author: GRISSOM, Chief Justice.

text:
    Emil LASKOWSKI et ux., Appellants, v. W. H. HOLLAND et al., Appellees.
    No. 3729.
    Court of Civil Appeals of Texas. Eastland.
    May 25, 1962.

      Ronald Smallwood, Karnes City, for appellants.
    Ewers, Toothaker, Ewers, Elick, Byfield & Abbott, McAllen, for appellees.
   GRISSOM, Chief Justice.

Emil Laskowski and wife sued W. H. Holland and others in Karnes County. Holland filed a plea of privilege to be sued in Hidalgo County, where he resides. The court sustained Holland’s plea of privilege. Plaintiffs have appealed.

None of the defendants reside in Karnes County. The first count in plaintiffs’ petition was in trespass to try title. Plaintiffs alleged they owned and were in possession of the land in controversy on July 26, 1958, when they were dispossessed by defendants. They alleged that the land is now subject to an oil lease executed by them to Shell Oil Company; that Holland and other defendants claimed title to a part of the royalty reserved by plaintiffs in their lease to Shell; that plaintiffs on July 26, 1958, in August 1958, and in August 1959, executed and delivered three royalty deeds to W. H. Holland; that at the time said royalty deeds were executed and delivered to Holland, Shell owned an oil lease on said land which had been executed by the plaintiffs to Jarmon, as lessee; that in the lease to Jarmon plaintiffs reserved a ⅛⅛ royalty and that they owned only a royalty when they executed and delivered said three royalty deeds to Holland; that at the time of the delivery of the royalty deeds to Holland, it was agreed between plaintiffs and Holland that plaintiffs were selling to Holland only ¾⅛ of the l/^th royalty reserved by the LaskOwskis in their lease to Jarmon; that said lease to Jarmon, which had been assigned to Shell, terminated on September 1st, 1959, and on the same day plaintiffs executed a new lease to Shell, wherein they reserved a %sths royalty, instead of the ⅛⅛ royalty which they had reserved in their pri- or lease to Jarmon; that there existed a dispute between plaintiffs and defendants as to the amount of royalty conveyed by their three royalty deeds to Holland. Plaintiffs alleged that they owned %2nds of the royalty under their present lease to Shell and that Holland and other defendants who claimed through Holland, owned only %ths of Ystb. of the royalty; plaintiffs alleged, in the alternative, that if it were held that their royalty deeds to Holland conveyed J^ths of plaintiffs’ %sths royalty reserved in plaintiffs’ lease to Shell said deeds did not express the real agreement and should be reformed. Plaintiffs then alleged, in the further alternative, that the cash market value of the ½6⅛ royalty in controversy was $50,000.00, and if said royalty deeds were not reformed plaintiffs were entitled to recover that amount from Holland in lieu of a recovery of the ¾6& royalty in dispute or, in the alternative, the amount Holland received for that interest. Plaintiffs prayed that they recover from all defendants, except Shell, the title and possession of %2nds of the royalty; that the court declare that their three royalty deeds to Holland conveyed only ¾ths of ⅛⅛ royalty, instead of 24ths of the %6ths; that, in the alternative, said royalty deeds be reformed and, if not reformed, that they recover $50,000.00 from Holland.

Holland filed a plea of privilege to be sued in the county of his residence. Plaintiffs amended controverting affidavit made their petition a part thereof and stated that, as shown by the petition, this was a suit for the recovery of land and to quiet title to land brought in Karnes County, where said land lies, and by virtue of Subdivision 14 of Article 1995, Vernon’s Ann.Civ.St., venue was in Karnes County. Holland filed a disclaimer of any right, title or interest in the ¾6⅛ royalty in controversy and prayed that the suit against him be dismissed.

Appellants’ points are that the court erred in sustaining Holland’s plea of privilege and in holding that Holland had parted with his title to the royalty in question prior to the filing of this suit and that he was not a necessary party and that the suit as to Holland was only for damages. Appellants say it was established on the trial that the land in controversy lies in Karnes County and that the Statement of Facts shows that the royalty deeds from Holland to other defendants “purportedly” divested Holland of all interest in the royalty and vested title thereto in the other defendants. They say that appellants’ suit against Holland is for the recovery of land and to quiet title thereto and that, therefore, venue was established in Karnes County because it was admitted that the land is in Karnes County. In support of this conclusion they cite exception 14, Article 1995 and Nunnally v. Holt, Tex.Civ.App., 1 S.W.2d 933. Appellants assail Holland’s contention and the court’s holding that, because Holland parted with all title to the royalty in controversy prior to tire filing of this suit, that he is not a necessary party so far as they seek a recovery of said royalty or a reformation of said royalty deeds and that the suit against Holland is merely one for damages'. Appellants say that the cases relied on by appellees, to-wit, James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 320; Smith v. Rampy, Tex.Civ.App., 198 S.W.2d 592, and Morris Plan Bank of Fort Worth v. Ogden, Tex.Civ.App., 144 S.W.2d 998 do not support appellees’ contentions nor the court’s holdings.

In James v. Drye our Supreme Court in an opinion by Judge Griffin said:

“This writ of error was granted because the holding of the Court of Civil Appeals that the suit was a suit for ‘the recovery of lands’ or ‘damages to land’ under Section 14 of Article 1995, Revised Civil Statutes, Vernon’s Ann.Civ. St. art. 1995 § 14, is in conflict with the holding of the Courts of Civil Appeals in the following cases: Smith v. Rampy, Tex. Civ.App.Amarillo, 1946, 198 S.W.2d 592; Morris Plan Bank of Fort Worth v. Ogden, Tex.Civ.App.Ft. Worth, 1940, 144 S.W.2d 998, and other similar cases. We approve the holding of the earlier cases that suits against former owners of land who have parted with all title prior to the filing of suit are not suits for ‘the recovery of lands’ or ‘damages to land’ within the meaning of Section 14, Article 1995, Revised Civil Statutes, 1925.”

Appellants say that said statement is dicta and is not controlling here. They say that the holding in Smith v. Rampy is not in point; that it was a suit by Rampy against Smith and others to recover damages for breach of contract and in trespass to try-title ; that the contract alleged to have been breached was held not to constitute a partnership; that under the contract Smith was to receive an interest in production only if production were obtained; that production was not obtained and therefore Smith never had any title to support an action of trespass to try title and, therefore, the suit was only to recover damages. Appellants cite McCurdy v. Morgan et al., Tex.Civ.App., 252 S.W.2d 264, wherein it was held that the mere fact that a suit was for a declaratory judgment did not prevent it from being a suit to recover land under Section 14, Article 1995. We agree with this holding. Appellants further say that both the grantor and grantee are necessary parties to a suit for reformation of a deed and, since this suit is maintainable in Karnes County against the defendants who purchased from Holland, as a suit to recover land, it is also maintainable there against Holland under Section 29a, Article 1995.

It was shown that Holland conveyed the royalty interest he purchased from appellants to other defendants prior to the filing of this suit. He also filed a disclaimer of any interest in the royalty in dispute. The Supreme Court’s decision in James v. Drye that suits against former owners of land who parted with title prior to the filing of suit are not suits for the recovery of land, or damages to land, within the meaning of Section 14, Article 1995, compels a holding that appellants’ suit against Holland could not be maintained in Karnes County under that exception. Exception 14, Article 1995, was the only exception pleaded by appellants in their answer to Holland’s plea of privilege.

In their brief appellants contend that they are also entitled to maintain the suit against Holland in Karnes County by virtue of Section 29a, Article 1995, which provides that if a suit is lawfully maintainable in a certain county under Article 1995, as to any defendant, it may be maintained there against all necessary parties. Assuming that exception 29a has been pleaded, it was incumbent upon appellants in order to maintain the suit against Holland in Karnes County under that exception to prove by independent evidence facts showing that Holland was a necessary party defendant. Ladner v. Reliance Corporation et al., 156 Tex. 158, 293 S.W.2d 758, 764; Stephenville Production Credit Ass’n v. Drake et al., Tex.Civ.App., 226 S.W.2d 888, 891. No such proof was made. Therefore, appellants had no right to sue Holland in Karnes County by virtue of Exception 29a.

The judgment is affirmed.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    Cruz G. BARRERA et al., Appellants, v. F. C. GONZALEZ, Appellee.
    No. 3704.
    Court of Civil Appeals of Texas. Eastland.
    May 18, 1962.
    Rehearing Denied June 15, 1962.

      Gerald Weatherly, Laredo, Arnulfo Guerra, Roma, H. P. Guerra, III, Rio Grande City, for appellants.
    Glenn Ramey, A. J. Vale, Pope & Pope, Rio Grande City, for appellee.
   WALTER, Justice.

F. C. Gonzalez filed a trespass to try title suit against Cruz G. Barrera, individually and as community survivor of the estate of Guadalupe E. Barrera, deceased, and David Barrera and Victor Barrera, their minor children. In a non jury trial Gonzalez recovered title and possession of two lots in Roma, Texas.

The defendants have appealed, contending the court erred in failing to render judgment for defendants because the purported deed from the Barreras to Gonzalez was in fact a mortgage of a married man’s homestead and, therefore, void. They also contend the judgment is against the great weight and preponderance of the evidence.

This is the second appeal of this case. The San Antonio Court of Civil Appeals in the first appeal reversed and remanded the case because the judgment was against the great weight and preponderance of the evidence. 341 S.W.2d 703, (Writ Ref. N.R.E.).

