author: YOUNG, Justice.

text:
    W. W. CANNON, Appellant, v. Reese WINGARD et al., Appellees.
    No. 15952.
    Court of Civil Appeals of Texas. Dallas.
    March 16, 1962.
    Rehearing Denied April 13, 1962.
    Townsend & Townsend, Dallas, for appellant.
    Leslie Jackson, Shank, Irwin & Apeland, Dallas, for appellees.
   YOUNG, Justice.

The suit in trial court was to cancel an alleged “mineral lease,” evidenced by three instruments, to-wit, a regular oil and gas lease, primary term 10 years, and two mineral deeds, contemporaneously executed on April 22, 1947 as part of the same transaction, between the same parties, and for removal of cloud from title; also to cancel two subsequently executed mineral deeds from Mrs. Wilkerson to the Johnstons, conveying an interest in the minerals involved in the earlier dated transaction. W. W. Cannon, appellant, had intervened, having purchased the land from original plaintiffs, Mrs. Myrtle Weaver Lowe and her sister Miss Lula Weaver, and adopted their pleading. The defendants are Reese Wingard, of Eugene, Oregon, Mr. & Mrs. A. L. Wilkerson and W. N. Jones of Forest, Mississippi, and two others cited by publication. The land involved is approximately 300 acres in form of a square situated in Young County, Texas.

In December 1960 defendants filed joint motion for summary judgment, basing same on the three instruments above mentioned, dated April 22, 1947, the stipulations of fact: deposition of Lula Weaver and pleadings of the parties. Intervenor Cannon likewise filed motion for summary judgment on the same instruments, stipulations, deposition and pleading; and additionally the deed from Lula Weaver to W. W. Cannon and deeds to the two Johnstons, cited by publication; both parties (intervenor and defendants) alleging the existence of no genuine issues of fact. The trial court upon hearing entered a judgment granting defendants’ motion and denying appellant’s motion, holding that the oil and gas lease had expired in accordance with its terms but that the two mineral deeds were valid and subsisting; decreeing that intervenor, Cannon, take nothing by his suit, followed by this appeal.

Material hereto are paragraphs three through seven of the stipulations of fact, to-wit:

“HI.

“As means of shortening the record of this case, it is agreed that prior to and on April 22, 1947, Mrs. Myrtle W. Lowe, a widow, and Lula S. Weaver, a feme sole, owned in fee simple absolute, in equal shares, T. E. & L. Survey No. 200, Abstract No. 447, Young County, Texas, subject to oil and gas lease dated April 26, 1944, covering the North one-half of T. E. & L. Co. Survey No. 200, Abstract No. 447, which lease is recorded in Volume 206, Page 122, of the Deed Records of Young County, Texas, and which lease on April 22, 1947, was owned by Warren Oil Company, assignee of the original leasee named in said lease.

“IV.

“That on April 22, 1947, Mrs. Myrtle Weaver Lowe, a widow, and Lula S. Weaver, a feme sole, made, executed and delivered to Reese Wingard, W. N. Jones and Mrs. A. L. Wilkerson (some of the Defendants herein) the following conveyances of record, as part of the same transaction, in the Deed Records of Young County, Texas, to wit: (a) Oil, Gas and Mineral Lease covering the South Half of T. E. & L. Survey No. 200, Abstract No. 447, Young County, Texas, recorded in Volume 220, Page 410; (b) Mineral Deed conveying one-half interest in and to all of the oil, gas and other minerals in and under and that may be produced from the West Half of said T. E. & L. Survey No. 200, Abstract No. 447, Young County, Texas, recorded in Volume 222, page 67. (c) Mineral Deed conveying one-fourth interest in and to all of the oil, gas and other minerals in and under and that may be produced from the East Half of said T. E. & L. Survey No. 200, Abstract No. 447, Young County, Texas, recorded in Volume 222, page 68.

“V.

“That the said Mrs. Myrtle Weaver Lowe formerly worked for the Security National Bank in Dallas and later became a speech writer for third parties, and was on April 22, 1947, 67 years of age; that Mrs. Myrtle Weaver , Lowe died testate since the filing of this suit, devising all of her interests, if' any, in said T. E. & L. Survey No. 200 to. her sister, the plaintiff, Lula S. Weaver;, that the estate of the said Mrs. Myrtle Wea--ver Lowe, deceased, has been administered and closed. That plaintiff, Lula S. Weaver, was 65 years of age on April 22, 1947.

“VI.

“That the lease referred to in IV (a) above is on a printed form and all typewritten insertions therein contained were made by lessor, Mrs. Myrtle Weaver Lowe. That the following language was typed on said lease form by the said Mrs. Myrtle Weaver Lowe prior to its execution and delivery by the lessors therein named to the lessees therein named, to wit: ‘The above named Reese Wingard and W. N. Jones and Mrs. A. L. Wilkerson agree to begin to drill an oil well on the tract of land described above within thirty days from this date to bring to completion within 90 days. Unless this above agreement is carried fully as above described this lease becomes null and void or the transaction becomes null and void.’

“VII.

“That the defendants Reese Wingard, W. N. Jones and Mrs. A. L. Wilkerson did within thirty days of April 22, 1947, in good faith and at their own expense, begin to drill a well for oil on the land described in the aforesaid lease, recorded in Volume 220, page 410, of the Deed Records of Young County, Texas, and prosecuted the drilling thereof in a good and workmanlike manner to a depth between 1066 feet and 1200 feet below the surface, which was the then known depth for the production of oil in the general area of the lands covered by said lease; that said well was completed as a dry hole within ninety days of April 22, 1947, and has neither produced oil, gas or other minerals; that said lessees named in said lease have not drilled any additional wells on the lands covered by said lease, and have never paid any delay rentals as provided in Paragraph 5 of said lease; that said lease has expired in accordance with its terms.”

Although not included in above stipulations, it is not disputed that these two mineral deeds contained a clause subjecting the grant to outstanding oil, gas and mineral leases and that each provides: (see appel-lees’ brief) “ ‘In the event that the above lease for any reason becomes canceled or forfeited, then and in that event, grantee shall own’ in the case of one of the deeds, one-half, and in the case of the other deed, one-fourth, ‘of all oil, gas and other minerals in and under said lands, together with a like (one-half and one-fourth, respectively) interest in all bonuses paid, and all royalties and rentals provided for in said oil, gas and mineral leases covering the above described lands.’ ”

Initially, it is to be noted that the instruments in question (Oil and Gas Lease and Two Mineral Deeds) were executed “as part of the same transaction” and typed into the lease instrument by Miss Lula Weaver was the requirement on part of lessor to “drill an oil well” within 90 days, in default of which the lease becomes “null and void or the transaction become null and void”. Unquestionably, the rule regarding the construction of contemporaneous instruments comes into play; appellant quoting from 14 Tex.Jur. § 147, p. 926, “They are then to be construed together, even though the result be to modify one of the instruments which, standing alone, would have a different construction. Thus a deed absolute in form, substance and effect has been held to be wholly conditional, the condition being expressed in a contemporaneous instrument.” Appellant in his several points contends that the three instruments executed as part of the same transaction show on their face to be made pursuant to a single purpose, namely, “mineral development”, the parties considering them as no more than an oil and gas lease. He argues in this connection that “The language ‘the transaction becomes null and void’ shows as clearly as any language could that it was the intention of the parties to treat the three instruments as one rather than separately, and by them create only a defeasible fee in the minerals, for the word ‘transaction’ comprehends and includes the, three instruments and treats them as one; and in the same phrase delimits the title conveyed to a defeasible fee.” Undoubtedly however, the parties by the single transaction have created two separate and distinct estates — an oil and gas lease covering the South Half of the tract, on its face defeasible, and two mineral deeds covering other interest in the East one-half and West one-half, on their face indefeasible. And it cannot be said that under the language of the lease alone “the parties considered that the transaction was no more than an oil and gas lease.” Hence, we regard as untenable the contention of appellant that the clause in the two mineral deeds which set forth how the minerals are to be owned upon expiration of the lease on another portion of the land should be wholly ignored. That separate instruments conveying separate estates in minerals are not to be construed so as to create a single estate is made plain in the statement of the rule in 12 Am.Jur. Contracts, § 246, p. 783, wherein it is said: “Interpreting contemporaneous instruments together means simply that if there are any provisions in one instrument limiting, explaining, or otherwise affecting the provisions of another, they will be given effect as between the parties themselves and all persons charged with notice so that the intent of the parties may be carried out and the whole agreement actually made may be effectuated. This does not mean that the provisions of one instrument are imported bodily into another, contrary to the intent of the parties. They may be intended to be separate instruments and to provide for entirely different things. * * * Where contracts are put into several instruments, each of which has a sensible meaning and may have a full operation by itself, it would be a hazardous assumption to put them together for the purpose of making them mean, as one, differently from what they could in this separate state. Certainly, the court cannot do such violence to the intentions of the parties and the language in which they are expressed as to consolidate separate instruments where the effect of doing so would be to avoid an essential part of, the contract.” (Emphasis ours.) And in Clement v. Scott, Tex.Civ.App., 60 S.W.2d 258, writ ref. the general principle is stated: “ * * * one provision in a contract should not be taken alone and a presumption raised upon it at variance with the other provisions of the contract. Fink v. Brown (Tex.Comm.App.) 215 S.W. 846. Especially so of a reference clause where such presumption would be in conflict with the expressed intention of the parties stated in the contract on the same subject-matter. That construction invalidating the contract will not be favored when its terms are as fairly susceptible of evidencing a legal purpose. 10 Tex.Jur. § 181.”

