ap-pellee lost $88,621.75. These computations of the loss of weight and the damages on account thereof were not contested by appellants and all of the evidence went into the record without objection. The amount of the weight loss damage found by the jury is substantially less than the evidence showed it to have been.

In this connection, Mr. Don Hurst, appellants’ employee, testified in reference to the weight loss and the proper method for determining the amount of such loss. After testifying that there had been a definite, substantial weight loss by appellee’s turkeys, he testified as follows:

“Q Well, let me rephrase that because that is not well said. From your observation of Mr. Harlow’s flocks, and from your knowledge of the amount of feed that those turkeys had consumed, in reference to their age, were you surprised that they did not weigh as much as you thought they would?
A Yes, sir.
Q Now, Mr. Hurst, can you look at the table of standards that you were then using, and look upon the weights of the turkeys as reflected-in the reports furnished by the processor and sent to your company, and form an opinion about the number of pounds of that loss?
A Of marketable turkey weights ?
Q Yes.
A I believe this could be done, yes.”

Mr. Hurst was brought by appellants from Ohio to supervise appellee’s turkey growing project in 1963. The testimony indicates that all of the parties at interest here used the same method to compute the amount of the weight loss damage. Such evidence further shows that appellants themselves, through their representative Hurst, had expected appellee’s turkeys to meet the standard prescribed in the charts there referred to. See Schultz v. Harless, Tex.Civ.App., 271 S.W.2d 696; Lone Star Canal Co. v. Broussard, Tex.Civ.App., 176 S.W. 649, writ of error dism.; Chicago, R. I. & G. Ry. Co. v. Longbottom, Tex.Civ.App., 80 S.W. 542, writ of error refused.

VIII.

Appellants’ forty-fourth point of error is that of the trial court in submitting Special Issue No. Y-3 because the testimony is wholly insufficient in furnishing a basis of calculation for the jury and also is insufficient regarding the elements of cost for the year 1963 as compared with prior years.

We overrule this point.

Special Issue No. Y-3, restated, is as follows :

“In what amount of money, if any, do you find from a preponderance of the evidence that plaintiff has sustained damages, if any, by reason of additional costs of production over and above normal costs of producing plaintiff's turkeys, if any, which resulted from the use of such turkey feeds, if any such additional cost was so caused?”

There is an abundance of evidence in this record to the effect that the turkeys consumed more than the average amounts of feed that would usually be consumed by turkeys. Appellee arrived at his per bird cost of production by dividing the number of birds that were sold or kept into the amount of money that was actually spent on turkey production. This calculation indicates the cost of production per bird was $3.72. In this respect appellee testified as follows:

“Q I believe you testified yesterday that $3.40 per bird was the estimated and reasonably anticipated cost of production ?
A That is true.
Q That both you and McMillen figured on when you started out?
A That’s right.
Q If you will, tell us now when you multiplied $3.40 times the 133,346 birds, how much total money is that ?
A $453,376.40.
Q Now, if you will, look at your subtraction, when you subtracted that figure from your total expense, which was $496,142.74, what did you get?
A I got a total of $42,766.34.
Q Now, I will ask you whether or not that is what you have referred to as the excessive cost of production of your turkeys in 1963?
A It is.”

Appellee’s profit and loss statement for the 1963 turkey operation, prepared by his accountant, shows appellee’s actual expenses and his actual receipts for the year 1963. The bank statements constituting the basis for such profit and loss statements were introduced in evidence. There was no objection to the testimony that appellee’s excessive cost of production of his turkeys in 1963 was $42,766.34. The jury found this figure to be $37,800.00. We hold that there was sufficient evidence to uphold this finding.

IX.

Appellants’ forty-fifth point of error is that of the trial court in submitting Special Issue No. Y-4 in that it constituted a comment on the weight of the evidence in that it assumed that plaintiffs breeder turkeys were rendered unfit for breeding purposes by reason of being fed defendants’ turkey feed.

We overrule this point.

Special Issue No. Y-4 was submitted as follows:

“Do you find from a preponderance of the evidence that plaintiff’s breeders were rendered unfit for breeding purposes, if they were, as a result of being fed the defendant’s turkey feeds?”

This issue properly places the burden on appellee. The question is direct and does not lend itself to any assumption whatever. Consequently, there is no comment on the weight of the evidence. In addition, there is ample evidence from which the jury could have concluded as it did.

X.

Appellants’ forty-sixth and forty-eighth points are briefed together.

The forty-sixth point is that of the trial court in admitting into evidence parts of certain magazines called “Turkey World” and in particular the charts contained therein, over defendant’s objection that such parts and charts were hearsay.

The forty-eighth point is that of the trial court in admitting in evidence ledger sheets identified as plaintiff’s exhibits P-74 through P-83 purporting to show the difference between the weights of turkeys as shown in the charts contained in “Turkey World” and the weights of plaintiff’s turkeys over defendants’ objection that such charts constituted hearsay.

We overrule these points.

In respect to the use of the tables of growth taken from the magazine “Turkey World” admitted in evidence and used as the basis of anticipated growth computations herein, we quote the following testimony from appellee:

“Q Mr. Harlow, I will ask you whether or not the turkey industry, the turkey producers industry, well, just the turkey industry, uses any kind of growth rate and feed consumption charts ?
A Yes, sir, it does.
Q How do you use those charts?
A Those charts are used to determine the weights that the turkeys should attain at a certain age and on so much feed consumed, and certain mortality. It covers that. I would say mostly it would be a rule of thumb by the industry to determine what the turkeys should weigh at a certain age and how much feed they should consume.
Q Now, is there a magazine called ‘Turkey World?’
A Yes, sir, there is.
Q Labeled business magazine for the turkey industry?
A Yes, sir.
Q Is this magazine used throughout the industry ?
A Yes, sir, I would say it is used throughout the industry.
Q Mr. Harlow, I will ask you several questions concerning the growth rate; the feed consumption and growth standards for all varieties of turkeys. You have already identified the acceptance of this magazine called ‘Turkey World’ by the turkey industry. I will ask you whether or not so far as you know it is used throughout the turkey industry?
A Yes, sir, as far as I know it is.
Q Are you or are you not familiar with the fact that each year the ‘Turkey World’ magazine in one of its issues will publish feed consumption and growth standards for all varieties of turkeys ?
A Yes, sir, that is true.
Q I will ask you whether or not you .make use of these charts each year?
A Yes, sir, we do.
Q I will ask you whether or not Mr. Don Hurst made use of these charts in 1963 in connection with your turkeys ?
A Yes, sir.”