On April 27, 1957, Barrera made, executed and delivered to Gonzalez his note for $1,030.00 payable in one month. On September 26, 1957, Gonzales signed a note with Barrera for $14,560 pesos, payable to a bank in Mexico. The Mexico bank note was due on January 10, 1958. Barrera committed suicide on that date. On November 26, 1957, Barrera and his wife made, executed and delivered to Gonzalez a deed to the property in controversy. The deed on its face purported to be an absolute conveyance. It recited a consideration of $10.00 and other valuable considerations and the assumption of the balance of the indebtedness on a material-men’s lien owing to G & G Lumber and Hardware Company. In the City of Abilene v. Malcolm M. Meek, Tex.Civ.App., 311 S.W.2d 654, (Writ Ref.), the court said:

“It is elementary that when the appellant contests the trial court’s judgment without requesting findings of fact or conclusions of law, we must assume that the trial court’s findings were all in support of its judgment; and the judgment must be affirmed if there is any evidence of probative force to support it upon any theory authorized by law.”

The basic contention of appellants is that the deed from the Barreras to Gonzalez was intended as a mortgage and was delivered to Gonzalez with the understanding that it was to be considered as a mortgage and not a deed.

The controlling question is with what intent did the Barreras execute and deliver the deed and with what intent did Gonzalez receive it.

The legal principle involved is correctly stated by Justice Pope in his opinion on the first appeal of this case wherein he said:

“A deed absolute on its face may be construed as a mortgage if the evidence, including parol evidence, shows that such was the intention of the parties. Wilbanks v. Wilbanks, [160] Tex. [317], 330 S.W.2d 607; Bradshaw v. McDonald, 147 Tex. 455, 216 S.W.2d 972; Kokernot v. Gilstrap, 143 Tex. 595, 187 S.W.2d 368; Parmenter v. Kellis, Tex.Civ.App., 153 S.W.2d 965. ‘The criterion is the continued existence of a debt or liability between the parties, so that the conveyance is in reality intended as a security for the debt or indemnity against the liability.’ 3 Pomeroy’s Equity Jurisprudence, 4th Ed., § 1185; Parmenter v. Kellis, supra.” Barrera v. Gonzalez, Tex.Civ.App., 341 S.W.2d 703, (Writ Ref. N.R.E.)

Hon. John A. Pope, Jr., a practicing attorney in Starr County testified substantially as follows: that he prepared the deed in controversy and that Guadalupe E. Barrera and Francisco C. Gonzalez came to his office to have the instrument drawn; that they explained to him that Barrera and his wife were going to convey the property to Gonzalez; that as part of the consideration for the conveyance, Ganzalez was to assume the indebtedness due the G & G Lumber and Hardware Company; that he took Guadalupe Barrera’s acknowledgment to the deed; that the instrument was read to Barrera and that Barrera understood the terms of the instrument; that Barrera told him that he and his wife were selling the property to Gonzalez.

Gonzalez was called as a witness under the adverse party rule and testified when asked the question, “Now, these (referring to some notes) are still owing to you, are they not?” he answered “Well, not owing to me now, because he has already paid by this deed, warranty deed.”

Guadalupe Barrera’s widow testified on cross examination that she signed the warranty deed in question and the notary public explained it to her; that she signed the deed with full knowledge of the character of the instrument she was executing.

Alonzo Hinojose testified that Barrera told him he was selling the business to Gonzalez and needed a notary public to take his wife’s acknowledgment. Mac-lovio L. Reyes testified that Barrera told him he had sold the service station ta Gonzalez.

We hold the above constitutes some evidence of probative force to support the judgment.

Additional evidence was introduced in this second trial. We have examined all the evidence and find that the judgment is not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We have examined all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


author: GRISSOM,'~ChieTjusticer

text:
    Daniel BAZAN et al., Appellants, v. CORPUS CHRISTI TRANSPORTATION COMPANY, Inc., Appellee.
    No. 3717.
    Court of Civil Appeals of Texas. Eastland.
    May 18, 1962.

      McDonald, Spann & DeAnda, William H. Shireman, Corpus Christi, for appellants.
    Lyman & Sudduth, Corpus Christi, for appellee.
   GRISSOM,'~ChieTjusticer

Daniel Bazan and wife and S. G. Perales sued Corpus Christi Transportation Company for damages caused by a collision on the streets of Corpus Christi between Per-ales’ automobile, in which Mrs. Bazan was riding, and a taxicab driven by an employee of Airline Taxi, Inc. Plaintiffs alleged that Corpus Christi had an ordinance regulating the operation of taxicabs; that by authority thereof the Transportation Company obtained a franchise and license and was authorized to operate taxicabs for hire in said city and that it thereby became a common carrier; that it obtained a license to operate the taxicab that collided with the Perales’ car and that said cab was then owned by the Transportation Company. Plaintiffs further alleged that said franchise and the license for said taxicab were then in force and had not been transferred with the consent of the city; that the taxicab was using the streets of Corpus Christi by virtue of the franchise and license issued to the Transportation Company and that it thereby became responsible for the negligence of the driver of the taxi despite the fact that he was an employee of lessee. Plaintiffs then alleged the negligence of Nichols, the taxi driver, that same was a proximate cause of the injury of Mrs. Ba-zan and damage to Perales’ automobile.

The Transportation Company filed a motion for summary judgment to the effect that plaintiffs’ pleadings disclosed there was no genuine issue as to any material fact and that, assuming plaintiffs’ allegations were true, the Transportation Company was not liable, as a matter of law; that the only claim of liability of the Transportation Company was that the taxi was using the streets of Corpus Christi by virtue of a franchise and license issued to the Transportation Company and therefore, as a matter of law, the Transportation Company was not liable; that plaintiffs had not alleged that the driver of the taxicab was an employee of the Transportation Company; that no such allegation could be made because the Transportation Company had no employees operating taxicabs in the city and it neither had nor exercised any authority over the operation of any taxicabs therein and that the driver of the taxicab in question was an employee of Airline Taxi, Inc., and it had sole control of and authority over the operation of said taxicab. The Transportation Company further .alleged that it appeared from the allegations ■of Bazan and wife in another case in a different court, in which they sued Airline Taxi, Inc., as a result of the same collision, that the driver was the employee of Airline Taxi, Inc., and that he was then acting within the scope of his employment by Airline Taxi, Inc. Defendant attached to said motion a copy of said petition which did contain said allegations.

Plaintiffs filed affidavits opposing the motion for summary judgment, including an .affidavit of the city secretary that there was an ordinance governing issuance of licenses for operation of taxicabs in Corpus ■Christi and that it provided that no license issued thereunder should be transferred without the consent of the city; that, by virtue of said ordinance, there was then outstanding in the name of the Transportation Company, a license for the operation of the taxicab which collided with Per-ales’ automobile; that the city had not consented to its transfer, nor to the operation of said taxicab upon its streets by the Airline Taxi, Inc. Affiant further stated that the city had not approved the contract between the Transportation Company and Airline Taxi, Inc.

The contract was a lease by the Transportation Company to Airline Taxi, Inc., of the Transportation Company’s business and taxicabs for five years in consideration of the payment of $100.00 per day. The lease commenced on August 1st, 1955, two years before the Perales’ accident. It provided, among other things, that Airline Taxi, Inc., would promptly pay all taxes, charges, licenses, permit fees, street rental fees, gross receipts taxes and all other taxes and charges levied by any governmental authority against said taxicabs or said business; that it would so conduct its business under the Transportation Company’s franchise and licenses that said franchise would not be lost by reason of Airline Taxi’s operations; that Airline Taxi, Inc., would not seek additional taxicab permits or licenses whereby Airline Taxi, Inc., would become entitled to operate more taxicabs in the city than was then entitled to operate. Plaintiffs also filed the affidavit of Mrs. Bazan that she was a passenger in Perales’ automobile when it was struck by the Transportation Company’s taxicab, which had the license issued for it to the Transportation Company; that she had not released Airline Taxi, Inc., from liability; that she contended the Transportation Company was a joint tort-feasor with Airline Taxi, Inc., and that she was entitled to recover damages from it because the Transportation Company obtained a license to operate said taxicab under the ordinance mentioned and the Transportation Company thereby bcame a common carrier and, therefore, the Transportation Company could not contract away its liability as a common carrier without the approval of the city, which it had not obtained; that even though Nichols was employed by and under the direction of Airline Taxi, Inc., and engaged in the course of his employment by it, nevertheless, the Transportation Company owned the taxicab and the license under which it was being operated and, therefore, the Transportation Company was liable to any person injured by the negligence of said driver which proximately caused such injuries.

The Transportation Company filed a supplemental affidavit showing a judgment, based on the same collision, by the Bazans against Airline Taxi, Inc., for $3,800.00, payable in monthly installments of $250.00, and that Airline Taxi had paid plaintiffs $250.00 on said judgment.

The court granted the Transportation Company’s motion for summary judgment and rendered judgment for it. Plaintiffs have appealed.

The substance of appellants’ points are that the court erred in granting defendant’s motion for summary judgment and thereby holding that the Transportation Company, which was carrying on an activity which could be lawfully conducted only under a franchise granted by the city and which involved an unreasonable risk of harm to others, was not liable for damages caused by the negligence of a contractor employed to do the work and erred in holding that the Transportation Company, which was a common carrier, could delegate its responsibilities arising from its franchise by contracting with another as an independent contractor and thus avoid liability for the negligence of such contractor’s employee.

