author: SELLERS, Justice.

text:
    ABLE FINANCE COMPANY, Appellant, v. Fred WHITAKER et al., Appellees.
    No. 108.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 25, 1965.
    See also Tex.Civ.App., 360 S.W.2d 892.

      Tom Bankhead, Carthage, Henry W. Simon, Simon & Simon, Fort Worth, for appellant.
    W. Edward Lee, Carthage, for appellee Fred Whitaker.
    Tom B. Ramey, Jr., Ramey, Brelsford, Hull & Flock, Tyler, for appellees David G. Baird and others.
    LeRoy LaSalle, Carthage, for appellee Saxon Harris.
   SELLERS, Justice.

This is an appeal from a summary judgment entered by the trial court in favor of the defendants and denying the motion of plaintiff for a summary judgment.

The plaintiff, Able Finance Company, brought this suit to recover of Fred Whitaker damages for a breach of Whitaker’s contract in the sum of $120,345.20, with interest from May 21, 1962. After a hearing, the court refused Abie’s motion for summary judgment and entered a take-nothing judgment against Able, and granted Whitaker’s motion for summary judgment.

The facts are that Fred Whitaker negotiated with one S. H. Howell to purchase an oil and gas lease on land located in Starr County, known as the Heard Heirs Lease, covering several hundred acres of land. At the time of the negotiations for the lease there was one shut-in gas well on the land but no production therefrom. Fred Whitaker approached Able Finance Company with a view of securing a 100% financing of the deal. The negotiation resulted in S. H. Howell assigning to Fred Whitaker the lease in which Howell reserved and excepted production payment of 54% of %ths of the production until there was received the sum of $127,500.00, plus interest of 6% per annum. On the same date, the plaintiff, Able Finance Company, purchased the production payment from Howell at Whitaker’s request. The production payment was to be paid solely from production. Before Able Finance Company would purchase the production payment from Howell, it demanded and Whitaker gave what is known as a take-out letter, which is as follows:

“Reference is here made to that certain assignment of oil and gas lease from S. H. Howell, as Assignor to Fred Whitaker, as Assignee of even date herewith, covering the oil and gas lease dated August 12, 1957, from Mrs. O. H. Davenport, et al., Lessors, to W. E. Fox, Lessee, recorded in Volume 231, pages 206 to 220 of the Real Estate Records of Starr County, Texas, containing 1654.20 acres in Starr County, Texas.
“In said assignment, S. H. Howell reserved a production payment out of 54% of % of the production from the lands covered by said lease to pay the sum of $127,500.00, plus an equivalent of interest at 6% per annum on said sum of $127,500.00 remaining from month to month unsatisfied. S. H. Howell has assigned said production payment to Able Finance Company by instrument also of even date herewith.
“This letter is to represent my agreement and obligation to furnish to Able Finance Company, or its successors or assigns, at its request a purchaser who will purchase for cash the unpaid balance due on said production payment, paying therefor the principal amount at that date unsatisfied, if said production payment has not been satisfied in full on or before twenty-four (24) months from and after the date hereof.”

The assignment of the lease to Whitaker, the assignment of the production payment to Able Finance Company, and the letter of Whitaker were all drawn by Able Finance Company’s attorney and were all dated April 15, 1959. As a result of these instruments, Able Finance Company furnished the money to Fred Whitaker to buy the lease. At the end of the two years set out in the take-out letter, Able Finance Company made demand on Whitaker to comply with his agreement to find a purchaser for the oil payment. This he refused to do.

At the time of the trial the lease was no longer in existence and had been abandoned. There is no dispute that the balance due on the oil payment is the sum of $120,-345.20.

The foregoing facts were evidenced by the pleadings, affidavits, admissions, and depositions on file when the court entered its judgment.

At the outset the appellees contend that the appellant is not entitled to have certain of the depositions and admissions on file considered on this appeal for the reason that same were not formally introduced at the hearing on the motions for summary judgment and were not brought up in a statement of facts.

We overrule this contention on the provisions of Section (c) of Rule 166-A, which provides that the court, when convinced that there is no material issue of fact after considering the pleadings, depositions, and admissions on file, together with the affidavits, if any, the motion should be granted as a matter of law.

There cannot be much doubt that the take-out letter executed by Whitaker was the controlling inducement to Able Finance Company to furnish the money for the purchase of the lease, since the lease at the time was not in production and the oil payment was to be paid solely from production. The question then presented to this court is whether this letter, with the other instruments executed at the same time, is valid and creates an enforceable contract between Able and Whitaker, obligating Whitaker to find a purchaser for the oil payment after demand by Able Finance Company.

The fact situation apparently has not reached the appellate courts of this state. It is the opinion of this court that the transaction evidenced a valid contract on the part of Whitaker to find a purchaser for the production payment after demand; and upon his failure to so find a purchaser for the same, he breached his contract and is liable to Able Finance Company for the balance due on the production payment of $120,345.20.

Whitaker first contends that the contract is void because performance is now impossible. The principle was before the Supreme Court of Minnesota in the case of Hokanson v. Western Empire Land Co., 132 Minn. 74, 155 N.W. 1043, L.R.A. 1917C, 761, and the court held:

“The inducement and part consideration for plaintiff’s entering the contract to purchase the land was, no doubt, the undertaking by defendant to resell the same for the price and by the time stated in the letter attached to and made a part of the agreement. The argument is made that, since defendant’s ability to sell the land by a certain time and for a specified price depended on the willingness to buy of a third party over whom it had no control, therefore the contract should be held impossible of performance and invalid. We do not think such to be the law. There is nothing in the undertaking inherently impossible. Purchasers are found daily for lands at varying prices. There is nothing so unreasonable either in the price fixed or the limit of time within which to make the sale that performance may be said to have been considered, by the parties, beyond the possibility of attainment, when the contract was made. A contract which appears possible of performance when made does not become invalid or unenforceable because conditions afterwards arise which render performance impossible.”

The same principle has been sustained by the Supreme Court of Kansas in the case of Hurless v. Wylie, 91 Kan. 347, 137 P. 981, L.R.A.1915C, 177.

The take-out letter complies with the Statute of Frauds because it is in writing and also by a specific reference to the book and page of the record where the lease in question is recorded. Taylor v. Lester, Tex.Civ.App., 12 S.W.2d 1097.

We overrule the contention that the contract sued upon is without consideration. It is now settled that every written contract is now deemed to import a consideration for its execution until the contrary is shown. 13 Tex.Jur.2d, § 42, p. 171.

This suit was originally filed in the District Court of Starr County on plaintiff’s petition seeking specific performance of the contract with foreclosure of the lien on the land in that county. Pleas to the venue were filed by Whitaker to be sued in Pa-nola County where he resided. The trial court sustained the plea of privilege and ordered the case sent to Panola County. The Finance Company appealed to the Court of Civil Appeals at San Antonio where the judgment of the trial court was affirmed. When the case reached the court in Panola County, the plaintiff amended its pleadings and sought to recover damages only for a breach of contract.

This question was not presented to the San Antonio Court and the venue holding there has no controlling effect on this appeal. 4 Tex.Jur.2d § 1008, p. 698.

It is contended that the contract evidenced by the production payment the assignment to the Finance Company and the take-out letter is void as against public policy. This contention is based upon the theory that the transaction stripped of the take-out letter would authorize one method of reporting the party’s income taxes, but when the take-out letter is construed as a guarantee of the production payment, an entirely different method of reporting the taxes was applicable. We cannot sustain this contention for the reason that the contract as evidenced by all the instruments does not refer to or require either party to make his income tax report in any particular manner. In order to render the contract void, as violating public policy, the contract would have to contain a stipulation that is prohibited by law. 12 Am.Jur. § 167, p. 662. A contract that could have been performed -in a legal manner will not be declared void because it may have been performed in an illegal manner. Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146.

There are a number of other defendants in this suit who purchased interest in the lease involved in various amounts. One of the defendants is David G. Baird and his purchase agreement is as follows:

“This will confirm our verbal agreement wherein we have offered you and you have agreed to accept an undivided %2nds of the working interest in and to that certain oil, gas and mineral lease dated August 12, 1957, executed by Mrs. O. H. Davenport, et al, as Lessors, to W. E. Fox, as Lessee, covering 1654.2 acres of land out of the G. O. Newman Sub-division of the El Ban-dito Grant, Abstract No. 38, in Starr County, Texas, which lease appears of record in Volume 231 at Page 206 of the Deed Records of Starr County, Texas, to which reference is here made for descriptive purposes, subject to the exceptions and reservations hereinafter set out.
“We have purchased from S. H. Howell of Alice, Texas the above described oil, gas and mineral lease wherein other parties have retained royalties and over-riding royalties totaling 32.5 percent resulting in our operating interest totaling a 67.5 percent working interest. The interest you acquire is subject to such royalties and overriding royalties retained by other parties, so that you actually purchase a %2nds working interest out of such 67.5 percent leasehold interest.
“This property has been purchased by me by first paying the sum of $10,000.-00 evidenced by a note and mortgage executed by me in favor of Fort Worth Pipe & Supply Company, a Corporation of Fort Worth, Texas, bearing interest from date at the rate of 6 percent per annum and payable 120 days from April 15, 1959. The said sum of $10,000.00 represents the value I have paid for the equipment on this lease.
“In addition thereto, S.. H. Howell, from whom we have purchased the oil, gas and mineral lease, reserved a production payment out of 54 percent of %ths of the production from the lands covered by said lease to pay the sum of an additional $127,500.00 plus an equivalent of interest at 6 percent per annum on said sum of $127,500.00 remaining from month to month unsatisfied. S. H. Howell has assigned said production payment to Able Finance Company by instrument dated April 15, 1959 for which reference is made for all purposes.
“By letter dated April 15, 1959, I further agreed and became obligated to furnish to Able Finance Company or its successors or assigns at its request, a purchaser who will purchase for cash the unpaid balance due on said production payment, paying therefor the principal amount at that date unsatisfied, if said production payment has not been satisfied in full on or before 24 months from and after said date.
“As a part of the consideration of your purchasing such %2nds working interest, you become obligated and you agree to assume and pay a %2nds part of my obligation to and with both Fort Worth Pipe & Supply Company and Able Finance Company as above stated. In other words, you take this interest subject to all the terms and conditions as outlined above and in addition thereto, you assume and agree to pay your proportionate part of the obligation imposed on me in this purchase agreement and the assumption on your part and your agreement to pay your proportionate part of the obligation imposed on me is not only done by you as trustee but such agreement and obligation is a personal and individual obligation on your part.
“It is contemplated between the parties to this letter agreement that Well No. 5 will be drilled to a depth of approximately SSOO feet within 60 days from the date hereof, and as a further part of the consideration, you have agreed and you are obligated to pay to the casing setting point the sum of $12,000.00 but in this connection, you will have no further obligation unless and until we attempt completion, and only in that event will you pay your proportionate part of the cost of completing the said Well No. 5.
“On all subsequent drilling and operations, you will pay only your proportionate part of the actual costs of further developments, all of which will be subject to an Operating Agreement signed or to be signed between Fred Whitaker as Operator and Maurice H. Koodish, Non-Operator, the terms of which are the usual and customary terms of operating agreements used in the vicinity of Starr County, Texas and you will further be deemed and considered a non-operator under said Operating Agreement and subject to same.
“If this is your understanding of our trade, please execute the original and one copy of this agreement and retain one copy for your files.”

The other defendants purchased their interest with like contracts but for the amount of interest purchased. The assumption contained in the foregoing instrument is clear and unambiguous; but to further emphasize the assumption, the instrument contains this language:

“In other words, you take this interest subject to all the terms and conditions as outlined above and in addition thereto, you assume and agree to pay your proportionate part of the obligation imposed on me in this purchase agreement.”

As we view this instrument, it is nothing more than an agreement by Whitaker to sell an interest in real estate with an outstanding obligation against the same, in which purchaser assumes his proportionate part of the obligation. In this state we regard the law as settled that the party assuming the obligation is liable. Calhoun v. Taylor, Tex.Civ.App., 241 S.W. 579:

“If, as alleged, and concluded by the trial judge, Calhoun assumed the debt to Taylor, he is liable for it, and the judgment is correct. We strip the case of all complications and unnecessary side issues about the conversion of the property, about which large portions of briefs of both parties seem to be concerned, and hold Calhoun liable on his assumption of the debt.”

The non-resident defendants make the contention that, although they were cited in this case to appear and answer under the provisions of Article 2031b, Vernon’s Ann. Revised Civil Statutes of Texas, the trial court erred in overruling their plea to the jurisdiction of the court over said defendants for the reason that Article 2031b is violative of the due process provision of the United States Constitution insofar as it subjects him to the personam jurisdiction of the Texas court.

We deem it unnecessary to enter into a lengthy discussion of this question, but we adopt the reasoning of Judge Noel in the case of Hearne v. Dow-Badische Chemical Company, et al., D.C.Texas, 224 F.Supp. 90, discussing this statute at length and holds the same does not violate the due process clause of the Fourteenth Amendment.

There are other assignments which we have considered and are believed to be without merit and are overruled.

The judgment of the trial court is reversed and judgment here rendered sustaining the motion of appellant for summary judgment. Judgment is here rendered for Able Finance Company against Fred Whitaker for the sum of $120,345.20, with interest from May 21, 1962, at the rate of 6% per annum. The appellant will also have judgment against appellee David G. Baird, jointly with Whitaker and severally for $22,567.74, together with interest as above set out, same being the amount assumed by Appellee Baird of the Able Finance Company obligation; and appellant will have a like judgment against each of the following appellees for the following amounts:

F. Donald Hart $ 3,760.79
Philip E. Hoffman 3,760.79
Margery L. Miller and Helen L. Katenbacher, executors of the estate of Ray Miller 5,641.18
Frederick Rauh and Harriet F. Rauh 1,880.39
E. Trimble Smith 7,521.58
Maurice L. Koodish 45,129.48
Frederick W. Ziv 30,086.32
Saxon Harris 1,880.39

Rehearing Denied April 1,1965.

      Rehearing Denied April 1,1965.


source: Caselaw Access Project

author: LANGDON, Justice.

license: Public Domain

text:
    SAFEWAY STORES, INC., et al., Appellants, v. Kenneth AMBURN, Appellee.
    No. 16609.
    Court of Civil Appeals of Texas. Fort Worth.
    March 12, 1965.
    See also, Tex.Civ.App., 380 S.W.2d 727.

      Clark, West, Keller & Clark, W. B. West, III, and Allen Butler, Dallas, for appellant Safeway Stores, Inc.
    Daugherty, Bruner, Kelsoe & Lastelick, and Jerry Lastelick, Dallas, for appellant Hopper & Hawkins.
    Anderson & Connell, and Jack Connell, Wichita Falls, for appellee.
   LANGDON, Justice.

This is a suit for damages for false imprisonment and for other relief brought by Kenneth Amburn against Safeway Stores, Inc., R. C. Newman and Hopper & Hawkins, Inc. Amburn was formerly employed as a clerk in the Safeway Store at Jacks-boro. R. C. Newman is the District Manager for Safeway Stores within whose district Jacksboro is located. Hopper & Hawkins, Inc., is an independent organization which performs certain contract services for Safeway Stores and others, consisting of observing and reporting on employee efficiency, courtesy, appearance, conduct, honesty and observance of company rules and procedures.

Amburn was questioned by an employee of Hopper & Hawkins concerning irregularities in the handling of funds, and signed a statement admitting that he had taken money. He also executed a promissory note and transferred the title to his automobile to Safeway Stores in repayment of the money he had admitted taking. Am-burn then was discharged and brought this suit for damages, alleging that he had been falsely imprisoned, that he had not taken any money, and that he had signed the statement admitting such taking, the promissory note and the transfer of car title while under duress.

The trial court entered judgment on the verdict in favor of Amburn and against Safeway and Hopper & Hawkins, Inc., for actual damages of $20,000.00 and exemplary damages of $27,000.00. Judgment was entered after verdict, however, in favor of the third defendant, R. C. Newman, and against Amburn.

After Amburn had rested and again after all parties had closed, Safeway filed a motion for instructed verdict raising the points that there was no evidence or at most only a scintilla of evidence that Am-burn had been falsely imprisoned by anyone. Such points have been properly preserved and are assigned as error. Hopper & Hawkins, Inc., assign as error the submission of an issue on false imprisonment as to its agents, servants and employees over its objection that there was no evidence to support such issue. These points are sustained. We conclude that the record discloses no direct evidence to support the submission of any issues on false imprisonment or the jury’s findings thereon as to any of the defendants. Our decision makes it unnecessary to decide the many other points of error raised in appellants’ briefs.

We now review the testimony most favorable to Amburn relating to his cause of action for false imprisonment which, of course, was his own.

About 9:30 a. m. on the day in question, Amburn was working at the Safeway Store and recognized R. C. Newman, District Manager for Safeway. At about 10:30 a; m., while Amburn was loading produce crates on a grocery truck, Newman approached Amburn from behind and touched his arm to gain attention. Newman requested Amburn to accompany him for the purpose of talking to somebody. Amburn and Newman then proceeded to a secluded area at the back of the store in the northeast corner. It was an aisle of the store. The area was “U” shaped, about 14 feet in length and 12 feet in width. Pop bottles and other items were stacked high against the north and south sides so as to reduce the passable area to approximately 6 feet in width. The east end was closed off for storage. The entry to the area was at the west end which was open. It was the most private place available in the store for a conference.

When Amburn and Newman reached the designated area, Bill Koch of Hopper & Hawkins was waiting for them. After introductions, Amburn sat on a crate against the south wall and Koch sat directly in front of him against the north wall. They faced each other. Shortly after the conference started, Newman left the area to assist other employees to complete the loading of the truck. During Newman’s absence Amburn had a passable area to his left some 4 feet to 6 feet wide through which he could have departed at any time. After Newman returned to the area and sat to Amburn’s left, Amburn testified that he still had room to walk past him and out of the area. Newman made no threat or effort to detain Amburn nor was he unfriendly or discourteous. All the talking was done by Koch and Amburn. Koch used no physical force to detain Amburn nor did he threaten to restrain him. Except to shake hands, neither Newman nor Koch touched Amburn during the interview. There was no obstruction to prevent Amburn’s passage in or out of the aisle where the meeting took place. Koch’s interrogation lasted about 30 or 40 minutes. Amburn never at any time made a request to leave. He did not at any time attempt to depart the area or indicate a desire to do so. He was never told he had to remain. No threats were made to detain him.

