text:
    Larry DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 39437.
    Court of Criminal Appeals of Texas.
    March 23, 1966.

      Herbert H. Landau, Dallas, for appellant.
    Henry Wade, Dist. Atty., Harryette Bercu, Curtis Glover and W. John Allison, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for felony theft; the punishment was assessed at seven years.

Edgar McKinney testified that on May 12, 1965, he was the manager of the Buster Lyon Auto Company which was a used automobile business, and when Lyon was away he had the care, custody, and control of the business which was located at the corner of Main and Oakland streets; that there were two entrances which were closed at night by locking the chains across the entrances; that the business was closed about 8 p. m. Wednesday, May 12, and when he returned to the lot about 7:30 or 8 a. m. the next morning the chain across the entrance on Oakland was down and a light blue Falcon four-door sedan of the market value of $695 was missing; and that it had been taken from his possession and without his consent. On cross-examination he stated that he was not present at the lot when it was taken.

Benny Scott testified that when he arrived at the corner of Main and Oakland streets about midnight May 12, he saw a light blue Falcon headed against the curb on Oakland across the street from the used car lot; that he saw a man stooping in front of an automobile on the used car lot, and as he approached with his flashlight he saw an officer on the lot. While testifying he identified the appellant as the man he saw in front of the car and then crawl underneath it; that he showed the officer where appellant was and the officer took him into custody. He further testified that he never saw anyone in the Falcon and that its motor was running.

Officer Forreston testified that as he waited for a red traffic light at Main and Oakland he saw a light blue Falcon moving slowly across Lyon’s used car lot. As he drove by the driveway of the car lot on Oakland after the light changed, he saw a Falcon coming across the lot and a person opened the door and jumped out of the car, and the car continued moving on the lot, broke the chain across the driveway and continued across the street with no one in it and stopped against the curb on Oakland. At this time he saw a man behind the second car from the driveway who crawled underneath a car. Forreston identified the appellant as the man he took from under the car. The ignition keys were in the Falcon.

The appellant testified that after drinking beer and wine until about 10:30 p. m. he started home but because he was drunk, stopped by the car lot and crawled underneath a car where he had been about an hour when the officer awoke him; that he never jumped from the moving car or took it from the lot.

Appellant contends that the evidence is insufficient to support the conviction on the ground that Edgar McKinney, the alleged owner, did not have the control, care, and management of the alleged stolen automobile.

Edgar McKinney testified that he was the manager of the Lyon Auto Company and had the care, custody, and control of the business when Lyon was away; that he had worked May 12, 1965, and the chains were locked across the driveways Wednesday night, and when he arrived at the car lot about 7:30 or 8 a. m. Thursday morning he found the Falcon missing; and he testified that the Falcon was taken from his possession and without his consent. This evidence was sufficient to authorize the jury to find that he had the control, care, and management of the Falcon at the time it was taken as alleged.

By formal bill reversible error is urged on the ground that while “defense counsel was making his argument to the jury, and made the following statement:

‘Mr.?. McKinney, the state’s witness is not shown to have the ownership or custody of the auto lot. Mr. McKinney said that he has custody when Lyon is away, and McKinney said that Lyon was not away that day.’

To which argument in substance, State’s counsel objected with the Court sustaining said objection, to which ruling the Defense counsel excepted.”

The entire argument is not brought forward in the record. The bill fails to certify that it contains all the argument on the question raised or that no other argument of the same or similar nature was made without objection. The bill does not present error.

The evidence is sufficient to support the conviction. Esparza v. State, Tex.Cr.App., 367 S.W.2d 861.

The judgment is affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

author: BELCHER, Commissioner.

license: Public Domain

text:
    Ora Johnson SLADE, Appellant, v. The STATE of Texas, Appellee.
    No. 39330.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1966.
    Rehearing Denied April 6, 1966.
    Wm. H. Hamblen, Edna, for appellant.
    Wiley Cheatham, Dist. Atty., Cuero, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for assault with intent to murder; the punishment, fifteen years.

On a former appeal this cause was dismissed in No. 38,462, for want of a sentence.

No statement of facts containing all of the evidence adduced upon the main trial accompanies the record.

The one formal bill of exceptions complains of certain questions and answers during the cross-examination of appellant’s character witnesses. The partial statement of facts reflects the same complaint.

In the absence of a complete statement of facts, we are not in position to review questions pertaining to the admissibility of evidence. 5 Tex.Jur.(2) 254, Sec. 160.

The indictment, and other matters of procedure appear regular, hence, nothing is presented for review.

The judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Judge.

text:
    Louise CARTER, Appellant, v. The STATE of Texas, Appellee.
    No. 39121.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.
    Rehearing Denied April 6, 1966.
    Leland D. Sutton, Abilene (On Appeal Only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is the unlawful possession of whisky in a dry area for the purpose of sale; the punishment assessed by the court on a plea of guilty, a fine of $100.

Appellant filed a motion for new trial, the sole ground being that “the judgment of conviction is not supported by the evidence and is contrary to the laws made and provided in such cases.”

Upon a plea of guilty in a misdemeanor case the defendant may waive a jury and the punishment may be assessed by the court, either upon or without evidence, at the discretion of the court. Art. 518 Vernon’s Ann.C.C.P.; Parker v. State, 169 Tex.Cr.R. 583, 336 S.W.2d 431; Williams v. State, Tex.Cr.App., 274 S.W.2d 548.

Appellant concedes that in view of Art. 518 V.A.C.C.P. no evidence was required to support the conviction. It is contended, however, that the evidence adduced at the hearing on her motion for new trial shows that she did not in fact possess whisky, and that if she did actually possess any alcoholic beverage at all, it was beer.

There is neither contention nor evidence in the record to suggest that appellant’s plea of guilty was in any way coerced. Also, we do not regard the testimony of the sheriff at the hearing on motion for new trial as requiring a finding by the trial court that appellant did not in fact possess whisky. He testified that he signed the complaint and that he did not seize any whisky but did seize beer. This was not proof that appellant did not in fact possess whisky, as she confessed by her plea of guilty.

The judgment is affirmed.


author: WERLEIN, Justice.

text:
    Raymond W. DIETRICH, Appellant, v. F. R. YOUNG COMPANY et al., Appellees.
    No. 14749.
    Court of Civil Appeals of Texas. Houston.
    March 3, 1966.
    Rehearing Denied March 24, 1966.

      Miller & Gann, Wm. Mac Gann, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Jim M. Perdue, Houston, for ap-pellees.
   WERLEIN, Justice.

This is an appeal from an order of the trial court granting a summary judgment. Appellant, Raymond W. Dietrich, sued F. R. Young Company and William A. Jackson, to recover damages for personal injuries sustained by him when an automobile owned and driven by Jackson, and in which appellant was riding, overturned when Jackson failed to negotiate a curve on a road between Richmond and Sealy, Texas, shortly before midnight, March 6, 1963.

Appellant alleged that his injuries were proximately caused by various negligent acts and omissions on the part of Jackson, who was acting in the course and scope of his agency for appellee, F. R. Young Company. He further alleged that at the time of the accident he was a “business invitee” of appellees, and that the trip during which the accident occurred was in furtherance of the business relationship between ap-pellees and appellant and appellant’s employer, from which appellees expected to receive tangible benefits of a pecuniary nature.

Appellees filed a pleading of general denial, and also a motion for summary judgment in which they stated that on the occasion in question appellant and Jackson were engaged in an enterprise which was primarily, if not solely, social; that there was a constant course of business dealings between appellant and Jackson; that there were no specific dealings between the parties on March 6, 1963, and at the time of the accident in question appellant was a guest in Jackson’s automobile and was neither a paying passenger nor a business invitee; and that since no gross negligence was pleaded or relied upon, appellant could not recover. Article 6701b, Vernon’s Annotated Texas Statutes.

Appellant asserts that the court erred in rendering summary judgment because there were genuine issues of material fact as to whether appellant was a business invitee or a guest at the time of the accident. Appellant and Jackson in their depositions gave substantially the same testimony with respect to what happened on the occasion in question. Jackson was the Secretary of F. R. Young Company, a corporation, and worked on a salary and for a share in the profits of such company, and he had a car allowance. Appellant worked for Barber, Inc., on a salary, and was the purchasing agent for said company which was engaged in the business of commercial building. The F. R. Young Company was engaged in the business of selling commercial supplies and materials, especially heating and air-conditioning equipment. Jackson’s work for the corporation consisted in part of contacting consulting engineers and selling to contractors. He considered entertaining customers as part of his job, and had entertained appellant as a customer in the past and subsequent to the accident. Barber, Inc. was one of F. R. Young Company’s better customers, doing a business possibly averaging $30,000.00 to $40,000.00 a year.

Appellant and appellee Jackson had known each other over a period of some 12 or 15 years, and were friends. Each of them was married and had children, and each had met the other’s family. For a number of years there had been a constant course of business dealings between appellant and Jackson for their respective companies, and since the accident and the filing of this suit the two had continued to transact business. In the Spring of 1963 Barber, Inc. was working on a contract that had been awarded on the Springwood Senior High School and was purchasing some equipment from the F. R. Young Company, which purchase was being made by appellant through Jackson. Appellant testified in his deposition that the material and equipment which was to be purchased and the purchase price had been agreed upon prior to March 6, 1963, the date of the accident, although the purchase orders had not been signed.