The alleged liability of the Transportation Company rests upon the facts that the franchise and license of the Transportation Company was in force at the time of the collision, the license used on the cab had not been transferred with the consent of the city and the taxicab was using the streets by virtue of the Transportation Company’s franchise. The only violation of the law alleged, if any, is that an ordinance prohibited the transfer of a license without the consent of the city. It was not specifically alleged that the Transportation Company had transferred the license on the taxicab involved in the collision. It was alleged that said taxicab was then being operated under the Transportation Company’s license.

The record does not show that said license had been transferred within the meaning of said ordinance, unless it is shown by said lease. We do not think that the lease of a licensed automobile effects a transfer of the license. The affidavit of the city secretary shows that at the time of the collision an ordinance was in effect in Corpus Christi which governed issuance of licenses for operation of taxicabs on its streets and that it provided that no license issued thereunder should be transferred without the consent of the city. If liability was intended to be asserted against the Transportation Company because it violated said ordinance and was therefore guilty of negligence, we think it has failed to do so. The license was not shown to have been transferred, unless transfer is established by the fact that Nichols was operating the taxicab as an employee of Airline Taxi, Inc., while it bore a license issued to the Transportation Company. We do not believe a transfer, within the meaning of the ordinance, is shown, nevertheless, the facts alleged fail to show either negligence or that the alleged negligence was a proximate cause of plaintiffs’ damage. Negligence is not shown because the purpose of the prohibition was not to prevent the collision of a taxicab, while being driven by a transferee of such a license. 7 Tex.Jur.2d 545; American Law Institute, Negligence Sec. 288, p. 759, 761. A violation of such an ordinance does not establish negligence per se unless prevention of such an accident was a purpose of its enactment, East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613, 615; Mundy v. Pirie-Slaughter Motor Company, 146 Tex. 314, 206 S.W.2d 587, 590. We conclude that, even if violation of said ordinance was shown, same does not constitute negligence. The rule that a defendant’s act must be shown to be a proximate cause of plaintiffs’ injury is applicable where the alleged negligence is violation of an ordinance. J. S. Abercrombie Co. v. Delcomyn, 134 Tex. 490, 135 S.W.2d 978, 979; East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613, 616. We think the facts alleged fail to show that violation of said ordinance, if any, was either negligence or a proximate cause of plaintiffs’ damage. San Antonio & A. P. Ry. Co. v. Behne, Com.App., 231 S.W. 354; Skillern & Sons v. Paxton, 293 S.W.2d 521 (Ref. N.R.E.); Tinker v. Yellow Cab Co., 74 S.W.2d 521, 523, (Writ Dis.); 7 Tex.Jur.2d 545; Vol. 2 Restatement of the Law of Torts, page 759; 68 S.L.R. 1002, 1016; 100 A.L.R. 927.

The court correctly sustained the motion and rendered judgment for appellee. Appellants’ points are overruled. The judgment is affirmed.


author: HUGHES, Justice.

text:
    ALLIED FINANCE COMPANY, Appellant, v. Bud FOWLER, dba Bud Fowler Automobile Company, Appellee.
    No. 10967.
    Court of Civil Appeals of Texas. Austin.
    May 23, 1962.
    Locke, Purnell, Boren, Laney & Neely, J. L. Shook and John D. Crawford, Dallas, for appellant.
    No briefs filed for appellee.
   HUGHES, Justice.

This appeal is from an order overruling the plea of privilege filed by appellant, Allied Finance Company, a Texas corporation, to be sued in Dallas County where it has its principal office and principal place of business.

Appellee, who has filed no brief, is Bud Fowler, dba, Bud Fowler Automobile Company.

We copy, in full, all of the substantive allegations contained in appellee’s controverting affidavit to appellant’s plea of privilege.

“2. THAT this suit is bottomed on a written contract that was to be performed in whole or in part in Travis County, Texas, and under the provisions of Section 5 of Article 1995, V.A. T.R.C.S.1925, venue of such suit lies in Travis County, Texas; and,
“3. THAT this suit is based on allegations of fraud committed in Travis County, Texas, and under the provisions of Section-7 of Article 1995, V.A. T.R.C.S.1925, venue of such suit lies in Travis County; and,
“4. THAT the Defendant in this suit is a corporation; that the suit is one involving a cause of action, part of which arose in Travis County, Texas; that the Plaintiff resides in Travis County, Texas, the county in which a part of the matters in suit arose and in which Defendant has an agent or representative; and that under the provisions of Section 23 of Article 1995, V.A.T.R.C.S.1925, venue of such suit lies in Travis County, Texas.”

This plea was sworn to by appellee’s attorney. The plea did not incorporate by reference or otherwise, except as shown, the allegations of appellee’s original petition, his only petition.

The only writing offered and received in evidence was appellant’s Exhibit No. I, which is headed “Dealer’s Application for ■Floor Plan Accommodation.’^ It is signed by appellee and “Approved” by appellant. It expressly provides “All sums payable hereunder shall be due and payable at Dallas, Dallas County, Texas, and all obligations are performable in Dallas, Dallas County, Texas.”

It is obvious that this is not a contract in writing performable in Travis County so as to fix venue there under Art. 1995, subd. 5, Vernon’s Ann.Civ.St.

The allegations of fraud in the controverting plea are patently insufficient. The rule is that such plea must set out specifically the facts relied upon to confer venue in the county of suit. This is clearly the rule when such plea does not adopt the petition. Lawless v. Tidwell, Tex.Civ.App., 24 S.W.2d 515, Eastland Civil Appeals.

We have read appellee’s petition and the statement of facts. There is no pleading of fraud. There is no evidence of fraud.

What we have said also disposes of appellee’s effort to plead venue in Travis County under Subd. 23, Art. 1995, V.A.C.S., providing, in part, that in suits against a private corporation the suit may be brought in the county in which the cause of action or a part thereof arose. The controverting plea does not allege facts constituting a cause of action.

If the Trial Court had sustained appellant’s plea of privilege it would have been an errorless judgment and we would have had no alternative but to affirm.

Since the case must be reversed, we are required to determine whether or not we should reverse and remand or reverse and instruct transfer of the case. See Rule 505, Texas Rules of Civil Procedure, Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792.

Appellee testified fully upon the hearing. He did not testify to any breach of the writing which the parties signed. Appellee testified that before this writing was signed he told Mr. Davis, an agent of appellant, that the only thing that he was interested in was “a permanent connection or permanent contract” and Mr. Davis assured him that a “permanent” financing arrangement was the only worthwhile undertaking for the parties to make.

Appellee also testified that after execution of the writing he had this further oral agreement with appellant acting through its Mr. Davis in Travis County:

“A Well, I asked him at that time —of course, the agreement that he and I had worked out, he had told me this, that the signing of the contract was a formality for the home office, but the agreements were actually worked out between he and myself. In other words, that his Company had the utmost confidence in his ability to handle the situation down here, and the agreements — that our working agreement would be worked out strictly between he and I. I asked Mr. Davis at the time if it wouldn’t be well to have an agreement between he — a written agreement between he and myself, and that is when he gave me this information that whatever he told me, the Company would go along with, and that he would give me his word as a gentleman that as far as they were concerned and as far as he was concerned, that this was a permanent working agreement.
⅜ ⅜ ⅜ * ⅜ *
“Q And this subsequent agreement that you testified to, you maintain that was breached after it was made, by Mr. Davis saying that the first thing, that when he made the agreement with you, that it would go for an indefinite period, and then later he came in and just gave you five minutes?
“A That’s right.”

Appellee also testified that it was customary in the automobile business for financial arrangements of the type involved here to “go along for an indefinite period of time,” and that it was “customary” to give ninety days notice if such financing is to be discontinued.

It is our opinion that a general remand of this case is not required in the interests of substantial justice to the parties.

Clearly the statements and understandings of the parties made prior to the writing were merged in it.

The agreement, if such it may be called, made subsequent to the writing to the effect that the financing would be “permanent” and for an “indefinite” period is lacking in that'degree of certainty required for valid, enforceable contracts.

It is accordingly ordered that the judgment of the Trial Court is reversed and this cause is remanded with instructions to sustain appellant’s plea of privilege and to transfer the suit to any civil District Court of Dallas County in accordance with Rule 89, T.R.C.P.

Reversed and remanded with instructions.


author: RENFRO, Justice.

text:
    Evelyn Barber SHIELDS et vir, Appellants, v. TARRANT COUNTY, Texas, Appellee.
    No. 16334.
    Court of Civil Appeals of Texas. Fort Worth.
    May 25, 1962.

      Whiteside & Baker, and John Whiteside, Fort Worth, for appellants.
    Doug Crouch, Dist. Atty., Tarrant County, and Gordon Gray, Asst. Dist. Atty., Fort Worth, for appellee.
   RENFRO, Justice.

On August 8, 1960, Kenneth Shults and' Judy Shults were, along with four half sisters and brothers, adjudged to be dependent and neglected children and their custody awarded to Lynn Ross, Juvenile Probation Officer of Tarrant County.

On April 27, 1961, Mrs. Shields, mother of the Shults children, joined by her husband, filed a petition seeking to vacate the dependency judgment, and prayed for custody of the two above named children. From an adverse judgment she appealed.

The appeal is before us without a statement of facts.

The plaintiffs do not attack the original judgment to the effect that the children were dependent and neglected children, hence, the only question before us is whether the trial court abused its discretion in denying and refusing to grant plaintiffs’ plea for custody.