According to Amburn’s testimony, Koch told him that he had checked the tapes from the cash registers and they were all the evidence needed to send Amburn to the penitentiary. Koch held the tapes in Am-burn’s face and upon being confronted with the tapes and his alleged defalcations, Amburn became frightened. He testified: “ * * * my stomach was drawed up in knots. I believe I was actually sick. I don’t think I could moved even if I had tried.” Amburn also testified that he was scared throughout the interview and was so weak in his knees that he could hardly walk. He also testified as to being sick to his stomach and to “shaking like a leaf.” Koch told Amburn that he was not a very good liar and that the salary in Huntsville for checkers was not very good. Amburn was handed a clip board and pen for his use in writing a letter to Safeway admitting he had been guilty of stealing $500.00 from the cash register. The letter was dictated by Koch and contained a statement to the effect that the letter was written on Am-burn’s own free will without threats or promises from anyone.

After the letter was signed, Amburn told Newman and Koch that he would try to borrow the money from the bank to repay Safeway. The Bank President was not in. Amburn went home and cleaned out his car. He left his home and later returned for the car title. He then returned to the store about noon and was told by Newman to return after lunch. Amburn went home for lunch but could not eat. He thereafter met Newman and Koch at 2:00 p. m. at the store. Upon their request he met them at the Ford agency where he transferred title to his car to Safeway and executed a note to Safeway in the amount of $280.00. Newman and Amburn returned to the store in the latter’s car. Newman then requested the keys to the car and gave Amburn a receipt for $220.00. Amburn was thereupon paid his wages and discharged.

Amburn alleged in part: “In this connection, Plaintiff alleges the facts to be that by such conduct and threats of R. C. Newman and Bill Koch, that he was overawed and intimidated, frightened to the extent of being incapable of exercising his will in removing himself, and thereby prevented from leaving said place in said store where he was thus held and willfully and maliciously detained for several hours against his will.”

From this summary of Amburn’s testimony, it can be seen that the interview lasted thirty to forty minutes rather than several hours and that there was no evidence as to false imprisonment. Moreover, this case raises the question of the limitations imposed upon an employer in discussing with an employee matters relevant to his employment. We think an employer is entitled to discuss with his employees all matters bearing upon the duties and purposes attendant to the employment and particularly where he has information touching upon the fidelity of the employee. We also think the employee is entitled to be forthwith confronted with such information and that the logical place for such a conference would be in the establishment where the employee is hired to work. It is possible, of course, for such an interview to be held at an improper place and conducted in an improper manner. From a careful review of the record, however, we do not believe this to be the case as far as Amburn is concerned. The conference with Am-burn was conducted in the regular place of business by one whose duty it was to investigate such matters. The area was sufficient to accommodate the presence of the persons involved. No threats or physical efforts were made to restrain Amburn. He was at all times free to leave. There was no impediment to restrain Amburn from removing from one place to another.

We do not approve of the conduct of Koch. Such conduct, however, bears only upon the value of Amburn’s confession as evidence and the validity of his execution of the note and transfer of the title to the car. It has nothing to do with whether he was falsely imprisoned. The confession and execution of the other instruments may have been made because Amburn feared that he would be sent to the penitentiary or reported to the bonding company, or both. This fact may have rendered the confession and the execution of the note and transfer involuntary. It did not render Amburn’s presence in the area of interrogation false imprisonment.

While employers should be admonished that their dealing with employees should always be reasonable and humane, we cannot adopt a rule which would constantly place an employer in jeopardy of a charge of false imprisonment. The interview with Amburn had a direct bearing upon his duties as an employee. He was compensated during the time that he was in the area. Under the circumstances, it cannot be said that his requested presence for purposes of interrogation constituted false imprisonment unless he was unlawfully detained. We accept at face value Amburn’s testimony that he was scared. It is not unlikely that any person being confronted with questions concerning his personal integrity would relish such an interview. This, however, is not the same as false imprisonment.

In Safeway Stores, Inc., v. Amburn, 380 S.W.2d 727 (Fort Worth Civ.App., 1964, Dism.), this court in an appeal from an order overruling pleas of privilege held that Amburn’s proof failed to establish false imprisonment as against all defendants. He has not improved his position in this respect.

Article 1-169 of the Vernon’s Ann.Penal Code-defines false imprisonment as “ * * the- wilful detention of another against his consent and where it is not expressly authorized by law, whether such detention be effected by an assault, by actual violence to the person, by threats or by any other means which restrains the party so detained from removing from one place to another as he may see proper.”

The impediment must be such as in its nature is calculated to detain the person and from which he cannot, by ordinary means, relieve himself. Article 1171, V.A. P.C. The threat which is alleged to have resulted in false imprisonment must be calculated to detain the person. It must result in more than intimidation if one can, by ordinary means, relieve himself from any restraint or detention. J. C. Penney Company v. Romero, 318 S.W.2d 129 (San Antonio Civ.App., 1958, writ ref., n. r. e.); Weiler v. Herzfeld-Phillipson Co., 189 Wis. 554, 208 N.W. 599 (1926); White v. Levy Brothers, Inc., 306 S.W.2d 829 (Ct. of App., Ky., 1957); Restatement of the Law, Torts, False Imprisonment, §§ 35 and 36.

Threats of arrest and imprisonment improperly made to induce a confession may invalidate the confession but have no bearing on the issue of false imprisonment where the person is not detained by force or threats of force. 35 C.J.S. False Imprisonment § 71, pp. 784-785. See also 35 C.J.S. False Imprisonment § 11, pp. 635— 637; 22 Am.Jur. 359, § 9.

In reaching this result, we find nothing inconsistent with our opinion in Skillern & Sons, Inc., v. Stewart, 379 S.W.2d 687 (Fort Worth Civ.App., 1964, writ ref., n. r. e.). Since we conclude that there is no direct evidence to support the submission of any issues on false imprisonment or to sustain a jury verdict thereon, we are not called upon to pass upon the form and manner in which such issues were submitted to the jury.

We have concluded that judgment against Safeway and Hopper & Hawkins, Inc., for actual and exemplary damages based upon false imprisonment should be reversed and rendered and that the portion of the judgment cancelling the transfer of title .to the car and the note should be affirmed.

Affirmed in part and reversed and rendered in part.


author: SHARPE, Justice.

text:
    SOUTH TEXAS ELECTRIC COOPERATIVE, INC., Appellant, v. Charles F. BEUTNAGEL et ux., Appellees.
    No. 77.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 18, 1965.
    Rehearing Denied April 8, 1965.

      Fisher Alsup, of Alsup & Alsup, Corpus Christi, for appellant.
    J. Marvin Ericson, Corpus Christi, for appellees.
   SHARPE, Justice.

This appeal is from a judgment in a condemnation case in which South Texas Electric Cooperative, Inc., appellant, condemned a right-of-way easement over and across the property of Charles F. Beutnagel and wife, appellees, for the purpose of erecting, operating and maintaining an electric power transmission line. Upon a jury verdict consisting of answer to four special issues, judgment was rendered in favor of appel-lees for $3,005.88.

Appellant urges ten points of error. Four of such points (one, two, eight and nine) involve the special issues submitted to the jury. Four additional points (four, five, six and seven) involve instructions submitted to the jury along with such issues. Point three involves an alleged error in failing to grant appellant’s motion for judgment based upon the answers to special issues 1 and 2, disregarding the answers to special issues 3 and 4. Point ten involves an alleged error of the trial court in connection with the testimony of the witness Porter and an instruction given to the jury in such respect.

The four special issues submitted to the jury were answered substantially as follows: (1) the market value of the strip taken for the right-of-way easement (50 by 2,363 feet), consisting of 2.712 acres, immediately prior to such taking on August 1, 1962, was $1,300.00, (2) the market value of said strip for the right-of-way easement immediately after the taking by appellant was $300.00, (3) the market value of the average acre of the remaining portion of appellees’ tract immediately before the taking of such right-of-way easement was $475.00, and (4) the market value of the average acre of the remaining portion of said tract immediately after the taking of said right-of-way easement was $465.00. Appellees’ farm consisted of 203.3 acres, of which 2.712 acres were taken for said easement, leaving a remainder of 200.588 acres. The effect of the verdict was to award $1,000.00 for the strip taken for the right-of-way easement and $2,005.88 as damages to the remainder.

By its points one and two, appellant complains of the submission of special issues 3 and 4. By point three, appellant contends that the answers to such issues should have been disregarded and judgment rendered only upon the answers to special issues 1 and 2. Appellant’s first three points are briefed and argued together. Such points are so general that it is necessary to look to the statement and argument thereunder in order to determine the contentions made. From such examination it appears appellant’s position is substantially as follows: there was no evidence or insufficient evidence to support the submission of issues 3 and 4; that issue 4 is based upon an incorrect measure of damages in that it allowed the landowner to recover damages for decrease in value as a result of a taking which is common to the community as a whole and not peculiar to the particular tract; that issue 4 allows a double recovery of damages in that the value of the remainder of appellees’ land was determined immediately after the taking the right-of-way easement without excluding the strip so taken, for which the owner was compensated due to the answers to special issues 1 and 2; and that appellant’s motion to disregard the answers to issues 3 and 4 should have been granted and judgment rendered based on the answers to issues 1 and 2.