Sometime during the day of the accident appellant and Jackson were talking to each other and Jackson said in connection with a products show and cocktail party that was being held by Fishbank & Moore in the Rice Hotel, and to which each had received an invitation, “We are both going down there; I’ll come by and pick you up.” Pursuant to such arrangement, Jackson picked up appellant about 4 p. m. They stopped at the Whango Bar and had a couple of drinks and Jackson bought a pint of whiskey. They stayed in the bar about an hour and a half, or two hours, and then went to the Rice Hotel, according to appellant’s testimony. There they had some free drinks and food. Neither of them appeared to be inebriated. They were not together all the time while at the Rice but mingled with others. Appellant testified that they stayed at the Rice Hotel a little later than 10 p. m. He was asked to relate how he and Jackson decided to go to Fort Bend County where the accident occurred and the purpose of their visit. He testified:

A. Well, it was just one of those things, we just got together on, I guess, decided it was the right thing to do at the time, so we went down to Richmond * * *

He was then asked:

Q. And the purpose of the trip was, we can say generally and broadly, “pleasure ?”
A. Yes, sir.
⅜ ⅜ ⅜ ⅜ ⅜ ⅝
Q. That is what you had in mind when you left?
A. Yes, sir.

Appellant testified that he had done business continuously with the Young Company since the accident. He was asked whether he had any business dealings going on with Jackson at the time of the accident, and testified that his company had just been awarded the contract on the new Spring-wood Senior High School, and he was in the process of buying all the equipment for such job, and that he had bought some of it from Jackson for such school. He was then asked:

Q, You-all had agreed on what you were going to buy from them and the purchase price?
A. Yes, sir.
Q. And the only thing that remained was the signing of the purchase order?
A. Yes, sir.

He also said: “Well, I would probably have closed that that day, or the day before; but at any rate I had not signed the purchase orders. And while I was in the hospital my boss signed the purchase orders that I had dictated to the secretary.” He further testified:

Q. And you had reached your agreement as to what you were going to buy from the F. R. Young Company before the day of the accident?
A. Yes, sir.

Appellant also testified that the prices to be paid to F. R. Young Company and the items to be bought, with the exception of some small items, which didn’t amount to much, had been decided upon between him and Jackson before the accident occurred. There is no evidence that any definite business matters were discussed or mentioned by appellant or Jackson at any time on the trip to the Rice Hotel or from the Rice Hotel to Richmond or from there to the place where the accident occurred, although when asked if he discussed that night anything about the school job, Jackson testified:

A. Not to my knowledge.
Q. Possibly could have done and don’t remember it?
A. Possibly. And talking about various things; I mean it is very, very conceivable that we did talk about it.

It is our view that the trip to the Rice Hotel was primarily for social purposes. Both men had received invitations to attend the cocktail party at the Rice Hotel and to see the exhibits which were on display. It was the intention of both to attend the party, and they arranged to go together since each was going anyway. There, by mutual agreement, they decided to go to Richmond. The motivating purpose was solely pleasure. As appellant testified, their purpose was “generally and broadly, pleasure”.

According to appellant’s testimony the material and equipment which was to be purchased for the school job, and the purchase price therefor, had been agreed upon prior to March 6, 1963, with the exception of a few insignificant items. There was a general course of business between appellant’s employer and Jackson’s firm, and there appears to have been no reason for any further discussion concerning that job. There is nothing in the record to indicate that the trip in question and the furnishing of transportation by Jackson had anything at all to do with such purchase and sale or any contemplated purchase or sale. It is true that salesmen undertake to keep the good will of customers and prospective customers by furnishing entertainment on occasions. This alone seems to be insufficient in itself to make the customer a business invitee on all occasions when transportation is furnished for entertainment. In the instant case the transportation furnished by Jackson was not in connection with any definite tangible benefit expected to enure to him as a motivating influence for furnishing such transportation.

In Burt v. Lochausen, 1952, 151 Tex. 289, 249 S.W.2d 194, the Supreme Court quoted with approval the language used by the Court of Civil Appeals in such case [244 S.W.2d 915, 917] as follows:

“ ‘The rule established by the authorities everywhere seems to be, to remove a case from the provisions of such (guest) statutes a definite relationship must be established and a definite tangible benefit to the operator shown to have been the motivating influence for furnishing the transportation. * * *

“ ‘The benefits suggested by plaintiff are thought to be too uncertain, remote, and speculative to be definite and tangible.’ ”

As in Burt v. Lochausen, the benefits suggested by appellant in this case are too uncertain, remote and speculative. There is nothing to indicate that the trip in question was ever intended to be more than a mutual social undertaking. There is nothing to show that either party had any expectation of definite tangible benefits growing out of the trip or enuring to either party therefrom. The testimony of both men seems to negate any such motivating purpose.

In El Paso City Lines v. Sanchez, Tex.Civ.App., 306 S.W.2d 396, writ ref., n. r. e., the court said:

“It is plain to us that the main purpose of the trip to town was to get food. If the purpose had been to further discuss their business, this discussion could have been had at the tourist court even better than while riding to town. We therefore hold that the main purpose of the trip was to get food; that Sanchez rode with DeLora at his invitation and shared no part of the expense; that the discussion of their business while riding toward town was merely incidental to the trip. We consider Burt v. Lochausen * * * controlling here, although the business discussion had not been concluded as thoroughly in this case as it had in the Lochausen case.”

See also Matlock v. L. A. Hooge, Tex.Civ.App., 365 S.W.2d 386, writ ref., n. r. e.; McCarty v. Moss, Tex.Civ.App., 225 S.W. 2d 883, writ ref.; Wills v. Buchanan, Tex.Civ.App., 358 S.W.2d 727.

In the present case the undisputed testimony shows that the motivating cause of the trip, and certainly the main purpose, was mutual pleasure not connected in any way with any business transaction. No definite tangible benefit to Jackson was shown to have been the motivating influence for furnishing the transportation. In Raub v. Rowe, Tex.Civ.App., 119 S.W.2d 190, writ ref., the court quoted with approval the following statement of the Supreme Court of California in McCann v. Hoffman, 9 Cal. 2d 279, 70 P.2d 909, 912:

“ ‘The relationships which will give rise to the status of a passenger must confer a benefit of a tangible nature and are limited. * * * Therefore, where a special tangible benefit to the defendant was the motivating influence for furnishing the transportation, compensation may be said to have been given. But it is not given where the main purpose of the trip is the joint pleasure of the participants.’ ”

The case of Schafer v. Stevens, Tex.Civ.App., 352 S.W.2d 471, relied upon by appellant, is distinguishable from the instant case. In that case there was no doubt that the meeting of Schafer and Stevens at the Sky Riders’ Club was a business appointment. The men stayed at the club for some time and they then quit talking business later on in the evening. When the club closed, they decided to go to Trader Hank’s, which operated at later hours. They had quit talking business and according to the defendant the transfer of the activities to Trader Hank’s was a social affair. However, the court refers to other portions of the defendant’s testimony that indicated that while the conversation had turned from business to a social level, this was merely a tactic used to get Stevens more inclined to do business at a later time. The defendant testified in response to questions by the plaintiff’s attorney that the “whole purpose with Tom Stevens that night * * * was to get his company, Tex-Mex, and him, interested in this mining venture.” In the instant case there was no business appointment or evidence of probative force of any discussions between appellant and appellee as to any business or business deals pending or anticipated.

In resolving all doubts as to the existence of a genuine issue of material fact most favorably to appellant, as we are required to do, we are of the opinion that the court properly granted the summary judgment in favor of appellees. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Company, Tex.Sup.1965, 391 S.W.2d 41; Gulbenkian v. Penn, 1952, 151 Tex. 412, 252 S.W.2d 929.

Judgment affirmed.


author: ARCHER, Chief Justice.

text:
    Flay BREVARD, Appellant, v. Wayne KING, Appellee.
    No. 11368.
    Court of Civil Appeals of Texas. Austin.
    Feb. 23, 1966.
    Rehearing Denied March 16, 1966.

      Bedford & Underwood, E. B. Underwood, Ballinger, Woodward & Johnson, Coleman, for appellant.
    Smith, Rose & Finley, Frank W. Rose, San Angelo, for appellee.
   ARCHER, Chief Justice.

This is a suit by Wayne King, appellee, against Flay Brevard, appellant, for the specific performance of an option contained in a written lease agreement. Bre-vard answered King’s suit specifically alleging that a material portion of the parties’ agreement was omitted from the option provision; that such omission resulted from misrepresentation on the part of King, or in the alternative, from a mistake as to the law on the part of the person who prepared the lease contract; that such alleged option contract was not specifically enforceable because it was in violation of the Statute of Frauds; and that specific enforcement thereof would be unjust and inequitable and would cause defendant irreparable injury and harm.

This case was before this Court on appeal from a summary judgment granted Flay Brevard against the appellee, Wayne King. The prior decision appears in 378 S.W.2d 681, er. ref., n. r. e. The said summary judgment was reversed and the cause was remanded to the District Court for a trial on .the merits. On remand, the case was tried before a jury on the defensive theory that the option provision in question did not express the agreement of the parties in that Brevard alleged that King should have an option to purchase “ * * * should First Party (Brevard) elect to sell the farm * * Brevard alleged in his trial pleadings that such condition was omitted from the written contract because of misrepresentation on the part of King or by mistake. King answered alleging that if there was any mistake in the contract, it was not a mutual mistake, and that it resulted from the negligence of Brevard in failing to read the contract before he signed it, and in the alternative, King alleged that Brevard did elect to sell his farm during the lease period, and thus, in any event, King was entitled to specific performance of the contract.