The court found that at the time the children were decreed to be dependent and neglected plaintiff and her husband had been heavy drinkers of intoxicating beverages, frequented bars leaving the children alone, unattended “and being very neglected”; that as of the time of the custody hearing the Shields were not drinking to “great” excess, and were attending a small church where some members of the congregation had attempted to give them moral assistance. Three of the other children have been allowed to return to the Shields on a temporary trial basis. The court expressly found that it was to the best interest of the two children that their custody not be changed. There was no finding that plaintiffs were fit and proper persons to have custody of the two children involved and no request for such finding.

The two children involved having been declared to be dependent and neglected and made wards of the court, the burden was on the plaintiffs to establish by competent evidence that since the former trial the best interest of the children would be served by awarding custody to them. In Re Belcher, 155 Tex. 560, 289 S.W.2d 915; Broome v. Edna Gladney Home, Tex.Civ.App., 295 S.W.2d 266.

A change of custody should be ordered only when the trial court is convinced that the change is to be a positive improvement for the child. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787.

In a case such as the one before us the judgment of the trial court will not be disturbed on appeal unless the award of custody is so contrary to the great preponderance of the evidence as to show an abuse of discretion. Stanley v. Whitney, Tex.Civ.App., 259 S.W.2d 636; Wooster v. Thompson, Tex.Civ.App., 285 S.W.2d 954.

It does not appear from the findings of fact that an erroneous judgment was entered. The trial court heard the evidence before making the findings on which his judgment is based. We do not have the benefit of this evidence. In the absence of a statement of facts, under the record before us, the court’s findings are conclusive upon the issues determined.

The judgment is affirmed.


text:
    SUPERIOR INSURANCE COMPANY, Appellant, v. John JENKINS, Appellee.
    No. 3701.
    Court of Civil Appeals of Texas. Eastland.
    May 25, 1962.
    Rehearing Denied June 15, 1962.
    Cade & Bowlin, Lubbock, for appellant.
    Karl Cayton, Lamesa, for appellee.
   WALTER, Justice.

This is a suit for a declaratory judgment. The questions to be adjudicated are whether Superior Insurance Company is required to defend John Jenkins in a suit filed against him by Ellis Barnes, and in the event of a recovery, pay the judgment within its policy limits. Superior insured Jenkins under a Standard Texas Family Automobile Policy.

In a non-jury trial the court rendered judgment that Superior was obligated to defend the suit and pay any judgment within the limits of the policy. Superior has appealed contending the court erred in requiring it to defend Jenkins because “intentionally caused injury” is excluded from coverage and m holding the pleadings m Barnes v. Jenkins came within the purview of the policy.

In the first paragraph of Barnes’ petition, he pleaded that Jenkins intentionally committed an assault and battery on him which was a proximate cause of his injuries. In the second paragraph Barnes alleged, in the alternative, nine specific acts of negligence which were alleged to have been a proximate cause of his injuries.

The pertinent portions of Superior’s policy are as follows:

“COVERAGE A BODILY INJURY LIABILITY: COVERAGE B PROPERTY DAMAGE LIABILITY
“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
“A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’, sustained by any person;
“B. Injury to or destruction of property, including loss of use thereof, hereinafter called ‘property damage’; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit as it deems expedient.”
“PART I — LIABILITY
“This policy does not apply under Part I:
“(b) To bodily injury or property damage caused intentionally by or at the direction of the insured.”

Barnes was permitted to plead alternate claims for relief and to allege an intentionally caused injury in one count and injuries caused by negligence in another, regardless of consistency, Rule 48, Texas Rules of Civil Procedure.

The pleading of nine specific acts of negligence of Jenkins in the second paragraph of his petition, although in the alternative, brings Barnes’ alleged cause of action against Jenkins within the terms of the policy. After we eliminate that portion of Barnes’ pleadings, which allege an intentionally caused injury, the balance of the petition, if taken as true, is sufficient to state a cause of action against Jenkins within the terms of the policy. Maryland Casualty Company v. Moritz, Tex.Civ.App., 138 S.W.2d 1095, (Writ Ref.),

We have examined all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    Milton Dee RODGERS, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 7392.
    Court of Civil Appeals of Texas. Texarkana.
    May 29, 1962.
    Rehearing Denied June 19, 1962.

      B. Ray Smith, J. B. Harvill, Leslie Ec-hols, C. V. Flanary, Jr., Paris, for appellant.
    Moore & Lipscomb, Paris, for appellee.
   CHADICK, Chief Justice.

This is a workman’s compensation case. The judgment of the trial court set aside the compensation award made by the Industrial Accident Board and denied the injured workman a recovery from his employer’s compensation insurance carrier.

Counsel for the parties in the trial court made this stipulation:

“It is agreed that the wage rate of the plaintiff, Milton Dee Rodgers, applicable to this cause of action, which is a Workmen’s Compensation insurance suit, was and is $54.00 weekly.”

In answer to special issues the jury found the workman sustained permanent partial incapacity to work as a result of his injury, and that his average weekly wage earning capacity during the existence of such partial incapacity was and would be $60.00 per week. In the trial judge’s charge the term “partial incapacity” was defined for the guidance of the jury in answering relevant special issues. The definition given was this:

“The term ‘PARTIAL INCAPACITY,’ as used herein, means any degree of incapacity to work less than total incapacity; Where an employee, by .reason of an injury sustained in the course of his employment, is only able to perform part of the usual tasks of a workman, but, nevertheless, is able to procure and retain employment reasonably suitable to his physical condition and ability to work, or is only able to perform labor of a less remunerative class than he performed prior to his injury whereby he suffers a depreciation or reduction in his earning capacity.”

The appellant contends that the mentioned stipulation and jury findings considered together are in material conflict and the trial court erred in not ordering a mistrial.

The identical question presented here, in context with substantially similar factual and procedural circumstances, was decided in Indemnity Company of North America v. Craik, Tex., 346 S.W.2d 830. The precedent of the Craik case must be followed and its principle applied by holding that no conflict exists as explained in the Supreme Court’s opinion.

The appellant’s points of error are respectfully overruled, and the judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Clifford FUNKHOUSER, Appellant, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellee.
    No. 14018.
    Court of Civil Appeals of Texas San Antonio.
    May 16, 1962.
    Rehearing Denied June 13, 1962.
    Rudy Rice, Frank R. Southers, San Antonio, for appellant.
    Groce & Hebdon, San Antonio, for ap-pellee.
   PER CURIAM.

Appellant has undertaken to appeal with a partial statement of facts. Ap-pellee filed a motion to strike the statement of facts. Appellant did not file his statement of points as a basis for a partial record, under Rule 377(a), Texas Rules Civil Procedure, until the fifty-sixth day after order overruling motion for new trial, on February 23, 1962. He has never ordered any additional portion of the statement of facts. His designation of points shows that he complains that there is no evidence, and alternatively that the findings are against the great weight of the evidence with regard to eleven findings of the jury. Those findings include all issues of primary negligence, the unavoidable accident issue, the sole cause issue, and damages. He also has a point of complaint that the jury committed misconduct. In other words, he complains of the state of the evidence for the entire case. The record was estimated to embrace about 500 pages, not counting the misconduct hearing. Appellant filed a record containing sixteen pages for the trial and thirty-three pages for the misconduct hearing. For an appellate court to determine whether misconduct is harmful, it must examine the whole case. Rule 327, T.R.C.P., Trousdale v. Texas & New Orleans Railroad Co., 154 Tex. 231, 276 S.W.2d 242. It is apparent that the record is insufficient and that there has been a lack of diligence in ordering the record. Couch v. City of Richardson, Tex.Civ.App., 313 S.W.2d 949; Gee v. Smith, Tex.Civ.App., 294 S.W.2d 415. The motion to strike the statement of facts is granted and the appeal is dismissed.

BARROW, J., not participating.


author: BOYD, Justice.

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. John B. GRIMES, Appellee.
    No. 16320.
    Court of Civil Appeals of Texas. Port Worth.
    May 25, 1962.
    Rehearing Denied June 22, 1962.
    Jones, Parish, Fillmore, Robinson & Lambert, and Elmer H. Parish, Wichita Falls, for appellant.
    Peery & Wilson and James W. Jame-son, Wichita Falls, for appellee.
   BOYD, Justice.

This is a workmen’s compensation case. John B. Grimes recovered judgment for compensation for total and permanent disability against Travelers Insurance Company, the insurance carrier for Grimes’ - employer. The insurance company appeals.

Appellee was injured when a 100-pound sack of soda ash dust, which he had cradled in his arms while unloading it from a truck, split and the dust spilled practically all over his body and inside his overalls, burning his body “practically all over.”

The jury found that appellee was totally and permanently disabled by the accident, and that his disability was hot due solely to a preexisting disease, nor solely to a condition disconnected from his employment.

Appellant challenges the judgment by several points of error. It contends that there was no evidence to warrant the findings as to total and permanent disability; that such findings are contrary to the great weight and preponderance of the evidence; the finding that appellee’s disability was not caused solely by a condition disconnected from his employment is contrary to the undisputed evidence, and is contrary to the great weight and preponderance of the evidence; it was error to render judgment for total and permanent disability because ap-pellee is entitled to recover for a dermatitis only during the acute stage and there is no finding as to how long appellee will suffer from an acute stage of dermatitis; appellee is not entitled to recover from a dermatitis caused by contact with soda ash; and it was error to permit appellee to file a trial amendment on the morning of the trial and refuse appellant’s request for a postponement to give it time to meet new allegations in said pleading.