Several witnesses testified as to the reasonable market value of the remainder of appellees’ farm prior to the taking by appellant of the strip for the right-of-way easement. One of appellant’s expert witnesses, Mr. E. Charles Lewis, testified that the value of said remainder, immediately before the taking of said strip for the easement, was $475.00 per acre. He also testified that the value was the same immediately after said taking, but the jury did not credit such testimony, and found that there had been a decrease in the average acre value of $10.00. Appellee, Charles F. Beutnagel, testified that the value of the land prior to the taking of said strip was from $450.00 to $500.00 per acre. Mr. Stanley Fry, a witness for appellees, testified that the value of said land, prior to the taking was $475.00. Mr. Milton Porter, a witness for appellees, testified that the value of the land, prior to said taking, was $500.00 per acre. Appellant’s witness Kelly said the land was worth only $300.00 per acre, but the jury obviously failed to credit such testimony, finding, in answer to special issue 3, that such value of the remainder prior to the taking of the strip was $475.00 per acre. There is ample support for such finding in the testimony above-mentioned.

Mr. Beutnagel and his witnesses Porter and Fry testified to various factors which tended to cause a decrease in the value of the remainder of the tract in question brought about by the taking of the strip for the right-of-way easement for an electric power transmission line. Porter testified that, In his opinion, such market value was reduced by $50.00 per acre, and Fry said it was reduced by $25.00 per acre. Some of the reasons given for such reduction in value are as follows: extra work and expense in farming the tract, laying out the rows, plowing, cultivating, planting, applying insecticides, keeping the land free of weeds; hazards to farm workers and machinery, unsightliness of the power line extending diagonally across the land; interference with television and radio reception in the home on the premises; and danger from lightning. The jury finding on special issue 4, that the remainder of appellees’ tract was worth $465.00 an acre after the taking of said strip for the easement finds more than sufficient support in the evidence.

Appellant’s reliance, in connection with points one, two and three, on the case of Tennessee Gas and Transmission Co. v. Zirjacks, 244 S.W.2d 837 (Tex.Civ.App., 1951, wr. dism.) is misplaced. The physical facts surrounding an easement for the purpose of a buried gas pipe line are substantially different from those present here where an overhead electric power transmission line cuts diagonally across a rectangular tract of farm land. Most of such differences are pointed up by the opinion in Texas Electric Service Co. v. Etheredge, 324 S.W.2d 322 (Tex.Civ.App., 1959, n. w. h.)

Appellant’s complaint that special issue 4 is based upon an incorrect measure of damages in allowing the landowner to recover damages for decrease in value common to the community as a whole and not peculiar to the particular tract, is also without merit. There was no evidence in the record of any such increase or decrease of appellee’s remaining land because of benefits or injuries received in common by the community generally, and, therefore, the same had no place in the charge of the court. The inclusion in the court’s charge to the jury of items of damage about which there is not proof would be erroneous. See Hodges v. Plasky, 300 S.W.2d 955 (Tex.Civ.App., 1957, wr. ref. n. r. e.).

Examination of all four of the special issues submitted to the jury reflects that issues 1 and 2 related only to the strip taken for such right-of-way easement and that issues 3 and 4 related to the remainder of appellees’ farm, after excluding said strip. Special issues 3 and 4 might have been more explicit in excluding the strip taken from consideration, but we do not find that a double recovery was allowed on account of the way issue 4 was framed. Examination of all four issues submitted to the jury shows that the wording of issues 3 and 4 was sufficiently certain to prevent the jury from being misled in such respect.

From the above discussion it is apparent that the contentions made under appellant’s first three points are not well taken. There was evidence to support the answers of the jury to special issues 3 and 4 by witnesses who were qualified to express opinions as to the value so found, and sufficient reasons were given to support such conclusions. The case of Texas Electric Service Company v. Ether edge, supra, is very similar to the instant one, involving most of the factors affecting market value of the remainder before and after the taking. Since special issues 3 and 4 were sufficiently supported by evidence, it follows that appellant’s point three, based upon the refusal of the trial court to disregard the answers thereto, is also without merit and should be overruled along with the said points one and two.

Appellant’s points four, five, six and seven -involve alleged errors in the instructions given to the jury in connection with the above-mentioned four special issues. The Transcript herein does not contain, as a separate instrument, the charge of the court and the verdict of the jury, although the judgment sets out the said four special issues. Appellee, under his fourth counter-point of his brief clearly called attention to the fact that the r-ecord failed to disclose any of the matters complained of in appellant’s fourth, fifth,-sixth and seventh points and that nothing, therefore, was presented for review. In its reply brief, appellant says that a Supplemental Transcript had been filed which contained appellant’s objections to the charge of the court as set out under its points four, five, six and seven. While the Supplemental Transcript filed herein does contain six instruments setting out objections to portions of the charge of the court allegedly given to the jury, endorsed by the trial judge and showing that such objections were made, nevertheless, the total Transcript herein, Original and Supplemental, still does not contain the charge of the court and the verdict of the jury. Appellant’s designation includes a request for “All of the Plaintiff’s objections and Exceptions to the Court’s Charge, and the Court’s order overruling them” but there is no request for the charge of the court or verdict of the jury to be included in the Transcript. We cannot ascertain, in this state of the record, what instructions were actually given to the jury by the court, and error would not be reflected, therefore, by appellant’s points four, five, six and seven, for such reason. See Gowan v. Reimers, 220 S.W.2d 331, 336 (Tex.Civ.App., 1949, wr. ref. n. r. e.); Broome v. Edna Gladney Home, 295 S.W.2d 266 (Tex.Civ.App., 1956, n. w. h.). However, we have considered the contentions made by appellant under its points four, five, six and seven on the basis of what it alleges is shown by the record, and it appears that such points are not well taken and should be overruled.

Appellant’s point number eight complains generally of the submission of special issue 2 which reads as follows:

“What do you find from a preponderance of the evidence, was the market value of the fifty foot by two thousand three hundred sixty-three foot strip of land, consisting of 2.712 acres, covered by the right of way easement acquired by Plaintiff corporation, upon, over and across the farm property of Charles F. Beutnagel and wife, Elsa A. Beutnagel, immediately after it was taken by Plaintiff corporation on August 1, 1962, taking into consideration the purposes and uses for which it was so taken?”

Said point does not specifically call attention to the alleged error relied upon by appellant. However, in its argument thereunder, the contention is made that the trial court should have added to such instruction the words “taking into consideration the uses, if any, which Defendants, the owners of such land, may make of the land not inconsistent with the uses of said land for the purposes for which South Texas Electric Cooperative, Inc., condemned said land.” As we have heretofore pointed out, in the state of the record herein, we cannot ascertain with any degree of certainty what instructions were actually given to the jury. It may be that the substance of such additional instruction, mentioned by appellant, was actually given to the jury as a part of the court’s charge, in which case the claimed error would not have to be considered. It appears that the four special issues submitted to the jury in this case were substantially the same as those in the case of Central Power and Light Co. v. Graddy, 318 S.W.2d 943 (Tex.Civ.App., 1958, n. w. h.), but we cannot determine with certainty that the instructions accompanying such issues were or were not given in the instant case; although the Transcript indicates, as distinguished from actually showing, that the substance of the instructions in the cited case were given by the court below. Appellant has failed to demonstrate error in connection with its eighth point and the same is overruled.

Appellant’s point nine complains generally of the submission of special issue 1, reading as follows:

“What do you find from a preponderance of the evidence, was the market value of the fifty foot by two thousand three hundred sixty-three foot strip of land, consisting of 2,712 acres, covered by the right of way easement acquired by the Plaintiff corporation upon, over and across the farm property of Defendants, Charles F. Beut-nagel and wife Elsa A. Beutnagel, immediately prior to the taking of such right of way easement by the Plaintiff corporation on August 1, 1962?”

Said point nine is briefed with appellant’s point ten which contends that the trial should have admitted the opinion testimony of the appellees’ witness Porter, on cross-examination, as to the market value of the strip of land condemned, considered as a severed strip, immediately before the taking; and that the trial court erred in instructing the jury to disregard the said witness’ testimony in such respect.

Under its point nine, appellant seems to urge two contentions. One is that special issue 1, in effect, told the jury that appellees’ property had value only as farm property, and the second is that such issue permitted the jury to make a finding as to the value of the strip taken for the right-of-way easement as a part of the whole tract instead of considering it as a separate strip of land. A reading of the four special issues, as they are set out in the judgment, reflects that such contentions are not well taken. The term “farm property” was used only to identify or describe the property in question, and the strip taken was sufficiently identified and described in special issue 1 so that it would be considered separately by the jury.

The basis for appellant’s contention under its point ten is not supported by the record. The trial judge sustained on objection to a question propounded by counsel for appellant to appellee’s witness. Porter and instructed the jury not to consider it. The trial court did not instruct the jury to disregard the testimony of said witness which had been previously given in response to other questions, and which, had not been objected to. In connection with the question to which the said objection was sustained, there was no bill of exception perfected showing what the testimony would have been had the witness answered said question. Therefore, nothing is presented for review on account of the contention made under point ten. Ex-Parte Taylor, 322 S.W.2d 309 (Tex.Civ.App., 1959, n. w. h); Wheat v. Citizens National Bank at Brownwood, 310 S.W.2d 735 (Tex.Civ.App., 1958, wr. ref. n. r. e.).