On the other hand as appellees aptly state, had the original plaintiffs intended only to execute and deliver an oil and gas lease it would not have been necessary to execute the two additional instruments. They say: “The three instruments as written cannot be construed as constituting only a single oil and gas lease. Such a contention does violence to the intention of the parties as reflected in the three written instruments, which, under the Stipulation, the original Plaintiffs ‘made, executed and delivered’ to some of the Appellees. * * The clause in both mineral deeds, which recites ‘in the event the above described lease for any reason becomes canceled or forfeited, then in that event, grantee shall own’ one-half and one-fourth interest in the minerals in and under the West Half and East Half of said Survey No. 200, respectively, has been passed on many times by our courts; and on each occasion the clause has been held to convey minerals beyond the termination of the existing lease. Richardson v. Hart [143 Tex. 392], 185 S.W.2d 563 (1945) Sup.Ct.; Delta Drilling Co. v. Simmons, 338 S.W.2d 143 (1960) Sup.Ct.; Garrett v. Dils Co. [157 Tex. 92], 299 S.W.2d 904 (1957) Sup.Ct.”

Moreover, appellant seeks no relief because of fraud, accident or mistake as evidenced by stipulation of the parties and deposition of Miss Weaver; it being stipulated that the original plaintiffs “made, executed and delivered” to some of the appellees “the following conveyances of record * * * In the same connection Lula Weaver having testified: “Q Did you consider that lease to be a binding contract as written? A Yes. Q And the terms of the lease to be binding upon you and your sister Myrtle? A Yes.” Concerning the mineral deed, Miss Weaver testified: “Q Then, the deed itself would reflect all of the terms and conditions of the deed, wouldn't it? A Yes, sir.” (Emphasis ours.)

Appellant further contends that the lease obligation “to drill an oil well on the track” was intended by the parties as an oil well producing oil, the consideration for the entire project having failed when completed only as “dry hole.” Along with above requirements to “drill an oil well” it was stipulated that “within 30 days of April 22, 1947, in good faith and at their own expense begin to drill a well for oil * * * and prosecuted the drilling thereof in a good and workmanship mariner to a depth between 1066 feet and 1200 feet below the surface, which was the then known depth for the production of oil in the general area of the lands covered by said lease; that said well was completed as a dry hole within 90 days of April 22, 1947, and has neither produced oil, gas nor other Minerals * * *

Here it is to be observed that the wording of the lease, written by one of the original plaintiffs, does not provide for lessees to bring in the well to completion as a producing oil well, but only for lessees to complete the drilling of a well within the prescribed time. Nor does the obligation to complete the well within 90 days constitute an obligation to complete it as a producing well. For as stated in Summers on Gas and Oil, § 687 (Perm.Ed.1938): “Compensation for drilling an oil or gas well may be made contingent upon the discovery of oil or gas in paying quantities, but a contract will not be so construed in absence of a clear expression or implication of such intent by the contract.” See also Totah Drilling Company v. Abraham, 64 N.Mex. 380, 328 P.2d 1083. In Pagenkopf v. Phelps, Tex.Civ.App., 253 S.W. 619, a comparatively early case, the Amarillo court permitted a recovery of the balance alleged to be due on a contract to drill an oil well. By the contract plaintiff had agreed “to drill a well for oil”; the court holding there was no warranty as to production and said: “It is contended, also, that the defendants were entitled to a peremptory instruction on the ground that the contract bound plaintiff to bring in a producing well and that having failed to do this they cannot recover on the contract. The courts in construing contracts for the drilling of wells, are not disposed to imply warranties as to production or the quantity and quality thereof. The presence, the quantity, and quality of the substance sought to be obtained by the drilling is a matter not within the driller’s power to control, and unless the contract, by express terms or clear implication, makes payment of his compensation dependent upon securing production, the’ driller will be held to be entitled to his pay when he has drilled the well to the depth required by the contract; * * *.” Similarly, in effect were the holdings in Britton v. Cotton States Petroleum Co. (writ ref.) Tex.Civ.App., 283 S.W. 887; Hennessey v. Brewer, Tex.Civ.App., 282 S.W. 617 and Frost v. Martin, Tex.Civ.App., 203 S.W. 72. Other American Jurisdictions have made like rulings involving oil development. See Brown v. Homestake Exploration Corporation, 98 Mont. 305, 39 P.2d 168; Esso Standard Oil Co. v. Nesbitt, 222 La. 661, 63 So.2d 417; Kies v. Williams, 190 Ky. 596, 228 S.W. 40; Berryman v. Sinclair Prairie Oil Co., 10 Cir., 164 F.2d 734.

In a further point, appellant contends it to be undisputed that appellees paid no valuable consideration for the three instruments in question. It is not disputed that lessees obligated themselves to drill an oil well which they did — the lease and mineral deeds having been executed and delivered for this, a valuable consideration. And it is well settled that there is no need for a consideration concerning a duly executed and delivered conveyance. Burgess v. Hatton (writ ref.) Tex.Civ.App., 209 S.W.2d 999; Rogers v. Rogers (Com.App.), 15 S.W.2d 1037.

All points on appeal upon consideration are overruled, and judgment of the trial court is affirmed.

      . In contrast to above stipulations, tlie suit of original plaintiffs and intervenor bad been based on fraud and misrepresentation; alleging also with respect to the two mineral deeds, that they (original plaintiffs) were elderly women and unlearned in technical terms of the oil business; that they were led to believe that these instruments were royalty deeds to minerals under the lease aforesaid, the true facts being well known to lessees who furnished the forms for conveyances and dictated the terms thereof.


source: Caselaw Access Project

author: McDONALD; Chief Justice.

license: Public Domain

text:
    AMERICAN CASUALTY & LIFE INSURANCE COMPANY, Appellant, v. R. W. PARISH, Appellee.
    No. 3948.
    Court of Civil Appeals of Texas. Waco,
    March 1, 1962.

      John Maxfield, Dallas, for appellant.
    Musslewhite & Musslewhite, Lufkin, for appellee.
   McDONALD; Chief Justice.

This is a suit by plaintiff Parish against defendant insurance company to recover as beneficiary $2000. allegedly owed under an alleged insurance policy (no policy having ever been delivered) upon the life of plaintiff’s deceased wife. Defendant insurance company defended on the ground that no policy of life insurance had been applied for or issued on the life of plaintiff’s wife. Trial was to a jury which, in answer to issues, found:

“1) Plaintiff made written application for a $2000. life insurance policy on his wife to defendant insurance company, through O. D. McLeroy on 1 June 1958.
“2) In such application plaintiff requested that he be beneficiary in the policy.
“3) On 1 June 1958 plaintiff paid McLeroy a quarterly premium on such policy.
r'4) On 1 June 1958 McLeroy deposited the application with the amount of the quarterly premium due defendant insurance company on said policy ' in the' U. S. mail, addressed to defendant insurance company with sufficient stamps to carry same.
“5) McLeroy was authorized by defendant insurance company to accept said application and payment of premium, and to transmit same to the company.
“6) In or near June 1958, defendant insurance company received the application, and the company’s portion of the quarterly premium paid by plaintiff to McLeroy.
“7) Defendant insurance company retained until after the death of plaintiff’s wife the quarterly premium remitted to it by McLeroy.
“8) Defendant insurance company failed to notify plaintiff prior to his-wife’s death that it would not issue the life insurance policy on his wife.
“9) Prior to the death of plaintiff’s-wife, defendant insurance company issued its policy in the amount of $2,000. on the life of plaintiff’s wife, in which plaintiff was named beneficiary.
“10) The policy of life insurance on the life of plaintiff’s wife, as applied for by plaintiff was forwarded by defendant insurance company to O. D. McLeroy for delivery to plaintiff.
“11) On 1 June 1958 McLeroy represented to plaintiff that he, McLeroy, would include in 2 post-dated checks which plaintiff had theretofore signed in blank and delivered to McLeroy, the balance of the amount of the first annual premium due on the life insurance policy on plaintiff’s wife.
“12) McLeroy had authority from defendant insurance company to include the balance of said annual premium in said post-dated checks.
“13) Defendant insurance company conducted its business in such a man- ■ ner that plaintiff, as a prudent man, would reasonably suppose McLeroy to-have authority to include the balance of the first year’s premium on the life policy in the two post-dated checks theretofore signed in blank by plaintiff.
“14) Plaintiff relied on the representations of McLeroy that the balance of the annual premium on the life policy on his wife would be included in the two post-dated checks which plaintiff had theretofore signed and delivered to McLeroy.
“15) The two post-dated checks, signed and delivered by plaintiff to McLeroy, as finally cashed by defendant insurance company, were in a sufficient amount to equal or exceed- the balance of the first year’s premium due on the life insurance policy on his wife, as applied for by plaintiff.”

The Trial Court entered judgment on the verdict for plaintiff for $2000. (plus $600. attorneys’ fees). Motion for New Trial was overruled after granting remit-titur of $65. (representing a second annual premium on the policy).