We consider the last point first. Appellee’s original petition alleged that he received “inflammation to his arms, neck, chest, back, hips, and legs because of contact with dust and other injuries.” The court sustained appellant’s exceptions to these allegations that they were' “vague, indefinite and uncertain” and did not put appellant on notice of what injuries ap-pellee claimed to have received. The amendment alleged that appellee’s face and shoulders were affected by the accident, and followed with some detailed description of the affected parts of his body, and alleged that appellee is unable to get normal sleep, his skin is irritated and burns, and he is compelled to scratch and rub large portions of his body. Appellant’s objection to the amendment was that it “must rely upon the deposition of Doctor Shelmire, and that the defendant has been denied the right to question Doctor Shel-mire about the new allegations.”

The trial began on June 22, 1961. Ap-pellee’s deposition was taken on May 17, 1961. The deposition of Doctor Shelmire, to whom appellant sent appellee, was taken on May 24, 1961. Appellee testified by deposition that he had soreness and inflammation of the shoulders, and other parts of his body, and detailed his afflictions substantially as he later alleged in the trial amendment. Dr. Shelmire testified by deposition that appellee’s face and “almost all portions of his body” had patches of inflammation, and, in a hypothetical question, burning and inflammation of the shoulders were included. The physician was also examined as to whether appellee, was nervous.

In support of its contention that it was. error to allow the filing of the trial amendment, appellant cites Texas Employers’ Ins. Ass’n v. Dillingham, Tex.Civ.App., 262 S. W.2d 748; Lightner v. McCord, Tex.Civ.App., 151 S.W.2d 362, and Jackson v. Blair, Tex.Civ.App., 165 S.W. 522. We think the facts of this case distinguish it from the cases cited, and that we are governed by the 1 rule laid down in Potomac Insurance Company v. Milligan, Tex.Civ.App. 335 S.W.2d 648. This point is overruled'..

We cannot agree with appellant’s contention that appellee cannot recover except for the time his condition is in am acute stage. Appellee’s affliction is not ani occupational disease.. An accidental injury is distinguished from an occupational disease because it can be traced to a definite time, place, and cause. Barron v. Texas Employers’ Ins. Ass’n, Tex.Com.App., 36 S.W.2d 464; Texas Employers’ Insurance Association v. Cowan, Tex.Civ.App., 271 S.W.2d 350.

The contention that the evidence is-insufficient to show that appellee’s total disability will be permanent has given us concern. But we think the contention must be overruled. It is true that a medical witness thought appellee might recover and be relatively free from his present disorder if he did not come into contact with irritants.. He also thought that appellee’s condition resulted more from hereditary than accidental causes. That evidence, it seems to-us, is far from conclusive. The jury, under proper instructions, found that the disability will be permanent. That is a fact issue..

Much of the evidence as to his injuries-came from appellee. Chief Justice Massey of this court, in Trinity Universal Insurance Company v. Scott, Tex.Civ.App., 342 S.W.2d 348, said: “We recognize the importance of the question as to whether evidence received from the lips of the injured workman might he such as would render the jury finding of permanent and total disability contrary to the great weight and preponderance of the evidence, and, if his testimony should he such as apparently inhibited such a finding, the highly difficult analysis of the whole of the evidence in the case in order to determine the proper •answer to the question. However, we find nothing in the testimony received from Scott which purports to establish that his incapacity to work and labor is partial rather than total, or temporary rather than permanent. Therefore we are not laden ■with the burden of such difficult analysis.”

Appellee had worked for this employer for nine years immediately prior to the accident. His job was loading, hauling, and unloading soda ash. He worked twelve months in the year, seven days per week. He was “on duty” twenty-four hours per day, and sometimes worked twenty-four hours per day. He was entitled to a paid vacation every year, but took only two. He worked five or six weeks for other employers after the accident, but had to quit because “it got to hurting so had and itching I couldn’t rest so I just decided I would quit, I couldn’t get no rest.”

Occasionally, during a period of four or five years before the accident, appellee had some “breaking out” on his hands and ankles. He did not on that account lose any time from work. From the time of the accident to the trial he has had burning, itching, inflammation, and “weeping sores” on different parts of his body; he is restless; he has extreme difficulty in resting and sleeping; exercise, heat, and perspiration make his condition perceptibly worse; he cannot use soap; he cannot wear wool clothing; he said he cannot do oil field work; he could not, “day in and day out,” work in the sun if he perspired; he said his condition was not better at the time of the trial, and he could not work five or six days per week “without severe punishment.”

The jury found that appellee’s condition is permanent; the trial court accepted and entered the verdict, and approved it by overruling a motion for new trial; and we do not feel that it is our duty to set it aside.

The judgment is affirmed.


author: POPE, Justice.

text:
    Pedro N. AGUIRRE et ux., Appellants, v. William MUMMA et ux., Appellees.
    No. 13919.
    Court of Civil Appeals of Texas. San Antonio.
    May 23, 1962.
    Rehearing Denied June 13, 1962.

      Schweppe, Schweppe & Allison, Tafolla & Tafolla, Charles A. Ramirez, San Antonio, for appellants.
    M. M. Pena, Jr., San Antonio, for ap-pellees.
   POPE, Justice.

This is a suit for change of custody between parents and non-relatives, and both homes are fit and proper. Pedro Aguirre and Cecilia Aguirre are the natural parents of Estella Aguirre, a five-year-old child. At the time of the hearing, Mr. and Mrs. William Mumma had the custody and the court continued that custody. The judgment stated that the mother had surrendered custody, that Mrs. Mumma had exercised custody since birth, that the child had been well cared for, that the Mummas are fit persons, and that the best interests of the child would be served by leaving her with the Mummas. The parents have had visitation rights and those rights were continued. In our opinion, the child should be restored to her mother and father.

Estella was born August 23, 1955. Five days after her birth, of necessity and upon advice of a priest, the mother gave the child to Pedro, the father. He took her home, and his wife, now Mrs. Mumma, accepted the child. She has been good to Estella and has reared her along with three children born of her marriage with Pedro. Estella remained in the home with Pedro, her natural father, and her foster mothei until November 21, 1958, when Pedro’s wife divorced him. She asked for custody of Estella and the other three children. Pedro did not contest the divorce and the decree awarded all the children to the present Mrs. Mumma.

Pedro married Cecilia, the natural mother of Estella, on November 22, 1958. They then took the necessary steps to correct the birth certificate to show the child’s name as Estella Aguirre. She has always gone by that name. After her marriage to Pedro, Cecilia visited the foster mother and asked that she surrender the custody of Estella to her and Pedro, but she refused. On August 14, 1959, the foster mother married William Mumma. No steps have ever been taken by Mrs. Mum-ma to adopt Estella, and she is not and has never been a dependent or neglected child.

The contest is between two homes, both of which are presently fit and proper. One is that of the child’s parents; the other is a foster home with non-relatives. Unlike Solomon’s case, the foster mother has not consented to the slaughter of the child, but is motivated by the noblest of motives, and is a good woman. The decision is therefore more difficult. Moreover, Mr. Mumma has accepted the child and he too is good to Estella. To make it even more difficult, there is a divorce decree between Pedro and the present Mrs. Mumma which gave her the custody. There is also the trial court’s judgment in this case, reached after the judge saw and heard all persons involved, including Estella, the child.

There is a rebuttable presumption which favors the parents. That presumption was overcome in the divorce decree, so far as Pedro is concerned, but Cecilia was not a party to that action. We are now concerned, in any event, with changed conditions. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787; De Gaish v. Marriott, Tex.Civ.App., 345 S.W.2d 585; Leonard v. Leonard, Tex.Civ.App., 218 S. W.2d 296, 301. Pedro and Cecilia are now married. Pedro has always recognized Estella and her brother, also bom of Cecilia. They are his children. Art. 2581, Vernon’s Tex.Civ.Stats. By correcting the birth records, Estella’s status and name are now settled. Cecilia, the natural mother, did not abandon her baby. She surrendered Estella to the father. See Pettit v. Engelking, Tex.Civ.App., 260 S. W.2d 613, 619. Pedro, we should not forget, also had the custody and care of the child up to the time of his divorce. Estella and her father are not strangers. They lived in the same home for more than three years, and their relationship has always been harmonious. Mr. Mumma is new in Estella’s life. To hold that Estella’s long-established relationship should not be altered is to ignore the fact that by her going to the Aguirre family she is restored to her father with whom she has lived, and by staying with the Mumma family she is in a home with a new father. In either home she will be with a familiar and an unfamiliar adult.

Estella’s situation is an awkward one. She bears her parents’ name but lives in the Mumma home. She visits her parents, who tell her that Cecilia is her mother, and returns to Mrs. Mumma, who tells her that she is the mother. This condition keeps alive the situation which Pedro’s marriage and the Texas law have corrected.

Natural parents may forfeit their right to custody of their own children. Skrobarcek v. Stephenson, Tex.Civ.App., 249 S.W.2d 83. The choice between homes in the Skrobarcek case, however, was between established harmonious relations in a foster home and an unfit parent who had a history of indifference and neglect. That is not our choice in this case. In State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901, the foster parents, as here, were good. As here, to sever the ties between them and the child, was hard. The mother had surrendered her two-year-old child when in necessitous circumstances, and the child had remained with loving foster parents for four years. The court restored the child to the mother. In our opinion, the future best interests of Estella will be served by restoring her to her own mother and father, who are fit and proper persons. Fisher v. Montgomery, Tex.Civ.App., 274 S.W.2d 858.