The use of such charts in the industry was further established by the testimony of appellants’ employee Hurst, who testified in this regard as follows:

“Q I will ask you if it isn’t true that you have accepted standards of performances of turkeys by day of age, that is to say that they should weigh within certain ranges within certain ages?
A Yes, there are standards which we use for comparison purposes.
Q And those standards are in general use in the industry, are they not ?
A Yes, I feel they would be standard in the industry.
Q And the standards that were used by you and by Mr. Harlow and Mr. Tidwell were those accepted standards ?
A Yes.”

Nutritionists Dr. Cravens and Dr. Middendorf who were appellants’ witnesses in addition to appellee corroborated this testimony. The evidence establishes the fact that the charts in question are used extensively in the turkey growing business, are relied on and are one of the bases upon which the industry conducts its business. These charts were admissible as an exception to the hearsay rule as printed publications shown to be in general use among the class of persons interested in the matters which they contain. See 32 C.J.S. Evidence § 717, p. 1022; Wigmore on Evidence (3rd Ed.) Vol. VI, secs. 1702, 1706. We hold that a sufficient predicate had been laid by the witnesses referred to above and that the charts were admissible as evidence from which the jury could reasonably conclude what the turkeys should have weighed at that particular time in their cycle of growth. Also see Housden v. Berns, 241 Mo.App. 1163, 273 S.W.2d 794.

In overruling appellants’ forty-eighth point we point out that the ledger sheets complained of were admitted into evidence without objection, that the same evidence in summary form was admitted without objection and in addition Mr. Harlow’s verbal testimony to the same effect was admitted without objection. This evidence was merely cumulative of other evidence admitted without objection.

XI.

Appellants’ forty-seventh point of error is that of the trial court in admitting into evidence plaintiff’s exhibits Nos. 85 and 86, purporting to be feed tags on turkey feed manufactured by Quaker Oats Company under the brand name “Full-O-Pep Super Turkey Grower Ration” over defendants’ objection that such tags constituted hearsay.

We overrule this point.

The court admitted the tags for the limited purpose “of showing the guaranteed analysis and the list of the ingredients contained in the test feed, the Quaker Oats Full-O-Pep Feed, as it has been identified in the testimony at Mr. Stewart’s farm neai San Saba.”

These two feed tags are not subject to the hearsay rule and were properly admitted.

There was a feeding experiment conducted at Mr. Stewart’s farm in which two loads of Quaker Oats Full-O-Pep turkey feed covered by the tags were used. The purpose of the experiment was to compare the results of feeding such Quaker Oats Full-O-Pep feed to turkeys that had been on Master Mix turkey feed, to the results obtained from other turkeys that were continued on the Master Mix turkey feed. The main purpose of the tags was to show that the Quaker Oats feed did not contain cottonseed meal.

This experiment was made with the full knowledge, participation and cooperation of appellants. The two feed tags were delivered to the appellee with the Quaker Oats Company Full-O-Pep turkey feed used in such experiment. By agreement between Don Hurst for appellants and the appellee, the Quaker Oats turkey feed covered by said tags was financed by appellants.

The two feed tags in question were required by, and complied with, Article 388le, known as Texas Commercial Feed Control Act of 1957, Sections 5 and 6. This law requires that feeds such as Full-O-Pep be accompanied by a tag showing, among other things, the guaranteed analysis and the common and usual name of each ingredient used in the feed covered by such tags. The law prescribes penalties for failure to furnish tags listing the information required.

The joint participation of appellants in the experimental feeding of the competitive company’s feed removed these two feed tags from the realm of hearsay.

In addition, these feed tags are as much “official” labels as was the baseball guide that this Court held to be admissible for the purpose of showing the beginning and the end of playing season of a particular club, in Western Union Telegraph Co. v. Eckhardt, Tex.Civ.App., 2 S.W.2d 505, modified, Tex.Comm.App., 11 S.W.2d 777, rehearing denied, 20 S.W.2d 759; and as the railway time tables held admissible in Western Union Telegraph Co. v. Gilliland, 61 Tex.Civ.App. 185, 130 S.W. 212, error refused.

XII.

Appellants’ forty-ninth point of error is that of the trial court in permitting plaintiff to testify to certain representations allegedly made to him by defendants’ representatives regarding the quality of turkey feed produced by defendants over their objection that any warranty regarding the quality of said feed was contained in the written contracts executed in connection with each purchase of such feed and that prior negotiations were merged in such written contracts.

We overrule this point.

Pursuant to the business arrangement between the parties, appellee and appellants entered into a similar but separate turkey feed purchase contract each and every time appellee purchased turkey feed from appellants. Each such contract executed by the parties contained a clause with the following language:

“2. Terms of this agreement may not be varied orally and no statement, act or representation as to quantity, quality, prices or terms shall be binding on either party unless included herein. No warranty is made with respect to results from use of any feed supplied under the terms of this agreement.”

This clause was expressly referred to on the front of the contract.