Upon the record before us, we are unable to say that reversible error is presented and the judgment appealed from is accordingly affirmed.


author: STEPHENSON, Justice.

text:
    Carl W. DANIEL et al., Appellant, v. Ted E. RICHARDS, Jr., Executor, et al., Appellees.
    No. 6732.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 11, 1965.
    Rehearing Denied April 7, 1965.

      R. A. Richardson, Kountze, for appellant.
    R. Richard Roberts, Houston, for appel-lees.
   STEPHENSON, Justice.

This is a will contest case. The jury found that the testatrix was of sound mind at the time of the execution of the last will dated May 31, 1958, and at the time of the execution of codicils dated March 18, 1959, and June 27,1959. Upon these jury findings the trial court ordered that such will and codicils be admitted to probate.

Josie Broussard Mitchell, the maker of this will and these codicils, died May 5, 1960. Carl W. Daniel, brother of the deceased, and George E. Daniel, nephew of the deceased, contested the application to probate this will and these codicils and appealed to the district court from an adverse decision in the county court. Ted E. Richards, Jr., named as executor was the proponent. The parties will be designated “contestants” and “proponent” as they were in the trial court.

Contestants contend first that the trial court erred in admitting into evidence a prior will of the deceased, when such prior will had not been properly proved. The trial court admitted into evidence, for the limited purpose of showing “continuing intent”, a will dated May 24, 1954, and executed by Josie Broussard. Both wills left the bulk of the estate to the Church of Christ. Contestants objected to such admission in evidence on the ground that such will had not been properly proved. The record shows that the will dated May 24, 1954, was admitted in evidence after a lay witness, Joe Earl Gates, had been asked if the signature on the will was that of Josie Broussard, and the witness replied: “That looks like it to me; that’s it.” Contestants point out that this prior will had two subscribing witnesses, neither of which was called, and that proof was not made in accordance with old Article 3344, Vernon’s Ann.Tex.Civ.St. This article had no application to the present case as the prior will was not offered for probate, but only as evidence of “continuing intent”. The identification of the signature was all that was necessary in order to make this instrument admissible in evidence. The prior will was both relevant and material on the issues of mental capacity and undue influence. This latter issue had been raised by the pleadings of the contestants, but no jury issues were requested as to undue influence and it was therefore waived. Rule 279, Texas Rules of Civil Procedure.

Contestants also urge, in connection with the foregoing point, that the trial court erred in not sustaining their motion to strike the will of May 24, 1954. In cross-examination of the witness Joe Earl Gates, it developed that this witness, having first identified the signature of the testatrix, later stated he could not be positive. The record demonstrates that this witness was familiar with the handwriting of the testatrix, and that it was his opinion that the signature on the will was that of Josie Broussard. Nothing more was required to make the instrument admissible. The fact that this witness may not have been positive goes to the credibility rather than the admissibility. In any event, the only issues submitted to the jury were those in reference to mental capacity. Many witnesses testified as to the soundness of mind of the testatrix, and this prior will was merely cumulative on these issues. No points of error have been raised that there was no evidence to support the findings of the jury or that such evidence was insufficient. No possible harm- could have resulted to contestants and the point is overruled. Rule 434, T.R.C.P.

Contestants complain of the action of the trial court in excluding the testimony of the witnesses Alfred L. Daniel and wife, Eura Daniel. These witnesses were named as contingent beneficiaries in the first codicil offered and admitted to probate, dated March 18, 1959. This codicil provided for a certain tract of land to go to Alfred L. Daniel and Eura Daniel if Henry Mitchell predeceased the testatrix. The record shows that Henry Mitchell died first, •and the testatrix then executed the second codicil dated June 27, 1959. In this second codicil no provision was made to leave anything to Alfred L. Daniel and Eura Daniel. In the event the jury found the testatrix to he of sound mind at the time of the execution of the will dated May 31, 1958, and at the time of the execution of the first codicil dated March 18, 1959, but of unsound mind at the time of the execution of the second codicil dated June 27, 1959, then Alfred L. Daniel and Eura Daniel would receive the tract of land. Even though these witnesses were not formally made parties to their suit, they were “parties” within the meaning of Article 3716, Vernon’s Ann.Tex.Civ. St.

Contestants cite cases to the effect that Art. 3716, Vernon’s Ann.Tex.Rev.Civ. St., has no application to cases involving legatees. However, in the cases cited neither an executor nor an heir was a party to the suit. In the instant case the executor is the proponent. The only question then left to determine was whether the witnesses called were “parties” to the suit. These witnesses had a direct and substantial interest in the controversy and would be bound by any judgment entered in the case. Being “parties”, these witnesses were not competent to testify. Corbell v. Koog, (Tex.Civ.App.) 188 S.W.2d 905 (writ ref’d.).

Contestants contend further that they were permitted to call Alfred L. Daniel and Eura Daniel as “adverse parties”. It is pointed out that under Art. 3716, V.T. C.S., a “party” may be called to testify by the “opposite party”. Alfred and Eura Daniel were not heirs of the testatrix, and they could prevail in this case only if the testatrix had been found to have been of sound mind at the time of the execution of the will and the first codicil, and of unsound mind at the time of the execution of the second codicil. Eura Daniel was the daughter of Henry Mitchell, who died March 25, 1959. The contestants in this case could recover only as heirs, and the will and both codicils had to be set aside in order for them to prevail. The interests of the contestants and the witnesses, Alfred and Eura Daniel, were adverse. The bill of exception shows that these witnesses would have testified that the testatrix was of unsound mind at the time o f executing the will and both codicils which were admitted to probate. This does not alter the situation as to their being “opposite parties”. Sanders v. Kirbie, 94 Tex. 564, 63 S.W. 626. It was error for the trial court to exclude the testimony of these witnesses.

Under Rule 434, T.R.C.P., we must now determine whether or not contestants have demonstrated that but for the exclusion of such testimony the jury would in all reasonable probability have returned a verdict other than the verdict it did return. Maddox v. Gulf, Colorado & Santa Fe Railway Co., (Tex.Civ.App.) 293 S.W.2d 499. The bill of exception shows that Alfred L. Daniel would have testified: That he knew the testatrix during her lifetime and had occasion to be around her and talked to her enough to observe her condition and demeanor; that he observed her from 1957 when she married Henry Mitchell until the death of Henry Mitchell in 1959; that he had formed an opinion as to her sanity; that in his opinion testatrix was of unsound mind on May 31, 1958. It was stipulated that he would give the same opinion as to the other two dates. It was further stipulated that Eura Daniel would give the same testimony if permitted to testify. The record shows that contestants called eight other witnesses who testified in detail as to their observation of testatrix, and each gave the opinion that testatrix was of unsound mind. The statement of facts is 636 pages and the question as to sanity of the testatrix was fully developed by both sides. The equivalent of the excluded testimony and much more was actually admitted in evidence. We are unable to say that the error of the trial court in excluding the testimony of these two witnesses, is shown to have probably affected the verdict. Mrs. Baird’s Bread Co. v. Hearn, 157 Tex. 159, 300 S.W.2d 646. The points are overruled.

Affirmed.


author: PARKER, Justice. STEPHENSON, Justice.

text:
    The AGRICULTURAL INSURANCE COMPANY, Appellant, v. Henry Harold DRYDEN, Appellee.
    No. 6756.
    Court of Civil Appeals of Texas. Beaumont.
    March 18, 1965.
    Rehearing Denied April 7, 1965.

      Orgain, Bell & Tucker, Beaumont, for appellant.
    W. E. Dryden, W. E. Townsley, Beaumont, for appellee.
   PARKER, Justice.

This is a workmen’s compensation suit tried before a jury in the district court of Orange County, Texas. Judgment was entered upon the jury verdict in favor of the plaintiff, Henry Harold Dryden, against The Agricultural Insurance Company. Henry Harold Dryden will be referred to as appellee. The Agricultural Insurance Company will be referred to as appellant.

Under the facts, appellant contends as a matter of law that appellee was not acting in the course and scope of his employment and in the furtherance of his employer’s business as defined by the Compensation Act at the time that he sustained the injuries made the basis of this suit. It also questions the sufficiency of the evidence to sustain the jury’s finding to the contrary. Furthermore, it asserts error of the trial court in submitting in the definition of “course of employment” the following:

“Provided an injury is sustained in the course of employment where an employee sustains an injury while going to or. returning from his place of employment or his place of residence, he either undertakes a special mission at the direction of the employer or performs a service in the furtherance of his employer’s business with the express or implied approval of his employer.”

This is discussed hereinafter.

In answer to special issues the jury found that appellee sustained an accidental injury on or about July 17, 1962, while in the course of his employment with Allen Fon-tenot, his employer. Other findings by the jury are not attacked by appellant in this proceeding. It is only the finding by the jury that the plaintiff sustained the injury in the course of his employment that appellant contends is without support in the evidence or the evidence is insufficient to support same.

The following statutory law applicable to injuries sustained by an employee while on public streets and highways, which law was included in the court’s charge, together with a statement of the substance of the evidence will_ be determinative of appellant’s contentions:

Article 8309, Sec. 1, Vernon’s Ann.Civ. St., provides that the term “ ‘injury sustained in the course of employment’ shall * * * include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the- affairs or business of his employer whether upon the employer’s premises or elsewhere.”