The judgment is accordingly reversed and .rendered that the parents have Estella’s custody.

BARROW, J., not participating.


text:
    SAGEBIEL'S INC., Appellant, v. Tom SUMRALL, Appellee.
    No. 3720.
    Court of Civil Appeals of Texas. Eastland.
    May 18, 1962.
    Rehearing Denied June 15, 1962.

      Elbert R. Jandt, Seguin, for appellant.
    Burnett & Burnett, Sinton, Luther E. Jones, Jr., Corpus Christi, for appellee.
   GRISSOM, Chief Justice.

Tom Sumrall sued Sagebiel’s Inc., for damages caused by the collapse and sinking of a boat which he had bought from the defendant, which he alleged had defects that caused severe bodily injuries, contusions and bruises, damage to the boat and loss of fishing tackle and equipment. Plaintiff alleged that when he purchased the boat he informed the defendant of the use he intended to make of the boat and defendant represented that it was seaworthy and suitable for such use and that the bottom was made of ^ths inch marine plywood; that the boat was not seaworthy, was not suitable for such use and that its bottom was constructed of less than J^ths inch plywood; that, while so using the boat, it collapsed and sank and he suffered severe bodily injuries, lost his fishing tackle and equipment and the boat was damaged. The defendant, although duly cited, did not appear and judgment was taken by default. ■

At a hearing to determine the amount of damages, counsel informed the court of the cause of action and plaintiff was sworn and testified, in effect, as follows: That he received injuries to his back and head when the boat collapsed and sank; that he was thrown backward over his gear and tackle and hit the motor “right there.” (Indicating.). Although the trial occurred eighteen months after the collision, plaintiff testified that he still had trouble with his back; that he could not do manual labor; that the boat was worth $895.00; that it sank and had to be recovered and rebuilt; that he had to put in nearly all new material and that he restored it to its original .condition; that he lost his gear, tackle and other things that cost about $350.00; that the value of the things lost was $350.00. The court rendered judgment for $5300.00. Sagebiel’s Inc., has appealed by writ of error. It presents two points, namely, that the court erred in assessing damages based on evidence of injuries which were not pleaded and on incompetent evidence. While neither the pleadings nor evidence are as specific and detailed as they might have been if the case had been contested in the trial court, nevertheless, we are forced to the conclusion that it is not shown that the court did either of the things assigned as error, that is, that the court’s assessment of damages was based on evidence of injuries not pleaded or on incompetent testimony.

The petition would not have been subject to a general demurrer under the old practice. Appellant’s default admitted all the facts alleged except the amount of damages, which was shown by competent evidence. In addition to the words used in describing his injuries, the record shows that appellee’s injuries were exhibited to the court. We think the following authorities support the judgment. Texas Rules Civ. Procedure 239, 243 ; 25 Tex.Jur. 406; Southern S. S. Co. v. Schumacher, Tex.Civ.App., 154 S.W.2d 283, (Writ Ref.) and Edwards Feed Mill, Inc. v. Johnson, 158 Tex. 313, 311 S.W.2d 232. The judgment is affirmed.


text:
    Dewitt T. PERRY, Appellant, v. W. M. DONAHO, Appellee.
    No. 3711.
    Court of Civil Appeals of Texas. Eastland.
    May 18, 1962.
    Clemens, Knight, Weiss & Spencer, San Antonio, for appellant.
    Oliver & Oliver, San Antonio, for appel-lee.
   GRISSOM, Chief Justice.

Dewitt T. Perry, a resident of Bexar County, was sued by W. M. Donaho in Wilson County for damages for libel. Perry’s plea of privilege was overruled and he has appealed.

Donaho alleged that he was the manager of an association of milk producers and that Perry, who had resigned from the association because of disagreement with policies of its management, wrote letters to-members of the association in which he represented that Donaho had stolen and embezzled funds of the association. Perry wrote a series of ten letters to said members. The principal purpose stated in said' letters was to cause the members to elect a new board of directors that would stop-the practices which he criticized. The first letter discussed the loss from making cheese- and bringing in additional producers. The second dealt with the high overhead and loss from operation of a plant and stores. The third discussed the interest rate and' the debt incurred by purchase of a plant. The fourth showed the annual decline in-the price of milk. The fifth letter contained the first direct reference to Donaho. Perry-asserted therein that the management was costly. He called on the association to advise its members of the amount of said manager’s salary, mileage allowance and expense account and the length of time he had' been hired. The sixth noted eleven business practices which Perry designated as the “costly facts” which compelled him to resign. It urged the members to sign a. petition and attend a meeting to vote on the removal of the board of directors. The seventh letter was in answer to another’s-letter and contained charges that business blunders and poor management had caused a loss to the members. The eighth was a reply to the president of the association. He asked whether the president had told them in his letter the amount of the salaries, expense accounts and travelling allowances of the manager and other employees. The ninth letter urged the members to attend a special meeting to vote for directors who would get rid of Donaho and others and referred to them as “termite bureaucrats.” The tenth letter discussed the high overhead and criticized the amount paid for salaries and expenses.

The burden was upon Donaho to allege and prove, as one of the venue facts, that he had been libeled. Exception 29, Article 1995, Vernon’s Ann.Civ.St.; Renfro Drug Company v. Lawson, Tex.Civ.App., 144 S.W.2d 417, 418. He alleged Perry’s letters represented to members of said association that Donaho, as manager of the association, had embezzled and stolen its funds. The letters did not contain statements that Donaho had embezzled or stolen funds of the association. They, in fact, negatived such a charge, in that, they criticized the directors for authorizing and permitting Donaho to have the large salary, expense account, and the like, of which he complained.

The letters are not libelous. There was no extrinsic evidence. There is no reasonable basis in the letters to support the innuendo allegations that such writings had the effect to accuse Donaho of theft and embezzlement of the association’s funds. Since it is evident that Donaho failed to prove that he had been libeled, an essential venue fact, the court erred in overruling Perry’s plea of privilege.

The judgment is reversed. Since the case appears to have been fully developed and that the evidence available does not prove libel, the cause is ordered transferred to a District Court in Bexar County.


author: WILSON, Justice.

text:
    Alvin HAYES, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 4001.
    Court of Civil Appeals of Texas. Waco.
    May 10, 1962.
    Rehearing Denied May 31, 1962.

      Donald V. Yarborough, Yarborough, Yarborough & Johnson, Dallas, for appellant.
    Thompson, Knight, Wright & Simmons, Timothy E. Kelley, Dallas, for appellee.
   WILSON, Justice.

Judgment for insurer was rendered on its motion in this workmen’s compensation case, notwithstanding jury findings that appellant was an employee of Gulf Oil Corporation, as he alleged; and notwithstanding a further finding that Gulf conducted a partnership in the operation of a filling station. We affirm.

Gulf leased a service station and equipment to B. J. McCullough. The written lease agreement provided lessee should pay utility charges, license fees, taxes and other charges; should keep the premises in good repair and in clean, safe and sanitary condition; and that lessor might declare the lease terminated upon lessee’s default in performance of its covenants. It recited that none of its provisions should be construed as reserving to lessor any right to direct or exercise any control over the manner of conducting the service station business or operations on the leased premises; and that lessee should have entire control and direction thereof. Lessee agreed to pay a rental of 1.35⅜⅛ per gallon on motor fuel sold, with a fixed monthly minimum and maximum.

Appellant was hired by McCullough (who operated the station with a partner, LaCour) as a porter. His duties were to change and repair tires, clean the premises (including restrooms), pump gas, and remove trash. McCullough paid his wages. He was injured when he slipped on grease while changing a tire.

The evidence shows no restriction by Gulf as to the price at which McCullough sold products; or, except as to gasoline, as to his selling products of any other producer or manufacturer. A Gulf sign was displayed on the building, which was painted “Gulf colors.” Gulf paid no utility or other charges; and neither employed, paid, controlled hours or type of duties of McCullough or the station employees. It gave no instruction as to when the station would open or close, furnished no uniforms, paid no overhead expense, paid no social security tax, withheld no wages for income tax, bore no loss, and received no profit from the station’s operations. Gulf furnished its road maps for customers. McCullough could sell for cash or credit. If he honored a valid Gulf Credit card, Gulf paid him; if he accepted one which was invalid, resulting in non-payment, he bore the loss. Gulf furnished stationery for credit charges at no cost to the lessee. Appellant wore a uniform bearing Gulf insignia.

Appellant testified either McCullough, or his partner LaCour, were always at the station and told him what to do. He further testified that Gulf’s retail sales representative visited the station weekly to inspect it, and “one day when he came there he said, ‘get that grease off the wall, make the place look slick.’ He wanted it to look real clean.” He told appellant to keep the restrooms clean, “because it was very important.” Appellant was coming out of the restroom and met the representative. Water from the basin had overflowed, “and he asked me was I going to get the mop and get that up, and I said I would, and he said it would be nice, and he would like for me to get it up.” The sales representative testified it was against Gulf’s policy to have dirty rest-rooms or grease on the driveways, and it was his duty under employment by Gulf to see about, and correct those conditions; that he made suggestions at McCullough’s, and about 30 ■other such stations; that dirty conditions be corrected; that one of the purposes of his visits was to assist the dealers; that he reported anything wrong with restrooms to the person in charge of the station, and expected him to do something about it. The lessee was required to make a weekly report on gasoline sales, and Gulf kept records as to gasoline levels in station tanks, made regular deliveries and kept the tanks filled at certain levels.