Defendant appeals, contending:

“1) The Trial Court should not have allowed plaintiff to file Trial Amendment pleading new matters after both parties had rested and closed and over objection of defendant.
“2) The Trial Court should not have granted the remittitur offered by plaintiff, such remittitur not being sufficient to correct the error of the court in rendering an erroneous and excessive judgment.
“3) The Trial Court should have submitted an issue inquiring if plaintiff ‘failed to act in a reasonable time in notifying defendant insurance company that he had not received the policy.’
“4) Plaintiff’s counsel was guilty of asking improper, inflammatory and prejudicial questions to defendant’s soliciting agent.
“5) The verdict is not supported by the evidence and/or is contrary to the evidence.”

We revert to defendant’s 1st contention that the Trial Court erred in allowing plaintiff to file trial amendment pleading new matters after both parties had rested and closed, over objection of defendant.

The Trial Amendment complained of, alleged that McLeroy had promised to include the balance of the first year’s insurance premium in the amounts of post-dated checks which plaintiff had theretofore signed in blank and given him for hospitalization insurance. The record affirmatively reflects that such Trial Amendment was filed at 11:30 A. M., October 19, 1960, prior to the time that plaintiff rested, and prior to the time defendant put on his case. Defendant did not make a motion for continuance or delay based on the Trial Amendment, or assert that it was in manner surprised or prejudiced thereby. The Trial Amendment alleged no matters which had not been testified to. Moreover, defendant took no bill of exception to plaintiff’s filing the Trial Amendment, and the record fails to disclose that defendant ever objected to its filing. Certainly defendant showed no surprise or prejudice.

The matter of permitting a trial-amendment is in the sound discretion of the Trial Court, and his order will not be disturbed, absent a clear abuse of his discretion. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605; Rule 66, Texas Rules of Civil Procedure. A trial court does not abuse its discretion in permitting the filing of a trial amendment where the opposite party does not ask for a postponement upon its filing. Henslee v. First Nat. Bank, CCA (n. w. h.) 314 S.W.2d 881; Lone Star Steel Co. v. Owens, CCA (n. r. e.) 302 S.W.2d 213. The contention is overruled.

Defendant’s 2nd contention complains of the action of the Trial Court in permitting plaintiff to file a remittitur of $65.00. The record reflected that the pre-* mium on the policy on plaintiff’s wife was paid for 1 year; that plaintiff’s wife died during the 30 day grace period following the first year. Under all the evidence, the annual premium was less than $65.00. The plaintiff filed remittitur of $65.00 to pay the 2nd annual premium on the policy. The policy was in force during the grace period, and defendant was entitled to some premium for the time subsequent to the first year. Plaintiff tendered more than necessary, but defendant cannot complain of this. The contention is overruled.

Defendant’s 3rd contention is that it was entitled to the submission of an issue as to whether plaintiff failed to act in a reasonable time in notifying the defendant insurance company that he had not received the policy. Defendant’s point amounts to a contention that plaintiff’s claim is barred by “laches”. Defendant did not allege any “change in conditions or circumstances” which would give rise to an estoppel.

Laches is not mere delay in bringing an action, but such delay working disadvantage to another, and operates as an estoppel against the party knowing his rights, and who takes no steps to enforce them until the condition of the other party has become so changed that he cannot be restored to. his former state. Pearson v. American Fidelity & Casualty Co., CCA, 321 S.W.2d 620; Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167.

There was no delay here beyond the statutory limitation period, and defendant has not plead or proven any element which might give rise to an estoppel. There was no error in the Trial Court’s refusal to submit the requested issue. The contention is overruled.

Defendant’s 4th contention is that plaintiff’s counsel asked defendant’s soliciting agent, O. D. McLeroy “if he didn’t know the company had a very poor rating.” The defendant made a motion for a mistrial, which the Trial Court overruled, but instructed the jury that they should not consider the question for any purpose whatsoever. There is no showing that the question in any manner prejudiced defendant: no showing that any juror was influenced by the question; no examination of jurors on motion for new trial. We think the error harmless under Rule 434 TRCP. The contention is overruled.

Defendant’s final contention is that the verdict is supported by no evidence, or insufficient evidence. The record reflects that plaintiff told agent McLeroy that he wanted a $2000 life insurance policy on his wife; that McLeroy took the application for same and that plaintiff paid McLeroy the premiums for the 1st year. There is evidence that McLeroy sent the application to the company, although the company denies having received it. Plaintiff never received the policy. We think that finding 9), that the company issued the policy; and finding 10) that such policy was forwarded to agent McLeroy for delivery to plaintiff are against the great weight and preponderance of the evidence.

The application is a mere offer to-make a contract of insurance, and must be accepted before a binding contract of insurance is made. American Life Ins. Co. v. Nabors, 124 Tex. 221, 76 S.W.2d 497; Smith v. Rio Grande Nat. Life Ins. Co., CCA, Er. Ref., 227 S.W.2d 579; Snow v. Gibraltar Life Ins. Co., CCA, n. r. e., 326 S.W.2d 501. There was no showing of an acceptance of plaintiff’s application. Moreover, the terms of the application itself are not in evidence. If such application be in the form and provisions of other applications from plaintiff to defendant company (for other insurance appearing in the record), then such application provides that there be no liability until delivery of the policy to the assured. This would be a part of the contract and is a valid provision. Smith v. Rio Grande Nat. Life Ins. Co., supra; South Western Life Ins. Co. v. Evans, CCA, Er. Ref., 262 S.W.2d 512.

The judgment of the Trial Court is reversed and remanded.


author: MURRAY, Chief Justice.

text:
    CITY OF PORT LAVACA, Texas, Appellant, v. King FISHER et ux., Appellees.
    No. 13888.
    Court of Civil Appeals of Texas. San Antonio.
    March 28, 1962.
    Keith L. Merrick, Port Lavaca, for appellant.
    Guittard & Henderson, Harry F. Maddin, Victoria, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by the City of Port Lavaca, a home rule municipality, against King Fisher and his wife, Mary Jewell Fisher, seeking to enjoin an alleged encroachment by the defendants’ garage upon an alleged alleyway. The trial was to a jury and resulted in findings by the jury in favor of the City. However, upon motion and notice, the trial court rendered judgment non obstante veredicto in favor of the defendants, and the City has appealed.

The jury found in answer to Special Issue No. 1, that Willett Wilson and W. B. George, or at least one of them, owned the land which they subdivided as the George and Wilson Addition. Appellees filed a motion for judgment non obstante veredic-to, and to disregard the above finding as it was unsupported by the evidence. The trial court granted this motion and rendered judgment non obstante veredicto for appel-lees. The question of title in the subdivid-ers was an all-important fact to be established by appellant, because a subdivision of land whereby streets and alleys are dedicated to the public, to be effective, must be made by the owner or owners of the land. Chenowth Bros. v. Magnolia Petroleum Co., Tex.Civ.App., 129 S.W.2d 446. In Gladewater Lumber & Supply Co. v. City of Gladewater, Tex.Civ.App., 87 S.W.2d 527, 529 the Court said:

“It seems to be a well-established rule of law that where a party’s rights depend upon a dedication of property, it is necessary to prove, not only a dedication, but the proof must go further and show that the dedicators had title to the property at the time it was dedicated; * *

Appellant assumed the burden of showing that a twelve-foot alley had been dedicated by its owners through the middle of Block 3, leading from Wilson Street to Mahon Street, of the George and Wilson Addition to Port Lavaca, Texas. The purported subdivision was made by Willett Wilson and W. B. George on June 18, 1902, but the record fails to show that these men or either one of them owned the land covered by the subdivision at the time they subdivided it and dedicated to the public the streets and alleys shown on the subdivision map.

Appellant introduced its exhibits Nos. 1, 2, 3 and 6, in an attempt to show that the dedicators owned the land at the time of the dedication. Appellant did not show a complete chain of title, either from the sovereignty of the soil or from a common source. Appellant begins the title to the alley with its exhibit No. 6, consisting of probate proceedings in the Estate of Thomas McConnell, pending in Victoria County Court, wherein the commissioners, in 1847, were attempting to partition certain lands in Calhoun County. The discrepancy in the counties is left unexplained. Appellant does not show that McConnell acquired the title to the lands, and there is no order showing that the report of the commissioners was ever approved by the probate court. The purported division of the land was to Mrs. Anna George, Virginia Ann McConnell, and Eliza Augusta McConnell. The next instrument is a warranty deed from Augusta E. Randall to one Wm. B. George, which purports to convey all of the grant- or’s unsold interest in the Maximo Sanchez half league situated in Calhoun County, Texas. This deed further describes the land conveyed as being “the unsold part of the land and lots” awarded to grantor in the partition of the estate of her father, Thomas McConnell, and known in the partition of said estate, as “subdivision number (4) four containing (50) fifty acres of land more or less; and subdivision (No. 2) number two containing fourteen acres more or less. Also, all my right title and interest in and to subdivision (No. 3) number three, awarded to my Mother, Mrs. Anna George in the partition of the estate of my Father Thomas McConnell.”

Appellant has not attempted to show any title in Willett Wilson, so the question is, Has appellant shown title in W. B. George, the other dedicator?

There is no conveyance from Maximo Sanchez, the alleged patentee, to Thomas McConnell or any one else. There is no showing of the disposition of the interest attempted to be set aside to Virginia McConnell and Mrs. Anna George. There is no conveyance by these ladies either to Augusta E. Randall or W. B. George. In other words, there is no regular chain of title shown to W. B. George at the time he signed the dedication, and no title at all shown in Willett Wilson.