Section lb of said Article was enacted by the legislature in 1957 and reads as follows:

“Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

There is evidence as follows: On July 17, 1962, appellee was employed by Allen Fontenot as foreman (pusher) of a carpenter crew doing residential construction in Jefferson County, Texas. On the day before, this crew had completed construction work on a jobsite west of Beaumont. About 5:15 a. m. on the day of the accident, July 17, 1962, appellee left his home near Evadale, Texas, in his 1962 Corvair to go to the new jobsite in Nederland, Texas. In the front end of the Corvair he carried tools from the old jobsite belonging to his employer weighing some 180 to 200 pounds to be used on the new job that day at Nederland, Texas. As foreman of the crew, he stored these tools and delivered them to the jobsite. He left home so as to arrive at the place of work 15 or 20 minutes before work time for the crew in order that the tools could be removed from the Cor-vair and available for use by the carpenters when their time of work commenced. Such responsibility and duty required ap-pellee to leave home earlier than he would have for the sole purpose of carrying himself to the jobsite. Appellee had supervisory authority and was required to carry his employer’s power tools back and forth in his car, for which combined duties he was paid an extra 25f! an hour by his employer. He was working for his employer on the trip. There was no place to store the tools on the prior jobsite or on the new jobsite.

The car was owned by appellee. The employer furnished no transportation, paid no expenses other than that part in the extra wages, nor did the employer give any instructions as to what route plaintiff should use in returning to and from work. Ap-pellee was going on the shortest path from his home to the new jobsite when the accident occurred. Union rules required all men to be on the job early enough so that working equipment and tools could be obtained and available for starting to work when ordinary work time began. En route to the jobsite at Nederland with his employer’s tools, appellee’s Corvair turned over when appellee suddenly swerved his car to avoid hitting a dog which had run out into the highway in front of him. The shifting of his employer’s tools in the Cor-vair was a producing cause of the accident. Appellee was taken from the wreckage and moved by ambulance to the Baptist Hospital in Beaumont where he was hospitalized with a broken back. At that time, appellee’s employer had four jobs with four different crews, each of which had a foreman, which made it impossible for appel-lee’s employer to care for his own tools and deliver same to the various jobsites each morning. In transporting his employer’s tools, appellee necessarily had to have a vehicle adequate to store and transport his employer’s tools and equipment. If appellee had refused or failed to deliver the tools as directed by his employer, the other carpenters on the job would have had nothing with which to work and appellee would have been fired. Appellee testified that he did not store and deliver the tools as a favor, that such duty was a part of his work and responsibility as foreman and part of the extra compensation paid him was for taking care of and delivering the employer’s tools to the jobsite.

Viewing the evidence and the reasonable inferences to be drawn therefrom most favorably in support of the jury’s findings, we are of the opinion that there is evidence of probative force in the record that ap-pellee’s trip at the time of his accident was in the furtherance of appellant’s business, in the performance of duties imposed by his contract of employment and in the course of his employment.

True, appellee was traveling in furtherance of his private affairs, but in his duties as a foreman he was also charged with the duty of delivering the tools to the jobsite, private affairs to the contrary notwithstanding. Transportation for appellee was not furnished as a part of the contract of employment but transportation of the tools was paid for by the employer and this work was assigned by the employer to appellee, for which appellee was paid. While appel-lee was transporting and delivering his employer’s tools to his employer’s jobsite, ap-pellee was already working although he was on his way to where he was to do other work for his employer. From the fact that the employer’s tools were to be at the new jobsite on that day, available for use by all employees, the jury was justified in concluding that having such tools at the new jobsite was reasonably essential to work on the new jobsite so that the employer’s work would proceed and the travel by the appellee was in furtherance of his employer’s business.

Now, would the trip not have been made had there been no affairs of appellant to be furthered? Again, we are of the opinion that the jury could have reasonably concluded that it would not have. The nature of appellant’s work depended greatly upon the use of the tools in appellee’s custody. They were power tools, such as carpenters ordinarily use on a job. On that day the duties and useful employment of appellee and his co-workers depended on delivery and use of the tools. The jury could have very reasonably concluded that appellee would not have made a useless trip to the jobsite and left the tools at his home. The evidence compels the conclusion that but for the delivery of the tools the trip would have been an empty and futile gesture. The jury heard the evidence and saw the witnesses as they testified, including ap-pellee. From his testimony they could infer and conclude that appellee, as foreman charged with delivering tools to the jobsite, would not elect to stay at home and fail to deliver these tools to the job-site even though there had been no personal or private affairs of appellee to be furthered by said trip and, further, that “said trip would not have been made had there been no affairs or business of his employer to be furthered by said trip.” From the evidence, the jury was justified in finding appellee was injured in the course of his employment.

Appellant’s points of error contending that the trial court erred in overruling defendant’s motion for instructed verdict and that there was no evidence supporting an affirmative finding of the jury that appellee sustained his injury in the course of his employment are overruled.

Considering all the evidence, such findings of the jury are not so against the great weight and preponderance of the evidence as to be manifestly unjust or clearly wrong. Appellant’s point of error urging that there was insufficient evidence to support the jury’s finding that appellee was injured while in the course of his employment is overruled.

We return to the appellant’s points of error urging that the trial court erred in submitting as part of the definition of “course of employment” the exception first set out herein. Such points of error are: (1) that such definition was not in conformity with the statutory definition and (2) that the same was redundant and not applicable in the case at bar.

From the evidence, the jury was justified in finding from the evidence that appellee did undertake a special mission at the direction of his employer and was performing a service in the furtherance of his employer’s business with the express or implied approval of his employer — namely, carrying tools required for work on the job.

The charge of the trial court contained all of Art. 8309, sec. lb, “Transportation or travel as basis for claim for injury”, added Acts 1957, 55th Leg., p. 1186, ch. 397, sec. 3, followed by the above quoted part of the definition of “course of employment” approved in Jecker v. Western Alliance Ins. Co., 369 S.W.2d 776 (S.Ct.1963), holding that there was no intention on the part of the legislature to abolish such exception above expressed to the general rule that an injury occurring in the use of the public highways in going to and from the place of employment is non-com-pensable. Other pertinent opinions construing Sections 1 and lb are found in the cases of Jecker v. Western Alliance Ins. Co., supra, and the same case on remand reported in 371 S.W.2d 904; American General Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370 (S.Ct.1957); Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (S.Ct.1963); and Janak v. Texas Employers’ Ins. Ass’n, 381 S.W.2d 176 (S.Ct.1964).

Appellant’s points of error complaining of the definition contained in the court’s charge setting forth the above quoted exception to the general rule that an injury occurring in the use of the public highways going to and from the place of employment as being noncompensable was approved in Jecker v. Western Alliance Ins. Co., supra, is applicable in this case, and such points of error are overruled.

Judgment of the trial court is affirmed.

STEPHENSON, Justice.

I respectfully dissent. There is no evidence that appellee would not have made the trip from his home to the place where he was to work if he had not had the tools in his car. I think the evidence established as a matter of law that appellee would have made the same trip, along the same route regardless of the presence of the tools in his car. Further, this is not a case of “deviation” as in the Janak Case, supra. The additional 25(; per hour appel-lee was paid was not for time spent driving from home to work, but began only after appellee arrived at work.


author: WERLEIN, Justice.

text:
    HARRIS COUNTY, Texas, et al., Appellants, v. War. Wood HUNT, Appellee.
    No. 14519.
    Court of Civil Appeals of Texas. Houston.
    March 18, 1965.

      Joe Resweber, County Atty., Charles F. Mitchell, Robert R. Randolph, Asst. County Attys., Houston, for appellants.
    Overton B. Banks, Houston, for appel-lee.
   WERLEIN, Justice.

This suit was brought by appellee, War. Wood Hunt, for a declaratory judgment declaring that he is the official court reporter of County Civil Court at Law No. 1, of Harris County, Texas, serving under an appointment in full force and effect, and also for a writ of mandamus compelling payment of monthly installments of his salary which have been withheld since January 1, 1964, on the order of appellant, the Commissioners Court of Harris County, Texas. This appeal is from the judgment of the court granting appellee’s motion for summary judgment and writ of mandamus.

Appellee alleged in his sworn petition, among other things, that he is now serving and has served continuously since January 1, 1958, as official court reporter of County Civil Court at Law No. 1, Harris County, Texas, under appointments made by the Honorable Judge of said Court on January 1, 1958, and January 2, 1963, respectively evidenced by orders entered in the Minutes of said Court, which appointment of January 2, 1963 shall, in accordance with Article 2326n, Vernon’s Annotated Civil Statutes, continue in effect from year to year unless otherwise ordered by the Judge of said Court. The Judge of said Court has never ordered the termination of appellee’s position as official court reporter of said Court, and hence under the provisions of said Article, appellee’s appointment as such official court reporter is in full force and effect and will continue in effect from year to year unless otherwise ordered by the Judge of said Court. Appellee’s salary as official court reporter of said Court is the sum of $10,600.00 annually, payable in monthly installments of $883.33 each.