The rule of strict liability is not affected by contractual considerations and a waiver or disclaimer of the implied warranty of fitness does not eliminate the strict liability that the law imposes. This is the rule applied in Vandermark v. Ford Motor Company, 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 171 by the Supreme Court of California. Vandermark concerned a mechanical defect in an automobile. A waiver of an implied warranty of wholesomeness of a food product was before the Court in Linn v. Radio Center Delicatessen, 169 Misc. 879, 9 N.Y.S.2d 110. The Court held that the waiver was not effective to release the manufacturer from strict liability based upon implied warranty of wholesomeness of the pastry and that it would be contrary to public policy to hold otherwise.

There is still another reason why the disclaimer on the back of the contract is ineffective here. A sale of unfit feed is a violation of the penal provisions of the Texas Commercial Feed Control Act of 1957 cited above. Anticipatory releases of liability for violation of penal statutes are uniformly held to be invalid. Cameron Compress Co. v. Whitington, Tex.Comm.App., 280 S.W. 527.

The cases cited by appellants are-not in point here as' they involve express warranties in contract cases..

XIII.

Appellants’ fiftieth point of error is that of the trial court in including in the judgment in plaintiff’s favor interest from January 15, 1964, on the amount found by the jury as his damages, said date being approximately twenty (20) months prior to the date on which the judgment was rendered, because in no event should any interest have been allowed except from the date of judgment.

We overrule this point.

All of the losses in this case occurred in 1963, the last flock of turkeys having gone to market on January 2nd or 3rd, 1964. The trial court allowed interest from January 15, 1964. We hold that appellee was entitled to interest prior to judgment under authority of the Supreme Court in Watkins v. Junker, 90 Tex. 584, 40 S.W. 11, where the rule was announced that compensation for detention of that which is due on account of injury inflicted is an element of damages necessary to the complete indemnity of the, injured party. The rationale of awarding interest prior to judgment is to provide complete indemnity for the injured party.

XIV.

Appellants’ fifty-first point of error is that since it appeared from plaintiff’s own income tax returns for prior years that he had never cleared as much as $15,000.00 in any one year from his total operations, and since there is absolutely no warrant in the evidence for finding plaintiff would have made in excess of ten (10) times as much from his 1963 turkey crop as he had ever made at any time from all his operations, the verdict is grossly excessive, and the trial court erred in refusing to set aside the verdict of the jury and to grant defendants a new trial.

We overrule this point.

17 Tex.Jur.2d, page 407 in discussing damages, states:

“In passing on whether a verdict for damages is grossly excessive the evidence in support of the award must be viewed in the light most favorable to the award.”

and further on pages 408-409 that:

“ * * * unless the award is so large as to indicate that it was the result of passion, prejudice, partiality or corruption, or that the evidence had been disregarded, the verdict of the jury is conclusive and will not be set aside as excessive, either by the trial court or on appeal.”

The damage awards in this case are based entirely on detailed evidence carefully supported and documented on each element of damages answered by the jury. Appellants are not specific in pointing out which one or more of the answers to the seven damage questions are excessive and seem to base their contention on the fact that appellee’s operations in the past have been on a smaller scale. This latter fact has no bearing on appellee’s turkey operation' for the year 1963.

XV.

Central Soya, Inc. moved for judgment non obstante veredicto which the court properly overruled.

The judgment is joint and several against both appellants.

The evidence discloses that McMillan is a wholly-owned subsidiary of Central Soya. The evidence also discloses that these two appellants, acting in concert with one another, sold the turkey feeds in question to appellee.

It is the general rule in Texas that two or more persons become joint tort feasors when they participate in concerted action to commit a common tort and accomplish their purpose. 55 Tex.Jur.2d Sec. 13, page 636.

We affirm the judgment of the trial court.

Affirmed.

      . “THIRTY-FIRST POINT: The trial .court’s Special Issue No. 5 was too Broad and general, and hence was improper, because it inquired about too great a portion of the total factual picture and constituted a global submission of the entire case insofar as Defendants’ liability was concerned.
      THIRTY-SECOND POINT: The trial court’s Special Issue No. 5 was so vague, doubtful and uncertain of meaning as to be completely ambiguous and multifarious.
      THIRTY-THIRD POINT: The trial court’s Special Issue No. 5 was in effect a submission of Res Ipsa Loquitur in that it does not require the Plaintiff to prove what fact or circumstances made Defendants’ turkey feed unsatisfactory to Plaintiff or unfit for consumption by his turkeys.
      THIRTY-FOURTH POINT: The trial court’s Special Issue No. 6 constituted a global submission in failing to inquire into any particular defect in Defendants’ turkey feed that would cause it to be injurious or deleterious to Plaintiff’s turkeys.
      THIRTY-FIFTH POINT: The trial court’s Special Issue No. 6 constituted a comment on the weight of the evidence in that it relates to ‘injuries’ suffered by Plaintiff’s turkeys, and thereby improperly calls attention to the possibility of physical harm or damage to the body of the turkeys.
      THIRTY-SIXTH POINT: The trial court erred in submitting Special Issue No. 7 because ‘the sale and delivery of turkey feeds’ would not in any event be negligence, it being an undisputed fact that there was a sale and delivery of Defendants’ turkey feeds to the Plaintiff.
      THIRTY-SEVENTH POINT: The trial court’s Special Issue No. 7 was too broad and general, and hence was improper, because it constituted a global submission of the entire case rather than requiring the jury to make its finding with respect to a single act,..fact, or circumstance.
      THIRTY-EIGHTH POINT: The trial court’s Special Issue No. 7 was so vague, doubtful and uncertain of meaning as to be completely ambiguous and multifarious.
      THIRTY-NINTH POINT: The trial court’s Special Issue No. 7 was in effect a submission of Res Ipsa Loquitur in that it does not require the plaintiff to prove what fact or circumstances made Defendants’ turkey feed unsatisfactory to Plaintiff or unfit for consumption by his turkeys.
      FORTIETH POINT: The trial court’s Special Issue No. 8 was too broad and general, and hence was improper, because it constituted a global submission of the entire ease rather than requiring the jury to make its finding with respect to a single act, fact, or circumstance.
      FORTY-FIRST POINT: The trial court’s Special Issue No. 8 was so vague, doubtful and uncertain of meaning as to be completely ambiguous and multifarious.
      FORTY-SECOND POINT: The trial court’s Special Issue No. 8 was in effect a submission of Res Ipsa Loquitur in that it does not require the Plaintiff to prove what fact or circumstance made Defendants’ turkey feed unsatisfactory to Plaintiff or unfit for consumption by his turkeys.”