The subdivision map does not show what lands are being subdivided. Appellant undertook to overcome this defect by placing Charles Hodges, the County Surveyor, on the witness stand and asking him whether he knew that the George and Wilson Addition was included in any part of the lands conveyed to W. B. George, according to appellant’s exhibit No. 1, by Augusta E. Randall in 1899. The trial court sustained an objection to this question. The record shows that the answer of the witness would have been: “You ask the question, ‘Do I know something.’ Well, it is the best of my knowledge and belief this deed covers the land that is now on the record as George and Wilson Addition.” The court did not err in excluding this question and answer. A surveyor is not such an expert that he can testify, that to the best of his knowledge and belief a tract of land described in one instrument is the same land described in another instrument, without stating the facts and reasons upon which he bases such belief. City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712; Southern Pine Lumber Co. v. Whiteman, Tex.Civ.App., 104 S.W.2d 635. Even if the testimony had been admitted, it would not have supplied the missing links in the title appellant was trying to establish.

Before the City would be entitled to a mandatory injunction requiring appellees to remove their garage from the alleged twelve-foot alley, the City would be required to show either that it had title to the alley, or that the alley had been dedica-ed to public use by one having title, and that the City had dominion over the alley by reason of its location within the limits of the City.

Appellees affirmatively plead that the dedicators of the alley involved did not have title to it, and the City has not discharged the burden, thus placed upon it, of proving its title or control over the alley. City of Mission v. Popplewell, supra; Chenowth Bros. v. Magnolia Petroleum Co., supra; Gladewater Lumber & Supply Co. v. City of Gladewater, supra. Appellant’s cause of action must rest, not on the weakness of appellees’ claim to the alley in question but on its superior right to the alley.

Appellant, City, failed to prove a superior right to the alley in question, by failing to show title in the dedicators at the time of the dedication, either from a common source or from the sovereignty of the soil, and therefore the trial court did not err in rendering judgment non obstante vere-dicto in favor of appellee. In McCarver v. City of Corpus Christi, 155 Tex. 153, 284 S.W.2d 142, the Supreme Court said:

“In this suit to remove obstruction the City as plaintiff had the burden of establishing as a fact the legal existence of the alley at the time of filing suit. This it has failed to do and therefore must fail in its suit.”

Appellant contends that appellees were estopped to deny the existence of the alley in question because they purchased their lots described only as Lots 1 and 2 of Block 3 of the George and Wilson Addition to the City of Port Lavaca. There is no showing here that the original dedicators ever sold any lots by reference to this subdivison map. Appellees’ grantor, Gus Herder, is a stranger to the dedication. Reference is made to a recorded map of the George and Wilson Addition to the Town of Port Lavaca, but no book and page reference is made to it. There is no showing that there was no other such map on record. We cannot presume the reference made was to the same map introduced in evidence. That deed cannot give to appellant title or superior right to the alley in question. Appellees are not estopped to dispute the superior right of appellant to the alley in question. Estoppel was neither plead nor proved. Hutchinson v. Texas Aluminum Co., Tex.Civ.App., 330 S.W.2d 895. The question here is not whether the City accepted the dedication of the alley, but rather whether a valid dedication had ever been made by the owners of the land.

The trial court did not err in rendering judgment without a formal hearing. Rule 301, Texas Rules of Civil Procedure, does not require a hearing. Appellees’ motion for judgment non obstante veredicto was filed on November 8, 1960, and appellant had knowledge for some six months of this motion, before the judgment was rendered on April 26, 1961. The judgment was properly rendered, and if under the facts there were irregularities with reference to the giving of notice, they would constitute harmless error under the provisions of Rule 434, T.R.C.P.; XV Texas Law Review 515 et seq.; Hooper v. Courtney, Tex.Civ.App., 256 S.W.2d 462; Greathouse v. Texas Public Utilities Co., Tex. Civ.App., 217 S.W.2d 190; Johnson v. Woodmen of the World Life Ins. Soc., Tex. Civ.App., 203 S.W.2d 331.

Appellant further complains because it was not given a hearing on its motion for judgment on the verdict. The Texas Rules of Civil Procedure do not require such a hearing, and there was no error committed by the trial court in this respect.

The judgment is affirmed.


author: WERLEIN, Justice.

text:
    J. M. GAMMAGE, Appellant, v. Abe WEINBERG, Appellee.
    No. 13894.
    Court of Civil Appeals of Texas. Houston.
    Feb. 15, 1962.
    Rehearing Denied March 15, 1962.
    Second Motion for Rehearing Denied April 5, 1962.

      Joe D. Jarrard, Jr., Pasadena, for appellant.
    C. B. Stanley, Houston, for appellee.
   WERLEIN, Justice.

This is an appeal by J. M. Gammage from a judgment in favor of Abe Weinberg, in the sum of $11,110.00 as indemnity representing part of the amount paid by him on a final judgment recovered against both parties in solido in a suit brought by one Allstock in the United States District Court, Western District of Louisiana, for damages resulting from personal injuries sustained in a collision in the State of Louisiana.

It is appellant’s contention that the findings of fact by the trial court in the instant case are repugnant to the issues of fact upon which the Louisiana judgment was based, and that the court erred in concluding (1) that appellee was not liable to the Louisiana tort claimant since the Louisiana judgment is against both appellant and ap-pellee in solido, and (2) that the Louisiana judgment is not res judicata as to appellee’s claim and does not estop appellee from claiming indemnity.

Appellee pleaded in substance that the plaintiff in the Louisiana case recovered a judgment for $18,900.00, said judgment being against American Employer’s Insurance Company, Huey P. Tyler, J. M. Gam-mage and Abe Weinberg, in solido, in the sum of $5,000.00; against Huey P. Tyler, J. M. Gammage and Abe Weinberg in soli-do in the sum of $2780.00; and against Abe Weinberg and J. M. Gammage in solido in the sum of $11,120.00. He also alleged that “Said final judgment of the Court was based upon the finding by the jury that said Huey P. Tyler [the truck driver], at the time of said collision, was acting as the servant and employee in the course of such employment for the said J. M. Gammage and the said Abe Weinberg.”

Appellee further pleaded that the judgment in the Louisiana case resulted from the acts of negligence of Tyler who was acting in the course and scope of his employment for Gammage and was not acting as the agent, servant or employee of Weinberg; that as a favor and accommodation to appellant, appellee had permitted appellant to transfer to appellee the record title to the truck-tractor, but in fact appellant was the owner and operator thereof, and appellee had no interest whatever therein; that $5,000.00 on the judgment had been paid by American Employer’s Insurance Company, and that appellee in order to obtain a release from such judgment had paid $12,500.00, and appellant had paid $1,000.00 to obtain a release; that appellee was required to pay attorney’s fees and costs in the Louisiana suit in the sum of $5,000.00; and that appellee was entitled to indemnity in the amounts paid by him, and, in the alternative, to contribution.

The trial court found that Tyler was the employee of appellant and not of appellee, and was not engaged in any mission or duties in behalf of appellee; that appellant was the owner of the truck and trailer although the certificate of title and registration indicated appellee was the owner thereof; that prior to the collision appellee had executed to appellant powers of attorney authorizing appellant to sign appellee’s name to all title papers necessary to transfer said truck and trailer to appellant; that appellant had the pipe transported on said truck weighed on public scales and directed that the weight ticket indicate that the pipe was consigned or sold to appellee, but ap-pellee had not authorized such action and had no knowledge thereof and had no interest in or ownership of the pipe being transported; that no cross-action or counter-claim or prayer for affirmative relief as between appellant and appellee was filed by any of the defendants in the Louisiana case, either for contribution or indemnity; that appellee paid $12,500.00 for a release of the judgment as against him, and that appellant paid plaintiff $1,000.00 to obtain his release; that as between appellant and appellee, appellee was not in any manner liable to Allstock or responsible for any negligence resulting in said collision.

The court concluded that liability adjudged against appellant and appellee in solido was the sole liability of appellant and that appellee was entitled to recovery in the sum of $11,110.00 indemnity, representing $12,500.00 paid by appellee, less one-half of the amount of $2,780.00 adjudged against appellant, appellee and Tyler in solido; that appellee was not entitled to recover any attorney’s fees, although the court had found that appellee had paid his attorneys $6500.00 and such amount was reasonable and necessary in connection with the trial in Louisiana; that as between appellant and appellee there had been no adjudication of their rights and liabilities inter se made in the cause against them in the United States District Court of Louisiana, and that such judgment as between appellant and appellee was not res judicata as to the present cause of action and that ap-pellee was not estopped by such Louisiana judgment to bring this suit and recover indemnity.

The question as to whether appel-lee is entitled to indemnity under the pleadings and the court’s findings in the instant case must be determined under the law of the State of Louisiana since the right to contribution or indemnity is a substantive right governed by the law of the state where the collision and injury occur, and the right, if any, to contribution or indemnity arises as an incident to the tortious transaction and the relation thus brought about between the parties. Charnock v. Taylor, 1943, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126; Linkenhoger v. Owens, 5th Cir.1950, 181 F.2d 97; 11 A.L.R.2d 236. The substantive law of Louisiana was applied by Texas courts in Grandstaff v. Mercer, Tex.Civ.App., 214 S.W.2d 133, writ ref., n. r. e.; and in Jones v. Louisiana Western Ry. Co., Tex.Com.App.1922, 243 S.W. 976, in causes of action for personal injuries and death but not involving indemnity or contribution.