The appeal is predicated on eight points assigned as error and are to the effect that the option provision is too indefinite to authorize specific performance and appellee is not entitled to specific performance because the instrument sued on is illegal, and because appellee has been guilty of short practices and unconscionable conduct; the court erred in admitting into evidence plaintiff’s Exhibit No. 1, which was illegal, in refusing to admit into evidence the testimony of Charles Sheppard as to his mistake of law, that the remedy of specific performance would be unjust, and the court erred in submitting Special Issue No. 8, and finally in denying appellant the right to open and close the jury argument.

The lease agreement is set out in full in our decision in King v. Brevard, 378 S.W.2d 681, and we will only set out herein the paragraph as to an option which is as follows :

“It is hereby further agreed that the First Party shall not sell the place to anyone for a period of one (1) year from date herein and then the Second Party shall have an option at the agreed price of $65.00 per acre after that period. It is further agreed that not less than one fourth (1/4) of the mineral right and full leasing rights shall go with the place, should it be purchased by the Second Party.”

The case was submitted to the jury on Special Issues and the answers thereto are as follows:

“1. Do you find from a preponderance of the evidence that the oral agreement of the parties (King and Bre-vard) made just prior to the writing of the instrument in question was that King should have the option to purchase only in the event that Bre-vard should elect to sell the farm? Answer Yes or No.
Answer: No.
2. Do you find from a preponderance of the evidence that just prior to the time the instrument in question was written Plaintiff King represented to Defendant Brevard that Plaintiff would have such instrument prepared in such manner that Plaintiff would have the option to purchase only if Defendant elected to sell the farm? Answer Yes or No.
Answer: No.
4. Do you find from a preponderance of the evidence that just before the signing of the instrument in question King represented to Brevard that the option only obligated Brevard to sell the land if Brevard elected to do so? Answer Yes or No.
Answer: No.
6.Do you find from a preponderance of the evidence that Brevard signed the instrument in question without reading it? Answer Yes or No.
Answer: No. '
7.Do you find from a preponderance of the evidence that at the time Brevard signed the instrument in question he believed that it gave King an option to purchase the farm only if Brevard should elect to sell the same? Answer Yes or No.
Answer: No.
8.Do you find from a preponderance of the evidence that after September 14, 1962, and prior to October 10, 1962, Brevard did elect to sell his farm in question for $65.00 per acre free of indebtedness? Answer Yes or No.
Answer: Yes.”

The defendant filed his Motion for Judgment N.O.V. and as grounds therefor asserted the court erred in submitting the issues and that the findings are wrong and should be held for naught because the option contract is in violation of the law, and lacking in essential terms, is uncertain and indefinite; that extrinsic evidence is not admissible to establish essential elements of such contract; that there was no meeting of the minds of the parties as to the time and manner in which the option was to be exercised, the time and kind of deed to be executed, the date, the life and terms of the mineral interest to be conveyed, whether subject to any oil, gas and mineral lease, to whom the bonus, delay rentals and royalties and in what proportion to be paid; whether the price should be paid was in cash or on terms; whether the land would be conveyed subject to any other encumbrances.

The motion was overruled.

Judgment was rendered on the jury verdict that plaintiff have specific performance of the written contract, and set out a description of the land referred to in said contract and the mineral interest of an undivided ¼⅛ of the oil, gas and other minerals in said land, and set out in detail the procedures to be followed.

The plaintiff paid Levy Lee, a lien holder the sum of $17,241.31, and paid into the registry of the court the sum of $3,648.39.

We believe that the trial court’s judgment was proper and affirm it.

The option provision is sufficiently definite and complete in its essential elements to support the judgment for specific performance.

The contract was not illegal and any mistaken opinion as to the effect of the language on the part of Charles Sheppard, the typist, was immaterial.

In our former decision in this case we held that the land in controversy was described sufficiently to satisfy the requirements of the Statute of Frauds when taken with certain extrinsic evidence of ownership by Brevard of land in the Blanton Community of Runnels County, Texas. This Court further held that the language of the option provision disclosed that the option was one to purchase the property for the stated price of $65.00 per acre.

With respect to the mineral rights, the option contract furnished the essential elements, the details of which could be explained by extrinsic evidence. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150.

In Bryant v. Clark, 163 Tex. 596, 358 S.W.2d 614, cited by appellant, to require a reversal of this case the Court held that a contract providing for payment of deferred balance of purchase price in 15 annual installments, but containing no provision with respect to the amount of the several installments and providing for 6% interest and the deferred balance but not providing when interest was payable or in what amounts was too indefinite and uncertain to authorize judgment of specific performance. The holding in this case is not controlling in the instant case in which, as stated, contained all of the essential elements.

Equity requires for specific enforcement of a contract that it be complete, definite and certain in all of its essential terms. Hume v. Bogle, Tex.Civ.App., 204 S.W. 673; 5 Pomeroy, Equity Jurisprudence, Section 1404 (5th ed. 1941).

As stated, a contract to be specifically enforced must be complete and certain; absolute certainty is not required. Wilson v. Beaty, Tex.Civ.App., 211 S.W. 524, er. ref.

“The opinion of this court quotes with approval the rule as stated in Restatement of the Law, Contracts, Par. 370, Ch. 12, p. 673, as follows: * * *
However, a comment of the Restatement under that paragraph can be very helpful to a court in applying the rule.
‘ * * * The usual aids to interpretation will be availed of by the court, just as in the case of enforcement by other remedies. Expressions that at first appear incomplete or uncertain are often readily made clear and plain by aid of common usage and reasonable implications of fact. Apparent difficulties of enforcement due to uncertainty of expression may disappear in the light of courageous common sense.’ ” Bryant v. Clark supra; Burger v. Ray, Tex.Civ.App., 239 S.W. 257, er. dism.; 13 Tex.Jur.2d 348 (Contracts, Section 163).

Since the holding on the prior appeal has become the law of the case, the appellant cannot now be heard to complain of the decision with respect to the law questions there decided. Hillhouse v. Allumbaugh, Tex.Civ.App., 258 S.W.2d 826, er. ref., n. r. e.; 4 Tex.Jur.2d 698 (Appeal and Error — Civil, Section 1008). See Mattern v. Herzog, 367 S.W.2d 312, Sup.Ct., concerning options.

In 81 C.J.S. Specific Performance § 35, p. 499 it is stated :

“The court will not decree specific performance of a contract which provides for or clearly contemplates deferred payment of part or all of the consideration, but does not specify the time of the deferred payment.”

There is no indication in the contract between the parties in this case that the purchase price would be deferred or that it be paid in anything other than money. Both parties testified the intent was that cash would be paid.

The general rule is that payment of an obligation must be in money, in the absence of an express or implied obligation to accept something else than money. 44 Tex. Jur.2d 667 (Payment, Section 17).

With reference to appellant’s complaint that it is not certain the land was to be purchased for $65.00 per acre, plus the assumption of the existing indebtedness against the land, or the total price from which the existing indebtedness would be paid, or if the place would be conveyed subject to any outstanding mineral lease, these matters are referred to in the instrument, and the law implies, unless otherwise stated in the agreement, that a good title shall be conveyed free from all encumbrances. 51 C.J.S. Landlord and Tenant § 81, p. 638 (Encumbrances); Burris v. Hastert, Tex.Civ.App., 191 S.W.2d 811, er. ref.

Where a lease contains an option in favor of the lessee to purchase the premises and the lessee elects to exercise the option, there arises a binding contract of sale. Giblin v. Sudduth, Tex.Civ.App., 300 S.W.2d 330, er. ref., n. r. e.

The judgment orders the defendant to deliver to the clerk a General Warranty Deed, and provides that if such deed is not delivered that the judgment then shall have the same force and effect as such deed would have if delivered. This was a correct procedure. Robinson v. Davenport, 40 Tex. 333, 334; 52 Tex.Jur. 694 (Specific Performance, Section 148).

With further reference to the extent of the minerals to be conveyed, the agreement was for not less than ¼⅛ of the mineral rights, and the extrinsic evidence established that Brevard owned an undivided ¡Hjths 0f minerals in the land, and as a general rule a contract for sale of land which contains no reservation, covers the entire rights of the vendor. The appellee, although claiming that he was entitled to all of the interest owned by Brevard, does not appeal from the judgment of the trial court, and is willing to accept an undivided J4th interest in the minerals.

The obligation against the land has been discharged and the balance due Bre-vard is now on deposit with the clerk of the District Court, as directed by the Court. This was a proper procedure. Blaffer v. Powers, Tex.Civ.App., 169 S.W.2d 536, ref. want of merit.

The contract was not illegal and King was not guilty of any wrongdoing with respect to the acknowledgment upon said contract, and any mistaken opinion by Charles Sheppard as to the effect of the language of the contract is immaterial.

The contract was prepared in the office of R. E. White who was not in when Mr. King came, and Charles Sheppard, not an employee of White, typed the contract under the direction of King.

With respect to the acknowledgment R. E. White wrote it and signed it, and King had nothing to do with what it contained. King testified that he took the contract to the County Clerk’s office to be recorded and was told that it had to be notarized before it could be recorded, and King took the contract to White who put the jurat on the contract and signed it as a Notary Public and gave the contract to King who had it recorded.

The contract was not illegal because it was prepared by a layman. Wyche v. Works, Tex.Civ.App., 373 S.W.2d 558, er. ref., n. r. e.

The judgment of the trial court is affirmed.

Affirmed.


author: PHILLIPS, Justice.

text:
    Shellie CROTHERS, Appellant, v. TRUCK INSURANCE EXCHANGE, Appellee.
    No. 11363.
    Court of Civil Appeals of Texas. Austin.
    Feb. 23, 1966.
    Rehearing Denied March 16, 1966.
    J. R. Owen, Taylor, Byrd, Davis & Eisenberg, Tom H. Davis, Austin, for appellant.
    Barkley & Cutcher, Taylor, Coleman Gay, Austin, for appellee.
   PHILLIPS, Justice.