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    A. C. LUDLAM et ux., Appellants, v. The STATE of Texas et al., Appellees.
    No. 222.
    Court of Civil Appeals of Texas. Tyler.
    June 23, 1966.
    Harry M. Jones, Jones & Jones, Mineóla, Clyde Elliott, Jr., Elliott & Elliott, Canton, for appellants.
    James T. Flynt, Quitman, for appellees.
   SELLERS, Justice.

This is a condemnation case brought by the State and Wood County, Texas, to condemn land for road purposes. We take the following from appellants’ Brief:

“This is a condemnation case. Appel-lee found it necessary to condemn for highway widening purposes 0.335 and 0.368 acre of land belonging to appellants. Appellants owned two tracts of land involved in this suit. One tract contained 3.506 acres and the other contained 3.339 acres. Both tracts are located upon the West side of Texas State Highway 37 running between Mineóla and Quitman in Wood County, Texas.
“While the two tracts of land do not adjoin each other, it was agreed and stipulated that they would be considered as one tract of 6.845 acres to prevent the multiplicity of law suits. The date of taking was stipulated to be June 15, 1964, and the part taken was stipulated at 0.703 acre. It was further stipulated that all proceedings were in order and that the only questions to be decided by the jury were the value of the part taken and damages to the remainder. The remainder was stipulated to contain 6.142 acres. All these stipulations are shown on Page 2 of the Statement of Facts.”

Special Issue No. 1 inquired of the jury the value of the .703 acre tract (being the part taken for road purposes) and the answer was “$1,000.00.” Issues Nos. 2 and 3 found the part remaining to be of the value of $15,000 and the value of the origin al tract before taking to be $15,000.

The three witnesses for appellants in their testimony as to the value of the property taken and the remaining before and after taking, as well as the appellees’ witness on value, as expressed by appellants in their brief is as follows:

The appellants, by their Fifth Assignment of Error, 'complain of the trial court’s action in admitting into evidence the price paid by appellant for his land ten years before the date of taking by appellees. The appellees called Mrs. McIntosh, deputy county clerk and the following proceedings were had over the objection of appellants:

“Q You are Mrs. Elma McIntosh, is that correct?
“A That is correct.
“Q You are the chief deputy county clerk here in Wood County?
“A That is correct.
“Q Mrs. McIntosh, I asked you to examine Volume 392, page 396 of the Deed Records of Wood County, Texas, did I not?
“A You surely did.
“Q Does that particular volume and page reflect a deed?
“A Yes, it does.
“Q And who is the deed from, please, ma’am ?
“A It is from G. P. Ray and wife, Jessie.
“Q And who is the deed to?
“A To A. C. Ludlam and wife, Kate.
“Q And how many acres of land does it convey?
“A Eight acres.
“Q And does it show that that eight acres fronts on Highway 37?
“A Yes, it does, parallels it.
“MR. JONES: May we have the d"te of the deed?
“A June the 12th, 1954.
“MR. JONES: 1954?
“A Right.
“MR. JONES: Well, now we are going to object to any transactions that took place in such a remote period.
<( * * * .
“THE COURT: Will you state your obj ection.
“MR. JONES: The objection is that any transaction more than five years prior to the date of the condemnation proceedings and putting of the money up, is too remote to be considered.
« * * *
“THE COURT:. I think she can testify as to what she has in her office.
“MR. JONES: You want to see the cases, Judge?
“THE COURT: No, I don’t.
“MR. JONES: All right.
“THE COURT: Overrule the objection.
“MR. JONES: Note our exception.
“Q (By Mr. Flynt) Are there any revenue stamps contained on that deed, Mrs. McIntosh ?
“A Yes.
“Q What denomination and how many?
“A One and it is for $3.30.
“Q And what is the general valuation that is placed on revenue stamps per thousand dollars?
“MR. JONES: That is set by statute and that would be the best evidence.
“MR. DOUGLAS: If she knows.
“MR. JONES: The best evidence would be the statute itself.
“THE COURT: Overrule the objection.
“MR. JONES: Note our exception.
“Q (By Mr. Flynt) You may answer.
“A A dollar ten per thousand or fifty-five cents for five hundred dollars.
“Q $3.30 would be three thousand dollars consideration?
“A Uh huh.
“MR. FLYNT: That is all.”

The record reveals that appellant acquired his land ten years before the taking by appellees of the strip involved. It is well settled that the price paid for the land ten years before the taking is not admissible on the issue as to the value of the property at the time of the taking— State of Texas v. Curtis et al., Tex.Civ.App., 361 S.W.2d 448 — and we cannot say in view of all of the evidence in the case that such evidence was not harmful to appellants and for this error, the judgment of the trial court is reversed and the cause remanded for another trial.

The disposition made of the appeal makes it unnecessary to consider appellants’ other assignments of error.


text:
    Bessie Mae DANNELLEY, Appellant, v. Frank H. DANNELLEY, Appellee.
    No. 11397.
    Court of Civil Appeals of Texas. Austin.
    May 4, 1966.
    Rehearing Denied June 1, 1966.

      Butler, Schraub, Schafer & Gandy, Philip A. Schraub, Corpus Christi, for appellant.
    J. Malcolm Robinson, Austin, for appellee.
   PHILLIPS, Justice.

This is a suit for the custody of three children, a boy, age 10, a girl, age 14 and a boy age 18. The appeal is from a judgment of the District Court of Travis County decreeing a permanent change of custody of the three children from their mother, the appellant, who had been awarded their custody in the original divorce decree, to their father, appellee.