In his brief appellant concedes that a claim for contribution would not be barred' by the Louisiana judgment. He also concedes that a claim for indemnity would not be barred if it were on some accepted basis such as a breach of duty by appellant to ap-pellee causing the injury, or if the parties were not in pari delicto, or if the action had been brought by appellee as principal against appellant as an agent whose negligence caused the injury. He strenuously contends, however, that since the Louisiana judgment is against both appellant and ap-pellee in solido, as employers of Tyler, it establishes that they are equally liable and neither is entitled to indemnity.

The pleadings and judgment in the Louisiana case are not included in the transcript and no statement of facts has been filed in this Court. The law is well settled that in the absence of a statement of facts, every presumption must he indulged in favor of the trial court’s findings and judgment. Commercial Credit Corporation v. Smith, 1945, 143 Tex. 612, 187 S.W.2d 363, and authorities cited.

We are of the opinion that appellee is entitled to recover indemnity from appellant, if, assuming the facts to he as found by the trial court as hereinabove recited, he would be entitled to indemnity under the laws of Louisiana, provided the judgment in the United States District Court of Louisiana is not res judicata as to‘ appel-lee’s claim and does not estop him from asserting it. The decisions of the courts in Louisiana indicate that indemnity may he recovered by a tort-feasor in certain cases under the laws of Louisiana, as for example when a tort-feasor has not been negligent or at fault and his liability is merely technical or constructive, whereas the liability of his codefendant in solido is based upon his wrongful or negligent acts or omissions. It has been held that when a non-negligent party has been made liable in solido with another for the negligent acts of the other because of some legal or contractual relationship with such other party, he may force the one primarily at fault to reimburse him for damages paid to a third person on account of the fault or negligence of the other. American Employers’ Ins. Co. v. Gulf States Utilities Co., La.App.1941, 4 So.2d 628, and authorities cited; Sutton v. Champagne, 1917, 141 La. 469, 75 So. 209; Appalachian Corporation v. Brooklyn Cooperage Co., 1922, 151 La. 41, 91 So. 539; Succession of Caldwell, 1853, 8 La.Ann. 42; Fitzgerald v. Ferguson, 1856, 11 La.Ann. 396; South Arkansas Lumber Co. v. Tremont Lumber Co., 146 La. 61, 83 So. 378; 42 C.J.S. Indemnity § 20, p. 597, Indemnity, § 21; 27 Amer.Jur., p. 465, § 16.

The right to recover indemnity is also recognized in Texas where one tort-feasor breaches a duty which he owes to another. Wheeler v. Glazer, 1941, 137 Tex. 341, 153 S.W.2d 449, 140 A.L.R. 1301; Austin Road Co. v. Pope, 1949, 147 Tex. 430, 216 S.W. 563; Humble Oil & Refining Co. v. Martin, 1949, 148 Tex. 175, 222 S.W.2d 995; Panhandle Gravel Co. v. Wilson, Tex.Civ.App., 248 S.W.2d 779, writ ref., n. r. e.; 42 C.J.S. Indemnity § 20, p. 594.

Appellee pleaded that the Louisiana judgment was based upon the finding by the jury in the tort action that Tyler at the time of collision was acting as the servant and employee in the course of his employment for both appellant and appellee. We must accept this statement as a judicial admission by appellee. The trial court in the instant case found that Tyler was not the employee of appellee and was not acting for or in behalf of appellee, but the court did not find that the Louisiana judgment was not based upon the finding by the jury in the tort action that Tyler was the employee of appellee and was acting for him within the course of his employment. Hence we are confronted with the question as to whether the Louisiana judgment, to which full faith and credit must be given, is res judicata of appellee’s claim against appellant for indemnity.

The weight of authority in the United States and the decisions of the Louisiana courts are to the effect that the Louisiana judgment is not res judicata as to appellee’s claim for indemnity and that appellee is not estopped to assert such claim, since appel-lee’s claim to indemnity and in the alternative to contribution, was not raised by the pleadings in the Louisiana case nor determined by the court in such case. In American Employers’ Ins. Co. v. Gulf States Utilities Co., supra, it was argued that the question of whose fault or negligence caused the injuries was foreclosed by the judgment in the prior personal injury suit which was against both parties in solido. The court held to the contrary, stating: “Indeed, as between the Dalton Company and the Utilities Company, the issue was not raised and the question was not adjudicated as to the respective rights of these two companies between themselves.” To similar effect see Appalachian Corporation v. Brooklyn Cooperage Co., supra; Smith Bros. & Co. v. New Orleans & N. E. R. Co., 1903, 109 La. 782, 33 So. 769.

The general rule of law well established in the State of Louisiana is that there is no right of contribution between joint tort-feasors unless and until they have been condemned in a judgment in solido and then only in favor of the joint tort-feasor who has paid the damages awarded. Kahn v. Urania Lumber Company, 1958, La.App., 103 So.2d 476, and authorities cited; Perot v. U. S. Casualty Co., La.App., 98 So.2d 584. The decisions in both the Perot and Kahn cases were rendered after the 1954 statutory Procedural Act (Act No. 433 of 1954) was enacted in Louisiana providing for third party practice. In the Perot case, the court held: “There is no absolute requirement that the right to contribution as between joint tort feasors must be determined in the original action.” Indeed, the Louisiana decisions indicate that the right to contribution or indemnity may not be determined in the original action.

In Rogers v. Hartford Accident & Indemnity Co., 1950, D.C., 94 F.Supp. 499, the plaintiff sued two defendants and their insurers in tort. One of the defendants filed a cross-action against its co-defendant for indemnity, which was dismissed on motion, the court stating:

“On the other hand, as to the cross-complaint by General Gas and Hartford against Sunray and Pacific for judgment over, the court is of the opinion that, under the jurisprudence of Louisiana which controls, no such cause of action exists or will arise unless and until there is a solidary judgment against all the defendants sued by complainant in favor of the latter. In that event, whichever pays would have a right of action against others for recovery of such amounts as the circumstances required. See Quatray v. Wicker, 178 La. 289, 151 So. 208; Reid v. Monticello, 215 La. 444, 40 So.2d 814; and Linkenhoger v. Owens, 5 Cir., 181 F.2d 97.”

In Buhler v. Villec, La.App.1960, 117 So.2d 286, a pedestrian recovered judgment in solido against a truck driver and an automobile driver for personal injuries received in a collision between the two vehicles. In a later action the automobile driver sued the truck driver and recovered damages to his automobile, the trial court holding the defendant’s plea of res judicata without merit, and that the automobile driver was not guilty of contributory negligence. In affirming the judgment, the appellate court cited Article 2286 of the LSA-Civil Code, as follows:

“The authority of the thing adjudged-takes place only with respect to what was the object of the judgment. The thing demanded must be the same ; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

The law of Louisiana with respect to res judicata and estoppel is substantially the same as the law in Texas and in many other jurisdictions. The effect of a prior judgment against two defendants upon a later action between them, is the subject of annotations in 101 A.L.R., pp. 104-105; 142 A.L.R., p. 728, and 152 A.L.R., p. 1066. The rule supported by the great weight of authority is that a judgment against two or more defendants is not res judicata or conclusive of the rights and liabilities of the defendants inter se in a subsequent action between them, unless those rights and liabilities were expressly put in issue in the first action, by cross-complaint or other adversary pleadings and determined by the judgment in the first action.

The rule with respect to estoppel by judgment is clearly stated in 50 C.J.S. Judgments § 819, p. 372, as follows:

“The estoppel, however, is raised only between those who were adverse parties in the former suit, and the judgment therein ordinarily settles nothing as to the relative rights or liabilities of the coplaintiffs or codefend-ants inter sese, unless their hostile or conflicting claims were actually-brought in issue, litigated, and determined, as by being put in issue by cross petition or separate and adverse answers, * *

The rule as established in Texas is stated in 26 Tex.Jur., p. 232 et seq., Judgments, § 460, as follows:

“In other words, a judgment for or against two or more joint parties does not ordinarily determine their respective rights as between themselves, and they may neither rely upon it in regard thereto nor assail it, in any subsequent litigation between them, unless they filed cross-pleadings putting such rights in issue and the judgment adjudicated them * * *. ‘As between the several defendants thereon, a joint judgment establishes nothing but their joint liability to the plaintiff. Which of the defendants should pay the entire judgment, or what proportion each should pay, in case each is partly liable, is still unadjudicated.’ And it seems that this principle applies even though judgment goes in favor of one of the defendants. Thus it has been held that a judgment in favor of a plaintiff as to one defendant, but against him as to another is not res judicata of the rights of the defendants in a subsequent suit between them.”

The early case of Gulf, C. & S. F. Ry. Co. v. Galveston, H. & S. A. Ry. Co., 83 Tex. 509, 18 S.W. 956, is much in point. In that case one Dorsey, while in the joint employment of both railroads, was injured while engaged in coupling cars. He recovered a joint judgment against both companies and each company paid one-half thereof. Later the Gulf, C. & S. F. Ry. Co. sued Galveston, H. & S. A. Ry. Co. to recover as indemnity the amount paid to satisfy the judgment against both companies. The court said:

"Appellant’s right to contribution or indemnity is not questioned in this case, upon proof of the facts entitling it thereto. But the judgment in the Dorsey Case against appellant and ap-pellee, showing a joint liability, and the payment of it by them in equal proportions is not sufficient alone to authorize a recovery of indemnity. It is true that judgment, although arising out of a tort, does not destroy the right to indemnity. Bailey v. Bussing, 28 Conn. 457. But it does not dispense with proof of all the other facts, on which alone this right rests, namely, that ap-pellee alone was guilty of the negligence causing the injuries to the party who recovered the original judgment.”