This is a workmen’s compensation case. In the trial court Shellie Crothers, the appellant here, was plaintiff and the Truck Insurance Exchange, the appellee here, was the defendant.

Appellant sustained an injury on January 20, 1964 while in the course and scope of his employment in Taylor, Texas.

Trial to a jury resulted in a verdict of 72 weeks of temporary total incapacity followed by no partial incapacity. The ap-pellee having expressly waived its defense of prior contributing injuries, judgment was entered on this verdict. From this judgment the appellant has appealed.

We reverse the judgment of the trial court and remand this case for trial.

Appellant was 38 years old. He had only one year of schooling' and could not read or write. He had started working on his father’s farm when he was ten years old and had done manual labor all of his life.

Appellant first hurt his back in 1957, but after a few months was able to return to work. He hurt his back again in 1962. This injury resulted in an operation from which he recovered in about a year. He then operated a filling station and later in December, 1963, went to work for the Kerr-Ban Manufacturing Co., where he again hurt his back in January of 1964. Since such injury he has worn a back brace at all times and has continued to take medication daily. Other than several brief attempts at odd jobs, appellant has not worked since this injury.

Appellant is before us on nine points of error, however as we sustain his first, third and seventh points, we need not discuss the others.

Appellant’s first point of error is that inasmuch as the uncontradicted evidence shows the appellant’s disability to be permanent, the jury’s answer to special issue No. 5 was not supported by the evidence; appellant’s third point is that inasmuch as the uncontradicted evidence shows that the appellant’s disability was permanent, the jury’s answer to special issue No. 6 was not supported by the evidence; appellant’s fifth point of error is that inasmuch as the uncontradicted evidence showed that the appellant had some permanent disability, the answer of the jury to special issue No. 7 was not supported by the evidence. Appellant’s second, fourth and sixth points are that such findings are against the great weight and preponderance of the evidence.

In special issue No. 5 the jury found that appellant’s total incapacity was temporary; in special issue No. 6 the jury found that the duration of the total temporary incapacity was 72 weeks; in special issue No. 7 the jury found that appellant had not sustained or would not sustain any partial incapacity following the injury.

There is no need to go into extensive detail over the medical history of appellant’s injuries, the treatment and his resultant incapacity.

Dr. Lowery, a qualified orthopedic surgeon who had examined appellant at ap-pellee’s request testified that when he saw appellant in March of 1964 he had a ruptured disc and would be unable to use his back without experiencing severe pain. Dr. Lowery further testified that he did not think appellant could do lifting, bending or prolonged standing, and that prolonged sitting and walking over an extended distance would cause him trouble. He further testified that there was nothing appellant could do requiring the use of his back over an extended time without having considerable trouble. Dr. Lowery testified that appellant’s condition was permanent.

We hold there is no competent evidence in this record from which the jury could have found that the appellant’s condition was other than as Dr. Lowery described it and that their findings to the contrary are against the great weight and preponderance of the evidence.

Appellee contends that there was evidence to the contrary such as the right of the jury to take into consideration the length of time normally required for appellant to recover from a back injury sufficiently to go back to work. Their right to consider the opinion of a certain Dr. Brindley, who was not called as a witness, that he “would probably recommend” that appellant was able to drive a small bus. Appellee also cites appellant’s failure to call either of the treating doctors.

Appellee also cites Coxson v. Atlanta Life Insurance Co., 142 Tex. 544, 179 S.W.2d 943, for the authority that expert medical opinion is not binding upon a jury where lay witnesses had given testimony that conflicted with that of the medical experts. Coxson is not in point here. There is insufficient evidence here for the jury to have found as they did and such findings are against the great weight and preponderance of the evidence. 38 Tex. Law Rev. 362. There is no evidence from which the jury could have concluded that appellant’s back injury could last 72 weeks. The opinion that was attributable to Dr. Brindley was hearsay, consequently not competent evidence and had it not been hearsay, it was too conjectural to be competent.

We reverse the judgment of the trial court and remand this cause for trial.

Reversed and remanded.


author: BELL, Chief Justice.

text:
    Catherine ANDEL et vir, Appellants, v. EASTMAN KODAK COMPANY, Appellee.
    No. 14744.
    Court of Civil Appeals of Texas. Houston.
    Feb. 24, 1966.

      Ted Musick, Houston, for appellants.
    Robert A. Hall, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellee.
   BELL, Chief Justice.

Appellants, who are husband and wife, sued appellee on their own behalf and as next friends for their two minor children, to recover damages allegedly resulting to Mrs. Andel and the children when the automobile Mrs. Andel was driving was in collision on March 6, 1964 with an automobile driven by an agent of appellee. Suit was for an amount exclusively within the jurisdiction of the District Court. Ap-pellee, in addition to its answer setting up a denial, contributory negligence and unavoidable accident, filed a counter-claim to recover damages to its automobile in the amount of $183.98. The basis of recovery on the counter-claim was negligence on the part of Mrs. Andel.

When the case was reached for trial, the appellants’ motion for continuance was overruled and they were required to proceed to trial. Appellants thereupon took a nonsuit. They then filed a plea to the District Court’s jurisdiction over the counter-claim, it being in an amount normally within the jurisdiction of the Justice Court. The plea was overruled and the trial was had to a jury on the counter-claim.

The jury found Mrs. Andel failed to yield the right-of-way; that she failed to keep a proper lookout; that she failed to make proper application of the brakes on her car, and that each act was a proximate cause of the collision. The jury also found the agent of appellee to have been guilty of certain specific acts of negligence which were each found to be a proximate cause of the collision. The court, therefore, rendered judgment that appellee take nothing on its counter-claim and assessed costs against appellee.

Appellee, in its brief, asks dismissal of the appeal on the ground that the judgment was entirely favorable to appellants and there is, therefore, nothing of which they can complain.

In the normal situation the rule asserted by appellee is correct. However, under the peculiar situation, here involved we do not think it is applicable because there were fact findings by the jury convicting Mrs. Andel of negligence that if pled by appel-lee in a subsequent suit by appellant on her suit for damages growing out of the collision would be a bar to her recovery. Fireman’s Fund Insurance Company v. Bybee, 322 S.W.2d 657 (Tex.Civ.App.), 160 Tex. 429, 331 S.W.2d 910. Here the record reflects appellants were claiming damages growing out of the same transaction and took a non-suit when their motion for continuance was overruled. However, the collision occurred March 6, 1964, so the statute of limitations has not run and suit may be filed by appellants if they have not already filed it. Their brief states they have filed the suit and that appellee is pleading the judgment in this case as a bar because of the negligence found by the jury against Mrs. Andel. This statement is not denied by appellee. These facts, therefore, present a situation where the judgment appealed from contains fact findings that would, if allowed to stand, bar a recovery by appellants. We, therefore, overrule the motion to dismiss the appeal.

We think that in such an appeal appellants would have the right to assert any error that would have the effect of avoiding the findings of negligence against Mrs. Andel that were found to be a proximate cause of the collision.

We are of the view that no point of error assigned by appellants attacks the findings of the jury against Mrs. Andel except the point of error that after appellants had taken a nonsuit, the court was without jurisdiction of the counter-claim. If the court had no jurisdiction, then any judgment rendered is void. While appellants assign the want of jurisdiction as a point of error, they then state they are not urging it.

Want of jurisdiction over the subject matter is fundamental and we feel called upon to determine the question.

We conclude that the court did have jurisdiction of the counter-claim, which was a compulsory one. It seems to be held in Texas that where a court by the plaintiff’s pleading obtains jurisdiction over the case, a defendant may assert against the plaintiff a counter-claim in an amount that is below the minimum jurisdiction of the court where the case is filed. McDonald, Texas Civil Practice, Sec. 7.51, pp. 708-710, and authorities cited in Notes 58 and 59; Garrett v. Robinson, 93 Tex. 406, 55 S.W. 564; Moritz v. Byerly, 185 S.W.2d 589 (Tex.Civ.App.), writ ref.; Watkins v. Cossaboom, 204 S.W.2d 56 (Tex.Civ.App.), writ dism.; Smith v. Wilson, 18 Tex.Civ.App. 24, 44 S.W. 556, writ dism.; 21 C.J.S. Courts § 66b, p. 84.

Once the court has obtained jurisdiction over the controversy between the parties by the filing of a counter-claim, dismissal of plaintiff’s case does not deprive the court of jurisdiction of the counter-claim. Bartholomew v. Shipe, 251 S.W. 1031 (Tex.Com.App.); Kirby v. American Soda Fountain Co., 194 U.S. 141, 24 S.Ct. 619, 48 L.Ed. 911; Cammack v. Prather, 74 S.W. 354 (Tex.Civ.App.), no writ hist.

We have read the entire statement of facts and are of the view that there was evidence of probative force to require the court to submit each issue it did. Neither negligence on the part of Mrs. Andel or appellee’s agent, which was a proximate cause of the collision, was established as a matter of law.

Affirmed.


author: McDONALD, Chief Justice.

text:
    W. W. VAUGHAN et al., Appellants, v. L. M. KIZER, Appellee.
    No. 4462.
    Court of Civil Appeals of Texas. Waco.
    Feb. 24, 1966.
    Rehearing Denied March 24, 1966.

      Haley, Koehne, Fulbright & Winniford, W. C. Haley, Waco, for appellants.
    Ñaman, Howell, Smith & Chase, Louis Muldrow, Waco, for appellee.
   McDONALD, Chief Justice.