We affirm the judgment of the trial court.

In December of 1961, the appellant was divorced from the appellee in Travis County, Texas in Cause No. 123,703 and was awarded custody of their three minor children.

In July of 1964, appellee filed a motion with the court, docketed under the number of the original divorce action, wherein ap-pellee alleged that appellant was no longer physically or mentally capable of exercising ■custody and control of the children in that she had been committed to the Austin State Hospital because of drug addiction and alcoholism. The motion further alleged that it would be to the best interest of the children if they be given into the custody of the appellee and prayed for their custody and control.

By an order dated July 21, 1964, the court ordered that the temporary custody of the children be placed with appellee.

On July 1, 1965, appellant filed her original motion to set aside and vacate the court’s order of July 21, 1964. This motion was set for hearing by the court for July 9, 1965 and appellee was served with citation and notice of such hearing. Appellee then filed his motion to quash the citation and made demand for a jury.

On July 9, 1965, appellant filed her first amended motion, wherein she moved the court to declare null and void, or alternatively to set aside and vacate the temporary custody order filed July 21, 1964.

On July 25, 1965, the court entered judgment decreeing, among other things, the legal custody of the minor children as being in appellee, and having been in ap-pellee from and since July 21, 1964, and on July 26, 1965, entered an order fixing visitation rights in appellant.

On August 17, 1965, appellant filed her motion, with accompanying affidavits, to set aside, vacate and strike the judgment and order, which motion was heard on August 23, 1965. The court set aside his prior judgment of July 25, 1965 and ordered a further hearing held on the matter before the court on September 3, 1965.

On September 3, 1965, the court held the hearing wherein appellant urged her motion to vacate and set aside the order dated July 21, 1964 and offered evidence in support thereof.

On September 13, 1965, the court entered judgment decreeing that the legal custody of the minor children is in the appellee and has been in appellee since July 21, 1964, and any action by appellant to alter this should be by a new and independent action for a change of custody. The court further decreed that the proceeding filed by appellant on July 1, 1965, is a proceeding to change custody of the minor children, and that appellee is entitled to full service of citation as in other suits, and that his motion to quash should be and is sustained. The court reinstated the visitation period for appellant as fixed by the order of July, 26, 1965.

Appellant is before this Court on seventeen points of error. Thirteen of these points are grouped together, however, of this group, the following are briefed and argued. The error of the court in rendering judgment fixing custody of the children in appellee because no citation, notice or show cause order was issued to appellant in respect to the temporary change of custody order dated July 21, 1964; the lack of notice to appellant of the entry of said order and the issuance of said order without a hearing; the error of the court in fixing the custody as it did inasmuch as appellee’s motion for change of custody, which was filed in the original papers of the divorce action under the original number and in the original court which granted the divorce, is a proceeding seeking to change custody of the three minor children of appellant and that any such proceeding becomes a new and independent cause of action requiring a petition, proper service on appellant, and requires that appellant be made a party to the proceeding; that since this was not done the order is void. The error of the court in ordering a permanent change of custody without conducting a. trial founded upon proper pleadings and affording the parties the opportunity to present evidence from which the best interests and welfare of the minors could be adequately determined.

We overrule these points.

We hold that this case is determined by the holding in Spencer v. Spencer, Tex.Civ.App., 371 S.W.2d 898, no writ history, which states the rule, in a situation such as we have here, to be that whenever a spouse having legal custody of children becomes sufficiently incapacitated, enters the State Hospital and is unable to exercise legal custody of the children or voluntarily surrenders such custody for a period of time to the opposite spouse, such spouse’s possession is prima facie lawful.

Here the trial court found that the appellant was declared mentally ill by the Probate Court of Travis County on July 21, 1964, and was committed to the Austin State Hospital; that she was released from the State Hospital under authority of Section 80, of the Mental Health Code, Art. 5547, Vernon’s Ann.Civ.St., on October 15, 1964. The certificates of (Medical Examination of the two medical doctors given in support of such commitment reflect that the commitment was for alcoholism and drug dependency.

Appellant asks us to declare the court’s order of July 21, 1964 void because of the alleged procedural defects pointed out, thus relieving her of the burden of proving herself a fit mother for custody of the children at the subsequent hearing held by the court on September 3, 1965 at which hearing both spouses appeared, were represented by counsel and presented evidence.

For appellant to prevail here, we would have to ignore Spencer and also Thomas v. Thomas, Tex.Civ.App., 228 S.W.2d 548, no writ history, which is cited in Spencer in support thereof. As stated by the court in Spencer: “This is a wholesome rule in that it does not leave the custody of the children unsettled pending a hearing, as required under the contrary rule. * * * When appellant felt she was again able to care for the children, she was entitled to bring her petition to change or modify appellee’s custody of them.”

In ruling that the legal custody of the children is in appellee and has been in appellee since the court’s order of July 21, 1964, the court held a hearing at which both spouses were present, were represented by counsel and had ample opportunity to present evidence. This hearing was held September 13, 1965, more than a year after the court’s original order temporarily changing custody and was held at the behest of appellant who had presented the court with a pleading designated as a motion. In this motion appellant designated the parties to the controversy, that such parties were divorced, that prior custody of the children had been in her, that conditions had changed and that she had become hospitalized for a period of time, that she now fully recovered, remarried, had a new home and she was the proper person to have custody of the children. Since appellant has invoked the jurisdiction of the court to determine the personal status of the children, she cannot now be heard to deny the power of the court in that proceeding to do with the children’s persons or their status whatever appears to the court to be in their best interests. See Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79.