In further support of the general rule stated in Texas Jurisprudence, see Still v. Lombardi, 1894, 8 Tex.Civ.App. 315, 27 S.W. 845, writ ref.; Hoxie v. Farmers’ & Mechanics’ Nat. Bank, 20 Tex.Civ.App. 462, 49 S.W. 637, writ ref.; Cauble v. Cauble, 1926, Tex.Civ.App., 283 S.W. 914; Greenspan v. Green, 1953, Tex.Civ.App., 255 S.W.2d 917, writ ref., n. r. e.; Daniel Lumber Co. v. Settlemire, Tex.Civ.App., 256 S.W.2d 922, writ ref., n. r. e.

Appellee has presented cross-assignments complaining that the court erred in not giving him judgment for the entire amount of $12,500.00 plus attorney’s fees in the amount of $5,000.00 expended in defending the Louisiana case. We think these cross-assignments should be sustained.

Although $2,780.00 of the judgment was against appellant, appellee and Tyler in solido, appellee had the right to seek indemnity from appellant without asking for indemnity against Tyler. Appellant cannot escape full liability as indemnitor on the ground Tyler was not served with process and the suit was discontinued as to hirm The discontinuance of the suit as to Tyler in no way prejudiced appellant’s claim for indemnity from Tyler. Furthermore, the payment of the $12,500.00 by appellee benefited appellant in such amount since he was liable in solido for a total of $13,900.00 under the judgment after payment of $5,000.00 thereon by the insurance carrier, and was able to secure a complete release by paying only an additional $1,000.00.

We have neither found nor been cited to any case directly in point. The law is well settled in Louisiana, however, that the plaintiff in the Louisiana suit could have sued appellant without joining Tyler or could have joined Tyler and abandoned the cause as to him prior to verdict, and in either case appellant would have no legal right to complain. Linkenhoger v. Owens, 5 Cir., 181 F.2d 97. It is our view by analogy to such rule, appellant has no legal ground to complain because the present suit was discontinued as to Tyler.

The trial court found that appellee paid his attorneys $6500.00, and that such fee was reasonable and necessary for the necessary and reasonable services rendered him in the Louisiana suit. The court concluded, however, that appellee was not entitled to any attorney’s fees. In view of the trial court’s findings of fact, we perceive of no reason why appellee is not entitled to recover attorney’s fees, limited, however, to the amount of $5,000.00 sued for. The general rule is that reasonable attorney’s fees which have been incurred in resisting the claim indemnified against may be recovered as a part of the damages and expenses when an action is brought to recover indemnity either upon a right of indemnity implied by law or arising under a contract. 27 Amer.Jur., pp. 473-474, § 27; Sears v. Inhabitants of Town of Nahant, Mass.Sup. 1913, 215 Mass. 234, 102 N.E. 491-493. A right of indemnity generally arises by contract express or implied, but it also exists whenever the relation between the parties is such that either in law or in equity there is an obligation on one party to indemnify the other as where one person is exposed to liability by the wrongful act of another in which he does not join. 27 Amer.Jur., p. 465, § 16.

In Pure Oil Co. v. Geotechnical Corp. of Delaware, U. S. Dist.Ct., E. D. Louisiana, 129 F.Supp. 194, the court stated: “There seems to be little question that, whether the indemnity is implied in law or arises under contract, reasonable counsel fees and costs incurred in resisting the liability indemnified against may be recovered.” See Succession of Caldwell, 1853, 8 La.Ann. 42, in which the court held that a sheriff who was sued for having seized and sold certain movables under a number of attachments, and who had called on attaching creditors to defend him, could recover as indemnity from the creditors adopting his acts the fee paid by him to counsel for defending the attachment. See also Hartford Accident & Indemnity Co. v. Dahl, 202 Minn. 410, 278 N.W. 591; City of Ft. Scott v. Pen Lubric Oil Co., 122 Kan. 369, 252 P. 268; Sigmond Rothschild Co. v. Moore, Tex.Civ.App., 166 S.W.2d 744, writ ref., w. m.; 2 A.L.R. 184, Note 4; Frommeyer v. L. & R. Construction Co., 3 Cir., 261 F.2d 879, 69 A.L.R.2d 1040, and Annotation p. 1046 ; 42 C.J.S* Indemnity § 24, p. 602.

The judgment of the trial court will be reformed to allow appellee $17,500.00 instead of $11,110.00 decreed by the trial court, and as reformed the judgment of the trial court is affirmed.

On Motion for Rehearing

In his motion for rehearing, appellant has requested that we make certain findings of fact and conclusions of law. We are not in a position to make independent findings of fact, since no statement of facts has been filed in this Court and we have not been furnished with the pleadings and judgment in the Louisiana case. We are required to indulge every presumption in favor of the trial court’s findings and judgment. It would unduly prolong this opinion if we undertook to set out the fact situations in the cases cited in our opinion or to distinguish between the facts in such cases and the factual situation in the instant case. It is our view that the conclusions reached by us are supported by the cases cited, although the fact situations may not be the same in any two of such cases or the same as in this case.

Motion for rehearing overruled.


author: TIREY, Justice.

text:
    MACK TRUCKS, INC., Appellant, v. J. B. HARDIN, Appellee.
    No. 3970.
    Court of Civil Appeals of Texas. Waco.
    March 15, 1962.
    Rehearing Denied April 4, 1962.
    Ivan Irwin, Sr., Dallas, for appellant.
    Glenn Stewart, Corsicana, for appellee.
   TIREY, Justice.

Appellant has perfected its appeal from an order overruling its plea of privilege to be sued in Dallas County, the county of its residence. Appellant is a foreign corporation, having its place of business in Dallas County, Texas, but does not maintain an office or agency in Navarro County, Texas. The case was tried without the aid of a jury, and there was no request for findings of fact and conclusions of law, and none filed.

The order is assailed on 5 points. Points 1, 2 and 3 are to the effect that the court erred in overruling the plea of privilege (a) because there is no evidence to sustain venue within Exception 7 of Art. 1995, Vernon’s Ann.Tex.St.; (b) that the evidence was insufficient to sustain venue; (c) because the overwhelming weight of the evidence established that there was no fraud committed in Navarro County, Texas; (d) because there is no basis on which to overrule its plea of privilege because of the provisions of Exception 27 of Art. 1995, because said exception is unconstitutional as applied to appellant; (e) because the ap-pellee failed to prove that he believed or relied upon the alleged misrepresentations made in Navarro County to induce him to sign the contract.

Plaintiff went to trial on his original petition, and pertinent to this discussion, alleged substantially that on or about the 27th day of January 1960, he and defendant entered into a contract of sale in Corsicana, Navarro County, Texas, pursuant to which plaintiff purchased a used 1956 Mack truck, (giving numbers, etc.) at the price of $9,000.00; that as a part payment for such purchase price, defendant allowed plaintiff $1750.00 as its reasonable cash market value for the plaintiff’s White truck which defendant received and applied to its own use, leaving a balance of $7,250.00; that they negotiated several days before the sale was consummated on January 27, 1960 at Corsicana, Navarro County, and that prior to such ne*-gotiations and during such negotiations, defendant knew that plaintiff was in the long-haul trucking business and that said truck unit purchased by plaintiff would be put to that use and would be expected to be in good workable condition; that during such negotiations, defendant, through its agents and representatives, (Charles Blair and Mr. Bailey, District Manager) represented to plaintiff that the truck was a used 1956 model; that it was in good workable condition, and that it was in a state of good repair, and that plaintiff could expect at least one full year of normal operation in its business; that said representation was made for fhe purpose of inducing plaintiff to enter into an agreement to purchase the truck; that plaintiff relied on such representations and entered into the agreement to purchase, and would not have made such purchase but for such representations; that such representations were false and deceitful, and were maliciously and fraudulently made by the agents of defendant to induce plaintiff to purchase the truck; that defendant agreed to deliver to the plaintiff such used 1956 Mack truck-trailer and usual equipment, which defendant represented was in good workable condition, and was in such fit condition to fully perform the service to which it would be placed by plaintiff; that the truck so delivered to plaintiff was not a 1956 Mack truck as represented, but was a truck made up with parts from both a 1954 and 1956 model Mack truck; that it contained twin screw tandems or 2 rear tandems; that plaintiff had no knowledge or information that the truck was so constructed, and he would not have consummated such sale if such fact had been known to him; that the 1954 model twin tandem rear ends installed in this truck did not function properly, necessitating a repair to such rear ends within 15 days from the date of delivery; that defendant, acting through its agents and employees, wilfully, maliciously and fraudulently represented to plaintiff that said truck was in good state of repair, of good mechanical quality, and capable of performing service for which it was to be used by plaintiff, when in fact defendant knew, or should have known by prudent and ordinary-conduct, that said truck was in poor mechanical condition, and that said truck could not reasonably be expected to perform the use to which plaintiff would place the truck; that defendant ratified and adopted the acts of the agents as its own.

Plaintiff seasonably controverted defendant’s plea of privilege and alleged that it had venue under Subdivisions 7 and 27 of Art. 1995 aforesaid.

It is true that the plaintiff testified to the effect that he executed the purchase order and contract in Dallas, Texas on the 27th of January, 1960, (appellant’s Exhibit No.. 1) ; that he executed the chattel mortgage in Dallas, Texas (defendant’s Exhibit No. 2); and the delivery receipt January 27, 1960 in Dallas, Texas (defendant’s Exhibit No. 3).