This is an appeal by Vaughan and Nay-lor from a judgment enjoining them from engaging in the independent insurance claims investigating and adjusting business for 4 years from January 31, 1964.

Vaughan and Naylor, (appellants), were employed by Kizer (appellee) in his claim adjusting business in May and December of 1952, and in March 1953 signed an agreement “ * * * that in the event of the termination of employment by (Kizer), or in the event (Vaughan and Naylor) elect to terminate his employment for any cause whatever, he will not for a period of 5 years from and after the termination of his employment, engage in the independent insurance claims investigating business in Waco * * * or within a radius of 75 miles * *

Appellants left appellee’s employment on January 31, 1964, and on February 3, 1964 filed suit against appellee for declaratory judgment that such agreement was void. Appellee cross acted for permanent injunction to enjoin appellants from engaging in the claims adjusting business in a 75 mile radius of Waco, for 5 years from January 31, 1964.

Trial was to a jury which, in answer to issues submitted, found:

1) A period of 5 years was not reasonably necessary for the protection of Kizer’s business.
2) A period of 2 years would be a reasonably necessary time for the protection of Kizer’s business.
3) The area of a 75 mile radius of Waco was a reasonably necessary area for the protection of Kizer’s business.

Both parties filed motions to disregard findings and for judgment non obstante, and appellants filed alternate motion for judgment on the verdict. The Trial Court disregarded all motions and rendered judgment enjoining Vaughan and Naylor from engaging in the claims adjusting business within 75 miles of Waco for a period of 4 years from January 31, 1964.

Vaughan and Naylor appeal, contending the trial court erred:

1) In granting permanent injunction prohibiting appellants from engaging in the claims adjusting business, because under the record the covenants not to compete were unenforceable as a matter of law.
2) In not entering judgment on the verdict enjoining appellants for 2 years, (because reasonableness of time is a fact question).
3) In holding that appellee’s refusal to reimburse appellants’ expenses incurred in the course of employment was not a breach of contract by ap-pellee precluding enforcement of the covenants not to compete.
4) In holding that appellee’s alleged conduct in overcharging and defrauding insurance companies represented, could not constitute a defense to ap-pellee’s suit for injunction.
5) In failing to consider the hardships imposed on appellants and balancing such hardships against the necessity for injunctive relief; failing to apply the “clean hands” doctrine; and failing to consider the adequacy of ap-pellee’s remedy at law.

Appellee asserts by cross point that appellants should be enjoined for 5 years as provided by the agreement, rather than for 4 years.

Appellee is in the independent claims investigating and adjusting business. Vaughan and Naylor were both competent and experienced claim adjusters, when they went to work for Kizer in May and December, 1952, respectively. In March 1953 Kizer required them to sign an agreement not to compete with him within 75 miles of Waco, for a period of 5 years, should their employment terminate for any cause whatever. The record reflects that insurance companies refer claims to Kizer for investigation and settlement. Kizer assigns each claim to an adjuster who investigates and handles same. No trade secrets or customer lists are involved, although the experienced adjuster establishes contacts with persons who may influence the flow of business. The claims business is highly competitive, and insurance companies select agencies to adjust for them who do good work at reasonable charges.

Appellants received a salary; a bonus determined by appellee at the end of the year; and were to be reimbursed on a per mile basis for the use of their car in the conduct of appellee’s business, as well as for expenses for meals, photostats, and out of pocket expenses. Appellants prepared a list of their expenses for each claim file, and ap-pellee would bill the insurance company for the work, and for the expenses. When payment was received from the insurance company, appellee credited appellants’ expense account, and from time to time issued appellants a check for expenses incurred. Appellee, on numerous occasions, materially reduced appellants’ expense accounts as submitted without appellants’ knowledge or consent; and billed the insurance companies on the basis of the reduced amounts, and when payment was received, paid such amounts as received to appellants. Appellee admitted reducing appellants’ expense accounts and says he did such so his charges to the insurance company clients would be reasonable and competitive, (thus requiring appellants, without their consent, to in effect, subsidize appellee’s business). Appellants learned that appellee had been cutting their expense statements and terminated their employment with him. Appellants went into the adjustment business for themselves and have adjusted some claims for some of the insurance companies which refer business to Kizer. There is no showing as to what amount of business Ki-zer has lost as the result of appellants’ competition with him; and no showing that the business appellants have received would have in fact gone to Kizer but for appellants’ entry into the claims adjusting business. There are some 5 or 6 claims adjusting businesses in Waco other than ap-pellee’s and appellants’. Naylor is 59 years old; Vaughan is 51; both have spent the past 14 years or more as insurance claims adjusters; both live in Waco and own their homes. The judgment substantially precludes appellants from pursuing the only work they are trained to do, for 4 years, and in a 75 mile radius of where they live.

An agreement by an employee not to compete with his employer after termination of the employment is in restraint of trade, and will not be enforced in accordance with its terms unless they are reasonable. The test for determining the validity of the covenant as written is whether it imposes upon the employee any greater restraint than reasonably necessary to protect the business and good will of the employer. A court of equity will enforce the contract to the extent that the time and area are reasonable under the circumstances. Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950.

Whether a given contract is reasonable as to time and area are not questions of fact, but are questions of construction under the evidence, and therefore questions of law for determination by the court. Spinks v. Riebold, Tex.Civ.App., Er.Ref., 310 S.W.2d 668; Lewis v. Krueger, Hutchinson & Overton Clinic, 153 Tex. 363, 269 S.W.2d 798.

And an otherwise valid agreement by an employee not to compete with his employer after termination of employment, may not be enforced by injunction, by the employer, where the employer has been guilty of a breach of the employer’s obligations under the contract or other inequitable conduct. He who comes into equity must come with clean hands, and a complainant’s wrongful conduct in a matter or transaction with respect to which he seeks in-junctive relief, precludes him from obtaining such relief. 155 A.L.R. 654; Langdon v. Progress Laundry & Cleaning Co., Tex.Civ.App., Er.Ref., 105 S.W.2d 346; Carpenter v. Southern Properties, Tex.Civ.App., Er.Ref., 299 S.W. 440. See also Arthur Murray Dance Studio, etc. v. Witter, Ohio Com.PL, 105 N.E.2d 685.

The rule that one who comes seeking equity must come with clean hands is not absolute, and party relying on such principle must show that he himself has been injured by conduct in order to justify application of such principle, and the wrong must have been done to party himself and not to some third party. Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401.

Under the cited authorities, we think contracts by employees of a claims adjusting business, not to compete with the employer after termination of employment, valid insofar as they are reasonable as to time and area. We think that under the record here (without considering appellee’s reduction of appellants’ expense accounts), a period of 2 years ample to protect the good will and business of the appellee, and that time in excess thereof is unreasonable. (No complaint is made of the reasonableness of the area).

And we think appellee’s action in reducing appellants’ expense accounts was, under the facts, such wrongful conduct as to render appellee without clean hands, and precludes him from obtaining injunctive relief against appellants in a court of equity.

Appellants’ points 2 and 4 are overruled; appellants’ points 1, 3 and 5 are sustained to the extent reflected in this opinion; and ap-pellee’s cross point is overruled.

The judgment is reversed and judgment rendered dissolving the injunction.

Reversed and rendered.

WILSON, J., not participating.


author: COLEMAN, Justice.

text:
    FIRST AMERICAN LIFE INSURANCE COMPANY, Appellant, v. C. R. SLAUGHTER, Appellee.
    No. 14664.
    Court of Civil Appeals of Texas. Houston.
    Feb. 10, 1966.
    Second Rehearing Denied March 24, 1966.

      Sears & Burns, Robert L. Burns, B. T. McDaniel, Houston, for appellant.
    William KeyWilde, Ronald C. Kline, Houston, Bracewell, Reynolds & Patterson, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is a suit by appellee on a contract, by the terms of which he was employed by appellant as Director of Agencies, to recover commissions on renewal premiums, paid, and to be paid in the future, on policies of insurance issued by appellant during the period of employment.

The principal question involved is whether appellant’s point on appeal complaining of the action of the trial court in rendering judgment for appellee for the present value of commissions, which under the terms of the contract were payable when collected, can be considered in the absence of a motion for new trial, the case having been tried to a jury.

The only issue submitted to the jury concerned the present value of commissions to become due in the future. Appellant objected to the charge for the reason that it failed to submit the ultimate issue as to whether or not appellant had breached or repudiated its contractual obligation to pay commissions on renewal premiums to ap-pellee. Other objections to the charge were made, including one reading:

“7. The Court cannot properly submit this issue without first submitting the following issues on ultimate facts:

(a) Do you find from a preponderance of the evidence that the Defendant has totally repudiated its obligation to pay to Plaintiff commissions on renewal premiums at such time and times as such renewal premiums are paid to Defendant on the policies written during the period from April 1, 1962 to August 17, 1962?
(b) If you have found that the Defendant has totally repudiated its obligation to pay to Plaintiff commissions on renewal premiums at such time or times as such renewal premiums are paid to Defendant, on what date do you find from a preponderance of the evidence that the Defendant totally repudiated such obligation?”