Appellee also alleged that on September 27, 1963, he became 70 years of age, and on December 16, 1963 the District Judges of Harris County, Texas, purporting to act under authority of Section 6 of Article 2372h, V.A.C.S., entered an order of record in Vol. 282, p. 826, Minutes of the District Courts of Harris County, Texas, prescribing and making applicable to court reporters appointed and employed in the various courts of Harris County, Texas, certain personnel regulations (the revised regulations being approved to become effective January 1, 1959), including mandatory retirement provisions and retirement benefits, theretofore adopted by the Commissioners Court of Harris County, Texas, and made applicable to County and Flood Control District employees, such retirement provisions including the following:

“Any person employed prior to July 1, 1957, who has not become a member of the retirement system and has attained age 50 or over on July 1, 1957, shall be retired when he has attained age 70.
“Any person employed after July 1, 1957, whether a member of the retirement system or not, shall be retired when he has attained age 65.”

On December 19, 1963, the Commissioners Court of Harris County entered the following order:

“In connection with the services of Mr. War. Wood Hunt as Court Reporter in Judge Madison Rayburn’s County Court at Law, this Commissioners Court now has official notice of the action by the District Judges of Harris County, Texas, on December 16, 1963, adopting certain regulations as applied to all court reporters in the Courts of Harris County,
“Therefore, upon motion of the Commissioner Sayers, seconded by Commissioner Lyons, duly put and carried, it is ordered that Judge Madison Rayburn be sent a certified copy of this order, a copy to be sent to Mr. War. Wood Hunt, to the effect that the December 16, 1963, orders of the judges of the district courts will be complied with, and no salary will be paid to Mr. War. Wood Hunt after December 31, 1963.”

Since January 1, 1964, appellee under the direction of the Judge of said County Civil Court at Law No. 1 of Harris County, has served as official court reporter, but his invoices to Harris County, Texas, for the January and February, 1964, installments of his annual salary, each approved by the Judge of said Court and presented to the Auditor of Harris County for payment, in accordance with past procedure, have not been paid. Appellee further alleged in effect that said Auditor and the Commissioners Court have taken the position that his appointment as official court reporter has terminated, and that he has been forcibly retired as of January 1, 1964, although he has never entered into any contract which could subject him to the aforesaid retirement regulations, and such regulations are arbitrary and without any statutory authorization and violative of Article 6252-14, V.A.C.S., providing in effect that no person who is a citizen of this State shall be denied employment solely because of age, and that the aforesaid order of the defendant District Judges is violative of said Article and also of Section 6 of Article 2372h, which provides, with respect to the. appointment and discharge of court reporters, the following:

“Nothing contained herein shall he construed as authorizing any change in regard to the time, method and manner of appointment or discharge of juvenile and probation officers, or the County Auditor or his assistants, or court reporters, or as authorizing any change in the number thereof or the salaries to be paid, it being the intention of the Legislature that all of such matters shall continue to be regulated by the Statutes applying thereto.”

Appellee further alleged that he had never been invited to join any pension or retirement plan of Harris County, or the State of Texas, and has not desired to join any such plan or made application therefor, and has not been offered a pension retirement and does not intend to join or attempt to join any such retirement plan of Harris County, and that a declaratory judgment should be entered by the Court determining that the orders of the Commissioners Court and the District Judges of Harris County, Texas, are of no effect insofar as they attempt forcibly to terminate ap-pellee’s employment as official court reporter and refuse to pay his salary solely because of age.

In his motion for summary judgment, appellee has adopted the allegations of his sworn pleading, attached the affidavit of Judge Madison Rayburn, and attached as exhibits certified copies of the orders referred to in his verified petition and in the affidavit of Judge Rayburn, and certified copies of oaths of office taken by appellee. He asserts that such pleadings together with his supporting affidavits and attached exhibits of said orders show there is no genuine issue as to any material fact, and that he was entitled as a matter of law to summary judgment and writ of mandamus as prayed for.

The law is well settled that in passing upon a motion for summary judgment, all doubts as to the existence of a genuine issue of fact must be resolved against the moving party, and the opposite party is entitled to the benefit of every reasonable inference which can properly be drawn in his favor. Womack v. Allstate Insurance Company, 1957, 156 Tex. 467, 296 S.W.2d 233; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557.

Appellants assert that the trial court erred in granting the summary judgment because appellee had failed to negate the existence of facts alleged in their plea of estoppel to the effect that appellee had previously accepted hospitalization insurance benefits bought and paid for by Harris County under and by virtue of its personnel regulations, with full knowledge of the terms and provisions contained therein, and hence appellee should be estopped from denying the validity of such regulations as are made applicable to him. Appellants rely on the general rule that one who accepts the benefits of a contract or transaction that he has entered into, must also assume its burdens. Terrazas v. Carroll, Tex.Civ.App., 277 S.W.2d 274; W. H. Putegnat Co. v. Fidelity & Deposit Co. of Maryland, Tex.Com.App.1930, 29 S.W.2d 1004; Kellner v. Blaschke, Tex.Civ.App., 334 S.W.2d 315, writ ref., n.r.e.

Appellants have conceded in their brief that at the time of appellee’s employment as official court reporter for County Civil Court at Law No. 1, he was too old to become a member of the Harris County retirement system. The trial court in its judgment found and declared that appellee had never been subject, by contract or otherwise, to the mandatory retirement regulations of the Commissioners Court of Harris County, Texas, since at the time of his employment in issue he was too old to come within the provisions of the Retirement Act as amended by the District Judges of Harris County, and such provisions do not apply to him; that the District Judges were authorized to pass the regulations they did pass and enter, and such regulations are valid, however the same do not apply to appellee.

It is our view and since appellee was too old at the time of his employment to become a member of the retirement system provided for in the personnel regulations governing the insurance, hospitalization benefits, retirement, and various other matters affecting employees of the County, that the acceptance by him of hospitalization insurance benefits, if he did accept the same, would not estop him from denying the validity of the regulations and forced retirement as applied to him. We see no connection between hospitalization insurance and maximum age regulations in view of Article 2326n which governs the duration of employment, discharge and compensation of appellee. Sec. 1 of Art. 2326n reads as follows:

“In all counties in the State of Texas having a population of one million (1,000,000) or more, according to the last preceding Federal Census, the judge of each district court, civil or criminal, and the judge of each county court at law, civil or criminal, shall appoint an official shorthand reporter for such court. Said appointment shall be evidenced by an order entered in the minutes of each such court. Such appointment, when once made, shall continue in effect from year to year, unless otherwise ordered by the judge of the court in which such reporter serves. The compensation of such reporters shall be fixed by the commissioners court after the recommendation of the judge of the court in which such reporter serves at not less than Six Thousand ($6,000) per annum and not more than Ten Thousand Six Hundred Dollars ($10,600) per annum, in addition to compensation for transcripts, statements of facts and other fees. As amended Acts 1963, 58th Leg., p. 658, ch. 242, § 1.”

This Article repeals all laws and parts of laws in conflict with it to the extent of such conflict. It clearly provides that the appointment when once made, shall continue in effect from year to year unless otherwise ordered by the judge of the court in which such reporter serves. This mandatory provision is not restricted by any age limitation. The appointment of the court reporter and the regulations concerning the duration of his service are thus placed with the judge of the court in which the official court reporter serves. Apparently this fact was recognized by the Commissioners Court of Harris County as evidenced by the fact that no steps were taken to retire appellee at age 65, although the personnel regulations provide that any person employed after July 1, 1957, whether a member of the retirement system or not, shall be retired when he has attained age 65.

The personnel regulations of Harris County provide, among other things:

“Because the appointment of, and regulations concerning, * * * Reporters are by law placed with the District Judges, these rules are not prescribed for them, except to the extent authorized by the District Judges.”

The District Judges of Harris County on December 16, 1963, ordered that said personnel regulations be made applicable to the Court Reporters appointed and employed by the various courts of Harris County, Texas, save and except as to certain matters not pertinent hereto. This order was made pursuant to Art.. 2372h, V.A.C.S. Art. 2372h, Sec. 6, provides:

“In like manner, Court Reporters in the various courts in such counties shall be subject to the provisions of such regulations to the extent that a majority of the District Judges of such counties in meeting assembled may determine by a vote of the majority present; an order to be entered in the minutes of each of the courts of such Judges and a certified copy thereof to be supplied to the Commissioners Court. * * * Nothing contained herein shall be construed as authorizing any change in regard to the time, method and manner of appointment or discharge of * * * Court Reporters, or as authorizing any change in the number thereof or the salaries to be paid, it being the intention of the Legislature that all such matters shall continue to be regulated by the statutes applying thereto.”

It seems clear that Art. 2372h, Sec. 6, applies to District Courts and Reporters serving in District Courts, whose appointments are placed by law with the District Judges, and not to Reporters such as appellee whose appointment is placed by law with the Judge of the County Court at Law. This is corroborated by the provision that the order of the District Judges is to be entered in the minutes of each of the courts of such Judges. The trial court found that the order of the District Judges was valid but that it did not apply to appellee. Even if such provision could possibly be construed to include one in the position of appellee,, it still would not override the later statutory Article passed in 1959 which relegates to the Judge of the County Civil Court at Law the authority and prerogative of continuing at his will the employment of his court reporter.

Appellants contend that the trial court erred in granting the summary judgment for the reason that appellee did not establish that he had taken the oath required of official court reporters by Article 2322, V.A.C.S., which provides:

“Said reporter in addition to taking the official oath shall subscribe to an oath to be administered to him by the district clerk to the effect that he will well and truly in an impartial manner keep a correct record of all evidence offered in each case reported by him, together with the objections and exceptions made by the parties to each suit, and the rulings and remarks of the court in passing upon the admissibility of testimony.”