We have attempted to summarize all favorable circumstances we have found, and all those pointed to by appellant. We see nothing significant in the record, considered most favorably to appellant, to distinguish this case from Texas Co. v. Wheat, 140 Tex. 468, 168 SW.2d 632, where substantially all the controlling facts are practically the same. The test there announced is whether Gulf “had the right to control” lessee “in the details of the work to be performed in the operation of the service station.” There, as here, the lease required lessee to keep the premises in a clean and sanitary condition, lessor retaining the right to terminate for failure. “It is true that the company demanded that certain standards as to cleanliness be maintained in the operation of the station, and that by reason of the option to cancel” it was “within the company’s power to enforce obedience to its commands. But the company, as lessor, was interested in maintaining the good reputation of the station, ■and it had a right, as a condition precedent to the leasing of the station,” Chief Justice Alexander there said, “to demand maintenance of such standards. It could enforce compliance with the contract in the maintenance of these standards with•out creating the relation of master and servant so long as it did not undertake to direct the details by which the results were to be accomplished”; and “the fact that the company demanded that the station, including the rest room, be kept clean did not create the relationship of master and servant.”

As in the Wheat case, the contract on its face created the relation of landlord and tenant, and the evidence does not indicate it was a sham or subterfuge to conceal a different relationship. There is here no evidence showing Gulf had the right to control McCullough “in the details of the work to be performed in the operation of the service station.” Appellant relies, among other cases, on Humble Oil & Refining Co. v. Martin, 148 Tex. 175, 222 S.W.2d 995, 998. The Supreme Court there completely distinguishes it from Wheat and from this case.

Appellant says the court erred in disregarding the finding McCullough and Gulf were partners. It contends that because it filed a trial amendment alleging they were partners, which averment ap-pellee did not deny under oath as required by Rule 93(f), Texas Rules of Civil Procedure, the allegation was admitted. Aside from the questions as to whether notice and claim were against such an alleged partnership as employer, or whether ap-pellee was alleged to be its carrier, the Rule, by its terms, is confined to denial of partnership “as to any party to the suit.” Neither Gulf nor McCullough was a party to the suit.

We have considered all of appellant’s points, and they are overruled. Affirmed.


author: MAUGHMER, Commissioner.

text:
    Mark BURNS, Plaintiff, Appellant, v. Overton T. HARRIS, Howard Blattner, Ovid H. Bell, Maynard De Neui, John V. Bosch, Richard C. White, individually and as Directors comprising the Board of Education of the Fulton School District No. 58, of the City of Fulton, Caliaway County, Missouri, W. Victor Hill, Superintendent of Schools, and Dorsey D. Schaper, Principal, Fulton School District No. 58, City of Fulton, Callaway County, Missouri, Defendants, Respondents.
    No. 23490.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.
    Bear & Hines, Columbia, for appellant.
    Cave & Lauer, Fulton, for respondents.
   MAUGHMER, Commissioner.

This case involves a petition for injunction against officials of a school.

Plaintiff, Mark Bums, on May 16, 1960, entered into a written contract with the Fulton School District No. 58, County of Callaway in the State of Missouri, to teach in the “public school of said district for the term of 1960-61, commencing on the 15th. day of August, 1960, for the sum of $4800.00 per year, to be paid monthly, and that for services rendered and reports correctly made according to law, said Board agrees to issue warrants upon the district treasurer in favor of the said Mark Burns for the amount of wages due under this agreement”. While the contract is silent as to just what duties plaintiff was to perform or what subjects he was to teach, it is conceded that plaintiff duly entered upon his duties as head football and track coach, teacher of physical education and general business. He also upon occasion “kept study hall”. The Fulton school district employed numerous teachers and had a designated superintendent and a principal.

Plaintiff, Mark Burns, with two other teachers, on March 30, 1961, submitted to the board a signed letter which reads: “We herewith tender our resignations, effective upon the fulfillment of our present contracts”. Thereafter Mr. Burns admittedly made uncomplimentary public statements about the athletic program and the disciplinary problems existing in the Fulton public schools. The record does not reveal exactly what was said but these critical comments were intentionally disseminated publicly.

The school board officially took note of these criticisms as made by plaintiff and by other employees, at its board meeting April 3, 1961. As a result of a recited investigation, the board resolved that “Mr. Burns be officially reprimanded * * * for breach of professional ethics by making certain public statements and pronouncements having the effect of bringing discredit upon the public school system and that he be relieved of all duties in the public school system”. The action taken was communicated to Mr. Burns by letter dated April 4, 1961, and signed by the board’s president. This letter contained the following concluding paragraph: “As you are still on the payroll of the Fulton Public Schools your actions will continue to be the concern of the Board of Education. All replies or questions are to be directed to the Board of Education, through the administration, in writing”.

On April 4, 1961, Mr. Dorsey D. Schaper, principal, accompanied by a substitute teacher, Mrs. Black, entered the classroom where plaintiff was conducting a class. Mr. Schaper directed plaintiff to leave his grade book with Mrs. Black and accompany him to the principal’s office. This was done. When they arrived there Mr. W. Victor Hill, Superintendent, was present. The plaintiff was personally handed the board’s letter and directed by Mr. Hill to “gather his personal effects, turn in his keys and leave the building, as soon as possible”. Mr. Burns complied with these directions of the superintendent and never thereafter appeared upon the school property.

On this same date, April 4, plaintiff sent the following letter to the school board:

“As I have been relieved of all duties in the Fulton School System, and upon the advice of my attorney, Mr. John Yea-man of Platte City, Missouri, I hereby request payment in full of the remaining salary due me under provisions of my contract with you. In that you terminated this contract the monthly payment provision no longer applies.

“As there was great haste in your action toward me I feel you will handle this matter expeditely.

“Sincerely,

Mark Burns”.

On April 5, 1961, plaintiff addressed a second letter to the board in which he requested a “public hearing on the subject of my dismissal from the Fulton High School”. The hoard held no public hearing hut promptly voted to and did pay to plaintiff in April the balance due him under his contract for the 1960-61 school year.

There were no further developments during the remaining 25 days of April and until May 12, 1961, one or two weeks before the school term ended, when plaintiff filed in the Circuit Court of Callaway County his petition for injunction. The individual members of the school board, the superintendent and principal were named defendants. Therein plaintiff prayed that defendants be restrained from interfering with plaintiff in the discharge of his duties as a school teacher, restrained from dismissing him or relieving him of his duties for the remainder of the 1960-61 school term.

The trial court, after hearing the testimony, denied the plea for mandatory injunction and plaintiff has appealed. This being a suit in equity before the court, it will be reviewed de novo on appeal. Picadura v. Humphrey et al., Mo., 335 S.W.2d 6, 12. However, the granting of an injunction is not necessarily a matter of right, but rests in the sound discretion of the court.

While the issue raised is at this time moot since the school term ended in May, 1961, we shall not decide the appeal on that point. The question was not moot when presented below. For that reason and because the matter of costs is involved, we shall review on the merits. State ex rel. Brokaw v. Board of Education, Mo.App., 171 S.W.2d 75, 84, 85.

Good judgment would seem to require that all organizations from the army to the public schools have management— rules and regulations. Generally, the control of the business of the school district rests with the school board, while the detailed supervision of actual teaching in a multi-teacher system is directed by the superintendent and principal, the executive officers. Section 163.010, V.A.M.S. in part provides: “The board of directors or board of education shall have power to make all needful rules and regulations for the organization, grading and government in their school district * * * ”, In Magenheim v. Board of Education et al., Mo.App., 347 S.W.2d 409, it was held that by this section the legislature has delegated to the school boards the power to exercise judgment and discretion in matters affecting school management, including the employment of teachers, and the court may not interfere unless the board exercises its power in an unreasonable, arbitrary, capricious or unlawful manner.

However, our legislature in Missouri, has provided that school boards may not dismiss a teacher. Section 163.100 declares in part: “ * * * The board shall have no power to dismiss a teacher; but should the teacher’s certificate he revoked, said contract is thereby annulled. The faithful execution of the rules and regulations furnished by the board shall be considered as part of said contract; provided, said rules and regulations are furnished to the teacher by the board when the contract is made. Should the teacher fail or refuse to comply with the terms of the contract or to execute the rules and regulations of the board, the board may refuse to pay said teacher — after due notice, in writing, is given by order of the board — until compliance therewith is rendered. * * * ” In Lemasters v. Willman et al., Mo.App., 281 S.W.2d 580, this statute was interpreted to mean the board of education has no express or implied authority to dismiss a teacher for any cause.

Both parties on this appeal agree that the school district has no authority to dismiss a teacher. Plaintiff contends that he was dismissed. Defendants say plaintiff was “relieved of his duties”, but was not dismissed since all of the salary due for the remaining two months was paid to him in advance and pursuant to his demand. Defendants further say that even though the fact that plaintiff was relieved of his duties might, standing alone, be construed to amount to a dismissal, nevertheless, the action of the plaintiff in doing nothing about it for almost six weeks and until the school term was about oyer except to ask the school board to anticipate and pay him the amount of his wages for the whole term, amounted to an abandonment of the contract. In 17 C.J.S. Contracts § 412, page 899, we find this statement: “Rights acquired under a contract may be abandoned or relinquished by agreement, conduct, or by a contract clearly indicating such purpose. To constitute an abandonment of rights, an actual intent to abandon must exist. * * * ”

In Frazier v. School District, 24 Mo.App. 250, the district attempted illegally to dismiss a country school teacher. The teacher, nevertheless, opened school, taught a few hours, then dismissed the students, locked the building, turned in his key and drew his pay to date, all without protest or offer to resume teaching. Later he sued for the balance of the year’s salary. The case was tried by the court with a finding for the district. On appeal the appellate court ruled that such conduct constituted a voluntary abandonment of the contract.