After the verdict of the jury was received, appellant filed its motion for judgment notwithstanding the verdict, pointing out to the court that the charge in effect instructed the jury that appellant had repudiated its contractual obligation to pay commissions to appellee on renewal premiums at the time of collection constituting an anticipatory breach of contract so as to entitle appellee to recover now the present value of future commissions. The motion then set out appellant’s contention that there was no evidence that appellant had repudiated such obligation and that the undisputed testimony showed that appellee had caused a controversy by claiming that he had a contract for employment for one year; that appellant in good faith disputed this claim, but was willing to discuss making payments to appellee and had never denied nor repudiated its obligation to pay commissions to appellee on policies written during his period of employment. The motion pointed out that the contract provided that appellant could hold present and future commissions due appellee for debts due to appellant from appellee, and that while commissions accrued to appellee on premiums paid on policies written during the period of his employment, appellee had also become indebted to appellant during such period in an amount in excess of the commissions payable. It also brought to the court’s attention that in appellant’s first amended original answer appellant alleged that it owed appellee the sum of $5,618.76 and that appellee owed it $3,797.50, and that appellant tendered to appellee the difference, $1,821.26, or such amount as the court might find to be the difference. Appellant prayed, in the alternative, that the verdict of the jury be disregarded and that judgment be entered awarding appellee the sum of $1,821.26.

The only evidence of an anticipatory breach of this contract lies in appellee’s testimony that no commissions were paid him after the termination of the contract by appellant and that he made a demand for payment. There is evidence which would have supported a jury finding that the contract was not breached by appellant.

Two of appellant’s points on appeal read:

“Special Issue Number One and the jury’s answer thereto are irrelevant and immaterial because there is no evidence (or at least no undisputed evidence) that appellant repudiated its contractual obligation to pay commissions to appellee. Being irrelevant and immaterial, such answer does not support the judgment and the trial court erred in refusing to disregard such answer and in refusing to render judgment that appellee take nothing.

“* * *

“The trial court erred in finding as a matter of law that appellant had repudiated its obligation to pay commissions to appellee so as to cause an anticipatory breach of the contract of employment, and erred in entering judgment on such finding for appellee.”

It is appellee’s contention that these points can only be preserved in a motion for new trial. He reasons that even though a fact issue as to anticipatory breach was present, it was waived by appellant’s failure to set up the ground of error in a motion for new trial, citing Rules 324 and 374, Texas Rules of Civil Procedure, Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887; Marion v. Hutton, 374 S.W.2d 284, Tex.Civ.App.1963, error ref., n. r. e., and other cases.

Rule 324, supra, provides:

“In all cases tried in the county or district court, where parties desire to appeal from a judgment of the trial court, a motion for new trial shall be filed as a prerequisite to appeal; provided that it shall not be so prerequisite where * * * a judgment is rendered, or denied, non obstante vere-dicto or notwithstanding the finding of the jury on one or more special issues, or a motion for judgment on the verdict is made by the party who becomes appellant and is overruled; * *

In Wagner v. Foster, supra, the Supreme Court held:

“The purpose of the quoted provision of Rule 324 as it relates to a party whose motion non obstante veredicto is denied is to authorize appeal on the grounds stated in the motion without the necessity of incorporating the grounds in a motion for new trial. It was not the purpose of that language to eliminate the necessity for complaining in a motion for new trial of other errors committed on the trial. A party whose motion for judgment non obstante veredicto is denied may forego the filing of a motion for new trial and predicate his points of error on appeal on the matters included in such motion. If he follows that course, he may complain on appeal only of the denial of the motion non obstante vere-dicto.” (Emphasis supplied.)

In McPherson v. Black, 346 S.W.2d 615, Tex.Civ.App.1961, error ref., n. r. e., in an opinion by Associate Justice Wilson, the Court stated:

“In the absence of a motion for new trial and a statement of facts, the only point presented which is properly preserved for review which we are authorized to consider under the record, is that which asserts the verdict does not support the judgment. * * *

“Rule 307 must be here construed in connection with Rule 279. In the absence of a statement of facts, and absent objection or request, we think it is to be here presumed that independent grounds of recovery on which no issue was submitted or requested were conclusively established under the evidence; and that the evidence did not make such grounds issuable. See Willeke v. Bailey, 144 Tex. 157, 189 S.W.2d 477, 480. Such grounds, presumed to be conclusively established, are not waived, under Rule 279, as appellant contends. That rule effects waiver only of such independent grounds of recovery as are ‘not conclusively established under the evidence,’ and we are required to presume under our record that they were so established.”

We infer from this decision that had there been proper objections to the court’s charge there would be no presumption that the independent ground of recovery was conclusively established under the evidence, and that in such case, the unsubmitted ground of recovery would be waived under Rule 279, T.R.C.P., providing:

“ * * * Failure to submit an issue shall not be deemed a ground for reversal of a judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; provided, however, that objection to such failure shall suffice in such respect if the issue is one relied upon by the opposing party. * * *

“Upon appeal all independent grounds of recovery * * * not conclusively established under the evidence and upon which no issue is given or requested shall he deemed as waived; but where such ground of recovery * * * consists of more than one issue, if one or more of the issues necessary to sustain such ground of recovery or of defense, and necessarily referable thereto, are submitted to and answered by the jury, and one or more of such issues are omitted, without such request, or objection, and there is evidence to support a finding thereon, the trial court *' * * may * * * make and file written findings * * *, but if no such written findings are made, such omitted issue or issues shall be deemed as found by the court in such manner as to support the judgment. * * * ”

In Pelham Manufacturing Company v. Ridlehuber, Tex.Civ.App.1962, error ref., n. r. e., 356 S.W.2d 502, in a case where the defendant’s motion non obstante veredicto (found by the court to be in fact a motion to disregard the answer made by the jury to one of the issues because the answer was supported by no evidence) was denied, the Court held a motion for a new trial was not a prerequisite for appeal even though the party presenting the motion to disregard was not entitled to an instructed verdict, where a different judgment would have been required if the motion had been granted.

A jury finding on an immaterial issue should be disregarded by the trial court since it cannot affect the judgment to be entered. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607; Jones v. English, Tex.Civ.App.1954, 268 S.W.2d 686, rev’d on other grounds, English v. Jones, 154 Tex. 132, 274 S.W.2d 666; Battle v. Wolfe, Tex.Civ.App., 283 S.W. 1073, error ref.; T. & N. O. Ry. v. Shaw, Tex.Civ.App., 284 S.W. 600, error dism. If the jury verdict, together with such findings as are required by the undisputed evidence, will not support a judgment for the plaintiff, a motion non obstante veredicto presented by the defendant should be sustained. Jemerson v. Houston-American Finance Corporation, Tex.Civ.App.1961, 351 S.W.2d 574; English v. Blackwood, Tex.Civ.App., 128 S.W.2d 895, dism. judg. correct; Talley v. Bass-Jones Lumber Co., Tex.Civ.App., 1943, 173 S.W.2d 276, error ref.

In this case it is clear that the contract required appellant to pay to appel-lee a commission on premiums collected for certain insurance policies issued by the company while appellee was agency director, but such commission was not to be paid until collected. Before appellee was entitled to recover the present value of commissions to accrue in the future, it was necessary for him to establish an absolute repudiation of the obligation to pay on the part of appellant. Pollack v. Pollack, Tex.Com.App., 39 S.W.2d 853; Sanders v. Aetna Life Ins. Co., 146 Tex. 169, 205 S.W.2d 43, 173 A.L.R. 968; Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405; Harrison v. I. C. T. Life Insurance Co., Tex.Civ.App., 319 S.W.2d 372, error ref., n. r. e. Viewing the evidence in the light most favorable to appellee, this was a disputed issue of fact, which was not submitted to the jury. Appellant’s objections to the charge of the court pointed out the omission and the necessity of securing such a finding as a basis for recovery of the present value of commissions to accrue in the future. Having made such an objection, the trial court was not authorized to make written findings in support of the judgment, nor can any such findings be presumed. Glens Falls Ins. Co. v. Peters, Tex., 386 S.W.2d 529; Land v. Turner, Tex., 377 S.W.2d 181; Rule 279, supra.

Appellant’s motion for judgment non ob-stante contained an alternative plea that the issue on commissions to accrue in the future be disregarded and that judgment be entered for appellee for commissions which appellant admitted to be due appellee at the date of trial, $1,821.26. This motion should have been sustained since appellee had failed to establish the facts necessary to support a judgment for a greater sum. These matters were presented to the trial court and no useful purpose would have been served by again presenting them in a motion for new trial. American General Ins. Co. v. Beare, Tex.Civ.App. 1950, error ref., n. r. e., 225 S.W.2d 454; Jemerson v. Houston-American Finance Corp., Tex.Civ.App. 1961, 351 S.W.2d 574; Wooley v. West, Tex.Civ.App.1965, 391 S.W.2d 157, error ref., n. r. e.; Swift & Co. v. Bennett, Tex. Civ.App.1963, 373 S.W.2d 569, error ref., n. r. e.

In Lovell v. Stanford, Tex.Civ.App.1964, 378 S.W.2d 399, a rear-end collision case involving three cars, the trial court submitted only damage issues. One of the defendants, Marcus, filed no motion for new trial, but he did file a motion for judgment. The Court of Civil Appeals held that the evidence established that Marcus was negligent as a matter of law and that his negligence was a proximate cause of the injuries sustained by the plaintiffs and affirmed the judgment. The Supreme Court granted a writ of error and, in Lovell v. Stanford, Tex., 386 S.W.2d 755, reversed and remanded the case, holding that neither negligence nor proximate cause was established as a matter of law. The opinion states:

“It was error for the trial court to fail to submit to the jury issues inquiring as to the negligence of each of the defendants, and if such negligence, if any, was a proximate cause of the injury and damages suffered by the plaintiffs. For this error the judgment must be reversed and the cause remanded to the trial court.

“Defendants pointed out this defect in their separate motions for judgment and to disregard the jury answers to the damage issues.”