Appellee took the official oath prescribed by Article XVI, Sec. 1, of the Constitution of Texas, Vernon’s Ann.St. on January 1, 1958, and also on January 2, 1963. In such oaths he swore to faithfully and impartially execute and perform the duties of the office of Court Reporter of the County Civil Court at Law of Harris County, State of Texas, etc. The oaths taken do not contain the provisions contained in the oath prescribed in Article 2322, V.A.C.S. In taking such oaths, however, appellee swore to perform the duties of the office of official court reporter, and these are enumerated in Article 2324, V.A.C.S., and include the duties referred to in Article 2322. The oath provided for in Art. 2322, V.A.C.S., is to be administered by the District Clerk. If it be construed to apply to reporters serving in the County Courts at Law it would seem that this Article should have provided as to them that the oath should be administered by the County Clerk rather than the District Clerk.

In any event, appellee was at least a de facto officer, and as such he could recover compensation for services that he rendered although he could not recover for services which were not rendered. City of Houston v. Albers, 33 Tex.Civ.App. 70, 73 S.W. 1084; Glenn v. Trenton, Tex.Civ.App., 256 S.W. 631; 47 Tex.Jur.2d, p. 323, Sec. 63. In the Court’s judgment it is provided that mandamus issue commanding the Commissioners Court and Auditor of Harris County to forthwith pay to appellee over due installments of plaintiff’s annual salary and to pay, in accordance with established procedure, all future installments of such annual salary payable to plaintiff as official court reporter of County Civil Court at Law No. 1 of Harris County, Texas, unless and until otherwise ordered by the Judge of County Civil Court at Law No. 1 of Harris County, Texas. This mandamus order contemplates the payment to appellee of compensation for services rendered during the employment of appellee in such capacity, and does not provide for payment for services which may not be rendered. It is our view that appellee is entitled to recover the prescribed monthly salary for his services as and when the same are rendered and not otherwise. We know of nothing that would prevent him from now giving the oath prescribed by Art. 2322, V.A.C.S.

By recitations in the orders of the Judge of the County Civil Court at Law No. 1, dated January 1, 1958 and January 2, 1963, which are attached to the motion for summary judgment, appellee established that he had taken the tests required by Article 2321, V.A.C.S., and was thus qualified to act as an official court reporter in such Court.

Appellants assert that the trial court erred in granting appellee’s motion for summary judgment after entering an order staying the taking of appellee’s deposition because such action denied appellants an opportunity to discover whether there were any further genuine issues of material facts. Appellants requested the District Clerk to issue a commission to take appellee’s deposition on June 19, 1964, which was three days before the case was set for trial although appellee’s suit was filed on March 19, 1964. Appellee filed a motion to stay the taking of the deposition, alleging, among other things, that the summons served on him required him to produce all his financial records and accounts of fees received by him for transcribing and preparing statements of fact concerning trials in the County Civil Court at Law No. 1, and also the 129th Judicial District Court of Harris County, and that the cross-claim of appellants was so unprecedented and so timed, as to justify the belief that appellants’ cross-claim and proposed deposition had as their objective the harassment, oppression and vilification of appellee and the delay of an adjudication of appellee’s claim now before the court on motion for summary judgment. On June 15, 1964 the court entered an order staying the taking of appellee’s deposition, subject to further orders of the court, and later, on July 6, 1964, the court on its own motion set aside its order staying the taking of such deposition. At the same time, the court granted appellee’s motion for summary judgment and entered its judgment on July 13, 1964.

Rule 186b, Texas Rules of Civil Procedure, provides in part:

“After notice is served for taking a deposition on written interrogatories or by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court may make an order that the deposition shall not be taken * * * ”

Appellants objected and excepted to the Court’s order staying the taking of the deposition of appellee in an instrument filed July 6, 1964, in which it is stated that one of the reasons for seeking the taking of a deposition was to discover whether there were any genuine issues of fact, and that it was necessary to take appellee’s deposition touching on facts and circumstances with respect to appellants’ plea of estoppel, and their cross-action and counter-claim against appellee for fees retained while acting as court reporter for various courts in Harris County, and also because such order of the court staying the taking of the deposition was entered without giving appellants sufficient time to oppose such motion.

Appellee’s motion for summary judgment, with the various documents, copies of orders and affidavits attached thereto, was filed on May 4, 1964. Appellants had ample time prior to June to apply for the issuance of a commission to take the deposition of appellee at a date more than three days before the case was set for hearing. Furthermore, as hereinabove stated, under the peculiar facts of this case, appellants’ plea of estoppel was not such as would estop appellee from claiming that the personnel regulations of Harris County did not apply to him. The counter-claim of appellants against appellee for alleged fees received by appellee for transcribing shorthand notes, taken in the course of trials at which he had served as official court reporter, was severed from appellee’s cause of action for salary for acting as official court reporter.

The determination of whether a deposition should or should not be taken is within the sound discretion of the trial court, and before his ruling may be set aside there must be shown a clear abuse of discretion. Meyer v. Tunks, Tex.Sup.1962, 360 S.W.2d 518. The court in the Meyer case, in construing Rule 186b, T.R.C.P., cited National Bondholders Corporation v. McClintic, 4 Cir., 1938, 99 F.2d 595, in which it is held: “ * * * The determination of the existence of the sufficiency of the cause against taking the deposition in this case was for the district judge in his judicial discretion.” We cannot say that the court m the instant case clearly abused its discretion in staying the taking of the deposition of appellee.

It is appellants’ contention that the trial court erred in severing their counter-claim from appellee’s cause of action for salary, because appellants’ counter-claim was a compulsory counter-claim under Rule 97(a), T.R.C.P. Appellants assert that appellee’s claim for salary for acting as official court reporter and their counter-claim for failure to account for fees, arose out of the transaction and occurrence that was the subject matter of appellee’s suit, and that there need not be an absolute identity or factual background between the two claims but only a logical relationship need exist. We would be inclined to agree with appellants if their counter-claim constituted a good cause of action. This it did not.

Appellee takes the position that the trial court erred in severing the cross-action or counter-claim of appellants for the reason that such counter-claim is unmeri-torious and untenable and should have been dismissed on appellee’s motion. If there was any error on the part of the court, it was in not dismissing appellants’ counterclaim. Appellee’s lawful compensation consisting of his statutory salary in addition to compensation for transcripts, statements of fact, and other fees, is governed by Article 2326n which applies to official court reporters in Harris County, Texas, and which repeals all laws in conflict therewith to the extent of such conflict. Appellants assert that such Article insofar as it gives court reporters in addition to their salary, compensation for transcripts, statements of fact, and other fees, is invalid and in violation of Article XVI, Sec. 61, of the Constitution of Texas, which in effect abolishes fees of office in certain cases and requires all fees earned by District, County, and precinct officers to be paid into the County treasury.

It is our view that appellee was never an officer within the meaning of Article XVI, Sec. 61, of the Texas Constitution, and hence he is entitled as a matter of law to the fees which he has made and retained. Tom Green County v. Proffitt, Tex.Civ.App.1946, 195 S.W.2d 845; Robertson v. Ellis County, 38 Tex.Civ.App. 146, 84 S.W. 1097; Lightfoot v. Lane, 1911, 104 Tex. 447, 140 S.W. 89. Even if appellee was an officer within the purview of Article XVI, Sec. 61, of the Texas Constitution, appellants would not be entitled to recover anything from him by virtue of their counterclaim, since he retained the fees sued for in good faith under the belief that he was entitled thereto by virtue of Article 2326n which has never been held to be invalid or unconstitutional. In the recent case of Wichita County v. Robinson, 1955, 155 Tex. 1, 276 S.W.2d 509, our Supreme Court, in a well considered opinion written by Justice Culver, held that the County was not entitled to recover from the respondent the compensation paid to him in reliance upon the validity of the law and on the advice of the Attorney General. The Court said:

“The rule that unconstitutional law is a nullity is not applied to work hardship and impose liability on a public official who in performance of duty has acted in good faith relying on the validity of a statute before it has been declared invalid. 16 C.J.S. Constitutional Law § 101c; Golden v. Thompson, 194 Miss. 241, 11 So.2d 906; O’Shields v. Caldwell, 207 S.C. 194, 35 S.E.2d 184; Allen v. Holbrook, 103 Utah 319, 135 P.2d 242.”

The foregoing paragraph disposes of appellants’ contention that the trial court erred in granting the summary judgment and directing the Commissioners Court and County Auditor of Harris County to issue warrants for appellee’s salary in view of Article 3912e, Sec. 19(m)-, V.A.C.S., which provides:

“All moneys drawn from said Officers’ Salary Funds shall be paid out only on warrants approved by the county auditor. No warrants shall be drawn on said fund in favor of any person indebted to the State, county, or to said fund or in favor of his agent or assignee until such debt is paid, when notice of such indebtedness has been filed with the county auditor.”

We hold that the counter-claim of appellants fails to show as a matter of law any indebtedness owing by appellee to the County since appellee is not an officer within the meaning of Article XVI. Sec. 61, of the Constitution of Texas. We also hold as a matter of law that the County has asserted in such counter-claim no valid collectible claim for indebtedness against appellee which would prevent compliance with the Court’s order requiring payment of his salary.

We have concluded that appellants have failed to raise any issue of material fact and that the trial court’s judgment should be affirmed.

Judgment affirmed.