The evidence discloses that the trial court was no stranger to the parties hereto or to their problems. He first became aware of their difficulties some five years prior when he granted them a divorce and it was before this same court, for the most part, that the various proceedings delineated herein were held. He was fully aware that the appellant was absolutely incapable of discharging the obligations imposed upon her by reason of her commitment for a period of eighty five days and in addition allowed her children to remain with appellee for a period of nine months. In this connection, appellant was aware of her visitation rights prescribed by the court and conformed thereto.

It is well settled in this State that the trial court is given wide latitude where the welfare of minor children is concerned.

Appellant asks us to reverse this case and render judgment, the consequence of which would be to deliver these minor children to her. Under these circumstances, it is our opinion that her request is not only barred by the applicable case law but by common sense as well.

Appellant’s points thirteen, fourteen and fifteen, briefed together, complain of the court’s action that appellant’s commitment due to mental illness changed legal possession to appellee because such commitment did not adjudge appellant to be of unsound mind; that the court erred in concluding that by virtue of appellant’s inability or unwillingness to exercise custody from July 22, 1964, to July 1, 1965 appellee acquired legal custody of the minor children as a matter of law; that the court erred in finding and in rendering judgment on September 13,1965 that the legal custody of the minor children is in appellee and has been in appellee since July 22, 1964 in that no lawful change in the custody of said children from that fixed by the judgment of December 8, 1961, has ever been made by lawful judgment or by operation of law. In Spencer, the hospitalization was because of a nervous breakdown, while in Thomas the spouse was adjudged to be of unsound mind. Here the appellant was declared mentally ill. We hold that appellant’s commitment was upon sufficient grounds to invoke the rule in Spencer.

Appellant’s points fourteen and fifteen have been adequately disposed of above.

We overrule these points.

Appellant’s seventeenth point of error is that of the court in finding that appellant made no effort or attempt to regain the actual physical possession of or exercise the actual custody of the three minor children during a period of eight and a half months before the filing of her motion on July 1, 1965, because the undisputed evidence presented in support of her motion shows that she had sought advice of counsel and the court in this regard and acted in accordance with this advice.

We overrule this point. While there is evidence that appellant talked to her attorney and to the court about getting her children back, there is also evidence from which the court would have concluded otherwise.

We affirm the judgment of the trial court.

Affirmed.

ON SECOND MOTION FOR REHEARING

Our opinion on rehearing is withdrawn for the reason that the question discussed therein, the failure of the trial court to submit the issues made to a jury, is not supported by a proper point in appellant’s brief.

Appellant’s second motion for rehearing is overruled.

Motion overruled.


author: GRISSOM, Chief Justice.

text:
    COUNTY OF CALLAHAN et al., Appellants, v. COUNTY OF COLEMAN, Appellee.
    No. 4050.
    Court of Civil Appeals of Texas. Eastland.
    June 10, 1966.

      James Paul Shanks, County Atty., Callahan County, Baird, James E. Jeffrey, County Atty., Taylor County, Abilene, for appellants.
    Woodward & Johnson, Halbert O. Woodward, Coleman, for appellee.
   GRISSOM, Chief Justice.

Coleman County sued Callahan and Taylor Counties for the purpose of establishing the boundary line between said counties, alleging that the south boundary line of defendants, where common with the north boundary line of Coleman County, was a line surveyed and established by Evans, in 1885, and the established, recogni?ed and true boundary line between said counties. There were three lines involved. The first was the line surveyed by Evans, Coleman County’s Surveyor, in 1885, which purported to establish the north boundary line of Coleman County and, so far as they join Coleman County, the south boundary lines of Callahan and Taylor Counties. The second was a line surveyed by Haley, Callahan County’s Surveyor, in 1898, purporting to establish the south boundary line of Callahan County south of the Evans’ line. The third was a line run, in 1882, by Henderson for Taylor County purporting to fix the south boundary line of Taylor County still further south of the Evans’ line than Haley’s. There are original markers which can be located on said lines. It was agreed that each could be located and established on the ground. The cause was tried to a great extent upon an agreed statement of facts. The court found that the Evans’ line was the northern boundary line of Coleman County and, where said counties touched, the southern boundary line of defendants. Taylor and Callahan Counties have appealed.

Appellants’ points are that the court erred in finding as a fact that (1) the Evans’ line runs along a position that is west from the west corner of Comanche County, because such finding is against the great weight and sufficiency of the evidence, and that the court erred in finding that (2) the Evans’ line, as marked on the ground by him in 1885, is the recognized and established northern boundary of Coleman County and the south boundary lines of Callahan and Taylor Counties, where the latter two counties join Coleman County. As to this second point, appellants’ contention is that there is no evidence to support the finding. Appellants further contend that the court (3) erred in finding that the line surveyed by Haley, in 1898, is located south of a position west of the west corner of Comanche County, because such finding is against the great weight of the evidence; that the court erred (4) in finding as a fact that the line surveyed by Haley does not run due west from the west corner of Comanche County, (as the court found the Evans’ line did), because such finding is against the greater weight and sufficiency of the evidence; that the court erred (5) in refusing to find as a fact that the Commissioner of the General Land Office does not recognize any of said lines over the other, as requested by appellants, because such fact was “clearly supported by the evidence”; that the court erred (6) in refusing to find as a fact that the tax assessor-collector of Coleman County, in levying taxes, does not recognize the Coleman County line as established here, as requested by appellants, because such fact is “clearly supported by the evidence”; that (7) the court erred in finding as a fact that the variation used by most surveyors at the time said surveys were made, in that area, was 9 degrees and 30 minutes east, instead of 9 degrees and 12 minutes east, as called for by Haley, because such finding was against the greater weight and preponderance of the evidence; that (8) the court erred in concluding that the Evans’ line was established under the law then in force as the true northern boundary line of Coleman County, because said finding is against the greater weight and sufficiency of the evidence and that (9) the court erred in rendering judgment for Coleman County, because the evidence was insufficient to support it.