The judgment of the trial court is reversed and judgment is here rendered for appellee in the sum of $1,821.26. This action shall not prejudice the right of appellee to collect in the future such commissions as may be due him in the future, or as may have accrued since the date of trial. All costs in the trial court and in this court are taxed against appellee.

Reversed and rendered as modified above.

On Motion for Rehearing

Appellee has pointed out to this Court that the principal costs incurred in the trial court was the auditor’s fee; that the trial court taxed this fee as costs of court and ordered that the costs be paid one-half by each party; and that no objection to this method of taxing the costs was made on appeal. It appearing to the Court that the auditor's services were beneficial to both parties and that the trial court’s action in this regard was proper, the motion for rehearing is granted in part and the judgment is modified to the extent that costs in the trial court are taxed one-half to each party and the costs on appeal are taxed against appellee. In all other respects ap-pellee’s motion for rehearing is denied.


author: NORTHCUTT, Justice.

text:
    ARKANSAS LOUISIANA GAS COMPANY, Appellant, v. H. F. SEARS, Appellee.
    No. 7568.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 14, 1966.
    Rehearing Denied March 21, 1966.

      Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant.
    Culton, Morgan, Britain & White, Amarillo, for appellee.
   NORTHCUTT, Justice.

This suit was instituted by appellant as plaintiff, seeking judgment against the appellee for the sum of $8,900.00 for gas sold by the plaintiff to the defendant. The gas was used by the appellee-defendant in drilling a welt in Oklahoma.

By pleadings and stipulation, it is conceded that appellee purchased $8,900.00 worth of gas from appellant and owed said sum, less a $500.00 deposit he made and for which he was entitled to credit. Appellee, in his cross action, pleads that he was the assignee of a dry-hole letter agreement under the terms of which appellant contracted to pay appellee $5,000.00 in the event appellee drilled a dry hole to a certain depth on the tract of land described in the letter agreement, and providing that appellee complied with all of the terms of the letter agreement. The suit boils down to a single issue. In the event appellee complied with the letter contract, then it is conceded he is entitled to the $5,000.00 contribution, and the judgment of the trial court would be correct. On the other hand, if he failed to plead and prove compliance with the terms of that letter contract, then he would not be entitled to the $5,000.00 credit.

Trial was to the court without the intervention of a jury, and the trial court found in favor of appellee; giving him credit for the $5,000.00 dry hole money and awarding appellant judgment for the $3,400.00 which appellee conceded he owed, and said sum of money has been paid to the appellant.

From that judgment appellant perfected this appeal. Arkansas Louisiana Gas Company will hereafter be referred to as appellant and Sears as appellee.

Appellant presents this appeal upon three points of error contending the court erred in holding the letter agreement was not a complete contract under the terms of which the burden of proof was upon the appellee to prove compliance with all of the terms of the contract before he would be entitled to the $5,000.00; in holding as a matter of law that appellee complied with the provisions of the dry-hole letter agreement; and in holding as a matter of law that appellee was not obligated under the terms of the letter contract to furnish appellant the information described therein until appellant had first requested the same from appellee.

At the request of appellant the court filed its findings of fact and conclusions of law. The court, among several other findings, found that the well in question was completed as a dry and abandoned well, that no information was ever required by the appellant of the appellee which was not given and also found as follows:

“8. The partied have stipulated that the only controversies herein are:
(a) Whether Defendant, H. F. Sears, is entitled from the Plaintiff the $5,000.00 dry-hole contribution; and
(b) Whether the Plaintiff, Arkansas Louisiana Gas Company is entitled to attorney’s fees and interest.
9. It was the Plaintiff’s contention that the Defendant, H. F. Sears, had not earned the $5,000.00 dry-hole contribution, as expressed by its geologist, Earl F. Cunningham:
‘In particular, our main concern on this is the belief that the Hamm Zone, not the Erick or the Britton, but the Hamm Zone, which was 4825 feet through approximately 5000 feet, was not tested on the way down. The well was drilled on down, pipe was run on the well, and cemented. Oui contention is that the well was perforated disregarding a bad cement job high in the pipe and therefore we did not get a true test of this particular Hamm Zone.’
10. The Plaintiff conceded that had there been adequate testing of the Hamm Zone of the well in question, the defendant would have earned the $5,000.00 dry-hole contribution.”

Testing of the Hamm Zone was in no way required under the letter contract.

The court’s conclusions of law were as follows:

“I make the following conclusions of law:
1. The ‘Farm-out and Dry-hole Contribution Agreement’ (Plaintiff’s Exhibit No. 1) contemplated that Arkansas Louisiana Gas Company’s agent or representative should be entitled to receive all information in respect to the well in question to the same extent as if Arkansas Louisiana Gas Company were drilling such well.
2. The right created by Plaintiff’s Exhibit No. 1 to receive progress reports, samples, logs, surveys, and other information, in respect to the well In question was not self-executing, but to void the contract, it was necessary that refusal to furnish such information be made by the defendant after request therefor was made by Plaintiff.
3. No request for information concerning the well in question was made by the Plaintiff which was not complied with by the Defendant.
4. The Defendant, H. F. Sears, complied with the provisions of the Dry-Hole agreement (Plaintiff’s Exhibit No. 1) and earned under the contract the $5,000.00 dry-hole contribution.
5. The contract in question (Plaintiff’s Exhibit No. 1) contemplated a test of the Granite wash formation and such formation was adequately tested by the Defendant.
6. The contract in question contained a provision for a forfeiture and any ambiguity therein should be construed against such forfeiture.
7. The expression ‘we shall be furnished’ contained in Paragraph 2 of Page 2 of Plaintiff’s Exhibit No. 1 related back to the expression ‘our agents or representatives — shall be entitled to receive’— in the same paragraph and a proper construction of such provisions of the contract simply required the furnishing of the information referred to on request.”

The provisions of the letter contract concerning the $5,000.00 would be contributed by the appellant and the information appellant was entitled to receive was as follows:

“The Arkansas Louisiana Gas Company also agrees to contribute subject to the terms and conditions as set forth herein, when, if and after you have drilled, plugged and abandoned as a dry hole, your projected 8,000 feet Granite Wash Test, the sum of Five Thousand Dollars ($5,000.00) cash. It is understood and agreed that this money will not be paid if the well is completed otherwise than as a dry and abandoned well.
“Our agents or representatives shall have access to the derrick floor at all times and shall be entitled to receive all information during such drilling operations, the same as though we were drilling the well, and specifically, but not limited to, we shall be furnished

The letter contract also provided in the event appellant failed to furnish to appellant “as above provided” information as to drilling, logging, coring, and testing operations in a timely and accurate manner the agreement would be void and of no effect. We are of the opinion the court was correct in holding the obligation of the appellee was to furnish the information requested by appellant.

It will be noticed there was nothing mentioned in the letter contract concerning the testing of the Hamm Zone. On the contrary, the well was to be drilled to a depth sufficient to adequately test the Granite Wash formation. The undisputed record shows this was done. The appellee complied with the letter contract as to completing the well as a dry and abandoned well and at least substantially complied with all other requirements of the contract. We think this was sufficient. Weissberger v. Brown-Bellows-Smith, Inc., Tex.Civ.App., 289 S.W.2d 813 (N.R.E.); Ditmar v. Beckham, Tex.Civ.App., 86 S.W.2d 801 (writ dismissed) and the many cases there cited.

In this case, if the conditions relied upon by appellant could be held sufficient to create a condition, it would necessarily be a condition subsequent since the appellee would have had to have the letter contract before he could perform under the terms thereof to furnish the information. The appellant agreed to contribute $5,000.00 after appellee drilled, plugged, and abandoned the well as a dry hole. This was a condition precedent. Appellee was required to drill, plug and abandon as a dry hole before he was entitled to receive the $5,-000.00. Cozby v. Edwards, Tex.Civ.App., 203 S.W.2d 569 (N.R.E.). This was done. Consequently, we think appellant owed the $5,000.00. If appellee damaged appellant in breaching the contract by failing to give appellant the information required, we think his remedy would be an action thereon for damages. We have carefully considered all of appellant’s points of error and overrule all of them.

Judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Florentino COVARRUBIAS, Appellee.
    No. 14439.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 16, 1966.
    Rehearing Overruled March 23, 1966.

      Groce, Hebdon, Fahey & Smith, Charles L. Smith, San Antonio, for appellant.
    Lieck & Lieck, Goodstein & Semaan, San Antonio, for appellee.
   MURRAY, Chief Justice.

Florentino Covarrubias, appellee, instituted this suit against Missouri Pacific Railroad Company, appellant, for damages allegedly incurred as a result of injuries sustained by his two minor sons, Guadalupe and George Covarrubias. Those injuries arose out of the explosion of a railroad signaling device commonly called a torpedo, while it was being handled by the two boys. Appellee sought damages for the hospital and medical expenses incurred in treating the injuries to his sons, as well as the loss of contributions and services occasioned by the injuries to the hands of his son Guadalupe as a result of the explosion. Guadalupe lost all but the little finger of his left hand, and the thumb of his right hand. George was not seriously injured and suffered no permanent disability. At the time of the explosion, Guadalupe was nine years old and George was younger. The trial was to a jury and, based upon the jury’s answers to the special issues submitted, judgment was rendered in appellee’s favor in the sum of $9,850.00, from which judgment Missouri Pacific Railroad Company has prosecuted this appeal.