Pertinent to the trade, Mr. Hardin testified in part:

“Q. As a matter of fact, Mr. Hardin, you didn’t agree to buy the truck at that time when Mr. Blair was here in Corsicana, did you?
“A. Not that particular time.
“Q. And what you did do was to make arrangements to go to Dallas and check the truck out yourself ?
“A. I never did check out the truck.
“Q. Did you go to Dallas before January 27th to look at the truck?
“A. Yes sir.
“Q. All right. That is, Mr. Hardin, you made another trip to Dallas after you had sent your driver to check it out? At that time you went with the driver, or you and the driver went together, and he took the trade-in truck?
“A. Yes sir.
“Q. And it was then, in Dallas, that you and Mr. Blair got together on the price and sale of this truck, was it not?
“A. No sir. We got together previously to that, here. Mr. Evans can tell you. Mr. Evans, — he> had left orders there with Mr. Evans what to do.
“Q. * * * There was still an open item on the amount of trade-in to be allowed for your truck, wasn’t there?
“A. There wasn’t to me. They acted like there was when we got up there, but when we got hold of Mr. Blair, — * * * they verified what I had said.
“Q. There had been, until the last trip, the difference, or apparent difference, between you and the Mack people as to the difference of the terms of the trade-in on your truck, and they had to get hold of somebody to straighten it out?
“A. The trade was made here, and when I went up there to get the truck * * *
“Q. I thought you said, Mr. Hardin, that you signed the contract * * *
“A. I did * * *
“Q. * * * and the papers in Dallas?
“A. That’s the way they seemed to do business, — to have a man come in up there and have the guy to look for the man that sold the truck and to finally verify that he did sell the truck, what he sold it for, and things like that, but I bought the truck from Mr. Charlie Blair right down here at Mr. J. T. Arnett’s.
“Q. Did you pay him in cash at that time?
“A. No, sir. He looked at my trade-in; I had it brought down there, —I had one of the men to bring it down there and he looked at it and accepted it and I left it there until I carried it to Dallas to him.
“Q. Mr. Hardin, you said at that time when you and Mr. Blair got together on the figures and you showed him the trade-in?
“A. That’s right.
“Q. You knew at the time Mr. Blair was here that you were going to go into Dallas to look at the truck before you finished the purchase of it?
“A. I had already went and looked at it and accepted the truck and accepted the trade with him. He came here to Corsicana previously, I believe two times, and looked at my trade-in, and then he came back here and we made the deal and accepted the deal and he told me to get on up there, that he would have Mr. Evans to fix these papers up, and the papers on the truck, and when I got there we didn’t have any papers on the truck — they didn’t have them.”

The plaintiff testified to the conversation he had with a Mr. Nylon, a representative of the defendant:

“Q. * * * Did Mr. Nylon ever make a statement to you about, — touching on the condition of this truck before, or after, the sale?
“A. Yes, sir, after the sale, — that’s the day I was up there. Well, he said that, — told me about the rear ends, and I asked him, ‘Did you all fix them after you found out about them ?’ And he said, T would guess that those rear ends have a million miles on them’, and I said, ‘Well, what would you say we ought to do about it’, — or ‘what the cost would be’, and he estimated that it would take around Twenty-five Hundred Dollars to go through the rear ends and put them up in shape.
“Q. Now, before the sale and at the time Mr. Blair was in Navarro County to talk to you about it, as you have previously testified, did Mr. Blair make any statements to you concerning the condition of the rear end to this truck?
“A. Yes, sir, he said that the rear ends had been checked out and they had put two — they had put some new universal joints on it and it checked out all right.”

Subdivision 7 of Art. 1995, V.A.T.S., provides :

“Fraud and defalcation.- — In all cases of fraud, and in all cases of defalcation by public officers, suit may be brought in the county where the fraud was committed or where the defalcation occurred, or any of such suits may be brought where the defendant has his domicile.”

Is-the evidence sufficient to sustain the trial court’s implied finding to the effect that the appellant, acting through its agents, fraudulently represented the condition of the truck to the plaintiff in Navarro County, Texas for the purpose of inducing plaintiff to make the trade ? It is our view that the record is ample to sustain such implied finding. Here, we have an undisputed factual situation where the plaintiff gave a truck in trade of the value of $1750.00. This trade-in was credited on the purchase price of $9,000.00 for the Mack truck under the testimony which we have recited. We think the trial court was authorized to find impliedly that plaintiff believed that defendant’s agents represented to plaintiff that the Mack truck was in good repair, and that plaintiff believed and relied on such representations, and that such representations were false; and that the truck was not in •good repair, as represented. Under the undisputed record, after the plaintiff had 'had the truck some 15 days, defendant’s agent and representative estimated that it •would take $2500.00 to repair the rear end of the truck. We think the evidence is clear that fraud was committed on the plaintiff in Navarro County, and we accordingly affirm the judgment of the trial court. Points 1, 2, 3 and 5 are overruled. Point 4 passes out of the case.


author: COLLINGS, Justice.

text:
    John Thad SCOTT, Jr., Appellant, v. Richard E. LEIGH, Jr., Appellee.
    No. 3667.
    Court of Civil Appeals of Texas. Eastland.
    March 16, 1962.

      John Thad Scott, Jr., Houston, for appellant.
    Andrews, Kurth, Campbell & Jones, Fulbright, Crooker, Freeman, Bates & Ja-worski, Houston, for appellee.
   COLLINGS, Justice.

This is a malpractice case. John Thad Scott, Jr., brought suit against Dr. Richard E. Leigh, Jr., for damages allegedly resulting from negligence and malpractice. Plaintiff alleged that he sustained injuries to one or both of his eyes as a result of an examination on January 14, 1959, and subsequent treatment by the defendant. An instructed verdict was granted against plaintiff when he rested his case. Plaintiff had offered no testimony from expert witnesses of any negligence on the part of the defendant. Plaintiff, John Thad Scott, Jr., has appealed.

It is contended in appellant Scott’s first two points that the court erred in sustaining appellee’s motion for an instructed verdict. He urges that there were issues of fact presented by the testimony of appellant and other witnesses which should have been submitted to the jury. In appellant’s 3rd point of error it is contended that the court erred in failing and refusing to submit to the jury the following or similar issues of fact: (1) Whether appellee, after being advised by telephone that appellant’s eyeballs were inflamed and his eyelids swollen, without examination of appellant, prescribed medication which contained the same ingredient or ingredients that had been used in appellant’s eyes prior to and after the examination, (2) whether the prescribing of such medication, under the circumstances, was negligence, (3) whether such negligence was the' proximate cause of injury to appellant’s eyesight, and (4) the amount of money which, if paid in cash, would fairly compensate appellant for such injuries to his eyes.

The evidence indicates that in 1933 appellant, John Thad Scott, Jr., began to have difficulty with his eyes, and the-trouble was diagnosed as bilateral cata--racts, the right eye most advanced. For a period of about two years appellant principally used his left eye. In June of 1941,-an operation was performed on his right eye and in 1944 there was an operation on his left eye. During the three years intervening between the operations, appellant had use of his right eye only, in performing service as regional attorney for the National War Labor Board in Dallas. The evidence shows that after the operation on appellant’s right eye he developed a severe case of eyeritis which for a period of about thirteen weeks was very painful but that the infection was burned out by a fever therapy administered by a competent physician. It was indicated that there was fear for some time that appellant might lose the sight of his right eye but that finally 20/20 vision was obtained and he used that eye alone as above indicated for about three years. The operation on appellant’s left eye in 1944 was successful and he was able to be back on his job in-Dallas within a month. About the middle of 1952, when appellant was in Washington on the National Mediation Board, he discovered that he was doing his close reading with his left eye only. Even prior thereto, it was apparent that he had lost the 20/20 vision in his right eye.

Appellant contends that Dr. Leigh was negligent in the treatment of bis eyes but admits that the doctor is a competent ophthalmologist and is recognized as such by the profession and the public. Dr. Leigh had treated a serious eye condition of appellant’s sister and because of her recommendation and the desire of his wife he arranged for an examination by Dr. Leigh in the fall of 1958. Mr. and Mrs. Scott testified that when appellant went to Dr. Leigh to have his eyes examined, he simply wanted to see if the doctor could improve the lens and increase the vision of his right eye or if anything could be done to help the weakened eye.

The alleged negligence of Dr. Leigh which appellant claims proximately caused the injury to his eyes was the use by the doctor of certain drugs in his eyes during examination and the prescription of certain medicine for the treatment of his eyes without making adequate tests to determine whether appellant would suffer from an allergy or have any other bad reaction therefrom. Appellant also alleged that the doctor was negligent in failing to direct appellant to promptly return to his office for treatment when he learned from his nurse, the afternoon following the examination that appellant was suffering because of an allergy and other ill effects from the drugs used during the examination that morning.

Prior to the use of any medication in Mr. Scott’s eyes at the time of the examination he and Dr. Leigh discussed the question of possible allergy and Mr. Scott stated that he had no such problem. Mr. Scott stated that he had not had any medication used in his eyes since 1944. In the examination, Dr. Leigh used first a drop of anesthetic, dorsacaine, and then a drop of neo-synephrine, to relax the pupil. After the examination Dr. Leigh put in another drop of dorsacaine and another drop of neo-synephrine. Mr. Scott was apprehensive at the time of this examination.