A glance at a map of the area involved shows that the beginning point of some surveys and description of some counties call for the west corner of Comanche County as the beginning point. Because of the unusual slanting position of the lines surrounding Comanche County, compared to those of adjoining counties, that very material point is not only the most western point but, also, the northwest corner of Comanche County.

In support of appellants’ contention that the court erred in finding as a fact that the Evans’ line runs along a position that is west of the west corner of Comanche County, they point out that the Legislature, in 1876, as shown at page 213 of Batts’ Annotated Civil Statutes, corrected some boundaries by the statement that the south boundary line of Callahan and Taylor Counties ran due west from the west corner of Comanche County, but that Evans commenced his survey at the northwest corner of Brown and the northeast corner of Coleman, about 16 miles west of the northwest corner of Comanche County. Appellants point out that Surveyor Barnett testified that the north line of Coleman County, as surveyed and marked by Evans, runs “reasonably close” to a due westerly direction from the west corner of Comanche.

Appellants say there is no evidence to support the finding that the line established by Evans has been recognized and established as the north boundary line of Coleman County, or as any part of the south boundary lines of Callahan and Taylor Counties; that the only evidence of recognition of the Evans’ line consists of two markers on the highway and one on railroad right-of-way between said Counties and that there was no evidence that said markers were placed there as the official acts of said counties and, therefore, they are not binding on appellants.

As to the third and fourth points, appellants say that Haley began his survey of the south line of Callahan at the west corner of Comanche County and that the General Land Office map of Coleman County shows that the south boundary of Callahan is not at any place the same line as the north line of Coleman County. Appellants conclude that the Commissioner of the General Land Office does not recognize one line over the other. (We understood all parties to agree during argument that maps in the land office show both the Evans and Haley lines.) Appellants further argue that the tax assessor-collector of Callahan County and the same officer of Coleman County have worked out an arrangement as to what land each shall tax and that neither follows any of said lines in making their assessments. Appellants, therefore, urge there is no evidence of recognition by any county involved of the boundary line as fixed by Evans and found by the trial court.

Appellants say, in support of their contention that the finding that the Evans’ line is the north boundary line of Coleman County is erroneous, that the order of Coleman County for the Evans’ survey shows that certified copies thereof were “issued” to the Commissioners Courts of Callahan and Taylor Counties, but that there is no evidence that a surveyor from either took part in the Evans’ survey, or that such notices were served. They conclude that appellants are not bound by the Evans’ survey as establishing said joint boundary line. They cite Wise County v. Montague County, 21 Tex.Civ.App. 444, 52 S.W. 615, and Jones v. Powers, 65 Tex. 207.

Appellants argue that the burden of proof was upon Coleman County to prove the location of said line and that it cannot rely upon lack of evidence from appellants to support their judgment. They quote from Article 1606, Vernon’s Ann.Civ.St.:

“The county boundaries of the counties in this State as now recognized and established are adopted as the true boundaries of such counties, and the acts creating such counties and defining the boundaries are continued in force.”

Appellants say appellee has proved only that the Evans’ line is more accurate mathematically, but that this is not the test; that in such a suit “where the line has been established and recognized by the counties interested, and by the commissioner of the general land office of Texas, the law requires that same shall be declared the true line, though not mathematically correct * * * ” Lynn County v. Garza County, (Tex.Com.App.), 58 S.W.2d 24, 26. Appellants further say it was incumbent upon appellee to prove its allegation that the Evans’ line has been so recognized as said common boundary line. That, on the contrary, the evidence shows it has not been recognized by said counties, not even by the tax assessors-collectors of Coleman and Callahan Counties. Appellants cite Travis County v. Williamson County, Tex.Civ.App., 4 S.W.2d 610, 612; Hunt County v. Rains County, Tex.Civ.App., 7 S.W.2d 648, and Jones v. Powers, 65 Tex. 207. They conclude that appellee failed to sustain its burden of proving that the Evans’ line was established in compliance with law as the correct boundary line and, therefore, the judgment should be reversed and judgment rendered for appellants.

We recognize the law asserted by appellants. But, we think it is not applicable here. The real question presented is whether there is sufficient evidence to support the court’s finding that the Evans’ line is, to the extent found, the common boundary line between Coleman and Callahan and Taylor Counties. We hold that there is sufficient evidence.

The court found as a fact that (5) the Evans’ line runs west from the west, or northwest, corner of Comanche County. There is ample evidence to support that finding. Mr. Barnett, a registered public surveyor with 15 to 20 years experience, testified that Evans began his survey approximately 16 miles west of the west corner of Comanche County; that the north line of Coleman County, as surveyed by Evans, runs “reasonably close” to a due westerly direction from the west corner of Comanche County. Plaintiff’s exhibit 1, a certified copy from the General Land Office, shows a survey, in 1883, by the county surveyors of Callahan and Eastland Counties. They surveyed the east boundary line of Callahan County and the west boundary line of Eastland County for said counties. When they reached the south end of Callahan they were met by the county surveyor of Brown County. They stated in that 1883 report that they were acting in accordance with the law. They disagreed with Brown County’s surveyor as to the location of the north line of Brown County and it was agreed that would be settled after August 20, 1883. Plaintiff’s exhibits 2 and 3 show that surveyors Cochran, for Callahan, and Morgan, for Brown County, established the north line of Brown and the south line of Callahan Counties. Their field notes show that said south line of Callahan ran west. The north line of Brown County was established by three surveyors; the witness trees called for in Cochran’s survey for Callahan. County are the same witness trees called for as the beginning point in Coleman’s exhibits 2 and 3, showing the north line of Brown County; therefore, in 1883 and 1884, three surveyors, acting for Callahan, Brown and Eastland Counties, agreed on the correct location “under the law” of the north line of Brown County as running due west of the west corner of Comanche County and from the southwest corner of Eastland to the northeast comer of Coleman to be coexistent. Plaintiff’s exhibit 4 shows that the Evans’ line goes west and that he began his survey at the terminus of the line surveyed by Cochran and Morgan fixing the north line of Brown County west of the northwest corner of Comanche. From all of which, appellee contends and we agree, the court was authorized to conclude that said surveyors were conscious of their duty under the law, as stated in plaintiff’s exhibit 1, were careful in locating the north line of Brown County; that they found the line shown on Coleman’s exhibits 2 and 3, west of the northwest corner of Comanche County. The field notes for the lines shown in plaintiff’s exhibits 2, 3 and 4 show that the line here in question runs west from the northwest comer of Comanche County. The parties agreed that (14) plaintiff’s exhibits 2 and 3, showing the north line of Brown County, forms a straight line with that established by Evans and, if the north line of Brown County runs west from the west corner of Comanche County, and there is evidence that it does, then the Evans’ line runs west of the west corner of Comanche County.