The Covarrubias boys testified that George picked up the torpedo near the edge of the San Fernando Street crossing of appellant’s railroad tracks in the City of San Antonio, Texas, on or about January 14, 1963, and took it to their home. They did not know that the torpedo would explode, and while Guadalupe was trying to break it open by striking it with a rock several times, it exploded and caused the injuries to his hands as heretofore stated. The evidence shows that these torpedoes were used by appellant in its flagging operations. They would be fastened to the rail, and when run over by a train would make a loud explosion, thus warning the approaching train that the track ahead was obstructed. When these torpedoes are first received by appellant they are placed under lock and key in the supply room. Thereafter, as needed, they are taken by supply men and placed in small boxes in the cabin of the locomotives and also in the cabooses. There are no records kept of how these torpedoes are used, and thus the appellant would be unable to determine whether or not one or more of such torpedoes had been lost or misplaced. The cabooses are not customarily locked when they are left unattended. Whenever a flagman or other employee of appellant had need for torpedoes, he would simply reach in the box which was not under lock and key, and take a handful of these torpedoes and either carry them in his hand or put them in his pocket. When the supply men replenished these torpedoes they simply carried them in their hands and dumped them in the box in the locomotive and the caboose. In this way it was quite possible that a torpedo might be misplaced or lost. There was evidence that children had gone into these unlocked and unattended cabooses and had taken torpedoes. - On one occasion children had been seen climbing through the windows of a caboose for the purpose of taking things inside. It was also shown that appellant’s employees swept out cabooses wherever they might be parked, and if a torpedo had fallen to the floor of the” caboose it might be swept out with the other trash onto the ground. Cabooses had been parked short distances from where the Covarrubias boys found the torpedo in question. Under this evidence it was quite probable that the torpedo was at the place where it was picked up by George as a result of the manner in which appellant’s torpedoes were handled by its employees. The jury found, in answer to Question No. 3, that the torpedo which George Covarrubias found belonged to appellant. It is conceded by appellant that there was sufficient substantial evidence to support the finding of the jury as to this issue, so we will not here discuss that evidence. The jury also found, in answer to Question No. 7, that the torpedo in question was lost, misplaced or abandoned (at the place where it was found) by appellant or one of its employees; and in answer to Question No. 8, that such act constituted the failure to exercise a high degree of care, and, in answer to Question No. 9, that such failure was a proximate cause of the injuries and damages. The sufficiency of the evidence to support these findings is raised by appellant. The evidence shows that the torpedo which belonged to appellant may have gotten to the point where it was picked up by George in a number of different ways. First, it could have been dropped by a supply man while replenishing the torpedoes in a caboose; second, it might have been dropped where it was picked up, or it might have been dropped by a railroad employee somewhere else in the yards and picked up by someone and carried to where it was found; and third, it might have been taken out of the caboose by someone and thrown down where it was found. The place where the torpedo was found is generally called the railroad yards, and the evidence shows that torpedoes were not used in the railroad yards, but were used out on the main lines. This evidence was insufficient to show that appellant or one of its employees lost, misplaced, or abandoned the torpedo at the point where George found and picked it up. The fact that the torpedo may have gotten to the place where it was picked up in a number of ways, does not prove that it was lost, misplaced or abandoned at that point by one of appellant’s employees. This finding by the jury is based upon conjecture or surmise as to the point where the torpedo was lost, misplaced or abandoned, and cannot be upheld by this Court. The evidence is sufficient to show that the torpedo in question was lost, misplaced or abandoned by appellant or one of its employees, but not at the point where it was picked up by George. In Williams v. United States, 252 F.2d 887, Chief Justice Hutcheson, speaking for the U. S. Court of Appeals, Fifth Circuit, had this to say:

“After a trial, in which it was established that the United States was the owner of the fuse and that it was found near the Camp Polk, Louisiana area, where maneuvers, in which such fuses were used, had been conducted, the district court found, and gave judgment, for defendant because (1) ‘The Federal Tort Claims Act is to be strictly construed’, and (2) ‘Plaintiff has not been able to show that the fuse was placed, dropped, or lost on the road by some particular agent or employee of defendant, acting within the scope of his authority’.
“This is not to say, as appellant insists we should, that on the evidence in this case a finding and judgment for plaintiff were demanded, and we should, therefore, reverse and render judgment here. It is to say, though, that the evidence would support a finding, that plaintiff had made out a prima facie case of negligence and that defendant had not borne its burden of accounting, consistent with due care, for the presence of the fuse on the road.”

Magaraci v. Santa Marie, 130 Conn. 323, 33 A.2d 424.

The jury found, in answer to Question No. 10, that appellant’s failure to keep any record or inventory of its torpedoes so that a check could be kept on any missing, lost or misplaced torpedoes, constituted a failure to exercise a high degree of care; in answer to Question No. 11, that such failure was a proximate cause of the injuries and damages; in answer to Question No. 12, that the appellant failed to have the receptacles where torpedoes were placed under lock and key; in answer to Question No. 13, that such failure was failure to exercise a high degree of care, and in answer to Question No. 14, that such failure to exercise a high degree of care was a proximate cause of the injuries and damages.

Appellant argues that it is well settled that negligence presupposes a breach of duty owed appellee by appellant, and whether or not a duty by appellant to appellee has been breached is determined by the standard of care imposed by law to be observed by appellant in dealing with persons situated as were the Covarrubias boys, and when the standard is a high degree of care, it is to be measured by the conduct of a very cautious and prudent man under the same or similar circumstances. Appellant further argues that before it could be determined that appellant did not act as a very cautious and prudent man under the same or similar circumstances, the jury must first know what that mythical man would have done under those circumstances, and therefore there would have to be evidence of experts as to just how a very careful and prudent railroad would take care of its torpedoes. The law requires anyone handling explosives to use a high degree of care, and under the facts as developed in this case we feel that the jury was competent to determine whether or not appellant had used that high degree of care in handling these torpedoes which is required by law, without the benefit of expert testimony. The evidence was sufficient to support these findings by the jury, and we overrule appellant’s contentions.

The jury found in answer to Question No. 15, that the torpedo in question had been at the location where it was found for a sufficient length of time for appellant or its employees to have discovered the same and removed it before appellee’s children picked it up; in answer to Question No. 16, that appellant or its employees failed to exercise a high degree of care in failing to remove the torpedo; in answer to Question No. 17, that such failure to exercise a high degree of care was a proximate cause of the injuries and damages; in answer to Question No. 18, that appellant railroad and its employees failed to inspect the railroad tracks and premises at the railroad crossing in question prior to the time that appellee’s children crossed over the appellant’s tracks on the occasion in question, and, in answer to Question No. 19, that such failure constituted a failure to use that degree of care that a person of ordinary care would have used under the same or similar circumstances, and that such failure was a proximate cause of the injuries and damages. The evidence shows that the torpedo at the time it was picked up by appellee’s boys had dirt on it, and there had been no rain in San Antonio for some ten days prior to the time the torpedo was picked up. It is therefore reasonable to infer that the torpedo had been lying by the railroad track for some ten days. It was a sufficient length of time to have been discovered and removed by appellant’s employees. Appellant contends that inasmuch as the torpedo was picked up on San Fernando Street, it was the duty of the City of San Antonio to inspect such street and keep it safe for people using it; that the railroad company in this instance was nothing more than an abutting landowner and was not required to inspect its railroad tracks which were across San Fernando Street. The evidence shows that the railroad company’s employees were all over the railroad yards and were under instructions to keep a lookout for anything dangerous on or about the railroad tracks.

The evidence supports the findings of the jury that the torpedo belonged to appellant ; that it was lost, misplaced or abandoned through appellant’s negligence; that it was picked up next to one of appellant’s rails, at the edge of San Fernando Street, and that appellant was negligent in not finding and removing the torpedo before it was picked up by appellee’s boys.

Appellant contends that the submission of Question No. 1 was improper because appellant had admitted that children walked across its tracks which crossed San Fernando Street, and likewise it was improper to submit Question No. 12, because appellant admitted that the receptacles where torpedoes were placed were not kept under lock and key. We agree that undisputed issues should not be submitted to the jury, and that the submission of Questions Nos. 1 and 12 was error. Rule 272 Texas Rules of Civil Procedure; 3 McDonald, Texas Civil Practice, § 12.08, p. 1074. However, appellant has not shown that its rights were so prejudiced by the submission of these questions to the jury as to require a reversal of the judgment. Rule 434, T.R.C.P.

Appellant also contends that Question No. 4 should not have been submitted, inquiring whether George and Guadalupe Covarrubias fully realized that there was a dangerous risk involved in picking up the torpedo and taking it home with them, because it was an irrelevant, or at least only an evidentiary issue. We do not agree with this contention, but, in any event, such submission did not constitute reversible error.

Appellant introduced in evidence its Exhibits 1, 2 and 3, which were photographs showing certain burn marks in the wall of the building next-door to appellee's home and the place were Guadalupe Covarrubias was injured. It was appellant’s theory that these burnt marks on the wall near the home of appellee were, in all probability, caused by throwing torpedoes against these walls, and therefore the Covarrubias children did know the danger of the torpedo and its explosive nature. Later appellee moved to strike these exhibits from the record, which the court granted. Under all the circumstances, we feel that there was no reversible error in the action of the trial court in striking these three exhibits.

Appellant next contends that the verdict of $9,850.00 is excessive. We cannot agree. The evidence shows that Guadalupe was left in a horrible condition as a result of this explosion. He lost his entire left hand, with the exception of the little finger, and also lost the thumb of his right hand. When his mother sends him on an errand he has difficulty in remembering the purpose of the errand. He tries to hide the loss of his left hand by keeping the stub in his pocket. The jury must be allowed a great deal of discretion in fixing damages of this nature, and we are unable to say that the jury verdict in this case is excessive. Union Transports, Inc. v. Braun, Tex.Civ.App., 318 S.W.2d 927.

The judgment is affirmed.