In Parker v. School District of Valley Park, Mo.App., 325 S.W.2d 59, plaintiff, a music teacher, was employed to teach music during the 1956-57 year. He taught until the Christmas holidays when he was told by the superintendent that his services would not be needed thereafter. Plaintiff protested and said he would be back to teach. The superintendent told him there would be no classes for him to teach and told him to turn in his keys. Plaintiff complied, but during the holidays saw a lawyer and returned to the school in January. He was provided with no classes and no students. He continued his attendance for several days and was ordered by the superintendent and by the board president to leave the premises. He did so and then sued for the balance of the year’s salary. On appeal it was held that these facts presented a jury question as to whether or not there had been an abandonment of his teacher’s contract.

What are the facts and what is the evidence on the question of abandonment in our case? First of all plaintiff submitted his resignation effective upon termination of his 1960-61 contract, which expired the latter part of May, 1961. He then made public statements critical of the school’s-athletic program and disciplinary controls. On April 4, he received an official reprimand from the board of education, was relieved of his actual teaching duties and requested to leave the school premises. He immediately complied, made no protest at the time and did not thereafter present himself on the school premises for the purpose of teaching. That very evening, in writing, and after consultation with his-attorney, he asked the school board to anticipate and pay at once the two months* salary that would normally have been due him in two monthly installments, one payable the last of April and one payable the last of May. These advance payments would not have been due unless the contract had been terminated or abandoned. His request for these advance payments is at least an indication that he regarded the contract as ended. This request for advance payments of salary evinced an intention on his part to abandon. His demand' for such payment and his acceptance thereof were acts which might be construed as-abandonment. The school board complied1 with his request. Plaintiff received the money, accepted the situation and did nothing further about it for more than five-weeks and until May 12, when he filed the-present petition for injunction.

The trial court did not state the theory or basis on which it denied the injunction. If, however, it was properly-denied on any basis under this evidence, we should affirm, unless the trial court’s action was arbitrary, capricious or unlawful. We believe that this record contains substantial evidence which would justify a finding that the plaintiff abandoned the contract. We believe the action of the court was neither arbitrary nor capricious. The court did not abuse its discretion.

The action and judgment of the trial court denying the injunction prayed for is affirmed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the court.

All concur.


author: BROADDUS, Judge.

text:
    Warren R. DURRETT, Appellant, v. Lillian SMITH, Respondent, Ralph W. Rice, Jr., d/b/a Rice Realty Company, Garnishee.
    No. 23556.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.
    Richard K. Andrews, Henry G. Eager, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, for appellant.
    Charlotte P. Thayer, Carl D. Gum, Jr., Grandview, for respondent.
   BROADDUS, Judge.

This is an appeal from the order of the Circuit Court of Jackson County, Missouri, sustaining the respondent’s motion to quash garnishment issued upon an execution.

On May 23, 1960, appellant, Warren R. Durrett, filed his petition in the 2nd District Magistrate Court in Kansas City, wherein he alleged that he was president and stockholder of the K & D Builders, Inc., a Missouri Corporation; that on and before July 12, 1957, said K & D Builders, Inc., was the owner of certain property located at 3623 West 76th Street, Johnson County, Kansas; that K & D Builders employed respondent as its agent for the purpose of selling said property; that said property, through the efforts of respondent, was sold to one Osborn L. Brown, on or about July 12, 1957, for $19,500.

That respondent represented to K & D Builders and appellant that she would pay on behalf of K & D Builders the sum of $90 to the Kansas City Title Insurance Company for the furnishing of an abstract of title for said property; and also that she would pay on behalf of K & D Builders the sum of $345.92 to the Treasurer of Johnson County, Kansas, for taxes on said property for the year 1956; that respondent did not pay said sums and appellant personally paid the sum of $345.92 to the Treasurer of Johnson County, Kansas, and K & D Builders paid the sum of $90 to the Title Company.

That appellant, acting personally and for K & D Builders demanded payment of said sums and respondent admitted that she owed the same; that on October 7, 1957, respondent made and delivered to appellant her written promissory note in the sum of $353.54 and on November 5, 1957, she also delivered to appellant another written promissory note in the sum of $92.40. Said notes provided for interest at the rate of 8% from date until paid, and in the event of suit, for a reasonable attorney’s fee.

On June 13, 1960, a default judgment was entered in the Magistrate Court for appellant in the sum of $638.10. Respondent thereafter filed a voluntary petition in bankruptcy, and on July 19, 1960, an affidavit of bankruptcy' was filed for her in the Magistrate Court.

On July 12, 1961, appellant filed a transcript of his judgment in the Circuit Court and caused a writ of garnishment to be served upon respondent’s present employer, Ralph W. Rice, Jr., who does business as Rice Realty Company. Respondent filed her motion to quash the garnishment. The ground set forth in the motion was that respondent was adjudicated a bankrupt on July 18, 1960, and that the indebtedness of respondent to appellant was duly listed in said bankruptcy proceeding.

The motion to quash came on for hearing on July 21, 1961, and at that time the Circuit Court ruled that the motion would be decided upon written suggestions and that no evidence would be taken on the hearing. On July 27, 1961, the lower court sustained the motion to quash without having heard evidence from either party. Appellant timely filed his motion for a new trial and the same being overruled, this appeal followed.

Appellant’s first contention is that the court erred in sustaining respondent’s motion to quash because, as a matter of law, respondent’s indebtedness was excepted from discharge in bankruptcy under Section 17, sub. a (4) of the Bankruptcy Act, 11 U.S. C.A. § 35, subd. a (4). That Section reads as follows:

“A discharge in bankruptcy shall release a bankrupt from all of his provable debts * * * except such as * * * (4) were created by his fraud, embezzlement, misappropriation or defalcation while acting as an officer or in any fiduciary capacity”.

Appellant argues that because he alleged in his petition filed in the Magistrate Court the circumstances out of which the indebtedness arose that the Magistrate Court judgment conclusively established that respondent’s indebtedness was created by the fraud, embezzlement, misappropriation or defalcation of respondent while she was acting in a fiduciary capacity holding the appellant’s money upon an express trust as appellant’s real estate agent.

Along with his petition in the Magistrate Court appellant filed copies of the notes purporting to have been executed by respondent. Section 517.050, V.A.M.S., which deals with magistrate courts, provides that when a suit is “founded upon any instrument of writing purporting to have been executed by the defendant, and the debt or damages claimed may be ascertained by such instrument, the same, or a verified copy thereof, shall be filed with the clerk of the magistrate court, and no other statement or pleading shall be required.”

In ruling on the motion to quash the court below could not treat as true the allegations contained in appellant’s petition filed in the Magistrate Court. The suit in that court was based upon two notes. In dealing with an earlier statute containing the same language as the one here involved the court in the case of Rhea v. Buckley Custom Shirt Mfg. Co., 81 Mo. 400, 406, said:

“It was the note (represented by the copy), that furnished the foundation of the suit and not the petition: the latter was not necessary and was unauthorised by the section of the statute, supra, and should be ignored”. To the same effect are the cases of Conn. Co. v. Orr, et al., 150 Mo.App. 705, 708, 131 S.W. 765, 767; Coscarella v. Metropolitan Insurance Co., 175 Mo.App. 130, 140, 157 S.W. 873, 876. We rule the contention against appellant.

Under his next point appellant says “if the facts alleged in appellant’s Magistrate Court statement of claim are not res judi-cata (which we hold they are not) then the trial court erred in not affording appellant an opportunity to demonstrate upon hearing that this indebtedness arose out of circumstances which excepted the indebtedness from discharge under Section 17(a) (4) of the Bankruptcy Act.” (In our opinion, the point is well taken.)

The well reasoned authorities amply support the position that a judgment creditor can show, by evidence outside the record of the court in which he secured the judgment, that the circumstances out of which the original indebtedness arose rendered the judgment nondischargeable. Thus, the court stated in Fidelity & Casualty Co. of New York v. Golombosky, 133 Conn. 317, 50 A.2d 817, 170 A.L.R. 361, 364-365:

“The decisions which have held that in determining the nature of the indebtedness a court cannot go behind the judgment and record seem generally to have overlooked two principles which the cases place beyond dispute: Where an action is brought upon a note, and a discharge in bankruptcy is set up as a defense, proof is admissible to show that the underlying debt was created by fraud or one of the other excepted causes, * * * and the rendition of a judgment upon an obligation does not change the character of the indebtedness. * * * In the light of these accepted principles, there would seem to be no escape from the conclusion that the rendition of a judgment based upon a note does not preclude proof by evidence extraneous to the record, in reply to a defense of discharge in bankruptcy, that the underlying debt was created by fraud, embezzlement, misappropriation or defalcation within the exception we are considering”.

To similar effect is Fireman’s Fund Indemnity Co. v. Caruso, 252 Minn. 435, 90 N.W.2d 302.

In the fairly recent case of Thomas v. Crosby (W.D.Mo.) 146 F.Supp. 296, 299, the late Judge Smith said: “No longer is it open to question that the obtaining of a judgment does not alter the non-discharge-ability of a claim. The reduction of a claim to judgment will not preclude inquiry into the original nature of the obligation behind the judgment”.

The judgment is reversed and the cause remanded.

All concur.