The court found (1) that the northwest corner of Brown County was 16 miles due west of the west, or northwest, corner of Comanche County. Since the Evans’ line begins at this northwest corner of Brown, 16 miles due west of the northwest corner of Comanche, and runs West, it follows that the Evans’ line is in a position west of the controlling Comanche County northwest corner. The court found (1 and 2) that the Evans’ line is in the position designated by the Legislature in 1858 as the boundary in question, to-wit, west of the northwest corner of Comanche County. Appellee concludes, and we think correctly, that the court was authorized to find that Coleman County’s north line is in a position due west of Comanche County’s northwest corner.

The court’s finding of fact number six was that the Evans’ line, as marked on the ground, had been recognized as the north boundary line of Coleman County and the south boundary line of Callahan and Taylor Counties, in so far as same coincides with the north line of Coleman County. Appellee says, and we think correctly, that it was not required that Coleman County prove the Evans’ line had been recognized by any governmental agency.- In any event, the evidence does show that it has some recognition as such boundary line. There is a marker on the Santa Fe Railroad designating said county boundary line at a point where said railroad crosses the Evans’ line. Surveyor Barnett testified that, by projecting from established monuments he found a marker showing said county line on said railroad right-of-way; that said marker was on the Evans’ line; that it showed said county boundary line to be where Coleman County claims it is; that he found a marker on U. S. Highway 84, between Coleman and Abilene, designating that boundary line; that this marker was on the Evans’ line; that he found a marker between Callahan and Brown Counties on the highway between Brownwood and Cross Plains, that it was on the Cochran and Morgan line, an eastward projection of the Evans’ line, and that said two highway and said railroad markers placed said county lines at the same places and positions that Evans did. In addition, we think it may reasonably be concluded that the Evans line was recognized by Callahan County. Plaintiff’s exhibits 2 and 3 show the field notes of the south line of Callahan County and the north line of Brown County established by Callahan and Brown County surveyors in 1884, and filed with the Commissioners Courts of said counties. They are in accord with the Evans’ boundary line. The statute cited by appellants fixed the south boundary line of Callahan and Taylor Counties as a line running west from the west corner of Comanche County as Evans did. In 1883, Callahan County’s surveyor showed Callahan County’s south boundary line for some distance to coincide with the north boundary line of Brown County, where they touch each other. Evans, two years later, extended said line west showing the northern boundary of Coleman and southern boundary of Callahan counties to be where it was fixed by the court. That line extending west on the south of Taylor was also recognized by the Texas Highway Department and said Railroad Company.

We agree with the court’s findings that the Haley line, claimed by appellants to be their south boundary line, was south of a position west of the west corner of Comanche County. Barnett testified that the Evans’ line was approximately west of the west corner of Comanche County but that the Haley line ran south of the Evans’ line and south of the northwest corner of Comanche County. He testified that if two surveyors started at the west corner of Comanche County and went west 16 miles, one using the variation of 9 degrees 30 minutes east, as all surveyors except Haley did, and the other 9 degrees 12 minutes east, as Haley did, that they would be approximately 155 varas apart and the southern line would be south of the line called to extend west from the northwest corner of Comanche County. He testified that he located the Haley line and the Evans’ line by their markers on the ground and that there the Haley line was 115.8 varas south of the Evans’ line. Appellee reasonably concludes that such divergence of the Evans and Haley line might be largely explained by the difference in variation used. The evidence supports the conclusion that the Evans’ line runs west of the west corner of Comanche County but that the Haley line runs south thereof. It follows that the Haley line was not in a position west of the northwest corner of Comanche County, as required.

Appellants’ contention that the land commissioner did not recognize one line over the other and that the court committed reversible error in not so finding may be overruled, among other reasons, because such a finding would be on an evidentiary issue. Out of five surveys made from 1883 to 1885, inclusive, four used a variation of 9 degrees 30 minutes east. Haley’s variation put his line running southwest, instead of west, of the northwest corner of Comanche County. Barnett testified that such variation showed the Evans’ line as being west of Comanche County’s northwest corner; that he assumed said variation was correct because everyone used it except Haley, and that it was the commonly accepted variation at the time said surveys were made. If Evans established and marked his line in accordance with the law then in force, and the evidence sustained a finding that he did, then the court correctly established the Evans’ line as the true boundary line here in dispute. If the Evans’ line as he established and located it on the ground, has been recognized and established as the true boundary line then the court’s said conclusion finds further support in the record. It seems to be admitted that the Evans’ line was the most “mathematically correct” line to be used in establishing the boundary line in dispute. Article 1591 provides that if it should be found that the boundary line in question has “been heretofore established under the law then in force” it shall be declared to be the true line. The evidence supports the conclusion that Evans established his line in accord with the law then in force.

Under the findings of fact, which we find to be supported by ample evidence, the Evans’ line is, as the court concluded, the northern boundary line of Coleman County and, to the extent that the northern boundary of Coleman County coincides with the southern boundaries of Callahan and Taylor Counties, it is their southern boundary line. All of appellants’ contentions have been carefully considered. They are overruled. The judgment is affirmed.