Mr. Scott testified that after the doctor had examined his eyes and had placed drops in his eyes the second time and he was sitting in the anteroom waiting until the nurse said he could go, his eyes began to smart and the discomfort seemed to increase; that when he was leaving the doctor’s office his eyes were smarting so bad that he returned and asked the nurse if she could get the doctor to give him a prescription for it. Scott stated that after he left the doctor’s office, his eyes continued to get worse and by the time he got to the drug store and had the prescription filled, they were bothering him considerably; that the discomfort was so pronounced that when he got home he called the doctor’s office and talked to the nurse and informed her that his eyeballs were inflammed and that his eyelids were swelling and asked if he should return to the office; that the nurse advised him that the doctor said just to take the prescription that had been given to him. Mr. Scott stated that he used the prescription about three times from 2:00 o’clock in the afternoon until he went to bed that night; that his eyes continued to get worse; that the eyeballs were getting more red and the lids continued to swell; that they were very sensitive to touch and that he developed a dull headache; that he took the prescription again on awakening the next morning but the condition of his eyes continued to grow worse and he did not use the prescription any more. He returned to the doctor’s office that afternoon for another examination and the doctor gave him two entirely different prescriptions. One was a salve to be applied to his swollen lids and the other was drops to be used on the inflammed eyeballs. By that time his eyes were very sore. However, with the use of the new prescriptions, they began to improve gradually but steadily. In about a weeks time, the swelling was out of the eyelids, but he had to have the prescription for the eyeballs renewed several times. Scott testified that for about a week he had no use of his eyes, could not read the papers or see the headlines, couldn’t see television and just sat around the house “moping and taking the prescriptions.”

Appellant concedes that it is the recognized rule in Texas that proof of negligence by a professional medical practitioner must be established by the testimony of expert witnesses in the same school in the vicinity by the standard of what constitutes accepted and approved practices. See Bowles v. Bourdon et al., 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1. In the instant case there was no testimony from any expert witness except the doctor himself. Appellant contends that the rule of law requiring the use of such expert witnesses is applicable only when questions involving the skill and ability of a medical practitioner are involved; that otherwise, a doctor is susceptible of being negligent the same as any other individual. In support of this contention appellant relies upon the case of Humphreys v. Roberson, 125 Tex. 558, 83 S.W.2d 311. Appellant contends that under the holding in the cited case, where the factual situation is simple enough for an ordinary layman to pass upon it, the determination remains for the jury; that where, as in this case, the doctor uses medication in the examination of a patients’ eyes, when he knows that none has been used by other doctors for many years, and where the doctor refuses to permit his patient to return to his office on the day of the examination after he has been informed that the patient’s eyeballs have been inflammed and his eyelids were swelling, and under these circumstances to prescribe treatment for the patient over the telephone, and particularly when the doctor prescribed medication which contained the same ingredients, or at least one of them, as did the drops which he had directed to be placed in his patient’s eyes at the time of the examination, and should have had knowledge that plaintiff’s eyes were allergic thereto, and where the doctor prematurely dismisses the patient after treating the injuries to his eyes, as in the manner above set out; that such evidence presents a jury question concerning negligence of the doctor.

In the Humphreys case the doctor treated a patient for trachoma. The treatment involved the application of an electrical current to the eyelids. The plaintiff patient claimed that in said treatment the doctor, not only applied the electrical current to the eyelids but also touched the eyeballs with an electrode thereby causing blindness. The defendant doctor denied that he had touched the eyeball with the electrode but, further testified that it would be dangerous and improper to apply electricity to the eyeball. The doctor testified that application of electricity to the eyeball in sufficient quantity to put the eye out was certainly not proper treatment; that it would be a serious mistake and would be grave carelessness and recklessness if it should be done. The jury found, however, that the doctor did touch his patient’s eyeball with the electrode and it was held by the court that according to the testimony of the doctor, himself, his act constituted negligence. There is no such testimony by Dr. Leigh in the instant case.

Dr. Leigh testified that he was not sure that Mr. Scott is allergic to any of the medications used on him. The day following the examination Dr. Leigh skin tested Mr. Scott for sensitivity to dorsacaine and to myelochlorphene, but not to neo-syne-phrine. The skin tests did not reveal any allergy. The doctor testified that the possible causes of the condition of Mr. Scott’s eyes were apprehension or normal irritation which would have occurred as a result of the thorough and extensive examination of the eyes, or the use of some unprescribed preparation at home, or an allergic drug reaction of such a low degree that the skin test in Dr. Leigh’s office did not reveal the sensitivity.

Subsequent to the completion of the eye examination at approximately 11:00 a. m. on the morning of January 14, 1959, Mr. Scott advised Dr. Leigh’s receptionist that his eyes were smarting and a prescription was given to relieve the condition. At about 2:00 p. m. on the afternoon of January 14th, Mr. Scott called the nurse in Dr. Leigh's office and advised that he was suffering from his eyes and asked if he should return to the office. Dr. Leigh, through his nurse, advised Mr. Scott to use the drops which had been prescribed for him on the morning of the examination. The drops, Bufopto-Neozin, were a prescription given frequently for irritated eyes. Dr. Leigh testified: “It is not unusual, after an extremely thorough examination, for eyes to be a little uncomfortable, particularly in the case ■ of people with a florid complection.”

On the following day Mr. Scott returned to Dr.. Leigh’s office and the prescription given previously was discontinued when Dr. Leigh discovered that Mr. Scott apparently had an “allergic conjunctivitis of the skin” of the - eyelids. Dr. Leigh testified that in his opinion such an allergic conjunctivitis which Mr. Scott may have suffered on the day after the initial examination probably was not caused by.the use of any medication because an allergic condition due to medication, except in extremely rare cases, would not have occurred until 24 to 48 hours after the use of the medication; that Mr. Scott’s complaints began immediately after the examination and increased in a few hours after the use of the Bufopto-Neozin.

Dr Leigh testified that in his opinion Mr. Scott was suffering immediately after the examination from “irritation that would come to his eyes after a very thorough examination with the lights”; that Mr. Scott was not told to report to Dr. Leigh’s office immediately on the afternoon of the initial examination because the doctor stated it is not unusual, after a thorough examination, for patients’ eyes to be tired and a little uncomfortable.

Dr. Leigh testified that as is characteristic of all persons who have had cataract operations on both eyes, Mr. Scott could count figures and see large objects without glasses. Mr. Scott’s vision in both eyes without glasses was less than 20-200. With the glasses he was wearing at the time he went to Dr. Leigh’s office he could see with his right eye 20-200, which is considered to be “legally blind.” With his glasses Mr. Scott could see with his left eye 20-20, which is normal. After the examination Dr. Leigh advised Mr. Scott that “there was so little change indicated in your glasses — you would not be justified in going to any expense to buy new glasses.” Dr. Leigh advised Mr. Scott that the vision in his right eye could be improved.

Dr. Leigh further testified that he saw and treated patients weekly at the Lighthouse for the Blind whose eyes were poorer in vision than Mr. Scott’s, and such eyes could be improved with proper lenses.

Dr. Leigh testified that when a patient first comes into his office, he uses drops in eye examination. Occasionally, he makes exceptions but not in a situation such as was presented with Mr. Scott, who had come from two excellent places, and said that he did not know the cause of his poor vision and asked “would we please look into it.” Dr. Leigh stated that under the circumstances he felt obligated “to examine him extremely thoroughly and extremely carefully.”

Dr. Leigh testified that he asks questions of his patients with respect to allergy, but he does not make allergy tests prior to using medication. He stated that: “There is hardly a medication used in all of medicine that will not at some time cause an allergy reaction, but they are very few.” On the day following the initial eye examination Mr. Scott appeared to have “an allergic dermatitis of the skin” of the face, redness of the conjunctiva (the lining of the eyeballs), but mostly the inflammation was limited to the skin of the face, with swelling of the eyelids.

Dr. Leigh stated that where a patient has a serious eye condition and there is a question of restoring or not restoring vision, that it is most important to have a thorough examination even though a patient might manifest some previous allergy to medication; that in such cases he would probably switch to a different medication but would continue with the examination of the patient, because the regaining of vision is far more important than an allergic reaction, which is only temporary. Dr. Leigh also stated that Mr. Scott’s symptoms as reported over the telephone did not warrant an extra trip to the office of Dr. Leigh for re-examination or treatment; that he would have been delighted to have seen Mr. Scott again if the symptoms, as reported, had justified it.

Dr. Leigh was the only medical witness who testified in this case. His testimony as, in substance, above set out, considered in its most favorable light to appellant does not show negligence on the part of the doctor. Dr. Leigh did not testify to any action on his part which he stated to be negligent. His testimony on the other hand was directly to the contrary. No action by Dr. Leigh has been established, by any other evidence in this case, which Dr. Leigh testified would amount to negligence. It is at this point that the facts of the instant case are distinguished from the facts of the Humphrey’s case. In that case the jury found, upon sufficient evidence, that the doctor had touched the patients’ eyeball with an electrode. The doctor denied this fact but expressed his ■opinion that such action would be improper and would constitute negligence.

In our opinion the facts of the instant case come squarely under the .rule announced by our Supreme Court in Bowles et al. v. Bourdon et al., supra, as follows:

“It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries.”

The trial court did not err in refusing to submit appellant’s requested special issues or in sustaining appellee’s motion for an instructed verdict. The judgment is affirmed.